          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chester Upland School District,                :
                       Petitioner              :
                                               :
               v.                              :   No. 2599 C.D. 2015
                                               :   Argued: October 17, 2016
Pennsylvania Labor Relations Board,            :
                        Respondent             :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge

OPINION
BY JUDGE SIMPSON                               FILED: November 16, 2016

               In this labor relations case, the Chester Upland School District
(District) petitions for review of a Final Order of the Pennsylvania Labor Relations
Board (Board) that determined the District committed unfair labor practices within
the meaning of Sections 1201(a)(1) (interfering with employee rights) and (a)(5)
(refusing to bargain collectively in good faith) of the Public Employe Relations
Act (PERA),1 43 P.S. §§1101.1201(a)(1), (5). The Board’s order also required that
the District rescind an attendance and punctuality policy it unilaterally imposed
during the 2013-14 school year after the June 30, 2013 expiration of the District’s
respective collective bargaining agreements (CBAs) with the Chester Upland
Educational Association, PSEA/NEA, and the Chester Upland Educational Support
Personnel Association, PSEA/NEA (collectively, Unions). The District contends



      1
          Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§1101.101-1101.2301.
the Board erred in determining it committed unfair labor practices by
implementing its new policy. For the reasons that follow, we affirm.


                                  I. Background
                                   A. Generally
             The Board found the following pertinent facts. The District and the
Unions are parties to respective CBAs that expired on June 30, 2013. In August
2013, the District notified its employees of a new attendance and punctuality
policy. The Unions responded with a letter asserting the new policy changed the
terms and conditions of employment and therefore constituted a mandatory subject
of bargaining that must be agreed upon by both parties prior to implementation.


             In October 2013, the Unions objected to the new policy on the basis
that it was a mandatory subject of bargaining. The District, however, disagreed.
During collective bargaining negotiations in October and November 2013, the
District took the position that the policy merely explained how absences would be
tracked, and that the District did not alter the way employees could use sick leave
or change any of the disciplinary consequences associated with absences. In
particular, the District asserted that discipline applied under the new policy is not
any different than the discipline that could have been applied prior to the adoption
of the new policy.      The Unions, however, requested that the District stop
implementation of the policy until it was properly bargained.        Thereafter, the
Unions filed unfair labor practice charges asserting that its unilateral
implementation of the new policy violated PERA.




                                         2
             In January 2014, the Secretary of the Board issued a complaint and
notice of a hearing. Prior to the hearing, the parties agreed to submit stipulations
and joint exhibits in lieu of testimony.


                     B. District’s Codified Sick Leave Policy
             With regard to sick leave, described as “Attendance Protocol,” the
policy includes the following features:

             After the third day of absence for personal illness:

                 An informal conversation with your rating officer
                 Note on the Attendance Ledger that the
                  conversation took place
                 A memo documenting the conversation

             After the fifth day of absence for personal illness:

                 A warning memo and copy of current Attendance
                  Ledger
                 Memo and copy of the ledger placed in the school
                  or appropriate office file

             After the seventh day of absence for personal illness:

                 Unsatisfactory Incident Memo
                 Conference with the rating officer and union
                  representation
                 Documents forwarded for review to the Deputy
                  Superintendent
                 The Deputy Superintendent will forward the
                  documents to the official personnel file

             After the ninth day of absence for personal illness:

                 Unsatisfactory Incident Memo
                 A conference with the rating officer and union
                  representation



                                           3
                 Documents     forwarded       to    the   Deputy
                  Superintendent (instructional) or the Director of
                  Human Resources (non-instructional) for a second
                  level hearing

Joint Ex. No. 3; Reproduced Record (R.R.) at 122a.


   C. Initial Approach: Hearing Examiner’s Proposed Decision and Order
            Before Hearing Examiner Stephen A. Helmerich (Hearing Examiner),
the Unions alleged the District violated Section 1201(a)(5) of the PERA by
refusing to bargain with regard to the attendance and punctuality policy before
unilaterally implementing the policy. The Unions also alleged the District’s failure
to collectively bargain over a mandatory subject of bargaining would discourage
union membership.


