IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Abington Heights School District, :

Petitioner :

: No. 404 C.D. 2021

v. :

: Argued: September 20, 2021

Pennsylvania Labor Relations Board, :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: February 10, 2022

Abington Heights School District (District) petitions for review of the 

March 19, 2021 final order of the Pennsylvania Labor Relations Board (PLRB) that 

dismissed the District’s exceptions to the hearing examiner’s proposed decision and 

order (PDO), which concluded that the District violated section 1201(a)(1) and (5) of 

the Public Employe Relations Act (PERA),1 by unilaterally transferring the bargaining 

unit work of instructing high school students to employees of Johnson College 

1 Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §1101.1201(a)(1), (5). Section 1201 of 

PERA generally lists the bases for unfair labor practices and, relevant here, states that “[p]ublic 

employers, their agents[,] or representatives are prohibited from,” inter alia, “(1) [i]nterfering, 

restraining[,] or coercing employes in the exercise of the rights guaranteed in Article IV of this act,” 

which pertains to public employees’ basic rights to unionize and engage in collective bargaining, see 

section 401 of PERA, 43 P.S. §1101.401, and from “(5) [r]efusing to bargain collectively [and] in 

good faith with an employe representative which is the exclusive representative of employes in an 

appropriate unit.” 43 P.S. §1101.1201(a)(1), (5). 
2

(College) without first bargaining with Abington Heights Education Association 

(Association), the certified bargaining representative of the District’s teachers. On 

three separate and independent grounds, we reverse. 

The gist of this matter concerns an agreement (Agreement) between the 

District and the College pursuant to section 1525 of the Public School Code of 1949

(School Code),

2 24 P.S. §15-1525,3

commonly known as a “dual enrollment program,” 

whereby students of the District could attend the College, take courses that are offered 

at the College, and receive high school credits and also credits at the College (if the 

student later attends the College) upon successful completion of the College’s courses. 

The major issue on appeal is whether the District’s decision to enter into the Agreement 

was an exercise of its “inherent managerial prerogative” to create and dictate its 

academic curriculum or whether the Agreement concerned matters that would require 

the District to engage in collective bargaining with the Association prior to entering 

into the Agreement. Put simply, if the District’s decision was the former, the District 

did not violate PERA; if it was the latter, the District committed unfair labor practices 

under PERA. See Association of Pennsylvania State College and University Faculties 

2 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101 to 27-2702.

3 This provision states as follows:

Notwithstanding any other provision of law to the contrary, a school 

district may enter into an agreement with one or more institutions of 

higher education approved to operate in this Commonwealth in order 

to allow resident students to attend such institutions of higher education 

while the resident students are enrolled in the school district. The 

agreement may be structured so that high school students may receive 

credits toward completion of courses at the school district and at 

institutions of higher education approved to operate in this 

Commonwealth.

24 P.S. §15-1525.
3

v. Pennsylvania Labor Relations Board, 226 A.3d 1229, 1241-44 (Pa. 2020); City of 

Harrisburg v. Pennsylvania Labor Relations Board, 605 A.2d 440, 442 (Pa. Cmwlth. 

1992).4 

Background

The PLRB summarized the pertinent facts of this case as follows:

The Association is the certified bargaining representative of 

a unit of professional employees including teachers. For at 

least 37 years, the teachers have exclusively performed work 

related to the education, instruction, and teaching of the 

District’s students. This work includes the presentation of 

academic material, impartment of knowledge and concepts, 

evaluation of academic progress, assessment and testing of 

student performance or grading, counseling, and providing 

any other guidance, supervision, or support necessary to 

ensure academic success. The courses that appear in the 

District’s High School Curriculum Planning Guide and in the 

District’s high school class schedules have always been 

taught exclusively by the bargaining unit teachers.

. . . . 

In the past, the District offered dual enrollment courses 

where its students attended the University of Scranton, took 

college level courses, and received college credit. The dual 

enrollment program was offered pursuant to Act 46 of 

the [] School Code[5][] on a “Concurrent Enrollment 

Agreement” between the District and the University of 

Scranton funded by a state grant. The students did not 

receive credit toward their high school graduation, and 

the dual enrollment courses did not replace the high 

4

“[A] public employer commits an unfair labor practice when it unilaterally transfers any unit 

work to non-members without first bargaining with the unit.” City of Harrisburg, 605 A.2d at 442

(emphasis in original).

5 Act of July 13, 2005, P.L. 226. Act 46 added Article XVI-B, “Opportunities for Educational 

Excellence,” to the School Code, 24 P.S. §§16-1601-B-1615-B.
4

school classes taught by the bargaining unit teachers. 

The students were required to take their full course load 

of high school instruction from classes taught by 

bargaining unit teachers. The dual enrollment courses 

were taught outside the normal school day. However, as 

of February 2012, the state funding for the dual enrollment 

program was completely eliminated and it was uncertain 

whether the District would offer the same dual enrollment 

courses at the University of Scranton in the future. 

For the past three years, the District had another dual 

enrollment program with Lackawanna College where high 

school students [would] take classes and receive credit for 

high school and postsecondary education. The classes are 

taught by bargaining unit teachers at the District’s high 

school during the regular school day. 

