can i reserve some time as much time as you want but when the clock ticks down to zero you're out of time for both direct and rebuttal of what's likely to reserve around five minutes for one point of clarification that i would like to make so it's perfectly sandvik is not advocating a public policy it's based on federal rule of evidence for twelve saul where the public policy argument is grounded in title seven of the civil rights act of one nine hundred sixty four as well as the supreme court decisions of the appellate court decisions which require an employer to provide a workplace free of sexual harassment and when harassment  appropriate actions to memory the past discrimination and to ensure the future of this harassment does not occur by the harasser or other employees and also the employer is required to create an environment in which the victims of sexual harassment will be willing to come forward to report incidents of sexual harassment we are also relying on the t o c these guidelines on sexual harassment frame the argument a little bit differently your idea of mine but what about my question for which i believe it would under the circumstances of this particular case and if you'd like me to  supreme court has time and again fold us that we perform the same error correcting function when we review arbitrator decisions as we do district courts in administrative agencies to violate rules of evidence or rules of procedure in the conduct of the trial or proceeding you see that this is the precise point i'm trying to make is if you are arguing that we are arguing that the public policy under title seven is that an employer is required to create conditions you're not answering my question you're arguing i think that we should overturn the award because the arbitrator made an error by permitting a lawyer to ask an impermissible line of questioning that prejudice your client and that is a classic fair review that we would perform if you were up here trying to overturn let's say a title seven judgment in the district court of the supreme court has told us we don't do that we don't reach into arbitration proceedings and tell the arbitrator you know you committed an error by allowing this line of questioning or by admitting this evidence into the case and if so i'd like to know what your case is that contradicts the supreme court principle because we've got no risk left before when we when we did th well again i believe it's a case of the first impression where an arbitrator allowed the questioning of a sexual harassment victim in this in this type of manner where it was unnecessary in irrelevant what is your best case to support our authority to step into the arbitration proceeding and order and i guess the remedy would have to be we've taken a field ward and we remain for an entirely new arbitration proceeding  and exclude this evidence from the proceeding that's what you're really asking that is exactly what sandvik is arguing in this case we don't is that square with supreme court authority so we don't do that with arbitration but your honor we are also arguing authority would be east to call the supreme court decision in that case it involved a truck driver who was reinstated who tested positive the second time for drug use in eastern called the supreme court number one i think it was justice prior joined by six other justices rejected the narrow positive law approach and also in as l the court looked at the statutory scheme and found that operating it doing safety sensitive job while under the influence was a dominant public policy to prohibit that but they went further and looked at the entirety of statutory scheme and they found a countervailing public policy of rehabilitation of substance abuse of users in our case policy goal of rehabilitating sexual harassers and quite the contrary the courts have made very clear that the level of sanction assumed posed it must be adequate to  express conditions upon it was a conditional reinstatement and the time off was one condition but there were conditions such as drug counseling and treatment  mandatory random drug testing in the future that the employer was required to submit a resignation letter so if he tested positive again he would terminate and there was also in i think a critical factor that the employee in that case was remorseful and the supreme court stressed that fact in our case the reinstatement granted there was a period of time offices special but there were no affirmative obligations or conditions placed on the reinstatement of the arbitrator did not require that mr jackson learn the company's policies and procedures of sex sexual harassment he did not require that he go through any sexual harassment training he did not require him to submit a resignation letter as in eastern hall and it's very clear if the least that i would advocate that the court in reviewing that that's what you're you know what we're arguing that we in statement under the circumstances of this case would violate the public policy which requires an employer to create an environment  of sexual harassment and an encouraging sexual harassment arrest victims from coming forward if if the company in the union had entered into a contract with a dispute resolution procedure that said that victims of sexual harassment can be questioned unnecessarily about their sexual history i would suggest to you that dead that contract would be void as against public policy if was challenged by its victim equal opportunity commission how is that different from from sort of the typical title seven case where because the allegations are of a sexual nature discovery is necessarily going to get into you know very delicate issues of in your first the relations between the complainant and the alleged harasser and others well i believe in answer to your question there was a problem with that must have several cases where these sorts of allegations are at issue and there is always extensive discovery not withstanding the rules of evidence that you're what one believes in the  there was a problem of the views of victims in the discovery process and i believe that for twelve was adopted but it's not been your experience that all such discovery now ceases and that we never get into any sort of evidence with regard to how the harasser or the victim interacted with coworkers if they involve matters of a sexual nature ideas that comes as a surprise to me because that's not what i'm seeing in the records that  because of the emotional distress caused by the questioning and i mean the quark this circuit has recognized the importance of that public policy and if we carve collective bargaining agreements that they can't be touched and it's perfectly victims are fair game for that they can be touched subject to certain exceptions and one of them is the public policy exception the question is does this remedy violate that are claiming that because it sends the wrong message and the policy is violated therefore we must vacate the arbitrator's room i think what