Maiello, Brungo & Maiello, LLP, in its capacity as Solicitor for numerous school districts and public entities throughout Western Pennsylvania, handles a wide variety of employee disciplinary matters, including the defense of public entities in labor arbitration proceedings. One of the most challenging arbitration proceeding involves termination of public employees. When an arbitrator reinstates a discharged employee, the general rule of law is that courts will not vacate the arbitration award provided that it draws its essence from the collective bargaining agreement (CBA) or does not fall within a limited and well-established public policy exception. In a recent Commonwealth Court panel decision involving one of our School District clients, our office successfully appealed an Arbitrator’s Award which reinstated a terminated teacher who had been accused of sexual harassment of seventh grade female students. The Commonwealth Court decision agreed with the District’s position that the Arbitrator’s Award did not draw its essence from the CBA and that reinstatement violated the well-established public policy against sexual harassment of students in the public school setting. As such, this Commonwealth Court decision provides important guidance if your school district or public entity is confronted with a similar situation. A copy of the full decision may be viewed immediately following this summary.
The two-judge majority opinion of Judge Leadbetter and Judge Covey agreed with the District’s position that the teacher received all required procedural due process to which he was entitled and further agreed with the District’s position that reinstatement violated the well-established public policy against sexual harassment. Judge Friedman filed a concurring opinion in which she agreed with the ultimate decision to sustain termination, but rendered her decision on the basis that, by waiving the Loudermill proceedings, the employee had waived his opportunity to object to any due process violations.
The Court agreed with the District’s position that the Arbitrator’s Award was not rationally derived from the CBA because the Arbitrator based his award on a due process procedure outlined in the District’s Unlawful Harassment Policy which was not part of the CBA. The Commonwealth Court agreed with the District’s position that since the CBA did not contain a due process procedure for responding to sexual harassment claims, by going outside of the CBA to impose greater due process requirements on the District, the Arbitrator’s Award was not rationally derived from the CBA. The Court also agreed that the District had fully complied with all Loudermill due process protections. The importance of this part of the decision is the clear message which the Commonwealth Court has provided that it will not hesitate to reverse an arbitration award if the Arbitrator cannot point to a specific section within the CBA which imposes requirements on the District. Any attempt to impose requirements which are not contained in the CBA are likely to be rejected by the Commonwealth Court. This portion of the decision strongly favors public employers.
In the concurring opinion, Judge Friedman’s opinion was that waiver of participation in Loudermill hearings may result in future waiver of the opportunity to object to any due process violations. Oftentimes, Unions waive participation in the Loudermill process. In the future, they may be reluctant to do so as it will jeopardize their ability to raise due process violations in subsequent proceedings.
The majority then held that the Trial Court properly vacated the Award on the basis that it violated the well-defined and established public policy of protecting students from sexual harassment. The Court agreed with the District’s position that although the Arbitrator did not specifically enter a finding that the teacher committed sexual harassment, the Arbitrator’s findings left no doubt that the teacher, “an adult male in power over the seventh grade female students, persisted in unwelcome inappropriate touching during the performance of academic work which made the seventh grade female students uncomfortable.” The Commonwealth Court agreed with the District that this type of behavior “unequivocally violates public policy,” including the standard contained in the District’s sexual harassment policy. The Court also agreed that there was a great likelihood that similar “grievous misconduct” would reoccur. It is evident that the majority of the Commonwealth Court panel overwhelmingly recognized and agreed with the District’s concerns regarding ongoing sexual harassment and that the District would have absolutely no control over future behavior, regardless of an improvement plan, if the teacher was returned to the classroom.
Since the Commonwealth Court’s decision was only recently entered on July 30, 2012, it is still subject to possible reconsideration or appeal to the Pennsylvania Supreme Court. However, absent the full Commonwealth Court’s reconsideration or the Supreme Court’s entertaining the appeal and reversing the Commonwealth Court panel decision, the Commonwealth Court decision provides important guidance to all school districts and public entities when confronted with the necessity of terminating employees. The attorneys at Maiello, Brungo & Maiello, LLP are knowledgeable and well-skilled in all public employment issues and are available to vigorously represent public employers in any area of public employment law.