IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chester Upland School District, :

Petitioner :

:

v. : No. 2599 C.D. 2015

: Argued: October 17, 2016

Pennsylvania Labor Relations Board, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION 

BY JUDGE SIMPSON FILED: November 16, 2016

In this labor relations case, the Chester Upland School District 

(District) petitions for review of a Final Order of the Pennsylvania Labor Relations 

Board (Board) that determined the District committed unfair labor practices within 

the meaning of Sections 1201(a)(1) (interfering with employee rights) and (a)(5) 

(refusing to bargain collectively in good faith) of the Public Employe Relations 

Act (PERA),

1

43 P.S. §§1101.1201(a)(1), (5). The Board’s order also required that 

the District rescind an attendance and punctuality policy it unilaterally imposed 

during the 2013-14 school year after the June 30, 2013 expiration of the District’s 

respective collective bargaining agreements (CBAs) with the Chester Upland 

Educational Association, PSEA/NEA, and the Chester Upland Educational Support 

Personnel Association, PSEA/NEA (collectively, Unions). The District contends 

 

1 Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§1101.101-1101.2301.
2

the Board erred in determining it committed unfair labor practices by 

implementing its new policy. For the reasons that follow, we affirm.

I. Background

A. Generally

The Board found the following pertinent facts. The District and the 

Unions are parties to respective CBAs that expired on June 30, 2013. In August 

2013, the District notified its employees of a new attendance and punctuality 

policy. The Unions responded with a letter asserting the new policy changed the 

terms and conditions of employment and therefore constituted a mandatory subject 

of bargaining that must be agreed upon by both parties prior to implementation.

In October 2013, the Unions objected to the new policy on the basis 

that it was a mandatory subject of bargaining. The District, however, disagreed. 

During collective bargaining negotiations in October and November 2013, the 

District took the position that the policy merely explained how absences would be 

tracked, and that the District did not alter the way employees could use sick leave 

or change any of the disciplinary consequences associated with absences. In 

particular, the District asserted that discipline applied under the new policy is not 

any different than the discipline that could have been applied prior to the adoption 

of the new policy. The Unions, however, requested that the District stop 

implementation of the policy until it was properly bargained. Thereafter, the 

Unions filed unfair labor practice charges asserting that its unilateral 

implementation of the new policy violated PERA.
3

In January 2014, the Secretary of the Board issued a complaint and 

notice of a hearing. Prior to the hearing, the parties agreed to submit stipulations 

and joint exhibits in lieu of testimony.

B. District’s Codified Sick Leave Policy

With regard to sick leave, described as “Attendance Protocol,” the 

policy includes the following features:

After the third day of absence for personal illness:

 An informal conversation with your rating officer 

 Note on the Attendance Ledger that the 

conversation took place

 A memo documenting the conversation

After the fifth day of absence for personal illness:

 A warning memo and copy of current Attendance 

Ledger

 Memo and copy of the ledger placed in the school 

or appropriate office file

After the seventh day of absence for personal illness:

 Unsatisfactory Incident Memo

 Conference with the rating officer and union 

representation

 Documents forwarded for review to the Deputy 

Superintendent

 The Deputy Superintendent will forward the 

documents to the official personnel file

After the ninth day of absence for personal illness:

 Unsatisfactory Incident Memo

 A conference with the rating officer and union 

representation
4

 Documents forwarded to the Deputy 

Superintendent (instructional) or the Director of 

Human Resources (non-instructional) for a second 

level hearing

 

Joint Ex. No. 3; Reproduced Record (R.R.) at 122a.

C. Initial Approach: Hearing Examiner’s Proposed Decision and Order

Before Hearing Examiner Stephen A. Helmerich (Hearing Examiner), 

the Unions alleged the District violated Section 1201(a)(5) of the PERA by 

refusing to bargain with regard to the attendance and punctuality policy before 

unilaterally implementing the policy. The Unions also alleged the District’s failure 

to collectively bargain over a mandatory subject of bargaining would discourage 

union membership.

