concurring.
The majority correctly states that this appeal fundamentally concerns the “proper application of the public policy exception to the essence test.” Majority op. at 1121. Although I believe that the arbitration award here did not sufficiently consider the Commonwealth’s strong public policy to prevent sexual harassment and thus requires revisiting, because I also believe that the majority failed to properly consider and apply the public policy exception in this case in several important respects, I must respectfully write separately.
My differences with the majority opinion’s approach are several, and, respectfully, I find the majority’s consideration of the public policy exception here to be trou-blingly unmoored from certain bedrock principles and, at the same time, lacking in sufficient consideration of the other public policy exception in this case. That is, the majority opinion takes an immensely broad and, I respectfully believe, inaccurate approach to the Commonwealth’s public policy regarding sexual harassment, while barely acknowledging the clear public policy that is rooted in limited judicial review of labor disputes arbitrated under the Public Employee Relations Act (“PERA”), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301.
It is axiomatic that public policy is a category of public concern that is “well defined and dominant[,] ... ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA, 595 Pa. 648, 939 A.2d 855, 863-64 (2007) (plurality) (quoting W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber, Cork, Linoleum and Plastic Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983); emphasis added). As we observed:
In our judicial system, the power of the courts to declare pronouncements of public policy is sharply restricted. Rather, it is for the legislature to formulate the public policies of the Commonwealth. The right of a court to declare what is or is not in accord with public policy exists only when a given policy is so obviously for or against public health, safety, morals, or welfare that there is a virtual unanimity of opinion in regard to it. Only in the clearest of cases may a court make public policy the basis of its decision. To determine the public policy of the Commonwealth, we examine the precedent within Pennsylvania, looking to our own Constitution, court decisions, and statutes promulgated by our legislature.
Weaver v. Harpster, 601 Pa. 488, 975 A.2d 555, 563 (2009).
The instant case implicates the public policy concern regarding sexual harassment, which is a form of sexual discrimination. See id. at 564-65 (citing Section 952 of the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 952). Employment without fear of sexual discrimination is a public policy goal of this Commonwealth. Id. The PHRA “provides the administra*1131tive procedures by which the right against discrimination shall be vindicated.” Id. at 565.
On the federal level, Title VII of the Civil Rights Act makes it unlawful, among other things, for an employer to condone a sexually hostile work environment. 42 U.S.C. § 2000e-2(a)(l); Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). In Meritor Savings Bank, the United States Supreme Court determined:
Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.
Id. at 67, 106 S.Ct. 2399 (quoting Henson v. Dundee, 682 F.2d 897, 902 (1982)).
The High Court also observed, however: “Of course, ... not all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within the meaning of Title VII.... For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Id. at 67, 106 S.Ct. 2399 (citations and some quotation marks omitted). Moreover, once a plaintiff pursuing a Title VII action shows the existence of a hostile working environment, the plaintiff must also establish the element of respondeat superior. Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir.1990). “[Liability exists where the [employer] knew or should have known of the harassment and failed to take prompt remedial action.” Id. (quoting Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir.1989)). “Thus, if a plaintiff proves that management-level employees had actual or constructive knowledge about the existence of a sexually hostile environment and failed to take prompt and adequate remedial action, the employer will be liable.” Id. Conversely, “when an employer’s remedial response results in the cessation of the complained of conduct, liability must cease as well.” Howard v. Winter, 446 F.3d 559, 567 (4th Cir.2006).
In this case, there can be no question that the arbitrator’s findings of fact established that Ms. Broadnax was subject to a hostile work environment because of the actions of her co-employee, Thomas Mitchell. To this extent, I agree with the majority that the Commonwealth’s public policy against sexual harassment was implicated by this case, a conclusion also reached by the arbitrator here as well.1 I would also posit that under the arbitra*1132tor’s factual findings, PHA clearly appeared to take prompt and remedial action when supervisory employees were notified of Ms. Broadnax’s discomfort and concerns.
However, the majority opinion asserts that intermixed with the Commonwealth’s clear public policy of preventing sexual harassment is some co-existing public policy that requires a PERA arbitrator to defer to an employer’s obligation to conduct a high-level investigation into allegations of sexual harassment and to recognize the employer’s chosen form of discipline, including a belief that the employer should be “empowered to implement a zero tolerance policy,” which an arbitrator may not thereafter “undermine.” Majority op. at 1124, 1124-26, 1126-27, and 1128. Indeed, the majority states that “the record ... established that Mitchell sexually harassed his coworker, by both word and deed, in direct violation of applicable state law, federal law and the employer’s own stated policies, and failed to take responsibility.” Id. at 1126-27 (emphasis added). Public policy may be established by state law or federal law. However, it is not established by an employer’s policies or an employee’s failure to take responsibility. See Westmoreland, supra at 863-64 (holding that public policy is “well defined and dominant[,] ... ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.”).
