Appeal from the Order of the Court of Common Pleas of Cumberland County in case of East Pennsboro Area School District v. Pennsylvania Labor Relations Board and East Pennsboro Area Education Association, No. 2418 Civil, 1981.
Thomas A. Beckley, with him Jeffrey W. Davis, Beckley and Madden, for appellant.
William J. Maikovich, with him James L. Crawford, for appellees, Pennsylvania Labor Relations Board.
Betty F. Perry, Killian & Gephart, for appellees, East Pennsboro Area Education Association.
President Judge Crumlish, Jr., and Judges Barry and Blatt, sitting as a panel of three. Opinion by Judge Barry.
[ 78 Pa. Commw. Page 303]
We are once again presented with the troublesome question of whether it is the function of an arbitrator, or that of the courts, to initially determine whether an arbitrator has jurisdiction over grievances allegedly arising from collective bargaining agreements in the public sector.
On December 12, 1979, following a month-long strike, the East Pennsboro Area School District (District) and East Pennsboro Area Education Association (Association) entered into a collective bargaining agreement (Agreement) covering the period through August 31, 1982. Because of the work stoppage, the District scheduled only 170 days of pupil instruction despite the fact that the remaining ten days needed to reach the mandated 180 days of instruction could have been scheduled before June 30, 1980, the last allowable day of student attendance during the regular 1979-1980 school year. As a result of the shortened school year, all members of the Association suffered a reduction in their annual salaries called for in the Agreement.
On June 18, 1980, the Association, on behalf of all the members of the bargaining unit, filed a grievance alleging that the failure to schedule 180 days of pupil instruction violated numerous sections of the Agreement.
[ 78 Pa. Commw. Page 304]
The Agreement provided for a four-step method of resolving grievances, the fourth step being arbitration. Following the denial of the grievance at the first three steps, the Association proposed that the grievance be submitted to arbitration. The District, however, refused, contending that the dispute was outside the scope of the Agreement.
Faced with the District's refusal to arbitrate, the Association filed an unfair labor practice charge with the Pennsylvania Labor Relations Board (PLRB) alleging that the District's refusal to submit the dispute to arbitration constituted an unfair labor practice as defined in Section 1201 of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.1201 (Supp. 1965-82). The PLRB, thereafter, issued a complaint and notice of hearing. Following the hearing, the PLRB issued a proposed decision which found that the District's refusal to arbitrate constituted an unfair labor practice. Exceptions filed by the District were dismissed and on May 12, 1981, the PLRB's order was made final. The District then appealed to the Court of Common Pleas of Cumberland County which affirmed the final order of the PLRB. This appeal followed.
Section 903 of PERA explicitly provides, "Arbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement is mandatory." 43 P.S. § 1101.903 (emphasis added).
While all disputes involving the interpretation of a collective bargaining agreement are covered by PERA, it must be remembered that:
courts are not at liberty to require submission to arbitration unless the parties have agreed expressly to do so. The submission to arbitration is essentially a contract with the authority of
[ 78 Pa. Commw. Page 305]
the arbitrators derived from mutual consent of the parties to the terms of the submission.
Neshaminy Federation of Teachers v. Neshaminy School District, 59 Pa. Commonwealth Ct. 63, 67, ...