Stead Motors of Walnut Creek v. Automotive MacHinists Lodge No. 1173, International Association of MacHinists and Aerospace Workers

Rule 11 of under attorneys’ fees $553.50 Rules of Civil Procedure. Federal proper only under Rule are

Sanctions frivolous, motion is pleading

when unreasonable, or factual

legally without Ange City Zaldivar v. Los

foundation. (9th Cir.1986). Here, les, 780 F.2d that the claim is friv is no evidence

there factual foundation. Gil or without

olous strategic decision attorney made a

lette’s han claim would best be type in a court. differently, and different

dled brought in state subsequently suit

Gillette not make The district court did

court. frivolous, and,

findings that the claim was fact, preju claim without dismissed the of the record Because our review

dice. any claims were filed for not indicate

does frivolous, improper purpose, or were support, legal merit or factual we

without attorneys fees under

reverse the award

Rule 11. PART, IN

AFFIRMED IN REVERSED

PART, AND REMANDED. WALNUT MOTORS OF

STEAD

CREEK, Plaintiff-Appellee, LODGE MACHINISTS

AUTOMOTIVE ASSOCI- INTERNATIONAL

NO. AND AERO-

ATION OF MACHINISTS WORKERS, Defendant-Appel-

SPACE

lant.

No. 87-2053. Appeals, States Court

United

Ninth Circuit.

Argued En Banc and Submitted 18,1989.

Jan.

Decided Oct. Rosenfeld, Weinberg, Bourg,

David Van Rosenfeld, Francisco, Cal., Roger and San defendant-appellant. for Werson, Montobbio, Severson, J. Mark Francisco, Cal., Melchior, Berke and San plaintiff-appellee. for Beeson, Colton, Tayer Joseph and Sil- Francisco, bert, Livingston, Bodine & San Cal., amici curiae Teamsters Joint California Nurses Councils 7 and 38 and Association.

I. auto- Mercedes Benz sells Stead Motors mobiles; them. First Rocks services Gale a mechanic Stead Motors employed as without performed his duties GOODWIN, Rocks Judge, Chief Before year, Rocks In that incident 1984.1 WALLACE, TANG, until BROWNING, fail- warning notice for written ALARCON, REINHARDT, received a FLETCHER, lug ing properly tighten to bolts O’SCANNLAIN, NOONAN, LEAVY warn- of a car he had serviced. The wheels TROTT, Judges. Circuit action as one of ing referred to Rocks’ and, negligence” according to the “gross REINHARDT, Judge: Circuit agree- bargaining terms of the collective once requires us to consider This case (“the in ef- Agreement”), remained ment “public again the nature and extent days. fect for 30 finality exception” to the of labor later, eleven months Approximately doing, In so we reem- awards. arbitrators’ dispute with September Rocks had a the narrow manner which phasize both shop proper manner his foreman about excep- historically construed we have tighten lug replacing after in which to bolts we have general deference tion and found the tires on a car. The arbitrator afford, afforded, to awards of and must advised,” although the that Rocks “was Rocks, an auto me- Gale labor arbitrators. precisely not make clear record does appellant Lodge chanic and member whom, that his foreman had “absolute au- International Association 1173 of the proper lug thority” matters such as over (“Lo- Aerospace Workers Machinists tightening procedures. On October bolt union”), discharged for “the was cal” or replaced Rocks the front brake The matter conduct. was work-related car, job required which him to pads on a arbitration, and the arbitrator submitted to and, upon replacing remove the wheels to former em- Rocks reinstated ordered them, lug to bolts. As the car’s affix 120-day suspension. ployment following a home, “very he noticed a owner drove Creek Appellee Motors of Walnut Stead end. heavy” in his car’s front vibration (“Stead Motors,” employer”), sued to “the employee dispatched an to Stead Motors in the United States Dis- vacate the award Upon inspecting the the customer’s home. District of trict for the Northern Mercedes, employee rough-riding found California, reinstate- alleging that Rocks’ lug were that several bolts both wheels policy by “endan- violate ment would loose, missing altogether. with one bolt safety of cus- gering] the health and [its] Motors, believing fail- that Rocks’s judge The Stead public.” and the district tomers lug nuts ure to secure the amounted accepted argument this and va- apparently bargain- under the collective “just which or- portion of the award cause” cated terminate him.2 three-judge ing agreement, decided to A Rocks reinstated. dered to Rocks and his union dated case was In a letter panel this court affirmed. The incident, employer re- original panel day after the then taken en banc. warning had to the written F.2d 357 Cir. ferred opinion, reported at 843 year before and claimed 1988), reverse. been and we now issued is withdrawn Rocks, only admitting that he was the 2. while discussion in the arbitrator’s is some There question, person the vehicle in to service relationship be- about the and award the arbitrator that else claimed someone before shop position stew- as the Rocks’ union tween lug (specifi- could cally later loosened bolts have management. with We do and his conflicts ard management). get him in trouble here, party for neither address these issues and, The arbitrator did not believe claim find, alleges, the arbitrator nor did now award, of his we take the facts as the our review basis for his union activities were the Rocks’ 1206-09, them, found arbitrator infra legal discharge employer’s subsequent for his did in fact fail to affix assume that Rocks lug award. to vacate the arbitrator’s action properly. bolts lug bolts on ion’s contention Stead Motors should tighten Rocks’ failure reck- “tantamount car was have been bound its treatment of the the second lessness,” category of behavior which similar incident for which it issued the writ- discharge an em- employer entitled “gross warning negli- ten 1984 as one of Rocks, through the ployee without notice. gence.” repeat He then ruled that Rocks’ union, deter- sought to have an arbitrator suggested to the con- offense indifference Stead whether the conduct on which mine sequences of his actions and was therefore discharge amounted had based his Motors properly Consequent- deemed “reckless.” Agreement. Al- just cause under reasoned, ly, discipline appropriate he Agreement required such mat- though the bargaining agreement. under the collective comprised adjudicated by a board ters to be “Remedy” The section of the arbitrator’s management and la- representatives of review; important award is the most to our agreeable to and a neutral member bor respects in some it is also the most confus- both, parties to submit the mat- decided ing. passages: We set out the relevant (Neither single arbitrator. ter to a neutral upon by One of the three bases relied proce- challenged the arbitration party has support re- [Stead Motors] [Rocks’] no employed, and we have cause dures established; moval has been either.) two have question them not. failure to establish [Stead Motors’] Arbitrator The matter was heard before pursuant justi- that to the it contract was Prohn, subsequently Le issued Robert who relying fied in on each of the factors At the hear- opinion written and award.3 discharge leads to the conclusion that had asserted three ing Stead Motors disciplinary too severe a action. support discharge of its decision: factors 1) warning lug for bolt malfea- entitled to reinstatement to [Rocks] sance; 2) problems”; and Rocks’ “attitude However, position. his former his reck- 3) failure to the “reckless” October 1985 less conduct on war- October 1985[] lug properly. respect With affix the bolts discipline.... Discipline rants severe warning, Le Prohn to the 1984 found rehabilitation; aimed at reinstatement clearly bargaining agreement the collective (120) twenty day with a one-hundred and warning letters could not established suspension object should serve as an les- thirty days, for more than remain effect impress upon and that he is son [him] year-old improper letter an making the required per- to follow instructions and rely. on which to As to Rocks’ factor carefully. job fully form his duties and ruled problems,” “attitude the arbitrator Motors, the out- Stead dissatisfied with reliance on that factor that Stead Motors’ procedure, come of the arbitration filed suit time, At the same he was unwarranted. Superior Court of Contra Costa that, made out a noted while the union had portion of County, to vacate the California activity that Rocks’ union prima facie ease that ordered Rocks reinstated. award motivating factor in Stead Motor’s was a decision, argued It that the arbitrator had exceeded discharge the record established would not have been fired but authority, that Rocks that his award “d[id] lug for the October 14 bolt incident. Agreement,” {See its essence from the draw 1.) supra n. public pol- that reinstatement would violate icy as it would allow Rocks inasmuch Turning to the final factor asserted safety “endanger the lives and trav- Motors, lugs, that of the October Stead eling public.” rejected first the un- Arbitrator Le Prohn process Admittedly, are better served when is in the arbitration 3. the arbitrator’s cursory nearly technical re- places arbitrators are not constrained somewhat and in others by judges quirements imposed or the fear that opaque. While it would of course make our they given deference if their awards will be less limited review of the arbitrator’s decision sim- high findings standards we demand of pler in substance or fail to meet the if his were closer judges. reviewing findings usually and orders of district those have when form to we Cf. courts, acknowledge, infra, 1204 n. 5. decisions of district we 1206-07, goals that the and discuss infra a state Bureau seq., which established action to federal removed the union The 1441(a), provided Repair on the Automotive 28 U.S.C. under § court cogni- claim was inspection Motors’ and certification of automobile ground that Stead original jur- facilities, courts’ the federal Bu- under concluded that the repair zable 301 of the National pursuant isdiction the certification of power § reau’s to revoke Act, 185.4 The 29 U.S.C. Relations § Labor “gross negli- repair facility for cases vacating the order issued an judge district 9884.7(l)(e), that “Stead gence,” meant § award, the extent arbitrator’s kept have Rocks Motors could not reinstatement, ordered F.2d at stayed in business.” grounds.5 the matter en banc. We decided to rehear three-judge pan appealed to union The affirmed the district of this court el II. Automotive Ma Motors court. Stead reviewing the merits Stead Motors’ F.2d 357 Cir. Lodge chinists award, we challenge to 1988). opinion found panel’s brief acknowledge must that the task is differ- violate Cali of Rocks reinstatement judges that which are accustomed ent from “regarding automo fornia’s for, reviewing perform; to when award maintenance,” 843 F.2d at safety and bile a by parties to of an arbitrator chosen from two sections 359, gleaned a bargaining agreement, are we collective Turning first to Code. of the California except the most limited bound—under all Code, pan of the state Vehicle 24002 § of defer to the decision circumstances—to pronounce reasoned that California’s el another, if deci- even we believe that the operate any to is unlawful ment “[i]t the law finds the facts and states sion of vehicles which is combination vehicle or Possibly erroneously. nature because to amounted an in condition.” an unsafe ” “ unusual, in these cases is so of our review recognition’ of the legislative ‘express may tendency judges, often there be ve maintained danger posed by improperly intentions, unobjectionable the most Rath, 69 Id., (quoting Maloney v. hicles. permissible scope of and exceed the review 897, 900, 448, 442, Cal.Rptr. 445 71 Cal.2d image in own to reform our of awards (1968)). panel 513, looked 516 P.2d Consequently, cases Act, equities or the law. Repair to California’s Automotive next one, acquire plenary 9880 et like this which Code and Professions § Business Eng ty. Corp. v. Compare Electronics provides: Photo 301 Section Cir.1978) land, F.2d 116-11 581 organizations against by and labor Suits (a) (“Wholesale party’s adoption prevailing of the between contracts an for violation of Suits representing findings complicates problems of employer organization proposed and a labor affecting industry employees commerce may permissible in an appellate be in review ... [but] may brought chapter be ... defined in this 'involving highly technical issues such as cases having United States court of the district patent complex may cases and be involved in respect parties, without jurisdiction of the ’’)(quoting problems.’ Industrial Build scientific regard controversy without amount citizenship Materials, ing Corp., Interchemical 437 Inc. v. parties. (9th Cir.1970)) (citations F.2d 1339-40 omitted) City, City signed v. Bessemer judge with Anderson two- precisely, the 5. More district 1504, 1510, 564, 572, N.C., by counsel. The 105 S.Ct. 84 page prepared Stead’s order centerpiece (1985) adopt of a court of supposedly (criticizing courts that L.Ed.2d 518 order— appeals’ any analysis contain not party "particularly review—does findings prevailing when award, no discussion of the arbitrator’s of legal awards, findings taken the form of concluso- those have applied to such which must standards by unsupported citation to the ry statements "public specify the does not and even discussing “potential for over and record” reaching reinstatement. policy" violated Rocks’ part exaggeration on the attor and practice acknowledged that the have While we fact”) findings neys preparing and Oil & Kern party prepares a district prevailing which Co., Refining Oil 840 F.2d Co. Tenneco findings some value in judge’s has order (9th Cir.) (generally disapproving of whole 734 cases, the Su- court and class of limited by prevailing findings prepared adoption of sale consistently advised that the preme Court have denied-U.S.-, party), cert. generally makes commonplace practice too all (1988). L.Ed.2d 367 102 dis- and invites appellate review more difficult prevailing par- by the and overstatement tortion court, opportu- Enterprise Look at Its provide Proge Wheel and attention our (1977) unique ny, 75 nity repeat reemphasize the Mich.L.Rev. {“Ju ”). function and dicial Review The arbitrator under character of an arbitrator’s such a scheme somewhat nearly unparalleled degree of deference serves a function specifical- different from that served the arbitrator we afford his decisions. We also He ly reaffirm this circuit’s settled construc- the commercial context. does “public policy excep- merely provide an means of re tion of the so-called alternative finality solving disputes, simply tion” to the of arbitrator’s awards nor is he chosen pro- light Supreme of recent Court expertise specific for his in a field or his ability give nouncements. definitive answers with greater efficiency speed than the turn, then, description first to a We brief e.g. Corp. courts. Mitsubishi Motors Cf. plays process of the role arbitration Inc., 473 Chrysler-Plymouth, v. Soler bargaining and the role of the of collective 614, 628, 3346, 3354, L.Ed.2d defining bargaining collective arbitrator (1985) (arbitrating a commercial claim Subsequently, agreements. we examine procedures “trades the of the court ... process which arbitrators arrive simplicity, informality, room for the the character of those their awards and arbitration”). expedition of Unlike the Finally, we come to awards themselves. contract, designed commercial scheme, reviewing judges in this the role comprehensive par be a distillation of the Supreme approaches historical bargain, bargaining ties’ the collective judicial and of this circuit to review skeletal, agreement ais interstitial doc pro- The discussion of arbitrator’s awards. ument. United Steelworkers Am. v. necessary background to the nar- vides a Co., Navigation Warrior & Gulf issue we must decide here—whether row 574, 578, 580-81, 1347, 1350, 1351- reinstatement of Rocks vio- the arbitrator’s (“Warrior (1960) 4 L.Ed.2d 1409 & provide “public policy.” the back- lated We person is the Gulf”). The labor arbitrator because, history ground in detail as the of parties designate gaps; the to fill in the for shows, eloquently ques- ultimate this case array they the vast of circumstances have sphere tions in the cannot be arbitration writing, or reduced to the not considered properly if from an answered divorced parties’ bargain. will state the arbitrator understanding of nature of the the arbitral officially designated parties’ He is “the process itself. joint ‘reader’ of the contract ... their alter striking ego purpose for the of whatever A. Arbitration and Arbitrators in the bargain necessary” is supplementary Labor Context agree omitted from the handle matters Arbitration is a central feature of the Review, 75 Mich.L.Rev. at ment. Judicial process, designed to bargaining collective 1140. alongside labor contract function the maintaining power Since the labor arbitrator is de equity and balance of Indeed, mandatory signed parties’ function in essence as the workplace. the “misinterpret” surrogate, he cannot a col prearranged grievances of arbitration bargaining agreement. As Profes aspect parties’ bargain, of the lective is a critical observes, agree Antoine the absence through they “to sor St. the means “[i]n overreaching authority of on unanticipated of fraud or an anticipated handle the omis- arbitrator, speaking he is bargaining agree- part of the sions of the [collective their con Antoine, parties, for the and his award is Review St. Judicial ment].” of Thus, (emphasis original)6 Awards: A tract.” Id. Labor Arbitration Second course, is, bargaining Recognition from the collective of the con- draw its essence” of this fact judicial agreement. reserved for those ceptual underpinning This term is deference to award, egregious cases in which a court determines discussed in detail an arbitrator’s infra ignored plain arbitrator’s award exception at 1207-09. The to Professor St. contract, “manifestly language generally that he assertion is the of Antoine’s accurate bargain disregarded” the contours of the ex- award “fails to case in which the arbitrator’s meaning express the of a collective they review an arbi- which do when what courts par- agreement applied to a bargaining as is more akin to the review trator’s award judges, In contrast to ticular set of facts. the decision of an inferi- than of a contract by the stric- are not bound award, contract, labor arbitrators just as a tribunal: or actually the record precedent tures of parties’ will and expression them; generally they nor are sub- before il- expressed unless must be enforced by “superior tribunals” for ject to reversal “rein- void. Judicial legal or otherwise at 1207. errors of law or fact. See judicial than reforma- terpretation,” no less infra of all against wishes tion of a contract opinions of arbitral The content it, ordinarily an invalid parties often reflects the contrasts be awards See, e.g. power. San Fran- exercise of our arbitrators, judges and and between tween v. Trib- Newspaper Guild cisco-Oakland proceedings. judicial and arbitral Arbitra (9th Co., 407 F.2d Pub. une if generally lawyers. Even tors are (“It Cir.1969) curiam) arbitra- (per lawyer, it is happens arbitrator to be for; bargained that was tor’s construction likely than not that he was chosen for more decision con- and so far as the arbitrator’s knowledge “shop” the industrial contract, cerns construction knowledge any general rather than him, overruling no business courts have possess. might law that he & Warrior Cf. the contract interpretation their because 581-82, Gulf, 363 80 S.Ct. at 1352- his.”); is different than Louisiana-Pacific con proceedings 53. The the arbitrator Corp. Bhd. Elec. v. International informal, generally lacking most ducts are Cir.1979) Workers, 600 F.2d procedure the fixed rules of and evi (enforcing compa- award since lawyers judges dence under which cus stages ny, several ... made which “[a]t operate. and award tomarily bargaining” strate- choices as to collective writes is a document intend the arbitrator consequences gy “must now abide specific question rather ed to answer a choices”). premised Deference is those any legal principles. Ac than set forth simple that courts do not free notion cordingly, require we do not labor arbitra obligations merely individual from his explicit or exhaus tors to make the sorts of obligations have turned sour because those “findings tive of fact” we demand of dis award, on him. The labor arbitrator’s of- courts; likewise, the reasons for arbi trict jus- rendering termed the of “industrial ten rulings spelled not out in de tral need be tice,” par- simply a manifestation of the Indeed, have no obli tail. “[arbitrators obligations under their contract: ties’ gation give to their reasons for an ... import or of the Whatever content award” at all. United Steelworkers of award, challenged may and however it Enterprise Corp., 363 Am. v. Wheel & Car described, 1358, 1361, in- 593, 598, otherwise be the brand of 4 80 S.Ct. L.Ed.2d U.S. dispensed (1960) Wheel”). in that award is justice (“Enterprise dustrial 1424 party assessed and precise brand As to the bases for open, agreed purchase, eyes for better award, long courts have commentators and worse, poorer. or for for richer or entitled, recognized that the arbitrator is Jones, range “His Brand Industrial Jus- afield of the expected, Own and is even of bargaining Re- Stalking tice”: The Horse Judicial of the collective actual text of Arbitration, 30 interprets: Labor UCLA agreement view he 881, (1983). L.Rev. 893 source of law is The labor arbitrator’s express provisions of not confined to the

