was impermissible." This argument, however, misses the point. Grace and Misco stand for the proposition that an arbitrator's decision may be overturned where his award violates public policy. In the instant case, the arbitrator awarded the reinstatement of Karen Sullivan. Thus, to justify overturning the arbitrator's decision pursuant to Grace and Misco, Burns must demonstrate that the reinstatement of Karen Sullivan would violate public policy. It is insufficient to argue, as does Burns, that Sullivan's past conduct violated public policy.
This distinction was clearly noted in Stead Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173, International Association of Machinists and Aerospace Workers, 886 F.2d 1200 (9th Cir. 1989). In that case, an auto mechanic was discharged after his employer accused him of performing negligent work on cars he had serviced. The mechanic's union filed a grievance, which resulted in an arbitrator's decision reinstating the mechanic to his job. The employer then filed suit in federal court, claiming that the arbitrator's decision should be vacated for violating public policy by endangering the health and safety of its customers and the public. The district court apparently accepted that argument and vacated the arbitrator's award. Id. at 1202.
Although a three-judge panel of the Ninth Circuit affirmed the district court's decision,
the district court's ruling was reversed upon the rehearing of the case en banc. Id. at 1204, 1217. In determining whether the arbitrator's decision was properly vacated by the district court, the en banc court concentrated on whether the arbitrator's award -- reinstatement -- violated public policy. The court ruled that in order to vacate an arbitrator's award on public policy grounds, a court must find that "the policy is one that specifically militates against the relief ordered by the arbitrator." Id. at 1212-13. Therefore, the court reasoned, "if a court relies on public policy to vacate an arbitral award reinstating an employee, it must be a policy that bars reinstatement." Id. at 1212 (emphasis in the original).
Relying on the arbitrator's specific findings that the mechanic could be rehabilitated, and that a disciplinary measure less severe than discharge (suspension) would be sufficient to remedy the mechanic's past negligent conduct, the court found that the mechanic's future conduct would not likely run afoul of any public policy favoring traffic safety. Id. at 1213, 1217. As a result, the court held that even assuming the existence of a well-defined and dominant public policy favoring traffic safety, reinstatement of the mechanic did not violate that public policy. Id. The court therefore reversed the district court's decision vacating the arbitrator's award. Id. at 1217.
Prior to Stead Motors, other circuits properly recognized that in determining whether public policy mandates overturning an arbitrator's award that reinstates a discharged employee, a court must focus on whether the reinstatement violates public policy, not whether the employee's past conduct violated public policy. For example, in Communication Workers of America v. Southeastern Electric Cooperative of Durant, Oklahoma, 882 F.2d 467 (10th Cir. 1989), an electric company challenged an arbitrator's decision reinstating one of its employees who had been discharged for sexually assaulting a customer. Id. at 468. The electric company argued that the employee's conduct violated the public policy of preventing assault and sexual oppression of women. Id. at 469. The court refused to overturn the arbitrator's award. Relying on the arbitrator's finding that the employee's conduct was an aberration which could be remedied by a punishment less severe than discharge, the court found that reinstatement of the employee would not violate public policy. Id. at 469-70.
Similarly, in United States Postal Service v. National Association of Letter Carriers, 839 F.2d 146 (3d Cir. 1988), an arbitrator reinstated an employee who had been discharged for firing gunshots into a supervisor's unoccupied vehicle. The Third Circuit reversed the district court's decision vacating the arbitrator's award. The court reasoned that even assuming the existence of a public policy favoring the protection of co-workers and customers from an employee's violent conduct, such a policy "does not require discharge for its fulfillment." Id. at 149-50 (emphasis in the original). The court noted that the arbitrator had expressly determined that the postal employee's violent conduct was the product of the "supercharged emotional atmosphere" created by the denial of his promotion, and that the employee "showed no proclivity to further aggression." Id. at 147, 149. Based on these factual findings of the arbitrator, the court ruled that reinstatement of the postal employee would not necessarily violate public policy. Id. at 150-51.
