Cambria County Transit Authority v. Amalgamated Transit Union, Local 1279 ( 2021 )


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  •              IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Cambria County Transit Authority,                       :
    Appellant                        :
    :
    v.                                :   No. 957 C.D. 2019
    :   Argued: February 9, 2021
    Amalgamated Transit Union, Local 1279                   :
    :
    BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge (P.)
    HONORABLE CHRISTINE FIZZANO CANNON, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    JUDGE COHN JUBELIRER                                FILED: March 5, 2021
    Cambria County Transit Authority (CamTran) appeals from a July 3, 2019
    Order of the Court of Common Pleas of Cambria County (common pleas), which
    affirmed a grievance arbitration award (Award) by Bernard S. Fabian (Arbitrator)
    that rescinded the discharge of Eileen Zibura (Zibura) and reinstated her as a bus
    driver without back pay for the period between her initial suspension through the
    Award.1 On appeal, CamTran argues the Award should be vacated for the following
    1
    The Arbitrator stated the period between Zibura’s initial suspension and the time of
    reinstatement should be considered an “extended suspension for aggressive, hostile and
    intimidation actions towards a management employee.” (Award at 23.) Amalgamated Transit
    Union, Local 1279 (Union), to which Zibura belongs and is an officer, did not appeal the “extended
    suspension.”
    In addition to the grievance involving Zibura’s termination, there was a second grievance
    concerning the procedure used following Zibura’s termination that was heard by the Arbitrator.
    (Footnote continued on next page…)
    reasons: (1) the Arbitrator incorrectly required CamTran to prove its case using the
    criminal “beyond a reasonable doubt” standard instead of a lower civil standard;
    (2) the Award violates what is known as the essence test; (3) the Arbitrator exceeded
    his authority by altering the discipline once he determined just cause existed; and
    (4) the Award violates public policy against weapons in the public workplace.2 In
    light of the Arbitrator’s findings and given the Court’s limited review in arbitration
    appeals, the Court is constrained to affirm.
    I.     BACKGROUND
    A.      The Incident
    The relevant facts as found by the Arbitrator are as follows.3 Zibura is a 27½-
    year employee of CamTran and also serves as an officer of Amalgamated Transit
    Union, Local 1279 (Union). (Award at 3, 14.) On December 9, 2016, Jennifer
    Gojmerac (Gojmerac), a human resource assistant at CamTran, was in the drivers’
    lounge area4 at CamTran’s Transit Center, replacing employee rights posters. (Id.
    at 4.) At that time, Zibura entered and “asked [] Gojmerac what she was doing in
    the [d]river[s’] [r]oom because the [d]river[s’] Room was ‘for drivers only.’” (Id.)
    Zibura testified to then picking up and immediately putting back down a 13-inch
    The Arbitrator dismissed that grievance concerning the procedure, (Award at 11), and the Union
    did not appeal from that determination. Therefore, discussion related to the second grievance has
    been omitted.
    2
    This final issue is raised in the alternative.
    3
    “Under the essence test, the arbitrator’s findings of fact are binding on the courts, and the
    reviewing court may not undertake any independent factual analysis.” Pa. State Sys. of Higher
    Educ., Lock Haven Univ. v. Ass’n of Pa. State Coll. & Univ. Facs., 
    193 A.3d 486
    , 495 (Pa. Cmwlth.
    2018).
    4
    The lounge area was described as “a very congested and tight room, not roomy at all.”
    (Award at 3.) It is an 11-foot by 18-foot room, containing a table and three chairs, a microwave
    that is on a stand, a refrigerator, a small couch that seats two people, a bookshelf, and a bulletin
    board. (Id.)
    2
    steel butcher’s knife,5 which had been donated by a now retired driver years ago and
    stored on or near the microwave. (Id. at 13, 17.) However, according to Gojmerac,
    upon picking up the knife, Zibura asked Gojmerac “do you want to play a game”
    and motioned as though she might toss the knife to Gojmerac. (Id. at 3-4, 13.)
    Zibura and Gojmerac testified that Zibura referenced going to Torrence State Mental
    Hospital and needing the knife to protect herself from someone coming out of the
    ceiling tiles in the restroom. (Id. at 18.) Gojmerac testified that after the encounter,
    she left the room as soon as she finished replacing the posters. (Id. at 5, 13.) Just
    outside the room, Gojmerac’s supervisor, Human Resource Manager (HR Manager),
    was talking to another employee who worked at a kiosk. (Id. at 4.) Neither the HR
    Manager nor kiosk employee heard any of the interaction between Zibura and
    Gojmerac. (Id. at 16.) Nor did two drivers who were in the lounge at the time, one
    of whom was the Union President, hear this interaction. (Id. at 4-5, 13.)