On May 15, 2019, Thomas Lavelle, the Association[’s]

President, received an email from [District] Superintendent 

Michael Mahon, requesting that Mr. Lavelle review a draft 

“Industry Fast Track Agreement,” [i.e., the Agreement,]

between the District and [the] College and to communicate 

any concerns about the Agreement. The District’s School 

Board was scheduled to approve the Agreement the same 

evening. Mr. Lavelle contacted Superintendent Mahon and 

stated that the Agreement was a removal of bargaining unit 

work [from the teachers]. Despite the Association’s 

concerns, Superintendent Mahon presented the Agreement to 

the School Board, which approved it.

[The] College is a two-year college that offers postsecondary 

or collegiate education to people who have graduated from 

high school. The [Agreement], effective July 1, 2019, to 

June 30, 2022, states that [the] College would offer its 

courses to the District’s high school students. The 

Agreement also provides that the District would award 

high school credit to students who successfully complete 

[the] College courses. The same courses are used for 

collegiate credit if the students attend [the] College after 

high school.

The Agreement requires the students to be enrolled in the 

District’s high school and complete [the] College courses as 
5

a high school student. The Agreement also requires the 

students to make satisfactory progress toward fulfilling 

applicable secondary school graduation requirements by the 

high school. The Agreement lists 18 classes that [the] 

College would provide to the District’s high school students. 

Many of the classes are in vocational trades, such as 

construction, electricity, and pipefitting, while other classes 

are in core academic areas such as math and English. The 

classes listed in the Agreement address areas of 

instruction that are taught by the bargaining unit 

teachers at the high school, including math, English, and 

vocational technical trades. The Agreement provides 

that the classes will be taught by the faculty and/or 

employees of [the] College and held on the College 

campus. 

The District did not obtain grant money or funding in 

connection with the Agreement. Instead, the District pays 

[the] College directly for the classes and has been given 

$35,000[.00] from a local charitable foundation to help pay 

for the cost of the program. The District did not submit the 

Agreement to the Pennsylvania Department of Education

[(PDE)] for approval[,] nor is there evidence that the [PDE]

approved the Agreement.

Since July 1, 2019, eight high school students have taken 

classes at [the] College pursuant to the Agreement. The 

classes are being taught by the faculty at [the] College and 

appear on the students’ high school report cards counting 

towards the students’ high school education 

requirements. The District did not bargain with the 

Association over the use of [the] College employees to 

teach [the] classes. 

. . . The students who attend [the] College . . . stay at the 

District’s high school for full days until their senior year. 

The students then attend [the] College during their senior 

year for half days. The students who attend [the] College 

spend the other half of the day taking classes at the 

District’s high school.

Since the implementation of the Agreement, the District has 

paid [the] College to provide Business Education classes to 
6

the District’s high school students, which is not one of the 

listed courses in the Agreement. Two bargaining unit high 

school teachers instruct in the area of Business Education and 

that course appears in the District’s High School Curriculum 

[Planning] Guide.

(PLRB’s decision at 1-3) (footnotes omitted, emphasis added).

On September 13, 2019, the Association filed its charge of unfair labor 

practices, alleging that the District violated section 1201(a)(1) and (5) of PERA by 

transferring the bargaining unit work of instructing certain high school courses to the 

employees of the College. Thereafter, the PLRB scheduled—and a hearing examiner 

held—a hearing on February 10, 2020, during which all parties in interest were 

afforded the basic rights of due process regarding argumentation and the presentation 

and contestation of evidence. In the PDO, the hearing examiner concluded that the 

Association met its burden of proof as to its alleged charge and recommended various 

remedies to rectify the District’s violations of PERA. 

The District filed exceptions to the PDO to the PLRB. In addition to 

advancing other arguments, the District cited a decision from the PLRB, Palisades v. 

Education Association v. Palisades School District, 37 PPER 168 (Final Order, 2006), 

2006 PA PED LEXIS 44 (Palisades), and contended that the hearing examiner failed 

to properly apply the legal reasoning espoused therein. In dismissing this assertion, the 

PLRB stated as follows:

Under Act 46, a school district can enter into a concurrent or 

dual enrollment agreement with a postsecondary institution 

and apply for grant funds from the [PDE]. [Sections 1603-

B(c) and 1611-B(c) of the School Code,] 24 P.S. §§16-1603-

B(c), 16-1611-B(c). In [Palisades], the [PLRB] concluded 

that the manner in which a dual enrollment course is 

implemented under Act 46, including the selection of the 

teacher, is controlled by the postsecondary institution 
7

providing the course and not the school district.

[6]

 As 

such, the [PLRB] held that the school district in that case 

did not violate its duty to bargain when a non-bargaining 

unit professor of the postsecondary school taught courses 

to high school students for secondary and postsecondary 

credit. 

Here, the uncontested findings of fact show that the District 

did not submit its Agreement with [the] College to PDE for 

approval, nor has it obtained grant money from PDE for its 

program with [the] College. Instead, the District is paying 

for its high school students to attend the courses at [the] 

College. Further, the District is not unaware of the 

requirements under Act 46 as it has previously obtained grant 

funding from PDE for its dual enrollment program with 

Scranton University. . . . Based on the facts presented, the 

[h]earing [e]xaminer did not err in concluding that the 

District’s dual enrollment program with [the] College was 

not pursuant to Act 46. Therefore, the [PLRB’s] decision in 

[Palisades] is inapplicable.

