            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rose Tree Media School District             :
                                            :
             v.                             :   No. 70 C.D. 2016
                                            :   Argued: February 7, 2017
Rose Tree Media Secretaries and             :
Educational Support Personnel               :
Association-ESPA, PSEA-NEA,                 :
                        Appellant           :


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



OPINION BY JUDGE BROBSON                        FILED: March 13, 2017


             Rose Tree Media Secretaries and Educational Support Personnel
Association-ESPA, PSEA-NEA (Local Association) appeals from an order of the
Court of Common Pleas of Delaware County (trial court), vacating an Arbitrator’s
Award (Award).1 For the reasons discussed below, we affirm.
                                 I. BACKGROUND
             Following the discharge of David Hay (Grievant) by Rose Tree Media
School District (School District), the Local Association filed a grievance pursuant
to the parties’ collective bargaining agreement, which led to arbitration.           The
Arbitrator made the following findings of fact, and we are bound to accept them on



      1
          The Pennsylvania State Education Association (State Association) filed an amicus
curiae brief pursuant to Pa. R.A.P. 531.
appeal.2 Grievant worked as a “Support Staff II” employee at Penncrest High
School, where he was assigned to assist an individual special education student
(Student).    Grievant’s job responsibilities included accompanying Student to
classes, monitoring him in the classroom, assisting him with assignments, and
keeping him on task. Prior to the incidents giving rise to this case, Grievant had no
record of discipline.
             Three incidents involving Student’s adapted English teacher (Teacher)
eventually led to Grievant’s discharge. First, starting in November 2012, Grievant
stopped bringing Student to his adapted English class. Instead, Grievant arrived to
Teacher’s classroom several minutes early, without Student, and stayed several
minutes past the allotted class time, after Student had left. Teacher used the period
before the English class to prepare and found Grievant’s early arrival distracting.
On January 2, 2013, Teacher sent an email to Jodie Strevig (Strevig), who was
acting as Special Education Coordinator at that time. Teacher advised Strevig that
Grievant was not accompanying Student to and from classes and that it was
distracting her during her preparation. Strevig notified Assistant Principal William
Dougherty (Dougherty), who told Strevig to tell Grievant to stay with his student.
Strevig spoke with Grievant and warned that continued failure to accompany
Student to and from class could lead to him being “written up” or losing his job.
Strevig notified Teacher of her conversation with Grievant, and, for a short period
of time, Grievant stopped arriving to Teacher’s classroom early and leaving late.


      2
          An arbitrator’s findings of fact are not reviewable by an appellate court, and an
appellate court may not second-guess his findings of fact. Coatesville Area Sch. Dist. v.
Coatesville Area Teachers’ Ass’n/Pa. State Educ. Ass’n, 978 A.2d 413, 415 n.2 (Pa. Cmwlth.
2009), appeal denied, 989 A.2d 10 (Pa. 2010).



                                            2
            A few days later, Grievant renewed his behavior of failing to
accompany Student.     Teacher asked Grievant why he was not accompanying
Student, and he responded that he was employing a technique called “fading,”
where he would increase Student’s independence by allowing him to complete
certain tasks by himself. Teacher later checked Student’s Individualized Education
Program (IEP), which did not mention the use of the fading technique. Teacher
wrote Strevig another email on January 11, 2013, informing Strevig that Grievant
was again failing to accompany Student. She wrote that Grievant’s conduct was
“really getting annoying and starting to creep [her] out.” (Reproduced Record
(R.R.) at 23a.) Strevig spoke with Grievant a second time, again warning him that
his conduct could lead to his dismissal. Grievant again apologized to Strevig.
            The very next day, however, Grievant again arrived to Teacher’s
classroom early, without Student. As a result, Teacher sent an email to Joshua
Mattson (Mattson), the school psychologist and part of the School District’s
administration. She described Grievant’s conduct to Mattson and included the
January 2, 2013 email to Strevig. Mattson spoke with Grievant and explained that
he was to remain with Student from class to class. Following the discussion
between Mattson and Grievant, Grievant ceased arriving to Teacher’s classroom
early and staying late. Regarding Grievant’s usage of the fading technique, the
Arbitrator found that a change in the IEP would be a precondition to using fading.
Regarding the unwelcome classroom visits, the Arbitrator concluded: “I
acknowledge [the School District Superintendent]’s view that these actions also
constituted harassment and improper conduct under the Public School Code [Act
of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1–101–27–2702], but I view
‘neglect of duty’ as the more compelling ground.”


