IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rose Tree Media Secretaries & :

Educational Support Personnel :

Association - ESPA, PSEA-NEA :

: No 965 C.D. 2015

v. : Argued: February 8, 2016

:

Rose Tree Media School District, :

Appellant :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION 

BY JUDGE SIMPSON FILED: March 21, 2016

This case involves a grievance arbitration award issued under the 

Public Employe Relations Act (PERA).

1 Rose Tree Media School District 

(Employer) appeals two orders of the Court of Common Pleas of Delaware 

County2(trial court) upholding the award of Arbitrator Margaret R. Brogan 

(Arbitrator), which reinstated S.M. (Grievant), an employee discharged for 

mistreatment of a special needs student. Review of an arbitration award issued 

under PERA is governed by the highly deferential “essence test” subject to a

narrow “public policy exception.” See Phila. Hous. Auth. v. Am. Fed. of State, 

Cnty. & Mun. Emp., Dist. Council 33, Local 934, 52 A.3d 1117, 1120 n.5. (Pa. 

2012); Pa. Turnpike Comm’n v. Teamsters Local Union No. 77 (Teamsters Local 

 

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

2

The Honorable C. Michael Green presided.
2

77), 87 A.3d 904 (Pa. Cmwlth. 2014). Under the essence test, a reviewing court 

may vacate a PERA arbitration award only where the award is indisputably and 

genuinely without foundation in, or fails to logically flow from, the underlying 

collective bargaining agreement (CBA). If the essence test is satisfied, the court 

may further consider whether the award violates a well-defined and dominant 

public policy. Id. Discerning no error in the trial court’s refusal to consider the 

evidentiary record in the arbitration proceeding, and in the court’s determination 

that Arbitrator’s award was rationally derived from the CBA and did not result in 

the violation of a well-defined, dominant public policy, we affirm.

I. Background

A. November 2011 Incident

Arbitrator found the following facts. Grievant worked for the School 

District since 2000. Beginning in 2002, Grievant began working as a one-on-one 

special education aide at the District’s Indian Lane Elementary School. Prior to 

the November 2011 incident resulting in her discharge, Grievant worked with five 

special education students.

Eventually, Employer assigned Grievant to work with L.M. (Student), 

a special education student with Down’s syndrome. Employer, however, did not 

provide Grievant with any training to assist her in working with a Down’s 

syndrome child.

On November 18, 2011, Grievant met Student, who arrived at school 

late. Grievant’s first duty was to take Student to his classroom. Because the class 
3

already started, Grievant stood with Student in the hallway for a moment. During 

that time, Grievant took Student’s lunch and placed it in a cart in the hallway. 

Patty Tulskie (Reading Interventionist), a parent of a Down’s syndrome child, was

also present in the hallway.

When the time came for Student to enter the classroom, he refused. 

Grievant stated she took Student’s hand and gently spoke to him. Grievant 

encouraged Student to walk in and see his friends. However, when Grievant 

attempted to enter the classroom, Student dropped to the ground and lay on the 

floor in a prone position.

According to Employer, Grievant then pulled Student by his arm to 

his desk, a total distance of over 20 feet. Grievant, however, did not harm Student; 

he did not cry out. Further, no other children in the classroom expressed any 

reaction.

The classroom teacher, Wendy Barton (Teacher), saw Grievant 

pulling Student and made no effort to intervene. Rather, Teacher continued to 

teach the class. Reading Interventionist also witnessed the incident, but she did not 

personally check to see if Student was alright.

Nevertheless, Reading Interventionist complained about the incident 

to Teacher. Thereafter, Teacher reported Grievant’s conduct to Julia Davis 

(Special Education Teacher). Grievant also self-reported her conduct to Special 
4

Education Teacher. In turn, Special Education Teacher reported the incident to the 

school’s principal, William Bennett (Principal).

After speaking with Special Education Teacher, Principal met with 

Grievant, who immediately apologized and expressed remorse. Principal told her 

he was disappointed with her behavior and talked to her about alternative 

approaches she could employ in a similar situation.

