IN THE COMMONWEALTH COURT OF PENNSYLVANIA

School District of Philadelphia :

:

v. : No. 152 C.D. 2016

: Argued: February 7, 2017

Commonwealth Association of :

School Administrators, Teamsters :

Local 502, :

Appellant :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: April 13, 2017 

The Commonwealth Association of School Administrators, Teamsters 

Local 502 (Association), appeals from an order of the Court of Common Pleas of 

Philadelphia County (trial court), granting School District of Philadelphia’s 

(District) petition to vacate an arbitration award. For the reasons that follow, we 

reverse. 

The facts underlying this matter are not in dispute. The Association is 

a labor union that represents school principals and other administrators. The 

Association brings the instant appeal on behalf of Michelle Burns (Burns), the 

former principal of William T. Tilden Middle School (Tilden), located within the 

District. Burns was first hired by the District as a teacher in 1997. The District 

appointed her as principal of Tilden in 2006 where she served until 2010. In 2010, 
2

she became the principal at Kensington Urban Education Academy High School 

until the District terminated her employment on January 15, 2014. 

Pennsylvania requires every school district to administer to its 

students a standardized examination called the Pennsylvania System School 

Assessment (PSSA). The PSSA measures students’ competency in various 

academic subjects and is also used to rate faculties, administrators, schools, and 

districts based on the student bodies’ performance. 

In 2011, the Pennsylvania Department of Education (Department) 

conducted a statistical analysis which revealed a high number of “beneficial 

erasures” at several schools in the District. Beneficial erasures occur when an 

incorrect answer on a standardized test is erased and the correct answer is marked 

instead. The Department instructed the District to investigate several of the 

identified schools, including Tilden. Based on its investigation, the District 

concluded that the beneficial erasures at several schools, including Tilden, were the 

result of improper conduct. Specifically, the investigation concluded that school 

employees altered the tests in an attempt to bolster the school’s overall 

performance on the PSSA. The investigation determined that 100 percent of 

Tilden’s PSSA tests in 2009 and 2010 were altered. The District alleged that 

Burns, who was the principal of Tilden during the time covered by the analysis, 

actively participated in the improper conduct or knowingly allowed the conduct to 

continue. Alternatively, the District alleged that, if Burns was unaware, she acted 

negligently by failing to discover and prevent such misconduct. On 

January 15, 2014, the District terminated Burns’ employment based on these 

allegations. 
3

Effective September 1, 2013, the Association and the District entered 

into a Collective Bargaining Agreement (CBA) which set forth the terms and 

conditions of employment for administrators employed by the District. Article 2, 

Section 2.1 of the CBA provides that the District “shall retain the sole right to hire, 

discipline or discharge for cause, lay off, transfer and assign Administrators.” 

(Reproduced Record (R.R.) at 22a.) The Association filed a grievance pursuant to 

Article 5 of the CBA. Article 5 of the CBA defines a grievance as “a claim of a 

violation of any specific provision of this Agreement or of any Personnel Policy or 

Regulation which has been or shall be adopted by the [District].” (R.R. at 27a.)

Pursuant to the procedures set forth in the CBA, the Association filed 

a grievance contesting the District’s decision to terminate Burns’ employment. A

single arbitrator (Arbitrator) conducted a hearing on April 30, 2015. 

At the hearing, the Association argued that the District could present 

no evidence that Burns was directly involved in any misconduct and, even 

assuming that she was negligent in allowing the conduct to occur while she served 

as principal, termination of her employment was a disproportionate consequence 

for her mere lapse in oversight. Burns testified that she did not participate in any 

cheating and was not aware of any other school employees improperly helping 

students on exams. She also testified that Tilden hired an outside testing contractor 

to insure the integrity of the PSSA testing process. Burns additionally noted that 

the testing contractor offered her incentives if Tilden achieved acceptable yearly 

progress on PSSA scores, but, because she announced her intent to leave Tilden in 

