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

PELLEGRINI, Judge. This is an appeal from the Court of Common Pleas of Allegheny County affirming an arbitration opinion and award between the Allegheny Intermediate Unit (School District) and the Allegheny Intermediate Unit Education Association (Union), involving a dispute that arose as a result of a staff realignment when the School District refused a teacher’s request to transfer to another program. This dispute stems from a sequence of personnel moves known as “bumps” made as a result of the realignment of professional staff pursuant to the Section 54(c) of the collective bargaining agreement between the School District — 455 — and the Union.1 These moves began when Jeanne Kmetz-Donovic was bumped from her teaching position by another teacher with more seniority. Because Kmetz-Donovic, in addition to holding several teaching certificates, was certified as a school psychologist, she exercised her right to bump Krall, who bumped school psychologist Strommer, who bumped school psychologist Siegal. Siegal could not bump any other professional employee because he was only certified as a school psychologist and had less seniority than any other professional employee who-bumped into the school psychologist position. The School District refused to allow Kmetz-Donovic’s bump, because allowing that bump would set forth the sequential bumps that could result in Siegsal being furloughed. In its written refusal, the School. District explained that if it allowed the request, additional realignments would have occurred, the ultimate result of which would be the furlough of Siegal, the least senior psychologist. The School District further explained that Siegal, who had eight years’ seniority as a psychologist, would have to be furloughed, because the only open positions were for — 456 — teachers and he had no teaching certificate. The School District stated that it could not furlough the psychologist because Section 1124 of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1124, dictates the only circumstances which would permit such action, and those circumstances did not exist. The School District offered Kmetz-Donovic her choice of teaching positions instead. Kmetz-Donovic filed a grievance because she was denied the job of school psychologist. The parties were unable to reach an accord and the matter was referred to an arbitrator. In interpreting Section 54(c) of the collective bargaining agreement, the arbitrator found that nothing prohibits a teacher from bumping into a psychologist position, even if that bump ultimately results in the furloughing of an employee who has more seniority than other employees who are not being furloughed. The School District appealed the arbitrator’s decision to the trial court, which found that the arbitrator’s decision was drawn from the essence of the agreement and dismissed the School District’s appeal. The instant appeal followed. Our scope of review in matters appealing an arbitrator’s decision is very limited. The arbitrator’s decision will not be overturned as long as it draws its essence from the collective bargaining agreement. Leechburg Area School District v. Dale, 492 Pa. 515, 424 A.2d 1309 (1981). This “essence test” has been explained by our Supreme Court as follows: This so-called 'essence test’ draws its origins from federal decisional law which mandates judicial deference to an arbitrator’s findings. ‘It is the arbitrator’s construction which was bargained for, and so far as the arbitrator’s decision concerns the construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.’ United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960). — 457 — The essence test requires a determination as to whether the terms of the agreement encompass the subject matter of the dispute. Where it is determined that the subject matter of the dispute is encompassed within the terms of the agreement, the validity of the arbitrator’s interpretation is not a matter of concern to the court. Id. 492 Pa. at 520-21, 424 A.2d at 1312-13. The School District contends that the arbitrator’s decision is not derived from the essence of the collective bargaining agreement for several reasons. First, it contends that the arbitrator exceeded his authority by finding that Section 1125.1 of the School Code2 does not allow it to reject a personnel move if it deems it to be educationally unsound. In Dallap v. Sharon School District, 524 Pa. 260, 571 A.2d 368 (1990), our Supreme Court, interpreting Section 1125.1, held that in a realignment caused by declining enrollment, school districts must replace less senior employees with more senior employees who carry proper certification. The Supreme Court then stated: — 458 — [W]here circumstances admit of more than one possible realignment ... the district may consider the impact of each on the educational program to determine which is most sound, so long as within the chosen plan more senior employees are provided with the opportunity to fill positions for which they are certificated and which are being filled by less senior employees. Id. 571 A.2d at 370. The School District contends that it has a right to reject Kmetz-Donovic’s bump because such a personnel move would be educationally unsound and would result in less senior employees not being furloughed, both of which they contend are in violation of Section 1125.1 of the School Code. Assuming the School District’s argument is valid that Section 1125.1 provides that a school district may consider the educational needs of the district when making staff realignments, and that moves had to be made so that less senior employees were furloughed, that argument does not apply in this case. Subsection (e) of Section 1125.1 authorizes that collective bargaining agreement to establish different criteria for staff realignments, including the school district’s right to reject a personnel move because it deems it to be educationally unsound. Section 1125.1(e) of the School Code, 24 P.S. § ll-1125.1(e). The arbitrator ruled that Section 54(c) of the collective bargaining agreement removed from the School District the right to reject a personnel move because it purportedly was educationally unsound. Because this interpretation by the arbitrator draws its essence from the agreement, we will not disturb it on appeal. Next, the School District contends that the arbitrator’s decision fails to draw its essence from the collective bargaining agreement because it requires the School District to