Opinion
No. CV 06 4006575
March 14, 2008
MEMORANDUM OF DECISION RE APPLICATION TO VACATE ARBITRATION AWARD COUNTER-APPLICATION TO CONFIRM ARBITRATION AWARD
The relevant facts and procedural history of this case are not in dispute. The City of New London, the plaintiff, and AFSCME Council 15, Local 724, the defendant, are parties to a collective bargaining agreement (CBA) which provides for the arbitration of grievances. Personnel Rule IX, Section 4(g) of that agreement provides in relevant part: "In cases where an employee is charged with a crime and the appointing authority determines that the charge, if proven, will be deleterious to or will bring discredit to the service, he may suspend the employee without pay until final determination of the court is announced. If an employee suspended without pay is found not guilty, he or she shall be refunded all pay and credited leave accumulated for the period of suspension." The defendant filed a grievance on behalf of Officer Genaro Velez against the plaintiff, which was submitted to arbitration, alleging that the plaintiff violated this provision when it failed to refund Officer Velez his back pay and benefits following the dismissal of criminal charges against him. Officer Velez had initially been suspended for a period of time, pending a review and final disposition of those charges and corresponding restraining order which prohibited him from carrying a firearm.
The grievance proceeded to a hearing before a tripartite panel of arbitrators of the Connecticut State Board of Mediation and Arbitration. The issue submitted, upon which the arbitrators determined their award, was as follows: "Whether the City of New London violated either the Collective Bargaining Agreement or Personnel Rules, after receiving notification of the dismissal of criminal charges against Officer Genaro Velez, it failed to make payment to him, pursuant to Rule IX, Section 4(g), when he was unable to carry a firearm while suspended and the dismissal was not as a result of a not guilty verdict? And if so, what shall the remedy be?" The issue was agreed upon by both parties to the arbitration. Subsequent thereto, the arbitration panel issued their award sustaining the grievance, finding the plaintiff violated the Personnel Rules. The arbitrators' award, dated October 11, 2006 provides: "The City of New London violated the Personnel Rules when after receiving a notification of the dismissal of criminal charges against Officer Genaro Velez, it failed to make payment to him, pursuant to Rule IX, Section 4(g), when he was unable to carry a firearm while suspended and the dismissal was not as a result of a not guilty verdict. The City of New London shall give Officer Genaro Velez within thirty (30) days of the date of this Award, the pay due him for the period of time from August 11, 2004 through June 28, 2005, at his then rate of pay under the Agreement between the parties, and also give him credited leave accumulated for the aforementioned time period."
On November 9, 2006, the plaintiff filed an application to vacate the arbitration award with the Superior Court, pursuant to General Statutes § 52-418. Therein, the plaintiff alleges: that the arbitrators "exceeded their powers or so imperfectly executed them such that a mutual, final and definite award upon the subject matter was not made"; that the "arbitrators are guilty of misconduct"; that "the award does not conform to the submission"; that "the award is contrary to public policy"; and that "the award is inconsistent with [a] previous decision." On November 28, 2006, the defendant filed a counter-application to confirm the arbitration award, pursuant to General Statutes § 52-417.
In their memorandum of law in support of the application to vacate the arbitration award, the plaintiff argues that the arbitrators exceeded their powers by failing to accord proper deference to the terms of the parties' CBA, and accordingly, the court may compare the CBA with the award to determine whether the arbitrator has ignored his obligation to interpret and apply the CBA as written. The plaintiff also argues that the award is contrary to the plain language of the CBA in that the arbitrators ignored the clear language of the CBA and found that the dismissal received by Officer Velez was equivalent of a not guilty determination under the language of Rule IX, Section 4(g) of the Personnel Rules. The plaintiff further contends that the award is contrary to the public policies regarding the requirement that a police officer be able to carry a firearm in order to perform his job duties. Lastly, the plaintiff argues that the award is inconsistent with a prior grievance decision.