December of 2009, she would not have received an incentive based on test scores 

in 2010. 
4

The District called five witnesses in support of its decision to 

terminate Burns’ employment. The first two witnesses, Donyall Dickey, the 

District’s chief academic officer and Jordan Floyd, a teacher at Tilden during 

Burns’ tenure as principal, testified regarding the importance of the PSSA testing 

and how a school’s overall scores affect the chances of a principal to be promoted 

to a superintendent position. The third witness, Dr. Uma Jayaraman, testified that 

the District was required to train testing coordinators for the PSSA and that the 

principal of each school was responsible for insuring that all school employees 

followed proper testing procedures and security protocols. Jeff Robinson, the 

District’s project manager for testing logistics, testified that the analysis of PSSA 

answer sheets demonstrated that the number of beneficial erasures at Tilden was 

four standard deviations above the state-wide average. Robinson also noted that 

the number of beneficial erasures dropped to nearly zero the year after Burns left 

Tilden. Finally, Jessica Diaz, former assistant general counsel to the District, 

testified that a large, national law firm analyzed the number of beneficial erasures 

at several Philadelphia schools in 2009, 2010, and 2011. Diaz testified that the 

analysis concluded that systematic cheating was occurring at Tilden across all 

grades, subjects, and classrooms. Diaz stated that, according to the report, Burns, 

as principal of the school, must have directly facilitated the cheating or willfully 

ignored it, or she was completely oblivious to her responsibilities as principal. 

Diaz also stated that other teachers and administrators had admitted to cheating 

while working at Tilden, although none of these individuals responded to the 

District’s calls to testify at the arbitration hearing. 

The Arbitrator issued his decision and award (Award) on 

August 16, 2015. The Arbitrator sustained the Association’s grievance in part and 
5

denied it in part, concluding that Burns did not actively participate in cheating at 

Tilden, but that she failed in her supervisory responsibilities and in exercising 

oversight over PSSA test security. In light of his conclusion that Burns did not 

actively participate in any misconduct, the Arbitrator determined that termination 

was a disproportionate penalty for failure to supervise adequately and mitigated 

Burns’ suspension to a period of 60 calendar days without pay. Because Burns had 

not been employed during the pendency of the grievance, the Arbitrator ordered 

the District “to reinstate her as soon as practicable to the principal position she held 

before she was fired.” (R.R. at 17a.)

The District filed in the trial court a petition to vacate the Award, and 

the Association filed its answer and new matter, seeking confirmation of the 

Award. Before the trial court, the District argued that the Award cannot logically 

flow from the provisions of the CBA and that the Award violates public policy by 

reinstating an administrator involved in a cheating scandal. The trial court 

concluded that the Award was not rationally derived from the CBA because the 

Arbitrator made the factual determination that Burns committed a terminable 

offense, i.e. neglected her supervisory duties as principal, yet failed to recognize 

the explicit language of the CBA granting the District the “sole right” to determine 

the appropriate level of discipline. (Trial court op. at 3.) By order dated 

January 13, 2016, the trial court granted the District’s petition and vacated the 

Arbitrator’s Award. The trial court reasoned that the Arbitrator’s decision was 

based on a “just cause” analysis, which was not supported by any provision of the 

CBA, and that the decision to reinstate Burns violated a clear public policy against 

school administrators condoning cheating. The Association appealed the trial 

court’s order to this Court. 
6

On appeal, the Association argues that the trial court erred in vacating 

the Award for three reasons: (1) the trial court invaded the province of the 

Arbitrator by concluding that he incorrectly applied a “just cause” analysis; (2) the 

trial court incorrectly concluded that the Arbitrator exceeded his authority by 

modifying the discipline imposed by the District; and (3) the trial court erred in 

determining that the Award violated public policy. 

Although our Supreme Court has held that an arbitrator’s 

interpretation of a CBA should be given great deference, the arbitrator’s decision 

must be rationally derived from the terms of the CBA. Office of the Attorney 

General v. Council 13, Am. Fed’n of State, Cnty. and Mun. Emps., 

AFL-CIO, 844 A.2d 1217, 1222 (Pa. 2004) (OAG). We have previously explained 

the “essence test” used to determine whether an arbitrator’s Award is rationally 

related to the terms of the CBA, as follows:

