COMMONWEALTH OF PENNSYLVANIA
Pennsylvania Labor Relations Board
FRATERNAL ORDER OF POLICE LODGE 5
v.
CITY OF PHILADELPHIA

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Case No. PF-C-15-42-E
PF-C-15-53-E

PROPOSED DECISION AND ORDER
On June 2, 2015, the Fraternal Order of Police Lodge 5 (FOP or Union)
filed a charge of unfair labor practices with the Pennsylvania Labor
Relations Board (Board) against the City of Philadelphia (City or Employer),
alleging that the City violated Section 6(1)(a) and (e) of the Pennsylvania
Labor Relations Act (PLRA) as read with Act 111 by unilaterally implementing
changes to its use of force policies without bargaining with the FOP. The
charge was docketed at PF-C-15-42-E.
On June 11, 2015, the Secretary of the Board issued a Complaint and
Notice of Hearing, assigning the charge to conciliation for the purpose of
resolving the matters in dispute through mutual agreement of the parties, and
designating January 8, 2016, in Harrisburg, as the time and place of hearing,
if necessary. On July 2, 2015, the FOP filed an amended charge of unfair
labor practices to PF-C-15-42-E with the Board against the City, alleging
that the City also violated Section 6(1)(a) and (e) of the PLRA by
unilaterally implementing a policy whereby the City would release the names
of police officers, who discharged their firearms, in officer involved
shootings, to the public in contravention of decades of past practice whereby
the officers’ names were protected. On July 31, 2015, the Secretary of the
Board issued an Amended Complaint and Notice of Hearing, once again directing
a hearing on January 8, 2016.
On July 8, 2015, the FOP filed a charge of unfair labor practices with
the Board against the City, alleging that the City violated Section 6(1)(a),
(c), and (e) of the PLRA by refusing to provide protection for a police
officer after releasing his name to the public following an officer involved
shooting in retaliation for the FOP obtaining a favorable interest
arbitration award, which eliminated the City residency requirement for police
officers, and for the officer exercising the contractual right to live
outside of the City. The FOP further alleged that the City violated the PLRA
by unilaterally changing the terms and conditions of employment for police
officers by failing to fully comply with the interest arbitration award in
violation of its bargaining obligation. The charge was docketed at PF-C-1553-E.
On July 30, 2015, the Secretary of the Board issued a Complaint and
Notice of Hearing, assigning the charge to conciliation, and designating
August 31, 2015, in Harrisburg, as the time and place of hearing, if
necessary. After several continuances, the charges docketed at PF-C-15-42-E
and PF-C-15-53-E were eventually consolidated for hearing purposes at the
request of the FOP and without objection from the City.

 Hearings were necessary and were held on September 26, 2016 and
December 11, 20171, at which time the parties were afforded a full opportunity
to present testimony, cross-examine witnesses and introduce documentary
evidence. The City filed a post-hearing brief on April 3, 2018. The FOP
filed a post-hearing brief on April 5, 2018. On April 25, 2018, I granted
the City’s request to file a response to the FOP’s brief and set forth an
additional briefing schedule, in which the City’s response was due on May 16,
2018 and the FOP’s reply was due 21 days following receipt of the same. The
City filed a responsive brief on May 15, 2016. The FOP did not file a reply
to the City’s responsive brief.
The Examiner, on the basis of the testimony presented at the hearing
and from all other matters and documents of record, makes the following:
FINDINGS OF FACT
1.
The City of Philadelphia is a public employer and political
subdivision under Act 111 as read in pari materia with the PLRA. (N.T. 8)
2.
The FOP is a labor organization under Act 111 as read in pari
materia with the PLRA. (N.T. 8)
3.
The FOP is the exclusive bargaining representative for police
employes at the City. (Union Exhibit 1)
4.
Prior to 2009, the City’s police officers were required to live
in the City as a condition of employment. (N.T. 41)
5.
The FOP and the City were parties to a collective bargaining
agreement (CBA), which was effective from July 1, 2008 through June 30, 2009.
(Union Exhibit 15)
6.
During negotiations for a successor agreement, the FOP made a
proposal to break the residency requirement, so that police officers would no
longer be required to live within the confines of the City. The City
contested the proposal. (N.T. 42-45)
7.
On December 18, 2009, an Act 111 interest arbitration panel
issued an Opinion and Award, which was effective from July 1, 2009 through
June 30, 2014, and which eliminated the residency requirement, in part.
(N.T. 44-45; Union Exhibit 15)
8.
Specifically, Section 6 of the Award provides, in relevant part,
as follows:
Effective July 1, 2010, employees who are eligible for or
currently enrolled in the DROP will not be required to live in
the City of Philadelphia.
Effective January 1, 2012, employees who have five (5) or more
years of service as a police officer in the City of Philadelphia
will not be required to live in the City of Philadelphia.
The second day of hearing was originally scheduled for March 15, 2017, but
was continued due to inclement weather. The hearing was continued
indefinitely at the request of both parties to accommodate their schedules
with regard to an approaching interest arbitration proceeding.
1

