(dissenting).
The Court’s decision today permits school boards in Pennsylvania to abdicate one of their most essential prerogatives and duties, namely the discharge for cause of a teacher. The result disserves the cause of quality public school education in the Commonwealth. Because I am convinced that the Court’s holding is without statutory foundation, I must respectfully dissent.
Purportedly acting pursuant to the authority granted by § 514 of the Public School Code,1 the appellant Board of Education (the Board) on July 8, 1974, suspended from his position at the Crispin School one Edgar Vahey, a non-tenured teacher, “pending the Board’s action for [his] dismissal.” The suspension was without pay and effective June 30, 1974. Vahey was advised that he was entitled to request a hearing before a committee of the Board.2 On September 9, 1974, the Philadelphia Federation of Teachers, appellee herein, by its attorney, presented to the American Arbitration Association a demand for arbitration, asserting that the Board’s suspension of Vahey had been improper. This action to enjoin arbitration was then initiated by the Board. Holding that no cause of action was stated, the court of common pleas sustained the preliminary objections filed by the *109Federation and directed arbitration to proceed. The Board brought this appeal.
The record before us is necessarily scanty; it does not indicate the reason for the suspension (and projected ultimate dismissal) of Vahey by the Board, nor the reasons why the union considered that action to be improper. Presumably those factual matters will be explored in whatever hearing hereafter ensues. The question for decision instantly is whether such hearing will be conducted by the Board, as it contends should be the case, or, as the Federation urges, by arbitrators chosen pursuant to the collective bargaining agreement between the parties entered into on March 1,1973.
Under the agreement a “grievance” is subject to binding arbitration. A grievance is defined to include a complaint that there has been “improper application of any provision” of the agreement. [Art. B-VIII, sec. 1(a)]. Article T-III, section 9(f) of the agreement provides:
“A teacher or other employee who does not have tenure shall not be subjected to discipline or discharge without just cause.”
Since the union has asserted a grievance in charging that the “just cause” provision has been improperly applied, it argues that determination of the existence of “just cause” in Mr. Vahey’s case is a subject of arbitration. It reinforces its argument by pointing to the provision of the Public Employe Relations Act3 (Act 195) (the statute under which the collective bargaining agreement was negotiated), that
“arbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement is mandatory.” Act 195, § 903.
As the approach of the Court reveals, the key to the resolution of the narrow issue before us is § 703 of Act *110195, supra, but I emphatically disagree that the section sanctions the result to which the court has come. Section 708 provides:
“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.” (Emphasis supplied).
The Court’s present misconstruction of the prohibition contained in this section finds its antecedent in Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 509, 337 A.2d 262, 269 (1975). A majority of the Court4 there construed § 703 as providing that an item is improperly included in a collective bargaining agreement only if it is in violation of existing law. The Court’s opinion in that case stated:
“Section 703 merely prevents a term of a collective bargaining agreement from being in violation of existing law.”
“We therefore conclude that items . . . are only excluded under section 703 where other applicable statutory provisions explicitly and definitively prohibit the employer from making an agreement as to that specific term or condition of employment.” 461 Pa. at 510,337 A.2d at 269,270.
I expressed the view in State College that such a construction ignores the plain and unambiguous language of § 703. I adhere to that opinion. The phrases “inconsistent with” and “in conflict with” in that section of Act 195 are obviously not synonymous with “in violation of” and there is no basis for assuming that the legislature’s *111explicit use of such terms amounted to mere surplusage. State College, supra at 513, 337 A.2d at 271, n. 1 (concurring opinion). Thus, although Article T-III, section 9(f) of the collective bargaining agreement may not be “in violation of” the School Code, that is not an end of the matter; the question remains whether that provision of the agreement and the consequence of binding arbitration which it entails is inconsistent with or in conflict with the statutory scheme contained in the Public School Code5 (The Code). An analysis of the Code satisfies me that inconsistency and conflict are indeed present.