    When Gojmerac left the room and met with HR Manager at the kiosk,
    Gojmerac did not indicate anything was wrong. (Id.) Gojmerac did not report what
    happened to HR Manager until she returned to HR Manager’s car, at which time she
    started to cry and stated that she felt threatened. (Id. at 5, 16.) Upon return to
    CamTran’s General Offices, Gojmerac and HR Manager met with Safety Director
    and Executive Director, and an investigation commenced. (Id. at 5.) By that time,
    Zibura had finished her shift for the day and left; she was not scheduled to work
    again until Monday, December 12, 2016. (Id.)
    As part of the investigation, CamTran interviewed the Union President and
    the other driver who were in the lounge at the time of the alleged incident, both of
    whom stated they were conversing among themselves and did not hear or observe
    5
    The knife measures 13 inches from the end of the wooden handle to the tip of the blade.
    3
    anything abnormal. (Id. at 4-5, 13.) At approximately 9:00 a.m. on the following
    Monday, Zibura was asked to report to the main office to speak with the Executive
    Director. (Id. at 6.) At the time, Zibura had worked two-and-one-half hours and
    completed at least one of her scheduled bus runs. (Id. at 5-6.) At the meeting, Zibura
    stated she moved the knife but did not intend to threaten or harm Gojmerac. (Id. at
    6.) Zibura was suspended pending further investigation. (Id.)
    On December 20, 2016, Executive Director and others met with Zibura and
    representatives of the Union. (Id.) At the meeting, Zibura presented a grievance
    related to her discipline.6 (Id. at 6.) At the conclusion of the meeting, Executive
    Director advised Zibura that she was being terminated. (Id.) In a termination letter
    dated the same date, CamTran provided three reasons for Zibura’s discharge:
    1. You directed verbal hostility toward a management employee by
    entering the room and asking what she was doing in “their” room
    and why she came out of her “cubby hole,” creating an unwelcome
    atmosphere.
    2. You were in possession of a knife on [CamTran] Property,
    endangering the safety of all employees. You intimidated and
    threatened an employee of CamTran, [] Gojmerac, by asking her if
    she wanted to “play a game,” picking up a knife, and holding the
    point toward her, motioning to throw the knife at her at one point,
    and not putting the knife down after asked.
    3. You disregarded [Gojmerac]’s attempts to de-escalate the situation
    by continuing to hold the knife and moved your arm toward her as
    to throw/toss the knife at her. Even though you did not throw/toss
    the knife, it created a significantly unsafe and intimidating work
    environment.
    (Id. at 15 (quoting Reproduced Record (R.R.) at 512C7).)
    6
    The original grievance was unsigned, but a signed version was subsequently submitted.
    7
    Although Rule 2173 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 2173,
    requires the reproduced record to be numbered in Arabic figures followed by a small “a,” the three
    (Footnote continued on next page…)
    4
    Zibura’s grievance proceeded through the process established by the
    collective bargaining agreement (CBA) between CamTran and the Union, and
    ultimately an arbitration hearing was held on May 4, 2017. Gojmerac, HR Manager,
    Executive Director, and Safety Director testified on behalf of CamTran, as did the
    Union President as if on cross-examination.             A retired bus driver, the kiosk
    employee, Union President, the other driver who was present in the lounge during
    the alleged incident, and Zibura testified on behalf of the Union. Executive Director
    was recalled by CamTran to provide rebuttal testimony. Aside from the alleged
    incident and subsequent events related thereto, the witnesses described what the
    Arbitrator called a “pattern of escalating behavior against the [m]anagement of
    [CamTran],” which began with the removal of a water cooler from the lounge, an
    action Zibura claimed was in retaliation against her and the Union; an unfair labor
    practice charge before the Pennsylvania Labor Relations Board resulting from the
    water cooler’s removal; and the display of a 15-foot-high camel with a sign asking
    “where’s the water,” which was parked in a prominent area downtown. (Award at
    12.)
    B.     The Award
    Based upon the evidence presented and the parties’ post-hearing briefs, the
    Arbitrator issued the Award on July 31, 2017. The Arbitrator framed the issue as
    whether just cause existed for Zibura’s termination, and, if not, what is the remedy.
