III. Standard of Review
The courts "play only a limited role when asked to review the
decision of an arbitrator." United Paperworkers Int'l Union v.
Misco. Inc., 484 U.S. 29, 36, 108 S.Ct. 364, 98 L.Ed.2d 286
(1987); see also, W.R. Grace & Co. v. Local 759, International
Union of United Rubber Workers, 461 U.S. 757, 764, 103 S.Ct.
2177, 76 L.Ed.2d 298 (1983); United Steelworkers of Am. v.
Enterprise Wheel and Car Corp., 363 U.S. 593, 596, 598-99, 80
S.Ct. 1358, 4 L.Ed.2d 1424 (1960). "Courts are not authorized to
reconsider the merits of an award even though the parties may
allege that the award rests on errors of fact or on
misinterpretation of the contract." Misco, 484 U.S. at 36, 108
S.Ct. 364. "The federal policy of settling labor disputes by
arbitration would be undermined if courts had the final say on
the merits of the awards." Id. (quoting United Steelworkers of
Am., 363 U.S. at 596, 80 S.Ct. 1358)). "The standard for
avoiding summary confirmation of an arbitration award is very
high, and the burden of proof is on the party moving to vacate
the award." In Matter of Arbitration Between Francesca Briamonte
v. Liberty Brokerage, Inc., No. 99-2735, 2000 WL 351399
(S.D.N.Y. March 31, 2000) (citing Willemijn Houdstermaatschappij
v. Standard Microsystems Corp., 103 F.3d 9, 12 (2d Cir. 1997).
Though courts accord great deference to arbitral decisions, a
district court may vacate an arbitration decision where at least
one ground specified in 9 U.S.C. § 10 of the Federal Arbitration
Act ("FAA") is found to exist or for "manifest disregard of the
law."*fn10 See e.g., Carte Blanche (Singapore) Pte., Ltd., v.
Carte Blanche Int'l, Ltd., 888 F.2d 260, 265 (2d Cir. 1989).
A district court also must "not enforce a collective-bargaining
agreement that is contrary to public policy." Misco, 484 U.S.
at 43, 108 S.Ct. 364 (quoting W.R. Grace, 461 U.S. at 766, 103
S.Ct. 2177); Local 97, Int'l Bhd. of Electrical Workers v.
Niagara Mohawk Power Corp., 196 F.3d 117, 125 (2d Cir. 1999)
("Niagara Mohawk II") (amending Int'l Bhd. of Electrical
Workers, Local 97 v. Niagara Mohawk PowerCorp., 143 F.3d 704 (2d
Cir. 1998) ("Niagara Mohawk I")). The public policy exception —
which is asserted here — may be the basis for vacatur only when a
collective-bargaining agreement as interpreted by the arbitrator
violates an "explicit public policy" that is "well-defined and
dominant, and is to be ascertained `by reference to the laws and
legal precedents and not from general considerations of supposed
public interests.'" Misco, 484 U.S. at 43, 108 S.Ct. 364
(quoting W.R. Grace, 461 U.S. at 766, 103 S.Ct. 2177). "The
question of public policy is ultimately one for resolution by the
courts." Id. The court must determine "whether the award
itself, as contrasted with the reasoning that underlies the
award, `[creates][an] explicit conflict with other laws and legal
precedents' and thus clearly violates an identifiable public
policy." Niagara Mohawk II, 196 F.3d at 125 (quoting Niagara
Mohawk I, 143 F.3d at 716) (citation omitted). The public
policy against sexual harassment in the workplace is the Court's
principal concern in these proceedings.
The issue here is whether the Award contravenes the public
policy against sexual harassment in the workplace. See Meritor
Savings Bank, FSB v. Mechelle Vinson, 477 U.S. 57, 64-67, 106
S.Ct. 2399, 91 L.Ed.2d 49 (1986) (recognizing that the Equal
Employment Opportunity Commission (EEOC) Guidelines, issued in
1980, define "sex discrimination" under Title VII of the Civil
Rights Act of 1964, 42 U.S.C.A. § 2000e-2(a)(1), ("Title VII"),
to include "sexual harassment.") Title VII prohibits employment
discrimination on the basis of
sex. The Supreme Court of the United States has stated that "a
plaintiff may establish a violation of Title VII by proving that
discrimination based on sex has created a hostile or offensive
work environment." Meritor Savings Bank, FSB, 477 U.S. 57, 66,
106 S.Ct. 2399, 91 L.Ed.2d 49; see also, Faragher v. City of
Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662
(1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S.Ct.