Article XI of the Code constitutes a comprehensive scheme designed to regulate the relationship between a school district and its teachers. Teachers are divided into three classifications, defined in § 1101. These are (1) professional employes, (2) temporary professional employes and (3) substitutes.6
The temporary professional employee (whose rights and status are specifically delineated in § 1108 of the Code) is distinguishable from the professional employee by a sole but significant factor, i. e., the lack of tenure *112status. See Travis v. Teter, 370 Pa. 326, 330, 87 A.2d 177, 179 (1952); Johnson v. United School District Joint School Board, 201 Pa.Super, 375, 191 A.2d 897 (1963) (allocatur denied).7 Among the benefits which accompany the acquisition of tenure are the procedural safeguards which attend any tenured teacher whom the board seeks to dismiss (see § 1129-32). There are no corresponding provisions which pertain to the dismissal of non-tenured teachers, see Nicolella v. Trinity Area School District School Board, 444 Pa. 544, 281 A.2d 832 (1971); but since 1971 school board action in such a case is considered an adjudication under the Local Agency Law, Act of December 2, 1968, P.L. 1133, 53 P.S. § 11301 et seq., and the teacher is entitled to full procedural due process thereunder. See Smethport Area School District v. Bowers, 219 Pa.Super. 269, 280 A.2d 632 (1971). See also Smethport Area School District v. Bowers, 440 Pa. 310, 269 A.2d 712 (1970).
The power of the school board to dismiss a temporary professional employee is granted explicitly in § 1108 and implicitly in § 1122 of the Code (and not in § 514, as the parties to this appeal have assumed) 8 Nicolella v. Trinity Area School District School Board, 444 Pa. 544, 550, *113281 A.2d 832, 835 (1971); Johnson v. United School District Joint School Board, 201 Pa.Super. 375, 191 A.2d 897 (1963) (allocatur denied).9 The grounds for dismissal are not only incompetency (the only ground specifically mentioned in § 1108) but also the several other grounds enumerated in § 1122 for termination of a contract with a tenured teacher. Johnson v. United School District Joint School Board, supra. The grounds are immorality, intemperance, cruelty, persistent negligence, mental derangement, and persistent and wilful violation of the school laws of this Commonwealth (section 1122).
This being, in brief compass, the statutory scheme, procedural and substantive, pertaining to the discharge of non-tenured teachers, it is clear to me that the collective bargaining agreement provision here in issue is in conflict with it. As we said in Commonwealth ex rel. Hetrick v. Sunbury School District, 335 Pa. 6, 11, 6 A.2d 279, 281 (1939):
“The fundamental policy of our public school system is to obtain the best educational facilities for the children of this Commonwealth. . . . The duty of devising methods by which this important obligation can be discharged devolves upon the school boards.”
To this end, the legislature has entrusted school boards with the power and the duty to employ competent, effective teachers, ibid, and, a fortiori, the correlative power and duty to discharge those it does not deem to be fit. *114Concededly, this power cannot be wielded capriciously, and the clear purpose of § 1122 of the Code was to insure that competent and dedicated teachers would not be the targets of arbitrary board action. Streibart v. Board of Directors of the School District of the City of York, 339 Pa. 119, 14 A.2d 303 (1940).10 But to say that a board may not act arbitrarily does not, of course, relieve it of its fundamental power and duty to maintain the best and most efficient school system possible. See Appeal of Houtz, 361 Pa. 537, 65 A.2d 420 (1949). In this light, the inclusion of article T-III, section 9(f) in the collective bargaining agreement before us amounted to a delegation of a paramount board responsibility which, if not in violation of the School Code, is at least wholly inconsistent with the statutory scheme which the Code embodies.