In his Proposed Decision and Order (PDO), Hearing Examiner 

reasoned that in order to determine whether a particular issue is a subject of 

mandatory bargaining, the Board must apply a balancing test to determine whether 

the impact of the issue on the interest of the employee in wages, hours, and other 

terms and conditions of employment outweighs its probable effect on the basic 

policy of the school system as a whole. Pa. Labor Relations Bd. v. State College 

Sch. Dist., 337 A.2d 262 (Pa. 1975). Pursuant to Sections 702 and 703 of PERA, 

matters of inherent managerial policy and matters in which the employer may not 

agree because of prohibitive language in another statute are not subjects of 

mandatory bargaining. 43 P.S. §§1101.702, 1101.703. The Board and the courts 

also recognize that no violation of the statutory duty to bargain may be found: (1) 

if there is no change to past practice, Clark Summit Borough, 29 PPER 29126 
5

(Final Order 1998); (2) if the change involved a matter of inherent managerial 

policy, Joint Bargaining Comm. of Pa. Social Servs. Union v. Pa. Labor Relations 

Bd., 469 A.2d 150 (Pa. 1983); or, (3) if the employer is contractually privileged to 

make the change, Pa. State Troopers Ass’n v. Pa. Labor Relations Bd., 761 A.2d 

645 (Pa. Cmwlth. 2000). The party asserting the commission of an unfair labor 

practice bears the burden of establishing the violation by substantial and legally 

credible evidence. Pa. Labor Relations Bd. v. Kaufman Dep’t Stores, 29 A.2d 90 

(Pa. 1942). 

Initially, Hearing Examiner noted, several Board decisions hold that 

sick leave policies are mandatory subjects of bargaining under the State College

test. See Greater Johnstown Educ. Ass’n v. Greater Johnstown Sch. Dist., 19

PPER 19112 (Final Order 1988); Southeast Delco Educ. Ass’n v. Southeast Delco 

Sch. Dist.; 28 PPER 28013 (Proposed Decision and Order, 1996); Ne. Educ. 

Intermediate Unit No. 19, 14 PPER 14239 (Proposed Decision and Order, 1983).

However, Hearing Examiner determined the Unions failed to meet 

their evidentiary burden of showing the District’s unilateral implementation of the 

new attendance and punctuality policy changed the terms and conditions of 

employment covered by the policy. In support, Hearing Examiner cited the 

Board’s decision in Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia,

31 PPER 31023 (Final Order 2000), where a police union failed to establish that a 

codification of disciplinary action regarding off-duty activities resulted in a change 

to the terms and conditions of employment. In that case, the Board determined the 

union failed to show a change in the status quo ante because it could not prove the 
6

City did not previously apply the disciplinary action in question to off-duty 

activities prior to codification. In short, the union failed to show there were any 

new sources of discipline under the new policy.

Applying the City of Philadelphia rationale to the facts in the present 

case, Hearing Examiner determined the Unions failed to demonstrate by substantial 

and legally credible evidence that there were any new sources of discipline under 

the District’s new attendance and punctuality policy. PDO at 8. Therefore, 

Hearing Examiner determined the Unions failed to show the new policy changed 

the terms and conditions of employment. Id. Hearing Examiner also observed that 

although the Unions presented evidence that employees were disciplined under the 

new policy for their absences, they failed to present any evidence that the 

discipline applied differed from the discipline that would have been applied prior 

to implementation of the new policy. Id.

Because the Unions failed to meet their evidentiary burden of showing 

a change in terms or conditions of employment, Hearing Examiner dismissed the 

Unions’ charge of unfair labor practices. PDO at 8. Accordingly, in July 2015, 

Hearing Examiner issued an order dismissing the Unions’ complaints. Id.

D. Different Approach: Board’s Final Order

The Unions timely filed exceptions. See R.R. at 156a-60a. In its 

Final Order, the Board took a different approach. First, the Board added the two 

following findings of fact:
7

28. The CBA between the [Chester Upland Education 

Association] addressed sick leave in Article XXIII. 

Article XXIII(A) provides as follows:

All bargaining unit members employed shall be entitled 

to eleven (11) sick leave days each school year as of the 

first official day of said school year whether or not they 

report for duty on that day. Unused sick leave days shall 

be accumulated from year to year with no maximum 

limit.