B. The Arbitrator’s Award contract, as the industrial common practices industry of the judicial are not law—the Arbitrators’ awards part shop equally of the collective opinions. They are ad hoc documents —is power parties bargaining of the have entrusted pressed agreement. the collective exercise in outline instance, In such an the court rules at 1208-1209. to him. See infra represents an invalid the arbitrator's award

1207 approach judicial bargaining agreement although not ex- This review of labor pressed in it. important awards arbitration found its first expression Supreme in three 1960 581-82, 363 at 80 Gulf, & U.S. Warrior cases, two of which have been mentioned a construction of S.Ct. 1352-53. Such already, which have come to be known as the contract and the arbitrator’s function bargaining of the required Trilogy.’’ Accordingly, the nature the “Steelworkers process itself. Since labor contracts are judicial discussion of review issues negotiated and “written with industrial description should include a of Justice mind,” practices psychology in arbitra- Douglas’ opinions for the Court in Steel personal tors must draw from their knowl- workers America v. American Manu edge workplace and the relevant Co., 564, 1343, facturing 363 80 industry they when make their awards. (1960) (“American 4 L.Ed.2d 1403 Manu Review, at 1147- Judicial Mich.L.Rev. facturing”); United Steelworkers 48; see also Northwest Bell Tel. Pacific America v. Navigation Warrior & Gulf Am., Co. v. Communications Workers of Co., 363 U.S. 80 S.Ct. 4 L.Ed.2d (9th Cir.1962)(“collective 310 F.2d (1960) (treated context, in a related bargaining very contracts their nature supra, 1205-06); and United Steel fairly express cannot be limited to their workers Enterprise America v. Wheel provisions”). Corp., & Car (1960). C. Judicial Review Arbitrators’ L.Ed.2d Awards Manufacturing, American the Court implication preceding The expressed proposition for the first time the reviewing section for a court the award of that courts must refrain “depriving” from is clear. labor arbitrator Unfamiliar with party bargaining agree- collective practices industry “the and the right hearing ment of its to a before an shop,” competent are courts to second- Court, emphasizing arbitrator. guess judgment. an arbitrator’s Further “therapeutic arbitrating values” of even more, nothing proscribed, since there is claims, seemingly frivolous 363 U.S. at imprudent, taking even about “arbi 567-68, 1346-47, 80 S.Ct. at ruled that en- tral notice” the formulation of an arbi joining proceedings im- arbitral would be (or requirement tral award and no even a proper appropri- even in a case in which the expectation) reasonable that an arbitrator ate resolution of the issues would ordinari- “opinion,” write an exhaustive of court ly “beyond dispute.” be deemed principled ground upon ten has no explained unique & Warrior Gulf question an arbitrator’s ratio decidendi. bargaining character of the collective importantly, More a court is barred contract,” agreement; than a “more disregarding the arbitrator’s factual deter generalized “a agreement has to be seen as minations, supplementing let alone them govern myriad code to of cases which the own, “correcting” with its or from an arbi wholly anticipate.” cannot 363 draftsmen understanding trator’s erroneous 578, opinion at 80 at The U.S. S.Ct. 1350. law. v. Me Sheet Metal Workers Arizona proceeded length then at some to discuss Stainless, Inc., 647, F.2d chanical & 863 range permissible the wide sources of (9th Cir.1988) 653 Metal Work {“Sheet arbitrator, 1206, supra law for the at advis- ers’’); American Postal Workers Union ing suspicious courts not to Service, be arbitra- v. United States Postal 682 F.2d (9th or hesitant to enforce them 1280, Cir.1982), denied, tors’ awards 1284 cert. 459 1200, 1183, merely because an arbitrator’s actions 75 L.Ed.2d 431 S.Ct. (1983).7 might not track those of courts faced with 800, case, Teamsters, 7. one deci- Bhd. 578 F.2d Cir. In we affirmed district court vacating curiam). 1978) award on of a (per sion an arbitral the basis To the extent the case finding factual made the district court that clearly practice, forbidden we dis validated this contrary implicit findings was to the approve it. Airways, arbitrator. World Inc. International to be afforded and the deference situations, ations” because arbi- analogous judg- “his informed arbitrator’s use of “foreign to judgments seem trator’s of a a fair solution Id. at ment ... to reach competence” of the federal courts. Wheel, the 580-81, Finally, Enterprise In problem.” at 1351-52. Id. 80 S.Ct. inappropriate discharge its com- court returned to arbitrator found & Warrior Gulf had competence employees who punishment of the relative for several parison field, firing of a jobs protest and arbitrators the labor to courts left their judge concluding co-worker, immediately cannot returned to ablest had but “[t]he bring experience expected to the same to do so. be their union work when advised competence [possessed words, an arbitra- arbitra- In the Court’s “[i]n [the of a upon to bear the determination view, most a the facts warranted at tor] tor’s] similarly grievance, because he cannot be days the men for 10 each.” suspension of shop” law of the informed the “common 595, at 1360. The Court [of at 80 S.Ct. Id. par- “specialized needs” of the and the deci- definitively ruled that the arbitrator’s at 80 S.Ct. at 1352. Id. following employees ties].” reinstate the sion to subject to 10-day suspensions was not judicial re import In terms of for review, court was except insofar as the awards, signif the most of arbitration view award had allowed to ensure Enterprise Trilogy case in the was icant from the arbitrator’s “drawn its essence” terse, straightforward, almost Wheel. reviewing A construction of contract. the “fed language the Court reasoned that court, moreover, strictly forbidden disputes by settling labor eral punishment reject the arbitrator’s choice undermined if courts arbitration be it. “merely disagreed” with [because it] say merits of awards.” had the final on the at at 1361. 363 U.S. Thus, at 80 S.Ct. at the merits” of outright “refusal review court re- Finally, Enterprise Wheel normally “the arbitrators’ awards was temptations to which courts ferred two proper approach” for courts to follow when already might prey, fall both of which have challenge party sought disgruntled Looking briefly above. been discussed a court only time which them. Id. acknowledged at the likelihood first could, to, obligated refuse and indeed was renderings awards of some the written award was to enforce advised might ambiguous, the Court the arbitrator had those cases which ambiguity “mere accom- “dispense[d] his own brand of industrial award, infer- permits panying an issuing an award which failed justice,” may exceeded that the arbitrator have ence the collective bar its essence from “draw[ ] refusing authority, is not a reason for agreement.” Id. at gaining enforce the award.” 363 U.S. 1361.8 1361; supra at 1203 n. 3 S.Ct. at cf. “ambiguity” 1207. General references to equally categorical its The Court was judicial as excuses for second-guessing of were not to serve judicial treatment of Second, arbitrator, rehearing grievance. by an remedy formulated explicitly on the “misin- commented stressing “need ... the arbitrator’s (at already problem discussed variety terpretation” flexibility meeting a wide of situ- (1st public policy grounds, Cir. cryptic 815 F.2d 178 has been made of these two 8. Much Court, 12, 1987), See, Jones, Supreme vacated 484 e.g. supra UCLA was phrases. at 30 983, 497, (1987)), L.Ed.2d 496 (referring U.S. 98 to the "his own at 882-85 L.Rev. -- 555, -, denied, S.Ct. 102 slip 109 around the cert. test as “a semantic noose brand” Indeed, (1988). that courts We believe judgment”). L.Ed.2d 582 arbitral exercise of apply "draw its unaccompanied the "his own brand” or phrases, must quotation of these exceptions judicial in the usually deference explanation, indica essence” serves as an further they way which we have held that must same vacate an arbitrator’s tor that a court is about to exception. "public policy” apply In both Paper E.g., Co. v. United award. S.D. Warren circumstances, AFL-CIO, 1069, scrutiny Union, ”[j]udicial anof arbitra Local workers’ Intern. 3, extremely Metal (1st Cir.) (decided limited.” Sheet tor’s decision is on "essence” F.2d 8 845 Workers, supplied). (emphasis 863 F.2d 653 grounds earlier decision on after the court’s 1209 1205-06). of no any findings legal In terms which admit ousness of factual or dispute, ”) the Court cautioned: (quoting conclusions’ George Day Con- struction Carpen- Co. v. United Bhd. It is the arbitrator’s construction which Am., 354, ters and for; Joiners Local 722 bargained and so far as the 1471, (9th Cir.1984)); F.2d 1477 Broadway concerns construc- arbitrator’s decision contract, Co-op. Cab v. Teamsters &

tion of the the courts have no Chauffeurs 1379, 281, overruling him because their in- Local Union No. 710 F.2d 1382 business (9th Cir.1983)(federal terpretation “ordinarily of the contract is different court en- gages only very from his. limited review of decision,” reviewing “the arbi- 599, at 1362. Id. S.Ct. trator’s question resolution of under the [a] to, This circuit has adhered and elabo- Trilogy Steelworkers standard even if the on, spirit rated admo- Trilogy’s question ordinarily is one that is for the aptly A nitions. recent decision summa- (citations decide”) omitted). courts to approach judicial rizes our review of There orthodoxy respect is no with arbitration awards: manner in express which courts must their scrutiny of an arbitrator’s deci- Judicial deference to arbitrators’ awards and no The extremely sion is limited. arbitra- problem varying expressions long so legal tor’s factual determinations and scope degree as the or of deference is not generally conclusions receive deferential important diminished. What is is that the long they review as as derive their es- language beginning recited at the of our bargaining sence [collective opinions forgotten If, face, not be when it agreement]. comes on its the award apply principles time to those represents plausible interpretation to the facts contract, of the individual case. Deference judicial inquiry ceases and is the rule; exception. rare indeed is the the award must be enforced. This re- mains so if the for the even basis arbitra- ambiguous tor’s decision is and notwith- D. Policy Exception The Public standing the erroneousness of factu- the exceptions One of to the re findings legal al conclusions. quirement that courts defer to the awards (cita- Workers,

Sheet Metal 863 F.2d at 653 arbitrators is now-settled rule that a omitted). tions not, cannot, court need in fact enforce an times, expressed propo public policy.9 At we have these award which violates different, slightly though exception applied sitions sub contours of this See, stantively indistinguishable, terms. arbitration context were first outlined Concrete, e.g., Cunningham, Supreme Pack Inc. v. Court in v. W.R. Grace & Co. 283, (9th Cir.1989) (emphasiz 866 F.2d Local Union (1983) ”). ing “extremely scope narrow” of re 76 L.Ed.2d 298 {‘‘Grace Grace, decisions); view of arbitral Local Ex the Court dealt with a conflict be Joint agreement, Vegas bargaining ecutive Bd. Las v. Riverboat Ca tween a collective sino, Inc., (9th gave seniority 817 F.2d 526-27 Cir. which to certain male em 1987) (“not the ployees, court’s role to determine and a consent decree between the employer designed whether the arbitrator has reached the and the EEOC to settle reached”) same result the court would have a sex discrimination suit under Title VII. (citations omitted); employees seniority the male lost the Orange Belt Dist. When Kashak, guaranteed by bargaining the collective Council Painters No. 48 Cir.1985) (“Orange agreement implementation F.2d because of the Belt") (arbitral decree, sought they must be enforced of the consent arbitra award “ that, irrespective am An ‘even if the decision is tion. arbitrator held basis decree, biguous, employer had notwithstanding the errone- of the consent many recognized, "exception” any public As have enforce contract that contravenes 9. 1155; Review, actually nothing specific applica- policy. than a Judicial 75 Mich.L.Rev. at more (1962). general tion of the that a Corbin on Contracts at 10 § rule court cannot 6A 1375 1210 “slitter-rewinder,” arbitrator a machine the of the seniority provisions

breached the or- The arbitrator employees. the for termed “hazardous.” and ruled agreement 759-64, backpay, finding at 2179-82. 103 S.Ct. with at dered reinstatement prove that employer had failed that the confirming enforcement In the course actually possessed or employee had the award, dis- the Court of the arbitration company while illegal used substances exception. Begin- policy public cussed the any he violated property and thus that had that, proposition ning with the “[a]s 368-69, at 374. company rule. 108 S.Ct. may enforce a court any contract ... agreement that is con- collective-bargaining a district had affirmed The Fifth Circuit ruled that the policy,” Court trary public award, vacating reason- the court decision properly policy were public questions violate the ing that reinstatement that, if a court courts and answered dan- “against operation the public policy public violated award an arbitral found that the machinery by persons under gerous “obliged to refrain be policy, would Misco, Inc. drugs influence of or alcohol.” at 2183. at 103 S.Ct. enforcing it.” Id. Union, Paperworkers Intern. United sought give some con then The Court Cir.1985).10 F.2d 743 768 For an “public policy.” term tent to the reversed, unanimously Supreme Court sufficient public policy asserted court had failed to holding that the circuit an arbitrator’s preclude enforcement respect to follow the of Grace with dictates furthermore, award, “explicit;” to be it had public application and the articulation dominant.” defined and “well it had to be necessitating the invalidation policy policy be satisfac Finally, such a could Id. arbitrator’s award. “ ‘by only reference torily demonstrated ” reaffirming “ex- began by the The Court could precedents’ and legal laws and dominant” and “well defined and plicit” parties’ product of not be Grace, expressed “ 108 S.Ct. requirements sup ‘general considerations courts’ in that saying that the result case (quoting Mus interests’.” Id. posed of wheth- had “turned on examination [its] 49, 66, States, U.S. 65 324 chany v. United any explicit conflict created er award (1945)). 442, 451, L.Ed. 744 S.Ct. legal precedents’ rath- with other ‘laws description of careful Although Grace's ‘general consider- an assessment of er than to constrain was intended “public policy” ” public interest.’ Id. ations of supposed excep- public policy application Grace, 461 U.S. at (quoting recognition of the tion, explicit the Court’s least,” 2183). very “At Justice countervailing impact exception had Court, alleged “an for the White continued courts, policy” be- “public the lower under the must be framed those less than pretext favorite came a Grace, set out W.R. approach labor favorably disposed to awards clearly must be violation of such prompted a This reaction arbitrators. is not to be enforced.” if an shown award the Court statement from more definitive at 373-74. Id. 108 S.Ct. Union, Int’l Paperworkers in United that the Fifth Cir- concluded The Court Inc., Misco, AFL-CIO v. “public poli- general aof cuit’s articulation (“Misco”). (1987) 364, L.Ed.2d 286 by employees violated drug use cy” against af- discharged Misco, employee was an for- the Grace requirements the strict in his by police was found marijuana ter mulation; violation of no cigarette was seen marijuana and a home “clearly had been policy it articulated sitting. The he was in a car in which case; circuit shown” operating duties included employee’s job qualified." which was equivalent one for he that the apparently assumed Circuit 10. The Fifth that, recites upon reinstate- As neither 108 S.Ct. at meant arbitrator’s award ment, award, "slitter- to his to determine employee would return we are unable text of 740-41, rewinder,” while the Su- F.2d at the arbitrator precisely to what with assurance order interpreted award to preme employee. reinstated the job employee’s "old or ... to the reinstatement

