           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

School District of Philadelphia           :
                                          :
             v.                           :   No. 151 C.D. 2016
                                          :   Argued: February 7, 2017
Commonwealth Association of               :
School Administrators, Teamsters          :
Local 502,                                :
                        Appellant         :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY JUDGE BROBSON                      FILED: April 25, 2017


             The Commonwealth Association of School Administrators, Teamsters
Local 502 (Association), appeals from an order of the Court of Common Pleas of
Philadelphia County (trial court), granting School District of Philadelphia’s
(District) petition to vacate an arbitration award. For the reasons that follow, we
reverse.
             The facts underlying this matter are not in dispute. The Association is
a labor union that represents school principals and other administrators. The
Association brings the instant appeal on behalf of Marla Travis-Curtis
(Travis-Curtis), a former principal of multiple schools located in the District.
             Travis-Curtis was first hired by the District as a substitute teacher
in 1985. She was hired as a special education teacher at Bok High School in 1991.
She held several other positions within the District, including a counselor at
Overbrook High School, an assistant principal at Finletter Elementary School, an
assistant principal at Woodrow Wilson Middle School from 2002 to 2003, and a
principal at Lamberton Elementary in 2003.             The District appointed her as
principal of Lamberton High School in 2011, where she served until 2013 when
Lamberton High School closed permanently. From 2003 until 2013, she served as
principal for both Lamberton High and Elementary Schools, and she continued as
principal of Lamberton Elementary School1 until her employment was terminated
in 2015.
             Pennsylvania requires every school district to administer to its
students a standardized examination called the Pennsylvania System School
Assessment (PSSA).        The PSSA measures students’ competency in various
academic subjects and is also used to rate faculties, administrators, schools, and
districts based on the student bodies’ performance. While principal at Lamberton,
Travis-Curtis implemented stringent test security policies. Specially trained test
coordinators deposited blank tests into a locked room, delivered the tests to
classrooms immediately prior to testing, then retrieved the tests, sealed them, and
returned them to the locked room until they could be sent out to be graded.
             In 2011, the Pennsylvania Department of Education (Department)
conducted a statistical analysis which revealed a high number of instances where
an incorrect answer on a standardized test was erased and the correct answer was
marked instead, referred to in the analysis as “beneficial erasures.”                The
Department instructed the District to investigate several of the identified schools,
including Lamberton. Based on its investigation, the District concluded that the
beneficial erasures at several schools, including Lamberton, were the result of


      1
        From this point forward, this opinion will refer to Lamberton Elementary School as
“Lamberton.”



                                            2
improper conduct.       Specifically, the investigation determined that school
employees altered the tests in an attempt to bolster the school’s overall
performance on the PSSA. The District alleged that Travis-Curtis, who was the
principal of Lamberton during the time covered by the analysis, actively
participated in the improper conduct or knowingly allowed the conduct to
continue. Alternatively, the District alleged that, if Travis-Curtis was unaware, she
acted negligently by failing to discover and prevent such misconduct.              On
January 15, 2014, the District terminated Travis-Curtis’ employment based on
these allegations.
             Effective September 1, 2013, the Association and the District entered
into a Collective Bargaining Agreement (CBA), which set forth the terms and
conditions of employment for administrators employed by the District. Article 2,
Section 2.1 of the CBA states that the District “shall retain the sole right to hire,
discipline or discharge for cause, lay off, transfer and assign Administrators.”
(Reproduced Record (R.R.) at 22a.) The Association filed a grievance pursuant to
Article 5 of the CBA. Article 5 of the CBA defines a grievance as “a claim of a
violation of any specific provision of this Agreement or of any Personnel Policy or
Regulation which has been or shall be adopted by the [District].” (R.R. at 27a.)
             Pursuant to the procedures set forth in the CBA, the Association filed
a grievance on January 23, 2014, contesting the District’s decision to terminate
Travis-Curtis’   employment.        A    single   Arbitrator   held   hearings     on
November 18, 2014, February 20, 2015, March 20, 2015, and April 8, 2015.
             The parties stipulated to this statement of the issue before the
arbitrator: “[w]as [Travis-Curtis] terminated for just cause? If not, what shall the
remedy be?” (R.R. at 17a.) The Arbitrator issued his decision and award (Award)


