*1 A.2d BOARD OF OF the EDUCATION SCHOOL DISTRICT PHILADELPHIA, Appellant,

OF OF PHILADELPHIA FEDERATION TEACHERS 3, AFT, LOCAL NO. AFL-CIO. Pennsylvania. Supreme Court of Argued April 11, 1975.

Decided Oct. *2 Philadelphia, appellant. Salandria, for Vincent J. Sagot, Sommovilla, Thomas W. Leonard M. Randall J. Philadelphia Feder- Jennings, appellee, for Philadelphia, AFT, Teitel- Teachers, AFL-CIO; ation Local No. Philadelphia, Jennings Luber, man, Sagot, & Herring, counsel. POMEROY, EAGEN, O’BRIEN, ROBERTS,

Before MANDERINO, NIX and JJ. THE COURT

OPINION OF ROBERTS, Justice. important question of appeal presents the agree bar may in a collective a school

whether district propriety gaining to submit arbitration com discharging teacher. The court a non-tenured agree, there We pleas held that it do mon so. fore affirm. bargaining' between

The collective Philadelphia Philadelphia Board Education provides or Federation of Teachers teacher “[a] employee other tenure shall not be does not have who just subjected discipline except or grievance comprehensive cause.” It also establishes a July 8, 1974, procedure, terminating in arbitration.1 On grievance procedure 1. The is set in article B-VIII out part: agreement, provides, pertinent “Section 1. Definitions la. A situation, complaint involving is a the work practice policy; policy im- that there is a lack of or that a from, unfair; proper misinterpretation or a or or that there has been deviation policy; misapplication practice or or or of a violation, misinterpretation, misapplica- there has been a tion, any pro- inequitable improper application otherwise Agreement. development vision of or modification system-wide salary grievance. schedule is not considered *3 Nothing procedure lc. to within this shall be construed deny any employe rights any applicable to his under law. Adjustment Section 2. for Procedure of Grievances problems presented adjusted in Grievances and and shall be following procedure: accordance with the .... Step twenty-five receiving days 3a. Within after the Personnel, decision of the Executive Director of or the Board may the Federation submit the to the matter arbitration if with, grievance, complaint problem compliance or the involves application interpretation Agreement, provided or that a with or of this grievance action, concerning any Board not inconsistent any provision Agreement, any of this term of taken under Agreement requiring this providing or of the for exercise powers, by policymaking Board’s discretion or be decided only an was complaint arbitrator if it is based on a action that such applied in a general practice manner inconsistent with the throughout under such action system followed in the school similar circumstances. Step submitting 3b. The method for a matter to arbitration shall be as follows: Step 3c. The arbitrator shall issue his decision not later days than closing or, after hearings the date of the of the if waived, hearings oral have been days then 30 from the date of transmitting the proof final statements and to the arbitrator. The writing decision shall be in and shall set forth the arbitra- opinion tor’s and on conclusions the issues ar- submitted. The power decide, bitrator shall have the authority and to and shall limit strictly his decision to specified paragraph matters in teacher, Edgar Vahey, the board notified pending suspended position dismis- that he was his from improper The sal. union was asserted procedure, pursuant and, procedure demanded arbitration and initiated com- then filed a selection The board arbitrators. plaint seeking enjoin in equity the arbitration on to ground employee dis- to submit charges delegation an unlawful arbitration was prelimi- power filed exclusive The union the board. demurrer, nary objections these of a and nature appeal were followed.2 sustained. authority 3; power Step or shall be without a of this he any make decision: to, with, modi- Step 3c(i) Contrary or which or inconsistent Agreement way, or any of this fies or varies terms regulations ef- having the force and applicable fect or or law rules law; or way Step 3c(ii). with or interferes Which limits duties, powers, responsibility of the Board under and having regulations By-laws, applicable law rules and and law, (ii) be except shall force deemed to limit the arbitrator’s effect of that this clause authority to make decisions paragraph c under this awards he is authorized make set Step paragraph 3.

on the matters forth in 2 of arbitrator, his if The made accordance decision of the accept- authority Agreement jurisdiction will be under this parties it.” ed final and both will abide July Appellate Act of Act of Court Jurisdiction II, 211.202(4)(Supp.1974). 202(4), P.L. art. 17 P.S. explic objections sustaining preliminary did not order itly complaint, the matter dismiss the but rather directed ar until the and retained on the docket submitted arbitration completed copy arbitrator’s decision bitration was *4 ap quash presented moved to the to the court. The union has objections have peal relying upon been sustained without preliminary the rule where complaint, dismissing the order the 551, ge 316 normally interlocutory. Capozzi, Mutual Pa. v. 455 Mickle Co., Donegal 438 (1974); Insurance 887 Hudock A.2d v. appli 272, 276, 668, has (1970). This no 264 671 rule Pa. A.2d here. cation complaint, give to amend its board leave The order did not the only Clearly proceed. the the rather directed that arbitration but re- to facilitate retaining on the docket was purpose of the action might is- the arbitrator and enforcement of whatever order view Thus, sue, original scope of action. the the a matter within effect, “does, termi- order of the trial court is one the 96 provisions of the collec-

