18 SEP 2017 10:57 pm CiVil Administration . HAURIN JENNINGS SIGMOND, P.C. BY: Marc L. Gelman IDENTIFICATION NO. 78857 James E. Goodley IDENTIFICATION NO. 3153 3 1 1835 Market Street, Suite 2800 Philadelphia, PA 19103 (215) 922?6700 Attorneys for Plaintiff MICHAEL G. LUTZ LODGE NO. 5 OF THE FRATERNAL ORDER OF POLICE, through its COURT OF COMMON PLEAS Trustee Ad Litem, JOHN OF PHILADELPHIA COUNTY Plaintiff AUGUST TERM, 2017 NO. 2516 V. CITY OF PHILADELPHIA Defendant REPLY BRIEF IN FURTHER SUPPORT OF APPLICATION FOR INJUNCTIVE RELIEF AND NOW, come the Plaintiff, Michael G. Lutz Lodge No. 5 of the Fraternal Order of Police, through Trustee Ad Litem John McNesby, President, who submits this Reply Brief in Further Support of its Application for Injunctive Relief in order to stay enforcement of the City?s Policy until the Labor Relations Board issues a ?nal ruling. Case ID: 170802516? Control No.: 085314? I. ARGUMENT A. The Labor Anti-Injunction Act Does Not Apply to This Dispute and The Court Possesses Jurisdiction to Enjoin Defendant?s Illegal Conduct The Labor Anti?Injunction Act, 43 Pa. Stat. Ann. 206a et seq. is clearly intended to withdraw or limit the court?s jurisdiction with respect to enjoining picketing and other actions by workers and labor unions, not to withdraw courts? jurisdiction to cure unfair labor practices committed by employers. The Act?s purpose of protecting workers? ability to organize into labor unions and obtain better working conditions is plainly evident from the Act?s declaration of public policy: Under prevailing economic conditions developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint or coercion of employers of labor or their agents in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Equity procedure that permits a complaining party to obtain sweeping iniunctive relief that is not preceded by or conditioned upon notice to and hearing of the responding party or parties or that permits sweeping injunctions to issue after hearing based upon written af?davits alone and not wholly or in part upon examination, confrontation and cross? examination of witnesses in open court is peculiarly subiect to abuse in labor litigation. . . 43 Pa. Stat. Ann. 206b. ?The Act was a procedural statute designed to protect workmen.? Locust Club v. Hotel Club Emp. Union, Local No. 568, 397 Pa. 357, 364, 155 A.2d 27, 31 (1959). (Emphasis). 2 Case ID: 170802516 Control No.: 085314 ?In seeking an interpretation [of the Act] its history must be borne in mind.? All. Auto Serv. 12. Cohen, 341 Pa. 283, 286?87, 19 A.2d 152, 153 (1941). The Act was amended in 1939 to exempt cases involving a dispute ?in disregard breach, or violation of, or which tends to procure the disregard, breach, or Violation of, a valid subsisting labor agreement arrived at between an employer and the representatives designated or selected by the employees for the purpose of collective bargaining.? 43 PS. 206d. The Supreme Court addressed the purpose of this amendment in De Wilde v. Scranton Bldg. Trades Constr. Council, 343 PA 224, 22 A.2d 897 (1942), noting that Act was not intended ?to permit an employer to terminate or avoid a labor dispute by refusing to recognize or bargain with his disputants and exempt himself from operation of the anti-injunction act by the simple expedient of entering into an agreement with another association of employees. (163., 22 A.2d at 900). The underlying facts in the instant controversy, as a matter of intellectual integrity, excuse it from the intended ambit of the Act and the generalized use of the term ?labor dispute.? Here, FOP, the harmed party, seeks equitable injunctive relief to prohibit the release of names of police of?cers involved in shootings (?Policy?) until such time that the Labor Relations Board issues a ruling with regard to the unfair labor practice charge ?led by FOP on July 2, 2015 concerning the City?s unilateral implementation of the policy. Prior to the City?s unilateral implementation of the Policy on or about July 1, 2015 the City did not release the names of police of?cers involved in shootings. The harmful conduct at issue continued application of the Policy While the charge awaits ruling by the PLRB is not a ?labor dispute considered by 2060 of the Act. Such a suggestion 3 Case ID: 170802516 Control No.: 085314 is inconsonant with the very terms of the Act. The City has correctly identi?ed five requisite elements a court must recognize prior to issuance of an injunction under the Act:1 a) Unlawful acts have been threatened and will be committed, or have been and will continue unless restrained; b) Substantial and irreparable injury to the complainant?s property will follow unless the relief requested is granted; 0) Greater injury will be in?icted upon complainant by the denial of relief than will be in?icted upon defendants by granting of relief; e) The complainant has no adequate remedy at law; and f) Public of?cers charged with the duty to protect complainant?s property are unable to furnish adequate protection. 