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Robert L. McTiernan

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Co-chair, Labor & Employment Group

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PENNSYLVANIA COMMONWEALTH COURT REINSTATES ARBITRATOR’S DECISION REDUCING A DISCHARGE TO A 180 DAY SUSPENSION WITHOUT PAY

Robert L. McTiernan, Esq., rmctiernan@tuckerlaw.com, (412) 594-5528

Clarion Cty. Career Ctr. v. Clarion Cty. Career Ctr. Education Assoc., 2022 WL 17574178, 2022 Pa. Commw. Unpub. LEXIS 541 (Pa. Commw. 2022)

PA Commonwealth Court Case Background

Grievant was employed for 17 years as an automotive technology instructor at the Clarion County Career Center, a vocational-technical school.  His discharge arose out of a complaint by a student that the Grievant’s conduct towards her was inappropriate.  Following an investigation, the Center discharged the instructor based on eleven separate charges.  Following four days of hearing, a labor arbitrator sustained six of the eleven charges.  Specifically, the Arbitrator confirmed that the Grievant failed to ensure students with IEPs and 504 plans received appropriate instruction in his classroom.  The Arbitrator held further that the Grievant behaved inappropriately towards a female student, staring at her, while commenting on her jeans, as well as touching her hand and pulling her close to him.  With respect to another student, the instructor behaved inappropriately by commenting on how her uniform pants fit her and inquiring about her personal activities out of school.  The Arbitrator also sustained the charge that the Grievant told some students they were “too dumb” or “not smart enough” for his automotive shop class and that, on occasion, he left the class unattended.

The Arbitrator, however, concluded that the Grievant’s conduct did not rise to the level of sexual harassment and that discharge was too harsh a penalty in light of his “consistent satisfactory annual evaluations and his disciplinary record with only one serious incident of misconduct in 17 years.”  In lieu of discharge, the Arbitrator substituted a penalty of a thirty-day suspension without pay for each of the six charges he sustained, resulting in a total cumulative suspension of 180 days without pay, and ordered the Grievant reinstated to his job. 

The Center appealed to the Court of Common Pleas, which reversed the Arbitrator’s award and sustained the discharge.  Citing the Commonwealth Court’s decision in Slippery Rock University of Pennsylvania v. Association of Pennsylvania State College and University Faculty, 71 A.3d 353 (Pa. Cmwlth. 2013), the trial court concluded that the Grievant’s conduct “visibly implicates and violates…public policies [prohibiting sexual harassment and discrimination against individuals with disabilities.]”  The trial court held such conduct poses a “substantial risk of undermining the Commonwealth’s public policy prohibiting such behavior” and potentially jeopardizes future students by exposing them to discrimination and harassment.

The Commonwealth Court reversed the trial court’s decision, and reinstated the Arbitrator’s award.  The Court cited previous rulings that the decisions of arbitrators should be “afforded great deference.”  Reasoning that the public policy exception to deference to arbitration awards is a narrow one and turns on whether the remedy reached by the Arbitrator implicates public policy, the Commonwealth Court decided that the imposition of a 180-day unpaid suspension – the equivalent of one full school year – constituted “substantial discipline” for conduct that “the Arbitrator did not find… constituted sexual harassment or unlawful discrimination.”

The Commonwealth Court concluded that a court “may not infer that public policy demands only the most serious penalty under these circumstances where an Arbitrator has imposed substantial discipline.”  As a consequence, the Commonwealth Court held the trial court erred by vacating the award.

Practical Advice Based on Case Findings

It is clear from the facts recounted by the Commonwealth Court that the Career Center had ample reason for concern about the Grievant’s conduct and an understandable basis for concluding that he should no longer be a member of the faculty.  Nevertheless, the Commonwealth Court’s holding reaffirms the risk of appealing an arbitrator’s decision to reinstate a discharged public employee.  The Grievant was discharged on December 19, 2017. By the time the Arbitrator issued his award, on February 18, 2020, two years and two months had already passed and, according to the award, the Center already owed the Grievant some 20 months of back pay.  The delays resulting from the Center’s successful appeal to Common Pleas Court and the subsequent appeal to and reversal by the Commonwealth Court on December 12, 2022, added another 20 months of back pay for a total of more than three years of back pay owed to the Grievant.  In deciding whether to appeal an award reinstating a discharged employee, an employer must balance the potential cost versus the limited chances of success. Generally, compliance with the award and reinstatement will be the sensible option in all but the most egregious cases.

For more information, contact Bob McTiernan at (412) 594-5528 or click here for more information about Bob.

May 31, 2023

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