Abington Heights S.D. v. PLRB ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abington Heights School District, :
Petitioner :
: No. 404 C.D. 2021
v. :
: Argued: September 20, 2021
Pennsylvania Labor Relations Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: February 10, 2022
Abington Heights School District (District) petitions for review of the
March 19, 2021 final order of the Pennsylvania Labor Relations Board (PLRB) that
dismissed the District’s exceptions to the hearing examiner’s proposed decision and
order (PDO), which concluded that the District violated section 1201(a)(1) and (5) of
the Public Employe Relations Act (PERA),1 by unilaterally transferring the bargaining
unit work of instructing high school students to employees of Johnson College
1
Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §1101.1201(a)(1), (5). Section 1201 of
PERA generally lists the bases for unfair labor practices and, relevant here, states that “[p]ublic
employers, their agents[,] or representatives are prohibited from,” inter alia, “(1) [i]nterfering,
restraining[,] or coercing employes in the exercise of the rights guaranteed in Article IV of this act,”
which pertains to public employees’ basic rights to unionize and engage in collective bargaining, see
section 401 of PERA, 43 P.S. §1101.401, and from “(5) [r]efusing to bargain collectively [and] in
good faith with an employe representative which is the exclusive representative of employes in an
appropriate unit.” 43 P.S. §1101.1201(a)(1), (5).
(College) without first bargaining with Abington Heights Education Association
(Association), the certified bargaining representative of the District’s teachers. On
three separate and independent grounds, we reverse.
The gist of this matter concerns an agreement (Agreement) between the
District and the College pursuant to section 1525 of the Public School Code of 1949
(School Code),2 24 P.S. §15-1525,3 commonly known as a “dual enrollment program,”
whereby students of the District could attend the College, take courses that are offered
at the College, and receive high school credits and also credits at the College (if the
student later attends the College) upon successful completion of the College’s courses.
The major issue on appeal is whether the District’s decision to enter into the Agreement
was an exercise of its “inherent managerial prerogative” to create and dictate its
academic curriculum or whether the Agreement concerned matters that would require
the District to engage in collective bargaining with the Association prior to entering
into the Agreement. Put simply, if the District’s decision was the former, the District
did not violate PERA; if it was the latter, the District committed unfair labor practices
under PERA. See Association of Pennsylvania State College and University Faculties
2
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101 to 27-2702.
3
This provision states as follows:
Notwithstanding any other provision of law to the contrary, a school
district may enter into an agreement with one or more institutions of
higher education approved to operate in this Commonwealth in order
to allow resident students to attend such institutions of higher education
while the resident students are enrolled in the school district. The
agreement may be structured so that high school students may receive
credits toward completion of courses at the school district and at
institutions of higher education approved to operate in this
Commonwealth.
24 P.S. §15-1525.
2
v. Pennsylvania Labor Relations Board, 226 A.3d 1229, 1241-44 (Pa. 2020); City of
Harrisburg v. Pennsylvania Labor Relations Board, 605 A.2d 440, 442 (Pa. Cmwlth.
1992).4
Background
The PLRB summarized the pertinent facts of this case as follows:
The Association is the certified bargaining representative of
a unit of professional employees including teachers. For at
least 37 years, the teachers have exclusively performed work
related to the education, instruction, and teaching of the
District’s students. This work includes the presentation of
academic material, impartment of knowledge and concepts,
evaluation of academic progress, assessment and testing of
student performance or grading, counseling, and providing
any other guidance, supervision, or support necessary to
ensure academic success. The courses that appear in the
District’s High School Curriculum Planning Guide and in the
District’s high school class schedules have always been
taught exclusively by the bargaining unit teachers.
....
In the past, the District offered dual enrollment courses
where its students attended the University of Scranton, took
college level courses, and received college credit. The dual
enrollment program was offered pursuant to Act 46 of
the [] School Code[5] [] on a “Concurrent Enrollment
Agreement” between the District and the University of
Scranton funded by a state grant. The students did not
receive credit toward their high school graduation, and
the dual enrollment courses did not replace the high
4
“[A] public employer commits an unfair labor practice when it unilaterally transfers any unit
work to non-members without first bargaining with the unit.” City of Harrisburg, 605 A.2d at 442(emphasis in original).
5
Act of July 13, 2005, P.L. 226. Act 46 added Article XVI-B, “Opportunities for Educational
Excellence,” to the School Code, 24 P.S. §§16-1601-B-1615-B.
3
school classes taught by the bargaining unit teachers.
The students were required to take their full course load
of high school instruction from classes taught by
bargaining unit teachers. The dual enrollment courses
were taught outside the normal school day. However, as
of February 2012, the state funding for the dual enrollment
program was completely eliminated and it was uncertain
whether the District would offer the same dual enrollment
courses at the University of Scranton in the future.
For the past three years, the District had another dual
enrollment program with Lackawanna College where high
school students [would] take classes and receive credit for
high school and postsecondary education. The classes are
taught by bargaining unit teachers at the District’s high
school during the regular school day.
