finding absurd and a mockery of the dominant public policy against sexual harassment an award that reinstated, with full back pay, an individual whose egregious conduct amounted to sexual harassment
How later courts described this case
- finding absurd and a mockery of the dominant public policy against sexual harassment an award that reinstated, with full back pay, an individual whose egregious conduct amounted to sexual harassment
- noting that sexually explicit comments directed at co-worker and request to perform oral sex on her could constitute criminal harassment
- holding that an arbitration award reinstating an employee discharged for acts constituting sexual harassment violated well-defined and dominant public policy
- holding that arbitration award reinstating employee discharged for acts constituting sexual harassment, violated well-defined and dominant public policy
Written by the judges who cited it.
The opinion
Justice SAYLOR,
concurring.
I join the majority opinion on the limited issue on which this appeal was allowed. I write only to observe that the reasoning applied in the recent decisions in Ellwood City v. PLRB, 606 Pa. 356 , 998 A.2d 589 (2010), and City of Philadelphia v. International Association of Firefighters, Local 22, 606 Pa. 447 , 999 A.2d 555 (2010) (“IAFF”), indicates there are areas of managerial prerogative accorded to public employers which reside outside the permissible range of bargaining. See Ellwood City, 606 Pa. at 374 , 998 A.2d at 599-600 ; IAFF, 606 Pa. at 471, 999 A.2d at 569-70 . This suggests that such areas likewise may not be invaded by grievance arbitrators in applying the terms of collective bargaining agreements (since it would be unreasonable for arbitrators to interpret agreements to accord concessions which could not be made by a public employer in the first instance).
This sector of the law has been a difficult one for the courts, given the strong, competing policies in issue. Nevertheless, upon my review of Ellwood City, International Association of Firefighters, and the present decision, I find that the reasoning tends to circle back to constrain the permissible range of arbitrability relative to a public employer’s ability to implement discipline supported by just cause, in a manner very similar to the previously disapproved core functions exception. This having been said, I recognize that the present appeal is not an appropriate vehicle for a more definitive treatment of such aspect of the managerial prerogative overlay, in light of the limited grant of alloca-tur.