In the Matter of the Arbitration
between : Opinion and Award
CHAMBERSBURG AREA EDUCATION : RE: Brian Zoeller
ASSOCIATION, PSEA/NEA 2 (Non-Appointment to
e Coaching Position)
and
CHAMBERSBURG AREA SCHOOL,
DISTRICT
Before: Joan Parker
Arbitrator
Appearances
For the Distric
Levin Legal Group, P.C.
by Richard B. Galtman, Esquire
For the Associ mn:
Killian & Gephart
by Michael J. O’Connor, Esquire
: * * +
Pursuant to the grievance procedure set forth in the Collective Bargaining
Agreement (“Agreement”) between the Chambersburg Area Education Association,
PSEA/NEA (“Association”) and the Chambersburg School District (“District”), the
undersigned was designated to arbitrate the instant dispute, Hearing was held on January
21, 2015 in Chambersburg, Pennsylvania, at which both parties were afforded full
opportunity to present testimony, evidence and argument in support of their respective
Positions. The parties” post-hearing briefs were received by the Arbitrator as of April 27,
2015, at which time the Record was deemed closed.The Issues
The issues to be determined, as stipulated at hearing, are as follows:
1, Does the Arbitrator have either the contractual or statutory authority to
rule on the Association's grievance concerning the School District’s
failure to appoint Grievant Brian Zoeller as the assistant coach for
Junior varsity boys” basketball for the 2012-2013 school year?
2. Ifthe Arbitrator has such authority, did the District violate the parties’
Collective Bargaining Agreement by failing to appoint Grievant as an
assistant basketball coach for the 2012-2013 school year? If so, what
shall be the remedy?
Relevant Contract Language
The Collective Bargaining Agreement between the parties includes the following
pertinent provisiot
ARTICLE I — ASSOCIATION RECOGNITION AND BARGAINING.
UNIT
1.2 Bargaining Unit: The members of the bargaining unit shall be
hereafter referred to as “professional employees”, and shall consist of
those employees of District holding the following positions and
otherwise included within the definition of “temporary professional
employee” and “professional employee” as contained in the Public
School Code of the Commonwealth...
A. Classroom Teachers (including half-time teachers)...
The parties acknowledge that... in designating the members of the
bargaining unit as “professional employees” in this contract, they do not
intend to expand, alter, modify, or in any way affect the scope of the
bargaining unit as set forth in the aforementioned orders of the
Pennsylvania Labor Relations Board.
Supervisors, first-line supervisors, and confidential employees are excluded from the
bargaining unit by § 1.3. Section 1.5 - Other Exclusions, provides in part:
‘The following employees of the District are agreed by the parties not to
be included within the bargaining unit as defined aforesaid. It is further
agreed that nothing contained in this agreement shall apply to such
employees, and that nothing contained in this agreement shall apply to
the benefit of any person otherwise a member of the bargaining unit
while employed in any such position unless such person has been
specifically directed by Distriet to perform such duties in his or her
capacity as a professional employee:B. Any person engaged in the summer recreational program, or
any recreational program in which such employee’s participation
is a matter for such employee's voluntary participation. This
clause shall not include employees otherwise members of the
bargaining unit engaged in supervising, advising, or assisting in
the conduct of any extracurricular activity recognized as such by
the District.
2.6 Just Cause Provision: No employee shall be disciplined,
reprimanded in writing, reduced in compensation, or discharged without
just cause...
ARTICLE VI-DUTIES
6.2 Non-Teaching Duties:
-- No professional employee shall be required to serve as any advisor,
sponsor, coach or director which will normally and regularly require
work afier the normal school day.... A professional employee serving as
such advisor or sponsor shall notify by May 1 his or her respective
principal in the event he or she does not wish to continue as such advisor
or sponsor...
13.4 Extra-Duty Pay Schedule: Professional employees performing,
certain extra duties shall be paid compensation for such duties as are
listed upon the Extra-duty Salary Schedule marked “Exhibit E”, attached
hereto, and made a part hereof as full as though set out at large herein..
Among other schedules, Exhibit E sets forth the Coaches Salary Schedules for the 2011-
2012, 2012-2013 and 2013-2014 school years.