furlough an employee in contravention of Section 1124 of the Code. The School District argues that if Kmetz-Donovic is allowed to “bump” into a school psychologist position, this will lead to the furlough of Siegal, the most junior — 459 — psychologist. It contends that Siegal cannot be furloughed because his furlough is not a result of any statutory reasons permitted under Section 1124. Section 1124 of the School Code, 24 P.S. § 11-1124, provides: Any board of school directors may suspend the necessary number of professional employees, for any of the causes hereinafter enumerated: (1) Substantial decrease in pupil enrollment in the school district; (2) Curtailment or alteration of the educational program on recommendation of the superintendent, concurred in by the board of school directors, approved by the Department of Public Instruction, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction; (3) Consolidation of schools ...; (4) When new school districts are established as a result of reorganization of school districts ... In prior decisions, we have held that Section 1124 “enumerated reasons are the exclusive basis on which a suspension of a professional employee may be made ... A suspension on any other basis is invalid.” McKeesport Area School District v. Cicogna, 125 Pa.Commonwealth Ct. 99, 558 A.2d 116 (1989); Hixson v. Greater Latrobe School District, 52 Pa.Commonwealth Ct. 92, 95, 421 A.2d 474, 476 (1980). Relying on Cicogna, the School District contends that while Kmetz-Donovic’s bump may have resulted from a decrease in enrollment, the furlough of Siegal would not be for that reason or any other reason set forth in Section 1124. The School District’s reliance on Cicogna is misplaced. Cicogna dealt with six teachers being furloughed because of declining enrollment. There, after who was going to be — 460 — furloughed was determined, the school district approved the dropping of a certificate by a teacher with multiple certifications, resulting in the lay-off of Cicogna, who was not scheduled for furlough, and the recall of another teacher. We held that Cicogna was furloughed as a result of the school board’s positive action approving a teacher dropping a certification, not declining enrollment or any other reason set forth in Section 1124 of the School Code permitting a school district to furlough professional staff. In Cicogna, the crucial factor was that the school district participated in a process that resulted in the furlough of a particular teacher, not based on declining enrollment, but by taking an action that had the effect of distorting both who was going to be furloughed and the collective bargaining process. Nothing like that took place in this situation. There was no action here by the School District to affect who would be furloughed. It was the individual decision of every professional employee in the unit deciding where he or she was going to “bump” that resulted in the outcome of who was going to be furloughed. Each of those “bumps” that may eventually lead to Siegal’s lay off was the direct result of declining enrollment in the district. This result was mandated under the collective bargaining agreement, which gave each professional employee based on seniority the right to bid into any position he or she desired, without exception. If the School District wanted a different outcome in reduction of professional staff due to realignment, then it was incumbent on it to have negotiated for that outcome in the collective bargaining process. Because the parties have negotiated the method by which employees will’be furloughed as a result of declining enrollment and the furlough was for a reason set forth in Section 1124, the arbitrator’s decision is derived from the essence of the argument. Accordingly, the decision of the trial court dismissing the School District’s appeal from the arbitrator’s decision is affirmed. — 461 — ORDER AND NOW, this 3rd day of May, 1991, the order of the Court of Common Pleas of Allegheny County, No. GD8920374, dated January 18, 1990, is affirmed. Footnotes [1] Section 54(c) provides: C. Realignment 1. Following the determination of ECP/NPS program or center needs for the new school year, the program and centers will conduct their own realignment to determine teachers with the least amount of seniority within a center or program within their area of certification and these will be the teachers who will leave the center or program. Employees who do not choose a position at this time will have options (1) and (2) under C(5) — Realignment. 5. Teachers without specific assignments may select one of the open positions. In the event they do not select one of the open positions, there are two options: Option 1. They may select a position within their building or within their program occupied by a teacher with less seniority. Option 2. If they desire a position outside their building or program occupied by an employee with less seniority, they will be considered primarily on the basis of seniority in the ECP/NPS. However, they may also be considered on the basis of experience, seniority, teacher evaluation, academic background, preparation. If realignment request is denied, the Assistant Executive Director/NPS or designee of the ECP will notify the employee in writing of the reasons for denial. [2] Section 1125.1 provides in relevant part: (a) Professional employes shall be suspended under section 1124 (relating to causes for suspension) in inverse order of seniority within the school entity of current employment. Approved leaves of absence shall not constitute a break in service for purposes of computing seniority for suspension purposes. Seniority shall continue to accrue during suspension and all approved leaves of absence. (c) A school entity shall realign its professional staff so as to insure that more senior employes are provided with the opportunity to fill positions for which they are certificated and which are being filled by lesser senior employees. (e) Nothing contained in section 1125.1(a) through (d) shall be construed to supersede or preempt any provisions of a collective bargaining agreement negotiated by a school entity and an exclusive representative of the employes in accordance with the act of July 23, 1970 (P.L. 563, No. 195), known as the “Public Employe Relations Act”; however, no agreement shall prohibit the right of a professional employe who is not a member of a bargaining unit from retaining seniority rights under the provisions of this act. (Footnotes omitted.)