Slippery Rock University of Pennsylvania, Pennsylvania State System of Higher Education, Petitioner
Association of Pennsylvania State College and University Faculty, Respondent
Argued: September 11, 2012
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
PATRICIA A. McCULLOUGH, Judge
Slippery Rock University of Pennsylvania, Pennsylvania State System of Higher Education (University), petitions for review of the April 11, 2012 arbitration award which sustained a grievance filed by the Association of Pennsylvania State College and University Faculties (Union) on behalf of Robert Ammon, Jr. (Grievant). The arbitration award orders Grievant's reinstatement as a full professor and chair of the University's Sports Management Department with no loss of benefits and back pay as well as the purging from the University's files, including Grievant's personnel file, of any reference to Grievant's offensive and inappropriate conduct toward University students who were entrusted to his care and supervision while on a field trip to Spain. As the award is not rationally derived from the subject collective bargaining agreement and contravenes public policy, we vacate the arbitrator's award and reinstate Grievant's termination.
The University is one of 14 schools operated by the Pennsylvania State System of Higher Education (PASSHE). On behalf of the University, PASSHE negotiated a collective bargaining agreement (CBA) with the Union. The CBA governed all aspects of faculty discipline and termination, including the manner in which investigations of complaints about faculty members would be conducted.
Grievant was a tenured professor at the University and director of its Sports Management program. In March 2010, Grievant took 19 undergraduate and graduate students on a spring break trip to Spain. Upon returning from the trip, Grievant met with each student individually to discuss his or her experiences and to solicit feedback on how to improve the trip in future years.
During Grievant's interview with Student T,  she informed Grievant that he had been "unprofessional, a hypocrite, and disgusting" one evening at a bar in Madrid when he asked each student how many sexual partners they have had.(Arbitrator's Award at 2.) She said he then told the students that he had had over 100 sex partners, five of them after he was married. Student T told Grievant that the conversation made her uncomfortable and she did not answer, but other students did. Student T also told Grievant that later that same evening, while sitting with a group of students, she asked Grievant who his favorite student was, and he responded by stating that Student X "would be his favorite student if she s----d his d--k." (Id.) While Grievant did not make the comment directly to Student X, she was in the group of students sitting with Student T. There was also a third incident, in Barcelona, where Grievant used the "f-word" in response to a question by Student T about room assignments. However, he apologized to her a short time later for his outburst.
Grievant was shocked and upset at hearing these allegations and attributed his conduct to being intoxicated. However, he did not dispute any of the allegations. (Id. at 8.) Grievant immediately apologized to Student T and asked her what he could do to resolve the matter. She suggested he apologize to all the female students on the trip and speak with her mother because she had informed her mother of what Grievant said on the trip and her mother was upset. (Id.)
Grievant held a group meeting where he apologized to all the students for his behavior. Approximately one week later, Grievant met with Student T's mother, who threatened to inform the school's administration of his conduct if he did not do so of his own accord. (Id. at 6-8.)
Grievant self-reported his actions to Dean Kathleen Strickland on April 7, 2010. (Id. at 3-4.) He recounted what he remembered saying and what he was told he said. Grievant noted that he was intoxicated; however, he did not understand why the students were upset and claimed he was just joking. (Id.) Grievant appeared to be upset and nervous as he informed Dean Strickland of this situation, which was not his first incident of misconduct at the University. (Id.) Grievant explained to Dean Strickland that in 2006 he was reprimanded for sexually harassing a student and agreed that he would resign if such conduct were to occur in the future. However, Grievant quickly noted that he did not believe his statements in this instance amounted to sexual harassment.
The arbitrator notes in his decision that in addition to Grievant reporting the matter to Dean Strickland, Student T's mother did as well. (Id. at 4, 14). Further, the arbitrator states that Student T reported the matter to the school administration when school officials contacted her after speaking to Student T's mother. (Id. at 3).
Dean Strickland contacted Provost William Williams for guidance. Provost Williams directed her to conduct an investigation into the allegations. Dean Strickland investigated by interviewing sixteen of the students that went on the trip and Student T's mother. Based upon the results of this investigation, Dean Strickland prepared a report on May 12, 2010, summarizing what the students and Student T's mother claimed Grievant said. Pursuant to Dean Strickland's report, Provost Williams sent Grievant a letter on May 20, 2010, informing him that a formal investigation was being conducted into his inappropriate behavior during the spring break trip and notifying him that he was to attend an investigatory interview on May 27, 2010. (Reproduced Record (R.R.) at 502.)
Grievant attended the investigatory interview, along with a Union representative, and offered his side of the story. Grievant admitted making improper and unprofessional statements, but he characterized them as "trash talk" and not sexual harassment. Following this interview, Provost Williams sent a letter to University President Robert Smith on June 14, 2010, recommending that formal discipline against Grievant be considered. On June 17, 2010, President Smith sent Grievant a letter stating that he was to attend a pre-disciplinary meeting to discuss potential discipline arising from his actions, which Grievant attended. (R.R. at 512.) By letter dated July 9, 2010, the University notified Grievant that he was terminated, effective July 30, 2010, for his "unprofessional conduct during the spring 2010 trip to Spain, namely by becoming intoxicated with University students and making inappropriate sexual comments to and about students." (R.R. at 523.) The letter also noted that this was Grievant's second offense and that he had previously been disciplined for engaging in similar behavior.
The Union filed a grievance and ultimately sought arbitration on Grievant's behalf, alleging that the University violated Articles 15 and 43 of the CBA. An arbitrator held a hearing over three days and framed the sole issue as whether there was just cause to discipline and discharge Grievant. (Arbitrator's Award at 13.) On April 4, 2012, the arbitrator issued an award sustaining the grievance.
In sustaining the grievance, the arbitrator found that "the just cause issue is inextricably interlaced in a pattern of procedural indiscretion and substantive irregularities, " the most troubling of which was the University's failure to issue a complaint to Grievant as was required by Article 43 of the CBA. (Arbitrator's Award at 13.) The arbitrator stated that Article 43 requires that "a complaint, verbal or written" be made so as to provide faculty members with notice "of the grounds for investigating what is claimed or alleged." (Id. at 14.) However, the arbitrator concluded that, in this case, there was no complainant and no complaint was ever provided to Grievant. The arbitrator stated that the May 20, 2010 letter sent to Grievant by Provost Williams did not meet the standards of Article 43 because it did not set forth specific allegations or identify a complainant. (Id. at 15.)
Moreover, the arbitrator concluded that:
[a] complaint is an integral part of faculty procedural due process in disciplinary matters which not only provides notice of an adverse action but also identifies the adversary. … After conducting an investigation there was nobody to complain … [n]either did the Employer act as complainant for violation of any rule or policy of the University. Someone must take responsibility for the claim or claims against an accused faculty member. A complaint initiates the process, without it there is nothing to investigate.
(Id. at 15.) In reaching this conclusion, the arbitrator rejected the University's argument that Grievant was a self-complainant as "folly" and "unpersuasive." (Id. at 14.)
The arbitrator also noted that Grievant's termination letter states that he was terminated for "unprofessional conduct with students in Spain by being intoxicated with them and having made sexual comments to and about them which were inappropriate." (Id. at 15.) Thus, he concluded that the University never claimed the Grievant's conduct amounted to sexual harassment, nor was he discharged for sexual harassment. The arbitrator noted that it was appropriate for the University to consider Grievant's prior disciplinary history, but concluded that it was improper for the University, in the current instance, to characterize Grievant's actions as a second violation of its sexual harassment policy. (Id. at 15.)
Accordingly, the arbitrator directed the University to do the following: (1) reinstate Grievant to his former tenured position, with no loss of earnings or benefits; (2) set off any earnings Grievant made while separated from what the University owed him for that period of separation; and (3) remove all references to Grievant's termination and the alleged incidents occurring in Spain from his personnel and other University files. (Arbitrator's Award at 17.) The University now appeals to this Court.
The University argues that the arbitrator's determination did not draw its essence from the CBA because it added requirements to Article 43 of the CBA and failed to recognize that Grievant received a verbal complaint, which he then self-reported to the University. In the alternative, the University argues that the arbitrator's award violates an ...