Opinion
No. CV 00-0597443
November 4, 2003
MEMORANDUM OF DECISION
I.
The plaintiff, Preston Board of Education (Board) and the defendant, Civil Service Employees Affiliates, Local 760, are parties to a written collective bargaining agreement (agreement) dated July 1, 1997 June 30, 2000. Said agreement included a grievance procedure for the resolution of disputes. The defendant filed a grievance with the Board on behalf of Patti Daniels (grievant), the most senior bus driver with 26 years of experience, claiming that the grievant was required to drive a new run without compensation in violation of Sections 17.0, 17.4 and 17.6 of the agreement. Said violation allegedly resulted when the grievant was told by the Board that she would split her afternoon high school and K-8 run by taking the high school students off her bus and exchanging them for Pre-K children. The Board claims that a simple adjustment of replacing one stop with another does not constitute a new run. Moreover, the Board claims that the driver's working hours did not alter as a result of said modification since the run ended as it did prior to the change.
Pursuant to level four of the grievance procedure, the parties submitted the grievance to the State Board of Mediation and Arbitration (arbitration panel or panel). On December 15, 1999, an arbitration hearing was held before a three-member panel at which both parties presented evidence. The parties advanced the following joint submission to the arbitration panel: Did the Preston Board of Education violate the Collective Bargaining Agreement between the parties when it changed the grievant's route? If so, what shall the remedy be?
The arbitration panel issued its written decision finding that the Board had violated the agreement, and, as a remedy, ordered the Board to pay the grievant one hour for each day that grievant was compelled to complete what the panel considered to be a new and involuntary run. The Board thus filed this application, pursuant to Connecticut General Statutes § 52-418 and § 52-419, seeking to vacate the award maintaining that the arbitration panel exceeded its power in making its decision, made an evident material miscalculation of figures, and issued an imperfect award in matter of form. The Board also claims that the award violates this state's public policy which prohibits both punitive awards against a municipality and misappropriation of school funds.
II. A.
It is well established that "[t]he 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 . . . The parties themselves, by the agreement of the submission, define the powers of the arbitrator . . . The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided . . . When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits . . . An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission." (Citations omitted; internal quotation marks omitted.) Hartford v. International Assn. of Firefighters, Local 760, 49 Conn. App. 805, 811-12, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998).
"The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of such qualifications, an agreement is unrestricted . . . Even in the case of an unrestricted submission, [our appellate courts] 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." Id.
Sec. 52-418. Vacating award.
(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) 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.
B.
The arbitration panel's powers are clearly set out in Section 10.5.5 which provides, inter alia, that the arbitrator "shall be bound by and must comply with all of the terms of [the] Agreement. He/she shall not have power to add to, delete from, or modify in any way any of the provisions of [the] Agreement." The issue that was submitted to the panel was simply whether the Board had violated the agreement, and what the remedy ought to be. In its written decision, the arbitration panel held that the route change constituted a new route. The panel found that the Board had violated the agreement by not posting the route and by prohibiting the grievant from exercising her contractual right to choose or accept a changed route. As a remedy, the panel ordered the Board to pay the grievant one additional hour for each day she was "compelled to complete an involuntary run."
Section 4.1 of the agreement enumerates the rights of the Board, including the Board's right to "direct the operation of the employees," "to assign work and/or routes," "determine shift, work schedules and hours of work," and "establish routes." The agreement also contains several references reserving in the Board broad discretion to establish and change hours and routes according to its needs. For example, Section 17.5 provides that "notwithstanding, the hours of employment defined in Section 17, the [Board] shall retain the right to set starting and ending hours based on its analysis of the needs of the school district." Section 17.11 provides "[b]us routes may be adjusted to accommodate the needs of the school district." In failing to accept the Board's position that the change in one stop did not constitute a new route, the panel ignored Section 4.1 and these other relevant provisions of the agreement.
Additionally, the panel erroneously determined that the grievant, as a senior driver, had a contractual right to choose or deny the route in question. It appears that the only relevant provisions that could be interpreted to bestow a privilege on a senior bus driver are Sections 17.6, and 17.9-11. However, under the facts of the case, these provisions can hardly be interpreted as conferring an absolute right in the grievant to choose or deny any route assigned to her. While Section 17.6 requires that the Board assign the transportation of special education/alternative education students in accord with seniority, this provision is not applicable here since the route in question did not involve the transportation of special education students. Section 17.9, which provides that all extra runs will be assigned according to seniority is equally inapplicable because the arbitration panel does not refer to the modified route as an extra route, but rather as a new or changed route. Section 17.11 provides that "[wh]en possible drivers may remain in the assigned bus route from the previous year. However, if a bus driver wants to transfer to another route he/she will select from the remaining available bus routes and be assigned according to seniority," but, "[b]us routes may be adjusted to accommodate the needs of the school district." (Emphasis added). In the present case, the panel did not find that the bus driver wanted to transfer to another route but rather, that the route was not posted. Yet, the Board had a contractual right to establish and adjust the route. While Section 17.10, which provides that all new daily runs will be posted, and 17.11 might be applicable to the issue at hand, as the Board under its contractual right manifested that the change was a simple modification and not a new route, the claim is unavailing. But even if the route was to constitute a new route, the language in this provision does not indicate that the purpose of this posting requirement is to allow the most senior drivers the unfettered right to select or deny a run. The parties, while at the negotiating table, voluntarily granted the Board the exclusive right to establish runs, hours, policies and procedures. Had the parties intended to bestow such a right in senior driver in every situation or every run, the parties would have included specific language to achieve such intent. The parties expressly limited the conditions under which such privilege was to be applicable, and this was not included.
This court also finds an inherent inconsistency with the contract terms and the remedy awarded. The grievant was asked to modify her run by dropping off high school students and, in turn, pick up Pre-K children. Her total run time did not change; it lasted from 2:30 p.m. to 3:15 p.m. — both before and after the change. The Board had the right, pursuant to the agreement, to adjust the route to accommodate the needs of the school district. The grievant was compensated for the run and hours she performed. Even if one were to accept that the alleged run constituted a new run, the appropriate remedy would have been to award the hours per run as identified under Section 17.4, which expressly provides the hours of compensation per run per day for drivers for morning, noon, and afternoon runs. The runs and hours are as follows:
High School and K-8 runs — three (3) hours per day
K-8 only runs — two (2) hours per day
High School only — one (1) hour and one-half (1/2) hours per day
Kindergarten run — two (2) hours per day.
In awarding one additional hour of payment for what the panel determined to be a new run, the panel has essentially disregarded Section 17.4 and established its own basis of compensation for a run, thereby adding new terms to the agreement in violation of Section 10.5.5. By disregarding the clear and specific terms of the agreement and issuing an award that essentially adds new terms in contravention of Section 10.5.5, the panel here exceeded its authority. See City of Danbury v. Teamsters Local 677, Superior Court, judicial district of Waterbury, Docket No. CV 98 0144861S (May 7, 1998, Kulawiz, J.) ( 22 Conn. L. Rptr. 249) (finding that the arbitration panel exceeded its authority by basing the award on its own belief rather than on the provisions of the agreement). See also Board of Education v. AFSCME, 195 Conn. 266, 487 A.2d 553 (1985) (finding that the arbitration panel exceeded its authority by considering and basing its award on a document that was not part of the parties' agreement); Chase Brass Copper v. Chase Brass Copper Union, 139 Conn. 591, 96 A.2d 209 (1953) (finding that the arbitrator's interpretation of the agreement, which made an old standard inapplicable, did not comply with the law as specifically required by the contract provisions).
This court is well aware that an arbitrators' award is to be given great deference, however, it "is not the equivalent of a grant of limitless power An arbitrator's authority to settle disputes under a collective bargaining agreement is contractual in nature, and is limited to the powers that the agreement confers . . . This rule applies not only to the arbitrator's substantive findings, but also to his choice of remedies. He may not impose a remedy which directly contradicts the express language of the collective bargaining agreement." (Citations omitted; internal quotations marks omitted.) Leed Architectural Products, Inc. v. United Steelworkers of America, Local 6674, 916 F.2d 63, 65 (2d Cir. 1990).
An arbitrator's power is both derived from and limited by the collective bargaining agreement. "[A] arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award." (Internal quotation marks omitted.) Hudson Wire Co. v. Winsted Brass Workers Union, 150 Conn. 546, 553, 191 A.2d 557 (1963).
For all of these reasons, this court finds that the award here in question sufficiently demonstrates that the panel exceeded its powers. Accordingly, the plaintiff's application to vacate the arbitration award is hereby granted.
BY THE COURT
Berger, J.