IN THE COMMONWEALTH COURT OF PENNSYLVANIA
School District of Philadelphia :
:
v. : No. 152 C.D. 2016
: Argued: February 7, 2017
Commonwealth Association of :
School Administrators, Teamsters :
Local 502, :
Appellant :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: April 13, 2017
The Commonwealth Association of School Administrators, Teamsters
Local 502 (Association), appeals from an order of the Court of Common Pleas of
Philadelphia County (trial court), granting School District of Philadelphia’s
(District) petition to vacate an arbitration award. For the reasons that follow, we
reverse.
The facts underlying this matter are not in dispute. The Association is
a labor union that represents school principals and other administrators. The
Association brings the instant appeal on behalf of Michelle Burns (Burns), the
former principal of William T. Tilden Middle School (Tilden), located within the
District. Burns was first hired by the District as a teacher in 1997. The District
appointed her as principal of Tilden in 2006 where she served until 2010. In 2010,
she became the principal at Kensington Urban Education Academy High School
until the District terminated her employment on January 15, 2014.
Pennsylvania requires every school district to administer to its
students a standardized examination called the Pennsylvania System School
Assessment (PSSA). The PSSA measures students’ competency in various
academic subjects and is also used to rate faculties, administrators, schools, and
districts based on the student bodies’ performance.
In 2011, the Pennsylvania Department of Education (Department)
conducted a statistical analysis which revealed a high number of “beneficial
erasures” at several schools in the District. Beneficial erasures occur when an
incorrect answer on a standardized test is erased and the correct answer is marked
instead. The Department instructed the District to investigate several of the
identified schools, including Tilden. Based on its investigation, the District
concluded that the beneficial erasures at several schools, including Tilden, were the
result of improper conduct. Specifically, the investigation concluded that school
employees altered the tests in an attempt to bolster the school’s overall
performance on the PSSA. The investigation determined that 100 percent of
Tilden’s PSSA tests in 2009 and 2010 were altered. The District alleged that
Burns, who was the principal of Tilden during the time covered by the analysis,
actively participated in the improper conduct or knowingly allowed the conduct to
continue. Alternatively, the District alleged that, if Burns was unaware, she acted
negligently by failing to discover and prevent such misconduct. On
January 15, 2014, the District terminated Burns’ employment based on these
allegations.
2
Effective September 1, 2013, the Association and the District entered
into a Collective Bargaining Agreement (CBA) which set forth the terms and
conditions of employment for administrators employed by the District. Article 2,
Section 2.1 of the CBA provides that the District “shall retain the sole right to hire,
discipline or discharge for cause, lay off, transfer and assign Administrators.”
(Reproduced Record (R.R.) at 22a.) The Association filed a grievance pursuant to
Article 5 of the CBA. Article 5 of the CBA defines a grievance as “a claim of a
violation of any specific provision of this Agreement or of any Personnel Policy or
Regulation which has been or shall be adopted by the [District].” (R.R. at 27a.)
Pursuant to the procedures set forth in the CBA, the Association filed
a grievance contesting the District’s decision to terminate Burns’ employment. A
single arbitrator (Arbitrator) conducted a hearing on April 30, 2015.
At the hearing, the Association argued that the District could present
no evidence that Burns was directly involved in any misconduct and, even
assuming that she was negligent in allowing the conduct to occur while she served
as principal, termination of her employment was a disproportionate consequence
for her mere lapse in oversight. Burns testified that she did not participate in any
cheating and was not aware of any other school employees improperly helping
students on exams. She also testified that Tilden hired an outside testing contractor
to insure the integrity of the PSSA testing process. Burns additionally noted that
the testing contractor offered her incentives if Tilden achieved acceptable yearly
progress on PSSA scores, but, because she announced her intent to leave Tilden in
December of 2009, she would not have received an incentive based on test scores
in 2010.