(PLRB’s decision at 6-7) (emphasis added).

In rejecting the District’s argument that it had the authority under section 

1525 of the School Code to enter a dual enrollment program with the College, and the 

hearing examiner’s decision effectively prohibited the District from doing so, the 

PLRB reasoned as follows:

Pursuant to section 1611-B(f) of the [] School Code, a school 

district is not precluded from entering into a dual enrollment 

6

See section 1604-B(a) and (b) of the School Code, 24 P.S. §16-1604-B(a) (“A member of an 

eligible postsecondary institution’s faculty who teaches a concurrent course under [Act 46] shall not 

be an employee of a school entity, an independent contractor of a school entity or an employee of an 

independent contractor of a school entity . . . unless the faculty member teaches a course in a school 

entity’s building.”), and compare with 24 P.S. §16-1604-B(b) (“Nothing in [Act 46] shall be 

construed to prohibit an eligible postsecondary institution from contracting with a professional 

employee of a school entity for purposes of a concurrent enrollment program if the professional 

employee meets all qualifications for an adjunct faculty member at the eligible postsecondary 

institution.”) (emphasis added). 
8

program under section 1525 if it is unable to receive Act 46 

grant funding.[7] 

. . . . As stated by the [h]earing [e]xaminer, the provisions of 

Act 46 do not apply to dual enrollment programs created

under section 1525. Further, unlike Act 46, section 1525 

does not vest control over the implementation of and 

selection of the instructor for a dual enrollment course in 

the postsecondary institution. Contrary to the District’s 

assertion, the [h]earing [e]xaminer’s decision merely 

holds that the District must bargain with the Association 

over the assignment of teaching dual enrollment courses 

for high school credit and does not prevent the District 

from creating a dual enrollment program under this 

provision. 

. . . . [T]he [h]earing [e]xaminer did not err in concluding that 

the District violated section 1201(a)(1) and (5) of PERA 

by unilaterally (1) transferring the bargaining unit work 

of teaching English and Business Education courses to the 

employees of [the] College and (2) changing the extent to 

which non-bargaining unit employees taught building 

trade courses to the District’s high school students. 

Accordingly, the [PLRB] shall dismiss the [District’s] 

exception[s]. . . . 

(PLRB’s decision at 7-8) (emphasis added).

For relief, the PLRB ordered the District to cease and desist from violating 

PERA and from refusing to bargain collectively and in good faith with the Association, 

the exclusive bargaining representative of the teachers. In terms of affirmative action, 

the PLRB ordered the District to return the teaching work to the Association’s teachers, 

rescind the Agreement with the College, and make whole any bargaining unit 

7 Section 1611-B(f) of the School Code states: “Nothing in this article shall be construed to 

preclude a school entity that does not receive a grant under section 1603-B(c) from continuing or 

entering into an agreement with an institution of higher education under the provisions of section 

1525.” 24 P.S. §16-1611-B(f). 
9

employees who have been adversely affected due to the District’s unfair labor 

practices, together with 6% per annum interest. 

Subsequently, the District filed a petition for review in this Court.8 

Discussion

In its brief, the District argues that the PLRB erred as a matter of law by 

infringing upon the District’s inherent managerial prerogative to determine the manner 

and level of educational services it provides to its students by imposing a requirement 

that the District negotiate with the Association before entering into an agreement with 

the College pursuant to section 1525 of the School Code. In contending that the PLRB 

misconstrued section 1525, the District notes that the plain language of that statutory 

provision does not impose upon it an obligation to bargain collectively and maintains 

that such a requirement would run counter to and defeat the purpose of the statute,

namely to provide high school students with the opportunity to take college-level 

courses and potentially obtain college credits. 

Countering, the PLRB argues:

[I]t is undisputed that the District unilaterally transferred the

bargaining unit work of teaching English, Business 

Education, and building trades courses for high school credit 

to the employees of [the] College during the 2019-2020 

school year without bargaining with the Association. 

Contrary to the District’s assertion, its managerial right to 

decide what courses to provide its high school students does 

not trump its duty under section 701 of PERA[, 43 P.S. 

§1101.701,] to bargain with the Association concerning who

will teach those courses.

8 Our standard of review of a decision of the PLRB “is limited to determining whether there 

has been a violation of constitutional rights, an error of law, [or] procedural irregularity, or whether 

the findings of the agency are supported by substantial evidence.” Borough of Ellwood City v. 

Pennsylvania Labor Relations Board, 998 A.2d 589, 594 (Pa. 2010).
10

As consistently held by the Pennsylvania Supreme Court 

over the past 45 years, items that are bargainable under 

section 701 are only excluded from bargaining where other 

applicable statutory provisions explicitly and definitively

prohibit the public employer from making an agreement as 

to that specific item. Section 1525 of the [] School Code does 

not explicitly or definitively prohibit the District from 

bargaining over who will teach dual enrollment courses, nor 

does it vest control over selection of the instructor for a dual 

enrollment course in the postsecondary institution.

