decided: March 2, 1981.
GREATER JOHNSTOWN AREA VOCATIONAL-TECHNICAL SCHOOL, APPELLANT
GREATER JOHNSTOWN AREA VOCATIONAL-TECHNICAL EDUCATION ASSOCIATION, APPELLEE. RE: GARY GALLO AND SANDRA PAGANO
Appeal from the Order of the Court of Common Pleas of Cambria County, in case of Greater Johnstown Area Vocational-Technical School v. Greater Johnstown Area Vocational-Technical Education Association, No. 1979-6402.
Marlin B. Stephens, for appellant.
William K. Eckel, for appellee.
Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Mencer.
[ 57 Pa. Commw. Page 196]
The Greater Johnstown Area Vocational-Technical School (School) has appealed from an order of the Court of Common Pleas of Cambria County, which affirmed an arbitrator's decision sustaining a grievance filed by Gary Gallo*fn1 and Sandra Pagano (teachers). We reverse.
The teachers, professional employees of the School, had executed separate, 1-year supplemental contracts with the School, due to expire on June 30, 1979, in which the teachers agreed to act as Student Congress Advisors. The Congress is an extracurricular organization of students established to accomplish civic projects and other activities designed for school improvement.
At its regular meeting on June 26, 1979, the Joint Operating Committee of the School decided not to renew the contracts of the teachers as Student Congress Advisors. The teachers, alleging that the action of non-renewal was a punishment or reprimand without just cause, filed a grievance under the collective bargaining agreement. The arbitrator sustained the grievance and ordered reinstatement with back pay. The lower court affirmed, and this appeal followed.
The pertinent provisions of the collective bargaining agreement are as follows:
ARTICLE I -- RECOGNITION
The Joint Operating Committee does hereby recognize the Association as the exclusive and sole representative for collective bargaining for
[ 57 Pa. Commw. Page 197]
all Professional employees included in the bargaining unit. . . . The use of the terms, 'employee' or 'employes', in this Agreement, shall refer only to Professional employes within the bargaining unit. . . .
ARTICLE IV -- GRIEVANCE PROCEDURE DEFINITIONS
A. A 'Grievance' is any alleged violation of this agreement or any dispute with respect to its meaning, interpretation or application.
B. An 'Aggrieved Party' is the Professional Employe or group of Professional Employes who submit a grievance or on whose behalf it is submitted and (when it submits a grievance) the Joint Operating Committee.
ARTICLE XVII -- JUST CAUSE
No Professional employee shall be discharged, disciplined, reprimanded, reduced in rank or compensation or deprived of any professional advantage without just cause.
The crucial issue for determination is whether the teachers, in their capacities as Student Congress Advisors, are covered by the collective bargaining agreement, such that the non-renewal of their supplemental contracts raises an arbitrable issue subject to the grievance procedures established in the collective bargaining agreement. Although there is some authority to the contrary,*fn2 we believe that the supplemental contracts are beyond the purview of the collective bargaining agreement and that, therefore, the arbitrator
[ 57 Pa. Commw. Page 198]
erred as a matter of law by determining that the issue was arbitrable.
We find persuasive the factually similar case of Leone v. Kimmel, 335 A.2d 290 (Del. Super. 1975). In Leone, a teacher entered into a 1-year supplemental contract as an assistant football coach. After the school board voted not to renew his contract, he filed a grievance under the "Professional Negotiation Agreement." The pertinent provisions of this agreement are virtually identical to those here in issue. Based upon these facts, the court concluded that the "failure to grant a new contract for coaching to the plaintiff is not . . . a matter within the coverage of the Professional Negotiation Agreement." Id. at 293.
The Leone court's reasoning is instructive. The court noted that almost all of the duties pertinent to coaching were performed outside of normal school hours. Here, too, the teachers' functions as Student Congress Advisors were performed after regular school hours as defined in the collective bargaining agreement.*fn3
The Leone court further concluded that a football coach, acting as such, is not a "teacher" under Delaware law. "It is clear that the additional duties undertaken by athletic coaches are not an integral part of classroom instruction for which a teacher is duly certified and as to which the teacher has special and unique procedural rights." Id. at 293.
Here, too, we believe that the teachers, acting in their capacities as Student Congress Advisors, were not "professional employees" as defined by Section 1101(1) of the Public School Code of 1949, Act of
[ 57 Pa. Commw. Page 199]
March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1101(1).*fn4 Nor were they "teaching" as that term is used in Section 1(2) of the Teacher Certification Law, Act of December 12, 1973, P.L. 397, 24 P.S. § 12-1251(2).*fn5 Our Supreme Court has determined that, in order to be a professional employee, a person must show that he fits within one of the categories created by the Legislature. Brentwood Borough School District Appeal, 439 Pa. 256, 267 A.2d 848 (1970). Under the collective bargaining agreement, only professional employees may file grievances. Since Student Congress Advisors are not included within the category of "professional employees," the teachers, when acting in that capacity, are not covered by the collective bargaining agreement. Accord, Chiodo v. Board of Education of Special School District No. 1, 298 Minn. 380, 215 N.W.2d 806 (1974); Kirk v. Miller, 83 Wash.2d 777, 522 P.2d 843 (1974).
The Leone court also instructed that its decision comports with "long-established custom which traditionally allows much more flexibility in the selection of coaches than would be allowed in the hiring and firing of teachers." 335 A.2d at 293.*fn6 Here, the arbitrator
[ 57 Pa. Commw. Page 200]
himself recognized that the Joint Operating Committee has "wide discretion in selecting the Teachers who will be appointed to these supplemental positions." We agree. Cf. Section 702 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.702 ("[p]ublic employers shall not be required to bargain over matters of inherent managerial policy, which shall include . . . selection and direction of personnel"); Pease v. Millcreek Township School District, 412 Pa. 378, 195 A.2d 104 (1963) (the school board has broad authority to conduct extracurricular activity).
Thus, we must conclude that the failure of the School to renew these supplemental contracts is not arbitrable under the collective bargaining agreement. This conclusion is further buttressed by the recent decision of Albert Lea Education Association v. Independent School District No. 241, 284 N.W.2d 1 (Minn. 1979), which determined that the non-renewal of a high school teacher's supplemental contract as a wrestling coach was not an arbitrable grievance under the collective bargaining agreement. The court decided that the coaching assignment was not a term or condition of employment, despite the presence, in the agreement, of provisions relating to additional assignments.*fn7
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Now, this 2nd day of March, 1981, the order of the Court of Common Pleas of Cambria County in the above captioned case, dated March 13, 1980, affirming the award of an arbitrator, is hereby reversed.