IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Upper Merion Area School District, :

:

Appellant :

:

v. : No. 887 C.D. 2015

: Argued: February 8, 2017

Teamsters Local #384 :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION BY JUDGE WOJCIK FILED: June 23, 2017

Upper Merion Area School District (the District) appeals from the 

April 28, 2015 order of the Court of Common Pleas of Montgomery County (trial 

court) denying the District’s petition to vacate an arbitration award that sustained

the grievance of Sheena Boone-East (Grievant) in part and directed her 

reinstatement as a school bus driver for the District. We affirm.

Grievant began her employment with the District as a school bus 

driver in November 2011. At all relevant times, Grievant was a member of 

Teamsters Local #384 (Union), which is the exclusive bargaining agent for all 

school bus drivers in the District. The District and the Union were parties to a 

collective bargaining agreement with a term that began on July 1, 2011, and 

continued through June 30, 2016 (CBA). 
2

Section 16.1(3) of the CBA states that the District has the right to 

immediately suspend or discharge any employee for “[d]rinking or consuming 

illegal drugs during working hours, including lunchtime, or being under the 

influence of liquor or drugs during work time, including lunch time.” Reproduced 

Record (R.R.) at 100a. Additionally, in accordance with federal law and 

regulations, the District enacted School Board Policy 810.1, entitled 

“Drug/Alcohol Testing – Covered Drivers.” R.R. at 215a. Section 810.1(3) of the 

policy prohibits a covered driver from reporting or remaining on duty while using 

or possessing alcohol, having an alcohol concentration of 0.02 or greater, or within 

four hours after using alcohol, and from reporting or remaining on duty while 

using any drugs or testing positive for drugs. Id. Section 810.1(4) mandates that 

the District require covered drivers to submit to random testing for drugs and 

alcohol and recognizes the District’s authority to impose discipline, including 

discharge, for a violation of the policy. R.R. at 216a.

On June 12, 2013, Grievant reported to work at 6:45 a.m. and drove 

the District’s school bus on her morning run. After she completed that run, 

Grievant was notified by her supervisor, Marsha Wagner, that she had been 

selected for a random drug and alcohol test. Grievant reported to WORKNET 

Drug and Alcohol Services (WORKNET), in King of Prussia, at 8:24 a.m. and 

submitted a urine sample. She returned to the District and clocked out around 9:00 

a.m. At 10:10 a.m. she returned to work for her second run, which she finished at 

12:12 p.m. 

On June 14, 2013, a WORKNET physician notified Grievant that she 

had tested positive for amphetamines, and she immediately reported these results 
3

to Wagner. Later that day, WORKNET provided the District with notice of 

Grievant’s positive test results.

On July 22, 2013, Grievant met with Michelle Longo, the District’s 

Director of Human Resources, who advised Grievant that the District was placing 

her on immediate suspension, without pay, pending termination charges for 

violating the District’s drug policy.1 On July 30, 2013, Grievant advised the 

District that she was opting to proceed under the CBA’s grievance procedure rather 

than section 514 of the Public School Code of 1949 (School Code).

2 On August 2, 

2013, the Union filed a grievance on Grievant’s behalf, requesting that she be 

reinstated to her position as a bus driver and that she be made whole with respect 

to any lost wages and benefits. On August 5, 2013, the District’s Board of School 

Directors (Board) approved and executed a statement of charges and a resolution 

authorizing Grievant’s termination. 

By letter dated August 16, 2013, the District denied the grievance, and 

the Union requested that the matter be moved to the next step in the grievance 

procedure.3 The Board conducted a “step 2” grievance hearing on October 7, 

 

1 Wagner and Eric Haley, an assistant steward with the Union, were also present at this 

meeting.

2 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §5-514 (relating to removal of 

officers/employees for incompetency, intemperance, neglect of duty, violation of any of the 

school laws of this Commonwealth, or other improper conduct). 

3

Section 15.2 of the CBA provides for a three-step grievance procedure. Step 1 provides 

for the filing of a written grievance by the Union and requires the District to issue a written 

decision within ten days. Step 2 requires the Board to convene a hearing before a committee of 

Board members chosen by the Board president. The grievance is then presented to the 

committee by the Union’s business agent. Following this hearing, the Board must issue a written 

decision within ten days. Step 3 permits the Union to submit the grievance to binding 

arbitration. R.R. at 99a.
4

2013. At this hearing, the parties agreed that the District would have until 

November 6, 2013, to issue its decision and that “all timelines would be waived 

until that date.” R.R. at 148a. On October 21, 2013, the Board issued a written 

decision sustaining the District’s action and denying the grievance. On November 

5, 2013, the Union demanded that the matter proceed to arbitration.

