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NEW YORK HOTEL & MOTEL TRADES COUNCIL v. HOTEL ST.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


December 31, 1997

NEW YORK HOTEL AND MOTEL TRADES COUNCIL, AFL-CIO, Petitioner, against HOTEL ST. GEORGE, Respondent.

The opinion of the court was delivered by: MUKASEY

OPINION & ORDER

 MICHAEL B. MUKASEY, U.S.D.J.

 New York Hotel and Motel Trades Council, AFL-CIO (the "Union") petitions to confirm an arbitration award against Hotel St. George ("St. George"). St. George opposes confirmation and cross-moves to vacate the award on the grounds that: 1) the Union's petition is barred by the statute of limitations; 2) the award itself is barred by res judicata; and 3) the arbitrator was functus officio and therefore without authority to issue the award. For the reasons stated below, the arbitration award is confirmed, and St. George's motion to vacate is denied.

 I.

 The following facts, taken from the parties' submissions, are relevant to the petition to confirm: the Union is an unincorporated labor organization composed of approximately 25,000 members, each of whom is employed in the hotel industry in New York City. (Petition P 1) St. George is a hotel corporation organized under the laws of the State of New York with its principal place of business in Brooklyn, New York. (Id. P 2)

 The Union and St. George are parties to a collective-bargaining agreement (the "Agreement") which contains provisions regulating wages, hours, and working conditions for union employees. (Id. P 3) The Agreement also contains an arbitration clause which provides, in relevant part, as follows:

 

SECTION 26: COMPLAINTS, GRIEVANCES & ARBITRATION

 

All complaints, disputes or grievances arising between the parties hereto involving questions or interpretation or application of any clause of this agreement, or any acts conduct or relations between the parties, directly or indirectly, which shall not have been adjusted by and between the parties involved shall be referred to a permanent umpire to be known as the Impartial Chairman, and his decision shall be final and binding upon the parties hereto . . .

 

The decision rendered by the Impartial Chairman shall have the effect of a judgment entered upon an award made, as provided by the Arbitration Laws of the State of New York, entitling the entry of a judgment in a court of competent jurisdiction against the defaulting party who fails to carry out or abide by such decision.

 (Id. P 5) The arbitration clause provides also that either party may proceed ex parte before the Impartial Chairman if the other fails to appear after receiving proper notice of a hearing date. (Id. PP 6-7)

 In February 1993, the Union filed a complaint with the Office of the Impartial Chairman alleging that St. George was in violation of certain provisions of the Agreement. (Gringer Aff. Ex. A) On February 22, 1993, the Office of the Impartial Chairman sent a letter to St. George indicating that a hearing had been scheduled to examine the following allegations against the hotel: "Unjust layoff of all front office clerks; Management doing work of laid off employees; Failure to notify union of layoff; Failure to put employees on check-off." (Id.)

 On May 5, 1993, a hearing was held on the Union's complaint before Impartial Chairman Philip Ross (the "Arbitrator"). (Gringer Aff. P 5) Both parties appeared at the May 1993 hearing and each was represented by counsel. At the hearing, the Union presented evidence that St. George had been permitting non-union workers to perform front desk duties at the hotel ever since three union employees -- Helen Chan, Audrey Day, and Anthony Moore -- were laid off by the hotel in February 1993. (Id. Ex. C. at 3) On June 28, 1993, the Arbitrator issued a written opinion and award (the "1993 Award") sustaining the Union's complaint "in its entirety," and ordering St. George to reinstate the three employees and to give them back pay as of the date of the award. (Id. at 4)

 Although St. George failed to reinstate the employees or to pay them back wages, the Union never petitioned to have the 1993 Award confirmed. (Ginger Aff. P 7) Instead, the Union attempted to enforce the 1993 Award by filing a second complaint with the Office of the Impartial Chairman in November 1994. (Id.) On November 16, 1994, the Office of the Impartial Chairman sent a letter to St. George indicating that a hearing had been scheduled for January 24, 1995 concerning: "Failure of hotel to comply with Arbitrator's Decision # 93-88 [the 1993 Award]; Failure to reinstate Anthony Moore, Audry [sic] Day and Helen Chan, delegate; Failure to pay back wages and benefits; Failure to pay the contractual wages and benefits to all three employees prior to January 1, 1994 to time of layoff." (Id. Ex. D)

