Opinion
No. 1940 C.D. 2011
07-16-2012
East Stroudsburg Area School District, Appellant v. East Stroudsburg Area Education Support Professional Association PSEA/NEA
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
The East Stroudsburg Area School District (District) appeals from the Order of the Court of Common Pleas of Monroe County (trial court), denying District's Petition to Vacate an Arbitration Award (Petition). The Arbitration Award (Award) sustained in part and denied in part a grievance filed by the East Stroudsburg Area Education Support Professional Association PSEA/NEA (Association) on behalf of its member, bus driver Teresa Greenway (Employee). The Arbitrator determined that the District's termination of Employee was excessive in view of mitigating factors, and so converted the termination into a disciplinary suspension of eighteen months without pay or benefits, and reinstated Employee.
The facts as found by the Arbitrator are as follows. Employee was a bus driver for the District and received a citation in the mail for failing to yield while making a left turn in violation of Section 3322 of the Vehicle Code, 75 Pa. C.S. § 3322, at the intersection of Route 447 and Beartown Road on September 24, 2009, while driving her assigned bus run. The traffic offense carried a fine of $25.00 and three points but no license revocation or suspension. Employee was unaware that she had been involved in any incident occurring on September 24, 2009, until she received the citation in the mail, approximately two weeks later. The intersection where the incident occurred was considered to be dangerous. There were no students on the bus at the time of the incident, no damage to the bus, and Employee reported the citation to the District upon her receipt of it. No police officer was present at the scene or observed the incident. The citation had not been filed until October 5, 2009. The District suspended Employee with pay, effective the day she received the citation, for violating Section W of the District's Handbook of Policies and Procedures (Handbook). The District additionally informed Employee that she had violated Section K of the Handbook, which requires the Reporting of Accidents, but later dropped this allegation, conceding there was no failure on Employee's part to report the incident. On November 10, 2009, Employee challenged the traffic citation before a magisterial district judge and was found guilty. Employee appealed the traffic violation to the trial court and, on June 23, 2010, the trial court found Employee guilty of the traffic offense of failure to yield in violation of Section 3322 of the Vehicle Code. (Award at 3-4, 10-11, R.R. at a80-a81, a87-a88.)
Section 3322 of the Vehicle Code provides:
Vehicle turning left. The driver of a vehicle intending to turn left within an intersection or into an alley, private road or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is so close as to constitute a hazard.75 Pa. C.S. § 3322.
Section W of the Handbook, titled Fines and Citations, provides as follows:
If you are cited or fined for any reason within the scope of your job, i.e., spot inspections, YOU are responsible for paying them. The [District] has provided instruction and training that is reviewed every school year. There is no reason for fines or citations associated with doing your job. If you are issued a citation which goes to court and you are found guilty, this will result in termination.(Handbook, Section W, R.R. at a109 (emphasis in original).)
The District and Association are parties to a collective bargaining agreement (CBA) dated July 1, 2006, which provides that "[n]o bargaining unit employee shall be disciplined or discharged except for just cause." (CBA, Art. XXXIV, R.R. at a41.) However, the Handbook, which Employer unilaterally adopted after the CBA was entered into, had been in existence for about three years at the time of the traffic incident and provides: "If you are issued a citation which goes to court and you are found guilty, this will result in termination." (Handbook, Section W, R.R. at a109 (emphasis in original).) After the magistrate found her guilty, Employee appealed to the trial court for a de novo hearing. Pending the outcome of her appeal to the trial court, the District suspended Employee's pay. After the trial court found Employee guilty, the District terminated her employment pursuant to Section W of the Handbook. (Award at 2-4, R.R. at a79-a81.)