The Arbitrator held a hearing on March 31, 2014. The District 

presented the testimony of Rita Lebo, a director and custodian of records at 

WORKNET. Lebo stated that federal Department of Transportation regulations 

mandate testing for cocaine, marijuana, amphetamines, opiates, and PCP for 

anyone working in a safety sensitive position, including a bus driver. Lebo stated 

that if a person working in such a position tests positive for any of these drugs, 

federal regulations require that the person be immediately removed from that 

position and be seen by a certified substance abuse professional, who makes 

determinations concerning the need for counseling and treatment. Lebo explained 

that the employee will be required to undergo a return-to-duty drug test, as well as 

a minimum of six follow-up drug tests after returning to work. R.R. at 28a-41a.

Lebo confirmed that Grievant tested positive for amphetamines and

that when she was informed of this result, Grievant advised a WORKNET 

physician that she had taken her son’s medication. Lebo acknowledged that 

federal regulations do not require termination of an employee for a positive drug 

test and that decisions to hire, retain, and terminate employees are left to the 

discretion of the employer. R.R. at 41a-42a.

The District next presented the testimony of Longo, its director of 

human resources. Longo testified regarding the July 22 meeting with Grievant and 

identified numerous exhibits documenting the procedural steps discussed above. 
5

Longo stated that to the best of her knowledge, no District employee had 

previously tested positive for drugs or alcohol. R.R. at 42a-58a.

Grievant testified that she had worked for the District as a school bus 

driver for approximately two years and was randomly subjected to drug tests three 

or four times each year. Regarding the results of the June 12, 2013 test, Grievant 

said that her son suffers from attention deficit hyperactivity disorder and was 

initially prescribed a low dosage of Adderall that was gradually increased from 

five milligrams to thirty milligrams. Grievant stated that when her son began 

losing his appetite, she became concerned with the effects of this medication, and 

ultimately decided to try it herself. She noted that she asked her son’s psychiatrist 

if Adderall was a narcotic and was advised it was not, so she thought that it was 

safe to take. Grievant testified that she took the pill on the evening of June 9, 

2013, and she felt no effects from the medication.4 R.R. at 58a-64a. On cross-

 

4 Grievant testified as follows:

Q. I’m sure the arbitrator is wondering, why would you just one 

day wake up and take your son’s medication?

A. No, I didn’t just wake up. They prescribed it to him, and I 

didn’t want to give it to him anyway, but school was a problem, so 

they put him on five milligrams, still having problems, I’m going 

back and forth to the psychiatrist, and all they kept doing was 

upping [the dosage], so he went from five milligrams to 30 

milligrams within like three months, to the point that it was 

frustrating to me. So he wasn’t eating properly, you know what I 

mean, he was losing his appetite, stuff like that, so when they went 

from 15 to 30 milligrams, I did, I took one of his pills, because I’m 

like, if this makes him feel some type of way, I’m not allowing 

him to take it, I’m gonna have to go back in front of, you know, the 

psychiatrist, and we have to figure out another way. I was never 

thinking it was like a narcotic or nothing, which I did talk to his 

psychiatrist about it and I just asked a question and all. I didn’t 

(Footnote continued on next page...)
6

examination, Grievant acknowledged that she should have read more about 

Adderall before trying it herself. R.R. at 68a.

By opinion and award dated June 25, 2014, the Arbitrator granted the 

grievance in part and denied it in part. Addressing whether the District had just 

cause to terminate Grievant, the Arbitrator noted that there was no dispute 

concerning Grievant’s violation of the drug and alcohol policy or the District’s

authority to terminate employees who violate that policy. However, the Arbitrator 

further noted that, under the policy, the District was not required to terminate an 

employee for a violation. The Arbitrator observed that the District’s reservation of

discretion to impose a lesser penalty reflected that the District was sophisticated 

and insightful enough to anticipate that, on occasion, unique circumstances might 

call for a lesser penalty. The Arbitrator then concluded that Grievant’s situation 

presented such unique circumstances, reasoning as follows:

[Grievant] is not a recreational drug user. Nor, is she 

likely to repeat this misadventure. Her singular foray 

was to try and understand why the drug, prescribed by a 

physician, affected her son so dramatically. She found

out from her son’s psychiatrist that Adderall was not a 

 

(continued...)

know enough about the medicine, because I did ask was it a 

narcotic, but I didn’t ask was it a controlled substance, because he 

told me no, it’s not a narcotic. So I’m never thinking they’re 

giving my nine year old some medicine that would put me in a 

position like this. And I know I’m not supposed to take nobody’s 

medicine, but I was in -- this was a personal matter between me 

and my son. So it was never like for social or this is what I do, you 

know, no.

R.R. at 62a-64a.
7

narcotic. In her mind, if it weren’t a narcotic, there was, 

evidently, no danger. (N.T. 62-63). [Grievant] worked 

the Monday, Tuesday and Wednesday after she ingested

a single dose of her son’s Adderall the preceding Sunday. 

There was no testimony that any District employee who 

interacted with [Grievant] during those three days 

noticed anything unusual in her behavior, or suspected 

that she was impaired in any way. And, the morning of 

her test, [Grievant’s] supervisor, after chatting with her, 

allowed [Grievant] to drive the school bus to her test site. 

I point this out, not in defense of [Grievant’s] taking the

medication, but to highlight that there is no record 

evidence she was at all impaired when she drove 

students.

While having amphetamines in her system is clearly in 

violation of the District’s drug and alcohol testing policy, 

there is simply no evidence that she was at all impaired 

or that her acuity to drive the school bus was at all 

diminished.

Moreover, the U.S. Department of Transportation 

Regulations for safety sensitive positions, such as a bus 

driver, do not require termination of an employee who 

tests positive, but merely require their immediate 

removal from the safety sensitive position. (N.T. 42).

Under these circumstances, on this record, the District’s 

termination was too severe a penalty considering the 

facts presented. 

Arbitrator’s opinion at 10-11. Having concluded the District’s termination of 

Grievant’s employment was too severe a penalty, the Arbitrator issued an award

directing that Grievant be returned to her position as a school bus driver, subject to 

the conditions that: she first “be evaluated, pursuant to Department of 

Transportation Regulations, by a federally certified substance abuse professional, 

who will determine if any counseling and/or treatment is necessary. [She also 

must] pass a return-to-duty drug test . . . and submit to at least six such tests during 
8

the first year of employment, as required by the Regulations.” Arbitrator’s opinion 

at 11. The Arbitrator directed that Grievant receive back pay from the date of her 

dismissal to the date of the award. The award denied Grievant pay for the time she 

spends in her evaluation and any recommended counseling or treatment program 

but allowed her benefit accrual to continue during the evaluation and counseling or 

treatment period. 

The District filed a petition for review with the trial court, asserting

that: the Arbitrator’s award did not draw its essence from the CBA; the award was 

contrary to a well-defined, dominant public policy of protecting children from 

exposure to illegal drug use; the award ignores the District’s authority under 

section 514 of the School Code to terminate an employee for improper conduct; 

and the Arbitrator exceeded his jurisdiction by reinstating Grievant to her position 

after finding that she tested positive for drugs while on duty. The trial court 

rejected each of these arguments. 

The trial court first addressed whether the Arbitrator’s award drew its 

essence from the CBA.5 The trial court specifically found that the issue of whether

the District had just cause to discharge Grievant was within the terms of the CBA6

and concluded that the Arbitrator’s interpretation of that term to exclude a one-

 

5 A court reviewing an arbitrator’s award will apply a two-pronged essence test. “First, 

the court shall determine if the issue as properly defined is within the terms of the collective 

bargaining agreement. Second, if the issue is embraced by the agreement, and thus, 

appropriately before the arbitrator, the arbitrator’s award will be upheld if the arbitrator’s 

interpretation can rationally be derived from the collective bargaining agreement.” State System 

of Higher Education (Cheyney University) v. State College and University Professional 

Association (PSEA-NEA), 743 A.2d 405, 413 (Pa. 1999). 

