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decided: October 3, 1975.



Vincent J. Salandria, Philadelphia, for appellant.

Leonard M. Sagot, Randall J. Sommovilla, Thomas W. Jennings, Philadelphia, for appellee, Philadelphia Federation of Teachers, Local No. 3, AFT, AFL-CIO; Teitelman, Sagot, Herring, Jennings & Luber, Philadelphia, of counsel.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., dissents. Pomeroy, J., filed a dissenting opinion. Jones, C. J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 464 Pa. Page 93]


This appeal presents the important question of whether a school district may agree in a collective bargaining agreement to submit to arbitration the propriety of discharging a non-tenured teacher. The court of common pleas held that it may do so. We agree, and therefore affirm.

[ 464 Pa. Page 94]

The collective bargaining agreement between the Philadelphia Board of Education and the Philadelphia Federation of Teachers provides that "[a] teacher or other employee who does not have tenure shall not be subjected to discipline or discharge except for just cause." It also establishes a comprehensive grievance procedure, terminating in arbitration.*fn1 On July 8, 1974,

[ 464 Pa. Page 95]

    the board notified Edgar Vahey, a non-tenured teacher, that he was suspended from his position pending dismissal. The union asserted that this was improper under the agreement and, pursuant to the grievance procedure, demanded arbitration and initiated the procedure for the selection of arbitrators. The board then filed a complaint in equity seeking to enjoin the arbitration on the ground that the agreement to submit employee discharges to arbitration was an unlawful delegation of the exclusive power of the board. The union filed preliminary objections in the nature of a demurrer, and these were sustained. This appeal followed.*fn2

[ 464 Pa. Page 96]

The board maintains that the provisions of the collective bargaining agreement here involved illegally delegate to an arbitrator the powers conferred exclusively on the board by sections 510 and 514 of the Public School Code of 1949.*fn3 Consequently, it is argued, those provisions are invalid under section 703 of the Public Employee Relations Act*fn4 (PERA) insofar as they provide

[ 464 Pa. Page 97]

    for arbitration of grievances concerning discharge of non-tenured teachers.*fn5

We cannot agree.

This Court has recently discussed the meaning of section 703 in Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 508-510, 337 A.2d 262, 269 (1975) (filed April 17, 1975). There Mr. Justice Nix wrote for the Court:

"The mere fact that a particular subject matter may be covered by legislation does not remove it from collective bargaining under section 701 if it bears on the question of wages, hours and conditions of employment. We believe that section 703 only prevents the agreement to and implementation of any term which would be in violation of or inconsistent with any statutory directive. The distinction between this view and that expressed by the majority of the Commonwealth Court (as we understand it) is best illustrated by an example. Under section 1142 of the Public School Code, a minimum salary scale is set forth. Section 1151 provides that school boards may pay salaries in

[ 464 Pa. Page 98]

    excess of the minimum salary. Framing the issue in accordance with the formulation suggested by the majority in the Commonwealth Court, section 1142 created a duty not to pay below the minimum scale and section 1151 granted the employer the prerogative to pay more than the minimum rate. Clearly, the parties are precluded from agreeing to a rate lower than the minimum scale but even though the statute vested in the public employer the prerogative to pay a higher rate to do so as a result of collective bargaining is not 'in violation of, or inconsistent with, or in conflict with' the statute in question. The mere fact that the General Assembly granted the prerogative to the employer does not exclude the possibility that the decision to exercise that prerogative was influenced by the collective bargaining process.

". . . . Section 703 merely prevents a term of a collective bargaining agreement from being in violation of existing law. Cf. Board of Education, City of Englewood v. Englewood Teachers Ass'n, 64 N.J. 1, 311 A.2d 729 (1973); Board of Education of Union Free School District # 3 v. Associated Teachers of Huntington, Inc., 30 N.Y.2d 122, 331 N.Y.S.2d 17, 282 N.E.2d 109 (1972); Joint School District # 8 v. Wisconsin Employment Relations Board, 37 Wis.2d 483, 155 N.W.2d 78 (1967). If however the General Assembly mandates a particular responsibility to be discharged by the board and the board alone, then the matter is removed from bargaining under section 701 even if it has direct impact upon 'wages, hours and other terms or conditions of employment.'"

The issue then is whether the challenged provisions of the collective bargaining agreement delegate to the arbitrator a responsibility which the General Assembly has commanded shall be "discharged by the board and the board alone."*fn6 In deciding this question, other provisions

[ 464 Pa. Page 99]

    of the PERA are of particular significance because the PERA itself altered the board's previously exclusive control of most subjects within its competence and "[repudiated] . . . the traditional concept of the sanctity of managerial prerogatives in the public sector." Id. at 504, 337 A.2d at 267.