3
The District called five witnesses in support of its decision to
terminate Burns’ employment. The first two witnesses, Donyall Dickey, the
District’s chief academic officer and Jordan Floyd, a teacher at Tilden during
Burns’ tenure as principal, testified regarding the importance of the PSSA testing
and how a school’s overall scores affect the chances of a principal to be promoted
to a superintendent position. The third witness, Dr. Uma Jayaraman, testified that
the District was required to train testing coordinators for the PSSA and that the
principal of each school was responsible for insuring that all school employees
followed proper testing procedures and security protocols. Jeff Robinson, the
District’s project manager for testing logistics, testified that the analysis of PSSA
answer sheets demonstrated that the number of beneficial erasures at Tilden was
four standard deviations above the state-wide average. Robinson also noted that
the number of beneficial erasures dropped to nearly zero the year after Burns left
Tilden. Finally, Jessica Diaz, former assistant general counsel to the District,
testified that a large, national law firm analyzed the number of beneficial erasures
at several Philadelphia schools in 2009, 2010, and 2011. Diaz testified that the
analysis concluded that systematic cheating was occurring at Tilden across all
grades, subjects, and classrooms. Diaz stated that, according to the report, Burns,
as principal of the school, must have directly facilitated the cheating or willfully
ignored it, or she was completely oblivious to her responsibilities as principal.
Diaz also stated that other teachers and administrators had admitted to cheating
while working at Tilden, although none of these individuals responded to the
District’s calls to testify at the arbitration hearing.
The Arbitrator issued his decision and award (Award) on
August 16, 2015. The Arbitrator sustained the Association’s grievance in part and
4
denied it in part, concluding that Burns did not actively participate in cheating at
Tilden, but that she failed in her supervisory responsibilities and in exercising
oversight over PSSA test security. In light of his conclusion that Burns did not
actively participate in any misconduct, the Arbitrator determined that termination
was a disproportionate penalty for failure to supervise adequately and mitigated
Burns’ suspension to a period of 60 calendar days without pay. Because Burns had
not been employed during the pendency of the grievance, the Arbitrator ordered
the District “to reinstate her as soon as practicable to the principal position she held
before she was fired.” (R.R. at 17a.)
The District filed in the trial court a petition to vacate the Award, and
the Association filed its answer and new matter, seeking confirmation of the
Award. Before the trial court, the District argued that the Award cannot logically
flow from the provisions of the CBA and that the Award violates public policy by
reinstating an administrator involved in a cheating scandal. The trial court
concluded that the Award was not rationally derived from the CBA because the
Arbitrator made the factual determination that Burns committed a terminable
offense, i.e. neglected her supervisory duties as principal, yet failed to recognize
the explicit language of the CBA granting the District the “sole right” to determine
the appropriate level of discipline. (Trial court op. at 3.) By order dated
January 13, 2016, the trial court granted the District’s petition and vacated the
Arbitrator’s Award. The trial court reasoned that the Arbitrator’s decision was
based on a “just cause” analysis, which was not supported by any provision of the
CBA, and that the decision to reinstate Burns violated a clear public policy against
school administrators condoning cheating. The Association appealed the trial
court’s order to this Court.
5
On appeal, the Association argues that the trial court erred in vacating
the Award for three reasons: (1) the trial court invaded the province of the
Arbitrator by concluding that he incorrectly applied a “just cause” analysis; (2) the
trial court incorrectly concluded that the Arbitrator exceeded his authority by
modifying the discipline imposed by the District; and (3) the trial court erred in
determining that the Award violated public policy.
Although our Supreme Court has held that an arbitrator’s
interpretation of a CBA should be given great deference, the arbitrator’s decision
must be rationally derived from the terms of the CBA. Office of the Attorney
General v. Council 13, Am. Fed’n of State, Cnty. and Mun. Emps.,
AFL-CIO, 844 A.2d 1217, 1222 (Pa. 2004) (OAG). We have previously explained
the “essence test” used to determine whether an arbitrator’s Award is rationally
related to the terms of the CBA, as follows:
As stated by the Pennsylvania Supreme Court in
Westmoreland Intermediate Unit # 7 v. Westmoreland
Intermediate Unit # 7 Classroom Assistants
Educational Support Personnel Association,
PSEA/NEA, 939 A.2d 855 (Pa. 2007), the essence test
was derived from the United States Supreme Court’s
decision in United Steelworkers v. Enterprise Wheel &
Car Corp., 363 U.S. 593 (1960), wherein, the Court held:
An arbitrator is confined to interpretation and application
of the collective bargaining agreement; he does not sit to
dispense his own brand of industrial justice. He may, of
course, look for guidance from many sources, yet his
award is legitimate only so long as it draws its essence
from the collective bargaining agreement.