2

 All employees will be required to reside in the Commonwealth of
Pennsylvania.
(Union Exhibit 15)
9.
Prior to 2015, and at least as long ago as 1989, the City’s
Police Department codified its use of force rules and regulations in
Directives 10 (use of lethal force) and 22 (use of non-lethal force). (City
Exhibits 1(a), 1(b), 2(a), 2(b); Union Exhibits 2, 3)
10.
The parties’ current CBA, which is effective from July 1, 2014
through June 30, 2017, contains the following provision:
[t]he FOP shall be notified of all substantive changes or new
rules and regulations applicable to the Police Department
affecting members of the FOP bargaining unit at least ten (10)
days before the effective date of such change, unless the change
is occasioned by an emergency.
(Joint Exhibit 1; Union Exhibit 1)
11.
On May 29, 2015, the Police Department’s Research and Planning
Unit forwarded to the FOP, via electronic mail, the following Use of Force
directives that were revised and approved by the Police Commissioner:
Directive 10 (current 10.1); Directive 22 (current 10.2); Directive 160
(current 10.3); and Directive 161 (current 10.4). 2 (Joint Exhibit 1)
12.
On June 2, 2015, the FOP filed the charge docketed at PF-C-15-42E with the Board. (Joint Exhibit 1)
13.
The Police Department subsequently decided to submit these four
directives for further review, and the versions forwarded to the FOP were not
published. (Joint Exhibit 1)
14.
Prior to July 2015, the City did not have a formal written policy
regarding the release of names of officers involved in shootings. The
longstanding practice was that the City would not release the names of
officers unless they themselves had been shot or they were being cited for
heroic actions. (N.T. 25-27, 72-79; City Exhibit 4(a), 4(b), 4(c), 4(d))
15.
On July 2, 2015, Lieutenant Kevin Long, on behalf of the Police
Commissioner, emailed to the FOP a response protocol for releasing the names
of officers involved in shootings. (N.T. 67-68; Joint Exhibit 1)
16.
On July 3, 2015, the City released the names of two police
officers, who were involved in an earlier 2015 shooting, Michael Minor and
Robert Hoppe. (N.T. 27-29, 270; Union Exhibit 11, City Exhibit 16)

Specifically, Directive 10 governed the discharge of firearms, while
Directive 22 controlled the use of “moderate/limited force.” Directive 160
governed the use of electronic control weapons or TASERs, while Directive 161
involved the Use of Force Review Board to review the appropriateness and
reasonableness of force. (Union Exhibit 7, 8, 9, 10).
2

3

 17.
The City provided a 24/7 police security detail at Hoppe’s home
address, which was within the City, prior to his name being released. (N.T.
269)
18.
Minor initially declined protection, but the City required him to
accept based on a complaint Hoppe made to the FOP. The City contacted the
Lansdowne Chief of Police, which was where Minor resided, and requested a
24/7 security detail. The Lansdowne Police Department did not have
sufficient personnel for a 24/7 detail. Instead, the Lansdowne Police
assigned extra patrols every hour to Minor’s block. (N.T. 269-270; City
Exhibit 16)
19.
On July 8, 2015, the FOP filed the charge docketed at PF-C-15-53E with the Board. (Joint Exhibit 1)
20.
On August 27, 2015, the Police Department’s Research and Planning
Unit forwarded to the FOP, via electronic mail, the following Use of Force
directives that were revised and approved by the Police Commissioner:
Directive 10 (current 10.1); Directive 22 (current 10.2); Directive 160
(current 10.3); and Directive 161 (current 10.4). (Joint Exhibit 1)
21.
effective.