6

Section 16.1 of the CBA provides that the Board “shall have the right to discipline or 

discharge any employee for just cause or for violation of this Agreement.” R.R. at 100a. 
9

time policy violation could be rationally derived from the CBA. Next, relying on 

our analysis in Blairsville-Saltsburg School District v. Blairsville-Saltsburg 

Education Association, 102 A.3d 1049 (Pa. Cmwlth. 2014), appeal denied, 109 

A.3d 680 (Pa. 2015), and applying the three-step analysis set forth in City of 

Bradford v. Teamsters Local Union No. 110, 25 A.3d 408, 414 (Pa. Cmwlth. 

2011), the trial court held that the Arbitrator’s award was not contrary to a welldefined public policy to protect children from exposure to illegal drugs. In doing 

so, the trial court emphasized the Arbitrator’s findings that Grievant only 

experimented one time with Adderall, she was not an illegal drug user, and she was 

not a danger to students. 

The trial court also determined that the award does not ignore the 

District’s statutory authority under the School Code to terminate an employee for 

improper conduct but, instead, acknowledges that the parties proceeded with this 

matter under the CBA’s grievance provisions. Additionally, the trial court 

concluded that the award did not exceed the Arbitrator’s jurisdiction, observing 

again that an arbitrator’s award will be upheld if it represents a rational 

interpretation of the parties’ collective bargaining agreement. State System of 

Higher Education (Cheyney University) v. State College and University 

Professional Association (PSEA-NEA), 743 A.2d 405, 413 (Pa. 1999). 

The District now appeals to this Court.7 Preliminarily, we note that 

our standard of review of an arbitrator’s award is the deferential essence test, 

which requires that the award be confirmed if: (1) the issue as properly defined is 

within the terms of the agreement; and (2) the award can be rationally derived from 

 

7 By memorandum opinion and order dated July 15, 2015, we denied the District’s 

request for supersedeas. 
10

the agreement. New Kensington-Arnold School District v. New Kensington-Arnold 

Education Association, 140 A.3d 726, 731 (Pa. Cmwlth. 2016). Stated otherwise, 

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 agreement.” Slippery Rock University of 

Pennsylvania, Pennsylvania State System of Higher Education v. Association of 

Pennsylvania State College & University Faculty, 71 A.3d 353, 358 (Pa. Cmwlth. 

2013) (quoting Cheney University, 743 A.2d at 413). 

Additionally, “[a]n arbitration award will not be upheld if it 

contravenes public policy.” New Kensington-Arnold School District, 140 A.3d at

736. In considering whether an arbitrator’s award violates public policy, the 

following three-step analysis is employed:

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.

Id. (quoting City of Bradford v. Teamsters Local Union No. 110, 25 A.3d 408, 414 

(Pa. Cmwlth. 2011). 

Relying on Westmoreland Intermediate Unit #7 v. Westmoreland 

Intermediate Unit #7 Classroom Assistants Educational Support Personnel 

Association, PSEA/NEA, 72 A.3d 755 (Pa. Cmwlth. 2013), the District first argues 

that the Arbitrator’s award violates a well-defined, dominant public policy of 
11

protecting children from dangers related to illegal drug use. In Westmoreland, the 

grievant was employed at Westmoreland Intermediate Unit #7 as an elementary 

school classroom assistant, and she worked closely with emotionally disturbed 

children. The grievant was found unconscious in the school’s restroom as a result 

of a drug overdose, and the evidence established that she was wearing a 100 mcg 

Fentanyl patch on her back that she obtained from a friend.8 The grievant did not 

have a prescription for this medication, and criminal charges were filed against her

for possession of a controlled substance and disorderly conduct. Subsequently, the 

grievant entered into a plea agreement by which she agreed to probation without 

verdict. Following an investigation, the employer terminated her employment due 

to her possession and use of a non-prescribed controlled substance in the 

workplace during school hours. 

The grievant challenged the termination through grievance arbitration. 

The arbitrator sustained the grievance and found that the employer lacked just 

cause to terminate her because her conduct did not rise to the level of immorality 

under Section 1122(a) of the School Code.9 Citing the grievant’s unblemished 23-

year tenure with the employer, the arbitrator concluded that her “single error of 

judgment” did not amount to conduct warranting discharge. Westmoreland, 72 

A.3d at 757. The arbitrator ordered the grievant’s reinstatement, without back pay 

 

8

Fentanyl is a narcotic (opioid) analgesic and is a Schedule II controlled substance under 

Section 4 of The Controlled Substance, Drug, Device and Cosmetic Act (CSDDCA), Act of 

April 14, 1972, P.L. 233, as amended, 35 P.S. §780-104. Under Section 113 of the CSDDCA, it 

is a misdemeanor for a person to possess a Schedule II controlled substance without a valid 

prescription.