The Westmoreland Court further explained:
Recently . . . we reaffirmed the essence test and set
forth a clear two-prong approach to judicial review of
grievance arbitration awards: First, the court shall
determine if the issue as properly defined is within the
terms of the collective bargaining agreement. Second, if
6
the issue is embraced by the agreement, and thus,
appropriately before the arbitrator, the arbitrator’s award
will be upheld if the arbitrator’s interpretation can
rationally be derived from the collective bargaining
agreement.
Bethel Park Sch. Dist. v. Bethel Park Fed’n of Teachers,
Local 1607, 55 A.3d 154, 157 (Pa. Cmwlth. 2012) (internal quotations omitted),
appeal denied, 62 A.3d 380 (Pa. 2013).1
We first address the Association’s argument that the trial court
inappropriately intruded upon the domain of the Arbitrator by rejecting his
interpretation of “cause” under the CBA. To the extent that the trial court held that
the Arbitrator erroneously interpreted the definition of “cause” contained in
Article 2.1 of the CBA, the trial court clearly erred. It is a foundational principle
of arbitration that a court may not substitute its own judgment for that of the
arbitrator. See Pa. State Sys. of Higher Educ. v. Ass’n of Pa. State Coll. & Univ.
Faculties, 98 A.3d 5 (Pa. Cmwlth. 2014). An arbitrator is charged by the parties
with a duty to apply and interpret the contract, including the concept of just cause.
See OAG, 844 A.2d at 1217. The trial court’s disagreement with the arbitrator’s
interpretation is not alone sufficient to set aside the arbitrator’s interpretation.
1
We note that the District cites our decision in Riverview School District v. Riverview
Education Association, 639 A.2d 974, 977 (Pa. Cmwlth. 1994), appeal denied, 655 A.2d 518
(Pa. 1995), for the proposition that a court may vacate an arbitrator’s award if the court
determines that the award was “manifestly unreasonable.” Riverview Sch. Dist., 639 A.2d
at 977. Our Supreme Court, however, has expressly stated that the essence test does not allow a
court to evaluate the reasonableness of an award. Pennsylvania Game Comm’n v. State Civil
Service Comm’n (Toth), 747 A.2d 887, 891 n.7 (Pa. 2000) (Toth) (“Thus, we reiterate that the
essence test does not permit an appellate court to intrude into the domain of the arbitrator and
determine whether an award is manifestly unreasonable.”); Westmoreland, 939 A.2d at 863.
7
The trial court initially determined that the Arbitrator misapplied
Section 1122 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30,
as amended, 24 P.S. § 11-1122 (School Code), which provides, in pertinent part:
The only valid causes for termination of a contract
heretofore or hereafter entered into with a professional
employe shall be immorality; incompetency . . .
intemperance; cruelty; persistent negligence in the
performance of duties; willful neglect of duties . . .
conviction of a felony or acceptance of a guilty plea or
nolo contendere therefor; persistent and willful violation
of or failure to comply with school laws of this
Commonwealth (including official directives and
established policy of the board of directors); on the part
of the professional employe. . . .
The trial court reasoned that, because “cause” is statutorily defined, the Arbitrator
was without authority to interpret the definition of cause contrary to the statute.
This analysis, however, is precisely the type of analysis disfavored by our Supreme
Court in Toth. A court may not look into an arbitrator’s decision and decide
whether the arbitrator’s interpretation is reasonable. State Sys. of Higher
Educ. (Cheyney Univ.) v. State College Univ. Prof’l Ass’n
(PSEA-NEA), 743 A.2d 405, 413 (Pa. 1999). The Arbitrator interpreted the term
“cause” within the contract to mean “just cause.” The Arbitrator did not equate
“cause” under the contract to be a “valid cause for termination” pursuant to
Section 1122. The Arbitrator was interpreting a provision of the CBA rather than a
statutory provision. Thus, to the extent the trial court held that the Arbitrator
misinterpreted the definition of cause in the CBA, the trial court erred by
exceeding the scope of its review.