A violation of public policy is the only circumstance that allows a reviewing court, including this Court, to interfere with a PERA arbitration award that meets the essence test. Id. Further, the public policy exception is extremely narrow. Id.; see also id. at 868 (Saylor, J., concurring); Eichelman v. Nationwide Insurance Co., 551 Pa. 558, 711 A.2d 1006, 1008 (1998); and BLaST Intermediate Unit 17 v. CNA Insurance Cos., 544 Pa. 66, 674 A.2d 687, 689 (1996) (quoting Hall v. Amica Mutual Insurance Co., 538 Pa. 337, 648 A.2d 755, 760 (1994)) (“Only in the clearest cases, therefore, may a court make an alleged public policy the basis of judicial decision.”).
Accordingly, considerations of an employer’s subjective policies, even a zero-tolerance policy, what a reviewing court feels an employer “should” be able to do, or the employee’s failure to take responsibility for his or her actions, do not in any manner constitute public policy and are thus not relevant to our inquiry. A reviewing court’s only inquiry is whether the arbitration award, having met the essence test, violates a clearly established public policy. I respectfully, but strenuously, disagree with and oppose any view that judicial review of PERA arbitration awards may be based on upholding the employer’s investigatory and disciplinary policies, unless those policies themselves unmistakably constitute a clearly established dominant public policy. The majority opinion does not support its conclusion that these internal employer policies do constitute a public policy that the arbitrator was required to recognize. Indeed, as even PHA acknowledges, there is no public policy that requires a sexual harasser to be fired in accordance with an employer’s internal policy. Cf. Eastern Associated Coal Corp. v. United Mine Workers of America, District 17, 531 U.S. 57, 67, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000) (holding that when neither the governing statute nor regulation requires the discharge of a worker violating transportation safety laws for drug use, the High Court will not infer a public policy that goes beyond the statutory and regulatory scheme). Moreover, here, PHA specifically agreed that disputed issues concerning employee discipline were to be determined by final and binding arbitration. Accordingly, a re*1133viewing court’s insistence that the employer’s investigatory and disciplinary policies must be made sacrosanct as a form of public policy is wholly incompatible with PERA, our case law interpreting PERA, and our case law defining public policy.2
Secondly, and of critical importance in my view, absent from the majority opinion is any serious discussion of the other public policy issue at stake in this case, namely, the highly deferential and limited judicial review of labor disputes arbitrated under PERA. This public policy is explicitly rooted in provisions of PERA and this Court’s case law interpreting that act. We have stated:
PERA mandates that the final step in the resolution of grievances or disputes arising from the agreement must be final and binding arbitration. 43 Pa.S.A. § 1101.903. Likewise, our Court, on a continual basis, has made clear the strong public policy of encouraging peaceful settlement of industrial disputes by means of arbitration.
Office of Attorney General v. Council 13, American Federation of State, County & Municipal Employees, AFL-CIO, 577 Pa. 257, 844 A.2d 1217, 1222 (2004) (footnote and case citations omitted; emphases added).3
Final and binding arbitration is “highly valued” in labor relations; more critically, it is absolutely required for labor disputes arising under PERA. Westmoreland, supra at 862. Consequently, “broad judicial review” of final and binding arbitration awards under PERA has long been recognized as incompatible with that Act’s purposes, and a standard of review “characterized by great deference” is mandated. Id. Indeed, under PERA, reviewing courts are not permitted to impose their “own brand of labor relations philosophy” and act as “superarbitrator[s].” State System of Higher Education (Cheyney University) v. State College and University Professional Association (PSEA-NEA), 560 Pa.135, 743 A.2d 405, 413 (1999). We have described the “heart” of PERA as the right of public employees to organize for purposes of collective bargaining, and the “lifeblood” of PERA as “the requirement that labor disputes arising under a collective bargaining agreement be resolved by final and binding arbitration.” Westmoreland, supra at 861 (citing 43 P.S. §§ 1101.401 and 1101.903). “[F]requent judicial disapproval of the awards of [PERA] labor arbitrators would tend to undermine a system of private ordering that is of the highest importance to the well-being of employer and worker alike.” Office of Attorney General v. Council 13, American Federation of State, County & Municipal Employees, AFL-CIO, 577 Pa. 257, 844 A.2d 1217, 1223 (2004) (quoting Newark Morning Ledger Co. v. Newark Typographical Union, 797 F.2d 162, 165 (3d Cir.1986); emphasis added). Accordingly, a reviewing court is required to accommodate such plain and ex*1134plicit public policy; I must respectfully conclude that the majority has failed to do so here.
