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WEST SHORE SCHOOL DISTRICT v. ROBERTA BOWMAN (12/19/79)

decided: December 19, 1979.

WEST SHORE SCHOOL DISTRICT, PETITIONER
v.
ROBERTA BOWMAN, RESPONDENT. (2 CASES)



Appeal from the Order of the Secretary of Education in case of Roberta Brown v. Board of School Directors of the West Shore School District, Teacher Tenure Appeal No. 1-78.

COUNSEL

Thomas A. Beckley, with him James P. Cullen, and Buckley & Madden, for petitioner.

Catherine C. O'Toole, for respondent.

Judges Mencer, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 48 Pa. Commw. Page 106]

Petitioner West Shore School District (School District or District) brings the instant appeal from an order of the Secretary of Education (Secretary) which sustained the appeal of Respondent Roberta Bowman (Bowman) and ordered the School District to reinstate Bowman to her teaching position, without loss of pay, from the date her physician certifies she was physically able to resume her teaching duties. The School District raises three issues for our consideration: whether Bowman's exclusive remedy was under a collective bargaining agreement rather than pursuant to the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 1-101 et seq., whether Bowman was entitled to a hearing pursuant to the Code, and whether the Secretary lacked jurisdiction to hear Bowman's appeal because it was untimely. For the reasons which follow, we affirm, but modify, the Secretary's order.

The facts of this case are not in dispute. Bowman had been employed as a teacher by the School District since 1964. She was a professional employee as that term is defined in Section 1101(1) of the Code, 24 P.S. § 11-1101(1). In June, 1975, on the advice of her physician, she requested that the School District grant her a sabbatical leave for medical reasons for the fall term of the 1975-1976 school year. The District granted the sabbatical and later extended it to include the spring term. Because of continuing medical problems, Bowman was unable to return to her position with the District at the beginning of the 1976-1977 school year. She then used all of her sick leave which was exhausted on November 4, 1976.

On November 3, 1976, Bowman requested a one year leave without pay for medical reasons. The District approved this request pursuant to Section 3.05 of the collective bargaining agreement to which

[ 48 Pa. Commw. Page 107]

Bowman and the District were subject. In August, 1977, Bowman informed the District that she would be unable to return to the classroom at the beginning of the 1977-1978 school year, but that she planned to return on November 4, 1977, the expiration date of her unpaid leave. Bowman failed to report for work on November 4, 1977 and, on the same date, the Superintendent of the School District wrote to Bowman informing her that she was "no longer being retained as an employe of the West Shore School District." On November 17, 1977, the School Board confirmed the Superintendent's action.

By letter dated November 23, 1977, Bowman, through her attorney, requested a dismissal hearing by the Board. The District did not respond to Bowman's request. On December 28, 1977, she filed a teacher tenure appeal with the Secretary pursuant to Section 1131 of the Code, 24 P.S. § 11-1131. Following a hearing and oral argument, the Secretary entered the order from which this appeal is taken.*fn1

We must first determine whether Bowman is properly before us or whether her exclusive remedy lay in arbitration. Section 903 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.903, requires that all disputes or grievances arising out of the interpretation of a collective bargaining agreement be submitted to arbitration. Shippensburg Area Education Association v. Shippensburg Area School District, 42 Pa. Commonwealth Ct. 128, 132,

[ 48 Pa. Commw. Page 108400]

A.2d 1331, 1332 (1979); Stroudsburg Area Board of Education v. Pennsylvania Labor Relations Board, 39 Pa. Commonwealth Ct. 200, 202, 395 A.2d 622, 623 (1978). Here, there is no doubt that Bowman and the School District were parties to a collective bargaining agreement. The question before us, then, is whether the dispute between these two parties arguably involves an interpretation or violation of that agreement. Oxford Board of School Directors v. Pennsylvania Labor Relations Board, 31 Pa. Commonwealth Ct. 441, 445, 376 A.2d 1012, 1013 (1977). If it does, Bowman has chosen the wrong forum in which to pursue her claim. If it does not, she is properly before us. Stroudsburg Area Board of Education v. Pennsylvania Labor Relations Board, 39 Pa. Commonwealth Ct. at 203, 395 A.2d at 623-24.

The School District's argument that Bowman was required to submit her grievance to arbitration is three-pronged: her employment with the School District was terminated following a one year leave of absence without pay; the leave was granted to her pursuant to a provision of the collective bargaining agreement; therefore, "Any complaint which she may have regarding the terms of that leave or the consequences of its expiration arguably involves the 'meaning, interpretation, or application' of a provision of the Collective Bargaining Agreement." District's Consolidated Brief at 18. The fatal flaw in the District's analysis is in relating the leave of absence to the termination of her employment. According to the Superintendent's November 4 letter to Bowman, she was "no longer being retained" not ...


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