Moreover, we see no conflict in the Arbitrator’s interpretation of the
CBA and Section 1122 of the School Code. Section 1122 of the School Code
provides that only certain enumerated conduct by a professional employee amounts
8
to “cause[s] for termination.” In other words, Section 1122 of the School Code
prescribes the circumstances under which a school district may terminate a
professional employee. It does not, however, mandate that a school district
terminate any professional employee found to have engaged in such conduct.
It also does not preclude a professional employee from grieving a termination
decision for one or more of the authorized “causes” identified in Section 1122 of
the School Code. The authority of an arbitrator, then, to review a termination
decision and to mitigate discipline imposed by a school district is not restricted by
Section 1122 of the School Code. Instead, we must look to the parties’ CBA for
any such restrictions on the arbitrator’s authority.
Accordingly, we next address the Association’s argument that the trial
court erred in concluding that the Arbitrator exceeded his authority under the CBA
when he modified the discipline imposed. The trial court concluded that the
express terms of the CBA preclude the Arbitrator from modifying the discipline
assessed by the District. The trial court essentially determined that the Arbitrator’s
role was to make the factual determination of whether any cause for discipline
exists. If the Arbitrator determined that Burns committed any offense subject to
discipline, then, under the trial court’s analysis, the District had unfettered
discretion to impose any discipline it saw fit. Under this analysis, the penalty
imposed is not reviewable by an arbitrator.
We have recently held that, absent a clear limitation in the CBA, it is
within an arbitrator’s authority to modify the discipline imposed by a school
district: “[The a]rbitrator also determined [the g]rievant’s conduct did not
constitute just cause for her dismissal. In accord with the CBA, it is solely within
[the a]rbitrator’s province to find just cause for discipline under the facts of the
9
case. This includes the authority to modify discipline.” Rose Tree Media
Secretaries & Educ. Support Pers. Ass’n v. Rose Tree Media Sch.
Dist., 136 A.3d 1069, 1080 (Pa. Cmwlth. 2016) (internal citations omitted); see
also Blue Mountain Sch. Dist. v. Soister, 758 A.2d 742 (Pa. Cmwlth. 2000)
(holding that, even under manifestly unreasonable standard, arbitrator’s
interpretation of “just cause” can include modification of discipline if arbitrator
concluded that penalty imposed was excessive). In Rose Tree, this Court applied
the two-pronged essence test, set forth above, to determine whether an arbitrator’s
modification of the discipline imposed by a school district was rationally derived
from the CBA. The parties in Rose Tree stipulated that the arbitrator had authority
to decide the issue before him, and, thus, the first prong of the essence test was
met. This Court examined the relevant language contained in the parties’ CBA,
which provided, in pertinent part:
[Employer] and the Association expressly agree that the
Board and the Administration shall have the right to
discipline an employee for cause. Disciplinary actions
which the Board or Administration may take, provided
that cause exists, shall include, but not be limited to, oral
reprimand, written warning, written reprimand,
unsatisfactory rating or dismissal for cause.
Rose Tree, 136 A.3d at 1076. Based on this language, we held that the CBA did
not limit the arbitrator’s authority to determine whether just cause existed and to
modify the discipline imposed by the school district.
We have previously distinguished between a provision of a CBA
which allows an arbitrator to review and modify a district’s disciplinary ruling and
a provision that expressly reserves for the employer the right to decide the
appropriate form of discipline:
10
An arbitrator generally has the power, and specifically
under this Agreement, to interpret its provisions . . . and
we will not reverse unless the interpretation of the
agreement fails to draw itself from the essence of the
agreement. Regarding whether arbitrators have correctly
decided that they had the power to modify discipline
imposed by the employer under the Agreement, we have
held that where the agreement does not specifically
define or designate the discipline to be imposed, and does
not specifically state that the employer is the one with
sole discretion to determine the discipline, the arbitrator
is within his or her authority in construing the agreement
to modify the discipline imposed to reflect a reasonable
interpretation of the agreement.