    (Id. at 7.) The Arbitrator reviewed the relevant provisions of the parties’ CBA,
    beginning with the Management Rights provision in Article II, Section 9, upon
    which CamTran relied. It provides:
    volumes of the Reproduced Record, while numbered sequentially, utilize the suffix “A,” “B,” or
    “C,” depending on the respective volume.
    5
    The Union fully recognizes the right of [CamTran] to determine its
    policies and procedures to conduct, manage and control the operations
    of its business in light of past experiences and sound business judgment;
    to determine the qualifications for and select its managerial and
    supervisory forces; to determine the qualifications for and select
    employees for promotion within the bargaining unit based on
    management’s sole discretion of those best qualified; to determine the
    number of employees it will retain in its service at any time; to
    determine the number and qualifications of employees needed on any
    shift or to create, modify or discontinue jobs; determine the type, kind,
    make, size and amount of equipment will be operated and used by
    [CamTran,] including when, where and how such equipment will be
    operated and used by [CamTran]; to establish rules and regulations
    necessary for the safe, proper and sound conduct of [CamTran] business
    and where deemed appropriate by [CamTran].
    Except as specifically limited by this Agreement, it is not the intention
    of this Agreement and the same shall not be construed so as to limit in
    any way the right of [CamTran] to manage and operate its business.
    (Id. (quoting CBA, Art. II, § 9, R.R. at 430C).)
    The Arbitrator also examined Article III, Section 2 dealing with “Discipline
    and Hearings,” which provides, in relevant part, that “[a]n employee shall not be
    disciplined or dismissed from service, nor shall entries be made against [the
    employee’s] record without Just Cause.” (Award at 8 (quoting CBA, Art. III, § 2,
    R.R. at 432C).) The provision further provides that CamTran “agrees that in most
    instances discipline for Just Cause shall be administered as progressive discipline.”
    (Id.) The Arbitrator further reviewed CamTran’s Personnel Policies and Procedures,
    which provides, in pertinent part, as follows:
    7. Possession [o]f Any Weapon While [o]n [CamTran] Property: A
    “weapon” is defined as any instrument that is not used for its intended
    purpose or an implement of crime that could result in serious bodily
    injury or endangers the safety of employees or the public.
    First Offense – Discharge.
    6
    (Id. at 9 (quoting R.R. at 488C).)
    The Arbitrator next determined the applicable burden of proof. Looking at
    Elkori and Elkori’s legal treatise, “How Arbitration Works,” and based upon his own
    prior decisions and experience, the Arbitrator determined that “it is generally held
    by most arbitrators that for discharge, the standard of proof is beyond a reasonable
    doubt” because “discharge is industrial capital punishment.” (Award at 13-14.) The
    Arbitrator explained that discharge “follows the employee as [the employee]
    attempt[s] to secure future employment as well as possibly reflected in credit rating
    or other similar problems.” (Id. at 14.) By contrast, “for lesser discipline, the
    standard of preponderance of evidence is used to support [m]anagement’s burden of
    proof.” (Id.)
    With these standards in mind, the Arbitrator turned to the merits of the
    grievance and the specific reasons that CamTran provided for Zibura’s discharge.
    Because HR Manager, the kiosk employee, the Union President, and the other driver
    in the lounge testified they did not hear or see any of the alleged incident, the
    Arbitrator stated there was “no direct evidence or witnesses that Zibura was
    threatening any physical harm”; instead, the Arbitrator continued, “[a]ll that is
    known is the statement of Gojmerac and Zibura on this issue.” (Award at 16.) The
    Arbitrator noted that Zibura admitted to talking and joking with Gojmerac and
    picking up the knife, which she claimed to immediately put back down. (Id.) The
    Arbitrator questioned why Gojmerac did not try to get the attention of the Union
    President or the other driver present in the lounge or HR Manager who was just
    outside if she felt physically threatened. (Id. at 17.) With regard to the knife, the
    Arbitrator stated:
    This knife being in the room for such a significant period of time
    undermines the allegations made with regard to the violation of the
    7
    policy and procedure concerning employees or others utilizing a knife
    on [CamTran] property. The knife was already on [CamTran] property
    as it had been for a significant number of years. [] Zibura did state that
    she did physically pick up the knife, although she denies that she made
    any threats or gestures with the knife and that she immediately put the
    knife down. We have no witnesses to confirm or deny the statements
    of either [p]arty in this situation.
    [] Zibura also admits, which confirms the testimony of [] Gojmerac that
    she did make reference to going to Torrence State Mental Hospital; and,
    also that she may have use for the knife when she went to the restroom
    for defense in that somebody may be coming after her down through
    the ceiling tiles.
