          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Franklin Regional School District,      :
                        Appellant       :
                                        :
                  v.                    :   No. 114 C.D. 2015
                                        :
Franklin Regional Education             :
Association                             :
                                        :
Franklin Regional School District       :
                                        :
                  v.                    :   No. 147 C.D. 2015
                                        :   Submitted: November 17, 2015
Franklin Regional Education             :
Association,                            :
                        Appellant       :



BEFORE:     HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                            FILED: January 7, 2016

            Franklin Regional School District (the District) appeals and Franklin
Regional Education Association (the Association) cross appeals from an order of
the Court of Common Pleas of Westmoreland County that 1) granted the District’s
petition to vacate an arbitrator’s award sustaining the grievance of music teacher
Philip Wonderling and setting aside his discharge; and 2) modified the remedy of
unqualified reinstatement imposed by the arbitrator in the arbitration award.1
Whereas the arbitrator ordered that Wonderling’s employment be reinstated
without conditions and that he otherwise be made whole for any losses incurred
during the period of discharge, common pleas ordered prospective reinstatement
subject to conditions. On appeal, we consider whether common pleas erred in
granting the petition to vacate the award based on the Supreme Court’s narrow
public policy exception to the essence test,2 which provides that “a court should not
enforce a grievance arbitration award that contravenes public policy.”
Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7
Classroom Assistants Educ. Support Pers. Ass’n, PSEA/NEA (Westmoreland I),
939 A.2d 855, 863 (Pa. 2007). Having determined that common pleas improperly
reviewed and reweighed the factual record, we reverse.
               The relevant facts as found by the arbitrator are as follows.3
Employed by the District for seventeen years, Wonderling’s yearly evaluations had
always been “satisfactory” and he had never been disciplined. During the time
period at issue, he taught instrumental music to fourth and fifth graders at three
separate elementary school buildings, which included both large and small group
instruction.     The optional large-group instruction, “band class,” involved
approximately ninety students and took place before normal school hours. Small-
group instruction involved two to eight students and took place in the music room

    1
       In March 2015, this Court entered an order consolidating the above-captioned appeals.
    2
       The District initially argued that the essence test was not met, but withdrew that argument
on appeal to common pleas and failed to include any such averment in its concise statement of
errors complained of on appeal. Accordingly, the District waived any issue involving the
essence test. Rule 302(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 302(a).
     3
        An arbitrator’s “findings of fact are not reviewable on appeal, and as long as he has
arguably construed or applied the collective bargaining agreement, an appellate court may not
second-guess his findings of fact or interpretation.” Coatesville Area Sch. Dist. v. Coatesville
Area Teachers’ Ass’n, PSEA, 978 A.2d 413, 415 n.2 (Pa. Cmwlth. 2009).



                                                2
of the respective elementary school. Students attended small-group lessons several
times per week, leaving their regularly scheduled class at a specific day and time to
report to the music room. June 3, 2014 Arbitration Award at 3-5.
             Female student EK participated in both large and small group
instruction. On March 20, 2013, EK did not attend the large-group instruction.
When she also failed to show up for her scheduled small-group instruction,
Wonderling sent another student to EK’s regularly scheduled class to retrieve her
and accompany her to the small-group session. Allegedly upset by the retrieval,
which was standard practice for a no-show, EK was “non-participative” in the
small-group instruction. Id. at 5. Wonderling, therefore, released her to return to
her normal classroom.
             When Wonderling was on bus duty the next day, two students advised
him that “EK had gone to elementary Principal Buffone to get Mr. Wonderling into
trouble.” Id. The girls allegedly “were amused and giggling in their behavior
while telling this to Mr. Wonderling.” Id. Later that same day, EK’s mother called
an elementary school counselor and alleged that Wonderling had inappropriately
touched EK and that, consequently, EK had wet her pants that day on the bus and
had tied her jacket around her waist to hide it. EK’s mother stated that this
incident “was the final straw [because] he had been touching her for over one year
since she was in the fourth grade.” Id. at 6. There were no previous allegations.
             Consequently, the school commenced an investigation. The result
was Joint Exhibit 4, a compilation of the contemporaneous testimony and notes of
the school personnel who had conducted the investigation and had interviewed the
seven female students associated with the incident. The arbitrator admitted Joint
Exhibit 4 over the Association’s continuing hearsay objections, ruling that the
parties would have to rely on his thirty-five years of experience to sort out facts
from opinion. Id. at 10. In support, he opined that it was the only way to

