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.
Borough of Charleroi, Pennsylvania
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.