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School District of Philadelphia v. Philadelphia Federation of Teachers

Commonwealth Court of Pennsylvania

June 8, 2017

School District of Philadelphia, Appellant
Philadelphia Federation of Teachers, AFT, Local 3, AFL-CIO

          Argued: October 17, 2016



          JOSEPH M. COSGROVE, Judge

         The School District of Philadelphia (District) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) which denied the District's Motion to Vacate an Arbitration Award (Award) that sustained the grievance of the Philadelphia Federation of Teachers (Union). Upon review, we affirm.

         I. BACKGROUND

         Anticipating a funding deficit for the 2013-2014 academic year, the District laid off several thousand employees in June of 2013 and closed 31 schools. Every school counselor was laid off. During the summer of 2013, the District received additional funds which were enough to recall some, but not all, of the counselors laid off. Due to the District's financial constraints, it believed insufficient funds existed to place a full-time counselor in the smallest schools. By late fall of 2013, every school had a counselor assigned to it, with the smaller schools in the District sharing a counselor. The District recalled counselors without preference for seniority and placed them in the schools they served the prior academic year.

         The Union filed a grievance alleging the collective bargaining agreement (CBA), which expired on August 31, 2013, required the recall of counselors in order of seniority and they be given their pick of school on the same basis. The Union grievance also alleged the CBA required the recall of counselors in sufficient numbers to place a counselor full-time in each school, regardless of school size. The matter went to arbitration, and hearings were held on September 10, 2014 and January 20, 2015. Arbitrator Ralph Colflesh, Jr. (Arbitrator) issued his Award on June 29, 2015, sustaining the Union's grievance in its entirety.

         The District filed a timely Petition to Vacate or Modify the Award with the trial court, which the trial court denied on November 10, 2015. The District appealed to this Court.

         II. ISSUES

         As set forth in its brief, the District raises two questions on appeal:

(1) [w]hether the essence test and Section 7302(d)(2) of the Uniform Arbitration Act[1] [UAA] require[s] the [] Award to be vacated in its entirety because, once the parties' [A]greement expired, Act 46 [][2] and decades of precedent gave the School District the right to recall and reassign counselors without regard to numerical quotas or seniority, such matters having become non-mandatory subjects of bargaining by virtue of Section 696(k)(2)[3] of [Act 46]; and
(2) [w]hether the Award as to the two seniority-based grievances should be vacated under the essence test where the [A]greement was devoid of language creating any such seniority rights, no cognizable past practice existed, and the Arbitrator rewrote the [A]greement rather than interpreting it.

(Appellant's Br. at 1-2.)


         A. Act 46

         The District argues Section 696(k)(2) of Act 46, when viewed in light of prior decisions of our Supreme Court, mandates that this Court vacate the Award because once the CBA expired, the provisions of Act 46 controlled, thereby enabling the District to impose new non-mandatory terms unilaterally, without engaging in prior bargaining under the CBA. (Appellant's Br. at 21.)

         Section 696(k)(2) of Act 46 provides in pertinent part:

(2) No distressed school district of the first class shall be required to engage in collective bargaining negotiations or enter into memoranda of understanding or other agreements regarding any of the following issues:
(ii) Decisions related to reductions in force.
(iii) Staffing patterns and assignments, class schedules, academic calendar, places of instruction, pupil assessment and teacher preparation time.

24 P.S. §6-696(k)(2)(ii), (iii).

         In support of its argument, the District cites City of Pittsburgh v. Pennsylvania Labor Relations Board, 653 A.2d 1210 (Pa. 1995), which held that a public employer is entitled to act unilaterally after expiration of a collective bargaining agreement with respect to an issue that is a non-mandatory subject of bargaining.

         In City of Pittsburgh, the city, a party to the collective bargaining agreement with the labor union, enacted an ordinance establishing a revised pension benefit plan. Such action was required for participation in the Municipal Pension Plan Funding Standard and Recovery Act (Act 205), [4] which provided state financial assistance to municipalities whose pension systems were determined to be financially distressed. The union filed a charge alleging the city violated the Public Employe Relations Act (PERA)[5] in implementing a revised pension benefit plan without first entering into mandatory negotiations with the union.

         The essential issue raised by City of Pittsburgh was whether the provisions of Act 205 conflicted with PERA and, if a conflict existed, how must it be resolved. City of Pittsburgh, 653 A.2d at 1212. Section 607(e) of Act 205 explicitly provides that "[a] revised benefit plan for newly hired municipal employees shall be developed with consultation with representatives of the collective bargaining unit applicable to the affected type of municipal employee, if any, and shall be within the scope of collective ...

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