After talking to Grievant, Principal placed Student back in her care. 

Principal stated he believed Student would be safe in Grievant’s care. Principal 

also believed Grievant’s actions were not the result of anger or any attempt to hurt 

Student. As a result, Student remained in Grievant’s care for the rest of the day.

Principal reported the incident to Employer’s Director of Human 

Resources, Anne Callahan (HR Director), who advised Principal she would contact 

Superintendent and then get back to him.

Later that day, HR Director told Principal to advise Grievant to attend 

a meeting on the following Monday, November 21, 2011. At the end of the 

meeting, HR Director placed Grievant on unpaid leave. Eight days later, HR 

Director advised Grievant and her union representatives that Employer 

recommended Grievant’s discharge.
5

B. Grievance Filed

Following Employer’s notice of intent to seek Grievant’s dismissal 

from employment, her union, Rose Tree Media Secretaries & Educational Support 

Personnel Association (Association), filed a grievance under the terms of Article 

VI of the parties’ collective bargaining agreement (CBA). See CBA at 21-22 

(Grievance Procedure); Reproduced Record (R.R.) at 28a-29a.

In March 2012, a committee of Employer’s Board of School Directors 

(Board) held a grievance hearing. Following the hearing, the Board committee 

recommended Grievant be dismissed from District employment. Thereafter, the 

Board discharged Grievant. 

C. Arbitration

The parties then proceeded to the final step of arbitration and selected 

Arbitrator to hear and decide the grievance. In January 2013, Arbitrator held a 

hearing providing the parties a full opportunity to present all relevant testimonial 

and documentary evidence. Following the hearing, the parties submitted briefs.

D. Award

In May 2013, Arbitrator issued her opinion and award. See R.R. at 

74a-86a. In her opinion, Arbitrator framed the issue as: “Whether [Employer] had 

just cause for [Grievant’s termination], and if not, what shall be the remedy?” 

Arbitrator’s Op., 5/5/13 at 1; R.R. at 116a. Arbitrator noted the parties stipulated 

at the hearing that she had jurisdiction to determine the remedy. Id.
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Next, Arbitrator summarized the parties’ positions. Employer 

maintained it had just cause to dismiss Grievant because she engaged in egregious 

conduct by dragging Student from the hallway to his desk inside the classroom. 

Employer claimed this exposed Student to a risk of injury. 

More specifically, Employer argued Grievant’s conduct, including her 

inappropriate interaction with Student, her extremely poor judgment, and her 

inability to appropriately manage Student, provided a proper basis for dismissal 

under Section 514 of the School Code of 1949 (School Code).3 Section 514 

authorizes Employer to remove any of its officers or employees for incompetency, 

neglect of duty, a violation of any of the school laws of the Commonwealth, or 

other improper conduct. 24 P.S. §5-514.

Employer maintained that Grievant’s conduct during the incident rose 

to the level of incompetence or neglect of duty and constituted a violation of 

school laws. In particular, Grievant’s lack of composure and poor judgment 

showed her incompetence. Grievant’s failure to nurture and assist a special needs 

child, instead of dragging him on the floor, reflects a clear neglect of duty. 

Employer also argued Grievant’s mistreatment of Student violated school laws.

Consequently, Employer argued Grievant’s conduct provided just 

cause for her dismissal. Thus, Employer urged Arbitrator to deny the grievance.

 

3 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §5-514. 
7

Conversely, the Association asserted Employer did not have just cause 

to terminate Grievant from her position as a one-on-one aide based on the nature of 

her conduct during the incident. Rather, the Association maintained Employer’s 

unjustified dismissal of Grievant constituted a grossly disproportionate response to 

this one incident.

The Association further maintained the parties’ CBA specifically sets 

forth a system of progressive discipline. Therefore, the Association urged 

Arbitrator to uphold the grievance and issue an order reinstating Grievant without 

loss of income, benefits, seniority or retirement. The Association also requested 

that Arbitrator direct Employer to remove any reference to the dismissal from 

Grievant’s personnel file.