                                         3
on August 12, 2015. The Arbitrator concluded that statistical evidence indicated
that systematic cheating was occurring while Travis-Curtis was principal at
Lamberton. The Arbitrator further concluded that, after the District implemented
more stringent testing security measures in 2012, Lamberton students’ test scores
dropped significantly, more than could be expected based on other factors such as
decreased funding or resources. Additionally, the Arbitrator noted that the analysis
showed that cheating occurred in some, but not all, classrooms. The Arbitrator
concluded that there was no credible evidence that Travis-Curtis had knowledge of
or participated in the cheating. He determined, however, that Travis-Curtis’ testing
security procedures were insufficient and that she was liable as the top
administrator at the school. Accordingly, the Arbitrator found that “the penalty of
termination must be mitigated” and reduced the discipline to a 30-day unpaid
suspension and a demotion to assistant principal. (Reproduced Record (R.R.)
at 58a).
             The District filed in the trial court a petition to vacate the Award, and
the Association filed its answer and new matter, seeking confirmation of the
Award. Before the trial court, the District argued that the Award cannot logically
flow from the provisions of the CBA and that the Award violates public policy by
reinstating, albeit in a lower position, an administrator involved in a cheating
scandal. The trial court concluded that the Award was not rationally derived from
the CBA because the Arbitrator made the factual determination that Travis-Curtis
committed a terminable offense, i.e. neglected her supervisory duties as principal,
yet failed to recognize the explicit language of the CBA granting the District “sole
discretion” to determine the appropriate level of discipline. (Trial court op. at 4.)
By order dated January 15, 2016, the trial court granted the District’s petition and


                                          4
vacated the Arbitrator’s Award. The trial court reasoned that the Arbitrator’s
decision was based on a “just cause” analysis, which was not supported by any
provision of the CBA, and that the decision to reinstate Travis-Curtis, even to a
lesser position, violated a clear public policy against school administrators
condoning cheating. The Association appealed the trial court’s order to this Court.
             On appeal, the Association argues that the trial court erred in vacating
the Award for three reasons:      (1) the trial court invaded the province of the
Arbitrator by concluding that he incorrectly applied a “just cause” analysis; (2) the
trial court incorrectly concluded that the Arbitrator exceeded his authority by
modifying the discipline imposed by the District; and (3) the trial court erred in
determining that the Award violated public policy.
             Although our Supreme Court has held that an arbitrator’s
interpretation of a CBA should be given great deference, the arbitrator’s decision
must be rationally derived from the terms of the CBA. Office of the Attorney
General v. Council 13, Am. Fed’n of State, Cnty. and Mun. Emps.,
AFL-CIO , 844 A.2d 1217, 1222 (Pa. 2004) (OAG). We have previously explained
the “essence test” used to determine whether an arbitrator’s Award is rationally
related to the terms of the CBA, as follows:
             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, 939 A.2d 855 (Pa. 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:
             An 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

                                         5
               award is legitimate only so long as it draws its essence
               from the collective bargaining agreement.
               The Westmoreland Court further explained:
                      Recently . . . 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.

Bethel       Park    Sch.     Dist.    v.     Bethel     Park      Fed’n      of    Teachers,
Local 1607, 55 A.3d 154, 157 (Pa. Cmwlth. 2012) (internal quotations omitted),
appeal denied, 62 A.3d 380 (Pa. 2013).2
               We first address the Association’s argument that the trial court
inappropriately intruded upon the domain of the Arbitrator by rejecting his
interpretation of “cause” under the CBA. To the extent that the trial court held that
the Arbitrator erroneously interpreted the definition of “cause” contained in
Article 2.1 of the CBA, the trial court clearly erred. It is a foundational principle
of arbitration that a court may not substitute its own judgment for that of the