The board maintains illegally dele- bargaining agreement here involved tive powers on gate exclusively conferred to an arbitrator of the Public School and 514 sections 510 provi- argued, it is those Consequently, of Code 1949.3 Em- of the Public section are sions invalid they provide (PERA) insofar as ployee Act4 Relations pleader parties, so restricts the or nate the action between the cause of virtually put of on him out court . as 276, Hudock, supra, at 264 A.2d litigate.” seeks to action he final. The order was therefore at 671. may adopt any school district directors 3. “The board of school regulations as it reasonable rules and enforce such management regarding of necessary proper, deem superin deportment all of and the conduct school affairs tendents, teachers, during employes appointees or and other the district they engaged in their duties time 510, 10, 30, V, 1949, § § 24 P.S. 5-510 art. Act of March P.L. (1962). except any directors in school district “The board of school notice, giving the provided, shall after due as herein otherwise demanded, therefor, right hearing if and after have reasons officers, appoint- any employes, any or time to remove of its duty, intemperance, neglect incompetency, violation ees for Commonwealth, any im- or other of the school laws of this proper conduct.” 514, § § Id. P.S. 5-514. dissenting opinion Pomeroy’s Mr. Justice asserts provi- upon misplaced board’s reliance because section sions relevant to are sections non-tenured teachers 1949, §§ 11- 1108 and P.S. the Public School Code 1108, question unnecessary 11-1122. We find determine analysis, because we as will conclude that it does not affect our be need not determine of portation Co., we shown. See notes 10a & 14a infra. reason For same raising propriety appellate of an court’s sponte. such issue sua See v. Central Trans- Benson Penn 37, 41, (1975) (filed 463 Pa. 342 A.2d July 7); Wiegand Wiegand, 337 A.2d 256 provides: 4. That section parties implement bargaining process “The collective shall not ef- agree- provision or fect in a collective implementation provision ment if the of that be in viola- would of, with, tion or inconsistent or in conflict with statute Assembly statutes enacted Common- General Pennsylvania municipal wealth or the home rule charters.” 23, 1970, VII, July Act of 1101.703 P.L. No. art. 43 P.S. (Supp.1974).

97 concerning grievances for arbitration teachers.5 agree. cannot We meaning of sec- recently has discussed

This Court v. Pennsylvania Relations Board State in Labor tion 703 508-510, 494, 337 College District, Area 461 School 1975). April 17, There Mr. (1975) (filed 269 262, A.2d for the Justice Nix wrote Court: may subject particular matter “The mere fact that a it from legislation remove by be does covered on if it bears bargaining under section 701 collective employ- question wages, hours and conditions prevents the only that section 703 believe We ment. any term which implementation of to and any statu- inconsistent violation of or would this view between tory The distinction directive. majority expressed by Commonwealth by an illustrated (as it) is best understand Court we of the Public example. 1142 section Under Section salary is set Code, scale forth. a minimum pay may salaries provides boards that school 1151 dispute type involved also contends that 5. The board procedure scope from the this case is excluded provides: agreement, B-l of the Article has uni- recognize Education parties the Board of “The develop- policy and authority lateral in the field of educational by any of its modify Agreement intended ment. This is not concerning matters authority any discretionary such terms of the Commonwealth vested in the Board the statutes the Home Charter.” Rule contention, see United Whatever be the merits of this 564, Co., S. Manufacturing 80 U.S. Steelworkers v. American Ct. & 363 1343, (1960); v. Warrior 4 L.Ed.2d 1403 United Steelworkers 1347, Co., 574, 4 L.Ed.2d Navigation 363 S.Ct. U.S. 80 Gulf & Car (1960); Enterprise Wheel 1409 United Steelworkers v. Corp., (1960); Bor- 363 U.S. 4 L.Ed.2d S.Ct. Columbia, ough Ambridge Authority Water 458 Pa. (1974), presented A.2d 498 it was not trial court and Distributing appeal. therefore Morris unavailable on Wenzel v. Co., 364, 373-74, (1970); 439 Pa. A.2d Corabi v. Cur- Co., Publishing 143, 150, tis 437 Pa. 262 A.2d However, preclude presentation will not of this contention the arbitrator. salary. Framing excess of the minimum the issue suggested by accordance with the formulation the ma- *6 jority in the creat- Court, Commonwealth section 1142 duty pay a not to minimum below the and sec- ed scale employer granted prerogative pay tion 1151 Clearly, parties more than the minimum rate. precluded agreeing from to a rate lower than mini- though in the mum scale the statute vested but even public prerogative pay higher employer the rate a bargaining ‘in of vio- do so as a result collective is of, in conflict with’ the with, lation or inconsistent or The question. statute mere fact General employer Assembly granted prerogative does possibility to exercise not exclude the decision by the bar- prerogative collective was influenced process. gaining prevents merely term of a

