Harbor Creek School District v. Harbor Creek Education Ass'n

640 A.2d 899, 536 Pa. 574, 1994 Pa. LEXIS 141, 147 L.R.R.M. (BNA) 2793

Opinions

OPINION OF THE COURT

FLAHERTY

Footnotes

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*, Justice.

This is an appeal, by allowance, from an order of the Commonwealth Court which reversed an order of the Court of Common Pleas of Erie County granting a motion to quash an application for vacation of an arbitration award. The motion to quash had been filed by the Harbor Creek Education Association (association), appellant herein, in an effort to prevent the Harbor Creek School District (district), appellee, from challenging an arbitration decision.

At issue is whether the district’s transfer of certain duties to non-bargaining unit personnel is subject to arbitration. The factual background of the case is as follows.

The district maintains various extracurricular programs for its students, including an athletic program. The athletic program was, historically, overseen by an “athletic director.” The position of athletic director was voluntary and part-time in nature, and was occupied by a full-time teacher who was a member of the bargaining unit represented by the association. As the extracurricular activities offered by the district expand ed through the years, there developed a need for the athletic director to assume extracurricular responsibilities exceeding the bounds of athletics. Accordingly, the district issued a revised description for the position of “athletic director.” In response, the association filed a grievance challenging the new job description. An arbitrator sustained the grievance.

In 1989, the Board of School Directors (board) approved a resolution creating a new supervisory position, titled “Assistant Principal for Student and Supplemental Activities.” This position included, inter alia, all of the duties for which the athletic director had previously been responsible. The district informed the association that the position of athletic director had been eliminated and that Willard O’Neil would be the new assistant principal. Mr. O’Neil was a full-time elementary teacher who, until that time, had served also as the athletic director. He had applied for the new position, and voluntarily left his bargaining unit to assume his new responsibilities.

The association responded by filing another grievance. This time it alleged that elimination of the position of athletic director resulted in a transfer of bargaining unit work to a non-bargaining unit employee in violation of the collective bargaining agreement. After a hearing, an arbitrator found the grievance arbitrable and sustained it on the merits. The district subsequently filed in the trial court an application to vacate the arbitration award, arguing that the subject matter of the dispute was not arbitrable and that the award should;, therefore, be vacated.

The association contends that, because the collective bargaining agreement contains an appendix which lists the salary supplement to be paid to the athletic director, the position of athletic director constitutes bargaining unit work, and, hence, that disputes pertaining to the transfer of such work to non-bargaining unit employees are subject to arbitration. The association further contends that the determination of the arbitrator, as to the arbitrability of the dispute, must be upheld because of the narrow scope of review applicable to such determinations. See Scranton Federation of Teachers, Local 1147 v. Scranton School District, 498 Pa. 58, 65, 444 (1982) (“It is clear that the broad judicial deference given arbitrators’ decisions applies with equal force to determinations regarding the arbitrability of the subject matter of a grievance.”)

The district argues that grievance procedures set forth in the collective bargaining agreement are, by the express terms of the agreement, applicable only to professional employees, and that, when working as an extracurricular athletic director, Mr. O’Neil was not serving as a teacher or any other sort of professional employee. The district asserts that contractual grievance procedures do not apply when those who would otherwise be considered professional employees are engaged in extracurricular work.

The collective bargaining agreement expressly establishes that its grievance procedures exist for the benefit of professional employees. Article XXIV (“Grievance Procedures for Professional Personnel”). The professional employees in question are those who are members of the bargaining unit. The bargaining unit is defined as the unit certified by the Pennsylvania Labor Relations Board, consisting of “all full-time and regular part-time professional employees including but not limited to teachers, guidance counselors, librarians and nurses, excluding, however, all supervisors----” Article I (“Recognition”).

The Commonwealth Court held that teachers who are working in extracurricular capacities are not in fact functioning as “teachers,” and, thus, that they are not functioning as “professional employees” who can invoke the grievance procedures, such as arbitration, set forth in the collective bargaining agreement 146 Pa.Cmwlth. 631, 606 A.2d 666. We agree.