(PLRB’s Br. at 10) (emphasis in original).

The Association, as intervenor, posits that the PLRB’s decision does not 

impair the District’s managerial rights because the PLRB did not prohibit the District 

from establishing a dual enrollment program under section 1525 of the School Code. 

According to the Association, the “District, instead, must use the Association’s 

bargaining unit members to perform the work of the [d]ual [e]nrollment program [] and 

cannot divert the work to outsiders without [first] negotiating the issue with the 

Association.” (Association’s Br. at 15.)

In assessing whether an employment matter must go through collective 

bargaining, our Supreme Court discussed the interplay between sections 701, 702, and 

703 of PERA, 43 P.S. §§1101.701, .702, .703, respectively,9explaining that

9 Section 701 provides as follows:

Collective bargaining is the performance of the mutual obligation of 

the public employer and the representative of the public employes to 

meet at reasonable times and confer in good faith with respect to wages, 

hours and other terms and conditions of employment, or the negotiation 

of an agreement or any question arising thereunder and the execution 

of a written contract incorporating any agreement reached but such 

obligation does not compel either party to agree to a proposal or require 

the making of a concession.

43 P.S. §1101.701.

(Footnote continued on next page...)
11

as a general matter, public entities subjected to PERA make 

a variety of decisions in fulfilling their mission. Certain of 

these decisions relate to the formulation and implementation 

of policies. Other decisions go to the relationship between 

the public entities and the individuals that they employ. With 

respect to these decisions, [] certain topics under PERA are 

considered to be mandatory subjects of bargaining, others are 

considered to be permissive or voluntary subjects of 

bargaining, and, finally, certain matters are not permitted to 

be bargained at all, as they are deemed to be illegal subjects 

of bargaining.

Association of Pennsylvania State College, 226 A.3d at 1241.

Section 702 states as follows:

Public employers shall not be required to bargain over matters of 

inherent managerial policy, which shall include but shall not be limited 

to 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. Public employers, however, shall be required 

to meet and discuss on policy matters affecting wages, hours and terms 

and conditions of employment as well as the impact thereon upon 

request by public employe representatives.

43 P.S. §1101.702.

Finally, section 703 declares as follows: 

The parties to the collective bargaining process shall not effect or 

implement a provision in a collective bargaining agreement if the 

implementation of that provision would be in violation of, or 

inconsistent with, or in conflict with any statute or statutes enacted by 

the General Assembly of the Commonwealth of Pennsylvania or the 

provisions of municipal home rule charters.

43 P.S. §1101.703.
12

Initially, under section 701 of PERA, “public employers must 

collectively bargain with employee representatives over wages, hours, and other 

terms and conditions of employment.” Association of Pennsylvania State College, 

226 A.3d at 1241 (emphasis added). However, “it is equally apparent that the General 

Assembly had no intention or expectation that the collective bargaining process would 

permit public employees to set matters of public policy or participate with their public 

employer in administering the public enterprise.” Id. at 1242. “The right to collective 

bargaining as to ‘wages, hours and other terms and conditions of employment’ is not 

unlimited, as [s]ection 702 [of PERA] unambiguously provides that a public employer 

is not required to bargain if the topic is one of inherent managerial policy.” Id. “Thus, 

pursuant to [s]ection 702, a public employer is not required to collectively bargain

over matters of ‘inherent managerial policy’—also referred to as managerial 

prerogatives—as these matters are reserved for the employer’s unilateral 

decision-making.” Id. (emphasis added). “By [s]ection 702, the General Assembly 

has broadly indicated what it deems to be examples of inherently managerial matters, 

identifying programming, standards of service, budgetary matters, organizational 

structure, and the selection and direction of personnel.” Id. “Finally, [s]ection 703 

expressly provides that the parties may not bargain over, and a collective 

bargaining agreement [CBA] may not contravene, any legislative mandate.” Id. 

(emphasis added).

Quoting and elaborating upon Pennsylvania Labor Relations Board v. 

State College Area School District, 337 A.2d 262 (Pa. 1975) (State College II), our 

Supreme Court in Association of Pennsylvania State College explained:

As to the process by which the [PLRB] and the courts are to 

determine and reconcile which matters are subject to

collective bargaining and which topics are deemed to be 
13

inherent managerial policies under PERA, our landmark 

1975 decision in State College [II] has provided guidance for 

over 40 years. Writing for the Court, Justice Robert N.C. 

Nix, Jr.[,] addressed the determination of whether a 

particular topic is a matter of wages, hours, or working 

conditions subject to bargaining under section 701, or an 

inherent managerial policy of the public employer, and not 

subject to mandatory bargaining, under section 702. In 

determining which matters were bargainable, our Court first 

recognized the balance between the public employer’s 

significant role in providing effective and efficient public 

services and the importance of a viable process of collective 

bargaining to reduce labor strife. Specifically, we noted[:]

A determination of the interrelationship 

between sections 701 and 702 calls upon us to 

strike a balance wherein those matters 

relating directly to ‘wages, hours and other 

terms and conditions of employment’ are

made mandatory subjects of bargaining and 

reserving to management those areas that the 

public sector necessarily requires to be 

managerial functions. 