In determining whether to vacate an arbitrator's reinstatement of an employee who has been discharged for misconduct that arguably violates public policy, district courts have also focused on the likelihood that the misconduct will recur. See e.g., Flushing Hospital and Medical Center v. Local 1199, Drug, Hospital and Health Care Employees Union, 685 F. Supp. 55 (S.D.N.Y. 1988) (rejecting a hospital's challenge to an arbitrator's award reinstating a nursing attendant who had been discharged for violating hospital rules because there was "no threat of continuing wrongful conduct" by the attendant); Brigham and Women's Hospital v. Massachusetts Nurses Association, 684 F. Supp. 1120 (D.Mass. 1988) (arbitrator's award reinstating a nurse who had been discharged for failure to satisfactorily perform her duties did not violate public policy favoring competent nursing, since there was no showing that the nurse would fail to perform ably in the future). More importantly, the Seventh Circuit has also employed this same analysis. In E.I. DuPont, supra, an employee of DuPont was discharged when, during his work on the night shift, he attacked a supervisor, ran naked across company grounds, and damaged company property. 790 F.2d at 613. An arbitrator reinstated the employee after finding that his outburst resulted from a mental breakdown and that the possibility of the employee having a future breakdown was remote. Id. The Seventh Circuit, accepting the arbitrator's finding that a recurrence of the employee's misconduct was remote, held that the arbitrator's ruling did not violate the public policy of promoting a safe working environment. 790 F.2d at 616-17. Therefore, the court reversed the district court's decision vacating the arbitrator's award on public policy grounds. Id.
In the instant case, Burns relies heavily on the decisions in Iowa Electric and Delta Air Lines v. Air Line Pilots Association, International, 861 F.2d 665 (11th Cir. 1988), cert. denied, 493 U.S. 871, 107 L. Ed. 2d 154, 110 S. Ct. 201 (1989). In Iowa Electric, the court overturned an arbitrator's award reinstating a nuclear power plant employee who had been discharged for violating nuclear safety regulations. The court found the award violative of a public policy favoring nuclear safety. Id. at 1430. In Delta Air Lines, the court affirmed a district court's ruling vacating an arbitrator's award which reinstated a pilot who had operated an airplane while drunk. The court held that enforcement of the award would violate "clearly established public policy which condemns the operation of passenger airliners by pilots who are under the influence of alcohol." Id. at 671. To the extent that these decisions are based on the fact that the employee's past conduct violated public policy, without giving any consideration to whether the reinstatement (i.e., the employee's future conduct) would violate the public policy, this court finds those decisions an improper application of the public policy exception outlined in Grace and Misco. As the court aptly noted in Stead Motors,
The critical inquiry is not whether the underlying act for which the employee was disciplined violates public policy, but whether there is a public policy barring reinstatement of an individual who has committed a wrongful act. . . . If the performance of an illegal act while on the job [were] all that must be proved to demonstrate the violation of a public policy for purposes of Grace and Misco, then an arbitrator would be prohibited from reinstating any teamster who receives a speeding ticket while driving the company truck, or even an inventory clerk who commits a single act of petty theft. Grace and Misco do not countenance such results.
886 F.2d at 1215-16 (emphasis in the original).
One rationale for the decisions in cases such as Iowa Electric and Delta Air Lines is that the courts assumed or inferred that an employee who violates safety regulations will continue to do so, making his reinstatement, as well as his past conduct, violative of public policy. However, whether an employee is likely to engage in misconduct in the future is a factual determination not properly made by a reviewing court. Misco, 484 U.S. at 44-45. See Stead Motors, 886 F.2d at 1213, 1217; E.I. DuPont, 790 F.2d at 617; Brigham, 684 F. Supp. at 1125. Therefore, this court will not engage in making substitutive or supplementary factual findings. This court's review is limited to the actual factual findings made by the arbitrator.
In this case, the arbitrator's decision makes no finding that Sullivan is likely to engage in similar safety violations in the future; his reinstatement award is based on his finding that Burns did not give Sullivan adequate advance notice that she could be subject to discharge for leaving her post for a few minutes to get an aspirin. As a result, this court has no factual basis on which to make a finding that Sullivan's reinstatement is likely to violate the public policy favoring strict adherence to nuclear safety regulations. Therefore, this court cannot overturn the arbitrator's award on public policy grounds.
For the foregoing reasons, Burns' motion for summary judgment is denied; defendants' similar motion is granted.
IT IS SO ORDERED.
Dated: May 3, 1990