            In his Proposed Decision and Order (PDO), Hearing Examiner
reasoned that in order to determine whether a particular issue is a subject of
mandatory bargaining, the Board must apply a balancing test to determine whether
the impact of the issue on the interest of the employee in wages, hours, and other
terms and conditions of employment outweighs its probable effect on the basic
policy of the school system as a whole. Pa. Labor Relations Bd. v. State College
Sch. Dist., 337 A.2d 262 (Pa. 1975). Pursuant to Sections 702 and 703 of PERA,
matters of inherent managerial policy and matters in which the employer may not
agree because of prohibitive language in another statute are not subjects of
mandatory bargaining. 43 P.S. §§1101.702, 1101.703. The Board and the courts
also recognize that no violation of the statutory duty to bargain may be found: (1)
if there is no change to past practice, Clark Summit Borough, 29 PPER 29126



                                         4
(Final Order 1998); (2) if the change involved a matter of inherent managerial
policy, Joint Bargaining Comm. of Pa. Social Servs. Union v. Pa. Labor Relations
Bd., 469 A.2d 150 (Pa. 1983); or, (3) if the employer is contractually privileged to
make the change, Pa. State Troopers Ass’n v. Pa. Labor Relations Bd., 761 A.2d
645 (Pa. Cmwlth. 2000). The party asserting the commission of an unfair labor
practice bears the burden of establishing the violation by substantial and legally
credible evidence. Pa. Labor Relations Bd. v. Kaufman Dep’t Stores, 29 A.2d 90
(Pa. 1942).


              Initially, Hearing Examiner noted, several Board decisions hold that
sick leave policies are mandatory subjects of bargaining under the State College
test. See Greater Johnstown Educ. Ass’n v. Greater Johnstown Sch. Dist., 19
PPER 19112 (Final Order 1988); Southeast Delco Educ. Ass’n v. Southeast Delco
Sch. Dist.; 28 PPER 28013 (Proposed Decision and Order, 1996); Ne. Educ.
Intermediate Unit No. 19, 14 PPER 14239 (Proposed Decision and Order, 1983).


              However, Hearing Examiner determined the Unions failed to meet
their evidentiary burden of showing the District’s unilateral implementation of the
new attendance and punctuality policy changed the terms and conditions of
employment covered by the policy.         In support, Hearing Examiner cited the
Board’s decision in Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia,
31 PPER 31023 (Final Order 2000), where a police union failed to establish that a
codification of disciplinary action regarding off-duty activities resulted in a change
to the terms and conditions of employment. In that case, the Board determined the
union failed to show a change in the status quo ante because it could not prove the



                                          5
City did not previously apply the disciplinary action in question to off-duty
activities prior to codification. In short, the union failed to show there were any
new sources of discipline under the new policy.


             Applying the City of Philadelphia rationale to the facts in the present
case, Hearing Examiner determined the Unions failed to demonstrate by substantial
and legally credible evidence that there were any new sources of discipline under
the District’s new attendance and punctuality policy.      PDO at 8.     Therefore,
Hearing Examiner determined the Unions failed to show the new policy changed
the terms and conditions of employment. Id. Hearing Examiner also observed that
although the Unions presented evidence that employees were disciplined under the
new policy for their absences, they failed to present any evidence that the
discipline applied differed from the discipline that would have been applied prior
to implementation of the new policy. Id.


             Because the Unions failed to meet their evidentiary burden of showing
a change in terms or conditions of employment, Hearing Examiner dismissed the
Unions’ charge of unfair labor practices. PDO at 8. Accordingly, in July 2015,
Hearing Examiner issued an order dismissing the Unions’ complaints. Id.


                  D. Different Approach: Board’s Final Order
             The Unions timely filed exceptions. See R.R. at 156a-60a. In its
Final Order, the Board took a different approach. First, the Board added the two
following findings of fact:




                                           6
            28. The CBA between the [Chester Upland Education
            Association] addressed sick leave in Article XXIII.
            Article XXIII(A) provides as follows:

            All bargaining unit members employed shall be entitled
            to eleven (11) sick leave days each school year as of the
            first official day of said school year whether or not they
            report for duty on that day. Unused sick leave days shall
            be accumulated from year to year with no maximum
            limit.

