Appeal from the Order of the Court of Common Pleas of Erie County in the case of Northwestern Tri-County Intermediate Unit No. 5 v. Northwest Tri-County Intermediate Unit No. 5 Education Association, No. 7830 A 1980.
George Levin, Shamp, Levin, Arduini, Jenks & Hain, for appellant.
Donald C. Buseck, with him Cygne L. Nemir, Quinn, Gent, Buseck and Leemhuis, for appellee.
President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 61 Pa. Commw. Page 192]
This is an appeal from an order of the Court of Common Pleas of Erie County which vacated an arbitrator's award in a dispute between the Northwest Tri-County Intermediate Unit Number Five (Intermediate Unit) and the bargaining representative of the Intermediate Unit employees (Association).*fn1 The arbitrator's award was in favor of the Association, and the Association appealed here after the court's vacation of the award.
The Intermediate Unit provides special education services for the students of seventeen school districts in Erie, Crawford and Warren Counties, and its employees are assigned to work at the schools in the various school districts. The labor dispute in question arose during the 1979-80 school year when two of the school districts served by the Intermediate
[ 61 Pa. Commw. Page 193]
Unit suffered a work stoppage by school district employees.*fn2 The ten employees of the Intermediate Unit who were assigned to the striking school districts reported to work at the offices of the Intermediate Unit and requested that they be given alternative work assignments during the work stoppages. This had been the practice of the Intermediate Unit during school district strikes in previous years. The request was denied by the Intermediate Unit which alleged that the existing collective bargaining agreement required Intermediate Unit employees to observe the work schedules established by the school districts where they were assigned, that the employees should not report to work for the duration of the strike, that they were not entitled to alternative work assignments during the strike, and that, although they would be paid during the strike, they would be expected to work during make-up days without additional compensation.*fn3
[ 61 Pa. Commw. Page 194]
The Association filed a grievance which was denied by the Intermediate Unit and which the Association then appealed to arbitration. The arbitrator sustained the Association's grievance on the ground that the prior practice of the Intermediate Unit during work stoppages, which was to reassign its employees and to pay them at the contractual overtime rate for make-up days, was an important indication of how the parties interpreted the pertinent terms of their contract. Noting that the relevant contract provisions had not been altered since the date of the previous strike, he ruled that the collective bargaining agreement entitled the employees to alternative work assignments during the work stoppage, as well as to pay for any make-up days. The court below vacated the award on the grounds that the prior practice of the parties was an impermissible indicia of their intent because the contract itself contained the following integration clause:
The parties agree that all negotiable items have been discussed ...