DISSENTING OPINION BY
Judge SMITH-RIBNER.I respectfully dissent from reversal of the decision of the State Civil Service Commission (Commission) holding that Article 27, § 2 of the Collective Bargaining Agreement (CBA) between the Pennsylvania State Corrections Officers Association (PSCOA) and the Department of Corrections (Department) is plainly in conflict with seniority provisions of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1-741.1005, and therefore is invalid and unenforceable. The majority has provided a description of the facts and the procedures involved in this matter, including the request filed by Dennis N. Jenkins, Sr. a few days after his starting a new position as a Lieutenant, Corrections Officer 3, at a different facility, to be returned to his former position as a Sergeant, Corrections Officer 2, at SCI-Camp Hill.
When Jenkins left his Corrections Officer 2 position he left the H-l bargaining unit, which represents 10,000 corrections officers and certain other employees. Jenkins did not leave the classified service, and his service was not broken under Sec*1007tion 807.2(b) of the Civil Service Act, added by Section 1 of the Act of June 1, 1945, P.L. 1366, 71 P.S. § 741.809(b), which provides: “Seniority for the classified service begins with the date of first civil service employment in a civil service class and includes periods of subsequent employment in any civil service class providing such employment has been on a continuous basis.” Subsection (b) has similar provisions for seniority in a “classification series” and in “each class,” which are the other forms established in subsection (a).1
PSCOA’s assertion that Civil Service Act seniority and CBA seniority do not interact is not tenable and represents the crux of the conflict in this case. CBA seniority is employed for calculations under various procedures, including the selection of overtime and vacation time as well as decisions on furlough and promotion. As the Commission posited, if a furlough were necessary shortly after Jenkins’ return to his position as Corrections Officer 2 at SCI-Camp Hill, and Article 27, § 2 applied, he would be the first to go, and it would be of no comfort to him to be told that his years of Civil Service Act seniority remained intact.
Article 27, § 1 of the CBA recognizes “Bargaining Unit” seniority, which is the time that an employee is continuously employed in one of the sixty-four classifications that make up the H-l bargaining unit, and “classification” seniority, which is continuous employment in a classification. Breaks in service are governed by Article 27, § 2, which provides in pertinent part:
If an employee accepts a transfer out of or is promoted out of this Unit, the employee shall lose whatever Bargaining Unit and Classification seniority the employee has accumulated up to the time of transfer or promotion. If an employee returns to this bargaining unit at any time after such transfer or promotion, the employee’s seniority in this bargaining unit shall begin anew.[2]
To reassure applicants for promotion, Section 804.1(b) of the Civil Service Act, added by Section 3 of the Act of September 29, 1951, P.L. 1636, 71 P.S. § 741.804a(b), provides a guaranteed right to return “to the position previously held” in the first three months of the probationary period.
When Jenkins submitted a request to return to his former position he was in fact exercising a statutory right to return. The implementing regulation, 4 Pa.Code § 97.38, provides in subsection (1) that during the probationary period the position vacated by the promoted employee will not be filled except on a substitute basis. The Commission concluded that these provisions plus the provision of Section 807.2, that seniority in the classified service continues so long as there is continuous employment in any civil service class, encourage persons in the classified service to seek and accept promotions *1008without fear, knowing that if the promotions do not work out, at least in a relatively brief initial period, they can return to their previous positions.
There is evidence in this record that the provision of Article 27, § 2 was intended to conflict with the Civil Service Act. Edward McConnell, Executive Vice-President of PSCOA, acknowledged in his testimony that in the first 90 days, under the civil service rules, an employee has the right to come back on his or her own, stating: “We don’t affect that right because that is the law.” N.T., p. 36. However, he explained PSCOA’s position that if a person were promoted out of the H-l bargaining unit and exercised his right to return, the effect would be to bump the person who was promoted into the position that the first person vacated. The CBA provision is intended to create a deterrent. McConnell stated: “People who take the promotion or transfer out are aware that the language is in here. They know that if they come back, that there is a down side and the down side is that their Bargaining Unit seniority begins anew.” Id., p. 35.
Section 703 of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.703, 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.
Echoing this general requirement for all public employment contracts, Article 33, § 1 of the CBA provides:
In the event that any provisions of this Agreement are found to be inconsistent with existing statutes or ordinances, the provisions of such statutes or ordinances shall prevail, and if any provision herein is found to be invalid and unenforceable by a court or other authority having jurisdiction, then such provision shall be considered void, but all other valid provisions shall remain in full force and effect.
