# Petition for Writ of Certiorari — Local 776, International Brotherhood of Teamsters v. Stroehmann Bakeries, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 1022

## Text

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

LOCAL 776, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

Petitioner,
v.

STROEHMANN BAKERIES INC.,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT

IRA H. WEINSTOCK, ESQUIRE
(Counsel of Record)
WENDY DULLEA BOWIE, ESQUIRE

IRA H. WEINSTOCK, P.C.
800 North Second Street
Harrisburg, PA 17102
Phone: 717-238-1657
Counsel for Petitioner

Se:

QUESTIONS PRESENTED FOR REVIEW

1. Did the court usurp the parties’ collectively bargained-
for right to have its disputes over interpretation or application
of the collective bargaining agreement decided by the
arbitrator?

2. Did the court abuse its authority by substituting its
judgment for that of the labor arbitrator who decided the
underlying dispute?

3. Does the court’s ability to overturn arbitration awards
on public policy grounds permit overturning an award when
the award itself does not violate public policy?

4. Does the public policy exception to the usual deference
given to arbitration awards mandate that the arbitrator decide
the underlying charge when there are independent grounds for
his or her decision?

5. Is remand to a different arbitrator a proper remedy
when arbitrator bias was not raised during the arbitration and
when the arbitrator’s decision, viewed as a whole, does not
demonstrate bias?

PARTIES

The parties to the proceeding in the Court below were Teamsters
Local Union No. 776 (Union), the Petitioner here, and Stroehmann
Bakeries, Inc. (Employer), the Respondent here. The Equal Employ-
ment Advisory Council submitted an Amicus Curiae Brief to the
Court below.

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TABLE OF CONTENTS

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I. THE DECISION BY THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIR-
CUIT CONFLICTS WITH THIS COURT’S
DE I oe ko eGR ab cea kesassss. 5

A. THE COURT USURPED THE PARTIES’
RIGHT TO HAVE ITS DISPUTES RE-
SOLVED BY AN ARBITRATOR OF THEIR
ESE EES aS ne kee 5

B. THE COURT ABUSED ITS AUTHORITY
BY SUBSTITUTING ITS JUDGMENT FOR
THAT OF THE ARBITRATOR........... 6

C. UNDER THE PUBLIC POLICY EXCEP-
TION COURTS DO NOT HAVE THE
AUTHORITY TO OVERTURN AN
ARBITRATION AWARD UNLESS THE
AWARD ITSELF VIOLATES PUBLIC
Ns Stew a0 Ges iw da bas bee's sree sss 9

D. THE COURT OF APPEALS DID NOT
HAVE AUTHORITY TO DECIDE THE
ISSUE OF ARBITRATOR BIAS WHEN
THAT ISSUE WAS NOT RAISED IN THE
ARBITRATION PROCEEDINGS.......... 10

II. THE DECISION OF THE UNITED STATES
COURT OF APPEALS FOR THE THIRD
CIRCUIT IS IN CONFLICT WITH DECISIONS
OF OTHER UNITED STATES COURTS OF
cea eWCE Chk ackn cs enedea bens 11

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A. THERE IS A SPLIT IN THE CIRCUITS
OVER WHETHER A COURT'S REVIEW IS
LIMITED TO WHETHER THE AWARD
ITSELF VIOLATES PUBLIC POLICY.....

B. THERE IS A SPLIT IN THE CIRCUITS
OVER WHETHER THE PUBLIC POLICY
AGAINST SEXUAL HARASSMENT
PROHIBITS RETURNING AN INDIVID-
UAL ACCUSED OF SEXUAL HARASS-

MENT TO THE WORKPLACE...........

IN DECIDING THAT THE UNDERLYING
HARASSMENT CHARGE MUST BE DECIDED,
BECAUSE OF THE PUBLIC POLICY
IMPLICATIONS, WHEN THE ARBITRATOR
STATES ALTERNATIVE, VALID GROUNDS
FOR HIS DECISION, THE COURT OF
APPEALS FOR THE THIRD CIRCUIT HAS
DECIDED AN IMPORTANT QUESTION OF
FEDERAL LAW WHICH HAS NOT BEEN, BUT
SHOULD BE, SETTLED BY THE UNITED

STATES SUPREME COURT.................
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TABLE OF AUTHORITIES

Cases:

Chrysler Motors v. Int’! Union, Allied Industrial Workers
of America, 959 F.2d 685, 139 LRRM 2865 (7th Cir.
1992), cert. denied, U.S.

Communications Workers of America yv. Southeastern
Electric Cooperative, 882 F.2d 467, 132 LRRM
eT Ke I eee Oc ena eas cee

Cook Industries, Inc. v. C. Itoh & Co., 449 F.2d 106
(2nd Cir. 1971), cert. denied, 405 U.S. 921 (1972)..

Delta Airlines v. Air Line Pilots Ass'n Int’l, 861 F.2d 665,
130 LRRM 2014 (11th Cir. 1988)

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In re Pan American Corp. v. Air Line Pilots Ass’n,
B.R. , 1992 WL 96700 (S.D.N.Y.

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In re Stroehmann Bakeries, Inc. and Int’l Brotherhood
of Teamsters Local 776, 98 LA 873 (1990).........

Interstate Brands Corp. v. Teamsters Local No. 135, 909
F.2d 885 (6th Cir. 1990), cert denied,
5 REE Se ROE COMER Gas hi nnb cs cake va

Perma-Line Corp. v. Sign Pictorial and Display Union,
Local 230, 639 F.2d 890 (2nd Cir. 1981)..........

Shelby County Health Care Corp. v. AFSCME Local
1733, F.2d , 1992 WL 139314 (6th
FR AER, Eerie Pern tet mn ee et Das heey A

Stead Motors v. Machinists Lodge 1173, 886 F.2d 1200,
132 LRRM 2689 (9th Cir. 1989).................

Steelworkers v. American Manufacturing Co., 363 U.S.
564, 46 LRRM 2414 (1960)......... rie eee

Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S.
PE MEPS Soc xa NTR eons POEs beac aes

11

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Stroehmann Bakeries, Inc. v. Local 776 Int’l Brotherhood
of Teamsters, 762 F.Supp. 1187, 136 LRRM 2874
SO SPs oo ok ok Kad ES OTE ea Denes

Stroehmann Bakeries, Inc. v. Local 776 Int’l Brotherhood
of Teamsters, _ F.2d , 140 LRRM
SD: MES oo '< 6 5063 4x RNS Owe ED EERE RCH

United Paperworkers Int’l Union, AFL-CIO v. Misco,
ee a eres eee ee Tere

United Steelworkers v. Warrior & Gulf Navigation Co.,
363 U.S. 564, 46 LRRM 2416 (1960).............

W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757,
bee? 8... eee

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

LOCAL 776, INT ERNATIONAL BROTHERHOOD OF TEAMSTERS,
Petitioner,
v.

STROEHMANN BAKERIES, INC.,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT

The Petitioner, Teamsters Local Union No. 776, respectfully
requests that this Honorable Court issue a writ of certiorari to review
the judgment and opinion of the United States Court of Appeals for
the Third Circuit entered in this case on June 29, 1992.

OPINIONS BELOW

The opinion of the Court of Appeals for the Third Circuit is
reported at Stroehmann Bakeries, Inc. v. Local 776 Int’! Brotherhood
of Teamsters, F.2d and at 140 LRRM 2625, and
is reproduced in the Appendix at A-1 to A-32. The decision of the
United States District Court for the Middle District of Pennsylvania
is reported at Stroehmann Bakeries, Inc. v. Local 776 Int'l
Brotherhood of Teamsters, 762 F.Supp. 1187 (M.D. Pa. 1991), and

2

at 136 LRRM 2874, and is reproduced in the Appendix at A-33 to
A-38. Arbitrator Sands’ decision is reported as Jn re Stroehmann
Bakeries, Inc. and International Brotherhood of Teamsters Local
776 in 98 LA 873 (1990), and is reported in the Appendix at A-39
to A-48.

STATEMENT OF JURISDICTION

The decision of the United States Court of Appeals for the Third
Circuit was filed on June 29, 1992. On July 24, 1992 the United
States Court of Appeals for the Third Circuit denied the Union’s
Petition for Rehearing /n Banc. Jurisdiction of this Court is proper
under 28 U.S.C.A. §1254(1).

STATUTES INVOLVED
Section 203(d) of the Labor-Management Relations Act of 1947:

Final adjustment by a method agreed upon by the parties
is hereby declared to be the desirable method for settlement
of grievance disputes arising over the application or inter-
pretation of an existing collective-bargaining agreement.
The Service is directed to make its conciliation and media-
tion services available in the settlement of such grievance
disputes only as a last resort and in exceptional cases.
29 U.S.C.A. §173(d).

STATEMENT OF THE CASE

The Union and the Employer are parties to a collective bargain-
ing agreement that regulates the terms and conditions of employ-
ment for Stroehmann’s employees who are members of the collec-
tive bargaining unit. The collective bargaining agreement provides
for arbitration of disputes. App. at A-53.' The Agreement requires
the Employer to exercise its power of discipline and discharge fair-
ly, and with regard for the reasonable rights of employees. App.
at A-52. It also requires management to investigate and collect

1. The abbreviation *‘App.’’ will be used to refer to the Appendix that accom-
panies this Petition for a Writ of Certiorari.

3

the facts before making the final decision to terminate an employee.
App. at A-57.

The Union and the Employer voluntarily submitted a grievance,
filed by Samuel Leonard, to arbitration. The grievance arose when
the Employer terminated Mr. Leonard’s employment. The series
of events which led to Mr. Leonard’s termination began on November
14, 1989 when the Employer received a telephone call from the
manager of Stauffer’s market, one of the Employer’s customers.
Kimberly Wiegand was a Stauffer’s employee. Stauffer’s manager
told the Employer that Kimberly Weigand’s mother had phoned him
and had told him that Mr. Leonard had sexually harassed Ms.
Wiegand on November 12, 1989, while Leonard was making a
delivery to Stauffer’s market. App. at A-4.

Mr. Garrett and Mr. Jacobs, two of the Employer’s management
officials, telephoned Kimberly Wiegand and discussed the incident
with her over a speaker phone. The conversation lasted for about
twenty minutes. App. at A-41. Jacobs did not participate in the en-
tire conversation. App. at A-42. Garrett and Jacobs did not meet
with Ms. Wiegand, nor did they have any additional telephone con-
versations with her. App. at A-43. During the one conversation that
they did have with Ms. Wiegand, they ‘‘went easy”’ on her and did
not question any of the inconsistencies in the story that she told them,
nor did they question any inconsistencies between the story she told
them and the report she had given her mother. App. at A-22, n.3,
A-42.

On November 15, 1989, Jacobs phoned Mr. Leonard and asked
him to come in to discuss a problem. Jacobs did not tell Mr. Leonard
that the meeting would or could involve any disciplinary action. Mr.
Leonard asked if he should bring a union representative to the
meeting; Jacobs said that was up to Mr. Leonard. App. at A-42.
At the time he called Mr. Leonard, Jacobs had already decided to
suspend him pending dismissal. App. at A-46. On November 20,
1989, without any further investigation, Jacobs telephoned Mr.
Leonard and fired him. App. at A-44.

Mr. Leonard filed a grievance over his termination and the mat-
ter was taken to arbitration. Arbitrator Sands found that, under the

4

terms of the collective bargaining agreement, Stroehmann’s investiga-
tion was insufficient, and that the Company had failed to demonstrate
that it had just cause to fire Mr. Leonard. App. at A-46-47. Because
he found that the Company did not have just cause to fire Mr.
Leonard, Arbitrator Sands ordered the Company to reinstate him
with full back-pay and benefits, minus interim earnings. App. at
A-47.

The Company sought judicial review of Arbitrator Sands’ award.
The United States District Court for the Middle District of Penn-
sylvania granted the Company’s Motion for Summary Judgment,
concluded that the arbitrator’s award violated public policy, vacated
the award, and remanded the matter to a different arbitrator. App.
at A-38. The Union appealed that decision to the United States Court
of Appeals for the Third Circuit, and in an opinion issued on June
29, 1992, two of the judges on the three-judge panel affirmed the
District Court’s decision. App. at A-19. The Court of Appeals held
that the arbitrator's award reinstating an employee accused of sex-
ual harassment without a determination regarding the merits of the
allegation violates well-established and dominant public policies con-
cerning sexual harassment in the workplace. The Court also held
that Arbitrator Sands demonstrated an unacceptable predisposition
towards Leonard and against the Company, and that the District Court
did not, therefore, abuse its discretion in ordering that another ar-
bitrator be appointed to conduct a de novo hearing on the merits
of the allegations against Leonard. The Union filed a timely peti-
tion for a rehearing in banc and on July 24, 1992 the Union’s peti-
tion for a rehearing in banc was denied. App. at A-49.

The basis for federal jurisdiction in the court of first instance, the
United States District Court for the Middle District of Pennsylvania,
was grounded in §301(a) of the Labor-Management Relations Act
of 1947. 29 U.S.C.A. §185(a).

I.

5

ARGUMENT

THE DECISION BY THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT CON-
FLICTS WITH THIS COURT’S PRIOR DECISIONS.

A. THE COURT USURPED THE PARTIES’ RIGHT TO
HAVE ITS DISPUTES RESOLVED BY AN AR-
BITRATOR OF THEIR CHOICE.

This Honorable Court has long recognized that arbitrators play
a unique role in labor-management relations.