Arbitrator determined Employer failed to meet its burden of 

establishing just cause for Grievant’s discharge. Rather, Arbitrator observed, 

Grievant’s conduct warranted a lesser penalty. Arbitrator noted that the parties 

granted her the ability to impose a lesser penalty in the absence of just cause for 

discharge.

In determining whether just cause for dismissal existed, Arbitrator 

recognized that just cause for dismissal must be proportional to the conduct. In the 

present case, the penalty of discharge was not commensurate with the proven

conduct.
8

Arbitrator first focused on the characterization of Grievant’s conduct. 

Although Employer asserted Grievant pulled Student by the wrist and dragged him 

for a distance of over 20 feet, the Arbitrator concluded the incident occurred in line 

with the Grievant’s testimony. The Arbitrator noted the actions of Teacher and 

Reading Interventionist were not consistent with Employer’s “dragging”

characterization. They neither intervened nor checked to see if Student suffered 

any harm. In short, they did not see a need to attend to Student.

Therefore, Arbitrator credited Grievant’s testimony that she took 

Student by the hand and attempted to coax him into the classroom. At some point 

he dropped to the ground, and Grievant continued to pull him to his desk. Grievant 

did not act out of anger and did not harm Student.

Similarly, Arbitrator observed, Principal spoke to Grievant about her 

conduct and expressed his disappointment with her behavior. Principal also 

instructed Grievant as to alternative strategies if a similar incident should occur. 

However, Principal did not take Grievant out of service. Rather, Principal returned 

Grievant to work caring for Student. Principal testified he did not believe Grievant 

would hurt Student.

Further, HR Director, after being advised of Principal’s action, made 

no change. As a result, Grievant cared for Student for the rest of the day. 

Arbitrator noted that if Grievant actually engaged in the egregious conduct alleged 

by Employer, Principal would not have returned Student to her care.
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In rejecting Employer’s position that Grievant’s conduct constituted 

just cause for her dismissal, Arbitrator reasoned (with emphasis added):

We are left with [Grievant’s] conduct, as she 

describes. Pulling a child in this manner is not an 

acceptable practice and should not be repeated. But there 

are many factors which weigh in [Grievant’s] favor, and 

lead to the conclusion that a lesser penalty, short of 

discharge, is warranted. First, [Grievant] is a ten year 

special education aide with an unblemished work record. 

She has received nothing but positive evaluations and 

many compliments for her care of special needs children. 

Second, [Grievant] was immediately forthcoming, 

apologetic, and remorseful about her conduct, showing 

that corrective discipline would reasonably change her 

behavior. As a long-term employee without prior 

discipline, [Grievant] should be afforded that 

opportunity, and I am unconvinced that her behavior 

diminished her ability to effectively care for children 

going forward. As stated above, [Grievant] did not act in 

anger, nor has she displayed any type of bad 

temperament in caring for the children in her charge. 

[Student] was unharmed. [Grievant] exhibited that she is 

a caring aide who obviously has a special gift in dealing 

with the needs of the students.

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

In addition, Arbitrator expressly found Grievant’s conduct did not rise 

to the level of a violation of public school laws. Arbitrator’s Op. at 11; R.R. at 

127a. 

Arbitrator also recognized the parties’ CBA did not limit her ability to 

modify the penalty in the situation where, as here, she did not find Employer 
10

established just cause for Grievant’s dismissal. Id. As such, Arbitrator issued the 

following award (with emphasis added):

In line with the above Opinion, I find that there 

was not just cause for the discharge of [Grievant] and the 

grievance is upheld. [Grievant’s] discharge shall be 

converted to a five (5) day suspension. By way of 

remedy, [Employer] shall reinstate [Grievant] to her 

former or substantially similar position, with full 

seniority, benefits and retirement, and shall make 

[Grievant] whole for her losses, including back pay and 

benefits, for the period of time from the end of her 

suspension until her reinstatement, less any substitute 

interim earnings. [Employer] shall further remove all 

references to [Grievant’s] discharge from [Grievant’s] 

records. The suspension shall run from the first day that 

[Grievant] was placed on unpaid leave.

