The opinion of the court was delivered by: WEBER
Edward Jackson followed a profane shouting match with his supervisor by pumping two (2) bullets through the windshield of the supervisor's empty parked car. To no one's surprise he was discharged. Incredibly though an arbitrator subsequently rewarded Jackson with reinstatement and partial back pay. Because the arbitrator's award contravenes public policy, the collective bargaining agreement, the arbitrator's own findings, and all notions of logic and reason, we reverse.
Jackson complained to his unit's Equal Employment Opportunity (EEO) officer of racial bias in the refusal to provide him with training. In response, management raised complaints about Jackson's attitude and work performance. With the assistance of the EEO officer, Jackson and his supervisor reached an agreement which conditioned future training on improvement in Jackson's attitude and performance.
Over the next several months, Jackson was cited several times for uniform violations and once for harassing a fellow employee. He was again denied training prompting a second call to the EEO officer.
A second meeting between Jackson and his supervisor under the eye of the EEO officer degenerated into acrimony. Jackson directed a profane tirade at his supervisor, and stormed out declaring: "You have not heard the last of this."
If the supervisor had next heard from Jackson in the dispute resolution mechanism of further EEO proceedings, perhaps the result would have been happier. Instead, while off-duty that same evening, Jackson drove past the supervisor's car, empty, parked outside a restaurant frequented by the supervisor. Jackson stopped, drew a .357 Magnum handgun he carried in his car, and fired two shots through the car's windshield.
The supervisor did not witness the incident, but Jackson was suspected from the start. When initially questioned by police he lied, but eleven (11) days after the incident Jackson confessed. He was arraigned and pled guilty to a charge of criminal mischief: sentence -- 1 year probation.
After his confession Jackson was immediately suspended without pay and subsequently discharged. The Union filed a grievance and when the parties could not agree, the matter was submitted to binding arbitration. The arbitrator was presented with two questions: a) was the suspension prior to discharge appropriate under the collective bargaining agreement, and b) was Jackson discharged for just cause. The arbitrator answered No to both questions, reduced Jackson's discipline to 5 months suspension without pay, ordered reinstatement without loss of seniority, and awarded back pay for the period of the suspension prior to discharge.
The Postal Service has appealed, arguing that the arbitrator's award is contrary to public policy and should be overturned. The parties have filed cross-motions for summary judgment with supporting briefs and there are no issues of material fact.
Without doubt the scope of review of an arbitrator's award is severely limited. W. R. Grace & Co. v. Local Union 759, 461 U.S. 757, 76 L. Ed. 2d 298, 103 S. Ct. 2177 (1983); Graphic Arts International Union v. Haddon Craftsmen, Inc., 796 F.2d 692 (3d Cir. 1986). However, the court has a duty to vacate an award that is contrary to public policy. W. R. Grace & Co., 461 U.S. 766, 76 L. Ed. 2d 298, 103 S. Ct. 2177; See also, Griesmann v. Chemical Leaman Tank Lines, Inc., 776 F.2d 66, 74, n.13, and cases cited therein (3d Cir. 1985).
The public policy under consideration must be clearly defined and dominant. W. R. Grace, 461 U.S. at 766. It may be adduced from statutes, precedent, long governmental practice and obvious ethical or moral standards. Muschany v. United States, 324 U.S. 49, 66, 89 L. Ed. 744, 65 S. Ct. 442 (1945). Nor are the "clear dictates of common sense" to be ignored. ...