“. . . Section . being bargaining from viola- collective Education, City existing tion of Cf. Board law. of of Ass’n, Englewood Englewood 64 N.J. Teachers (1973); Education Union Board 311 A.2d 729 Teachers 3 v. Associated Free School District # Huntington, Inc., 30 331 N.Y.S.2d N.Y.2d (1972); 8 v. Wis- School District Joint N.E.2d 109 # Board, Employment 37 Wis.2d consin Relations As- If however General 155 N.W.2d responsibility to sembly particular be dis- mandates charged alone, then the by the and the board board bargaining under section 701 is removed from matter impact ‘wages, hours and upon if it direct even has ” employment.’ other or conditions terms challenged provisions of The issue then whether delegate to the arbi- bargaining the collective Assembly has responsibility trator a which the General “discharged by commanded shall provi- deciding question, In other board alone.” our con- improperly 6. have The dissent contends that we confined ar- whether sideration the board’s to a claim determination particular sions of significance the PERA are of because previously PERA itself altered the exclusive board’s subjects competence control of most within its and “[re- pudiated] concept . . . the traditional of the sanct- ity managerial prerogatives public in the sector.” Id. A.2d at Assembly, forbidding far from arbi General disputes arising tration out of collective agreement, expressly commands it in section of the PERA, provides, pertinent part: disputes grievances arising

“Arbitration of out of interpretation bar of a collective gaining agreement mandatory. fi [T]he step grievance procedure] provide nal shall [of *7 binding by decision an arbitrator . .” . policy stronger in

This is even than embodied feder that policy. al labor American See Steelworkers v. United Manufacturing Co., 1343, 564, 4 L.Ed. 363 U.S. 80 S.Ct. (1960); 2d 1403 United v. Warrior & Steelworkers Gulf Navigation Co., 574, 1347, 4 L.Ed.2d 363 U.S. 80 S.Ct. Enterprise (1960); & United Steelworkers v. Wheel Corp., 593, 1358, Car 4 L.Ed.2d U.S. S.Ct. (1960). policy merely of the submission Federal favors disputes arbitration, requires it. while PERA discharges exist- grievances “in violation of” bitration of over is

ing ignored question law “inconsistent and of whether is with, existing or in It concludes conflict with” law. then be- Code such arbitration is inconsistent with the Public responsi- paramount delegation cause it constitutes “a bility with the wholly inconsistent is at least Post, statutory scheme at 47. which the Code embodies.” agreement proposition, would Were we we with the latter implemen- agree also forbid that section of the PERA would However, seen, provision question. we tation of as will be is statutory there have examined the and concluded that scheme inconsistency. disagreement no ysis our anal- dissent’s Thus the point turning upon on rather than funda- centers mental in the difference construction of section 703. IX, 903, July 43 P.S. 7. Act of P.L. No. art. (Supp.1974). 1101.903 perceive It is not the reasons for difficult to the statu- grievances tory requirement be to arbi- submitted dispute interpretation If a to the tration. arises as application agreement must a mechanism there agreement meaning- resolving dispute or the primary resolving Historically, such less. means agreements pri- disputes strike, many in the was the types vate sector retain mechanism for at least some dispute.8 disputes re- However, resolution all costly parties, more sort to the to economic force is Assembly there- public. importantly, to the The General widely procedure ar- of labor fore used chose make brings the mandatory under the PERA. bitration special expertise of labor arbitrators to bear on the often problems administering bar- difficult the collective agreement parties gaining assuring their while guaranteeing both will be effective and disrupt parties public disputes will and the that such peaceful interrupt public services.9 labor relations or Feller, Bargaining Agree- Theory A of the Collective 8. See General ment, discus- For an excellent 61 Calif.L.Rev. 745-47 of the collective and functions sion of nature administering such arbitration in the role of 718-71, agreement, esp. id. 740-55. see governmental labor advantages grievance 9. Other arbitration commentator, course in the relations have been noted one discussing propriety: binding arbitration objection propriety of “The basic legal step procedure as the final similar *8 it; arguments against not an if arbitration is even the use of im- legislative authority, at least delegation of it is unlawful people proper . . and to unwise ‘remove from power argument fear Underlying is the vested in them.’ this compel accept decisions may management that to arbitration regulations. existing which violate and laws or official rules going to This fear is that the arbitrator is founded on the belief ignore capriciously. face of the law and act flies in the experience judicial of American with arbitration and review arbitration tance grievances, reluc- awards. Of the several reasons behind the public agree binding of employers of to to arbitration important appears the most not to to be the desire relinquish unnecessarily any power to the unions. however, “Binding grievances, arbitration to of has much First, commend it. is more collective subject board, matter that the maintains however, The gen- dispute from requires of it be excluded on contention It bases this eral to arbitrate. mandate 1949.10 of Public School Code of the sections 510 and 514 preclude the provisions do these We conclude that type dispute. of to arbitration of submission “adopt en- and to empowers the board Section management of regulations “regarding force” all deportment of and the conduct school affairs and they are during the time . teachers equity in the meaningful of the workers the confidence because any dis- they know that strengthened when of the is to an may be submitted pute meaning contract over the Second, encourages more impartial careful decision knows arbitrator whose party for decision. third employer. If he government making by the scrutiny anof subjected to be his actions likely binding, will less be he be decision will effect likely hasty more to calculate to make decisions and griev- Third, pressure to settle order. create his it would management at lower The natural reluctance ances levels. parties re- by outside officials to have their duces reviewed decisions uphold un- tendency management upper-level Fourth, if just management. decisions made lower-level parties, parties they such by outside must bear the cost of arbitration before attempt likely resolve differences their expense is incurred. that the binding “One of arbitration the chief is virtues griev- grievance process meaningful entire made more is useful. Where ant, more the ultimate arbiter therefore ad- dispute representative dispute, the verse of one side accept tendency toward decisions will be hard strong experience alienation will be —witness post grievance procedure. office decision the ultimate Where however, by a grievant is made much party, neutral third likely hearing goal more to feel that had a and the he has fair study of harmonious relations A 1963 will best served. showed aft- employer-employee usually improved relations arbitration; adoption er governmental most of the questioned units governmental recommended that units other adopt bitration of procedure. binding such a ar- arising from benefits grievances, legality and its or the with which ease legal, it could be adoption.” made invite its Note, Legality Major Propriety Agreements to Arbitrate Disputes and Minor 135-36 Employment, L.Rev. Public 54 Cornell supra. See note 3 *9 engaged require- Clearly in their the duties . . . .” “just infringe discipline ment of cause” for does not upon prerogative board, the violation of a val- for “just regulation adopted by surely id the board would be discipline.11 power to Thus, cause” for of the board adopt regulations impaired by re- is not and enforce “just discipline quirement teacher. cause” for of a upon by board, statutory provision The other relied pro- 514, empowers (subject section the board to certain any requirements) of its cedural “to remove intemperance, employees incompetency, for duty, any neglect the school laws of violation of Commonwealth, improper conduct.”12 or other agree- practice Indeed under industrial collective emphatically upholds power employer disci- of an to ments pline employees regulation of for of an order or disobedience employer. employer sometimes “Under a collective an which, properly impose discipline employment were it an in circumstances contract, being might to the result in his liable Consider, employee example, damages. for the case for employee given perform which an work. to certain is direction Suppose improper, employment job order is under his contract, proper because work is outside of his bounda- ries, overtime, right because he has a contractual to refuse hypothesis By employee’s for other reason. refusal comply imposing the order cannot be made the basis for him, liability promise. contractual on If the since he broke no refusal, employee discharged employer is is liable for his damages employee for The em- breach of contract. course, ployee, obey peril; right re- his his refuses to depends judicial cover on a later determination as whether improper. governed by order employment was If was collective contrary. the result is to the The under- standing parties, ruling and the almost of arbi- universal trators, employee long is obey that an must order so poses personal discipline may no safety threat to his and that imposed obey regard propriety failure to without of that order agreement.” under the Feller, supra (footnotes note omitted). at 778 We whether, need not here agreement, consider under this dis- improper obedience of an regulation order or would constitute “just discipline. cause” for There is no indication that such a question Moreover, is question involved in this case. one determine, for the arbitrator to at least in the first instance. 12. The dissent maintains that the relevant of the Pub- lic School Code are supra. sections 1108 and 1122. See note 3 entrusting provision very antithesis of one *10 implement to formulate and board with broad discretion only empowered act policy. The is educational specified action is sub- for in the statute and its reasons ject Duquesne Dis- judicial Hutnik v. review. (1973); Local trict, see 387, 302 A.2d Pa.Cmwlth. 7, 8, 2, 1968, Agency Law, ofAct December P.L. §§ 11307,11308 (Supp.1974). §§ P.S. bargaining agreement Moreover, is sus- the collective fully protect ceptible constructions which at least two considera- authority from of the board.13 These stem procedure formerly in tion of the effect. sought to dismiss a school board heretofore

