Pennsylvania Supreme Court Finds An “Unambiguous and Powerful Link Between Shift Staffing and Firefighter Health and Safety”

“The testimony and documentary evidence from the arbitration proceedings … clearly establishes an unambiguous and powerful link between shift staffing and firefighter health and safety.” With that, the Pennsylvania Supreme Court concluded that minimum shift staffing for firefighters is a mandatory subject for bargaining under the Pennsylvania Police and Firemen Collective Bargaining Act.

The case involved a 2013 interest arbitration award that established a minimum shift staffing of 25 firefighters per shift in the Allentown Fire Department. The city challenged the award in Lehigh County Court of Common Pleas claiming that minimum shift staffing was a management prerogative, and thus beyond the authority of the arbitration panel to award.

Despite the fact that the award actually reduced staffing from 28 per shift down to 25 and allowed the city to go below 25 under certain circumstances, Allentown Firefighters, IAFF Local 302 argued that shift staffing is a mandatory subject for collective bargaining. Local 302 argued that as a mandatory subject it was within the authority of the arbitration panel to award because it was within the scope of “wages, hours, and working conditions.”

The Lehigh County Court of Common Pleas and later the Commonwealth Court sided with the city, concluding that shift staffing was more like establishing a total number of firefighters in a department. Both courts noted that under long established precedent from Local 669 v. City of Scranton, 429 A.2d 779 (Pa. Cmwlth. 1981), the total number of firefighters in a department is a management prerogative.

Local 302 appealed in both cases arguing that shift staffing was actually akin to apparatus  staffing (per rig staffing), which had previously been determined to be a mandatory subject for bargaining given its close connection to firefighter safety and workload. Appeal of City of Erie, 459 A.2d 1320 (Pa. Cmwlth. 1983)

The Pennsylvania Supreme Court accepted the case, and began its decision with a review of the history of public sector collective bargaining, noting that it differs significantly from collective bargaining in the private sector:

