Westmoreland Intermediate Unit 7 v. Westmoreland Intermediate Unit 7 Classroom Assistants Educational Support Personnel Ass'n

DISSENTING OPINION BY

Senior Judge FRIEDMAN.

I respectfully dissent. Based on the Supreme Court’s decision in Philadelphia Housing Authority v. American Federation of State, County and Municipal Employees, -Pa.-, 52 A.3d 1117 (2012), I would conclude that the Arbitrator’s award conditionally reinstating Sherie Vra-ble (Grievant), who engaged in a single error in judgment, does not violate public policy.

Initially, I note that the Supreme Court has already concluded “that the arbitrator’s award was rationally derived from the agreement, and thus, under the essence test, must be upheld.” Westmore-*760land Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association, 595 Pa. 648, 667, 939 A.2d 855, 866 (2007) (Westmoreland I). The Court further stated that the essence test is subject to a narrow exception whereby an award will be vacated if it violates a public policy of this Commonwealth. Id. at 665, 939 A.2d at 865. Thus, the Court remanded this case for the purpose of determining whether Grievant’s “reinstatement contravenes a well-defined, dominant public policy that is ascertained by reference to the laws and legal precedents and not from mere general considerations of supposed public interests.” Id. at 667, 939 A.2d at 867. Subsequently, the Court ordered that Philadelphia Housing, be considered on remand. Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educational Support Personnel Association, — Pa. -, 66 A.3d 250 (2013) (per curiam).

Here, the issue is not whether Griev-ant’s conduct of wearing a Fentanyl patch not prescribed to her violates public policy, but whether the award reinstating Griev-ant violates public policy. See Shamokin Area School District v. American Federation of State, County, and Municipal Employees District Council 86, 20 A.3d 579, 582 (Pa.Cmwlth.2011). Thus, we must look to the Arbitrator’s award in determining whether Grievant’s reinstatement violates public policy. Id.

The Supreme Court summarized the Arbitrator’s award as follows:

Arbitrator Newman determined that Ms. Vrable was not entitled to any back pay and made her reinstatement strictly conditional. Reinstatement was conditioned upon: (1) satisfactory completion of the terms and conditions of her one-year probation period and (2) her participation in a Drug and Alcohol Treatment Program and her agreement to be bound by its conditions. Ms. Vrable was to abstain from all mood-altering drugs or chemical substances while on-duty for the school year. Moreover, at the Intermediate Unit’s discretion, Ms. Vrable was to be subject to periodic, unannounced drug/alcohol screening and a positive result would result in immediate removal. Furthermore, Ms. Vrable was required to participate in a counseling and treatment program and to consent to release information to the Intermediate Unit to allow reports of Ms. Vrable’s attendance at and progress in the monitored program. Any breach of the arbitration award would result in Ms. Vra-ble’s immediate dismissal for violation of this “last chance” agreement.

Westmoreland I, 595 Pa. at 655-56, 939 A.2d at 859-60.

I agree with the majority that protecting our children from the dangers of drugs is a dominant public policy. I disagree with the majority’s determination, however, that the Arbitrator’s award contravenes' the public policy of protecting our children from the dangers of drugs.

The majority states that “[t]he Arbitrator clearly recognized Grievant had an ongoing drug problem as set forth in the medical records because he required that she participate in a drug and alcohol counseling and treatment program, abstain from mood altering drugs, or chemical substances while on duty, and submit to drug/alcohol screenings.” (Majority’s Op. at 759.) The majority concludes that “[sjimply put, an elementary classroom is no place for a recovering addict.” (Id. at 759.)

Contrary to the majority’s characterization, the Arbitrator did not label Grievant an “addict,” nor did he find that Grievant “had an ongoing drug problem.” In fact, *761the Arbitrator specifically found that this was “one and only one workplace incident” and “one such incident ... would not be a course of conduct.” (Arbitrator’s Award at 7.) The Arbitrator, noting Grievant’s unblemished, 28-year tenure, characterized Grievant’s behavior as foolish, irresponsible, and stupid, but not immoral. (Id.) “[A]n arbitrator must find facts and a court may not reject those findings simply because it disagrees with them.” United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 88, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987).

The Arbitrator, recognizing that Griev-ant was amenable to discipline, conditionally reinstated her without back pay. The Arbitrator imposed numerous conditions to protect the children and to ensure that Grievant did not repeat her single act of drug-related misconduct. Importantly, the Intermediate Unit can require Griev-ant to submit to unannounced drug and alcohol testing and immediately dismiss Grievant for a positive result or for any other violation of the award. The Arbitrator’s award, which severely conditions Grievant’s reinstatement and bestows upon the Intermediate Unit unfettered oversight, does not violate the public policy of protecting our children from drugs.

Moreover, the facts here are distinguishable from Philadelphia Housing wherein Thomas Mitchell committed multiple acts of sexual harassment while employed with the Philadelphia Housing Authority (PHA). In addition to sexual comments, Mitchell engaged in unwanted physical contact with a female co-worker. The arbitrator characterized his conduct as “ ‘lewd, lascivious, extraordinarily perverse’ ” and “ ‘unacceptable’ ” sexual harassment against his female co-worker. — Pa. at -, 52 A.3d at 1119 (quoting Arbitrator’s Award.). The arbitrator also concluded that Mitchell did not take responsibility for his conduct. Id. at -, 52 A.3d at 1125. Despite these findings, the arbitrator reinstated Mitchell with back pay.

The Supreme Court determined that requiring PHA to reinstate Mitchell with full back pay and without any sanctions would violate a dominant and well-defined public policy against sexual harassment at work. Id. at ——, 52 A.3d at 1128. “The award in this case encourages individuals who are so inclined to feel free to misbehave in egregious ways, without fear of any meaningful consequence.” Id.

In this case, contrary to Philadelphia Housing, Grievant committed a single error in judgment, not multiple egregious acts. Grievant also admitted to and accepted responsibility for her action. Moreover, the Arbitrator’s award imposes sanctions, including the loss of pay, and mandates her participation in various counseling programs. Finally, Grievant’s failure to comply with any condition of the award will result in her immediate dismissal. Thus, unlike Philadelphia Housing, the award here recognizes Grievant’s misconduct, penalizes Grievant, and imposes conditions on her reinstatement. This award does not, by any means, encourage individuals to engage in illicit drug activity without fear of meaningful consequence.

The majority, in vacating the arbitrator’s award, states that reinstating Griev-ant would violate “the public policy of educating our children about the dangers of illicit drugs and drug abuse and protecting children from exposure to drugs and drug abuse is compelling.” (Majority Op. at 759.) I agree that the policy of protecting our children from the dangers of drugs is compelling. Nonetheless, I would conclude that the Arbitrator’s award, which conditionally reinstates a one-time offender while imposing numerous safeguards, does not violate this public policy. Rather, *762the Arbitrator’s award is designed to punish Grievant and ensure the continued protection of our children.

Accordingly, I would affirm the trial court.