Back yund
The District's Version of the Facts
Grievant Brian Zoeller is a high school art teacher who was hired by the District
for the 2005-2006 school year (SY). From SY 2005-2006 through SY 2011-2012, he
participated as a salaried assistant boys’ basketball coach. He was not appointed as.
assistant coach for SY 2012-2013. The District’s version of the events resulting in his
not being so appointed was presented through the testimony of Franklin “Beau” Gantz
(head basketball coach for SY 2012-2013, who testified telephonically), ChambersburgHigh School principal Burdette “Buddy” Chapel, and District Director of Human
Resources Sylvia Rockwood; as well as through the submission of documentary
evidence.
Prior to SY 2012-2013, fifth grade teacher Shawn Shrefiler had been head
basketball coach since SY 1997-1998. His not being appointed to that position for SY
2012-2013 was somewhat controversial. In March 2012, Beau Gantz was notified that he
had been appointed as head basketball coach. Athletic Director Don Folmar directed
Gantz to assemble his own coaching staff, and provided him with e-mail addresses of the
previous year’s assistant coaches. Gantz had already heard from one, Dennis
Chamberlin, that he did not want to coach during SY 2012-2013.
Gantz e-mailed Grievant on June 4, 2012 to inform him that he was setting up
individual meetings with the prior coaches for June 5, stating in part: “I apologize for the
delay in getting to you. If your schedule does not support these [offered] meeting times, I
am certain that we can mutually agree to another time.” At the start of the meeting,
Gantz introduced himself to Grievant and asked what position he had held previously.
Grievant told him that he had experience with all of the players, and had primarily been
in charge of defense. However, Grievant also stated that he supported Shrefiler in the
controversy over his non-appointment. Gantz assured Grievant that that was okay.
Grievant then said that because of his loyalty to Shrefiler, he did not know if he could
give one hundred percent to the program under Gantz, Gantz told Grievant that he would
like to have him on his coaching staff because of Grievant’s familiarity with the players.
Grievant replied, I’m not sure. I’m loyal with Shreffler.” (Tr. at 18.)
Gantz told Grievant that because it was already June, he needed to get his staff’into place by Tuesday, in light of summer leagues, tournaments, and camps. He asked
Grievant to let him know whether he wanted to join the coaching staff by Friday, June 8,
2012. He also told Grievant that if he did not hear from him by Friday, he would assume
that Grievant had decided he did not want to coach that year. Gantz testified that while
he had some concer that Grievant might not be one hundred percent committed to him
personally, his feeling was that Grievant would be one hundred percent committed to the
program, and he knew the players. “I was very much interested in having him on staff.”
(Tr. at 31.) Gantz stated that no one had told him not to offer Grievant a coaching
position, or even hinted at it.
Gantz did not hear from Grievant on Friday, however. He recalled that on
Tuesday, June 12, 2012, he sent Grievant an e-mail stating that since he had not heard
from him on Friday he was going to fill Grievant’s position. He wrote in part:
In our meeting you indicated that you were not sure where your head was
and that you were not sure you could give 100 percent to the job. I
shared that I would like (o settle the coaching positions by Friday and if
you could let me know where you stand by last Friday it would be a big
help to me. I did not hear from you yesterday and offered the junior
‘Varsity position to another person. 1 wish you well in your future
‘coaching career and fully understand your hesitancy in your decision. As
Thave expressed, the young people need to see a united front in the
coaching staff and I am not certain you could move forward quickly
enough...
Gantz could not recall if there was still a position open for Grievant in July, but
did not believe so because he was trying to get the staff into place quickly. On
Monday, June 11, 2012, Gantz e-mailed Folmar:
Our 2012-13 coaching staff is set. It is as follows:
Junior Varsity Mr. Lindsey
Varsity Assistant Mr. Hall
*I spoke with Mr. Zoeller on Tuesday June 5, 2012 and asked him to let me
know of his interest in continuing to coach before the end of the day, Friday June[8], 2012, and he has not, Therefore, 1 would like to move forward with the
‘additional hire of Mr. Jay Hall as the Varsity Assistant and Mr. William Lindsey
as the Junior Varsity coach. All staff members are presently working for our
school district with exception of Mr. Hall. Please let me or him know what the
‘next steps are to complete his hiring processes...
| will be contacting some of the young people today, to determine when “open
gym" will occur this summer. I will pass this information on to you when all has
been finalized. Also, to lear the possibilities of playing in the tournament in
Fredericksburg, MD July 11-12.
Could you please have Mrs. Rebuck call with the person(s) name on the
Basketball Boosters Club. I would like to fill in the vacancies as soon as possible
to move the SUMMER CAMP forward. I will make all the calls, if necessary.