we're quarreling with is the arbitrator made no findings that the remedy have statement or granted would be sufficient to remedy the past discrimination and future discrimination and as i understand the supreme court instead the this court is  to imply what the arbitrator failed to find and on that basis the award should be vacated as well as the arbitrator even required to explain the n word no he is not circumstance violates the public policy abusive shoptalk at another and was fired for it and he subsequently lied about his activities and what the arbitrator concluded was unfairly conducted disciplinary interview u nder the employer's own rules the grievance reprehensible language and conduct was classed as a minor offense as the arbitrator found there was no physical violence involved and and putting a suspension on the grievance record was sufficient to impress upon him the seriousness of this misconduct while affording him the opportunity to improve his behavior it's a serious  punishment not only does the individual have the grievance have a suspension on his record with the company which is typically the steps closest determination in the progress of disciplinary latter but he also not tolerated it is not as if he got a free pass the award depended in large measure on the arbitrator's factual finding that the punishment exacted from the grievance was discriminatory and that others who engaged in similar misconduct had violated the employer's rules relating to how employees are to treat each other with others who were engaged in that similar conduct were not disciplined at all hearing in effect he was the recipient of the greed the jacksons harassing language and hence the victim in the company's view but he was also an example of someone whom the company elected to treat more favorably when it came to complaints about the award first they argue that the award violates public policy found in federal rule of evidence for one two and as raised here today some other policies that i don't believe were the subject briefing but the rule if the arbitrators correctly applied evidentiary rules which the appellate in this case admits do not apply in the arbitration context in any event but however compelling that argument might be however much the court would like to see that be the rule in arbitration this is not the appropriate factual setting for that conclusion the unions did not question mr lewis about his private life and did not question him about his private sexual history instead of we questioned him about his behavior at work toward his coworkers now the evidence showed that one of the women he pursued in unwelcome fashion and she testified at the hearing by the way was required to report him to management and no less than three separate occasions a human resources representative the digitally noted he wrote that the complaining witness disciplined in any way for his repeated misconduct toward his coworkers that that evidence is clearly relevant given the union's just pretreatment argument and the arbitrator so wel a legitimate purpose under rule for one two that's made clear in federal practice and procedure under the doctrine of multiple admissibility of evidence offered for legitimate purposes not rendered inadmissible merely because it tends to prove one twelve or four went through in his decision he instead carefully analyzed the rule and expressly felt that he considered the evidence relating to mr lewis treatment of his coworkers only for the purpose of examining the employer whereas jackson did not and i feel i have to respond to one point made in the reply brief opposing counsel suggests that this explanation was manufactured by the union because in the sequence of the hearing mr l proceeded mr rose in testimony i would simply note that the counsel for the appellate stated in open statement that the employer had reviewed other cases involving alleged harassment before it reached the decision to fire mr l s further the union had subpoenaed one of mr lewis female targets such as testifying getting her off work to do so the employer knew in other words that lewis his behavior toward his coworkers was at issue and  both parties were certainly aware in advance of this hearing that an important issue in the case was whether mr lewis his own behavior both was comparable to that of the grieving all of which is to say that the sequence of testimony is irrelevant decision in this case that the appeal is not justified we think it is in fact for us and i would submit that to the courts form discretion thank you for your attention this morning thank you for  you have the last word violates the public policy underlying the federal with evidence for twelve encouraging victims to come forward were violated that underlying public policy is the abuse of the victim and as i asked on the record at the arbitration when i was objecting to these questions what victim of harassment will ever come forward with a complaint of harassment after this type of a few dirty arbitration proceeding with respect to disparate treatment the only evidence relevant to disparate treatment is what mrs tory complained as to management but still you do have you do have an unfortunate fact and that is that the complainant here mr lewis was himself the subject of an internal h r investigation based upon three complaints of his own sexual misconduct that's a little different it seems to me then the rape shield law and the policy of protecting people who are complaining that they were abused from having to submit to examination on their own prior you know history of sexual behavior your honor your i think you're right on the point here the misconduct treatment and it just so happened that there i mean they could've taken another employee who caused the generally was not the complain and if there weren't any other cases and i don't know that there were but in this case the the the apples to compare with with the jackson apple happened to me mr lewis and the fact that he i'm so alf had been treated differently when female employees accused him as opposed to mr jackson who was accused by a male but the lewis offered to leave his wife and miss tory there's no evidence in the record that mr tory ever reported those things to management so you're you're you're really back to the specific line of questioning that led to the active non about how a prior complaints of sexual misconduct against other employees which happened to include mr lewis have been handled by the company and that is precisely the point if the h r people were present in available to testify miss tor behind it would prevent the questioning of the directly involved with this even though it might be appropriate in a listening evidence of the disparate treatment to enquire as to the circumstances surrounding the prior complaints and what the company did yesterday when only questioned the h r director and on that subject it out with your argument on or but as the remember the findings of the arbitrator of finding the arbitrator