The Association filed a grievance on Employee's behalf, which was denied. Employee appealed, and arbitration was scheduled pursuant to Section 903 of the Public Employe Relations Act, 43 P.S. § 1101.903. On September 2, 2010, a hearing on the grievance took place before the mutually agreed upon Arbitrator, who stated that the issue, as presented and agreed to by the parties, was the following: "[D]id the . . . District have just cause to terminate [Employee]. If not, what shall the remedy be?" (Arbitration Hr'g Tr. at 7, S.R.R. at 25B.) Neither party objected to this stipulation, and the Arbitrator re-confirmed that the parties themselves stipulated that a just cause standard should be applied in this case. (Award at 8-9, R.R. at a85-86.) The Arbitrator noted that the District's rule required termination, regardless of any circumstances, but that this rule conflicted with the just cause provision of the CBA. Stating that he would follow the guidelines for an arbitrator's discretion as set forth by this Court in County of Bedford v. Pennsylvania Social Services Union, SEIU, AFL-CIO, Local 668, 814 A.2d 866, 870 n.11 (Pa. Cmwlth. 2003) and York County Transportation Authority v. Teamsters Local Union #430, 746 A.2d 1208, 1217-1218 (Pa. Cmwlth. 2000), the Arbitrator examined the facts to determine if there were any mitigating circumstances to warrant a reduction in the mandated penalty for a court conviction of a traffic citation. On May 25, 2011, nearly eighteen months after Employee was discharged, the Arbitrator issued the Award converting the termination into a disciplinary suspension, without pay or benefits, other than maintaining seniority, for the time that she had been suspended. The Arbitrator found that the employment termination was inappropriate in view of all the circumstances and that the "punishment . . . did not fit the crime." (Award at 11, R.R. at a88.) The District filed the Petition, which the trial court denied, concluding that the issue presented to the Arbitrator fell within the CBA, the Award was reasonably drawn from the essence of the CBA, and that the Award did not violate public policy. The District now appeals to this Court.
Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.903.
In the District's appeal to the trial court, Association filed an Affidavit that included a statement that the parties stipulated to the issue as framed by the Arbitrator during the arbitration hearing. (Affidavit ¶ 2, S.R.R. at 2B.)
Employee lost more than eighteen months of pay during her disciplinary suspension from approximately October 2009 to May 25, 2011. (Award at 3-4, 13, R.R. at a80-81, a90.)
The Pennsylvania State Education Association has filed a brief in support of the Association's position in this appeal as amicus curiae.
On appeal, the District argues that the trial court erred: (1) in finding that the Award draws its essence from the parties' CBA; and (2) in concluding that the Award does not violate public policy.
The District first argues that the Award failed to draw its essence from the CBA and was not rationally derived from the CBA, citing Midland Borough School District v. Midland Borough Education Association, 532 Pa. 530, 540, 616 A.2d 633, 638 (1992) (providing that an arbitrator may not mandate "a remedy being fashioned well beyond the temporal parameters by which the parties to the collective bargaining agreement agreed to be bound"). The District contends that the Arbitrator failed to identify any particular provision of the CBA that Employer violated by its termination of Employee's employement. The District maintains that the Arbitrator could not award a remedy that exceeded the four corners of the CBA and that the Award is contrary to law because it strikes down a District rule. The District argues that, in his interpretation of the CBA's provisions, the Arbitrator effectively rewrote the District's long-standing policy when he struck down Section W, an action which the District contends was outside the scope of the Arbitrator's duties, which are limited to interpreting the CBA, not adding to or subtracting from it. (CBA, Art. V, ¶ E, R.R. at a20.) The District argues that Employee's violation of Section W of the Handbook, a rule it considers to be reasonable and necessary to guarantee the safety of students and the public, controls and requires her employment termination. The District asserts that it considers the question before the Arbitrator to have been whether Employee, who violated a rule, was dismissed for just cause. According to the District, the Arbitrator's decision is not reasonably derived from the CBA because the Award does not explain the "disconnect" between the Employee's rule violation, the nexus between the District's policy on employment termination, protecting student safety, and the decision to reduce the discipline.
We begin our review by noting that, in reviewing an arbitrator's award, this Court applies a "very deferential standard of review," referred to as the essence test, in which we "will vacate that award only where it 'indisputably and genuinely is without foundation in, or fails to logically flow from, the collective bargaining agreement.'" Office of Attorney General v. Council 13, American Federation of State, County & Municipal Employees, AFL-CIO, 577 Pa. 257, 266, 844 A.2d 1217, 1223 (2004) (quoting State System of Higher Education (Cheyney University) v. State College and University Professional Association (PSEA-NEA), 560 Pa. 135, 150, 743 A.2d 405, 413 (1999)). Our limited review examines whether the decision can be rationally derived from the CBA and whether an arbitrator's award could be vacated if there is a violation of the public policy of the Commonwealth. Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA, 595 Pa. 648, 665, 939 A.2d 855, 865 (2007). An arbitration award should be upheld under the essence test if: (1) "the issue as properly defined is within the terms of the" CBA; and (2) the arbitrator's award can be rationally derived from the CBA. Cheyney University, 560 Pa. at 150, 743 A.2d at 413.
