Court time: Management does not violate the bargaining agreement by attempting
to limit police officers from being unnecessarily subpoenaed to appear in court
proceedings, and it was not a past practice that officers shall attend every
court appearance to which they are subpoenaed.
However, management cannot require officers to ignore lawfully issued
subpoenas. It must prevail upon the party issuing a subpoena to withdraw it or
requesting the court quash the subpoena.
|
In re
Borough of Charleroi, Pennsylvania
and
Teamsters Local Union 205
119 LA (BNA) 385
Bureau of Mediation Case No. 4105
November 18, 2003
Richard W. Dissen, Arbitrator.
The Borough of Charleroi is a small
borough organized under the provisions of the Pennsylvania Municipal Code. The
Borough’s police officers, including lieutenants and patrolmen, are members of
a bargaining unit, which is represented by the Union. The facts underlying the
grievances are essentially uncontested.
Article
22.D of the parties’ collective bargaining agreement provides that a police
officer who is required to attend Court during time that the officer is
scheduled to be off from work shall receive a full eight (8) hour day’s pay.
Historically, Borough police officers had been permitted to attend court
proceedings both on and of duty without first obtaining approval from supervision.
In 2003, however, the Borough began to actively monitor and manage the
attendance of its officers at court and court-related proceedings. The officers’
presence at such proceedings was made subject to prior approval by Borough
management.
The case at hand arises from the
Acting Superintendent of Police directing three (3) Borough police officers not
to appear in court on January 21, 2003, notwithstanding that each of the
officers had been served with a subpoena that had been issued by the Washington
County District Attorney’s office for their appearance in criminal court on
that date. Complying with the directive given in advance of the scheduled court
date by the Acting Superintendent, none of the officers appeared at the January
21, 2003 proceedings.
On January 29, 2003, the three (3)
officers filed separate grievances contending that the Borough had violated the
parties’ collective bargaining agreement when it directed them not to appear in
response to subpoenas. Because the officers had been off-duty at the time of
the scheduled court appearance, each claimed that he had been improperly denied
the eight (8) hours’ pay required by Article 22.D. The Borough denied the three
(3) grievances, contending that Article 22.D applied only if the Borough
compelled a court appearance. The Borough insisted that the subpoena issued by
a third party, such as the district attorney or the court, did not activate the
compensatory obligation created by Article 22.D.
Having been unable to resolve the
grievances at any earlier stage of the grievance-arbitration procedure, the
parties have processed the dispute to arbitration. Because the grievances are
factually indistinguishable, the parties have agreed to consolidate the
grievances for purposes of this arbitration.
The Union insists that the
Arbitrator need merely enforce the plain language of Article 22.D of the
parties’ collective bargaining agreement in order to sustain this grievance.
The Union reasons that a witness who is subpoenaed to testify at court
proceedings is required to appear as a matter of law. Because Article 22.D clearly states that
an officer who is required to attend court during time off shall receive eight
(8) hours’ pay, the Union maintains that an officer who is legally compelled by
subpoena to attend court proceedings is entitled to the benefit of that
contractual provision.
The
Union rejects the Borough assertion that Article 22.D is intended to refer only
to court appearances that the Borough requires an officer to attend. The Union reminds the Arbitrator that in selecting from among
competing interpretations of an arguably ambiguous provision, an arbitrator
must reject an interpretation that produces harsh or nonsensical results. A
person who does not appear in response to a subpoena is in contempt of court
and risks civil and criminal penalties. The Union insists that a construction
of the collective bargaining agreement that would repeatedly place officers in
legal jeopardy cannot be accepted in arbitration. According to the Union, a
reasonable interpretation of Article 22.D would acknowledge that officers who
are subpoenaed to appear in court must do so and that they would receive
compensation for working outside of regularly scheduled time.
The
Union maintains that, in any event, the Borough is without authority to relieve
an officer of the legal obligation imposed by a subpoena. The Union submits that the long-standing practice of the parties
acknowledges the limited authority of the Borough to interfere with a subpoena
issued for the appearance of Borough police officers at the trial of criminal
cases they were involved in as arresting officers. According to the Union, the
Borough had always deferred to the authority of a subpoena issued to its officers,
and had compensated officers who were subpoenaed to appear in court during
off-duty hours.
