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) den ying the District’s petition to vacate an arbitration award that sustain ed the griev ance 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 wa s 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 we re parties to a

c ollective bargaining agreement with a term that began on July 1, 2011, and
continue d 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
in fluence of liquor or drugs during work time, including lunch time.” Reproduced Record (R.R.) at 100a. Additionally, i n accordance with federal law and regulations, the District enacted School Board Policy 810.1, entitled “Drug/Alcoho l Testing

– Covered D rivers.” 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 impo se discipline, including discharge, f

or a violation of the policy. R.R. at 216a. On June 12, 2013, Grievant reported to work at 6:45 a.m. and d rove the District’s school bus on h er morning run. After she completed th at 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. A t 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 s he immediately reported these results3

to Wagner . Later t hat 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 advi sed Grievant that the District was placing her on immediate suspension, without pay, pending termination charges for violating the District’s drug policy. 1 O n July 30, 2013, Grievant advised the District that she was opting to proceed under the CBA’s grie vance 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 wit h 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.

B y letter dated August 16, 2013, the Distric t 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 Boa rd members chosen by t he Board p resident. 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 u ntil 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 Trans portation 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 emplo yee will be required to undergo a return

- to

- duty drug test, as well as
a minim um of six follow

- up drug tests after return ing to work. R.R. at 28a

- 41a.
Lebo confirmed that Grievant tested positive for amphetamines and
that when she was informed of this re sult, 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

Long o 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 testifi ed that she had worked for the District as a school bus driver for approximately two years and was randomly subjected to drug test s three or four times each year

. Regarding the result s of the June 12, 2013 test , Grievant
said that her son suffers from att ention deficit hyperactivity disorder and was initially prescribed a low dosage of Adderall t h at was gradually increased from five milligrams to thirty m illigrams . 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 pil l 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 m onths, 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 psychiat rist 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 68 a.

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 term inate Grievant, the Arbitrator no ted that there was no dispute concerning G rievant ’s violat ion of the drug and alcohol po licy or the District ’s authority to terminate employees who violat e that policy. However, the Arbitrator
further noted that , under the policy, the District was not required to terminate an employee for a violation. T he 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 th at 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 phy sician, 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 giv ing 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, y ou 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 Wednes day 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 i mpaired 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.

W hile 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 Regulati ons 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, t he District’s termination was too severe a penalty considering the facts presented. Arbitrator’s op inion at 10

- 11. Having concluded t he District’s termination of
Grievant ’s employment was too severe a penalty , the Arbitrator issued an award directing th at Grievant be returned to her position as a school bus driver , subject to
the condition s 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 during8

the first year of employment, as required by the Regulations .” Arbitrator’s opinion
at 11. The Arbitrator direct ed that Grievant receive back pay from the date of her
dismissal to the date of the award . T he 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 conti nue during the evaluation and counseling or treatment period.

The Distri ct filed a petition for review with the trial court , assert ing
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 u s e ; the award ignores the District’s authority under
section 514 of the School Code to terminate an employee for improper conduct ; and the Arbitrat or 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 i ts essence from the CBA. 5 The trial court specifically f ound that t he issue of w hether
the Dist r i c t had just ca u se to discharge Grie v ant was within the terms of the CBA 6
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 Educat ion (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 Distri c t v. Blairsville

- Saltsburg
Education Association , 102 A.3d 1049 (Pa. Cmwlth. 2014), appeal denied , 109 A.3d 680 (Pa. 2015), an d a pplying the three

- step analysis set forth in City of Bradford v. Teamsters Local Union No. 110 , 25 A.3d 408, 414 (Pa. Cmwlth. 2011), t he trial court held that the Arbitrator’s award was not contrary to a well

defined public policy to protect children fr om exposure to illegal drugs

. In doing so, the trial court emphasiz ed 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. A dditionally, 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

o ur standard of review of an arbitr ator’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 Scho ol District v. New Kensington

- Arnold
Education Association , 140 A.3d 726, 731 (Pa. Cmwlth. 2016). Stated otherwise,
under the essence test , a 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 collective bargaining agreement. ” Slippery Rock University of Pennsylvania, Pennsylvania State System of Higher Educ ation v. Association of Pennsylvania State College & University Faculty , 71 A.3d 353, 358 (Pa. Cmw lth. 2013) (quoting C

heney 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 vi olates 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 as certained by reference to the laws and legal precedents and not from general consideration of supposed public interests. Third, we m ust 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. (quoti ng City of Bradford v. Teamsters Local Union No. 110 , 25 A.3d 408, 414 (Pa. Cmwlth. 2011).

Relying on Westmor eland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA , 72 A. 3 d 7 55 ( Pa. Cmwlth. 20 13 ) , t he District first argues that the Arbitrator’s award violates a well

- defined, dominant public policy of11

protecting children from dangers related to illegal drug use. I n Westmoreland , the grievant was employed at Westmoreland Intermediate Unit #7 as an elementary
school classroom assistant , and she work ed closely with emotionally disturbed
children . The grievant was found unconscious in the school’s restroom as a result of a drug overdose , and t he evid ence established that s he 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 c riminal charges were filed against he r for possession of a controlled substance and disorderly conduct

. S ubsequently, the grievant entered into a plea agreement by which she agreed to probation without verdict. Following an investigation, t he employer terminate d her employment due to her possession and use of a non

- prescribed contr olled 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 terminat e he r because her conduct did n ot rise to the level of immorality under Section 1122(a) of the School Code. 9 C it ing the grievant’s unblemished 23