The labor arbitrator performs functions which are not nor-
mal to the courts; the considerations which help him fashion
judgments may indeed be foreign to the competence of
courts. The labor arbitrator’s source of law is not confined
to the express provisions of the contract, as the industrial
common law — the practices of industry and the shop —
is equally a part of the collective bargaining agreement
although not expressed in it. The labor arbitrator is usual-
ly chosen because of the parties’ confidence in his
knowledge of the common law of the shop and their trust
in his personal judgment to bring to bear considerations
which are not expressed in the contract as criteria for judg-
ment. The parties expect that his judgment of a particular
grievance will reflect not only what the contract says but,
insofar as the collective bargaining agreement permits, such
factors as the effect upon productivity of a particular result,
its consequence to the morale of the shop, his judgment
whether tensions will be heightened or diminished. For the
parties’ objective in using the arbitration process is primarily
to further their common goal of uninterrupted production
under the agreement, to make the agreement serve their
specialized needs. The ablest judge cannot be expected to
bring the same experience and competence to bear upon
the determination of a grievance, because he cannot be
similarly informed.

6

United Steelworkers v. Warrior & Gulf Navigation Co. , 363 U.S.
564, 46 LRRM 2416, 2419 (1960). When the parties have bargain-
ed for an arbitrator’s interpretation of the contract, an arbitrator’s
opinion, not the court’s opinion, is what they get. Steelworkers v.
American Manufacturing Co. , 363 U.S. 564, 46 LRRM 2414 (1960),
Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).

In the Labor-Management Relations Act, Congress said that ‘*[f]in-
al adjustment by a method agreed upon by the parties is declared
to be the desirable method for settlement of grievance disputes aris-
ing over the application or interpretation of an existing collective
bargaining agreement. . . .’” 29 U.S.C.A. §173(d). For over thirty
years this Honorable Court has, therefore, given extreme deference
to arbitration awards. Enterprise Wheel, 363 U.S. 593. This Court
has recognized that the parties bargained for an arbitrator to settle
their disputes and are free to bargain over the power that they give
to that arbitrator. Warrior & Gulf Navigation, 363 U.S. 574.
‘*Because the parties have contracted to have disputes settled by an
arbitrator chosen by them, rather than by a judge, it is the arbitrator’s
view of the facts and of the meaning of the contract that they have
agreed to accept.’” United Paperworkers Int'l Union, AFL-CIO v.
Misco, Inc., 484 U.S. 29 (1987).

B. THE COURT ABUSED ITS AUTHORITY BY
SUBSTITUTING ITS JUDGMENT FOR THAT OF THE
ARBITRATOR.

This Honorable Court has, for the past thirty years, held that
‘‘courts play only a limited role when asked to review the decision
of an arbitrator.’’ Misco, 484 U.S. at 36. The court may not recon-
sider the merits of an arbitration award.

The refusal of courts to review the merits of an arbitration
award is the proper approach to arbitration under collec-
tive bargaining agreements. The federal policy of settling
labor disputes by arbitration would be undermined if the
courts had the final say on the merits of the awards... .
As long as the arbitrator’s award ‘draws its essence from
the collective bargaining agreement’ and is not merely ‘his

7

own brand of industrial justice,’ the award is legitimate.

Id. (Quoting Enterprise Wheel, 363 U.S. at 596-97) (Citations
omitted).

The function of the court is very limited when the parties
have agreed to submit all questions of contract interpreta-
tion to the arbitrator. It is confined to ascertaining whether
the party seeking arbitration is making a claim which on
its face is governed by the contract. Whether the moving
party is right or wrong is a question of contract interpreta-
tion for the arbitrator. In these circumstances the moving
party should not be deprived of the arbitrator’s judgment,
when it was his judgment and all that it connotes that was
bargained for.

The courts therefore, have no business weighing the
merits of the grievance, considering whether there is equi-
ty in a particular claim, or determining whether there is
particular language in the written instrument which will sup-
port the claim.

American Manufacturing, 363 U.S. at 567-68. The only question
that should have been asked in this case was whether Arbitrator
Sands’ decision, that Stroehmann must conduct more than a cur-
sory investigation and must have just cause to terminate an employee,
draws its essence from the collective bargaining agreement.

There can be no doubt that the United States Court of Appeals
for the Third Circuit reconsidered the merits of the arbitrator’s award.
The Court of Appeals specifically found that Stroehmann had pro-
vided Mr. Leonard with adequate industrial due process. App. at
A-15, 17. That consideration of the merits was impermissible. The
federal policy of settling labor disputes by arbitration would be under-
mined if the courts had the final say on the merits of the awards.
Misco, 484 U.S. at 36 (quoting Enterprise Wheel, 363 U.S. at 596).

Nor may the court reject an award where it disagrees with the
arbitrator’s remedy.
[Where it is contemplated that the arbitrator will determine
remedies for contract violations that he finds, courts have

8

no authority to disagree with his honest judgment in that
respect. If the courts were free to intervene on these
grounds, the speedy resolution of grievances by private
mechanisms would be greatly undermined.

484 U.S. at 38. Arbitrator Sands found that the collective bargain-
ing agreement required Stroehmann’s higher management to con-
duct an investigation and to collect facts before reaching a final deci-
sion, that the cursory investigation conducted by the Company was
inadequate to support its decision to terminate, and that by the time
anyone heard Mr. Leonard’s account of the incident, the decision
to terminate him had already been made. App. at A-43, 46, 47. Ar-
bitrator Sands then found that because the Company had not done
the type of investigation mandated by the collective bargaining agree-
ment, Mr. Leonard was entitled to reinstatement. Even if the ar-
bitrator had found that Mr. Leonard did, in fact, sexually harass
Ms. Wiegand, the court would be powerless to overturn the discipline
imposed by the arbitrator simply because the court felt that discharge
was a more appropriate remedy. See 484 U.S. at 41.

The courts may not reject an arbitrator’s findings or interpreta-
tion of the collective bargaining agreement merely because it
disagrees with them. 484 U.S. at 38. The Court of Appeals obviously
disagreed both with the arbitrator’s findings and with his interpreta-
tion of the collective bargaining agreement. The arbitrator found
that Mr. Leonard had not been afforded industrial due process, while
the majority of the Court of Appeals found that the Company had
afforded industrial due process. App. at A-15, 17. It matters not
whether the arbitrator’s decision was, in the court’s view, wrong,
erroneous, misguided, or downright silly, so long as it drew its
essence from the collective bargaining agreement. Misco, 484 U.S.
at 39. *‘As long as the arbitrator is even arguably construing or ap-
plying the contract and acting within the scope of his authority, that
a court is convinced he committed serious error does not suffice to
overturn his decision.’’ Jd.

This Honorable Court has also said that when the subject of a
dispute is arbitrable, any procedural questions that grow out of the
dispute and that bear on its final disposition are left to the arbitrator.

cian

9

Misco, 484 U.S. at 40. Arbitrator Sands found that the Company
had not met its burden of showing that Mr. Leonard’s termination
had been for just cause. That is a decision which belongs to the ar-
bitrator. Yet, the Court of Appeals vacated the arbitrator’s decision.

Arbitrator Sands properly placed the burden of proof on the
employer, here, to justify the termination. The Court of Appeals
would alter that and require termination of an individual who has
merely been accused of sexual harassment. App. at A-27. The Court
of Appeals would place the burden of proof upon the employee and
require him to show that he was innocent and was therefore entitled
to reinstatement. The Court’s shifting of this burden of proof usurps
the arbitrator’s function, cavalierly tosses aside years of precedent
and American jurisprudence, and attempts to inject the Napoleonic
Code into the collective bargaining process. In doing so, the court
has set a dangerous precedent.

C. UNDER THE PUBLIC POLICY EXCEPTION COURTS
DO NOT HAVE THE AUTHORITY TO OVERTURN AN
ARBITRATION AWARD UNLESS THE AWARD ITSELF
VIOLATES PUBLIC POLICY.

This Honorable Court has said that ‘‘[a] court may refuse to en-
force a collective bargaining agreement when the specific terms con-
tained in that agreement violate public policy.’’ 484 U.S. at 43 (Em-
phasis added); see also W. R. Grace & Co. v. Rubber Workers, 461
U.S. 757, 113 LRRM 2641 (1983). This Court has also said that
a court may refuse to enforce an arbitrator’s interpretation of the
collective bargaining agreement if the contract, as interpreted by
the arbitrator, violates some explicity public policy. Misco, 484 U.S.
at 43. (Emphasis added). Here, the Court of Appeals does not cite
any specific terms of the contract which violate public policy. Ar-
bitrator Sands’ interpretation of the contract requires the employer
to conduct more than just a cursory investigation of the charges
against an employee, and requires the employer to have just cause
to fire an employee. The Court of Appeals does not cite any public
policy against requiring industrial due process, or against requiring
just cause to fire an employee. In fact, there is a strong public policy
in favor of those very things.

siete

10

This Honorable Court has said that its decision in Misco does not
sanction any broad judicial power to set aside arbitration awards on
public policy grounds. The question is whether the award itself
‘*creates any explicit conflict with other laws and legal precedents
....’’ 484 U.S. at 43. The award here merely requires the Com-
pany to reinstate an employee whom it had terminated without just
cause.

What must be remembered here is that the arbitrator did not find
that Mr. Leonard had sexually harassed anyone. Leonard was merely
accused of harassment. The Court of Appeals did not cite any strong
public policy requiring termination of individuals merely accused
of sexual harassment. This case mandates, at least in the Third Cir-
cuit, that those accused of sexual harassment be terminated im-
mediately, whether or not the accused actually engaged in the con-
duct alleged, for employers will fear that failure to do so will ex-
pose them to liability if they keep a possible harasser in the workplace.

The District Court and Court of Appeals cited Title VII as the
source of the strong public policy against sexual harassment in the
workplace. What these courts have overlooked is that there is no
Title VII case here. Title VII prohibits an employer from
discriminating against an individual on the basis of gender, or from
engaging in sexual harassment of its employees. Title VII also makes
the employer liable if his employees engage in sexual discrimina-
tion against, or sexual harassment directed at, their fellow employees.
Kimberly Wiegand and Samuel Leonard did not work for the same
employer. Samuel Leonard was not accused of sexually harassing
a Stroehmann’s employee.

D. THE COURT OF APPEALS DID NOT HAVE AUTHORI-
TY TO DECIDE THE ISSUE OF ARBITRATOR BIAS
WHEN THAT ISSUE WAS NOT RAISED IN THE AR-
BITRATION PROCEEDINGS.

What is not apparent from the Third Circuit’s decision in this case
is that the issue of arbitrator bias was not raised during the arbitra-
tion. The Company did not question the arbitrator’s impartiality until
the arbitrator ruled against it. The Company then screamed bias and
concluded that since the arbitrator ruled against it he must have been

—eeeeeaeaeaeaaaQa

11

biased. This Court has made it clear that procedural issues are left
to the arbitrator. Misco, 484 U.S. 29. Procedural issues include
evidentiary questions. The Third Circuit dissected the arbitrator’s
decision and culled various isolated items to demonstrate that the
arbitrator was biased. When read as a whole, the arbitrator’s deci-
sion demonstrates otherwise. Sexual harassment was clearly abhor-
rent to him.

The Third Circuit, in an effort to overturn a decision it disliked,
decided the bias question when it had never been raised in the ar-
bitration. The Company, however, clearly waived the right to raise
that issue by failing to raise it during the arbitration proceeding. The
Third Circuit’s unprecedented action conflicts with other courts which
have held that if an issue of bias is not raised in the arbitration it
is waived. Cook Industries, Inc. v. C. Itoh & Co., 449 F.2d 106
(2nd Cir. 1971), cert. denied, 405 U.S. 921 (1972).

II. THE DECISION OF THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT IS IN
CONFLICT WITH DECISIONS OF OTHER UNITED
STATES COURTS OF APPEALS.

A. THERE IS A SPLIT IN THE CIRCUITS OVER
WHETHER A COURT’S REVIEW IS LIMITED TO
WHETHER THE AWARD ITSELF VIOLATES PUBLIC
POLICY.

Although the language of Misco is clear, and states that the award
must violate public policy, the United States Court of Appeals for
the Third Circuit has, in this case, held differently. Other Courts
of Appeal have, however, followed the language of Misco. 484 U.S.
at 43. The United States Court of Appeals for the Sixth Circuit has
held that it is the award, itself, which must create an explicit con-
flict with other laws and precedents. Interstate Brands Corp. v.
Teamsters Local No. 135, 909 F.2d 885, 893 (6th Cir. 1990), cert.
denied, U.S. » 111 S.Ct. 1104 (1991), Shelby County
Health Care Corp. v. AFSCME Local 1733, F.2d ,

1992 WL 139314 (6th Cir. 1992), In re Pan American Corp. v. Air
, 1992 WL 96700 (S.D.N_Y.

Line Pilots Ass'n, B.R.

12

1992). The Seventh Circuit also considered whether the arbitrator’s
award, itself, the reinstatement of an employee who sexually harassed
a co-worker, violated public policy; and concluded that it did not.
Chrysler Motors v. Int’l Union, Allied Industrial Workers of America,
959 F.2d 685, 139 LRRM 2865 (7th Cir. 1992), cert. denied,
U.S. (1992). The Ninth Circuit too, considered whether the
award, there reinstatement, violated public policy, rather than
whether the employee’s conduct violated public policy. Stead Motors
v. Machinists Lodge 1173, 886 F.2d 1200, 132 LRRM 2689 (9th
Cir. 1989).