         2
         We note that the District cites our decision in Riverview School District v. Riverview
Education Association, 639 A.2d 974, 977 (Pa. Cmwlth. 1994), appeal denied, 655 A.2d 518
(Pa. 1995), for the proposition that a court may vacate an arbitrator’s award if the court
determines that the award was “manifestly unreasonable.” Riverview Sch. Dist., 639 A.2d
at 977. Our Supreme Court, however, has expressly stated that the essence test does not allow a
court to evaluate the reasonableness of an award. Pennsylvania Game Comm’n v. State Civil
Service Comm’n (Toth), 747 A.2d 887, 891 n.7 (Pa. 2000) (Toth) (“Thus, we reiterate that the
essence test does not permit an appellate court to intrude into the domain of the arbitrator and
determine whether an award is manifestly unreasonable.”); Westmoreland, 939 A.2d at 863.




                                               6
arbitrator. See Pa. State Sys. of Higher Educ. v. Ass’n of Pa. State Coll. & Univ.
Faculties, 98 A.3d 5 (Pa. Cmwlth. 2014). An arbitrator is charged by the parties
with a duty to apply and interpret the contract, including the concept of just cause.
See OAG, 844 A.2d at 1217. The trial court’s disagreement with the arbitrator’s
interpretation is not alone sufficient to set aside the arbitrator’s interpretation.
             The trial court initially determined that the Arbitrator misapplied
Section 1122 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30,
as amended, 24 P.S. § 11-1122, which provides, in pertinent part:
             The only valid causes for termination of a contract
             heretofore or hereafter entered into with a professional
             employe shall be immorality; incompetency . . .
             intemperance; cruelty; persistent negligence in the
             performance of duties; willful neglect of duties . . .
             conviction of a felony or acceptance of a guilty plea or
             nolo contendere therefor; persistent and willful violation
             of or failure to comply with school laws of this
             Commonwealth (including official directives and
             established policy of the board of directors); on the part
             of the professional employe. . . .

The trial court reasoned that, because “cause” is statutorily defined, the Arbitrator
was without authority to interpret the definition of cause contrary to the statute.
This analysis, however, is precisely the type of analysis disfavored by our Supreme
Court in Toth. A court may not look into an arbitrator’s decision and decide
whether the arbitrator’s interpretation is reasonable.           State Sys. of Higher
Educ. (Cheyney       Univ.)      v.    State     College      Univ.      Prof’l        Ass’n
(PSEA-NEA), 743 A.2d 405, 413 (Pa. 1999). The Arbitrator interpreted the term
“cause” within the contract to mean “just cause.” The Arbitrator did not equate
“cause” under the contract to be a “valid cause for termination” pursuant to
Section 1122. The Arbitrator was interpreting a provision of the CBA rather than a


                                            7
statutory provision. Thus, to the extent the trial court held that the Arbitrator
misinterpreted the definition of cause in the CBA, the trial court erred by
exceeding the scope of its review.
             Moreover, we see no conflict in the Arbitrator’s interpretation of the
CBA and Section 1122 of the School Code. Section 1122 of the School Code
provides that only certain enumerated conduct by a professional employee amounts
to “cause[s] for termination.” In other words, Section 1122 of the School Code
prescribes the circumstances under which a school district may terminate a
professional employee.      It does not, however, mandate that a school district
terminate any professional employee found to have engaged in such conduct.
It also does not preclude a professional employee from grieving a termination
decision for one or more of the authorized “causes” identified in Section 1122 of
the School Code. The authority of an arbitrator, then, to review a termination
decision and to mitigate discipline imposed by a school district is not restricted by
Section 1122 of the School Code. Instead, we must look to the parties’ CBA for
any such restrictions on the arbitrator’s authority.
             Accordingly, we next address the Association’s argument that the trial
court erred in concluding that the Arbitrator exceeded his authority under the CBA
when he modified the discipline imposed. The trial court also concluded that the
express terms of the CBA preclude the Arbitrator from modifying the discipline
assessed by the District. The trial court essentially determined that the Arbitrator’s
role was to make the factual determination of whether any cause for discipline
exists. If the Arbitrator determined that Travis-Curtis committed any offense
subject to discipline, then, under the trial court’s analysis, the District had




