Westmoreland v. Westmoreland Intermediate

• Decision Date: 27 December 2007
• Docket Number: No. 313.,313.
• Citation: 939 A.2d 855
• Parties: WESTMORELAND INTERMEDIATE UNIT # 7, Appellee, v. WESTMORELAND INTERMEDIATE UNIT # 7 CLASSROOM ASSISTANTS EDUCATIONAL SUPPORT PERSONNEL ASSOCIATION, PSEA/NEA, Appellant.
• Court: Pennsylvania Supreme Court

939 A.2d 855

WESTMORELAND INTERMEDIATE UNIT # 7, Appellee, v. WESTMORELAND INTERMEDIATE UNIT # 7 CLASSROOM ASSISTANTS EDUCATIONAL SUPPORT PERSONNEL ASSOCIATION, PSEA/NEA, Appellant.

No. 313.

Supreme Court of Pennsylvania.

Argued September 11, 2006.

Decided December 27, 2007.

Richard Scott McEwen, Esq., for Westmoreland IU #7 Classroom Assistants Educational Support Personnel Association.

Michelle F. Duggan, Esq., Thomas W. Scott, PA State Education Association (PSEA), for Pennsylvania State Education Association.

John M. Ranker, Esq., for Westmoreland Intermediate Unit #7.

Emily J. Leader, Esq., Pennsylvania School Boards Assn., Harrisburg, for amicus curiae Pennsylvania School Boards Association.

BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER and BALDWIN, JJ.

OPINION

Chief Justice CAPPY.

In this appeal by allowance, we review whether the Commonwealth Court properly applied the standard of review applicable to review of a grievance arbitrator's award rendered under the Public Employe Relation Act, 43 P.S. § 1101 et seq. ("PERA"). For the reasons that follow, we reaffirm the essence test as the proper standard to be employed by a court when reviewing a grievance arbitration award; adopt a public policy exception to that test; reverse the decision of the Commonwealth Court; and remand the matter for further proceedings consistent with our opinion today.

The facts underlying this appeal are as follows. Sherie Vrable began her employment with the Westmoreland Intermediate Unit # 7 ("Intermediate Unit") on October 28, 1978. She worked for the Intermediate Unit for over 23 years as a classroom assistant with no discipline prior to her termination. For the 2001/2002 school year, Ms. Vrable had successfully bid on the position of Classroom Assistant in the emotional support classroom taught by Cynthia Pierce, an IU Special Education Teacher located in the West Newton Elementary School in the Yough School District in Westmoreland County, Pennsylvania.

Ms. Vrable reported to work on March 18, 2002. On this day, Ms. Vrable was responsible for assisting Ms. Pierce with eleven emotionally disturbed children in grades three through five. Ms. Vrable complained when she arrived at school that she was not feeling well. At approximately 9:30 a.m., Ms. Pierce asked Ms. Vrable to take two sets of materials to the copy room in the library to make copies. Ms. Vrable agreed to do so and left the classroom. Approximately fifteen minutes later, Ms. Vrable returned to Ms. Pierce's classroom with the copies from one set of materials and advised Ms. Pierce that she was getting worse and that she was going to call a substitute to work for her the rest of the day. Ms. Pierce indicated that this was acceptable, but that that Ms. Vrable was to inform her of what arrangements she had made prior to leaving. Ms. Vrable advised Ms. Pierce that she would retrieve the second set of materials being copied and would call for a substitute. Ms. Vrable left Ms. Pierce's classroom.

After approximately forty-five minutes, Ms. Pierce realized that Ms. Vrable had not returned. She sent a student with a note to the copy room and to the nurse's office to find Ms. Vrable. Evidently, Ms. Vrable entered Preschool Special Education Teacher Denise Fischer's classroom and offered to do some tracing. Ms. Vrable left with the materials to do so. Approximately fifteen to twenty minutes later, School District Aide Patty Beraducci entered Ms. Fisher's classroom and asked if all Intermediate Unit staff was accounted for. Ms. Beraducci explained that an unidentified individual had been in the restroom for an extended period of time. Ms. Fischer left her classroom and went to the door of the restroom. She knocked on the door and called Ms. Vrable by her name. Upon calling her name, Ms. Vrable let out a moan. Ms. Fischer asked Ms. Vrable to open the door and explained that if she would not open the door, she would have to call 911 and Ms. Vrable's mother. When Ms. Vrable failed to further respond, Ms. Fischer advised Ms. Beraducci to contact the Principal, Joyce Speck, and to call 911.

