Can a Housing Authority Terminate An Employee for Sexual Misconduct Which Might Affect Its Orderly Functioning ?
In Philadelphia Housing Authority v. American Federation of State, County and Municipal Employees, AFL-CIO, District Council 33, Local 934, 900 A.2d 1043 (Pa. Cmwlth. 2006), an employee of the Authority was terminated for sexual harassment of a co-employee.
The arbitrator found that the employee committed repeated acts of sexual misconduct but determined that certain mitigating circumstances militated against termination.
In reviewing the arbitrator's award under the core function test, this court determined that sexual harassment of the sort involved, which included physical assaults, fell into the category of misconduct that, if left unchecked, might lead the public agency to relinquish control of the orderly functioning of its operations.
Concluding that the Authority lacked the power to bargain away its duty to protect its workforce from the type of conduct found by the arbitrator to have occurred, we held that the arbitrator's award was not rationally derived from the CBA.