As stated by the Pennsylvania Supreme Court in 

Westmoreland Intermediate Unit # 7 v. Westmoreland 

Intermediate Unit # 7 Classroom Assistants 

Educational Support Personnel Association, 

PSEA/NEA, 939 A.2d 855 (Pa. 2007), the essence test 

was derived from the United States Supreme Court’s 

decision in United Steelworkers v. Enterprise Wheel & 

Car Corp., 363 U.S. 593 (1960), wherein, the Court held: 

An arbitrator is confined to interpretation and application 

of the collective bargaining agreement; he does not sit to 

dispense his own brand of industrial justice. He may, of 

course, look for guidance from many sources, yet his 

award is legitimate only so long as it draws its essence 

from the collective bargaining agreement.

The Westmoreland Court further explained: 

Recently . . . we reaffirmed the essence test and set 

forth a clear two-prong approach to judicial review of 

grievance arbitration awards: First, the court shall 

determine if the issue as properly defined is within the 

terms of the collective bargaining agreement. Second, if 
7

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. 

Bethel Park Sch. Dist. v. Bethel Park Fed’n of Teachers,

Local 1607, 55 A.3d 154, 157 (Pa. Cmwlth. 2012) (internal quotations omitted), 

appeal denied, 62 A.3d 380 (Pa. 2013).1 

We first address the Association’s argument that the trial court 

inappropriately intruded upon the domain of the Arbitrator by rejecting his 

interpretation of “cause” under the CBA. To the extent that the trial court held that 

the Arbitrator erroneously interpreted the definition of “cause” contained in 

Article 2.1 of the CBA, the trial court clearly erred. It is a foundational principle

of arbitration that a court may not substitute its own judgment for that of the 

arbitrator. See Pa. State Sys. of Higher Educ. v. Ass’n of Pa. State Coll. & Univ. 

Faculties, 98 A.3d 5 (Pa. Cmwlth. 2014). An arbitrator is charged by the parties 

with a duty to apply and interpret the contract, including the concept of just cause. 

See OAG, 844 A.2d at 1217. The trial court’s disagreement with the arbitrator’s 

interpretation is not alone sufficient to set aside the arbitrator’s interpretation. 

 

1 We note that the District cites our decision in Riverview School District v. Riverview 

Education Association, 639 A.2d 974, 977 (Pa. Cmwlth. 1994), appeal denied, 655 A.2d 518 

(Pa. 1995), for the proposition that a court may vacate an arbitrator’s award if the court 

determines that the award was “manifestly unreasonable.” Riverview Sch. Dist., 639 A.2d 

at 977. Our Supreme Court, however, has expressly stated that the essence test does not allow a 

court to evaluate the reasonableness of an award. Pennsylvania Game Comm’n v. State Civil 

Service Comm’n (Toth), 747 A.2d 887, 891 n.7 (Pa. 2000) (Toth) (“Thus, we reiterate 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.”); Westmoreland, 939 A.2d at 863.
8

The trial court initially determined that the Arbitrator misapplied 

Section 1122 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, 

as amended, 24 P.S. § 11-1122 (School Code), which provides, in pertinent part: 

The only valid causes for termination of a contract 

heretofore or hereafter entered into with a professional 

employe shall be immorality; incompetency . . . 

intemperance; cruelty; persistent negligence in the 

performance of duties; willful neglect of duties . . . 

conviction of a felony or acceptance of a guilty plea or 

nolo contendere therefor; persistent and willful violation 

of or failure to comply with school laws of this 

Commonwealth (including official directives and 

established policy of the board of directors); on the part 

of the professional employe. . . .

The trial court reasoned that, because “cause” is statutorily defined, the Arbitrator 

was without authority to interpret the definition of cause contrary to the statute. 

This analysis, however, is precisely the type of analysis disfavored by our Supreme 

Court in Toth. A court may not look into an arbitrator’s decision and decide 

whether the arbitrator’s interpretation is reasonable. State Sys. of Higher 

Educ. (Cheyney Univ.) v. State College Univ. Prof’l Ass’n 

(PSEA-NEA), 743 A.2d 405, 413 (Pa. 1999). The Arbitrator interpreted the term 

“cause” within the contract to mean “just cause.” The Arbitrator did not equate 

“cause” under the contract to be a “valid cause for termination” pursuant to 

Section 1122. The Arbitrator was interpreting a provision of the CBA rather than a 

statutory provision. Thus, to the extent the trial court held that the Arbitrator 

misinterpreted the definition of cause in the CBA, the trial court erred by 

exceeding the scope of its review. 