The Union submits that the
grievances seek nothing more than that the agreement be applied as written and
that the Borough honor the contractual obligations to which it has agreed. The
Union asks, therefore, that the grievances be sustained.
The Borough states that, beginning
in 2003, it began to actively manage its officers’ attendance at court or court
related proceedings. Because it has few police officers and a limited budget,
the Borough sought to more effectively manage its police force to achieve the
Borough’s law enforcement objectives without incurring unnecessary costs. Part
of this effort was a new requirement that police officers obtain prior
supervisory approval before attending court proceedings even if they were
subpoenaed to attend.
The Borough observes that the
argument made by the Union that the change in procedure under which officers
are now required to obtain prior supervisory approval before responding to
court subpoenas constitutes a violation of Article 22.D was not advanced until
the time of arbitration. The written grievance alleged only a violation of past
practice. The Borough submits, therefore, that the claim of a direct contract
violation should properly be rejected because it was not developed anytime
before the arbitration hearing.
Alternatively,
the Borough argues that Article 22.D does not mandate that officers must appear
in court whenever they are subpoenaed and that the Borough must pay the
officers in every such instance. The Borough reads Article 22.D merely to fix a
rate of compensation for officers who are required to appear in court. The
Borough insists that, from the perspective of a collective bargaining
agreement, it is apparent that the requirement referred to in Article 22.D can
only be a requirement imposed by the employer, a party to the agreement itself.
It is argued that, logically, only the Borough can require officers to appear
in court and bind itself to the obligation of paying them for their services.
The Borough notes that the Union has
not contested the right of the Borough to manage its police officers while they
are on duty. The Union could not legitimately object, for example, if the
Borough directed an officer to patrol the Borough or to respond to a crime
scene even if such a directive conflicted with a court subpoena requiring the
officer’s attendance. Pennsylvania tribunals have recognized that the Borough
has a similar, albeit limited right to direct the off-duty activities of police
officers. For example, in Caln Township Police Officers Association v. Caln
Township, 27 PPER 27, 180 (1996), the Pennsylvania Labor Relations Board
upheld the Township’s directive prohibiting police officers from wearing their
uniforms while performing security work for a local school district during
their off-duty hours. In this case, the Borough has simply declined to require
that off-duty officers respond to subpoenas. If an officer chooses to respond,
he should do so without expectation of the compensation provided in Article
22.D.
The Borough emphasizes that an
arbitrator’s jurisdiction is limited to interpreting the agreement. Although
the Union might argue that the Borough’s policies run afoul of Pennsylvania
criminal law and procedure, that is a matter to be resolved in another forum.
For purposes of contractual grievance arbitration, the only matter at issue is
whether or not the Borough has violated the agreement.
It is argued that any reliance by
the Union on the doctrine of past practice in this case is misplaced.
Pennsylvania courts have recognized that, at least in the public sector, an
enforceable past practice cannot arise concerning an inherent management right.
Past practices may be honored to the extent that they concern mandatory
subjects of collective bargaining. In South Park Township Police Association
v. PLRB, 789 A.2d 874 (Pa. Commw. 2002), the court upheld a Pennsylvania
Labor Relations Board determination that the Township had not committed a
unfair labor practice when it unilaterally modified its court appearance policy
to require that officers attending court must report to the police station both
before and after any court appearance. Before that change in policy, officers
could report or not at their discretion. The Borough insists that its authority
to direct its police force and the activities of its police officers is
inherently managerial As such, the Borough’s authority cannot be limited by the
doctrine of past practice, no matter how long-standing.
The Borough concludes that the Union
has established no violation of the collective bargaining agreement. The
Borough asks, therefore, that the grievances be denied.
Did
the Employer violate Article 22.D of the parties’ collective bargaining
agreement or a binding past practice when it directed police officers not to
attend court hearings for which they had been subpoenaed to appear? If so, what
shall the remedy be?
Article
22-Miscellaneous Provisions
D. Court
Appearance-An Officer required to attend Court will receive a full eight (8)
hour day’s pay if he is required to attend Court on time off. If Court
attendance is required on a scheduled work day, the officer will receive his
regular pay. In addition, the Borough will pay for a full tank of gas for the
officer using his own car.