Ms. Pierce arrived at the restroom and attempted to speak to Ms. Vrable, but received no response, but rather only whimpering and crying. When Principal Speck arrived and could not get a response from Ms. Vrable, she instructed her secretary to call 911. During this period of time, Principal Speck placed the school under "Code Blue," a security code under which the school is essentially locked down. During Code Blue, classroom doors must remain closed and students are not permitted out of their classrooms. Furthermore, students are not permitted to be released to use the restrooms, to go to lunch, or to be dismissed from school.

In response to the 911 call, West Newton Police Officer Robert Wilson arrived at the school and proceeded to the restroom. After being unable to gain entry to the restroom and failing to get a response other than what Officer Wilson believed to be crying, he sought backup from the Rostraver police and directed that an EMS unit be sent to the school. The officers obtained a screwdriver to unlock the restroom door. Once the door was opened, the officers found Ms. Vrable unconscious, partially nude, seated on a toilet, and leaning against a wall. The officers found a large amount of mucous coming from Ms. Vrable's nose and mouth and the sound which was thought to be crying was actually Ms. Vrable choking and attempting to breathe. The nurse and Officer Wilson placed Ms. Vrable on the floor in anticipation of performing CPR. Ultimately, Ms. Vrable was transported by the EMS to a local hospital. Evidently Ms. Vrable was transferred to the mental health unit on March 20, 2002 and was discharged on March 21, 2002.

Police investigation of the incident uncovered that that there was a Fentanyl patch on Ms. Vrable's back and that the patch caused an overdose. Criminal charges were filed against Ms. Vrable for possession of a controlled substance and for disorderly conduct. Subsequently, Ms. Vrable entered into a plea agreement by which she agreed to Probation Without Verdict on the charge of possession and the charge of disorderly misconduct was dismissed. Probation Without Verdict is a probationary program for first offenders accused of non-violent possessory offenses. 35 P.S. § 780-117. No verdict is entered against the defendant and the case is deferred. Upon the successful completion of the terms of probation, the court dismisses the charges against the individual without an adjudication of guilt or a conviction. The possession charge was a misdemeanor.

The Intermediate Unit also conducted an investigation. During this investigation, Ms. Vrable explained that prior to March 18th, her physicians had prescribed several medications for her use including Wellbutrin, Neurontin, Ultram, and Detrol. Ms. Vrable explained that on Sunday March 17, 2002, a friend had given her a Fentanyl patch which she had placed on her back prior to coming to school. Evidently, the Fentanyl patch precipitated an adverse medical reaction which resulted in Ms. Vrable's condition.

On March 27, 2002, the Intermediate Unit's executive director, Bruce Paul, suspended Ms. Vrable without pay. On September 17, 2002, Mr. Paul informed her that the administration had intended to recommend to the Intermediate Unit's Board of Directors that she be terminated from her employment. On September 24, 2002, the Board of Directors approved Ms. Vrable's termination.

On April 4, 2002, the Association filed a grievance on behalf of Ms. Vrable alleging that the Intermediate Unit did not have just cause for her discharge. The grievance was denied and was submitted to arbitration pursuant to the collective bargaining agreement between the Intermediate Unit and the Association. A hearing was held on March 19, 2003 before Arbitrator Elliott Newman. The issue before Arbitrator Newman was whether the Intermediate Unit "had just cause under Appendix C, Section 9(b) [of the collective bargaining agreement] to discharge Ms. Vrable, and if not, what shall the remedy be?"

The collective bargaining agreement between the Association and the Intermediate Unit permitted discharge of an employee only for just cause:

The employer shall not discharge employee without just cause ... For purposes of this section, just cause shall mean ... any causes not herein enumerated, but included for professional employees in Section 1122 of the Public School Code of 1949....

Appendix C, Section 9, Collective Bargaining Agreement.

Section 1122 of the Public School Code provides: "The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality...." 24 P.S. § 11-1122. Thus, this provision of the School Code was incorporated into the collective bargaining agreement between the parties. It also was the focus of the question of whether the Intermediate Unit had just cause to terminate Ms. Vrable. Before Arbitrator Newman, the Intermediate Unit asserted that Ms. Vrable's illegal possession and use of the Fentanyl patch, on March 18, 2002 at the school during school hours constituted "immorality" under Section 1122 of the Pennsylvania School Code.

Arbitrator Newman found that Ms. Vrable's "foolish" and "irresponsible" behavior did not so grossly offend the morals of the Intermediate Unit's community that it rose to the level of "immorality." Thus, Arbitrator Newman found that just cause did not exist under the collective bargaining agreement to terminate Ms. Vrable.

Specifically, as recognized by Arbitrator Newman, "[w]hile there is always a temptation to simply pontificate on the evils of abuse of an improperly obtained prescription drug, including a controlled substance, what happened here was one and only one workplace incident in Ms. Vrable's 23 years with the IU [Intermediate Unit] that reduced to its essence reflects very, very poor...