          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Northeast Bradford School District,      :
                                         :
                          Appellant      :
                                         :
                   v.                    : No. 2007 C.D. 2016
                                         : Argued: June 5, 2017
Northeast Bradford Education             :
Association, PSEA/NEA                    :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                           FILED: June 28, 2017


              Northeast Bradford School District (District) appeals from the
November 2, 2016 order of the Bradford County Court of Common Pleas (trial
court) denying the District’s petition to vacate an arbitration award. The arbitrator
concluded that the District violated the collective bargaining agreement (CBA)
between the District and the Northeast Bradford Education Association,
PSEA/NEA (Association) when it demoted three full-time professional employees
to part-time status. The arbitrator’s award ordered the District to reinstate the
employees to full-time status and make them whole with respect to wages and
benefits. For the following reasons, we affirm.
             By letter dated June 3, 2014, the District notified Larry Otis, a full-
time physical education teacher, that he was to be reassigned to a part-time
position. The letter informed Otis that he had the option of consenting to the
demotion or proceeding to a hearing before the school board. On June 6, 2014,
Otis advised the District that he elected to have a hearing. By letters dated June
10, 2014, the District also notified full-time reading specialist Colleen Kane and
full-time art teacher Belinda Williams that they were to be reassigned to part-time
positions. The letters similarly informed Kane and Williams of their options under
Section 1151 of the Public School Code of 1949 (School Code)1 to consent to the
reassignments or exercise their right to a hearing before the school board.
Williams asked for a hearing; Kane did not respond.
                 The letters sent to all three employees gave “lack of a need for a full
time position” as the reason for their reassignment. The letters advised them that
the superintendent would formally recommend their reassignment, and the school
board would take final action, at a scheduled June 16, 2014 meeting. Further, the
letters informed each employee that his or her duties and yearly salary would be
reduced, and, consequently, the reassignment may constitute a demotion under
Section 1151 of the School Code.
                 On June 13, 2014, Otis and Williams withdrew their requests for a
hearing and indicated that they would pursue other legal options. By email that
same date, the District’s superintendent informed the school board that the

        1
            Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §11-1151, which states in relevant
part:
                 [T]here shall be no demotion of any professional employe either in
                 salary or in type of position, except as otherwise provided in this
                 act, without the consent of the employe, or, if such consent is not
                 received, then such demotion shall be subject to the right to a
                 hearing before the board of school directors and an appeal in the
                 same manner as hereinbefore provided in the case of the dismissal
                 of a professional employe.



                                                 2
employees had withdrawn their requests for a hearing and that the reassignment of
the three employees would appear on the agenda for the board’s June 16, 2014
meeting, at which time the board approved the reassignments.
               Subsequently, the Association filed grievances on behalf of the
reassigned employees, asserting that the demotions and corresponding reductions
in salary and benefits were in violation of the CBA. Arbitrator John M. Skonier,
Esq., held a hearing on September 3, 2015.
               The arbitrator initially addressed the District’s contention that the
matter is not arbitrable based on the doctrine of election of remedies. Observing
that no action had been taken, and no hearing had been scheduled or held, the
arbitrator concluded that the grievances were arbitrable under Hanover School
District v. Hanover Education Association, 814 A.2d 292 (Pa. Cmwlth. 2003), and
East Pennsboro Area School District v. Pennsylvania Labor Relations Board, 467
A.2d 1356 (Pa. Cmwlth. 1983).2


       2
          In Hanover, a teacher received a three-day disciplinary suspension without pay, and the
union submitted a grievance on his behalf. At a hearing before an arbitrator, the school district
asserted that the issue submitted to the arbitrator was not subject to grievance arbitration under
the parties’ collective bargaining agreement because the agreement contained no provision
governing employee discipline. The arbitrator determined that the disciplinary action was
substantively arbitrable based on the generally accepted principle of implied just cause. Ruling
on the merits, the arbitrator upheld the propriety of the three-day suspension. On appeal, citing,
inter alia, East Pennsboro, we affirmed, emphasizing the “broad mandate [of the Public Employe
Relations Act (PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§1101.101-
1101.2301], that grievances be submitted to arbitration, the state’s policy favoring arbitrability of
labor disputes, the non-existence of any CBA term explicitly excluding employee discipline from
the grievance process and the intrinsic characteristics of a collective bargaining agreement
governed by PERA that mitigate in favor of employment protection . . . .” Hanover, 814 A.2d at
297-98.
        In East Pennsboro, we explained that the “best evidence that the parties intended not to
arbitrate concerning a class or classes of disputes or grievances is an express provision in the
(Footnote continued on next page…)
                                                 3
              The arbitrator next rejected the District’s assertions that the demotions
were presumptively lawful pursuant to Section 1151 and that the employees failed
to meet their burden of proving that the school board acted in an arbitrary or
discriminatory manner or based upon improper considerations. The arbitrator
found that: the CBA recognized only full-time employees; the parties did not
negotiate the manner in which salary and benefits would be paid to employees
working less than full time; the wage and salary provisions of the CBA, and
appendices, etc., do not provide for reductions in salary or benefits based on a
reduction in hours; the CBA does not include a management rights clause; and the
CBA includes a waiver provision that states that “all negotiable items have been
discussed and that no additional negotiations on the agreement will be conducted”
for the duration of the agreement unless both parties consent.
              Before the arbitrator, the Association stressed that its members ratified
a one-year extension of the CBA with a wage freeze and an agreement that no
employees would be furloughed, laid-off, or separated from employment except
for just cause.     The arbitrator accepted the Association’s contention that the
District’s actions violated the basic concepts of good faith and fair dealing.
              The arbitrator stated:

              The parties are currently negotiating their collective
              bargaining agreement and have been since 2012. Article
              I [of the collective bargaining agreement], the
              recognition clause, recognizes the Association as “the
              bargaining agent for the full-time professional employees
              under regular contract.” There is no inclusion of part-

(continued…)

collective bargaining agreement excluding certain questions from the arbitration process.” 467
A.2d at 1358.


                                              4
            time employees. There is also no management rights
            clause.    On April 5, 2011, the parties signed a
            memorandum of understanding for an “Extension of
            Collective Bargaining Agreement.” The parties agreed to
            a one-year extension of the collective bargaining
            agreement with a wage freeze and an agreement that no
            employees would be furloughed, laid-off or separated
            from employment except for just cause. The parties are
            currently working under the status quo of that agreement.

            As argued by the Association, the parties’ collective
            bargaining agreement does not provide for demotions.
            The recognition clause only specifies full-time
            professional employees. In addition to the recognition
            clause, there are numerous contractual provisions which
            support this position. The record reveals that there were
            no part-time professional employees until the instant
            demotions. In the contract extension, the parties agreed
            that there would be no furloughs, lay-offs, suspensions or
            separations from employment, except for just cause, in
            exchange for a wage freeze. There was no reason for the
            parties to include the term “demotion” because the
            contract only concerns full time employees. To allow the
            District to prevail in this matter would be a violation of
            the basic premise of good faith bargaining. The parties
            bargained to maintain the employment of all members of
            the bargaining unit. That employment is full time
            employment. The District, by demoting these three
            individuals, did not abide by the agreement. If the
            District wishes to have part-time professional employees,
            it must so bargain.
Arbitrator’s decision, p. 20 (emphasis in original). Accordingly, the arbitrator
sustained the grievances and issued an award in favor of the Association,
reinstating all three employees to full-time positions and awarding back pay and
benefits.
            The District filed a petition to vacate the arbitrator’s award with the
trial court, asserting that: (1) under the doctrine of election of remedies, the
employees were limited to proceeding with a hearing before the school board; and

                                        5
(2) the arbitrator erred in applying a contract law analysis instead of determining
whether the demotions were arbitrary or discriminatory, i.e., the standards
applicable under Section 1151 of the School Code.
               Relying on West Middlesex Area School District v. Pennsylvania
Labor Relations Board, 423 A.2d 781 (Pa. Cmwlth. 1980), the trial court
concluded that the doctrine of election of remedies did not bar the Association
from pursuing a remedy under the CBA. As to the second issue, the trial court
applied the essence test and concluded that the arbitrator’s award draws its essence
from the parties’ agreement. The trial court further determined that the arbitrator’s
interpretation (that the Association bargained to maintain employment of all of its
members and that a demotion to a part-time position was contrary to the CBA) was
rationally derived from the collective bargaining agreement. Accordingly, the trial
court denied the District’s petition to vacate the arbitrator’s award, and the District
now appeals to this Court.
               A court reviewing an arbitrator’s award applies the two-pronged
essence test. “First, the court shall determine if the issue as properly defined is
within the terms of the collective bargaining agreement. Second, if the issue is
embraced by the agreement, and thus, appropriately before the arbitrator, the
arbitrator’s award will be upheld if the arbitrator’s interpretation can rationally be
derived from the collective bargaining agreement.”                  State System of Higher
Education (Cheyney University) v. State College and University Professional
Association (PSEA-NEA), 743 A.2d 405, 413 (Pa. 1999).3