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

E. Employer’s Appeal

Employer filed a timely petition for appeal of the Arbitrator’s award. 

Employer alleged Arbitrator’s award failed to draw its essence from the CBA, the 

award failed to focus on Grievant’s mistreatment of Student and instead focused on 

other employees’ response to it, and the mistreatment of Student constituted a clear 

violation of public policy.

With regard to the alleged violation of public policy, Employer 

requested that the trial court review the “particular circumstances at hand and the 

factual findings of the arbitrator.” City of Bradford v. Teamsters Local Union No. 

110, 25 A.3d 408, 414 (Pa. Cmwlth. 2011). Citing Bradford, Employer argued that 

a public policy analysis requires a full and complete review of the underlying 
11

dispute in order to determine whether Arbitrator’s award, if implemented, poses an 

unacceptable risk to the safety of the students and the prevention of abuse. 

Employer maintained this can only be accomplished by a review of the transcript 

of the hearing before the Arbitrator.

F. Trial Court’s Bifurcated Decision

1. Hearing Transcript

At the request of parties, the trial court used a bifurcated approach and 

briefing schedule. First, the parties submitted briefs on Employer’s request that the 

trial court review the transcript from the arbitration hearing and include it as part of 

the certified record. In December 2014, the trial court issued an order denying 

Employer’s request to include the transcript as part of the record for review in 

Employer’s appeal. Tr. Ct. Order, 12/19/14; R.R. at 103a.

In an opinion in support of its order, the trial court observed, under the 

two-pronged essence test, the reviewing court first determines whether the issue as 

defined by the arbitrator falls within the terms of the CBA. If the issue is 

embraced by the CBA and appropriately before the arbitrator, the award must be 

upheld if it can rationally be derived from the CBA. To fail the essence test, the 

reviewing court must determine that the award is indisputably and genuinely 

without foundation in, or fails to logically flow from, the CBA. Westmoreland 

Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants 

Educ. Support Pers. Ass’n., 939 A.2d 855 (Pa. 2007); City of Bradford.
12

The trial court further noted that under the essence test, a reviewing 

court may not intrude into the domain of the arbitrator and become embroiled in a 

review of the merits, even if its interpretation of the CBA would differ from that of 

the arbitrator. Westmoreland; State Sys. of Higher Educ. (Cheyney Univ.) v. State 

College & Univ. Prof’l Ass’n (PSEA-NEA), 743 A.2d 405 (Pa. 1999). Given the 

narrow review of the essence test, the trial court, acting as an appellate court with 

limited review, cannot reexamine the evidence supporting the arbitrator’s findings 

of fact. Id. Accordingly, the trial court refused to consider the hearing transcript 

and documentary evidence submitted in the arbitration proceeding.

2. Review of Arbitration Opinion and Award

i. Essence Test

On May 7, 2015, the trial court issued an order denying Employer’s 

petition for appeal of Arbitrator’s opinion and award. R.R. at 189a. In an opinion 

in support of its order, the trial court noted the parties stipulated that Arbitrator had 

authority under the CBA to determine the issue of just cause for Grievant’s 

termination. At the hearing, the parties stipulated that Arbitrator had jurisdiction to 

determine this issue. This satisfied the first prong of the essence test.

Turning to the second prong, the trial court determined Arbitrator’s 

opinion and award was rationally derived from the CBA. In other words, the 

award had its foundation in, and logically flowed from, the CBA. (Cheney Univ.) 