    (Id. at 17-18.)
    The Arbitrator found Zibura’s “aberrant behavior and statement . . . w[ere]
    intended to intimidate junior employee Gojmerac,” who was a member of
    management. (Id. at 18.) Thus, the Arbitrator found CamTran had proved the claim
    of verbal hostility towards management but that it did not rise to the level of
    requiring discharge. (Id.) The Arbitrator explained that “[t]he purpose of discipline
    generally speaking is to correct unwanted behavior in an employee,” which “is the
    foundational basis and belief for the concept of progressive discipline.” (Id.) The
    Arbitrator reasoned that “there are times when there [is] such egregious behavior
    exhibited or threats of life occur, or safety of others occur,” which warrants
    immediate discharge, but the Arbitrator “d[id] not believe that what happened with
    the verbal exchange between these two employees rises to such a level.” (Id. at 18-
    19.) Although the Arbitrator found CamTran did not satisfy its burden beyond a
    reasonable doubt as to the verbal hostility claim, which would warrant discharge, the
    Arbitrator found Employer did prove the claim by a preponderance of the evidence,
    which would support some form of discipline. (Id. at 19.)
    8
    The Arbitrator rejected CamTran’s argument that the Arbitrator could not
    modify the discipline, explaining that the CBA did not contain such express limiting
    language. (Id.) The Arbitrator explained:
    If I w[as] to agree with the argument proposed by [CamTran], I would
    have no opportunity to impose a lesser discipline, if the required burden
    of proof was not met. I would have to rescind the discharge and put
    [Zibura] back to work with full pay and benefits. I do not believe that
    this was ever the intent of the negotiators of this [CBA]. If it was their
    intent, it is not reflected in the language of same as currently written.
    (Id. at 20.)
    As to the second basis for discharge, possession of a weapon on CamTran
    property, the Arbitrator reasoned that “[t]he only reason that [Zibura] was in
    possession of a knife on [CamTran] [p]roperty was that the knife had been on
    [CamTran] [p]roperty for a significant period [of] time measured in years.” (Id.)
    Because Zibura’s testimony and Gojmerac’s testimony differed as to what actually
    happened involving the knife, and there were no witnesses, the Arbitrator found he
    could not hold that CamTran satisfied its burden on this claim beyond a reasonable
    doubt. (Id.) However, the Arbitrator found, based upon the testimony of Zibura and
    Gojmerac, that, “at one time or another[,] Zibura did pick up the knife even for a
    short period of time,” which was proven by a preponderance of the evidence. (Id. at
    20-21.)
    Turning to the third basis for discharge, related to ignoring Gojmerac’s
    attempts to deescalate the situation, the Arbitrator found there was not “enough
    evidence for [the] ‘beyond a reasonable doubt’ standard to support a discharge” on
    this basis. (Id. at 21.) The Arbitrator again stated that had Gojmerac feared for her
    life, she could have gained the attention of any one of the individuals nearby without
    difficulty. (Id.) The Arbitrator also found that Gojmerac could have immediately
    9
    told the HR Manager about the incident but did not do so until they returned to the
    HR Manager’s vehicle. (Id.) The Arbitrator stated:
    It is not my intention to try and minimize the situation that [] Gojmerac
    found herself in the driver[s’] room. However, I do not believe that it
    was Zibura’s intention to actually do her physical harm. If she actually
    believed that it was Zibura’s intention to do her physical harm, her
    reaction at the time was not appropriate to the danger that she believed
    herself to be in.
    (Id. at 21-22.)
    The Arbitrator concluded CamTran did not meet its burden of proving,
    beyond a reasonable doubt, that Zibura’s actions supported termination.           The
    Arbitrator, however, did find “Zibura has fostered an atmosphere of hostility against
    members of management that historically appears to be escalating,” and the purpose
    of discipline is “to try and stop this escalation of unwanted behavior.” (Id. at 22.)
    Although the Arbitrator set aside the discharge on the basis of insufficient evidence,
    the Arbitrator found “there [wa]s enough evidence, especially when viewed from a
    historical perspective[,] to support discipline for [] Zibura.” (Id.) The Arbitrator
    stated: “I believe that it was her intention to intimidate the junior employee who
    was new to [CamTran] and to try and escalate the situation. Her statements and
    handling of the knife, even if [] not meant to threaten the employee, were[, at] a
    minimum[,] meant to intimidate the employee.” (Id.)