                                         3
            The second incident concerning Grievant and Teacher the parties have
coined the “jogging incident.” While the Arbitrator determined the exact date was
not critical, at some point during the 2012 to 2013 school year, Grievant drove past
Teacher while she was jogging. As the vehicle passed her, Teacher observed a
male driver honking the horn and waving to her.         The following day, when
Grievant asked why Teacher did not acknowledge him as she was jogging, she
responded that she could not discern who the driver was. Months later, another
teacher, Lindsay Groy (Groy), overheard Grievant describe the experience with
several students.   Groy described that she heard Grievant state and repeat,
“[Teacher] looked at me like I was the biggest piece of scum.” (R.R. at 34a.)
Groy commented to Grievant that a woman might feel uncomfortable in such a
situation, to which Grievant replied that she was not supposed to hear his story.
Groy then described this interaction with Grievant to Teacher, who was confused
as to why Grievant was sharing the story with students months after it had
occurred.
            The third incident involving Teacher occurred after she instructed her
class, including Student, to draw scenes from the book “Of Mice and Men,” such
as the scene where Lennie strangles Curley’s wife. Teacher noticed that two of the
drawings submitted by Student—the two that were supposed to depict the
strangulation of Curley’s wife—appeared to be drawn by a different person.
Moreover, instead of Curley’s wife, the woman depicted in the picture had pigtails,
was holding a lacrosse stick, and had “PC LAX” written on her sleeve. Teacher




                                         4
was a coach of the girl’s lacrosse team and often wore her hair in pigtails. 3
Grievant asked Teacher if she recognized the woman that was being strangled in
these drawings. She asked Grievant if the woman was a depiction of her, and
Grievant answered affirmatively.             Teacher became noticeably startled and
disturbed, which prompted Grievant to say that he should not have done that.
Teacher shared this interaction with Groy and confessed her discomfort. Notably,
the Arbitrator conclusively found that the drawings were meant to depict Teacher.
              On the advice of Groy, Teacher brought the drawings to Mattson who
described Teacher as “distressed,” “agitated,” and “upset.” (R.R. at 27a.) Mattson
brought the drawings to Penncrest Principal Rick Gregg (Gregg), who then brought
the drawings to Dougherty and Human Resources Director Anne Callahan
(Callahan). Dougherty and Callahan spoke with Teacher the following day, about
all three incidents. Callahan described Teacher as “upset” and “frightened.” (Id.)
              The next day, on May 22, 2013, Callahan and Dougherty met with
Grievant and Patty Stokes (Stokes), a representative from the Local Association.
At the meeting Callahan and Dougherty discussed with Grievant the three incidents
involving Teacher.        Grievant acknowledged that he drew the strangulation
drawings.     Grievant explained that he intended the drawings and sharing the
jogging story with students to be funny and amusing rather than offensive. He also
explained that his arriving to Teacher’s class early and staying late was his attempt
at using the fading technique. At the conclusion of the meeting, Callahan informed

       3
         There is some inconsistency in the Arbitrator’s decision, first describing the woman in
this drawing as having pigtails, then later describing that same pictured woman as having a
ponytail. Despite this inconsistency, we believe the Arbitrator intended to describe the woman in
the drawing as wearing her hair in the same manner that Teacher wears her hair when she is
coaching.



                                               5
Grievant that he was suspended without pay pending an investigation of his
conduct. In June, Callahan sent a memorandum to Grievant stating, “you have a
reasonable assurance that your position will be available to you at the start of the
2013-2014 school year.” (R.R. at 28a.) The Arbitrator additionally noted, “the
record reveals that such letters are issued automatically to all ten-month
employees.” (R.R. at 39a.)
              Grievant grieved his suspension, and on June 20, 2013, School
District Superintendent James Wigo (Wigo) conducted a hearing, which the parties
agreed would constitute a Loudermill hearing.4 After the hearing, on July 3, 2013,
Wigo advised Grievant in writing that he would recommend to the School Board
that the Board terminate Grievant’s employment. Grievant then contested Wigo’s
determination and a Committee of the School Board held a hearing on
September 23, 2013.       On October 24, 2013, the School Board approved the
termination of Grievant’s employment.5            The Local Association amended the
grievance to include Grievant’s termination.