On May 15, 2019, Thomas Lavelle, the Association[’s]
President, received an email from [District] Superintendent
Michael Mahon, requesting that Mr. Lavelle review a draft
“Industry Fast Track Agreement,” [i.e., the Agreement,]
between the District and [the] College and to communicate
any concerns about the Agreement. The District’s School
Board was scheduled to approve the Agreement the same
evening. Mr. Lavelle contacted Superintendent Mahon and
stated that the Agreement was a removal of bargaining unit
work [from the teachers]. Despite the Association’s
concerns, Superintendent Mahon presented the Agreement to
the School Board, which approved it.
[The] College is a two-year college that offers postsecondary
or collegiate education to people who have graduated from
high school. The [Agreement], effective July 1, 2019, to
June 30, 2022, states that [the] College would offer its
courses to the District’s high school students. The
Agreement also provides that the District would award
high school credit to students who successfully complete
[the] College courses. The same courses are used for
collegiate credit if the students attend [the] College after
high school.
The Agreement requires the students to be enrolled in the
District’s high school and complete [the] College courses as
4
a high school student. The Agreement also requires the
students to make satisfactory progress toward fulfilling
applicable secondary school graduation requirements by the
high school. The Agreement lists 18 classes that [the]
College would provide to the District’s high school students.
Many of the classes are in vocational trades, such as
construction, electricity, and pipefitting, while other classes
are in core academic areas such as math and English. The
classes listed in the Agreement address areas of
instruction that are taught by the bargaining unit
teachers at the high school, including math, English, and
vocational technical trades. The Agreement provides
that the classes will be taught by the faculty and/or
employees of [the] College and held on the College
campus.
The District did not obtain grant money or funding in
connection with the Agreement. Instead, the District pays
[the] College directly for the classes and has been given
$35,000[.00] from a local charitable foundation to help pay
for the cost of the program. The District did not submit the
Agreement to the Pennsylvania Department of Education
[(PDE)] for approval[,] nor is there evidence that the [PDE]
approved the Agreement.
Since July 1, 2019, eight high school students have taken
classes at [the] College pursuant to the Agreement. The
classes are being taught by the faculty at [the] College and
appear on the students’ high school report cards counting
towards the students’ high school education
requirements. The District did not bargain with the
Association over the use of [the] College employees to
teach [the] classes.
. . . The students who attend [the] College . . . stay at the
District’s high school for full days until their senior year.
The students then attend [the] College during their senior
year for half days. The students who attend [the] College
spend the other half of the day taking classes at the
District’s high school.
Since the implementation of the Agreement, the District has
paid [the] College to provide Business Education classes to
5
the District’s high school students, which is not one of the
listed courses in the Agreement. Two bargaining unit high
school teachers instruct in the area of Business Education and
that course appears in the District’s High School Curriculum
[Planning] Guide.
(PLRB’s decision at 1-3) (footnotes omitted, emphasis added).
On September 13, 2019, the Association filed its charge of unfair labor
practices, alleging that the District violated section 1201(a)(1) and (5) of PERA by
transferring the bargaining unit work of instructing certain high school courses to the
employees of the College. Thereafter, the PLRB scheduled—and a hearing examiner
held—a hearing on February 10, 2020, during which all parties in interest were
afforded the basic rights of due process regarding argumentation and the presentation
and contestation of evidence. In the PDO, the hearing examiner concluded that the
Association met its burden of proof as to its alleged charge and recommended various
remedies to rectify the District’s violations of PERA.
The District filed exceptions to the PDO to the PLRB. In addition to
advancing other arguments, the District cited a decision from the PLRB, Palisades v.
Education Association v. Palisades School District, 37 PPER 168 (Final Order, 2006),
2006 PA PED LEXIS 44 (Palisades), and contended that the hearing examiner failed
to properly apply the legal reasoning espoused therein. In dismissing this assertion, the
PLRB stated as follows:
Under Act 46, a school district can enter into a concurrent or
dual enrollment agreement with a postsecondary institution
and apply for grant funds from the [PDE]. [Sections 1603-
B(c) and 1611-B(c) of the School Code,] 24 P.S. §§16-1603-
B(c), 16-1611-B(c). In [Palisades], the [PLRB] concluded
that the manner in which a dual enrollment course is
implemented under Act 46, including the selection of the
teacher, is controlled by the postsecondary institution
6
providing the course and not the school district.[6] As
such, the [PLRB] held that the school district in that case
did not violate its duty to bargain when a non-bargaining
unit professor of the postsecondary school taught courses
to high school students for secondary and postsecondary
credit.
Here, the uncontested findings of fact show that the District
did not submit its Agreement with [the] College to PDE for
approval, nor has it obtained grant money from PDE for its
program with [the] College. Instead, the District is paying
for its high school students to attend the courses at [the]
College. Further, the District is not unaware of the
requirements under Act 46 as it has previously obtained grant
funding from PDE for its dual enrollment program with
Scranton University. . . . Based on the facts presented, the
[h]earing [e]xaminer did not err in concluding that the
District’s dual enrollment program with [the] College was
not pursuant to Act 46. Therefore, the [PLRB’s] decision in
[Palisades] is inapplicable.