43 RS. supplied). By its terms, the Act requires harm or perceived or potential harm - to real property in order to trigger the protections (or limitations) of the Act.2 If the Act were therefore applied in the broadest sense possible, that is, to any disagreement or controversy involving an employer, and employee and/or employment relations, entire classes of cases would be deprived of the opportunity to seek injunctive relief.3 A Wholesale prohibition on requests for injunctive relief for matters involving unilateral implementation by employers and/or would be particularly onerous and oppressive. Such a result is absurd and would be inconsistent with. rulings by tribunals throughout the Commonwealth. The City?s position is discredited by the numerous instances where courts have considered applications for inj unctive relief under their equity powers by either employers or labor organizations for issues relating to conditions of employment without any regard or 1 The parties agree that a sixth element, concerning acts speci?cally cited in section 6 of the Act, does not apply here. 43 P.S. 206i(d). 2 This contention is offered without prejudice to secondary arguments, in?a. 3 Those not falling under one of the enumerated exceptions found at 43 PS. 403(d). 4 Case ID: 170802516: Control No.: 085314 consideration of the Act itself: Mazzie v. Commonwealth, 495 Pa. 128, 432 A.2d 986 (1981) (preliminary injunctive relief brought by municipal employees union against Commonwealth to prohibit enforcement of ?nancial disclosure requirements pursuant to executive order); Greater Nanticoke Area Educ. Ass ?n 12. Greater Nanticoke Are School Dist, 938 A.2d 1177 (Commw. 2007) (teachers? union seeking injunctive relief against school district to prohibit withdrawal from healthcare trust); McCa?ery v. Central Dauphin School District, 792 A.2d 691 (Commw. 2001) (teachers? union seeking to enjoin school district from unilaterally imposing employment conditions); Fraternal Order of Police, Lodge No. 5, 125 Pa. 209, 557 A.2d 805 (1989) (FOP seeking to enjoin City from unilaterally implementing urinalysis drug screening).4 Although the requested injunctive relief was not award in the all of the aforementioned cases, the court?s analysis when contemplating each request was done without any application of the Act, or even consideration thereof. Conversely, the City is unable to cite to a single case in which the Act was applied by a court when considering a request for injunctive relief concerning an employer?s unilateral implementation of a mandatory subject of bargaining. B. Whether Or Not the Labor Anti?Injunction Act Applies, the Standards For Injunctive Relief Have Been Met 1. The Elements for Issuance of an Injunction Under This Court ?s Equitable Powers Have Been Met. The purpose of a preliminary injunction is to preserve the status quo as it exists or previously existed before the acts complained of, thus preventing irreparable injury or gross injustice. Maritans GP, Inc. v. Pepper, Hamilton Scheetz, 529 Pa. 241, 602 A.2d 1277, 1286 4 A case cited by the City in its brief for another proposition. (City? 5 Response to Application, p. 32). 5 Case ID: 170802516 Control No.: 085314 (1992). The court may grant the injunction under 1531 only if the moving party establishes the following elements: 1) relief is necessary to prevent immediate and irreparable harm and/ or gross injustice that cannot be compensated by damages; 2) greater injury will occur from refusing the injunction than from granting it; 3) the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct; 4) the wrong is actionable and the plaintiffs right to relief is clear; and 5) the injunction is reasonably suited to abate that wrong. School District of Wiikihshurg v. Withinsburg Education Ass?n, 542 Pa. 335, 667 A.2d 5, 6 n.2 (1995). These requisite elements are cumulative and, if one element is lacking, relief may not be granted. Norristown Municipal Waste Authority v. West Norritori Twp. Mun. Authority, 705 A.2d 509, 512 (Pa. melth. 1998). a. The lniunction is Necessary to Prevent Immediate and Irreparable Harm that Cannot be Adequatelv Compensated by Damages A fundamental misperception advanced throughout the City?s response is the notion that the harm that forms is the basis of request for injunctive relief is the threat to safety of police of?cers. Indeed, the safety of police officers is of paramount importance to FOP.5 Nevertheless, it is the real harm to the bargaining position caused by the unilateral implementation of the Policy that constitutes the type of harm that underpins request for relief. 