    Accordingly, the Arbitrator granted the grievance to the extent the Arbitrator
    rescinded Zibura’s termination and ordered Zibura reinstated with full seniority and
    benefits. (Id. at 23.) However, the Arbitrator ordered that the period between
    Zibura’s initial suspension to the time of her reinstatement to be considered as “an
    extended suspension for aggressive, hostile and intimidat[ing] actions towards a
    management employee.” (Id.) No monetary award was made to Zibura.
    10
    C.      Common Pleas’ Opinion and Order
    Following the Award, CamTran filed a petition for review in common pleas.
    By Order dated July 3, 2019, common pleas affirmed the Arbitrator’s Award,
    concluding, in relevant part, that the Arbitrator did not err by using the beyond a
    reasonable doubt standard, the Award rationally flows from the CBA, and the Award
    did not violate public policy.8 In an opinion supporting the Order, common pleas
    rejected CamTran’s argument that the Arbitrator utilized the incorrect standard for
    its burden of proof, explaining that this Court previously affirmed another
    arbitrator’s award in which the beyond a reasonable doubt standard was applied.
    (Common pleas’ Opinion (Op.) at 5 (citing Franklin Reg’l Sch. Dist. v. Franklin
    Reg’l Educ. Ass’n (Pa. Cmwlth., Nos. 114 C.D. 2015, 147 C.D. 2015, filed Jan. 7,
    2016), slip op. at 10-11).9) Common pleas next found that the Arbitrator’s Award
    was rationally derived from the CBA, thereby satisfying the second prong of the
    essence test.10 (Common pleas Op. at 6.) In so doing, common pleas stated that
    “[w]hile [it] may see a different conclusion under a better defined weapon[]s policy
    . . . given the[] facts of the case and the CBA,” the Arbitrator’s Award could
    rationally derive from CamTran’s weapons policy. (Id. at 11.)
    Although the Arbitrator found Zibura did not possess a weapon, common
    pleas stated CamTran “met its burden to establish Zibura violated CamTran’s
    directing verbal hostility policy.” (Id. at 11.) However, common pleas determined
    8
    Common pleas also found that the record did not support retaliation and the Arbitrator
    did not err in awarding fees against CamTran. Those issues are not before this Court.
    9
    Unreported panel decisions of this Court may be cited for their persuasive value pursuant
    to Rule 126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 126(b)(1), and
    Section 414(a) of this Court’s Internal Operating Procedures, 
    210 Pa. Code § 69.414
    (a).
    10
    Common pleas found that there was no dispute that the first prong of the essence test
    was satisfied as the issue is properly defined within the terms of the CBA. (Common pleas Op. at
    6.)
    11
    that the Arbitrator’s decision to suspend rather than terminate Zibura flowed
    rationally from the CBA’s progressive discipline policy. (Id.)
    Next, common pleas rejected CamTran’s argument that the Award violated
    the core function test or was manifestly unreasonable, noting that the Supreme Court
    has rejected those exceptions to the essence test. (Id. at 12.) Finally, common pleas
    found that the Award did not violate public policy. Common pleas explained:
    the remedy ordered by the Arbitrator is to reinstate Zibura’s
    employment and for her to be placed on the schedule and all benefits to
    be restored. Complying with this remedy does not require CamTran to
    undermine any implicated public policy and it does not cause CamTran
    to breach any lawful obligation or public duty. The remedy merely
    requires CamTran to reinstate Zibura back on the schedule with full
    seniority and benefits.
    (Id. at 14.) Accordingly, common pleas affirmed the Award.11 CamTran now
    appeals to this Court.
    II.    PARTIES’ ARGUMENTS
    On appeal, CamTran argues several bases for vacating the Award and
    reinstating the termination of Zibura. First, it argues the Arbitrator applied the
    incorrect burden of proof standard. It argues that because this is a civil matter, the
    preponderance of the evidence standard, not the beyond a reasonable doubt standard
    that is usually applied in criminal cases, should apply. At most, CamTran contends
    it should have been a clear and convincing evidence standard. Second, CamTran
    argues that the Award is not rationally derived from the CBA. CamTran asserts it
    has a zero tolerance policy with regard to weapons and discharge is appropriate for
    11
    Following the Order, CamTran filed a Petition for Stay of Proceedings and Supersedeas,
    which common pleas granted. (Record Item 22.)
    12
    a first offense of violating that policy. By ignoring its zero tolerance policy,
    CamTran argues the Arbitrator did not abide by the essence of the CBA. CamTran
    also argues that the Arbitrator’s modification of discipline from termination to
    suspension was inconsistent with the CBA and therefore violated the essence test.