(PLRB’s decision at 6-7) (emphasis added).
In rejecting the District’s argument that it had the authority under section
1525 of the School Code to enter a dual enrollment program with the College, and the
hearing examiner’s decision effectively prohibited the District from doing so, the
PLRB reasoned as follows:
Pursuant to section 1611-B(f) of the [] School Code, a school
district is not precluded from entering into a dual enrollment
6
See section 1604-B(a) and (b) of the School Code, 24 P.S. §16-1604-B(a) (“A member of an
eligible postsecondary institution’s faculty who teaches a concurrent course under [Act 46] shall not
be an employee of a school entity, an independent contractor of a school entity or an employee of an
independent contractor of a school entity . . . unless the faculty member teaches a course in a school
entity’s building.”), and compare with 24 P.S. §16-1604-B(b) (“Nothing in [Act 46] shall be
construed to prohibit an eligible postsecondary institution from contracting with a professional
employee of a school entity for purposes of a concurrent enrollment program if the professional
employee meets all qualifications for an adjunct faculty member at the eligible postsecondary
institution.”) (emphasis added).
7
program under section 1525 if it is unable to receive Act 46
grant funding.[7]
. . . . As stated by the [h]earing [e]xaminer, the provisions of
Act 46 do not apply to dual enrollment programs created
under section 1525. Further, unlike Act 46, section 1525
does not vest control over the implementation of and
selection of the instructor for a dual enrollment course in
the postsecondary institution. Contrary to the District’s
assertion, the [h]earing [e]xaminer’s decision merely
holds that the District must bargain with the Association
over the assignment of teaching dual enrollment courses
for high school credit and does not prevent the District
from creating a dual enrollment program under this
provision.
. . . . [T]he [h]earing [e]xaminer did not err in concluding that
the District violated section 1201(a)(1) and (5) of PERA
by unilaterally (1) transferring the bargaining unit work
of teaching English and Business Education courses to the
employees of [the] College and (2) changing the extent to
which non-bargaining unit employees taught building
trade courses to the District’s high school students.
Accordingly, the [PLRB] shall dismiss the [District’s]
exception[s]. . . .
(PLRB’s decision at 7-8) (emphasis added).
For relief, the PLRB ordered the District to cease and desist from violating
PERA and from refusing to bargain collectively and in good faith with the Association,
the exclusive bargaining representative of the teachers. In terms of affirmative action,
the PLRB ordered the District to return the teaching work to the Association’s teachers,
rescind the Agreement with the College, and make whole any bargaining unit
7
Section 1611-B(f) of the School Code states: “Nothing in this article shall be construed to
preclude a school entity that does not receive a grant under section 1603-B(c) from continuing or
entering into an agreement with an institution of higher education under the provisions of section
1525.” 24 P.S. §16-1611-B(f).
8
employees who have been adversely affected due to the District’s unfair labor
practices, together with 6% per annum interest.
Subsequently, the District filed a petition for review in this Court.8
Discussion
In its brief, the District argues that the PLRB erred as a matter of law by
infringing upon the District’s inherent managerial prerogative to determine the manner
and level of educational services it provides to its students by imposing a requirement
that the District negotiate with the Association before entering into an agreement with
the College pursuant to section 1525 of the School Code. In contending that the PLRB
misconstrued section 1525, the District notes that the plain language of that statutory
provision does not impose upon it an obligation to bargain collectively and maintains
that such a requirement would run counter to and defeat the purpose of the statute,
namely to provide high school students with the opportunity to take college-level
courses and potentially obtain college credits.
Countering, the PLRB argues:
[I]t is undisputed that the District unilaterally transferred the
bargaining unit work of teaching English, Business
Education, and building trades courses for high school credit
to the employees of [the] College during the 2019-2020
school year without bargaining with the Association.
Contrary to the District’s assertion, its managerial right to
decide what courses to provide its high school students does
not trump its duty under section 701 of PERA[, 43 P.S.
§1101.701,] to bargain with the Association concerning who
will teach those courses.
8
Our standard of review of a decision of the PLRB “is limited to determining whether there
has been a violation of constitutional rights, an error of law, [or] procedural irregularity, or whether
the findings of the agency are supported by substantial evidence.” Borough of Ellwood City v.
Pennsylvania Labor Relations Board, 998 A.2d 589, 594 (Pa. 2010).
9
As consistently held by the Pennsylvania Supreme Court
over the past 45 years, items that are bargainable under
section 701 are only excluded from bargaining where other
applicable statutory provisions explicitly and definitively
prohibit the public employer from making an agreement as
to that specific item. Section 1525 of the [] School Code does
not explicitly or definitively prohibit the District from
bargaining over who will teach dual enrollment courses, nor
does it vest control over selection of the instructor for a dual
enrollment course in the postsecondary institution.
