        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gateway School District,                  :
                                          :
                    Appellant             :
                                          : No. 388 C.D. 2017
             v.                           : Submitted: November 13, 2017
                                          :
Teamsters Local 205                       :



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE MICHAEL H. WOJCIK, Judge (P)
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                       FILED: January 3, 2018


             Gateway School District (District) appeals from the order of the Court
of Common Pleas of Allegheny County denying the District’s petition to vacate an
arbitration award that reinstated Elizabeth Gigliotti (Grievant) to her former position
with the District and reduced the discipline imposed on Grievant to a one-day
suspension. For the following reasons, we affirm.
             Grievant was employed at the District for 25 years and at the time of
her discharge, she worked as a full-time secretary at an elementary school.
(Arbitrator Opinion and Award at 2, Reproduced Record (R.R.) 2a.) One other
secretary worked with Grievant in the school office, but only part-time during the
morning hours. (Opinion and Award at 2, R.R. 2a.) Grievant and the other secretary
shared responsibility for monitoring parents and visitors entering the building and
students leaving the building and therefore one of the two secretaries or another staff
person was required to be present in the office at all times. (Id.)
              Grievant’s employment was governed by a Collective Bargaining
Agreement (CBA) entered into between the District and Teamsters Local 205
(Union) on behalf of her bargaining unit, which included secretarial, custodial,
clerical, food service and maintenance employees and teacher aides. (CBA § 1.1,
R.R. 10a.) Grievant worked on an 11-month schedule, which entitled her to sick
leave and personal days, but not vacation days. (Opinion and Award at 2, R.R. 2a;
CBA §§ 8.1, 10.1, 10.2, R.R. 26a, 29a-30a.) Pursuant to the CBA, an employee is
only permitted to use sick leave for his or her illness. (CBA § 10.1.G, R.R. 29a
(“The use of sick days is for the employee’s sickness only and not for the sickness
of a child, parent, grandparent, etc.”).) The CBA contains a Management Rights
clause which provides the District with “the exclusive right and power to manage,
control and conduct its business, ….including the right to …suspend [or] discharge
[its employees] as it deems advisable, subject, however, to the other provisions” of
the CBA. (CBA § 3.1, R.R. 11a.) The CBA further provides that the District is
limited in its ability to suspend or discharge employees only to situations where there
is “just cause.” (CBA § 12.1, R.R. 34a (“The employer shall not discharge nor
suspend any employee without just cause.”).) The term “just cause” is not defined
in the CBA.
              On Thursday, May 19, 2016, Grievant entered an absence into the
District’s scheduling system requesting half-day sick leave for the afternoon on the
following day, Friday, May 20, 2016. (Opinion and Award at 3, R.R. 3a.) On Friday
morning, Grievant informed the District’s Human Resources Director (HR Director)
that no one had picked up her absence in the scheduling system and that the part-


                                           2
time secretary would not be able to stay for the afternoon to cover Grievant’s shift.
(Id.) Assuming that Grievant had pre-scheduled sick leave to attend a doctor’s
appointment, the HR Director asked Grievant what time her appointment was, to
which Grievant responded that she did not have an appointment. (Id.) The HR
Director then asked Grievant how she knew on Thursday she would be sick the
following afternoon, and Grievant at that point responded that she could not tell a lie
and she actually intended to attend her granddaughter’s school function on Friday
afternoon. (Id.) Grievant had already exhausted her allocated personal days for the
year and therefore she could only take off through sick leave. (Id. at 5, R.R. 5a.)
              On at least three occasions on the morning of Friday, May 20, 2016, the
HR Director asked Grievant whether she could stay at work through the afternoon
and whether she really wanted to leave. (Id. at 3, R.R. 3a.) Grievant responded that
she could not stay and she wanted to leave. (Id.) The HR Director also informed
Grievant that if she left on sick leave they would discuss the issue in the future,
which the HR Director felt implied to Grievant that there would be consequences for
her actions. (Id.) Grievant did in fact leave work on Friday afternoon to attend her
granddaughter’s function assuming that her shift would be covered but without
knowing for sure. (Id.) The HR Director found coverage for Grievant, but overtime
had to be paid to the covering employee. (Id.)
              On May 23, 2016, the District sent Grievant notice that it intended to
hold a Loudermill hearing.1 (Opinion and Award at 4, R.R. 4a.) On July 21, 2016,
the District suspended Grievant without pay to be followed by termination effective
July 25, 2016 based on a violation of Article 10 of the CBA related to sick leave,

1
 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).


