The opinion of the court was delivered by: Anne E. Covey, Judge
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
Bethel Park Federation of Teachers, Local 1607, American Federation of Teachers, and AFL-CIO (collectively, Federation) appeal the Allegheny County Court of Common Pleas' (trial court) August 4, 2011 order vacating the Arbitrator's award and affirming the Bethel Park School District's (District) decision to terminate Michael W. Lehotsky's (Grievant) employment. There are two issues before the Court: (1) whether the Arbitrator's award was rationally derived from the collective bargaining agreement, i.e., whether it met the essence test; and (2) whether the Arbitrator's award should have been vacated under the public policy exception to the essence test. We affirm.
Grievant has been employed by the District as a seventh grade mathematics teacher since 1991. The District alleges that although Grievant performed satisfactorily early in his career, more recently, his conduct has become unacceptable. Since approximately 2003, Grievant has engaged in various forms of misconduct which have resulted in disciplinary proceedings or formal improvement plans. During the 2008-2009 school year, parents and students reported to the
District that Grievant was engaging in unwelcome contact with seventh grade female students which included holding their hands, and/or rubbing their backs or legs when he would assist them.
Before the 2009-2010 school year began, the District required Grievant to be evaluated by psychiatrists to determine whether and under what conditions he could safely return to the classroom. Among the psychiatric experts' recommendations was that Grievant should not have any contact with students outside of a structured classroom setting. In addition to his five teaching periods per day, Grievant had historically conducted a math lab, also known as "Lunch and Learn." During math lab, students with questions could bring their lunches to the classroom and obtain additional assistance, complete assignments that they had missed, or retake tests. The improvement plan prohibited Grievant from conducting a math lab and from contacting students outside of the structured classroom setting. Grievant defied those directives. He met with students during lunch in other teachers' classrooms, continued to have physical contact with them, and engaged in other unacceptable conduct, including making death threats against members of the administration. Because Grievant did not meet the improvement plan conditions, the District concluded that he could not remain employed as a teacher in the District.
By letter dated November 24, 2009, the District's Board of Directors informed Grievant of its intention to discharge him from his employment for violating provisions of Pennsylvania's Public School Code of 1949,*fn1 as well as the District's own policies prohibiting sexual harassment. The November 24, 2009 correspondence also charged Grievant with unprofessionalism because of his conduct toward colleagues and administrators. The correspondence informed Grievant of his right to a hearing before the Board of Directors to determine whether the charges were substantiated or, in the alternative, to challenge his proposed dismissal through the contractual grievance and arbitration procedure.
On December 2, 2009, the Federation informed the District that Grievant preferred to challenge any proposed action through the contractual grievance and arbitration procedure and, on that same date, the Federation submitted a formal grievance on Grievant's behalf, asserting that he was suspended and dismissed from his employment without just cause, in violation of Article 7 of the collective bargaining agreement (CBA). Because the parties were unable to resolve their dispute through the preliminary stages of the grievance procedure set forth in the CBA, the matter was referred to an Arbitrator for full, final and binding resolution.
Hearings were held on June 30, July 1, August 10, August 12, August 25, August 31, September 14, September 28, and October 18, 2010. On February 10, 2011, the Arbitrator sustained the grievance in part. The Arbitrator directed that Grievant's employment discharge be set aside and that he be restored to compensated status, without loss of seniority, effective on the date of the award. The award specified that the time between Grievant's November 2009 suspension and his reinstatement to payroll status is to be regarded as an unpaid, disciplinary suspension. The Arbitrator's award further directed the District to begin compensating Grievant at the rate contemplated by the CBA, effective as of the date of the award. The award allowed the District to delay returning Grievant to classroom teaching until the next academic year, if reinstatement at that time would disrupt the educational process. Between the date of the Arbitration award and Grievant's reinstatement to teaching duties, he could be assigned alternative duties, subject to any limitations in the CBA. According to the award, any time between Grievant's return to compensated status and his return to active duty shall be regarded as paid administrative leave without disciplinary consequences. Upon reinstatement to active teaching duties, Grievant was to be subject to the September 14, 2009 teacher improvement plan, unless the parties mutually agree on alternative conditions for his reinstatement. The Federation's remaining claims for relief, including back pay and benefits were denied because, as stated by the Arbitrator, "persuasive evidence establishes that the Grievant is guilty of grievous misconduct which would ordinarily warrant discharge. . [and] so long as he persisted in his behavior, the Grievant was unfit to teach." Reproduced Record (R.R.) at 35a-36a. The District appealed to the trial court. On August 4, 2011, the trial court vacated the Arbitrator's award and affirmed the District's decision to terminate Grievant's employment. The Federation appealed to this Court.*fn2
The Federation first argues that the Arbitrator's award should be upheld because it draws its essence from the CBA. Specifically, the Federation contends that the award is within the terms of, and rationally derived from, the CBA. We disagree.
As stated by the Pennsylvania Supreme Court in Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA, 595 Pa. 648, 939 A.2d 855 (2007), the essence test was derived from the United States Supreme Court's decision in United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960), wherein, the Court held:
[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may, of course, look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement.
Westmoreland, 595 Pa. at 661, 939 A.2d at 862-63 (quoting United Steelworkers, 363 U.S. at 596). The Westmoreland Court further explained:
Recently, in Cheyney University, [State System of Higher Education (Cheyney University) v. State College and University Professional Association (PSEA-NEA), 560 Pa. 135, 743 A.2d 405 (1999)] we reaffirmed the essence test and set forth a clear two-prong approach to judicial review of grievance arbitration awards: 'First, the court shall determine if the issue as properly defined is within the terms of the collective bargaining agreement. Second, if the issue is embraced by the agreement, and thus, appropriately before the arbitrator, the arbitrator's award will be upheld if the arbitrator's interpretation can rationally be derived from the collective bargaining agreement.'
Westmoreland, 595 Pa. at 661, 939 A.2d at 863 (quoting Cheyney Univ., 560 Pa. 135, 150, 743 A.2d 405, 413 (1999)).
The issue before the Arbitrator in the instant matter was whether Grievant was discharged for just cause. Article 7 of the CBA specifically states: "No professional employee shall be disciplined, reprimanded, reduced in rank or compensation without just cause." R.R. at 48a. The issue, therefore, is within the CBA's terms. Accordingly, both parties agree that the Arbitrator's award meets the first prong of the essence test.
Concerning the second prong of the essence test, the Federation argues that because just cause is not defined in the CBA, pursuant to Office of Attorney General v. Council 13, American Federation of State, County Municipal Employees, AFL-CIO, 577 Pa. 257, 844 A.2d 1217 (2004), the Arbitrator was within his authority to define it. Thus, the Federation contends the award is rationally derived from the CBA. The District, on the other hand, argues that the Arbitrator based his award on a due process procedure outlined in the District's Unlawful Harassment Policy which is not part of the CBA; hence, the award does not meet the second prong of the essence test. We agree with the District.
We recognize that the Attorney General Court held:
By failing to agree upon and incorporate a definition of just cause into the collective bargaining agreement, and by casting the arbitrator into the role of resolving disputes arising under the collective bargaining agreement, we believe that it is clear that the parties intended for the arbitrator to have the authority to interpret the terms of the agreement, including the undefined ...