(Ex. D-4.)
In mid-June, Principal Buddy Chapel met with Folmar and Gantz to discuss any
temaining staffing needs. Gantz told Chapel and Folmar that all of the previous coaches
were returning, except for Chamberlin and Grievant, Gantz stated that Chamberlin had
declined to meet with him, and that although Gantz had tried to get Grievant to return,
Grievant had declined. An August 4, 2012 “workshop” mé
1g Was held to determine
‘what athletic program positions still needed to be filled. Chapel had no conversations
with Grievant during the summer, and in fact was not aware that the instant grievance had
‘moved beyond the initial oral step until 2014. He spoke with Grievant in March 2014,
after Shreffler had been reinstated as head coach as a result of an arbitration award,
According to Chapel, Grievant acknowledged during that conversation that he had been
offered a coaching position for SY 2012-2013.
Director of Human Resources Sylvia Rockwood testified that she accepts the lists
of coaches recommended by the building principals and submits them to the School
Board. It is District practice when a new head coach is appointed for any sport to allow
that coach to select his or her own staff. The Board has final approval of the staff.
Rockwood stated that Gantz’s selection of his coaching staff for SY 2012-2013 wasconsistent with District practice.
Testimony of the Union’s Witnesses
Testifying on his own behalf at hearing, Grievant stated that he had applied for a
coaching position for SY 2012-2013. On May 5, 2012, Folmar had sent out an e-mail to
Grievant and three others, which stated: “Gentlemen: We need to know by 9:00 on 5-29
if you are interested in meeting and talking with the new coach at some point concerning
coaching positions in the program. Please e-mail me your response.” (Ex. A-1.) At 8:08
a.m. on May 29, Grievant e-mailed Folmar: “I am interested.” On June 1, he e-mailed
Folmar again, saying that it was his understanding that meetings with previous coaches
were being set up for the following Tuesday, and he had not been contacted, Grievant
then received Gantz’s June 4 e-mail about meeting on Tuesday, June 5.
According to Grievant, he and Gantz initially spoke about basketball in general.
‘Then Gantz. commented that he had been told that Grievant would not coach again. “And
Texplained that was not the case and I hadn’t resigne
And he said: “Well, I don’t
think I can have anybody on my staff that wouldn't give me 100 percent.” I said anything
Ido I will give you 100 percent.... And he said: ‘Well, I was told I could choose my
staff and I’m going to choose it. I will let you know by Friday what I decide.”...” (Ir. at
60-61.)
Grievant insisted that Gantz did not ask him to respond with an answer. Rather,
Gantz stated that he would let Grievant know by Friday. When Grievant heard nothing
on Friday, he waited until Monday. He finally e-mailed Gantz at 9:35 a.m. on Tuesday,
June 12, asking whether he had made a decision. Gantz responded that he had offered the
position to someone else. Grievant testified that he had opened Gantz’s e-mail “probablywithin hours to a day.” (Tr. at 78-79.) He acknowledged that he did not respond in any
‘way, or call or e-mail Folmar.
Grievant stated that he read in the newspaper in July that the position was still
open. He testified that he did not have much of a reaction other than it “stung a little
more.” (Tr. at 70.) In August, he saw the workshop list on the District website and that,
the assistant basketball coach positions were blank. He assumed that he was off the list.
On September 11, 2012, Grievant wrote to Acting Human Resources Director Purvis:
“While reviewing ... my 2012-2013 salary, I noticed there is no salary for coaching. Al
of my other non-teaching salaries ... are listed correctly. Only the coaching salary is
omitted. However, I have not resigned that position. Please advise.” (Ex. A-5.) Purvis,
replied on September 12: “The School Board approves all coaching positions on a yearly
basis. My understanding is your name was not on the approval list for the 2012-2013
school year for School Board approval. A grievance in reference to your coaching
situation has been submitted.... Therefore, any questions concerning this matter should
go thru [sic] your union representative.”
‘The Board formally approved the coaching staff list on October 24, 2012. The
October 24, 2012 Chambersburg Area School District Personnel Report (A-2) reflects
that the JV Boys’ Basketball Coach “to replace Brian Zoeller” was new appointment
Larry Locke, and Assistant Boys’ Basketball Coach “to replace Dennis Chamberlin” was
new appointment Jahmal Hall. Grievant could not recall if he had attended the Board
meeting, but he acknowledged that between June and September 2012, he had never
asked to address the School Board or speak to the District Superintendent.