Moreover, we see no conflict in the Arbitrator’s interpretation of the 

CBA and Section 1122 of the School Code. Section 1122 of the School Code 

provides that only certain enumerated conduct by a professional employee amounts 
9

to “cause[s] for termination.” In other words, Section 1122 of the School Code 

prescribes the circumstances under which a school district may terminate a 

professional employee. It does not, however, mandate that a school district 

terminate any professional employee found to have engaged in such conduct. 

It also does not preclude a professional employee from grieving a termination 

decision for one or more of the authorized “causes” identified in Section 1122 of 

the School Code. The authority of an arbitrator, then, to review a termination 

decision and to mitigate discipline imposed by a school district is not restricted by 

Section 1122 of the School Code. Instead, we must look to the parties’ CBA for 

any such restrictions on the arbitrator’s authority.

Accordingly, we next address the Association’s argument that the trial 

court erred in concluding that the Arbitrator exceeded his authority under the CBA 

when he modified the discipline imposed. The trial court concluded that the 

express terms of the CBA preclude the Arbitrator from modifying the discipline 

assessed by the District. The trial court essentially determined that the Arbitrator’s 

role was to make the factual determination of whether any cause for discipline 

exists. If the Arbitrator determined that Burns committed any offense subject to

discipline, then, under the trial court’s analysis, the District had unfettered 

discretion to impose any discipline it saw fit. Under this analysis, the penalty 

imposed is not reviewable by an arbitrator. 

We have recently held that, absent a clear limitation in the CBA, it is 

within an arbitrator’s authority to modify the discipline imposed by a school 

district: “[The a]rbitrator also determined [the g]rievant’s conduct did not 

constitute just cause for her dismissal. In accord with the CBA, it is solely within 

[the a]rbitrator’s province to find just cause for discipline under the facts of the 
10

case. This includes the authority to modify discipline.” Rose Tree Media 

Secretaries & Educ. Support Pers. Ass’n v. Rose Tree Media Sch. 

Dist., 136 A.3d 1069, 1080 (Pa. Cmwlth. 2016) (internal citations omitted); see 

also Blue Mountain Sch. Dist. v. Soister, 758 A.2d 742 (Pa. Cmwlth. 2000) 

(holding that, even under manifestly unreasonable standard, arbitrator’s 

interpretation of “just cause” can include modification of discipline if arbitrator 

concluded that penalty imposed was excessive). In Rose Tree, this Court applied 

the two-pronged essence test, set forth above, to determine whether an arbitrator’s 

modification of the discipline imposed by a school district was rationally derived 

from the CBA. The parties in Rose Tree stipulated that the arbitrator had authority 

to decide the issue before him, and, thus, the first prong of the essence test was 

met. This Court examined the relevant language contained in the parties’ CBA, 

which provided, in pertinent part: 

[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.

Rose Tree, 136 A.3d at 1076. Based on this language, we held that the CBA did 

not limit the arbitrator’s authority to determine whether just cause existed and to 

modify the discipline imposed by the school district. 

We have previously distinguished between a provision of a CBA 

which allows an arbitrator to review and modify a district’s disciplinary ruling and 

a provision that expressly reserves for the employer the right to decide the 

appropriate form of discipline:
11

An arbitrator generally has the power, and specifically 

under this Agreement, to interpret its provisions . . . and 

we will not reverse unless the interpretation of the 

agreement fails to draw itself from the essence of the 

agreement. Regarding whether arbitrators have correctly 

decided that they had the power to modify discipline 

imposed by the employer under the Agreement, we have 

held that where 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 the discipline, the arbitrator 

is within his or her authority in construing the agreement 

to modify the discipline imposed to reflect a reasonable 

interpretation of the agreement.

Abington Sch. Dist. v. Abington Sch. Serv. Pers.