(PLRB’s Br. at 10) (emphasis in original).
The Association, as intervenor, posits that the PLRB’s decision does not
impair the District’s managerial rights because the PLRB did not prohibit the District
from establishing a dual enrollment program under section 1525 of the School Code.
According to the Association, the “District, instead, must use the Association’s
bargaining unit members to perform the work of the [d]ual [e]nrollment program [] and
cannot divert the work to outsiders without [first] negotiating the issue with the
Association.” (Association’s Br. at 15.)
In assessing whether an employment matter must go through collective
bargaining, our Supreme Court discussed the interplay between sections 701, 702, and
703 of PERA, 43 P.S. §§1101.701, .702, .703, respectively,9 explaining that
9
Section 701 provides as follows:
Collective bargaining is the performance of the mutual obligation of
the public employer and the representative of the public employes to
meet at reasonable times and confer in good faith with respect to wages,
hours and other terms and conditions of employment, or the negotiation
of an agreement or any question arising thereunder and the execution
of a written contract incorporating any agreement reached but such
obligation does not compel either party to agree to a proposal or require
the making of a concession.
43 P.S. §1101.701.
(Footnote continued on next page…)
10
as a general matter, public entities subjected to PERA make
a variety of decisions in fulfilling their mission. Certain of
these decisions relate to the formulation and implementation
of policies. Other decisions go to the relationship between
the public entities and the individuals that they employ. With
respect to these decisions, [] certain topics under PERA are
considered to be mandatory subjects of bargaining, others are
considered to be permissive or voluntary subjects of
bargaining, and, finally, certain matters are not permitted to
be bargained at all, as they are deemed to be illegal subjects
of bargaining.
Association of Pennsylvania State College, 226 A.3d at 1241.
Section 702 states as follows:
Public employers shall not be required to bargain over matters of
inherent managerial policy, which shall include but shall not be limited
to such areas of discretion or policy as the functions and programs of
the public employer, standards of services, its overall budget,
utilization of technology, the organizational structure and selection and
direction of personnel. Public employers, however, shall be required
to meet and discuss on policy matters affecting wages, hours and terms
and conditions of employment as well as the impact thereon upon
request by public employe representatives.
43 P.S. §1101.702.
Finally, section 703 declares as follows:
The parties to the collective bargaining process shall not effect or
implement a provision in a collective bargaining agreement if the
implementation of that provision would be in violation of, or
inconsistent with, or in conflict with any statute or statutes enacted by
the General Assembly of the Commonwealth of Pennsylvania or the
provisions of municipal home rule charters.
43 P.S. §1101.703.
11
Initially, under section 701 of PERA, “public employers must
collectively bargain with employee representatives over wages, hours, and other
terms and conditions of employment.” Association of Pennsylvania State College,
226 A.3d at 1241 (emphasis added). However, “it is equally apparent that the General
Assembly had no intention or expectation that the collective bargaining process would
permit public employees to set matters of public policy or participate with their public
employer in administering the public enterprise.” Id. at 1242. “The right to collective
bargaining as to ‘wages, hours and other terms and conditions of employment’ is not
unlimited, as [s]ection 702 [of PERA] unambiguously provides that a public employer
is not required to bargain if the topic is one of inherent managerial policy.” Id. “Thus,
pursuant to [s]ection 702, a public employer is not required to collectively bargain
over matters of ‘inherent managerial policy’—also referred to as managerial
prerogatives—as these matters are reserved for the employer’s unilateral
decision-making.” Id. (emphasis added). “By [s]ection 702, the General Assembly
has broadly indicated what it deems to be examples of inherently managerial matters,
identifying programming, standards of service, budgetary matters, organizational
structure, and the selection and direction of personnel.” Id. “Finally, [s]ection 703
expressly provides that the parties may not bargain over, and a collective
bargaining agreement [CBA] may not contravene, any legislative mandate.” Id.
(emphasis added).
Quoting and elaborating upon Pennsylvania Labor Relations Board v.
State College Area School District, 337 A.2d 262 (Pa. 1975) (State College II), our
Supreme Court in Association of Pennsylvania State College explained:
As to the process by which the [PLRB] and the courts are to
determine and reconcile which matters are subject to
collective bargaining and which topics are deemed to be
12
inherent managerial policies under PERA, our landmark
1975 decision in State College [II] has provided guidance for
over 40 years. Writing for the Court, Justice Robert N.C.
Nix, Jr.[,] addressed the determination of whether a
particular topic is a matter of wages, hours, or working
conditions subject to bargaining under section 701, or an
inherent managerial policy of the public employer, and not
subject to mandatory bargaining, under section 702. In
determining which matters were bargainable, our Court first
recognized the balance between the public employer’s
significant role in providing effective and efficient public
services and the importance of a viable process of collective
bargaining to reduce labor strife. Specifically, we noted[:]
A determination of the interrelationship
between sections 701 and 702 calls upon us to
strike a balance wherein those matters
relating directly to ‘wages, hours and other
terms and conditions of employment’ are
made mandatory subjects of bargaining and
reserving to management those areas that the
public sector necessarily requires to be
managerial functions.