9

24 P.S. §11-1122(a) (listing causes for termination of a professional employee’s 

contract).
12

or benefits, and subject to conditions, including participation in a drug and alcohol 

treatment program. However, following remand from the Supreme Court, this 

Court vacated the arbitrator’s award, concluding that the award demonstrated a 

tolerance for illicit drug use, in contravention of public policy.10 

In response, the Union contends that Westmoreland is distinguishable

because in this case, the Arbitrator expressly found that Grievant was not a 

recreational drug user and was not likely to repeat her actions. Indeed, the 

Arbitrator explained that “Grievant’s singular foray” was motivated by her desire 

to “understand why the drug, prescribed by a physician, affected her son so 

dramatically.” Arbitrator’s op. at 10. The Union notes that Grievant checked with 

her son’s psychiatrist and was informed that Adderall was not a narcotic; thus, she 

reasonably believed that there was no danger in ingesting a dosage. Further, the 

Union emphasizes the Arbitrator’s conclusion that “there is simply no evidence she 

was at all impaired or that her acuity to drive the school bus was at all diminished.” 

Arbitrator’s op. at 11. 

The Union argues that the Arbitrator’s award is in accord with our 

decision in Blairsville-Saltsburg School District. The grievant in BlairsvilleSaltsburg School District taught social studies to 7th and 8th grade students and had 

been employed by the school district as a teacher since 1988. He was discharged 

in 2012, following a third arrest, in 2010, for driving under the influence of 

 

10 After noting the arbitrator’s finding that the grievant’s conduct represented a single 

error of judgment, the court characterized the arbitrator’s award as “clearly recogniz[ing] that 

[the grievant] had an ongoing drug problem,” determined that reinstating the grievant “with the 

hope she will overcome her addiction, defies logic and violates public policy,” and concluded 

that an elementary classroom “is no place for a recovering addict.” 72 A.3d at 759 (emphasis 

added).
13

alcohol. In 1987, the grievant was charged in New York with driving while 

intoxicated, and in 2000, he was charged in Pennsylvania with driving under the 

influence of alcohol.11 After learning of the grievant’s 2010 arrest and his two 

prior offenses, the school district suspended him without pay pending dismissal, 

asserting that his three incidents of driving while impaired constituted immorality 

and, therefore, was just cause for his termination under Section 1122 of the School 

Code. The grievant’s union filed a grievance on his behalf and the matter 

proceeded to arbitration. 

“The arbitrator made the factual determination that the three incidents, 

each separated by a ‘great expanse of time,’ did not constitute a course or pattern 

of conduct sufficient to support a charge of immorality.” Blairsville-Saltsburg 

School District, 102 A.3d at 1051 (citations omitted). The arbitrator also found 

that the grievant was a recovering alcoholic who was currently living a life of 

sobriety and who had clearly learned from his mistakes. Based on these findings, 

the arbitrator directed the school district to reinstate the grievant to his former 

position. The school district petitioned to vacate the award on the basis of the 

public policy exception, and the common pleas court granted the petition and 

reinstated the grievant’s discharge.

On further appeal, this Court reversed the common pleas court’s 

decision. We distinguished the arbitrator’s award in Westmoreland, which “placed 

the teacher back into the classroom while she was attempting recovery,” in 

 

11 The opinion does not indicate any sentence relating to the 1987 offense, a 

misdemeanor under New York law. With respect to the 2000 charges, the teacher was accepted 

into the Accelerated Rehabilitative Disposition program and, following completion of this 

program, his charges were dismissed. However, following his guilty plea to the 2010 charges, 

the grievant was sentenced to five years’ probation and five months of house arrest. 102 A.3d at 

1050-51.
14

violation of a well-defined public policy of protecting children from drugs and 

drug use. Blairsville-Saltsburg School District, 102 A.3d at 1052. We noted that 

in contrast to those circumstances, the arbitrator found that the grievant was a 

recovered alcoholic, no longer drank and drove, successfully attended a 

rehabilitation center, and clearly learned from his mistakes. Id. We recognized the 

well-defined public policy against drinking and driving under the influence, and, 

stressing that a reviewing court is bound by the arbitrator’s findings, id., we held 

that the arbitrator’s award that placed the grievant back in the classroom after he 

was rehabilitated did not violate that policy. 

