193 A.3d 486
Pa. Commw. Ct.2018Background
- Grievant, a tenured mathematics professor at Lock Haven University (hired 2004, tenured 2009), had 1990 Kentucky convictions for sexual offenses against minors from acts when he was 19. No subsequent misconduct since release; strong academic record and positive evaluations.
- Pennsylvania amended the Child Protective Services Law (CPSL) (Act 153, Act 15) to require criminal-history clearances for higher-education employees with direct contact with children; PAS S H E adopted policies requiring clearances for faculty in programs involving minors.
- After a 2016 background check (required because Grievant taught 100-level courses potentially open to high‑school dual-enrollees), Lock Haven placed Grievant on leave and then terminated him, citing risk to minors and participation in activities involving high‑school students.
- APSCUF grieved the discharge; an arbitrator held Lock Haven lacked just cause, reinstated Grievant with back pay, and ordered that he not be assigned to courses/programs that admit dual‑enrolled (non‑matriculated high‑school) students.
- PASSHE appealed, arguing the remedy violated the CBA’s reservation of managerial rights (assignment of faculty) and contravened the public policy of protecting minors from sexual abuse. The Commonwealth Court affirmed the arbitration award.
Issues
| Issue | Plaintiff's Argument (PASSHE) | Defendant's Argument (APSCUF / Grievant) | Held |
|---|---|---|---|
| Whether the arbitrator's remedial condition (excluding Grievant from courses admitting dual‑enrollees) violates the essence test by intruding on PASSHE's managerial right to assign faculty | Remedy alters job duties, encroaches on reservation of "selection and direction of personnel" in CBA and 43 P.S. §1101.702 | Arbitrator reasonably tailored remedy; does not rewrite CBA; accommodation feasible and consistent with CPSL distinctions between faculty with/without direct contact with minors | Affirmed: award draws its essence from the CBA—remedy rationally derived and not an unlawful modification of the agreement |
| Whether the award violates the public‑policy exception by undermining Pennsylvania's dominant policy of protecting minors from sexual abuse | Reinstatement risks public safety; CPSL and related laws show a strong public policy favoring removal/limitation of sex offenders from positions exposing minors; termination was justified | Arbitrator performed individualized assessment, weighing remote nature of convictions, rehabilitation, long unblemished employment, and limited risk; restriction (no dual‑enrollees) appropriately calibrated | Affirmed: public‑policy exception not triggered—the award reasonably balances public safety and rehabilitative/public‑employment interests |
Key Cases Cited
- Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educ. Support Personnel Ass'n, 939 A.2d 855 (Pa. 2007) (essence‑of‑CBA standard and deference to arbitrator)
- Philadelphia Housing Authority v. AFSCME, Dist. Council 33, Local 934, 52 A.3d 1117 (Pa. 2012) (public‑policy exception where reinstatement undermined policy against sexual harassment)
- State System of Higher Educ. v. State Coll. Univ. Prof. Ass'n (Cheyney Univ.), 743 A.2d 405 (Pa. 1999) (award that adds/modifies CBA language fails essence test)
- United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960) (arbitrator's flexible remedial authority interpreting CBA)
- Neshaminy Sch. Dist. v. Neshaminy Fed'n of Teachers, 171 A.3d 334 (Pa. Cmwlth. 2017) (three‑part public‑policy exception test)
- Peake v. Commonwealth, 132 A.3d 506 (Pa. Cmwlth. 2015) (substantive due‑process analysis on employment restrictions based on past convictions)