29. The CBA between the [Chester Upland Educational 

Support Personnel Association] addressed sick leave in 

Article XIX. Article XIX provides as follows:

Each full-time non-probationary employee shall be 

entitled to eleven (11) sick days per year which shall 

accrue as of July 1 of each year. New full-time nonprobationary employees shall accrue sick leave on the 

basis of one (1) sick day for each month worked which 

shall be retroactive to the date of employment upon 

completion of probation. Employees shall be required to 

submit a doctor’s note after three consecutive days of 

absence for illness.

 

Final Order at 1-2 (Findings of Fact No. 28, 29).

Second, the Board took a different approach to its reasoning. 

Generally, the Board noted, a complainant bears the burden of proof on a charge of 

unfair labor practices alleging a change in wages, hours or working conditions. 

However, the Board and this Court also recognize that where an employer issues a 

unit-wide policy unilaterally altering or defining the terms in a CBA, the 

complainant establishes a prima facie case of failure to bargain in good faith. 

Wilkes-Barre Township v. Pa. Labor Relations Bd., 878 A.2d 977 (Pa. Cmwlth. 

2005). Further, where an employer’s unilaterally imposed policy differs from the 
8

express words of the CBA, the burden of proving that there is, in actuality, no 

change with respect to the application of negotiated terms and conditions of 

employment lies with the employer as a defense to the charge. Springfield Educ. 

Ass’n v. Springfield Sch. Dist., PERA-C-04-83-E (Proposed Decision and Order, 

2005); Sto-Rox Educ. Ass’n v. Sto-Rx Sch. Dist., 34 PPER 67 (Proposed Decision 

and Order, 2003).

Here, the Board observed, the stipulated evidence established that the 

District’s new attendance and punctuality policy differed from the express terms of 

the CBAs with respect to employees’ sick leave entitlement and usage. Therefore, 

the Board reasoned, the Unions satisfied their burden of proving an unlawful 

unilateral change to negotiated working conditions for purposes of Section 

1201(a)(5) of PERA (refusal to bargain collectively). As such, the burden of proof 

shifted to the District to defend against the charge by establishing that 

implementation of the new policy effected no actual change to the contract terms 

because application of the policy was consistent with binding past practices 

regarding sick leave and discipline. Final Order at 4.

The Board noted the District stipulated it did not impose any 

discipline on any Union employee different from that which could have been 

imposed prior to the adoption of the new policy. However, the Board noted, that 

stipulation does not amount to an admission by the Unions that the District 

imposed discipline for sick leave prior to the implementation of the new policy. 

Also, the stipulation does not constitute substantial evidence that the District had, 

in fact, imposed discipline prior to implementation of the new policy.
9

In short, the Board reasoned, in the absence of substantial evidence 

showing a past practice of issuing similar discipline under the CBAs for the 

employees’ use of sick leave, the District failed to establish a defense to its unfair 

labor practice violations under Sections 1201(a)(1) (interfering with employees’ 

rights under PERA) and 1201(a)(5) (refusal to bargain collectively) of PERA.

Therefore, the Board sustained the Unions’ exceptions and vacated

Hearing Examiner’s Proposed Order. The Board also directed the District to cease 

and desist from its unfair labor practices. Further, the District must rescind the 

new attendance and punctuality policy and restore the status quo ante; rescind any

discipline imposed on employees under the new policy; and, make the employees 

whole for any lost wages or benefits resulting from said discipline. The District 

petitions for review.2

II. Discussion

A. Argument

1. Legal Standard

The District contends the Board erred in determining it committed 

unfair labor practices by implementing the new policy. The District first claims

the Board applied an incorrect legal standard by shifting the burden of proof to 

 

2 Our review of a final order of the Board is limited to determining whether the Board’s 

necessary findings of fact are supported by substantial evidence, whether the Board erred as a 

matter of law, committed a procedural irregularity, or violated any constitutional rights. 

Lancaster Cnty. v. Pa. Labor Relations Bd., 124 A.3d 1269 (Pa. 2015). Substantial evidence is 

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 

Id. However, substantial evidence is more than a mere scintilla, it must do more than create a 

suspicion of the fact to be established. Id. 
10

establish an unfair labor practice from the Unions as complainant to the District as 

the respondent. In unfair labor practice proceedings, the burden of proof is on the 

complainant. Kaufman Dep’t Stores. Therefore, the District asserts, the Board 

erred in shifting the burden of proof on the basis that the District unilaterally 

implemented a unit-wide policy altering or defining the negotiated terms of the 

CBA. Thus, assuming the burden of proof remained with the Unions, the District 

argues the Unions failed to produce any evidence that the District imposed any 

discipline under the new policy that it did not impose under the CBA.