                                           8
unfettered discretion to impose any discipline it saw fit. Under this analysis, the
penalty imposed is not reviewable by an arbitrator.
                We have recently held that, absent a clear limitation in the CBA, it is
within an arbitrator’s authority to modify the discipline imposed by a school
district:     “[The a]rbitrator also determined [the g]rievant’s conduct did not
constitute just cause for her dismissal. In accord with the CBA, it is solely within
[the a]rbitrator’s province to find just cause for discipline under the facts of the
case.       This includes the authority to modify discipline.”        Rose Tree Media
Secretaries & Educ. Support Pers. Ass’n v. Rose Tree Media Sch.
Dist., 136 A.3d 1069, 1080 (Pa. Cmwlth. 2016) (internal citations omitted); see
also Blue Mountain Sch. Dist. v. Soister, 758 A.2d 742 (Pa. Cmwlth. 2000)
(holding that, even under manifestly unreasonable standard, arbitrator’s
interpretation of “just cause” can include modification of discipline if arbitrator
concluded that penalty imposed was excessive). In Rose Tree, this Court applied
the two-pronged essence test, set forth above, to determine whether an arbitrator’s
modification of the discipline imposed by a school district was rationally derived
from the CBA. The parties in Rose Tree stipulated that the arbitrator had authority
to decide the issue before him, and, thus, the first prong of the essence test was
met. This Court examined the relevant language contained in the parties’ CBA,
which provided, in pertinent part:
                [Employer] and the Association expressly agree that the
                Board and the Administration shall have the right to
                discipline an employee for cause. Disciplinary actions
                which the Board or Administration may take, provided
                that cause exists, shall include, but not be limited to, oral
                reprimand, written warning, written reprimand,
                unsatisfactory rating or dismissal for cause.



                                             9
Rose Tree, 136 A.3d at 1076. Based on this language, we held that the CBA did
not limit the arbitrator’s authority to determine whether just cause existed and to
modify the discipline imposed by the school district.
              We have previously distinguished between a provision of a CBA
which allows an arbitrator to review and modify a district’s disciplinary ruling and
a provision that expressly reserves for the employer the right to decide the
appropriate form of discipline:
              An arbitrator generally has the power, and specifically
              under this Agreement, to interpret its provisions . . . and
              we will not reverse unless the interpretation of the
              agreement fails to draw itself from the essence of the
              agreement. Regarding whether arbitrators have correctly
              decided that they had the power to modify discipline
              imposed by the employer under the Agreement, we have
              held that where the agreement does not specifically
              define or designate the discipline to be imposed, and does
              not specifically state that the employer is the one with
              sole discretion to determine the discipline, the arbitrator
              is within his or her authority in construing the agreement
              to modify the discipline imposed to reflect a reasonable
              interpretation of the agreement.

Abington         Sch.       Dist.        v.      Abington         Sch.        Serv.       Pers.
Ass’n/AFSCME, 744 A.2d 367, 369 (Pa. Cmwlth. 2000).                        In Abington, we
concluded that the language in the CBA must be specific to reserve the authority to
impose discipline to the school district in contrast to language generally reserving
authority to a district.3

       3
          The Court in Abington found that, for the discipline imposed not to be subject to
arbitration, the language must be similar to that in Board of Education of the School District of
Philadelphia v. Philadelphia Federation of Teachers, AFL–CIO, 610 A.2d 506 (Pa.
Cmwlth. 1992) (Philadelphia Federation), which provided “the arbitrator shall have no power or
authority to make any decision contrary to or inconsistent with terms of the agreement or
(Footnote continued on next page…)

                                               10
                We now address whether the Arbitrator’s interpretation of the CBA as
allowing the Arbitrator to modify the discipline imposed was rationally derived
from the CBA or whether the CBA clearly reserved to the District the right to
determine the appropriate discipline.4 The relevant provisions of the CBA are as
follows. Article 2.1 of the CBA provides that that the District “shall retain the sole
right to hire, discipline or discharge for cause, lay off, transfer and assign
Administrators.” (R.R. at 22a.) Article 2.3 provides that the CBA “is not intended
to modify by any of its terms any discretionary authority concerning such matters
vested in the [District] by the statutes of the Commonwealth or the Philadelphia
Home Rule Charter, as the same may be supplemented or amended from time to