Under the first prong of the essence test, we examine whether the underlying dispute falls within the terms of, or is encompassed by, the CBA. Here, the CBA states: "[n]o bargaining unit employee shall be disciplined or discharged except for just cause." (CBA, Art. XXXIV, R.R. at a41.) Where a CBA provides that discipline or discharge is conditioned upon just cause and just cause is not defined in the CBA, the Arbitrator has the authority to interpret the CBA to determine whether there was just cause for discharge in a particular case. Office of Attorney General, 577 Pa. at 269, 844 A.2d at 1224. However, this Court need not address this prong of the essence test because the parties themselves have agreed that the issue before the Arbitrator was whether the Employee was terminated for just cause and, if not, what the remedy should be. Therefore, there is no dispute that the first prong of the essence test has been met.
Under the second prong of the essence test, we will uphold the Award if the Arbitrator's interpretation can be rationally derived from the CBA. Wattsburg Area School District v. Wattsburg Education Association, PSEA/NEA, 884 A.2d 934, 937 (Pa. Cmwlth. 2005). This "[C]ourt will only vacate an arbitrator's award where the award indisputably and genuinely is without foundation in, or fails to logically flow from, the [CBA]." Id. (quoting Cheyney University, 560 Pa. at 150, 743 A.2d at 413) (alteration in original). "Strict adherence to the essence test is mandated by the Commonwealth's strong preference for swift and efficient means of settling disputes arising under the CBA." Id. at 937.
The Supreme Court has explained that "the concept of just cause as it is used in labor relations, is not capable of easy and concrete definition." Office of Attorney General, 577 Pa. at 269, 844 A.2d at 1224. The Supreme Court noted that "[a] just cause provision . . . is a negotiated form of limited job security that to a degree restricts the employer's otherwise unfettered right to discharge and discipline employees." Id. (footnote omitted). Although just cause does not have an exact definition, "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," are "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." Id. at 269, 844 A.2d at 1224-25. In Office of Attorney General, the Supreme Court upheld the arbitrator's decision, in which the arbitrator found that the employee was not discharged for just cause, noting that it was rational for the arbitrator to interpret the undefined just cause provision of the CBA to permit consideration of mitigating factors. Id. at 270, 844 A.2d at 1225. Accordingly, if a CBA contains an undefined just cause provision, an arbitrator can review the penalty, consider mitigating factors, and adjust the penalty accordingly. Id. at 270-71, 844 A.2d at 1225.
Accord Wattsburg, 884 A.2d at 936-37 (holding that, where a CBA contains an undefined "just cause" provision, an arbitrator can determine whether there was just cause for dismissal by considering mitigating factors and adjusting the penalty accordingly); Norristown Area School District v. Norristown Educational Support Personnel Association, 847 A.2d 795, 799 (Pa. Cmwlth. 2004) (same); Philadelphia Housing Authority v. Fraternal Order of Housing Police, 811 A.2d 625, 630 (Pa. Cmwlth. 2002) (same); Blue Mountain School District v. Soister, 758 A.2d 742, 745 (Pa. Cmwlth. 2000) (same); School District of Springfield Township v. Springfield Township Educational Support Personnel Association, 711 A.2d 602, 605-06 (Pa. Cmwlth. 1998) (same); McKeesport Area School District v. McKeesport School Service Personnel Association, 585 A.2d 544, 546 (Pa. Cmwlth. 1990) (same). --------
Here, the CBA does not define just cause, it merely states that "[n]o bargaining unit employee shall be disciplined or discharged except for just cause." (CBA, Art. XXXIV, R.R. at a41.) Like the arbitrator in Office of Attorney General, the Arbitrator here considered mitigating factors in interpreting the CBA's just cause provision. These mitigating factors included: Employee's unblemished work record with no prior discipline; the dangerous nature of the intersection; and that no students were on the bus and no damage to the bus occurred. The Arbitrator also found it troubling that the Handbook apparently punished Employee, at least in part, for defending herself in court. (Award at 10-12, R.R. at a87-a89.) Considering these factors, the Arbitrator concluded that Employee's punishment, discharge, was excessive and reinstated Employee without eighteen months of back pay or benefits. Based on Office of Attorney General, we find that the Award here stems from the Arbitrator's rational interpretation of the CBA's undefined just cause provision and conclude that the Award meets the second prong of the essence test. Because we have found that the Award was rationally derived from the CBA, it must be upheld unless it contravenes public policy. Westmoreland, 595 Pa. at 666, 939 A.2d at 865-66.