The District also asserts the Board erred in finding that the difference 

between the new policy and the express terms of the CBAs with respect to sick 

leave entitlement and usage constituted substantial evidence and established the 

Unions’ prima facie case supporting an unfair labor practice charge of failure to 

bargain in good faith. The new policy and the CBAs each provided for 11 days of 

sick leave per year.

The District further argues the Board’s reliance on Wilkes-Barre 

Township is misplaced. The Board maintains there was no shifting of the burden 

in Wilkes-Barre Township, and the Court explained that the role of the Board is to 

remedy violations of statutes (e.g., unfair labor practices under PERA), not 

violations or breaches of contract. Rather, the Board is empowered to review an 

agreement to determine whether the employer repudiated the agreement’s terms. 

Id. Such repudiation may constitute an unfair labor practice and give rise to a 

grievance. Id. 
11

In particular, the District asserts, a review of the new policy and the 

sick leave provisions of the CBAs indicate that in adopting the new policy, the 

District did not repudiate or reject the terms of the CBAs. Under the Board’s 

rationale, the District argues, any change in a policy remotely related to the terms 

in the CBAs, no matter how insubstantial, would shift the burden of proof to the 

employer to demonstrate there is no factual change to the policy. In other words, 

the District asserts, if an employer implements a policy that relates at all to the 

language of the CBA without bargaining on the matter, it would have committed 

an unfair labor practice.

The District argues this rigid reading of the law is arbitrary and 

unreasonable. In addition, it is not supported by appellate court decisions. Rather, 

the case law states the employer’s implementation of the policy must amount to an 

actual repudiation of the contract.

Here, the District argues, by no stretch of the imagination can its new 

policy be read as a repudiation of the sick-day provisions of the CBAs. The new 

policy did not reduce the amount of 11 cumulative sick days. Rather, the policy 

provides guidance on how the attendance and sick leave are to be tracked and 

monitored. The CBAs did not address the procedure for tracking and monitoring 

the 11 days of sick leave permitted. 

Further, the District argues, the Unions presented no evidence that the 

District implemented a policy differing from the District’s past practice. 
12

Therefore, the District maintains it is irrational for the Board to impose that burden 

on the District.

2. Managerial Prerogative

The District also contends the ultimate issue in this case is whether the 

new policy concerns a mandatory subject of bargaining or falls within the 

District’s management prerogative. The District asserts that when addressing 

topics which straddle the boundary of mandatory subjects of bargaining and 

managerial prerogatives, the proper approach is to inquire whether collective 

bargaining over the topic would infringe upon the public employer’s managerial 

responsibilities. Borough of Ellwood City v. Pa Labor Relations Bd., 998 A.2d 

589 (Pa. 2010). If so, it will be considered a managerial prerogative not subject to 

collective bargaining. Id. If not, the topic is subject to mandatory collective 

bargaining. Id. Here, the District asserts the Board’s conclusion that the District’s 

unilateral implementation of the new policy established a prima facie case of 

refusal to bargain utterly disregards the mandate of Ellwood City that a 

determination first be made as to whether the District, in adopting the new policy, 

was properly exercising its managerial prerogative.

To that end, the District asserts it has an obligation to the public to 

provide continuous instruction to its students. Thus, it is a matter of the highest 

public concern that teachers and other school employees show up to work and not 

create a disruption of the educational process. Continued or long-term absences 

require additional planning and the hiring of substitute personnel. Otherwise, 
13

students will suffer a loss of instructional time and disruption of the learning 

process.

 

The District further points out the courts recognize that in public 

employment, certain areas must remain under the employer’s prerogative. See

Chambersburg Area Sch. Dist. v. Pa. Labor Relations Bd., 430 A.2d 740 (Pa. 