Ass’n/AFSCME, 744 A.2d 367, 369 (Pa. Cmwlth. 2000). In Abington, we 

concluded that the language in the CBA must be specific to reserve the authority to 

impose discipline to the school district in contrast to language generally reserving 

authority to a district.

2

 

 

2

The Court in Abington found that, 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, AFL–CIO, 610 A.2d 506 (Pa. 

Cmwlth. 1992) (Philadelphia Federation), which provided “the arbitrator shall have no power or 

authority to make any decision contrary to or inconsistent with terms of the agreement or 

applicable law or which limits or interferes with the powers and responsibility of the [d]istrict.”

Philadelphia Fed’n, 610 A.2d at 508. This Court reached a similar holding in Riverview, 

wherein we held that the reference to Section 1122 of the School Code, which provides, in part 

that “[t]he [school district] . . . shall . . . 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,” was sufficient to reserve 

discretion to decide the appropriate discipline to the school district. A review of Philadelphia 

Federation and Riverview, however, reveals that both cases based their conclusions on a 

“manifestly unreasonable” analysis. See Riverview, 639 A.2d at 978-79 (holding “it is therefore 

manifestly unreasonable to conclude that the School District could have intended to bargain 

away its absolute responsibility to insure the integrity of its educational mission by discharging 

an employee who commits improper conduct.”) Accordingly, our analysis may be informed by 

(Footnote continued on next page...)
12

We now address whether the Arbitrator’s interpretation of the CBA as 

allowing the Arbitrator to modify the discipline imposed was rationally derived 

from the CBA or whether the CBA clearly reserved to the District the right to 

determine the appropriate discipline. The relevant provisions of the CBA are as 

follows. Article 2.1 of the CBA provides that the District “shall retain the sole 

right to hire, discipline or discharge for cause, lay off, transfer and assign 

Administrators.” (R.R. at 22a.) Article 2.3 provides that the CBA “is not intended 

to modify by any of its terms any discretionary authority concerning such matters 

vested in the [District] by the statutes of the Commonwealth or the Philadelphia 

Home Rule Charter, as the same may be supplemented or amended from time to 

time.” (R.R. at 23a.) Article 10.6 of the CBA, which relates to personnel 

practices, provides that “[a]dministrators may be disciplined for cause at the 

discretion of the [District]. Discipline shall include discharge, suspension, 

demotion in salary or status or any other action disciplinary in nature.” 

(R.R. at 45a.) Article 5.5(l) of the CBA provides: 

The Arbitrator shall have the power and authority to 

decide and shall limit his/her decision strictly to the 

matter specified in the Notice of Arbitration. The 

Arbitrator shall be without power or authority to make 

any decision that is: 

(1) Contrary to or inconsistent with, or which 

modifies or varies in any way, the terms of this 

 

(continued...)

our prior holdings in Riverview and Philadelphia Federation to the extent those decisions 

analyzed whether the language in the CBA clearly reserved the discretion to determine the 

appropriate discipline to the District. Because the standard of review applied by those decisions 

has been disfavored, however, we are not bound by their conclusions. 
13

Agreement or of applicable law or rules or regulations 

having the force and effect of law; or

(2) Which limits or interferes in any way with the 

power, duties, responsibilities and discretion of the Board 

and/or [School Reform Commission (SRC)] under its 

By-Laws, applicable law, or rules and regulations having 

the force and effect of law. 

(R.R. at 29a.)

The District asserts that these Articles, read in conjunction, are 

intended to reserve the authority to decide appropriate discipline to the District. 

Although the District has asserted colorable arguments as to how certain provisions 

of the CBA could be interpreted to limit an arbitrator’s authority, the Arbitrator 

interpreted the provisions to allow him to modify the discipline imposed by the 

District, and no provision of the CBA expressly precludes the Arbitrator from 

modifying the discipline imposed by the District. The essence test does not allow a 

reviewing court to decide de novo whether an arbitrator correctly interpreted his or 

her authority under the CBA. State Sys. of Higher Educ. (Cheyney 

Univ.), 743 A.2d at 413. Instead, we need only determine whether the arbitrator’s 

authority is rationally derived from the CBA. Bethel Park Sch. 