Because the facts and circumstances are similar to the matter before 

us, we agree that our decision in Blairsville-Saltsburg School District is 

controlling. We also are mindful that in determining whether the public policy 

exception applies, 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.” Rose Tree Media Secretaries & Educational Support Personnel 

Association v. Rose Tree Media School District, 136 A.3d 1069, 1076 (Pa. 

Cmwlth. 2016). Given the arbitrator’s findings that Grievant’s ingestion of her 

son’s medication was a single “misadventure” not likely to be repeated, as well as 

the conditions imposed upon Grievant’s return to her positon, we conclude that the 

arbitrator’s award does not “pose an unacceptable risk” that it will undermine the 

public policy at issue or cause the District to breach its lawful obligations or public 

duties. City of Bradford, 25 A.3d at 414. Accordingly, we reject the District’s 

argument that the public policy exception to the essence test applies. 

The District next contends that the Arbitrator’s award does not draw 

its essence from the CBA. Relying on Riverview School District v. Riverview 
15

Education Association, PSEA-NEA, 639 A.2d 974 (Pa. Cmwlth. 1994), the District 

first argues that a court may vacate an arbitrator’s award under the essence test if 

the court determines that the award was “manifestly unreasonable.” However, our 

Supreme Court has expressly stated that the essence test does not allow a court to 

evaluate the reasonableness of an award. See Cheney University, 743 A.2d at 413 

n.8:

[I]n the context of review of an Act 195[12]labor 

arbitration award, determining an award to rationally be 

derived from a collective bargaining agreement connotes 

a more deferential view of the award than the inquiry into 

whether the award is reasonable. An analysis of the 

“reasonableness” of an award too easily invites a 

reviewing court to ignore its deferential standard of 

review and substitute its own interpretation of the 

contract language for that of the arbitrator. Thus, we find 

that in this very limited context, a review of the 

“reasonableness” of an award is not the proper focus.

See also, Pennsylvania Game Commission v. State Civil Service Commission 

(Toth), 747 A.2d 887, 891 n.7 (Pa. 2000) (reiterating that “the essence test does not 

permit an appellate court to intrude into the domain of the arbitrator and determine 

whether an award is manifestly unreasonable). 

The District further contends that the Arbitrator’s award does not 

draw its essence from the CBA because it ignores the provisions of Article 16.1, 

under which the District reserves the right to discharge employees for improper 

conduct. In relevant part, Section 16.1 of the CBA states:

The Board shall have the right to discipline or discharge 

any employee for just cause or for violation of this 

 

12 The Public Employe Relations Act, Act of July 23, 1970, P.L. 30, as amended, 43 P.S. 

§§1101.101–1101-2301, is commonly known as Act 195.
16

Agreement. The Board shall have the right to 

immediately suspend or discharge any employee for . . . 

being under the influence of liquor or drugs during work 

time, including lunch time.

R.R. at 100a. The District maintains that nothing in the CBA authorized the

Arbitrator to disregard this language. 

However, we have previously held that in the absence of a clear 

limitation in the CBA, it is within an arbitrator’s authority to modify the discipline 

imposed by a school district. School District of Philadelphia v. Commonwealth 

Association, Teamsters Local 502, ___ A.3d ___, ___ (Pa. Cmwlth. No. 151 C.D. 

2016, filed April 25, 2017); Abington School District v. Abington School Service 

Personnel Association/AFSCME, 744 A.2d 367, 369 (Pa. Cmwlth. 2000).

“[W]here the agreement does not specifically define or designate the discipline to 

be imposed, and does not specifically state that the employer is the one with sole 

discretion to determine discipline, the arbitrator is within his or her authority to 

modify the discipline imposed . . . .” Id. “For the discipline imposed not to be 

subject to arbitration, the language must be similar to that in Board of Education of 

the School District of Philadelphia v. Philadelphia Federation of Teachers, AFLCIO, 610 A.2d 506 [Pa. Cmwlth. 1992], which specifically reserved to the district 

disciplinary matters provided for under the Pennsylvania School Code.” Abington 

School District, 744 A.2d at 370 (footnote omitted). In this case, the District 

points to no language in the CBA that limits the Arbitrator’s power to modify 

discipline. Accordingly, the District’s contentions that the Arbitrator’s award does 

not draw its essence from the CBA are without merit.

