Opinion
No. CV 04-4000364-S
May 3, 2005
MEMORANDUM OF DECISION
The plaintiff, International Brotherhood of Police Officers ("International"), has brought this action to vacate arbitration awards issued on January 29, 2004 and July 7, 2004 by the Arbitrator, Laurie Cain, in connection with the termination by Norwich Chief of Police Louis Fusaro of the grievant, Lieutenant James F. Daigle, Jr., a member of Local 324 of the International. The defendant objects to the plaintiff's application to vacate the awards and moves to confirm them instead.
On June 11, 2002, Fusaro notified Daigle that he was being demoted to the position of sergeant for failure to complete his probationary period and that he was being terminated from his employment with the City of Norwich Police Department. The president of Local 324 filed a grievance the next day in accordance with the contractual grievance procedure, asserting that Daigle's demotion and termination were without just cause, capricious, and excessive in nature, that they constituted disparate treatment and that they violated the collective bargaining agreement. Fusaro denied the grievance on June 24, 2002 "on the basis that it failed to set forth facts constituting a breach of the collective bargaining agreement or otherwise is not arbitrable." The Local followed the next step in the grievance process by appealing to the town's director of personnel, who denied that appeal for the same reasons. The grievance subsequently went to the State Board of Mediation and Arbitration on July 31, 2002, in accordance with the third step of the contractual grievance procedure.
On August 10, 2002, after the grievance had been submitted to the State Board of Mediation and Arbitration but before it could be heard, the newly elected president of Local 324 notified Daigle that he was convening the Local's executive board to determine whether the grievance was bona fide. The executive board thereupon met and voted that Daigle's grievances were not bona fide. Daigle then submitted a letter of appeal to the membership of the Local, which met and voted on September 5, 2002 in favor of the proposition that the grievance was not bona fide.
On August 26, 2003, the City of Norwich moved to have the grievance dismissed for lack of subject matter jurisdiction based on the fact that Local 324 had concluded that Daigle lacked a bona fide claim that his termination was a breach of the collective bargaining agreement. Meanwhile, Daigle had appealed the Local membership's decision not to pursue his termination grievance to the International, which, in September of 2003, concluded that the grievance was in fact bona fide and that the case should be pursued though arbitration. On November 7, 2002, counsel for the City of Norwich transferred the grievance from the State Board of Mediation and Arbitration to the American Arbitration Association, and the arbitrator was selected. On January 29, 2004, Arbitrator Cain recognized that the Union (by which she clearly meant the International) and the City disagreed over whether Daigle's termination was proper, and she concluded that because the Union as of that time expressed "every intention of proceeding to arbitration on the instant grievance," the matter was indeed arbitrable.
Meanwhile, back at the Local level, new efforts were being undertaken to withdraw Daigle's grievance. The Local's leadership called a special meeting for February 17, 2004. A small fraction of the Local's membership attended, and they voted overwhelmingly in favor of withdrawing Daigle's grievance. Despite the Local's attempt to withdraw the grievance, however, the International continued to pursue the arbitration on Daigle's behalf. At a hearing held on April 1, 2004, Arbitrator Cain was asked in an unrestricted submission to consider whether the grievance was arbitrable and, if so, what should be the remedy.
On July 7, 2004, Cain issued a written award in which she concluded that the matter was not arbitrable because the International lacked standing to contest the validity of the Local's withdrawal of Daigle's grievance. She found that there was no agency relationship between the International and the Local that would enable it to "step into the shoes" of the Local and pursue the grievance when the Local had chosen not to do so; and that the withdrawal of the grievance by the Local was therefore valid because the International lacked authority under its own constitution and bylaws to divest the Local of control over the grievance absent a trusteeship.
As indicated, the plaintiff has filed this application to vacate Cain's July 7 award; the defendant has asked that the award be confirmed. "The scope of review by the court of an arbitrator's power to make an award is limited. Arbitration is a creature of contract between the parties and its autonomy requires a minimum of judicial intrusion . . ." Lathuras v. Shoreline Dental Care, LLC et al., 65 Conn.App. 509, 511-12 (2001). "In deciding whether arbitrators have exceeded their powers under § 52-418(a)(4), we compare the award with the submission to determine if the award and submission conform." International Association of Firefighters, Local 1339 AFL-CIO v. City of Waterbury, 35 Conn.App. 775, 779, 647 A.2d 361 (1994). "[W]hen the submission is unrestricted, the court will not review the evidence or legal questions involved, but is bound by the arbitrator's legal and factual determinations. Game-A-Tron Corp. v. Gordon, 2 Conn.App. 692, 695, 483 A.2d 620 (1984). "Even in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute (2) the award violates clear public policy or (3) the award contravenes one or more of the statutory proscriptions of [General Statutes] § 52-418." Lathuras v. Shoreline Dental Care, LLC et al., 65 Conn.App. 509, 512 (2001). In accordance with General Statutes § 52-418(a)(4), an application to vacate an arbitration award shall be granted "if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made." "Our courts have held that claims of manifest disregard of the law fall within the statutory proscription of § 52-418(a)(4)." "[A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418(a)(4) because the arbitrator has exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. [T]he "manifest disregard of law" ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator's extraordinary lack of fidelity to established legal principles." Garrity v. McCaskey, 223 Conn. 1, 10 (1992).
