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

OPINION BY

Judge BUTLER.

The American Federation of State, County, and Municipal Employees District Council 86 (Union) appeals from the December 30, 2009 order of the Court of Common Pleas of Northumberland County (trial court) granting the Petition to Vacate Arbitration Award filed by the Shamokin Area School District (District). The issue before the Court is whether enforcement of the Arbitrator’s award would violate public policy. For reasons that follow, we reverse the order of the trial court.

Joseph Weaver (Weaver) was employed by the District as a groundskeeper. On February 26, 2008, Weaver was instructed by one of his supervisors to stop the task he was doing and to complete a previously assigned task. Weaver called the Superintendent to complain, and failed to hang up his cell phone prior to yelling and screaming about his supervisor to another coworker.¹ On February 27, 2008, a pre-disciplinary hearing was held, and on March 3, 2008, after another pre-disciplin-ary hearing, Weaver was suspended indefinitely pending approval of the District’s Board of Directors (Board). On March 11, 2008, the Board voted to dismiss Weaver pursuant to Section 514 of the Public School Code of 1949 (Public School Code),² which provides that the Board has the right to remove any employee for improper conduct.

Weaver filed a grievance which the Union referred to arbitration pursuant to the applicable collective bargaining agreement (CBA). A hearing was held on April 8, 2009. On August 4, 2009, the Arbitrator found Weaver culpable for disregarding instructions, but sustained the grievance as pertaining to Weaver’s threatening statement, deeming his discharge to be without just cause. Thus, the Arbitrator’s award converted Weaver’s termination into a four week suspension, ordered Weaver to attend an anger management program, and placed Weaver on a probationary status for one year. On August 24, 2009, the District filed a Petition for Review and Application to Vacate the Arbitrator’s Award. The trial court held a hearing on October 14, 2009. On December 30, 2009, the trial court entered an order vacating the award of the Arbitrator, finding that Weaver’s actions violated the public policy against violence in schools. The Union appealed to this Court.

The Union argues that the trial court improperly refused to accept the Arbitrator’s factual findings, effectively engaged in plenary, de novo review, and improperly applied the narrow public policy exception established in Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educational Support Personnel Association (Westmoreland), 595 Pa. 648, 939 A.2d 855 (2007). We agree.

Generally, “[t]he standard of review to be applied ... is one of deference to the arbitrator’s award.... [And] our scope of review of a grievance arbitration award is the essence test.” Slippery Rock Univ. of Pa. v. Ass’n of Pa. State Coll. & Univ. Faculties (Slippery Rock), 916 A.2d 736, 740 n. 3 (Pa.Cmwlth.2007) (citation omitted). Fundamentally, to meet the essence test the award must draw its essence from the CBA. Id. The essence test was first established in Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA) (Beaver County), 473 Pa. 576, 375 A.2d 1267 (1977). In Beaver County, the Pennsylvania Supreme Court specifically held:

where a task of an arbitrator ... has been to determine the intention of the contracting parties as evidenced by their [CBA] and the circumstances surrounding its execution, then the arbitrator’s award is based on a resolution of a question of fact and is to be respected by the judiciary if the interpretation can in any rational way be derived from the agreement, viewed in light of its language, its context, and any other indicia of the parties’ intention.

Id., 473 Pa. at 593-94, 375 A.2d at 1275 (quotation marks omitted) (emphasis added).

Here, it is uncontested that the award in the instant case meets the essence test; however, the Pennsylvania Supreme Court has carved out many exceptions thereto. The first exception was the manifestly unreasonable test, whereby an arbitrator’s award could be vacated if the court held the arbitrator’s award to be manifestly unreasonable. Phila. Hous. Auth. v. Union of Sec. Officers # 1, 500 Pa. 213, 455 A.2d 625 (1983); Pennsylvania Liquor Control Bd. v. Indep. State Stores Union, 520 Pa. 266, 553 A.2d 948 (1989). Because this standard practically eliminated the deference afforded to the arbitrator, it was abolished in State System of Higher Education (Cheyney University) v. State College University Professional Association (PSEA-NEA), 560 Pa. 135, 743 A.2d 405 (1999), wherein the Court held that the arbitrator’s award would stand if: (1) “the issue as properly defined is within the terms of the collective bargaining agreement”; and (2) “the arbitrator’s interpretation can rationally be derived from the [CBA].” Id., 560 Pa. at 150, 743 A.2d at 413.

This exception was expanded when the Pennsylvania Supreme Court adopted the core function exception to the essence test in City of Easton v. American Federation of State, County and Municipal Employees, AFL-CIO, Local 447, 562 Pa. 438, 756 A.2d 1107 (2000), wherein the Court recognized that governmental agencies do not have the freedom to relinquish those powers that are essential to the proper discharge of their functions.³ Thus, if a government agency cannot bargain away its right to terminate an employee, the fact that grounds for that termination are not in the CBA does not give the Arbitrator the right to reinstate said employee. The core functions exception, however, was replaced with the aforementioned public policy exception established in Westmoreland.

