                               [J-86-2016] [MO: Justice Todd]
                        IN THE SUPREME COURT OF PENNSYLVANIA
                                     MIDDLE DISTRICT


CITY OF ALLENTOWN                            :   No. 24 MAP 2016
                                             :
                                             :   Appeal from the Order of the
                  v.                         :   Commonwealth Court at No. 1802 CD
                                             :   2014 dated August 7, 2015 Affirming in
                                             :   part and Reversing in part the Order of
INTERNATIONAL ASSOCIATION OF                 :   the Lehigh County Court of Common
FIRE FIGHTERS LOCAL 302                      :   Pleas, Civil Division, dated September
                                             :   8, 2014 at Nos. 2013-C-4397 and 2013-
---------------------                        :   C-4438.
                                             :
INTERNATIONAL ASSOCIATION OF                 :   ARGUED: September 13, 2016
FIRE FIGHTERS LOCAL 302                      :
                                             :
                                             :
                  v.                         :
                                             :
                                             :
CITY OF ALLENTOWN                            :
                                             :
                                             :
APPEAL OF: INTERNATIONAL                     :
ASSOCIATION OF FIRE FIGHTERS                 :
LOCAL 302                                    :


                                CONCURRING OPINION


JUSTICE DOUGHERTY                                      DECIDED: March 28, 2017
         I join the learned majority in holding the mandatory shift manning provision

constitutes an arbitrable issue and the arbitration panel did not exceed its powers in

imposing such a provision in its award. However, I write to express my concerns with

the majority’s resolution of the second question on which this Court granted appeal:

         Whether the Commonwealth Court erred when it reversed the trial court
         and held that an Act 111 arbitration award that set a minimum number of
         firefighters on duty per shift should be vacated because the number of
       firefighters on duty per shift unduly infringes upon the exercise of an
       employer’s managerial responsibilities when there was no evidence of any
       undue infringement presented to the Act 111 panel?


City of Allentown v. Int'l Ass'n of Fire Fighters Local 302, 682 MAL 2015, 2016 WL

7647036 (Pa. Mar. 3, 2016).        The majority rejects the “imposition of a concrete

requirement that testimonial or documentary evidence is necessary in all cases to

support a claim that a topic unduly infringes on managerial responsibilities.” Majority

Opinion, Slip Op. at 12-13, n. 8. In my view, the presentation and consideration of

evidence of undue infringement upon a managerial prerogative is necessary to the

resolution of such issue, and I therefore distance myself from the majority’s footnote 8.

       In 1967, the General Assembly recognized police officers and firefighters are a

special class of public employee as they are vital to public safety. Twp. of Moon v.

Police Officers of the Twp. of Moon, 498 A.2d 1305, 1311 (Pa. 1985). This recognition

resulted in an amendment to the Pennsylvania Constitution1 and the passage of Act

111. Pa. State Police v. Pa. State Troopers’ Ass’n, 656 A.2d 83, 89 (Pa. 1995). Police

officers and firefighters gave up the ability to strike in exchange for the right to bargain

collectively regarding “the terms and conditions of their employment, including

compensation, hours, working conditions, retirement, pensions and other benefits,” and

the settlement of disputes through binding arbitration. 43 P.S. §§217.1, 217.7. Further

Section 7 of Act 111 specifically provides “[n]o appeal [from the arbitration proceedings]


1
  Article III, Section 31 of the Pennsylvania Constitution was amended to allow binding
arbitration for the adjustment or settlement of grievances or for collective bargaining
between police officers and firefighters and their public employers. Additionally, an
arbitration award constitutes a mandate to the municipality or Commonwealth directing
that such administrative or legislative action which is necessary to implement the award
be taken.       PA. CONST. ART. III, §31.       See also 43 P.S. §217.7(a) (directing
Commonwealth and municipal subdivisions to take administrative action or enact
legislation where such action is required to implement arbitration award).



                            [J-86-2016] [MO: Justice Todd] - 2
shall be allowed to any court.” 43 P.S. §217.7. However, in Washington Arbitration

Case, 259 A.2d 437, 440-41 (Pa. 1969), this Court recognized that review of an Act 111

arbitration award is not entirely precluded, and adopted narrow certiorari review.

      In the context of Act 111, an arbitration panel must weigh the rights of firefighters

and police officers against the unique needs and concerns of the public employer.