2257, 141 L.Ed.2d 633 (1998). The EEOC has promulgated
regulations which help define sexual harassment under Title
VII.*fn11 This and other judicial circuits have recognized as
well-defined and dominant the public policy against sexual
harassment in the workplace. See Halligan v. Piper Jaffray,
Inc., 148 F.3d 197 (2d Cir. 1998), cert. denied,
526 U.S. 1034, 119 S.Ct. 1286, 143 L.Ed.2d 378 (1999); Stroehmann
Bakeries, Inc. v. Local 776, Int'l Bhd. of Teamsters,
969 F.2d 1436 (3d Cir. 1992), cert. denied, 506 U.S. 1022, 113 S.Ct.
660, 121 L.Ed.2d 585 (1992); Chrysler Motors Corp. v. Int'l
Union, Allied Indus. Workers, 959 F.2d 685 (7th Cir. 1992),
cert. denied, 506 U.S. 908, 113 S.Ct. 304, 121 L.Ed.2d 227
(1992); Communication Workers v. Southeastern Electric Coop.,
882 F.2d 467 (10th Cir. 1989).*fn12
Petitioner argues that reinstatement of the four Grievants (Mr.
Williams, Mr. Angelo Brown, Mr. Sean Brown and Mr. Kelly)
violates the public policy against sexual harassment in the
workplace and relies primarily upon the ruling in Newsday, Inc.
v. Long Island Typographical Union No. 915, 915 F.2d 840 (2d
Cir. 1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1314, 113
L.Ed.2d 247 (1991). In Newsday, a male employee had been
discharged twice by Newsday, Inc. for "disorderly conduct." Id.
at 842. The first incident, in 1983, involved "offensive and
unauthorized contact" with female coworkers, and resulted in an
arbitration award "sustaining the disciplinary action" of four
days' suspension as "not being in violation of the parties'
collective bargaining agreement." Id. The arbitrator stated
that "any [future] action on the part of [the employee] which is
consistent with this past citable behavior shall be grounds for
immediate discharge and he will not be given the benefit of the
doubt or shown any leniency." Id. at 842 (emphasis added).
After the employer had reinstated the employee, the employee was
again discharged in July 1988, for "disorderly conduct." A second
arbitrator found that there had, in fact, been three earlier
incidents between late 1983 or early 1984 to 1988, that were
serious and were "of the type which Newsday . . . properly
attempted to eliminate from its work place." Id. at 842.
Nonetheless, the second arbitrator decided that the employee had
not been discharged for just cause, and ordered him reinstated
without back pay. United States District Court Judge I. Leo
Glasser vacated the arbitrator's award, reasoning that the
unavoidable consequence of the arbitrator's award would be to
"compel his female co-workers to submit to his sexual harassment
(conduct of which he has been repeatedly adjudicated) as a
condition of their employment and to permit his sexual harassment
to threaten to perpetuate a hostile, intimidating and offensive
work environment." Newsday, Inc. v. Long Island Typographical
Union No. 915, No. 89-3228, 1990 WL 302786 *3 (E.D.N.Y. February
6, 1990). The Court of Appeals for the Second Circuit affirmed,
Newsday, 915 F.2d 840. Petitioner argues that the instant case
"is on all fours with" Newsday. (Pet's Mem. at 9). The basis
for the Newsday Court's vacatur of the arbitration award,
according to Petitioner, was that "above all," the Award
prevented "Newsday from carrying out its legal duty to eliminate
harassment in the workplace," Petitioner urges this Court to
"find that duty even greater" in this instance. (Pet'r Reply Mem.
in Supp. of Pet. to Vacate ("Pet'r Reply Mem.") at 3).
Respondent argues that Newsday is inapposite and relies
instead upon Saint Mary Home, Inc. v. Service Employees Int'l
Union, District 1199, 116 F.3d 41 (2d Cir. 1997), where an
employee had been discharged by Saint Mary Home, Inc., following
his arrest for assault upon a co-worker and drug possession. The
employee had worked for Saint Mary Home for fourteen years
without major disciplinary problems. The employee's union filed a
grievance (pursuant to the grievance procedure under the
collective bargaining agreement between the employer and the
union). Thereafter, the union invoked the collective bargaining
agreement's binding arbitration provisions.*fn13 The arbitrator
subsequently reinstated the employee without backpay or lost
benefits. The Second Circuit, in Saint Mary Home, affirmed and
found that the employer could not "point to an established policy
that calls for a fixed disciplinary action of permanent dismissal
in all cases where drug related conduct occurs in the workplace,"
and that "the drug policy relating to the response for drug
related conduct in the workplace is flexible and remedial," Id.
While it is not sufficiently clear from the Award, the instant
case may be distinguishable from Newsday, insofar as the
Newsday employee had a history of repeat sexual offenses. Here,
the Grievants' past misconduct, if any, is not spelled out by the
Arbitrator. According to Judge Glasser, "a clearer expression of
. . . well defined public policy . . . will not be . . . found .
. . [This policy] is subverted when an employer is required to
reinstate an employee who is a chronic sexual harasser and an
award which has that effect should be vacated." Newsday, 915
F.2d at 843. See also, Consolidated Edison v. Utility Workers'
Union, No. 95-1672, 1996 WL 374143 (S.D.N.Y. July 3, 1996)
(Koeltl, J.) (vacating as contravening public policy the
reinstatement of an employee who had already been issued clear
warning that further sexual misconduct could lead to dismissal);
Stroehmann Bakeries, Inc., 969 F.2d 1436 (3d Cir. 1992)
(affirming as consistent with public policy a vacatur of an award
reinstating employee accused of sexual harassment where
arbitrator had not determined whether the harassment had actually
Saint Mary Home sheds some light on the analysis of public
policy. The Court in Saint Mary Home stated "while [the
pertinent statutes and legal precedents] evince a strong public
policy against the use, possession and sale of drugs, [they do]
not support the narrower public policy the [employer] seeks to
invoke: a policy against the reinstatement of [an] employee after
a . . . suspension without pay or benefits." 116 F.3d at 46-47.
Other circuits appear to be in agreement that the vacatur of an
arbitrator's reinstatement award is not warranted when the
discharged employee has had no history of prior misbehavior. See
Chrysler Motors Corp., 959 F.2d at 688 (Seventh Circuit
affirming district court's affirmation of arbitration award
reinstating employee who had been discharged for sexually
assaulting a co-worker, noting that the arbitrator "found it
significant that [the employee] had not received warnings or
discipline for any prior misconduct before being discharged."
(citing Newsday)); Communication Workers, 882 F.2d at 468,
470 (Tenth Circuit affirming district court's confirmation of
arbitration award reinstating an employee who had been discharged
for sexually assaulting a customer but who had had a long tenure
with the company without incident and had never received
discipline for any prior misconduct). Moreover, several cases
suggest that remedies short of permanent discharge maybe
appropriate. See e.g., Baskerville v. Culligan Int'l Co.,
50 F.3d 428, 432 (7th Cir. 1995) ("The employer's legal duty is thus
discharged if it takes reasonable steps to discover and rectify
acts of sexual harassment of its employees"); Swentek v. USAIR,
Inc., 830 F.2d 552, 558 (4th Cir. 1987) (pursuant to collective
bargaining agreement, employer properly remedied sexual
harassment by investigating, issuing "a written warning," and
informing employee that "a suspension would follow another
substantiated complaint about his language."); Barrett v. Omaha
National Bank, 726 F.2d 424, 427 (8th Cir. 1984) (concluding
that "the district court did not err when it concluded that [the
employer] took immediate and appropriate corrective action" by
conducting a "full investigation," informing the co-workers
accused of sexual harassment that "their conduct would not be
tolerated," and informing one of them that "he would be fired for
any further misconduct."); accord Ellison v. Brady,
924 F.2d 872 (9th Cir. 1991).
V. Need for Additional Information: Clarification
The above authorities notwithstanding, the Court believes the
arbitration Award is not sufficiently clear and definite,
rendering it difficult to affirm or vacate the Award. On the one
hand, the Arbitrator may bring "his [or her] informed judgment to
bear in order to reach a fair solution of a problem. This is
especially true when it comes to formulating remedies." Misco,
484 U.S. at 41, 108 S.Ct. 364 (quoting United Steelworkers of
Am., 363 U.S. at 597, 80 S.Ct. 1358).*fn15 On the other hand,
this case involves troubling behavior(s) which have no place in
the modern work environment. It is, therefore, appropriate for
the Court to seek clarification from the Arbitrator. See
Americas Insurance Co. v. Seagull Compania Naviera, 774 F.2d 64
(2d Cir. 1985) (Second Circuit vacating district court's judgment
regarding an award containing "sufficient ambiguity," and
remanding to the district court for referral back to arbitration
panel for clarification). A district court "should not attempt to
enforce an award that is ambiguous or indefinite." Id., at 67.
"An ambiguous award should be remanded to the arbitrators so that
the court will know exactly what it is being asked to enforce."
Id. (citing Cleveland Paper Handlers and Sheet Straighteners
Union No. 11 v. E.W. Scripps Co., 681 F.2d 457, 460 (6th Cir.
1982) (per curiam); Oil, Chemical & Atomic Workers Int'l Union,
Local 4-367 v. Rohm and Haas, Texas, Inc., 677 F.2d 492, 495
(5th Cir. 1982) (per curiam) (Appendix)).
Specifically, it is difficult for this Court to determine
whether the Award contravenes the public policy against sexual
harassment in the workplace without knowing precisely what
factual findings support the Arbitrator's recommendation of
reinstatement. See Walter N. Yoder & Sons, Inc. v. Sheet Metal
Workers' Local Union No. 100, 661 F. Supp. 1141, 1145 (D.Md.
1987) (remanding case, because of various ambiguities in the
award, back to arbitration panelists for "written statements
setting forth the factual predicate upon which their conclusions
were based, and clarifying the meaning and effect of their
decisions."). Among other things, it is unclear from Arbitrator
Rappaport's decision whether: (i) she concluded the conduct of
all or only some of the four Grievants whom the Arbitrator
reinstated without backpay did, in fact, amount to sexual
harassment within the meaning of the Employer's policy and/or
created a hostile work environment; and (ii) whether Arbitrator
Rappaport assessed and/or specifically found that any of the
Grievants had any history of prior sexual harassment disciplinary
problems. A proper resolution of the present dispute requires a
remand to Arbitrator Rappaport so that she may clarify in writing
the factual predicate for her findings.
VI. Conclusion and Order
Accordingly, for the reasons stated herein, this case is
remanded to Arbitrator Lois A. Rappaport for further
clarification as to her findings. Specifically, this Court
respectfully requests that Arbitrator Rappaport clarify the Award
in writing on or before September 8, 2000, by responding to the
following questions: 1) state the specific definition(s) of
"sexual harassment" and "hostile work environment" used to
measure the Grievants' behavior; 2) state the specific remedies
considered for each of the Grievants; 3) state whether any of the
four Grievants (Messrs. Williams, Angelo Brown, Sean Brown and
Kelly) had had any prior disciplinary problems, infractions,
sanctions, warnings, etc., for sexually oriented behavior in the
workplace; 4) describe the behavior (in detail) of each of the
Grievants which she found to be sanctionable; 5) state and
explain whether the behavior(s) described in response to question
4) constitute sexual harassment; 6) state and explain whether the
behavior(s) described in response to question 4), either
individually or collectively, constitute (or contribute to) a
"hostile work environment"; and 7) state whether and how the
actions and/or behavior of Ms. Ellis may, according to the
Arbitrator, have impacted the conclusions drawn as to the
behavior of the Grievants.
Resolution of the cross-motions before this Court [6-1 and
1-1] shall be stayed pending remand for clarification. The
parties are directed jointly to serve
a copy of this Order upon the Arbitrator on or before July 19,