       3
         Notwithstanding our circumscribed scope of review, the District asserts that the trial
court’s decision includes statements that are not supported by the record or the law. The District
complains that the trial court mischaracterized the CBA as “comprehensive” and improperly
concluded that the Association had bargained for the continued employment of its members.
(Footnote continued on next page…)
                                                6
                The District argues that the School Code is incorporated by law into
the CBA4 and that Section 1151 of the School Code both authorizes demotions and
provides a specific and exclusive remedy for employees to contest a demotion.
Relying on Mifflinburg Area Education Association v. Mifflinburg Area School
District, 724 A.2d 339, 342-43 (Pa. 1999) (stating that Section 703 of PERA, 43
P.S. §1101.703, prohibits parties from implementing collective bargaining
agreement provisions that are inconsistent with or conflict with any statute), the
District contends that the arbitrator’s award is inconsistent with Section 1151 of
the School Code. Further, the District maintains that under Section 1151, the
appropriate standard of review is whether the demotion was made in an arbitrary or
discriminatory manner. The District argues that the arbitrator erred in failing to
apply that standard and in considering, instead, that demotions are not
contemplated by the CBA. Based on these assertions, the District characterizes the
arbitrator’s award as contrary to law and public policy.



(continued…)

The District further contends that the trial court erred in concluding that terms regarding part-
time employment are issues to be negotiated and bargained for. Instead, the District asserts that
the absence of such terms is a result of the Association’s choice not to certify any part-time
employees as part of its bargaining unit with the Pennsylvania Labor Relations Board (PLRB).
According to the District, the trial court’s analysis allows unions to exclude part-time employees
and thereby foreclose districts from ever demoting full-time professionals into part-time
positions, under the reasoning that no part-time positions were bargained for in the CBA.
However, the District acknowledges that a school district can employ a part-time employee
without the union having certification to represent part-time employees and that nothing in the
CBA prevents the District from hiring part-time employees.
        The Association does not respond directly to these assertions but argues, correctly, that
the arbitrator’s award must be reviewed under the essence test. Cheyney University.

       4
           Section 1121 of the School Code, 24 P.S. §11-1121.


                                                7
              However, it is well settled that a court may vacate an arbitrator’s
award only if it violates the essence test. Cheyney University. In setting forth the
essence test, our Supreme Court stated as follows:

              [W]e believe that the role for a court reviewing a
              challenge to a labor arbitration award under [PERA] is
              one of deference. We hold that in light of the many
              benefits of arbitration, there is a strong presumption that
              the Legislature and the parties intended for an arbitrator
              to be the judge of disputes under a collective bargaining
              agreement. That being the case, courts must accord great
              deference to the award of the arbitrator chosen by the
              parties. A fortiori, in the vast majority of cases, the
              decision of the arbitrator shall be final and binding upon
              the parties. However, there exists an exception to this
              finality doctrine. The arbitrator’s award must draw its
              essence from the collective bargaining agreement.
              Pursuant to the essence test as stated today, a reviewing
              court will conduct a two-prong analysis. First, the court
              shall determine if the issue as properly defined is within
              the terms of the collective bargaining agreement.
              Second, if the issue is embraced by the agreement, and
              thus, appropriately before the arbitrator, the arbitrator’s
              award will be upheld if the arbitrator’s interpretation can
              rationally be derived from the collective bargaining
              agreement. That is to say, a court will only vacate an
              arbitrator’s award where the award indisputably and
              genuinely is without foundation in, or fails to logically
              flow from, the collective bargaining agreement.
Id. at 413.
              Additionally, “[a]n arbitration award will not be upheld if it
contravenes public policy.”      New Kensington-Arnold School District v. New
Kensington-Arnold Education Association, 140 A.3d 726, 736 (Pa. Cmwlth.




                                          8
2016).5 The public policy argument typically arises where an employer alleges that
an arbitrator’s award precludes the employer from carrying out its lawful
obligation and duties to the public. In this instance, however, other than using the
phrase “public policy,” the District offers no argument relevant to an analysis of
the public policy exception to the essence test. Indeed, the District does not
address the essence test, but argues instead that the dispute is governed exclusively
by a statutory provision.
              The District also argues that the election of remedies doctrine bars
arbitration of this matter because the employees who were reassigned chose to
have a hearing before the school board. “An election of remedies includes the
deliberate and knowing resort to one of two inconsistent paths to relief.” West
Middlesex Area School District, 423 A.2d at 783. In West Middlesex, this Court
affirmed a trial court’s order upholding the PLRB’s determination that a school
district’s refusal to submit a professional employee’s grievance to binding


       5
         Determining whether an arbitrator’s award violates public policy involves the following
three-step analysis:

              First, the nature of the conduct leading to the discipline must be
              identified. Second we must determine if that conduct implicates a
              public policy which is well-defined, dominant, and ascertained by
              reference to the laws and legal precedents and not from general
              consideration of supposed public interests. Third, we must
              determine if the arbitrator’s award poses an unacceptable risk that
              it will undermine the implicated policy and cause the public
              employer to breach its lawful obligations or public duty, given the
              particular circumstances at hand and the factual findings of the
              arbitrator.

