decided: May 27, 1976.
DAUPHIN COUNTY TECHNICAL SCHOOL EDUCATION ASSOCIATION
DAUPHIN COUNTY AREA VOCATIONAL-TECHNICAL SCHOOL BOARD, APPELLANT. ELAINE HOPPE, INTERVENING APPELLANT
Appeal from Award of arbitrator in case of In the Matter of the Arbitration between Dauphin County Technical School Education Association and Dauphin County Area Vocational-Technical School Board.
James F. Carl and Michael Ira Levin, with them, Metzger, Wickersham, Knauss & Erb, for appellant.
Charles J. DeHart, III, with him Caldwell, Clouser & Kearns, for intervening appellant.
Clarence C. Morrison, for appellee.
William Fearen, with him Cleckner & Fearen, for Pa. School Boards Association.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Blatt.
[ 24 Pa. Commw. Page 640]
The Dauphin County Area Vocational-Technical School Board*fn1 (Board) entered into a collective bargaining agreement (agreement) effective July 1, 1974 with the Dauphin County Technical School Education Association (Association) pursuant to the Public Employe Relations Act*fn2 (PERA). A grievance was filed by the Association charging that a professional employe of the Board, Elaine Hoppe, failed to pay Association dues for the school year 1974-1975 in violation of a maintenance of membership provision in the agreement and demanding termination of Hoppe's employment. The grievance was submitted to arbitration, the arbitrator's award was in favor of the Association and the Board has now appealed*fn3 to this Court pursuant to Pa. R.J.A. No. 2101.
[ 24 Pa. Commw. Page 641]
Article XVII, Section C of the agreement contains the following maintenance of membership provision:
"The Board agrees that all employees who are presently members of the Association shall be subject to the 'maintenance of membership' provision as defined in Article III, Subsection (18) of the Public Employee Relation Act, act 195 [sic]."
Section 301(18) of PERA, 43 P.S. § 1101.301(18), provides as follows:
"'Maintenance of membership' means that all employes who have joined an employe organization or who join the employe organization in the future must remain members for the duration of a collective bargaining agreement so providing with the provisio that any such employe or employes may resign from such employe organization during a period of fifteen days prior to the expiration of any such agreement."
The arbitrator found that "Ms. Hoppe did not pay Association dues for the school year 1974-75" and that she "attempted to pay dues for the local Association, but not P.S.E.A. or N.E.A. on March 25, 1975."*fn4 The arbitrator then determined that the maintenance of membership provision was a condition of Hoppe's continued employment, which she had violated, and he ordered the Board to terminate her employment.
The Board argued that to dismiss Hoppe on this basis would violate Section 1122 of the Public School Code of
[ 24 Pa. Commw. Page 6421949]
*fn5 (Code), 24 P.S. § 11-1122 which provides, inter alia, as follows:
"The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality, incompetency, intemperance, cruelty, persistent negligence, mental derangement, advocation of or participating in un-American or subversive doctrines, persistent and wilful violation of the school laws of this Commonwealth on the part of the professional employe. . . ." (Emphasis added.)
The arbitrator, in ordering Hoppe's termination, decided that Section 1122 of the Code did not apply. We believe that this constituted an error of law and we must, therefore, reverse.*fn6
The arbitrator erred by resolving the conflict between the maintenance of membership provision of the agreement and Section 1122 of the Code without considering Section 703 of PERA, 43 P.S. § 1101.703 which provides as follows:
" The parties to the collective bargaining process shall not effect or implement a provision in a collective
[ 24 Pa. Commw. Page 643]
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 added.)