The public policy exception espoused in Westmoreland represents the current state of the law. It is a narrow exception prohibiting a court from enforcing an arbitrator’s award that contravenes public policy. As explained by our Supreme Court, “a court should not enforce a grievance arbitration award that contravenes public policy. Such public policy, however, must be well-defined, dominant, and ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” Westmoreland, 595 Pa. at 666, 939 A.2d at 865-66. Thus, in this case, we must look to the award and determine whether its reinstatement of Weaver violates an established public policy.

We recognize that there is a distinct public policy of protecting students from violence on school property, which is derived from the Pennsylvania school code. Specifically: Sections 1301-A to 1313-A of the Public School Code,⁴ entitled Safe Schools, requires reporting of actions such as threatening or intimidating a school official or a student, disorderly conduct, and harassment by communication; Section 111 of the Public School Code⁵ requires background checks of all prospective employees; and Section 1303.1-A of the Public School Code⁶ prohibits bullying.⁷ Thus, the public policy protecting students from violence is a well defined and established policy.⁸ We also recognize that the District has a zero tolerance policy for violence in schools, and that the District has a direct responsibility for the safety of its pupils pursuant to Section 1317 of the Public School Code⁹ which provides that all teachers have the same responsibility for their students as do their parents. Further, we note that Weaver was, in fact, on school property when he indirectly threatened the safety of his supervisor.

Contrary to the trial court’s determination that Weaver’s actions violated the public policy against violence in schools, however, we conclude that Weaver’s conduct did not trigger the public policy against violence in schools because it did not implicate the public concern of protection of students from violence. Moreover, Weaver’s statements did not rise to the level of terroristic threats. Although his statements were highly inappropriate, they constituted nothing more than a rant about a supervisor, which was not directed immediately toward that supervisor. Weaver’s conduct did not rise to the level of violating the public policy of protecting students from violence on school property, in part because the statements were made in an isolated garage away from the students. Thus, as inappropriate as Weaver’s outburst was, it simply did not implicate the public concern for student safety.

Notwithstanding, the appropriate test is not whether Weaver’s actions violated public policy, but whether the Arbitrator’s award violates public policy. Here, the Arbitrator made a finding that Weaver’s discharge for making a threatening statement was without just cause because “the District denied him his proper due process.” Union’s Br., Ex. C at 12. Further, the Arbitrator found that Weaver’s “treatment was palpably disparate, and for that reason, without just cause.” Union’s Br., Ex. C at 13. Although the Arbitrator found Weaver culpable for disregarding instructions, he sustained the grievance and reinstated Weaver based upon the above-stated findings. The arbitration award was not based on findings regarding the implication of student safety. In fact, the Arbitrator made absolutely no findings regarding whether Weaver’s conduct implicated student safety. Again, the award was based on the denial of due process and disparate treatment, not student safety.

We, therefore, hold that within the context of this case, reinstating a groundskeeper, who vented about a supervisor by screaming in a garage which was isolated from students, conditioned upon a one-year probation and a required anger management program, does not violate the public policy of protecting students from violence on school property. While we recognize that reinstating a school district employee who had actually struck a student, bullied a student, or threatened violence upon a student on school grounds, could very well trigger the established public policy of protecting students from violence on school property, this is not such a case.

As stated above, the test is not whether Weaver’s conduct violated an established public policy but whether the Arbitrator’s award of reinstating Weaver contravenes an established public policy. Here, the Arbitrator’s award of reinstating Weaver is not at variance with the established public policy of protecting students from violence on school property. Thus, we hold that the trial court improperly applied the narrow public policy exception established in Westmoreland.

For all of the above reasons, the order of the trial court is reversed.

ORDER

AND NOW, this 18th day of April, 2011, the December 30, 2009 order of the Court of Common Pleas of Northumberland County is reversed.

1 . Specifically, Weaver said "I wish I could punch him right in the ... mouth. I’m just gonna pay somebody. I can't do it so I'm just gonna pay somebody. I'll say here’s a hundred dollars. Put a ... dusting on him.” Shamokin Area Sch. Dist. v. Am. Fed’n of State, Cnty. and Mun. Emps. Dist. Council 86 (No. CV-09-1958, filed April 28, 2010), slip op. at 1.

2 . Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 5-514.

3 . City of Easton was abrogated by Westmore-land.

4 . 24 P.S. §§ 13-1301-A —13-1313-A, as amended, added by Sections 6 and 7 of the Act of June 30, 1995, P.L. 220 and Section 3 of the Act of November 22, 2000, P.L. 672.

5 . Added by Section 1 of the Act of July 1, 1985, P.L. 129, 24 P.S. § 1-111.

6 . Added by Section 6 of the Act of July 9, 2008, P.L. 846, 24 P.S. § 13-1301.1A.

7 . The trial court also relied on Section 2706 of the Crimes Code, 18 Pa.C.S. § 2706, which proscribes the use of profane language and terroristic threats, as part of the foundation of the public policy against violence on school property. Section 2706, however, is not specific to violence on school property.

8 . See Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educational Support Personnel Association (Westmoreland II), 977 A.2d 1205 (Pa.Cmwlth.2009).

9 . 24 P.S. § 13-1317.