When notified of the teacher was teacher, board, charges hearing which and afforded a before that, point, it is on this even if the dissent correct We conclude analysis. affect would not our provides, pertinent part: Section 1122 in only hereto- “The valid of a contract causes for termination employe professional fore or be shall hereafter entered into with persistent immorality, intemperance, cruelty, incompetency, vi- negligence, derangement, persistent mental and wilful [and] part of olation on the of the school laws of Commonwealth professional employe § 24 P.S. 11-1122. alia, profes- provides, temporary Section 1108 inter that “[n]o unsatisfactory employe sional shall be dismissed unless rated rating P.S. 11-1108. The for non-tenured teach- determining ers are the same as those be in which must used competency tenured in section teachers out set Code, 24 P.S. 11-1123. Assuming proceeding in that these sections are in a relevant only solely upon the board relies effect section which this analysis would have on our would be substitution slightly of a permissible statutory different enumeration grounds for for that contained in section 13. There proper is no need for con- us to consider what is the struction or the suggested here one of those —whether arbitrator, question some other. That is for the at least injunction sought by first instance. The be the board could granted only proscribed if it were clear that be arbitration would regardless adopt- section 703 of the PERA of the construction Consequently, ed. the existence of could construction which properly implemented be require of the in- sufficient to denial junction. upon proposed

then acted As this Court dismissal. Appeal, Borough stated Brentwood School District 848, 851 (1970); 262-63, 267 A.2d hearing plays It a dual acts “At the board role. judge, prosecutor both and as and because totally can unbiased.” never standpoint procedure from the The defects of this long there been teacher have evident. While it is discharge, opportunity judicial review of determining limited whether rights of “the same is of the constitutional violation law, or that appellant, or is not accordance with pro- *11 in the violated the act have been of this finding of fact ceeding any agency, or that before the support necessary agency to made the local and evidence.” adjudication supported by substantial Agency Law, supra, 11308. Local 53 P.S. § impar- for an type course, is, of review of no substitute tial first fact-finder the instance. bargaining possible collective the