            29. The CBA between the [Chester Upland Educational
            Support Personnel Association] addressed sick leave in
            Article XIX. Article XIX provides as follows:

            Each full-time non-probationary employee shall be
            entitled to eleven (11) sick days per year which shall
            accrue as of July 1 of each year. New full-time non-
            probationary employees shall accrue sick leave on the
            basis of one (1) sick day for each month worked which
            shall be retroactive to the date of employment upon
            completion of probation. Employees shall be required to
            submit a doctor’s note after three consecutive days of
            absence for illness.

Final Order at 1-2 (Findings of Fact No. 28, 29).


            Second, the Board took a different approach to its reasoning.
Generally, the Board noted, a complainant bears the burden of proof on a charge of
unfair labor practices alleging a change in wages, hours or working conditions.
However, the Board and this Court also recognize that where an employer issues a
unit-wide policy unilaterally altering or defining the terms in a CBA, the
complainant establishes a prima facie case of failure to bargain in good faith.
Wilkes-Barre Township v. Pa. Labor Relations Bd., 878 A.2d 977 (Pa. Cmwlth.
2005). Further, where an employer’s unilaterally imposed policy differs from the



                                         7
express words of the CBA, the burden of proving that there is, in actuality, no
change with respect to the application of negotiated terms and conditions of
employment lies with the employer as a defense to the charge. Springfield Educ.
Ass’n v. Springfield Sch. Dist., PERA-C-04-83-E (Proposed Decision and Order,
2005); Sto-Rox Educ. Ass’n v. Sto-Rx Sch. Dist., 34 PPER 67 (Proposed Decision
and Order, 2003).


             Here, the Board observed, the stipulated evidence established that the
District’s new attendance and punctuality policy differed from the express terms of
the CBAs with respect to employees’ sick leave entitlement and usage. Therefore,
the Board reasoned, the Unions satisfied their burden of proving an unlawful
unilateral change to negotiated working conditions for purposes of Section
1201(a)(5) of PERA (refusal to bargain collectively). As such, the burden of proof
shifted to the District to defend against the charge by establishing that
implementation of the new policy effected no actual change to the contract terms
because application of the policy was consistent with binding past practices
regarding sick leave and discipline. Final Order at 4.


             The Board noted the District stipulated it did not impose any
discipline on any Union employee different from that which could have been
imposed prior to the adoption of the new policy. However, the Board noted, that
stipulation does not amount to an admission by the Unions that the District
imposed discipline for sick leave prior to the implementation of the new policy.
Also, the stipulation does not constitute substantial evidence that the District had,
in fact, imposed discipline prior to implementation of the new policy.



                                         8
              In short, the Board reasoned, in the absence of substantial evidence
showing a past practice of issuing similar discipline under the CBAs for the
employees’ use of sick leave, the District failed to establish a defense to its unfair
labor practice violations under Sections 1201(a)(1) (interfering with employees’
rights under PERA) and 1201(a)(5) (refusal to bargain collectively) of PERA.


              Therefore, the Board sustained the Unions’ exceptions and vacated
Hearing Examiner’s Proposed Order. The Board also directed the District to cease
and desist from its unfair labor practices. Further, the District must rescind the
new attendance and punctuality policy and restore the status quo ante; rescind any
discipline imposed on employees under the new policy; and, make the employees
whole for any lost wages or benefits resulting from said discipline. The District
petitions for review.2


                                       II. Discussion
                                       A. Argument
                                    1. Legal Standard
              The District contends the Board erred in determining it committed
unfair labor practices by implementing the new policy. The District first claims
the Board applied an incorrect legal standard by shifting the burden of proof to

       2
         Our review of a final order of the Board is limited to determining whether the Board’s
necessary findings of fact are supported by substantial evidence, whether the Board erred as a
matter of law, committed a procedural irregularity, or violated any constitutional rights.
Lancaster Cnty. v. Pa. Labor Relations Bd., 124 A.3d 1269 (Pa. 2015). Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Id. However, substantial evidence is more than a mere scintilla, it must do more than create a
suspicion of the fact to be established. Id.