Policemen
shall receive a $15.00 Magistrate Fee for attendance at such hearings if they
are scheduled on their off time.
The question presented in this
dispute is whether the Borough’s directive instructing the Grievants not to
appear in court on January 21, 2003 in response to court subpoenas that had
previously been issued to them violated the provisions of the parties’
collective bargaining agreement or a binding past practice. The Union takes the
position that, because a valid subpoena requires an officer to attend the court
proceeding to which the subpoena directs him, both the duty to appear and the
concomitant right under Article 22.D to eight (8) hours’ compensation should be
evident. The Union insists that any directive given to police officers by the
Borough to defy valid subpoenas contravenes Article 22.D.
The Borough responds that Article
22.D establishes the amount of compensation to which an officer is entitled
when required to appear in court, but does not establish an officer’s
unfettered right to attend court proceedings. The Borough reasons that by
employing the term “required”, the parties clearly intended to limit an officer’s
right to receive compensation under that provision. The Borough further reasons
that, as the only party to the contract authorized to direct the work force,
the Borough is clearly the only entity that may require an officer to appear in
court within the meaning of Article 22.D. In the Borough’s view, therefore,
efforts by third parties, including courts, district attorneys, attorneys, and
litigants to legally compel an officer’s appearance in court or litigation
proceedings would not necessarily activate the compensation language of Article
22.D.
The Borough’s reading of Article
22.D seems to conflict with Article 10 of the parties’ collective bargaining
agreement. Article 10 addresses the compensation entitlement of employees who
are required to serve as jurors in language similar to that found in Article
22.D:
Whenever an Employee is required to
be on Jury Duty he shall receive, on a daily basis, the difference between his
compensation as a juror and what he would have received had he been on the job.
The purpose of this article is to enable the Employee to meet civic
responsibility without suffering a monetary loss.
The
semantic similarity of the two (2) provisions suggests that they should be
construed similarly. In the case of jury duty, the Borough has no control or
discretion over whether an officer is summoned to serve as a juror, yet Article
10 requires the Borough to pay the officer. Accepting the Borough’s own
analysis, when a jury summons has been issued to and complied with by an
officer, a third party has effectively imposed a financial obligation upon the
Borough under Article 10. As the Union correctly
observes, the Borough itself would seldom be in a position to require an
officer to appear in court proceedings. An officer’s appearance is generally
obtained either through notice of the proceedings or by subpoena. A subpoena,
of course, places the person to whom it is directed under a legal obligation to
appear in court in accordance with the terms of the subpoena.
Nothing
in the collective bargaining agreement, however, prohibits the Borough from
monitoring the subpoenas issued to its officers in conjunction with its right
to direct and control the work force under Article 3 of the collective
bargaining agreement. In conjunction with this authority, the Borough may
certainly review subpoenas in order to determine whether they might have been
improvidently issued. In this case, the Borough concluded that the subpoenas
were likely issued as a matter of course and not because the officers’ presence
was necessary to the conduct of court business.
The
Union objects, however, that irrespective of the Borough’s opinion of whether
the Grievants’ January 21, 2003 appearances were actually necessary, the
officers remain subject to the subpoenas and, failing to appear, placed the
Grievants at risk of contempt of court penalties. The Union has identified a
valid concern. Although the Borough does retain the right to control and direct
its police force, it cannot claim the right to require its officers to commit
illegal acts or to defy court orders.
Although the Borough’s reserved
rule-making authority and its right to manage and control its police officers
undoubtedly permits it to monitor subpoenas and screen their necessity, the
Borough cannot place its officers in legal jeopardy by ordering them simply or
generally to defy subpoenas. Instead, the Borough must attempt to release the
officer from the obligation to appear in court, either by prevailing upon the
party issuing the subpoena to withdraw it or by requesting that the court quash
the subpoena. If the Borough is unsuccessful in such efforts, the officer
remains required to appear in court. In that instance, an officer’s Article
22.D right to compensation must be respected.
The
provision of eight (8) hours compensation set forth in Article 22.D is designed
to compensate officers for the inevitable inconvenience that results when an
officer is summoned to court during off-duty time. The Borough argues
unconvincingly that, unless it directs the officer to appear, a police officer
subpoenaed to court proceedings while off-duty is no differently situated than
any private citizen who may likewise be inconvenienced by a subpoena. Unlike
most citizens, police officers are routinely subpoenaed to appear in court.
