Pittsburgh not obligated to pay on-duty officers same as off-duty, court says

PITTSBURGH - On-duty Pittsburgh police officers performing security services at large

scale events should not receive the same rate of pay as off-duty officers working a secondary job at the same event, according to a decision published Thursday by the Commonwealth Court.

The ruling by a five-judge panel affirms a decision reached by Allegheny County Court of Common Pleas Judge Robert Colville, who reversed an opinion by an arbitrator that originally found in favor of the police union.

According to the opinion authored by Mary Hannah Leavitt, many officers with the Pittsburgh Police Department seek off-duty jobs through secondary employers, including organizers for large events such as concerts or football games.

The collective bargaining agreement between the City and the Fraternal Order of Police Fort Pitt Lodge No. 1 states that officers cannot be compelled to work off-duty for secondary employers, and the secondary employers are responsible for compensating the officers based on a rate of pay determined by contracts with the city.

The opinion says that the current pay rate is $41.12, equivalent to the overtime rate for a fourth-year officer and approximately $20 more than the regular shift officer tasked by city officials to provide traffic control during the large, public events.

The disagreement over pay rates started in February 2013, when Pittsburgh assigned Officer Robert Swartzwelder to direct traffic before a sporting event during his regular on-duty shift. Approximately 60 feet away, an off-duty officer was also directing traffic on behalf of a secondary employer.

Swartzwelder received the rate of pay owed according to the CBA; the off-duty officer received a rate of pay higher than Swartzwelder’s hourly wage. Swartzwelder filed a grievance, demanding to be paid the secondary employment rate of pay. By Sept. 1, 2013, Swartzwelder had filed six more similar grievances.

In addition, Officer David Lincoln filed a grievance in August 2013, stating that he too directed traffic at a sporting event while on duty, for which he earned less than off-duty officers who were directing traffic as secondary employment.

When the matter went to arbitration, Swartzwelder testified that he had been on the force for more than 26 years and felt it was unfair that an off-duty officer working the same event was paid $13 more than his regular hourly wage. The arbitrator agreed, finding in favor of the police union and directed the city to pay on-duty officers the same as off-duty officers at large-scale events.

On appeal, Colville vacated the decision, saying the arbitrator overstepped his role by interpreting what the CBA should say, rather than what was actually in the contract. The Commonwealth Court agreed that negotiations of wages should be left between the city and union at the time of contract renewal.

"The trial court observed that the arbitrator did not interpret the CBA, which was evidenced by the fact that he did not, because he could not, point to any language from the CBA to support his analysis," Leavitt wrote.