On September 18, 2015, Directives 10.1 through 10.4 became
(Joint Exhibit 1)3
DISCUSSION

The FOP has charged the City in PF-C-15-42-E with violating Section
6(1)(a) and (e) of the PLRA4 and Act 111 by unilaterally implementing changes
to its use of force policies without bargaining with the FOP. The FOP
subsequently amended the charge in PF-C-15-42-E to include an allegation that
the City violated the same provisions of the PLRA by unilaterally
implementing a policy of releasing the names of police officers who
discharged their firearms in shootings in contravention of a longstanding
practice of withholding the names. The City contends that the charge should
be dismissed because the policies are a matter of inherent managerial
prerogative.
Section 1 of Act 111 provides, in pertinent part, as follows:
Policemen or fireman employed by a political subdivision of the
Commonwealth or by the Commonwealth shall, through labor
organizations or other representatives designated by fifty
percent or more of such policemen or firemen, have the right to
bargain collectively with their public employers concerning the
terms and conditions of their employment, including compensation,
hours, working conditions, retirement, pensions, and other
benefits, and shall have the right to an adjustment or settlement

The record shows that the City renumbered the directives following a
recommendation from the Justice Department, which conducted an assessment of
the City’s use of force policies in 2015. (N.T. 133-134; City Exhibit 5).
4 Section 6(1) of the PLRA provides that “[i]t shall be an unfair labor
practice for an employer: (a) To interfere with, restrain or coerce employes
in the exercise of the rights guaranteed in this act...(e) To refuse to
bargain collectively with the representatives of his employes, subject to the
provisions of section seven (a) of this act. 43 P.S. § 211.6.
3

4

 of their grievances or disputes in accordance with the terms of
this act.
43 P.S. § 217.1.
The Pennsylvania Supreme Court has applied a balancing test when
deciding whether a managerial decision is a mandatory subject of bargaining
for municipalities in collective bargaining relationships with their police
and fire employes under Act 111. Middletown Borough Police Officers Ass’n v.
Middletown Borough, 46 PPER 78 (Proposed Decision and Order, 2015). Once it
is determined that the decision is rationally related to the terms and
conditions of employment, or germane to the work environment, the inquiry is
whether collective bargaining over the topic would unduly infringe upon the
public employer’s essential managerial responsibilities. If so, it will be
considered a managerial prerogative and non-bargainable. If not, the topic
is subject to mandatory collective bargaining. Id. citing Borough of Ellwood
City v. PLRB, 998 A.2d 589, 600 (Pa. 2010); City of Philadelphia v.
International Ass’n of Firefighters, Local 22, 999 A.2d 555, 570-571 (Pa.
2010). The Board must not analyze employer changes to work rules as a whole,
but rather on a rule-by-rule basis to determine whether the work rules
constitute mandatory subjects of bargaining. Commonwealth Department of
Transportation v. PLRB, 543 A.2d 1255 (Pa. Cmwlth. 1988).
Section 9(e) of the PLRA provides that “[n]o petition or charge shall
be entertained which relates to acts which occurred or statements which were
made more than six weeks prior to the filing of the petition or charge.” 43
P.S. § 211.9(e). As a general matter, the nature of the unfair practice
claim alleged frames the limitations period for that cause of action. Upper
Gwynedd Township Police Dept. v. Upper Gwynedd Township, 32 PPER § 32101
(Final Order, 2001). For a refusal to bargain a change in terms and
conditions of employment, notice to the union of the implementation of the
challenged policy or directive triggers the statute of limitations. Harmar
Township Police Wage and Policy Committee v. Harmar Township, 33 PPER § 33025
(Final Order, 2001). Implementation is the date when the directive becomes
operational and serves to guide the conduct of employes, even though no
employes may have been disciplined or corrected for failure to abide by the
directive. Id. Mere statement of future intent to engage in activity, which
arguably would constitute an unfair labor practice, does not constitute an
unfair labor practice for engaging in that activity. Upper Gwynedd Township,
at 264. The Board will dismiss a charge as prematurely filed where the
complainant files the charge prior to actual implementation. City of
Allentown, 19 PPER § 19120 (Final Order, 1988).
In this case, the record shows that the charge in PF-C-15-42-E, as
amended, was premature. Prior to 2015, and at least as long ago as 1989, the
City’s Police Department codified its use of force rules and regulations in
Directives 10 (use of lethal force) and 22 (use of non-lethal force). The
parties’ current CBA, which is effective from July 1, 2014 through June 30,
2017, contains the following provision:
[t]he FOP shall be notified of all substantive changes or new
rules and regulations applicable to the Police Department
affecting members of the FOP bargaining unit at least ten (10)
days before the effective date of such change, unless the change
is occasioned by an emergency.

