decided: April 29, 1981.
NESHAMINY FEDERATION OF TEACHERS, APPELLANT
NESHAMINY SCHOOL DISTRICT, APPELLEE
Appeal from the Order of the Court of Common Pleas of Bucks County in the case of Neshaminy School District v. Neshaminy Federation of Teachers, No. 79-11146-13-6.
Michael Brodie, Freedman and Lorry, for appellant.
Miriam Reimel, for appellee.
Judges Mencer, Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Mencer. Judge Wilkinson, Jr., did not participate in the decision in this case.
[ 59 Pa. Commw. Page 64]
On March 16, 1978, in a jury trial, Robert P. Hess (Hess), a tenured professional employee of the Neshaminy School District (District), was convicted of simple assault, aggravated assault, recklessly endangering another person, terroristic threats, and felonious restraint and later was sentenced to confinement in jail.*fn1
[ 59 Pa. Commw. Page 65]
Section 1122 of the Public School Code of 1949 (School Code)*fn2 provides that the only valid causes for termination of a professional employee are immorality, incompetency, intemperance, cruelty, persistent negligence, mental derangement, advocation of or participating in un-American or subversive doctrines, and persistent and wilful violation of the school laws of this Commonwealth.*fn3
The school board of the District, being of the view that the School Code clearly entrusted to it the decision as to whether a tenured professional employee should be discharged, strictly followed the School Code's mandated procedure for dismissing a tenured professional employee,*fn4 with the result that, on June 27, 1978, the board of school directors of the District voted to discharge Hess on the ground of immorality.*fn5
[ 59 Pa. Commw. Page 66]
No appeal was taken from this discharge decision,*fn6 but, on August 18, 1978, Hess filed a demand for arbitration, alleging that he had been discharged without just cause and requesting reinstatement.
On September 15, 1979, an arbitrator made the following award: "This matter is arbitrable. Mr. Robert P. Hess was not dismissed for just cause. He shall be reinstated within one week of receipt of this award with no back pay."
The District appealed from the arbitrator's award to the Court of Common Pleas of Bucks County, and that court, by order dated February 29, 1980, set aside the award of the arbitrator and upheld the dismissal of Hess. This appeal followed and we affirm.
Hess raises two questions in this appeal, and the answer to one of those questions is dispositive of the matter.*fn7 Hess states the critical question thus: "Did the arbitrator correctly rule that the dispute before him was arbitrable?"
In Leechburg Area School District v. Dale, Pa. , 424 A.2d 1309 (1981), our Supreme Court held that the review of an arbitrator's decision is highly circumscribed and will not be overturned if it draws its essence from the collective bargaining agreement. The essence test requires a determination as to whether the terms of the collective bargaining agreement encompass the subject matter of the dispute. This holding is totally compatible with the premise that judges should not be hostile to arbitration as an invader
[ 59 Pa. Commw. Page 67]
of the exclusive jurisdiction of the courts. This is particularly true when dealing with labor relations problems where arbitration has proved to be a method of settling disputes without resort to strikes or lockouts.
However, courts are not at liberty to require submission to arbitration unless the parties have agreed expressly to do so. A submission to arbitration is essentially a contract with the authority of the arbitrators derived from the mutual assent of the parties to the terms of submission. It is precisely a recognition of this legal maxim that caused our Supreme Court to conclude its opinion in Leechburg Area School District v. Dale, supra, as follows: "Our inquiry ends once it is determined that the issue properly defined is within the terms of the agreement." Id. at , 424 A.2d at 1313.
In the instant case, the arbitrator stated the key issue for arbitration was whether Robert P. Hess was dismissed for just cause, whereas one of the terms of the collective bargaining agreement was that the parties consented to submit to the arbitrator whether an employee has been disciplined, reprimanded, or reduced in rank, contractual compensation or contractual advantage without just cause.
Obviously, then, the issue framed by the arbitrator was not properly defined within the terms of the agreement because there is a difference between being dismissed and being disciplined.*fn8 These two concepts
[ 59 Pa. Commw. Page 68]
defy equating. They are not interchangeable words. There is only one section in the collective bargaining agreement applicable to termination and that is Section 4-1 that reads: "Nothing contained herein shall supersede the provisions of the School Laws of Pennsylvania, 1949, as amended, or other applicable laws and regulations." It is Section 1122 of the School Code that provides the only valid causes for termination of a professional employee such as Hess.
Section 4-2 of the collective bargaining agreement states that "[a]n employee will not be disciplined, reprimanded, [or] reduced in rank, contractual compensation or contractual advantage without just cause." Since the arbitrator is limited to the terms of the agreement, Leechburg Area School District v. Dale, supra, and here the parties to the agreement have not included the matter of dismissal or termination of employment as being subject to the "just cause" standard and arbitration, we must conclude that the propriety of Hess's dismissal was not within the terms of the collective bargaining agreement and therefore this issue was not arbitrable.
And Now, this 29th day of April, 1981, the order of the Court of Common Pleas of Bucks County, dated February 29, 1980, setting aside the award of the arbitrator and upholding the dismissal of Robert P. Hess as a tenured professional employee of Neshaminy School District is hereby affirmed.
Judge Wilkinson, Jr., did not participate in the decision in this case.