Grievant stated that Gantz’s testimony that he told Grievant to notify him if hewanted to coach was not accurate. According to Grievant, the first time he had heard that
Gantz had wanted him to coach because of his experience and knowledge of the players
‘was at the arbitration hearing. He testified that all of the junior high coaches were
retained, but the high school staff—Grievant, Chamberlin, John Burgoon, and Grievant's
brother—was not. Burgoon and Grievant’s brother were volunteer coaches, however,
and did not receive stipends. Grievant stated: “I believe that [Gantz] walked into the
meeting with prior knowledge or prior input because he said to me: ‘I heard you were
extremely loyal to Coach Shrefiler and I don’t want anyone on my staff who would look
at me and think that should be Coach Shreffler. And I was told you wouldn’t coach ever
again.”” (Tr. at 87-88.) He acknowledged that he did not tell Gantz. he wanted to be a
coach for SY 2012-13 and stated that he was not sure whether or not he had said he
wanted to continue as coach “because we never really got to that point.” (Tr. at 89.)
Grievant acknowledged that he did not tell Gantz that he was committed to the
kids and program and wanted to be on the staff. When he received Gantz’s e-mail on
June 12", Grievant said he was angry and upset. However, he did not call Gantz and say
that there had been a misunderstanding, because he felt “the game was pretty well
rigged.” (Tr. at 92.) He also did not call Folmar to say that he had expressed his interest
in continuing to be a coach. (Tr. at 93.) He asserted that he did not attempt to contact,
any Board members, because he had done so on behalf of Shreffler, and the majority had
declined to take his calls, He did not know if either Burgoon or his own brother had
elected not to volunteer. He admitted that he was the only salaried coach. Chamberlin
‘was a retired employee who had volunteered.
John Burgoon testified that he had coached basketball for forty-two seasons priorto retiting—since SY 1970-1971—and seven seasons after that. He had not offered to
volunteer for SY 2012-2013, and no one had contacted him about being a coach. PSEA
Uniserve Representative and Regional Field Director Marcia Bender testified that the
local Association had asked her advice regarding filing a grievance on behalf of Grievant.
She had advised them to wait until the Board had refused to hire him. She did not hear
during the summer of 2012 that an issue had been raised as to whether Grievant wanted
to be a coach. It was only during preparation for arbitration that she heard the District's
position that Grievant had declined a coaching position.
‘The District contends that as a threshold matter the instant grievance is not
arbitrable, According to the District, because there are no provisions in the parties”
Collective Bargaining Agreement addressing the appointment of a teacher to a coaching
position, the Arbitrator lacks jurisdiction. In the absence of such a provision, the parties
have not agreed to arbitrate a district’s action with regard to a supplemental position such.
as coach, the District avers, citing in support Harbor Creek Sch, Dist. v. Harbor Creek
Edu. Ass'n, 640 A.2d 899 (Pa. 1994) and School Dist. of City of Erie v. Erie Edu. Ass'n,
749 A.2d 545 (Pa, Commw. Ct. 2000). An agreement's inclusion of compensation
schedules for such supplemental positions is insufficient to create arbitral authority over a
teacher’s non-appointment to a supplemental position (citing, e.g., School Dist. of
Borough of Morrisville v, Morrisville Edu. Ass'n, 644 A.2d 252 (Pa. Commw. Ct. 1994).
Rather, Article I of the parties’ Agreement establishes the bargaining unit as including
only “professional employees,” defined by the School Code, 24 P.S. § 11-1101, as
certificated employees. Under the Teacher's Tenure Act, 24 P.S. § 1121, coaches are
10neither certificated nor considered to be professional employees (citing Appeal of
Ganaposki, 332 Pa. 550 (1938). It is well established that teachers acting in
extracurricular positions do not have professional employee status with regard to the
extracurricular activity. In support of this position, the District cites Greater Johnstown
Area Vocational-Technical Sch. v. Greater Johnstown Area Vocational-Technical Edu.
Ass'n, 426 A.2d 1203 (Pa. Commw. Ct, 1981) and Harbor Creek, 640 A.2d 899 (Pa.
