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Neshaminy School District v. Neshaminy Federation of Teachers

Commonwealth Court of Pennsylvania

July 29, 2015

Neshaminy School District, Appellant
Neshaminy Federation of Teachers

Argued February 9, 2015.

Appealed from No. 2013-09859. Common Pleas Court of the County of Bucks. Rubenstein, J.

Ellis H. Katz, New Britain, for appellant.

Marc L. Gelman, Philadelphia, for appellee.



Page 470


The Neshaminy School District (District) appeals from the June 30, 2014 order of the Court of Common Pleas of Bucks County (trial court) denying the District's

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petition to vacate an arbitration award which sustained a grievance filed by the Neshaminy Federation of Teachers (Federation) regarding lost pay on June 12, 2012.

Facts/Procedural History

The following facts are not in dispute. The District and the Federation are parties to a collective bargaining agreement (CBA) which expired in 2008. After four years of working without a contract, the Federation went on strike in January 2012 (first strike), during the 2011-12 academic year. Following the first strike, the parties proceeded to non-binding arbitration, after which the Federation commenced another strike on June 4, 2012 (second strike). The Secretary of Education sought an injunction in the trial court under the Public School Code of 1949 (Code),[2] alleging that if the Federation's members did not return to work by June 15, 2012, or June 16, 2012,[3] the District would be unable to provide 180 days of instruction by June 30, 2012, in violation of Section 1161-A of the Code.[4]

Following a hearing, on June 11, 2012, the trial court issued an injunction enjoining the Federation's members from continuing their strike beyond June 14-15, 2012. While still in the courtroom after the injunction was issued, between 11:00 a.m. and 12:15 p.m., the Federation advised the District that it was no longer on strike and that its membership was prepared to return to school the following day. In response, the District advised that there was insufficient time to open school on June 12, 2012, but that it would reopen on June 13, 2012.[5]


Following its members' return to work on June 13, 2012, the Federation filed a grievance, alleging that the District failed to provide its members one day's pay at their individual, per diem rates when it refused to allow the members to return to work on June 12, 2012, thereby creating a de facto lockout. The grievance proceeded to arbitration, and a hearing was held before Thomas G. McConnell, Jr. (the Arbitrator), at which Louis Muenker, the District's then-Superintendent, testified regarding the infeasibility of reopening the District's schools on June 12, 2012, due to the short notice provided.[6] Specifically, he stated that transportation, food services, and air-conditioning regulation could not be arranged for the students in time. (Reproduced Record (R.R.) at

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120a.) Additionally, with respect to the possibility of having only the staff come in on June 12, as proposed by the Federation's Local President, Louise Boyd, in emails to him later on June 11, Dr. Muenker testified that there was not enough time to produce meaningful professional development plans, that Boyd's email did not address nurses, librarians, or elementary staff, and that it would not be " particularly satisfactory" to have the teachers " do nothing." Id.

On cross-examination, Dr. Muenker stated that aside from the fact that in-service days are typically geared toward providing continuing-education credits, there were no requirements setting minimum standards for the agenda of an in-service day. Additionally, he acknowledged receipt of President Boyd's June 11 emails. (R.R. at 120a-21a.)

In support of the Federation's grievance, President Boyd, who also serves as a biology teacher for the District, stated that after she advised Dr. Muenker that the staff was prepared to return to work on June 12th, he advised that the District would reopen on the 13th. In follow up, President Boyd suggested an in-service day, but was informed by a District representative that " the staff would return when the students were scheduled to return, on the 13th." (R.R. at 121a.)

Following the hearing, the Arbitrator issued an order (Award) sustaining the grievance and directing the District to make the Federation's members whole for any lost wages they incurred with regard to June 12, 2012. The Arbitrator reasoned that the District effectuated a constructive lockout on June 12th by disallowing its staff to return to work. While recognizing that Section 1101-A of the Code[7] provides an exception for closures that are not to be considered lockouts, the Arbitrator concluded that the District's conduct did not fall within the exception's language because the exception pertains only to cancellations at the beginning of a strike and not at the end of a strike, as occurred here.

Further, the Arbitrator concluded that the District breached the implied covenant of good faith and fair dealing when it precluded the Federation's members from working on June 12, 2012, and thereby precluded them from being paid for working the contractual " normal work year" under Article X, Section 10-26 of the

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CBA.[8] While finding that Dr. Muenker provided compelling testimony as to why the District was not prepared to receive students on June 12th, the Arbitrator emphasized that Dr. Muenker failed to so much as consult his cabinet members or other administrators regarding whether it would have been productive for the staff to have an in-service day and therefore " did not exhibit any effort to investigate" possibilities other than total closure on June 12th. (R.R. at 130a.)

Trial Court

The District subsequently filed a petition to vacate the Award with the trial court, contending that it does not draw its essence from the CBA and violates public policy insofar as the Arbitrator found that: (1) Dr. Muenker was required to confer with his cabinet prior to deciding that the staff would not work on June 12, 2012; (2) a constructive lockout occurred on June 12, 2012; (3) the District violated the covenant of good faith and fair dealing; and (4) the District was obligated to schedule a work day on June 12, 2012, and pay its staff for the day.

Applying the essence test,[9] the trial court found that the issue concerning wages and compensation due for June 12, 2012, fell within the terms of the CBA, specifically Article X, Sections 10-25 and 10-26 dealing with the normal work day and normal work year.

Regarding the second prong of the essence test, the trial court determined that the Award could be construed as being rationally derived from the CBA. The trial court explained that the Arbitrator's interpretation of Section 1101-A was based upon the plain language of the CBA and was not contrary to law. The trial court concluded that the Arbitrator's finding that the District violated the implied covenant of good faith and fair dealing was based on the District's violation of Article X, Section 10-26 setting the work year. Finally, the trial court clarified that the Arbitrator did not conclude the District was required to schedule a work day on June 12, 2012, but only to use due diligence

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in considering whether the day should be used ...

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