  • While private sector employees enjoyed legal protection of the right to organize and collectively bargain with their employer beginning in the late 1930s, the law denied such rights to public-safety employees.
  • Resultant disharmony in the public-safety arena, and, at times, illegal and disruptive strikes, led to legislative reform by the late-1960s.
  • Act 111, [the Police and Firemen Collective Bargaining Act] enacted in 1968, was viewed as a compromise – “a more perfect balance between the need of the Commonwealth to insure public safety and the rights of the worker.”
  • It was a restorative and remedial measure, as it conferred on public-safety employees, such as police and firefighters, the right to collectively bargain and the right to interest arbitration, promising the timely and final resolution of bargaining issues. Yet, due to the essential services provided by these employees, the prohibition on striking by public-safety employees remained intact.
  • More specifically… the right to collectively bargain over the terms and conditions of employment was crucial to the essential compromise which resulted in the restoration and maintenance of the relationship between public-safety personnel and their municipal employer.
  • With respect to collective bargaining – central to the rights created by the new legislation — Act 111 permitted police and fire personnel the right to negotiate over “the terms and conditions of their employment, including compensation, hours, working conditions, retirement, pensions and other benefits, and . . . the right to an adjustment or settlement of their grievances or disputes in accordance with the terms of this act.”
  • While the granting of collective bargaining rights to police and firefighters over topics relating to the terms and conditions of employment was the engine that drove Act 111 and resulted in greater labor harmony, managerial prerogatives were not deemed to be subject to the bargaining process.
  • Thus, ultimately, we are attempting to discern the legislature’s intent regarding the rights and duties of municipal employers and unions regarding collective bargaining more specifically, and as described in detail below, we must discern what are the proper subjects of bargaining, what are managerial responsibilities, and what are managerial prerogatives.
  • While providing certain examples of subjects of bargaining, such as “hours,” which has caused relatively little difficulty, the legislature employed more open-ended terminology as well, such as “terms and conditions of employment,” and “other benefits,” the nature of which has been debated and left to administrative and judicial determination.
  • However, the divisions between these topics are not always clear. One may envision a Venn diagram with topics in the overlapping space that are terms and conditions of employment — which are subject to collective bargaining, and may serve as the part of an interest arbitration award — that also implicate matters of managerial responsibility — over which negotiation is not mandated, and which cannot serve as the basis for an arbitration award. As explained below, mandatory minimum shift staffing is one of these topics.
  • When considering topics that are the subject of an interest arbitration award which may implicate both mandatory subjects of bargaining and managerial responsibility, a court should initially determine whether the topic is subject to the right of collective bargaining – i.e., whether it is rationally related to the terms and conditions of employment.
  • If the topic does not speak to a mandatory subject of bargaining, the inquiry ends and the award must fail. If the topic is germane to the terms and conditions of the workplace, the court should next ask whether the award also implicates a managerial responsibility. If not, the award must be upheld as the topic is bargainable, and within the authority of the arbitration panel to address.
  • If, however, the topic is both a mandatory subject of bargaining and implicates managerial responsibilities, the final inquiry is “whether collective bargaining over the topic would unduly infringe upon the public employer’s essential managerial responsibilities.”
  • If bargaining over the subject would unduly infringe upon managerial responsibilities, the topic will be considered a managerial prerogative and non-bargainable, and, thus, unable to serve as the basis for an interest arbitration award. If not, the topic is subject to mandatory collective bargaining and may serve as a basis for an arbitration panel’s award.
  • If it is established that the topic is both a proper subject of bargaining and a managerial responsibility, it is then necessary for the municipality to convince the tribunal that bargaining over such topic — and having that subject be a component of an interest arbitration award — would unduly infringe upon the municipality’s responsibilities, and, thus, constitutes a managerial prerogative. With this three-step analytical construct in mind, we turn to the arguments of the parties.
  • We begin our analysis by summarizing what is not in contention. First, the IAFF and the City agree that the proper framework is the three-step analysis … described above.
  • Again, under this approach, a court should initially determine whether the topic is subject to the right of collective bargaining — i.e., whether it is rationally related to the terms and conditions of employment. If so, the court should consider whether the award also implicates a managerial responsibility. If the topic is both a mandatory subject of bargaining and implicates a managerial responsibility, the final step of the inquiry is “whether collective bargaining over the topic would unduly infringe upon the public employer’s essential managerial responsibilities.”
  • If unduly infringing upon a managerial responsibility, the topic will be considered a managerial prerogative that is non-bargainable, and, therefore, unable to serve as a component of an interest arbitration award.
  • Applying this three-step analysis to the matter sub judice, the parties are in agreement that mandatory minimum staffing is rationally related to terms and conditions of employment, but also that such a minimum staffing provision implicates managerial responsibilities.
  • Thus, the point of contention between the IAFF and the City is whether the mandatory minimum staffing provision “unduly infringes” upon the municipality’s managerial responsibilities. To resolve this question, we first turn to the Commonwealth Court’s decisions in City of Scranton and City of Erie.
  • In its 1981 decision in City of Scranton, the Commonwealth Court was faced with a challenge to an arbitration award that would have mandated the city increase its overall firefighting force to 225 firefighters. The court found the question turned on whether it would allow “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.”
  • The court determined that this topic was a managerial prerogative, Conversely, in City of Erie, decided two years later, the Commonwealth Court addressed whether an arbitration award that required a minimum crew of four firefighters on each firefighting rig was proper. The court opined that “[t]he safety of a firefighter is far more rationally related to the number of individuals fighting a fire with him, or operating an important piece of equipment at a fire, than it is to the number of members of the entire force.”
  • Because firefighter safety is at the core of our analysis, we also look to the evidence proffered by the parties. The relevant evidence offered by the IAFF at the arbitration hearing concentrated on the relationship between staffing and safety.
  • Art Martynuska, President of the Professional Firefighters Association, which is the state affiliate of the IAFF, testified about the concept of fire propagation -that is, the relationship of time and temperature in a fire — and the impact on public and firefighter safety of a quick response and adequate personnel.
  • This view was echoed by Christian Williams, Fire Captain for the City, who testified that a minimum staffing requirement was important for ensuring enough firefighters to maintain a safe work environment, and that decreasing the number of firefighters led to unsafe working conditions.
  • The City’s evidence regarding mandated shift staffing was more limited, primarily focusing on how overtime resulting from minimum staffing was increasing pension expenses for the City.
  • On this question, we find there is a direct and significant relationship between the number of individuals available to respond to a call at a station — minimum shift staffing — and the safety of the City’s firefighters. The testimony and documentary evidence from the arbitration proceedings set forth in detail above clearly establishes an unambiguous and powerful link between shift staffing and firefighter health and safety.
  • Accordingly, we conclude that shift staffing mandates are more akin to the mandates regarding the staffing of firefighting apparatus than the staffing of the entire fire department.

Here is a copy of the ruling: Allentown Firefighters v Allentown

Obviously there is a great deal more in the ruling, some that will make firefighters happy, some that will make city managers happy. As someone who wrote his law school thesis on “The Scope of Collective Bargaining For Firefighters”, and spent 32 years since studying this issue, I would say – I think the Pennsylvania Supreme Court got it right!!!

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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