                                               3
and the “Immorality Clause” of the Public School Code of 1949. 2 (Id. at 2-3, R.R.
2a-3a; see also CBA § 10.1, R.R. 29a-30a.) The Union filed a grievance on
Grievant’s behalf on July 25, 2016. (Opinion and Award at 2, R.R. 2a.) An
arbitrator was appointed, and a hearing was held on November 9, 2016 at which both
parties presented testimony and documentary evidence.3 (Id.)
               On November 22, 2016, the arbitrator rendered an opinion and award
granting the grievance in part. The arbitrator determined that the District did not
satisfy its burden of proof of showing by clear and convincing evidence that it had
just cause for imposing the penalty of unpaid suspension to be followed by
termination. (Opinion and Award at 5, 7, R.R. 5a, 7a.) The arbitrator concluded
that Grievant did commit “errors in [judgment]” by making a request for sick leave
for personal reasons unrelated to her health, changing her time card to reflect sick
pay when she was not sick and leaving the school without knowing whether there
would be secretarial coverage. (Id. at 6, 7, R.R. 6a, 7a.) The arbitrator held that
these actions violated the CBA, school policies, school rules and the Public School
Code. (Id. at 6, R.R. 6a.)

2
  Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101–27-202. The notice of suspension
and termination does not appear in the certified record and therefore it is unclear on which
provision of the Public School Code the District relied in selecting Grievant’s discipline. Section
514 allows a school district to remove its officers, employees or appointees for “incompetency,
intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other
improper conduct,” but does not specifically reference immorality as a grounds for removal. 24
P.S. § 5-514. Section 1122 permits districts to terminate contracts of professional employees for
various reasons, including immorality. 24 P.S. § 11-1122(a).
3
  No stenographic record of the hearing was prepared. (Opinion and Award at 2, R.R. 2a.)
Furthermore, though various exhibits were admitted at the arbitrator’s hearing, only the CBA was
included in the certified record. Our precedent makes clear that we may conduct appellate review
in an appeal from a grievance arbitration without the benefit of a transcript or exhibits. See Rose
Tree Media Secretaries & Educational Support Personnel Association-ESPA, PSEA-NEA v. Rose
Tree Media School District, 136 A.3d 1069, 1078-79 (Pa. Cmwlth. 2016).

                                                4
             However, the arbitrator concluded that there were “mitigating and
unique circumstances at play” that prevented him from upholding the discipline
imposed by the District. (Opinion and Award at 6, R.R. 6a.) The arbitrator first
noted that Grievant truthfully told the HR Director that she intended to go to her
granddaughter’s school function when questioned regarding the reasons for her
planned sick leave. (Id.) Furthermore, the arbitrator determined that the HR
Director had the “absolute responsibility and obligation” pursuant to the
Management Rights clause of the CBA to deny Grievant’s request for sick leave.
(Id.) The arbitrator found that the HR Director, despite being fully aware of the
circumstances related to the request for leave, did nothing to stop Grievant from
taking sick leave when she was not sick and the HR Director never clearly informed
Grievant that her actions were wrong or that she had to remain at work. (Id.) The
arbitrator found that the HR Director asking Grievant three times whether she truly
wanted to take her leave in fact gave Grievant discretion to continue with her planned
leave, and that the HR Director’s statement that “we would have to talk about this in
the future” did not imply to Grievant that she would face consequences for her
actions. (Id. at 6-7, R.R. 6a-7a.) In addition, the arbitrator found that the HR
Director’s statement that she did not have authority to deny sick leave or tell
Grievant she had to stay was misplaced and, in any event, the HR Director could
have asked another administrator to make those directives. (Id. at 6, R.R. 6a.)
             Accordingly, the arbitrator concluded that the just cause standard was
not met and ordered Grievant reinstated to her former position with all rights and
privileges restored. (Opinion and Award at 7, R.R. 7a.) The arbitrator ordered the
District to make Grievant whole for her loss of earnings except for the sick leave pay