The Third Circuit’s decision in this case, however, looked to
whether the employee’s conduct violated public policy. The Eleventh
Circuit has, likewise, looked to whether the employee’s conduct,
rather than the arbitration award, violated public policy. Delta Air
Lines v. Air Line Pilots Ass'n Int’i, 861 F.2d 665, 130 LRRM 2014
(11th Cir. 1988). Both the Third Circuit and the Eleventh Circuit
have used the narrow review of arbitration awards under the public
policy exception to rewrite arbitration awards with which they
disagreed. That, this Honorable Court has said, they may not do.

B. THERE IS A SPLIT IN THE CIRCUITS OVER
WHETHER THE PUBLIC POLICY AGAINST SEXUAL
HARASSMENT PROHIBITS RETURNING AN IN-
DIVIDUAL ACCUSED OF SEXUAL HARASSMENT TO
THE WORKPLACE.

The United States Court of Appeals for the Tenth Circuit did not
find any public policy against returning a known sexual harasser
to the workplace and refused to disturb an arbitration award return-
ing the harasser to the workplace despite the public policy implica-
tions. The case involved a single episode of sexual harassment. Com-
munications Workers of America v. Southeastern Electric
Cooperative, 882 F.2d 467, 132 LRRM 2381 (10th Cir. 1989). The
United States Court of Appeals for the Seventh Circuit did not find
a public policy against returning a known sexual harasser to the
workplace and refused to disturb an arbitration award returning a
known harasser to the workplace despite the public policy implica-
tions. The worker in question was a ‘repeat offender’ who had en-
gaged in at least four other instances of sexual harassment. Chrysler

13

Motors, 959 F.2d 685. In Chrysler Motors, the employee had four
prior incidents of sexual harassment and was terminated for the fifth
incident. The arbitrator there found that Chrysler did not acquire
that information until after the discharge, and that the evidence on
which the discharge was based did not indicate that the employee
could not be rehabilitated. The arbitrator concluded that the employee
was not discharged for good cause, and reduced the penalty from
termination to a thirty-day suspension. The Court concluded that
the award of reinstatement did not violate public policy. Id.

fii. IN DECIDING THAT THE UNDERLYING HARASS-
MENT CHARGE MUST BE DECIDED, BECAUSE
OF THE PUBLIC POLICY IMPLICATIONS, WHEN
THE ARBITRATOR STATES ALTERNATIVE,
VALID GROUNDS FOR HIS DECISION, THE
COURT OF APPEALS FOR THE THIRD CIRCUIT
HAS DECIDED AN IMPORTANT QUESTION OF
FEDERAL LAW WHICH HAS NOT BEEN, BUT
SHOULD BE, SETTLED BY THE UNITED STATES
SUPREME COURT.

Although this Honorable Court, in Misco, did not require that the
arbitrator reach the underlying question of whether or not the
employee had or had not used marijuana in the employer’s parking
lot, the Third Circuit Court of Appeals is treating the public policy
against sexual harassment differently than the public policy against
drug use. The Third Circuit is requiring that the arbitrator deter-
mine whether or not the harassment actually occurred, despite the
fact that the arbitrator decided the case on a just cause issue. This
Court has not decided whether the public policy against sexual harass-
ment requires a decision on the underlying charge when there are
other valid grounds for an arbitrator’s decision.

Other courts have held that a determination of the underlying
charge is not necessary where the public policy was air line safety
and where there was an independent, due process basis for the ar-
bitrator’s decision. Pan American Corp., 1992 WL 96700. Nor was
it necessary to decide the underlying charge when the issue was

14

employee aggression. Perma-Line Corp. v. Sign Pictorial and
Display Union, Local 230, 639 F.2d 890 (2nd Cir. 1981).

If the public policy against sexual harassment is to be treated dif-
ferently than the public policies related to air line safety, workplace
Safety, and drug use, that statement should come from this court.
If the Court fails to do so, it will be inundated with cases attempting
to rank the various public policy issues and define the parameters
of arbitration which must accompany each public policy issue.

CONCLUSION

For these reasons, the Union respectfully requests that this
Honorable Court grant its Petition for a Writ of Certiorari.

Respectfully Submitted,

IRA H. WEINSTOCK, ESQUIRE
(Counsel of Record)
WENDY DULLEA BOWIE, ESQUIRE

IRA H. WEINSTOCK, P.C.
800 North Second Street
Harrisburg, PA 17102

Phone: (717) 238-1657

Counsel for Petitioner

Dated: 10/14/92

APPENDIX

Filed June 29, 1992

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 91-5261

STROEHMANN BAKERIES, INC..,
Appellee
v.
LOCAL 776, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS,
Appellant

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 90-01359)

Argued: September 20, 1991

PRESENT: BECKER, HUTCHINSON and
SCIRICA, Circuit Judges

(Opinion Filed June 29, 1991 (sic))

Ira H. Weinstock, Esquire (Argued)
Law Office of Ira H. Weinstock
Suite 100
800 North Second Street
Harrisburg, PA 17102

Attorney for Appellant

A-l

A-2

Steven R. Wall, Esquire (Argued)

Timothy P. O'Reilly, Esquire

Catherine Reid, Esquire

Morgan, Lewis & Bockius

2000 One Logan Square

Philadelphia, PA 19103
Attorneys for Appellee

Robert E. Williams, Esquire

Douglas S. McDowell, Esquire

Ann Elizabeth Reesman, Esquire

McGuiness & Williams

Suite 1200

1015 Fifteenth Street, N.W.

Washington, D.C. 20005
Attorneys for Amicus Curiae Equal
Employment Advisory Council

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Local 776 International Brotherhood of Teamsters (the Union),
appeals an order of the United States District Court for the Middle
District of Pennsylvania granting Stroehmann Bakeries, Incorporated
(Stroehmann’s) motion for summary judgment, denying the Union's
cross-motion for summary judgment, vacating labor arbitrator John
Sands’ (Arbitrator Sands) award reinstating Samuel Leonard
(Leonard), a former Stroehmann employee, with full back pay, and
remanding the matter for a de novo hearing before a different ar-
bitrator. See Stroehmann Bakeries, Inc. v. Local 777 Int'l
Brotherhood of Teamsters, 762 F. Supp. 1187, 1190 (M.D. Pa.
1991). Pursuant to a work rule, Stroehmann discharged Leonard
for ‘‘immoral conduct’’ after a customer reported him for sexual
harassment. Arbitrator Sands concluded Stroehmann had not given
Leonard a full opportunity to refute the charge or explain his con-
duct and so reinstated him without deciding whether the charge of
sexual harassment was true. See id. at 1188-90. The issues on ap-

i

A-3

peal are whether the district court properly concluded that the ar- |
bitrator’s award violated public policy and, if so, whether it pro-
perly vacated the award and remanded the matter to a different
arbitrator.

We will affirm. Under the circumstances present here, an ar-
bitrator’s award reinstating an employee accused of sexual harass-
ment without a determination regarding the merits of the allegation
violates well-established and dominant public policies concerning
sexual harassment in the workplace. Moreover, because Arbitrator
Sands demonstrated an unacceptable predisposition cowards Leonard
and against Stroehmann, the district court did not abuse its discre-
tion in ordering that another arbitrator should be appointed to con-
duct a de novo hearing on the merits of the allegations against
Leonard.

I.

On July 18, 1990, Stroehmann filed a complaint against the Union

in the United States District Court for the Middle District of Penn-
sylvania. Stroehmann sought to vacate an award issued by Arbitrator
Sands reinstating Leonard, a former Stroehmann employee.
Stroehmann discharged Leonard after investigating and determin-
ing that he had sexually harassed a customer’s employee.
This conduct violated a company rule that prohibited immoral con-
duct while on duty. Stroehmann’s complaint asserted that the award
should be vacated because it violated a well-defined public policy
against sexual harassment in the workplace.

On August 17, 1990, the Union filed an answer and a counterclaim.
The counterclaim sought enforcement of the arbitration award.

On December 20, 1990, Stroehmann moved for summary judg-
ment On its complaint and on the Union's counterclaim. The Union
filed a cross motion for summary judgment on January 7, 1991 on
all claims raised by both parties.

By order entered March 18, 1991, the district court granted
Stroehmann’s motion for summary judgment, denied the Union’s
cross-motion, vacated the arbitration award and remanded the mat-

A-4

ter for a de novo hearing before a different arbitrator. /d. at 1190.
On April 4, 1992, the Union filed a timely notice of appeal from
that order.

Il.

Stroehmann employed Leonard as a ‘‘store door’’ driver for about
seventeen years. As a “‘store door’’ driver, Leonard was to deliver
bread products to Stroehmann’s customers, usually between the hours
of 8:00 p.m. and 9:00 a.m. On November 20, 1989, Stroehmann
discharged Leonard for violating a company rule prohibiting im-
moral conduct while on duty.

The following events led to the discharge. On November 14, 1989,
Ken Zimmerman (Zimmerman), the manager of Stauffer’s, a
Stroehmann customer store in Lititz, Pennsylvania, telephoned Bill
Burns, a Stroehmann Key Account Manager, and said that he need-
ed to speak with Steve Garrett (Garrett), Stroehmann’s Harrisport
Sales Activator, immediately. Garrett and Joe Jacobs (Jacobs),
Stroehmann’s Harrisport Branch Manager, returned Zimmerman’s
call later that day. Over the phone, Zimmerman told Garrett and
Jacobs that a Stauffer night clerk, Kimberly Wiegand (Wiegand),
told her mother that Leonard had sexually harassed her by touching
one of her breasts without her consent, pushing himself against her
and making explicit sexually charged remarks that were offensive
to her while delivering bread to the store on November 12, 1989.
Zimmerman learned of the alleged incident through a phone call from
Wiegand’s mother. Zimmerman said that, as a result of the alleged
incident, he no longer wanted Leonard to deliver bread to Stauffer’s.

Garrett and Jacobs telephoned Wiegand the same day. The two
discussed the alleged incident with Wiegand over a speaker phone.
They prepared a report of this conversation, which Wiegand signed
two months later. According to the report, after Wiegand let Leonard

-into-the closed store to make a delivery, he told her that he had just
had a conversation on his citizen’s band radio with two girls about
an orgy and that he was excited about the conversation. Wiegand
then asked Leonard if he was married. He said that he was. Leonard
then added that he had engaged in extramarital sexual intercourse
in the past, but that presently he just wanted to feel other women

A-5

because he was afraid on contracting AIDS. After unloading his
delivery, Leonard picked up an orange and asked Wiegand if her
breasts were hard like the orange. Leonard attempted to pull up
Wiegand’s shirt and she resisted. At that point, Weigand walked
to the front of the store to see if the other night employee had arriv-
ed and Leonard followed her. When she discovered that the other
employee had not yet arrived, Wiegand began walking to the back
of the store. Leonard was then in front of Wiegand and told her he
knew she was following him so she could ‘‘look at [his] ass.’’ Ap-
pendix (App.) at 124. Wiegand replied that she was following him
in order to let him out of the store and make sure that the door was
locked behind him. Then, Leonard moved behind Wiegand and
reached around her and grabbed her breasts. She resisted and held
the door open for Leonard to leave. Leonard asked if Wiegand was
trying to get rid of him, and then told her not to tell her father about
the incident because he did not want to jeopardize his friendship with
her father. Leonard then left and Wiegand locked the door. Garrett
and Jacobs observed that Wiegand was emotionally upset and sobbed
during their conversation.

The following day, November 15, 1989, Jacobs telephoned
Leonard and asked him to come in to discuss a problem. Leonard
asked if he should bring a Union representative and Jacobs told him
it was up to him. Leonard arrived at Jacob’s office alone. Jacobs,
Garrett and Paul Blair (Blair), Leonard’s supervisor, presented
Leonard with Zimmerman and Wiegand’s comments. Jacobs said
Leonard denied the allegations, stated that Wiegand was ‘‘wacko’’,
and that he would not have done something to jeopardize his mar-
riage. App. at 126. Leonard signed a written statement that Jacobs
prepared documenting these responses. He also stated that the allega-
tion concerning the citizen’s band radio must have been a lie because
his was broken. This comment was not included in the written state-
ment. Although Leonard invited the men to come outside and observe
the broken radio, they did not do so. On the written statement Jacobs
wrote that Leonard was suspended pending further investigation of
the alleged incident.

A-6

Jacobs discussed the matter with his superiors and Stroehmann’s
attorney over the next few days. He also met with Zimmerman on
November 17, 1989 to again discuss the matter with him.

On November 20, 1989, Jacobs telephoned Leonard and inform-
ed him that he was discharged for violation of a company rule pro-
hibiting immoral conduct while on duty. Immoral conduct is con-
sidered a ‘‘major offense’’ which subjects the offender to immediate
discharge under longstanding written Stroehmann policy. At that
time, Leonard told Jacobs that Wiegand had made unreciprocated
sexual advances towards him and that he had rejected them.

Leonard filed a grievance over the discharge pursuant to the Col-
lective Bargaining Agreement (Agreement) between Stroehmann and
the Union’. In the Agreement, Stroehmann promised it would ‘‘ex-
ercise the power of discipline and discharge fairly and with regard
for the reasonable rights of the employees.’’ App. at 10. The Agree-
ment went on to say *‘[a]ny employee who has been disciplined or
discharged for any reason shall have the right to a hearing under
the grievance and arbitration provisions’’ of the Agreement. /d.