As the Commission acknowledged, Section 601 of the Civil Service Act, 71 P.S. § 741.601, specifies a procedure for certifying eligibles for promotion “unless there is in existence a labor agreement covering promotions in the classified service, in which case the terms and procedures of such labor agreement relative to the procedures for promotions shall be controlling. ...” (Emphasis added.) Similar language appears in Section 602, 71 P.S. § 741.602, regarding selection and appointment of eligibles and Section 802(a), 71 P.S. § 741.802(a), regarding procedures for determining furloughs.
The majority relies primarily upon the recent decision in Abel v. City of Pittsburgh, 890 A.2d 1 (Pa.Cmwlth.2005), to conclude that the language in Sections 601, 602 and 802(a) of the Civil Service Act controls and authorizes a CBA provision in plain conflict with the Civil Service Act. In Abel the Court addressed the legality of seniority and furlough provisions of a CBA that were different from furlough provisions in the general civil service chapter of the Second Class City Code, Act of May 23, 1907, P.L. 206, as amended, 53 P.S. §§ 23431 — 23462. The CBA required the City of Pittsburgh to lay off employees by job title and individual department, in reverse order of seniority, within three seniority units consisting of laborers, drivers and crafts, whereas Section 20.1 of the civil service chapter, added by Section 1 of the Act of June 20, 1947, P.L. 663, 53 P.S. § 23454, provided that the last employee *1009hired should be the first to be laid off, without regard to job title or classification. The Court determined that Section 703 of the PERA did not operate as a bar to enforcement of the CBA provisions over the contrary statutory provision.
The Court in Abel relied upon Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975), where the meaning of Section 703 of the PERA was raised in the context of a teachers’ collective bargaining agreement. The Supreme Court concluded that provisions of Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101— 27-2702, requiring school boards to set teacher salaries did not prevent collective bargaining pursuant to Section 701 of the PERA, 43 P.S. § 1101.701, which requires public employers to bargain in good faith with respect to wages, hours and other terms and conditions of employment. The Supreme Court stated that items bargaina-ble under Section 701 are excluded from bargaining under Section 703 only where other applicable statutory provisions explicitly and definitively prohibit the public employer from making an agreement as to a specific term or condition of employment. In Abel the Court did not find any explicit and definitive prohibition against bargaining over seniority and fui'lough, and it concluded that the CBA provisions prevailed.
The majority overstates the application of State College Area School District to the present case. The Supreme Court and this Court have not hesitated to hold that negotiated contractual provisions were unenforceable under Section 703 of the PERA. In Allegheny Valley School District v. Allegheny Valley Educ. Ass’n, 25 Pa.Cmwlth. 559, 360 A.2d 762 (1976), this Court vacated an arbitrator’s award that required a school district to pay full regular salary to teachers while on sabbatical leave pursuant to a negotiated CBA provision. The Court held that the negotiated term was inconsistent with Section 1169 of the School Code, 24 P.S. § 11-1169, which at that time provided: “The person on leave of absence shall receive one-half of his or her regular salary during the period that he or she is on sabbatical leave.” Therefore, the CBA provision was unenforceable under Section 703 of the PERA. Similarly, in Greater Johnstown School District v. Greater Johnstown Educ. Ass’n, 167 Pa.Cmwlth. 50, 647 A.2d 611 (1994), this Court vacated an arbitrator’s award that required a school district to recall a tenured furloughed teacher to fill temporary vacancies in areas in which he was not certified, pursuant to a CBA term. The Court held that such a requirement violated Section 1202 of the School Code, 24 P.S. § 12-1202, which provides: “No teacher shall teach, in any public school, any branch which he has not been properly certificated to teach.”
In Mifflinburg Area Educ. Ass’n ex rel. Ulrich v. Mifflinburg Area School District, 555 Pa. 326, 724 A.2d 339 (1999), a new CBA provided for a fifteen-step pay scale based upon years of service, but the school district credited service only after a break in service. An arbitrator decided a grievance in favor of the school district. The Supreme Court interpreted language in Section 1142 of the School Code, 24 P.S. § 11-1142, that “[w]hen a district adopts a salary scale in excess of the mandated scale, it shall not be deemed to have altered or increased the step which the employe has gained through years of service,” plus a provision in Section 1149, 24 P.S. § 11-1149, that where teachers enter a new school district they shall enter at a point agreed upon, as requiring that a teacher’s past years of service be credited upon rehire into the same school district. Relying upon Section 1121 of the School *1010Code, 24 P.S. § 11-1121, which provides that all contracts contain a clause stating that none of the provisions of the School Code may be waived by district employees, and Section 703 of the PERA the Supreme Court reinstated the trial court’s order vacating the award.
