Opinion
No. FST CV 10-6004315 S
October 22, 2010
MEMORANDUM OF DECISION MOTION TO VACATE OR MODIFY OR AFFIRM ARBITRATION AWARD
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, Stamford Police Association (the Union), filed a grievance on behalf of Sgt. Ryan Devanney with Chief of Police Brent B. Larrabee on or about September 21, 2007. The grievance involved the assignment and duties of Sgt. Devanney.
On March 19, 1996, Sgt. Ryan Devanney was assigned to the Bureau of Auxiliary Services in the Stamford Police Department. On March 20, 2003, Lieutenant Arthur Boccuzzi was relieved of his assignment at the Bureau of Auxiliary Services. Sgt. Devanney remained in the Auxiliary Services assignment after Lt. Boccuzzi left and continued to perform varied tasks, some of which had been performed by Lt. Boccuzzi.
By a letter dated September 21, 2007, the plaintiff filed a grievance with Chief of Police Brent B. Larrabee. The plaintiff contended that: "Per ¶ 12 Sec. D of the Collective Bargaining Unit, `[w]henever an employee is assigned to a higher acting rank or permanently promoted, he shall be paid in his new assignment at the single rate provided for the higher job classifications . . ." The letter goes on to state that, "The SPA demands that Sgt. Ryan Devanney be paid for the work he has performed and is currently performing at acting Captain's rate." (Pl. Exh. B-5.) The Chief denied the grievance on January 11, 2008. Thereafter, the grievance was filed with the Police Commission for the City of Stamford. They also denied the grievance. On or about May 28, 2008, a request for grievance arbitration was filed indicating the nature of the grievance was "acting out of rank." (Pl. Exh. B-7.)
The parties submitted one issue to be determined by the arbitrators, that was, "Is Case Number 2008-A-0876 arbitrable?" A hearing was conducted on March 4, 2009 at which time both parties appeared, provided testimony, exhibits and argument. Thereafter, the parties each submitted post-hearing briefs.
On March 2, 2010, the Board of Mediation and Arbitration ("Board") issued an award. The Board found that the grievance was not arbitrable. The discussion of the decision stated that: "the changes to Sergeant DeVaney's (sic) position are not a matter of assignment which only involves a temporary change. Instead the changes he alleges appear a subject for reclassification, a change of position from one class to another due to a permanent change." The Board also stated that: "Alternatively, this grievance deals with a matter of reallocation of the Grievant's position which means that his position must be in a higher salary grade, though not necessarily in a higher class . . ." In the decision, the Board indicates that it is enforcing the language of Article 12, Section E of the Collective Bargaining Agreement.
The plaintiff argues that the Board went beyond the issue submitted for their consideration. The basis of the plaintiff's argument is that the Board referred to the classification in reference to the job performed by Sgt. Devanney. The plaintiff contends that the consideration of the job content as they define it went beyond the submission as to whether the grievance is arbitrable. The defendant contends that as part of the submission the Board very certainly could consider the argument that the claim involved job content or classification and thus pursuant to the contract was not an arbitrable issue.
The plaintiff filed an Application to Vacate or Modify the Arbitration Award on March 30, 2010. The defendant, City of Stamford submitted a memorandum of law dated June 4, 2010, objecting to the application to vacate or modify and requesting that the court affirm the Board's award. The plaintiff submitted a memorandum of law dated June 14, 2010 in support of the motion to vacate or modify the arbitration award. The defendant submitted a reply memorandum of law dated June 25, 2010.
The parties appeared and argued this matter on June 28, 2010.
STANDARD OF REVIEW
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. Alderman Alderman v. Pollock, 100 Conn.App. 80, 89, 917 A.2d 60 (2007).
". . . 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 . . ." Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 80, 881 A.2d 139 (2005)
In determining if the submission to the arbitrator was restricted or unrestricted you look to the authority given to the arbitrator. "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 any such qualifications an agreement is unrestricted." Alderman Alderman v. Pollock, id. 85. Therefore, if the submission does not place any conditions or limits on the power of the State Board of Mediation and Arbitration to decide the issues, it is unrestricted. New Haven v. AFSCME, Council 15 Local 530 , 9 Conn.App. 396, 399, 519 A.2d 93 (1986). In the case of an unrestricted submission, the Court pursuant to General Statutes § 52-418 may vacate an arbitration award "if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made." C.G.S. § 52-418(a)(4). "[I[n deciding whether arbitrators have exceeded their powers, as that phrase is used in [General Statutes} § 52-418(d) now 52-418(a)(4) a court need only examine the submission and the award and determine whether the award conforms to the submission. Waterbury v. Waterbury Police Union, 176 Conn. 401, 404, 407 A.2d 1013 (1979).
In the present case, the agreed submission to the arbitrator was "Whether Case No. 2008-A-0876 is arbitrable?" (Joint Exh. 1.) This submission does not contain any conditions, restrictions, or explicit rights. The plaintiff states in its memorandum that the "Parties and the State Board agreed to limit the scope of the arbitration to the issue of whether the Union's grievance based on a claim for `acting pay' was `arbitrable' under the applicable section of the Collective Bargaining Agreement." This is not accurate based upon the evidence, testimony and final award. The only clear finding is that the Board and parties submitted one very broad question for submission. The court in Purcell v. State of Connecticut et al., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 89 0257956 (December 10, 1990, Spear, J.) [ 3 Conn. L. Rptr. 542], ruled upon the same issue. It found that a submission which stated, "Is this matter arbitrable?" is considered an unrestricted submission. Purcell, supra at 4487, citing Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981).
In the instant case, based upon a review of the submission to the arbitrator and the exhibits submitted by both parties with their memorandum the court finds that the submission to the arbitrator was unrestricted. There is no evidence or testimony that the parties agreed to a very narrow review for arbitrability nor did either of the parties express any explicit rights or conditions to the issue submitted that would impact this conclusion.
"Arbitration is the voluntary submission, by the interested parties, of an existing or future dispute to a disinterested person or persons for final determination." (Internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 194, 680 A.2d 1243 (1996). "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 our judicial review of the award is delivered 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. The scope of review for arbitration awards is exceedingly narrow. Rocky Hill Teachers Assn. v. Board of Education, 72 Conn.App. 274, 278, 804 A.2d 999, cert. denied, 262 Conn. 907, 810 A.2d 272 (2002). The court has recognized three grounds for vacating an award in the case of an unrestricted submission, that is: "1) the award rules on the constitutionality of a statute . . . 2) the award violates clear public policy . . . 3) the award contravenes one or more of the statutory proscriptions of General Statutes § 52-418." (Internal quotation marks omitted.) Local 1042, Council 4, AFSCME, AFL-CIO v. Board of Education, 66 Conn.App. 457, 463, 784 A.2d 1018 (2001). The plaintiff has not alleged that there is a question of constitutionality and although the plaintiff refers to this award as against public policy, there is no evidence or testimony that would support a finding by this court on review to find such. The third exception incorporates General Statutes § 52-418. This statute sets forth four reasons which will permit the vacating of an arbitral award: "(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 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." The plaintiff argues that even if the submission is unrestricted the court's review is de novo because of the allegation that the award violates public policy. This is contrary to the review as the court has noted above. The review is based upon the narrow exceptions and application of the statute to this award.
DISCUSSION
The plaintiff's application to vacate or modify dated March 30, 2010 sets forth six different alleged violations in accordance with its claims pursuant to § 52-418(a), (2), (3), and (4). The plaintiff also alleges that the award violated § 52-419(a)(2) arguing that the arbitrator's award was for a issue not submitted to them which has, among other things, deprived the Plaintiff of an award, affected the merits of the case and violates public policy. In particular, the plaintiff argues that the decision of the Board goes to the substance and merits of the case and not to the arbitrability. The plaintiff argues it did not have the opportunity to fully present evidence in this regard and the decision improperly considered the testimony. The plaintiff contends that the only issue before the Board was limited to whether the assignment violated ¶ 12D of the Collective Bargaining Agreement and thus a decision as to whether this action falls within the parameters of this section. The defendant argues it its memorandum of law in objection to the motion to vacate or modify that the plaintiff was not precluded from presenting testimony and evidence related to the submission and that the finding of the Arbitrators was within the Board's authority. The defendant further argued that the reclassification issue was argued and raised as a defense in the hearing before the Board.
The memorandum of law submitted by the plaintiff cites to ?52-518, et seq. in the opening grounds for relief. The court assumes based upon the application and the argument within the memorandum that this was a scribner's error.
Although the plaintiff alleges that it was not permitted to present evidence and that the evidence and testimony before the arbitrators was improper as to the issue of arbitrability, it has failed to provide a transcript of the hearing to the court. Instead it submits an affidavit which cannot take the place of the testimony and is not considered by this court as a substitution for the transcript.
The plaintiff's argument as to Paragraph 12D is not consistent with the broad submission that does not confine the question of arbitrability to this paragraph.
In determining whether the Board properly ruled upon the issue of arbitrability, this court has viewed very closely the submission and the written arguments that were provided to the Board after the hearing. In doing so, the court finds that the Board not only had a very open-ended, broad question for review which did not specifically relate to ¶ 12D but also engaged in extended arguments addressing the issues which were determinative of the Board's decision that the matter is not arbitrable. In particular, the plaintiff submitted a memorandum to the Board at the conclusion of the hearing outlining their claims and addressing their objections to the claims raised by the City during the hearing. (Pl. Exh. C.) This memorandum submitted by the plaintiff on April 21, 2009 outlines the City's position that the grievance was not timely filed and that the City contended the issue is a reclassification for the Personnel Commission under the Classified Service Rules and not a claim pursuant to ¶ 12D. Additionally, the plaintiff recognizes the testimony presented to the Board when it indicates in their memorandum that the "testimony and facts in this case reveals that the matter is arbitrable." (Pl. Exh. C.) The plaintiff thus argues that the very same facts that can be used to demonstrate the matter is arbitrable cannot be relied upon or utilized for a finding that the matter is not arbitrable. The plaintiff argued in their memorandum to the Board the very same issues that it now raises in this appeal, that is, the testimony relates to the substantive nature of the grievance and not arbitrability. The Board in its decision stated that the testimony and evidence presented demonstrated that "the changes to Sergeant Devanney's (sic) position are not a matter of an assignment which only involves a temporary change." This finding by the Board is based upon the testimony related specifically to the ¶ 12D which states: "Whenever an employee is assigned to a higher acting rank or permanently promoted, he shall be paid in his new assignment at the single rate provided for the higher job classifications, without reference to longevity payments." The finding of facts by the Board addresses and supports the basis for a determination that this grievance is not arbitrable.
The plaintiff did not argue at this time that they were precluded from offering evidence to rebut the City's contentions.
"[T]he arbitrator's interpretation of the scope of the issue must be upheld so long as it is rationally derived from the parties' submission . . ." Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 99, 881 A.2d 139 (2005). The Arbitration Award and decision incorporates the arguments made by the parties and its interpretation of the evidence, testimony and the relation to the Collective Bargaining Agreement. The plaintiff takes a very narrow position as to what the Board should review to determine arbitrability. They propose that the Board view only Paragraph 12D and look no further nor consider any of the testimony, evidence or arguments in relation to the reclassification. This argument is disingenuous since it appears that Sgt. Devanney provided ample testimony to determine that the claims are not consistent with a grievance as argued by the plaintiff. In addition, the plaintiff provided ample argument to the Board on the reclassification issue which the Board considered and analyzed in determining that the matter was not arbitrable. Because the submission was unrestricted, the court does not review the arbitrator's legal conclusions. Wachter v. UDV North America, Inc. 75 Conn.App. 538, 545, 816 A.2d 668 (2003). "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 construction placed upon the facts or 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." (Internal quotation marks omitted.) (Citations omitted.) Wachter v. UDV North America, Inc., supra at 545.
In fact, the original letter submitted by Sgt. Devanney to initiate the grievance stated that he was addressing his "current pay in regard to my area of responsibility." (Exh. D.) A review of this claim can reasonably be interpreted within Paragraph 12E that states: "Claims for reclassification from changes in job content shall be referred to the Civil Service Commission."
The plaintiff has failed to demonstrate that the award was the result of any misconduct, corruption, fraud, undue means, partiality, or exceeded their powers or so imperfectly executed their power. The Board's interpretation of the issue submitted by the parties was entirely reasonable and the analysis was consistent with the testimony, evidence and argument of the parties. The plaintiff has failed to present any testimony or evidence that supports the claims pursuant to General Statutes § 52-418(a)(1), (2), (3), or (4), or that the arbitrators violated public policy.
The defendant has argued in the alternative that the grievance was filed in an untimely manner and thus it cannot proceed. This issue, although submitted, was never decided by the Board. However, because the court has determined that the decision of the Board is affirmed there is no basis for the court to examine an issue never decided by the Board nor having an impact upon the ruling of this court.
CONCLUSION
The court finds that the award conforms to the submission of the parties. Therefore, the court denies the Application to Vacate or Modify the Award and grants the Application to confirm the award of the Board of Mediation and Arbitration.