          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rose Tree Media Secretaries &                  :
Educational Support Personnel                  :
Association - ESPA, PSEA-NEA                   :
                                               :     No 965 C.D. 2015
               v.                              :     Argued: February 8, 2016
                                               :
Rose Tree Media School District,               :
                       Appellant               :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge


OPINION
BY JUDGE SIMPSON                               FILED: March 21, 2016

               This case involves a grievance arbitration award issued under the
Public Employe Relations Act (PERA).1                 Rose Tree Media School District
(Employer) appeals two orders of the Court of Common Pleas of Delaware
County2 (trial court) upholding the award of Arbitrator Margaret R. Brogan
(Arbitrator), which reinstated S.M. (Grievant), an employee discharged for
mistreatment of a special needs student. Review of an arbitration award issued
under PERA is governed by the highly deferential “essence test” subject to a
narrow “public policy exception.” See Phila. Hous. Auth. v. Am. Fed. of State,
Cnty. & Mun. Emp., Dist. Council 33, Local 934, 52 A.3d 1117, 1120 n.5. (Pa.
2012); Pa. Turnpike Comm’n v. Teamsters Local Union No. 77 (Teamsters Local


      1
          Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§1101.101-1101.2301.

      2
          The Honorable C. Michael Green presided.
77), 87 A.3d 904 (Pa. Cmwlth. 2014). Under the essence test, a reviewing court
may vacate a PERA arbitration award only where the award is indisputably and
genuinely without foundation in, or fails to logically flow from, the underlying
collective bargaining agreement (CBA). If the essence test is satisfied, the court
may further consider whether the award violates a well-defined and dominant
public policy. Id. Discerning no error in the trial court’s refusal to consider the
evidentiary record in the arbitration proceeding, and in the court’s determination
that Arbitrator’s award was rationally derived from the CBA and did not result in
the violation of a well-defined, dominant public policy, we affirm.


                                   I. Background
                              A. November 2011 Incident
            Arbitrator found the following facts. Grievant worked for the School
District since 2000. Beginning in 2002, Grievant began working as a one-on-one
special education aide at the District’s Indian Lane Elementary School. Prior to
the November 2011 incident resulting in her discharge, Grievant worked with five
special education students.


            Eventually, Employer assigned Grievant to work with L.M. (Student),
a special education student with Down’s syndrome. Employer, however, did not
provide Grievant with any training to assist her in working with a Down’s
syndrome child.


            On November 18, 2011, Grievant met Student, who arrived at school
late. Grievant’s first duty was to take Student to his classroom. Because the class



                                         2
already started, Grievant stood with Student in the hallway for a moment. During
that time, Grievant took Student’s lunch and placed it in a cart in the hallway.
Patty Tulskie (Reading Interventionist), a parent of a Down’s syndrome child, was
also present in the hallway.


              When the time came for Student to enter the classroom, he refused.
Grievant stated she took Student’s hand and gently spoke to him.            Grievant
encouraged Student to walk in and see his friends. However, when Grievant
attempted to enter the classroom, Student dropped to the ground and lay on the
floor in a prone position.


              According to Employer, Grievant then pulled Student by his arm to
his desk, a total distance of over 20 feet. Grievant, however, did not harm Student;
he did not cry out. Further, no other children in the classroom expressed any
reaction.


              The classroom teacher, Wendy Barton (Teacher), saw Grievant
pulling Student and made no effort to intervene. Rather, Teacher continued to
teach the class. Reading Interventionist also witnessed the incident, but she did not
personally check to see if Student was alright.


              Nevertheless, Reading Interventionist complained about the incident
to Teacher.     Thereafter, Teacher reported Grievant’s conduct to Julia Davis
(Special Education Teacher). Grievant also self-reported her conduct to Special




                                          3
Education Teacher. In turn, Special Education Teacher reported the incident to the
school’s principal, William Bennett (Principal).


             After speaking with Special Education Teacher, Principal met with
Grievant, who immediately apologized and expressed remorse. Principal told her
he was disappointed with her behavior and talked to her about alternative
approaches she could employ in a similar situation.


             After talking to Grievant, Principal placed Student back in her care.
Principal stated he believed Student would be safe in Grievant’s care. Principal
also believed Grievant’s actions were not the result of anger or any attempt to hurt
Student. As a result, Student remained in Grievant’s care for the rest of the day.