                                              9
establish an unfair labor practice from the Unions as complainant to the District as
the respondent. In unfair labor practice proceedings, the burden of proof is on the
complainant. Kaufman Dep’t Stores. Therefore, the District asserts, the Board
erred in shifting the burden of proof on the basis that the District unilaterally
implemented a unit-wide policy altering or defining the negotiated terms of the
CBA. Thus, assuming the burden of proof remained with the Unions, the District
argues the Unions failed to produce any evidence that the District imposed any
discipline under the new policy that it did not impose under the CBA.


             The District also asserts the Board erred in finding that the difference
between the new policy and the express terms of the CBAs with respect to sick
leave entitlement and usage constituted substantial evidence and established the
Unions’ prima facie case supporting an unfair labor practice charge of failure to
bargain in good faith. The new policy and the CBAs each provided for 11 days of
sick leave per year.


             The District further argues the Board’s reliance on Wilkes-Barre
Township is misplaced. The Board maintains there was no shifting of the burden
in Wilkes-Barre Township, and the Court explained that the role of the Board is to
remedy violations of statutes (e.g., unfair labor practices under PERA), not
violations or breaches of contract. Rather, the Board is empowered to review an
agreement to determine whether the employer repudiated the agreement’s terms.
Id. Such repudiation may constitute an unfair labor practice and give rise to a
grievance. Id.




                                         10
             In particular, the District asserts, a review of the new policy and the
sick leave provisions of the CBAs indicate that in adopting the new policy, the
District did not repudiate or reject the terms of the CBAs. Under the Board’s
rationale, the District argues, any change in a policy remotely related to the terms
in the CBAs, no matter how insubstantial, would shift the burden of proof to the
employer to demonstrate there is no factual change to the policy. In other words,
the District asserts, if an employer implements a policy that relates at all to the
language of the CBA without bargaining on the matter, it would have committed
an unfair labor practice.


             The District argues this rigid reading of the law is arbitrary and
unreasonable. In addition, it is not supported by appellate court decisions. Rather,
the case law states the employer’s implementation of the policy must amount to an
actual repudiation of the contract.


             Here, the District argues, by no stretch of the imagination can its new
policy be read as a repudiation of the sick-day provisions of the CBAs. The new
policy did not reduce the amount of 11 cumulative sick days. Rather, the policy
provides guidance on how the attendance and sick leave are to be tracked and
monitored. The CBAs did not address the procedure for tracking and monitoring
the 11 days of sick leave permitted.


             Further, the District argues, the Unions presented no evidence that the
District implemented a policy differing from the District’s past practice.




                                        11
Therefore, the District maintains it is irrational for the Board to impose that burden
on the District.


                            2. Managerial Prerogative
             The District also contends the ultimate issue in this case is whether the
new policy concerns a mandatory subject of bargaining or falls within the
District’s management prerogative.      The District asserts that when addressing
topics which straddle the boundary of mandatory subjects of bargaining and
managerial prerogatives, the proper approach is to inquire whether collective
bargaining over the topic would infringe upon the public employer’s managerial
responsibilities. Borough of Ellwood City v. Pa Labor Relations Bd., 998 A.2d
589 (Pa. 2010). If so, it will be considered a managerial prerogative not subject to
collective bargaining. Id. If not, the topic is subject to mandatory collective
bargaining. Id. Here, the District asserts the Board’s conclusion that the District’s
unilateral implementation of the new policy established a prima facie case of
refusal to bargain utterly disregards the mandate of Ellwood City that a
determination first be made as to whether the District, in adopting the new policy,
was properly exercising its managerial prerogative.


             To that end, the District asserts it has an obligation to the public to
provide continuous instruction to its students. Thus, it is a matter of the highest
public concern that teachers and other school employees show up to work and not
create a disruption of the educational process. Continued or long-term absences
require additional planning and the hiring of substitute personnel. Otherwise,




                                         12
students will suffer a loss of instructional time and disruption of the learning
process.