Abington Sch. Dist. v. Abington Sch. Serv. Pers.
Ass’n/AFSCME, 744 A.2d 367, 369 (Pa. Cmwlth. 2000). In Abington, we
concluded that the language in the CBA must be specific to reserve the authority to
impose discipline to the school district in contrast to language generally reserving
authority to a district.2
2
The Court in Abington found that, for the discipline imposed not to be subject to
arbitration, the language must be similar to that in Board of Education of the School District of
Philadelphia v. Philadelphia Federation of Teachers, AFL–CIO, 610 A.2d 506 (Pa.
Cmwlth. 1992) (Philadelphia Federation), which provided “the arbitrator shall have no power or
authority to make any decision contrary to or inconsistent with terms of the agreement or
applicable law or which limits or interferes with the powers and responsibility of the [d]istrict.”
Philadelphia Fed’n, 610 A.2d at 508. This Court reached a similar holding in Riverview,
wherein we held that the reference to Section 1122 of the School Code, which provides, in part
that “[t]he [school district] . . . shall . . . 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,” was sufficient to reserve
discretion to decide the appropriate discipline to the school district. A review of Philadelphia
Federation and Riverview, however, reveals that both cases based their conclusions on a
“manifestly unreasonable” analysis. See Riverview, 639 A.2d at 978-79 (holding “it is therefore
manifestly unreasonable to conclude that the School District could have intended to bargain
away its absolute responsibility to insure the integrity of its educational mission by discharging
an employee who commits improper conduct.”) Accordingly, our analysis may be informed by
(Footnote continued on next page…)
11
We now address whether the Arbitrator’s interpretation of the CBA as
allowing the Arbitrator to modify the discipline imposed was rationally derived
from the CBA or whether the CBA clearly reserved to the District the right to
determine the appropriate discipline. The relevant provisions of the CBA are as
follows. Article 2.1 of the CBA provides that the District “shall retain the sole
right to hire, discipline or discharge for cause, lay off, transfer and assign
Administrators.” (R.R. at 22a.) Article 2.3 provides that the CBA “is not intended
to modify by any of its terms any discretionary authority concerning such matters
vested in the [District] by the statutes of the Commonwealth or the Philadelphia
Home Rule Charter, as the same may be supplemented or amended from time to
time.” (R.R. at 23a.) Article 10.6 of the CBA, which relates to personnel
practices, provides that “[a]dministrators may be disciplined for cause at the
discretion of the [District]. Discipline shall include discharge, suspension,
demotion in salary or status or any other action disciplinary in nature.”
(R.R. at 45a.) Article 5.5(l) of the CBA provides:
The Arbitrator shall have the power and authority to
decide and shall limit his/her decision strictly to the
matter specified in the Notice of Arbitration. The
Arbitrator shall be without power or authority to make
any decision that is:
(1) Contrary to or inconsistent with, or which
modifies or varies in any way, the terms of this
(continued…)
our prior holdings in Riverview and Philadelphia Federation to the extent those decisions
analyzed whether the language in the CBA clearly reserved the discretion to determine the
appropriate discipline to the District. Because the standard of review applied by those decisions
has been disfavored, however, we are not bound by their conclusions.
12
Agreement or of applicable law or rules or regulations
having the force and effect of law; or
(2) Which limits or interferes in any way with the
power, duties, responsibilities and discretion of the Board
and/or [School Reform Commission (SRC)] under its
By-Laws, applicable law, or rules and regulations having
the force and effect of law.
(R.R. at 29a.)
The District asserts that these Articles, read in conjunction, are
intended to reserve the authority to decide appropriate discipline to the District.
Although the District has asserted colorable arguments as to how certain provisions
of the CBA could be interpreted to limit an arbitrator’s authority, the Arbitrator
interpreted the provisions to allow him to modify the discipline imposed by the
District, and no provision of the CBA expressly precludes the Arbitrator from
modifying the discipline imposed by the District. The essence test does not allow a
reviewing court to decide de novo whether an arbitrator correctly interpreted his or
her authority under the CBA. State Sys. of Higher Educ. (Cheyney
Univ.), 743 A.2d at 413. Instead, we need only determine whether the arbitrator’s
authority is rationally derived from the CBA. Bethel Park Sch.