                                          5
she received on May 20, 2016 and a one-day unpaid suspension that the arbitrator
imposed “for Grievant’s part in this matter.” (Id.)
             On December 21, 2016, the District filed its petition to vacate the
arbitration award with the Court of Common Pleas. The lower court denied the
petition by a February 28, 2017 order, concluding that the award was rationally
derived from the CBA. The District filed a timely notice of appeal of the Court of
Common Pleas’ order.
             In appeals from arbitration awards resolving labor disputes, reviewing
courts employ the essence test, which is a standard of review of great deference.
Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7
Classroom Assistants Educational Support Personnel Association, PSEA/NEA, 939
A.2d 855, 862-63 (Pa. 2007); State System of Higher Education (Cheyney
University) v. State College University Professional Association (PSEA-NEA), 743
A.2d 405, 413 (Pa. 1999). The essence test is a two-step analysis; first, the reviewing
court must determine whether the issue in the arbitration is properly defined within
the terms of the applicable CBA. Cheyney University, 743 A.2d at 413; Upper
Merion Area School District v. Teamsters Local #384, 165 A.3d 56, 62 & n.5 (Pa.
Cmwlth. 2017) (en banc). The court must then analyze whether the award is
rationally derived from the agreement; so long as the issue is embraced by the CBA
and rationally derived from the agreement, the court will uphold the award. Cheyney
University, 743 A.2d at 413; Upper Merion Area School District, 165 A.3d at 62 &
n.5.
             As our Supreme Court has explained, under the essence test, “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


                                          6
agreement.” Cheyney University, 743 A.2d at 413; see also Upper Merion Area
School District, 165 A.3d at 62. The arbitrator’s findings of fact are binding on the
courts, and the reviewing court may not undertake any independent factual analysis.
Rose Tree Media Secretaries & Educational Support Personnel Association-ESPA,
PSEA-NEA v. Rose Tree Media School District, 136 A.3d 1069, 1078 (Pa. Cmwlth.
2016); Bethel Park School District v. Bethel Park Federation of Teachers Local
1607, 55 A.3d 154, 159 n.4 (Pa. Cmwlth. 2012). Furthermore, the court may not
generally review the merits or reasonableness of the arbitrator’s award as part of the
essence test. Westmoreland Intermediate Unit #7, 939 A.2d at 863; Cheyney
University, 743 A.2d at 410-11, 413 n.8. “It is a foundational principle of arbitration
that a court may not substitute its own judgment for that of the arbitrator.” School
District of Philadelphia v. Commonwealth Association of School Administrators,
Teamsters Local 502, 160 A.3d 928, 933 (Pa. Cmwlth. 2017).
               On appeal, the District argues that the award did not satisfy the second
prong of the essence test because the mitigating factors on which the arbitrator based
his award were not rationally derived from the CBA. Specifically, the District
objects to three of the mitigating factors that the arbitrator considered in determining
that the District’s decision to discharge Grievant was not appropriate: Grievant’s
truthfulness in telling the HR Director the actual reason for her requested sick leave,
the fact that the HR Director did not take any action to prevent Grievant from taking
sick leave and the HR Director’s failure to inform Grievant that she would face
discipline if she took sick leave.4

4
  In its brief, the District analogizes the present case to Riverview School District v. Riverview
Education Association, PSEA-NEA, 639 A.2d 974 (Pa. Cmwlth. 1994), in which this Court vacated
an arbitrator’s decision sustaining grievances brought by two public school teachers who were
discharged after being denied personal leave for a week-long ski trip and then falsely calling out


                                                7
               As this Court has repeatedly held, in the absence of an express
limitation in the CBA, an arbitrator resolving a labor dispute may modify the
discipline imposed and hand down a lesser discipline. See, e.g., Upper Merion Area
School District, 165 A.3d at 66; School District of Philadelphia, 160 A.3d at 933-
34; Rose Tree Media School District, 136 A.3d at 1080; Abington School District v.
Abington School Service Personnel Association /AFSCME, 744 A.2d 367, 369 (Pa.
Cmwlth. 2000). To limit the authority of the arbitrator, the CBA must specifically
define or designate the discipline to be imposed or state that the employer has sole
discretion to determine the discipline.5 Upper Merion Area School District, 165
A.3d at 66; School District of Philadelphia, 160 A.3d at 934-35; Wattsburg Area
School District v. Wattsburg Education Association, PSEA/NEA, 884 A.2d 934, 939
(Pa. Cmwlth. 2005); Abington School District, 744 A.2d at 369-70.
               Furthermore, in Office of Attorney General v. Council 13, American
Federation of State, County and Municipal Employees, AFL-CIO, 844 A.2d 1217