             Principal reported the incident to Employer’s Director of Human
Resources, Anne Callahan (HR Director), who advised Principal she would contact
Superintendent and then get back to him.


             Later that day, HR Director told Principal to advise Grievant to attend
a meeting on the following Monday, November 21, 2011. At the end of the
meeting, HR Director placed Grievant on unpaid leave. Eight days later, HR
Director advised Grievant and her union representatives that Employer
recommended Grievant’s discharge.




                                           4
                                B. Grievance Filed
             Following Employer’s notice of intent to seek Grievant’s dismissal
from employment, her union, Rose Tree Media Secretaries & Educational Support
Personnel Association (Association), filed a grievance under the terms of Article
VI of the parties’ collective bargaining agreement (CBA). See CBA at 21-22
(Grievance Procedure); Reproduced Record (R.R.) at 28a-29a.


             In March 2012, a committee of Employer’s Board of School Directors
(Board) held a grievance hearing. Following the hearing, the Board committee
recommended Grievant be dismissed from District employment. Thereafter, the
Board discharged Grievant.


                                  C. Arbitration
             The parties then proceeded to the final step of arbitration and selected
Arbitrator to hear and decide the grievance. In January 2013, Arbitrator held a
hearing providing the parties a full opportunity to present all relevant testimonial
and documentary evidence. Following the hearing, the parties submitted briefs.


                                     D. Award
             In May 2013, Arbitrator issued her opinion and award. See R.R. at
74a-86a. In her opinion, Arbitrator framed the issue as: “Whether [Employer] had
just cause for [Grievant’s termination], and if not, what shall be the remedy?”
Arbitrator’s Op., 5/5/13 at 1; R.R. at 116a. Arbitrator noted the parties stipulated
at the hearing that she had jurisdiction to determine the remedy. Id.




                                         5
               Next, Arbitrator summarized the parties’ positions.       Employer
maintained it had just cause to dismiss Grievant because she engaged in egregious
conduct by dragging Student from the hallway to his desk inside the classroom.
Employer claimed this exposed Student to a risk of injury.


               More specifically, Employer argued Grievant’s conduct, including her
inappropriate interaction with Student, her extremely poor judgment, and her
inability to appropriately manage Student, provided a proper basis for dismissal
under Section 514 of the School Code of 1949 (School Code).3 Section 514
authorizes Employer to remove any of its officers or employees for incompetency,
neglect of duty, a violation of any of the school laws of the Commonwealth, or
other improper conduct. 24 P.S. §5-514.


               Employer maintained that Grievant’s conduct during the incident rose
to the level of incompetence or neglect of duty and constituted a violation of
school laws.      In particular, Grievant’s lack of composure and poor judgment
showed her incompetence. Grievant’s failure to nurture and assist a special needs
child, instead of dragging him on the floor, reflects a clear neglect of duty.
Employer also argued Grievant’s mistreatment of Student violated school laws.


               Consequently, Employer argued Grievant’s conduct provided just
cause for her dismissal. Thus, Employer urged Arbitrator to deny the grievance.




      3
          Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §5-514.



                                               6
             Conversely, the Association asserted Employer did not have just cause
to terminate Grievant from her position as a one-on-one aide based on the nature of
her conduct during the incident. Rather, the Association maintained Employer’s
unjustified dismissal of Grievant constituted a grossly disproportionate response to
this one incident.


             The Association further maintained the parties’ CBA specifically sets
forth a system of progressive discipline.       Therefore, the Association urged
Arbitrator to uphold the grievance and issue an order reinstating Grievant without
loss of income, benefits, seniority or retirement. The Association also requested
that Arbitrator direct Employer to remove any reference to the dismissal from
Grievant’s personnel file.


             Arbitrator determined Employer failed to meet its burden of
establishing just cause for Grievant’s discharge.     Rather, Arbitrator observed,
Grievant’s conduct warranted a lesser penalty. Arbitrator noted that the parties
granted her the ability to impose a lesser penalty in the absence of just cause for
discharge.


             In determining whether just cause for dismissal existed, Arbitrator
recognized that just cause for dismissal must be proportional to the conduct. In the
present case, the penalty of discharge was not commensurate with the proven
conduct.




                                         7
             Arbitrator first focused on the characterization of Grievant’s conduct.
Although Employer asserted Grievant pulled Student by the wrist and dragged him
for a distance of over 20 feet, the Arbitrator concluded the incident occurred in line
with the Grievant’s testimony. The Arbitrator noted the actions of Teacher and
Reading Interventionist were not consistent with Employer’s “dragging”
characterization. They neither intervened nor checked to see if Student suffered
any harm. In short, they did not see a need to attend to Student.