One construction of for dis- “just cause” standard is that the statutory enumeration charge is identical with the construction, all justifying action. On reasons such hearing parties is substitute have would done hearing before impartial before an arbitrator for Local judicial subsequent review and parties, standpoint Agency Law.14 From the inexpensive providing an advantage would have impartial to expeditious procedure in addition fact-finder. suggested by the brief

An construction is alternative cause,” as “just suggests the term for the It union. possibility contemplates the agreement, in the used enu- those than variety discharges for a of reasons wider nature to consider no occasion in this case 14. There is scope judicial award. review of the arbitrator’s raerated in the employee statute.15 Thus, an who elects pursue grievance procedure proceed- rather than ing hearing to a accept before the board would a less re- strictive greater substantive in return for the standard procedural advantages pro- afforded the arbitration ceeding. see why

We no reason either of the constructions here suggested any legal would involve violation of restriction upon power board, and the none.17" board offers quotes language Worthington 15. The brief of the arbitrator in Corp., (1955): 24 Lab.Arb. 6-7 “ * * * right suspend is common to '[i]t include cause’, discharge ‘just cause’, cause’, ‘justifiable ‘proper cause’, quite commonly ‘obvious simply for There ‘cause’. significant is no These obviously phrases. difference between these various discharge caprice. They exclude for mere whim or are things employees intended to include those for which traditionally They have been include traditional fired. particular industry, prac- causes of in the trade or develop day-to-day management tices which in the relations of recently they and labor and most include the decisions of of They represent body growing courts and arbitrators. regarded ‘common law’ that either as the latest de- or, velopment perhaps, of the law of ‘master and servant’ properly part body ‘Manage- more of a new law common They ment and agreements.’ labor under collective and, by employees management, constitute the duties owed aspect, rights part manage- their correlative ment.” procedure provides: “Nothing Subsection lc of the procedure within this deny any employee shall be construed to rights any applicable *12 his Consequently, under law.” con- application struction permitting which involves the of a standard discharges for causes other than those enumerated in section appear present would employee to the with an between election statutory provided remedy the by section 514 and the Local Agency remedy provided by grievance procedure Law and the agreement. in the We have no occasion to consider whether use of procedure statutory procedure rather than the would also be elective were the substantive standard the same. 17. Because suggested neither of the constructions here involves any upon grounds restriction for substantive dismissal of teacher, non-tenured contention that we are unable to understand the dissent’s “ they hamper obtaining would the board in ‘the ” best educational facilities for the children of this Commonwealth.’ Post, 47, quoting at Commonwealth ex rel. Hetrick v. Sunbu- Dist., 6, ry 11, 279, School 6 A.2d pro

Consequently, we conclude that section not 703 does implementation agreement hibit of the of the challenged here.

This conclusion is the fact that it is bolstered weight authority jurisdic of in other Fifield, tions. Board Directors Danville v. of 271, (1974) (agreement to Vt. not dis 315 A.2d 473 charge except “just and for sufficient cause” teacher and spe disputes propriety discharge to as to of arbitrate cifically enforced); Board Education Associated v. of 131-132, 24- Teachers, 30 N.Y.2d N.Y.S.2d (1972) (Fuld, J., for a 114-115 C. N.E.2d (agreement discipline ten court18) to unanimous “just to dis ured without cause” and arbitrate teachers valid); putes propriety discharge declared to Employees City Rhinelander, 35 1226, City Local “para- the board of its Neither either relieve does construction ef- responsibility” “employ competent and mount . . . to to those fective . . ... teachers Post, 42, Obviously, will no teacher it does not deem fit.” at initially one discharged be or unless the determines board statutorily grounds action for such more enumerated provide impar- an do is exist. All that either construction would tial its belief board is correct determination of whether the power to sit grounds that such exist. the board Unless is judgment charges against upon preferred a teacher scheme, is in- statutory neither construction fundamental to ap- reason, nebulous other than consistent with that scheme. No peals necessity maintaining efficient to “the best most believing system post, possible,” school offered for arbitrary Assembly result a harsh and General intended such purpose we to to it. decline attribute such “every It decision [the] true that under contract . will teacher dismiss become, subject concurs], if the teacher so the union elects [and However, Post, ab- binding even in the arbitration.” at 48. sort, a non- every appeal sence contracts of this decision dismiss subject judiciary tenured teacher is Agency believing bind- Local No Law. reason is offered ing disruptive more of the exercise arbitration is Indeed, given the responsibilities appeals. board’s than such greater proceed- speed and lower cost of arbitration characteristic ings, judicial disruptive appeals. arbitration be less than judges point, expressed their 18. Three dissented on another but aspect opinion of the court. with this *13 (1967) (agreement Wis.2d 151 N.W.2d 30 to arbi- dispute discharge employee specifically city trate over enforced). Indeed, authority sole the board’s only contention here is what can described as dictum DeCourcy, in West Education Association v. Hartford 162 Conn. 295 A.2d 526 Courcy, considering scope