In particular, Arbitrator determined the facts at issue in the grievance, considered 

the parties’ arguments, and concluded Employer did not have just cause to 
13

terminate Grievant. The trial court also noted the parties bargained for an 

undefined and unlimited just cause provision. See Article III, Section C of the 

CBA (Due Process); R.R. at 15a, which provides (with emphasis added):

1. [Employer] and the Association expressly agree that 

the Board and the Administration shall have the right to 

discipline an employee for cause. Disciplinary actions 

which the Board or Administration may take, provided 

that cause exists, shall include, but not be limited to, oral 

reprimand, written warning, written reprimand, 

unsatisfactory rating or dismissal for cause.

2. In determining whether cause exists for dismissal, that 

term shall specifically include, but shall not be limited to, 

just cause, or any conduct or action by an employee that 

would lawfully provide a proper basis for dismissal. 

 

Because the CBA does not define or limit Arbitrator’s authority to 

interpret and apply the term “just cause for dismissal” to the facts of the case, the 

trial court determined Arbitrator’s award had its foundation in, and logically 

flowed from, the CBA.

ii. Public Policy Exception 

In addition, the trial court determined Arbitrator’s award did not 

violate any well-defined and dominant public policy. Westmoreland. In 

addressing this narrow exception to the essence test, the trial court noted the party 

asserting the public policy violation has the burden of proving it. The appropriate 

test is not whether the grievant’s actions or conduct violate a public policy, but 

whether the arbitrator’s award violates public policy. Shamokin Area Sch. Dist. v. 

Am. Fed. of State, Cnty. and Mun. Emp., Dist. Council 86, 20 A.3d 579 (Pa. 

Cmwlth. 2011).
14

Here, the trial court observed, Arbitrator’s reinstatement of Grievant, 

subject to a five-day suspension, did not violate any public policy concerning the 

protection of students from violence on school property. Arbitrator specifically 

found that Grievant did not harm Student, that she did not act out of anger, and that 

she was forthcoming, apologetic and remorseful about her conduct. See

Arbitrator’s Op. at 10; R.R. at 126a. Arbitrator further found that the corrective 

discipline imposed should change Grievant’s behavior and that she would be able 

to effectively care for children going forward. Arbitrator’s Op. at 10-11; R.R. at 

126a-27a. Consequently, the trial court determined there is no public policy 

requiring the court to vacate Arbitrator’s Award. Employer appeals.

II. Discussion

A. Arbitrator’s Record

1. Argument

Employer contends the trial court erred or abused its discretion when 

it denied Employer’s request that the transcribed record before Arbitrator, 

including all documentary evidence and exhibits, be made a part of the trial court’s 

record for review, where Employer alleged Arbitrator’s award violated public 

policy. Although an appellate court should not generally engage in the review of 

the merits of a grievance, Employer contends a limited exception to this highly 

deferential standard has been embraced where, as here, the award violates an 

express public policy. Westmoreland.

Employer further asserts that where the crux of the matter lies in the 

pure application of the public policy exception to the essence test, the Supreme 
15

Court holds that the applicable standard of review is de novo “and our scope of 

review is plenary.” Phila. Hous. Auth., 52 A.3d at 1121. Therefore, because 

Arbitrator’s award implicates the public policy exception, Employer claims the 

trial court erred when it refused to review this case de novo and examine the notes 

of testimony from the arbitration hearing.

Employer notes Pennsylvania courts have acknowledged a welldefined and dominant public policy against violence in schools. See Shamokin 

Area Sch. Dist. (recognizing there is a distinct public policy of protecting students 

from violence on school property which is derived from the School Code). In 

Shamokin, this Court recognized that reinstating a school employee who actually 

struck a student on school grounds could trigger the established public policy of 

protecting students from violence on school property. However, that public policy 

was not implicated in Shamokin by the reinstatement of a groundskeeper who 

vented about his supervisor by screaming about him in a garage where no students 

were present. In Shamokin, the school district conditioned the groundskeeper’s 

reinstatement upon participation in an anger management program and the 

completion of one year on probation.