5 As will be addressed, safety of of?cers remains relevant to this court?s consideration when addressing additional factors necessary to obtain requested relief. 6 Case ID: 170802516 Control No.: 085314 An employer?s unilateral implementation of a term or condition of employment violates the Labor Relations Act It shall be an unfair labor practice for an employer-- To interfere with, restrain or coerce employes in the exercise of the rights guaranteed in this act. To refuse to bargain collectively with the representatives of his employes, subject to the provisions of section seven of this act. 43 Pa. Stat. Ann. The Supreme Court has consistently held that unilaterally implemented changes violate the PLRA: As a refusal to bargain collectively over a mandatory subject of bargaining is an unfair labor practice, an employer's unilateral change of such a subj eet without ?rst negotiating with the union has been held to similarly interfere with the employees? fundamental collective bargaining rights, as it works as a circumvention of the employer's duty to negotiate and thwarts the objectives of Act 111. Thus, akin to a refusal to bargain, a unilateral change of a mandatory subject of bargaining constitutes an unfair labor practice. See Ellwood City, 606 Pa. at 366?67, 998 A.2d at 595. City of Erie v. Lab. Rel. Bd., 32 A.3d 625, 635 (Pa. 2011) (citingBoroagh of Ellwood City v. Labor Relations Bel, 998 A.2d 589, 595 (2010)). (Emphasis added). The deleterious effect of unilateral changes by an employer to a bargaining representative is well-recognized. ?The coercive effect of unilateral [change] is obvious. The bargaining authority of the [union] to freely bargain is seriously undermined.? Labor Relations Board v. Williamsport Area School District, 486 Pa. 375, 381, 406 A.2d 329, 332 (1979), citing, Appeal ofCambei'land Valley School District, 483 Pa. 134, 394 A.2d 946, 951 (1978). The loss of bargaining power constitutes immediate and irreparable injury. For example a school district?s unilateral withdrawal from a healthcare trust has been deemed a ?nding of harm to the bargaining power of the union to enable a court to preliminarily enjoin the district from withdrawing from the trust under Pa. 1531(a). Greater Nanticoke, 932 A.2d 1185. A 7 Case ID: 170802516 Control No.: 085314 similar showing of irreparable harm to a union due to a unilateral change in working conditions was found at Central Dauphin Educ. Ass 792 A.2d 696. The City?s conduct here draws little distinction. Its unilateral implementation of the policy has caused harm to the bargaining position as to satisfy the irreparable harm element for injunctive relief. b. Greater Iniurv Will Occur From Refusing the Iniunction Than From Granting It Continued implementation of the Policy will result in greater injury to FOP than to the City, if enjoined. Application for Relief Seeking a Preliminary Injunction ?led on August 25, 2017 raises numerous concerns regarding the manner in which application of the Policy has an effect upon the safety of member police of?cers, particularly as addressed in the declaration of police officer Ryan Pownall. Application, Exhibit 5). As will be addressed more fully below, safety is a mandatory subject of bargaining. When an issue is a mandatory subject of bargaining, disruption of labor peace satisfies the greater injury requirement. Greater Nanticoke, 932 A.2d 1186, citing Pa. Labor Relations Bd. 1). Williamsport Area Sch. Dist. 486 Pa. 375, 406 A. 2d 329 (1979). c. The Iniunction Will Restore the Parties to the Status as it Existed Immediately Before the Alleged Wrongful Conduct The City correctly notes that the Policy has been in effect since at least September, 2015. However, it is not correct in its contention that ?enjoining the City from continuing the policy will not restore a never?existent status quo, but, rather, change the department?s pre-existing practice.? (City?s Brief at 34). The operative date here is not when the Policy became effective, but rather, when FOP challenged the Policy in relation to its effective date. Such a challenge came in the form of an 3 Case ID: 170802516 Control No.: 085314 unfair labor practice charge ?led with the Labor Relations Board almost immediately after the Policy?s implementation. ?The status quo to be maintained by a preliminary injunction is the last actual, peaceable and lawful non?contested status which preceded the pending controversy.? Lewis v. City of Harrisburg, 158. Pa. Commw. 