Commonwealth Court reverses Phila. judge's decision in firefighters' labor dispute

By Jon Campisi | Sep 20, 2013

Municipal firefighters appear to have lost their fight with the City of

Philadelphia after a Pennsylvania Commonwealth Court panel reversed a Common Pleas Court judge’s ruling with regard to firefighter promotions.

The three-judge appellate court panel wrote in its Sept. 18 opinion that Common Pleas Court earlier this summer was wrong to grant mandamus relief to Local 22 of the International Association of Firefighters, which is also known as the Philadelphia Firefighters’ Union, in its case against the city and various officials over whether or not the city could unilaterally change terms of the collective bargaining agreement where firefighter promotions are concerned.

In mid-May, union members, who are also subject to Philadelphia’s civil service regulations, requested that the city promote a total of 17 individuals who were named on a promotional list to a host of vacant fire captain and fire lieutenant positions prior to the May 24 expiration of the list.

Civil service regulations dictate that prospective promotions are based on test scores from an exam and other factors.

A promotional list is then created that remains in force for at least one year from its inception, but for no more than two years, the court record shows.

The city had certified promotional lists for the positions of fire captain and lieutenant back on May 25, 2011, with the list remaining in force until May 24 of this year.

The city ultimately promoted 35 employees to the position of fire captain and 78 employees to the position of lieutenant from the promotional lists that were in effect.

In early May, Philadelphia City Council convened a hearing to address the city’s failure to promote certain firefighters from the promotional lists to fill vacancies in the fire department that had already been budgeted for, the record shows.

During that proceeding, the city’s director of public safety testified that there had been budgeted uniform vacancies for the ranks of captain and lieutenant, but that Philadelphia officials chose not to promote any additional individuals from the lists to fill those vacancies.

The public safety director, Michael Resnick, also stated that the city gave new exams for the captain and lieutenant positions and was creating new promotional lists for those positions from which the city would make promotional decisions, according to the Commonwealth Court opinion.

The city, Resnick had said, desired to allow the current list to expire because some promotions had already been made from that list, meaning the remaining promotions would have to be made from the bottom of the list.

The city maintained that it would prefer to fill vacancies and promote individuals from the top of a new list.

Philadelphia Fire Commission Lloyd Ayers said that as of May 18, there were six budgeted vacancies for fire captain and 11 for lieutenant, the record shows.

The union went on to request that the city promote people to the vacant captain and lieutenant positions before the May 24 expiration of the promotional list that was in effect.

The city denied the request and the union subsequently filed a grievance claiming city officials breached the collective bargaining agreement.

Union representatives also filed an action in state court seeking a preliminary injunction or a peremptory judgment in mandamus either temporarily blocking the city from treating the current promotional list as no longer in force as of May 24 pending the outcome of the grievance, or forcing the city to promote members on the current list to the vacant fire captain and lieutenant positions prior to May 25, or prior to promoting anyone on any future lists to those positions.

A Philadelphia judge essentially sided with the union, subsequently entering an order directing the city to fill the budgeted vacancies for fire captain and lieutenant prior to May 25, when the current list was scheduled to expire, the record shows.

Citing Philadelphia’s Home Rule Charter and civil service regulations, the trial judge wrote that “vacancies must be filled by promotion at the first opportunity possible, and not whenever most convenient to the officers charged with carrying out the civil service regulations … If it is possible, indeed where it is not impossible, to fill vacancies, the City must do so under the Home Rule Charter.”

The trial court’s opinion was filed on June 27.

The union then filed its appeal with Commonwealth Court.

On appeal, the city argued that the trial court erred because neither the Home Rule Charter or civil service regulations require vacancies to be filled immediately by promotion, but simply mandate that vacancies be filled through promotion as opposed to outside hiring.

While the trial court interpreted the Home Rule Charter and civil service regulations to mean that the city has to promote a civil service employee on a promotional list as soon as a vacancy is created, and that the city cannot wait to fill vacant positions from a future promotional list in favor of promoting those on an active promotional list, “we find those regulations to only mean that promotion from the promotion list is the required method for filling vacancies … not to mean that promotion from the promotional list is required when a position becomes vacant,” the Commonwealth Court ruling states.

The regulations, the appeals court wrote, simply address the manner of filling the vacancies, not whether to fill them in the first place.

The panel also wrote that nothing in the regulations prevents the city from letting old lists expire so that it can promote workers from a new list.

Civil service regulations also show that the city’s fire commission has discretion when it comes to promoting firefighters and filling vacancies, the court noted.

“Because there is no right of Union members on a promotional list to be promoted, and the promotion of those individuals is not a ministerial act, the trial court erred in granting mandamus relief,” the appeals ruling states. “Accordingly, the order of the trial court is reversed, and the matter is remanded to the trial court to dismiss the Union’s Complaint.”

The opinion was written by Commonwealth Court President Judge Dan Pellegrini.

The other participating judges were Robert Simpson and Patricia A. McCullough.

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