 On January 24, 1995, St. George appeared at the hearing and objected to the proceedings on the ground that the Office of the Impartial Chairman lacked jurisdiction to enforce the 1993 Award. (Id. Ex. E at 4) St. George argued also that because the Union did not petition to confirm the 1993 Award within one year, the award was unenforceable. (Id. at 6) In response, the Union argued that the Impartial Chairman had discretion to enforce the 1993 Award and requested an opportunity to brief the issue before a final decision was reached in the matter. (Id. at 7-8) The Arbitrator *fn1" granted the Union's request to submit papers and adjourned the hearing without setting a return date. (Id. at 9)

 Precisely what happened to the Union's second complaint against St. George seeking enforcement of the 1993 Award is not clear from the record. There is no evidence that any further hearings were held in the matter; nor is there evidence that the Union withdrew its complaint or that it was dismissed by the Arbitrator.

 However, it is clear from the record that on or about April 25, 1995, the Union filed a third complaint with the Office of the Impartial Chairman. (Petition P 4) That day, the Office of the Impartial Chairman notified St. George by letter that a hearing on the complaint had been scheduled for June 6, 1995. (Gringer Aff. Ex. I) The letter stated that the Union's complaint contained the following allegations against St. George: "Failure/refusal to abide by CBA [the Agreement]. Non-union employees doing bargaining unit work while union employees are on layoff (All front desk agents)." (Id.) On June 6, 1995, St. George failed to appear at the hearing. (Petition P 6)

 In a second notice, dated June 27, 1995, St. George was informed that the hearing -- now marked "PEREMPTORILY AGAINST THE EMPLOYER" -- had been rescheduled for August 2, 1995. (Id.) On July 11, 1995, the Union amended the complaint against St. George to include a request for liquidated damages. (Id.) A third notice -- also marked "PEREMPTORY" and reflecting both the Union's request for liquidated damages and the August 2, 1995 hearing date -- was sent to St. George on July 14, 1995. (Id.) Nevertheless, St. George once again failed to appear on the scheduled hearing date. (Id.)

 At the hearing, the Arbitrator asked the Union if it wished to proceed ex parte against St. George as authorized by Article 26 of the Agreement. (Id.) The Union elected instead to have the hearing rescheduled for December 5, 1995 and requested that a final notice of hearing be sent to St. George via registered mail. (Id.) Notice of the new hearing date was sent to St. George and a return receipt for the letter was signed on November 9, 1995 by an authorized agent of St. George. (Id. Ex. B at 1) On December 5, 1995, St. George failed to appear for a third time. (Id.)

 On that day, the Arbitrator granted the Union's motion to proceed ex parte. (Id.) At the hearing, the Union presented evidence that non-union employees were still performing front desk agent duties at the hotel while the same three front desk agents were on layoff. (Id.) The Union also provided the Arbitrator with an accounting of back wages owing to each of the three employees for the period beginning June 28, 1993 -- the date the 1993 Award was issued -- through December 5, 1995. (Roth Aff. Ex. B) On March 6, 1997, the Arbitrator issued a written opinion and award (the "1997 Award") ordering St. George to pay damages to Audrey Day, Helen Chan, and Anthony Moore in the amounts of $ 12,500, $ 12,500, and $ 7,500, respectively. (Petition Ex. B at 1) On April 30, 1997, the Union filed a petition to confirm the 1997 Award in Supreme Court, New York County. St. George removed the action to this court on May 22, 1997.

 II.

 Confirmation of an arbitration award is a "summary proceeding that merely makes what is already a final arbitration award a judgment of the court." Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984). The party moving to vacate an arbitration award bears the burden of proof, see Roche v. Local 32 B-32J Serv. Employees Int'l Union, 755 F. Supp. 622, 624 (S.D.N.Y. 1991), and the showing required to defeat confirmation is high. See Ottley v. Schwartzberg, 819 F.2d 373, 376 (2d Cir. 1987). The reason for this limited judicial review is to "avoid undermining the twin goals of arbitration, namely, settling disputes efficiently and avoiding long and expensive litigation." Folkways Music Publishers, Inc. v. Weiss, 989 F.2d 108, 111 (2d Cir. 1993). The federal policy in favor of enforcing arbitration awards is particularly strong with respect to arbitration of labor disputes. See United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 37, 98 L. Ed. 2d 286, 108 S. Ct. 364 (1987). Moreover, a labor arbitration award is enforceable by a federal court as long as "it draws its essence from the collective bargaining agreement." United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960).

