The City of Allentown, Pennsylvania and the International Association of Fire Fighters, Local 302 were parties to a collective bargaining agreement set to expire in December 2011. The CBA provided that the City Fire Department was required to have 140 sworn personnel with an on-duty shift strength of no less than 28 firefighters.
When negotiations failed to produce a new agreement, the City and Local 302 proceeded to arbitration. After a lengthy hearing, the Arbitrators issued an award that, among other things, eliminated the provision that the City had to have a set number of firefighters and reduced the minimum manning scheduling requirement to 25 per shift. Both sides challenged the award and, pursuant to a joint stipulation, agreed to send the dispute back to the Arbitration Panel for a new hearing.
In November 2013, the Arbitration Panel issued a supplemental opinion and award which re-issued its initial award and re-dated it September 23, 2013. The City sought to vacate the award to the extent that it imposed the manning requirement of 25 personnel per shift.
Pennsylvania’s Commonwealth Court sided with the City on the staffing issue. The Court started with the proposition that “a court must first determine if what is at issue is a management right, and then determine whether the award unduly infringes upon that right. When an award unduly infringes upon the exercise of managerial responsibilities, it concerns a managerial prerogative that lies beyond the scope of collective bargaining and reflects an excess of the Panel’s powers and is voidable.”
The Court noted that it had long recognized the distinction between manning requirements such as the number of firefighters that respond to a fire, which is bargainable because it implicates firefighter safety, and the size of the force – the number of firefighters to be employed – because it relates to a city’s overall capacity to fight fires, a non-bargainable managerial prerogative. In the Court’s view, “the bottom line of the instant appeal is whether the Court will permit the members of fire and police forces to decide how much of the municipal budget will be spent in the areas of fire and police protection, under the guise of safety considerations. To grant this appeal, we must give the Union the right to have a major decision-making impact on government spending, budgeting, the level of police and fire protection that the Municipality must provide, and even taxation, because salaries for the additional employees must come from public funds. To affirm the award of the Arbitrator as being within the scope of arbitrable issues, the Court must effectively put Union members on an equal footing with their employer on a major policy-making question. These people are, after all, employees, not employers.
“The courts that have dealt with this issue have drawn a very fine line in distinguishing between the total number of persons on the force (not arbitrable), and the number of persons on duty at a station, or assigned to a piece of equipment, or to be deployed to a fire (all arbitrable because they are rationally related to the safety of the firefighters). This Court finds merit in that distinction, because the result still leaves in the Municipality the ultimate decision concerning what level of fire protection it wishes, or can afford, to provide to the citizens. If it finds that the arbitrable situations cause an imbalance in certain areas of the force, it retains the authority to decide whether to hire more employees, close stations, revamp the force, or take some other managerial action. Since the method of resolving the imbalance may have far-reaching political and economic implications, especially if taxes must be raised, it should remain within the purview of those who were elected and/or appointed to make such decisions.
“By requiring the City to employ a minimum number of firefighters per shift, the award unduly infringes directly upon its managerial prerogative by restricting the ultimate decision concerning what level of fire protection the City wishes, or can afford, to provide to its citizens. Such a requirement is not as directly related to the firefighters’ performance of their duties. As a result, minimum manning concerns a managerial prerogative that lies beyond the scope of collective bargaining, reflects an excess of the board’s powers, and is voidable.”
City of Allentown, 2015 WL 4680890 (Pa. Cmwlth. 2015).