                                         3
expeditiously obtain the facts and that the alternative would have been for the
minors to testify.
               Subsequently and as required by law, the District contacted the
Murrysville Police Department and Westmoreland County Children and Youth
Services (CYS). Although both entities conducted separate investigations, neither
found grounds to prosecute or proceed any further. The arbitrator observed as
follows regarding the investigations:
               These agencies had the opportunity to directly question
               the minors that made the allegations as well as their
               parents or guardians. They then made a conclusion as to
               the truth of the matter based on the facts and credibility
               of the accuser. If these authorities elected, after their
               detailed investigation to not proceed further, it does not
               add credibility to the allegations of the student EK and
               other supporting student statements. I must accept the
               decision of these investigations and realize that they had
               the advantage of direct contact in questioning of the
               minor accusers.
Id at 12-13.
               Following Wonderling’s suspension, the Association alleged a
violation of the just cause provision of the collective bargaining agreement (CBA),
which provided, in pertinent part, as follows: “No member of the bargaining unit
shall be rated unsatisfactory, discharged, disciplined, suspended, furloughed,
reprimanded, reduced in rank or compensation, or deprived of any professional
advantage without just cause.” Joint Exhibit No. 1, Section IX.A of the CBA at 5;
Reproduced Record (R.R.), Volume (Vol.) II at 388a.            Wonderling filed his
grievance and, subsequently, the District charged him with immorality,
incompetency and willful violation of school laws. The parties agreed to expedite
the grievance to arbitration, where the arbitrator considered the issue of whether
there was just cause for Wonderling’s discharge and the appropriate remedy, if
any.

                                           4
               Following a two-day hearing in February 2013, the arbitrator
determined that there was no just cause, concluding that the allegations were
unfounded and unsupported by the facts. Specifically, he discounted the accounts
of EK’s mother, EK and the other minor girls. In rejecting the mother’s testimony,
he found it to be inconsistent, expansive and not credible. June 3, 2014 Arbitration
Award at 13-14.         Regarding EK’s lack of credibility, he cited the objective
testimony of those who knew her indicating that she tended to try and get others
into trouble and boasted of getting Wonderling into trouble. Id. at 14-15. In
addition, noting that EK and her girlfriends were in the same homeroom and
usually on the same bus, the arbitrator determined that the girls colluded and
fabricated stories. In support, he relied on testimony from the librarian, the general
music teacher who shared bus duty with Wonderling, the girls’ homeroom teacher
and a chaperone who had roomed with EK and some of her friends during a three-
day field trip. The arbitrator also considered the fact that neither the police nor the
CYS proceeded against Wonderling.
               Further, emphasizing that the District was alleging inappropriate
contact and not sexual relations, the arbitrator concluded that Wonderling’s
admitted behavior similarly did not rise to the level to support discharge. This
behavior included, inter alia, so-called “snake bites,” which entailed squeezing a
child’s knee between the thumb and forefingers, and “good mannered threats to use
the slapstick for discipline.”4 Id. at 13, 18. Regarding the snake bites, allegedly
used to regain a child’s attention, the arbitrator noted Wonderling’s testimony that
he had been taught to use touching when dealing with his autistic son. Id. at 18. In

    4
      A slapstick is “a percussion instrument that is used to mimic the sound of a whip crack or a
slap or anything like that.” February 12, 2014 Hearing, N.T. at 144; R.R., Vol. I at 155a. It had
been used in a band piece called “Sleigh Ride.” February 13, 2014 Hearing, Notes of Testimony
(N.T.) at 300; R.R., Vol. II at 334a.



                                                5
summary, the arbitrator concluded that all the testimony indicated that Wonderling
tried to make music fun and involve the students by joking with them. Id. Having
determined that Wonderling’s admitted contact was a reasonable part of his duties,
the arbitrator sustained the teacher’s grievance and set aside his discharge.5
               Subsequently, the District filed a petition to vacate the arbitrator’s
award, arguing that it contravened public policy. Common pleas granted the
petition, determining that “Wonderling has admitted to behavior that constitutes an
ongoing course of conduct directed at various female students that violated school
district policy.” Common Pleas January 6, 2015 Opinion at 4. It concluded,
therefore, as follows: “[T]he arbitrator’s award is not in accord with established
public policy of protecting students from impermissible touching by their
teachers.” Id. Accordingly, the court crafted its own remedy, which included
prospective reinstatement with conditions.6 Both the District’s appeal and the
Association’s cross appeal to this Court followed.
               On appeal, we consider whether common pleas erred in granting the
petition to vacate the arbitration award based on the public policy exception. In
addition, both parties question whether the court erred in modifying the award,