Leonard’s grievance went to arbitration and an arbitration hear-
ing was held on March 29, 1990 on the question; Was there just
cause for Leonard’s discharge, and if not, what shall the remedy
be? The arbitrator expressly refused to find whether the alleged sexual
harassment occurred. Instead, he found that Stroehmann had insuf-
ficiently investigated the alleged incident before discharging Leonard.
Based solely on this finding, he determined that Leonard was not
discharged for just cause and ordered his reinstatement with full back
pay less interim earnings.

1. The Agreement was effective from November 13, 1986 to November 12,
1989. While the alleged harassment occurred on November 12, 1989, the resulting
discipline, discharge and arbitration hearing which are the subject of this case did
not occur until after that date. Since neither party has raised any issue about the
applicability of the Agreement to this case, we will assume the Agreement and
its grievance procedure were renewed or continued without material change.

A-7

The arbitrator did not reach a conclusion concerning the evidence
before him, or the credibility of the witnesses.? Nevertheless, he
stated that if he had to make a factual determination regarding the
occurrence of the incident, he would have to find in favor of Leonard
because he had insufficient evidence to determine whether Leonard
or Wiegand was more credible.

The district court vacated the award after concluding that there
exists a well-established public policy against sexual harassment in
the workplace and that the arbitrator's award violated that public
policy by ordering reinstatement without a factual finding on the
merits of the allegations against Leonard. The district court further
remanded the matter for arbitration before a different arbitrator
because it also concluded that arbitrator Sands had demonstrated a
clear pre-disposition in Leonard’s favor and an insensitivity to sex-
ual harassment claims. The district court reached the last conclu-
sion based on its determination that the arbitrator emphasized such
irrelevant matters as the alleged victim's social life and appearance
and Leonard’s marital status, expressed his personal opinions about
Stroehmann’s sensitivity to sexual matters and ignored Leonard’s
testimony that he told Wiegand he wished his wife’s breasts were
hard like an orange.

Il.
The district court had subject matter jurisdiction over this case

pursuant to Section 301(a) of the National Labor Relations Act. See
29 U.S.C.A. §185(a) (West 1978). Section 301 (a) gives federal

2. In the paragraph introducing his conclusions, the arbitrator states: *‘On the
entire record before me, including my assessments of witnesses’ credibility and
the probative value of the evidence, I must sustain Leonard's grievance .. . .”’
App. at 38. This statement cannot be construed to mean that the arbitrator fully
considered the evidence and testimonial credibility of the witnesses for the pur-
pose of making a determination on the merits of the allegations against Leonard
because the very next sentences emphasize the opposite. They state: ‘First, it is
essential at the outset to eliminate what this decision does not involve. It does not
involve any fine questions of quantum of proof, relative credibility of witnesses,
seriousness of charged misconduct, or presence of anti-union animus.’* App. at
38 (emphasis in orginal). In addition, the substance of the opinion, read as a whole,
strongly indicates that the arbitrator did not consider either the evidence or the
witness's credibility and so could not have made an impartial merits determination.

A-8

district courts jurisdiction over ‘‘[s]Juits for violation of contracts
between an employer and a labor organization representing employees
in an industry affecting commerce defined in this chapter . . . in
any district court of the United States having jurisdiction of the par-
ties.’’ The district court also had federal question jurisdiction. See
28 U.S.C.A. § 1331 (West Supp. 1991).

We have appellate jurisdiction over this appeal from the final order
of the district court granting summary judgment to Stroehmann pur-
suant to 28 U.S.C.A. §1291 (West Supp. 1991). Although an order
denying a motion for summary judgment is not ordinarily final and
appealable under section 1291, it becomes so when accompanied
by an order granting a cross-motion for summary judgment. Nazay
v. Miller, 949 F.2d 1323, 1328 (3d Cir. 1991). Therefore, we also
have appellate jurisdiction over the district court’s order denying
the Union's cross-motion.

We exercise plenary review over this appeal from an order resolv-
ing cross-motions for summary judgment. /nternational Union,
United Mine Workers of Am. v. Racho Trucking Co., 897 F.2d 1248,
1252 (3d Cir. 1990). Therefore, we apply the same test the district
court applied: (1) are there no material facts in dispute; and (2) is
one party entitled to judgment as a matter of law? See Fed. R. Civ.
P. 56(c); Racho Trucking, 897 F.2d at 1252.

IV.

The Union argues that the district court erred in the following ways:
it determined the means used to reach the award, and not the award
itself, violated public policy; it minimized industrial due process con-
cerns, and it incorrectly portrayed the arbitrator as insensitive to
sexual harassment claimants, and so biased towards Leonard and
against Stroehmann. Thus, the Union seeks reversal of the district
court’s order because courts cannot vacate a labor arbitration award
unless the award itself, not just the means of arriving at it, violates
public policy.

It is well settled that courts generally have only a very limited
power to review a labor arbitration award by an arbitrator appointed
pursuant to a collective bargaining agreement. See United Paper-

A-9

workers Int'l Union v. Misco, Inc., 108 S. Ct. 364, 370 (1987);
W. R. Grace & Co. v. Local 259, International Union of the United
Rubber Workers, 461 U.S. 757, 764 (1983); United Steelworkers
of Am. v. Enterprise Wheel and Car Corp., 363 U.S. 593, 596,
598-99 (1960). If it were otherwise, the Congressional objective of
settling labor disputes by arbitrators expert in industrial practices
and customs would be undermined. See Enterprise Wheel, 363 U.S.
at 596. Full-blown judicial review of labor arbitrators’ decisions
would likewise annul the bargain of the parties for an arbitrator’s
construction of their collective bargaining agreement instead of a
court’s. Jd. at 599. Broad court review would render the arbitrator's
decision practically meaningless, as it would almost never be final.
Id. Therefore, as long as the arbitrator’s award is drawn from the
essence of the collective bargaining agreement, a court may not vacate
it even if the court finds the basis for it to be ambiguous or disagrees
with its conclusions under the law. /d. at 597-98.

- Nevertheless, there are exceptional situations in which courts do
review the merits of labor arbitration awards. One such situation
is based on the general principle that courts may not enforce con-
tracts which are contrary to public policy. See Grace, 461 U.S. at
766. Since collective bargaining agreements are contracts, courts
may not enforce them in a manner that is contrary to public policy.
Accordingly, if an arbitrator construes a collective bargaining agree-
ment in a way that violates public policy, an award based on that
construction may be vacated by a court. See id.

This exception, though, does not give courts broad discretion to
vacate arbitration awards based on general considerations of sup-
posed public policy. See Misco, 108 S. Ct. at 373. Courts may only
vacate arbitration awards which explicitly conflict with well-defined,
dominant public policy. /d. A public policy is well-defined and domi-
nant if it may be ascertained from law and legal precedent. /d.

There is a well-defined and dominant public policy concerning
sexual harassment in the workplace which can be ascertained by
reference to law and legal precedent. Title VII of the Civil Rights
Act of 1964, 42 U.S.C.A. § 2000e-2(a)(1) (West 1981), prohibits
employment discrimination on the basis of sex. The Supreme Court

A-10

of the United States has interpreted this prohibition to include sex-
ual harassment in the workplace which has either an economic ef-
fect on the complainant, or creates a hostile or offensive work en-
vironment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64-67
(1986). The Equal Employment Opportunity Commission (EEOC)
has promuigated a regulation that elaborates what constitutes sex-
ual harassment under Title VII:

Harassment on the basis of sex is a violation of [42
U.S.C.A. § 2000e-2(a)(1)]. Unwelcome sexual advances,
requests for sexual favors, and other verbal or physical con-
duct of a sexual nature constitute sexual harassment when
(1) submission to such conduct is made either explicitly or
implicitly a term or condition of an individual’s employ-
ment, (2) submission to or rejection of such conduct by an
individual is used as the basis for employment decisions
affecting such individual, or (3) such conduct has the pur-
pose or effect of unreasonably interfering with an in-
dividual’s work performance or creating an intimidating,
hostile, or offensive work environment.

29 C.F.R. § 1604.11(a) (1991) (footnote omitted). In further ex-
planation, the EEOC has published this Guideline:

[U]nwelcome, intentional touching of a charging party’s
intimate body areas is sufficiently offensive to alter the con-
ditions of her working environment and constitute a viola-
tion of Title VII. More so than in the case of verbal ad-
vances or remarks, a single unwelcome physical advance
can seriously poison the victim’s working environment.

EEOC Policy Guidance: Sexual Harassment, N-915.035, quoted in
Newsday, Inc. v. Long Island Typographical Union, No. 915, 915
F.2d 840, 844 (2d Cir. 1990), cert. denied, 111 S. Ct. 1314 (1991).
It is clear that there is a well-defined, dominant public policy against
sexual harassment in the workplace and that behavior such as that
alleged by Wiegand is considered sexual harassment under the law.

In addition to the public policy against sexual harassment in the
workplace, a well-defined, dominant public policy favoring volun-

A-11

tary employer prevention and application of sanctions against sex-
ual harassment in the workplace exists. The Supreme Court recogniz-
ed this important public policy in both Grace and Misco. See Misco,
108 S. Ct at 373; Grace, 461 U.S. at 770-71. An EEOC regulation
on the matter states:
Prevention is the best tool for the elimination of sexual
harassment. An employer should take all the steps necessary
to prevent sexual harassment from occurring, such as affirm-
atively raising the subject, expressly strong disapproval,
developing appropriate sanctions, informing employees of
their right to raise and how to raise the issue of harassment
under Title VII, and developing methods to sensitize all
concerned.

29 C.F.R. § 1604.11(f) (1991). The Guidelines further provide that
employers should create a procedure to encourage alleged sexual
harassment victims to come forward and seek to resolve their com-
plaints. EEOC Policy Guidance, supra at N:4028, quoted in News-
day, 915 F.2d at 845. Stroehmann’s actions following Wiegand’s
allegations observed and advanced this public policy.?

Under the circumstances present here, an award which fully
reinstates an employee accused of sexual harassment without a deter-
mination that the harassment did not occur violates public policy.
Therefore, Arbitrator Sands construed the Agreement between the
parties in a manner that conflicts with the well-defined and domi-
nant public policy concerning sexual harassment in the workplace
and its prevention. His award would allow a person who may have
committed sexual harassment to continue in the workplace without
a determination of whether sexual harassment occurred. Certainly,
it does not discourage sexual harassment. Instead, it undermines the
employer’s ability to fulfill its obligation to prevent and sanction
sexual harassment in the workplace. For these reasons, we conclude
that reinstatement of this employee without a determination of the
merits of the allegation violates public policy.

3. In addition to the pertinent federal law cited, the Commonwealth of Penn-
sylvania has enacted a similar law. See Pennsylvania Human Relations Act, 43
Pa. Cons. Stat. Ann. § 955(a) (1991).

A-12

Both the United States Courts of Appeal for the Second and Tenth
Circuits have reviewed arbitration awards reinstating employees
discharged for sexual harassment. Nothing in those opinions counsels
against our holding today. Indeed, they support it.

In Newsday, 915 F.2d at 843, the arbitrator reinstated an employee
after finding that he had committed sexual harassment more than
once. The arbitrator had decided that the medicine of discipline should
be administered in progressively more severe doses and discharge
was too strong a dose for this stage of the employee’s disease. The
Second Circuit overturned the award as violative of public policy
under Misco because it returned a known sexual harasser to the
workplace, so perpetuating a hostile and offensive work environ-
ment and inhibiting the employer from performing its duty to pre-
vent sexual harassment. See id. at 843-45.

In Communication Workers v. Southeastern Elec. Coop. , 882 F.2d
467, 468 (10th Cir. 1989), however, the court refused to vacate an
arbitrator's award reinstating an employee discharged for sexual
harassment. There, the arbitrator concluded that the discharged
employee had committed sexual harassment only one time, but was
penitent and apologetic about it, and his record was otherwise
unblemished. /d. at 468-69. He therefore concluded that suspension
without pay, not discharge, was the appropriate discipline. The court
expressly noted that the arbitrator had incorporated the public policy
against sexual harassment into his reasoning in reaching his deci-
sion. /d. at 469. It decided to uphold the award in deference to ar-
bitration decisions in labor cases, despite recognizing the public policy
exception to court review of labor arbitration awards and the well-
defined and dominant public policy concerning sexual harassment
in the workplace. Under Enterprise Wheel, that principle of deference
is especially strong with respect to an arbitrator’s formulation of
remedies. See id. at 470 (quoting Enterprise Wheel, 363 F.2d at 597).
The arbitrator in Communications Workers determined the merits
of the charge after full consideration of the evidence and the credibili-
ty of the witnesses before him and did impose some discipline on
the employee. Communications Workers does not stand for the pro-

A-13

position that objectively unwelcome sexual advances can be ignored
by a labor arbitrator. The Tenth Circuit merely deferred to the ar-
bitrator’s choice of remedy.

Arbitrator Sands studiously avoided the charges against Leonard
and did none of the things the arbitrator did in Communications
Workers. Arbitrator Sands did not consider either the evidence or
the credibility of the witnesses before him. He did not make a find-
ing on the merits of the sexual harassment allegation, and he neither
considered nor respected the pertinent public policy.