1994)). According to case law, coaching is not bargaining unit work,
In response to the Association’s assertion that § 1.5(B) of the parties’ Agreement
establishes the basis for arbitrability, citing Chambersburg Area Sch, Dist, And
Chambersburg Area Edu, Ass'n (Shawn Shreffler) (Mulligan, Arb.) (June 3, 2013)
(“Mulligan Award”), aff'd, Chambersburg Area Sch. Dist. V. Chambersburg Area Edu.
Ass'n (No. 2014-939) (Comm, Pleas Ct. 2014), the District emphasizes that the case is
currently pending on appeal before the Commonwealth Court. According to the District,
Arbitrator Mulligan’s interpretation of § 1.5(B) was plain error and thus is not binding in
the instant matter. Section 1.5 excludes from the bargaining unit uncertificated positions
such as teacher aides, secretaries, and janitorial staff, Section 1.5(B) also excludes from
the bargaining unit “any person” who volunteers to participate in a recreational program.
Section 1.5(B)'s subsequent statement—“This clause shall not include employees
otherwise members of the bargaining unit engaged in supervising, advising, or assisting
in the conduct of any extracurricular activity recognized as such by the District”—was
intended merely to clarify that employees who were otherwise certificated bargaining
unit members were not excluded from the unit by virtue of participation in recreational
programs.
MiIn further support of its position on arbitrability, the District submits that under
Article IV of the Agreement, it has the unrestricted statutory right to appoint employees
{o particular positions, including coaches and assistant coaches. Additionally, § 2.6 of
the Agreement states: “No employee shall be disciplined, reprimanded in writing,
reduced in compensation, or discharged without just cause. It is the intention of the
Parties that this provision shall not be deemed to modify the tenure provisions of the
Public School Code.” By its plain language, therefore, § 2.6 is not applicable to the non-
appointment of a bargaining unit member to an extracurricular position such as coach, but
only to disciplinary actions taken with regard to the professional employees of the
bargaining unit while performing bargaining unit work.
But even assuming arguendo that the instant grievance is arbitrable, the District
asserts there has been no violation of the Agreement. Extracurricular appointments are
made year to year. Grievant thus had no entitlement to appointment as an assistant
basketball coach for SY 2012-2013. Furthermore, just cause does not apply in Grievant's
case because he was not dis
iplined. The evidence shows that Grievant was not denied a
coaching position. Rather, he showed only lukewarm interest in such a position under
Gantz, and utterly failed to pursue it after his meeting with Gantz, Grievant did not
testify that he told Gantz at any point that he was interested in being on the coaching
staff. Moreover, the District emphasizes that Gantz had no reason to fabricate his
testimony that he asked Grievant to let him know if he wanted a position on the coaching
staff by Friday, June 8, 2012, because Gantz is no longer employed by the District.
Contentions of the Associatior
The Association contends that the issue of arbitrability raised by the District was
12previously determined in the Mulligan Award. Arbitrator Mulligan held that based upon
the language of § 1.5(B), coaches who are also bargaining unit members are entitled to
arbitrate grievances related to their coaching activities under the just cause language of
the parties’ Agreement. According to Arbitrator Mulligan’s interpretation, because
§ 1.5(B) includes any recreational program in which an employee voluntarily
participates, the activities of professional employees who participate in programs such as
coaching are brought within the terms of the Agreement. Therefore, Arbitrator Mulligan
found that the just cause provision applies when a professional employee’s compensation
is reduced by losing his appointment as a coach, The Award states in part: “This Award
by no means guarantees that a coach has the automatic right to continue in that job and
that the School Board has no right to replace him or her. But, because of the specific
Ianguage of Section 1.5(B), the right to continue as coach or be replaced is subject to the
just cause provisions of the CBA,” (Mulligan Award at 16.)
The Association further argues that the District violated the parties’ Agreement by
not retaining Grievant as an assistant coach without just cause, Shreffler was
subsequently reinstated as head basketball coach. Because—under the Mulligan
Award—the District should not have refused to reappoint Shrefiler as head basketball
coach, the Association urges this Arbitrator to determine the issues herein as if Gantz had
never been appointed head coach or made any staffing decisions. “Since Coach Shreffler
should have been retained, it rationally flows that Assistant Coach Zoeller should be
viewed as retained as well and could only be non-renewed for just cause.” (Assn. Brf. at
7.) The Association contends that there was no just cause for the District’s failure to
appoint Grievant as assistant basketball coach for SY 2012-2013.