Dist., 55 A.3d at 157. Presumably, the Arbitrator determined that his authority
derived from Article 5.5 of the CBA, which authorizes the Arbitrator to decide
issues placed before him by the parties through the Notice of Arbitration unless
otherwise limited by the CBA, statutes, or regulations. In this instance, the issue
before the Arbitrator was the following: “Did the District have just cause to
terminate [Burns] and, if not, what shall be the remedy?” (R.R. at 9a.) As
explained above, our prior precedent has established that the authority to modify
discipline is inherent in an arbitrator’s authority to determine whether just cause
for discipline exists, unless the authority to modify discipline is expressly reserved
13
to the District. See Rose Tree, 136 A.3d at 1080. The Arbitrator concluded that no
provision of the CBA, statute, or regulation expressly limited his authority to
modify the discipline imposed by the District. Accordingly, the Arbitrator
determined that “termination is a disproportionate penalty that shall be mitigated to
a suspension without pay.” (R.R. at 17a.)
In the context of a school district arguing that a provision of the CBA
excluded a particular class of violations from arbitration, we held:
Clearly, the best evidence that parties to a public
employment collective bargaining agreement intended
not to arbitrate a particular class of disputes is an express
provision in the agreement excluding these questions
from the arbitration process. Where, as here, the
collective bargaining agreement contains no such
limiting provision, to subject a unionized employee to
arbitrary discipline resulting in a loss of employee rights
and protections afforded by the agreement, without
recourse to protest the employer’s action, would render
the agreement a mere sham and run counter to PERA’s[3]
objective to provide for mutual fair dealing by the parties
with regard to employment issues.
Hanover Sch. Dist. v. Hanover Educ. Ass’n, 814 A.2d 292, 297 (Pa. Cmwlth.),
aff’d, 839 A.2d 183 (Pa. 2003) (per curiam). Thus, we decline to conclude that a
provision limits the Arbitrator’s authority where the provision purported to do so is
vague rather than express.
With regard to the Association’s first two arguments, based on the
language of the CBA, we conclude that the Award was “not ‘indisputably and
generally [] without foundation in’ the CBA, and it appears to ‘logically flow
3
Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S.
§§ 1101.101-.2301.
14
from’ the CBA.” Pennsylvania Turnpike Comm’n v. Teamsters Local Union
No. 77, 87 A.3d 904, 911 (Pa. Cmwlth. 2014) (quoting Slippery Rock Univ. of Pa.,
Pa. State Sys. of Higher Educ. v. Ass’n of Pa. State Coll. and Univ.
Faculty, 71 A.3d 353, 358 (Pa. Cmwlth.), appeal denied, 83 A.3d 169 (Pa. 2013)).
Accordingly, the trial court erred in concluding that the Arbitrator’s Award did not
draw its essence from the CBA.
Because the trial court also concluded that, even if the Arbitrator’s
Award did draw its essence from the CBA, the Award should still be vacated
because it contravened a public policy of the Commonwealth, we now address the
Association’s argument that the trial court erred in determining that the
Arbitrator’s Award fell within the public policy exception to the essence test. The
public policy exception is a narrow exception, prohibiting a court from enforcing
an arbitrator’s award that contravenes public policy. See Westmoreland, 939 A.2d
at 855. As explained by our Supreme Court, “a court should not enforce a
grievance arbitration award that contravenes public policy. Such public policy,
however, must be well-defined, dominant, and ascertained by reference to the laws
and legal precedents and not from general considerations of supposed public
interests.” Id. at 865-66. In City of Bradford v. Teamsters Local Union
No. 110, 25 A.3d 408 (Pa. Cmwlth.) (en banc), appeal denied, 32 A.3d 1279
(Pa. 2011), we set forth a three-step analysis to be used when considering whether
an award violates public policy:
First, the nature of the conduct leading to the discipline
must be identified. Second, we must determine if that
conduct implicates a public policy which is well-defined,
dominant, and ascertained by reference to the laws and
legal precedents and not from general considerations of
supposed public interests. Third, we must determine if
the [a]rbitrator’s award poses an unacceptable risk that it
15
will undermine the implicated policy and cause the
public employer to breach its lawful obligations or public
duty, given the particular circumstances at hand and the
factual findings of the [a]rbitrator.