- year tenure with the employer , the arbitrator concluded that her “ single error of judgment ” did not amount to conduct warrant ing discharge. Westmoreland , 72
A.3d at 757. The arbitrator order ed the grievant’s r ei nstatement, 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 w ithout 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 th e 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, t he Union contends that Westmoreland is distinguishable
because in this case , the Arbitrator expressly found that Grievant w as 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

t o “ understand why the drug, presc ribed by a physician, affected her son so dramatically. ” Arbitrator’s op. at 10. T he Union notes that Grievant check ed with her son’s psychiatrist and was informed that Adderall was not a narcotic ; thus, she reasonably believed that there was no danger i n ingesting a dosage. Further, the Union emphasizes th e Arbitrator’s conclusion that “ there i s 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 i n Blairsville

Saltsburg School District taught social studies to 7 th and 8 th grade students and had been employed by the school distr ict 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 75 9 (emphasis added).13

alcohol. In 1987, t he grievant was charged in New York with driving while intoxicated, and in 2000, he was charged in Pennsylvan ia with driving under the
influence of alcohol. 11 After learning of the grievant’s 201 0 arrest and his two prior offenses, the school district suspended him without pay pending dismissal , asserting that his three incidents of driving while impaired constit uted immorality and, therefore, was just cause for his termination under S ection 1122 of the School Code. The grievant’s union filed a grievance on his behalf and t he 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 forme r position. The school district petitioned to vacate the award on the basis of the public policy exception , and t he common pleas court granted the petition and
rein stated the grievant’s discharge.

On further appeal, this Court reversed th e 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 clea rly 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 p laced the grievant back in the classroom after he
was rehabilitated did not violate th at 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. W e also are mindful that in determining whether the public policy exception applie s , 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 Me dia Secretaries & Educational Support Personnel
Association v. Rose Tree Media School District , 136 A.3d 1069, 1076 (Pa. Cmwlth. 2016). G iven the arbitrator’s findings that Grievant’s ingestion of her
son’s medication was a single “misadventure” not likel y 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 c ause the District to breach its lawful obligations or public
dut ies

. 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
it s essence from the CBA. Relying on Riverview School District v. Riverview15

Education Association, PSEA

- NEA , 639 A.2d 974 (Pa. Cmwlth. 1994), t he District
first argues that a court may vacate an arbitrator ’ s award under the essence test if
the court determi nes that the award was “ manifestly unreasonable. ” However, o ur 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, determ ining 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 limit ed context, a rev iew of the

“ reasonableness ” of an award is not the proper focus

. S e e 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 , und er 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

– 11 0 1

- 2301 , is commonly known as Act 195.16 Agreeme nt. The Board shall have the right to immediately suspend or discharge any employee for

. . . being under the influence of liqu o r 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. Cmw l th. 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 th e agreement does not specifically define or designate the discipline to be imposed, and does not specifically state that t he employer is the one with sole discretion to determine discipline, the arbitrator is within his or her authority to modify the disci pline imposed . . . .” Id. “For the discipline imposed not to be subject to arbitration, the language must be similar to that in Board of Educatio n of
the School Distr i ct o

f Philadelphia v. P hiladelphia Federation of T eachers, AFL

CIO , 610 A.2d 5 06 [Pa. Cmwlth. 1992 ] , which specifically reserved to the district disciplinary matters provided for u nd er the Pennsylvania School C o de.” 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 t he Arbitrator’ s award improperly infringes o n the District’s express authority under the School Code to terminate an employee for improper conduct . The Distri c t complains that the trial co urt e rred17

by constru ing 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 :

T he 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 incompe tency, inte mperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper
con d uct. 24 P.S. §514. Citing Board of Education of the School District of Phi ladelphia,

t h e 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 . C ontrary 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 bu s 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 gr ievant 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?” T h us, the issue of the appropriate r emedy was expressly before
the Arbitrator

. Beyond conflating this issue with its pr evious arguments, the District offers no support for its contention that the Arbitrator exceeded his authority in fashioning the award.

Accordingly , we affirm the trial c o urt’s de n ial of the Distr i ct ’ s
p etition to vacate the arbitration award.

MICHAEL H. WOJCIK, JudgeIN 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 23 rd day of June , 201 7 , the order of the Court of Common Pleas of Montgomery County , dated April 28, 2015 , is affirmed.

__________________________________ MICHAEL H. WOJCIK, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Upper Merion Area School District, :

Appellant :

: No. 887 C.D. 2015
v. : : Argued: February 8 , 201 7 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 FI LED: 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 wa s scheduled to drive a school bus and test ed 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 S chedule II narcotic on a Sunday evening and work t he nextPAM

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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 liquo r 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
includ ing 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.
Griev ant 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 amphetamin es 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.

T he District has an absolute obligation to ensure the safety and welfare
of all students as it stand s 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 thePAM

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District require covered drivers, such as Gri evant, 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.)

Furth er , I believe that the reliance of the Majority on Blairsville

Saltsburg School District v. Blairsville

- Saltsburg Education Association , 102 A.3d 1049 (Pa. Cmwlth. 2014), appeal denied , 109 A.3d 680 (Pa. 20 15), 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 griev ant’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 parapherna lia 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

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The Majority aptly r e cognizes 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 u nder 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 t he amphetamines r emained 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 un til 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 be fore 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 t o vacate and set aside the A rbitrato r’s award

.

________________________________ PATRICIA A. McCULLOUGH, Judge