 A. The Statute of Limitations Does Not Bar Confirmation of the 1997 Award

 St. George argues first that the Union's petition to confirm the 1997 Award is barred by the statute of limitations. (Def. Mem. at 1) St. George claims that the 1997 Award is "in reality, a duplicate of a prior award issued by the same arbitrator in 1993." (Id.) St. George contends that because the Union did not petition to confirm the 1993 Award within one year after it was issued, the statute of limitations bars the Union's petition in this case. (Id.) St. George's argument fails because it does not address the timeliness of the Union's petition to confirm the 1997 Award, but only the power of the arbitrator to make that award.

 The 1997 Award arises from the violation of a contract between an employer and a labor organization; therefore § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 (1994), governs the Union's petition to confirm. See General Drivers, Warehousemen & Helpers, Local Union No. 89 v. Riss & Co., 372 U.S. 517, 519, 9 L. Ed. 2d 918, 83 S. Ct. 789 (1963) (per curiam); Harry Hoffman Printing, Inc. v. Graphic Communications, Int'l Union, Local 261, 912 F.2d 608, 612 (2d Cir. 1990). "The timeliness of a [§ ] 301 suit . . . is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations." International Union, United Auto., Aerospace & Agric. Implement Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 16 L. Ed. 2d 192, 86 S. Ct. 1107 (1966). Similarly, a petition to confirm or vacate an arbitration award brought under the LMRA is timely if it is filed within the appropriate state statute of limitations. See Eichleay Corp. v. International Ass'n of Iron Workers, 944 F.2d 1047, 1061 (3d Cir. 1991) (petition to confirm); Harry Hoffman, 912 F.2d at 612 (petition to vacate); Posadas de Puerto Rico Assoc. v. Asociacion de Empleados, 873 F.2d 479 (1st Cir. 1989) (same).

 In this case, the appropriate state statute of limitations is § 7510 of the New York Civil Practice Law and Rules. See Local 153, Office & Professional Employees Int'l Union v. Depository Trust Co., 1995 U.S. Dist. LEXIS 12403, No. 93 Civ. 4433, 1989 WL 516560, at *2-3 (S.D.N.Y. Aug. 28, 1995) (applying C.P.L.R. §§ 7510, 7511 to petition to modify or confirm arbitration award governed by LMRA). C.P.L.R. § 7510 provides as follows: "The court shall confirm an award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified upon a ground specified in section 7511." Section 7510 is a mandatory provision which bars a petition to confirm an arbitration award filed more than one year after the award was delivered to the petitioner. See Elliot v. Green Bus Lines, Inc., 58 N.Y.2d 76, 78, 459 N.Y.S.2d 419, 419, 445 N.E.2d 1098 (1983).

 Here, it is undisputed that the 1997 Award was not delivered to petitioner until March 6, 1997. (Petition Ex. B. at 2). It is also undisputed that the Union filed its petition to confirm the 1997 Award on April 30, 1997. Because the petition to confirm was filed within one year after the 1997 Award was delivered to the Union, the Union's petition was timely under C.P.L.R. § 7510.

 St. George's argument -- which asks the court in essence to evaluate the timeliness of the Union's petition as if it were a petition to confirm the 1993 Award -- is not a statute of limitations argument at all. Rather, St. George's claim that the 1997 Award is merely "duplicative" of the 1993 Award goes to whether the Arbitrator was functus officio when he issued the 1997 Award. As a result, I will address this claim in the connection with St. George's motion to vacate, see discussion infra at pp. 25-31.

