Alllegheny Intermediate Unit v. Allegheny Intermediate Unit Education Ass'n

NARICK, Senior Judge,

dissenting.

I respectfully dissent. I agree with the majority that Pennsylvania law favors the arbitrator’s decision in matters arising out of the interpretation of the provisions of a collective bargaining agreement, and that reviewing courts must give great deference to such decisions regarding matters of fact. In Scranton Federation of Teachers, Local 1147, AFT v. Scranton School District, 498 Pa. 58, 444 A.2d 1144 (1982), the Pennsylvania Supreme Court explained:

In labor disputes resolved by arbitration machinery, the less judicial participation the better____ Accordingly, the oft-repeated ‘essence’ test was adopted by this Court in 1977, ...

To state the matter more precisely, where a task of an arbitrator, PERA or otherwise, has been to determine the intention of the contracting parties as evidenced by their collective bargaining agreement and the circumstances surrounding its execution, then the arbitrator’s award is based on a resolution of a question of fact and is to be respected by the judiciary if ‘the interpretation can in any rational way be derived from the agreement, viewed in light of its language, its context, and any other indicia of the parties’ intention____ It was this approach which was meant to be suggested by the brief statement ... that ‘the arbitrator’s interpretation must be upheld if it is a reasonable one.’

Id., 498 Pa. at 64-65, 444 A.2d at 1147 (1982), (quoting Community College of Beaver County v. Community College of Beaver County, Society of the Faculty, 473 Pa. 576, 593-94, 375 A.2d 1267, 1275 (1977)) (citations omitted).¹

Section 7302 of the Uniform Arbitration Act, 42 Pa.C.S. § 7302 (Act), provides in part that:

a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of the subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.

This section does empower our courts to set aside arbitration awards which are against the law. It follows if the decision of an arbitrator is contrary to law, then it cannot be said to draw its essence from the collective bargaining agreement. We must, accordingly, substitute our judgment for that of the arbitrator in the same way that we make a substitution in cases involving a judgment notwithstanding the verdict. In this case, I believe that the decision of the arbitrator violates Section 1124 of the School Code.²

In this case the school district’s (School’s) position is that the arbitrator’s decision is contrary to Section 1124 of the Public School Code of 1949 (Code),³ and therefore does not derive its essence from the collective bargaining agreement. The School argues that because the arbitrator’s decision forces it to grant Kmetz-Donovic’s request for a transfer another professional employee will be furloughed as a result of that action even though none of the circumstances which would allow a furlough exist. This, the School believes, is contrary to the provisions of Section 1124 and prior decisions of this court.

I believe that this case is controlled by our interpretation of Section 1124 in McKeesport Area School District v. Cicogna, 125 Pa.Commonwealth Ct. 99, 558 A.2d 116 (1989), a decision which the majority attempts to distinguish. In that case the school district was faced with a situation of declining enrollment which required the dismissal of six teachers. The district used a “checkerboard” system of realigning its staff, whereby teachers were assigned to various positions within their respective certifications in order to lay off the least senior employees. The reassignments were made and six teachers were furloughed.

After the furloughs were determined, a teacher with dual certification who was slated for reassignment, dropped her second certification and avoided the change. As a consequence of this action, other shuffling ensued. The ultimate result of these subsequent changes was that a vacancy was created in the physical education department and the most junior business teacher, Mr. Cicogna, found himself without a position. Because Cicogna’s certification did not match the physical education vacancy, the school laid off Cicogna and rehired a physical education teacher previously furloughed.

When Cicogna came before this Court, we held that the layoff did not result from the decrease in enrollment which set the entire shuffle in motion. Rather, we found that the seventh layoff occurred because a dually certified teacher was permitted to drop a certification to avoid being moved. We were drawn to that conclusion by the inescapable fact that the school board had achieved the six furloughs required by the drop in enrollment before the certification change was made. Only after the certification change was made, did the seventh furlough become necessary. Id. In other words, but for the change in certification, Cicogna would not have been suspended.

