Bethel Park School District v. Bethel Park Federation of Teachers, Local 1607

CONCURRING OPINION BY

Senior Judge FRIEDMAN.

Because I disagree that the trial court properly vacated the Arbitrator’s award on the basis that it violates the well-defined public policy of protecting students from sexual harassment, I concur in the result only.1 I do not agree that the Arbitrator’s award was not rationally derived from the collective bargaining agreement (CBA) because absent the due process violations, which I conclude Michael Lehotsky (Griev-ant) waived, the Arbitrator determined that Grievant would be discharged for grievous misconduct. For that reason, I believe there is just cause for discharging Grievant. Accordingly, I conclude that the majority’s discussion of the public policy exception is superfluous.

The Majority holds that the issue of whether Grievant was discharged for “just cause” is within the terms of the CBA, but that the Arbitrator’s award cannot be rationally derived from the CBA, and, therefore, does not meet the second prong of the essence test. Specifically, the Majority holds that the Arbitrator imposed additional due process requirements beyond the procedural due process components of the contractual “just cause” standard in the CBA by looking at Bethel Park School District’s (School District) Unlawful Harassment Policy (Harassment Policy).

Once an issue is determined to be within the terms of the CBA, the award will be upheld if the arbitrator’s interpretation can be rationally derived from the CBA. State System of Higher Education (Cheyney University) v. State College University Professional Association (PSEA-NEA), 560 Pa. 135, 150, 743 A.2d 405, 413 (1999). An arbitrator’s award will only be vacated “where the award indisputably and genuinely is without foundation in, or fails to logically flow from, the [CBA].” Id. Whether the award was rational under the contract is the appropriate inquiry. Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA, 595 Pa. 648, 661, 939 A.2d 855, 863 (2007).

Here, the Arbitrator determined that there was no just cause because the School District violated Grievant’s due process rights. The term “just cause” was not *163defined by the parties in the CBA. It is clear that, by not agreeing upon and incorporating a definition of “just cause” into the CBA and by placing the arbitrator into the role of resolving disputes arising under the CBA, the parties intended for the arbitrator to have the authority to interpret the terms of the agreement, including the undefined term “just cause,” and to determine whether there was just cause for discharge. Office of the Attorney General v. Council 13, American Federation of State, County & Municipal Employees, AFL-CIO, 577 Pa. 257, 268-69, 844 A.2d 1217, 1224 (2004). Whether Grievant was given due process is a “just cause” consideration. Cheyney University, 560 Pa. at 154, 748 A.2d at 416 (factual determination of due process rationally derived from the CBA). Thus, the Arbitrator’s consideration of whether Grievant was given due process was rationally derived from the CBA. However, I believe the Arbitrator erred in determining that Grievant was not given due process.2

In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985), the Supreme Court determined that due process requires that “[t]he tenured public employee [be] entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.”

Here, Grievant was given notice of the charges against him, an explanation of the employer’s evidence and an opportunity to present his side of the story. However, Grievant voluntarily waived his Louder-mill hearing. Thus, he waived his opportunity to object to any due process violations. Accordingly, the Arbitrator erred in finding a due process violation.

Absent the due process violation, the Arbitrator found Grievant unfit to teach and would have discharged him.3

Accordingly, I concur in the result only.

. Although I recognize that there is a distinct public policy against sexual harassment, the Arbitrator did not find that Michael Lehot-sky’s conduct constituted sexual harassment. The Arbitrator only found inappropriate touching, not sexual harassment. The Majority determined that sexual harassment includes physical conduct and touching; however, physical conduct and touching do not necessarily constitute sexual harassment.

. Contrary to the Majority's assertion, neither party argues that the School District's Unlawful Harassment Policy is not to be considered part of the CBA.

. The Arbitrator determined that:

Persuasive evidence establishes that the Grievant is guilty of grievous misconduct which would ordinarily warrant his discharge. Had the District predicated its disciplinary determination upon a fair and impartial investigation, the Arbitrator would have been loathe to disturb the District’s conclusion that, so long as he persisted in his behavior, the Grievant was unfit to teach. The Grievant has not been spared discharge because he is not guilty, but because the District violated significant due process rights in conducting its investigation.

(Arbitration Award, at 32-33.)