1211 Airlines, had, Inc. v. Air Line Pilots Ass’n public policy- of its court the course Int’l, (D.C.Cir.1987), cert. de inference 808 F.2d 76 analysis, improperly drawn an — nied, -, 1751, (that using drugs 108 S.Ct. 100 employee was fact (1988)). L.Ed.2d 213 Our “narrow findings view” is workplace) at odds with the reemphasize today. one we Explic- 108 at 374. of the arbitrator. S.Ct. endeavor,

itly disapproving the latter Bevies, In we refused to vacate an arbi- said: Court public policy grounds, trator’s award on bargain parties did not for the facts noting both the limited nature of our re- court, by by to be found a but an arbitra- view of in general such awards and the tor them employer chosen ... Nor does fact failure of the challenging the inquiring possible that it is into a award to “explicit, viola- meet the well defined public policy public policy tion of excuse a court for and dominant” standard set Grace. 791 F.2d at 1392-93 & n. 2. doing forth in the arbitrator's task. Bevies sits squarely within a line of cases Id. in which we have adhered to a narrow Finally, in words reminiscent of its dis- construction public policy exception. quarter century cussion more than a earlier Belt, e.g. Orange See 774 (quot- F.2d at 990 (supra 1208-1209), Enterprise Wheel George Day Construction ing citing reaffirmed the deference to be Co., 1471, (9th 722 Cir.1984)). F.2d 1477 remedy: afforded an arbitrator’s choice of Workers, American Postal 682 F.2d at Cf. Had the arbitrator found that em- [the (arbitration award will not be en- ployee] possessed drugs prop- had on the forced if it party perform would force a erty, yet imposed discipline short of dis- act). manifestly illegal charge because he found as a factual The case most critical to our decision matter that could be trusted not to [he] today Amalgamated Transit Union v. job, Ap- use them on the the Court of Lines, Aztec Bus (9th 654 F.2d 643-44 peals upset could not the award because curiam) (“Aztec Cir.1981) Bus Lines (per ”). public policy of its own view that about Lines, In Aztec Bus we refused to vacate plant safety was threatened. the award of an arbitrator who had ordered 108 S.Ct. at 374.11 following suspension reinstatement for a The Misco court expressly knowingly reaffirmed bus driver who had driven a bus Grace rejecting faulty notion that there whose brakes caused it to “dive and case, judicial power existed to set rock.” In that had even “broad driver against police aside arbitration awards as been advised officer not policy.” important operate at 373. More continue “if there S.Ct. bus was purposes, explicitly any question safety.” for our it contrasted as to its 654 F.2d at both Mis- power Although preceded the “broader view” of court which it the case Grace, co Enter- implicitly rejected recognized later in the we prise historically judicial Wheel the “narrower view” taken itself forbade reevalu- remedy this circuit and the ation of the chosen D.C.Circuit. Bevies v. Team (citing employer’s claim that Co. at 369 n. reinstate- Cir.1986), sters Local public policy 791 F.2d 1391 ment would violate denied, rt. inadequate. flawed and words for- ce (1987), Northwest today, L.Ed.2d 499 eshadow our decision we wrote: footnote, standard, detracting nant” let alone from the 11. In a the Misco court said it was reserving question untempered whether refusal to en- opinion’s rebuke of courts that find public policy grounds force an award on re- concerning facts or draw inferences an arbitrat- quired showing that the "award itself violates grievance beyond expressed ed those in the text statute, regulation, a positive or other manifestation of of the arbitral award itself. Nor do we read it law, compels employ- conduct that, calling question proposition into er that would violate such a law.” 108 S.Ct. at established, however the itself is n. 2. We 374-75 do read this footnote as is the arbitrator’s award which must violate it if any way compromising the Court's reaffirma- public policy exception apply. is to “explicit, tion of Grace’s well defined and domi- 1212 presents specific question: one does the has been called to California statute

[N]o reinstating (following arbitrator’s order a illegal would make it our attention which disciplinary suspension) an auto mechanic previous- employ bus drivers who have Furthermore, act committed a reckless violate an judgment. who ly shown bad public “explicit, well defined and dominant” approve did not the arbitrator bus [the ques- policy? We think the answer to this merely He behavior. concluded driver’s] clearly negative. that, circumstances, tion is a under the two pay suspension week without rather than Leaving for discussion below outright adequate was an sanc- dismissal purported public policy articu whether agreed tion. Even if we with the em- by panel originally lated heard ployer that a more severe sanction was this case satisfied the stan Grace-Misco permitted are not to re- appropriate, we dard, briefly inquiry the first we consider the merits of an arbitral award. view courts must make in cases of this kind—an policy should not be turned into “a Public inquiry neglected. Simply put, pub often substituting judicial for facile method of policy lic ? In against what favor of judgment.” arbitral view, only comports one with our answer Dunau, (quoting Id. at 644 Three Problems Misco, and our rule. If a narrow Arbitration, 427, Va.L.Rev. in Labor 55 public policy court relies on to vacate an (citation omitted). (1969)) 446 reinstating employee, arbitral award an it policy must be a that bars reinstatement.12 III. merely cannot determine that there Courts policy” “public against particular is a sort turn, then, Rocks, We to Gale the loose society generally and, of behavior irre lugs and the reinstatement of arbitrator’s arbitrator, spective findings hundred-twenty day him after a one sus- conclude that reinstatement of an individu apply general pension. We must now engaged al in that sort of who conduct awards, respect rules with to arbitral past policy.13 In would violate that our them, review of discussed above. In so our view, reading requires a faithful of Misco doing, we must follow the dictates of something A delin more. court must both and this circuit’s Grace Misco “narrow overriding public policy eate an rooted in judicial power view” of the to vacate an something “general more than considera public policy grounds. arbitral award and, interests,” supposed public tions of ease, application equal significance, As we see this must demonstrate policy exception ultimately specifically public policy that the is one that mili consider, 984, 500, granted, us 484 U.S. 108 S.Ct. 12. There is no reason for here to cert. 98 cert, 680, (1987), dismissed, open, question L.Ed.2d 499 leave and we therefore re- 1589, (1988); 108 S.Ct. 99 L.Ed.2d 770 see also party served the Misco court: whether Emp. E.I. DuPont de Nemours & Co. v. Grasselli attempting that an award to show Ass’n., 611, (7th Cir.) (”[t]he ques- F.2d 790 620 public policy contravenes must demonstrate contract, construed, whether the vio- tion is actually that enforcement of the award would cert, 853, denied, law”), positive lates 479 statute, regulation violate "a or other manifesta- (1986), (Easter- 93 L.Ed.2d 120 positive law.” 108 S.Ct. at 374-75 n. tion brook, J., concurring). note, however, supra at 1211 n. 11. We that at circuit, approach ques- least one whose to this United States Postal Serv. v. National 13. But cf. represent was deemed to the "narrower tion Carriers, Ass’n Letter 847 F.2d court, implicitly view” endorsed the Misco Cir.1988) (noting “considerable merit” in the adopted a test which nears this standard. has argument having “a interest in not Serv. v. National Ass’n Letter U.S. Postal postal employees who steal from the mail ... Carriers, (D.C.Cir.1987) F.2d 1241-42 case”). brings to bear on this given (refusing to vacate arbitral award the fact case, Eleventh Circuit's Postal Service legal proscription against reinstatement, that there was "‘no given arbitrator had ordered person griev- such as the procedural rights the reinstatement ant[, employer's violation of certain grievant. the award did not otherwise have the guaranteed a]nd ex- to the Because of the ”) issues, mandating any illegal (quot- dispositive effect of conduct' the circuit istence of other actually ing American Postal Workers Union v. United did not rule on the court question. Serv., (D.C.Cir.1986)), F.2d States Postal object impress upon against the relief ordered the arbi lesson and tates [Rocks] Misco, 374; required that he is to follow 108 at see instructions trator. See perform job fully and Ass’n, his duties and care- Emp. 790 F.2d at also Grasselli statement, fully.” (7th 1986) In the face of this we (refusing 615-16 Cir. to second- judgment are forbidden to substitute our guess giv arbitrator’s reinstatement order susceptibility about Rocks’ to rehabilitation employer’s failure to show that rein en days, opposed or about 120 whether would, itself, public statement violate days, forever, length days, or is the policy). “non-employment” necessary ensure Ordinarily, a court would hard- “object that he learns his lesson.” pressed public policy barring a rein find Bearing empha- in mind what we have in a in which an arbitrator statement case already sized about the character of arbi- has, expressly by implication, deter or awards, trators’ written clear should be employee subject to reha mined that require express that we do not an “find- likely and bilitation therefore to commit ing” grievant or, that a can be rehabilitated in the an act violates court, to borrow from the Misco is other- recognized, As an arbitral future. Misco discipline.” wise supra See “amenabl[e] judgment employee’s “amenability of an at 1210. apply We the same deferential discipline” is a factual determination which review to an award’s statements concern- questioned rejected by cannot be a re ing apply rehabilitation we to other 374; viewing at court. 108 S.Ct. see also aspects of the award. Even if we were to v. National United States Postal Serv. view the reference to rehabilitation Carriers, Ass’n Letter 839 F.2d nothing award as more than an abstract (3d Cir.1988). Judgments spe a about how observation, required we would be to reach employee perform cific will after reinstate infer, the same result. A court cannot given if nothing ment a lesser sanction are from the mere fact that an orders award more than an exercise of the arbitrator’s subject reinstatement is silent on the but authority appropriate broad to determine grievant’s rehabilitation or “amenabili- Misco, punishments and remedies. See 108 ty,” that the arbitrator did not consider the 372; Wheel, Enterprise S.Ct. at 363 U.S. at question; independent nor can it make an (general proposition 80 S.Ct. at 1361 judgment Simply put, a case. such we that courts must allow an arbitrator to use look to the text of the award for arbitral an judgment his “informed ... to reach a fair expression of an arbitrator’s reasons for problem” “especially solution of a true decision, his we do not infer the non-ex- but remedies”); formulating when it comes to particular merely reason istence supra supported by at 1208. This rule is given the award’s silence on a issue. In- significant societal interest the reha deed, Supreme Court has determined bilitation of workers err in the who work set court cannot aside place. employees All of us benefit from silent, which, merely being award far from perform jobs safely properly. who their affirmatively ambiguous, argu- potentially produc All of us suffer when ably supported a that the claim arbitrator relegated tive workers are to the unem authority. Enterprise had exceeded his ployment lines. Wheel, (court Ours is one of the cases of which Misco cannot infer that arbitrator exceeded spoke. merely Le Prohn authority Arbitrator indicated because his award rehabilitated, ambiguous support proposi- stating gives Rocks could be for the then, rehabilitation; tion). “[discipline Unquestionably, is aimed at rein- Arbitrator Le twenty statement with a one-hundred and Prohn’s references to rehabilitation are (120) day suspension should serve as more than sufficient.14 [sic] (on power ground, 14. We need not here the for exam- consider orders reinstatement ple, procedural court to vacate an arbitral award in the case or contractual violation discharge) employer where the arbitrator has concluded that grievant in the course of the subject though grievant's is not to rehabilitation and then even future conduct themselves, policy regulations by courts of decisions two There are applica- wider and of far that, more strict even while both circuits in other appeals other indus- applicable to tion than that proscriptions Grace acknowledging the theory support for this tries. We see or- Misco, arbitrators’ have overturned dealing with cases Eighth two Circuit public policy the ders of reinstatement Electric, plants. In Iowa power nuclear Line Lines v. Air Delta Air grounds. began its discussion Int’l, 671-74 the court 861 F.2d Pilots Ass’n description of federal Cir.1988), a detailed Light Elec. & and Iowa noting that the industry, regulation Bhd. of the Int’l v. Local Union Power of of in “heavily involved Workers, 1427-29 had been government 834 F.2d Elec. construction, Electric, Eighth operation of Cir.1987). planning, In Iowa “a well of plants that there was since the enactment concluded nuclear Circuit policy re- of the Energy dominant national and creation defined and Act Atomic safety adherence to nuclear forerun- quiring Energy strict Commission Atomic [the rules,” to allow Regulatory and refused Id. current Nuclear ner of the power plant em- (NRC) of a nuclear F.2d at reinstatement in 1954.” 834 Commission ] reactor compromised scheme,” had a ployee who regulatory 1428. The “strict for lunch safety system in order to leave observed, “devised Con- had been court finding that early, despite an arbitrator's gress protection for the violation” for this “deliberate termination nuclear radiation.” Id. the hazards of F.2d at a sanction. 834 was “too severe” pervasive was so Federal involvement Delta, the Eleventh Circuit vacat- 1426. In to be “[a]ny violation of had rule[]” reinstating a com- order ed an arbitrator’s NRC, which, turn, in was reported to the pilot had flown his mercial airline who against the facil- penalties issue required to drunk, finding public policy a plane while Eighth ity. Similarly, the other Circuit Id. vacate the order of reinstate- sufficient dealing power nuclear indus- case with the fact that the laws of almost ment from the try, v. Local Daniel Construction Co. government the federal every state and (8th Cir.1988), IBEW, cert. 856 F.2d — operating an aircraft while intoxicat- made U.S.-, denied, illegal. F.2d at 672-74. ed (1989), in- detailed the NRC’s L.Ed.2d 200 setting for nuclear standards cases, volvement reflecting situa- These are “hard” point issuing security even to the plant many people may in which the lives tions of mandato- criteria for the administration directly placed at risk been have would ry psychological tests for those who employees question. Be actions positions plant. within the in “sensitive” that these be may, it to the extent that as not, not, need and do our Id. at 1176. We apply analyses inconsistent with cases unique safety con- whether the Misco, follow determine reading of we decline to regulations and stat- hand, possible it is cerns embodied the other them. On industry power nuclear governing utes Eighth and Eleventh Circuit re- that the public policy to establish a to theo- are sufficient explained reference sults can be employees who Misco, barring which, reinstatement though unaddressed ries merely safety We offer violations. necessarily with it. commit inconsistent are Eighth Cir- possible explanation for the one First, respect Eighth to the Circuit’s with Electric. cuit’s decision Iowa decision, a court is conceivable that vein, Second, although in a similar could, regulatory upon examining the against writing court in Iowa Electric scheme, public policy exists conclude that a explicit agency action with backdrop power industry respect to the nuclear with incidents in respect parties and the has anyone who barring reinstatement repri- explicitly had question. The NRC may It be rea- compromised safety rule. employee’s employer for its infer, manded the careful considera- from a sonable approved the safety reactor scope of the statutes breach of the nature and tion public. continuing safety co-workers or likely pose risk to his “qualified” together, to do so. Taken The vali- discharge. 834 F.2d Delta, Electric, decision and Northwest cases employer’s discharge Iowa dation reasonably appear support spe- a notion that regulator might by the federal “explicit, by regulatory defined cific action or other admin- construed as an well agency might provide expression istrative some form and dominant” “legal precedent” of ad hoc within the applied to the facts of the case. View- perspec- meaning from this of Grace and Misco sufficient to ing the NRC’s actions tive, justify an award on reinstatement award invalidation of grounds.15 might public policy, policy be said to have violated expressed through a albeit the ad hoc one above, Notwithstanding con- we must regard- specific regulatory determination opinion in clude that the Eleventh Circuit’s ing grievant. is, extent, large simply Delta to a inconsist- might explain expressed ent the law as A similar rationale also Grace how, facts, rely particular on its the Eleventh Misco. Eleventh Circuit did not determination, panel alluding reached on the FAA’s to it Circuit’s Delta could have only passing in a at persuasively the result it did and still have footnote. 862 F.2d Instead, apparently conflicting re 668 n. 3. the Delta court reasoned distinguished the (cited that, pilot flying a decision of the D.C. Circuit since what the had done sult of illegal, “performance of the narrow rule drunk was of his in Misco as illustrative employment very thing ultimately approved, 108 S.Ct. at which [was] 7) public policy” reinstatement of a offends and thus reinstate- 369 n. which ordered pilot impermissible. ment was 861 F.2d at 674. commercial airline who had admitted explained, inquiry have critical flying plane his while drunk on several As we underlying v. Air Line not whether the act for which occasions. Northwest Airlines Ass’n, Int’l, 76, (D.C.Cir.1987),employee disciplined F.2d 78-79 violates Pilots — denied, -, policy, public policy there is a t. but whether cer (1988). 1751, barring 100 L.Ed.2d 213 There reinstatement of individual S.Ct. Grace, wrongful important factual difference who has committed a act. is an between Misco, 2183; directly dis at at the two cases relevant to our 461 U.S. at supra at 1212-13. Be- potential significance spe of the cussion public pol being Supreme inconsistent with the agency cific action for individual sides Northwest, In the Fed Court’s determination that it is enforce- icy determinations. (“FAA”) must deemed eral Aviation had ment of the award which Administration following comple public policy, we think the Elev- pilot recertified the violative produce, program. approach would tion of an alcohol rehabilitation enth Circuit’s best, performance represented specific results. If the This recertification curious that, job is all that illegal federal of an act while on conclusion the view of the proved the viola- regulator, pilot qualified was “fit and must be to demonstrate (Indeed, public policy purposes fly.” 808 F.2d at 83. the arbi tion of a Misco, then an arbitrator would in that case had conditioned tration board Grace reinstating any from team- prohibited award on FAA recertifi- be its reinstatement Id.) Delta, speeding receives a ticket while the FAA had sus ster who cation. truck, an in- driving company or even grievant’s license and medical pended the single act of certification, indicating ventory clerk who commits F.2d at 668 n. and Misco do not petty “fit” nor theft.16 Grace that in its view he was neither treatment of this observation Again, emphasize decide 16. The dissent’s we that we do not approach by spe- public policy expressed reveals the fatal limitations can be whether explicitly agency The dissent endorses cases. The advocates. cific action in individual rationale, quoting, interesting even underlin- court’s in the text raise an Delta cases discussed regard. ing, portion Eleventh Circuit question and difficult in this None of answer, reinstating precludes arbitrators provides a clear let the decided cases engage employees "disfavored con- binding who answer those alone one on this circuit. The performance integral they to the question await a duct which is to the raise will have to (Dissent quoting squarely presented. employment duties.” case in which the issue is supports dents” of California which countenance such results.17 public policy neces- specific existence of the which, Returning we to the rationales vacating the award sary justify arbitral suggested, might explain the results in the Cali- in this case. The two sections of Delta, we note that Iowa Electric 1204) (at nei- fornia Code discussed above Rocks’ case does not fit within either one. legal of laws and ther constitute the sort First, repair industry while the automotive expres- precedents necessary for the valid regulated by the we do state and while “explicit, defined and domi- sion of an well improperly not minimize the risk that an sufficiently they nor are nant” injury maintained automobile can cause type problem at the before us. directed others, occupants pow- its the nuclear operate a They do make it unlawful to industry respect unique er both with condition” vehicle “which is in an unsafe magnitude of the risk that results from they do a state bureau to establish negligent employee or reckless conduct and certify repair facilities. inspect and auto comprehensiveness governmental regulations promulgated Violations of the Second, regulation. spe- there has been no in a by the can be sanctioned varie- bureau agency cific determination in Rocks’ case. ty ways, the harshest of which is revoca- never claimed that the Stead Motors has facility’s tion of certification. See Cali- Repair Bureau of Automotive or some oth- 24002; fornia Vehicle Business and Code § regulatory entity sought er has California Professions Code 9884.7. These § right to terminate Rocks' to work as a provisions may signify legislature’s mechanic of his conduct in relation because perception public of a interest in safe broad incident; lug to the bolt nor has it contend- trucks; they repre- as such cars and would agency ed that the has taken action general policy, expres- the sent the state’s against it. us These observations lead “general sup- sion of its consideration of Eighth conclude that the and Eleventh Cir- posed public provisions interests.” The cases, thought provoking, cuit while are of represent precisely what Misco Grace marginal inquiry. at best relevance to our “explicit tell us is insufficient to form an We stand at last before the ultimate policy. public well defined and dominant” question: explicit, is there an well defined 766,103 2183; at S.Ct. at public policy in and dominant California at 373.