Cmwlth. 1988) (school’s right to unilaterally prohibit smoking is an inherently 

managerial prerogative under State College balancing test); PSSU Local 668, 

SEIU, AFL-CIO, CLC v. Dep’t of Pub. Welfare, PERA-C-98-353-E (Final Order 

1999) (under State College balancing test, evidence did not show dress code 

policy’s impact on employee’s substantial interests in the professional delivery of 

services).

In this matter, the District maintains it has the right, and even a duty, 

to the public to inquire into its employee’s absences under certain circumstances. 

It owes that obligation to the students and their parents. If an employee is absent 

because of sickness for an extended period, the District must determine what 

corrective measures or assistance, if any, the District can render to return the 

employee to the schools.

B. Analysis

In its Final Order, the Board determined the District committed unfair 

labor practices under Section 1201(a) (1) and (5) of PERA by unilaterally 

implementing its new attendance and punctuality policy, which differed from the 
14

employees’ negotiated sick leave benefits under their respective CBAs. WilkesBarre Twp. In explaining its decision, the Board stated (with emphasis added):

Where an employer’s unilaterally imposed policy differs 

from the express words of a [CBA], the burden of 

proving that there is in fact no change with respect to the 

application of negotiated terms and conditions of 

employment lies with the respondent as a defense to the 

charge. E.g. Springfield Education Association v. 

Springfield School District, PERA-C-04-83-E (Proposed 

Decision and Order, 2005); Sto-Rox Education 

Association v. Sto-Rox School District, 34 PPER 67

(Proposed Decision and Order, 2003).

Because the stipulated evidence established that 

the District’s Policy differs from the express terms of the 

CBAs with respect to employes’ sick leave entitlement 

and usage, [the Unions] satisfied their burden of proving 

an unlawful unilateral change to negotiated working 

conditions under Section 1201(a)(5) of PERA. As such, 

the burden of proof shifted to the District to defend 

against the charge by establishing, through evidence, 

testimony or stipulations, that its unilaterally 

implemented Policy effected no actual change to the 

contract terms because application of the Policy was 

consistent with a binding past practice regarding sick 

leave usage and discipline.

Here, the District stipulated that ‘[i]t is the position 

of the District that the District has not imposed any 

discipline on any employee represented by [the Unions] 

different than the discipline that there could have been 

implemented prior to the adoption of the policy.’ 

(Stipulation 24, emphasis added). That stipulation, as 

stated, is not an admission by [the Unions] that discipline 

for sick leave usage was imposed prior to implementation 

of the Policy; nor is it substantial evidence that the 

District had in fact imposed discipline for sick leave use 

prior to the implementation of the Policy. In the absence 

of substantial evidence introduced by the District to show 

a past practice of issuing prior similar discipline under 
15

the CBAs for employes’ sick leave use, the District has 

failed to establish a defense to its violation of Section 

1201(a)(1) and (5) of PERA. See [Springfield Sch. Dist.; 

Sto-Rox Sch. Dist.] 

After a thorough review of the exceptions and all 

matters of record, [the Unions] have sustained their 

burden of establishing that the District violated Section 

1201(a)(1) and (5) of PERA by unilaterally implementing 

a Policy that differed from the employes’ negotiated sick 

leave benefits in the CBAs. [Wilkes-Barre Twp.] The 

exceptions filed by [the Unions] shall therefore be 

sustained .... 

 

Final Order at 4-5.

1. Managerial Prerogative

An administrative agency’s interpretation of a statute within its own 

area of expertise must be given controlling weight unless it is clearly erroneous. 

Lancaster Cnty. v. Pa. Labor Relations Bd., 124 A.3d 1269 (Pa. 2015). 

Appreciating the competence and knowledge an agency possesses in its relevant 

field, an appellate court will not lightly substitute its judgment for that of a body 

whose expertise makes it better qualified than a court of law to weight the facts. 

Id. This high level of deference is especially significant in the complex area of 

labor relations. Id. 

Section 1201(a)(5) of PERA provides that public employers commit 

an unfair labor practice by refusing to collectively bargain in good faith with an 

employee representative. 43 P.S. §1101.1201(a)(5). In particular, an employer 

commits an unfair labor practice by making a unilateral change in a subject of 

mandatory bargaining without prior collective bargaining with the designated 
16

representative. Cnty. of Delaware v. Pa. Labor Relations Bd., 735 A.2d 131 (Pa. 

Cmwlth. 1999). To determine whether a specific issue is a subject of mandatory 

bargaining, the Board must determine whether the impact of the issue on the 

employee’s interests in wages, hours, and other terms and conditions of 

employment outweighs its effect on the basic policies of the school district as a 

whole. State College; Cnty. of Delaware.

Here, both Hearing Examiner and the Board determined the District’s 

implementation of the new attendance and punctuality policy constituted a 

mandatory subject of collective bargaining under the State College test. 

The District contends the Board erred by failing to take into account 

the mandate of the Supreme Court in Ellwood City to determine whether the 

District was properly exercising its managerial prerogative in adopting and 

implementing its new attendance and punctuality policy. In Ellwood City, the 

Supreme Court recognized that Section 702 of PERA states that public employers 

shall not be required to bargain over matters of inherent managerial policy 

including “‘such areas of discretion or policy as the functions and programs of the 

public employer, standards of services, its overall budget, utilization of technology, 

the organizational structure and selection and direction of personnel.’” Ellwood 

City, 998 A.2d at 599 (quoting Section 702 of PERA). Citing State College, the 

Court noted that certain topics concern subjects which are essential to a public 

employer’s managing of its employees and the running of its enterprise, but also 

there are certain matters that directly implicate the public welfare and should be 

insulated from the give and take of collective bargaining.
17

Affording the rationale in Ellwood City due consideration, we 

nevertheless discern no error in the Board’s application of the State College test to 

the facts in the present case. There are several reasons for our conclusion. First, 

the Board has a history of treating sick leave policies as mandatory subjects of 

collective bargaining under the State College balancing test. See Greater 

Johnstown Educ. Ass’n; Springfield Sch. Dist.; Sto-Rox Sch. Dist. This is the type 

of issue where the Board’s determination is due deference. Lancaster Cnty. 

Second, we agree with the Board’s conclusion based on our 

independent review and on a prior decision of this Court. The District’s new 

policy does not lessen the total amount of sick days allowable. Rather, it now 

imposes progressive discipline upon employees for using their allotted sick days 

for personal illness. Given these facts, the unilaterally implemented disciplinary 

provisions of the new policy distinctly impact the employees’ terms and conditions 

of employment to a greater extent than they affect the basic policies of the school 

district. This analysis and conclusion are consistent with our decision in a prior 

appeal from the Board, Abington Transportation Association v. Pennsylvania 

Labor Relations Board, 570 A.2d 108 (Pa. Cmwlth. 1990) (affirming Board’s 

determination that rules regarding tardiness/absenteeism and absences of three 

consecutive days fall under the category of mandatory subjects of bargaining rather 

than the school district’s inherent managerial prerogatives). Therefore, we reject 

the District’s argument that implementation of the new policy was exempt from 

bargaining.
18

2. Legal Standard

In vacating Hearing Examiner’s dismissal of the charges, the Board 

determined the stipulated evidence established the District’s new policy differed 

from the terms of the CBAs with respect to sick leave entitlement and usage. Final 

Order at 4. Therefore, the Board determined the Unions satisfied their initial 

burden of proving an unlawful unilateral change to the negotiated working 

conditions. Id.

We agree. The District’s new policy does more than simply monitor 

and track employees’ use of sick leave. Rather, it imposes progressive discipline 

based on an employees’ use of the allotted 11 days. The new policy provides for 

the issuance of: a memo after three nonconsecutive days; a “warning memo” after 

the fifth day of absence; an “unsatisfactory incident memo” is placed in the 

employee’s file after the seventh day of absence; and, a second “unsatisfactory 

incident memo” is placed in the employee’s file and the matter is reported to the 

District’s Deputy Superintendent of Human Resources for a hearing after the ninth 

day of absence. Final Order at 5. Although the parties’ respective CBAs provide 

for disciplinary action based upon just cause, the District’s new policy imposes 

discipline for absences based solely on personal illness. As such, the District’s 

policy unilaterally changes the terms and conditions of employment. 