The General Assembly, far from forbidding arbitration of disputes arising out of a collective bargaining agreement, expressly commands it in section 903 of the PERA, which provides, in pertinent part:

"Arbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement is mandatory. . . . [T]he final step [of the grievance procedure] shall provide for a binding decision by an arbitrator . . . ."*fn7

This policy is even stronger than that embodied in federal labor policy. See United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Federal policy merely favors the submission of disputes to arbitration, while the PERA requires it.

[ 464 Pa. Page 100]

It is not difficult to perceive the reasons for the statutory requirement that grievances be submitted to arbitration. If a dispute arises as to the interpretation or application of the agreement there must be a mechanism for resolving the dispute or the agreement is meaningless. Historically, the primary means of resolving such disputes was the strike, and many agreements in the private sector retain this mechanism for at least some types of dispute.*fn8 However, resolution of all disputes by resort to economic force is costly to the parties, and more importantly, to the public. The General Assembly therefore chose to make the widely used procedure of labor arbitration mandatory under the PERA. This brings the special expertise of labor arbitrators to bear on the often difficult problems of administering the collective bargaining agreement while assuring parties that their agreement will be effective and guaranteeing both the parties and the public that such disputes will not disrupt peaceful labor relations or interrupt public services.*fn9

[ 464 Pa. Page 101]

The board, however, maintains that the subject matter of this dispute requires that it be excluded from the general mandate to arbitrate. It bases this contention on sections 510 and 514 of the Public School Code of 1949.*fn10 We conclude that these provisions do not preclude the submission to arbitration of this type of dispute.

Section 510 empowers the board to "adopt and enforce" regulations "regarding the management of its school affairs and the conduct and deportment of all . . . teachers . . . during the time they are

[ 464 Pa. Page 102]

    engaged in their duties . . . ." Clearly the requirement of "just cause" for discipline does not infringe upon this prerogative of the board, for violation of a valid regulation adopted by the board would surely be "just cause" for discipline.*fn11 Thus, the power of the board to adopt and enforce regulations is not impaired by the requirement of "just cause" for discipline of a teacher.

The other statutory provision relied upon by the board, section 514, empowers the board (subject to certain procedural requirements) "to remove any of its . . . employees . . . for incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper conduct."*fn12 This

[ 464 Pa. Page 103]

    provision is the very antithesis of one entrusting the board with broad discretion to formulate and implement educational policy. The board is empowered to act only for reasons specified in the statute and its action is subject to judicial review. Hutnik v. Duquesne School District, 8 Pa. Commw. 387, 302 A.2d 873 (1973); see Local Agency Law, Act of December 2, 1968, P.L. 1133, §§ 7, 8, 53 P.S. §§ 11307, 11308 (Supp.1974).

Moreover, the collective bargaining agreement is susceptible of at least two constructions which fully protect the authority of the board.*fn13 These stem from consideration of the procedure formerly in effect.

When a school board heretofore sought to dismiss a non-tenured teacher, the teacher was notified of the charges and afforded a hearing before the board, which

[ 464 Pa. Page 104]

    then acted upon the proposed dismissal. As this Court stated in Brentwood Borough School District Appeal, 439 Pa. 256, 262-63, 267 A.2d 848, 851 (1970);

"At the hearing the board plays a dual role. It acts as both prosecutor and as judge, and because of this it can never be totally unbiased."

The defects of this procedure from the standpoint of the teacher have long been evident. While there is an opportunity for judicial review of the discharge, it is limited to determining whether

"the same is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of this act have been violated in the proceeding before the agency, or that any finding of fact made by the local agency and necessary to support its adjudication is not supported by substantial evidence."

Local Agency Law, supra, § 8, 53 P.S. § 11308. This type of review is, of course, no substitute for an impartial fact-finder in the first instance.

One possible construction of the collective bargaining agreement is that the "just cause" standard for discharge is identical with the statutory enumeration of reasons justifying such action. On this construction, all that the parties would have done is substitute a hearing before an impartial arbitrator for the hearing before the board and subsequent judicial review under the Local Agency Law.*fn14 From the standpoint of the parties, this would have the advantage of providing an inexpensive and expeditious procedure in addition to an impartial fact-finder.