The majority opinion’s determination not to address this co-existing public policy is undoubtedly the cause, I believe, for its extremely troubling open-ended review of the PERA arbitration award. As this case concerns the public policy exception to the essence test, a critical component to judicial review, untouched by the majority opinion, is defining how a reviewing court is to proceed once it is recognized that the public policy exception to the essence test is implicated. In other words, what standard and scope of review applies that will not only allow the reviewing court to explore the record to determine if, in fact, a public policy of this Commonwealth has been violated by the arbitrator’s award, but will also respect the co-existing public policy against judicial interference — or at best, in very limited circumstances, minimal interference — in PERA arbitration awards, and respect the undeniable circumstance that the arbitrator is the finder of fact, not the reviewing court.
As this Court has adopted the federal essence test and the corresponding federal public policy exception, see Westmoreland, supra at 865,4 it is instructive to observe how the United States Supreme Court balanced co-existing but perhaps competing public policies in its review of arbitration awards. In a series of cases, that Court emphasized that “the relevant statutory and regulatory provisions [of the public policy the award purportedly violates] must be read in light of background labor law policy that favors determination of disciplinary questions through arbitration when chosen as a result of labor-management negotiation.” Eastern Associated Coal Corp., supra at 65, 121 S.Ct. 462 (emphasis added). Accordingly, the High Court stressed that, whenever possible, reviewing courts should analyze an arbitration award in a manner that harmonizes the public policy that the award purportedly violates, with the public policy that is rooted in respect for, and nonjudicial interference in, arbitration awards. In other words, the case should be viewed in a manner where both the salutary public policy goals implicated by the award and the salutary public policy goals involving labor interests can co-exist, rather than be pitched as antagonistic to one another. See W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber, Cork, Linoleum and Plastic Workers, 461 U.S. 757, 771-72, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983).
Further, because of the overarching public policy encouraging quick, final, and binding resolution of labor disputes, in accordance with contracts negotiated by the employers and the employees’ unions, the High Court determined that the focus regarding other public policy matters rests solely on whether the award violates public policy, not simply on whether the arbitration dealt with another public policy question. Eastern Associated, supra at 67, 121 S.Ct. 462; see also United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 42-43, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987); and Grace, supra at 766, 103 S.Ct. 2177. Notably, the High Court did not “sanction a broad judicial power to set aside arbitration awards as against public policy.” Misco, supra at 43, 108 S.Ct. 364.
I believe that the approach taken by the United States Supreme Court in the above trio of cases very closely reflects the philosophical foundation of our adoption in Westmoreland, supra, of a narrow federal public policy exception to the essence test, *1135particularly since we heavily relied therein on Misco and Grace. See Westmoreland, supra at 863-64. Of particular significance is the Supreme Court’s inclusive approach toward striking the appropriate balance between sustaining the overarching public policy concerns articulated in labor-management legislation, and those rare instances where an arbitration award issued pursuant to such legislation purportedly violates other public policy concerns. The overarching public policy to maintain a healthy labor-management legislative protocol yields to another public policy only where there is a genuine, not a perceived or desired, conflict between the policies, and where the second policy is indeed “dominant” and tangibly identified by relevant authority and not a product of what a reviewing court believes to be a general public interest.
Applying the above principles to the instant case, I would hold here that the fit between the arbitrator’s factual findings, based on the evidence of record, and the arbitrator’s actual award reflects such an alarming degree of disharmony as to justify the extremely rare recourse of judicial intrusion. Here, the arbitrator found that the employee’s conduct was “lewd, lascivious, and extraordinarily perverse,” based on factual findings that the employee had rubbed or “ground” his clothed genital area into a co-employee, inappropriately hugged this co-employee, and articulated his desire to engage in sexual acts with this co-employee. Arbitration Award, dated 7/12/04, at 33-34. However, the arbitrator also found that the employee had ceased such activity after being warned by a supervisor to do so. Based on the latter finding, the arbitrator reinstated the employee with back pay.