1BIn response to the District's argument that Grievant declined the coaching
Position in question, the Association asserts that the District's contention is without merit,
Grievant never declined the coaching position. Rather, Gantz told Grievant he would let
him know whether he had been selected for the coaching staff by Friday, June 8
However, Grievant heard nothing until Gantz finally contacted him in response to
Grievant's June 12 e-mail asking if Gantz had made a decision. According to the
Association, Grievant's version of who was to get back to whom should be credited over
Gantz’s. In its view, Gantz doubted Grievant's willingness to overcome his loyalty to
Shreffler, as reflected in his questioning Grievant's ability to present a united front with
the rest of the coaching staff. The Association also notes that because Gantz testified
telephonically, the Arbitrator was not able to observe his demeanor and properly assess
his credibility.
Itis the Association’s additional position that Grievant was obviously interested
in the coaching position or he would not have contacted Athletic Director Folmar to say
‘that he was interested in speaking with Gantz, He would not have set up a time to meet
with Gantz, Additionally, he would not have e-mailed Gantz on June 12 to ask about
Gantz’s decision. According to the Association, iti significant that Gantz’s reply to
Grievant did not say that if he had heard from him by Friday, June 8, he would have
chosen Grievant for a coaching position. Moreover, the Association submits, if Gantz
had truly wanted Grievant as part of his coaching staff, he could have offered him a
Position on that staff at any point in time prior to the School Board’s October 24, 2012
formal adoption of the personnel list.
14As a threshold issue, the question of arbitrability must first be addressed. The
Association’s position on arbitrability rests solely on a single arbitral precedent between
the parties, the Mulligan Award. In that Award, the arbitrator interpreted the same
Collective Bargaining Agreement as is applicable to this case, Arbitrator Mulligan found
that the language of § 1.5(B) of the parties’ Agreement puts extracurricular activities,
when performed by the professional employees of the bargaining unit, on equal footing
with the professional activities of those certificated employees,
Under the Mulligan Award, extracurricular activities performed by professional
employees thus are subject to the same restrictions and protections as are contractually
provided to such employees for their professional work. Arbitrator Mulligan found that
§ 1.5(B) makes such extracurricular activities both arbitrable under the parties’ grievance
procedure and subject to the just cause language of § 2.6. She further found that Shawn
Shreffler, fifth-grade teacher and long-time head basketball coach, wrongfully suffered a
loss in compensation without just cause when he was not appointed to the head basketball
coaching position for SY 2012-2013,
Section 1.5 of the Agreement addresses exclusions from the bargaining unit, The
first sentence of § 1.5(B) excludes: “Any person engaged in the summer recreational
Program in which such employee participation is a matter for such employee’s voluntary
participation.” By its plain language, this sentence applies to “any person,” rather than to
professional employees. In other words, anyone who volunteers to participate in summer
recreational programs, who is not a member of the bargaining unit, does not become a
‘member of the bargaining unit by virtue of that participation. The second sentence of
15§ 1.5(B)—and the one on which Arbitrator Mulligan’s interpretation hinges — states:
“This clause shall not include employees otherwise members of the bargaining unit
engaged in supervising, advising, or assisting in the conduct of an extracurricular activity
recognized as such by the District.” To this Arbitrator, the plain meaning of this second
sentence is to exempt bargaining unit members from being excluded from the bargaining
unit by participating in extracurricular activities.
Arbitrator Mulligan did not stop there, however. She found that not only did the
second sentence exempt bargaining unit members from the exclusion expressed by
§ 1.5(B)’s first sentence, but that under the language of the second sentence, bargaining
‘unit members are covered by the terms of the Agreement even when participating in
extracurricular activities. Thus, such extracurricular activities are transformed into
bargaining unit work, arbitrable under the Agreement’s grievance procedure and subject
to the just cause standard established by § 2.6. Based on this reasoning, Shreffler was
found to have wrongfully suffered a loss of compensation without just cause when he was
‘not appointed to the head basketball coach position for SY 2012-2013.
‘The Arbitrator in this matter is mindful that the Court of Common Pleas has
upheld the Mulligan Award, based upon the “essence test,” under which courts give great
deference to arbitral findings so long as those findings are rationally based on the
language of the parties’ collective bargaining agreement. ‘The matter is now pending on
appeal before the Commonwealth Court. The Arbitrator is also mindful, however, that
under both judicial precedent and well-established principles of contract interpretation,
Arbitrator Mulligan’s reasoning is subject to question. Courts in similar cases have found
that the grievance procedures available to professional employees when they are engaged
16in professional activities are not applicable to those employees when they are performing
extracurricular activities.