    Once the Arbitrator found just cause existed, CamTran argues the Arbitrator should
    have deferred to CamTran’s decision to discipline Zibura. According to CamTran,
    the management rights provision in the CBA reserves discipline to CamTran.
    Finally, CamTran argues, in the alternative, that the Award violates public policy.
    It argues that allowing weapons in the public sector violates the core function of
    safety. CamTran asks the Court to reverse common pleas and vacate the Award.
    The Union responds as follows. First, it was not error for the Arbitrator to
    apply a beyond a reasonable doubt standard as the CBA does not specify what
    standard does apply. Therefore, it was reasonable for the Arbitrator to rely on a
    treatise to interpret the CBA. Next the Union argues that the Award does satisfy the
    essence test. The Union states that there is no dispute that the first prong of the
    essence test is met, as whether there was just cause to terminate is within the scope
    of the CBA. Rather, the Union contends it is the second prong, whether the Award
    is rationally derived from the CBA, at issue, and the Union asserts that prong is also
    satisfied. The Union argues the Arbitrator considered CamTran’s argument about
    the management rights provision limiting the ability to modify discipline in
    arbitration and determined no such limiting language existed. The Union argues the
    Arbitrator examined the three bases CamTran provided for termination and found
    CamTran sustained its burden of proof only as to the verbal hostility allegation,
    which was not sufficient to justify termination. According to the Union, CamTran
    is asking the Court to exceed its narrow scope of review. In addition, the Union
    13
    asserts CamTran is relying on the core functions test, which has been rejected by the
    Supreme Court in favor of the public policy exception. That exception, the Union
    contends, is not implicated here because public policy will not be undermined
    because the only finding made involved verbal hostility, not the weapons policy, as
    CamTran asserts.
    In its reply brief, CamTran reiterates that the preponderance of the evidence
    standard is the appropriate standard in civil matters. CamTran further asserts that
    regardless of which standard applies, CamTran met its burden and the Arbitrator
    improperly substituted his judgment as to discipline for CamTran’s judgment.
    III.   DISCUSSION
    A.    Burden of Proof Standard
    We begin with CamTran’s argument that the Arbitrator erred in utilizing the
    beyond a reasonable doubt standard instead of the preponderance of the evidence
    standard when determining whether CamTran satisfied its burden of proof. In
    choosing the beyond a reasonable doubt standard, the Arbitrator consulted a legal
    treatise on arbitration, “How Arbitration Works,” and concluded that, given the
    severity of discharge, this heightened standard was appropriate. Pennsylvania courts
    have previously relied upon the same treatise in a number of their own cases. See,
    e.g., Danville Area Sch. Dist. v. Danville Area Educ. Ass’n, PSEA/NEA, 
    754 A.2d 1255
    , 1260 n.2 (Pa. 2000); Allegheny Valley Sch. Dist. v. Allegheny Valley Educ.
    Ass’n, 
    943 A.2d 1021
    , 1025 (Pa. Cmwlth. 2008); United Sch. Dist. v. United Educ.
    Ass’n, 
    782 A.2d 40
    , 45 (Pa. Cmwlth. 2001); City of Pittsburgh v. Pittsburgh Joint
    Collective Bargaining Comm. (Pa. Cmwlth., No. 848 C.D. 2019, filed Nov. 9, 2020),
    slip op. at 12. In fact, this Court previously relied upon the same treatise in
    14
    determining that an arbitrator has some discretion in choosing the applicable
    standard. Franklin Regional, slip op. at 10-11.
    Here, CamTran does not argue that the CBA specifically sets out the burden
    of proof to be applied. In his opinion, the Arbitrator thoroughly explained his
    reasoning for applying the heightened standard. In addition to this standard being
    commonly used by arbitrators, the Arbitrator specified that its application here was
    warranted for two reasons. First, the Arbitrator explained the “discharge is industrial
    capital punishment” that has far-reaching impacts on the discharged employee
    beyond the employment context. (Award at 14.) Second, the Arbitrator stated that
    because Zibura is a 27½-year employee, who also is an active Union member and a
    past and present Union officer, a heightened standard should apply to her
    termination. Given the above, we find no error in the Arbitrator’s use of the beyond
    a reasonable doubt standard of proof. If the parties intended for a different standard
    to apply, they could have bargained for and specifically included that standard in
    their CBA. As there is no evidence that they did so here, the Arbitrator had
    discretion to choose the standard.