In Garrity, the court adopted a three-pronged test, "all of which must be satisfied in order for the court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law." Cheverie v. Ashcraft Gerel, 65 Conn.App. 425, 438-39, cert. denied 258 Conn. 932 (2001). Specifically, the court must determine whether: "(1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit and clearly applicable." Id. At 439.
The plaintiff concedes that the submission to the arbitrator was unrestricted but argues that her failure to acknowledge the International's claimed "right to control" Local 324 and its conclusion that an agency relationship between the two did not exist constituted a manifest disregard for the law. It points out that the collective bargaining agreement was between the City and the "International Brotherhood of Police Officers, Local #324," not the local standing on its own, and that the Local exists only as a chartered local unit of the International. It further argues that a National Representative employed by the plaintiff was a participant in the collective bargaining negotiations, that the plaintiff is a signatory to the agreement, and that the plaintiff provided and paid for legal counsel to represent Daigle during the internal affairs investigation that led to his discipline. The International further contends that its counsel, rather than the Local, received notices from the State Board of Mediation and Arbitration, and that there are other indicia of the fact that the entire grievance process recognized the active role played by plaintiff.
Citing Beckenstein v. Potter Carrier, Inc., 191 Conn. 120, 132, 464 A.2d 6 (1983), the plaintiff contends that all three elements required to show the existence of an agency relationship between the Local and the International have been met: "(1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertakings; (3) an understanding between the parties that the principal will be in control of the undertaking." "An essential factor in an agency relationship is the right of the principal to direct and control the performance of the work by the agent." McLaughlin v. Chicken Delight, Inc., 164 Conn. 317, 322, 321 A.2d 456 (1973). The plaintiff argues that the constitution and by-laws of the Local, as well as the facts just recited, demonstrate that the International was in ultimate control of representing its members.
"The defendant argues that the plaintiff's contentions with regard to agency and standing are essentially fact based and that the "existence of an agency relationship is a question of fact." McLaughlin v. Chicken Delight, Inc., supra, citing Botticello v. Stefanovicz, 177 Conn. 112, 125, 411 A.2d 16 (1979). It goes on to note that arbitrators "are empowered to decide factual . . . questions and an award cannot be vacated on the grounds that the construction placed upon the facts . . . were erroneous." Local 1042, Council 4, ASCME, AFL-CIO v. Board of Education of the Town of Norwalk, 66 Conn.App. 457, 462, 784 A.2d 1018 (2001).
The defendant also cites Lathuras v. Shoreline Dental Care, LLC, 65 Conn.App. 509, 514-15, 783 A.2d 83 (2001) and Cheverie v. Ashcroft Gerel, 65 Conn.App. 425, 439, 783 A.2d 474 (2001) for the proposition that "manifest disregard of the law may be found only where the arbitrators understood and correctly stated the law but proceeded to ignore it . . . A party must show that the arbitrator knew her award was contrary to the law," and the court must find that the arbitrators' error was "obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator, the arbitrator appreciated the existence of clearly governing legal principle and decided to ignore it, and the governing law that was ignored is well defined, explicit and clearly applicable."
The court agrees that the determination of whether Daigle's grievance was indeed arbitrable was dependent on whether the plaintiff International was empowered to act on behalf of Daigle thus had standing to pursue the grievance. The arbitrator apparently considered this issue carefully and concluded from the facts that she found that the plaintiff did not have standing and that the grievance was therefore not arbitrable. There is no indication in the record that, understanding the law of agency and standing, she decided to ignore it and to distort the facts so they dictated a result contrary to that required by law. The plaintiff has not demonstrated the kind of manifest disregard for the law that would require a court to put aside the deference that it normally gives to arbitration proceedings. As reconfirmed most recently in Board of Education of the Town of Preston v. Civil Service Employees Affiliates, Local 760, 88 Conn.App. 559, 568 (2005): "The general principles previously set forth suggest that an award based on an unrestricted submission may be vacated only if the award is beyond the submission or if, in fashioning its award, the arbitration panel egregiously has disregarded established law."
In short, when parties bargain for an arbitrated resolution, they give up the right to challenge all but "egregious" errors. They accept the possibility than an arbitrator might make some errors of fact or law, even potentially significant ones, but they also recognize that unless they can establish that those errors reflect a manifest disregard of the law, the award will not be disturbed. Thus, even if the arbitrator erred in her interpretation of the law of agency and standing, and this court does not opine that she did so, unless such an error represents a manifest disregard of the law, and this court has concluded that there was no such manifest disregard on her part, the award may not be disturbed. Having concluded that the plaintiff has not sustained its burden of establishing that the arbitrator manifestly disregarded the law, her award must stand.
The plaintiff's application to vacate the arbitration award is therefore denied. The defendant's objection to the motion to vacate is sustained, and the defendant's application to confirm the arbitration award is granted.
Jonathan E. Silbert, Judge