The definitive case in this regard is Harbor Creek Sch. Dist. v. Harbor Creek Edu.
Ass'n, 536 Pa, $74, 640 A.2d 899 (Pa, 1994). In Harbor Creek, the Pennsylvania
Supreme Court rejected the association’s argument that supplemental positions should
also be considered to be bargaining unit work because the salary schedules for such
supplementary work were included in the appendix of the applicable collective
bargaining agreement. The Court held that the grievance procedure was not applicable to
an elementary school teacher with regard to his former role as athletic director. ‘The
Court reasoned that the contractual grievance procedure applied only to the professional
employees who constituted the bargaining unit certified by the Pennsylvania Labor
Relations Board, when performing bargaining unit work, and stated:
‘The Commonwealth Court held that teachers who are working in
extracurricular capacities are not in fact functioning as “teachers,” and,
thus, that they are not functioning as “professional employees” who can
invoke the grievance procedures, such as arbitration, set forth in the
collective bargaining agreement... We ‘agree.
(536 Pa. at 577.) The Court noted that itis a well-established judicial principle that
parties cannot be compelled to submit a dispute to arbitration in the absence of agreement
to do so. “.., [T]he mere fact that parties have specified terms in a contract does not
‘mean that they have agreed to any particular method of resolving disputes that arise from
those terms.” (536 Pa. at 578.) Although the collective bargaining agreement at issue in
Harbor Creek included appendices establishing salary schedules for extracurricular work,
the Court noted:
Traditionally, the courts have regarded disputes pertaining to
extracurricular work performed by teachers as non-arbitrable on the
7ground that such work is not professional employment covered by the
collective bargaining agreement, reasoning that it is work of a non-
professional nature performed under agreements that are merely
Supplemental to the bargaining agreement. [Citations omitted.} This has
been the result even in cases where, as here, the collective bargaining
‘agreement sets forth salary supplements and other provisions applicable
to the extracurricular work.
(636 Pa, at 579.) (Emphasis added.) See also, Appeal of Ganaposki, 332 Pa. 550 (1938)
(one employed as coach but not certificated is not a professional employee within the
‘meaning of the Teacher's Tenure Act); School Dist. Of City of Brie v. Erie Edu. Ass'n,
749 A.2d 545, (Pa. Commw. Ct. 2000) (“This Court held that itis clear under ease law,
including Harbor Creek, that coaching positions are supplemental positions not covered
by a collective bargaining agreement covering professional employees of a school
district.”
); School Dist. of Borough of Morrisville v. Morrisville Edu, Ass ’n, 165 Pa.
Cmwith. 96 (Pa Commw. Ct, 1994) (coaching positions are nonprofessional positions not
arbitrable under teachers’ collective bargaining agreement); and Greater Johnstown Area
Yo-Tech Sch v. Greater Johnstown Area Vo-Tech Edu. Ass'n, 426 A.2d 1203, (Pa
Commw. Ct, 1981) (teachers while performing extracurricular functions are not
professional employees and nonrenewal of supplemental contracts did not raise arbitral
issue).
As in Harbor Creek and similar cases, the grievance procedure in the instant.
Collective Bargaining Agreement is limited to professional employees. Unlike those
cases, however, the Agreement herein also contains § 1.5(B), which Arbitrator Mulligan
interpreted to include within the grievance procedure extracurricular work when
Performed by professional employees. In interpreting § 1.5(B), however, Arbitrator
Mulligan did not address either the provisions of § 1.5 that precede subsection (B), or
18§ 6.2, which addresses non-teaching duties.
Section 1.5 states in part that not only are certain listed employees excluded from
the bargaining unit, but: “... /nJothing contained in this agreement shall apply to the
benefit of any person otherwise a member of the bargaining unit while employed in any
such position unless such person has been specifically directed by District to perform
such duties in his or her capacity as a professional employee.” (Emphases added.)
Section 6.2 states in pertinent part: “... No professional employee shall be required to
serve as any advisor, sponsor, coach or director which will normally and regularly require
work after the normal school day...”