140 A.3d at 736 (quoting City of Bradford v. Teamsters Local Union No. 110, 25 A.3d 408, 414
(Pa. Cmwlth. 2011)).



                                               9
arbitration was an unfair labor practice under Section 1201(a)(5) of PERA.6 The
employee in that case was working as a home school visitor. The district’s school
superintendent, citing declining enrollment and economic factors, recommended
the elimination of the home school program and the transfer of the employee to a
classroom teaching position.          The employee was notified that action on the
recommendation would be taken at the next school board meeting. He attended
that meeting, at which the school board advised him that it was observing the
procedural formalities required by Section 1151 of the School Code. The school
board voted to accept the superintendent’s recommendation.
               The employee then filed a grievance alleging that the school board’s
action violated the parties’ collective bargaining agreement. The school board
refused to participate in arbitration, arguing that the employee’s exclusive remedy
was his right to a school board hearing and then an appeal to the Secretary of
Education.7 The PLRB concluded that the district’s refusal to arbitrate was an
unfair labor practice, and the trial court agreed. On further appeal, this Court also
affirmed.
               We first observed that:

               With particular reference to public school districts, the
               Supreme Court has held that a school district may agree
               in a collective bargaining agreement to submit to
               arbitration the propriety of discharging a non-tenured
               teacher, and in so deciding rejected the argument that
               such a provision illegally delegated to an arbitrator
               powers to remove employes conferred exclusively on the
               school board by provisions of the [School Code]. The

      6
          43 P.S. §1101.1201(a)(5).

      7
          Section 1131 of the School Code, 24 P.S. §11-1131.


                                              10
            [School Code] is not the exclusive remedy for redressing
            a personnel action and the collective bargaining
            agreement could provide another.
West Middlesex, 423 A.2d at 783 (citation omitted).
            We next addressed the district’s argument that arbitration was barred
by the doctrine of election because the employee elected to pursue his remedy
under the School Code. We observed that the employee did not ask for a board
hearing; his transfer did not take place until after the district acted on the
superintendent’s recommendation at the close of the hearing; and the employee
pursued only his contractual remedy after the hearing.
            We explained that:

            [T]he doctrine of election applies only when the available
            remedies are inconsistent; and to be inconsistent the
            remedies in question must be different means of
            adjudicating the same issues. The remedy provided to a
            professional employe threatened with demotion by
            Section 1151 of the [School Code] - a hearing before the
            board and appeal to the Secretary of Education - tests
            only whether the proposed demotion action is arbitrary or
            based on improper motives. . . . The grievance and
            arbitration procedure provided by the collective
            bargaining agreement which [the employee] sought to
            invoke on the other hand searches for whether the school
            board’s action was for just cause. . . . Since the
            substantive issues under the remedy provided by the
            bargaining agreement on the one hand and by Section
            1151 of the [School Code] on the other are different, [the
            employee’s] resort to grievance after attending the school
            board’s Section 1151 hearing was not the pursuit of an
            inconsistent remedy.
423 A.2d at 783-84.
            Here, although two of the employees affirmatively opted for a school
board hearing, they withdrew their requests and notified the District that they
would be pursuing a different remedy.        Indeed, the District’s superintendent
                                        11
informed the school board days before the June 16 meeting that the employees had
withdrawn their requests for a hearing.
             More important, the doctrine of election of remedies applies only
when the available remedies are inconsistent, and to be inconsistent the remedies
“must be different means of adjudicating the same issues.” Id. at 783-84. The
remedy provided by Section 1151 of the School Code “tests only whether [a]
proposed demotion action is arbitrary or based on improper motives.” Id. In
contrast, the grievance and arbitration procedure provided under the CBA
addresses whether the demotions violated the parties’ bargained-for agreement.
The remedies are not inconsistent, and, therefore, arbitration was not barred by the
doctrine of election of remedies.
             Accordingly, we affirm.




                                       MICHAEL H. WOJCIK, Judge




                                          12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Northeast Bradford School District,      :
                                         :
                         Appellant       :
                                         :
                  v.                     : No. 2007 C.D. 2016
                                         :
Northeast Bradford Education             :
Association, PSEA/NEA                    :


                                      ORDER


            AND NOW, this 28th day of June, 2017, the order of the Bradford
County Court of Common Pleas, dated November 2, 2016, is AFFIRMED.




                                       __________________________________
                                       MICHAEL H. WOJCIK, Judge