5

 On May 29, 2015, the Police Department’s Research and Planning Unit
forwarded to the FOP, via electronic mail, the following Use of Force
directives that were revised and approved by the Police Commissioner:
Directive 10 (current 10.1); Directive 22 (current 10.2); Directive 160
(current 10.3); and Directive 161 (current 10.4). On June 2, 2015, the FOP
filed the charge docketed at PF-C-15-42-E with the Board. The Police
Department subsequently decided to submit these four directives for further
review, and the versions forwarded to the FOP were not published. On July 2,
2015, the City emailed to the FOP a response protocol for releasing the names
of officers involved in shootings. The FOP immediately amended its charge at
PF-C-15-42-E on July 2, 2015, alleging the City had violated the PLRA by
unilaterally implementing the policy of releasing the names of officers
involved in shootings. On July 3, 2015, the City released the names of two
police officers, who were involved in an earlier 2015 shooting. On August
27, 2015, the Police Department’s Research and Planning Unit forwarded to the
FOP, via electronic mail, the following Use of Force directives that were
revised and approved by the Police Commissioner: Directive 10 (current 10.1);
Directive 22 (current 10.2); Directive 160 (current 10.3); and Directive 161
(current 10.4). On September 18, 2015, Directives 10.1 through 10.4 became
effective.
The timeline set forth directly above clearly shows that the FOP
initially filed its charge in PF-C-15-42-E on June 2, 2015 and subsequently
amended the charge on July 2, 2015, which was well before most of the
policies were actually implemented on September 18, 2015. With respect to
the policy of releasing the names of police officers involved in shootings,
the record shows that, while the FOP amended the charge on July 2, 2015
alleging a violation of the PLRA for this alleged unilateral action, the City
did not take such action until July 3, 2015 when it released the names of
Minor and Hoppe. The FOP did not file any additional amendments to PF-C-1542-E at any time after July 2, 2015. Thus, the FOP did not file any unfair
labor practice charges or amended charges after the directives at issue
became effective. As a result, the charge, as amended, in PF-C-15-42-E, was
clearly premature, and therefore, it must be dismissed as a matter of law.
In any event, the four directives at issue clearly involve matters of
inherent managerial prerogative, and are therefore, not subject to
bargaining. In City of Philadelphia v. International Association of
Firefighters, Local 22, 999 A.2d 555 (Pa. 2010), the Pennsylvania Supreme
Court opined that “matters of managerial decision making that are fundamental
to public policy or to the public enterprise’s direction and functioning do
not fall within the scope of bargainable matters under Section 1 [of Act
111.] Such managerial prerogatives include the standards of service, overall
budget, use of technology, organizational structure, and the selection and
direction of personnel.” Id. at 569-570.
The record shows that Directive 10.1 covers the use of lethal force or
discharge of firearms and contains a series of rules and procedures governing
the conduct of police officers in this regard. The FOP has specifically
challenged the following rules contained within Directive 10.1:
Section 4(A), Specific Prohibitions: “[p]olice officers shall not draw
their firearms unless they reasonably believe an immediate threat for
serious bodily injury or death to themselves or another person exists.”
(Union Exhibit 12, Section 4(A)).

6

 Section 3 contains a use of force decision chart, which illustrates the
amount of force an officer should use based on the suspect’s behavior
and threat. The chart is essentially a continuum of options ranging
from no force through moderate/limited and less than lethal force to
deadly force, complete with instructions to use the option that
represents the minimal amount of force necessary to reduce the
immediate threat.
Section 4(G) provides that “[p]olice officers shall not discharge their
firearms FROM a moving vehicle unless the officers are being fired
upon. Shooting accurately from a moving vehicle is extremely difficult
and therefore, unlikely to successfully stop a threat of another
person.” (Union Exhibit 12)(Emphasis in original).
Section 5(A)(2)(d) states that “[e]ach officer at the scene of a
discharge of a firearm by any police officer will...[r]eport to the
first supervisor on the scene, whether they (sic) had a BWC [body-worn
camera] and if it was on during the incident.”
Section 5(A)(3)(b)(9), which requires police radio to immediately
notify the Police Advisory Commission (PAC) Executive Director after
the discharge of a firearm.
Supervisor’s Firearm Discharge Checklist which contains a series of
questions presumably for the police supervisor to pose to the officer
involved in a shooting.
Section 5(A)(4)(j), which states that the “[f]irst supervisor on the
scene [after an officer discharges his or her firearm] will be
responsible for the following...[w]ill brief the PAC Executive Director
or designee on all the known facts of the discharge.”
Section 6(E) which is entitled “Investigation of Police Discharges,”
and which contains the following NOTE: “[Employee Assistance Program]
peer counselors will only respond to police discharges where the
suspect was fatally wounded or injured as a result of the discharge.
The exception is when there is a request from the investigating
shooting team, the officer’s Commanding Officer, CIB or the Commanding
Officer, EAP.”
Section 9(A), Release of Information Regarding Officer Involved
Shootings (OIS), which states that “[a] press conference and/or an
official press statement will be released by the Police Commissioner or
his designee within 72 hours of an officer involved shooting in which
an individual was killed or wounded as a result of a weapons discharge
by a member of the department. The information will include officer’s
name, years of service, assignment and duty status.”5

