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Richard Poulson Labor Law Attorney Quoted Regarding Erie Pennsylvania Court Decision

December 10, 2009

An Erie County judge won't set aside part of an arbitrator's award that city officials have said could force the city to hire as many as 24 new firefighters at a cost of up to $1.73 million in its first year alone.
But the city will not have to reinstate a potentially costly retirement program for city firefighters, as the arbitrator previously ruled, Erie County Judge Shad Connelly said.

Richard Perhacs, the lawyer who represented the city during arbitration between the city and Firefighters Local 293, said he expects both sides to appeal the decision to the state Commonwealth Court.

"It's inevitable that this is going to be reviewed," Perhacs said. "I personally believe this will end up in the (state) Supreme Court."

In the opinion issued Tuesday, Connelly denied the city's claim that arbitrator Michael Zobrak overstepped his authority by addressing staffing issues in a new four-year contract awarded to Erie Bureau of Fire firefighters in January.

In the award, Zobrak mandates that the city increase the minimum number of firefighters on every rig from four to five, if it maintains the current six or fewer companies, or keep the number of firefighters per rig at four and add an additional company, beginning Jan. 1.

He also said the city must discontinue "dual companies," in favor of single companies "to ensure the safety of all bargaining unit members." Dual companies are those in which a single crew can respond with a ladder or pump truck, depending on the call.

Two of the city's six companies are dual companies.

In appealing the ruling, the city argued that issues of staffing should be handled by the administration, and that Zobrak's mandates were an unlawful attempt to control the size and operation of the Erie Bureau of Fire.

Connelly disagreed, ruling the staffing changes were related to safety and therefore under Zobrak's authority.

Philadelphia-based Richard Poulson, the lawyer for the firefighters union, and union President Dave Chiaramonte both applauded the decision.

"Those (staffing) provisions are absolutely related to the safety and health of firefighters," Poulson said. "We firmly believe those protections, which have now been endorsed by the court, will save lives, and we urge the city to implement those changes as required by the award effective January 1 of next year."

Perhacs said staffing decisions are a "fundamental right" of management, and called the union's safety claim a "smoke screen."

"This proposal was directed at restoring positions that were cut when the city was in financial difficulty, and that's all it has ever been about," he said.

Poulson also challenged the city's continued position that the staffing changes would cause the city to hire at least 20 and as many as 24 new firefighters, depending on different staffing scenarios.

If the award stands and the city chose to man six single companies with five firefighters on every rig, it would mean hiring 24 additional firefighters at a cost of up to $1.73 million in one year alone, city officials have said.

That particular scenario covers only manpower costs in 2010, the first year of the contract in which the city would be required to hire additional firefighters.

The total cost of any additional firefighters would only increase in future years, based on wage increases and the increased cost of benefits, including pension contributions.

Poulson said he believes the city could comply with the staffing mandates at current levels, though he acknowledged that doing so would mean relying on overtime, or by hiring as few as eight new firefighters.

If the administration's estimates are correct, however, the city could face the prospect of hiring as many as 24 additional firefighters by Jan. 1. There are currently 40 people on the Civil Service hiring list who have passed necessary written and physical exams, said Connie Cook, the city's human resources director.

But any new hire still would have to pass a background check, a physical exam and a psychological exam before starting work, Cook said.

"Twenty-four people, it could take months to get through all those steps," Cook said.

Erie Mayor Joe Sinnott declined to comment Wednesday, saying he had not yet met with Perhacs to discuss the opinion, and that the legal case could be ongoing.

Also at issue was a section of the award that calls for the immediate restoration of the "reverse" Deferred Option Retirement Program, or D.R.O.P., which allowed police and firefighters to "retroactively" retire by as much as three years and receive a lump-sum pension payment for those years.

Erie City Council dissolved the D.R.O.P.. in late 2006, touching off a series of legal battles.

In the opinion issued Tuesday, Connelly ruled the city did not have to reinstate the plan because the firefighters union did not present a proper cost estimate for the retirement plan.

Perhacs said he does not believe the union can now go back before an arbitrator with the proper estimate.

Poulson said he will review the opinion to decide whether to appeal that part of the opinion.
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