that bars reinstatement of a mechanic who important, More there has been no show- commits a reckless act in the course of his ing that Rocks’ reinstatement violates employment? Simply put, we think not. public policy. modify To the borrow Lines, nothing

We have found in the record of language of Aztec Bus “no Califor- case, counsel, arguments in [policy] this the nia has been called to our attention inquiry legal prece- illegal employ the make it our into “laws and would [an Delta, 671.) Nonetheless, (see safety" in health and Dissent at 861 F.2d at when con- interest 1223), "totality examples to the of facts and circum- fronted with two common of the re- look 1223) (p. approach require, the case” and themselves the dissent stances of sults this retreat, appropriate hasty asserting explana- determine whether reinstatement is beats a without punishment is flatly or whether some form of war- approach tion that the Delta "would not totality adoption a ranted. The of such prohibit the reinstatement via arbitration of a teachings violate the (Dissent 1223) circumstances test would speeding truck driver ...” Misco, Trilogy, thirty and the the Steelworkers question The obvious raised this assertion is between, by making judges years of cases in driving why truck drivers —whose reckless en- factfinders, indeed, arbitral the masters safety dangers the of all who drive the roads— (as Supreme reinstated, process in which Court has can be while mechanics —whose er- past repeatedly emphasized three dec- over the indistinguishable pose rant actions risks to ades) strictly judicial limited role must be Assuming highways those on the —cannot. one. really lay the dissent does not intend to down excep- auto mechanic rule but a truck driver an tion, note, however, something relationship appears far it that it envisions 17. We that the Delta, employee’s job beyond namely system any alleged in which the miscreance to the courts, lawyer important to consid- rather “non arbitrators” factor for the arbitrator than the remedy. assessing propriety who cannot to “vindicate the er when be trusted Although perspective, one previously neous. from who auto [com- mechanic] h[as] quarrel judge hon- 654 F.2d at 644. one cannot with a who mitted a reckless act].” reject employee explained supra estly we that a reinstated As we believes that, future, approach may explic- of the Eleventh Circuit be reckless Misco employee simply upsetting because an has committed itly advises that act which violates law or ground impermissible, some award on this employment, of his judge’s the course however laudable motivation. necessarily vio- would also strictly engaging reinstatement are Courts barred argument is public policy. late that This fact-finding they when review arbi- labor fallacious, reflecting precisely the an- Again paraphrase, tration awards. alytical argument Motors’ error Stead time Misco: here, only grievant likely if the it is the arbitrator Had found that Rocks had engage wrongful conduct which vio- improperly tightening reckless in been public policy in the future that his lates bolts, lug yet imposed discipline short pub- could be said to violate reinstatement discharge he found as a factu- because If policy. lic we assume the existence al matter that he could trusted not to posited by original public policy future, Appeals do so in the panel’s opinion, may be true Rocks’ upset could not the award of its because past. But conduct ran afoul of it we own view that about auto- would, if are not free to assume that Rocks safety mobile was threatened. disciplined, run afoul of it in appropriately at 374. emphasized As we have the future. parties bargain did not for a court’s throughout, it is the function of arbitra- judgment. They bargained for an arbitra- courts, tor, to make assessments “just tor to tell them what was cause” for respect appropriate punishments discharge doing, and what was not. so the likelihood of rehabili- and to determine they resolving a method their chose dif- judgment tation—a about whether definitively interpreting ferences and their engage wrongdoing, in grievant will future bargain. Each side obtained certain advan- 1208-09, 1211, re- 1212-13. With supra at arrangement. tages from the Neither had here, we consider we spect to the award right that it could refuse to believe Arbitrator Le already made clear that have simply honor an arbitrator’s award because the issue of conclusively determined Prohn disappointed by disagreed it was or with favor. in Rocks’ rehabilitation particular We find the result a case. expla- possible are two alternative There everything par- that the arbitrator did for the result reached the dis- nations do; nothing requested him to he did ties First, illegitimate. trict court. Both are more, nothing illegal he did was or might court have concluded district policy. inquiry goes no violated Our that the arbitrator’s decision favor further. insufficient, day suspension was as a and REMANDED with in- REVERSED matter, punish a once-reck- retributive the award. structions to confirm gen- employee sufficiently and that the less ostensibly identi- eral it had articulate, (but 5) TROTT, dissenting, n. supra Judge,

fied did not Circuit only through Judge the ultimate could be served which dissent Circuit NOONAN sanction, employee termination. To the ex- concurs: this, second-guessing,

tent that or similar Judge scholarly opinion Reinhardt’s court, the district we must reit- motivated provides an excellent review impressive. It erate, time, for the final that if the now case, governing the law this as well as improperly. court so acted it acted But, respectful policies my at stake. view, Second, a correct numbers possible it is that the court felt like column of line is suspen- up improperly, added the bottom that the arbitrator’s belief wrong. was erro- sion would teach Rocks a lesson remaining bolts fall off. The I bolts to opinion, first read the could