State College [II], 337 A.2d at 267-68. 

We recognized that in “striking this balance the paramount 

concern must be the public interest in providing for the 

effective and efficient performance of the public service in 

question.” Id. at 268. Indeed, appreciating the difficulty of 

the task, the Court stressed that “[w]e recognize that in many 

instances the line will be difficult to draw,[] however, if we 

remain ever mindful that our paramount concern in this area 

is the public interest, no situation will be insoluble.” Id.

(footnote omitted). In focusing on the balancing inquiry, the 

State College [II] Court recognized the reality that some 

matters which are of prime concern to employees’ wages, 

hours, or terms and conditions of employment may, at the 

same time, directly implicate, or at least touch upon, basic 

public employer policy. Indeed, an employer’s policy 

decisions almost invariably implicate, to some degree, the 

employer-employee relationship.
14

With its primary focus on the public interest, the Court went 

on to offer a test, to be applied on a case-by-case basis, 

weighing a given matter’s impact on the interest of the 

employee against the effect on the employer’s basic policy 

determinations:

[W]e hold that where an item of dispute is a 

matter of fundamental concern to the employes’ 

interest in wages, hours[,] and other terms and 

conditions of employment, it is not removed as 

a matter subject to good faith bargaining under 

section 701 simply because it may touch upon 

basic policy. It is the duty of the [PLRB] in the 

first instance and the courts thereafter to 

determine whether the impact of the issue on the 

interest of the employe in wages, hours[,] and 

terms and conditions of employment outweighs 

its probable effect on the basic policy of the 

system as a whole.

Id.

Thus, in determining whether a topic is subject to collective 

bargaining, the [PLRB] in the first instance, and then the 

courts, must consider the relative weight of the impacted 

interest of the public employee in wages, hours, and 

conditions of employment against the public employer’s 

impacted interest in basic policy matters concerning the 

employer’s operations, and then assess which interest 

predominates. If the impact on the employees’ interest in 

wages, hours, and conditions of employment outweighs 

the employer’s concerns about restrictions on its basic 

policy choices, the proposal is considered a mandatory 

subject of bargaining. If, however, the latter outweighs 

the former, such topic shall be deemed to constitute an 

inherent managerial prerogative and be insulated from 

the give-and-take of mandatory collective bargaining. . . . 

Association of Pennsylvania State College, 226 A.3d at 1242-44 (emphasis added). In 

all events, in conducting the balancing test mentioned above, this Court must remain 
15

“[m]indful that the paramount concern in th[e] inquiry is the public interest.” Id. 

at 1245 (emphasis added).

Section 702 of PERA—The Inherent Managerial Prerogative of the District and 

the Public Interest Involved in Educational Policy

First, we determine the significance of—and the nature of the public 

interest in—the District’s policy-based choices, which will aid in deciding “whether a 

particular subject represents a question of ‘educational policy’ or whether it is a 

‘condition of employment.’” United Teachers of Dade v. Dade County School Board, 

500 So.2d 508, 513 (Fla. 1986). Ultimately, if a subject matter relating to employment 

constitutes and falls into the category of the District’s “educational policy,” it will be 

deemed to be an inherent managerial prerogative of the District and, thus, not subject 

to collective bargaining. 

In Pennsylvania Labor Relations Board v. State College Area School 

District, 306 A.2d 404 (Pa. Cmwlth. 1973) (State College I), remanded on other 

grounds by State College II, this Court discussed the fundamental and strong public 

interest in public education:

[A] school district is an agency of the State, created by law 

for the purpose of promoting education, deriving all of its 

powers from the statute, and discharging only such duties as 

are imposed upon it by statute. The school district is an 

agency of the State charged with the sovereign duty of 

building and maintaining the schools within its particular 

territory and with the further duty of securing, managing, and 

spending the necessary funds in the interest of public 

education[.] . . . Article 3, [s]ection 14 of our present 

Pennsylvania Constitution provides that “[t]he General 

Assembly shall provide for the maintenance and support of a 

thorough and efficient system of public education to serve 

the needs of the Commonwealth.”

[10] The school districts are 

10 Pa Const. art. III, §14.
16

agencies of the Legislature to administer this constitutional 

duty. The [] School Code [] . . . contains section 211, 24 P.S. 

§2-211, which provides that “[t]he several school districts in 

this Commonwealth shall be, and hereby are vested as, 

bodies corporate, with all necessary powers to enable them 

to carry out the provisions of [the School Code].” Thus[,] we 

must conclude that school boards have traditionally been 

given by the Legislature, under constitutional mandates, 

broad inherent managerial powers to operate the public 

schools and to determine policy relative thereto.

State College I, 306 A.2d at 410. 