       4
         A Loudermill hearing is a pre-termination hearing given to a public employee that is
required by due process, as established in Cleveland Board of Education v. Loudermill, 470 U.S.
532 (1985).
       5
         After the July 3, 2013 hearing, but before the Board terminated Grievant’s employment,
a Magisterial District Court conducted a summary trial for criminal harassment. We include this
information only by way of the Arbitrator’s decision, which provided the following brief
description:
       Ms. Callahan also brought the “Of Mice and Men” drawings to the State Police.
       On August 14, 2013[,] a summary trial was conducted in Magisterial District
       Court, where the grievant was charged with criminal harassment. At the
       conclusion of the hearing, the court granted grievant’s motion for a directed
       verdict of acquittal. Counsel for the grievant there argued successfully that the
       issue was a labor relations, and not a criminal, matter. The court found the
(Footnote continued on next page…)

                                              6
              On behalf of Grievant, the Local Association referred the matter to
arbitration. The Local Association and the School District agreed to an Arbitrator,
who held two days of hearings. On October 24, 2014, the Arbitrator rendered a
decision, concluding that the School District had just cause to suspend Grievant but
did not have just cause to terminate Grievant. The Arbitrator determined that the
unwelcome classroom visits constituted neglect of duty and that sharing the
jogging story with students constituted improper conduct.                  Regarding the
strangulation drawings, the Arbitrator stated:
             This incident with the drawings surely constitutes
             improper conduct. Whether it is intimidating brings to
             bear the element of intent, which I am not persuaded is
             present. Harassment, however, may well be present in
             that it need not require a showing of intent but merely of
             effect.
(R.R. at 38a.)
             The Arbitrator also appears to have concluded that there was not just
cause for termination because the School District failed to comply with due
process requirements. The Arbitrator determined the School District needed to
(1) memorialize notice to Grievant in writing, (2) meet with Grievant personally
for each incident that required notice, and (3) investigate further by interviewing
every party with involvement in the conflict.              Specifically, the Arbitrator
concluded that the School District should have interviewed Gregg, Mattson, and

(continued…)

      evidence insufficient to meet the criminal burden of “proof beyond a reasonable
      doubt.”
(R.R. at 28a.) There is no additional evidence regarding this summary trial for criminal
harassment in the record before us.



                                            7
Groy, as well as the recently retired author of Student’s IEP, Cynthia Garvin Parks.
Due to the failure of the School District to take such steps, the Arbitrator
determined that the School District dismissed Grievant without just cause.
Regarding his improper conduct, the Arbitrator stated:
             In addition, and also owing to the nature of the grievant’s
             conduct, I direct the grievant to undergo a thorough
             reorientation with respect to his duties and
             responsibilities as a Support Staff II employee, as well as
             the conduct he is expected to maintain under the Public
             School Code. Such reorientation shall be completed
             before the grievant may resume his duties, including
             one-on-one contact with students.          The grievant’s
             reinstatement shall be deemed a last chance for him to
             demonstrate that he may continue as a resource for the
             School District.
(R.R. at 41a-42a.) The Arbitrator ordered Grievant reinstated without any backpay
and without any loss in seniority.
             The School District petitioned the trial court to vacate the Arbitrator’s
Award, and the trial court granted the petition to vacate. The trial court determined
that the Award was not rationally derived from the CBA. The trial court explained
that the Award required the School District to engage in additional procedures that
were not included in the collective bargaining agreement. The trial court further
determined that the Award violated public policy for safety in schools, citing our
decision in Shamokin Area School District v. American Federation of State,
County,   and    Municipal    Employees       District   Council   86,   20 A.3d   579
(Pa. Cmwlth. 2011). This appeal followed.
                                 II. DISCUSSION
             On appeal, the Local Association argues that under the essence test for
review of arbitration awards, the Award should be reinstated.              The Local
Association stresses the highly deferential nature of the essence test and argues that
                                          8
the Award is rationally derived from the CBA because the Award interpreted “just
cause” for termination, which the CBA left undefined. The Local Association also
argues that the Award does not violate any public policy because public policy
favors the enforcement of arbitration awards. In response, the School District
provides arguments that mirror the decision of the trial court. The School District
argues that the additional process requirements were not rationally derived from
the CBA. The School District also argues that the Award violates the public
policies that protect against violence in schools and harassment in the workplace.6
                                        A. Essence Test
               The essence test is an exceptionally deferential standard, because
binding arbitration is a highly favored method of dispute resolution.
Northumberland Cnty. Comm’rs v. Am. Fed’n of State, Cnty. & Mun. Employees,
AFL-CIO Local 2016, Council 86, 71 A.3d 367, 374 (Pa. Cmwlth. 2013). An