The directive goes on to provide a procedure for the department to follow in
performing a threat assessment of the OIS to ensure the safety of its
officers. The procedure includes an intelligence assessment of any potential
threats, steps to minimize the officer’s social media or online presence, the
provision of security details within the boundaries of the City and/or
efforts with outside jurisdictions to provide patrols or coverage, and
prioritizing the officer’s home address within the police radio system for
any calls coming from that location. (Union Exhibit 12).
5

7

 Directive 10.2 covers the use of “moderate/limited force” and contains
a similar series of rules and procedures related to the use of weapons other
than firearms, such as an ASP baton and OC spray, along with the use of
strikes, kicks, and certain holds. (Union Exhibit 12). The FOP has
specifically challenged the following rules contained within Directive 10.2:
Section 4 contains a use of force decision chart, which once again
illustrates the amount of force an officer should use based on the
suspect’s behavior and threat. The chart appears to be identical to
the one contained in Directive 10.1 set forth above.
Section 4(E) states: “[t]hough many officers may be at the scene of a
police incident where force is being used, some officers may not be
directly involved in taking police action. As officers, we have an
obligation to protect the public and other officers. Therefore, it
shall be the duty of every officer present at any scene where force is
being applied to either stop or attempt to stop another officer when
force is inappropriately used and/or no longer required. Your actions
will both protect the officer from civil or criminal liability and the
civilian from serious injury.”
Section 5(B)(3) states that: “[o]fficers responding to any incident
that may require the use of force WILL NOT...[o]ffensively kick and/or
stomp on a subject. NOTE: Kicks are authorized for defensive purposes
only.”
(Union Exhibit 12)(Emphasis in original).
Directive 10.3 also covers the use of less than lethal force,
specifically electronic control weapons or TASERS. As a result, the
directive contains a series of rules and procedures governing the use of
these weapons for police officers. The FOP objects to this directive in its
entirety.
Finally, Directive 10.4 covers the City’s Use of Force Review Board
(UFRB) and includes a series of rules and procedures for evaluating certain
instances of police use of force. The FOP has specifically challenged the
addition of the Executive Director of the Police Advisory Commission to the
UFRB as a voting member and the FOP President as a non-voting member in
Section 1(D).
Having reviewed each of these rules individually, as set forth above,
including each of the four directives in their entirety, I must conclude that
these rules represent nothing more than the simple direction of personnel and
are each a proper exercise of the City’s managerial prerogative. Indeed, it
cannot be seriously contended that the City is without the managerial
authority to direct its police employes to refrain from the use deadly force
in certain situations and/or to use a lesser amount or no force altogether in
others. In fact, this issue has already been decided.
As the City persuasively notes in its post-hearing brief, the Board has
previously held that rules pertaining to the use of force and weapons are
valid exercises of managerial prerogative and not subject to bargaining.
Middletown Borough Police Officers Ass’n v. Middletown Borough, 46 PPER 78
(Proposed Decision and Order, 2015), aff’d in part, rev’d in part on other
grounds, 47 PPER 30 (Final Order, 2015); see also Fraternal Order of Police,
Lodge No. 5 v. City of Philadelphia, 45 PPER 105 (Proposed Decision and
8