    B.     Essence Test12
    In reviewing challenges to grievance arbitration awards, the Court applies the
    deferential essence test. Westmoreland Intermediate Unit #7 v. Westmoreland
    Intermediate Unit #7 Classroom Assistants Educ. Support Pers. Ass’n, PSEA/NEA,
    
    939 A.2d 855
    , 862-63 (Pa. 2007) (Westmoreland I). The essence test is a two-prong
    analysis: “first, the court must determine if the issue is properly defined as within
    the terms of the CBA and second, if the issue is embraced in the [CBA], whether the
    12
    CamTran’s second and third arguments have been combined as both implicate whether
    the Award violates the essence test.
    15
    award is rationally derived from the [CBA].” Pa. State Sys. of Higher Educ., Lock
    Haven Univ. v. Ass’n of Pa. State Coll. & Univ. Facs., 
    193 A.3d 486
    , 494-95 (Pa.
    Cmwlth. 2018) (citation omitted). Here, there is no dispute that the first prong is
    met, as the issue of whether just cause existed to terminate Zibura was properly
    defined as falling within the scope of the CBA. The parties disagree about whether
    the second prong of the essence test is met. Under this prong, an award may only
    be vacated if the award “‘indisputably and genuinely is without foundation in, or
    fails to logically flow from,’ the CBA.” Phila. Housing Auth. v. Am. Fed’n of State,
    Cnty. & Mun. Emps., Dist. Council 33, 
    52 A.3d 1117
    , 1121 (Pa. 2012) (quoting State
    Sys. of Higher Educ. (Cheyney Univ.) v. State Coll. Univ. Pro. Ass’n (PSEA-NEA),
    
    743 A.2d 405
    , 413 (Pa. 1999)). Because of the deference given arbitration awards,
    the Court cannot second-guess an arbitrator’s findings of fact, which are binding on
    the Court. Coatesville Area Sch. Dist. v. Coatesville Area Teachers’ Ass’n, Pa. State
    Educ. Ass’n, 
    978 A.2d 413
    , 415 n.2 (Pa. Cmwlth. 2009). Nor may the Court
    undertake any independent factual analysis. Lock Haven, 193 A.3d at 494. “In
    addition, a court may not review the merits or reasonableness of the arbitrator’s
    award under the guise of the essence test.” Id. at 495.
    CamTran’s argument that the Award does not logically flow from the CBA is
    two-fold. First, CamTran argues the CBA provides CamTran with the authority to
    determine its policies and establish rules related to safety, which CamTran did by
    enacting a zero-tolerance policy involving the possession of weapons, which the
    Arbitrator did not follow. Second, it argues the Arbitrator could not impose a lesser
    discipline for a violation of the weapons policy, as such a right is reserved to
    management. However, CamTran’s arguments are premised upon a finding that
    Zibura violated the weapons policy, which the Arbitrator did not make. The only
    16
    basis on which the Arbitrator found CamTran met its burden of proof was related to
    Zibura directing verbal hostility towards a member of management. The Arbitrator
    found that the infraction of directing verbal hostility toward management did not
    warrant dismissal but did warrant the imposition of discipline. Because the CBA
    provides that CamTran “agrees that in most instances discipline for Just Cause shall
    be administered as progressive discipline,” (CBA, Art. III, § 2, R.R. at 432C), we
    cannot say that the Arbitrator’s Award “‘indisputably and genuinely is without
    foundation in, or fails to logically flow from,’ the CBA.” Phila. Housing Auth., 52
    A.3d at 1121 (quoting Cheyney Univ., 743 A.2d at 413).
    The Court is also not persuaded by CamTran’s argument that the CBA
    reserves decisions related to discipline stemming from a violation of the weapons
    policy solely to CamTran. For support, CamTran cited County of Centre v. Musser,
    
    548 A.2d 1194
     (Pa. 1988), and Board of Education of the School District of
    Philadelphia v. Philadelphia Federation of Teachers, 
    610 A.2d 506
     (Pa. Cmwlth.
    1992). However, in both of those cases, the applicable CBA expressly reserved the
    right of discipline to the employer. See Musser, 548 A.2d at 1196 (quoting the CBA,
    which provided “[t]he sole right to discipline and discharge employees for just cause
    is retained by the County”) (emphasis omitted); Phila. Fed’n of Teachers, 
    610 A.2d at 508
     (explaining the CBA provides “the arbitrator shall have no power or authority
    to make any decision contrary to or inconsistent with the terms of the [CBA]”). In
    Upper Merion Area School District v. Teamsters Local #384, 
    165 A.3d 56
    , 66 (Pa.