When I almost so loose that the wheel came an incident that help be reminded of but driving came off while this owner year of Hawaii a off the coast occurred speeds in San Francisco. highway off an Aloha ago. Part of the skin so blew brought gross negligence was flight, exposing the crew and Airliner in Your re- after this owner to our attention possibility crash passengers to replace the turned to us so we could almost certain death. landing at sea and missing lug bolts. fuselage out of the person was sucked One in- Incredibly, pilots pulled September and killed. the two Grievant was Shop Fore- miracle, seriously crippled argument landing volved an off concerning proper The man Alan Banks further incident. two aircraft without tightening lug bolts procedure for pilots shortly thereafter were interviewed put on a when tires are back vehicle. morning as heroes on one of the network Following dispute, ad- Grievant was I them de- television shows. As watched abso- Shop vised Foreman had death, I was as- their brush with scribe authority policy, lute to determine professional de- by their cool tounded disregard was not authorized to Grievant meanor, amazing skill. as their as well foreman, shop from the instructions else, But, I al- anything will as much required that he was to mount and “tor- ways response of one remember que” instructed. the wheels as inter- pilots asked at the when end precipitated The which ter- incident pas- any advice for airline view if she had 14, 1985. mination occurred on October She sengers experience. as a result of this date, performed Grievant certain On said, keep “Just remember smiled and work, repair including replacement your seat belts fastened.” required pads brake the removal only good ad- pilot’s remark is not wheels, of the front on a vehicle owned but it is now passengers, vice for airline Em- Richard Diebert. The customer of Stead Motors good advice for customers ployer’s work order reflects that Griev- who drive on the for other motorists only employee ant was the who worked Costa with them Contra same streets subject completed on the vehicle. He Why? Because this County, California. p.m. work at about 1:00 and Diebert position today reinstates to the same court up resi- picked the car and drove mechanic which he was auto fired miles, dence, distance of about ten a doubt demonstrated without who has p.m. about 4:00 that he and obstinate conduct his reckless thereafter, Shortly Diebert called Shee- tightly affix wheels propensity a not to has reported that in the han and course for safe depend cars that on them to the “very heavy” driving home he noted a and, injury, he to add insult to passage; in the front end of the car. vibration partial with back ordered reinstated was immediately dispatched employ- Sheehan pay. Lyons the home to ee Joe to Diebert surrounding and circumstances The facts inspect Lyons the vehicle. discovered which he re- Rocks’ activities—for Gale lug the left front bolts on four de- accept responsibility to fused fifth miss- wheel were loose and the —are was Opinion in and scribed the arbitrator his addition, lug were ing; in three bolts 3, 1986 as follows: Award dated November Lyons right front wheel. loose on 10, 1984, received On October Grievant the loose bolts re- tightened all of and use in- warning missing Shop for to basic one. foreman placed “[failure] safety procedures”. subsequently inspected dustry-wide Brad Gibson facility possible pertinent part Employer’s as fol- warning stated car at the was damage any parts damage but no to lows: identified. tire, installing the left rear ... After investigating mat- lug In course of this you properly tighten failed to ter, appeared that it noted Sheehan bolts which caused all but Employer. to the In all of the thereof was order that Grievant the work record, Diebert’s disclosed in this employee who worked on circumstances only the matter with tighten lug he discussed bolts vehicle and failure to Grievant’s asserted that he employee. 14, 1985, Grievant reckless- constituted on October respon- he was “accept” that could not discipline pursuant ness which warranted made the problem. Sheehan sible for Agreement. 5.02 Section and issued terminate Grievant decision to which stated dated October 15 a letter addition, hearing, at the arbitration part as follows: pertinent unduly and argumentative was Grievant you given were On October repeatedly justify and attempted he reason, same warning letter for this did not excuse his conduct. His behavior being left loose. wheels assist his cause. occurrence, latest Stead Due to this No the district court refused to wonder longer assume liabil- Motors can no one travesty. sanction this It would be ex- your actions. You were ity for get thing parties for the themselves your re- tremely performing remiss agree such an together privately and is tantamount sponsibilities which result, it is alto- unpalatable but another Paragraph 5.02 under recklessness put impri- its gether for a federal court to Your con- present Union Contract. matur on such a disaster. compromised reputa- only not duct Motors but liability and of Stead tion attempts un- Judge Reinhardt’s and welfare jeopardized the health also convincingly to cast this matter as involv- In accord- safety of Mr. Diebert. and errant ing only the “reinstatement” of an we must exer- with this section ance employee. accept I this decline crabbed you for option to terminate cise our of what is incomplete characterization recklessness. case. We are confronted at stake explained the ba- hearing, At Sheehan reinstatement, just a case of but with penalty as fol- the termination sis of demonstrably reck- reinstatement of a 1) experienced lows: Grievant job that mechanic to a less and obstinate warning received a problem same Mr. Rocks requires and care. When skill 2) had con- year previously; Grievant job properly, wheels on not do his does supervi- working with problems tinual enough to send moving vehicles loosen attitude); 3) (i.e. Griev- sion control, endangering careening out of them “reckless” as de- ant’s conduct was explains Califor- process. This life Dictionary and the fined in Webster’s opera- unsafe against the prohibition nia’s liability exposure Employer great had Code: vehicles its Vehicle tion of motor repeated and conduct was if such kill. injure cars unsafe injured.... Sheehan someone see the reinstatement respectfully I gave he “sub- testified that further violating job to his old Gale Rocks expo- weight liability stantial” policy expressed clear and dominant sure factor. of Cali- precedent by the State in law and Opin- of his section In the “Discussion” road-worthy automobiles in favor of fornia Award, made these the arbitrator ion and against highways, the and safety on and findings and observations: additional mainte- automotive dangerously reckless However, person is made when in especially by those repair, nance and consequences of the the serious aware of business; thusly for two I and view it, repeats the and nevertheless mistake reasons. suggests an indiffer- repeated behavior who First, Judge Noonan agree I with Here, consequences. to those ence case: original panel in this for the wrote this requirements of knew the Grievant a “well de- in There exists California He knew of job function. also particular regard- fined and dominant” safety to life and potential danger the maintenance. safety and ing consequences automobile financial potential and liability to for attempted court avoid pro- she Code Vehicle § California to by shifting the blame her damage vides: responsible for mechanic who any vehicle or operate to It is unlawful hydraulic hose faulty installation inis vehicles which an of combination refusing release her ruptured. unsafe condition.... Traynor de- liability, Chief Justice from of California is, Supreme Court There very explicit the law California scribed recognition said, legislative “express has Judge passage that from this terms. It is improperly maintained of the fact exerpt: Noonan selected grave ‘a risk of threaten motor vehicles ” the Restatement Second 423 of Section or Malo bodily harm death.’ serious carries that “one who Torts provides Rath, 71 Cal. 69 Cal.2d ney v. grave activity which threatens on an (1968) 897, 900, 445 P.2d Rptr. death un- bodily or risk of serious harm C.J.), quoting Restatement (Traynor, used are the instrumentalities care- less (Section) 423. of Torts § * * * maintained, employs fully who and improper main- the risk of To minimize * * * main- independent contractor an tenance, established the legislature instrumentalities, subject is tain such Repair of Automobile Bureau California liability physical for harm the same & Prof.Code 1971. Cal.Bus. § negligence of the by the contrac- caused “inquire into authorized to Bureau * * * maintaining such instrumen- tor in the automo- policies of practice and though employer had him- talities make such ... and repair tive industries * * * the work mainte- self done respect to such recommendations provides that “One nance.” Section may functions as practices and policies, reg- or bywho administrative statute necessary by important and be deemed speci- duty provide is under a ulation con- for welfare Bureau precautions for the or safeguards fied repair suming public and the automobile liability subject to safety of others is The Bu- industry.” at 9882.13. Id. § duty protection for whose the others to establish authorized reau is further by the fail- imposed for harm caused standards, repair general vehicle motor employed by him to ure of a contractor repair facili- for certification rules safeguards precautions.” or provide such (including qualifications), mechanics’ ties point to a nondele- Both of these sections in- program to inspection and an on-site duty statutory case. The gable standards of compliance with the sure regulating maintenance provisions 9889.33, 9889.39. Id. certification. § § consti- equipment automobiles regulations are rules and The Bureau’s recognition express legislative tute Code, Title Cal.Admin. codified in improperly maintained the fact seq. et. §§ risk grave threaten “a motor vehicles repair- may No one automobile bodily harm or death.” The serious registered in unless dealer California minimizing risk or responsibility Bureau. Id. with law the accordance so for the to do compensating failure may invalidate The Bureau 9884.6. § person who properly rests with owns the dealer if it finds that registration party vehicle. He is the operates the has been any employee of dealer use; by its he primarily to be benefited negligence. Id. 9884.7. guilty gross § is free to insist contractor and selects the kept Rocks could have Stead Motors financially responsible upon one who Id. 9884.6. stayed in business. § him; indemnity demand 843 F.2d at 359. liability insurance distrib- cost of his properly attributable to Rath, utes the risk defendant was the Maloney activities; discharge and the his a serious a car caused the driver of of in the care duty to reasonable Because exercise defective brakes. due to accident vehicle is his to know maintenance nor had reason she neither knew of (See public. failed, importance to the they utmost were defective until the brakes

1221 conduct, clearly explicitly established supra, 68 Hollinger, Arsdale v. Van laws, require- people in their 245], 66 Cal. 249, Cal.2d 257 A.C. [68 employer suffer that mal- authorities ment that the P.2d 508 and Rptr. 437 discharge the of- cited.) performance and not violate the same well fender does itself undisputed present case it is In the public policy. established by a failure caused the accident was that resulted defendant’s brakes at 674. Id. negligence independent her contractor’s turn disheartening It to see this court inspecting in overhauling in thereafter Light & its on Delta and Iowa Elec. back duty to maintain her the brakes. Since Local the Int’l Power Co. v. Union 201/.of provi- compliance her brakes Workers, (8th F.2d 1424 Elec. 834 Bhd. of nondelega- sions of the Vehicle Code Cir.1987). repudiation This illustrates how ble, failure was fact that the brake narrowly public circuit now views the this independent contrac- the result of her Supreme policy exception reaffirmed (Empha- negligence is no defense. tor’s v. Rubber Court W.R. Grace & Co. added). sis 757, 766, Workers, 103 900-01, Cal.Rptr. at at 69 Cal.2d (1983). I term L.Ed.2d 298 use the P.2d at 516-17. ap- “narrowly” advisedly because it would key ques- only this answer Not does in this chokes the pear that the result case policy, about California’s tions in this case “public policy” exception sepultus —hie very case, news for customers it is also bad but If it survives this it —into oblivion. get Rocks as who will Gale of Stead Motors only. survives name mechanic. a brake enlight- A of the facts in Delta is review Second, agree analysis with the I case, ening. In that the Pilot-in-Command Lines, Inc. v. Air Judge Hill in Delta Air a commercial airliner flew while drunk Int’l., (11th F.2d 665 Line Pilots Assn. passengers on scheduled filled with Cir.1988), denied, F.2d 1431 reh’g personally from take- flight, and he flew Cir.1989): landing. His misconduct was discov- off to above, requires the find- understandably Misco dis- ered,