(continued…)

applicable law or which limits or interferes with the powers and responsibility of the [d]istrict.”
Philadelphia Fed’n, 610 A.2d at 508. This Court reached a similar holding in Riverview,
wherein we held that the reference to Section 1122 of the School Code, which provides, in part
that “[t]he [school district] . . . shall . . . have the right at any time to remove any of its officers,
employes, or appointees for incompetency, intemperance, neglect of duty, violation of any of the
school laws of this Commonwealth, or other improper conduct,” was sufficient to reserve
discretion to decide the appropriate discipline to the school district. A review of Philadelphia
Federation and Riverview, however, reveals that both cases based their conclusions on a
“manifestly unreasonable” analysis. See Riverview, 639 A.2d at 978-79 (holding “it is therefore
manifestly unreasonable to conclude that the School District could have intended to bargain
away its absolute responsibility to insure the integrity of its educational mission by discharging
an employee who commits improper conduct.”) Accordingly, our analysis may be informed by
our prior holdings in Riverview and Philadelphia Federation to the extent those decisions
analyzed whether the language in the CBA clearly reserved the discretion to determine the
appropriate discipline to the District. Because the standard of review applied by those decisions
has been disfavored, however, we are not bound by their conclusions.
        4
          We note that the trial court did not specifically address the issue of whether the
Arbitrator had authority to reinstate Travis-Curtis to a different position than the one she held
when her employment was terminated. The District does not raise this issue on appeal, and,
accordingly, we express no opinion as to whether the Arbitrator had this authority under the
CBA.



                                                  11
time.”   (R.R. at 23a.)   Article 10.6 of the CBA, which relates to personnel
practices, provides that “[a]dministrators may be disciplined for cause at the
discretion of the [District].    Discipline shall include discharge, suspension,
demotion in salary or status or any other action disciplinary in nature.” (R.R.
at 45a.) Article 5.5(l) of the CBA provides that:
             The Arbitrator shall have the power and authority to
             decide and shall limit his/her decision strictly to the
             matter specified in the Notice of Arbitration. The
             Arbitrator shall be without power or authority to make
             any decision that is:
                    (1) Contrary to or inconsistent with, or which
             modifies or varies in any way, the terms of this
             Agreement or of applicable law or rules or regulations
             having the force and effect of law; or
                    (2) Which limits or interferes in any way with the
             power, duties, responsibilities and discretion of the Board
             and/or [School Reform Commission (SRC)] under its
             By-Laws, applicable law, or rules and regulations having
             the force and effect of law.

(R.R. at 29a.)
             The District asserts that these Articles, read in conjunction, are
intended to reserve the authority to decide appropriate discipline to the District.
Although the District has asserted colorable arguments as to how certain provisions
of the CBA could be interpreted to limit an arbitrator’s authority, the Arbitrator
interpreted the provisions to allow him to modify the discipline imposed by the
District, and no provision of the CBA expressly precludes the Arbitrator from
modifying the discipline imposed by the District. The essence test does not allow a
reviewing court to decide de novo whether an arbitrator correctly interpreted his or
her authority under the CBA.            State Sys. of Higher Educ. (Cheyney
Univ.), 743 A.2d at 413. Instead, we need only determine whether the arbitrator’s

