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July 11, 1997


Appealed From No. 11330 CD 1996. Common Pleas Court of the County of Indiana. Judge RUDDOCK, President Judge.

Before: Honorable Bernard L. McGINLEY, Judge, Honorable James R. Kelley, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Senior Judge Rodgers.

The opinion of the court was delivered by: Rodgers


FILED: July 11, 1997

The Penns Manor Area School District (District) appeals from the order of the Court of Common Pleas of Indiana County (trial court) denying the District's petition to vacate an arbitration award. We reverse.

On December 14, 1993, the Penns Manor Area Education Association (Association) filed a grievance on behalf of seven employees (grievants) who were permanently hired by the District following prior experience as long term substitute teachers. In the grievance, the Association alleged that the District violated the parties' collective bargaining agreement (CBA or agreement) by failing to include long term substitute experience in calculating the grievants' step placements on the salary schedule. The matter proceeded to arbitration and a hearing was held on April 16, 1996.

The District noted that five of the grievants received written notice of their salary scale placements at the beginning of school years 1992-93 and 1993-94, but did not file a grievance until December 14, 1993. The District argued that the grievance is time barred by Article III of the agreement, which provides that all grievances must be filed within twelve work days of the alleged violation or within twelve work days from the date when the employee could reasonably be expected to know the alleged violation occurred. The District further argued that because the Association never objected, in a timely fashion, to the District's long standing practice of not giving salary step credit for long term substitute experience, the Association is estopped from arbitrating that issue now.

The District also asserted that the Association waived the right to arbitrate this matter because the Association supplied the salary matrix used as the basis for allocating the funds negotiated for salaries under the CBA. The District maintained that the salary matrix showed step placements which reflected the District's position of not giving salary step credit for long term substitute experience. The District contended that by supplying the salary matrix, the Association demonstrated a knowing and formal agreement with the step placements.

Finally, the District argued that the only provision of the CBA which addressed the issue of step placement was inapplicable to this case. Article XI, Section E, of the agreement provides that a teacher must work a minimum of forty-five days during which students are in attendance in order to receive credit for one year of service on the salary schedule. The District superintendent testified without contradiction that this section was included in the agreement at the District's request in order to prevent regular teachers from returning from maternity leave or other extended leave for as little as two weeks and receiving a full year's credit for step placement and that there was no Discussion or negotiation that this section would apply to long term substitutes appointed to permanent positions.

The Association asserted that the grievance was a continuing one and was timely as to the first payroll date which meets the agreement's time limitation for filing. The Association also argued that Section 1142 of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1142, requires that annual salaries include an annual service increment for service in the district during the previous school year by advancing the salary of the professional at least one full step on the salary schedule. *fn1 In addition, the Association relied on Article XI, Section E, of the agreement, noting that there was nothing in the agreement which excludes substitutes from this or any of the agreement's provisions.

The arbitrator determined that there was no evidence as to when the Association knew of its rights under Section 1142 of the School Code or when the Association became aware of the alleged violations; he stated that "it can be assumed" that the Association's knowledge was concurrent with the filing of the grievance. The arbitrator concluded that, although notice of step placement had been given to the teachers individually, such notice is not the equivalent of notice to the Association. In addition, the arbitrator noted the uncontroverted testimony of the Association's vice president that he prepared the salary matrix based upon information supplied by the District. Accordingly, the arbitrator found that the Association had not waived the issues raised, the Association was not estopped from grieving the matter, and the grievance was timely filed.

The arbitrator relied on Central Bucks Sch. Dist., 49 Pa. D. & C. 3d 254 (1988), in which the Bucks County Court of Common Pleas upheld the characterization of substitute teachers as professional employees within the meaning of the School Code and affirmed the grant of credit for prior service to former substitute teachers who were subsequently employed on a full time basis. The arbitrator concluded that the holding in Central Bucks was determinative of the grievants' rights under Article IV, Section A of the agreement (the statutory savings clause). Accordingly, the arbitrator sustained the grievance and ordered the grievants to be made whole retroactive to their date of hire as permanent teachers or to a date twelve work days prior to the filing of the grievance, whichever is latest.

The District filed a petition for review and an application to vacate the arbitrator's award with the trial court. The trial court first concluded that, because the timeliness of the grievance was covered by the CBA and the arbitrator could rationally decide that the alleged salary step errors were continuing violations, the decision that the grievance was timely and arbitrable must be upheld.

The trial court next determined that the finding that the grievants were entitled to credit for their long term substitute experience was not manifestly unreasonable, noting that the arbitrator had relied in part on cases holding that long term substitutes were members of the bargaining unit. The trial court rejected the District's argument that the holding in Southern Tioga Educ. Ass'n v. Southern Tioga Sch. Dist., 668 A.2d 260 (Pa. Commw. 1995), petition for allowance of appeal denied, 544 Pa. 665, 676 A.2d 1203 (1996), precludes an award of back pay based solely on the provisions of the School Code. Finally, the trial court noted that the issues of compensation and step placement are encompassed by the terms of the agreement and concluded that ...

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