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NORTHWEST TRI-COUNTY INTERMEDIATE UNIT NO. 5 EDUCATION ASSOCIATION v. NORTHWEST TRI-COUNTY INTERMEDIATE UNIT NO. 5 (09/09/83)

decided: September 9, 1983.

NORTHWEST TRI-COUNTY INTERMEDIATE UNIT NO. 5 EDUCATION ASSOCIATION, APPELLANT
v.
NORTHWEST TRI-COUNTY INTERMEDIATE UNIT NO. 5, APPELLEE. NORTHWEST TRI-COUNTY INTERMEDIATE UNIT NO. 5, APPELLANT V. NORTHWEST TRI-COUNTY INTERMEDIATE UNIT NO. 5, EDUCATION ASSOCIATION, APPELLEE



Appeals from the Order of the Court of Common Pleas of Erie County in the case of Northwest Tri-County Intermediate Unit No. 5 v. Northwest Tri-County Intermediate Unit No. 5 Education Association, No. 4921-A-1981.

COUNSEL

George Levin, Shamp, Levin, Arduini and Hain, for appellant/cross appellee.

Bruce L. Getsinger, with him Donald C. Buseck, Quinn, Gent, Buseck and Leemhuis, Inc., for appellee/cross appellant.

Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 77 Pa. Commw. Page 93]

Before this Court is an appeal by the Northwest Tri-County Intermediate Unit No. 5 Education Association (Association) from a decision and order of the Court of Common Pleas of Erie County vacating an arbitration award in favor of the Association and sustaining an appeal by the Northwest Tri-County Intermediate Unit No. 5 (Intermediate Unit).

The Intermediate Unit and the Association are parties to a collective bargaining agreement effective from August 1, 1980 through July 31, 1983. The bargaining unit covered by said agreement, consistent with certification by the Pennsylvania Labor Relations Board (PLRB), includes all full-time regularly employed teachers of the Intermediate Unit. On November 19, 1980, the Association filed a grievance alleging that, by employing full-time substitute teachers without affording

[ 77 Pa. Commw. Page 94]

    them the rights and benefits of the collective bargaining agreement, the Intermediate Unit was violating the agreement's recognition clause and, hence, the PLRB's bargaining unit certification. The Intermediate Unit denied the grievance on the ground that full-time substitutes were not members of the bargaining unit.

Following submissions of the dispute to arbitration, Arbitrator Irwin J. Dean, Jr. sustained the grievance. He held that substitute teachers employed for a period exceeding eighty-nine days must prospectively be considered members of the bargaining unit. On appeal by the Intermediate Unit, the court of common pleas vacated the arbitrator's award on the grounds that the determination as to the composition of a bargaining unit was the exclusive function of the PLRB under the terms of Section 604 of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.604.*fn1 The Association's appeal to this Court followed. In it, the Association asserts, (1) that the common pleas court's decision was in error as a matter of law, (2) that the Intermediate Unit waived any objections to the jurisdiction of the arbitrator by submitting to arbitration, and (3) that the arbitrator's award should be sustained under the terms of the "essence test," i.e., a court's scope of review of an arbitrator's award set forth in Leechburg Area School District v. Dale, 492 Pa. 515, 424 A.2d 1309 (1981).

In addressing the Association's first ground for appeal, we note that the focus of Section 604 of PERA is certification by the PLRB of the bargaining unit. Once

[ 77 Pa. Commw. Page 95]

    certification has been obtained and a collective bargaining agreement entered into, the PLRB, may, under Section 604, determine whether an employee is or is not a member of the bargaining unit. Richland Education Association v. Pennsylvania Labor Relations Board, 43 Pa. Commonwealth Ct. 550, 403 A.2d 1008 (1979). The PLRB's jurisdiction to so proceed, however, is not exclusive. Richland Education Association v. Richland School District, 53 Pa. Commonwealth Ct. 367, 418 A.2d 787 (1980). While an arbitrator may not alter the definition of the bargaining unit encompassed by the PLRB's certification thereof, he is vested with jurisdiction to determine whether or not particular employees are members of the bargaining unit as it is defined. Id. See Leechburg; American Federation of State, County and Municipal Employees, Local Union 757 v. City of Butler, 66 Pa. Commonwealth Ct. 205, 443 A.2d 1357 (1982); Williamsport Area Community College v. Williamsport Area Community College Education Association, 58 Pa. Commonwealth Ct. 256, 427 A.2d ...


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