In De of a court was bargain duty board’s Connecticut Negotiations propriety considering Teacher In Act. arbitration, distinguish primarily it was concerned allowing prescribe between the terms of arbitrator (which impermissible) it found to be grievances interpreta- regarding the arbitration of (which broadly per- tion of the it held to be subject negotiation mandatory missible and a between parties). illustrating proposi- In the course of delegate tion that the board could not to an arbitrator reposed alone, quoted discretion it from decision in Norwalk Teachers’ Association Board Education, (1951): A.2d Conn. example, “For it could not commit to an the de- arbitrator proceeding cision of a a teacher for cause.” noteworthy It is that Norwalk Teachers’ Association was prior authorizing decided to the enactment of statute bargaining by collective teachers and the De Connecticut Courcy court failed to whether the consider enactment continuing such a validity statute affected the quoted statement. Even if this dictum does establish the proposition Connecticut, appears as the to us to law conception rest on a collective Employee narrower than that Public embodied Re- persuasive lations It is therefore not on the issue Act. before us. quash par-

Motion to denied. Decree affirmed. Each ty pay own costs. J.,

EAGEN, dissents. POMEROY, J., dissenting opinion. filed a *14 J., participate

JONES, not C. did in the consideration or decision of this case.

POMEROY, (dissenting). Justice The today permits Court’s decision school boards Pennsylvania pre- to abdicate one of their most essential rogatives duties, namely for cause of public teacher. The result quality disserves the cause of school education in the Because I am Commonwealth. holding statutory convinced that the Court’s is without foundation, respectfully I must dissent.

Purportedly acting pursuant granted authority by Code,1 appellant 514 of the Public School § Board (the Board) 1974, suspended Education July 8, on position Crispin from his Edgar Vahey, at the School one teacher, “pending non-tenured the Board’s action for suspension pay dismissal.” The [his] was without 30, Vahey June effective was advised that he was 1974. request hearing entitled to before a committee of the September Board.2 Philadelphia On Federa- Teachers, appellee tion of herein, by attorney, presented to the American Arbitration Association a de- arbitration, asserting suspen- mand the Board’s Vahey sion of improper. enjoin had been This action to by Holding arbitration was then initiated the Board. that no cause of action was court of common stated, the pleas preliminary objections by sustained the filed district, any except “The board of school directors in notice, provided, herein giving otherwise shall after due the rea- therefor, demanded, hearing right sons and after if at have the any officers, any time to employes, appointees remove of its for incompetency, intemperance, neglect duty, violation of Commonwealth, of the school improper laws or other con- 10, 1949, V, duct.” Act of § March P.L. art. 24 P.S. 5- As opinion, shown later in this this section has been apply construed not temporary professional employees, in- cluding text, p. [typed teachers. See infra copy]. 2. See ibid. Whether a hearing requested such was by disclosed the record before us. proceed. The arbitration to Federation and directed brought appeal. Board necessarily scanty; it does not

The record before us is (and projected ul- suspension for the indicate the reason Board, the reasons dismissal) Vahey nor timate improper. why to be the union that action considered explored in Presumably factual matters will those for de- hearing question whatever hereafter ensues. hearing will be conduct- instantly cision is whether such case, or, as Board, be the as it contends should ed pursuant urges, by chosen arbitrators Federation parties bargaining agreement between the collective *15 1,1973. on March entered into subject bind- agreement “grievance” to

Under ing grievance to include a com- is defined A arbitration. any application “improper plaint that there has been 1(a)]. agreement. B-VIII, sec. provision” of the [Art. provides: 9(f) agreement T-III, of the Article section employee ten- not have “A other who does teacher or discipline or subjected to ure not be shall just cause.” without charging that the union has asserted

Since applied, improperly provision “just has been cause” “just argues the existence that determination of It subject Vahey’s of arbitration. case is a cause” in Mr. provision of pointing argument by reinforces 195) (the (Act stat- Employe Act3 Relations Public was which the collective ute under negotiated), that arising out of grievances disputes or

“arbitration of bar- provisions of a collective interpretation 195, mandatory.” Act gaining agreement is § key reveals, approach of the Court As the of Act isus before § the narrow issue resolution of IX, § 43 P.S. 23, 1970, art. July P.L. No. 3. Act 1974). (Supp. 195, supra, emphatically disagree but I the section result which the court has sanctions come. Sec- provides: tion 708 bargaining process parties

“The collective shall implement provision or in a effect collective bar- provi- gaining implementation if the of that with, or of, sion would be in violation or inconsistent statute or statutes enacted conflict Pennsyl- Assembly of the General Commonwealth municipal home rule char- vania (Emphasis supplied). ters.” prohibition present misconstruction of The Court’s Pennsyl finds its antecedent in this section contained College Area State Relations Board v. vania Labor 494, 509, District, A.2d majority there construed A Court4 improperly in a providing included an item only violation bargaining agreement if it is in collective opinion in that case stated: existing law. The Court’s merely prevents a term of a collective “Section 703 being bargaining agreement from violation exist- ing law.” items conclude

“We therefore applicable other where only section 703 excluded under *16 definitively prohibit explicitly and statutory to that making employer from the employment.” at specific term condition or 269,270. 510,337 A.2d at College a con- that such expressed

I State view language unambiguous plain ignores and struction phrases “inconsist- opinion. The I that adhere to 703. § of Act with” that section conflict and “in ent with” of” obviously synonymous “in violation are legislature’s assuming no for there is basis writer, joined by by Mr. filed concurring opinion was 4. A opinion. dissenting Eagen a filed Mr. Justice Jones. Chief Justice

Ill surplusage. explicit of such to mere use terms amounted supra (con- College, n. State 337 A.2d at curring although T-III, opinion). Thus, Article section 9(f) agreement may of the collective not be Code, “in is not an end violation of” School matter; provision question remains whether that binding consequence of the arbitra- and the inor tion which it entails inconsistent with conflict statutory the Public with the scheme contained in (The Code). analysis me Code5 satisfies An Code present. inconsistency and conflict are indeed comprehensive Article XI of constitutes Code regulate relationship designed between scheme are district and its Teachers divided school teachers. classifications, These are into three 1101. defined § professional professional temporary (1) (2) employes, employes (3) substitutes.6 employee (whose rights temporary professional

The specifically and status are delineated § professional employee Code) distinguishable from factor, of tenure by significant e., i. the lack a sole but I, seq., 24 P.S. et P.L. art. Act 5. March seq. (1962). 1-101 et “§ Definitions. 11-1101. article, As used in this those (1) ‘professional employe’ shall include who The term teachers, princi- supervising principals, supervisors, certified as education, visiting hygienists, pals, of vocational dental directors counselors, teachers, visitors, school sec- school home deter- of merit as retaries mined selection whom is on basis by eligibility lists and school nurses. (2) any who has mean individual The term ‘substitute’ shall perform regular professional employed of a been the duties professional period regular employe during such of time as the legal au- employe thorized or cause is and on sabbatical leave other absent for per- or to approved school directors the board of temporary professional employe is ab- who form duties of a sent. (3) ‘temporary professional employe’ mean shall term time, perform, employed been limited individual who has professional newly regular position duties of a created of a death, employe resignation, service has whose been terminated suspension or removal.” *17 112 330, Teter, 326, A.2d Pa. 87 See Travis 370 v.

status. Joint (1952); District 177, 179 Johnson v. United School (1963) Pa.Super, 375, 191 A.2d 897 Board, accompa (allocatur denied).7 which Among the benefits procedural ny safe acquisition are the of tenure guards whom any tenured teacher which attend no (see 1129-32). There are board to dismiss seeks § pertain the dismissal corresponding provisions Trinity Area teachers, of non-tenured see Nicolella v. 544, 281 A.2d 832 Board, 444 Pa. School District School a case action in such (1971); but since 1971 school Agency adjudication the Local is considered 1133, Law, 2, 1968, 53 P.S. P.L. § Act December procedural due to full seq., teacher entitled et and the is District Smethport Area School process See thereunder. (1971). See Pa.Super. 269, A.2d Bowers, v. Bowers, 440 Pa. Smethport District Area School also (1970). 310, 269 A.2d 712 temporary a power board to dismiss explicitly granted employee

professional § (and implicitly in 1122 of Code § § assumed) Trini- Nicolella v. appeal have parties to this Board, 444 ty District School Area School (d) Employes Tem- Temporary Professional 11-1108. 7. “Section except purposes, employes porary professional shall for all status, employes, and shall as full-time be viewed law tenure employes.” regular privileges rights full-time enjoy all Code, teacher the non-tenured § 1108 of Pursuant is, in es- employed employe” is for what professional “temporary sence, yearly twice years. least probationary period of two At a required rate such county superintendent or district procedure forth in according set performance, teacher’s District, 436 Pa. Area School Mullen v. DuBois 1123. See satisfactory years two consecutive After 258 A.2d 877 satisfactory rating during last four upon performance and gains teacher probationary period, months of the e., acquires tenure “professional employe”, i. he the status of (See employe’s professional contract. ?. to a and is entitled 1121). Code, operative supra, sec- n. 514 of the see were Even employees, temporary professional governing tion change expressed herein. would not the views

113 (1971); Dis v. United 832, 281 835 Johnson School A.2d Board, Pa.Super. 897 375, 191 A.2d trict School 201 Joint grounds (allocatur denied).9 for dismissal (1963) The specifically only ground incompetency (the only are not grounds 1108) other mentioned in but also several § of contract 1122 for termination a enumerated § District a v. tenured teacher. Johnson United School immorality, grounds supra. Joint The Board, School de negligence, mental persistent intemperance, cruelty, persistent of rangement, violation and and wilful 1122). (section school laws of this Commonwealth scheme, statutory compass, being, in brief discharge substantive, procedural pertaining to and collec teachers, it to me that of clear provision here in issue tive rel. ex in Commonwealth conflict with As we said it. A.2d District, 6 Sunbury 335 Pa. Hetrick v. 279, 281 (1939): system is public policy of our

