Shamokin Area School District v. American Federation of State, County, & Municipal Employees District Council 86

DISSENTING OPINION BY

Judge BROBSON.

I respectfully dissent. Because I believe that the arbitrator’s decision violates public policy, I would affirm the trial *584court’s decision and vacate the arbitration award in this case.

This appeal stems from a decision by the Board of Directors (Board) of the Shamo-kin Area School District (District) to remove Joseph Weaver (Weaver) from his position with the District as a groundskeeper pursuant to the Board’s authority under Section 514 of the Public School Code of 1949 (Code), P.L. 30, 24 P.S. § 5-514.1 Pursuant to the terms of a collective bargaining agreement, Weaver filed a grievance.

Looking only at the arbitrator’s written decision in this case,2 it is evident that the arbitrator found that Weaver engaged in the conduct that prompted the Board to terminate his employment. In the course of a profanity-laced rant, Weaver threatened physical harm on another District employee. The arbitrator felt such conduct was worthy of disciplinary action, but not termination. The arbitrator sustained the grievance and fashioned the following remedy:

As a remedy, the Grievant must be reinstated and made whole with back pay, seniority and all benefits on condition that he complete anger management and stress classes and serve a one-year probation, during which one or more threatening outbursts may result in
more serious discipline, including termination of his employment.

(Award at 14 (emphasis added).) The arbitrator thus substituted her judgment for that of the elected Board and concluded that, rather than termination, disciplinary measures including a four-week suspension, anger and stress management classes, and probation were more appropriate under the circumstances. I am particularly troubled by the arbitrator’s decision to reinstate Weaver before he completes the anger and stress management classes.

In light of the arbitrator’s findings, I believe that the arbitrator’s award “contravenes 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.” Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educ. Support Pers. Ass’n, PSEA/NEA, 595 Pa. 648, 666, 939 A.2d 855, 866 (2007) (Westmoreland I). I agree with the District that there is a strong public policy in favor of safe schools. The public policy is well-defined in legal precedent and in statute. “A school system has an unmistakable duty to create and maintain a safe environment for its students as a *585matter of common law.” See Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educ. Support Pers. Ass’n, PSEA/NEA, 977 A.2d 1205, 1209 (Pa.Cmwlth.2009). “The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986).

In 1995, the General Assembly passed an amendment to the Code commonly referred to as the Safe Schools Act (Act).3 The Act created a state-level Office for Safe Schools within the Department of Education. 24 P.S. § 13-1302-A. The Act requires all school entities to report all acts of violence “by any person on school property.” Id. § 13-1303-A(b).4 School entities are required to maintain records of all incidents of violence on school grounds. Id. § 13-1307-A. The Act evidences the General Assembly’s intent to curb all violence on school property, not just violence by or directed toward students and teachers.5

In this case, the arbitrator did not conclude that Weaver posed no threat to his co-workers or workplace or that his rant was an isolated incident not likely to be repeated or acted upon. To the contrary, her decision to compel Weaver to attend anger management classes and to place him on probation is an indication that the arbitrator did not feel that Weaver’s conduct was a trivial matter of an employee merely blowing off steam about a supervisor. She nonetheless is directing the District and the Board to reinstate immediately an employee who even she found has unresolved anger and stress management issues. In light of the strong public policy in favor of safe schools and the attendant duties imposed on school districts, the arbitrator’s decision should not stand. I do not believe a school district can bargain away its judgment on whether those in its employ who threaten acts of violence on school grounds should be allowed to return to work. Whether a particular employee’s continued employment poses a threat to a safe school environment is a matter of discretion that should be left to the elected school board.

Because the arbitrator in this case concluded that Weaver engaged in the conduct in question and had unresolved stress and anger management issues, the arbitrator’s decision to override the Board’s judgment and order the District to reinstate Weaver was contrary to public policy. On this basis, I would affirm the trial court.6

Judges LEAVITT and McCULLOUGH join in this dissenting opinion.

. Section 514 of the Code provides, in relevant part:

The board of school directors in any school district, except as herein otherwise provided, shall after due notice, giving the reasons therefor, and after hearing if demanded, 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.

. The majority claims that the arbitrator’s decision to reinstate Weaver immediately, while he receives anger management counseling, "was not based on findings regarding the implication of student safety.” (Majority Op. at 583.) Thus, the majority appears to contend that the trial court's decision in this case is at odds with the arbitrator's factfinding. As explained above, such a contention cannot withstand scrutiny. The arbitrator clearly found that Weaver has enough difficulty coping with anger arising out of his work environment that the arbitrator required Weaver to receive counseling. It is this finding, and the arbitrator’s decision to reinstate immediately Weaver to his job at the school notwithstanding this finding, that warrant consideration of whether the arbitrator’s award violates public policy.

. Sections 13-1301-A to -1313-A of the Code, added by Act of June 30, 1995, P.L. 220, as amended, 24 P.S. §§ 13-1301-A to -1313-A.

. The term "school property” is defined broadly under the Act to include, inter alia, “any public school grounds.” According to the arbitrator's findings, Weaver was on school grounds — a garage located at the stadium — at the time of the rant.

. I disagree with the majority that the public policy in favor of student safety is superior to or distinguishable from the strong and well-defined public policy in favor of maintaining a safe school environment for students and families, educators, administrators and school employees.

. As the majority points out, the arbitrator made several findings and conclusions critical of the District's investigation of the incident and, in particular, the District’s questioning *586of Weaver. (Award at 12.) The arbitrator characterized this conduct as denying Weaver "his proper due process” and concluded, as a result, that the District dismissed Weaver "without just cause.” (Id.) The arbitrator also compared the discipline meted out to Weaver to that of another District employee and concluded that Weaver’s "treatment was palpably disparate, and for that reason, without just cause.” (Id. at 13.) My concern, however, is not with these findings and conclusions, but with the remedy fashioned by the arbitrator in light of all of her findings and conclusions. This case would be different if, for example, (a) the arbitrator had required Weaver to complete successfully anger management classes before being reinstated to his employment with the District; (b) if the arbitrator had not found that Weaver has anger management and stress issues that required counseling, or (c) if the arbitrator had found affirmatively that Weaver posed no present threat to school safety and security.