In the Matter of Arbitration Between:

In the Matter of Arbitration Between: EXETER TOWNSHIP EDUCATION ASSOCIATION and EXETER TOWNSHIP SCHOOL DISTRICT PaBMed Case #2015-0316 (Gr: Flex Days) Walt De Treux, Esq., Arbitrator Hearing Date: 2/25/16 Briefs Received: 3/29/16 Decision Date: 4/28/16 Appearances: For the EA- Jesika A. Steuerwalt, Esq., PSEA LEGAL DIVISION For the District - Ellis H. Katz, Esq., SWEET STEVENS KATZ Introduction and Statement of Relevant Facts Act 48 of 1999 addressed the participation of Pennsylvania public school educators in continuing professional education. In response, the Exeter Township School District formed an Act 48 Committee and a Professional Development Committee (PDC). In June 2001, the District and the Exeter Township Education Association entered into a Memorandum of Understanding, incorporated into the contract in 2003, which defined the composition of the PDC and provided for recommendations of the PDC to be considered by the School Board. As part of its responsibilities, each year the PDC would recommend to the Superintendent the number of "flex days" available to staff during the school year. A "flex day," as described by current Superintendent Dr. "means that on a day(s) in the summer, outside of the contractual year, when a teacher chooses (but is not mandated) to attend the professional development offered by the administration, may be used by the teacher to Dex out, or excuse themselves on a

2 school year work day(s) on the calendar designated by the district as eligible for "flexing." The Association modified that definition to include any professional development completed on a professional employee's own time (i.e., not just during the summer). The parties agree that the recommendations of the PDC are non-binding on the District. However, the PDC has consistently recommended three flex days per year. In the thirteen years between 2002-03 and 2014-15, the District has granted three flex days in 11 of the 13 years, including seven consecutive years from 2008-09 to 2014-15. For the 2015-16 school year, the PDC again recommended three flex days. The District considered the recommendation, but it elected to grant two flex days. The Association grieved, arguing that the District violated "a clear 'past practice"' by not basing its decision on the PDC recommendation. The parties were unable to resolve the grievance through the contractual steps, and the matter was referred to arbitration. On February 24, 2016, a hearing was held at the School District offices in Reading, Pennsylvania, during which time both parties had a fuli and fair opportunity to present documentary and other evidence, examine and crossexamine witnesses, and offer argument in support of its respective positions. The parties filed post-hearing briefs, and the matter was submitted to the Arbitrator for a decision.

3 Issues The parties stipulated to the following issues, 1) Is the grievance substantively arbitrable? 2) If so, did the School District violate the collective bargaining agreement when it reduced the number off/ex days from 3 to 2 during the 2015-16 school year? If so, what shall be the remedy?.l Definitions: Relevant Contract Provisions *** (i) "Grievance" shall mean an alleged violation, an alleged misinterpretation alleged improper application of a provision of this Agreement... or an EXHIBIT "C" Other Employee Benefits and Conditions of Employment Act 48/Professional Development Committee 37. *** ( c) Recommendations formulated by the Professional Development Committee... shall be appended to any recommendations made by the Act 48 Committee for consideration by the school board.

4 Analysis and Decision Arbitrability The District contends that the present grievance is not substantively arbitrable because it asserts a violation of an alleged past practice. The District cites to Allegheny County v. Allegheny County Prison Employee Independent Union, 381 A.2d 849 (Pa. 1977) to argue that the Association cannot grieve a past practice that is not grounded in a specific section of the collective bargaining agreement. In that case, the Pennsylvania Supreme Court recognized that past practice can be the basis of a grievance for the following reasons: "(1) to clarify ambiguous language; (2) to complement contract language which sets forth only a general rule; (3) to modify or amend apparently ambiguous language which has arguably been waived by the parties; and, ( 4) to create or prove a separate, enforceable condition of employment which cannot be derived from the express language of the agreement." At 852 Examining the fourth factor, the Court held, "... where a collective bargaining agreement not only makes no mention whatever of past practices but does include a broad integration clause, an award which incorporates into the agreement, as separately enforceable conditions of the employment relationship, past practices which antedate the effective date of that agreement cannot be said to 'draw its essence from the collective bargaining' agreement. At 854, citing United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 4 L.Ed.Zd 1424 (1960) The District argues that the Association is attempting to prove "a separate, enforceable condition of employment," and since the contract does not include past practice language and does have a broad integration clause, the grievance should be denied as not arbitrable. The Association's argument on the merits, summarized neatly in a sentence from its brief, is as follows,

5 "By repeatedly adhering to the practice of three flex days, the District by its own action converted a mere recommendation into a binding practice... " (emphasis in original) Exhibit C, Section 37(c) of the collective bargaining agreement provides for recommendations of the PDC to be considered by the School Board. The Association is arguing that the PDC's recommendations as to flex days are no longer to be considered by the Board, but rather, are binding on the District. Under the Allegheny County analysis, the Association's argument falls under the second factor cited by the Court, i.e., complementing contract language that sets forth only a general rule. The Association maintains, in effect, that the general contractual rule that PDC recommendations be considered by the Board is complemented or supplanted in the specific situation of flex days, based on the District's repeated acceptance of the recommendation for three flex days per year. The Association is not advocating for a separately enforceable condition of employment that cannot be derived from contract language; rather, the Association's past practice argument is rooted in the contract language of Exhibit C, Section 37(c). For these reasons, I find that the grievance is substantively arbitrable. Merits Past Practice. Noting that the District has granted three flex days each year for the last 7 years based on the recommendations of the PDC1, the Association argues, "the District by its own action converted a mere recommendation into a binding 1 In some years, Superintendent did not ask for a recommendation, knowing that the PDC would recommend three flex days as it had always done.