An alternative construction is suggested by the brief for the union. It suggests that the term "just cause," as used in the agreement, contemplates the possibility of discharges for a wider variety of reasons than those enumerated

[ 464 Pa. Page 105]

    in the statute.*fn15 Thus, an employee who elects*fn16 to pursue the grievance procedure rather than proceeding to a hearing before the board would accept a less restrictive substantive standard in return for the greater procedural advantages afforded by the arbitration proceeding.

We see no reason why either of the constructions here suggested would involve violation of any legal restriction upon the power of the board, and the board offers none.*fn17

[ 464 Pa. Page 106]

Consequently, we conclude that section 703 does not prohibit implementation of the provisions of the agreement challenged here.

This conclusion is bolstered by the fact that it is in agreement with the weight of authority in other jurisdictions. Danville Board of School Directors v. Fifield, 132 Vt. 271, 315 A.2d 473 (1974) (agreement not to discharge teacher except for "just and sufficient cause" and to arbitrate disputes as to the propriety of discharge specifically enforced); Board of Education v. Associated Teachers, 30 N.Y.2d 122, 131-132, 331 N.Y.S.2d 17, 24-25, 282 N.E.2d 109, 114-115 (1972) (Fuld, C. J., for a unanimous court)*fn18 (agreement not to discipline tenured teachers without "just cause" and to arbitrate disputes as to the propriety of discharge declared valid); Local 1226, City Employees v. City of Rhinelander, 35 Wis.2d 209,

[ 464 Pa. Page 107151]

N.W.2d 30 (1967) (agreement to arbitrate dispute over discharge of city employee specifically enforced). Indeed, the sole authority for the board's contention here is what can only be described as dictum in West Hartford Education Association v. DeCourcy, 162 Conn. 566, 295 A.2d 526 (1972).

In De Courcy, the court was considering the scope of a school board's duty to bargain under the Connecticut Teacher Negotiations Act. In considering the propriety of arbitration, it was primarily concerned to distinguish between allowing the arbitrator to prescribe the terms of the agreement (which it found to be impermissible) and the arbitration of grievances regarding the interpretation of the agreement (which it held to be broadly permissible and a mandatory subject of negotiation between the parties). In the course of illustrating the proposition that the board could not delegate to an arbitrator discretion reposed in the board alone, it quoted from its decision in Norwalk Teachers' Association v. Board of Education, 138 Conn. 269, 280, 83 A.2d 482, 487 (1951): "For example, it could not commit to an arbitrator the decision of a proceeding to discharge a teacher for cause." It is noteworthy that Norwalk Teachers' Association was decided prior to the enactment of any statute authorizing collective bargaining by Connecticut teachers and the De Courcy court failed to consider whether the enactment of such a statute affected the continuing validity of the quoted statement. Even if this dictum does establish the proposition as the law of Connecticut, it appears to us to rest on a conception of collective bargaining which is narrower than that embodied in the Public Employee Relations Act. It is therefore not persuasive on the issue before us.

Motion to quash denied. Decree affirmed. Each party pay own costs.

[ 464 Pa. Page 108]

POMEROY, Justice (dissenting).

The Court's decision today permits school boards in Pennsylvania to abdicate one of their most essential prerogatives and duties, namely the discharge for cause of a teacher. The result disserves the cause of quality public school education in the Commonwealth. Because I am convinced that the Court's holding is without statutory foundation, I must respectfully dissent.

Purportedly acting pursuant to the authority granted by § 514 of the Public School Code,*fn1 the appellant Board of Education (the Board) on July 8, 1974, suspended from his position at the Crispin School one Edgar Vahey, a non-tenured teacher, "pending the Board's action for [his] dismissal." The suspension was without pay and effective June 30, 1974. Vahey was advised that he was entitled to request a hearing before a committee of the Board.*fn2 On September 9, 1974, the Philadelphia Federation of Teachers, appellee herein, by its attorney, presented to the American Arbitration Association a demand for arbitration, asserting that the Board's suspension of Vahey had been improper. This action to enjoin arbitration was then initiated by the Board. Holding that no cause of action was stated, the court of common pleas sustained the preliminary objections filed by the

[ 464 Pa. Page 109]

Federation and directed arbitration to proceed. The Board brought this appeal.

The record before us is necessarily scanty; it does not indicate the reason for the suspension (and projected ultimate dismissal) of Vahey by the Board, nor the reasons why the union considered that action to be improper. Presumably those factual matters will be explored in whatever hearing hereafter ensues. The question for decision instantly is whether such hearing will be conducted by the Board, as it contends should be the case, or, as the Federation urges, by arbitrators chosen pursuant to the collective bargaining agreement between the parties entered into on March 1, 1973.

