Arbitrator Has No Authority To Rewrite Contract In The Name Of Fairness

The collective bargaining agreement between the City of Pittsburgh and the Fraternal Order of Police Fort Pitt Lodge No. 1 has a secondary employment clause providing that “police officers engaged in secondary employment will receive the rate of pay for such work as agreed upon by and between the City and the Secondary Employer.” The “agreed upon rate of pay” for secondary employment is the overtime rate for a fourth-year police officer, which is $41.12 per hour. Any officer working secondary employment is paid that hourly wage, regardless of his rank or seniority.

The City often directs on-duty officers to do traffic control at a large public event where off-duty officers are also working in a secondary employment assignment. On February 17, 2013, the City assigned Officer Robert Swartzwelder to direct traffic before a sporting event during his regular on-duty shift. Approximately 60 feet away, an off-duty officer was also directing traffic on behalf of a secondary employer. The City paid Swartzwelder the rate of pay owed under the collective bargaining agreement; the off-duty officer working secondary employment was paid the secondary employment rate of pay, which was higher than Swartzwelder’s hourly wage.

Swartzwelder filed a grievance, demanding to be paid the secondary employment rate of pay. By September 1, 2013, Officer Swartzwelder had filed six more similar grievances. In addition, Officer David Lincoln filed a grievance on August 18, 2013, stating that he too directed traffic at a sporting event while on duty, for which he earned less than off-duty officers who were directing traffic as secondary employment.

An arbitrator upheld the grievances, but only on a prospective basis. The Arbitrator concluded that it would be unfair to pay on-duty officers less than those doing secondary employment, explaining as follows: “It does not appear justifiable for these on-duty officers doing the same work at the same event as the secondary officers yet receiving a lesser rate of pay. Therefore, it is my conclusion, based upon the grievances and the arguments presented, that on-duty officers sent to work special events should be paid at the same rate of pay as the rate being paid to officers working the special events as a secondary employment detail.”

The City challenged the Arbitrator’s decision in court, arguing that the Arbitrator exceeded his authority because his award (1) was not rationally related to the terms and conditions of the officers’ employment under the CBA and (2) infringed upon the City’s managerial prerogative to negotiate the compensation for on-duty officers as set forth in the CBA. Pennsylvania’s Commonwealth Court agreed with the City and overturned the Arbitrator’s opinion.

The Court stated: “First, we reject the Union’s argument that the Arbitrator’s award was based on his interpretation of the CBA. The Arbitrator did not find that the City violated the CBA, as written, when it paid Officers Swartzwelder and Lincoln their regular pay rates for directing traffic while on duty. Simply put, this Court cannot be bound by the Arbitrator’s interpretation of the CBA where there was no interpretation.

“It is the substance of the award, not merely the subject matter of the award or the question put to the Arbitrator, that is critical. The Arbitrator had jurisdiction over the question put to him. However, in fashioning his award, the Arbitrator exceeded both his jurisdiction and authority. The purpose of grievance arbitration is to resolve disputes over a provision of an existing contract. The Arbitrator explained his award on the grounds that it would be inequitable not to give on-duty officers the same wage paid to an off-duty officer. A grievance arbitrator does not have jurisdiction or authority to rely on principles of equity to reform the CBA.

“Instead of acting solely as a grievance arbitrator, the Arbitrator stepped into the shoes of an interest arbitrator by issuing an award applicable to all police officers in the bargaining unit, not just the grievants. The Arbitrator decided, apparently, what the CBA should say and did not rely upon what it does say. This he lacked power to do.”

City of Pittsburgh, 2015 WL 1084803 (Pa. Cmwlth. 2015).