award required that the employees be paid in the event that the Company did not recover from the Board. There is no basis for this court to suggest to Schmertz how he should proceed to clarify the award.
New York Bus Tours v. Theodore W. Kheel and Sonny Hall, 89-7289 (2d Cir. Nov. 29, 1989) (New York Bus VIII).
Accordingly, I remanded to arbitrator Schmertz to clarify whether the arbitration award of arbitrator Kheel required that the employees be paid. New York Bus Tours v. Theodore W. Kheel and Sonny Hall, 85 Civ. 4724 (RO) (S.D.N.Y. March 16, 1990) (New York Bus IX). Pursuant to this, Schmertz held hearings over three days, October 30, 31, and November 1, 1991, at which the Company and the Union presented evidence including the testimony of Kheel who, not unexpectedly, I am sure, stated that it was his intent that the employees be paid unconditionally even if the Company was not paid by the Board. Thereafter, on March 11, 1992, Schmertz issued an Opinion and Award stating:
Based on Mr. Kheel's testimony under Oath as to the meaning and intent of his award, I find that his award is clarified to mean that the employees are to be paid in the event that the Company did not recover from the Board of Education.
Opinion and Award, Impartial Chairman, Eric J. Schmertz at 6 (March 11, 1992) (New York Bus X). Schmertz expressly rejected the Company's demand that he independently of Kheel's input determine what Kheel's 1979 Award meant, stating:
In my over thirty-years as an arbitrator, it has been my unvaried experience that the clarification of an ambiguous award, like its modification or correction, is for the original arbitrator.
Hence, in this case I conclude that my authority under the Court's Order and remand to 'clarify,' is confined to finding out what Mr. Kheel intended. My authority does not extend to my interpretation of his award on its face or to interpret it based on the beliefs and testimony of others as to what they think it was supposed to mean, or should mean, or even, specifically, to resolving the conflicting testimony on whether or not there had been some agreement on what Mr. Kheel was to award.
* * *
Mr. Kheel is the only one possessing the mental processes to definitively state what he meant. If his award is to be 'clarified,' the best, indeed the only one who can provide the clarifying answers is Mr. Kheel himself
New York Bus X at 3-4.
The Company now moves to vacate this most recent award rendered by Schmertz asserting that he acted in "manifest disregard of the law" when he permitted Kheel to testify as to his intent and arguing that the "clarification" by Schmertz should not have been based upon such testimony of Kheel because the Court of Appeals had previously held that Kheel did not have jurisdiction to clarify the issue himself. In this regard I agree with arbitrator Schmertz that although Kheel no longer has jurisdiction to decide any matters in this action as an arbitrator, there was no bar to his testifying as a fact witness, under oath and subject to cross-examination, and any testimony that he so provided, if credited, could be used by the current arbitrator in carrying out his duty to clarify Kheel's original award. See York Bus X at 4 ("[Kheel] cannot do it now as the arbitrator because, as the Circuit court ruled, he is no longer the impartial chairman, and because his authority as arbitrator was not reinstated for that purpose. But he is not mentally or physically disabled, nor judicially enjoined from offering probative testimony on what he intended when he was the arbitrator.") Schmertz approached his obligations on the remand exactly as he should have and as he was specifically directed to do by the Court of Appeals, see p. 4 supra.. In specific language the Court directed him to clarify Kheel's award, not decide de novo, and expressly refrained from suggesting how he should proceed to so clarify. Thus, the purpose of the remand being to determine what Kheel meant in his original Opinion, clearly the best way -- and indeed the only way -- was to get this information directly from the horse's mouth. See Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1264 (5th Cir. 1980).
The present position of the Company would force this case into a Victorian garden maze which has no exit. However, the exit from the garden maze is in view. Schmertz did clarify any ambiguity that existed; the departure from the maze should proceed expeditiously and the employees who have waited over ten years to recover should finally be paid.
Accordingly, the Union's cross-motion to confirm and enforce the Opinion and Award of Eric J. Schmertz dated March 11, 1992 clarifying the Opinion and Award of Theodore W. Kheel dated October 18, 1979 is granted. The motion of New York Bus Tours, Inc. for an order vacating the award is denied.
Submit order and judgment accordingly.
Dated: June 18, 1992
New York, New York
United States District Judge
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