State College [II], 337 A.2d at 267-68.
We recognized that in “striking this balance the paramount
concern must be the public interest in providing for the
effective and efficient performance of the public service in
question.” Id. at 268. Indeed, appreciating the difficulty of
the task, the Court stressed that “[w]e recognize that in many
instances the line will be difficult to draw,[] however, if we
remain ever mindful that our paramount concern in this area
is the public interest, no situation will be insoluble.” Id.
(footnote omitted). In focusing on the balancing inquiry, the
State College [II] Court recognized the reality that some
matters which are of prime concern to employees’ wages,
hours, or terms and conditions of employment may, at the
same time, directly implicate, or at least touch upon, basic
public employer policy. Indeed, an employer’s policy
decisions almost invariably implicate, to some degree, the
employer-employee relationship.
13
With its primary focus on the public interest, the Court went
on to offer a test, to be applied on a case-by-case basis,
weighing a given matter’s impact on the interest of the
employee against the effect on the employer’s basic policy
determinations:
[W]e hold that where an item of dispute is a
matter of fundamental concern to the employes’
interest in wages, hours[,] and other terms and
conditions of employment, it is not removed as
a matter subject to good faith bargaining under
section 701 simply because it may touch upon
basic policy. It is the duty of the [PLRB] in the
first instance and the courts thereafter to
determine whether the impact of the issue on the
interest of the employe in wages, hours[,] and
terms and conditions of employment outweighs
its probable effect on the basic policy of the
system as a whole.
Id.
Thus, in determining whether a topic is subject to collective
bargaining, the [PLRB] in the first instance, and then the
courts, must consider the relative weight of the impacted
interest of the public employee in wages, hours, and
conditions of employment against the public employer’s
impacted interest in basic policy matters concerning the
employer’s operations, and then assess which interest
predominates. If the impact on the employees’ interest in
wages, hours, and conditions of employment outweighs
the employer’s concerns about restrictions on its basic
policy choices, the proposal is considered a mandatory
subject of bargaining. If, however, the latter outweighs
the former, such topic shall be deemed to constitute an
inherent managerial prerogative and be insulated from
the give-and-take of mandatory collective bargaining. . . .
Association of Pennsylvania State College, 226 A.3d at 1242-44 (emphasis added). In
all events, in conducting the balancing test mentioned above, this Court must remain
14
“[m]indful that the paramount concern in th[e] inquiry is the public interest.” Id.
at 1245 (emphasis added).
Section 702 of PERA—The Inherent Managerial Prerogative of the District and
the Public Interest Involved in Educational Policy
First, we determine the significance of—and the nature of the public
interest in—the District’s policy-based choices, which will aid in deciding “whether a
particular subject represents a question of ‘educational policy’ or whether it is a
‘condition of employment.’” United Teachers of Dade v. Dade County School Board,
500 So.2d 508, 513 (Fla. 1986). Ultimately, if a subject matter relating to employment
constitutes and falls into the category of the District’s “educational policy,” it will be
deemed to be an inherent managerial prerogative of the District and, thus, not subject
to collective bargaining.
In Pennsylvania Labor Relations Board v. State College Area School
District, 306 A.2d 404 (Pa. Cmwlth. 1973) (State College I), remanded on other
grounds by State College II, this Court discussed the fundamental and strong public
interest in public education:
[A] school district is an agency of the State, created by law
for the purpose of promoting education, deriving all of its
powers from the statute, and discharging only such duties as
are imposed upon it by statute. The school district is an
agency of the State charged with the sovereign duty of
building and maintaining the schools within its particular
territory and with the further duty of securing, managing, and
spending the necessary funds in the interest of public
education[.] . . . Article 3, [s]ection 14 of our present
Pennsylvania Constitution provides that “[t]he General
Assembly shall provide for the maintenance and support of a
thorough and efficient system of public education to serve
the needs of the Commonwealth.”[10] The school districts are
10
Pa Const. art. III, §14.
15
agencies of the Legislature to administer this constitutional
duty. The [] School Code [] . . . contains section 211, 24 P.S.
§2-211, which provides that “[t]he several school districts in
this Commonwealth shall be, and hereby are vested as,
bodies corporate, with all necessary powers to enable them
to carry out the provisions of [the School Code].” Thus[,] we
must conclude that school boards have traditionally been
given by the Legislature, under constitutional mandates,
broad inherent managerial powers to operate the public
schools and to determine policy relative thereto.
State College I, 306 A.2d at 410.
Reproducing phrases in the case law from our Supreme Court and this
Court, the State College I court further added that “[t]he fundamental policy of our
public school system is to obtain the best educational facilities for the children of the
Commonwealth. . . . The duty of devising methods by which this important obligation
can be discharged devolves upon the school boards”; “[s]chool authorities must be
given broad discretionary powers to ensure a better education for the children of
this Commonwealth and any restrictions on the exercise of these powers must be
strictly construed on the basis that the public interest predominates and private interests
are subordinate thereto”; “[b]y the School Code, the school directors are given [the]
power to administer the public school system; they are commanded . . . to conduct
school affairs and keep the schools open”; and, “[i]t is the administrative function of
the school directors and superintendents to meet changing educational conditions
through the creation of new courses . . . and [the] rearrangement of curriculum.”