             The District further points out the courts recognize that in public
employment, certain areas must remain under the employer’s prerogative. See
Chambersburg Area Sch. Dist. v. Pa. Labor Relations Bd., 430 A.2d 740 (Pa.
Cmwlth. 1988) (school’s right to unilaterally prohibit smoking is an inherently
managerial prerogative under State College balancing test); PSSU Local 668,
SEIU, AFL-CIO, CLC v. Dep’t of Pub. Welfare, PERA-C-98-353-E (Final Order
1999) (under State College balancing test, evidence did not show dress code
policy’s impact on employee’s substantial interests in the professional delivery of
services).


             In this matter, the District maintains it has the right, and even a duty,
to the public to inquire into its employee’s absences under certain circumstances.
It owes that obligation to the students and their parents. If an employee is absent
because of sickness for an extended period, the District must determine what
corrective measures or assistance, if any, the District can render to return the
employee to the schools.


                                    B. Analysis
             In its Final Order, the Board determined the District committed unfair
labor practices under Section 1201(a) (1) and (5) of PERA by unilaterally
implementing its new attendance and punctuality policy, which differed from the




                                         13
employees’ negotiated sick leave benefits under their respective CBAs. Wilkes-
Barre Twp. In explaining its decision, the Board stated (with emphasis added):

            Where an employer’s unilaterally imposed policy differs
            from the express words of a [CBA], the burden of
            proving that there is in fact no change with respect to the
            application of negotiated terms and conditions of
            employment lies with the respondent as a defense to the
            charge.    E.g. Springfield Education Association v.
            Springfield School District, PERA-C-04-83-E (Proposed
            Decision and Order, 2005); Sto-Rox Education
            Association v. Sto-Rox School District, 34 PPER 67
            (Proposed Decision and Order, 2003).

                  Because the stipulated evidence established that
            the District’s Policy differs from the express terms of the
            CBAs with respect to employes’ sick leave entitlement
            and usage, [the Unions] satisfied their burden of proving
            an unlawful unilateral change to negotiated working
            conditions under Section 1201(a)(5) of PERA. As such,
            the burden of proof shifted to the District to defend
            against the charge by establishing, through evidence,
            testimony or stipulations, that its unilaterally
            implemented Policy effected no actual change to the
            contract terms because application of the Policy was
            consistent with a binding past practice regarding sick
            leave usage and discipline.

                   Here, the District stipulated that ‘[i]t is the position
            of the District that the District has not imposed any
            discipline on any employee represented by [the Unions]
            different than the discipline that there could have been
            implemented prior to the adoption of the policy.’
            (Stipulation 24, emphasis added). That stipulation, as
            stated, is not an admission by [the Unions] that discipline
            for sick leave usage was imposed prior to implementation
            of the Policy; nor is it substantial evidence that the
            District had in fact imposed discipline for sick leave use
            prior to the implementation of the Policy. In the absence
            of substantial evidence introduced by the District to show
            a past practice of issuing prior similar discipline under


                                          14
             the CBAs for employes’ sick leave use, the District has
             failed to establish a defense to its violation of Section
             1201(a)(1) and (5) of PERA. See [Springfield Sch. Dist.;
             Sto-Rox Sch. Dist.]

                    After a thorough review of the exceptions and all
             matters of record, [the Unions] have sustained their
             burden of establishing that the District violated Section
             1201(a)(1) and (5) of PERA by unilaterally implementing
             a Policy that differed from the employes’ negotiated sick
             leave benefits in the CBAs. [Wilkes-Barre Twp.] The
             exceptions filed by [the Unions] shall therefore be
             sustained ….

Final Order at 4-5.


                            1. Managerial Prerogative
             An administrative agency’s interpretation of a statute within its own
area of expertise must be given controlling weight unless it is clearly erroneous.
Lancaster Cnty. v. Pa. Labor Relations Bd., 124 A.3d 1269 (Pa. 2015).
Appreciating the competence and knowledge an agency possesses in its relevant
field, an appellate court will not lightly substitute its judgment for that of a body
whose expertise makes it better qualified than a court of law to weight the facts.
Id. This high level of deference is especially significant in the complex area of
labor relations. Id.


