No "core function" exception for Pennsylvania public CBA's

As 2007 came to an end, the Pennsylvania Supreme Court also put an end to the "core function" exception to labor arbitration decisions under the state’s Public Employee Relations Act. Westmoreland Inter. Unit No. 7 v. Westmoreland Inter. Unit No. 7 Classroom Ass’t Educ. Sup. Pers. Assoc. (majority opinion). The court did, however, find that a limited public policy exception can apply. But such public policy, said the court, “must be well-defined, dominant, and ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” 

The case involves finer legal points about how and to what degree courts are supposed to review labor arbitration decisions. But the facts are interesting, so we can start there.

The case involved a public school classroom aide who used a friend's Fentanyl patch while at work. The patch caused some significant adverse reactions that resulted in a school lock-down, police and EMS involvement, and subsequent hospital stay. The employer terminated the aide contending her use of the controlled substance was immoral conduct justifying termination. Significantly, in 23 years of employment with the school, this was her only adverse act.

The union filed a grievance on her behalf. Although the collective bargaining agreement (“CBA”) incorporated the Pennsylvania School Code’s immorality provision, the union alleged that the employer did not have “just cause” under the CBA to terminate her. The arbitrator agreed. He found the conduct to be foolish and irresponsible, but did not rise to the level of immorality and ordered her reinstated with certain conditions. 

The school appealed. The trial court reversed relying on the “core function” exception. Normally, judicial review of a labor arbitration decision is very limited (as said by the Pennsylvania Supreme Court, judges must respect the arbitrator’s decision if “the interpretation can in any rational way be derived from the [CBA], viewed in light of its language, its context, and any other indicia of the parties’ intention. . . .”). The court will usually simply decide whether the arbitrator’s decision is based on the essence of the CBA, the so-called essence test. If so, the decision is to be affirmed. Previously, as an exception to this standard, if the decision impacted on the employer’s core function and would deprive the employer of its ability to perform that core function, a court may change the decision. For example, the employer could not bargain away via the CBA the right to fire an employee who steals from the employer. In the Westmoreland case, the trial court found the arbitration decision adversely impacted the school’s core function of educating children.

On further appeal, the intermediate appellate court by a 2-to-1 vote affirmed the trial court, although the majority made further errors in the legal-technical issues about judicial review that lead to later criticism in the Pennsylvania Supreme Court. The dissenting judge would have reversed noting, first, the school did not prove its core function was impacted, and second, that using the core function exception risked swallowing the essence test (being the tail wagging the dog, so to say). 

The Pennsylvania Supreme Court first re-affirmed that the essence test is the appropriate means of reviewing labor arbitration decisions. This requires initial court review to assure the issue is properly subject to the CBA’s arbitration process, and second, deferential review of the arbitrator’s decision as noted above. Judges are not to review the substantive merits of the case and now, after the Westmoreland decision, the only exception to all this is the public policy exception.

The case suggests that an employer might be able to by-pass the CBA process by rejecting a grievance as non-arbitral as a matter of public policy (I think that conduct, which directly caused the lock-down described in the decision and the interruption to elementary students at the school, violates public policy).  The issue whether the conduct in question violated public policy would likely get presented to a court or administrative agency in the first instance, essentially giving a merits-review to the conduct in question. The court may agree or disagree. And while it is an interesting academic exercise for a Blog, the pros and cons of such a strategy need to worked out with counsel on a case-by-case basis in the real world.