It is not unusual for School Districts to find themselves at an impasse in contract negotiations.  In today’s economic climate, Districts strive to hold the line on the ever escalating personnel and benefit costs which comprise a significant portion of their budgets.  At this time, if your District is still embroiled in protracted negotiations, the prior contract has probably expired, and the District and Union are operating under the status quo.  For an in depth review of concerns while operating under the status quo, please refer to the Summer 2009 edition of Education News.  This article outlines the alternatives available to the District if negotiations are unlikely to result in a new contract in the near future.

For a District with its fiscal year ending on June 30, the deadline for one party to request fact-finding was April 10.  However, other scenarios where fact-finding may occur include:

  •  At any time by the Labor Board, except during the period between a notice to strike and the conclusion of the strike. 
  • When the Labor Board does not initiate fact-finding prior to a strike, it must issue a report with its rationale upon request of either party.

Another alternative available to the District is nonbinding arbitration.  Voluntary arbitration may be requested by either party by written notice to the Bureau of Mediation, Labor Board and the other party at any time prior to mandatory arbitration, except it cannot be required during fact-finding.  The other party must indicate if it agrees within 10 days of notification.  Mandatory arbitration is required where a strike or lockout will prevent the District from providing 180 days of instruction by the last day of school on the school calendar or by June 15, whichever is later.

To review the specific features of Act 88 fact-finding and arbitration click here. If you wish to have this information sent via email, contact

Despite all efforts, a strike may be unavoidable.  If a strike occurs, the following may be of benefit:

  • If the Union strikes once and unilaterally returns to work, the Union can only strike once more during the school year.
  • The Union must give the District a minimum of 48 hours written notice before a strike.
  • Strikes are prohibited:
    • Prior to conclusion of 48-hour notice by the Union.
    • During fact-finding or arbitration processes.
    • If in the nature of a selective strike.
  • During a legal strike, the District may only use individuals who were actively employed by the District during the prior 12 months.
  • The District may use any persons when the Union has rejected the arbitrator’s determination or the strike will prevent the completion of 180 days of instruction by June 15 or the end of the school year.
  • In the event the Union is on a strike for an extended period that would not permit the District to complete the 180-day school year by June 30, the Secretary of Education may petition for an injunction in the County Common Pleas Court to provide for the required period of instruction.
  • Pursuant to its equitable powers, the Court may order the District and Union to participate in court-monitored negotiations as part of an injunction pursuant to Act 88.  Accordingly, the court may require Board Members to be present at court-monitored negotiation sessions.

Careful preparation and documentation of the District’s position will increase the likelihood of a more favorable outcome in either Act 88 fact-finding or arbitration.  MBM has provided guidance in navigating and surviving Act 88 fact-finding and arbitration and is prepared to respond to any questions your District may have.

Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.