Sunday, January 10, 2016

Court rejects public policy challenge to arbitrator's reinstatement of teacher accused of inappropriate touching

A music teacher employed by the Franklin [PA] Regional School District was accused  of inappropriately touching a student. The school conducted an investigation and ultimately charged the teacher with "immorality, incompetency and willful violation of school laws" and terminated his employment. The school, as required by law, also reported the allegation to the local police department and the County's Children's Bureau. Both of those organizations investigated and found no basis to prosecute or proceed further.

After a hearing, an arbitrator found that the school district had failed to establish that the teacher had engaged in any inappropriate touching, finding the allegation unfounded and unsupported by the facts. He found further that the conduct that grievant acknowledged engaging in, "snake biting" (squeezing a child's knee between his thumb and forefinger) and "good mannered threats to use a slapstick for discipline," did not support termination. 

The School District sought to set aside the award, asserting that it was contrary to public policy. The Common Pleas court agreed, in part, finding that the conduct the teacher acknowledged having engaged in violated school district policy and  that the award was "not in accord with established public policy of protecting students from impermissible touching by their teachers." As a result, the Common Pleas court modified the arbitrator's unconditional reinstatement and ordered instead a  prospective, and conditional, reinstatement. 

Both the School Board and the Union appealed, and the Commonwealth Court has now reversed that decision. Reaffirming that in reviewing an award of an arbitrator the court is bound by the arbitrator's factual findings, the Court concluded:

 common pleas improperly viewed the situation through another lens and usurped the arbitrator's fact-findings. .... the District acknowledged that [grievant's] conduct was not sexual in nature and that no criminal charges were pursued. We conclude, therefore, that the arbitration award does not pose an unacceptable risk of causing the District to flout its legal obligations and public duty. Accordingly, not only did the District fail to satisfy the narrow public policy exception, but the court also erred in modifying the bargained-for award.

The Commonwealth Court also rejected the School District's challenge to the arbitrator's use of a "beyond a reasonable doubt" standard of proof, noting:

 The arbitrator chose to use that standard in light of the fact that a discharge was at issue, involving, inter alia, an immediate loss of income, a blemish on an employee's record and potential difficulty in securing subsequent employment. In determining that the District did not prove the allegations pursuant to that standard of proof, however, the arbitrator noted that he would have rendered the same decision had he used the preponderance of evidence standard. In any event, the arbitrator has some discretion in choosing a standard of review. See Elkouri and Elkouri, How Arbitration Works, Chapter 15, Section 3(D)(ii)(a) at 15-24, 15-27 (7th ed. 2012) (acknowledgement that many arbitrators apply higher standards of proof in cases involving stigmatizing behavior). Accordingly, the District's argument is without merit.

The Court's opinion in Franklin Regional School District v. Franklin Regional Education Association can be found here.  An earlier decision of the Commonwealth Court upholding a public policy challenge to the reinstatement of a teacher found to have engaged in improper contact is discussed here.

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