(Arbitrator and NAA member, Lise Gelernter comments on a recent decision by the Pennsylvania Commonwealth Court).

In a classic deferential judicial review analysis in a case with highly charged facts, the Pennsylvania Commonwealth Court, one of two statewide intermediate appellate courts, refused to vacate an arbitrator’s award that reinstated a university professor who had been terminated due to his 25-year-old conviction on sexual abuse charges.  In Pennsylvania State System of Higher Education (PASSHE), Lock Haven University v. Association of Pennsylvania State College and University Faculties (No. 1040 C.D. 2017) (8/31/18), the Court upheld an arbitrator’s award that found that Lock Haven University did not have just cause to terminate a professor who had been convicted in 1990 of Sodomy and Sexual Abuse offenses involving two minors (the professor was 19 at the time), 14 years before he was hired by Lock Haven in 2004.

When the professor, the grievant in the arbitration proceeding, had applied for a job at Lock Haven in 2004, he filled out a form that asked whether he had been convicted of a crime in the last 10 years or if there were any criminal charges currently pending against him.  He truthfully answered “no,” as his conviction had occurred 14 years prior to his application.

After his release from prison in 1994, the grievant had enrolled in college and ultimately received a Ph.D in mathematics and ultimately was hired by Lock Haven.  He received tenure and there were no allegations of improper sexual activities during his entire career there.  However, after 2014 and 2015 changes in Pennsylvania law and the policies of PASSHE in response to the child abuse scandal at Pennsylvania State University, all professors teaching “100” level courses were required to provide an FBI criminal history report, as well as other certifications.  The grievant complied, and his FBI report showed his 1990 conviction for sexual crimes with minors.  Lock Haven determined that it had to terminate the professor due to his criminal history.

The Association of Pennsylvania State College and University Faculties (Union) grieved the termination and it ultimately was presented to an arbitrator.  The arbitrator found that because the grievant’s criminal history was more than 25 years old and there was no evidence that he had ever engaged in inappropriate sexual conduct with students in his entire teaching career, termination was not appropriate.  The arbitrator reinstated the professor with backpay, but restricted him from teaching courses in which high school students could enroll, so-called “dual enrollment” classes.

PASSHE sought to vacate the arbitration award because: (1) the award was not drawn from the “essence” of the contract; and (2) returning the professor to the university violated the strong public policy against sexual abuse of minors.  The Commonwealth Court described the strong restrictions on judicial review of arbitration awards, noting that the “essence test” is “one of ‘great deference’ which requires that an arbitration award be affirmed so long as it draws its essence from the applicable CBA [collective bargaining agreement].”  Although PASSHE argued that the CBA did not give the arbitrator the authority to order the remedy of reinstating the grievant, but prohibiting him from teaching dual enrollment classes, the Court found that the arbitrator acted well within the powers the CBA granted the arbitrator.

The Court also held that the award did not violate the “well-defined and dominant public policy” of preventing sexual abuse of minors.  Although the grievant’s 1990 conviction “implicates” that public policy, the Court held that the arbitrator’s award did not violate it because the arbitrator made a reasonable decision after considering the mitigating factors of the professor’s clean record since his release from prison, the lack of any evidence he even took a step towards sexually abusing anyone after serving his prison term, his young age at the time of his conviction, and the fact that 25 years had passed since his conviction.