    Cmwlth. 2017), the CBA provided that the employer “shall have the right to
    discipline or discharge any employee for just cause or for violation of this
    [a]greement.” Despite this language, we held, based upon our precedent, “that in
    the absence of a clear limitation in the CBA, it is within the arbitrator’s authority to
    17
    modify the discipline imposed by” an employer. 
    Id.
     We stated 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 discipline, the arbitrator is within his or her authority to modify the
    discipline imposed.” 
    Id.
     (citation omitted). Moreover, we have recognized that “an
    arbitrator may fashion a remedy in a particular case that is not explicitly prescribed
    in the CBA so long as the remedy furthers the essence of the CBA.” Lock Haven,
    193 A.3d at 495. Based on this precedent, the Arbitrator could find that the CBA
    here does not expressly reserve the right to discipline to CamTran. Accordingly, we
    cannot say that the Arbitrator’s decision to reduce the discipline from termination to
    a long-term suspension does not rationally derive from the CBA, which provides for
    progressive discipline, especially where there was no finding of a violation of the
    weapons policy and in light of the Arbitrator’s finding that Zibura directed verbal
    hostility towards management.
    C.     Public Policy Exception
    Alternatively, CamTran argues that the Award violates public policy. In cases
    where a court finds that the essence test is satisfied, the court may then consider
    whether the award violates a well-defined and dominant public policy of the
    Commonwealth. Millcreek Twp. Sch. Dist. v. Millcreek Twp. Educ. Support Pers.
    Ass’n, 
    210 A.3d 993
    , 1007-08 (Pa. 2019). The public policy exception is a narrow
    exception and prohibits a court from enforcing an arbitrator’s award that contravenes
    public policy. Id.; Shamokin Area Sch. Dist. v. Am. Fed’n of State, Cnty., and Mun.
    Emps. Dist. Council 86, 
    20 A.3d 579
    , 582 (Pa. Cmwlth. 2011). The public policy
    exception requires the application of a three-prong test:
    18
    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 arbitrator’s award poses an unacceptable risk that it
    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 arbitrator.
    City of Bradford v. Teamsters Local Union No. 110, 
    25 A.3d 408
    , 414 (Pa. Cmwlth.
    2011) (quoting Westmoreland I, 939 A.2d at 866). “The burden of establishing a
    violation of public policy rests on the party asserting the public policy exception.”
    Lock Haven, 193 A.3d at 498. Whether the exception applies is a question of law
    and our standard of review is de novo, and our scope of review is plenary. Id.
    CamTran argues the public policy implicated here “is allowing weapons in
    public sector areas wh[ich] have a core safety function with zero ability of an
    employer to mete out discipline.” (CamTran’s Brief at 29-30.) CamTran argues that
    because “safety to the public and employees is paramount[,] weapons are not
    tolerated by employees or passengers.”        (Id. at 31.)   According to CamTran,
    “Zibura’s actions strike at the heart of such a function and concluding otherwise
    jeopardizes CamTran’s general function.” (Id.) Therefore, CamTran asserts “[i]t is
    essential that CamTran be able to interpret rules, including defining a weapon, in
    order to carry out this core function.”       (Id.)   We understand and appreciate
    CamTran’s arguments regarding public and employee safety. However, we see no
    provision in the CBA that would remove the interpretation and application of
    CamTran’s weapons policy from the scope of arbitration. The Arbitrator has
    interpreted the weapons policy and found that CamTran did not sustain its burden
    19
    related to a violation of that policy. Therefore, this incident cannot serve as the
    foundation for applying the public policy exception.
    IV.   CONCLUSION
    While Zibura’s conduct was “aberrant” as the Arbitrator found, (Award at 18),
    because this Court is bound by the Arbitrator’s factual findings and is limited by a
    narrow scope of review, we are constrained to affirm common pleas’ Order,
    affirming the Arbitrator’s Award.
    _____________________________________
    RENÉE COHN JUBELIRER, Judge
    20
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Cambria County Transit Authority,            :
    Appellant             :
    :
    v.                          :   No. 957 C.D. 2019
    :
    Amalgamated Transit Union, Local 1279        :
    :
    ORDER
    NOW, March 5, 2021, the Order of the Court of Common Pleas of Cambria
    County, dated July 3, 2019, is AFFIRMED.
    _____________________________________
    RENÉE COHN JUBELIRER, Judge