As noted he was policy and an ing public grieved defined days pilot of a well The charged five later. policy. conflicts with that discharge. award that The Air Line unsuccessfully his Supreme Association, pi- The of which asserting that Pilots “[the to be a speaks in Misco seems not a while drunk was flying ... lot’s] addressing the policy not disfa- public discharge, submitted sufficient cause conduct, abstract, but disfa- Board,” vored System to the id. dispute integral to the vored conduct which is he should be ruled 3-2 that duties. employment 'performance hand, As in the case reinstated. instructed, by are Mis- question The we the arbitrator’s court overturned district not, co, there a to ask is “Is public policy, and decision as violative conduct?”, but, employee’s against Appeals af- Eleventh Circuit Court poli- rather, “Does an established in this about it: Make no mistake firmed. employ- performance of cy condemn the prob- most courts would circuit the federal engaged in in manner activities ment that Delta Airlines seen to it ably have policy does employee?” Such a by the pilot permit have been forced finding case; the arbitrator’s exist this Delta cockpit of another to return to explicitly conflicts with just cause of no airliner. policy. ap- Judge Reinhardt’s application Id. at 671. Iowa the facts of case to proach re- equally troublesome yields an

Electric plant case, power a nuclear sult. In that employ- person performs Where the leave the area hurry so, employee and, doing violates duties ment —in discon- foreman to go to lunch—ordered standards, and restrictions restraints here, view takes the how- doorway designed hardt’s on a safety device nect a by on ever, relied from harmful radia- the material that protect public to explicit, for this mis- being terminated form an After to panel tion. is insufficient Delta, in was conduct, he, pilot respect, like I well-defined, With public policy. arbitrator. The reinstated ordered ignores It unpersuasive. find view this however, court, overturned the ar- district word, it and meaning of the written clear incompatible public order as bitrator’s purpose of Cali- slights the unmistakable concerns, Eighth Circuit safety pre- laws, only a suggesting that fornia’s circuit Appeals affirmed. this Court law caused positive cise violation been likely would have employee most that meet the suffice to itself would the award work, job, nu- same same back to ordered question left test—a Supreme Court’s facility. clear at 374 n. Id. 108 S.Ct. undecided Misco. off opinion brushes Judge Reinhardt's Judge Rein- It is difficult to read 12.1 “thought pro- as and Iowa Electric Delta however, coming without opinion, hardt’s arisen cases would have voking.” If those have now answer- the conclusion that we to circuit, might have been results in this circuit, in this without ex- question ed hair-raising. results The nothing less than so; closed saying we have pressly that similar cases do hair-raising when will be complaints permanently to that our door’s governed and are arise in this circuit poli- “public award violates an arbitrator’s observation today’s opinion. The bromidic clearly violates cy” the award itself unless us when all of suffer of the court that approach to statutory prohibition. The rele- productive workers are potentially treatment of Delta and this case and the scarcely re- gated unemployment are to such Iowa Electric tantamount safety em- public sponse to the threat opin- Although Reinhardt’s holding. Judge majority opinion. bodied hope that to hold out an- ion seems some eye. of an happen in the blink Accidents reach way could other be found nowhere, sinking Danger appears out of cases, respectfully I in those same result sending cars planes, and ships, downing to an these dicta amount illu- believe to these defense out of control. Our best sion. bags and is not air inescapable perils of life opinion does Judge Reinhardt’s to- What attentive, belts, trustworthy hu- seat but reinstating rejecting day Gale Rocks Aloha pilots of beings, such as the man Delta and Iowa Electric rationale like who millions them Airliner and the question seri- provides sufficient reason I done. do not jobs well pride take positive ously utility of a law restrictive arbitration, a con- believe deference A more rational test. somewhat broader wholeheartedly agree, I cept with which analysis and in- grounded on approach retains the judiciary all suffers at if by “law and judgment formed bounds keep within the right to arbitrators —confined in that more sense it precedent” I think that Misco policy; nor do —makes exception policy excessively gives “hands-off” life to compels the suffocating beyond resuscita- today this circuit. than adopted rather and Iowa The results Delta Elec- tion. the Court main defect Misco’s inappropriately upon the not trench tric do its views of improperly based Appeals disputes by policy settling labor federal considerations of “general arbitration, termination nor would the interests,” not “laws supposed public from Iowa Elec- To Gale Rocks. borrow required by W.R. legal precedents” “ longer trusted tric, no to be ‘He is This Misco, at 373-74. 108 S.Ct. Grace. when a critical environment work in such by Judge Noonan made mistake was not safety implica- for the respect no Judge he Rein- shows three-judge panel. and the safety] pose threat Misco, [to a serious com- Supreme [he] every job took some 1. In qualified.” permitted for which he was provision award that fort in the for such comfort There is no room equiva- at 374. to a different the worker’s reinstatement job gets back. his old Mr. Rocks here: job, stating not "clear ... that it was lent lunch, patient had she found the willing and when he is back from his actions tions of breathing problems. supervi- The the serious safety the of jeopardize to omitted). (citation tried to find out what medication sor F.2d at 1429 taking patient normally be and would and approach adopted Delta Iowa The directly what medication asked Nurse S. flatly prohibit not the rein- Electric would claimed at given she had him. Nurse S. speeding of a via arbitration statement hearing “that the excite- the arbitration suppose petty or a thief. To truck driver emergency she had ment of the medical they again an that follows that do is error forgotten the medication error.” about casting this is- trap narrowly of from the patient later the was of All a Less than an hour only sue as one reinstatement. arrest with convulsions approach respiratory does is to insure that broader per- stopped breathing. had A half dozen courts would not find their hands federal including him sons worked to resuscitate magic word “reinstatement” tied report the point a reinstate- Nurse S. At no did she by an arbitrator if such uttered Only him ment, totality of facts and medication she had let have. on the based revived, case, patient day, violate an next when the had did circumstances defined, question respond she to a from a doctor explicit, and dominant well information safety policy or the who had about health and state obtained patient from the himself. The government. the medicine federal hospital that “it would be concluded not suggestion that I am not moved keep safe to her environ- [Nurse S.] lives of a single driver or the the life of discharged. ment.” She was are less family passenger car somehow extremely pas- The found this “an airplane than the lives of arbitrator significant say He in the vicini- difficult went on people who live case.” sengers or appalling “committed an facility. life is as Nurse S. error ty nuclear One patient care.” The arbitrator also ob- many, I do not precious as believe seriously served that S. should “be demands otherwise. Certain- Nurse report power failing formally for faulted ly, crashes nuclear airplane there was a serious by incident” and that command more attention plant disasters question as to whether the failure “was single fatal media than a automobile There was no collision, inadvertent deliberate.” or but that should define Moreover, failure “a serious it is com- doubt this was breach law. reach of federal patient care.” She had also made serious pas- knowledge that more automobile mon the other going to lunch before passen- error sengers per year die than airline floor. The arbi- plants nurse had returned to her power nuclear gers neighbors of just there was no combined; pas- trator concluded single out-of-eontrol and a discharge. Valley for In re Ohio cause can kill an entire busload senger car (1982). Association, 79 L.A. 929 Hospital children. school now in this would be final His decision problem that occurs not a minor This is might just cause circuit. There in these only infrequently. Arbitration kind elderly worry about the and infirm common, and as I very kinds cases is get where fed- nursing they would care show, results are not have tried approve courts such reinstatement. eral example always comforting. To take one Watson, care, Or, we do with Warren area, what do medical from another Georgia company employee power case, put medi- Nurse S. an actual use reading gauges and responsible for meters on his patient for the intended cine not prevent overheating designed it while patient took table. over-bed he pressure equipment? When failed high she was turned. When back nurse’s drug and was discovered to be badly a test gone she told the medicine discovered user, drug he was fired as heavy chronic you a going hurt “I know if it is him don’t accommodating an safety But arbi- no a risk. you.” told keep eye She we’ll but to his his reinstatement trator ordered When she came the mistake. one about for- returning Mr. Rocks to his facility, and in of Gail Rocks. For- position. Shades mer co-workers, safely attaching wheels responsibility the federal dis- for his tunately for order, remarking passenger at this vehicles. trict court balked subject that, things, it could among other I affirm the district court. liability damages for employer to Watson’s drug use. by Watson’s future caused WALLACE, Judge, joined Circuit IBEW, 84, Local Georgia v. Power Co. and Judges ALARCON Circuit (N.D.Ga.1989). F.Supp. 531 O’SCANNLAIN, joined by Chief and technician, either intoxi- suppose I a lab part only, in I Judge GOODWIN lunch, hurry get to who cated or in a dissenting in concurring part in and recklessly introduced AIDS-contaminated part: supply of blood maintained blood into our agree plurality’s conclusion I with the transfusion would purposes of medical district court’s that we must reverse the in beyond reach of the law this also be order, partially the arbitral vacated arbitrator, non-lawyer if a beholden circuit demonstrates, plurality award. As the parties than the to no one other has failed to meet the first Stead Motors decided to cut the question, contract requirement threshold identified United offender back to baby put in half and Union, Paperworkers International unrepre- same is true of other work. The 29, Misco, Inc., 484 U.S. AFL-CIO force, in our labor such sentative workers 364, (1987) (Misco). 98 L.Ed.2d 286 engineer of a as the occasional inebriated plurality op. at 1216. Stead Motors See train, deliberately pilot indifferent has not demonstrated the existence of a goes around ocean-going tanker that defined, dominant, explicit public and well spills gallons millions of of crude oil California, sufficiently policy grounded waterways, and into our oceans and inland legal precedents” rather than “laws and officer who exceeds the law enforcement “general supposed pub- considerations pris- authority and abuses a and beats interests,” lic with which this arbitral If an uses the word “rein- oner. arbitrator Misco, award could conflict. 108 S.Ct. at statement,” in this cir- the federal courts case, go no 373-74. To decide we need helpless any- next to to do cuit are now separately further. I write because the kryptonite thing it. A new form about plurality ground that reaches out to cover impotent that renders us has been invented necessary is neither nor desirable. interest in health public to vindicate general amounts to a safety. What I favoring reinstatement —which is policy entirely Supreme explicitly recog Court first committed arbitrators —now exception “public policy” exception public policy nized the en trumps the keep jurisdiction to forcement of labor arbitration awards in ousts us of our 759, playing field.2 players appropriate on the W.R. Grace & Co. v. Local Union analogy perfect, far from it U.S. 103 S.Ct. 76 L.Ed.2d 298 Although the (1983) (W.R. Grace). pumping declaring in a After me as curious that strikes question ultimately hospital of the stomach of a “the by a doctor courts,” swallowing nar- one for resolution drug suspected dealer bargaining if of the federal stated that the collective cotics shocks the conscience courts,3 serenely sanguine agreement interpreted by yet we are about arbitrator dangerous pilot explicit in his arbitral award “violates some complicity putting our public policy, obliged we cockpit of a commercial airlin- are to refrain back into the er, enforcing into a nuclear from it.” Id. at 103 S.Ct. at a reckless worker back against "general California, Rochin v. 72 S.Ct. reliance on 3. 