Dist., 55 A.3d at 157. Presumably, the Arbitrator determined that his authority 

derived from Article 5.5 of the CBA, which authorizes the Arbitrator to decide 

issues placed before him by the parties through the Notice of Arbitration unless 

otherwise limited by the CBA, statutes, or regulations. In this instance, the issue 

before the Arbitrator was the following: “Did the District have just cause to 

terminate [Burns] and, if not, what shall be the remedy?” (R.R. at 9a.) As 

explained above, our prior precedent has established that the authority to modify 

discipline is inherent in an arbitrator’s authority to determine whether just cause 

for discipline exists, unless the authority to modify discipline is expressly reserved 
14

to the District. See Rose Tree, 136 A.3d at 1080. The Arbitrator concluded that no 

provision of the CBA, statute, or regulation expressly limited his authority to 

modify the discipline imposed by the District. Accordingly, the Arbitrator 

determined that “termination is a disproportionate penalty that shall be mitigated to 

a suspension without pay.” (R.R. at 17a.) 

In the context of a school district arguing that a provision of the CBA 

excluded a particular class of violations from arbitration, we held: 

Clearly, the best evidence that parties to a public 

employment collective bargaining agreement intended 

not to arbitrate a particular class of disputes is an express 

provision in the agreement excluding these questions 

from the arbitration process. Where, as here, the 

collective bargaining agreement contains no such 

limiting provision, to subject a unionized employee to 

arbitrary discipline resulting in a loss of employee rights 

and protections afforded by the agreement, without 

recourse to protest the employer’s action, would render 

the agreement a mere sham and run counter to PERA’s[3]

objective to provide for mutual fair dealing by the parties 

with regard to employment issues. 

Hanover Sch. Dist. v. Hanover Educ. Ass’n, 814 A.2d 292, 297 (Pa. Cmwlth.), 

aff’d, 839 A.2d 183 (Pa. 2003) (per curiam). Thus, we decline to conclude that a 

provision limits the Arbitrator’s authority where the provision purported to do so is 

vague rather than express. 

With regard to the Association’s first two arguments, based on the 

language of the CBA, we conclude that the Award was “not ‘indisputably and 

generally [] without foundation in’ the CBA, and it appears to ‘logically flow 

 

3

Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S.

§§ 1101.101-.2301.
15

from’ the CBA.” Pennsylvania Turnpike Comm’n v. Teamsters Local Union 

No. 77, 87 A.3d 904, 911 (Pa. Cmwlth. 2014) (quoting Slippery Rock Univ. of Pa., 

Pa. State Sys. of Higher Educ. v. Ass’n of Pa. State Coll. and Univ. 

Faculty, 71 A.3d 353, 358 (Pa. Cmwlth.), appeal denied, 83 A.3d 169 (Pa. 2013)). 

Accordingly, the trial court erred in concluding that the Arbitrator’s Award did not 

draw its essence from the CBA. 

Because the trial court also concluded that, even if the Arbitrator’s 

Award did draw its essence from the CBA, the Award should still be vacated 

because it contravened a public policy of the Commonwealth, we now address the 

Association’s argument that the trial court erred in determining that the 

Arbitrator’s Award fell within the public policy exception to the essence test. The 

public policy exception is a narrow exception, prohibiting a court from enforcing 

an arbitrator’s award that contravenes public policy. See Westmoreland, 939 A.2d 

at 855. As explained by our Supreme Court, “a court should not enforce a 

grievance arbitration award that contravenes public policy. Such public policy, 

however, must be well-defined, dominant, and ascertained by reference to the laws 

and legal precedents and not from general considerations of supposed public 

interests.” Id. at 865-66. In City of Bradford v. Teamsters Local Union 

No. 110, 25 A.3d 408 (Pa. Cmwlth.) (en banc), appeal denied, 32 A.3d 1279 

(Pa. 2011), we set forth a three-step analysis to be used when considering whether 

an award violates public policy:

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 considerations of 

supposed public interests. Third, we must determine if 

the [a]rbitrator’s award poses an unacceptable risk that it 
16

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 [a]rbitrator.

City of Bradford, 25 A.3d at 414. 