The District argues that the Award contravenes the public policy exception to the essence test because there is a recognized public policy in ensuring student safety, which Employee's actions endangered. District maintains that Section W of the Handbook ensures student safety by establishing rules that contribute toward a safe environment for those students utilizing District transportation. The District asserts that the Award places the District in the position of having to guess when dismissal is warranted because a clear rule would no longer exist. Without a clear rule, the District argues, the test becomes not whether Employee's conduct violated an established rule, but whether the Award contravenes an established public policy and places the District in the position of bargaining over safety rules that are a subject of managerial discretion.
When reviewing whether an arbitration award contravenes public policy, we must keep in mind that the asserted "public policy . . . 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 666, 939 A.2d at 866. We apply the three-step analysis set forth in City of Bradford v. Teamsters Local Union No. 110, 25 A.3d 408, 414 (Pa. Cmwlth. 2011), to determine whether the public policy exception applies. "First, the nature of the conduct leading to the discipline must be identified." Id. Second, a determination must be made regarding whether that conduct implicates a public policy that is "well-defined, dominant, and ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id. (quoting Westmoreland, 595 Pa. at 666, 939 A.2d at 866. Third, this Court must determine if the 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" in view of the circumstances and the Arbitrator's factual findings, keeping in mind that the Arbitrator has the authority to consider mitigating factors to reduce a penalty if that penalty is too severe in view of those mitigating factors. Id.
In examining whether any public policy has been implicated, we recognize the necessary balance between the public employer's duty to protect the safety of the public and the fair treatment of public employees through prompt resolution of labor disputes through binding arbitration. Id. at 415. In City of Bradford, the municipality terminated an employee for stealing cash while performing his duties as a trash collector, the arbitrator reversed the employment termination, reinstated the employee, and the employer appealed, arguing that the award violated public policy. This Court determined that the first and second prongs of the public policy test were met, but not the third. We, therefore, upheld the award reinstating the employee, noting the mitigating factors considered by the arbitrator: the employee's good work history, the single infraction, the impulsive nature of the infraction, and that restitution had been made. Id. at 414-16. In Shamokin Area School District v. American Federation of State, County and Municipal Employees District Council 86, 20 A.3d 579, 580-83 (Pa. Cmwlth. 2011), we noted that there were no findings by the arbitrator that an employee who made threats to supervisors had impaired student safety, even though an employee's conduct was "highly inappropriate." In the case before us, we note that, as in City of Bradford, there are mitigating factors present and, as in Shamokin Area School District, there are no findings by the Arbitrator that student safety was impaired in any way, even though the Arbitrator recognized that any traffic infraction, no matter how minor, must be taken very seriously.
In this case, by reinstating Employee without pay or benefits, the Award essentially suspended her without pay for approximately eighteen months. (Award at 13, R.R. at a90.) The Arbitrator properly considered as mitigating factors that the incident was a minor traffic infraction, Employee had a perfect record until the infraction occurred, no students were on the bus, there was no damage to the school bus, and Employee did not know there was an infraction until she received the citation in the mail. Under the facts of this case, as in City of Bradford, the Award does not pose an unacceptable risk of undermining public policy because her eighteen month suspension without pay is a heavy penalty when considered with the mitigating factors. As in City of Bradford, there is no unacceptable risk that undermines the safety policy and causes the District to breach its legal obligations. We recognize that the District correctly stresses that safe driving by school bus drivers is necessary for the safety of children and the public at large, and is an important public interest, as is the need to comply with the Vehicle Code when operating a school bus. However, the discipline that includes Employee's eighteen-month suspension without pay or benefits ensures that the District's policy of promoting student safety is met. The District can continue to discipline its bus drivers in accordance with the "just cause" provision of the CBA on a case-by-case basis which will "permit[] the exercise of discretion in the necessary balance between public safety [and the] fair treatment of employees." (Trial Ct. Op. at 12.) Accordingly, the public policy exception is not applicable here.
Because the Award satisfies the essence test and does not violate public policy, we affirm the Order of the trial court.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, July 16, 2012, the Order of the Court of Common Pleas of Monroe County, entered on September 28, 2011, in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge