The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER CONFIRMING IN PART AND REVERSING IN PART ARBITRATION AWARDS
Before the Court in these matters are: (1) Petitioner Airgas West, Inc.'s ("Airgas") Petition to Vacate Arbitration Award ("Airgas Petition"), filed August 8, 2012 in CV 12-454; (2) Airgas' Motion for Summary Judgment, filed December 14, 2012 in CV 12-454 ("Airgas Motion"); and (3) Hawaii Teamsters and Allied Workers, Local 996's ("Teamsters" or "union") Complaint to Confirm Arbitration Award, filed September 17, 2012 in CV 12-517 ("Teamsters Motion"). Teamsters filed a memorandum in opposition to the Airgas Motion on January 24, 2013, and Airgas filed a reply on February 13, 2013. Teamsters filed a memorandum in support of its motion on January 16, 2013. Airgas filed a memorandum in opposition to the Teamsters Motion on February 5, 2013, and Teamsters filed a reply on February 10, 2013. These matters came on for hearing on February 25, 2013. Appearing on behalf of Airgas were Ernest C. Moore, III, Esq., and Thomas J. Kennedy, Esq. Appearing on behalf of Teamsters was Sean Kim, Esq. On April 1, 2013, the Court granted Airgas' request to file supplemental authorities, and on April 11, 2013, the Court granted Airgas' Motion to Stay Enforcement until after a final appealable order or judgment is entered by the Court.
The motions address the Arbitrator's Findings, Decision and Award dated June 21, 2012 ("Award"), and the Arbitrator's Supplementary Findings and Decision, dated July 10, 2012. ("Supplementary Award").*fn1 After careful consideration of the motions, supporting and opposing memoranda, and the relevant legal authority, the Arbitration Award and Supplementary Award are CONFIRMED IN PART and REVERSED IN PART as follows: The Airgas Petition and Airgas Motion are GRANTED IN PART AND DENIED IN PART. They are DENIED with respect to Airgas' request to vacate the Award in its entirety, and GRANTED with respect to the Supplementary Award on the issue of grievant's entitlement to back pay for the entire period. The Teamsters Motion is GRANTED in that the Court confirms the arbitration award to the extent it granted the grievance, but does not confirm the Award or Supplementary Award in their entirety.
Airgas and the union are parties to a collective bargaining agreement ("CBA"), and the arbitration awards were rendered pursuant to the grievance and arbitration provision of the CBA.*fn2 The following facts are not disputed and are drawn from the Award. On April 23, 2012, the parties participated in an arbitration regarding the termination of Teamsters member Gordon Oamilda. Airgas terminated Mr. Oamilda on August 19, 2011 for violation of its sexual harassment policy. Mr. Oamilda's co-worker, Gena Fretty, filed an internal sexual harassment complaint following a telephone conversation she had with Mr. Oamilda on August 1, 2011. Ms. Fretty worked as a customer service representative. Mr. Oamilda called the Kapolei Customer Service Desk from his duty station at the Will Call Dock. When Ms. Fretty answered the line, Mr. Oamilda asked to speak to her co-worker, Tammy Bradshaw. The Arbitrator set forth the entirety of the conversation, as reported by Ms. Fretty, as follows:
Gena: [Gordon], how was your weekend?
Gordon: Good. How was your weekend?
Gena: Hanging, tired because I went holoholo
Gordon: Whoa, you went aloha Kona? Gena: No, I went holoholo in Kona.
Gordon: I know all the guys you went aloha must be all happy. Sharing your manapua with every one. Hahaha.
Gena: No, Gordon, I went with my boyfriend to drop off his son.
Gordon: Oh, your boyfriend, huh. . . . Let me talk to Tammy.
[Award at 3.] Ms. Fretty understood Mr. Oamilda's remarks, in this context, to mean that she had indiscriminate sexual relations, and filed an internal complaint.