             Section 1201(a)(5) of PERA provides that public employers commit
an unfair labor practice by refusing to collectively bargain in good faith with an
employee representative. 43 P.S. §1101.1201(a)(5). In particular, an employer
commits an unfair labor practice by making a unilateral change in a subject of
mandatory bargaining without prior collective bargaining with the designated


                                         15
representative. Cnty. of Delaware v. Pa. Labor Relations Bd., 735 A.2d 131 (Pa.
Cmwlth. 1999). To determine whether a specific issue is a subject of mandatory
bargaining, the Board must determine whether the impact of the issue on the
employee’s interests in wages, hours, and other terms and conditions of
employment outweighs its effect on the basic policies of the school district as a
whole. State College; Cnty. of Delaware.


             Here, both Hearing Examiner and the Board determined the District’s
implementation of the new attendance and punctuality policy constituted a
mandatory subject of collective bargaining under the State College test.


             The District contends the Board erred by failing to take into account
the mandate of the Supreme Court in Ellwood City to determine whether the
District was properly exercising its managerial prerogative in adopting and
implementing its new attendance and punctuality policy. In Ellwood City, the
Supreme Court recognized that Section 702 of PERA states that public employers
shall not be required to bargain over matters of inherent managerial policy
including “‘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.’” Ellwood
City, 998 A.2d at 599 (quoting Section 702 of PERA). Citing State College, the
Court noted that certain topics concern subjects which are essential to a public
employer’s managing of its employees and the running of its enterprise, but also
there are certain matters that directly implicate the public welfare and should be
insulated from the give and take of collective bargaining.



                                         16
              Affording the rationale in Ellwood City due consideration, we
nevertheless discern no error in the Board’s application of the State College test to
the facts in the present case. There are several reasons for our conclusion. First,
the Board has a history of treating sick leave policies as mandatory subjects of
collective bargaining under the State College balancing test.           See Greater
Johnstown Educ. Ass’n; Springfield Sch. Dist.; Sto-Rox Sch. Dist. This is the type
of issue where the Board’s determination is due deference. Lancaster Cnty.


              Second, we agree with the Board’s conclusion based on our
independent review and on a prior decision of this Court. The District’s new
policy does not lessen the total amount of sick days allowable. Rather, it now
imposes progressive discipline upon employees for using their allotted sick days
for personal illness. Given these facts, the unilaterally implemented disciplinary
provisions of the new policy distinctly impact the employees’ terms and conditions
of employment to a greater extent than they affect the basic policies of the school
district. This analysis and conclusion are consistent with our decision in a prior
appeal from the Board, Abington Transportation Association v. Pennsylvania
Labor Relations Board, 570 A.2d 108 (Pa. Cmwlth. 1990) (affirming Board’s
determination that rules regarding tardiness/absenteeism and absences of three
consecutive days fall under the category of mandatory subjects of bargaining rather
than the school district’s inherent managerial prerogatives). Therefore, we reject
the District’s argument that implementation of the new policy was exempt from
bargaining.




                                         17
                                2. Legal Standard
            In vacating Hearing Examiner’s dismissal of the charges, the Board
determined the stipulated evidence established the District’s new policy differed
from the terms of the CBAs with respect to sick leave entitlement and usage. Final
Order at 4. Therefore, the Board determined the Unions satisfied their initial
burden of proving an unlawful unilateral change to the negotiated working
conditions. Id.


            We agree. The District’s new policy does more than simply monitor
and track employees’ use of sick leave. Rather, it imposes progressive discipline
based on an employees’ use of the allotted 11 days. The new policy provides for
the issuance of: a memo after three nonconsecutive days; a “warning memo” after
the fifth day of absence; an “unsatisfactory incident memo” is placed in the
employee’s file after the seventh day of absence; and, a second “unsatisfactory
incident memo” is placed in the employee’s file and the matter is reported to the
District’s Deputy Superintendent of Human Resources for a hearing after the ninth
day of absence. Final Order at 5. Although the parties’ respective CBAs provide
for disciplinary action based upon just cause, the District’s new policy imposes
discipline for absences based solely on personal illness. As such, the District’s
policy unilaterally changes the terms and conditions of employment.


