Argued: October 17, 2016
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE JOSEPH M. COSGROVE, Judge HONORABLE JAMES GARDNER
COLINS, Senior Judge
M. COSGROVE, Judge
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.
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
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.
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.
forth in its brief, the District raises two questions on
(1) [w]hether the essence test and Section 7302(d)(2) of the
Uniform Arbitration Act [UAA] require[s] the  Award to be
vacated in its entirety because, once the parties'
[A]greement expired, Act 46  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) 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
(Appellant's Br. at 1-2.)
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.)
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).
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.
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),
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) in implementing a revised pension benefit
plan without first entering into mandatory negotiations with
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