No. 413 January Term, 1979, Appeal from Order of the Commonwealth Court dated July 20, 1979 at No. 2076 CD 1978
Michael Brodie, Philadelphia, for appellant.
Edwin A. Abrahamsen, Scranton, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Nix and McDermott, JJ., filed concurring opinions. Roberts, J., filed a dissenting opinion.
This protracted litigation began during the 1974-75 school year when the Scranton Federation of Teachers (the Federation),
appellant, went on strike against the Scranton School District (the District), appellee. Due to the impasse in collective bargaining negotiations which led to the strike, the Federation and the District submitted various unresolved matters to the judges of the Court of Common Pleas of Lackawanna County, sitting as arbitrators pursuant to section 804 of the Public Employe Relations Act (PERA), 43 P.S. § 1101.804 (supp. pamphlet 1981-82).
The strike was terminated when the judge/arbitrators issued an award in March, 1975 resolving the various disputed issues, which award included a "make-up time" provision extending the scheduled closing date of June 13, 1975 to June 27, 1975. On May 30, 1975, the district issued a staff bulletin to the teachers which outlined closing procedures to be followed on the last few days of the school year. The teachers complied but, through the Federation, filed a grievance against the District asserting it had unilaterally altered past practice and policy regarding closing procedures (i.e., grade rendering, housekeeping and report card distribution) in derogation of Article 3 of the collective bargaining agreement which provided:
The Board, Federation and their respective representatives shall take no action violative of or inconsistent with any provision of this Agreement or any policy or practice affecting working conditions of teachers existing on the date of the execution of this Agreement or renewals thereof without prior negotiation and agreement with the Federation.
Any complaint arising hereunder shall be presented by only the Federation in accordance with Step 14 of the Grievance Procedure.
A hearing was held on November 10, 1975 before arbitrator Morrison Handsaker of the American Arbitration Association. Arbitrator Handsaker held that the District had, indeed, violated Article 3 of the collective bargaining agreement by unilaterally modifying a practice (the closing procedures) which had existed at the time the agreement was executed. The arbitrator did not, however, award a remedy
for that violation because the parties had not submitted the remedy issue to him. Because the submission agreement mutually stipulated to by the parties did not authorize the arbitrator to determine a remedy, he stated "that it is the responsibility of the parties to negotiate what they can agree upon as an appropriate remedy for this contract violation." Opinion of Arbitrator Handsaker, AAA Case No. 14 30 0918 75R at 7. Neither party appealed from this decision of January 16, 1976.
Representatives of the Federation met on January 28, 1976 with the District's Superintendent of Schools, Dr. John F. Stephens, to discuss possible remedies. However, on February 10, 1976, Dr. Stephens advised the Federation that the District "deemed the matter closed", brief for appellee at 11, and broke off negotiations. The Federation immediately filed another grievance protesting the District's refusal to remedy its violation of the collective bargaining agreement.
A hearing was held before a second arbitrator, J. Joseph Loewenberg, on July 26, 1976. The issues then submitted were (1) is the grievance arbitrable? and (2) if so, what should the appropriate remedy be, if any?
On the matter of arbitrability, the District took the position that the Federation had had an opportunity at the first arbitration proceeding to request a remedy and that, by failing to do so, the Federation should be precluded from raising this issue at a later time. Essentially, the District's position was (and is) that a grievance arbitration cannot be bifurcated into a breach of bargaining agreement proceeding and a remedy proceeding.
Arbitrator Loewenberg rejected this contention and ruled that, as the matter of the remedy was not part of the stipulated issue at the first arbitration, the Federation was not having a "second bite at the apple." Moreover, the arbitrator held the District's failure to reach a remedy was a
grievance in its own right.*fn1 He then issued the following ...