 Order, 2014). In addition, the Board has previously held that establishing a
police advisory commission to investigate complaints of police misconduct is
a managerial prerogative because it includes action to ensure integrity in
public employment and to increase public confidence in government. FOP Lodge
5 v. City of Philadelphia, 29 PPER ¶ 29000 (Final Order, 1997). In that
case, the Board opined as follows:
...we agree with the hearing examiner that these core managerial
interests of City government are directly and substantially
affected by its creation of an advisory commission with power to
publicly consider complaints that police officers have mistreated
the citizenry and violated their civil rights, and that the
City’s interest in establishing the PAC substantially outweighs
any impact on the police officers (which essentially consists of
the addition of another investigatory body that may uncover
police misconduct that may result in discipline). The City of
Philadelphia police department, which is charged with enforcement
of the law, certainly has a compelling interest in attempting to
ensure that its own employes abide by the law in the performance
of their duties. As the New Jersey Public Employment Relations
Commission aptly stated in finding no duty to collectively
bargain over creation of an internal investigation unit in a
municipal police department:
The broad issue involved...is the method by which a public
employer maintains an awareness of the alleged misconduct of its
employees. All employers, both public and private, are
rightfully concerned that their employees not engage in conduct
violative of the law, rule or regulation. This is perhaps of
greater importance to the public employer, whose function is to
serve the public interest, and especially so in the case of a
municipal police department, which exists to enforce the law and
to protect the general citizenry.
We do not view the decision of a public employer to maintain such
an awareness, or the decision to utilize a particular method of
doing so, as constituting a term or condition of employment of
its employees. As such, the employer’s decision is not a
required subject for collective negotiations. City of Trenton, 1
NJPER 58, 59 (1975).
In this case, as in City of Trenton, the public employer is a
city police department which exists to enforce the law and to
protect the city’s residents. The decision to establish the PAC
strikes at the core of the City’s basic mission because it was
established to ensure that the City’s police officers lawfully
carry out their duties without mistreatment of the citizens who
are to receive their protection. This type of decision regarding
the appropriate means to fulfill the essential mission of the
public employer principally involves managerial policy and thus
is not subject to mandatory negotiation.
29 PPER at 2.
In the same vein, the City’s establishment of the Use of Force Review
Board, as well as its various rules and procedures, to evaluate instances of
police use of force is a valid exercise of managerial prerogative. Indeed,
9

 this represents nothing more than the creation and/or alteration of an
investigatory body which may or may not uncover evidence of police
misconduct. The City’s method for utilizing the same is not an employe term
or condition of employment. Moreover, the City’s policy of releasing the
names of police officers involved in shootings is also a proper exercise of
the City’s managerial prerogative as a method to ensure integrity in public
employment and to increase public confidence in government. Although the FOP
argues that the release of names policy triggers important safety
considerations for police officers, the record shows only that a police
officer whose name was released encountered hostility from several members of
the public during an unruly protest on his street outside his home. (N.T.
297-299). However, the Board addressed this very same consideration in City
of Philadelphia, 29 PPER ¶ 29000 (Final Order, 1997) wherein the police
officers who testified during a police advisory commission hearing also
encountered hostility from members of the public after the hearings
concluded. The City has presented a compelling argument in favor of
transparency of government when its police employes take a life in the line
of duty, which ensures integrity in public employment, increases public
confidence in government, and significantly outweighs the safety interests
advanced by the FOP. As such, it must be concluded that collective
bargaining over the policy of releasing the names would unduly infringe upon
the City’s essential managerial responsibilities.
It is well settled that the Board properly relies on precedent to
determine whether a matter constitutes a mandatory subject of bargaining
rather than reinventing the wheel by applying the Act 111 balancing test to
arrive at the same result as the established precedent. Pennsylvania State
Corrections Officers Ass’n v. Commonwealth of Pennsylvania, Dept. of
Corrections, Fayette SCI, 35 PPER 58 (Proposed Decision and Order, 2004)
citing Teamsters Local 77 & 250 v. PLRB, 786 A.2d 299 (Pa. Cmwlth. 2001).
Although the decision regarding the negotiability of a particular subject is
in part fact driven (i.e. balancing the relationship of the issue to Section
1 matters on one hand and core managerial interests on the other), once the
Board has conducted this analysis the result is precedential for future cases
on the same or similar facts. Fayette SCI, supra. Of course, where a party
introduces new or different facts that may alter the weight the matter at
issue bears on the interests of the parties, additional analysis may be
warranted. The burden is on the party requesting departure from established
precedent to demonstrate on the record facts warranting such a departure.
Id. (citing Wilkes-Barre Police Benevolent Ass’n v. City of Wilkes-Barre, 33
PPER ¶ 33087 (Final Order, 2002).
In the instant matter, the City has advanced legitimate managerial
concerns for the directives at issue. Specifically, the four directives
clearly involve the direction of personnel and are a proper exercise of
managerial authority. Likewise, the City has a compelling interest in
releasing the names of officers involved in shootings, as action to ensure
integrity in public employment and to increase public confidence in
government, as well as to maintain its standards of service. Further, the
FOP has not introduced any new or different facts, which alter the weight the
matter bears on the interests of the parties or to justify any departure from
the Board’s established precedent. Accordingly, the charge in PF-C-15-42-E
must be dismissed.6
The FOP also includes in its post-hearing brief an impact bargaining claim,
as well as a contention that “many” of the directives are vague and/or
overbroad. However, the FOP did not include any impact bargaining claim in
6