City of Bradford, 25 A.3d at 414.
We must first determine the nature of the conduct leading to the
discipline. Here, the trial court concluded that “it is fundamental that plagiarism
and cheating are antithetical to learning and education and thus contrary to
established policy.” (Trial court op. at 6.) The Association argues that the
Arbitrator found that Burns had merely failed to supervise properly the security of
the PSSA administration and did not engage in conduct that constituted plagiarism
or cheating.
We agree that the trial court mischaracterized the Arbitrator’s factual
findings when analyzing the public policy exception to the essence test. The trial
court also stated: “Where, as here, there is no disagreement that school
administration, if not the principal herself, have been implicated in changing
students’ answers on a standardized test over a two year period . . . public policy is
offended.” (Trial court op. at 6 (emphasis in original).) The Arbitrator
unequivocally found that the District did not demonstrate that Burns was directly
involved in changing or altering any PSSA answers. The Arbitrator found only
that she was neglectful in failing to discover the cheating that was occurring.
Thus, our inquiry is limited to whether reinstatement of an administrator found to
be neglectful in the supervision of school employees and other administrators
contravenes a well-defined, dominant, and readily-ascertainable public policy.
It is well-settled that we may not vacate an arbitrator’s award under
the public policy exception simply because the conduct at issue is unacceptable in
a public employment setting. City of Bradford, 25 A.3d at 415. “There is no
16
public policy that mandates the discharge of all employees who are alleged to have
committed a misconduct.” County of Mercer v. Teamsters Local 250, 946
A.2d 174, 183 (Pa. Cmwlth. 2008). Prior case law has recognized areas where a
dominant public policy would preclude the enforcement of an arbitrator’s award.
Westmoreland Intermediate Unit No. 7 v. Westmoreland Intermediate Unit No. 7
Classroom Assistants Educ. Support Pers. Ass’n, PSEA-NEA, 977
A.2d 1205, 1211-12 (recognizing “a well-defined, dominant public policy to
protect school children from illegal drugs and drug use”); cf. New Kensington-
Arnold Sch. Dist. v. New Kensington-Arnold Educ. Ass’n., 140 A.3d 26 (Pa.
Cmwlth. 2016) (holding that teacher’s conviction for possession of marijuana off-
premises and during non-working hours did not require vacatur of arbitration
award reinstating teacher.); see also Philadelphia Housing Auth. v. Am. Fed’n of
State, Cnty. and Mun. Emps., Dist. Council 33, Local 934, 52 A.3d 1117
(Pa. 2012) (holding that arbitration award reinstating employee discharged for acts
constituting sexual harassment, violated well-defined and dominant public policy);
North Penn Sch. Dist. v. North Penn Educ. Ass’n, 58 A.3d 848, 858 (Pa.
Cmwlth. 2012) (“[An award] under the public policy analysis [must draw] the
necessary balance between the public employer’s duty to protect the health, safety
and welfare of the public, and the fair treatment of public employees”); Shamokin
Area Sch. Dist. v. Am. Fed’n of State, Cnty. & Mun. Emps. Dist.
Council 86, 20 A.3d 579 (Pa. Cmwlth. 2011) (recognizing public policy against
violence towards students in schools).4
4
We have previously held that an arbitrator’s award which divests an educational
institution of its authority to make employment decisions does not, by itself, violate any
(Footnote continued on next page…)
17
The District asserts that Burns’ actions violate a well-defined public
policy to protect students and public education and to preserve the integrity of the
PSSA testing. The District requests that this Court recognize a broad public policy
to protect students and public education. Although the overarching goal of our
school system is to provide a thorough and efficient educational environment for
children in the Commonwealth, the District’s vague characterization of this policy
would necessarily implicate any conduct occurring in a school setting, thus
eviscerating the narrow public policy exception to the essence test. See
Philadelphia Housing Auth., 52 A.3d at 1125 (emphasizing that public policy
exception is exceptionally narrow and particularized).