             Therefore, Arbitrator credited Grievant’s testimony that she took
Student by the hand and attempted to coax him into the classroom. At some point
he dropped to the ground, and Grievant continued to pull him to his desk. Grievant
did not act out of anger and did not harm Student.


             Similarly, Arbitrator observed, Principal spoke to Grievant about her
conduct and expressed his disappointment with her behavior.            Principal also
instructed Grievant as to alternative strategies if a similar incident should occur.
However, Principal did not take Grievant out of service. Rather, Principal returned
Grievant to work caring for Student. Principal testified he did not believe Grievant
would hurt Student.


             Further, HR Director, after being advised of Principal’s action, made
no change.    As a result, Grievant cared for Student for the rest of the day.
Arbitrator noted that if Grievant actually engaged in the egregious conduct alleged
by Employer, Principal would not have returned Student to her care.




                                          8
            In rejecting Employer’s position that Grievant’s conduct constituted
just cause for her dismissal, Arbitrator reasoned (with emphasis added):

                   We are left with [Grievant’s] conduct, as she
            describes. Pulling a child in this manner is not an
            acceptable practice and should not be repeated. But there
            are many factors which weigh in [Grievant’s] favor, and
            lead to the conclusion that a lesser penalty, short of
            discharge, is warranted. First, [Grievant] is a ten year
            special education aide with an unblemished work record.
            She has received nothing but positive evaluations and
            many compliments for her care of special needs children.
            Second, [Grievant] was immediately forthcoming,
            apologetic, and remorseful about her conduct, showing
            that corrective discipline would reasonably change her
            behavior. As a long-term employee without prior
            discipline, [Grievant] should be afforded that
            opportunity, and I am unconvinced that her behavior
            diminished her ability to effectively care for children
            going forward. As stated above, [Grievant] did not act in
            anger, nor has she displayed any type of bad
            temperament in caring for the children in her charge.
            [Student] was unharmed. [Grievant] exhibited that she is
            a caring aide who obviously has a special gift in dealing
            with the needs of the students.

Arbitrator’s Op. at 10-11; R.R. at 126a-27a.


            In addition, Arbitrator expressly found Grievant’s conduct did not rise
to the level of a violation of public school laws. Arbitrator’s Op. at 11; R.R. at
127a.


            Arbitrator also recognized the parties’ CBA did not limit her ability to
modify the penalty in the situation where, as here, she did not find Employer




                                         9
established just cause for Grievant’s dismissal. Id. As such, Arbitrator issued the
following award (with emphasis added):

                    In line with the above Opinion, I find that there
             was not just cause for the discharge of [Grievant] and the
             grievance is upheld. [Grievant’s] discharge shall be
             converted to a five (5) day suspension. By way of
             remedy, [Employer] shall reinstate [Grievant] to her
             former or substantially similar position, with full
             seniority, benefits and retirement, and shall make
             [Grievant] whole for her losses, including back pay and
             benefits, for the period of time from the end of her
             suspension until her reinstatement, less any substitute
             interim earnings. [Employer] shall further remove all
             references to [Grievant’s] discharge from [Grievant’s]
             records. The suspension shall run from the first day that
             [Grievant] was placed on unpaid leave.

Arbitrator’s Award, 5/5/13; R.R. at 128a.


                              E. Employer’s Appeal
             Employer filed a timely petition for appeal of the Arbitrator’s award.
Employer alleged Arbitrator’s award failed to draw its essence from the CBA, the
award failed to focus on Grievant’s mistreatment of Student and instead focused on
other employees’ response to it, and the mistreatment of Student constituted a clear
violation of public policy.


             With regard to the alleged violation of public policy, Employer
requested that the trial court review the “particular circumstances at hand and the
factual findings of the arbitrator.” City of Bradford v. Teamsters Local Union No.
110, 25 A.3d 408, 414 (Pa. Cmwlth. 2011). Citing Bradford, Employer argued that
a public policy analysis requires a full and complete review of the underlying


                                         10
dispute in order to determine whether Arbitrator’s award, if implemented, poses an
unacceptable risk to the safety of the students and the prevention of abuse.
Employer maintained this can only be accomplished by a review of the transcript
of the hearing before the Arbitrator.