 B. Res Judicata Does Not Bar Confirmation of the 1997 Award

 St. George argues next that the Union's petition to confirm the 1997 Award is barred by res judicata. (Def. Reply. at 3) St. George asserts that the 1997 Award is based on the same underlying claim as the 1993 Award -- i.e. non-union workers performing front desk duties while certain union employees were on layoff. (Id.) For its part, the Union argues that the two awards are not the same because the 1997 Award covers a later period of time than the 1993 Award. (Roth Aff. P 8) In response, St. George contends that if the time periods are indeed different, then the Union improperly split its claims against the hotel and the 1997 Award should be disallowed. (Def. Reply at 3) St. George's arguments are foreclosed because it did not raise these issues before the Arbitrator.

 "'The question of arbitrability -- whether a collective-bargaining agreement creates a duty for the parties to arbitrate a particular grievance -- is undeniably an issue for judicial determination.'" Transit Mix Concrete Corp. v. Local Union No. 282, Int'l Brotherhood of Teamsters, 809 F.2d 963, 967 (2d Cir. 1987) (quoting AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 89 L. Ed. 2d 648, 106 S. Ct. 1415 (1986)). However, "'in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims.'" AT&T Technologies, 475 U.S. at 649. That is because "'the federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.'" Connecticut Light & Power Co. v. Local 420, Int'l Brotherhood of Electrical Workers, 718 F.2d 14, 19-20 (2d Cir. 1983) (quoting United Steelworkers, 363 U.S. at 596).

 Here, the Agreement between St. George and the Union contains a broad arbitration clause. That clause requires that "all complaints, disputes or grievances . . . involving questions or interpretation or application of any clause of this agreement, or any acts conduct or relations between the parties, directly or indirectly" be arbitrated. (Petition P 5) The Agreement provides also that the Arbitrator's decision "shall be final and binding upon the parties . . . and shall have the effect of a judgment entered upon an award made, as provided by the Arbitration Laws of the State of New York . . . ." (Id.) Based on the express language of the Agreement, the issue of whether the 1997 Award was barred by res judicata -- a dispute which arises under the Agreement, concerns the finality of a prior decision of the Impartial Chairman, and goes directly to the merits of the 1997 Award -- was arbitrable, and St. George should have made this argument before the Arbitrator.

 Indeed, if St. George had moved to stay arbitration before the 1997 Award was issued based on res judicata, I would have denied the motion and left the issue for the Arbitrator to determine. See National Union Fire Ins. Co. of Pittsburgh v. Belco Petroleum Corp., 88 F.3d 129, 133 (2d Cir. 1996) (issue of res judicata arbitrable under FAA); Accord Transit Mix, 809 F.2d at 969 (same result under LMRA). The Second Circuit's decision in Transit Mix is directly on point. In that case, a collective-bargaining agreement between Transit Mix and the union contained a broad arbitration clause which made "any and all complaints, grievances, controversies or disputes . . . in connection with or in relation to this Agreement" subject to arbitration. 809 F.2d at 968. The arbitration clause provided also that any awards issued "shall be final, conclusive, and binding" on the parties. Id. at 969. In affirming the denial of Transit Mix's motion to stay arbitration based on res judicata, the Court held that:

 

Questions as to the applicability of the finality clause -- in the sense of whether the Lippman award adjudicated the issues raised in the present dispute -- or as to its effect -- in the sense of the res judicata effect of the Lippman award -- are assigned, at least in the first instance, to the . . . arbitrator.

 (Id.) See also Lito Shipping Corp. v. Pioneer Petroleum Products, Inc., 1997 U.S. Dist. LEXIS 4114, No. 93 Civ. 778, 1997 WL 160321, at *2 (S.D.N.Y. Apr. 3, 1997) (same result under FAA); World Fin. Properties, L.P. v. Local 32 B-32J, Service Employees Int'l Union, 1997 U.S. Dist. LEXIS 730, No. 96 Civ. 9800, 1997 WL 33594, at *3 (S.D.N.Y. Jan. 29, 1997) (same result under LMRA).