Id. at 411-12 (internal citations and quotation marks omitted; emphasis added).
In State System of Higher Education v. Association of Pennsylvania State
College University Faculties, 834 A.2d 1235 (Pa. Cmwlth. 2003), a public university
appealed an arbitrator’s award finding that it violated a purported “agreement” with a
bargaining unit when the public university instituted a university chemical
16
biotechnology program without first obtaining the approval of a “meet and discuss”
committee created by the “agreement.” On appeal, the public university argued that
its decision regarding its academic curriculum was a matter of inherent managerial
policy, which was not subject to collective bargaining and, further, was not a
requirement—let alone an issue that was contained—in the CBA. This Court agreed
with both arguments. First, we determined that the issue of the “meet and discuss”
committee’s authority over curriculum changes was not within the scope of a provision
in the CBA; thus, the arbitrator erred in finding that the public university violated either
an “agreement” with the bargaining unit or the terms of the CBA. Second, and most
importantly, this Court relied on section 702 of PERA and concluded as follows:
“Clearly, under PERA, the [u]niversity’s managerial policy of approving
curriculums or making any other program-related decision is not subject to collective
bargaining and the [u]niversity maintains a managerial prerogative of making
curriculum changes without the ‘meet and discuss’ committee’s approval.” 834 A.2d
at 1241 (emphasis added).
Notably, other courts have echoed the underlying sentiment espoused by
this Court in State System of Higher Education, expressing the general view that a
school board’s determination regarding the nature of its academic curriculum
represents a choice that is related to educational policy and, thus, constitutes a
managerial prerogative of a school board. See Higher Education Coordinating
Council/Roxbury Community College v. Massachusetts Teachers’ Association/
Massachusetts Community College Council, 666 N.E.2d 479, 484 (Mass. 1996) (“As a
matter of policy and legislative directive, the college, through its board of trustees and
school administrators, should retain sole authority for determining the content of its
educational curriculum, and the optimum system for the delivery of the academic
17
programs and related services it deems necessary.”); Dunellen Board of Education v.
Dunellen Education Association, 311 A.2d 737, 741 (N.J. 1973) (“Illustratively, [a]
court expressed the view that matters such as the following would fall exclusively
within management’s prerogatives and would not be the subject of compulsory
negotiation: The right . . . to determine the curriculum, class size, and types of
specialists to be employed.”); Joint School District No. 8 v. Wisconsin Employment
Relations Board, 155 N.W.2d 78, 82-83 (Wisc. 1967) (“The contents of the curriculum
[and] [s]ubjects of study are within the scope of basic educational policy and
additionally are not related to wages, hours and conditions of employment.”); see also
Palisades, 37 PPER at 168, 2006 PA PED LEXIS 44, at *3 (“As an initial matter, the
[u]nion does not challenge the [d]istrict’s managerial prerogative to determine the
manner and level of educational services by making available concurrent enrollment,
dual credit courses for its students.”); id., at *5 (stating that a “[school] district exercises
its managerial prerogative to make available a concurrent enrollment, dual credit
course”).
Turning to the relevant statutory provision in this case, section 1525 of the
School Code states as follows:
Notwithstanding any other provision of law to the contrary,
a school district may enter into an agreement with one or
more institutions of higher education approved to operate
in this Commonwealth in order to allow resident students
to attend such institutions of higher education while the
resident students are enrolled in the school district. The
agreement may be structured so that high school students
may receive credits toward completion of courses at the
school district and at institutions of higher education
approved to operate in this Commonwealth.
24 P.S. §15-1525 (double emphasis added).
18
Therefore, based on the above, we conclude that there is a compelling and
strong public interest in the District’s educational policy and its choices regarding the
nature of its academic curriculum. We further conclude that, through the General
Assembly’s directive in section 1525 of the School Code, the District possesses the
statutory authority to enter into agreements with postsecondary schools, such as its
Agreement with the College, and that its decision to do so is directly related to the
District’s educational policy and, thus, constitutes a matter that falls within its inherent
managerial prerogative. On this basis, we conclude that the District did not violate
PERA, and that the PLRB erred in deciding to the contrary.
Section 703 of PERA—Collective Bargaining and/or a CBA that Contravenes
and/or is Inconsistent with a Statutory Mandate
Second, we assume, for the sake of the argument, that the Agreement
concerns a matter or topic that is exclusively an item that must undergo the collective
bargaining process under section 701 of PERA, because it concerns the “wages, hours,
and other terms and conditions of employment,” and has absolutely no bearing or
relationship to the District’s managerial prerogative. We further assume, arguendo,
that the impact that the Agreement has on the interest of the Association’s relevant
teachers in their wages, hours, and conditions of employment substantially outweighs
any interest that the District has pertaining to a managerial prerogative and, as such,
must be subjected to collective bargaining.