                                         12
authority   is   rationally   derived   from   the   CBA.        Bethel      Park   Sch.
Dist., 55 A.3d at 157. Presumably, the Arbitrator determined that his authority
derived from Article 5.5 of the CBA, which authorizes the Arbitrator to decide
issues placed before him by the parties through the Notice of Arbitration unless
otherwise limited by the CBA, statutes, or regulations. In this instance, the parties
presented the Arbitrator with the following questions:          “Was [Travis-Curtis]
terminated for just cause? If not, what shall the remedy be?” (R.R. at 17a.) As
explained above, our prior precedent has established that the authority to modify
discipline is inherent in an arbitrator’s authority to determine whether just cause
for discipline exists, unless the authority to modify discipline is expressly reserved
to the District. See Rose Tree, 136 A.3d at 1080. The Arbitrator concluded that no
provision of the CBA, statute, or regulation expressly limited his authority to
modify the discipline imposed by the District.          Accordingly, the Arbitrator
determined that “the penalty of termination must be mitigated.” (R.R. at 58a.)
             In the context of a school district arguing that a provision of the CBA
excluded a particular class of violations from arbitration, we held:
             Clearly, the best evidence that parties to a public
             employment collective bargaining agreement intended
             not to arbitrate a particular class of disputes is an express
             provision in the agreement excluding these questions
             from the arbitration process. Where, as here, the
             collective bargaining agreement contains no such
             limiting provision, to subject a unionized employee to
             arbitrary discipline resulting in a loss of employee rights
             and protections afforded by the agreement, without
             recourse to protest the employer’s action, would render




                                          13
             the agreement a mere sham and run counter to PERA’s[5]
             objective to provide for mutual fair dealing by the parties
             with regard to employment issues.

Hanover Sch. Dist. v. Hanover Educ. Ass’n, 814 A.2d 292, 297 (Pa. Cmwlth.),
aff’d, 839 A.2d 183 (Pa. 2003) (per curiam). Thus, we decline to conclude that a
provision limits the Arbitrator’s authority where the provision purported to do so is
vague rather than express.
             With regard to the Association’s first two arguments, based on the
language of the CBA, we conclude that the Award was “not ‘indisputably and
generally [] without foundation in’ the CBA, and it appears to ‘logically flow
from’ the CBA.”       Pennsylvania Turnpike Comm’n v. Teamsters Local Union
No. 77, 87 A.3d 904, 911 (Pa. Cmwlth. 2014) (quoting Slippery Rock Univ. of Pa.,
Pa. State Sys. of Higher Educ. v. Ass’n of Pa. State Coll. and Univ.
Faculty, 71 A.3d 353, 358 (Pa. Cmwlth.), appeal denied, 83 A.3d 169 (Pa. 2013)).
Accordingly, the trial court erred in concluding that the Arbitrator’s Award did not
draw its essence from the CBA.
             Because the trial court also concluded that, even if the Arbitrator’s
Award did draw its essence from the CBA, the Award should still be vacated
because it contravened a public policy of the Commonwealth, we now address the
Association’s argument that the trial court erred in determining that the
Arbitrator’s Award fell within the public policy exception to the essence test. The
public policy exception is a narrow exception, prohibiting a court from enforcing
an arbitrator’s award that contravenes public policy. See Westmoreland, 939 A.2d


      5
        Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S.
§§ 1101.101-.2301.



                                           14
at 855.   As explained by our Supreme Court, “a court should not enforce a
grievance arbitration award that contravenes public policy. Such public policy,
however, must be well-defined, dominant, and ascertained by reference to the laws
and legal precedents and not from general considerations of supposed public
interests.”   Id. at 865-66.      In City of Bradford v. Teamsters Local Union
No. 110, 25 A.3d 408 (Pa. Cmwlth.) (en banc), appeal denied, 32 A.3d 1279
(Pa. 2011), we set forth a three-step analysis to be used when considering whether
an award violates public policy:
              First, the nature of the conduct leading to the discipline
              must be identified. Second, we must determine if that
              conduct implicates a public policy which is well-defined,
              dominant, and ascertained by reference to the laws and
              legal precedents and not from general considerations of
              supposed public interests. Third, we must determine if
              the [a]rbitrator’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 [a]rbitrator.