    5
       Specifically, the arbitrator directed that Wonderling’s employment be reinstated and that
he be made whole for any loss of income during the discharge period, less any monies he earned
or received from unemployment compensation or similar income. In addition, the arbitrator
directed that all benefits and pension eligibility be reinstated and that he be reimbursed for any
out-of-pocket expenses that he used for health insurance for him or his family during the
discharge period. June 3, 2014 Arbitration Award at 20.
     6
       Specifically, the court reinstated Wonderling’s suspension without pay, effective May 25,
2013, until the first day of the second semester of the 2014-2015 school year, at which time he
would be reinstated “upon proof that he has completed an evaluation and treatment directed at
correcting the behavior he engaged in, that constituted inappropriate touching and harassment, to
the satisfaction of the Superintendent . . . .” Common Pleas January 6, 2015 Order at 1. Further,
the court directed that, “[u]pon restoration to employment[,] Philip Wonderling shall abide by all
conditions reasonably imposed by the . . . District to protect students from any further
misconduct.” Id. at 2.



                                                6
which subsumes the District’s issue of whether the court erred in stating that it
would grant the District’s requested relief but then did not grant that relief in its
entirety by reinstating the termination. Further, the District questions whether the
arbitrator erred in using a “beyond a reasonable doubt” standard of proof in
considering the evidence. As the party below asserting that the award contravened
public policy, the District carried the burden of establishing that the award violated
positive law. Pa. Tpk. Comm’n v. Teamsters Local Union No. 250, 948 A.2d 196,
207 (Pa. Cmwlth. 2008). The determination of whether the award violated public
policy is a question of law, subject to our plenary review. Phila. Hous. Auth. v.
Am. Fed’n of State, County, and Mun. Employees, Dist. Council 33, Local 934, 52
A.3d 1117, 1121 (Pa. 2012).
             It is now axiomatic that “an arbitration award will be upheld if it can
rationally be derived from the collective bargaining agreement, unless it
contravenes public policy.” City of Bradford v. Teamsters Union No. 110, 25 A.3d
408, 413 (Pa. Cmwlth. 2011). Our three-step analysis for application of the public
policy exception provides that the court 1) identify the nature of the conduct
leading to the discipline; 2) determine if that conduct implicates a well-defined and
dominant public policy; and 3) determine if the arbitrator’s award poses an
unacceptable risk that it will undermine the implicated policy and cause the public
employer to breach its lawful obligations or public duty, given the particular
circumstances at hand and the factual findings of the arbitrator. Id. at 414.
             We turn to the first step of the three-part analysis: identifying the
conduct leading to the discipline.     Mindful that the arbitrator discounted the
allegations leading to the charges, the conduct at issue consists only of
Wonderling’s admitted behavior.       Whereas the arbitrator determined that the
teacher’s admitted behavior did not rise to the level to support a discharge and that
there were no allegations of harassment, common pleas concluded that it invoked

                                          7
the public policy exception and constituted harassment under the District’s
policies. In so concluding, however, the court referenced and reinterpreted the
discounted evidence from the female students, emphasizing that the arbitrator had
admitted such evidence into the record. Even though the arbitrator chose to admit
the discounted testimony over the Association’s objection, he discredited it.
Further, he specifically found no touching of a student in any sensitive personal
area, no violation of District policies prohibiting harassment, or abuse. He found
further that the touching to which Wonderling admitted was reasonable and not
inappropriate. June 3, 2014 Arbitration Award at 16-19. Common pleas was
bound by the arbitrator’s fact-findings, which should have formed the basis for its
analysis of the applicability of the public policy exception. See Bethel Park Sch.
Dist. v. Bethel Park Fed’n of Teachers, 55 A.3d 154, 159 n.4 (Pa. Cmwlth. 2012),
appeal denied, 62 A.3d 380 (Pa. 2013) (reiterating that courts are prohibited from
second-guessing an arbitrator’s fact-findings and may not reject his or her findings
simply because it disagrees with them); Pleasant Valley Sch. Dist. v. Schaeffer, 31
A.3d 1241, 1246 (Pa. Cmwlth. 2011) (stating that “[t]he arbitrator made specific
findings about the grievant’s misconduct, and those findings formed the foundation
to the analysis of the public policy exception”). (Emphasis added). Accordingly,
mindful that the parties bargained for the arbitrator’s determination of just cause,
we conclude that common pleas overreached when it considered and reinterpreted
the discounted evidence and reweighed the accepted evidence to determine that
there was a basis for applying the public policy exception.
             We turn now to the second part of the analysis: whether the conduct
implicates a well-defined and dominant public policy. In support of its decision,
common pleas cited the “established public policy of protecting students from
impermissible touching by their teachers.”      Common Pleas’ January 6, 2015
Opinion at 4.      The District contends that Wonderling’s admitted conduct

