Unfair Labor Practice vs. Managerial Prerogative: Teacher Union Collective Bargaining Rights
Abington Heights Sch. Dist. v. Pennsylvania Labor Relations Bd., 2022 WL 401191 (Pa. Cmwlth. 2022) (unreported), allocatur granted Oct. 27, 2022, appeal dockets 105 and 106 MAP 2022
Abington Heights School District (District) transferred the bargaining unit work of instructing high school students to employees of Johnson College (College) without first bargaining with Abington Heights Education Association (Union). The Pennsylvania Labor Relations Board (PLRB) concluded that the District’s action was an unfair labor practice in violation of section 1201(a)(1) and (5) of the Public Employe Relations Act, 43 P.S. §1101.1201(a)(1), (5) (PERA). The District maintained that its outsourcing of work to the College was authorized by section 1525 of the Public School Code of 1949 (School Code), 24 P.S. §15-1525, commonly known as a “dual enrollment program,” whereby students of the District could attend the College, take courses that are offered at the College, and receive high school credits and also credits at the College (if the student later attends the College) upon successful completion of the College’s courses. The PLRB held that although section 1525 authorizes the District’s use of a dual enrollment program, the District was required to bargain with the Association over the assignment of teaching dual enrollment courses for high school credit.
The Commonwealth Court reversed the PLRB. Laying out the governing principles, the court explained:
Initially, under section 701 of PERA, “public employers must collectively bargain with employee representatives over wages, hours, and other terms and conditions of employment.” … However, “it is equally apparent that the General Assembly had no intention or expectation that the collective bargaining process would permit public employees to set matters of public policy or participate with their public employer in administering the public enterprise.” …“The right to collective bargaining as to ‘wages, hours and other terms and conditions of employment’ is not unlimited, as [s]ection 702 [of PERA] unambiguously provides that a public employer is not required to bargain if the topic is one of inherent managerial policy.”… “Thus, pursuant to [s]ection 702, a public employer is not required to collectively bargain over matters of ‘inherent managerial policy’—also referred to as managerial prerogatives—as these matters are reserved for the employer’s unilateral decision-making.” …“By [s]ection 702, the General Assembly has broadly indicated what it deems to be examples of inherently managerial matters, identifying programming, standards of service, budgetary matters, organizational structure, and the selection and direction of personnel.” … “Finally, [s]ection 703 expressly provides that the parties may not bargain over, and a collective bargaining agreement [CBA] may not contravene, any legislative mandate.”
Slip op. at 12 (citations and emphasis omitted).
The court went on to provide three separate bases for its decision that the District’s unilateral decision to outsource the teaching responsibilities did not constitute an unfair labor practice. First, the court concluded that under “section 1525 of the School Code, the District possesses the statutory authority to enter into agreements with postsecondary schools, such as its Agreement with the College, and that its decision to do so is directly related to the District’s educational policy and, thus, constitutes a matter that falls within its inherent managerial prerogative.” Slip op. at 19.
Second, the court found that even assuming that the District’s action concerned wages, hours, and other terms and conditions of employment, and had no bearing on managerial prerogative, or assuming that the impact on teachers rights outweighs the District’s managerial prerogative, section 1525’s authorization of dual enrollment programs, prefaced as it is with the phrase, “[n]otwithstanding any other provision of law to the contrary,” constitutes clear and unequivocal legislative intent to supersede and completely displace any and/or all laws that state, or could be interpreted to state, a contrary proposition of law. Slip op. at 19. “Therefore, in the alternative, we conclude that section 703 of PERA mandates that the District’s decision to enter in the Agreement is not one that can be subjected to collective bargaining. On this basis, we conclude that the District did not violate PERA, and that the PLRB erred in determining otherwise.” Id. at 20.
Third, the court reasoned that, assuming that the District has managerial rights to pursue a dual enrollment program and that the union has collective bargaining rights as to that decision, “the two must be compared in a qualitive manner to determine which prevails,” id. at 21, and the balancing of the two “compels the conclusion that the District’s decision to enter into the Agreement is not one that is subjected to collective bargaining but, instead, was a matter falling within the managerial prerogative of the District.” Id. at 25.
The Supreme Court granted allocatur as to the following issues:
(1) Did the District violate its bargaining obligation under the Public Employe Relations Act by contracting with Johnson College to teach courses for high school credit without bargaining with the exclusive employe representative of the District’s teachers?
(2) Did the District violate its bargaining obligations under Pennsylvania law, where binding Pennsylvania precedent under the Public Employe Relations Act recognizes that contracting out any bargaining unit work affects a term and condition of employment regardless of whether there is an impact on employe wages and hours?
(3) Did the District violate its bargaining obligation under the Public Employe Relations Act, where Section 15-1525 of the Public School Code does not expressly preclude the District’s teachers from teaching dual enrollment courses, nor does Section 15-1525 of the Public School Code otherwise prohibit the District from bargaining with the exclusive representative of the District’s teachers over who is to teach high school credit courses in a dual enrollment program?
After the Commonwealth Court’s decision in February 2022, the legislature amended section 1525, including by adding subsection (h)(1), applicable to any agreement between a school district and a college entered into or renewed after July 8, 2022, which provides:
(h)(1) Nothing in this section shall be construed to supersede or preempt a provision of a collective bargaining agreement between a school entity and an employe organization, or a right of an employe organization under the provisions of the act of July 23, 1970 (P.L. 563, No. 195), known as the “Public Employe Relations Act.”
The Supreme Court, recognizing the intervening amendment to section 1525, also directed the parties to address its effect:
Additionally, the parties are directed to provide briefing on the effect that the recent amendments to 24 P.S. § 15-1525, see Act of July 8, 2022, P.L. 620, No. 55, have on the above issues.