The dissent claims we misapprehend the arbitrator’s decision. The
dissent says:

His opinion explicitly suggested that there was not a suffi-
cient basis to believe Kimberly Wiegand’s allegations: ‘If
Stroehmann’s investigation had been at all consistent with
the severity of Wiegand’s accusations and of their conse-
quences for Leonard’s life and if that investigation had pro-
vided an adequate basis to believe that Leonard had behaved
as charged, Stroehmann’s discharge decision would have
been unassailable.’ (emphasis added). In finding that
Stroehmann’s discharge decision would have been
unasssailable had it had an adequate basis, the arbitrator
implicitly held that there was an inadequate basis for the
charge of sexual harassment.

Dissent Typescript at 4. The dissent is wrong. In reaching its con-
clusion regarding the scope of the arbitrator’s decision it fails to men-
tion the sentences immediately preceding and the paragraph subse-
quent to the language it quotes. The preceding sentences state: **First,
it is essential at the outset to eliminate what the decision does not
involve. It does not involve any fine questions of quantum of proof,
relative credibility of witnesses, seriousness of charged misconduct,
or presence of anti-union animus.’’ App. at 38. (emphasis in original).

4. See also Chrysler Mators Corp. v. Allied Industrial Workers, Nos. 90-1423,
90-1804, 1992 WL 65656 (7th Cir. Apr. 3, 1992) (an arbitrator's decision to
reinstate an employee discharged for sexual harassment after finding that he had
committed sexual harassment, but that he could be rehabilitated, and therefore that
a less severe punishment was appropriate, does not violate public policy).

A-14

The subsequent paragraph states in relevant part: ‘‘Second, what
is involved in this case is the absolute insufficiency of Stroehmann’s
response to the information its management received on November
14th from Zimmerman and Wiegand.’’ App. at 39 (emphasis in
original).°

Arbitrator Sands’ interpretation of the Agreement’s clause relating
to industrial due process neither considered nor respected public
policy. Instead, his interpretation violated it.

The district court did not exceed its narrow power to review an
arbitrator’s findings of fact or his interpretation of the meaning of
this collective bargaining agreement’s provisions. Moreover, the
district court did not substitute judicial opinion for an arbitrator’s
decision in contravention of the parties’ Agreement. The district court
did not rule on either the merits of the allegations or impose the
remedy it thought appropriate. Instead, it simply vacated the award
as violative of public policy and remanded the matter for a redeter-
mination in light of that public policy.

The Union misunderstands the rationale for the district court’s
holding when it argues that the court improperly found the means
used to reach the award, and not the award itself violated public
policy. The district court held that the award itself violated public
policy because the award would have reinstated Leonard without
determining the merits of the allegations against him. That holding
is proper because an award of full reinstatement without findings
on what Leonard did violates the strong public policy against preven-
tion of sexual harassment in the workplace. The Union’s first argu-
ment lacks merit.

The Union’s next argument that the district court did not give
enough weight to industrial due process concerns is also meritless.
When arbitrators interpret collective bargaining agreements contain-
ing broad clauses that require employers to follow fair procedure
before disciplining employees, they consistently give meaning to
those clauses by applying the concept called ‘‘industrial due pro-

5. For the reasons set out above, we do not think Stroehmann’s response was
‘‘absolutely’’ insufficient given the nature of the charges. See typescript at 21-22.

A-15

cess.’ See Chauffeurs Local Union No. 878 v. Coca-Cola Bottling
Co., 613 F.2d 716, 719 (8th Cir.) cert. denied, 446 U.S. 988 (1980).
Though the concept of industrial due process is not easy to define
exhaustively, its use is standard practice in interpreting general pro-
visions in collective bargaining agreements that require fair discipline
procedures.® See id. at 720. Generally, in applying industrial due
process to particular cases, labor arbitrators insist on similar
punishments for similar offenses and require employers to give
employees advance notice and an opportunity to respond to the
charges against them before discipline is imposed. See, e.g., id. at
720 (citing Getman, Labor Arbitration and Dispute Resolution, 88
Yale L.J. 916, 921 (1979)). Arbitrators also hold that if the employee
was not given an opportunity to respond, or key witness were not
present to testify at the arbitration hearing, industrial due process
has been violated. /d. at 720 n.2 (citing Jennings and Wolters,
Discharge Cases Reconsidered, 31 Arb. J. 164, 178 (1976)). We
recognize the importance of industrial due process in the workplace
and in the day-to-day administration of the labor contracts there,
but nothing the Union has presented to us, nor that we have
discovered through our own research demonstrates that Stroehmann
did not respect it.

Stroehmann gave Leonard a chance to respond to the charges
against him; Leonard had notice that the conduct charged could result
in discharge; Leonard was informed of the source of the charge
against him; and Jacobs toid Leonard that he could bring Union
representatives to the meeting in which he was first confronted with
the charges against him, but he chose not to do so. Additionally,
Stroehmann investigated the charges against Leonard by discussing
the incident with Wiegand, the only eyewitness, and all key witnesses
testified at the arbitration hearing. The arbitrator’s conclusion that
Stroehmann denied Leonard industrial due process is unfounded.
We disagree with the statement in the dissent that the decision to

6. Some examples of provisions that trigger analysis in terms of industrial due
process are clauses which merely state the discipline must be for ‘‘just cause,”’
see, c.g., Chauffeurs, 613 F.2d at 718, or, as the Agreement between the Union
and Stroehmann, merely state that the employer must be ‘‘fair and reasonable,’’
see App. at 10.

A-16

suspend before confrontation evidences ‘‘prejudgment.’’ Dissent
Typescript at 15. This is not a case in which the employer acted
without affording the employee any opportunity to tell his version
of events. While it is true that Stroehmann decided to suspend
Leonard pending further investigation before management spoke to
him, the decision to discharge Leonard was not made until after he
gave his version of the incident and the employer's investigation
was completed. Even then, Leonard was given a second opportuni-
ty to tell his side of the story. Given that opportunity, his only reponse
was that he could not have been listening to erotic CB conversation
because his CB radio was broken. The broken radio would be
evidence that he had not been listening to such conversations. It is
not evidence that he did not tell Wiegand he had been doing so.
Therefore, the dissent’s reference to Stroehmann’s refusal of
Leonard's request that management verify this by examining the radio
is puzzling.

The cases the Union cited for the Court at oral argument stand
tor the unobjectionable general proposition that arbitrators’ awards
that reinstate discharged employees are not subject to judicial in-
terference if the employer did not afford the employee industrial due
process. In Chauffeurs, 613 F.2d at 717, and Federated Dep't Stores
v. United Food & Commerical Workers Union, Local 1442, 901 F.2d
1494, 1495 (9th Cir. 1990), the employers gave the employees no
opportunity to respond to the charges against them. In Super Tire
Eng 'g Co. v. Teamsters Local Union No. 676, 721 F.2d 121, 122-123
(3d Cir. 1983), cert. denied, 469 U.S. 817 (1984), we upheld an
arbitrator's award reinstating an employee because he was fired
without notice that he could be discharged for the one offense he
committed, though the arbitrator found that he did commit the of-
fense. In Safeway Stores, Inc. v. United Food Workers Union, Local
400, 621 F. Supp. 1233, 1236 (D.D.C. 1985), the arbitrator's award
reinstated an employee because of the employer’s industrial due pro-
cess violation in not informing the employee of all the sources of
the charges against him until after he was discharged. Finally, in
Anaconda Co. v. District Lodge No. 27 of the Int'l Ass'n of
Machinists, 693 F.2d 35, 36 (6th Cir. 1982), an arbitration award
was upheld reinstating an employee because he was not allowed union

A-17

representation when the charges against him were presented to him
though he requested such representation. These cases are inapposite
because, as we have already concluded, Stroehmann did not reach
its decision to discharge Leonard without respecting industrial due
process.’

The Union also argues that the district court should not have
vacated the award because it based its holding on an incorrect con-
clusion that the arbitrator was biased towards Leonard particularly
and against sexual harassment claimants generally. On the issue of
general bias, we agree with the Union that Stroehmann and the district
court took some of the arbitrator's comments out of context and ex-
aggerated them. The district court did not vacate the arbitration award
on the rationale that the arbitrator was biased. It vacated the award
on the ground that it violated public policy concerning sexual harass-
ment in the workplace, not because it determined the arbitrator to
be biased. See Stroehmann Bakeries, 762 F. Supp. at 1190.

Because the district court relied on some comments of the arbitrator
that might have exaggerated his bias because they were taken out
of context, the question remains whether its remedy of a remand
of the matter for a de novo hearing before a different arbitrator is
proper. While that question is more difficult to answer, its proper
resolution is affected by our scope of review. We review a district

7. The writer of this opinion believes this case could be decided on an alter-
nate ground. Even if Stroehmann did not fully afford Leonard industrial due pro-
cess, the writer believes that failure cannot completely override all other public
policy concerns. In this respect, he would be careful to distinguish the concept
of industrial due process from due process as required by the Constitution. The
writer further believes that the Supreme Court's public policy exception to the
general rule against court review of the merits of a labor arbitration decision im-
plies that a labor arbitrator's concept of industrial due process does not override
a difinitive public policy. See Misco, 108 S. Ct. at 370-71. Thus, he concludes
that a lack of full industrial due process, had it occurred, would not provide a reason
for reversing the district court's order vacating Arbitrator Sands’ award of reinstate-
ment of Leonard. Because the writer also believes, however, that Leonard was
afforded industrial due process here, he is in full accord with the disposition of
this case on the rationale that industrial due process was not violated.

A-18

court’s selection of a remedy for abuse of discretion. Pennsylvania
v. Local Union 542, Int'l Union of Operating Eng 'rs, 807 F.2d 330,
334 (3d Cir. 1986).

After careful consideration, we have concluded that the district
court did not abuse the discretion it had to formulate an appropriate
remedial order because the record shows Arbitrator Sands was biased
or partial towards Leonard. Although he may not have demonstrated
general bias against all persons claiming sexual harassment, his par-
tiality in this case is demonstrated by his behavior and comments
during the hearing. Arbitrator Sands referred to the fact the Wiegand
weighed 224 pounds and had no social life, and he characterized
her as ‘‘unattractive and frustrated.’’ App. at 32, 41. He allowed
Leonard’s attorney, over objection, to ask Jacobs: ‘*Would you think
an average man would make a pass at a woman like that?’’ and
‘*Would you think an average man or yourself would make a pass
at a woman that weighs 225 pounds?’’ App. at 174-75. Arbitrator
Sands also cavalierly dismissed Zimmerman’s reasons for finding
Wiegand credible, i.e., that she was ‘‘bashful’’ and ‘‘very Chris-
tian.”’ App. at 36. Finally and inexplicably, Arbitrator Sands
disregarded Leonard’s admission that he made sexual comments to
Wiegand about his wife’s anatomy. App. at 176, 185-86. Despite
that admission, he determined:

[NJone of [that] would have been culpable under or incon-
sistent with Stroehmann’s rules, acceptable standards of
social intercourse, or what Wiegand and Leonard’s banter-
ing business relationship had been.

App. at 36. Lastly, Arbitrator Sands also stated that if he had to
make a decision on the merits he would find in Leonard’s favor,
even though he had previously made it clear that he had not fully
considered the evidence on the employer’s charge that Leonard had
made improper sexual advances to and committed a battery against
Wiegand. App. at 38, 40. There is no sound reason to defer to Ar-
bitrator Sands’ award. His partiality towards Leonard is sufficient
to support the district court’s choice of an order directing Leonard’s
grievance be submitted to a different arbitrator for a de novo hear-
ing as an appropriate remedy in this case. The indications of bias

A-19

in this case are such that we are unable to say the district court abused
its discretion in directing a remand to a different arbitrator. See Arco-
Polymers, Inc. v. Local 8-74, 671 F.2d 752. 754 (3dCir. 1982) (citing
Ludwig Harold Mfg. Co. v. Fletcher, 405 F2d 1123, 1128-29 n.27
(3d Cir. 1969)) (‘‘An award may be vacated where it is shown that
there was . . . partiality . . . on the part of the arbitrator.’’).

¥.

There is no genuine disputed issue of material fact and Stroehmann
is entitled to judgment as a matter of law. The district court proper-
ly concluded that the arbitration award violates public policy. The
arbitrator was unacceptably predisposed towards Leonard and against
Stroehmann. Thus, the remand to a different arbitrator is proper as
well. Accordingly, we will affirm the district court’s order grant-
ing Stroehmann’s motion for summary judgment, denying the
Union's cross-motion for summary judgment, and vacating the ar-
bitration award and remanding the matter for a de novo hearing before
a different arbitrator. ®

BECKER, Circuit Judge, dissenting.

The majority has penned a powerful statement of the public policy
against sexual harassment. I agree with the majority's vigorous con-
demnation of behavior of the sort that allegedly occurred at the Stouf-
fer’s (sic) store in Lititz on November 12, 1989, and I applaud the
court’s recognition of the importance of vindicating the rights of
women in the workplace. I respectfully submit, however, that in
its zeal to advance that public policy, the majority has committed
two fundamental errors that seriously undermine its position. First,
the majority jis given short shrift to the industrial due process rights
of Samuel i.conard. In my view, Stroehmann’s egregious failure
to provice enoard with the procedural protections guaranteed by
the cclteevive bargaining agreement justifies his reinstatement.

8. Our holding does not, as the dissent states, transfer from labor arbitrators
to the judiciary the power to decide grievances arising under collective bargaining
agreements nor does it require the employee to disprove alli allegations of sexual
harassment that may be made against him. It does permit an unbiased arbitrator
to decide impartially whether the allegations against Leonard are true or false, and
if true, whether the appropriate discipline is discharge.

A-20

Second, I believe that the majority mischaracterizes the basis for
the arbitrator's decision to reinstate Leonard and hence finds viola-
tions of public policy and arbitrator bias where neither exists. As
I read the arbitrator’s opinion, he apparently believed that Leonard
was telling the truth, was outraged by Stroehmann’s disregard for
procedures that it was obligated to respect under its collective bargain-
ing agreement, and found insufficient evidence that any sexual harass-
ment had in fact occurred. The arbitrator consequently ruled that
Stroehmann had failed to carry its burden of demonstrating just cause
for discharge and ordered that Leonard be reinstated. This run of
the mill arbitration award was not only perfectly appropriate and
well within the arbitrator’s discretion, but is subject only to an ex-
ceedingly narrow scope of judicial review.'

With all due respect to the majority, I suggest that, even when
public policy is involved in a discharge case, arbitrators must begin
at the beginning — with fair proceedings and fact findings.
Stroehmann did not conduct such fair proceedings and fact findings
here and was hence unable to carry its burden of proof to show just
cause for discharge at the arbitration hearing. The majority opinion
essentially requires Leonard to disprove the allegations against him,
a requirement which, in my view, constitutes an unfair shifting of
the burden of proof. I would therefore reverse the order of the district
court and reinstate the arbitrator’s award.

Further, I disagree with the majority’s affirmance of the remand
of this matter to a different arbitrator. The majority concedes that
the district court, in justifying its decision to remand to a different
arbitrator, took several of the original arbitrator’s comments out of
context. Nevertheless, the majority asserts that it cannot disturb the
district court’s discretionary choice to remand to a different arbitrator.
I believe that the arbitrator’s opinion, no matter how carefully
dissected, does not reveal any bias. Additionally, the majority sets

1. I have previously criticized the exceedingly narrow review we have given
to arbitral awards, see News America Publications Inc. Daily Racing Form Divi-
sion v Newark Typographical Union, Local 103, 921 F2d 40, 41 (3d Cir 1990)
(Becker, Statement Sur Denial of Rehearing In Banc) (arguing that the narrow scope
of review of arbitral awards effectively gives ‘‘all power to the arbitrators,”’ id
at 42), but I am bound by our precedent.

A-21

another troubling precedent when it relies on the arbitrator’s alter-
nate ground for decision — that is, that no sexual harassment in fact
occurred — to demonstrate arbitrator bias. By so deciding, the ma-
jority will allow district courts in future arbitration cases to remand
to different arbitrators (and implicitly find arbitrator bias) simply
because arbitrators have given alternate grounds for their decisions.

For these reasons, I respectfully dissent.

3

My disagreement with the majority begins with its recitation of
the facts and with its description of the arbitration process. Two
aspects of the majority’s factual account merit elaboration.

A. The Arbitrator’s Decision

In my view, the majority mischaracterizes what the arbitrator found
in deciding to reinstate Leonard. The majority concludes that the
arbitrator refused to decide whether the sexual harassment against
Wiegand actually occurred. It derives this conclusion from, among
other things, ‘‘the substance of the opinion, read as a whole.”’’ Ma-
jority Opinion, Typescript at page 9 note 2. With all respect, the
majority misapprehends what the arbitrator decided.

The arbitrator expressly stated his view at numerous points that
there was insufficient evidence to find that sexual harassment had
in fact occurred. His opinion explicitly suggested that there was not
a sufficient basis to believe Kimberly Wiegand’s allegations: ‘‘If
Stroehmann’s investigation had been at all consistent with the severity
of Wiegand’s accusations and of their consequences for Leonard’s
life and if that investigation had provided an adequate basis to believe
that Leonard had behaved as charged, Stroehmann’s discharge deci-
sion would have been unassailable.’’ (emphasis added).? In finding

2. In discussing my characterization of the arbitrator's opinion, the majority
states, *‘The dissent is wrong.’’ Majority Opinion at — [Typescript at 18]. The
majority bases its conclusion on the surrounding sentences of the arbitrator's opin-
ion in which the arbitrator stated that he was not required, under the circumstances,
to weigh the evidence and evaluate the credibility of the witnesses. I find the ma-

(continued)

A-22

that Stroehmann’s discharge decision would have been unassailable
had it had an adequate basis, the arbitrator implicitly held that there
was an inadequate basis for the charge of sexual harassment.?

The remainder of the arbitrator’s opinion also suggested that he
found the charge against Leonard unsubstantiated. He (correctly)
characterized the information on which Stroehmann relied in mak-
ing its discharge decision as *‘double hearsay.’’ He also stated quite
clearly that if the issue of resolving the credibility of witnesses were
before him, ‘*Stroehmann would have had to lose for having failed
to bear its burden of proof.’’ In short, contrary to the implication
of the majority opinion, the arbitrator did not refuse to find whether
sexual harassment occurred. Rather, he found 1) that Stroehmann

(continued)

jority’s conclusion somewhat puzzling in this regard because elsewhere in its opin-
ion, the majority appears to agree with my reading of the arbitrator's opinion: **{H]e
stated that if he had to make a factual determination regarding the occurrence of
the incident, he would have to find in favor of Leonard because he had insufficient
evidence to determine whether Leonard or Wiegand was more credible.’* Majori-
ty Opinion at —. [Typescript at 9]. Because Stroehmann had the burden of
demonstrating just cause for discharge under the agreement, its failure to demonstrate
Wiegand's credibility required the arbitrator to find for Leonard. At the very least
the surrounding sentences do not undermine the clear import of the arbitrator's
views.

3. I note in this regard that the majority opinion fails to address the inconsisten-
cies in Wiegand’s underlying story, which would tend to exculpate Leonard. The
majority suggests that there is no dispute about what Wiegand says occurred on
November 12, 1989. In fact, the record reflects at least two different versions of
the facts, related at different times by Wiegand. In one story, told to her mother,
Wiegand alleged that Leonard sexually harassed her after he had finished deliver-
ing all of his products, and the harassment consisted of pushing against her and
grabbing her breast. In the other version, told to Stroehmann officials Steve Gar-
rett and Joe Jacobs, the sexual harassment began immediately upon Leonard's ar-
rival in the store. The second version contained details omitted from the first ver-
sion, including a discussion of an erotic CB radio conversation and comparisons
of the firmness of her breast to an orange.

My point is not that one of these incidents would constitute sexual harassment
and one would not. Nor is it to suggest that Wiegand was fabricating her story.
The inconsistency in the underlying alleged facts does suggest, however, that because
of the shoddy manner in which Stroehmann conducted its investigation. Stroehmann
might not have satisfied its burden of proof under the ‘just cause’’ section of the
collective bargaining agreement.

A-23

had not complied with the requirements of the collective bargaining
agreement because it had not adduced sufficient evidence to discharge
Leonard under the just cause provision of the collective bargaining
agreement and 2) there was an inadequate basis for believing that
the sexual harassment had in fact occurred.

B. Requirements of the Collective Bargaining Agreement

The majority opinion does not contain an extensive discussion of
the salient requirements of the collective bargaining agreement that
governed the severance of the employment relationship. It is therefore
important to note that the agreement required that ‘‘higher manage-
ment . . . investigate and collect the facts before a final and official
dismissal is declared.’’ As I read the record, no such investigation
took place. The arbitrator’s finding that the investigation of Leonard
was insufficient in light of Stroehmann’s failure to honor its obliga-
tions under the collective bargaining agreement therefore seems
perfectly in accord with the arbitrator’s obligations in construing
the agreement, regardless of whether sexual harassment in fact
occurred.

II.

I agree with the majority’s statement that courts owe broad
deference to arbitrators in the construction of collective bargaining
agreements. Indeed, the Supreme Court has held that ‘‘as long as
the arbitrator is even arguably construing or applying the contract
and acting within the scope of his authority, that a court is convinced
he committed serious error does not suffice to overturn his deci-
sion.’’ United Paperworkers International Union v Misco, 484 US
29, 108 S Ct 364, 371 (1987). I also agree with the majority that
courts may review arbitrators’ awards to ensure that those awards
are consistent with public policy. I believe, however, that the ma-
jority’s abbreviated discussion of the narrow contours of that review
leads it into error, and I therefore discuss briefly my understanding
of the scope of our review.

As the Supreme Court has held, the ability to review arbitrators’
awards for violations of public policy ‘‘does not . . . sanction a broad
judicial power to set aside arbitration awards as against public

A-24

policy.”’ Id at 373. Misco made clear that the mere showing that
a public policy was implicated in the decision to discharge an
employee is not sufficient to reverse an arbitrator's award. Rather,
the award itself must contravene public policy. As the Court stated
in Misco:

[A] court’s refusal to enforce an arbitrator’s interpretation

of such contracts is limited to situations where the contract

as interpreted would violate ‘‘some explicit public policy

that is well-defined and dominant, and is to be ascertained

‘by reference to the laws and legal precedents and not from

general considerations of supposed public interests.’ °’
Id at 373.

In United States Postal Service v National Association of Letter
Carriers, AFL-CIO, 839 F2d 146 (3d Cir 1988), decided in the wake
of Misco, we defined more specifically the limited contours of judicial
review of arbitrators’ decisions:

[T]he Court in Misco delimited the methods by which a
public policy and its contravention are to be ascertained.
Misco specifically rejected, as exceeding the court’s review-
ing authority, techniques employed by a district court in:
(1) asserting a public policy without substantiating its ex-
istence within existing laws and legal precedents, and
thereby failing to distinguish its pedigree as a ‘well defin-
ed and dominant’ policy as opposed to a ‘general considera-
tion of supposed public interests;’ (2) second-guessing the
arbitrator’s factfinding particularly insofar as the conclu-
sion that the asserted public policy would be violated by
the employee’s reinstatement depends on drawing factual
inferences not made by the arbitrator; (3) second-guessing
the arbitrator’s reasonable construction of the ‘just cause’
clause, and the rules of evidence and procedure appropriate
to a ‘just cause’ determination under the collective-
bargaining agreement.

Id at 148. Postal Service thus prohibits setting aside arbitrator's
awards: 1) when there is no showing that a dominant and well-defined
public policy exists; 2) when a judicial finding that the public policy

A-25

would be violated relies on inferences of fact not made by the ar-
bitrator; and 3) when a court’s finding that a public policy has been
violated is, in actuality, merely a disagreement with the arbitrator's
construction of a just cause provision. Thus, in reviewing arbitrator’s
decisions, we must do more than merely ascertain that a genuine
public policy is involved. We must also determine, based on facts
that the arbitrator has found, that the award would violate public
policy.
I.

The majority has faithfully complied with the requirement of ascer-
taining a dominant and well-defined public policy. As its opinion
details, a public policy against sexual harassment in the workplace
can readily be derived from federal statutes and regulations as well
as from judicial decisions. I agree that if the public policy against
sexual harassment were offended by this arbitrator’s decision, the
award could not stand.

My agreement with the majority ends there, however. The ma-
jority’s opinion rests on inferences of fact not made by the arbitrator
and, at bottom, quarrels with the arbitrator’s construction of the just
cause provision. Although the public policy against sexual harass-
ment is tossed loosely about in the majority’s opinion, it is crucial
to understand what is not at stake in this case. The majority ’s opinion
cannot claim, based on this record, that Leonard is likely to com-
mit sexual harassment again (if he ever has) if he is reinstated*.
Nothing in the arbitrator’s factfinding, or, indeed, in the entire record,
Suggests that Leonard would ever again (if he ever has) sexually
harass another woman.

4. Ina brief aside, the majority asserts that the award ‘‘would . . . let a person
who may again commit sexual harassment back into the workplace without deter-
rence or protection for co-workers.’’ See Majority Opinion at — [Typescript at
15]. There is not a shred of evidence in the record that Leonard would engage
in sexual harassment upon reinstatement, and the majority’s bald assertion does
not support its position.

5. That fact makes this case plainly distinguishable from Newsday, Inc. v Long
Island Typographical Union, No. 915, 915 F2d 840 (2d Cir 1990). In Newsday,
an employer suspended an employee for sexual harassment. An arbitrator sustained
the suspension and held that any further incidents of harassment would lead to

(continued)

A-26

Instead, the majority finds a violation of public policy in the ar-
bitrator’s failure to make a conclusive determination whether such
harassment occurred. As I have already suggested, I believe that
the arbitrator made the best possible determination that he could about
whether any harassment occurred, and concluded that it did not. See
pages — [Typescript pages 4-7]. That is sufficient, in and of itself,
to uphold the arbitrator’s award. Even assuming, however, that the
arbitrator made no determination about harassment, the majority must
demonstrate why his failure to do so violates public policy. Nothing
in the record suggests that the award will directly promote further
sexual harassment by Leonard; therefore, the public policy in favor
of discouraging sexual harassment itself is not implicated.

Rather, the majority holds that ‘‘an arbitrator’s award reinstating
an employee accused of sexual harassment without a determination
regarding the merits of the allegation violates well-established and
dominant public policies concerning sexval harassment in the
workplace.’’ Majority Opinion at —, [Typescript at page 3]. This
public policy analysis is deeply flawed. At the outset, I cannot see
how guaranteeing procedural fairness to employees accused of sex-
ual harassment can violate the public policy against sexual harass-
ment. It is merely an extension of the arbitration principle that

(continued)

discharge. After this initial arbitration, the employer discharged the same employee
after more complaints of sexual harassment had been made against him. Id at 842.
At the second arbitration, the arbitrator specifically found that these repeated in-
cidents of sexual harassment had, in fact, occurred. Id at 843. The arbitrator
acknowledged that reinstatement might possibly lead to further incidents of sexual
harassment but decided that, in the event further incidents occurred, they would
lead to the employee’s discharge. In so deciding, the second arbitrator ignored the
first arbitrator's command that any further incidents of sexual harassment should
lead to-discharge. The Second Circuit held that, in light of the earlier ineffective
warning and in light of the likelihood of further sexual harassment, reinstatement
of the employee would violate public policy.

In this case, there has never been a finding that Leonard sexual (sic) harassed
anyone. As I have explained, there was an implicit finding that no such sexual
harassment occurred. Even if there were such a finding of past behavior, however,
there is no indication in this record that Leonard’s reinstatement is likely to lead
to further sexual harassment. Therefore, unlike Newsday, the public policy against
sexual harassment per se is not offended by reinstating Leonard.

A-27

employees accused of any wrongdoing are accorded fair treatment
and protected from the impulses of their employer.

Further, and more egregiously, the majority’s holding skews the
rules governing arbitration of claims of sexual harassment against
an employee. If an employee is accused of sexual harassment and
cannot conclusively disprove its occurrence, the majority would find
a violation of public policy if that employee is reinstated. This ef-
fectively shifts the burden of proof to the accused employee. I do
not believe that placing such a burden on accused employees is re-
quired or justified by the public policy against sexual harassment.
Moreover, I believe that such a practice would directly contravene
the just cause clause for which the parties have bargained.

The majority attempts to narrow its holding by confining it to ‘‘the
circumstances present here,’’ see Majority Opinion at pages —,
[Typescript at 3, 15]. There is however, no logical reason why this
case will differ from any future case where a company accuses an
employee of some offense violative of public policy that the employee
cannot disprove at arbitration. If the majority believes this case to
be unique because the arbitrator was biased, then the case can be
resolved on the basis of his bias along without reference to public
policy. See Misco, 108 S Ct at 371 (noting that arbitration decisions
resulting from fraud or arbitrator dishonesty and fraud can be set
aside). The majority, however, relies heavily on public policy, and
because there is no analytic difference between this case and future
cases where companies allege that employees have committed acts
violative of public policy which cannot be conclusively proven or
disproven, the employee, under the majority’s logic, might retain
the burden in this circuit to disprove the occurrence of the act which
is said to violate public policy.

The majority’s holding is unprecedented, and its effort to
distinguish prior cases is unpersuasive. Indeed, two recent cases
strongly militate against the majority’s conclusion. In Communica-
tions Workers of America v. Southeastern Electric Cooperative, 882
F2d 467 (10th Cir 1989), the Tenth Circuit upheld an arbitrator’s
award reinstating after a period of suspension an employee who had
undisputedly engaged in sexual harassment. The court held that it

A-28

could not disturb the arbitrator's award despite the fact that a known
sexual harasser would eventually be allowed to return to the
workplace. The Seventh Circuit reached a similar conclusion in
Chrysler Motors v. International Union, Allied Industrial Workers
of America, 959 F2d 685 (7th Cir 1992). In Chrysler, an employee
had undoubtedly engaged in egregious sexual harassment. The com-
pany discharged the employee, but the arbitrator reduced the penalty
to a thirty-day suspension. Essentially rejecting the argument that
the majority makes here, the Seventh Circuit found no violation of
public policy despite the employee’s reinstatement after the com-
pany had overwhelmingly established that sexual harassment had
occurred. Here, the majority finds it a violation of public policy for
an arbitrator to reinstate an accused sexual harasser, against whom
a case of sexual harassment could not be proven. If those who have
sexually harassed can return to work without contravening public
policy, certainly those against whom there is an insufficient basis
to prove sexual harassment can also return to work without con-
travening public policy.

Our own precedents compel the same conclusion. In Postal Ser-
vice, 839 F2d at 149, we upheld an arbitrator’s award reinstating
an employee who had fired a gun at his employer’s car. We approved
that award as consistent with public policy because *‘[a] judgment
about the offending employee’s amenability to discipline comes under
the scope of the arbitrator’s factfinding authority . . .”’ Id at 149.
Even though the employee was arguably likely to commit other acts
of violence against employees, we did not find a contravention of
public policy. Similarly, in this case, where no sexual harassment
has been found in the first place, I would hold that we should defer
to the arbitrator — who has evaluated the credibility of witnesses
and evaluated what, if any, discipline is appropriate — to reinstate
Leonard.

IV.

Nor is the majority content to find a public policy violation and
invalidate the award of the arbitrator on that basis. The majority,
in the name of public policy, intrudes on what courts have repeatedly
reserved for the arbitrators and reverses the arbitrator’s award

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because it finds unreasonabie the arbitrator’s construction of the just .
cause provision.

As the majority acknowledges, arbitrators have repeatedly relied
on the doctrine of industrial due process in construing just cause
provisions. See generally Frank Elkouri and Edna Asper Elkouri,
How Arbitration Works 673 (Bureau of National Affairs 1985). That
doctrine is well-established in the jurisprudence of labor arbitration,
see id at 673 n116 (collecting cases), and in federal labor
jurisprudence, see Super Tire Engineering Co v Teamsters Local
Union No. 676, 721 F2d 121, 124-25 (3d Cir 1983); Federated Dep't
Stores v. United Food & Commercial Workers Union, Local 1442,
901 F2d 1494, 1497 (9th Cir 1990). In this case, the arbitrator made
clear in his opinion his belief that the collective bargaining agree-
ment required Stroehmann to do two things that it failed to do in
this instance: 1) to conduct a high-level management investigation
with procedural protections for Leonard; and 2) to carry its burden
of proof and demonstrate that the harassment had occurred.

The majority states its belief that Stroehmann afforded Leonard
ample due process in its discharge decision. I believe that the facts
clearly demonstrate otherwise. Under the collective bargaining agree-
ment, Leonard was entitled to a thorough investigation of the charges
against him by high-level management which he never received.
Also, Stroehmann officials admitted at the arbitration hearing that
they had made the decision to suspend Stroehmann before ever hear-
ing his version of the story. As if the prejudgment were not troubl-
ing enough, Stroehmann officials refused to consider what may have
been the most significant (and perhaps the only) objective evidence
in the case — the broken CB radio. Immediately upon being told
of Wiegand’s charge against him, Leonard told Stroehmann officials
that Wiegand’s description of Leonard’s tale of an erotic conversa-
tion over the CB radio was demonstrably false because his CB was
broken. Leonard stated that he had offered Stroehmann officials the
Opportunity to inspect it, which they declined. Additionally, as I have
noted above, there were inconsistencies in Wiegand’s story that
Stroehmann chose to ignore. See note 3. These undisputed facts point
to the conclusion that Leonard was deprived of industrial due process.

A-30

Even assuming that the investigation was adequate, however,
Stroehmann did not carry its burden at the arbitration of showing
that Leonard was discharged for just cause. The arbitrator found
that the collective bargaining agreement required Stroehmann to pro-
vide sufficient evidence for a ‘‘supportable judgment’’ to demonstrate
that the harassment had occurred. The arbitrator, to whom we owe
complete deference in factfinding in the absence of fraud or dishones-
ty, see Misco, 108 S Ct at 371, found that the facts were inadequate
to support a judgment that sexual harassment had occurred.

At all events, even if, after de novo review, we believed that
Leonard had been afforded sufficient due process and Stroehmann
had proven its case, we would still not be entitled to reverse the
arbitrator’s award. As Misco makes clear, we owe deference to the
arbitrator when he is even arguably construing the collective bargain-
ing agreement. Id. There can be no doubt that the arbitrator in this
case articulated what he believed was required by the collective
bargaining agreement. That interpretation and his factfinding can-
not be disturbed absent a showing that the decision was procured
‘‘through fraud or through the arbitrator's dishonesty . . ."’ Id. No
such showing was made, and the majority does not so argue.

In sum, despite the fact that precedent requires overwhelming
deference to the arbitrator, the majority articulates no reason why
such deference should not be accorded in this case, except that an
important public policy principle is at stake, namely sexual harass-
ment. With all respect, I believe that formulation turns the process
of reviewing arbitration awards upside down. Because this under-
mines the entire arbitration process in sexual harassment cases, I
would reverse the judgment of the district court and reinstate the
arbitrator’s award.

V.

Finally, the majority approves the district court’s assault on the
arbitrator's decision in this case by affirming the district court’s re-
mand of this case to be heard anew before a different arbitrator.
It does so despite acknowledging that the district court misrepresented
the arbitrator's comments and that the arbitrator did not exhibit in-
appropriate attitudes about sexual harassment generally. Majority

A-31

Opinion at — [Typescript at page 24]. Instead, the court bases its
decision to choose a different arbitrator: 1) on our deferential scope
of review of the district court’s discretionary choice of a remedy;
and 2) on the arbitrator’s allowance of questions at the hearing and
on various comments that the arbitrator made in his opinion. The
majority concludes that these comments demonstrate sufficient bias
against this particular sexual harassment claim to hold that it was
not an abuse of discretion for the district court to remand the matter
to a different arbitrator. Alternatively, the majority submits that the
arbitrator's statement that if he had to make a finding on the merits
he would rule in favor of Leonard, suggests a bias that merits remand-
ing this case to a different arbitrator.

This record simply does not support the majority’s contention that
the arbitrator exhibited bias against this sexual harassment claim.
Each reference that the majority makes to indications of bias in thé
record is fully explicable if the statements are put in context. The
arbitrator did allow questions about whether ‘‘an average man’’
would sexually harass Wiegand. But the arbitrator’s opinion itself
suggests that such considerations were irrelevant to his decision and
that he found them offensive. He commented, ‘‘{W]hether or not
Wiegand is a very Christian girl, or whether Wiegand’s words or
acts may have invited Leonard’s alleged misconduct[,] . . . . sexual
misconduct of the kind charged is absolutely inappropriate and should
support immediate discharge.’’ The majority further engages in
mischaracterization of the arbitrator’s opinion by excerpting the
phrase ‘‘unattractive and frustrated.’’ In fact, the arbitrator suggested
that to conclude that Wiegand had not been sexually harassed because
she was unattractive and frustrated would be an ‘‘illogical conclu-
sion.’’ In sum, the arbitrator was not biased against the claim. In-
stead, he rejected the evidence produced by Stroehmann’s shoddy
investigation.

The majority also rests its decision to remand to a different ar-
bitrator on the arbitrator’s statement that if he had to decide the
ultimate issue of whether sexual harassment occurred, he would rule
for Leonard because there was insufficient evidence to demonstrate
that sexual harassment had occurred. The majority opines that this
statement indicates that the arbitrator has already prejudged the case.

A-32

To me, the arbitrator’s comments only suggest that the majority’s
interpretation of the case is incorrect from the outset. The arbitrator
found that Leonard had not been given due process, which entitled
him to reinstatement, and found, in the alternative, that there was
insufficient evidence of sexual harassment to terminate Leonard. Trial
judges frequently “‘layer’’ their opinions in this manner.

There is no logical difference between the remedy that the ma-
jority approves in this case and remanding an Article III case with
directions that it be assigned to a different district judge because
that judge has provided alternate bases for his or her decision. I cannot
conceive of our ordering such a reassignment merely because the
judge had provided an alternate basis for his or her opinion, or on
evidence of bias as flimsy as it is here. We should be even less will-
ing to direct the remand of the present matter to a different arbitrator
because of the heightened deference we owe to the arbitrator’s deci-
sions. Although I would not remand in the first instance, I believe
that if we must remand, we should remand to the same arbitrator.

VI.

For the foregoing reasons, I would reverse the judgment of the
district court and reinstate the arbitration award.

————— <<<

UIDA ICKale

A-33

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CIVIL ACTION No. 1:CV-90-1359

STROEHMANN BAKERIES, INC.,
Plaintiff

Vs.

LOCAL 776 INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
Defendant

MEMORANDUM

The pending action concerns this court’s review of an arbitration
award rendered pursuant to a collective bargaining agreement be-
tween plaintiff, Stroehmann Bakeries, Inc., and defendant, Inter-
national Brotherhood of Teamsters, Local Union No. 776 (the
‘*Union’’). Each party has filed a motion for summary judgment
pursuant to Fed. R. Civ. P. 56. Plaintiff seeks to vacate the award,
which ordered the reinstatement of one of its employees, whom plain-
tiff discharged for abusing a female employee of one of its customers.
Plaintiff submits that the award and the arbitrator’s reasoning and
judgment violates the well established public policy of promoting
the prevention of sexual harassment in the work place. Defendant
has moved to enforce the award, contending that it was based on
a fair interpretation by the arbitrator of the ‘‘just cause’’ provision
of the collective bargaining agreement. We have examined the mo-
tions under the well settled standard. Celotex Corp. v. Catrett, 477
U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Plaintiff employed Samuel Leonard, a member of the defendant
Union, as a ‘‘store door’’ driver, or one who makes deliveries to
plaintiff's customers. Plaintiff discharged Leonard following its in-
vestigation of a store clerk’s complaints that she was sexually
assaulted by Leonard as he made a delivery. A dispute arose con-
cerning whether plaintiff had cause to terminate Leonard, and as
noted the matter was referred to arbitration. On June 18, 1990, an
arbitrator issued an award which concluded, (1) that plainuff had

A-34

not adequately investigated the alleged sexual assault and, (2) that
Leonard was dismissed without just cause. Leonard was ordered
reinstated to his position with full back pay and benefits.

Plaintiff filed this action challenging the award on the grounds
that it violates public policy in contravention of Title VII of the Civil
Rights Act of 1964, which precludes sexual harassment in employ-
ment. The award is also alleged to be contrary to other well-defined
precedent which reveals a strong public intolerance and repugnan-
cy towards sexual assaults. Defendant concedes that there is in fact
a well defined and dominant public policy against sexual harassment
and assault. The central issue before us, therefore, is whether the
arbitrator’s reasoning process, language, tone, considerations, and
award violate public policy.

Upon reading the arbitrator’s opinion and award, the most notable
omission is that he did not make a factual determination whether
plaintuff, faced with the facts presented, reasonably believed that
Leonard had committed an assault.' In other words, he *‘made no
clear finding as to the existence or nonexistence of just cause’’ to
discharge Leonard. Container Products, Inc. v. United Steelworkers
of America, 873 F.2d 818 (Sth Cir. 1989) (arbitrator exceeded his
authority under bargaining agreement by failure to determine just
cause). Rather, the arbitrator focused exclusively upon whether plain-
tiffs investigation of the charges against Leonard was sufficient to
satisfy ‘‘industrial due process’’ requirements.? Although the ex-
tent of plaintiff's investigation is certainly relevant, we believe that
the arbitrator focused too narrowly on that investigation, and failed

1. The arbitrator stated that ‘‘this action does nor involve any fine questions
of quantum proof, relative credibility of witnesses, [or] seriousness of charged
misconduct.’’ However, it is well-settled that in order for a discharge to be sus-
tained as being for just cause it must be shown that the misconduct was sufficiently
serious to warrant that penalty.

2. The phrase ‘‘industrial due process’’ has often been utilized in arbitration
hearing. This concept generally refers to an employer's responsibility to ensure
that its employees are afforded notice and some opportunity to respond to allega-
tions of misconduct before they may be discharged for cause.

A-35

to address the merit of plaintiff's conclusion that an assault had oc-
curred.* Moreover, it was not explained how or why plaintiff's in-
vestigation was deficient, or what other steps plaintiff could have
pursued to improve the investigation.

The opinions and statements expressed by the arbitrator are laced
with disturbing comments which indicate a clear disposition towards
Leonard, and some insensitivity to claimants of sexual harassment.
An arbitrator’s award may be overturned if he ‘‘based his award
on his own personal notions of right and wrong”’ E. J. Du Pont de
Nemours & Co. v. Grasselli Employees Independent Assoc., 790
F.2d 611, 614 (7th Cir. 1986) or ‘this own brand of industrial
justice."’ U.S. Steelworkers of America v. Enterprise Wheel & Car
Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424
(1960). Additionally the Third Circuit has long held that an ar-
bitrator’s award may be vacated where partiality and bias are shown.
Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 n. 27
(3d Cir. 1969).

Considerations referred to by the arbitrator in conjecturing on the
matter included the following: (1) that the victim lacked a social
life, had a female roommate, and did not have a boyfriend, (2) that
Leonard was married and had children of certain ages, and (3) that
the victim weighed 225 pounds and was, as the arbitrator termed
it, ‘“unattractive and frustrated.’’ The arbitrator went so far as to
speculate that the victim could have fabricated the incident in order
to *‘titillate herself and attract her mother’s caring attention,” a sug-
gestion that is totally unsupported and unwarranted. The arbitrator
also employed such inappropriate language as, ‘‘even if [the vic-
tum] were the most celebrated slattern in seven states. . .’’ and that
Stroehmann managers were ‘‘hobbled in their response by a puritan
unwillingness to pursue a necessary inquiry into a tabu subject mat-
eee

3. Although plaintiff has not raised the issue in its complaint, we recognize
that when there is no express requirement in a collective bargaining agreement
“specifying the nature or extent of an investigation’ to be conducted by an employer
prior to a discharge, it has been held that an arbitration decision on the issue of
just cause “‘precluded any claim of inadequate investigation.’’ National Post Of-
fice v. U.S. Postal Service, 751 F.2d 834 (6th Cir. 1985).

A-36

Further, the arbitrator expressed his personal opinion that
Stroehmann managers were oversensitive in their dealings with the
victim and that the victim’s bashfulness and reputation as a *‘good
Christian girl’’ were irrelevant. At the same time, however, he at-
tributed much importance to the effect of the incident on Leonard’s
marriage. The arbitrator inexplicably disregarded Leonard’s admis-
sion that he did make sexual comments to the victim concerning his
wife’s anatomy, which, by itself, could have been a basis for
discharge. The failure to refer to Leonard’s offensive remark im-
plies that such conduct by employees is acceptable. Likewise, the
arbitrator failed to consider the telling inconsistencies in Leonard’s
accounts of the incident.

The law is well established that where an arbitrator’s award violates
public policy, a district court may vacate the award. United Paper-
workers Int'l Union v. Misco, Inc., 484 U.S. 29, 108 S.Ct. 364,
98 L.Ed.2d 286 (1987); W. R. Grace & Co. v. Local Union 759,
International Union of United Rubber, etc., 461 U.S. 757, 103 S.Ct.
2177, 76 L.Ed.2d 298 (1983). As indicated, defendant agrees that
public policies exist with regard to sexual harassment in the work
place and against sexual assault and abuse in general. We find that
the arbitrator’s decision to reinstate Leonard violates such policies
and sends a message to Stroehmann employees and to the public
that complaints of sexual assault are not treated seriously, sensitively,
or with real regard for the truth of the allegations.

The credence and weight which was attributed to irrelevant con-
siderations, by itself, offends public policy.* The manner in which
the award was reached could easily deter other victims, and Leonard’s
reinstatement could suggest to Stroehmann’s work force that claims
of unwitnessed sexual harassment will not be treated seriously.

4. Leonard, when first confronted, denied all accusations. When questioned
later, he accused the victim of ‘‘talking sex’’ to him and making sexual advances
towards him.

5. Leonard’s attorney was twice permitted to ask plaintiff's witness, ‘*would
you think an average man or yourself would make a pass at a woman who weighs
225 pounds?’’ Apparently this question was deemed relevant to the matter of just
cause. We consider it irrelevant, and it implies that Leonard’s version of the inci-
dent should be credited due to the victim's perceived unattractiveness.

A-37

As indicated, the arbitration was conducted without ever directly
addressing the ultimate issue at hand — whether plaintiff was
reasonable in its belief that Leonard had assaulted the victim. In order
to fairly determine whether Leonard was discharged without cause,
there must be a showing that plaintiff's determinations were incor-
rect, unfounded or unreasonable, which necessarily includes a con-
sideration of whether the alleged assault occurred. The arbitrator
failed to make any such determinations. To simply announce that
plaintiff's investigation was insufficient, without properly considering
the merits of the discharge, undermines plaintiff's ability to main-
tain a work force that fulfills its legal obligation to prevent incidents
of the kind involved here. See, Newsday, Inc. v. Long Island
Typographical Union, No. 915, CWA, 915 F.2d 840 (2d Cir. 1990);
29 C.F.R. § 1604.11(d).

We wish to emphasize that the court expresses no opinion on the
alleged assault or whether plaintiff reached the proper employment
decision, and indeed plaintiff is not requesting that the award be over-
turned and that Leonard’s discharge be affirmed. Rather, plaintiff
asks only that the award by vacated and the matter be remanded to
another arbitrator, for consideration of the matters at issue on the
merits. By vacating the award and remanding for another arbitra-
tion hearing we will further another public policy that requires labor
disputes to be resolved properly and impartially.

An appropriate order will issue.

ss/William W. Caldwell

William W. Caldwell
United States District Judge

Date: March 18, 1991

A-38

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CIVIL ACTION NO. 1:CV-90-1359

STROEHMANN BAKERIES, INC.,
Plaintiff

VS.

LOCAL 776 INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
Defendant

ORDER AND JUDGMENT

AND NOW, this 18th day of March, 1991, upon consideration
of cross-motions for summary judgment, it is ordered and declared
that:

1. The arbitration award issued on June 18, 1990, in the
matter of Stroehmann Bakeries, Inc. v. International
Brotherhood of Teamsters, Local 776, AAA Case No.
14300- 1939-893, JS Case No. 1523, is vacated. Said mat-
ter shall be referred to another arbitrator who shall con-
duct a hearing de novo on the issue of whether Samuel
Leonard was discharged without just cause.

2. Plaintiff's motion for summary judgment is granted and
defendant’s motion for summary judgment is denied.

3. Judgment is hereby entered in favor of plaintiff and
against defendant.

4. The Clerk of Court shall close this file.

ss/William W. Caldwell

William W. Caldwell
United States District Judge

Filed: March 18, 1991

| |

A-39

AMERICAN ARBITRATION ASSOCIATION
VOLUNTARY LABOR ARBITRATION TRIBUNAL

In The Matter of the Arbitration
Between

STROEHMANN BAKERIES, INC.
Employer,
And
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL 776,
Union,

Re: Grievance of Sam Leonard

Before JOHN E. SANDS, Impartial Arbitrator

OPINION

On March 29, 1990 the parties agreed to submit the following
issue to arbitration by me:

Was there just cause for the discharge of grievant Sam
Leonard on November 20, 1989? If not, what shall be the
remedy?

Pursuant to my authority under the parties’ collective bargaining
agreement I conducted a hearing in Harrisburg, Pennsylvania on
March 29, 1990. Both parties appeared by counsel and had full op-
portunity to adduce evidence, to crossexamine each other’s witnesses,
and to make argument in support of their respective postitions. Each
submitted a written closing statement, and neither has raised any
objection to the fairness of this proceeding.

This sexual misconduct case turns less on determinations of
witnesses’ credibility than on the adequacy of Stroehmann’s investiga-
tion prior to its discharge decision. Indeed, the relevant facts are
undisputed. Until November 20, 1989 Sam Leonard was a transport
driver who had been with Stroehmann’s for seventeen years. Leonard
drove a tractor-trailer, making night deliveries of large baked goods
orders to supermarkets. One of his regular stops was Stauffer’s Lititz

A-40

store. For ten years Leonard had been shop steward of Stroehmann’s
small Teamster unit. At the time of his discharge Leonard was
Stroehmann’s sole remaining transport driver. (On Leonard's nights
off, a garage mechanic covered Leonard’s routes.)

Since mid-August 1989 Kimberly Wiegand has been night custo-
dian/receiving clerk at that facility. Leonard was a friend of
Wiegand’s father, having helped him get his job with Stauffer’s;
and Leonard was friendly with Kim Wiegand too.

Three or four times each week Leonard made deliveries to Stauf-
fer’s in Lititz while Kim Wiegand was working. They frequently
exchanged banter and conversation as they did their respective jobs.

Leonard is a forty-year-old married man with two children, aged
fifteen and thirteen. He stands well over six feet tall and appears
to weigh more than two hundred pounds. Wiegand is five feet four
and weighs 224 pounds. She does not have an active social life.
Wiegand accuses Leonard of having sexually assaulted her on Sun-
day night, November 12, 1989.

This is how Sam Leonard’s discharge came about and how the
question of just cause has come to me. On Tuesday morning,
November 14, 1989 Stroehmann’s management received word of
a serious incident that had occurred at Stauffer’s Lititz supermarket
on Sunday night, November 12th. Harrisport sales activator Steve
Garrett and branch manager Joe Jacobs took this report from Stauf-
fer’s’ store manager Ken Zimmerman:

The night person who lets our store door driver in the
store, Kimberly Wiegand, told her mother on Tuesday,
11/14/89, that when Sam Leonard was done delivering pro-
duct in the store, that Sam came up behind her and grab-
bed her breast and pushed himself against her and that Sam
also had an erection. Right after this took place, Sam told
Kim ‘‘Do not tell your father because we are real good
friends.’’ Kim’s father works at this store. Ken Zimmer-
man does not want Sam to serve any of the four (4) Stauf-
fer’s stores anymore. Steve and I assured Ken that correc-
tive action would be taken immediately.

A-41

Kim’s mother told Ken Zimmerman that she is consider-
ing taking legal action against Sam.
[Company Exhibit 3 B.]

At 5:20 that evening, Steve Garrett and Joe Jacobs reached Kimber-
ly Wiegand by telephone and prepared this statement of what she
had said in their twenty-minute conversation:

Steve Garret and Joe Jacobs called Kimberly Wiegand on
Tuesday 11/14/89, at 5:20 P.M. Sam stopped his truck out
in front of the Stauffer store and then drove out to the back
dock. He rang the buzzer and Kim opened the back door
and left Sam in. Sam proceeded to tell Kim that he was just
talking to two girls on his CB radio and they were going
to have an orgy and that he was excited about this. He started
to unload the bread order and continued to talk about this
orgy. Kim asked him if he was married and Sam replied
that he was married, but he still had sex with other women.
Sam told Kim that he would not cheat on his wife anymore,
however, would still like to feel other women, but was afraid
of Aids [sic].

When he finished unloading the bread order, Sam went
to the produce cooler and took an orange. He asked Kim
if her breasts were as hard as that orange. He then a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1500%3A1. Public record. Not legal advice.