Reproducing phrases in the case law from our Supreme Court and this 

Court, the State College I court further added that “[t]he fundamental policy of our 

public school system is to obtain the best educational facilities for the children of the 

Commonwealth. . . . The duty of devising methods by which this important obligation 

can be discharged devolves upon the school boards”; “[s]chool authorities must be 

given broad discretionary powers to ensure a better education for the children of 

this Commonwealth and any restrictions on the exercise of these powers must be 

strictly construed on the basis that the public interest predominates and private interests 

are subordinate thereto”; “[b]y the School Code, the school directors are given [the] 

power to administer the public school system; they are commanded . . . to conduct 

school affairs and keep the schools open”; and, “[i]t is the administrative function of 

the school directors and superintendents to meet changing educational conditions 

through the creation of new courses . . . and [the] rearrangement of curriculum.” 

Id. at 411-12 (internal citations and quotation marks omitted; emphasis added). 

In State System of Higher Education v. Association of Pennsylvania State 

College University Faculties, 834 A.2d 1235 (Pa. Cmwlth. 2003), a public university

appealed an arbitrator’s award finding that it violated a purported “agreement” with a

bargaining unit when the public university instituted a university chemical 
17

biotechnology program without first obtaining the approval of a “meet and discuss”

committee created by the “agreement.” On appeal, the public university argued that 

its decision regarding its academic curriculum was a matter of inherent managerial 

policy, which was not subject to collective bargaining and, further, was not a

requirement—let alone an issue that was contained—in the CBA. This Court agreed 

with both arguments. First, we determined that the issue of the “meet and discuss”

committee’s authority over curriculum changes was not within the scope of a provision

in the CBA; thus, the arbitrator erred in finding that the public university violated either 

an “agreement” with the bargaining unit or the terms of the CBA. Second, and most 

importantly, this Court relied on section 702 of PERA and concluded as follows: 

“Clearly, under PERA, the [u]niversity’s managerial policy of approving 

curriculums or making any other program-related decision is not subject to collective 

bargaining and the [u]niversity maintains a managerial prerogative of making 

curriculum changes without the ‘meet and discuss’ committee’s approval.” 834 A.2d 

at 1241 (emphasis added). 

Notably, other courts have echoed the underlying sentiment espoused by 

this Court in State System of Higher Education, expressing the general view that a 

school board’s determination regarding the nature of its academic curriculum 

represents a choice that is related to educational policy and, thus, constitutes a

managerial prerogative of a school board. See Higher Education Coordinating 

Council/Roxbury Community College v. Massachusetts Teachers’ Association/

Massachusetts Community College Council, 666 N.E.2d 479, 484 (Mass. 1996) (“As a 

matter of policy and legislative directive, the college, through its board of trustees and 

school administrators, should retain sole authority for determining the content of its 

educational curriculum, and the optimum system for the delivery of the academic 
18

programs and related services it deems necessary.”); Dunellen Board of Education v. 

Dunellen Education Association, 311 A.2d 737, 741 (N.J. 1973) (“Illustratively, [a]

court expressed the view that matters such as the following would fall exclusively 

within management’s prerogatives and would not be the subject of compulsory 

negotiation: The right . . . to determine the curriculum, class size, and types of 

specialists to be employed.”); Joint School District No. 8 v. Wisconsin Employment 

Relations Board, 155 N.W.2d 78, 82-83 (Wisc. 1967) (“The contents of the curriculum 

[and] [s]ubjects of study are within the scope of basic educational policy and 

additionally are not related to wages, hours and conditions of employment.”); see also 

Palisades, 37 PPER at 168, 2006 PA PED LEXIS 44, at *3 (“As an initial matter, the 

[u]nion does not challenge the [d]istrict’s managerial prerogative to determine the 

manner and level of educational services by making available concurrent enrollment, 

dual credit courses for its students.”); id., at *5 (stating that a “[school] district exercises 

its managerial prerogative to make available a concurrent enrollment, dual credit 

course”).

Turning to the relevant statutory provision in this case, section 1525 of the 

School Code states as follows:

Notwithstanding any other provision of law to the contrary, 

a school district may enter into an agreement with one or 

more institutions of higher education approved to operate 

in this Commonwealth in order to allow resident students 

to attend such institutions of higher education while the 

resident students are enrolled in the school district. The 

agreement may be structured so that high school students 

may receive credits toward completion of courses at the 

school district and at institutions of higher education 

approved to operate in this Commonwealth.

24 P.S. §15-1525 (double emphasis added).
19

Therefore, based on the above, we conclude that there is a compelling and 

strong public interest in the District’s educational policy and its choices regarding the 

nature of its academic curriculum. We further conclude that, through the General 

Assembly’s directive in section 1525 of the School Code, the District possesses the 

statutory authority to enter into agreements with postsecondary schools, such as its 

Agreement with the College, and that its decision to do so is directly related to the 

District’s educational policy and, thus, constitutes a matter that falls within its inherent 

managerial prerogative. On this basis, we conclude that the District did not violate 

PERA, and that the PLRB erred in deciding to the contrary. 

Section 703 of PERA—Collective Bargaining and/or a CBA that Contravenes 

and/or is Inconsistent with a Statutory Mandate

Second, we assume, for the sake of the argument, that the Agreement 

concerns a matter or topic that is exclusively an item that must undergo the collective 

bargaining process under section 701 of PERA, because it concerns the “wages, hours, 

and other terms and conditions of employment,” and has absolutely no bearing or 

relationship to the District’s managerial prerogative. We further assume, arguendo,

that the impact that the Agreement has on the interest of the Association’s relevant 

teachers in their wages, hours, and conditions of employment substantially outweighs 

any interest that the District has pertaining to a managerial prerogative and, as such, 

must be subjected to collective bargaining. 