                       F. Trial Court’s Bifurcated Decision
                               1. Hearing Transcript
             At the request of parties, the trial court used a bifurcated approach and
briefing schedule. First, the parties submitted briefs on Employer’s request that the
trial court review the transcript from the arbitration hearing and include it as part of
the certified record. In December 2014, the trial court issued an order denying
Employer’s request to include the transcript as part of the record for review in
Employer’s appeal. Tr. Ct. Order, 12/19/14; R.R. at 103a.


             In an opinion in support of its order, the trial court observed, under the
two-pronged essence test, the reviewing court first determines whether the issue as
defined by the arbitrator falls within the terms of the CBA.           If the issue is
embraced by the CBA and appropriately before the arbitrator, the award must be
upheld if it can rationally be derived from the CBA. To fail the essence test, the
reviewing court must determine that the award is indisputably and genuinely
without foundation in, or fails to logically flow from, the CBA. Westmoreland
Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants
Educ. Support Pers. Ass’n., 939 A.2d 855 (Pa. 2007); City of Bradford.




                                          11
             The trial court further noted that under the essence test, a reviewing
court may not intrude into the domain of the arbitrator and become embroiled in a
review of the merits, even if its interpretation of the CBA would differ from that of
the arbitrator. Westmoreland; State Sys. of Higher Educ. (Cheyney Univ.) v. State
College & Univ. Prof’l Ass’n (PSEA-NEA), 743 A.2d 405 (Pa. 1999). Given the
narrow review of the essence test, the trial court, acting as an appellate court with
limited review, cannot reexamine the evidence supporting the arbitrator’s findings
of fact. Id. Accordingly, the trial court refused to consider the hearing transcript
and documentary evidence submitted in the arbitration proceeding.




                  2. Review of Arbitration Opinion and Award
                                    i. Essence Test
             On May 7, 2015, the trial court issued an order denying Employer’s
petition for appeal of Arbitrator’s opinion and award. R.R. at 189a. In an opinion
in support of its order, the trial court noted the parties stipulated that Arbitrator had
authority under the CBA to determine the issue of just cause for Grievant’s
termination. At the hearing, the parties stipulated that Arbitrator had jurisdiction to
determine this issue. This satisfied the first prong of the essence test.


             Turning to the second prong, the trial court determined Arbitrator’s
opinion and award was rationally derived from the CBA. In other words, the
award had its foundation in, and logically flowed from, the CBA. (Cheney Univ.)
In particular, Arbitrator determined the facts at issue in the grievance, considered
the parties’ arguments, and concluded Employer did not have just cause to



                                           12
terminate Grievant.    The trial court also noted the parties bargained for an
undefined and unlimited just cause provision. See Article III, Section C of the
CBA (Due Process); R.R. at 15a, which provides (with emphasis added):

             1. [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.

             2. In determining whether cause exists for dismissal, that
             term shall specifically include, but shall not be limited to,
             just cause, or any conduct or action by an employee that
             would lawfully provide a proper basis for dismissal.

             Because the CBA does not define or limit Arbitrator’s authority to
interpret and apply the term “just cause for dismissal” to the facts of the case, the
trial court determined Arbitrator’s award had its foundation in, and logically
flowed from, the CBA.


                            ii. Public Policy Exception
             In addition, the trial court determined Arbitrator’s award did not
violate any well-defined and dominant public policy.             Westmoreland.    In
addressing this narrow exception to the essence test, the trial court noted the party
asserting the public policy violation has the burden of proving it. The appropriate
test is not whether the grievant’s actions or conduct violate a public policy, but
whether the arbitrator’s award violates public policy. Shamokin Area Sch. Dist. v.
Am. Fed. of State, Cnty. and Mun. Emp., Dist. Council 86, 20 A.3d 579 (Pa.
Cmwlth. 2011).


                                          13
             Here, the trial court observed, Arbitrator’s reinstatement of Grievant,
subject to a five-day suspension, did not violate any public policy concerning the
protection of students from violence on school property. Arbitrator specifically
found that Grievant did not harm Student, that she did not act out of anger, and that
she was forthcoming, apologetic and remorseful about her conduct.                See
Arbitrator’s Op. at 10; R.R. at 126a. Arbitrator further found that the corrective
discipline imposed should change Grievant’s behavior and that she would be able
to effectively care for children going forward. Arbitrator’s Op. at 10-11; R.R. at
126a-27a.   Consequently, the trial court determined there is no public policy
requiring the court to vacate Arbitrator’s Award. Employer appeals.
                                   II. Discussion
                             A. Arbitrator’s Record
                                   1. Argument
             Employer contends the trial court erred or abused its discretion when
it denied Employer’s request that the transcribed record before Arbitrator,
including all documentary evidence and exhibits, be made a part of the trial court’s
record for review, where Employer alleged Arbitrator’s award violated public
policy. Although an appellate court should not generally engage in the review of
the merits of a grievance, Employer contends a limited exception to this highly
deferential standard has been embraced where, as here, the award violates an
express public policy. Westmoreland.