            An employer’s unilateral implementation of a change in the terms and
conditions of employment is an unfair labor practice regardless of whether it takes
place during the terms of a CBA, following the expiration of the CBA or during
the course of negotiations. Commonwealth v. Pa. Labor Relations Bd., 459 A.2d



                                        18
452 (Pa. Cmwlth. 1983). Here, the sick leave provisions in the CBAs did not
impose any disciplinary steps for the amount of sick leave used. See Final Order,
F.F. Nos. 28, 29.    As such, the District’s new policy, on its face, provided
substantial evidence of a unilateral change in the terms and conditions of
employment.


             As to the burden on the District to respond to the prima facie
determination of unfair labor practice, we detect no error. Our conclusion is
consistent with our prior decision in Wilkes-Barre Township. In Wilkes-Barre
Township, this Court, speaking through Judge (now President Judge) Leavitt,
addressed the affirmative defense of contractual privilege. The affirmative defense
calls for dismissal of a charge of unfair labor practice by unilateral modification
where the employer establishes a sound arguable basis in the CBA for the claim
that the employer’s action was permissible under the CBA. Wilkes-Barre Twp.,
878 A.2d at 983. However, the sound arguable basis requirement is not met by “an
action that attempts to expand contractual terms through unilateral adoption of
managerial policies that are not in response to a specific contractual claim and have
unit-wide application.” Id.     Since we face a similar dispute here, placing the
burden of proof on the District to more fully establish its sound arguable basis in
the CBA is consistent with our holding in Wilkes-Barre Township.


             We also reject the District’s argument that the Unions bore the burden
of showing there were no past practices regarding the imposition of discipline
outside of the express terms of the CBAs. To the contrary, a line of Board
decisions indicate the Board regularly relies on the employer to establish that a



                                         19
codification of its past practices or unwritten work policies did not constitute a
change in terms and conditions of employment so as to constitute an unfair labor
practice. See Pa. State Troopers Ass’n v. Pa. State Police, 36 PPER 67 (Final
Order 2005); United Steel Paper Forestry Rubber Mfg. Energy Allied Indus. and
Serv. Workers Int’l v. McDonald Borough, 44 PPER 104 (Proposed Decision and
Order, 2013); Teamsters Local No. 25 v. Elizabeth Twp., 39 PPER 12 (Proposed
Decision and Order, 2008); Sto-Rox Educ. Ass’n. Rather, an employer’s assertion
of a past practice is procedurally consistent with a defense to a charge of refusal to
bargain. Fraternal Order of Police, Conservation Police Officers, Lodge No. 114,
v. Fish and Boat Comm’n, 42 PPER 48 (Proposed Decision and Order, 2011).


             Here, the Board found the stipulated evidence did not establish the
District imposed discipline for use of sick leave prior to implementation of the new
policy. Final Order at 4. Although the District stipulated it could have imposed
the same discipline under the sick leave provisions in the CBAs, this is insufficient
to establish the District had in fact imposed such discipline prior to implementation
of the new policy. Id. Absent any evidence that a past practice ever actually
occurred, there is insufficient evidence that such a practice was accepted by the
parties. Cnty. of Allegheny v. Allegheny Cnty. Prison Emp. Indep. Union, 381
A.2d 849 (Pa. 1978). Therefore, we discern no error or abuse of discretion in the
Board’s determination that the District failed to present substantial evidence that
the discipline issued under the new policy was consistent with discipline issued
under the sick leave provisions of the CBA.




                                         20
                                III. Conclusion
            For the above reasons, we detect no error or abuse of discretion in the
Board’s determination that the District’s unilateral implementation of its new
attendance and punctuality policy, which differed from the employees’ negotiated
sick leave benefits in the CBAs, violated Sections 1201(a)(1) and (5) of PERA.
Accordingly, we affirm the Board’s Final Order.




                                     ROBERT SIMPSON, Judge




                                       21
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chester Upland School District,        :
                       Petitioner      :
                                       :
           v.                          :   No. 2599 C.D. 2015
                                       :
Pennsylvania Labor Relations Board,    :
                        Respondent     :


                                    ORDER

           AND NOW, this 16th day of November, 2016, for the reasons stated
in the foregoing opinion, the Final Order of the Pennsylvania Labor Relations
Board is AFFIRMED.




                                      ROBERT SIMPSON, Judge