It is significant that the realignment which spawned from the declining enrollment, as well as that occasioned by the change in certification, took place before school resumed. None of the furloughs took effect until the commencement of the school year, and yet we held that the seventh furlough was not the result of declining enrollment, even though that was the force that set the entire ball rolling.⁴

In Cicogna we held that Section 1124 established the only reasons that would support a suspension of a public school’s professional employee. A change in another employee’s certification is not included within that list of reasons, so we held that Cicogna’s suspension was improper. Id. Because we held that Section 1124 prevented the school board from allowing a teacher to change certification when it led to suspension of another teacher, I believe it also prevents a board from allowing a teacher to transfer into another program when that transfer accomplishes the same result.

Our rationale in Cicogna was based entirely on the restriction of the board’s actions imposed by Section 1124.⁵ We held that the statute enumerated the only reasons for a suspension. To have held otherwise would have been tantamount to saying that, in addition to the statutory criteria for furloughs, it is also appropriate to suspend an employee when another teacher elects to change her certification. We declined to broaden the statute in that way, and kept to a narrow reading of the act.

I can see no difference between the situation we faced in Cicogna and that which presents itself today. In Cicogna another teacher wanted to exercise her right to change her certification; in this case a teacher wants to exercise her right to transfer into another program, causing the furlough of the most junior psychologist. If Section 1124 prevents the exercise of rights in the first instance, so too, must it do so in the second.

I find the majority’s attempt to distinguish Cicogna unpersuasive. In essence, the majority’s position is that the difference between Cicogna and this case is that in Cicogna the school board performed a positive act when it authorized a fellow teacher’s decertification. In the case now before us, the majority finds no such positive act. This is factually incorrect. In this case the School authorized Kmetz-Donovic’s transfer from a teaching position to the Psychology Department. This authorization of transfer is a positive act, and to me, it is indistinguishable from the authorization for decertification found in Cicogna. Just as in Cicogna, but for this authorization no additional furloughs would be required. Therefore, the necessary conclusion is that the additional furlough will result from the School’s positive act.

After Kmetz-Donovic was displaced in the realignment process, there existed open teaching positions which she could have elected without causing any furlough. Her decision to request transfer into another program places the School on the horns of a dilemma under the majority’s decision. The School may not refuse the requested transfer in the majority’s view of this case, and it may not furlough a teacher as a consequence of the transfer under Cicogna. If the School permits the transfer, it commits a positive act and if that act results in the furlough of another employee the rule of Cicogna is offended.

Nor can it be pertinent to our inquiry under the Cicogna case whether the resulting furlough immediately follows the School’s act or whether there are other intervening employee moves. Under the checkerboard system of realignment a school district must take into consideration the fact that the employee immediately affected by the bump has the right to bump a less senior employee. In the case of an employee’s election to bump a less senior employee in the same building or program the bumping right is absolute and does not require a positive act by the School. Consequently, once the School permits Kmetz-Donovic’s transfer, it cannot stop the automatic checkerboard moves. The School’s only opportunity to prevent Siegal’s furlough is to refrain from granting Kmetz-Donovic’s transfer.

Because of our holding in Cicogna, I believe we must hold that it would be improper for a teacher to be suspended in order to accommodate another teacher’s transfer between programs. If we were also to uphold the arbitrator’s opinion that Kmetz-Donovic had a contractual right to transfer into the psychologist’s job, the practical effect of our holding would be that the School would be obliged to retain an employee for which it had no position. Such an impractical and economically unsound result ought to be avoided.

For these reasons, I respectfully dissent.

1 . The Pennsylvania standard mirrors the federal standard explained in United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The United States Supreme Court established the federal policy that arbitration under a collective bargaining agreement is the preferred manner of the resolution of labor disputes and the less judicial participation the better. Further, the court stated:

[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may, of course, look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation courts have no choice but to refuse enforcement of the award (emphasis added).

Id. at 597, 80 S.Ct. at 1361.

2 . The Uniform Arbitration Act substantially continues the standard of review which was established in the Arbitration Act of 1927, Act of April 25, 1927, formerly 5 P.S. §§ 161-179, repealed by Act of October 5. 1980. P.L. 693.

3 . Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1124.

4 . Judge Palladino, dissenting in Cicogna, construed the seventh layoff as a precipitate of the declining enrollment, and consequently, sanctioned that layoff.

5 . See also, Hixson v. Greater Latrobe School District, 52 Pa.Commonwealth Ct. 92, 421 A.2d 474 (1980).