It is clear that the maintenance of membership provision of the agreement is inconsistent with Section 1122 of the Code insofar as the remedy for non-compliance with the said provision is the termination of the services of the professional employe involved.*fn7 The provision conflicts with the statute and, therefore, cannot be effectuated or implemented in the agreement. The Association argues, of course, that Section 701 of PERA,*fn8 43 P.S. § 1101.701 and Section 705 of PERA,*fn9 43 P.S. § 1101.705
[ 24 Pa. Commw. Page 644]
allow collective bargaining and agreement on a maintenance of membership provision and we agree that such a provision may be the proper subject of a collective bargaining agreement between a public employer and an employe organization.*fn10 This is not the case, however, where such provision is violative of an existing statute. Our Supreme Court, in Pennsylvania Labor Relations Board v. State College Area School District, Pa. , 337 A.2d 262, 269-270 (1975), analyzing the relationship between Sections 701 and 703 of PERA,*fn11 held as follows:
"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 removal from collective bargaining results not because it necessarily falls within the purview of section 702 (in fact it may clearly be within the scope of section 701), but rather because to do otherwise would be in direct violation of
[ 24 Pa. Commw. Page 645]
a statutory mandate and thus, excluded under section 703. (Citations omitted.)
"We therefore conclude that items bargainable under section 701 are only excluded under section 703 where other applicable statutory provisions explicitly and definitively prohibit the public employer from making an agreement as to that specific term or condition of employment." (Emphasis added.)
"The termination of a professional school employee's contract is controlled by the Public School Code of 1949," Brownsville Area School District v. Alberts, 436 Pa. 429, 432, 260 A.2d 765, 767 (1970), and, therefore, the responsibility for discharging such employe has been mandated to the Board alone. The Board may terminate a teacher's contract of employment only on certain specified grounds. Cerra v. East Stroudsburg Area School District, 450 Pa. 207, 299 A.2d 277 (1973).
In Allegheny County Firefighters, Local 1038, International Association of Firefighters v. Allegheny County, 7 Pa. Commonwealth Ct. 81, 299 A.2d 60 (1973), this Court held that a provision of an arbitration award, rendered pursuant to Act 111,*fn12 which required firemen to maintain membership with their union as a condition of continued employment, was in direct conflict with, and contrary to, the statutory law which afforded civil service protection to such employes and prohibited their discharge except in accordance with the enumerated statutory provisions for discharge, and, therefore, was unenforceable.
"'The essence of our decision is that an arbitration award may only require a public employer to do that which it could do voluntarily.'
"To comply with this provision of the disputed award, the County would be required to discharge a fireman
[ 24 Pa. Commw. Page 646]
contrary to the statutory law governing discharge of firemen. By arbitration procedure under the Act, a local government cannot agree or be required to perform an illegal act." Allegheny County Firefighters, supra, 7 Pa. Commonwealth Ct. at 85-87, 299 A.2d at 61-62.
The analogy to the instant case is obvious and the reasoning and rationale are persuasive here.
In addition, Article XVIII of the agreement provides, inter alia, as follows:
"F. Statutory Savings Clause
Nothing contained herein shall be construed to deny or restrict to any employee such rights as he may have under the Public School Code of 1949, as amended, or the Public Employee Relations Act 195 or other applicable laws and regulations. The rights granted to employees hereunder shall prevail or be in lieu of those provided elsewhere." (Emphasis added.)
The parties themselves have, therefore, recognized that certain rights of the employe are guaranteed by the Code and cannot be reduced or eliminated by the agreement.
The appellee asserts that the Pennsylvania Supreme Court decision in Board of Education of the School District of Philadelphia v. Philadelphia Federation of Teachers Local No. 3, AFT, AFL-CIO, Pa. , 346 A.2d 35 (1975) controls this case. The question there was "whether a school district may agree in a collective bargaining agreement to submit to arbitration the propriety of discharging a non-tenured teacher." Board of Education of the School District of Philadelphia, supra, Pa. at , 346 A.2d at 36. There the court held that it was proper to so agree and that there would not be a violation of any legal restriction upon the power of the board. Our decision here is entirely consistent with the above-mentioned case except that we find here that the provision in this agreement does violate a statutory mandate
[ 24 Pa. Commw. Page 647]
and infringes upon the power exclusively conferred upon the Board.
We, therefore, issue the following
And, Now, this 27th day of May, 1976, the award of the arbitrator dated October 14, 1975 is hereby reversed and set aside.