Under the agreement a "grievance" is subject to binding arbitration. A grievance is defined to include a complaint that there has been "improper application of any provision" of the agreement. [Art. B-VIII, sec. 1(a)]. Article T-III, section 9(f) of the agreement provides:

"A teacher or other employee who does not have tenure shall not be subjected to discipline or discharge without just cause."

Since the union has asserted a grievance in charging that the "just cause" provision has been improperly applied, it argues that determination of the existence of "just cause" in Mr. Vahey's case is a subject of arbitration. It reinforces its argument by pointing to the provision of the Public Employe Relations Act*fn3 (Act 195) (the statute under which the collective bargaining agreement was negotiated), that

"arbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement is mandatory." Act 195, § 903.

As the approach of the Court reveals, the key to the resolution of the narrow issue before us is § 703 of Act

[ 464 Pa. Page 110195]

, supra, but I emphatically disagree that the section sanctions the result to which the court has come. Section 703 provides:

"The parties to the collective bargaining process shall not effect or implement a provision in a collective bargaining agreement if the implementation of that provision would be in violation of, or inconsistent with, or in conflict with any statute or statutes enacted by the General Assembly of the Commonwealth of Pennsylvania or the provisions of municipal home rule charters." (Emphasis supplied).

The Court's present misconstruction of the prohibition contained in this section finds its antecedent in Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 509, 337 A.2d 262, 269 (1975). A majority of the Court*fn4 there construed § 703 as providing that an item is improperly included in a collective bargaining agreement only if it is in violation of existing law. The Court's opinion in that case stated:

"Section 703 merely prevents a term of a collective bargaining agreement from being in violation of existing law."

"We therefore conclude that items . . . are only excluded under section 703 where other applicable statutory provisions explicitly and definitively prohibit the employer from making an agreement as to that specific term or condition of employment." 461 Pa. at 510, 337 A.2d at 269, 270.

I expressed the view in State College that such a construction ignores the plain and unambiguous language of § 703. I adhere to that opinion. The phrases "inconsistent with" and "in conflict with" in that section of Act 195 are obviously not synonymous with "in violation of" and there is no basis for assuming that the legislature's

[ 464 Pa. Page 111]

    explicit use of such terms amounted to mere surplusage. State College, supra at 513, 337 A.2d at 271, n. 1 (concurring opinion). Thus, although Article T-III, section 9(f) of the collective bargaining agreement may not be "in violation of" the School Code, that is not an end of the matter; the question remains whether that provision of the agreement and the consequence of binding arbitration which it entails is inconsistent with or in conflict with the statutory scheme contained in the Public School Code*fn5 (The Code). An analysis of the Code satisfies me that inconsistency and conflict are indeed present.

Article XI of the Code constitutes a comprehensive scheme designed to regulate the relationship between a school district and its teachers. Teachers are divided into three classifications, defined in § 1101. These are (1) professional employes, (2) temporary professional employes and (3) substitutes.*fn6

The temporary professional employee (whose rights and status are specifically delineated in § 1108 of the Code) is distinguishable from the professional employee by a sole but significant factor, i. e., the lack of tenure

[ 464 Pa. Page 112]

    status. See Travis v. Teter, 370 Pa. 326, 330, 87 A.2d 177, 179 (1952); Johnson v. United School District Joint School Board, 201 Pa. Super, 375, 191 A.2d 897 (1963) (allocatur denied).*fn7 Among the benefits which accompany the acquisition of tenure are the procedural safeguards which attend any tenured teacher whom the board seeks to dismiss (see § 1129-32). There are no corresponding provisions which pertain to the dismissal of non-tenured teachers, see Nicolella v. Trinity Area School District School Board, 444 Pa. 544, 281 A.2d 832 (1971); but since 1971 school board action in such a case is considered an adjudication under the Local Agency Law, Act of December 2, 1968, P.L. 1133, 53 P.S. § 11301 et seq., and the teacher is entitled to full procedural due process thereunder. See Smethport Area School District v. Bowers, 219 Pa. Super. 269, 280 A.2d 632 (1971). See also Smethport Area School District v. Bowers, 440 Pa. 310, 269 A.2d 712 (1970).

