September 17, 2014
What happens when an employee is off duty and engages in substance abuse? Some would argue that off-duty behavior is irrelevant as long as an employee is ready and able to perform his duties. Unfortunately, employers increasingly find themselves in the spotlight as newspaper headlines highlight the off-duty substance abuse of employees. This can easily cast a dark cloud over an employer’s operations, forcing the employer to take disciplinary action against the offending employee.
However, as the unreported decision of Blairsville-Saltsburg School District, 1340 C.D. 2013 (Pa. Cmwlth Aug. 20, 2014), illustrates, discipline based on off-duty conduct is not always upheld if the dispute proceeds to grievance arbitration. Although it was not the “best of times” for a middle school teacher discharged for pleading guilty to an off-duty DUI charge, a majority of the Pennsylvania Commonwealth Court rejected a public policy challenge to an arbitration award that directed the teacher’s reinstatement.
The teacher had a criminal record history of driving while intoxicated. His three arrests spanned a 23-year period, with his most recent arrest in 2010 resulting in a guilty plea to DUI and a five-year probation sentence with certain restrictions.
Subsequent to his arrest, the teacher attended a rehabilitation center where he became sober.
But in 2012, the district suspended the teacher with pay and later recommended his dismissal.
The district contended the three DUI incidents constituted “immorality” and “just cause” for terminating his employment under Section 1122 of the Public School Code, 24 P.S. 11-1122.
An education association successfully grieved the discharge, resulting in an arbitration award directing the teacher’s reinstatement.
An arbitrator concluded the expanse of time between the DUI incidents “did not constitute a course or pattern of conduct sufficient to support a charge of immorality.” The arbitrator also went on to find that the grievant was a recovering alcoholic who was now living a life of sobriety.
The school district petitioned to vacate the award and a trial court reinstated the discharge.
The court said the award failed to promote the public policy of protecting children from the dangers of alcohol.
But after analyzing the award under the narrow public policy exception, the Pennsylvania Commonwealth Court reversed the lower court’s decision.
Writing for the majority, Judge Bernard McGinley said the focus under a public policy exception centers on whether the arbitration award, if enforced, would contravene public policy, not whether the asserted misconduct violated public policy.
Relying on that rationale, the appellate court ruled that the award did not violate the well-defined policy against drinking and driving under the influence.
The panel said the arbitrator’s factual determinations, including his finding that the grievant was a recovering alcoholic, were binding on the reviewing courts. Therefore, the trial court erred in revisiting the arbitrator’s findings regarding the status of the employee as a recovered alcoholic who longer drank and drove, the court majority reasoned.
Judge Bonnie Leadbetter dissented, arguing that the majority was constrained to affirm the lower court’s decision, because Section 111(f.1)(3) of the Public School Code established a sufficient well-defined public policy against the teacher’s reinstatement.