10

 With respect to the charge docketed at PF-C-15-53-E, the FOP has
alleged that the City violated the PLRA by refusing to provide protection for
a police officer after releasing his name to the public following an officer
involved shooting in retaliation for the FOP obtaining a favorable interest
arbitration award, which eliminated the City residency requirement for police
officers, and for the officer exercising the contractual right to live
outside of the City.
To establish a violation of Section 6(1)(c) under the PLRA 7, the
charging party must show that the employe was engaged in protected activity,
the employer knew of that protected activity, and there was an adverse
employment action motivated by anti-union animus. Pennsylvania State
Troopers Ass’n v. Commonwealth of Pennsylvania, PA State Police, 33 PPER ¶
33011 (Final Order, 2001). It is the motive for the adverse employment
action that creates the offense under Section 6(1)(c). PLRB v. Ficon, 254
A.2d 3 (Pa. 1969). An employer may rebut a claim of discrimination under
Section 6(1)(c) of the PLRA by proving that the adverse employment action was
based on valid nondiscriminatory reasons. Duryea Borough Police Dept. v.
PLRB, 862 A.2d 122 (Pa. Cmwlth. 2004).
In addition, the Board has recognized that, in the absence of direct
evidence, it will give weight to several factors upon which an inference of
unlawful motive may be drawn. City of Philadelphia, 26 PPER ¶ 26117
(Proposed Decision and Order, 1995). The factors which the Board considers
are: the entire background of the case, including any anti-union activities
by the employer; statements of supervisors tending to show their state of
mind; the failure of the employer to adequately explain the adverse
employment action; the effect of the adverse action on unionization
activities-for example, whether leading organizers have been eliminated; the
extent to which the adversely affected employes engaged in union activities;
and whether the action complained of was “inherently destructive” of employe
rights. City of Philadelphia, supra, citing PLRB v. Child Development
Council of Centre County, 9 PPER ¶ 9188 (Nisi Decision and Order, 1978).
Although close timing alone is insufficient to support a basis for
discrimination, Teamsters Local 764 v. Montour County, 35 PPER 12 (Final
Order, 2004), the Board has long held that the timing of an adverse action
against an employe engaged in protected activity is a legitimate factor to be
considered in determining anti-union animus. Berks Heim County Home, 13 PPER
¶ 13277 (Final Order, 1982).
In this case, there is no dispute that the FOP engaged in protected
activity when it proposed to break the residency requirement and won the
right for police officers to move outside the City pursuant to the 2009
interest arbitration award. Likewise, there is no dispute that the
individual police officer engaged in protected activity by exercising his
the original or amended charge of unfair labor practices, and as a result,
this argument must be dismissed. Further, the FOP has not specifically
identified which rules it alleges are vague and/or overbroad, nor has the FOP
explained how any specific rules fail to place the police officers on notice
of what course of conduct is to be expected. As such, this contention must
be rejected as well.
7 Section 6(1) of the PLRA provides that “it shall be an unfair labor practice
for an employer: (c) By discrimination in regard to hire or tenure of
employment, or any term or condition of employment to encourage or discourage
membership in any labor organization...” 43 P.S. § 211.6.
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 right to live outside the City consistent with the award. Nor does the City
dispute its knowledge of these events. Therefore, the issue depends on
whether the City was motivated by anti-union animus when it failed to provide
the officer with a 24/7 security detail at his residence outside of the City.
In support of its contention that the City was unlawfully motivated,
the FOP points to a prior unfair labor practice case in PF-C-15-37-E, during
which the City took the position that certain ranks of police officers were
not covered by an arbitrator’s award, which permitted the use of take-home
vehicles outside the City following the 2009 interest award. (City Exhibit
21). The FOP also contends that the City’s unlawful motive can be found by
its inclusion of a question regarding continuous City residency for the prior
12 months in connection with a March 1, 2014 promotional examination, which
the FOP has grieved. (Union Exhibit 16). However, I am unable to discern
any discriminatory intent on behalf of the City with regard to either of
these alleged factors.
First of all, as the City persuasively notes, the record shows that the
City’s use of residency as a tie-breaker in promotional examinations was
added to the City’s Home Rule Charter in 2008, which was well before the 2009
interest award was issued. (City Exhibits 21-24). Thus, it cannot possibly
be the source of any alleged retaliation. Similarly, the litigation in PF-C15-37-E is devoid of any evidence of unlawful motive on behalf of the City.
The charge under Section 6(1)(c) of the PLRA was dismissed in that case.
And, the City’s position that the arbitrator’s award did not cover all ranks
of police officers is not discriminatory in and of itself.
In any case, I have credited the specific testimony of the City’s
witnesses on this issue and accepted the City’s explanation for why it did
not provide a 24/7 security detail for an officer living outside the City as
persuasive. The City’s Police Commissioner, Richard Ross, testified credibly
that he cannot provide 24/7 protection for officers who live outside the City
due to a lack of resources and legal restrictions. (N.T. 193-194). Indeed,
Captain Francis Healy convincingly explained how the statewide municipal
police jurisdiction statute, found at 42 Pa.C.S.A. §8953, distinguishes
between police powers in an officer’s primary jurisdiction, i.e. where he or
she works, and a secondary jurisdiction, which is any other jurisdiction in
the state. (N.T. 235; City Exhibit 15). Healy credibly described how police
powers are much more limited in a secondary jurisdiction than in their
primary jurisdiction. (N.T. 236-237). Healy testified that the statute is
designed to address officers traveling through secondary jurisdictions on
official business and what they can do if they witness a crime in that
secondary jurisdiction. (N.T. 237). Healy further explained that the
statute does not give officers the authority to exercise general police
powers in secondary jurisdictions at the discretion of their primary
jurisdiction. (N.T. 237). Indeed, he persuasively noted that the City
cannot station a police officer in another jurisdiction and expect that
officer to take police action. (N.T. 237). As a result, I am unable to
conclude that the City was unlawfully motivated when it did not provide a
24/7 security detail to an officer who exercised his contractual right to
live outside the City. The City requested that the outside jurisdiction
provide a 24/7 security detail to protect its officer and still negotiated
for extra patrols on that block when the Lansdowne Police Chief declined,
which was essentially the best the City could do. Accordingly, the charge
under Section 6(1)(c) of the PLRA in PF-C-15-53-E must be dismissed.