The power of the school board to dismiss a temporary professional employee is granted explicitly in § 1108 and implicitly in § 1122 of the Code (and not in § 514, as the parties to this appeal have assumed)*fn8 Nicolella v. Trinity Area School District School Board, 444 Pa. 544, 550,

[ 464 Pa. Page 113281]

A.2d 832, 835 (1971); Johnson v. United School District Joint School Board, 201 Pa. Super. 375, 191 A.2d 897 (1963) (allocatur denied).*fn9 The grounds for dismissal are not only incompetency (the only ground specifically mentioned in § 1108) but also the several other grounds enumerated in § 1122 for termination of a contract with a tenured teacher. Johnson v. United School District Joint School Board, supra. The grounds are immorality, intemperance, cruelty, persistent negligence, mental derangement, and persistent and wilful violation of the school laws of this Commonwealth (section 1122).

This being, in brief compass, the statutory scheme, procedural and substantive, pertaining to the discharge of non-tenured teachers, it is clear to me that the collective bargaining agreement provision here in issue is in conflict with it. As we said in Commonwealth ex rel. Hetrick v. Sunbury School District, 335 Pa. 6, 11, 6 A.2d 279, 281 (1939):

"The fundamental policy of our public school system is to obtain the best educational facilities for the children of this Commonwealth. . . . The duty of devising methods by which this important obligation can be discharged devolves upon the school boards."

To this end, the legislature has entrusted school boards with the power and the duty to employ competent, effective teachers, ibid, and, a fortiori, the correlative power and duty to discharge those it does not deem to be fit.

[ 464 Pa. Page 114]

Concededly, this power cannot be wielded capriciously, and the clear purpose of § 1122 of the Code was to insure that competent and dedicated teachers would not be the targets of arbitrary board action. Streibart v. Board of Directors of the School District of the City of York, 339 Pa. 119, 14 A.2d 303 (1940).*fn10 But to say that a board may not act arbitrarily does not, of course, relieve it of its fundamental power and duty to maintain the best and most efficient school system possible. See Appeal of Houtz, 361 Pa. 537, 65 A.2d 420 (1949). In this light, the inclusion of article T-III, section 9(f) in the collective bargaining agreement before us amounted to a delegation of a paramount board responsibility which, if not in violation of the School Code, is at least wholly inconsistent with the statutory scheme which the Code embodies.

The Court recognizes that the General Assembly intended that a school board should have broad discretionary powers in the area of teacher employment, but concludes that this collective bargaining agreement can be construed in such a manner as to "fully protect the authority of the board." (Opinion of the Court, ante at 47

[ 464 Pa. Page 115]

[typed copy]). With respect, I think this is an impossibility. As an illustration, consider the following provision of § 508 of the School Code:

"The affirmative vote of a majority of all the members of the board of school directors . . . duly recorded, showing how each member voted, shall be required in order to take action on the following subjects:

Dismissing a teacher after a hearing.*fn11

The emasculation of the appellant Board's ultimate authority to discharge a non-tenured teacher which will result from the submission of the issue to arbitration is obvious. If the arbitrators should determine that the basis for the Board's decision to dismiss constitutes "just cause", the taking of the § 508 roll call by the Board will amount merely to the performance of a perfunctory ministerial duty -- a meaningless echoing of a decision made for the Board by the arbitrators. Surely this sort of charade would not comport with the reasoned decision-making by each individual Board member which the legislature intended by § 508. Conversely, if after a hearing the Board, by affirmative majority vote of its members duly recorded in accordance with § 508, were to dismiss a temporary professional employee for one of the § 1122 causes, the union could, under the contract, even at that late point (a point which had not been reached in the case at bar) assert as a grievance that there was no "just cause" for the dismissal. The action of the Board would then have been an exercise in futility, for the entire

[ 464 Pa. Page 116]

    case would then be referred to arbitrators; the arbitrators would sit, in effect, as a super school board in a matter of teacher discipline and dismissal, but not subject to the provisions of the School Code governing the actions of school boards, and not subject to appeal.*fn12

To recapitulate, the presence of clause T-III, section 9(f), or a clause like it, in a collective bargaining agreement means that every decision of a school board to dismiss a non-tenured teacher because of incompetency, immorality, intemperance, cruelty, etc. (see § 1122 of the Code, supra) will become, if the teacher so elects, subject to binding arbitration. I cannot accept that this abdication of responsibility was intended by the legislature or is consonant with the policy and provisions of the Public Employe Relations Act as it applies to the public schools.

I would reverse the order of the court of common pleas and allow the appellant Board to proceed with its hearing and determination as to the propriety of Mr. Vahey's dismissal.

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