Peggy Grzywacz, Director of Human Resources, conducted an investigation into Ms. Fretty's complaint. Ms. Grzywacz is based on the mainland and was not familiar with the alleged local slang meanings of "holoholo," "aloha," and "manapua," which Ms. Fretty found offensive in this context. Ms. Grzywacz interviewed Ms. Fretty's supervisor, Ms. Vivian Lima, who told her that she believed the comments were sexual in nature, and that "manapua" can refer to female genitalia and that "aloha" could mean "sleeping around." Mr. Oamilda denied that the words had such meaning. Ms. Lima reported to Ms. Grzywacz that, "he's full of it," and that Mr. Oamilda "said things to lots of people because he's in the Union and feels he is untouchable." [Id. at 8.] At the hearing, Ms. Grzywacz testified that another employee confirmed the sexual meaning of these terms.
Ms. Grzywacz conferred with senior management and legal counsel and determined that termination was the appropriate penalty. Airgas company policy bans "[v]erbal conduct such as making or using derogatory comments, epithets, slurs, sexually explicit jokes, or comments about any individual's body or dress." [Id. at 7.] Company policy provides that "appropriate disciplinary action, up to and including discharge, will be taken," commensurate with the severity of the offense. [Id.] Teamsters filed a grievance on behalf of Mr. Oamilda, alleging violations of the CBA and seeking reinstatement.
At the arbitration, the issue was whether Mr. Oamilda was terminated for "just cause." The Arbitrator determined that the interpretation of the remarks made by Mr. Oamilda to Ms. Fretty was in dispute. [Id. at 2, 9.] He noted that, while Ms. Fretty and some of her co-workers acknowledge that the words "aloha," "manapua," and "holoholo" are common in Hawai'i, they contend that they have indecent meanings as well. The Arbitrator stated that he has lived in Honolulu for over 50 years, but is not familiar with these indecent interpretations. [Id. at 10.] To determine whether these words had sexual meanings in slang usage, he researched the terms in statutes, articles, and conducted online searches ("googled"). Notably, he also asked his adult daughters about the purported meanings and "inquired of other long time Hawaii residents, ladies (and one gentleman) as to this 'Hawaiian common slang'," but none of them was familiar with an alternative meaning. [Id. at 10-11.]
The Arbitrator called into question Ms. Fretty's credibility and motivation, noting that she previously had a "bad misunderstanding in 2005," involving Mr. Oamilda, and that the two employees had not spoken for several years following that incident. [Id. at 11.] The Arbitrator stated that he was "not willing to attribute [Ms. Fretty's] meanings and inferences to [Mr. Oamilda] or that the 'obscene' meanings and definitions could be attributed to him when he used the Hawaiian words Aloha, manapua, holoholo, etc." [Id. at 12.] He ruled that, "[u]nder the circumstances and facts of this case, he is compelled to conclude that Employer has not met its burden of proof to establish sexual harassment, indeed not to the extent so to justify discharge of a long term employee[.]" [Id. at 13.]
The Award granted the grievance and stated that Mr. Oamilda was to be "reinstated with full pay, allowances and seniority." [Id. at 14.]
On June 27, 2012, Airgas filed a Motion to Clarify the Award on the issue of "full pay." It argued that "full pay" and "back pay" are mutually exclusive and the Award did not include a grant of back pay. It also argued that Mr. Oamilda failed to mitigate his damages and did not seek to obtain any employment upon his discharge. Further, Mr. Oamilda conceded that he had no medical records to support his claim that he was too depressed to seek employment. The union argued that the Arbitrator did not retain jurisdiction to explain or clarify the Award with respect to "full pay."
In the Supplementary Award, the Arbitrator ruled that Mr. Oamilda is "entitled to be 'made whole', that is reinstated with full back pay, allowances, seniority, including all contractual benefits (excluding overtime he would have received had he not been taken off the payroll." [Suppl. Award at 2.] He also ruled that, while Mr. Oamilda introduced no medical evidence to support his claim that he was too depressed to seek employment, Airgas failed to "counter [Mr. Oamilda's] explanation as to why he did not attempt to 'mitigate' ...