City of Bradford, 25 A.3d at 414.
              We must first determine the nature of the conduct leading to the
discipline. Here, the trial court concluded that “it is fundamental that plagiarism
and cheating are antithetical to learning and education and thus contrary to
established policy.”      (Trial court op. at 7.)   The Association argues that the
Arbitrator found that Travis-Curtis had merely failed to properly supervise the
security of the PSSA administration and did not engage in conduct that constituted
plagiarism or cheating.
              We agree that the trial court mischaracterized the Arbitrator’s factual
findings when analyzing the public policy exception to the essence test. The trial


                                          15
court also stated:      “Where, as here, there is no disagreement that school
administration, if not the principal herself, have been implicated in changing
students’ answers on a standardized test over a two year period . . . public policy is
offended.”    (Trial court op. at 7 (emphasis in original).)                 The Arbitrator
unequivocally found that the District did not demonstrate that Travis-Curtis was
directly involved in changing or altering any PSSA answers. The Arbitrator found
only that she was negligent in failing to discover the cheating that was occurring.
Thus, our inquiry is limited to whether reinstatement and demotion of an
administrator found to be negligent in the supervision of school employees and
other    administrators         contravenes        a    well-defined,       dominant,    and
readily-ascertainable public policy.
             It is well-settled that we may not vacate an arbitrator’s award under
the public policy exception simply because the conduct at issue is unacceptable in
a public employment setting. City of Bradford, 25 A.3d at 415. “There is no
public policy that mandates the discharge of all employees who are alleged to have
committed     a       misconduct.”            County         of    Mercer    v.   Teamsters
Local 250, 946 A.2d 174, 183 (Pa. Cmwlth. 2008). Prior case law has recognized
areas where a dominant public policy would preclude the enforcement of an
arbitrator’s award.     Westmoreland Intermediate Unit No. 7 v. Westmoreland
Intermediate Unit No. 7 Classroom Assistants Educ. Support Pers. Ass’n,
PSEA-NEA, 977 A.2d 1205, 1211-12 (recognizing “a well-defined, dominant
public policy to protect school children from illegal drugs and drug use”); cf. New
Kensington-Arnold        Sch.      Dist.      v.       New        Kensington-Arnold     Educ.
Ass’n., 140 A.3d 26 (Pa. Cmwlth. 2016) (holding that teacher’s conviction for
possession of marijuana off-premises and during non-working hours did not


                                              16
require vacatur of arbitration award reinstating teacher.); see also Philadelphia
Housing Auth. v. Am. Fed’n of State, Cnty. and Mun. Emps., Dist. Council 33,
Local 934, 52 A.3d 1117 (Pa. 2012) (holding that arbitration award reinstating
employee discharged for acts constituting sexual harassment, violated well-defined
and dominant public policy);           North Penn Sch. Dist. v. North Penn Educ.
Ass’n, 58 A.3d 848, 858 (Pa. Cmwlth. 2012) (“[An award] under the public policy
analysis [must draw] the necessary balance between the public employer’s duty to
protect the health, safety and welfare of the public, and the fair treatment of public
employees”); Shamokin Area Sch. Dist. v. Am. Fed’n of State, Cnty. & Mun. Emps.
Dist. Council 86, 20 A.3d 579 (Pa. Cmwlth. 2011) (recognizing public policy
against violence towards students in schools).6
              The District asserts that Travis-Curtis’ actions violate a well-defined
public policy to protect students and public education and to preserve the integrity
of the PSSA testing. The District requests that this Court recognize a broad public
policy to protect students and public education. Although the overarching goal of
our school system is to provide a thorough and efficient educational environment
for children in the Commonwealth, the District’s vague characterization of this
policy would necessarily implicate any conduct occurring in a school setting, thus
eviscerating the narrow public policy exception to the essence test.                       See
Philadelphia Housing Auth., 52 A.3d at 1125 (emphasizing that public policy
exception is exceptionally narrow and particularized).


       6
           We have previously held that an arbitrator’s award which divests an educational
institution of its authority to make employment decisions does not, by itself, violate any
well-defined, dominant public policy. East Stroudsburg Univ. of Pa., State Sys. of Higher Educ.
v. Ass’n of Pa. State Coll. and Univ. Faculties, 125 A.3d 870, 874 (Pa. Cmwlth. 2015).



