Ellwood City Area School Dist. v. Secretary of Ed.

Decision Date03 August 1973
Citation308 A.2d 635,9 Pa.Cmwlth. 477
PartiesELLWOOD CITY AREA SCHOOL DISTRICT, Appellant, v. SECRETARY OF EDUCATION, Appellee, and George R. Reese, Jr., Intervening Appellee.
CourtPennsylvania Commonwealth Court

Argued June 5, 1973.

Phillip E. Morris, Morris & McKim, Ellwood City, William F. Kershner, Morgan, Lewis & Bockius Philadelphia, John E. Krampf, Media, for Elwood City Area School District.

Watzman Levenson & Snyder, Ronald N. Watzman, Pittsburgh, James F Wildeman (Pa.Labor Rel. Board), Harrisburg, Francis A. Zulli James L. Crawford, Asst. Attys. Gen., Harrisburg, for appellees.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.

OPINION

WILKINSON Judge.

The question before the court, as accurately stated by appellant, is:

'Does membership in various teachers' organizations, national, state and local render a first level supervisor incompetent under the tenure laws, for the reason that such membership precludes him from performing all of the duties that otherwise he would be expected to perform?'

This question was answered in the affirmative by the appellant School District which, after notice and hearing, dismissed intervening appellee, George R. Reese, Jr., from his position as Assistant High School Principal. Prior to being promoted to this position in August 1971, intervening appellee Reese had been a tenured high school teacher in appellant School District.

The Secretary of Education, on appeal, reversed the School District and ordered it to reinstate intervening appellee Reese forthwith without loss of pay. This appeal followed. We must affirm the Secretary.

The charges upon which intervening appellee Reese was dismissed were incompetence and negligence based entirely on the fact that he was a member of employe organizations which, the School District concluded, made him ineligible to handle grievances or to otherwise perform duties properly assignable to an Assistant High School Principal.

The issue before us is entirely one of law. There is no dispute on the facts. There was only one witness who testified at the hearing before the School District. He was the Superintendent of Schools of the School District. He testified that intervening appellee Reese had never received an unsatisfactory rating for his work as Assistant High School Principal. The record shows that it was known to the School District at and prior to the time he was promoted to Assistant High School Principal that intervening appellee Reese was a member of these associations. It was clear that the School District disapproved of his membership, but it is equally clear that it never asked him to resign and equally clear that he never said that he would. How failing to resign under such circumstances could be construed as negligence is beyond our comprehension and is not seriously pressed in the arguments or briefs.

Appellant argues very convincingly that being a member of an employe association that is bargaining with the employer is inconsistent and incompatible with being a first level supervisor who handles confidential files, and who should be available to the employer to handle grievances and give advice on collective bargaining with the employe association. Persuasive and convincing as these arguments may be, they must be made to the Legislature and not to this Court. The Legislature, in Section 704 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.704, made specific provision for first level supervisors to be members of employe associations that are bargaining with the employer, albeit not in the same unit of the employe association that is bargaining. Section 704, 43 P.S. § 1101.704, provides:

'Public employers shall not be required to bargain with units of first level supervisors Or their representatives but shall be required to meet and discuss with first level supervisors Or their representatives, on matters deemed to be bargainable for other public employes covered by this act.' (Emphasis supplied)

It is clear that the Legislature was at least conscious that when it permitted first level supervisors to be members of employe organizations that were bargaining collectively, a special status would have to be created. Therefore, in section 604(5), 43 P.S. § 1101.604(5), it provided:

'Not permit employes at the first level of supervision to be...

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