“The fundamental children facilities to the best educational obtain duty devis- . . this Commonwealth. . important obligation be by can ing which this methods upon discharged boards.” the school devolves end, legislature boards To has entrusted school employ competent, effec- power duty to with the and the power ibid, and, fortiori, the correlative teachers, tive fit. to duty discharge not deem be those does applicable § holding grounds for In 9. professional professional employees em- temporary as to well ployees, Superior Court reasoned: that a professional appears temporary employe us “It unsatisfactory rating by either 1123 referred be dismissed set §§ for reasons 1108 and the board discharged professional employe § be forth in 1122. If a can professional employe temporary cannot section, discharged ac- under that the teacher who has quired rights one years greater tenure two than service has acquired who has tenure This could not have been status. at legislature.” Pa.Super. A.2d intent of Concededly, power capriciously, cannot be wielded purpose and the clear of 1122 of the was to insure Code competent and dedicated teachers would not be the targets of arbitrary board Streibart Board action. Directors City the School District York, (1940).10 say A.2d 303 But to may not act arbitrarily not, course, does it of relieve power duty fundamental to maintain the best and system most possible. Appeal efficient school See Houtz, light, 361 Pa. 65 A.2d 420 In this T-III, inclusion 9(f) of article section in the collec- *19 bargaining agreement tive before us amounted to a dele- gation paramount responsibility which, of a if wholly violation of Code, School is at least incon- sistent with statutory scheme which the embod- Code ies. recognizes

The Assembly Court in- General tended that a school board should have broad discretion- ary powers in employment, the area of teacher but con- bargaining agreement cludes that this collective can be “fully protect construed such a manner as to the au- thority (Opinion Court, of the board.” of the ante at 47 quotes majority opinion The Borough from Brentwood Appeal, a District (1970) Pa. 267 A.2d 848 to the effect role, hearing plays acting at dismissal the board a dual prosecutor judge, totally both as unbiased. and as and hence can never be 262-63, perhaps overly- 439 Pa. at A.2d 848. intended, mind, broad statement pugn my was not at least to to im- hearings all board where teacher dismissal is involved. In- deed, I subscribe Mr. dissenting Justice Roberts’ comment Borough, Brentwood expect to the effect that we should a school professional board to employees truly hearing” offer its “a fair notwithstanding its dual role. As Mr. Justice Roberts went on say, every agency “almost administrative in this Commonwealth acts at prosecutor judge’ some time or another as ‘both proceedings; the course of its they re- all nonetheless quired proceedings to conduct their in accordance with certain minimum standards of fairness ... too much [it not] public agency to ask of a like a school board that it restrain its prosecutorial provide zeal and procedural at a least modicum of every appears fairness to citizen who before it.” 439 267 A.2d at 852. impossi- respect, think is an [typed copy]). I With provi- illustration, following bility. consider As sion of the School Code: 508§ majority all the mem- of a “The vote affirmative duly directors bers the board voted, showing re- recorded, each member shall be how following on the sub- quired in to take action order jects:

Dismissing hearing.11 teacher a after appellant au of the Board’s ultimate emasculation thority will re teacher which is ob of the issue to arbitration sult from submission that the basis If the should determine arbitrators vious. “just constitutes the Board’s decision dismiss cause”, taking roll call the Board will performance perfunctory merely min amount echoing duty meaningless of a decision made isterial —a Surely sort of by the for the Board arbitrators. comport with the reasoned decision- charade would not leg making each individual Board member *20 by if after a hear Conversely, intended 508. § islature by Board, majority vote of mem ing the affirmative to duly in with were dis recorded accordance bers § employee professional for one of the temporary § miss could, contract, even at causes, under the 1122 the union point (a point in late had not been reached that bar) no as a that there was the case at assert “just of the Board the dismissal. action cause” for futility, the in en been an exercise would then have District, 436 A. Area School In Mullen DuBois requirement §in (1969) the that 2d this Court held formally order that of each member be recorded the vote mandatory. directory rather be is than board action valid however, affected, recognition a ma- holding jority our way in no validity of of actions enu- to the the vote is essential §in 508. merated tire arbitrators; case would then be to referred the arbi sit, effect, super trators would as a school board in a discipline matter of dismissal, teacher not but sub ject provisions the governing to Code the boards, subject appeal.12 actions school not to presence recapitulate, To the T-III, section clause 9(f), it, bargaining agree- or a clause like in a collective every ment means that decision of to dis- miss a incompetency, non-tenured teacher because of im- morality, intemperance, (see cruelty, etc. § Code, supra) become, subject will elects, if the teacher so binding to accept I cannot arbitration. that this abdica- tion responsibility by legislature was intended policy is consonant with the of the Public applies public Relations Act as it schools. Employe pleas I would reverse order of the court common proceed appellant and allow Board its hear- to with ing propriety Vahey’s and determination as to the of Mr. dismissal. Court, suggest, majority (opinion

12. To as ante at does [typed copy]), procedural safeguards 41-42 that the which are af- forded the Agency teacher Code and the Local might Law are than to less be desired the teacher is point. why miss would is The issue before us Federation prefer that matters of be teacher dismissal submitted arbitration; question binding consistently whether be done reason, legislative it For scheme. this same willing is less restrictive in tages ante the accept union irrelevant “. forth substantive standard set conduct [than § procedural greater 1122 or in return for the advan- 514] opinion proceeding.” (Majority afforded the arbitration [typed hand, copy]). nothing On the other there is prevent logic particular contract or in dis- arbitrators in a pute giving “just from cause” a construction which is narrower statutory than the they enumeration Were of causes for dismissal. so, purpose to do of the Code would thwarted. As excellent a many aspects device is in arbitration labor relations, deliberate, responsible substitution of for the record- board, a majority ed action of pursuant a school taken Code, my of the Public School inis conflict view clear legislative with the intent.