Unlike the majority, which posits in some instances evidence of undue infringement

would be unnecessary because it would be clear a certain subject by its very nature

unduly infringes on managerial rights, Majority Opinion, Slip. Op. at 12-13 n.8, I believe

it is unlikely such an instance would ever occur because the undue infringement

analysis is used to resolve the competing interests which arise when a topic is a

mandatory subject of bargaining implicating managerial prerogatives. In my opinion,

bare assertions of infringement by the public employer are insufficient.       The public

employer must demonstrate how its managerial prerogatives are infringed and the

impact of the infringement.         In short, the public employer must establish the

infringement is undue. Borough of Ellwood City v. Pa. Labor Rels. Bd., 998 A.2d 589,

600 (Pa. 2010) (emphasis added).         My position on this issue is motivated by my

concern that the unique constitutional and statutory rights and protections given to

police and firefighters under Act 111 must not be unnecessarily eroded by insubstantial

claims of managerial prerogative.

      The arbitration panel would then be able to weigh the competing interests of the

parties in crafting a resolution to the bargaining dispute. Establishment of a record with

regard to infringement will also allow reviewing courts employing the narrow certiorari

standard to determine whether an arbitration panel exceeded it powers without resorting

to appellate fact-finding. See, e.g., Michael G. Lutz Lodge No. 5 v. City of Phila., 129

A.3d 1221, 1227 (Pa. 2015) (under narrow certiorari review, court may review arbitration




                           [J-86-2016] [MO: Justice Todd] - 3
awards only to consider questions concerning:          (1) jurisdiction of arbitrators; (2)

regularity of proceedings; (3) an excess of arbitrator's power; and (4) deprivation of

constitutional rights); see also Concurring Opinion, Saylor, CJ., Slip Op. at 3.

       The majority asserts prior precedent shows the courts have not always required

evidentiary support to resolve claims of undue infringement. Majority Opinion, Slip Op.

at 12-13 n.8, citing Borough of Ellwood City; City of Phila. v. Int’l Ass’n of Firefighters,

Local 22, 999 A.2d 555, 572 (Pa. 2010); Dep’t of Corr. v. Pa. State Corr. Officers Ass’n,

12 A.3d 346, 358 (Pa. 2011); Borough of Morrisville v. Morrisville Borough Police

Benevolent Ass’n, 756 A.2d. 709, 711 (Pa. Cmwlth. 2000). I respectfully disagree. In

my view, this Court’s prior decisions involving the undue infringement analysis have

been based upon a development of the record. As noted by Chief Justice Saylor in his

concurrence, this Court in Borough of Ellwood City noted a “case-specific inquiry” is

necessary to determine whether an ordinance unduly infringes upon a working

condition. Concurring Opinion (Saylor, C.J.) Slip Op. at 5, quoting Borough of Ellwood

City, 998 A.2d at 602. Additionally, in City of Philadelphia, the Court concluded the

award unduly infringed upon the city’s managerial rights because of the award-specific

implementation procedures, not because of the substance of the provision. Id. at 5-6,

citing City of Phila., 999 A.2d at 572-73. In Dep’t of Corrs., the Court relied upon record

evidence regarding the litigious nature of inmates and the dangerous nature of work as

a corrections officer to conclude “that, in view of this unique set of circumstances

under which the employees must perform their jobs, litigation protection is a term of

employment” for this particular bargaining unit.      12 A.3d at 541.      Contrary to the

majority’s argument, in each of these cases, the Court reached its decision based on

the record as developed by the parties regarding the specific factual circumstances and




                            [J-86-2016] [MO: Justice Todd] - 4
the implications of the disputed issue.2   In my view, requiring evidence of undue

infringement upon managerial prerogatives would be a best practice going forward.

      Justice Donohue joins this concurring opinion.




2
     The majority’s reliance upon Borough of Morrisville is unpersuasive as the
Commonwealth Court did not conduct an undue infringement analysis. The court
acknowledged bargaining regarding pensions is permissible, but bargaining over the
administration of pensions is not permissible. Borough of Morrisville, 756 A.2d at 710,
citing Frackville Borough Police Dep’t v. PLRB, 701 A.2d 632 (Pa. Cmwlth. 1997). After
examining the relevant sections of the Pennsylvania Municipal Retirement Law, 53 P.S.
§§881.101 - 881.501, the court concluded the disputed issue was non-bargainable
because it fell within the ambit of pension administration.



                          [J-86-2016] [MO: Justice Todd] - 5
