CMC v. INTERN. UNION, ALLIED INDUS. WORKERS, 89-C-999.

• Decision Date: 26 January 1990
• Docket Number: No. 89-C-999.,89-C-999.
• Citation: 748 F. Supp. 1352
• Parties: CHRYSLER MOTORS CORPORATION, Plaintiff, v. INTERNATIONAL UNION, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, and Local 793, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

748 F. Supp. 1352

CHRYSLER MOTORS CORPORATION, Plaintiff, v. INTERNATIONAL UNION, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, and Local 793, Defendants.

No. 89-C-999.

United States District Court, E.D. Wisconsin.

January 26, 1990.

Ely A. Leichtling, Gregory S. Muzingro, Kenneth C. Hortop, Quarles & Brady, Milwaukee, Wis., for plaintiff.

Kenneth Loebel, Habush, Habush & Davis Milwaukee, Wis., for defendants.

OPINION AND ORDER

CURRAN, District Judge.

Chrysler Motors Corporation (CMC) has commenced the above-captioned case against the International Union, Allied Industrial Workers of America, AFL-CIO, and Local 793 (the Unions) seeking an order vacating an arbitrator's award issued on July 24, 1989, because it is contrary to public policy. The defendant Unions have answered by denying that the award should be vacated and by asserting a counterclaim seeking enforcement of the award, prejudgment interest on all monies found owing to the grievant,¹ costs and attorney fees. The court has jurisdiction² over the subject matter of the plaintiff's claims and the defendants' counterclaims in that this is a civil action arising under an Act of Congress regulating commerce. See 28 U.S.C. § 1337(a). The Act in this case is section 301(a) of the Labor Management Relations Act of 1947 which provides that:

Suits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

29 U.S.C. § 185(a).

Shortly after the plaintiff filed a reply asking that the counterclaim be dismissed, the parties filed cross motions for summary judgment which are now fully briefed and ready for decision. Each side maintains that no material facts are in dispute and that it is entitled to judgment as a matter of law. See Federal Rule of Civil Procedure 56.

I. FACTS

CMC is a corporation which, among other things, operates a marine and industrial products manufacturing facility in Beaver Dam, Wisconsin. The Unions are the exclusive collective bargaining representatives of certain CMC employees at the Beaver Dam facility, including Ronald Gallenbeck, the grievant in the underlying arbitration proceeding. The parties in this case have entered into a collective bargaining agreement which is effective from July 1, 1986, through June 30, 1991.

On October 27, 1987, while this agreement was in effect, CMC hired Gallenbeck as a fork lift operator. After a female employee at the Beaver Dam facility complained that Gallenbeck had sexually assaulted her, CMC suspended, then promptly fired, Gallenbeck on January 10, 1989, for what the company believed to be "proper cause" as provided in Article IX of the collective bargaining agreement. See Complaint at Exhibit A, Article IX. The Unions filed a grievance protesting the discharge and the matter proceeded to arbitration on June 16, 1989. See Id. at Exhibit A at Article III, Section 3.02.³ In his decision of July 24, 1989, the arbitrator, Jay E. Grenig, found that the following events occurred:

The Grievant began work with the Employer at its Beaver Dam Marine and Industrial Products facility on October 27, 1987, as a Fork Lift Operator Trainee. He was discharged effective January 10, 1989. The notice of termination stated, in pertinent part, as follows:

On Monday, January 9, 1989, B, a contract employee of Boyd-Hunter, Inc., assigned to the Chrysler Marine Corporation Warehouse, advised the Production Control Manager that she was sexually assaulted by the Grievant, who approached B from behind, reached around her body and fondled her breasts. B also advised C of Boyd-Hunter, Inc., of the incident, stating she would file criminal charges if Grievant was not removed from the warehouse.

At the time of his discharge, the Grievant was a Group Leader working in a warehouse approximately six miles from the Beaver Dam facility. B was employed by Boyd/Hunter Employment Agency, which had an inspection contract with one of the Employer's suppliers. B also worked at the warehouse.

The Grievant was at work on January 5, 1989, when he received a telephone call. During the course of his telephone conversation, he put the telephone receiver on the desk and walked over to B, while B was inspecting door trim panels for defects. While she was inspecting a door panel, the Grievant came up behind her, reached under her extended arms, grabbed her breasts, and squeezed them. B screamed and the Grievant returned to the telephone, where he stated, "Yup, they're real."