I agree with the majority opinion to the extent that the arbitration award, summarized above, exhibited such scant consideration for the important public policy goal of preventing sexual harassment in the workplace that it must be revisited.5 By reinstating Mitchell with back pay, thus imposing no penalty whatsoever on the employee, the arbitrator here failed to consider the victim of the sexual harassment as well as other potentially negative consequences of the award vis-á-vis the public policy that endeavors to discourage and prevent sexual harassment in the workplace. The award could easily be construed by others as giving free cover for harassing behavior until such time as the harasser is provided a warning.
I believe that under our precedents, as well as those of the United States Supreme Court, the above minimal analysis represents all that is needed for a reviewing court to conduct its review of an arbitration award that purportedly violates a public policy. If a reviewing court concludes under established precedents that the arbitration award violates, as it does here, a recognized public policy of this Commonwealth, then no further discussion of the record is warranted. The remedy would be to remand to the arbitrator to reconsider the award in light of the articulated violation. Anything more intrudes upon the other public policy against judicial interference in arbitration awards made pursuant to PERA.
■ The majority opinion, however, failing to articulate any scope or standard of review for when a PERA arbitration award purportedly violates public policy, appears to simply dive right into a de novo review of the record before the arbitrator, which *1136review appears to include, I respectfully but regrettably posit, reweighing evidence and even finding facts, as the following examples demonstrate: “PHA also makes the salient point that Mitchell’s apparent cessation of overt sexual misconduct in the few months after the verbal warning — and during the investigation, while all eyes were upon him — should not have prevented the imposition of appropriate discipline for the misconduct that had already occurred.” Majority op. at 1124 n. 11. The arbitrator did not make any factual finding that Mitchell had stopped his harassment when “all eyes were upon him” during the investigation. Rather, the arbitrator found salient that Mitchell had stopped his harassment after being warned, period. “Mitchell also attempted to mislead the tribunal about [the charged acts], and failed to take responsibility for his conduct.” Id. at 1125. The arbitrator did not make such factual findings, even though the arbitrator did not find Mitchell’s testimony credible. And, as the majority opinion references Mitchell’s “failure to take responsibility” several more times, one must question whether the majority, sub silentio and without legal foundation, is asserting such a concept as a new legal requirement to obtain relief in PERA arbitration. “Broadnax did present evidence of retaliation [by Mitchell] in the form of unexplained falling rag bundles, overturned paint cans and other items strewn about the warehouse, but the arbitrator dismissed the events as coincidences, finding they were ‘not attributable to proven actions’ by Mitchell.” Id. at 1128 n. 16. The unmistakable implication here is that the arbitrator should have found that Mitchell did, in fact, perform these acts. Finally, see id. at 1127-28 (wherein the majority opinion discounts the arbitrator’s findings regarding the work environment, based on extensive testimony that there was a great deal of sexually charged joking and banter occurring. The majority opinion essentially concludes that this environment — and the arbitrator’s findings on this point — are irrelevant and refers to the evidence relied upon by the arbitrator as “reports.” Further, the majority disparages the arbitrator’s reliance on the apparently effective warnings of Mitchell’s supervisor, criticizing the arbitrator’s conclusion that the supervisor was part of the employer’s management.).
The above-cited examples from the majority opinion are, in my respectful opinion, completely incompatible with PERA and this Court’s precedents. See, e.g., State System of Higher Education, supra at 413. Indeed, I believe that some of the above-cited excerpts are incompatible with general principles of appellate review in any normal case. However, the present matter is not a normal appellate case, as it is a review of a PERA arbitration award and thus, subject only to rare, limited, and deferential review. Thus, I cannot join the majority opinion’s wholesale de novo review, which is both without foundation and wholly unnecessary. The majority opinion’s approach here can only foster confusion for any arbitrator or reviewing court that is required to consider the public policy exception to the essence test in the future.6
Additionally, without explicitly stating or providing any reasoning, the majority opinion has apparently determined that when a party contends that an arbitration award violates public policy, a reviewing court may, perhaps, examine the arbitration award to determine if the award is “reasonable.” See majority op. at 1125 *1137(“Such an irrational award undermines clear and dominant public policy.”); and 1127-28 (describing the arbitrator’s award as “patently unreasonable” and then proceeding to assail the arbitrator’s reasoning for reinstating Mitchell with back pay).
