The opinion of the court was delivered by: Judge McGINLEY
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
The Supreme Court remanded this case to the Court of Common Pleas of Westmoreland County (trial court) to apply the newly recognized "public policy" exception to the essence test. On remand, the trial court upheld the grievance arbitration award which reinstated Sherie Vrable (Grievant) without backpay or benefits after she had been terminated for wearing a Fentanyl patch to Westmoreland Intermediate Unit #7 (Intermediate Unit) where she was employed as a classroom assistant. Intermediate Unit now appeals.
Grievant was employed at Intermediate Unit as an elementary school classroom assistant. She was responsible for working on a one-to-one basis or in small groups with eleven emotionally disturbed children. She also assisted in general administrative duties, and escorted children to the restroom, lunch, recess and to and from the buses.
On March 18, 2002, Grievant was found unconscious in the school's restroom as the result of a drug overdose. The evidence established that Grievant was wearing a 100 mcg (microgram) Fentanyl patch*fn1 on her back while she was performing her duties as a classroom assistant in grades three through five. Grievant obtained the Fentanyl patch from a friend. It was not prescribed to her by a physician. The evidence establishes that Grievant wore the patch because it was "a temptation." Monongahela Valley Hospital Emergency Room Records, March 20, 02, at 1; Reproduced Record (R.R.) at 90a.
By letter dated September 17, 2002, the Intermediate Unit notified Grievant that it intended to terminate her employment due to her "possession and use of a controlled substance, not prescribed to [her], in the workplace during working hours at the West Newton Elementary School." Letter to Sherie L. Vrable, from Westmoreland Intermediate Unit, September 17, 2002, at 1.*fn2
Grievant, through Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association (Association), challenged the termination through grievance arbitration.
The Arbitrator sustained the Intermediate Unit's grievance and found that the Intermediate Unit lacked "just cause*fn3 " to terminate Grievant because her conduct did not rise to the level of "immorality" under Section 1122(a) of the School Code of 1949*fn4 :
The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality, incompetency, unsatisfactory teaching performance, . intemperance, cruelty, persistent negligence in the performance of duties, willful neglect of duties, physical or mental disability.." (emphasis added).
The Arbitrator's conclusion was based on the finding that Grievant had an unblemished 23-year tenure with the Intermediate Unit. He concluded that this single error of judgment did not amount to such a grievous offense that it would offend the morals of the community. Recognizing the gravity of Grievant's conduct, however, the Arbitrator imposed certain conditions involving rehabilitation that Grievant was required to meet in order to be reinstated. Grievant had to participate in a drug and alcohol treatment program, abstain from mood altering drugs, or chemical substances while on duty, submit to drug/alcohol screenings, and participate in counseling and a treatment program.
The trial court vacated the Arbitrator's award and reinstated Grievant's discharge. It determined that the Arbitrator's award fell within the "core functions" exception to the essence test because Grievant's use of controlled substances while caring for children directly affected the Intermediate Unit's ability to perform its function of providing a safe environment for its students. Trial Court Opinion, August 3, 2004, at 10. Grievant appealed.
This Court upheld trial court's application of the core functions test and concluded that the Intermediate Unit had satisfied the elements necessary to establish the offense of immorality as defined in the School Code. Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA, No. 1782 C.D. 2004, filed June 22, 2005.
The Supreme Court granted the Intermediate Unit's petition for allowance of appeal to review whether the "core functions" exception was inconsistent with the essence test. Concluding that the "core functions" exception was "insufficiently precise" the Supreme Court replaced it with the public policy exception.
Turning to whether the Arbitrator's award met the essence test, our Supreme Court held that whether Grievant's termination was for just cause was an issue within the terms of the CBA. Next, the Supreme Court concluded, contrary to this Court's decision, that the Arbitrator's interpretation was rationally derived from the CBA.
The Supreme Court left open the issue of whether the Arbitrator's award contravened public policy and remanded the case to the trial court to determine if the arbitration award reinstating Grievant fell within the newly clarified "public policy" exception. The specific issue framed by the Court was "whether [Grievant's] reinstatement contravenes a well-defined, dominant public policy that is ascertained by reference to the laws and legal precedents and not from mere general considerations of supposed public interests." Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association, 595 Pa. 648, 667, 939 A.2d 855, 867 (2007).
The trial court considered whether the Arbitrator's reinstatement of Grievant, with the conditions imposed, was a violation of established public policy.*fn5 The well-defined dominant public policy, all parties agreed, was the protection of children in school from the dangers of illicit drugs and drug use.
The trial court held that the Arbitrator's decision to reinstate Grievant did not violate the above-stated public policy. It reasoned that the numerous conditions of reinstatement imposed by the Arbitrator satisfied this policy and held "[w]ith the imposition of these safeguards, the arbitrator has reinforced the pubic policy of protecting students from the dangers of drug use." Trial Court Opinion, August 6, 2008, at 6.
The trial court went on to hold that Grievant's reinstatement did not contravene the public policy embodied in statutory law, namely the Public Employe Relations Act (PERA)*fn6 and the Public School Code. In this regard, PERA does not impair the right of employers to discharge employees for just cause. Similarly, under Section 514 of the Public School Code, 24 P.S. §5-514, a school district has discretion to dismiss only those employees who have engaged in "incompetence, intemperance, neglect of duty, violation of any of the school laws of the Commonwealth, or other improper conduct."
The trial court dismissed the Intermediate Unit's Petition to Vacate the Award of the Arbitrator.
On appeal, the Intermediate Unit raises one issue. It contends that the Arbitrator's award, which placed Grievant back into the classroom, clearly contravened public policy and disregarded the protection of elementary school children from the inherent dangers of drugs and drug abuse. Further, the Intermediate Unit argues that medical records admitted into evidence by stipulation at the arbitration hearing demonstrated that Grievant "had an extensive history of drug abuse." Brief of Westmoreland Intermediate Unit #7, January 14, 2009, at 23.
*I was 30 days clean from opiates. I did detox at Monsour -- it's a five day program.
*A girl called & said she had this Fentanyl patch for me & it ...