       6
          The State Association highlights the technical defects of the School District’s petition to
vacate the Award and contends that the Pennsylvania Labor Relations Board had exclusive
jurisdiction over the Award pursuant to Section 1301 of the Public Employe Relations Act
(PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.1301. In so doing, the State
Association presents issues that were not raised by the Local Association, and Pennsylvania
courts have long recognized that “amicus briefs cannot raise issues not set forth by the parties.”
Banfield v. Cortés, 110 A.3d 155, 172 n.14 (Pa. 2015). Even if we were to address the issues
raised in the amicus brief, the State Association’s arguments are unpersuasive. First, the School
District’s imprecise word choice—“Petitioner, Rose Tree Media School District, Appeal of
Arbitration Decision” rather than “Petition to Vacate”—is inconsequential, because the title of a
filing is not determinative and the trial court conducted the appropriate level of judicial review.
Similarly, the State Association provided no support for the argument that the trial court lacked
jurisdiction. We agree with the School District that Section 1301 of PERA only grants exclusive
jurisdiction to the Pennsylvania Labor Relations Board for violations alleged under Section 1201
of PERA, 43 P.S. § 1101.1201, relating, in part, to unfair practices by public employers. The
petition to vacate in this case was not based on any violation under Section 1201, and, therefore,
the State Association’s argument to the contrary is without merit.



                                                 9
arbitrator’s award, however, must draw its essence from the collective bargaining
agreement. State Sys. of Higher Educ. (Cheyney Univ.) v. State Coll. Univ. Prof’l
Ass’n (PSEA-NEA), 743 A.2d 405, 413 (Pa. 1999). Pursuant to the “essence test,”
an award should be upheld if (1) the issue as properly defined is within the terms
of the collective bargaining agreement, and (2) the arbitrator’s award can be
rationally derived from the collective bargaining agreement.                   Westmoreland
Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants
Educ. Support Pers. Ass’n, PSEA/NEA, 939 A.2d 855, 863 (Pa. 2007). That is to
say, a court will only vacate an arbitrator’s award where the award indisputably
and genuinely is without foundation in, or fails to logically flow from, the
collective bargaining agreement. Cheyney University, 743 A.2d at 413.
              Here, it is essentially undisputed by the parties that the first prong of
the essence test is met—i.e., the issue of whether Grievant was terminated for just
cause is within the terms of the CBA.7 As a result, we are left to determine only
whether the Award can be rationally derived from the CBA.
              The essence test does not require that we agree with an arbitrator’s
interpretation of the CBA. Rather, we look at whether that “interpretation and
application of the agreement can be reconciled with the language of the
agreement.” Dep’t of Corr. v. Pa. State Corr. Officers Ass’n, 38 A.3d 975, 980
(Pa. Cmwlth. 2011). The Supreme Court has previously described the difficulty in


       7
        If a grievant raises an issue that is “arguably dealt with by the bargaining agreement
then arbitration is required.” Ringgold Sch. Dist. v. Abramski, 426 A.2d 707, 710
(Pa. Cmwlth. 1981). If a CBA embraces the issue raised, the arbitrator has jurisdiction over the
dispute. Pa. Tpk. Comm’n v. Teamsters Local Union No. 77, 45 A.3d 1159, 1164-65
(Pa. Cmwlth. 2012).



                                              10
ascertaining whether an arbitrator’s interpretation of a just cause provision is
rationally derived from a CBA:
            Although there is no exact definition, there is a general
            consensus as to some of the factors that may be
            considered in determining whether there is just cause for
            discharge or discipline, and in evaluating the penalty
            imposed. Arbitrators have considered such factors as,
            inter alia, whether there was any investigation;
            post-discharge      misconduct     and      pre-discharge
            misconduct; a grievant’s past employment record, length
            of service, post-discharge rehabilitation; and unequal
            treatment of other employees for similar misconduct.
Office of Attorney Gen. v. Council 13, Am. Fed’n of State, Cnty. & Mun.
Employees, AFL-CIO, 844 A.2d 1217, 1224-25 (Pa. 2004).
            Here, we conclude that the Arbitrator’s determination that additional
due process—i.e., affording Grievant written notice and a meeting for each
incident and interviewing additional individuals—was required in order for
Grievant’s termination of employment to be supported by just cause is not
rationally derived from the CBA. Simply put, no provisions of the CBA required
the School District to take such steps before termination of employment. The
Local Association additionally does not point to treatment of any other teacher to
suggest unequal treatment, unfairness, or any procedural inequality. The School
District put Grievant on notice through the two warnings that Strevig gave to him.
The Arbitrator found that Strevig warned Grievant that his behavior was
unacceptable and that it may lead to discharge. As to whether the School District
should have conducted more interviews, that is not a consideration as to whether
there was any investigation. See id. Rather, it is an assessment of the depth of the
investigation that indisputably took place. Interviewing every person involved
prior to the initial suspension was unnecessary, because Grievant admitted to all

                                        11
three of the incidents that led to his discharge. The Arbitrator’s determination that
due process, and thus just cause, was lacking, does not have any support from the
factors Pennsylvania courts have previously considered. Rather, the Arbitrator’s
determination only stems from unsubstantiated claims that additional process was
required.
             The Arbitrator’s private notion of due process does not adequately
explain why additional process, including requirements exceeding what
Pennsylvania courts have ever weighed in a similar context, was required for a
finding of just cause. Curiously, while the Arbitrator noted that the School District
presented “a compelling basis for finding that the grievant should, indeed, be
dismissed,” (R.R. at 39a), he also determined that it had just cause for the
suspension but not the termination. The Arbitrator did so even though the he found
that Grievant did in fact commit the acts for which he was discharged.           An
undefined just cause provision in a CBA does not serve as a blanket license for
arbitrators to require more process than is due. Requiring written notice in each
circumstance of improper behavior, followed by a personal meeting, as well as
interviews of every person involved does not draw its essence from the CBA in
this case. Because the Arbitrator’s Award fails the second part of the essence test,
the Award was properly vacated.
                                  B. Public Policy
             Because we have concluded that the Award is not rationally derived
from the CBA in this instance, we do not need to address whether the public policy




                                         12
exception may be applied to vacate the Award.8                    We nevertheless note that
although the School District raises public policy concerns relating to intimidation
and harassment, the Arbitrator did not conclude that Grievant engaged in such
behavior. Rather, the Arbitrator found that Grievant’s conduct constituted only
neglect of duty and improper conduct. Were we to analyze whether the Award
violated public policy, we would be constrained to view Grievant’s conduct based
upon the findings of the Arbitrator.
                                    III. CONCLUSION
               The Arbitrator’s Award did not draw its essence from the terms of the
CBA and, therefore, fails under the essence test. Accordingly, we affirm the order
of the trial court.



                                      P. KEVIN BROBSON, Judge



       8
          An arbitration award that draws its essence from the collective bargaining agreement
will nonetheless be set aside if it contravenes public policy. City of Bradford v. Teamsters Local
Union No. 110, 25 A.3d 408, 413 (Pa. Cmwlth.), appeal denied, 32 A.3d 1279 (Pa. 2011). An
application of this public policy exception requires a three step analysis. First, the nature of the
conduct leading to the discipline must be identified. Id. at 414. 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.” Id. Third, we must 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. The determination of whether an arbitration award violated public
policy is a question of law, subject to our plenary review. Philadelphia Hous. Auth. v. Am.
Fed’n of State, Cnty. & Mun. Employees, Dist. Council 33, Local 934, 52 A.3d 1117, 1121
(Pa. 2012).




                                                13
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rose Tree Media School District       :
                                      :
            v.                        :   No. 70 C.D. 2016
                                      :
Rose Tree Media Secretaries and       :
Educational Support Personnel         :
Association-ESPA, PSEA-NEA,           :
                        Appellant     :



                                    ORDER


            AND NOW, this 13th day of March, 2017, the order of the Court of
Common Pleas of Delaware County is AFFIRMED.




                              P. KEVIN BROBSON, Judge