To the extent that this is the majority’s position, I respectfully believe that a solid legal foundation must be made for what would appear to be a new standard in labor relations law.7 For my part, I believe that it is unwise to apply a reasonableness standard when a party asserts that an arbitration award violates public policy. An automatic unreasonableness standard would simply open the door for the same judicial meddling that this Court has time and again asserted is incompatible with PERA and its express public policy. Many arbitration cases concern issues of employee discipline, and if the losing party of an arbitration award could simply assert that the conduct leading to discipline violated public policy, then automatic review of the reasonableness of the award would necessarily thwart the swift and final resolution by the arbitrator that is contemplated and required by statute, collective bargaining agreement, and this Court’s long-standing case law. Again, this Court must be mindful of the overarching principle that in the arena of PERA arbitration awards, it is the arbitrator who decides, and any judicial review must be limited and deferential.
Moreover, the majority opinion, in a footnote, asserts that United States Supreme Court decisions, some of which are directly cited to and relied upon by this Court in Westmoreland, are not relevant because they involve private employers under the National Labor Relations Act, while our case involves a public employer under PERA. Majority op. at 1125-26 n. 13. The majority states: “In the case of public employers, such as PHA, we may apply a less restrictive reading of the exception, and thus accord less deference to an arbitration award such as the inexplicable award at issue here.” Id.
Respectfully, this assessment is made without any analysis, which is particularly troubling because it announces yet another shift in a standard of review adopted by our previous case law, without explaining how or why the previous standard is inadequate or unworkable. I see no reason for a change. The salient issue still remains, as the majority recognizes, whether the arbitration award here violated public policy. Unless grounded in specific law, public policy does not shift depending on whether the employer is private or public. Here, the public policy that is implicated is the prevention and discouragement of sexual harassment. Private employers are no more absolved of responsibility for activities that violate this public policy than are public employers, nor are private employees given freer rein than public employees in this area. The public policy is the same, whether public or private. I therefore cannot join this shift in our standard.
Finally, the majority opinion states at one point that “termination is not required under the circumstances here.” Majority op. at 1124. However, an arbitrator would be hard pressed to come to any other conclusion after reading the majority opinion in its entirety. For example:
[W]e reject ... [the assertion] that a public employer can be precluded from taking such decisive action [ie., termination] against an employee following its investigation. A public employer should be empowered to implement a zero tol*1138erance policy when appalling, assaultive, repeated sexual harassment is at issue. The arbitration award to the contrary in this case affirmatively encourages — indeed it rewards — sexual harassment in the public workplace.
Id. at 1124-25.
Elsewhere, the majority writes: “[T]he arbitrator’s decision to reinstate Mitchell undermined PHA’s attempt to comply with its legal responsibilities to investigate and then provide a remedy.” (id. at 1124); “The absurd award here makes a mockery of the dominant public policy against sexual harassment in the workplace, by rendering public employers powerless to take appropriate actions to vindicate a strong public policy. Such an irrational award undermines clear and dominant public policy.” (id. at 1125); “Here, PHA did not attempt to supplant the parties’ CBA without the union’s consent [contrasting this case with a federal case]; instead, PHA applied the agreement’s terms by discharging for “just cause” an employee who violated established policy.” (Id. at 1127).
Again, these examples demonstrate that the majority opinion has conflated judicially defined “public policy” with what the majority subjectively believes an employer “should” be able to do under circumstances such as those present in this case; the latter is explicitly not public policy. Moreover, it should be axiomatic that a reviewing court lacks the power to determine whether the employer had “just cause” for terminating the employee. “Just cause” for termination is not a clearly established dominant public policy. It is a term found in the relevant collective bargaining agreement that the parties thereto have agreed would be, when an unresolved dispute arose, interpreted by an arbitrator, who would then finally resolve the dispute. When the arbitration award violates public policy, reviewing courts do not then step into the shoes of the arbitrator and decide the case or signal the preferred result. The role of the courts is far more limited, pursuant to PERA and our previous case law interpreting that act.
I believe that a resolution of the issue placed before this Court may be achieved in a manner that respects and adheres to the arbitration process as an instrument of public policy contemplated by PERA, and recognized by previous decisions of this Court. When a challenge is made that an arbitration award, which otherwise meets the essence test, violates a clear and dominant public policy of this Commonwealth, the court’s review must proceed hand-in-glove with the overarching public policy of minimal interference with the arbitrator’s role. PERA, and the parties through their collective bargaining process, have determined that the arbitrator decides employment disputes, not the courts; and a reviewing court, in exercising rare oversight, must never lose sight of this imperative. Implication of the public policy exception does not mean that the courts may now take over and decide the case.