The plait
language of § 1.5 and § 6.2, read in pari materia, makes clear that the
Parties did not intend the terms of the Agreement to apply to work performed by
professional employees if such work is not performed as part of their professional
capacities. In the instant case, Grievant is an art teacher. Coaching basketball can in no
way be considered to be part of his duties as a professional employee. Section 6.2
establishes that professional employees are free to choose whether or not to participate in
extract
lar activities. Therefore, the disciplinary actions to which the standard of just
cause is applicable under § 2.6 generally have no relevance with regard to such acti
ies.
The just cause language of § 2.6 applies to bargaining unit members who are disciplined,
reprimanded in writ
reduced in compensation, or disciplined in connection with their
professional positions. A non-reappointment to a one-year coaching position is not the
kind of disciplinary action encompassed by the just cause language.
In light of these findings, the Arbitrator concludes that the Mulligan Award is
not persuasive, However, because that Award is still pending before the Commonwealth
19Court—and may ultimately be reviewed by the Pennsylvania Supreme Court—the
Arbitrator is unwilling to make a dispositive ruling in this case on the issue of
arbittability. Itis not her place to speak for the courts, which will have the final say on
the arbitrability of the issues raised in both the Shrefiler matter and the instant case,
‘Thus, assuming arguendo that this grievance is arbitrable, and the just cause
standard is applicable, the crux of the instant case is the factual issue of whether or not
Grievant was supposed to contact Gantz by Friday June 8, 2012 to inform him if he
wished (0 be part of the coaching staff. While Gantz did testify telephonically, as the
Association points out in its brief, the Arbitrator was able to assess his tone and the
inherent consistency of his testimony, as well as determine the extent to which
documentary evidence corroborated that testimony with regard to his communications
with Grievant. On this basis, the Arbitrator finds that Gantz’s testimony was both
credible and persuasive. His statement that he had not been told by anyone not to appoint
Grievant, and that he was in fact quite interested in having Grievant on the coaching staff
because of his experience and familiarity with the players, was both forthright and
convincing. Moreover, if Gantz had not wanted Grievant on his staff, he could have
made that decision at any time, rather than waiting through both Friday and part of
Monday to see if Grievant would communicate his choice, Indeed, Gantz gave Grievant
xtra time to contact him as agreed despite the many deadlines Gantz was trying to meet,
which were reflected in his June 11, 2012 e-mail to Folmar. Finally, Gantz is no longer
employed by the District, and he had little motive to fabricate his testimony about what
occurred in June 2012,
In contrast, Grievant's testimony was not persuasive. Right from the outset of his
20discussion with Gantz, he demonstrated litle eagemess to be part of the coaching staff.
Gantz testified credibly that Grievant made a point of raising the question about his
ability to be loyal to the program under Gantz because of his long relationship with
Shreffler. Grievant failed to get back to Gantz not only by Friday, June 8, but even by
Monday, June 11. He did not actually contact Gantz until Tuesday, June 12, asking if
Gantz had made a decision. Despite his assertion that he wanted a position on the
Coaching staff, according to Grievant's own testimony he was so uninterested in Gantz’s
decision that he did not even open Gantz’s reply e-mail until after several houts, or even
@ day, had passed. And, even then, Grievant did not reach out to Gantz. If Grievant had
‘truly wanted the assistant coach position, and if there was a misunderstanding as to who
‘was to contact whom, presumably, Grievant would have promptly contacted Gantz to
question his decision or urge him to reconsider the situation, But given Grievant's
inaction, the Arbitrator finds that Gantz. was justified in concluding that Grievant was not
interested in coaching under him.
Moreover, to Grievant's admitted knowledge, basketball coaching positions were
still open as of the August 2012 workshop. Yet, he still contacted no one to advocate on
his own behalf for one of those positions. Rather, when a coaching stipend did not
appear as part of his salary terms in September, Grievant disingenuously contacted
Acting Human Resources Director Purvis to ask why. While Grievant wrote to Purvis
that he had not “resigned” his position as coach, Grievant must surely have noticed that
he was not performing any coaching work or participating in basketball camp. Grievant
admitted that he never spoke to Chapel, Folmar, or sought to address the Board about his
asserted interest in coaching. In these circumstances, the Arbitrator finds that—rather
2than the District having failed to appoint Grievant to a coaching position—-Grievant
declined to pursue such a position. Therefore, the grievance must be denied on its merits,
Award
The District did violate the parties” Collective Bargaining Agreement by
failing to appoint Grievant Brian Zoeller as an assistant basketball coach
for the 2012-2013 school year. The grievance is denied.
XD
aA SA nea
Joan Parker
Arbitrator
May 6, 2015
22