In Greater Johnstown School District v. Greater Johnstown Educ. Ass’n, 804 A.2d 680 (Pa.Cmwlth.2002), a CBA explicitly provided that substitutes hired as regular teachers would have no claims for seniority, salary or accumulated sick leave based upon the time served as a substitute. This Court affirmed the decision of a trial court confirming the decision of an arbitrator who held that credit for such time served was required under Mifflinburg and the Supreme Court’s per curiam reversal, citing Mifflinburg, in Penns Manor Area School District v. Penns Manor Educ. Ass’n, 556 Pa. 438, 729 A.2d 71 (1999). Similarly, in Chambersburg Area School District v. Chambersburg Area Educ. Ass’n, 811 A.2d 78 (Pa.Cmwlth.2002), aff'd, 578 Pa. 638, 854 A.2d 1277 (2004), despite a memorandum of understanding that the terms and conditions of employment for long-term substitutes would remain the prerogative of the school district, this Court reversed a trial court order that vacated an arbitrator’s award requiring the school district to credit time spent as a substitute when hiring. The Court concluded that under Mifflinburg, Penns Manor and the 2002 Greater Johnstown School District decisions, the grievants had statutory protection.
The above cases clearly demonstrate that the prohibition in Section 703 of the PERA against a contract provision that violates or is inconsistent with a statutory enactment has not been rendered a dead letter by State College Area School District. As illustrated above, the loss of seniority provision in Article 27, § 2 was designed to act as a threat to discourage former bargaining unit members from returning to the H-l bargaining unit in precisely the situation that Section 804.1(b) of the Civil Service Act and 4 Pa.Code § 97.38(1) provide protection for such a return. Under the cases noted above, I find this violation and inconsistency with statute to render the disputed provision of Article 27, § 2 unenforceable.
Nor do I agree that Sections 601, 602 and 802(a) of the Civil Service Act specifically authorize Article 27, § 2. Those provisions state that CBA provisions relating to “procedures” for certifying, appointment and furlough may be different from the statute. As the Commission properly concluded, they do not specifically authorize adoption of a CBA provision relating only to seniority and to return following a promotion or a transfer that is undeniably in conflict with the Civil Service Act. Indeed, the “procedures” for certifying, appointment and furlough are not involved here, as is shown by the fact that if a person had a break for another reason specified in Article 27, § 2, such as resignation, see n. 2 above, and returned with credit, the same furlough procedures, for example, would apply but the result would be different only because the seniority stripping provision would not apply.3 *1011Therefore, I dissent from the decision reached by the majority because it is inconsistent with and contrary to established precedent.
Judge FRIEDMAN joins in this dissent.. The implementing regulation relating to break in service, 4 Pa.Code § 101.71, provides in subsection (a) that seniority shall be continuous unless broken by enumerated events including resignation and retirement but not including transfer or promotion to another position in the classified service. Further, if service is broken for a specified reason and an employee returns within one year, the employee is entitled to credit for the time accrued until the break.
. Article 27, § 2 also defines "break in service” to include resignation, separation for cause and certain other specified reasons and provides, parallel to 4 Pa.Code § 101.71, that if service is broken for a specified reason and the employee returns within one year, the employee shall be entitled to credit for the time before the break. Thus loss of seniority based on break in service followed by a return applies only where an employee accepts a transfer or a promotion out of the H-l bargaining unit.
. As the preceding discussion indicates, contrary to the statement of the majority in n. 13, the dissent has not failed to account for the operation of Sections 601, 602 and 802 of the Civil Service Act; rather, it is the majority that fails to properly interpret those Sections. I disagree with the Commission’s characterization of rules governing procedures for promotion and furlough as ''procedural” — -the basic rules governing promotion and furlough are substantive rules and those rules relating to enforcement of these rights in legal proceedings are procedural. The three Sections authorize negotiation of different "procedures" for certification, appointment and furlough, but the Article 27, § 2 provision at *1011issue here is solely a narrow, seniority stripping measure that takes effect long before such procedures are invoked.