The defendant counters that the submission to arbitration was unrestricted; therefore, the court need only examine the submission and the award to determine whether the award conforms to the submission. The defendant also argues that the arbitrators did not exceed their powers and that they were empowered to decide the factual, legal and interpretation issues, and that under the standard of review applicable to the court the award cannot be vacated on the grounds that the construction placed upon the facts or interpretation of the CBA by the arbitrators was erroneous. The defendant argues that the court is simply charged with determining if the arbitrators have ignored their obligation to interpret the CBA as written. The defendant also contends that the plaintiff has failed to establish that the award violates public policy. Specifically, the defendant argues that the public policy claimed is neither well defined nor dominant.
The defendant has also argued that the arbitration award should not be vacated because the plaintiff has failed to comply with the statutory notice provision appearing in § 52-418(c) which provides: "Any party filing an application pursuant to subsection (a) of this section concerning an arbitration award issued by the State Board of Mediation and Arbitration shall notify said board and the Attorney General, in writing, of such filing within five days of the date of filing." "A review of our Superior Court decisions interpreting other statutes which contain requirements of notice to non-parties, discloses that failure of required notice to non-parties, at least within a specified time period, has not been considered a jurisdictional defect . . . Absent significant evidence of legislative intent, it does not appear that failure to notify such non-parties as the Attorney General and Board [within five days of the date of filing an application pursuant to § 52-418(a)] was intended by the legislature to be a jurisdictional defect." City of Hartford v. Hartford Municipal Employee Association, Superior Court, judicial district of Hartford, Docket No. CV 98 0580700 (February 9, 1999, Wagner, J.) (24 Conn. L. Rptr. 78).
I Standard of Review
The court's analysis of the parties' applications is guided by the well-established principles regarding a party's application to vacate a consensual arbitration award resulting from an unrestricted submission to arbitrators. "Judicial review of arbitral decisions is narrowly confined . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of [a court's] judicial review of the award is delineated by the scope of the parties' agreement . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission . . . Because [the courts] favor arbitration as a means of settling private disputes, [they] undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution . . .
Whether or not a submission is "unrestricted" or "restricted" is not to be determined by the language used by the parties in making the submission to the arbitrators. "The authority of an arbitrator to adjudicate the controversy is limited only if the [collective bargaining] agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, [a collective bargaining] agreement is unrestricted." Garrity v. McCaskey, 223 Conn. 1, 5, 747 A.2d 1017 (1992). Therefore, a submission that frames the dispute or issue, unless specifically agreed otherwise, does not affect the fact that the submission is otherwise unrestricted. See Cox Radio v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 05 4009553 (June 24, 2005, Pittman, J.).
"Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators' decision of the legal questions involved . . . In other words, [u]nder an unrestricted submission, the arbitrators' decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact . . . (Internal quotation marks omitted.) Economos v. Liljedahl, Inc., 279 Conn. 300, 305, 901 A.2d 1198 (2006). See Bridgeport Fire Fighters Local 998 v. Bridgeport, 106 Conn.App. 92 (2008). Simply, "[w]hen the scope of the submission is unrestricted, the resulting award is not subject to de novo review . . . so long as the award conforms to the submission." State v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 84-85, 777 A.2d 169 (2001).
"Even in the case of an unrestricted submission, [our Supreme Court has] . . . recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute . . . (2) the award violates clear public policy . . . [and] (3) the award contravenes one or more of the statutory proscriptions of § 52-418." (Internal quotation marks omitted.) Economos v. Liljedahl, Inc., 279 Conn. 300, 305-06, 901 A.2d 1198 (2006).
II Court's Review of the Award
In the present case, the parties' submission to the arbitrators was unrestricted, therefore the award is not subject to de novo review. Accordingly, the court's review of the award is limited to whether the award conforms to the submission. Thus, the court reviews the arbitration panel's award only to the extent necessary to determine if it conforms to the submission. "As the party challenging the award, the plaintiff has the burden of producing evidence sufficient to show that it does not conform to the submission." (Internal quotation marks omitted.) State v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 86, 777 A.2d 169 (2001). The plaintiff has failed to meet this burden.