sick to go on the ski trip. Id. at 978–79. Riverview School District is factually distinguishable for
several reasons, including the length of the leave, the fact that the requests for leave were twice
denied by the superintendent and then the denials were ratified by the school board and the fact
that the teachers were professional employees. Id. at 975-976. More importantly, as we have
previously observed, the “manifestly unreasonable” standard of review utilized in Riverview
School District has since been rejected by our Supreme Court and therefore that decision is no
longer binding on this Court. See School District of Philadelphia, 160 A.3d at 932 n.2, 935 n.3
(citing Pennsylvania Game Commission v. State Civil Service Commission (Toth), 747 A.2d 887,
891 n.7 (Pa. 2000)).
5
  In Abington School District, this Court held that, to exempt the type of discipline imposed from
the arbitrator’s mandate in a grievance arbitration, the CBA must contain language substantially
similar to the agreement at issue in Board of Education of the School District of Philadelphia v.
Philadelphia Federation of Teachers, AFL–CIO, 610 A.2d 506 (Pa. Cmwlth. 1992), which
provided that “the arbitrator shall have no power or authority to make any decision contrary to or
inconsistent with terms of the agreement or applicable law or which limits or interferes with the
powers and responsibilities of the District.” Abington School District, 744 A.2d at 370 n.3 (quoting
Philadelphia Federation of Teachers, 610 A.2d at 508); see also Upper Merion Area School
District, 165 A.3d at 66.

                                                 8
(Pa. 2004), our Supreme Court held that when “just cause” is not defined in a CBA,
an arbitrator may consider mitigating circumstances in evaluating the discipline
imposed. Id. at 1224–25; see also School District of Philadelphia, 160 A.3d at 933;
Wattsburg Area School District, 884 A.2d at 939. The Supreme Court concluded
that “it was entirely rational” for the arbitrator in that case to award the grievant
reinstatement without back pay and a last-chance situation instead of termination,
basing the award on three mitigating circumstances of the employee’s long service
with the employer, dissimilar discipline imposed on other employees for similar
offenses and the employee’s subsequent rehabilitation. Office of Attorney General,
844 A.2d at 1220, 1225. By allowing the arbitrator to interpret just cause “consistent
with how that term is generally understood,” the Court explained that parties
obtained the benefit of their bargain that disputes would be settled through the
binding arbitration process. Id. at 1225; see also School District of Philadelphia,
160 A.3d at 933.
             We conclude that, consistent with our limited review in labor grievance
appeals, the arbitrator’s award was rationally derived from the CBA and thus
satisfied the essence test. Under the essence test, this Court may not undertake a
review of the merits or reasonableness of the mitigating factors that the arbitrator
relied upon here. Our case law makes clear that an arbitrator is permitted to depart
from the discipline chosen by the employer except where language of the CBA
directly forbids the arbitrator from such a determination. The District does not
identify any provision in the CBA here that would limit the scope of the arbitrator’s
authority to review or modify the Grievant’s discipline. Furthermore, where the just
cause standard is undefined in the agreement, the arbitrator is also permitted to weigh
mitigating factors when interpreting whether the employer has just cause to mete out


                                          9
the selected discipline and these mitigating factors need not be derived from a
specific portion of the CBA. Just cause was not defined in the CBA in this matter,
and none of the mitigating factors that the arbitrator considered directly conflicts
with the CBA.
             Because the arbitrator’s award under review does not violate the
essence test and because the District presents no argument that the award is contrary
to an established public policy, there is no basis to disturb the arbitrator’s award.
The order of the Court of Common Pleas is affirmed.



                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge




                                         10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gateway School District,             :
                                     :
                  Appellant          :
                                     : No. 388 C.D. 2017
            v.                       :
                                     :
Teamsters Local 205                  :



                                  ORDER

            AND NOW, this 3rd day of January, 2018, the Order of the Court of
Common Pleas of Allegheny County in the above-captioned matter is hereby
AFFIRMED.




                                 __________ ___________________________
                                 JAMES GARDNER COLINS, Senior Judge