We do, however, recognize that a fundamental public policy exists to
“preserve the integrity of the PSSA testing,” in order to provide students in the
Commonwealth with an effective learning environment, and, had the Arbitrator
found Burns to be guilty of actively participating in altering PSSA tests, we would
have no hesitation in affirming the trial court’s conclusion that such conduct
offends a well-defined and dominant public policy of the Commonwealth;
however, this is not the case. Instead, the Arbitrator found only that Burns had
failed in her supervisory responsibilities and in exercising oversight over PSSA test
security. In other words, the Arbitrator essentially found that Burns engaged in
negligent supervision.
(continued…)
well-defined, dominant public policy. East Stroudsburg Univ. of Pa., State Sys. of Higher Educ.
v. Ass’n of Pa. State Coll. and Univ. Faculties, 125 A.3d 870, 874 (Pa. Cmwlth. 2015).
18
We are constrained by the factual findings of the Arbitrator on appeal
and, thus, must decide whether an award reinstating Burns, despite finding that she
was negligent, violates a fundamental public policy. This Court has not previously
recognized a public policy exception that would prevent an administrator from
being reinstated based on mere negligence, and we decline to recognize one based
on the facts of this case. Although the cheating which occurred at Tilden is
abhorrent and such conduct must be rooted out, the Arbitrator found only that
Burns failed to uncover the cheating and prevent it. Thus, we cannot conclude an
award reinstating an administrator after finding her guilty of mere negligence
violates a fundamental public policy. For the reasons set forth above, the trial
court erred in concluding that the Arbitrator’s Award was contrary to public policy
and that the Award should be vacated.5 Accordingly, the order of the trial court is
reversed.
P. KEVIN BROBSON, Judge
5
Because we conclude that the Arbitrator’s Award does not meet the second prong of the
public policy exception, we need not analyze the Award under the third prong. See City of
Bradford, 25 A.3d at 415.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
School District of Philadelphia :
:
v. : No. 152 C.D. 2016
:
Commonwealth Association of :
School Administrators, Teamsters :
Local 502, :
Appellant :
ORDER
AND NOW, this 13th day of April, 2017, the order of the Court of
Common Pleas of Philadelphia County (trial court), granting the School District of
Philadelphia’s petition to vacate the arbitration award, is REVERSED.
P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
School District of Philadelphia :
: No. 152 C.D. 2016
v. :
: Argued: February 7, 2017
Commonwealth Association of :
School Administrators, Teamsters :
Local 502, :
Appellant :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
CONCURRING OPINION
BY JUDGE McCULLOUGH FILED: April 13, 2017
I concur in the result reached by the Majority. However, I write
separately because I disagree with the conclusion that the Arbitrator could interpret
“cause” within the collective bargaining agreement (CBA) to mean “just cause.”
I believe it is unnecessary to evaluate this matter under a “just cause”
standard when the CBA only contains the term “cause.” If the meaning of “cause”
cannot be gleaned from the four corners of the CBA, I believe we simply look to
Section 1122(a) of the Public School Code of 1949 (Code),1 which provides “[t]he
only valid causes for termination of a contract . . . entered into with a professional
employee. . . .” 24 P.S. §11-1122(a).
1
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §11-1122(a).
Moreover, I do not read Pennsylvania Game Commission v. State
Civil Service Commission (Toth), 747 A.2d 887 (Pa. 2000), as countenancing the
disregard of a statutory definition on point. I do not believe that Toth stands for the
proposition that an arbitrator may ignore a statutory definition on point, and
instead, effectively, insert a non-existent adjective into the CBA. As the Majority
notes, while section 1122 of the Code defines “cause” and “prescribes the
circumstances under which a school district may terminate a professional
employee,” it does not mandate termination for the conduct identified therein.
(Slip op. at 9.) Hence, I agree with the Majority’s conclusion that the Arbitrator
had authority to determine that Michelle Burns did not act intentionally and to
mitigate her termination to a 60-day suspension without pay and order her
reinstatement. I also agree that the discipline imposed by the Arbitrator was not,
under these circumstances, in violation of public policy.
________________________________
PATRICIA A. McCULLOUGH, Judge
PAM - 2