An employer’s unilateral implementation of a change in the terms and 

conditions of employment is an unfair labor practice regardless of whether it takes 

place during the terms of a CBA, following the expiration of the CBA or during 

the course of negotiations. Commonwealth v. Pa. Labor Relations Bd., 459 A.2d 
19

452 (Pa. Cmwlth. 1983). Here, the sick leave provisions in the CBAs did not 

impose any disciplinary steps for the amount of sick leave used. See Final Order, 

F.F. Nos. 28, 29. As such, the District’s new policy, on its face, provided 

substantial evidence of a unilateral change in the terms and conditions of 

employment. 

As to the burden on the District to respond to the prima facie

determination of unfair labor practice, we detect no error. Our conclusion is 

consistent with our prior decision in Wilkes-Barre Township. In Wilkes-Barre 

Township, this Court, speaking through Judge (now President Judge) Leavitt, 

addressed the affirmative defense of contractual privilege. The affirmative defense 

calls for dismissal of a charge of unfair labor practice by unilateral modification 

where the employer establishes a sound arguable basis in the CBA for the claim 

that the employer’s action was permissible under the CBA. Wilkes-Barre Twp., 

878 A.2d at 983. However, the sound arguable basis requirement is not met by “an 

action that attempts to expand contractual terms through unilateral adoption of 

managerial policies that are not in response to a specific contractual claim and have 

unit-wide application.” Id. Since we face a similar dispute here, placing the 

burden of proof on the District to more fully establish its sound arguable basis in 

the CBA is consistent with our holding in Wilkes-Barre Township. 

We also reject the District’s argument that the Unions bore the burden 

of showing there were no past practices regarding the imposition of discipline 

outside of the express terms of the CBAs. To the contrary, a line of Board 

decisions indicate the Board regularly relies on the employer to establish that a 
20

codification of its past practices or unwritten work policies did not constitute a 

change in terms and conditions of employment so as to constitute an unfair labor 

practice. See Pa. State Troopers Ass’n v. Pa. State Police, 36 PPER 67 (Final 

Order 2005); United Steel Paper Forestry Rubber Mfg. Energy Allied Indus. and 

Serv. Workers Int’l v. McDonald Borough, 44 PPER 104 (Proposed Decision and 

Order, 2013); Teamsters Local No. 25 v. Elizabeth Twp., 39 PPER 12 (Proposed 

Decision and Order, 2008); Sto-Rox Educ. Ass’n. Rather, an employer’s assertion 

of a past practice is procedurally consistent with a defense to a charge of refusal to 

bargain. Fraternal Order of Police, Conservation Police Officers, Lodge No. 114, 

v. Fish and Boat Comm’n, 42 PPER 48 (Proposed Decision and Order, 2011).

Here, the Board found the stipulated evidence did not establish the 

District imposed discipline for use of sick leave prior to implementation of the new 

policy. Final Order at 4. Although the District stipulated it could have imposed 

the same discipline under the sick leave provisions in the CBAs, this is insufficient 

to establish the District had in fact imposed such discipline prior to implementation 

of the new policy. Id. Absent any evidence that a past practice ever actually 

occurred, there is insufficient evidence that such a practice was accepted by the 

parties. Cnty. of Allegheny v. Allegheny Cnty. Prison Emp. Indep. Union, 381 

A.2d 849 (Pa. 1978). Therefore, we discern no error or abuse of discretion in the 

Board’s determination that the District failed to present substantial evidence that 

the discipline issued under the new policy was consistent with discipline issued 

under the sick leave provisions of the CBA.
21

III. Conclusion

For the above reasons, we detect no error or abuse of discretion in the 

Board’s determination that the District’s unilateral implementation of its new 

attendance and punctuality policy, which differed from the employees’ negotiated 

sick leave benefits in the CBAs, violated Sections 1201(a)(1) and (5) of PERA. 

Accordingly, we affirm the Board’s Final Order. 

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chester Upland School District, :

Petitioner :

:

v. : No. 2599 C.D. 2015

:

Pennsylvania Labor Relations Board, :

Respondent :

O R D E R

AND NOW, this 16th day of November, 2016, for the reasons stated 

in the foregoing opinion, the Final Order of the Pennsylvania Labor Relations 

Board is AFFIRMED.

 

ROBERT SIMPSON, Judge