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 Finally, the FOP has alleged in PF-C-15-53-E that the City violated
Section 6(1)(e) of the PLRA by unilaterally changing the terms and conditions
of employment for police officers by failing to fully comply with the 2009
interest arbitration award. However, the FOP does not include this argument
in its post-hearing brief and has not explained how the City allegedly
committed an unfair labor practice in this regard.
It is well settled that the Board exists to remedy violations of
statute, i.e., unfair labor practices, and not violations of contract.
Pennsylvania State Troopers Ass’n v. PLRB, 761 A.2d 645 (Pa. Cmwlth. 2000).
Where a breach of contract is alleged, interpretation of collective
bargaining agreements typically is for the arbitrator under the grievance
procedure set forth in the parties’ collective bargaining agreement. Id. at
649. However, the Board will review an agreement to determine whether the
employer has clearly repudiated its provisions because such a repudiation may
constitute both an unfair labor practice and a grievance. Id.
The FOP has not sustained its burden of proving that the City
repudiated the CBA in any way or failed to comply therewith. The record does
not show that the City is refusing to permit officers to live outside the
confines of the City. Further, the FOP has not identified any provision in
the interest award or the CBA, which addresses the City’s obligation to
provide a security detail outside of the City. As such, the charge in PF-C15-53-E under Section 6(1)(e) of the PLRA will also be dismissed.
CONCLUSIONS
The Examiner, therefore, after due consideration of the foregoing and
the record as a whole, concludes and finds as follows:
1.
The City is a public employer and political subdivision under Act
111 as read in pari materia with the PLRA.
2.
The FOP is a labor organization under Act 111 as read in pari
materia with the PLRA.
3.

The Board has jurisdiction over the parties hereto.

4.
The City has not committed unfair labor practices in violation of
Section 6(1)(a), (c), or (e) of the PLRA.
ORDER
In view of the foregoing and in order to effectuate the policies of the
PLRA and Act 111, the Examiner
HEREBY ORDERS AND DIRECTS
that the charges of unfair labor practices in PF-C-15-42-E and PF-C-15-53-E
are dismissed and the complaints are rescinded.
IT IS HEREBY FURTHER ORDERED AND DIRECTED
that in the absence of any exceptions filed with the Board pursuant to 34 Pa.
Code § 95.98(a) within twenty days of the date hereof, this decision and
order shall be final.
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 SIGNED, DATED AND MAILED at Harrisburg, Pennsylvania, this 16th day of
August, 2018.
PENNSYLVANIA LABOR RELATIONS BOARD

___________________________________
John Pozniak, Hearing Examiner

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