The District further argues that the Arbitrator’s award improperly 

infringes on the District’s express authority under the School Code to terminate an 

employee for improper conduct. The District complains that the trial court erred 
17

by construing the parties’ stipulation that Grievant would be proceeding through 

the grievance procedure rather than the provisions of Section 5-514 of the School 

Code as a waiver of the District’s statutory right to discharge an employee for 

certain conduct. Section 514 of the School Code states:

The board of school directors in any school district, 

except as herein otherwise provided, shall after due 

notice, giving the reasons therefor, and after hearing if 

demanded, have the right at any time to remove any of its 

officers, employes, or appointees for incompetency, 

intemperance, neglect of duty, violation of any of the 

school laws of this Commonwealth, or other improper 

conduct.

24 P.S. §514. Citing Board of Education of the School District of Philadelphia,

the District contends that Grievant “was under the influence of a Schedule II 

narcotic while driving a school bus filled with students” and, therefore, her conduct 

clearly constitutes “improper conduct” under Section 514. 

However, in making this argument the District ignores the Arbitrator’s 

findings. Contrary to the District’s characterization of the facts, the Arbitrator 

expressly found that “there is simply no evidence that she was at all impaired or 

that her acuity to drive the school bus was at all diminished.” Arbitrator’s opinion 

at 10-11. Based on the Arbitrator’s findings, the record does not support the 

District’s contentions, nor does it indicate that Grievant’s conduct was in any 

manner similar to the egregious sexual misconduct alleged in Board of Education 

of the School District of Philadelphia.13

The District’s final argument is that the Arbitrator exceeded his 

authority in reinstating Grievant with full back pay after finding that she tested 

 

13 The grievant in that case was charged with verbal and physical sexual harassment. 610 

A.2d at 507. 
18

positive for drugs while on duty. Although presented as a separate argument, the 

District cites no additional authority and essentially repeats the arguments 

addressed above. To the extent that the matter of back pay is a distinct, additional 

issue, we note that the Arbitrator’s decision framed the issue in this case as 

“Whether the District had just cause to terminate [Grievant], and if not, what shall 

the remedy be?” Thus, the issue of the appropriate remedy was expressly before 

the Arbitrator. Beyond conflating this issue with its previous arguments, the 

District offers no support for its contention that the Arbitrator exceeded his 

authority in fashioning the award. 

Accordingly, we affirm the trial court’s denial of the District’s 

petition to vacate the arbitration award.

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Upper Merion Area School District, :

:

Appellant :

:

v. : No. 887 C.D. 2015

:

Teamsters Local #384 :

O R D E R

AND NOW, this 23rd day of June, 2017, the order of the Court of 

Common Pleas of Montgomery County, dated April 28, 2015, is affirmed.

__________________________________

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Upper Merion Area School District, :

Appellant :

: No. 887 C.D. 2015

v. :

: Argued: February 8, 2017

Teamsters Local #384 :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: June 23, 2017

I respectfully dissent because I believe that the Arbitrator’s award in this 

case, insofar as it reinstated Sheena Boone-East (Grievant), a school bus driver who 

knowingly and intentionally ingested an unprescribed Schedule II narcotic containing 

amphetamines the day before she was scheduled to drive a school bus and tested

positive three days later, violates a well-defined, dominant public policy of protecting 

school children from illegal drugs/drug use and ensuring their safety.

While the Arbitrator described Grievant’s actions as a mere 

“misadventure” that was not likely to be repeated, Arbitrator’s op. at 10, the fact that 

Grievant’s actions in this case posed a threat to the students that she was entrusted to 

transport to and from school cannot be overlooked. Grievant made a considered 

decision to ingest the Schedule II narcotic on a Sunday evening and work the next 
PAM - 2

three days as a school bus driver while the narcotic remained in her system, which is

expressly prohibited by section 16.1(3) of the collective bargaining agreement (CBA) 

between Upper Merion Area School District (the District) and Teamsters Local #384, 

the union that represented Grievant, as well the drug and alcohol policy enacted by 

the District. Section 16.1(3) of the CBA states that the District has the right to 

immediately suspend or discharge any employee who is “under the influence of 

liquor or drugs during work time, including lunch time.” (Reproduced Record (R.R.) 

at 100a.) Section 810.1(4) of the District’s drug and alcohol policy mandates random 

drug and alcohol testing and authorizes the District to impose discipline, up to and 

including discharge, for a violation of the policy. (R.R. at 216a.) 

