Appeal from an award of a labor arbitrator in case of In Re: Labor Arbitration Proceedings Between Commonwealth of Pennsylvania, Department of Public Welfare and American Federation of Teachers/Pennsylvania Federation of Teachers, Local 1830 AFT, AFL-CIO, Issued February 19, 1981.
Kristen W. Brown, Assistant Counsel, with her, John D. Raup, Chief Counsel, and Jay C. Waldman, General Counsel, for petitioner.
Sandra R. Kushner, with her Louis B. Kushner, Rothman, Gordon, Foreman, Groundine, P.A., for respondents.
Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr. This decision was reached prior to the expiration of the term of office of Judge Palladino.
[ 64 Pa. Commw. Page 216]
This case comes before the Court on an appeal by the Commonwealth of an award issued by an arbitrator sustaining grievances filed by members of the State Schools and Hospitals Federation of Teachers, Local 1830, Pennsylvania Federation of Teachers, AFT, AFL-CIO (union). The grievances contested furloughs of certain employees at six facilities for the mentally retarded and mentally ill, operated by the Department of Public Welfare (DPW), alleging that the method used violated past furlough practices and the collective bargaining agreement.
In May, 1972, the federal district court for eastern Pennsylvania entered as a consent decree an agreement
[ 64 Pa. Commw. Page 217]
of the parties terminating the action in Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, Civil Action No. 71-42 (E.D. Pa. 1971) (PARC), which resulted in a guarantee of free public education for mentally retarded school-age children. Pursuant to that order, the Department of Education (Education) and DPW jointly issued a document, dated October 24, 1973, entitled General Guidelines for Transferring State School Education Programs to Intermediate Units (Guidelines). Its prefatory language states that the Guidelines constitute an agreement between the two departments to the transfer of the affected education programs for school-age children from the jurisdiction of DPW to that of Education.*fn1
At the time of the implementation of the Guidelines, no collective bargaining agreement between the Commonwealth and the union had been signed; the union did not even obtain certification as a bargaining unit from the Pennsylvania Labor Relations Board until April, 1973. It is apparent from the language of the preamble and the lengthy quasi-titular statement preceding it, that the Guidelines, a unilateral management personnel policy, were specifically developed to effectuate the transfer of functions, personnel, and jurisdiction of the education of school-age children between the departments. Indeed, Section
[ 64 Pa. Commw. Page 2188]
.0 of the Guidelines makes clear that the instruction of "above-school-age" handicapped individuals would ...