Employer also cites Bethel Park School District v. Bethel Park 

Federation of Teachers, Local 1607, 55 A.3d 154 (Pa. Cmwlth. 2012). In Bethel 

Park, this Court determined an arbitration award that reinstated a teacher who 

violated a formal improvement plan and repeatedly engaged in inappropriate 

touching of female students violated school district policy in addition to state and 

federal statutes prohibiting sexual harassment of students.
16

Employer posits that in Bethel Park, Shamokin and Westmoreland, 

the courts reviewed the merits of the underlying grievance arbitration and assessed 

the factual record presented to the arbitrator in order to determine whether the 

award implicated, and possibly abrogated, a public policy cited by the school 

district. In light of these cases, Employer asserts the trial court erred and abused its 

discretion by not reviewing the merits of Arbitrator’s award.

Further, Employer contends the trial court erred by refusing to review 

the testimony, documentary evidence, exhibits and Arbitrator’s findings of fact. 

Employer cites City of Bradford, where this Court, applying the Supreme Court’s 

decision in Westmoreland, recognized that application of the public policy 

exception requires the following three-step analysis (with emphasis added):

First, the nature of the conduct leading to the discipline 

must be identified. Second we must determine if that 

conduct implicates a public policy which is ‘welldefined, dominant, and ascertained by reference to the 

laws and legal precedents and not from general 

consideration of supposed public interests.’ Third, we 

must determine if the arbitrator’s award poses an 

unacceptable risk that it will undermine the implicated 

policy and cause the public employer to breach its lawful 

obligations or public duty, given the particular 

circumstances at hand and the factual findings of the 

arbitrator. 

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

Employer asserts the third prong of public policy analysis, which 

requires consideration of the particular circumstances at hand, mandates that the 
17

trial court review the hearing transcript and the arbitrator’s findings of fact to 

determine whether the arbitrator’s award poses a risk to public policy.

Summarizing, Employer asserts that in asking the trial court to review 

the matter de novo, Employer did not seek to retry the factual case on appeal, or 

ask the trial court to substitute its judgment for that of Arbitrator. See Appellant’s 

Br. at 14. Rather, pursuant to Westmoreland and City of Bradford, the trial court is 

to review the matter de novo to ensure the arbitrator’s findings do not violate 

public policy. In other words, application of the public policy exception requires a 

full and complete review of the transcript before the arbitrator, and a review of the 

merits of the dispute to determine whether the award poses an unacceptable risk to 

the established policies ensuring the safety of the students and the prevention of 

violence. Thus, Employer contends the trial court erred by refusing to review the 

transcribed hearing record in the arbitration proceeding. 

2. Analysis

In Bethel Park, we noted that reviewing courts are prohibited from 

second-guessing an arbitrator’s findings of fact and may not reject them simply 

because they disagree with them. Rather, the exclusive focus under the essence 

test is the arbitrator’s interpretation of the CBA. Therefore, an arbitrator’s findings 

of fact are not reviewable on appeal as long as the arbitrator construed or applied 

the CBA. Pa. State Sys. of Higher Educ. v. Ass’n of Pa. State Coll. & Univ. 

Faculties, 98 A.3d 5 (Pa. Cmwlth. 2014); Luzerne Intermediate Unit No. 18 v. 

Luzerne Intermediate Educ. Ass’n, PSEA/NEA, 89 A.3d 319 (Pa. Cmwlth. 2014). 

As such, a transcript of the arbitration hearing is not necessary to appellate review 
18

under the essence test, which is limited to issues of law. Thus, we reject 

Employer’s contention that a court must conduct a de novo review of the 

arbitrator’s findings in cases subject to the essence test. Furthermore, evidence 

bearing no relation to the issues raised on appeal should not be included in the 

reproduced record. Sims v. Pa. R.R. Co., 123 A. 676 (Pa. 1924); Pa. R.A.P. 2152. 

Therefore, in resolving the issue of whether an arbitrator’s award 

violates a well-defined, dominant public policy, there is usually no reason for a 

reviewing court to reexamine the transcript of the arbitrator’s hearing and 

reevaluate the facts. Rather, only the award itself, and the legal authority 

supporting the implication of the public policy, are relevant to a public policy 

exception inquiry. To hold otherwise would result in routine review of the entire 

factual record every time a public employer raises the public policy exception.