B contacted an attorney regarding the incident that night. She reported the incident to the Boyd/Hunter's manager the next morning. When the Employer learned of the incident on Monday, January 9, the Grievant's supervisor and the Union president went to the warehouse. They spoke with the Grievant, who admitted to having grabbed B's breasts.

The supervisor informed the Personnel Manager of Grievant's admission and the Grievant was suspended from work. The situation was discussed with the Employer's legal staff in Detroit and the suspension was converted to a discharge effect sic January 10, 1989.

On January 12, 1989, the Grievant filed a grievance, stating, in pertinent part, as follows:

The Aggrieved feels that retaliation has occurred stemming form sic the Alleged allegations. The Co. dismissal of the aggrieved was to sic severe. The Co. should fully consider the time of service and over all work performance of the aggrieved.

The grievance asked for the following remedy: "Full reinstatement with full backpay and all alleged allegations removed from his record."

The grievance was denied and the issue submitted for resolution in this arbitration proceeding.

B testified at the arbitration hearing that the Grievant had grabbed her before. She testified that when she came out of the break room, he'd grab her on the "hinder" and pinch her "hinder." She said that he'd "done it to other girls." B stated that she had reported the incidents to the manager at Boyd/Hunter.

The Boyd/Hunter group leader at the warehouse testified that there had been at least one other incident of the Grievant grabbing a female co-worker. He said that the co-worker never complained to his knowledge.

During the Grievant's employment with the Employer, he never received any discipline and he never missed a day of work. During this period he frequently worked six or seven days a week and ten-hour days.

The Union president testified at the hearing that sometime in December 1988 B told him that she was going to do whatever she had to do to get rid of "that son of a bitch" — meaning the Grievant.

Employer witnesses testified that the Grievant had engaged in conduct similar to that with which he is charged here in the past, although he had never been disciplined for the conduct.

The Employer's Production Control Manager testified that the Employer utilizes a corrective or progressive disciplinary system.

Complaint at Exhibit B, pp. 3-6.

In the arbitration proceeding CMC took the position that Gallenbeck's conduct constituted sexual harassment or sexual assault and battery; that this conduct furnished proper cause for discharge; that discharge has been upheld as the proper remedy for such conduct in most other cases; and that there were no mitigating circumstances warranting reinstatement.

The Unions, on the other hand, characterized the conduct as "horseplay" and argued that "there is a distinction between someone who acts out of a misguided and no longer acceptable so-called sense of humor and someone who really seeks sexual gratification." Id. at Exhibit B, p. 7. Pointing out that the company had a progressive disciplinary policy and that the company knew of no other similar incidents when it fired Gallenbeck, the Unions asked that the discharge be reduced to a suspension.

After hearing these arguments, the arbitrator began his decision by observing that:

Where the contract provides that an employee may be disciplined or discharged for just cause, proper cause, or good cause, the degree of disciple sic imposed must reasonably relate to the seriousness of the employee's proven offense and the record of the employee in his service with the Employer.

Id. at Exhibit B, pp. 8-9. The arbitrator reasoned that, while serious offenses such as stealing or striking a foreman usually justify summary discharge, less serious offenses call for a milder penalty. Based on these threshold considerations, the arbitrator framed the issue as follows: "There is no dispute with respect to whether the Grievant grabbed B's breasts. The only significant question is whether the penalty imposed by the Employer was appropriate under the circumstances." Id. at Exhibit B, pp. 11-12.

After reviewing numerous other arbitration decisions involving allegations of employee misconduct, the arbitrator pointed out that in most other cases where a discharge was upheld, the employee had been warned or previously disciplined for prior conduct. In contrast, CMC did not know of any other incidents of sexual assault by Gallenbeck before it fired him. Therefore, the arbitrator decided that the several incidents which came to light after Gallenbeck's discharge could not be considered in determining whether the discharge was for proper cause.

His review of other cases also persuaded the arbitrator that, while sexual harassment is a serious offense, it is not serious enough to justify discharge without prior warnings or attempts at corrective discipline.⁴ The arbitrator found that CMC had such a system of progressive discipline and that "the evidence does not indicate that the Grievant could not be rehabilitated and correct his behavior. Although not a longterm employee, the Grievant had a blemish free disciplinary record prior to his discharge and...