It is well established that parties cannot be compelled to arbitrate a dispute unless they have, by contract, agreed to arbitrate the particular issue involved. Lincoln University v. American Association of University Professors, 467 Pa. 112, 119, 354 A.2d 576, 580 (1976). “[Wjhether or not a matter is properly within the jurisdiction of the arbitrator depends upon the intention of the parties as expressed in the terms of the agreement.” Neshaminy Federation of Teachers v. Neshaminy School District, 501 Pa. 534, 540, 462 A.2d 629, 632 (1983). Clearly, too, the mere fact that parties have specified terms in a contract does not mean that they have agreed to any particular method of resolving disputes that arise from those terms.

Here, the parties agreed on a schedule of salary supplements, set forth in Appendices B and C of the collective bargaining agreement, to be paid for the performance of extracurricular work. In addition, Appendix D of the agreement provides that qualified bargaining unit members are to be given priority in filling vacancies in extracurricular positions, and that “established posting procedures will be used” to fill the vacancies.

In setting forth the grievance procedures available to professional employees, Article XXIV of the agreement defines “grievance” as “a complaint regarding the meaning, interpretation or application of any provision of this agreement.” (Emphasis added). Although the present agreement describes the manner in which vacancies in extracurricular positions are to be filled, and sets the salary supplements applicable to those positions, it does not expressly address the district’s power to eliminate such positions. Notwithstanding, the association contends that the present grievance concerns a provision of the collective bargaining agreement, and that it is, therefore, arbitrable.

The agreement does not address the question of whether employees performing extracurricular work are entitled to use the same grievance procedures that are available in connection with work performed in their professional capacities. Nevertheless, the agreement does state in Article VII that all after-hour assignments performed by teachers, whether paid or unpaid, except for class-related activities, are voluntary “non-teaching duties.” Thus, when performing non-teaching duties, teachers are not functioning in the professional capacities that render them professional employees for purposes of the bargaining agreement.

Traditionally, the courts have regarded disputes pertaining to extracurricular work performed by teachers as non-arbitrable on the ground that such work is not professional employment covered by the collective bargaining agreement, reasoning that it is work of a non-professional nature performed under agreements that are merely supplemental to the bargaining agreement. In re Grievance of Glover, 137 Pa. Commw. 429, 587 A.2d 25 (1991) (teacher employed in extracurricular capacity as athletic coach), appeal denied, 528 Pa. 633, 598 A.2d 286 (1991); Greater Johnstown Area Vocational-Technical School v. Greater Johnstown Area Vocational-Technical Education Association, 57 Pa.Commw. 195, 426 A.2d 1203 (1981) (teachers employed as advisors to an extracurricular student organization), appeal dismissed, 497 Pa. 586, 442 A.2d 692 (1982). Cf. Moriarta v. State College Area School District, 144 Pa.Commw. 359, 601 A.2d 872 (1992) (extracurricular athletic coach not functioning as a professional employee). This has been the result even in cases where, as here, the collective bargaining agreement sets forth salary supplements and other provisions applicable to the extracurricular work. In re Grievance of Glover, 137 Pa.Commw. at 431, 587 A.2d at 26; Ringgold School District v. Abramski, 57 Pa.Commw. 33, 39, 426 A.2d 707, 711 (1981). See also Greater Johnstown Area Vocational-Technical School, 57 Pa.Commw. at 200, 426 A.2d at 1205-06.

The present collective bargaining agreement contains no language that would have provided the arbitrator with a basis for deciding that the parties agreed to arbitrate disputes as to whether extracurricular duties performed by the athletic director could be assigned to non-bargaining unit personnel. Accordingly, the Commonwealth Court properly held that elimination of the position of athletic director was not subject to arbitration.

Order affirmed.

Mr. Justice LARSEN did not participate in the decision of this case. Mr. Justice PAPADAKOS files a dissenting opinion which is joined by Mr. Justice MONTEMURO. Mr. Justice MONTEMURO, who was an appointed justice of the court at the time of argument, participated in the decision of this case in his capacity as a senior justice.

This case was reassigned to this writer.