Philadelphia Housing Authority v. American Federation of State, County, and Muncipal Employees, 2012 WL 3570665 (Pa. 2012).

Facts: In 2001, Thomas Mitchell, employed by the Philadelphia Housing Authority, began making sexually explicit comments to co-worker Stephanie Broadnax.  In addition, Mitchell engaged in sexual touching.  Broadnax raised her concerns to her supervisor. The supervisor addressed the behavior with Mitchell.  Thereafter, Mitchell discontinued the behavior that had led to the complaints.

Nonetheless, the PHA terminated Mitchell’s employment based on: 1) his pattern of sexual harassment; 2) his unwarranted touching of Broadnax; 3) his touching himself; 4) the policy which provides for termination; and 5) the fact that there was no way to accommodate Mitchell without placing others in jeopardy for sexual harassment.

The American Federation of State, County, and Municipal Employees (AFSCME) contended the termination violated the collective bargaining agreement.  They filed a grievance on behalf of Mitchell and sought arbitration.

Procedural Posture: After the verbal warning, Mitchell engaged in no further sexual harassment.  Therefore, the arbitrator determined that the PHA lacked just cause to terminate Mitchell.  The arbitrator directed the PHA to reinstate Mitchell and provide him with back-pay.

The PHA sought judicial review, and the trial court declined to vacate the arbitrator’s decision.  The Commonwealth Appellate Court reversed.

The PHA filed a petition to vacate the arbitrator’s decision, which the trial court refused to do.  On appeal the Commonwealth Appellate Court reversed. The Pennsylvania Supreme Court remanded the case to consider the order under Westmoreland’s “public policy exception” to the essence test rather than the disapproved “core function exception.”  The Commonwealth Court again reversed the trail court and vacated the arbitrator’s decision.  The AFSCME appealed, and the Pennsylvania Supreme Court remanded the case.  They instructed the Commonwealth Appellate Court to consider Westmoreland’s “public policy” exception to the “essence test,” rather than the disapproved “core function” exception.  On remand, the court again vacated the arbitrator’s decision.  The AFSCME again appealed to the Pennsylvania Supreme Court.


1)    Does the arbitrator’s award violate public policy as determined by the “public policy” test exception to the “essence test” articulated in Westmoreland?

2)    Did the Commonwealth Court misapply the public policy exception be requiring that the exception be narrowly applied?


1)    A public employer must be permitted to do more than engage in nominal condemnation in response to an employee’s misconduct. Consequently, the arbitrator’s decision to reinstate Mitchell, with back-pay, is contrary to the public policy. Therefore, the Pennsylvania Supreme Court affirmed the decision of the Commonwealth Court and vacated the award.

2)    A narrow reading of the public policy exception to the essence test may be defensible in the private sector to a greater extent that it would be defensible in the public sector. Because public employers are not required to adopt such a narrow exception, they are not required to offer the same extent of deference to arbitrator’s decisions.

Reasoning: The Westmoreland “essence test” is a highly deferential standard of judicial review for PERA grievance awards. A court may only vacate an arbitration award only when the award does not logically flow from the underlying collective bargaining agreement (CBA).  In City of Easton v. American Fed. of State, County & Munc. Employees, the court favored the “public policy exception” over the “essence test.”  The public policy exception set forth that “the court will not enforce an unlawful contract or one that otherwise violates public policy.”

The Arbitrator clearly found Mitchell had committed sexual harassment.  Public policy dictates that a public employer should have the autonomy to impose consequences upon an employee for this type of “inappropriate and facially criminal conduct.”

If the arbitrator’s award were allowed to stand, then individuals so inclined may feel “inclined to feel free to misbehave in egregious ways, without the fear of meaningful consequence.”


Briefed By: Stephen Atwell


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