The Court recognizes that the General Assembly intended that a school board should have broad discretionary powers in the area of teacher employment, but concludes that this collective bargaining agreement can be construed in such a manner as to “fully protect the authority of the board.” (Opinion of the Court, ante at 47 *115[typed copy]). With respect, I think this is an impossibility. As an illustration, consider the following provision of § 508 of the School Code:
“The affirmative vote of a majority of all the members of the board of school directors . . . duly recorded, showing how each member voted, shall be required in order to take action on the following subjects:
Dismissing a teacher after a hearing.11
The emasculation of the appellant Board’s ultimate authority to discharge a non-tenured teacher which will result from the submission of the issue to arbitration is obvious. If the arbitrators should determine that the basis for the Board’s decision to dismiss constitutes “just cause”, the taking of the § 508 roll call by the Board will amount merely to the performance of a perfunctory ministerial duty — a meaningless echoing of a decision made for the Board by the arbitrators. Surely this sort of charade would not comport with the reasoned decision-making by each individual Board member which the legislature intended by § 508. Conversely, if after a hearing the Board, by affirmative majority vote of its members duly recorded in accordance with § 508, were to dismiss a temporary professional employee for one of the § 1122 causes, the union could, under the contract, even at that late point (a point which had not been reached in the case at bar) assert as a grievance that there was no “just cause” for the dismissal. The action of the Board would then have been an exercise in futility, for the en*116tire case would then be referred to arbitrators; the arbitrators would sit, in effect, as a super school board in a matter of teacher discipline and dismissal, but not subject to the provisions of the School Code governing the actions of school boards, and not subject to appeal.12
To recapitulate, the presence of clause T-III, section 9(f), or a clause like it, in a collective bargaining agreement means that every decision of a school board to dismiss a non-tenured teacher because of incompetency, immorality, intemperance, cruelty, etc. (see § 1122 of the Code, supra) will become, if the teacher so elects, subject to binding arbitration. I cannot accept that this abdication of responsibility was intended by the legislature or is consonant with the policy and provisions of the Public Employe Relations Act as it applies to the public schools.
I would reverse the order of the court of common pleas and allow the appellant Board to proceed with its hearing and determination as to the propriety of Mr. Vahey’s dismissal.
. “The board of school directors in any school district, except as herein otherwise provided, shall after due notice, giving the reasons therefor, and after hearing if demanded, have the right at any time to remove any of its officers, employes, or appointees for incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper conduct.” Act of March 10, 1949, P.L. 30, art. V, § 514, 24 P.S. § 5-514 (1962). As shown later in this opinion, this section has been construed not to apply to temporary professional employees, including non-tenured teachers. See text, infra at p. 44 [typed copy].
. See § 514, ibid. Whether such a hearing was requested is not disclosed by the record before us.
. Act of July 23, 1970, P.L. 563, No. 195, art. IX, § 903, 43 P.S. § 1101, 903 (Supp. 1974).
. A concurring opinion was filed by this writer, joined by Mr. Chief Justice Jones. Mr. Justice Eagen filed a dissenting opinion.
. Act of March 10, 1949, P.L. 30, art. I, § 101 et seq., 24 P.S. § 1-101 et seq. (1962).
. Ҥ 11-1101. Definitions.
As used in this article,
(1) The term ‘professional employe’ shall include those who are certified as teachers, supervisors, supervising principals, principals, directors of vocational education, dental hygienists, visiting teachers, home and school visitors, school counselors, school secretaries the selection of whom is on the basis of merit as determined by eligibility lists and school nurses.
(2) The term ‘substitute’ shall mean any individual who has been employed to perform the duties of a regular professional employe during such period of time as the regular professional employe is absent on sabbatical leave or for other legal cause authorized and approved by the board of school directors or to perform the duties of a temporary professional employe who is absent.
(3) The term ‘temporary professional employe’ shall mean any individual who has been employed to perform, for a limited time, the duties of a newly created position or of a regular professional employe whose service has been terminated by death, resignation, suspension or removal.”
