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STATE SYSTEM HIGHER EDUCATION COMMONWEALTH PENNSYLVANIA v. ASSOCIATION PENNSYLVANIA STATE COLLEGE AND UNIVERSITY FACULTIES (12/09/88)

decided: December 9, 1988.

STATE SYSTEM OF HIGHER EDUCATION OF THE COMMONWEALTH OF PENNSYLVANIA, PETITIONER
v.
ASSOCIATION OF PENNSYLVANIA STATE COLLEGE AND UNIVERSITY FACULTIES, RESPONDENT



Appeal from the Award of Arbitrator in the matter of the arbitration between Association of Pennsylvania State College and University Faculties and State System of Higher Education, Commonwealth of Pennsylvania, Cheyney University, Case No. 14 300 0395 87 Q.

COUNSEL

Alfred J. D'Angelo, Jr., with him, Caren Litvin Sacks and Fred Speaker, Pepper, Hamilton & Scheetz, for petitioner.

Elliot A. Strokoff, with him, James L. Cowden, Strokoff & Cowden, P.C., for respondent.

Judges Craig, Barry and Smith, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision of this case.

Author: Smith

[ 121 Pa. Commw. Page 608]

Petitioner, State System of Higher Education (SSHE), filed a petition for review with this Court from

[ 121 Pa. Commw. Page 609]

    a labor arbitrator's decision on the merits of a grievance under the collective bargaining agreement (agreement) entered into between SSHE and Respondent, Association of Pennsylvania State College and University Faculties (APSCUF). APSCUF filed a motion to quash the petition for review as premature. The sole issue before this Court is whether an appeal may lie from the decision of a labor arbitrator on the question of substantive arbitrability prior to a decision by the arbitrator on the merits of the case.

SSHE is a statutorily established organization which owns and operates fourteen state universities throughout the Commonwealth. Professor Michael Adighibe, employed by SSHE as a faculty member at Cheyney University, was informed on November 11, 1985 that his employment contract would be "non-renewed" due to a lack of funds. At the same time, several other faculty members were "retrenched" or laid off for the same reason. The agreement in force at the time provided that faculty members who were laid off would continue to receive medical benefits for six months and would have rehire rights at all of the universities that comprised the SSHE. In comparison, a faculty member who was non-renewed had no such rights after employment ended. In accordance with provisions of the agreement, Professor Adighibe sought arbitration on the premise that the agreement only permitted lay-offs for fiscal reasons under the retrenchment article and that non-renewal may not be used to avoid according the Professor his lay-off rights. The arbitrator held that non-renewal for fiscal reasons was in actuality a retrenchment which was expressly within his jurisdiction under Article XXIX of the agreement. SSHE petitioned this Court for review, and APSCUF filed a motion to quash the petition for review as premature.

As APSCUF is an employee organization within the meaning of Section 301(3) of the Public Employee Relation

[ 121 Pa. Commw. Page 610]

Act,*fn1 it must submit to arbitration any disputes arising out of the interpretation of its agreement. The arbitration proceedings are to be governed by the procedures set forth in Section 7302(b) of the Uniform Arbitration Act, 42 Pa. C.S. ยง 7302, which give rise to a strong presumption of arbitrability. Board of Education v. Philadelphia Federation of Teachers, 464 Pa. 92, 346 A.2d 35 (1975). Relevant to this Court's inquiry is the specific provision of the agreement pertaining to grievance proceedings. Article V of the agreement sets forth in pertinent part:

The decision of the arbitrator shall be final and binding upon the parties, except where the decision would require an enactment of legislation in which case the decision shall be binding only if and when such legislation is enacted. The arbitrator shall have no authority to add to, subtract from, or modify this Agreement. Each case shall be considered on its merits and this collective bargaining agreement shall constitute the sole basis upon which the decision shall be rendered. If there is a question as to whether the arbitrator has jurisdiction to hear a case, this question must be heard and an immediate bench ruling issued by the arbitrator prior to his/her hearing in deciding the merits of the case. The arbitrator shall confine himself/herself to the precise issue the parties have agreed to submit for arbitration and shall have no authority ...


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