 As noted, St. George did not raise the issue of res judicata -- or any other issue for that matter -- in the arbitration which produced the 1997 Award because St. George did not appear at any of the scheduled hearings on the Union's complaint. It is clear from the record that St. George declined to appear at those hearings deliberately for two reasons. First, St. George apparently believed that the Arbitrator lacked jurisdiction to enforce the 1993 Award or the authority to issue a new award based on the same type of conduct as the 1993 Award. St. George stated as much on the record at the January 24, 1995 hearing on the Union's complaint seeking enforcement of the 1993 Award. (Gringer Aff. P 8; Ex. E at 4-8) The validity of St. George's assumptions about the Arbitrator's lack of authority will be addressed below. See discussion of functus officio doctrine, infra at pp. 25-31.

 Second, St. George refused to appear because it thought that its "participation in any subsequent arbitral proceedings related to the 1993 Award" would have waived its right to object to the Arbitrator's authority to reconsider or modify the 1993 Award. (Def. Mem. at 6) This conclusion -- which appears to have been predicated on an erroneous reading of Judge Kaplan's holding in Hotel Greystone Corp. v. New York Hotel and Motel Trades Council, 902 F. Supp. 482, 485 (S.D.N.Y. 1995) -- is simply wrong. In Hotel Greystone, Judge Kaplan held that the hotel could not object to the arbitrator's reconsideration of a prior award based upon "longstanding industry practice . . . [which demonstrated that] the parties agreed to permit the Impartial Chairman to reconsider awards for good cause." 902 F. Supp. at 485. Because Judge Kaplan found that the hotel and the union had consented in the past to reconsideration of arbitration awards for good cause, the hotel's participation -- or lack thereof -- at subsequent proceedings in that matter was not a prerequisite to finding that the hotel had consented to a reconsideration of the award in that case. Id.

 In other words, Hotel Greystone does not stand for the broad proposition that mere participation by a party in subsequent arbitration proceedings automatically waives that party's right to object to the arbitrator's authority either to reconsider a prior award or to issue a new one. Thus, had St. George participated in the arbitration proceedings that produced the 1997 Award, it would not necessarily have been barred from challenging the Arbitrator's authority to issue the award. Cf. Hotel Greystone, 902 F. Supp. at 485.

 However, when St. George failed to appear at the arbitration, it did waive the right to assert in this proceeding any merit-based defenses it may have had to the 1997 Award, including its claim that the 1997 Award is barred by the res judicata effect of the 1993 Award. St. George cites no cases -- and I am aware of none -- standing for the proposition that a party may successfully oppose confirmation on such grounds when the issue of res judicata was not raised before the arbitrator. In fact, recent case law from within this Circuit suggests the opposite conclusion.

 For example, in Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29, 32 (2d Cir. 1997), the Court of Appeals refused to consider Wackenhut's argument -- raised for the first time before the district court on a petition to vacate the arbitration award -- that the arbitrator erred by failing to follow arbitral precedent in reaching his decision. The Court held that "the role of stare decisis in arbitration is not raised by this case, however, because, as the district court found, one of the two awards Wackenhut claims is in conflict with the present award was not even called to the attention of the arbitrator. . . ." Id.

 Although the Wackenhut Court framed the issue as one of stare decisis, the same principle bars the argument that St. George advances here based upon the res judicata effect of a prior arbitration award. *fn2" See Connecticut Light & Power Co. v. Local 420, Int'l Brotherhood of Electrical Workers, 718 F.2d 14, 20 (2d Cir. 1983) ("Principles of stare decisis and res judicata do not have the same doctrinal force in arbitration proceedings as they do in judicial proceedings; and, while it is the usual practice of arbitrators to find prior awards final and binding, subsequent arbitrators may set aside or modify a previous award in certain circumstances.") (citations omitted); North River Ins. Co. v. Allstate Ins. Co., 866 F. Supp. 123, 128 (S.D.N.Y. 1994) (an "arbitrator faced with a case with issues resolved in a prior arbitration has discretion as to whether to follow a previous award.") Because arbitrators possess such discretion, the res judicata effect, if any, to be accorded a prior arbitration award is a matter to be decided by the arbitrator, and not the district court on a petition to confirm.

 This same conclusion was reached by Judge Haight in Enterprise Ass'n Metal Trades Branch Local Union 638, v. Empire Mechanical, Inc., 1992 U.S. Dist. LEXIS 4749, No. 91 Civ. 5014, 1992 WL 84689, at *2 (S.D.N.Y. Apr. 9, 1992). In that case, Empire opposed the union's petition to confirm an arbitration award arguing, inter alia, that prior arbitration awards between the parties fully adjudicated the union's claims that were at issue in the subsequent arbitration. Id. In granting the union's petition to confirm, Judge Haight held that Empire was prohibited from raising the issue of res judicata on the grounds that any affirmative defenses affecting the merits of the union's complaint -- including res judicata -- were "for the arbitrators at the hearing, and [] not for the Court on a petition to confirm the award." Id. Judge Haight analogized the case to one in which an employer pleads the res judicata effect of a prior arbitration award in opposition to a motion to compel arbitration; an argument which the Second Circuit has repeatedly refused to consider in favor of leaving that determination to the arbitrators. See e.g. Transit Mix, 809 F.2d at 970.

 In addition to the arguments set forth in Judge Haight's well-reasoned opinion, other arguments support the conclusion that a party may not oppose confirmation of an arbitration award on res judicata grounds where that argument was not presented to the arbitrator. First, as noted, permitting a party to litigate the res judicata effect of a prior arbitration award before a court -- rather than before an arbitrator -- is inconsistent with the proposition that arbitrators have broad discretion to determine the precedential or preclusive effect, if any, to be accorded an issue or claim decided in a prior arbitration. See Connecticut Light & Power, 718 F.2d at 20; Transit Mix, 809 F.2d at 969; see generally Timothy J. Heinsz, Grieve It Again: Of Stare Decisis, Res Judicata and Collateral Estoppel in Labor Arbitration, 38 B.C. L. Rev. 275, 292-300 (1997).

 Second, the policy concerns which underlie the doctrine of res judicata apply far less forcefully where a party seeks to oppose confirmation of an existing arbitration award than where that party opposes being compelled to arbitrate a particular dispute in the first place. Because a court may not refuse to compel a party to submit to arbitration based on that party's claim that the res judicata effect of a prior arbitration award bars the proceedings, see Transit Mix, 809 F.2d at 970, it follows a fortiori that a court should not refuse to confirm an arbitration award on the same grounds.

 "Res judicata or claim preclusion 'prevents a party from litigating any issue or defense that could have been raised or decided in a previous suit, even if the issue or defense was not actually raised or decided.'" Woods v. Dunlop Tire Corp., 972 F.2d 36, 38 (2d Cir. 1992), cert. denied, 506 U.S. 1053, 122 L. Ed. 2d 131, 113 S. Ct. 977 (1993) (quoting Clarke v. Frank, 960 F.2d 1146, 1150 (2d Cir. 1992)). A central policy concern underlying res judicata is that it protects parties from "the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Milltex Indus. Corp. v. Jacquard Lace Co., 922 F.2d 164, 168 (2d Cir. 1991) (quoting Montana v. United States, 440 U.S. 147, 153-54, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979)).

 To the extent that these and other policies favor permitting a party to assert res judicata based on a prior arbitration award, such concerns are most compelling when articulated in opposition to a motion to compel arbitration. At that point, were a court permitted to conclude that res judicata would indeed bar the arbitration, the expense and vexatiousness of a second arbitration could be avoided, judicial and arbitral resources conserved, and the possibility of inconsistent decisions averted. See Milltex Indus., 922 F.2d at 168. Nevertheless, a court is not permitted -- even at that stage of the dispute -- to substitute its judgment on such issues for that of the arbitrator. See Transit Mix, 809 F.2d at 969.

 By contrast, permitting a party to assert res judicata for the first time in opposition to a petition to confirm an arbitration award would yield few, if any, potential benefits. To begin with, neither party could be spared the expense of a subsequent arbitration proceeding because it has already taken place. Nor would such a practice conserve judicial resources. Rather, permitting a party to raise this issue on a petition to confirm would waste considerable judicial time and effort because the court would have to scrutinize the merits of the second arbitration to determine if it dealt with "any issue or defense that could have been raised or decided in a previous suit, even if the issue or defense was not actually raised or decided." Woods, 972 F.2d at 38. Further, permitting a party to assert res judicata would increase the risk of producing inconsistent decisions because a court might be tempted to conclude that the arbitrator should have taken the res judicata effect of a prior arbitration award into account in reaching his decision.

