Opinion
Argued October 3, 1983
March 12, 1984.
Schools — Furlough — Decline in enrollment — Public School Code of 1949, Act of March 10, 1949, P.L. 30 — Collective bargaining agreement — Seniority system — Head Start program — Certification requirements.
1. The designation of teachers as professional employes with certain seniority rights under the Public School Code of 1949, Act, of March 10, 1949, P.L. 30, becomes irrelevant when it is not a factor in a seniority system created by a valid collective bargaining agreement which shall not be superseded or preempted by Code provisions. [39]
2. As certification requirements of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, are not applicable to teachers in the Head Start program, certification or non-certification status need not be considered in applying a seniority system under a collective bargaining agreement to teachers in that program when furloughs are required because of a decline in overall pupil enrollment. [39]
Argued October 3, 1983, before President Judge CRUMLISH, JR., and Judges BARRY and BARBIERI, sitting as a panel of three.
Appeals, Nos. 1945 C.D. 1982 and 524 C.D. 1983, from the Orders of the Court of Common Pleas of Allegheny County in case of Verna Arnold v. Board of School Directors of the School District of Pittsburgh, No. SA 344 of 1982, and in case of Linda J. Womack v. Board of School Directors of the School District of Pittsburgh, No. SA 563 of 1982.
Professional employees furloughed by Board of School Director's of the School District of Pittsburgh. Employees appealed to the Court of Common Pleas of Allegheny County. Decisions affirmed. Appeals dismissed. PAPADAKOS, A.J. Employees appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Eugene A. Lincoln, for appellants.
Persifor S. Oliver, Jr., Assistant Solicitor, with him Robert J. Stefanko, Solicitor, for appellee.
Verna Arnold and Linda Womack, teachers for the Pittsburgh School District's Head Start program, appeal Allegheny County Common Pleas Court orders affirming the Board of School Directors of the School District of Pittsburgh's decisions to furlough them. We affirm.
Our scope of review is limited to that set by Section 754(b) of the Local Agency Law, 2 Pa. C. S. § 754(b). See also Porter v. Board of School Directors of Clairton School District, 67 Pa. Commw. 147, 445 A.2d 1386 (1982). Thus, we must determine whether there was a violation of constitutional rights, an error of law or a lack of substantial evidence.
In accordance with the teachers' collective bargaining agreement, Arnold and Womack were laid off due to the decline in pupil enrollment. Participation in the Head Start program, however, had not declined. Each is certified in early childhood education and had taught for two "school terms" as that term is defined by Section 102(3) of the Public School Code of 1949 (Code), but had not been employed for two calendar years at the time of furlough. Some non-certified teachers for the Head Start program who had been employed longer by the school district were retained.
School term is defined as
the period of time elapsing between the opening of the public schools in the fall of one year and the closing of the public schools in the spring of the following year.
Section 102(3) of the Act of March 10, 1949, P. L. 30 as amended, 24 P. S. § 1-102(3).
Appellants were hired November 6, 1979, and furloughed by letter dated July 17, 1981, effective July 22, 1981.
Arnold and Womack first argue that the School Board should have designated them permanent professional employees as defined in Section 1108 of the Code. They contend that this designation would have entitled them to the seniority rights granted by Section 1125.1 of the Code. Those rights, however, have been replaced by Article 29 of the collective bargaining agreement which had been negotiated by their collective bargaining agent and the school board in accordance with the Public Employe Relations Act (PERA). Subsection (e) of Section 1125.1 of the Code recognizes such a possibility by providing that nothing contained in the preceding subsection relating to seniority "shall be construed to supersede or to preempt any provisions of a collective bargaining agreement negotiated by a school entity and school entity and an exclusive representative of the employes in accordance with [PERA]." In this context, therefore, the designation of professional employee is irrelevant since it is not a factor in the seniority system created by the collective bargaining agreement.
24 P. S. § 11-1108.
24 P. S. § 11-1125.1. This section of the Code provides for seniority to accrue to [p]rofessional employees . . . within the school entity of current employment."
Article 29 of the collective bargaining agreement provides for "System-wide Seniority and Layoff-Recall Provisions." System-wide seniority is defined as "consecutive time as a regular teacher, other professional employee, or other promoted employee since most recent date of hire, including any time spent on Board-approved leave(s) of absence but not including time employed in a full-time substitute status."
Act of July 23, 1970, P.L. 563, 43 P. S. § 1101.101 — 2301.
Arnold and Womack also assert that the School Board mistakenly utilized in the Head Start program non-certified instructors and instructors certified in other than early childhood education when properly certified teachers were furloughed. We have previously held that Head Start programs are not subject to Code certification requirements. Philadelphia Federation of Teachers v. Board of Education, 51 Pa. Commw. 296, 414 A.2d 424 (1980). The School Board, therefore, did not need to consider certification when it applied the negotiated seniority system.
Arnold and Womack also assert that the denial of tenure to Head Start teachers is a violation of the equal protection clause of the fourteenth amendment of the United States Constitution. This is without merit since tenure is not a consideration in the negotiated seniority system.
We hold therefore that the School Board was correct in its determination that the furloughs of Arnold and Womack were proper.
Affirmed.
ORDER IN 1945 C.D. 1982
The order of the Court of Common Pleas of Allegheny County dated July 8, 1982, is affirmed.
ORDER IN 524 C.D. 1983
The order of the Court of Common Pleas of Allegheny County dated January 28, 1983, is affirmed.