Nonetheless, even if either event or circumstance (or both) were true, 

“[s]ection 703 expressly provides that the parties may not bargain over, and a collective 

bargaining agreement may not contravene, any legislative mandate.” Association of 

Pennsylvania State College, 226 A.3d at 1242. Per the terms of section 703, there is a 

“contravention” when such collective bargaining or a CBA “would be in violation of, 
20

or inconsistent with, or in conflict with any statute or statutes enacted by the General 

Assembly of the Commonwealth of Pennsylvania.” 43 P.S. §1101.703.

On this note, it is extremely significant that section 1525 of the School 

Code, reproduced above, is prefaced with the phrase, “[n]otwithstanding any other 

provision of law to the contrary.” 24 P.S. §15-1525. According to our Supreme Court, 

a clause of this nature is decimating in the sense that it constitutes a clear and 

unequivocal expression by our General Assembly that the statutory section supersedes 

and completely displaces any and/or all laws that state, or could be interpreted to state, 

a contrary proposition of law. See, e.g., City of Philadelphia v. Clement & Muller, Inc., 

715 A.2d 397, 398 (Pa. 1998) (interpreting the phrase, “[n]otwithstanding a contrary 

provision of law of the Commonwealth,” the Court concluded that “[t]he meaning of 

the emphasized introductory language is straightforward: regardless of what any other 

law provides, [the governmental entity is] authorized by th[e] act to [do precisely 

that]”); accord City of Johnstown v. Workers’ Compensation Appeal Board (Sevanick), 

255 A.3d 214, 222 (Pa. 2021) (“This Court understands the use of ‘notwithstanding’ to 

be an unambiguous expression of the General Assembly’s intent to distinguish the law 

applicable to the circumstances addressed within the ‘notwithstanding’ clause from the 

law applicable to [other] circumstances[.]”); Pleasant Hills Construction Co., Inc. v. 

Public Auditorium Authority, 784 A.2d 1277, 1283 (Pa. 2001) (concluding that a 

“notwithstanding clause is clear, means regardless,” and “explicitly preempts other 

Commonwealth laws”). 

Here, section 1525 of the School Code vests the District with the sole 

discretion and statutory authority to enter the Agreement with the College. Because 

this statutory section contains a “notwithstanding clause,” the authority granted to the 

District in section 1525 cannot be questioned or altered in any manner via any other
21

conceivable law no matter how applicable that law may appear to be. Consequently, 

even assuming the Association had collective bargaining rights under section 701 of 

PERA, section 1525 of the School Code would supersede those rights. 

Therefore, in the alternative, we conclude that section 703 of PERA 

mandates that the District’s decision to enter in the Agreement is not one that can be 

subjected to collective bargaining. On this basis, we conclude that the District did not 

violate PERA, and that the PLRB erred in determining otherwise. 

The Balancing of Competing Interests—Managerial Rights Versus Bargaining 

Rights 

Third, assuming that the District has managerial rights under section 702,

and the Association possesses collective bargaining rights pursuant to section 701, the 

two must be compared in a qualitive manner to determine which prevails. 

“Many educational policy decisions make an impact on a teacher’s 

conditions of employment and the converse is equally true. There is no unwavering 

line separating the two categories.” United Teachers of Dade, 500 So.2d at 513. “Most 

courts therefore have determined the issues on a case-by-case basis, but, as a starting 

point for their analysis, have tended to view the test of bargainability as the degree of 

impact on wages, hours or other conditions of employment.” Id. As our Supreme 

Court stated, a court must balance “the relative weight of the impacted interest of the 

public employee in wages, hours, and conditions of employment against the public 

employer’s impacted interest in basic policy matters,” and if “the latter outweighs the 

former, such topic shall be deemed to constitute an inherent managerial prerogative 

and be insulated from the give-and-take of mandatory collective bargaining.” 

Association of Pennsylvania State College, 226 A.3d at 1244.
22

Here, in conducting a balancing test, as we explained above, the District 

has a compelling and strong public interest in its educational policy, particularly with 

respect to creating dual education programs such as the one sanctioned in section 1525 

of the School Code, which expressly authorizes the District’s Agreement with the 

College. Importantly, that section vests “a school district” with the power to “enter 

into an agreement with” a college in order “to allow resident students to attend” the 

college and “receive credits toward completion of courses at the school district and at 

[the college].” Id. (emphasis added). Without question, this is exactly what was 

memorialized in the Agreement and has happened here as a matter of fact: the students 

of the District go to the College campus, take courses offered by the College, and obtain 

high school credits and credits at the College if they enroll in the College after 

graduating from the District. 