6 practice." But the alleged past practice does not trump clear contract language. Exhibit C, Section 37(c) clearly states that PDC recommendations are given "for consideration by the school board." Although the language does not expressly state, the parties agree that the recommendations of the PDC are non-binding. The fact that the District has acted favorably on the PDC recommendations for 7 consecutive years does not modify the contract language to mandate acceptance of the recommendation by the Board or convert a non-binding recommendation to a binding one. The Association's argument suggests that unless the District rejects PDC recommendations from time to time, the District will have waived its contractual right to consider PDC recommendations and must instead implement them without consideration of any other factors the Board examines when making its decision. The validation of such an argument would effectively force the District into reiecting PDC recommendations with which it may otherwise agree simply to avoid the possibility it may have agreed often enough to create a binding past practice. That position has no support in Section 37(c). Moreover, the parties know how to make recommendations binding if they so choose. Exhibit C, Section 39 of the contract created a Special Education Committee, whose recommendations "shall be codified by the Board and become Board policy by December 2010." The parties did not negotiate such a specific provision for the PDC; to the contrary, the parties expressly provided that the PDC recommendations receive "consideration" from the Board - impliedly reserving to the Board the decision whether to implement the recommendations.

7 Finally, the Association looks back 7 years, a self-selected number that tends to support its argument for a past practice. But 8 years ago, during the 2007-08 school year, the District granted two flex days; and in the 2002-03 school year, professional employees received one flex day. The Association's argument for a binding past practice doesn't account for those years that tend to defeat the notion of a consistent, unequivocal past practice. For these reasons, r find there is no binding past practice that required the District to accept the PDC recommendation and grant professional employees three flex days in the 2015-16 school year. Dl!tY~o_BarJIB_in The Association cites to the PLRB's decision in Conrad Weiser Education Association v. Conrad Weiser School District, 46 PPER if59 (2014), to argue that the District had a duty to bargain over a change in the number of flex days from three to two in the 2015-16 school year 2 The Hearing Examiner found, "... flex time falls within the description of 'hours' as defined in section 701 of PERA and is therefore a mandatory subject of bargaining." In Exhibit C, Section 37(c), the parties have empovvered the PDC to make recommendations recommendations to the School Board. Since its inception, the PDC has made regarding the number of flex days. Accordingly, the parties have 2 The Association raised the duty to bargain argument for the first time at hearing. It did not file an unfair labor practice charge on the issue. The belated assertion of the argument lends itself to a finding that the argument has been waived. Nonetheless, this Decision addresses the merits of the Association's position.

8 bargained over the procedure through which the number of flex days would be established, i.e., a recommendation from the PDC and a final decision by the District. The Association notes that the PDC is not authorized to negotiate for the Association. That fact is not relevant to a resolution of the present dispute because the Association, not the PDC, negotiated with the District (in their 2001 MOU) the non-binding nature of the PDC's recommendations. If the Association wants the PDC recommendation on flex days to be binding or if it wants to retain for itself the right to negotiate over the number of flex days, Section 37(c) can be appropriately amended in negotiations with the District. The Association also cites to the PDC meeting in 2013 during which Dr. discussed possibly unsettled contract negotiations for a successor agreement. She referred to maintaining for the 2013-14 school year the status quo of signing up for 2 flex days as was done in the 2012-13 school year. The Association argues that this discussion reflects the District's acknowledgement that it has a duty to bargain with the Association over the number of flex days. The minutes of the 2013 PDC meeting don't clearly convey the precise nature of Dr. 's discussion. It refers to signing up for 2 flex days in 2012-13, but the parties agree that professional employees received three flex days that school year. So, it is not clear whether Dr. 's reference to the status quo referred to the number of flex days received or the number of flex days for which employees could "sign up." The distinction, if any, is not explained in the minutes, nor did Association witnesses explain it during the hearing. In short, the minutes do not conclusively demonstrate District recognition that it must bargain over the number of flex days.

9 Moreover, whatever the context of Dr. t's discussion, the minutes do not nullify the language of Section 37( c) and the parties' agreement that the recommendations of the PDC are non-binding. Accordingly, I find that the District did not breach any duty to bargain over the number of flex days granted in the 2015-16 school year. For all these reasons, I find that the School District did not violate the collective bargaining agreement when it reduced the number of flex days from 3 to 2 during the 2015-16 school year.

10 In the Matter of Arbitration Between: EXETER TOWNSHIP EDUCATION ASSOCIATION and EXETER TOWNSHIP SCHOOL DISTRICT PaBMed Case #2015-0316 (Gr: Flex Days) Walt De Treux, Esq., Arbitrator Hearing Date: 2/25/16 Briefs Received: 3 /29 /16 Decision Date: 4/28/16 Award The grievance is substantively arbitrable. On the merits, the grievance is denied. WALT De TREUX