Nonetheless, even if either event or circumstance (or both) were true,
“[s]ection 703 expressly provides that the parties may not bargain over, and a collective
bargaining agreement may not contravene, any legislative mandate.” Association of
Pennsylvania State College, 226 A.3d at 1242. Per the terms of section 703, there is a
“contravention” when such collective bargaining or a CBA “would be in violation of,
19
or inconsistent with, or in conflict with any statute or statutes enacted by the General
Assembly of the Commonwealth of Pennsylvania.” 43 P.S. §1101.703.
On this note, it is extremely significant that section 1525 of the School
Code, reproduced above, is prefaced with the phrase, “[n]otwithstanding any other
provision of law to the contrary.” 24 P.S. §15-1525. According to our Supreme Court,
a clause of this nature is decimating in the sense that it constitutes a clear and
unequivocal expression by our General Assembly that the statutory section supersedes
and completely displaces any and/or all laws that state, or could be interpreted to state,
a contrary proposition of law. See, e.g., City of Philadelphia v. Clement & Muller, Inc.,
715 A.2d 397, 398 (Pa. 1998) (interpreting the phrase, “[n]otwithstanding a contrary
provision of law of the Commonwealth,” the Court concluded that “[t]he meaning of
the emphasized introductory language is straightforward: regardless of what any other
law provides, [the governmental entity is] authorized by th[e] act to [do precisely
that]”); accord City of Johnstown v. Workers’ Compensation Appeal Board (Sevanick),
255 A.3d 214, 222 (Pa. 2021) (“This Court understands the use of ‘notwithstanding’ to
be an unambiguous expression of the General Assembly’s intent to distinguish the law
applicable to the circumstances addressed within the ‘notwithstanding’ clause from the
law applicable to [other] circumstances[.]”); Pleasant Hills Construction Co., Inc. v.
Public Auditorium Authority, 784 A.2d 1277, 1283 (Pa. 2001) (concluding that a
“notwithstanding clause is clear, means regardless,” and “explicitly preempts other
Commonwealth laws”).
Here, section 1525 of the School Code vests the District with the sole
discretion and statutory authority to enter the Agreement with the College. Because
this statutory section contains a “notwithstanding clause,” the authority granted to the
District in section 1525 cannot be questioned or altered in any manner via any other
20
conceivable law no matter how applicable that law may appear to be. Consequently,
even assuming the Association had collective bargaining rights under section 701 of
PERA, section 1525 of the School Code would supersede those rights.
Therefore, in the alternative, we conclude that section 703 of PERA
mandates that the District’s decision to enter in the Agreement is not one that can be
subjected to collective bargaining. On this basis, we conclude that the District did not
violate PERA, and that the PLRB erred in determining otherwise.
The Balancing of Competing Interests—Managerial Rights Versus Bargaining
Rights
Third, assuming that the District has managerial rights under section 702,
and the Association possesses collective bargaining rights pursuant to section 701, the
two must be compared in a qualitive manner to determine which prevails.
“Many educational policy decisions make an impact on a teacher’s
conditions of employment and the converse is equally true. There is no unwavering
line separating the two categories.” United Teachers of Dade, 500 So.2d at 513. “Most
courts therefore have determined the issues on a case-by-case basis, but, as a starting
point for their analysis, have tended to view the test of bargainability as the degree of
impact on wages, hours or other conditions of employment.” Id. As our Supreme
Court stated, a court must balance “the relative weight of the impacted interest of the
public employee in wages, hours, and conditions of employment against the public
employer’s impacted interest in basic policy matters,” and if “the latter outweighs the
former, such topic shall be deemed to constitute an inherent managerial prerogative
and be insulated from the give-and-take of mandatory collective bargaining.”
Association of Pennsylvania State College, 226 A.3d at 1244.
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Here, in conducting a balancing test, as we explained above, the District
has a compelling and strong public interest in its educational policy, particularly with
respect to creating dual education programs such as the one sanctioned in section 1525
of the School Code, which expressly authorizes the District’s Agreement with the
College. Importantly, that section vests “a school district” with the power to “enter
into an agreement with” a college in order “to allow resident students to attend” the
college and “receive credits toward completion of courses at the school district and at
[the college].” Id. (emphasis added). Without question, this is exactly what was
memorialized in the Agreement and has happened here as a matter of fact: the students
of the District go to the College campus, take courses offered by the College, and obtain
high school credits and credits at the College if they enroll in the College after
graduating from the District.
Significantly, by utilizing the word “attend” in section 1525, our General
Assembly presumed that when a school district and a postsecondary institution make
an agreement pursuant to that statutory section, a student would be physically present
at the postsecondary institution and would take courses that are only offered at the
postsecondary institution and available for credits at that institution. Naturally, in this
context, the only sustainable inference to be drawn is that the courses offered by the
postsecondary institution would be instructed only by the professors, adjunct faculty,
and/or staff of that postsecondary institution. Yet, the Association contends that the
District’s teachers possess a collective bargaining right to teach courses that are offered
by and at the College and for academic credits at the College, regardless of their
qualifications and even if they are not hired by or otherwise affiliated with the College.