             Employer further asserts that where the crux of the matter lies in the
pure application of the public policy exception to the essence test, the Supreme



                                         14
Court holds that the applicable standard of review is de novo “and our scope of
review is plenary.” Phila. Hous. Auth., 52 A.3d at 1121. Therefore, because
Arbitrator’s award implicates the public policy exception, Employer claims the
trial court erred when it refused to review this case de novo and examine the notes
of testimony from the arbitration hearing.

             Employer notes Pennsylvania courts have acknowledged a well-
defined and dominant public policy against violence in schools. See Shamokin
Area Sch. Dist. (recognizing there is a distinct public policy of protecting students
from violence on school property which is derived from the School Code). In
Shamokin, this Court recognized that reinstating a school employee who actually
struck a student on school grounds could trigger the established public policy of
protecting students from violence on school property. However, that public policy
was not implicated in Shamokin by the reinstatement of a groundskeeper who
vented about his supervisor by screaming about him in a garage where no students
were present. In Shamokin, the school district conditioned the groundskeeper’s
reinstatement upon participation in an anger management program and the
completion of one year on probation.


             Employer also cites Bethel Park School District v. Bethel Park
Federation of Teachers, Local 1607, 55 A.3d 154 (Pa. Cmwlth. 2012). In Bethel
Park, this Court determined an arbitration award that reinstated a teacher who
violated a formal improvement plan and repeatedly engaged in inappropriate
touching of female students violated school district policy in addition to state and
federal statutes prohibiting sexual harassment of students.




                                         15
             Employer posits that in Bethel Park, Shamokin and Westmoreland,
the courts reviewed the merits of the underlying grievance arbitration and assessed
the factual record presented to the arbitrator in order to determine whether the
award implicated, and possibly abrogated, a public policy cited by the school
district. In light of these cases, Employer asserts the trial court erred and abused its
discretion by not reviewing the merits of Arbitrator’s award.


             Further, Employer contends the trial court erred by refusing to review
the testimony, documentary evidence, exhibits and Arbitrator’s findings of fact.
Employer cites City of Bradford, where this Court, applying the Supreme Court’s
decision in Westmoreland, recognized that application of the public policy
exception requires the following three-step analysis (with emphasis added):

             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
             consideration of supposed public interests.’ 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.

City of Bradford, 25 A.3d at 414 (citation omitted).


             Employer asserts the third prong of public policy analysis, which
requires consideration of the particular circumstances at hand, mandates that the




                                          16
trial court review the hearing transcript and the arbitrator’s findings of fact to
determine whether the arbitrator’s award poses a risk to public policy.


             Summarizing, Employer asserts that in asking the trial court to review
the matter de novo, Employer did not seek to retry the factual case on appeal, or
ask the trial court to substitute its judgment for that of Arbitrator. See Appellant’s
Br. at 14. Rather, pursuant to Westmoreland and City of Bradford, the trial court is
to review the matter de novo to ensure the arbitrator’s findings do not violate
public policy. In other words, application of the public policy exception requires a
full and complete review of the transcript before the arbitrator, and a review of the
merits of the dispute to determine whether the award poses an unacceptable risk to
the established policies ensuring the safety of the students and the prevention of
violence. Thus, Employer contends the trial court erred by refusing to review the
transcribed hearing record in the arbitration proceeding.