Furthermore, their frequent appearances in court are far more often than not
associated with their official employment responsibilities. In fashioning the compensation provision set forth in Article
22.D, the parties recognized the likelihood that officers would frequently
suffer intrusions upon leave time to attend court proceedings closely related
to the official duties for which they are regularly compensated. Considered in
the context in which it was most likely developed, Article 22.D cannot be
construed as the Borough suggests. An officer who must appear in court in
response to a subpoena, and who is not excused from that obligation by the
party issuing the subpoena or by the court, is entitled to compensation under
Article 22.D.
The
Borough is correct, however, that it is not precluded either by the terms of
Article 22.D or any past practice from exercising legitimate managerial rights
in a way that limits its exposure to costs that might arise from its officers
being routinely and unnecessarily subpoenaed to appear at court proceedings. For example, police officers may be given a courtesy notice of
DUI prosecutions solely for purpose of affording that officer an opportunity to
make objections to a sentencing recommendation. The officer would not be
required to provide testimony, but would be permitted to appear and speak. Of
course, if the officer has no objection to a proposed disposition, there would
be reason for the officer to attend the proceeding. By way of further example,
the Pennsylvania Crimes Code provides for the Accelerated Rehabilitative
Disposition (ARD) program, a diversionary program for non-violent, usually
first time offenders. At the discretion of the district attorney, non-violent
offenders may be offered the opportunity to enter the ARD program in lieu of
facing formal prosecution for criminal charges pending against them. At a
disposition hearing in an ARD proceeding, the only participants actively
involved are the presiding judge, the assistant district attorney, the
defendants appearing that day and their respective counsel. Witnesses are not
called to testify. In fact, should a defendant elect at the last minute not to
enter the program but to offer a defense at trial, the matter will be
rescheduled for a later date. The Borough might well question whether a
subpoena is appropriately issued to arresting officers in such matters, and
certainly may question whether it was within the contemplation of the parties
at the time of negotiating the collective bargaining agreement to pay an
officer a full eight (8) hours to attend a proceeding at which it was known
that he or she would serve no useful purpose.
The
fact that the Borough for a number of years did not monitor or regulate its
officers’ court appearances does not preclude it from now exercising a more
active supervisory role. Furthermore, nothing in
Article 22.D prohibits the Borough from attempting to obtain the release of its
officers from appearing in court in response to subpoenas. The argument by the Union that
the Borough must adhere to a practice of permitting officers to attend every
court appearance to which they are subpoenaed must be rejected. In the usual
course of managing its work force, the Borough certainly may monitor any
attempts by third parties to control the activities of its officers,
particularly those that impose a financial liability upon the Borough. The
Borough may take reasonable measures to relieve itself of any such potential
financial obligation. In the area of court subpoenas, reasonable measures would
include obtaining an excuse from the subpoena or quashing the subpoena through
appropriate legal proceedings.
The Union observes that in this
case, the three (3) Grievants were not relieved from the obligation to respond
to the subpoenas, but were simply instructed by the Acting Superintendent of
Police not to honor the subpoenas. Accordingly, the Union feels that the
Grievants must be paid for the court proceedings that they remained legally
obligated to attend, but were directed by the Borough not to attend. The
evidence of record is, however, that none of the Grievants did attend court on
the date in question. None of the Grievants suffered either the reduction in
off-duty time or the associated inconvenience the compensatory provisions of
Article 22.D are designed to address. Because the Grievants did not actually appear in court,
they cannot claim the compensation made payable under the terms of Article 22.D
to officers who are required to appear in court while off-duty.
The situation of the Grievants is not analogous to that of workers who have been improperly denied overtime or other work opportunities and seek compensation. In those instances, unlike the case at hand, the employer precludes an employee who is ready and willing to perform available work from doing so. In this instance, there was a dispute as to whether there was any legitimate work for the officers. Although the Grievants were willing to appear at criminal court, the Borough questioned the need for those appearances. It has not been shown that the subpoenas issued in this case were anything more than perfunctory notices of proceedings that the officers could, but were neither required nor even expected to attend.
The grievances are denied.