                                         8
contravened that alleged public policy, citing in support Bethel Park. In Bethel
Park, the district discharged grievant, inter alia, for violating the district’s policies
prohibiting sexual harassment. Parents and students had alleged that he engaged in
unwelcome contact with seventh grade female students, which included hand-
holding and/or rubbing their back or legs when assisting them in his capacity as a
math teacher. This Court affirmed common pleas’ order vacating the arbitrator’s
award, holding that, “[t]he Arbitrator’s award reinstating Grievant to the classroom
after finding that he was guilty of inappropriately touching seventh grade female
students during academic lessons unequivocally violates public policy . . . .”
Bethel Park, 55 A.3d at 161. We find Bethel Park to be distinguishable, in light of
the findings of the arbitrator here.        Accordingly, common pleas made an
unwarranted leap from the arbitrator’s decision in determining that Wonderling’s
conduct constituted harassment such that it contravened a public policy prohibiting
impermissible touching by teachers.
             The third step of the analysis requires us to consider whether “the
arbitrator’s award poses an unacceptable risk that it will undermine the implicated
policy and cause the public employer to breach its lawful obligations or public duty
. . . .” City of Bradford, 25 A.3d at 414. The question here, therefore, is whether
the arbitrator’s unqualified reinstatement of Wonderling to his position poses an
unacceptable risk that will undermine the public policy of protecting students from
impermissible touching by their teachers and cause the District to breach its lawful
obligations or public duty.      This inquiry encompasses “consideration of the
particular circumstances of the case and any attendant aggravating or mitigating
factors.” Id. at 415.
             Here, the arbitrator considered Wonderling’s unblemished record and
accepted his testimony that he was never alone with a student and that, if such a
situation arose, he moved to a more public area, postponed the meeting or invited

                                           9
another student into the classroom. June 3, 2014 Arbitration Award at 18. In
addition, in the absence of EK’s testimony and in light of the fact that he did not
know her, the arbitrator “reviewed the transcript to determine credibility through
those that do know her, had her in class and questioned and observed her.” Id. at
14. In rejecting the testimony of EK and her friends, the arbitrator also considered
the fact that both the police and the CYS considered the allegations in Joint Exhibit
4 and neither chose to proceed against Wonderling. Id. at 16. Accordingly, the
arbitrator chose to reinstate Wonderling’s employment and make him whole,
without requiring any counseling or continuing education.
             On the other hand, common pleas determined that only prospective
and conditional reinstatement would satisfy the public policy of protecting students
from impermissible touching by their teachers and cause the District to be
compliant with its lawful obligations or public duty.        We have determined,
however, that common pleas improperly viewed the situation through another lens
and usurped the arbitrator’s fact-findings. Further, the District acknowledged that
Wonderling’s conduct was not sexual in nature and that no criminal charges were
pursued. We conclude, therefore, that the arbitration award does not pose an
unacceptable risk of causing the District to flout its legal obligations and public
duty. Accordingly, not only did the District fail to satisfy the narrow public policy
exception, but the court also erred in modifying the bargained-for award.
             Finally, we consider whether the arbitrator erred in using a “beyond a
reasonable doubt” standard of proof in rendering his award. The arbitrator chose
to use that standard in light of the fact that a discharge was at issue, involving,
inter alia, an immediate loss of income, a blemish on an employee’s record and
potential difficulty in securing subsequent employment. In determining that the
District did not prove the allegations pursuant to that standard of proof, however,
the arbitrator noted that he would have rendered the same decision had he used the

                                         10
preponderance of evidence standard.      In any event, the arbitrator has some
discretion in choosing a standard of review.     See Elkouri and Elkouri, How
Arbitration Works, Chapter 15, Section 3(D)(ii)(a) at 15-24, 15-27 (7th ed. 2012)
(acknowledgement that many arbitrators apply higher standards of proof in cases
involving stigmatizing behavior). Accordingly, the District’s argument is without
merit.
            In conclusion, common pleas erred in essentially rendering new fact-
findings and in using the narrow public policy exception to impermissibly modify
an award that was bargained-for and which neither party ultimately disputed
satisfied the essence test. See Westmoreland I, 939 A.2d at 863 (courts are not to
review the merits or reasonableness of the arbitrator’s award). Accordingly, we
reverse.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Judge




                                       11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Franklin Regional School District,      :
                        Appellant       :
                                        :
                  v.                    :     No. 114 C.D. 2015
                                        :
Franklin Regional Education             :
Association                             :
                                        :
Franklin Regional School District       :
                                        :
                  v.                    :     No. 147 C.D. 2015
                                        :
Franklin Regional Education             :
Association,                            :
                        Appellant       :


                                     ORDER


            AND NOW, this 7th day of January, 2016, the order of the Court of
Common Pleas of Westmoreland County is hereby REVERSED.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge
