Loyalsock Tp. v. Loyalsock Custodial, 1313 C.D. 2006.

• Decision Date: 17 July 2007
• Docket Number: No. 1313 C.D. 2006.,1313 C.D. 2006.
• Citation: 931 A.2d 75
• Parties: LOYALSOCK TOWNSHIP AREA SCHOOL DISTRICT v. LOYALSOCK CUSTODIAL MAINTENANCE, Secretarial and Aide Association a/k/a Loyalsock Township Educational Support Professionals, PSEA/NEA, Appellant.
• Court: Pennsylvania Commonwealth Court

931 A.2d 75

LOYALSOCK TOWNSHIP AREA SCHOOL DISTRICT v. LOYALSOCK CUSTODIAL MAINTENANCE, Secretarial and Aide Association a/k/a Loyalsock Township Educational Support Professionals, PSEA/NEA, Appellant.

No. 1313 C.D. 2006.

Commonwealth Court of Pennsylvania.

Argued May 9, 2007.

Decided July 17, 2007.

James T. Rague, Wellsboro, for appellant.

E. Eugene Yaw, Williamsport, for appellee.

BEFORE: LEADBETTER, President Judge, and COLINS, Judge, and McGINLEY, Judge, and FRIEDMAN, Judge, and COHN JUBELIRER, Judge, and SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY Judge FRIEDMAN.

The Loyalsock Custodial Maintenance, Secretarial and Aide Association (Union)¹ appeals from the June 16, 2006, order of the Court of Common Pleas of Lycoming County (trial court), which vacated an arbitrator's decision to reinstate Connie Hamilton (Employee) to her employment with the Loyalsock Township Area School District (District). We reverse.

Employee worked for the District for approximately twenty-eight years, most recently as a custodian in a District elementary school. On January 14, 2005, Employee was struck in the face by a piece of equipment while she was working. The following day, Employee sought medical treatment at the Susquehanna Health System (SHS) emergency room, where SHS personnel advised Employee that a drug and alcohol screen was required because the injury may involve a workers' compensation claim. Employee declined to take the test, stating that she would pay for the medical services herself and would not seek workers' compensation benefits.

On January 17, 2005, SHS personnel advised the District that Employee had not submitted to testing. Over the next several days, the District's business manager directed Employee to take the blood test. On January 24, 2005, Employee was informed that she could not report to work until she submitted to drug and alcohol screening. Employee called in sick on January 25th and 26th and finally reported to the hospital for testing on the evening of the 26th. On January 31, 2005, SHS notified the District that Employee's screening was positive for marijuana.

When confronted with the test results, Employee at first denied using marijuana, but then she admitted that she took a few puffs on a marijuana cigarette on the evening of January 14th, following her injury, while she was off-duty and off school property. Employee stated that she was not a regular user of marijuana, but she offered to enter rehabilitation treatment if it would save her job. At that point, the District's business manager indicated that he would recommend Employee's termination.

On her own initiative, Employee submitted to a second drug and alcohol blood screening on February 7, 2005, and the results were negative for all drugs. Employee also reported to Genesis House, the first drug and alcohol service provider listed in the District's drug and alcohol policy.

By letter dated February 8, 2005, the District informed Employee that the District would be recommending her dismissal to the school board based on charges of insubordination and violation of the District's policy regarding use of a controlled substance. The letter further advised Employee that she had a right to demand a hearing on the matter, which would be conducted pursuant to the Local Agency Law.² The school board held a hearing on February 15, 2005,³ and voted to terminate Employee's employment, (R.R. at 32a), in accordance with District Policy 551-Drug and Substance Abuse (Policy 551), which provides that "the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the employe's workplace." (R.R. at 36a, 40a (emphasis added).) After Employee was informed of her termination, she filed a grievance, asserting a lack of just cause for her termination in violation of Article 28 of the parties' collective bargaining agreement (CBA) and a denial of due process. Pursuant to the CBA, an arbitrator was appointed to hear the grievance, and a hearing was held on September 20, 2005.

Before the arbitrator, the District asserted that if a drug is present in an employee's system, the drug is in the workplace, and, therefore, Policy 551 applies. The District further argued that it has the right to interpret its own policies. The District also asserted that providing a safe environment for students is a core function of the District and that a public employer cannot bargain away its right to discipline employees for behavior that strikes at the employer's core functions. In response, the Union contended that just cause did not exist to support Employee's termination. The Union asserted that Policy 551 only prohibits drug use in the workplace and that the use in this case did not occur at work. Noting that the written policy sets forth a range of disciplinary measures that include required participation in an approved rehabilitation program, the Union also contended that the District's discipline of Employee effectively converted Policy 551 to a zero tolerance policy, without notice to its employees. The Union cited Employee's twenty-eight years of service as a mitigating factor and requested a remedy that was more reasonable under the circumstances.

In a decision dated November 18, 2005, the arbitrator determined that Employee did not violate Policy 551. In reaching this conclusion, the arbitrator observed that the plain language of Policy 551 prohibits drug use in the workplace and defines "drug-free workplace" as "the site for the performance of work done in connection with the performance of their job at which employees are prohibited from engaging" in the specified conduct. (R.R. at 35a.) The arbitrator noted that Employee's drug use occurred offsite and that the District did not present evidence of any impact on Employee's work performance. The arbitrator further noted that, absent such evidence, an employer generally cannot control an employee's off-duty behavior. The arbitrator granted Employee's grievance in part, reinstating her to her former position with the District as of the date of his decision. Citing Employee's "protracted delay in admitting marijuana use," (Arbitrator's decision at 8), the arbitrator indicated that the period from Employee's termination to the date of the award would constitute a suspension without pay.

The District appealed to the trial court, arguing that the arbitrator exceeded his authority and that his award contravenes the rights afforded the District under section 514 of the Public School Code of 1949 (Code)⁴ to remove employees for cause. The trial court initially noted that courts reviewing an arbitrator's award apply a two-prong analysis commonly known as "the essence test." Under the essence test, the court must determine: (1) whether the issue presented is encompassed by the terms of the collective bargaining agreement, and (2) whether the arbitrator's interpretation can be rationally derived from that agreement. State System of Higher Education (Cheyney University) v. State College University Professional Association (PSEA-NEA), 560 Pa. 135, 743 A.2d 405 (1999).⁵ The parties agreed that the only issue before the trial court was whether the arbitrator's award can be rationally derived from the CBA. (Trial ct. op. at 4.)

Citing Greene County v. District 2, United Mine Workers of America, 578 Pa. 347, 852 A.2d 299 (2004), and City of Easton v. American Federation of State, County and Municipal Employees, AFL-CIO, Local 447, 562 Pa. 438, 756 A.2d 1107 (2000), the trial court stated that our courts have modified the essence test where a governmental employer is involved and will not allow a collective bargaining agreement to be interpreted to allow public employers to relinquish powers that are essential to the discharge of their core functions. The trial court quoted the following language from Greene County:

Due to their unique nature and role, public employers must be able to perform the functions they are charged to carry out by our citizenry. Consistent with this status, our Court has recognized that public employers cannot be compelled in arbitration to relinquish powers that are essential to the proper discharge of their functions. Thus, while as a general proposition, an arbitrator has broad authority to interpret an undefined provision regarding termination for just cause in a collective bargaining agreement, to permit an arbitrator to interpret the agreement as to require reinstatement of an employee who was determined to have engaged in egregious misconduct⁶ that strikes at the very core function of the public enterprise would be to deprive the employer of its ability to discharge that essential function.

Greene County, 578 Pa. at 362, 852 A.2d at 308 (citations omitted).

The trial court observed that the arbitrator had acknowledged that prohibiting drug use in the work place is a core function of the District. Determining that the school district's interpretation of its own policy should be given credence,⁷ the trial court concluded that the arbitrator exceeded his authority by substituting his own judgment in place of the school board's in an area acknowledged to be a core function of the District. Accordingly, the trial court vacated the arbitrator's award and reinstated the District's decision to terminate Employee's employment.

On appeal to this court, Employee argues that the trial court erred in holding that the arbitrator exceeded his authority on the grounds that Employee's conduct implicated a core function of the District. We agree.

We begin by noting that, contrary to the trial court's observation, our supreme court continues to apply the "essence test," as articulated in Cheney University, when reviewing arbitration awards involving a government employer. See Greene County and City of Easton (holding that arbitrators' awards were not rationally derived from the parties' collective bargaining agreements.) In Greene County, the...