318, 327, 631 A.2d 807, 812 (1993)(Emphasis supplied). FOP did not sleep on its rights and timely contested the Policy at the earliest appropriate time. d) The Wrong Is Actionable and the Plaintiff?s Right to Relief Is Clear 1. The issue of whether safety is a matter of inherent managerial policy or is a new term and condition of employment should be determined in the ?rst instance by the PLRB. labor policy and case law supports the exclusive jurisdiction to determine whether an unfair labor practice has occurred. Mazzie, 495 Pa. 140. The issue of whether a policy such as the one at issue is a ?term and condition of employment? or a ?matter of inherent managerial policy? should be determined in the ?rst instance by the PLRB. Id. at 137. Preliminary injunctions pending determination in the issue by the PLRB are merely prohibitory, and thus, the merits of the controversy should be left to the specialized agency. As such, the proper determination for this court is simply whether there are ?apparently reasonable grounds? to support an action. Id. at 134. Applying the holding in Mazzie, the Commonwealth agreed that the PLRB should determine in the ?rst instance whether a school district?s withdrawal from a healthcare trust is subject to mandatory bargaining. Greater Nanticoke, 932 A.2d 1186. With respect to the burden that need be met by the union, it noted: ?the party seeking injunction need not prove the merits of the underlying claim, but need only show that substantial legal questions must be resolved to 9 Case ID: 170802516 Control NO.I 085314 determine the rights of the respective parties.? 101., citing v. Deegan, 398 Pa. Super. 532, 581 A.2d 592, 593 (1990).6 Here, the substantial legal question as to whether safety is a mandatory subject of bargaining should be left to the PLRB while the prohibitory injunction be granted. 2. Regardless, Safely i_s a Mandatory Subject of Bargaining To the extent that this court deems it appropriate to endeavor as to whether the underlying dispute involves a mandatory subject of bargaining, such an inquiry must begin with the underlying source of the bargaining relationship between the parties the Policemen and Firemen Collective Bargaining Act (?Act 111?), 43 RS. ??217.1?217.10.7 Act 1 11 does not expressly provide for the reservation of management rights. Accordingly, in cases arising under Act 111 a management decision or ?action is deemed bargainable where it bears a rational relationship to employees? duties.? City of Clairion v. Labor Relations Board, 528 A.2d 1048, 1049-1050 (Pa. melth. l987)(citing International Association ofFirefighz?ers v. City ofScranton, 429 A.2d 779 (1981)). Under Section 1 of Act 111 police officers have the right to bargain collectively with their public employers concerning terms and conditions of employment, which includes compensation, hours, working conditions, retirement, pensions, and other bene?ts. 43 RS. ?217.l. Under Act 6 City directs this Court to Fraternal order of Police Lodge No. 5 v. City of Philadelphia, 124 Pa. melth. 209 (1989), in which the Commonwealth court held that a prerequisite for injunctive relief is a showing that petitioner has a igh degree of probability of success on the merits? (City?s Brief at 32; emphasis included in brief). Such an application appears to be an anomaly, as the Commonwealth resumed application of the Mazzie standard and has applied it as recently as 2007 in Naniicoke Area Educ. Ass ?n Greater Naniicolce Are School Dist, 938 i A.2d 1177 (Commw. 2007). i 7 The Labor Board?s jurisdiction over Act 111 is derived from an in pari materia construction with the Labor Relations Act. Philadelphia Fire Officers Association v. Labor Relations Board, 470 Pa. 550, 369 A.2d 259 (1977). 10 Case ID: 170802516? Control No.: 085314 1 1 1 ?a matter is deemed a mandatory subject of bargaining if it bears a rational relationship to the employees? duties.? Plarnst'ead Township v. Labor Relations Board, 713 A.2d 730, 733 (Pa. melth. 1988). Courts of this Commonwealth have held that ?[t]hese are words of limitation de?ning. . .a ?limited category of issues on which the public employer is required to bargain?? City ofSharon v. Rose ofSharon Lodge No. 3, 315 A.2d 355, 358 (1973). Although Act 111 does not expressly provide for the reservation of management rights, City ofPhiladelphia v. Labor Relations Bd., 138 Pa.melth. 113, 588 A.2d 67, alloc. denied, 528 Pa. 632, 598 A.2d 285 (1991), courts have recognized recognize that Act 111 does not remove all police regulation from the scope of a municipality's managerial decision- making process; any regulation which might be considered essential for the proper and ef?cient functioning of a police force may remain subject to municipal management. International Ass ?n of Fire Fighters v. City of Scranton, 429 A.2d 779 (Pa. melth. 