In crediting this argument, the hearing examiner and the PLRB attempted
to distinguish the PLRB’s decision in Palisades and, in so doing, placed much
22
emphasis on the fact that the Agreement was not created under the rubric of Act 46,
while highlighting their perception that the postsecondary institution in an Act 46
program has exclusive control over the selection of the teacher. However, as correctly
noted by the PLRB, pursuant to section 1611-B(f) of the School Code, a school district
can enter into an agreement under section 1525, irrespective of whether it qualifies for
or obtains Act 46 grant funding. See 24 P.S. §16-1611-B(f); supra note 7. Further,
and contrary to the presupposition of the PLRB, the pertinent statutory provision of Act
46 permits a postsecondary institution to “contract[] with a professional employee of a
school entity for purposes of a concurrent enrollment program if the professional
employee meets all [the] qualifications for an adjunct faculty member at the eligible
postsecondary institution.” 24 P.S. §16-1604-B(b).
Given this, it is difficult to discern any real substantial difference between
Palisades and this case or between an Act 46 dual enrollment program or one created
under section 1525 of the School Code. Both Act 46 and section 1525 envision that,
in a dual enrollment program, high school students will take college/postsecondary
courses that are taught by a faculty member or adjunct faculty member of the
college/postsecondary institution itself. True, it is theoretically possible that the
College could hire a teacher of the District to teach college courses offered by the
College, assuming such a teacher possesses the necessary qualifications and/or
licensure. However, as explained in Palisades, “the host college is under no obligation
to do so and certainly has no bargain obligation with the [u]nion,” i.e., the Association,
and, as such, “[t]he District is simply without [the] authority to give the work to the
bargaining unit.” Palisades, 37 PPER at 168, 2006 PA PED LEXIS 44, at **5, 8.
Moreover, in an unfair labor practice action against a public employer for unilaterally
removing bargaining unit work from a union, the union has the burden of establishing
23
“that the work in question has been performed exclusively by the bargaining unit.”
American Federation of State, County, and Municipal Employees, Council 13, AFL-
CIO v. Pennsylvania Labor Relations Board, 616 A.2d 135, 137-38 (Pa. Cmwlth.
1992). Here, akin to the situation in Palisades, the Association did not prove that the
District’s teachers, in the past, have performed, much less exclusively performed, the
instruction of college courses that are offered and designed by a college and must be
taken at the college for both high school and, potentially, college credits.
Nonetheless, assuming the pertinent teachers of the Association at the
District had some collective bargaining rights with respect to the instruction of courses
that are taught at a postsecondary institution, on the current record, it is almost
impossible to gauge the impact, if any, that the Agreement could have on the terms,
hours, or conditions of the Association’s teachers’ employment with the District. Even
if the substantive content of the courses taught at the College and the District
overlapped or were entirely duplicative in nature, there is no evidence that the high
school classes in those subjects that are taught at the District are eligible for the receipt
of college credits. Further, the teachers seemingly did not lose any hours or classes at
the District as a result of the Agreement or sustain any loss of income. Presumably,
and at most, the teachers underwent a slight reduction in the number of students that
attended their classes because eight students were at the College for half-days during
their senior year pursuant to the Agreement. But, absent concrete evidence, it is hard
to see how a numerical decrease in the number of students, alone, could be directly
related to the terms and conditions of employment or could, in general, be deemed a
matter that is reserved for collective bargaining. Indeed, such a decrease in student
attendance/enrollment could be accounted for in a variety of circumstances, implicating
numerous factors that are beyond the control of the District or its school board as a
24
decision-making body, e.g., students moving to another school district, decreases in
citizenship in the school district’s territory, an increase in drop-out rates, etc. In sum,
the Association has not adduced sufficient evidence to establish—and the PLRB did
not make any findings of fact that detail—the extent to which the Agreement affected
the wages, hours, terms, or conditions of the employment of the Association’s teachers.
Therefore, the net result of the balancing test in PERA also compels the
conclusion that the District’s decision to enter into the Agreement is not one that is
subjected to collective bargaining but, instead, was a matter falling within the
managerial prerogative of the District. On this basis, too, we conclude that the District
did not violate PERA and the PLRB erred in deciding to the contrary.
Conclusion
Accordingly, for all of the above reasons, we reverse the decision of the
PLRB.
________________________________
PATRICIA A. McCULLOUGH, Judge
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abington Heights School District, :
Petitioner :
: No. 404 C.D. 2021
v. :
:
Pennsylvania Labor Relations Board, :
Respondent :
ORDER
AND NOW, this 10th day of February, 2022, the March 19, 2021 final
order of the Pennsylvania Labor Relations Board is hereby reversed.
________________________________
PATRICIA A. McCULLOUGH, Judge