. “Section 11-1108. Temporary Professional Employes (d) Temporary professional employes shall for all purposes, except tenure status, be viewed in law as full-time employes, and shall enjoy all the rights and privileges of regular full-time employes.” Pursuant to § 1108 of the Code, the non-tenured teacher or
“temporary professional employe” is employed for what is, in essence, a probationary period of two years. At least twice yearly the county or district superintendent is required to rate such a teacher’s performance, according to the procedure set forth in § 1123. See Mullen v. DuBois Area School District, 436 Pa. 211, 258 A.2d 877 (1969). After two consecutive years of satisfactory performance and upon a satisfactory rating during the last four months of the probationary period, the non-tenured teacher gains the status of a “professional employe”, i. e., he acquires tenure and is entitled to a professional employe’s contract. (See ?. 1121).
. Even were § 514 of the Code, see n. 1, supra, the operative section governing discharge of temporary professional employees, it would not change the views expressed herein.
. In holding the grounds for discharge in § 1122 applicable to temporary professional employees as well as to professional employees, the Superior Court reasoned:
“It appears to us that a temporary professional employe may be dismissed either by an unsatisfactory rating referred to in §§ 1108 and 1123 . . . or by the board for reasons set forth in § 1122. If a professional employe can be discharged under § 1122 and a temporary professional employe cannot be discharged under that section, the teacher who has not acquired tenure by two years service has greater rights than one who has acquired tenure status. This could not have been the intent of the legislature.” 201 Pa.Super. at 383, 191 A.2d at 902.
. The majority opinion quotes from Brentwood Borough School District Appeal, 439 Pa. 256, 267 A.2d 848 (1970) to the effect that at a dismissal hearing the board plays a dual role, acting both as prosecutor and as judge, and hence can never be totally unbiased. 439 Pa. at 262-63, 267 A.2d 848. This perhaps overly-broad statement was not intended, at least to my mind, to impugn all board hearings where teacher dismissal is involved. Indeed, I subscribe to Mr. Justice Roberts’ comment dissenting in Brentwood Borough, to the effect that we should expect a school board to offer its professional employees “a truly fair hearing” notwithstanding its dual role. As Mr. Justice Roberts went on to say, “almost every administrative agency in this Commonwealth acts at some time or another as ‘both prosecutor and judge’ in the course of its proceedings; and they are all nonetheless required to conduct their proceedings in accordance with certain minimum standards of fairness ... [it is not] too much to ask of a public agency like a school board that it restrain its prosecutorial zeal and provide at least a modicum of procedural fairness to every citizen who appears before it.” 439 Pa. at 265, 267 A.2d at 852.
. In Mullen v. DuBois Area School District, 436 Pa. 211, 259 A. 2d 877 (1969) this Court held that the requirement in § 508 that the vote of each member be formally recorded in order that board action be valid is directory rather than mandatory. This holding in no way affected, however, our recognition that a majority vote is essential to the validity of any of the actions enumerated in § 508.
. To suggest, as does the majority (opinion of the Court, ante at 41-42 [typed copy]), that the procedural safeguards which are afforded the non-tenured teacher under the Code and the Local Agency Law are less than might be desired by the teacher is to miss the point. The issue before us is not why the Federation would prefer that matters of teacher dismissal be submitted to binding arbitration; the question is whether this may be done consistently with the legislative scheme. For this same reason, it is irrelevant that the union is willing “. . . to accept a less restrictive substantive standard [than the conduct set forth in § 1122 or § 514] in return for the greater procedural advantages afforded by the arbitration proceeding.” (Majority opinion ante at 42 [typed copy]). On the other hand, there is nothing in the contract or in logic to prevent arbitrators in a particular dispute from giving “just cause” a construction which is narrower than the statutory enumeration of causes for dismissal. Were they to do so, the purpose of the Code would be thwarted.
As excellent a device as arbitration is in many aspects of labor relations, substitution of it for the deliberate, responsible recorded action of a majority of a school board, taken pursuant to § 508 of the Public School Code, is in my view in clear conflict with the legislative intent.