Here, the only part of the record necessary for public policy review is 

Arbitrator’s opinion and award. Employer does not specify any material which 

might be absent from the opinion and award but necessary for public policy 

review. In these circumstances, no error by the trial court is evident.

B. Public Policy Exception 

1. Argument

Employer also contends the trial court erred or abused its discretion 

when it denied Employer’s appeal and confirmed Arbitrator’s award where the 

award violated the dominant, well-defined and ascertainable public policy 

requiring the protection and safety of students. In confirming Arbitrator’s award, 
19

Employer asserts Arbitrator fashioned a remedy that required Employer to sanction 

the physical mistreatment of disabled children and provided no tools to ensure that 

Grievant would not repeat her unacceptable behavior. Arbitrator did not require 

Grievant to participate in an improvement plan or undergo classroom observation 

to ensure that she did not repeat the same violent behavior. See Colonial 

Intermediate Unit #20 v. Colonial Intermediate Unit #20 Educ. Ass’n (Pa. 

Cmwlth., No. 839 C.D. 2014, filed February 9, 2015), 2015 WL 5162132 

(unreported opinion) (arbitrator imposed 53-day suspension for grievant’s 

inappropriate, yet remediable behavior, with the additional requirements that the 

grievant successfully complete a formal improvement plan created by the employer 

and designed to address employer’s specific expectations, including the use of 

positive behavioral supports). In short, unlike the present case, the award in 

Colonial Intermediate addressed the employer’s concerns and did not pose an 

unacceptable risk to any well-defined, dominant school law or policy.

Here, Employer asserts, Arbitrator merely suspended Grievant for five 

days with no improvement plan. Employer argues Grievant’s minimal suspension 

and unconditional reinstatement violates a well-defined public policy requiring the 

protection of students, especially disabled and special needs children, from 

violence and mistreatment in schools. See Phila. Hous. Auth. (arbitrator’s 

reinstatement of public employee who repeatedly engaged in acts of inexcusable

and assaultive sexual harassment, with back pay, and without any sanctions, 

violated the dominant and well-defined public policy prohibiting sexual 

harassment in the workplace). Therefore, Employer contends the trial court erred 

and abused its discretion by affirming Arbitrator’s award.
20

Employer further argues the trial court, in affirming Arbitrator’s 

award, improperly focused on the reaction of Student and several bystanders to 

Grievant’s misconduct rather than the misconduct itself. Because Student did not 

cry, and none of the bystanders intervened or reacted, Arbitrator dismissed 

Grievant’s misconduct as insufficiently egregious. Employer asserts Arbitrator’s 

reasoning essentially blames Student for his lack of crying or a physical injury. It 

is unreasonable, Employer urges, to require that a student sustain an actual injury 

before allowing a school district to enforce its obligation to protect its students.

To that end, Employer notes the reviewing court in Bethel Park did 

not discuss whether the seventh grade female students were actually offended by 

the grievant’s inappropriate behavior in determining whether the arbitrator’s award 

reinstating the grievant violated the public policy against sexual harassment.

Therefore, Employer reasons, Arbitrator should have determined that 

Grievant’s conduct in pulling Student, a special needs child, across the floor for 20 

feet implicated an important public policy prohibiting the mistreatment of children 

in schools. Consequently, even accepting the facts Arbitrator found, the trial court 

erred in determining Arbitrator’s award did not violate a dominant, well-defined 

public policy against the mistreatment of students. Bethel Park. 

2. Analysis

Employer does not contest the trial court’s conclusion that 

Arbitrator’s award satisfies both prongs of the essence test. Therefore, we need 
21

only decide whether Arbitrator’s award violates a well-defined and dominant 

public policy. 

Employer’s public policy argument lacks merit. Arbitrator found 

Grievant’s version of the incident more credible than that offered by Employer. 