Initially, the court must determine what, precisely, is the public policy implicated. Based on statutory and other authority, the public policy implicated in this case is clearly the prevention of sexual harassment. Secondly, where, as in this ease, the discrepancy between the arbitrator’s factual findings and his or her ultimate award establish that the clear and dominant public policy is thwarted, then a reviewing court will not engage in further review, but will simply vacate the arbitrator’s award and remand to the arbitrator to fully consider the public policy consequences, pursuant to the court’s guidance. The reviewing court’s role is to harmonize, whenever possible, the dual public policy goals established by PERA and the public policy that the PERA arbitration award purportedly violated. Again, courts must *1139continue to be refrain from acting as “superarbitrators” or imposing their “own brand of labor relations philosophy” on the case. State System of Higher Education, supra at 413.
Further, I believe that this approach to the issue mirrors the approach that this Court adopted when it finally settled on the essence test:
First, the court shall determine if the issue as properly defined is within the terms of the collective bargaining agreement. Second, if 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. That is to say, a court will only vacate an arbitrator’s award where the award indisputably and genuinely is without foundation in, or fails to logically flow from, the collective bargaining agreement. Regarding a review for reasonableness, ... such review [is inappropriate, as] ... it would invite a reviewing court to substitute its own interpretation of the contract language for that of the arbitrator. Therefore, ... a court should not engage in merits review of the matter. [T]he 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, supra at 863 (quotation marks and citations to State System of Higher Education, supra, and other authority omitted; emphases added).
Thus, I would hold narrowly here that the arbitration award made pursuant to PERA failed to sufficiently consider the Commonwealth’s strong public policy to prevent sexual harassment, thus implicating the federal public policy exception to the essence test, which was adopted by a majority of Justices in Westmoreland, supra at 865. Accordingly, I would affirm the Commonwealth Court only insofar as that court remanded the case for the arbitrator’s re-evaluation of the clear public policy against sexual harassment, without suggestion of the result that should be adopted after such re-evaluation. Because I believe that the majority opinion strays beyond this narrow holding in a number of troubling ways, and, in my respectful opinion, does not properly apply or consider the public policy exception to the essence test, I must concur only.
Justice BAER joins the Concurring Opinion.. At the same time, I would dispute the majority opinion's assertion that other warehouse employees who engaged in or were the subject of sexual banter or touching, but found such actions acceptable or even pleasurable, were also the victims of sexual harassment as the term is defined by law. See majority op. at 1128. If these employees did not experience a hostile working environment, or faced a similar form of sexual discrimination, they were not subject to "sexual harassment” as defined by relevant law. Public policy is not grounded in general considerations of supposed public interests, but is ascertained by laws and legal precedents. As defined under legal precedents, sexual harassment is not behavior that a reviewing court may find distasteful, but it is a form of sexual discrimination allowing for legal redress. Thus, I cannot join the majority opinion's freeform use of the term "sexual harassment.” See id. Here, we are concerned only with the arbitrator’s factual findings that support the conclusion that Ms. Broadnax was subjected to a hostile working environment as defined by statute, regulation, or case law.
. Moreover, the arbitration award here did not prohibit the employer from conducting an investigation. The employer did conduct the investigation, and certainly the fruits of that investigation are now matters of internal record regarding Mitchell and possibly other employees. Moreover, the employer’s actions would necessarily have become factors in its defense in a Title VII action, should one have arisen; however, these matters have no applicability to the issue before us of whether the arbitrator’s award violated public policy.
. Additionally, the introductory provision to PERA itself declares that it is the public policy of this Commonwealth to promote orderly and constructive relationships between public employers and their employees, that unresolved disputes between public employer and its employees are injurious to the public, and that adequate means must be established for minimizing these unresolved disputes and providing for their resolution. 43 Pa.S.A. § 1101.101.
. "[W]e conclude that the federal public policy exception is appropriately applied to arbitrator's awards arising under PERA....” Westmoreland, supra at 865.
. However, unlike the majority opinion, I would not disregard the factual finding that a cessation of harassing behavior followed a warning by a supervisor. Such a factual finding is an important and obvious consideration by an arbitrator. Additionally, a reviewing court does not act as a “superarbitrator.”
. The difficulty and need for clear guidance here should not be discounted. As the majority briefly touched upon, this Court’s search for the correct approach toward review of PERA arbitration awards has been difficult. See Majority op. at 1120 and 1120 n.5.
. This Court had previously rejected a reasonableness standard for review of PERA arbitration awards. Westmoreland, supra at 863.