                                     2. Analysis
             In Bethel Park, we noted that reviewing courts are prohibited from
second-guessing an arbitrator’s findings of fact and may not reject them simply
because they disagree with them. Rather, the exclusive focus under the essence
test is the arbitrator’s interpretation of the CBA. Therefore, an arbitrator’s findings
of fact are not reviewable on appeal as long as the arbitrator construed or applied
the CBA. Pa. State Sys. of Higher Educ. v. Ass’n of Pa. State Coll. & Univ.
Faculties, 98 A.3d 5 (Pa. Cmwlth. 2014); Luzerne Intermediate Unit No. 18 v.
Luzerne Intermediate Educ. Ass’n, PSEA/NEA, 89 A.3d 319 (Pa. Cmwlth. 2014).
As such, a transcript of the arbitration hearing is not necessary to appellate review



                                          17
under the essence test, which is limited to issues of law.          Thus, we reject
Employer’s contention that a court must conduct a de novo review of the
arbitrator’s findings in cases subject to the essence test. Furthermore, evidence
bearing no relation to the issues raised on appeal should not be included in the
reproduced record. Sims v. Pa. R.R. Co., 123 A. 676 (Pa. 1924); Pa. R.A.P. 2152.


             Therefore, in resolving the issue of whether an arbitrator’s award
violates a well-defined, dominant public policy, there is usually no reason for a
reviewing court to reexamine the transcript of the arbitrator’s hearing and
reevaluate the facts.    Rather, only the award itself, and the legal authority
supporting the implication of the public policy, are relevant to a public policy
exception inquiry. To hold otherwise would result in routine review of the entire
factual record every time a public employer raises the public policy exception.


             Here, the only part of the record necessary for public policy review is
Arbitrator’s opinion and award. Employer does not specify any material which
might be absent from the opinion and award but necessary for public policy
review. In these circumstances, no error by the trial court is evident.


                            B. Public Policy Exception
                                    1. Argument
             Employer also contends the trial court erred or abused its discretion
when it denied Employer’s appeal and confirmed Arbitrator’s award where the
award violated the dominant, well-defined and ascertainable public policy
requiring the protection and safety of students. In confirming Arbitrator’s award,



                                         18
Employer asserts Arbitrator fashioned a remedy that required Employer to sanction
the physical mistreatment of disabled children and provided no tools to ensure that
Grievant would not repeat her unacceptable behavior. Arbitrator did not require
Grievant to participate in an improvement plan or undergo classroom observation
to ensure that she did not repeat the same violent behavior.            See Colonial
Intermediate Unit #20 v. Colonial Intermediate Unit #20 Educ. Ass’n (Pa.
Cmwlth., No. 839 C.D. 2014, filed February 9, 2015), 2015 WL 5162132
(unreported opinion) (arbitrator imposed 53-day suspension for grievant’s
inappropriate, yet remediable behavior, with the additional requirements that the
grievant successfully complete a formal improvement plan created by the employer
and designed to address employer’s specific expectations, including the use of
positive behavioral supports). In short, unlike the present case, the award in
Colonial Intermediate addressed the employer’s concerns and did not pose an
unacceptable risk to any well-defined, dominant school law or policy.


            Here, Employer asserts, Arbitrator merely suspended Grievant for five
days with no improvement plan. Employer argues Grievant’s minimal suspension
and unconditional reinstatement violates a well-defined public policy requiring the
protection of students, especially disabled and special needs children, from
violence and mistreatment in schools.        See Phila. Hous. Auth. (arbitrator’s
reinstatement of public employee who repeatedly engaged in acts of inexcusable
and assaultive sexual harassment, with back pay, and without any sanctions,
violated the dominant and well-defined public policy prohibiting sexual
harassment in the workplace). Therefore, Employer contends the trial court erred
and abused its discretion by affirming Arbitrator’s award.



                                        19
             Employer further argues the trial court, in affirming Arbitrator’s
award, improperly focused on the reaction of Student and several bystanders to
Grievant’s misconduct rather than the misconduct itself. Because Student did not
cry, and none of the bystanders intervened or reacted, Arbitrator dismissed
Grievant’s misconduct as insufficiently egregious. Employer asserts Arbitrator’s
reasoning essentially blames Student for his lack of crying or a physical injury. It
is unreasonable, Employer urges, to require that a student sustain an actual injury
before allowing a school district to enforce its obligation to protect its students.


             To that end, Employer notes the reviewing court in Bethel Park did
not discuss whether the seventh grade female students were actually offended by
the grievant’s inappropriate behavior in determining whether the arbitrator’s award
reinstating the grievant violated the public policy against sexual harassment.


             Therefore, Employer reasons, Arbitrator should have determined that
Grievant’s conduct in pulling Student, a special needs child, across the floor for 20
feet implicated an important public policy prohibiting the mistreatment of children
in schools. Consequently, even accepting the facts Arbitrator found, the trial court
erred in determining Arbitrator’s award did not violate a dominant, well-defined
public policy against the mistreatment of students. Bethel Park.