Although Arbitrator found Grievant’s actions, in pulling Student, to be 

unacceptable, Arbitrator did not find those actions motivated by anger or intent to 

harm. In addition, Arbitrator did not find that Grievant’s conduct harmed or 

abused Student, or violated school laws. See Arbitrator’s Op. at 10-11; R.R. at 

126a-27a. As such, Arbitrator essentially determined Grievant did not violate any 

well-defined or dominant public policy involving school violence. 

Arbitrator also determined Grievant’s conduct did not constitute just 

cause for her dismissal. In accord with the CBA, it is solely within Arbitrator’s 

province to find just cause for discipline under the facts of the case. Office of the 

Attorney General v. Council 13, Am. Fed. of State, Cnty. and Mun. Emp., AFLCIO (Council 13), 844 A.2d 1217 (Pa. 2004). This includes the authority to 

modify discipline. Abington Sch. Dist. v. Abington Sch. Serv. Personnel Ass’n, 

744 A.2d 367 (Pa. Cmwlth. 2000).

Further, an arbitrator possesses the authority to fashion remedies 

necessary to further the intended essence of a CBA. Greater Latrobe Area Sch. 

Dist. v. Pa. State Educ. Ass’n, 615 A.2d 999 (Pa. Cmwlth. 1992). As such, 

Arbitrator had the discretion to modify Employer’s discipline of Grievant from 

dismissal to a limited suspension.
22

We also note that the cases cited by Employer, particularly 

Philadelphia Housing Authority, Bethel Park and Colonial Intermediate, are 

factually distinguishable in that they involve repeated and significantly more 

egregious conduct. Philadelphia Housing Authority, and to a lesser extent, Bethel 

Park, involved repeated acts of deliberate sexual harassment despite repeated 

warnings. Here, Arbitrator found Grievant, by pulling or dragging Student to his 

desk, engaged in one act of unacceptable behavior for which she was immediately 

apologetic and remorseful. Arbitrator also found it unlikely that Grievant would 

ever repeat her actions.

Colonial Intermediate is likewise distinguishable. There, a special 

education teacher hung an offensive sign on a special needs student during class 

after learning the student repeatedly struck a goat while on an earlier class trip to a 

petting zoo. When another teacher removed the offensive sign because the student 

became upset and began crying, the grievant put the offensive sign back on the 

student. The arbitrator ultimately found in part that the grievant misapplied a 

behavior modification technique. In reinstating the grievant, the arbitrator did not 

endorse the grievant’s misbehavior, but noted that the district failed to sufficiently 

educate the grievant about its policies and expectations. As such, the arbitrator 

imposed a 53-day suspension and crafted a remedy including additional training 

and an improvement plan.

In the present case, Arbitrator determined a 5-day suspension was 

sufficient to ensure that Grievant, a 10-year employee with a prior unblemished 
23

record, would not repeat her misconduct. Arbitrator observed that Principal 

instructed Grievant as to alternative strategies if a similar incident should occur. 

Also, Arbitrator specifically found that the corrective discipline imposed would 

most likely change Grievant’s behavior, and that she would be able to effectively 

care for children going forward. Arbitrator’s Op. at 10-11, R.R. at 126a-27a.

III. Conclusion

For the above reasons, we find no error or abuse of discretion in either 

the trial court’s refusal to consider the evidentiary record in the arbitration 

proceeding or the court’s determination that Arbitrator’s award did not result in the 

violation of a well-defined, dominant public policy. Accordingly, we affirm. 

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rose Tree Media Secretaries & :

Educational Support Personnel :

Association - ESPA,PSEA-NEA :

: No 965 C.D. 2015

v. :

:

Rose Tree Media School District, :

Appellant :

O R D E R

AND NOW, this 21st day of March, 2016, for the reasons stated in the 

foregoing opinion, the order of the Court of Common Pleas of Delaware County is 

AFFIRMED. 

 

ROBERT SIMPSON, Judge