2. Misco counsels supposed (1951). interests.” considerations 96 L.Ed. 183 describe the at 373. Does this not majority's description use of “reinstate- ment”? omitted). However, (citations policy “gleaned cannot be from two [the] sections of the California Code” cited Court cautioned “[s]uch dominant, 1204; Id. see also id. well defined and and Stead Motors. ... must be ‘by party seeking ascertained reference to 1216. As the to have the vacated, legal precedents laws and and not award Stead Motors bears the bur- outset, general supposed demonstrating, considerations of den of at the the ” Id,., defined, quoting Muschany existence of a interests.’ well dominant and States, 49, 66, explicit public policy sufficiently United which is 442, 451, (1945). legal precedents rooted in 89 L.Ed. laws rather general supposed than in considerations of the Court Misco articu- recently, More agree plurality interests. I with the requirements lated two “threshold” that Stead Motors has not carried this bur- may a court refuse to must met before den. This end should the case. public pol- an award on enforce arbitrator’s least, alleged icy grounds: very “At the an II properly public policy must be framed un- Grace, set out W.R. approach der the Unfortunately, plurality the is not con- and the violation policy of such a must be stop step tent to on the first of Misco’s clearly shown if an award is not to be Instead, off on two ad- goes threshold. it Misco, (em- enforced.” 108 S.Ct. at 373-74 ditional (1) grounds: has Stead Motors added). require- phasis The first threshold “clearly shown” that Rocks’s reinstatement “framing” public poli- proper the improperly would violate Stead Motors’s ment — under W.R. Grace —itself cy has two com- public policy, (2) framed any rate the (1) ponents: purported policy the must be factual (judged arbitrator’s determination (2) defined, explicit, well dominant and according newly to a created rule of con- policy grounded must be in “laws and struction) amenability of Rocks’s to disci- legal precedents” “general rather than pline second-guessed by cannot be supposed public considerations of inter- view, my court. In we need not and should Grace, ests.” W.R. not reach these issues to decide the case. S.Ct. at 2183. Reaching ground especially the last un- plurality’s analysis fortunate because the conclude, plurality, I with the that be- of how courts should review an arbitrator’s cause Stead Motors’s formulation of the “finding” discharged regarding a worker’s public policy at stake fails to meet Misco’s amenability discipline wrong. to requirement, first threshold we must re- original panel accepted plurality verse. The Stead constructs a formidable alleged Motors’s invocation of California’s rule of deference to an arbitrator’s “deter- “strong public policy favoring proper regarding discharged minations” workers’ repair amenability discipline. accomplishes maintenance and of motor vehicles.” to It First, Applying requirement steps. first threshold it three distills from Misco, plurality concluding paragraph majority under holds “[w]e Misco nothing opinion principle have found in the record of this that an arbi- case, counsel, arguments findings” regarding or in our trator’s “factual amen- legal discipline inquiry precedents’ ability judi- into the ‘laws and to are immune from cial review. See supports plurality op. of California which the existence at 1212-13. Second, specific public policy necessary potent rule of con- formulates justify vacating the award in this need not an arbitral struction: arbitrators make op. Plurality plurality express finding discharged case.” at 1216. The worker is id. at 1213. In See discipline. reasons that the two sections of the Califor- amenable fact, according plurality, identified Motors do not if an nia Code Stead arbi- legal prece- “constitute the sort of laws and tral award which orders reinstatement silent amenability discipline, necessary expression regarding dents for the valid ‘explicit, pub- well defined and dominant’ court cannot infer ... that the arbitra- “[a] words, Id. policy.” In question; lic other such tor did not consider the nor can it that it is does the fact problems. Nor judgment in such a independent make an pub- violation of possible into a Instead, inquiring at 1213. court case.” Id. doing the a court lic excuse partic- cannot “infer non-existence If facts additional task. the award’s si- merely from ular reason found, the arbitrator should to be were Id. other given issue.” lence on further them in the course says find words, expressly unless arbitrator might have Company made effort the making a determination of that he is not having had mari- discharge Cooper for (and what amenability discipline arbitra- premises. company juana in his car plurality tor do so if Cooper found that Had the arbitrator law?), presume must courts were the yet drugs property, on the possessed had a determination made. such discharge imposed discipline short of be- plurality finally, Third and concludes: matter that he found as a factual hard-pressed cause would be “Ordinarily, a court trusted not to use them Cooper could be barring public policy a reinstate- to find could has, job, Appeals the of on the Court in an arbitrator in a case which ment upset the award of its own because by implication, determined expressly or plant safety public policy that about subject view employee to rehabilita- that the is In this connection likely an threatened. to commit was and therefore not tion that the award or- should also be noted policy in the public violates fu- act which in Cooper be reinstated his old analysis wrong dered at 1212. This ture.” Id. equivalent in an one for which he job or reasons. for several by clear qualified. It is no means was majori- the concluding paragraph of The pose Cooper that from the record support provides weak ty opinion in Misco serious to the asserted threat amenability discipline plurality’s for the every job in he was with, paragraph begin the analysis. To qualified. arguments if” composed of “even several omitted) (footnotes (empha- 108 S.Ct. at 374 necessary to the Court’s which are not added). sis only at 374. Not decision. See S.Ct. dicta, primary its focus inference paragraph type the but The of involved factual in nature the one before factual different was is on a inference Misco different Misco, focusing on by plurality: the us. In Court was from that seized on finding appeals’s of factual or Cooper, the the court inference that because dis- Cooper possessed worker, inference that charged possessed drugs on com- because necessarily them be- drugs drugs, he would use likely he to use pany property, was dangerous machinery. operating Coo- machinery. fore dangerous operating before possess drugs on per had been found paragraph: Here is the full property. finding There was no company event, inappropriate for it was drugs operated he had ever used Appeals itself to draw the Court machinery under the influence of while necessary To conclude from inference. finding by drugs. Nor was there a marijuana had the fact that been found Cooper likely or unlike- arbitrator Cooper Cooper’s car that had ever drugs operate use or to ly in the future to influence of or would be under the been dangerous machinery while under their in- job marijuana while was on the he best, amenability At to disci- fluence. dangerous machinery is an ex- operating only part pline point was a small factfinding Cooper’s use about ercise larger factual inference discussed amenability and his to disci- drugs paragraph. in this Misco’s final Court authority task exceeds the pline, a paragraph, composed of dicta and focused an asked to overturn arbitra- of a court inference, factual a different kind of bargain parties The did not tion award. extremely support weak for the provides court, found but for the facts to be expansive approach. plurality’s by them who by an arbitrator chosen had Moreover, inconsistency Cooper is an be- opportunity to observe there more concluding paragraph and plant and its tween Misco’s to be familiar with contrast, By deciding whether to in Mis- vacate plurality’s approach. appeals court of hav- disapproved of the arbitral award because it conflicts co made fac- ing drawn factual inferences or policy, actually “is a court concerned by the arbitrator. findings not made tual enforcing with the its lawfulness of additional The Court observed “[i]f award and not with the correctness found, were to the arbitrator facts decision.” International Un- them_” (emphasis add- find Id. should ion, Automobile, Aerospace Ag-& United reflecting ed). reading By silence Implement ricultural Workers Amer- plu- finding amenability discipline, Co., ica Local 985 v. W.M. Chace rality accomplishes through a rule of con- (E.D.Mich.1966) F.Supp. (emphasis struction what the dicta in Misco forbids. Misco, original); at 373 see also assertion, Contrary plurality its policy exception (public “derives from the straight merely embody does not basic notion that no court will lend its aid application forward and noncontroversial upon to one who founds a cause of action construing general principles for arbi- act.”). illegal an immoral or Because a tral awards announced in the Steelworkers court, considering whether to vacate an 1207-1209, plurality op. at Trilogy. See reasons, award for is not re- with, begin 1213: To the rules announced considering already a decision made v. En America United Steelworkers of is, substituting is not arbitrator —that its 593, Corp., 363 U.S. terprise Wheel & Car judgment for the arbitrator’s on an issue (1960), 1358, 4 L.Ed.2d 1424 are parties bargained on which the for the arbi- involving public applicable not to cases judgment Enterprise trator’s Wheel If, establishes, policy exception. as Misco —the “ principles apply. do not public policy ultimately question ‘the is ” courts,’ by the 108 one for resolution addition, In I fail to see how we can 373, Grace, 461 U.S. quoting S.Ct. at W.R. square plurality’s rule of construction 766, 2183, public 103 at then the S.Ct. “ teaching question ‘the with Misco ’s just exception policy exception is that: an public policy ultimately one for resolu- Wheel’s, deferential rules Enterprise ” tion the courts.’ 108 S.Ct. at reviewing awards. Several of arbitral Grace, quoting 461 U.S. at W.R. past our decisions have so held. Sheet plurality’s I believe that the 2183. Association, Metal Workers International relegates, rule of construction under cer- Local No. 359 v. Arizona Mechanical & circumstances, question public tain Inc., Stainless, 863 F.2d Cir. policy to the If the asserted arbitrator. (after 1988) summarizing deferential En potentially threatened policy is one terprise principles, stating that Wheel conduct, plurality’s worker’s future “[o]nly actual when the arbitrator’s award upon the rule would confer arbitrator ly any explicit, violates the law or well-de power to determine in effect unreviewable public policy, fined and dominant is defer violates inappropriate.”); George Day ence whether the reinstatement Con v. Brotherhood struction Co. United I concerned the mischief policy. am about America, Carpenters & Local Joiners party rule create where a dem- this would (9th Cir.1984) 722 F.2d defined, onstrated the existence of a well (same). Enterprise Wheel did not involve explicit public policy which dominant and policy exception; involved award, clearly conflicted with the arbitral a labor arbitrator had exceeded whether the worker amena- yet the arbitrator found scope power under the collective of his discipline. ble bargaining agreement. question is a This plurality’s “amenability to disci- made, interpretation of contractual pline” unnecessary to our de- discussion Thus, instance, by the first arbitrator. cision, unwise, by the final unwarranted being Enterprise Wheel Misco, wrong. Since paragraph judgment for the asked to substitute its already exists another reason to re- there par on an issue on which the verse, we need not and should not address bargained ties had for the arbitrator’s meaning problematic of the contract. one well. judgment: III plurality’s