We must first determine the nature of the conduct leading to the 

discipline. Here, the trial court concluded that “it is fundamental that plagiarism 

and cheating are antithetical to learning and education and thus contrary to 

established policy.” (Trial court op. at 6.) The Association argues that the 

Arbitrator found that Burns had merely failed to supervise properly the security of 

the PSSA administration and did not engage in conduct that constituted plagiarism 

or cheating. 

We agree that the trial court mischaracterized the Arbitrator’s factual 

findings when analyzing the public policy exception to the essence test. The trial 

court also stated: “Where, as here, there is no disagreement that school 

administration, if not the principal herself, have been implicated in changing 

students’ answers on a standardized test over a two year period . . . public policy is 

offended.” (Trial court op. at 6 (emphasis in original).) The Arbitrator 

unequivocally found that the District did not demonstrate that Burns was directly 

involved in changing or altering any PSSA answers. The Arbitrator found only 

that she was neglectful in failing to discover the cheating that was occurring. 

Thus, our inquiry is limited to whether reinstatement of an administrator found to 

be neglectful in the supervision of school employees and other administrators 

contravenes a well-defined, dominant, and readily-ascertainable public policy. 

It is well-settled that we may not vacate an arbitrator’s award under 

the public policy exception simply because the conduct at issue is unacceptable in 

a public employment setting. City of Bradford, 25 A.3d at 415. “There is no 
17

public policy that mandates the discharge of all employees who are alleged to have 

committed a misconduct.” County of Mercer v. Teamsters Local 250, 946

A.2d 174, 183 (Pa. Cmwlth. 2008). Prior case law has recognized areas where a 

dominant public policy would preclude the enforcement of an arbitrator’s award. 

Westmoreland Intermediate Unit No. 7 v. Westmoreland Intermediate Unit No. 7 

Classroom Assistants Educ. Support Pers. Ass’n, PSEA-NEA, 977 

A.2d 1205, 1211-12 (recognizing “a well-defined, dominant public policy to 

protect school children from illegal drugs and drug use”); cf. New KensingtonArnold Sch. Dist. v. New Kensington-Arnold Educ. Ass’n., 140 A.3d 26 (Pa. 

Cmwlth. 2016) (holding that teacher’s conviction for possession of marijuana offpremises and during non-working hours did not require vacatur of arbitration 

award reinstating teacher.); see also Philadelphia Housing Auth. v. Am. Fed’n of 

State, Cnty. and Mun. Emps., Dist. Council 33, Local 934, 52 A.3d 1117 

(Pa. 2012) (holding that arbitration award reinstating employee discharged for acts 

constituting sexual harassment, violated well-defined and dominant public policy); 

North Penn Sch. Dist. v. North Penn Educ. Ass’n, 58 A.3d 848, 858 (Pa. 

Cmwlth. 2012) (“[An award] under the public policy analysis [must draw] the 

necessary balance between the public employer’s duty to protect the health, safety 

and welfare of the public, and the fair treatment of public employees”); Shamokin 

Area Sch. Dist. v. Am. Fed’n of State, Cnty. & Mun. Emps. Dist. 

Council 86, 20 A.3d 579 (Pa. Cmwlth. 2011) (recognizing public policy against 

violence towards students in schools).4

 

4 We have previously held that an arbitrator’s award which divests an educational 

institution of its authority to make employment decisions does not, by itself, violate any 

(Footnote continued on next page...)
18

The District asserts that Burns’ actions violate a well-defined public 

policy to protect students and public education and to preserve the integrity of the 

PSSA testing. The District requests that this Court recognize a broad public policy 

to protect students and public education. Although the overarching goal of our 

school system is to provide a thorough and efficient educational environment for 

children in the Commonwealth, the District’s vague characterization of this policy 

would necessarily implicate any conduct occurring in a school setting, thus 

eviscerating the narrow public policy exception to the essence test. See 

Philadelphia Housing Auth., 52 A.3d at 1125 (emphasizing that public policy 

exception is exceptionally narrow and particularized). 