Significantly, by utilizing the word “attend” in section 1525, our General 

Assembly presumed that when a school district and a postsecondary institution make 

an agreement pursuant to that statutory section, a student would be physically present 

at the postsecondary institution and would take courses that are only offered at the 

postsecondary institution and available for credits at that institution. Naturally, in this 

context, the only sustainable inference to be drawn is that the courses offered by the 

postsecondary institution would be instructed only by the professors, adjunct faculty, 

and/or staff of that postsecondary institution. Yet, the Association contends that the 

District’s teachers possess a collective bargaining right to teach courses that are offered 

by and at the College and for academic credits at the College, regardless of their 

qualifications and even if they are not hired by or otherwise affiliated with the College. 

In crediting this argument, the hearing examiner and the PLRB attempted 

to distinguish the PLRB’s decision in Palisades and, in so doing, placed much 
23

emphasis on the fact that the Agreement was not created under the rubric of Act 46,

while highlighting their perception that the postsecondary institution in an Act 46 

program has exclusive control over the selection of the teacher. However, as correctly 

noted by the PLRB, pursuant to section 1611-B(f) of the School Code, a school district 

can enter into an agreement under section 1525, irrespective of whether it qualifies for 

or obtains Act 46 grant funding. See 24 P.S. §16-1611-B(f); supra note 7. Further, 

and contrary to the presupposition of the PLRB, the pertinent statutory provision of Act 

46 permits a postsecondary institution to “contract[] with a professional employee of a 

school entity for purposes of a concurrent enrollment program if the professional 

employee meets all [the] qualifications for an adjunct faculty member at the eligible 

postsecondary institution.” 24 P.S. §16-1604-B(b).

Given this, it is difficult to discern any real substantial difference between 

Palisades and this case or between an Act 46 dual enrollment program or one created 

under section 1525 of the School Code. Both Act 46 and section 1525 envision that, 

in a dual enrollment program, high school students will take college/postsecondary

courses that are taught by a faculty member or adjunct faculty member of the

college/postsecondary institution itself. True, it is theoretically possible that the 

College could hire a teacher of the District to teach college courses offered by the 

College, assuming such a teacher possesses the necessary qualifications and/or 

licensure. However, as explained in Palisades, “the host college is under no obligation 

to do so and certainly has no bargain obligation with the [u]nion,” i.e., the Association,

and, as such, “[t]he District is simply without [the] authority to give the work to the 

bargaining unit.” Palisades, 37 PPER at 168, 2006 PA PED LEXIS 44, at **5, 8. 

Moreover, in an unfair labor practice action against a public employer for unilaterally 

removing bargaining unit work from a union, the union has the burden of establishing 
24

“that the work in question has been performed exclusively by the bargaining unit.” 

American Federation of State, County, and Municipal Employees, Council 13, AFLCIO v. Pennsylvania Labor Relations Board, 616 A.2d 135, 137-38 (Pa. Cmwlth. 

1992). Here, akin to the situation in Palisades, the Association did not prove that the 

District’s teachers, in the past, have performed, much less exclusively performed, the 

instruction of college courses that are offered and designed by a college and must be 

taken at the college for both high school and, potentially, college credits. 

Nonetheless, assuming the pertinent teachers of the Association at the 

District had some collective bargaining rights with respect to the instruction of courses 

that are taught at a postsecondary institution, on the current record, it is almost 

impossible to gauge the impact, if any, that the Agreement could have on the terms, 

hours, or conditions of the Association’s teachers’ employment with the District. Even 

if the substantive content of the courses taught at the College and the District 

overlapped or were entirely duplicative in nature, there is no evidence that the high 

school classes in those subjects that are taught at the District are eligible for the receipt 

of college credits. Further, the teachers seemingly did not lose any hours or classes at 

the District as a result of the Agreement or sustain any loss of income. Presumably, 

and at most, the teachers underwent a slight reduction in the number of students that 

attended their classes because eight students were at the College for half-days during 

their senior year pursuant to the Agreement. But, absent concrete evidence, it is hard 

to see how a numerical decrease in the number of students, alone, could be directly 

related to the terms and conditions of employment or could, in general, be deemed a 

matter that is reserved for collective bargaining. Indeed, such a decrease in student 

attendance/enrollment could be accounted for in a variety of circumstances, implicating 

numerous factors that are beyond the control of the District or its school board as a 
25

decision-making body, e.g., students moving to another school district, decreases in 

citizenship in the school district’s territory, an increase in drop-out rates, etc. In sum, 

the Association has not adduced sufficient evidence to establish—and the PLRB did 

not make any findings of fact that detail—the extent to which the Agreement affected 

the wages, hours, terms, or conditions of the employment of the Association’s teachers. 

Therefore, the net result of the balancing test in PERA also compels the 

conclusion that the District’s decision to enter into the Agreement is not one that is

subjected to collective bargaining but, instead, was a matter falling within the 

managerial prerogative of the District. On this basis, too, we conclude that the District 

did not violate PERA and the PLRB erred in deciding to the contrary. 

Conclusion

Accordingly, for all of the above reasons, we reverse the decision of the 

PLRB. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Abington Heights School District, :

Petitioner :

: No. 404 C.D. 2021

v. :

:

Pennsylvania Labor Relations Board, :

Respondent :

ORDER

AND NOW, this 10th day of February, 2022, the March 19, 2021 final 

order of the Pennsylvania Labor Relations Board is hereby reversed.

________________________________

PATRICIA A. McCULLOUGH, Judge