City of Sharon v. Rose of Sharon Lodge No. 3

Dissenting Opinion by

Judge Kramer:

I respectfully dissent. The new requirement under Ordinance 4-71 of the City of Sharon requiring all present employees of that City’s Police Department, Fire Department, and Public Works Department to take and pass physical examinations administered by the City’s physician as a “condition of continued employment” was conveniently enacted subsequent to the arbitration agreement entered into between the City of Sharon and the City of Sharon Fraternal Order of Police. The Act of June 24, 1968, P. L. 237, Act No. Ill (hereinafter Act 111), 43 P.S. §217.1 et seq., mandates that the municipal employer shall bargain collectively with its police “concerning the terms and conditions of their employment [followed by descriptive rather than restrictive language] including compensation, hours, working *284conditions, retirement, pensions, and other benefits, and shall have the right to an adjustment or settlement of their grievances or disputes in accordance with the terms of this act.”

The majority draws a fine line of distinction between the language of the arbitration agreement, viz., “conditions of work” and the language of the subject ordinance, viz., “condition of employment.” This writer must confess to an inability to draw such a distinction. For even Webster’s Seventh New Collegiate Dictionary (7th ed. 1970) defines “work” as synonymous with “employment.”

The majority also relies upon our prior holdings dealing with the Public Employe Relations Act, Act of July 23, 1970, P. L. 563, Act No. 195 (hereinafter Act 195), 43 P.S. §1101.101 et seq. (See Pennsylvania Labor Relations Board v. State College Area School District, 9 Pa. Commonwealth Ct. 229, 306 A. 2d 404 (1973)). Although Act 195 is similar to Act 111, Act 195 is more restrictive in that it specifically exempts public employers from bargaining on matters of inherent managerial policy, which legislative expression is absent from Act 111. The majority also relies upon the Third Class City Code, Act of June 23, 1931, P. L. 932, art. XX, §2001, as amended, 53 P.S. §37001. This reference is inapposite for the reason that Act 111 became law subsequent to the quoted provisions of the Third Class City Code, upon which the majority relies. If the record in this case contained proof by the municipality of the absolute necessity of annual physical examination to enable the municipality to carry out its legislatively mandated functions, or if a physical examination was required of those policemen alleged to be physically unable to perform their duties, I could see some merit to the holding of the majority. The record, however, does not establish such facts or proof. In fact, the police officers of the City of Sharon have not been *285required to take annual physical examinations in the past (which would seem to be evidence of a presumption of a lack for such need), and there is no allegation or proof that any of the police officers of the City of Sharon are presently physically unable to perform their duties. A careful review of the record in this case and the applicable law permits me to conclude that the requirements of Ordinance 4-71 are in direct conflict with the bargaining agreement entered into between the City of Sharon and police employees, and furthermore, the requirements of the Ordinance affect “the terms and conditions of their employment” covered by Act 111. Therefore, I would affirm the court below insofar as it applies to police officers presently employed by the City of Sharon. I also agree with the court below that the question of physical examinations as set forth in Ordinance 4-71 should be submitted to collective bargaining under Act 111.