                                      2. Analysis
             Employer does not contest the trial court’s conclusion that
Arbitrator’s award satisfies both prongs of the essence test. Therefore, we need



                                          20
only decide whether Arbitrator’s award violates a well-defined and dominant
public policy.


             Employer’s public policy argument lacks merit.         Arbitrator found
Grievant’s version of the incident more credible than that offered by Employer.
Although Arbitrator found Grievant’s actions, in pulling Student, to be
unacceptable, Arbitrator did not find those actions motivated by anger or intent to
harm. In addition, Arbitrator did not find that Grievant’s conduct harmed or
abused Student, or violated school laws. See Arbitrator’s Op. at 10-11; R.R. at
126a-27a. As such, Arbitrator essentially determined Grievant did not violate any
well-defined or dominant public policy involving school violence.


             Arbitrator also determined Grievant’s conduct did not constitute just
cause for her dismissal. In accord with the CBA, it is solely within Arbitrator’s
province to find just cause for discipline under the facts of the case. Office of the
Attorney General v. Council 13, Am. Fed. of State, Cnty. and Mun. Emp., AFL-
CIO (Council 13), 844 A.2d 1217 (Pa. 2004). This includes the authority to
modify discipline. Abington Sch. Dist. v. Abington Sch. Serv. Personnel Ass’n,
744 A.2d 367 (Pa. Cmwlth. 2000).


             Further, an arbitrator possesses the authority to fashion remedies
necessary to further the intended essence of a CBA. Greater Latrobe Area Sch.
Dist. v. Pa. State Educ. Ass’n, 615 A.2d 999 (Pa. Cmwlth. 1992). As such,
Arbitrator had the discretion to modify Employer’s discipline of Grievant from
dismissal to a limited suspension.



                                         21
             We also note that the cases cited by Employer, particularly
Philadelphia Housing Authority, Bethel Park and Colonial Intermediate, are
factually distinguishable in that they involve repeated and significantly more
egregious conduct. Philadelphia Housing Authority, and to a lesser extent, Bethel
Park, involved repeated acts of deliberate sexual harassment despite repeated
warnings. Here, Arbitrator found Grievant, by pulling or dragging Student to his
desk, engaged in one act of unacceptable behavior for which she was immediately
apologetic and remorseful. Arbitrator also found it unlikely that Grievant would
ever repeat her actions.


             Colonial Intermediate is likewise distinguishable.      There, a special
education teacher hung an offensive sign on a special needs student during class
after learning the student repeatedly struck a goat while on an earlier class trip to a
petting zoo. When another teacher removed the offensive sign because the student
became upset and began crying, the grievant put the offensive sign back on the
student. The arbitrator ultimately found in part that the grievant misapplied a
behavior modification technique. In reinstating the grievant, the arbitrator did not
endorse the grievant’s misbehavior, but noted that the district failed to sufficiently
educate the grievant about its policies and expectations. As such, the arbitrator
imposed a 53-day suspension and crafted a remedy including additional training
and an improvement plan.


             In the present case, Arbitrator determined a 5-day suspension was
sufficient to ensure that Grievant, a 10-year employee with a prior unblemished



                                          22
record, would not repeat her misconduct.        Arbitrator observed that Principal
instructed Grievant as to alternative strategies if a similar incident should occur.
Also, Arbitrator specifically found that the corrective discipline imposed would
most likely change Grievant’s behavior, and that she would be able to effectively
care for children going forward. Arbitrator’s Op. at 10-11, R.R. at 126a-27a.


                                  III. Conclusion
             For the above reasons, we find no error or abuse of discretion in either
the trial court’s refusal to consider the evidentiary record in the arbitration
proceeding or the court’s determination that Arbitrator’s award did not result in the
violation of a well-defined, dominant public policy. Accordingly, we affirm.




                                       ROBERT SIMPSON, Judge




                                         23
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rose Tree Media Secretaries &          :
Educational Support Personnel          :
Association - ESPA,PSEA-NEA            :
                                       :   No 965 C.D. 2015
            v.                         :
                                       :
Rose Tree Media School District,       :
                       Appellant       :


                                   ORDER

            AND NOW, this 21st day of March, 2016, for the reasons stated in the
foregoing opinion, the order of the Court of Common Pleas of Delaware County is
AFFIRMED.




                                    ROBERT SIMPSON, Judge