                                              17
              We do, however, recognize that a fundamental public policy exists to
“preserve the integrity of the PSSA testing,” in order to provide students in the
Commonwealth with an effective learning environment, and, had the Arbitrator
found Travis-Curtis to be guilty of actively participating in altering PSSA tests, we
would have no hesitation in affirming the trial court’s conclusion that such conduct
offends a well-defined and dominant public policy of the Commonwealth;
however, this is not the case. Instead, the Arbitrator found only that Travis-Curtis
was negligent in her supervisory responsibilities and in exercising oversight over
PSSA test security.        In other words, the Arbitrator essentially found that
Travis-Curtis engaged in negligent supervision.
              We are constrained by the factual findings of the Arbitrator on appeal
and, thus, must decide whether an award reinstating Travis-Curtis, despite finding
that she was negligent, violates a fundamental public policy. This Court has not
previously recognized a public policy exception that would prevent an
administrator from being reinstated based on mere negligence, and we decline to
recognize one based on the facts of this case.            Although the cheating which
occurred at Lamberton is abhorrent and such conduct must be rooted out, the
Arbitrator found only that Travis-Curtis failed to uncover the cheating and prevent
it. Thus, we cannot conclude an award reinstating an administrator after finding
her guilty of mere negligence violates a fundamental public policy.                 For the
reasons set forth above, the trial court erred in concluding that the Arbitrator’s
Award was contrary to public policy and that the Award should be vacated.7

       7
        Because we conclude that the Arbitrator’s Award does not meet the second prong of the
public policy exception, we need not analyze the Award under the third prong. See City of
Bradford, 25 A.3d at 415.



                                             18
Accordingly, the order of the trial court is reversed.




                    P. KEVIN BROBSON, Judge




                             19
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

School District of Philadelphia          :
                                         :
            v.                           :   No. 151 C.D. 2016
                                         :
Commonwealth Association of              :
School Administrators, Teamsters         :
Local 502,                               :
                        Appellant        :



                                     ORDER


            AND NOW, this 25th day of April, 2017, the order of the Court of
Common Pleas of Philadelphia County (trial court), granting the School District of
Philadelphia’s petition to vacate the arbitration award, is REVERSED.




                                  P. KEVIN BROBSON, Judge
                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


School District of Philadelphia                :
                                               :   No. 151 C.D. 2016
               v.                              :
                                               :   Argued: February 7, 2017
Commonwealth Association of                    :
School Administrators, Teamsters               :
Local 502,                                     :
                  Appellant                    :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge



CONCURRING OPINION
BY JUDGE McCULLOUGH                                               FILED: April 25, 2017


               I concur in the result reached by the Majority. However, I write
separately because I disagree with the conclusion that the Arbitrator could interpret
“cause” within the collective bargaining agreement (CBA) to mean “just cause.”
               I believe it is unnecessary to evaluate this matter under a “just cause”
standard when the CBA only contains the term “cause.” If the meaning of “cause”
cannot be gleaned from the four corners of the CBA, I believe we simply look to
Section 1122(a) of the Public School Code of 1949 (Code),1 which provides “[t]he
only valid causes for termination of a contract . . . entered into with a professional
employee. . . .” 24 P.S. §11-1122(a).



      1
          Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §11-1122(a).
             Moreover, I do not read Pennsylvania Game Commission v. State
Civil Service Commission (Toth), 747 A.2d 887 (Pa. 2000), as countenancing the
disregard of a statutory definition on point. I do not believe that Toth stands for the
proposition that an arbitrator may ignore a statutory definition on point, and
instead, effectively, insert a non-existent adjective into the CBA. As the Majority
notes, while section 1122 of the Code defines “cause” and “prescribes the
circumstances under which a school district may terminate a professional
employee,” it does not mandate termination for the conduct identified therein.
(Slip op. at 9.)   Hence, I agree with the Majority’s conclusion that the Arbitrator
had authority to determine that Marla Travis-Curtis did not act intentionally and to
mitigate her termination to a 60-day suspension without pay and order her
reinstatement. I also agree that the discipline imposed by the Arbitrator was not,
under these circumstances, in violation of public policy.




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                      PAM - 2