We do, however, recognize that a fundamental public policy exists to 

“preserve the integrity of the PSSA testing,” in order to provide students in the 

Commonwealth with an effective learning environment, and, had the Arbitrator 

found Burns to be guilty of actively participating in altering PSSA tests, we would 

have no hesitation in affirming the trial court’s conclusion that such conduct 

offends a well-defined and dominant public policy of the Commonwealth; 

however, this is not the case. Instead, the Arbitrator found only that Burns had 

failed in her supervisory responsibilities and in exercising oversight over PSSA test 

security. In other words, the Arbitrator essentially found that Burns engaged in 

negligent supervision. 

 

(continued...)

well-defined, dominant public policy. East Stroudsburg Univ. of Pa., State Sys. of Higher Educ. 

v. Ass’n of Pa. State Coll. and Univ. Faculties, 125 A.3d 870, 874 (Pa. Cmwlth. 2015).
19

We are constrained by the factual findings of the Arbitrator on appeal 

and, thus, must decide whether an award reinstating Burns, despite finding that she 

was negligent, violates a fundamental public policy. This Court has not previously 

recognized a public policy exception that would prevent an administrator from 

being reinstated based on mere negligence, and we decline to recognize one based 

on the facts of this case. Although the cheating which occurred at Tilden is 

abhorrent and such conduct must be rooted out, the Arbitrator found only that 

Burns failed to uncover the cheating and prevent it. Thus, we cannot conclude an 

award reinstating an administrator after finding her guilty of mere negligence 

violates a fundamental public policy. For the reasons set forth above, the trial 

court erred in concluding that the Arbitrator’s Award was contrary to public policy 

and that the Award should be vacated.5 Accordingly, the order of the trial court is 

reversed. 

 

 P. KEVIN BROBSON, Judge

 

5 Because we conclude that the Arbitrator’s Award does not meet the second prong of the 

public policy exception, we need not analyze the Award under the third prong. See City of 

Bradford, 25 A.3d at 415. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

School District of Philadelphia :

:

v. : No. 152 C.D. 2016

:

Commonwealth Association of :

School Administrators, Teamsters :

Local 502, :

Appellant :

O R D E R

AND NOW, this 13th day of April, 2017, the order of the Court of 

Common Pleas of Philadelphia County (trial court), granting the School District of 

Philadelphia’s petition to vacate the arbitration award, is REVERSED. 

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

School District of Philadelphia :

: No. 152 C.D. 2016

v. :

: Argued: February 7, 2017

Commonwealth Association of :

School Administrators, Teamsters :

Local 502, :

Appellant :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

CONCURRING OPINION 

BY JUDGE McCULLOUGH FILED: April 13, 2017

I concur in the result reached by the Majority. However, I write 

separately because I disagree with the conclusion that the Arbitrator could interpret 

“cause” within the collective bargaining agreement (CBA) to mean “just cause.” 

I believe it is unnecessary to evaluate this matter under a “just cause” 

standard when the CBA only contains the term “cause.” If the meaning of “cause” 

cannot be gleaned from the four corners of the CBA, I believe we simply look to 

Section 1122(a) of the Public School Code of 1949 (Code),1 which provides “[t]he 

only valid causes for termination of a contract . . . entered into with a professional 

employee. . . .” 24 P.S. §11-1122(a).

 

1 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §11-1122(a).
PAM - 2

Moreover, I do not read Pennsylvania Game Commission v. State 

Civil Service Commission (Toth), 747 A.2d 887 (Pa. 2000), as countenancing the 

disregard of a statutory definition on point. I do not believe that Toth stands for the 

proposition that an arbitrator may ignore a statutory definition on point, and 

instead, effectively, insert a non-existent adjective into the CBA. As the Majority 

notes, while section 1122 of the Code defines “cause” and “prescribes the 

circumstances under which a school district may terminate a professional 

employee,” it does not mandate termination for the conduct identified therein. 

(Slip op. at 9.) Hence, I agree with the Majority’s conclusion that the Arbitrator 

had authority to determine that Michelle Burns did not act intentionally and to 

mitigate her termination to a 60-day suspension without pay and order her 

reinstatement. I also agree that the discipline imposed by the Arbitrator was not, 

under these circumstances, in violation of public policy. 

________________________________

PATRICIA A. McCULLOUGH, Judge