 Third, permitting a party to oppose confirmation of an award based on a claim that it did not raise before the arbitrator would also offend the general principle that a party "cannot remain silent, raising no objection during the course of the arbitration proceedings, and when an award adverse to him has been handed down complain of a situation of which he had knowledge from the first." York Research Corp. v. Landgarten, 927 F.2d 119, 122 (2d Cir. 1991) (quoting Cook Indus. v. C. Itoh & Co., 449 F.2d 106 (2d Cir. 1971), cert. denied, 405 U.S. 921, 30 L. Ed. 2d 792, 92 S. Ct. 957 (1972)). Here, despite full knowledge of the facts and the allegations upon which the 1993 Award was based, St. George never raised the issue of res judicata at the time the 1997 Award was issued. St. George's failure to do so is particularly striking considering that on the one occasion when the hotel did in fact appear before the Arbitrator after the 1993 Award was issued i.e. the January 25, 1995 hearing on the Union's complaint seeking enforcement of the 1993 Award -- St. George raised several other objections to the Union's complaint including the statute of limitations and the Arbitrator's lack of jurisdiction to enforce his own award. (Gringer Aff. Ex. E at 4)

 Although my finding that St. George waived its right to assert res judicata by not raising it before the Arbitrator is not strictly required by cases such as Young and Cook Indus. -- both of which are primarily concerned with a party's failure to object to the arbitration itself on the grounds of partiality or bias -- the fact remains that St. George was well aware of the facts supporting its claim of res judicata over two years before the 1997 Award was issued. As a result, St. George should not be permitted to sandbag both the Arbitrator and the Union by withholding any merit-based objections it may have had to the 1997 Award until the Union petitioned the district court for confirmation. For all of these reasons, St. George is prohibited from opposing confirmation of the 1997 Award based on the ground that the arbitrator should have given res judicata effect to the 1993 Award. *fn3"

 However, even if St. George were permitted to assert res judicata for the first time in this court, the scope of review of the Arbitrator's decision in this regard would be extremely limited. As the Second Circuit recently reaffirmed in Saint Mary Home, Inc. v. Service Employees Int'l Union, Dist. 1199, 116 F.3d 41, 44 (2d Cir. 1997), the "principal question for the reviewing court is whether the arbitrator's award 'draws its essence from the collective bargaining agreement' since the arbitrator is not free merely to 'dispense his own brand of industrial justice.'" (citing In re Marine Pollution Serv., Inc., 857 F.2d 91, 94 (2d Cir. 1988) and quoting Enterprise Wheel, 363 U.S. at 593). In order for an arbitration award to draw its essence from the agreement, the arbitrator "need only explicate his reasoning under the contract 'in terms that offer even a barely colorable justification of the outcome reached.'" In re Marine Pollution, 857 F.2d at 94 (citing Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691, 704 (2d Cir. 1978).

 Similarly, "courts reviewing inconsistent awards have also held that neither award will be set aside where both draw their essence from the collective agreement." Connecticut Light & Power, 718 F.2d at 20 (citations omitted). In other words, the failure of an arbitrator to accord res judicata effect to a prior arbitration award is not a sufficient ground for refusing to confirm a second award as long as the second award itself draws its essence from the parties' agreement. See W. R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 765, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983); Hotel Ass'n of Washington, D.C. v. Hotel & Restaurant Employees Union, Local 25, 295 U.S. App. D.C. 285, 963 F.2d 388 (D.C. Cir. 1992); Connecticut Light & Power, 718 F.2d at 20.

 Here, the Arbitrator's written opinion, in which he explains his reasons for issuing the 1997 Award, provides, in pertinent part, as follows:

 

Evidence was submitted by the Union concerning non-union employees performing front desk agent duties, which is bargaining unit work, while the following three front desk agents were on layoff: Audrey Day, Helen Chan and Anthony Moore. Based upon the evidence submitted to me and taking into account the obligation of the grievants to mitigate their damages, I find the following employees are owed the following amounts:

  Audrey Day: $ 12,500.00 Helen Chan: $ 12,500.00 Anthony Moore: $ 7,500.00

19971231

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