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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 ...

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