Although Grievant did not ingest her son’s Adderall on school property 

or during school hours, she did so on a Sunday evening, June 9, 2013, less than 24 

hours before she knew she would be required to report to work as a school bus driver. 

Grievant transported students for the next three days, June 10, 11, and 12, 2013. The 

fact that she may not have appeared impaired to her supervisor or co-workers is 

simply not relevant. The amphetamines she ingested remained in her system the 

entire time, as evidenced by her positive test on June 12, 2013, three days after taking 

her son’s medication. 

The District has an absolute obligation to ensure the safety and welfare 

of all students as it stands in loco parentis to pupils “during the time they are in 

attendance, including the time required in going to and from their homes.” 

Section 1317 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as 

amended, 24 P.S. §13-1317 (emphasis added). In order to ensure that obligation, the 

District enacted School Board Policy 810.1, entitled “Drug/Alcohol Testing –

Covered Drivers.” As noted above, section 810.1(4) of this policy mandates that the 
PAM - 3

District require covered drivers, such as Grievant, to submit to random testing for 

drugs and alcohol, and authorizes the District to discharge an employee for a 

violation of the policy. (R.R. at 216a.) Moreover, as the Majority recognizes, Rita 

Lebo, a director and custodian of records at WORKNET, the facility that 

administered Grievant’s drug test, testified before the Arbitrator that United States 

Department of Transportation regulations recognize a bus driver as a safety sensitive 

position and mandate drug testing for five classes of drugs, one of which is 

amphetamines. (R.R. at 33a.) 

Further, I believe that the reliance of the Majority on BlairsvilleSaltsburg School District v. Blairsville-Saltsburg Education Association, 102 A.3d 

1049 (Pa. Cmwlth. 2014), appeal denied, 109 A.3d 680 (Pa. 2015), and New 

Kensington-Arnold School District v. New Kensington-Arnold Education Association, 

140 A.3d 726 (Pa. Cmwlth. 2016), is misplaced, as those matters are distinguishable

from the present case. 

In Blairsville-Saltsburg School District, the grievant’s conduct, drunk 

driving, occurred during non-school hours and did not place any students in harm’s 

way. The same is true of New Kensington-Arnold School District. The grievant in 

that case was charged with possession of marijuana and drug paraphernalia following 

discovery of the same at his home in the course of an investigation involving his 

brother. The grievant’s actions did not occur on school property or endanger any 

students. To the contrary, Grievant herein ingested an unprescribed Schedule II 

narcotic, albeit at home, and drove a school bus the following three consecutive days. 

By operating the school bus with amphetamines in her system, Grievant endangered 

the lives of every student she transported during those days.
PAM - 4

The Majority aptly recognizes that a reviewing court is generally bound 

by an arbitrator’s findings. Blairsville-Saltsburg School District, 102 A.3d at 1052. 

However, even accepting the facts as found by the Arbitrator, Grievant’s actions here 

placed the school children under her care, and whom the District has an absolute duty 

to protect, at risk both to their general safety and their exposure to illegal drugs and 

drug use. Fortunately, in this case, Grievant was able to perform her duties without 

incident, even though the amphetamines remained in her system as of the date of her 

drug test three days later. Nonetheless, we cannot allow the lack of any incident to 

undermine the implicated public policy described above. Indeed, a school district 

should not have to wait until a school bus driver ingests other illicit drugs, whether or 

not in the form of a prescribed or unprescribed narcotic substance, to the point where 

he/she becomes so impaired that the safety of school children is jeopardized and/or an 

accident occurs before invoking this public policy exception. 

For these reasons, I believe that application of the public policy 

exception is warranted in this case and I would reverse the order of the Court of 

Common Pleas of Montgomery County denying the District’s petition for review 

seeking to vacate and set aside the Arbitrator’s award. 

 

________________________________

PATRICIA A. McCULLOUGH, Judge