Moreover, it was not explained how or why plaintiff's
investigation 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.I. Du Pont de Nemours & Co. v. Grasselli
Employees Independent Assoc., 790 F.2d 611, 614 (7th Cir. 1986)
or "his 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 arbitrator'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 suggestion that is totally unsupported and unwarranted. The
arbitrator also employed such inappropriate language as, "even
if [the victim] 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 matter . . ."
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 attributed much importance to the effect of the
incident on Leonard's marriage. The arbitrator inexplicably
disregarded Leonard's admission 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 implies that such conduct
by employees is acceptable. Likewise, the arbitrator failed to
consider the telling inconsistencies in Leonard's accounts of
The law is well established that where an arbitrator's award
violates public policy, a district court may vacate the award.
United Paperworkers 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
considerations, by itself, offends public policy.*fn5 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.
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 just cause, there must be a
showing that plaintiff's determinations were incorrect,
unfounded or unreasonable, which necessarily includes a
consideration 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 maintain 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 overturned and that Leonard's discharge be
affirmed. Rather, plaintiff asks only that the award be 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 arbitration
hearing we will further another public policy that requires
labor disputes to be resolved properly and impartially.
An appropriate order will issue.
ORDER AND JUDGMENT
AND NOW, this 18th day of March, 1991, upon consideration of
cross-motions for summary judgment, it is ordered and declared
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 matter shall be referred to another
arbitrator who shall conduct 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.