1981). For an issue to be deemed a managerial prerogative and, thus, not a mandatory subject of bargaining, a managerial policy concern must substantially outweigh any impact an issue will have on the employees. Indiana Borough v. Labor Relations Bd., 695 A.2d 470 (Pa.me1th.1997). The Supreme Court long ago established the criteria for determining what a ?mandatory subject of bargaining,? was and what was a non-negotiable matter of ?inherent managerial policy?: [W]e hold that where an item of dispute is a matter of fundamental concern to the employes? interest in wages, hours and other terms and conditions of employment, it is not removed as a matter subject to good faith bargaining under section 701 simply because it may touch upon basic policy. It is the duty of the Labor Relations] Board in the ?rst instance and the courts thereafter to determine whether the impact of the issue on the interest of the employe in wages, hours and terms and conditions of employment outweighs its probable effect on the basic policy of the system as a whole. 11 Case ID: 170802516 Control No.: 085314 Labor Relations Board v. State College Area School District, supra, 337 A.2d at 268. See also Labor Relations Board v. Mars Area School District, 480 Pa. 295, 389 A.2d 1073 (1978). As the Supreme Court has made clear, it requires much more than an employer?s unilateral declaration that something will not be bargained over for a subject to be deemed a matter of ?inherent managerial policy.? Rather, an employer must be able to convincingly demonstrate that a subject of bargaining so impacts the employer?s core function as to warrant removal of that subject from the bargaining table. Against this backdrop, the question of whether the Policy requirement that of?cer?s names are released, thus impacting their safety, bears a rational relationship to their duties is easily answered in the affirmative. The City? unilateral implementation of such a policy does not re?ect a genuine exercise of managerial prerogative but, rather, an attempt to alter the working conditions of employees. e) The Injunction is Reasonably Suited to Abate the Wrong That the requested injunctive relief squarely addresses the alleged harms is somewhat self- evident. Notably, application is narrowly tailored to cure the appropriate harms, and nothing else. The Policy covers ?many issues related to the use of lethal force, including prohibitions on certain conduct and investigative protocols.? (City?s Brief at 6; See also, Directive 10.1: Application for Relief Seeking a Preliminary Injunction, Exhibit 1). The requested relief seeks to leave all other components of the Policy undisturbed. 12 Case ID: 170802516 i Control No.: 085314; 2. he Requirement for Injunct'ive Relief Under the Pennsyivania Labor Anti? Injunctz'on Act Have Been Met Although inapplicable, assuming arguendo that it was, for the same reasons set forth above, the requisites of the Act have been met. C. The City?s Suggestion That FOP can Seek Injunctive Relief through the PLRB Is MisPIaced The City argues that FOP may obtain relief from the PLRB through its authority to seek injunctive relief pursuant to 43 Pa. Stat. Arm. ?1101.1501. (City?s Brief at 35). The Supreme Court squarely rejected such an argument put forward in unequivocally holding that the provision now cited by the City ?authorizes the PLRB to seek an injunction in connection with its right to seek court enforcement of its order following a determination that an unfair labor practice has occurred.? 495 Pa. 140 (Emphasis supplied). II. CONCLUSION For the foregoing reasons, the elements required for injunctive relief have been met, and the remedy requested in the underlying Application should be granted. Respectfully submitted, JENNINGS SIGMOND, P.C. ls/ Marc. L. Gelman Marc L. Gelman IDENTIFICATION NO. 78857 James E. Goodley IDENTIFICATION NO. 3 153 3 1 1835 Market Street, Suite 2800 Philadelphia, PA 19103 Date: September 18, 2017 (215) 922-6700 13 Case ID: 170802516 Control No.: 085314 CERTIFICATE OF SERVICE I state, under penalty of perjury, that I caused a copy of Plaintiffs Reply Brief in Further Support of Application for Injunctive Relief to be served Via the Court?s ECF system and electronically to the following address on the date listed below: Cara Leheny, Esq. City of Philadelphia Law Department 1515 Arch Street, 17th Floor Philadelphia, PA 19 102 Benjamin Patchen, Esquire fity of Philadelphia Law Department 1515 Arch Street, 17th Floor Philadelphia, PA 19102 Date: September 18, 2017 14 Marc L. Gelman Marc L. Gelman IDENTIFICATION NO. 78857 Jennings Sigmond, PC. 1835 market St., Ste. 2800 Philadelphia, PA 19103 ?3 490 (215) 922-6700 Case ID: 170802516 Control No.: 085314