After consideration and comparison of the unrestricted submission to the award of the arbitrators, the court concludes that the award conforms to the submission, and that the arbitrators have met their obligation to interpret and apply the CBA as written, specifically Personnel Rule IX, Section 4(g). Therefore, the court will not conduct a review of the award for the errors of law and fact claimed by the plaintiff. Further, the court finds that the plaintiff has failed to properly substantiate its claim that the arbitrators exceeded their powers or imperfectly executed them such that an award upon the subject matter was not made. The award indicates that the arbitrators drafted an award upon the subject matter submitted for their review. Also, there is no indication that the arbitrators failed to accord proper deference to the terms of the parties' CBA or that they have incorrectly interpreted or applied the personnel provisions in question. A court may not reject the findings of arbitrators simply because it disagrees with them. The same is true of an arbitration panel's interpretation of a contract. The court also finds that the plaintiff has failed to properly brief its claim that the arbitrators are guilty of misconduct, therefore, that claim is deemed abandoned.
III Public Policy Exception
The plaintiff has also claimed that the award violates the public policy requiring that a police officer be able to carry a firearm in order to perform his job duties and the public policy that does not allow an individual to carry a firearm while under a domestic violence restraining order.The court begins by setting forth the law that guides an analysis of the plaintiff's public policy claim. "In spite of the general rule that challenges to an arbitrator's authority are limited to a comparison of the award to the submission, an additional challenge exists . . . when the award rendered is claimed to be in contravention of public policy . . . [W]hen a challenge to a voluntary arbitration award rendered pursuant to an unrestricted submission raises a legitimate and colorable claim of violation of public policy, the question of whether the award violates public policy requires de novo judicial review. (Citations omitted; internal quotation marks omitted.) State v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 89-90, 777 A.2d 169 (2001). See State v. New England Health Care, 271 Conn. 127, 135, 855 A.2d 964 (2004).
"To prevent the public policy exception from swallowing the general rule of judicial deference to arbitral authority, the exception must be narrowly construed. Accordingly, [a] court's refusal to enforce an arbitrator's interpretation of [a collective bargaining agreement] is limited to situations where the contract as interpreted would violate some 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 . . . The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated . . . Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail . . . only if [he] demonstrates that the [board's] award clearly violates an established public policy mandate." (Internal quotation marks omitted.) Brantley v. City of New Haven, 100 Conn.App. 853, 860, 920 A.2d 331 (2007).
It is an exceptionally high burden to prove a claim of manifest disregard of the law or public policy under § 52-418(a)(4), and the plaintiff has failed to meets its burden of clearly demonstrating that the award violates a well defined or dominant public policy. The plaintiff has failed to identify any particular provision or statutory scheme that has been violated, and has merely based its claim on general considerations of supposed public interests. Where there is no clearly established public policy, by way of reference to laws and legal precedents, against which to measure the propriety of the arbitrator's award, there is no public policy ground for vacatur. Furthermore, the court agrees with the defendant that the award did not order the plaintiff to allow the grievant to carry a weapon while under the auspices of a protective order. Accordingly, the award does not violate the alleged public policy prohibiting individuals subject to domestic violence restraining orders from carrying firearms. The court, therefore, will not substitute its own reading of the contract terms for that of the arbitrators.
CONCLUSION
"Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the [arbitrators'] powers, the parties are generally bound by the resulting award." (Internal quotation marks omitted.) Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 473-74, 899 A.2d 523 (2006). "[A] party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do merely because that party dislikes the results." (Internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. Dept of Transportation, 273 Conn. 746, 755, 873 A.2d 155 (2005). In the present case, the plaintiff agreed to submit the issue of whether they had violated Personnel Rules by failing to make payment to the grievant pursuant to Rule IX, Section 4(g) to the board for determination, and it is bound to accept the outcome.
For all the foregoing reasons, the plaintiff's motion to vacate the award of the arbitration panel is hereby denied and the defendant's counter-application to confirm the arbitration award is hereby granted.