Lastly, I am troubled hypothetical

extended discussion Lines, Air v.

grounds on which Delta Inc. Association, Internation-

Air Line Pilots (11th Cir.1988),

al, 861 and Iowa F.2d Light

Electric & Power Co. Local Un- (8th Cir.1987), 204, 834 F.2d 1424

ion decided, explana- and its

“could have” been why

tion of these invented rationales change the outcome of this case.

not See discussion

plurality op. at 1214-16. This primary, unnecessary since our stated following these two cases

reason for not they

is that misread Misco. Both cases

erroneously focus on whether discharged past

conflicts with the worker’s instead of with the arbitral

conduct addition, at 1215-16. id. award. See first re- both cases Misco’s threshold it is At

quirement is met—here not.

rate, plurality since the itself ac-

knowledges extraneous remarks on that its dicta, are Electric see id.

Delta Iowa formally n. I

at 1215 need dissent

from this discussion. HOLLYWOOD,

Marian

Plaintiff-Appellant, MARIA; Dorothy Ly-

CITY SANTA OF Maramonte; man; Wayne Michael A.

Schwammel, Defendants-Appellees.

(Two Cases) 87-6455,

Nos. 89-55350. Appeals, Court of

United States

Ninth Circuit. Motions

Submitted to Panel 12, 1989 *.

June Oct.

Decided * 34(a). panel appropriate Fed.R.App.P. finds this case for submis- Circuit Rule 34-4 and argument pursuant sion without oral to Ninth

Case Details

Case Name: Stead Motors of Walnut Creek v. Automotive MacHinists Lodge No. 1173, International Association of MacHinists and Aerospace Workers

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 6, 1989

Citation: 886 F.2d 1200

Docket Number: 87-2053

Court Abbreviation: 9th Cir.