Opinion
No. CV 10-5034638
September 2, 2010
MEMORANDUM OF DECISION
I
The plaintiff, the state of Connecticut, acting through the University of Connecticut (the university), initiated this action on February 16, 2010, by filing a summons and application to vacate an arbitration award. The application contains the following undisputed facts.
The state and the defendant, Connecticut Police Fire Union (the union), also referred to as NP-5, and formerly Protective Services Employees Coalition, IUPA/IAFF, AFL-CIO, entered into a collective bargaining agreement (the agreement) with respect to wages, hours and conditions of employment covering the period from July 1, 2008 to June 30, 2011. The parties to the agreement submitted a dispute to arbitration involving the promotion of a captain, a union position, to deputy fire chief, a non-union position, within the university fire department, and the vacancy of a captain position resulting from that action. Following the hearing and submission of post-hearing briefs, the record was declared closed on December 22, 2009. An award was issued on January 15, 2010.
Attached to the application are two exhibits: (A) copies of selected parts of the bargaining unit contract between the state and the union; and (B) a copy of the arbitration award.
On May 6, 2010, the state filed a memorandum of law in support of its application to vacate. Attached to the application is (1) an identical copy of the arbitration award that is attached to the application to vacate; and (2) identical copies of the selected parts of the bargaining unit contract that are attached to the application to vacate. On June 4, 2010, the union filed a memorandum of law in opposition to the state's application to vacate. The state filed a reply memorandum on June 18, 2010.
The copies of the arbitration award submitted by the state show that the arbitration hearing was held on November 3, 2009, in Hartford. The arbitrator was Sarah Cannon Holden. The following facts are contained in the award.
The parties agreed to submit the following issue for decision: "Did the State violate Article 1, Section 1; Article 2, Section 2; and/or Article 34, Section Three? If so, what shall be the remedy per the NP-5 Contract?"
On January 22, 2009, the university announced that it had filled two deputy fire chief positions. The human resources division of the university invited the union to attend a meeting on January 27, 2009, to discuss a request by the governor to cut the university budget by 5%. There, Barry Feldman, the university's vice president and chief operating officer, stated that the university intended to create two new deputy chief fire department positions and to eliminate two captain positions, one of which was vacant at the time. The other position was held by Captain Michael McGovern, who was later promoted to deputy chief. The money formerly allocated to the two captain positions was thereby allocated to the two new deputy chief positions. The university stated that the two captain positions would be unfilled, not eliminated, until money was available.
On or about February 1, 2009, the union filed the grievance that gave rise to the arbitration award at issue, in which the union alleged that a non-bargaining unit member, a deputy fire chief, replaced a bargaining unit member, a captain, and was doing bargaining unit work. It was the union's contention that the captain positions had been eliminated, and the state's contention that they had not. At the time of the arbitration hearing, the two captain positions remained vacant. The union did not challenge the state's right to hire non-bargaining unit personnel, rather, it argued that in so doing, the state must not shift bargaining unit work to non-bargaining unit personnel. The union claimed that Deputy Chief McGovern was doing the bargaining unit work that he did when he was a captain and member of the union.
The "basic statement of the dispute between the parties" was that the union claimed that the work previously done by McGovern as a captain, was the work being done by McGovern as a deputy chief; that his bargaining unit work had not been delegated or reassigned to bargaining unit members; and therefore, McGovern was still doing bargaining unit work in violation of article 34, section three of the agreement.
The arbitrator concluded that the union carried its burden of showing that Deputy Chief McGovern continued to do the bargaining unit work for which he was responsible when he was a captain, and that inasmuch he was no longer a member of the union, his doing bargaining unit work constituted a violation of article 34, section three of the agreement. Further, the arbitrator provided that "there was no conclusive evidence presented to indicate with precision exactly what proportion of Mr. McGovern's time was spent doing captain's work and what proportion was spent doing deputy chief's work. Since . . . deputy chief McGovern was doing the work of both captain and deputy chief while in the role of deputy chief, that fact alone would suggest that he was spending at least 50% of his time on captain's work (bargaining unit work) which rightly belonged to existing bargaining unit members, likely the lieutenants."
The arbitrator issued the following award: "The grievance is sustained. The State violated Article 34, Section 3 of the Agreement. The State shall cease and desist from having Deputy Chief McGovern perform bargaining unit work, namely, captain's work. The job duties of captain that Deputy Chief McGovern has been performing shall be returned immediately to the PSEC/CFPU bargaining unit. The State shall pay to the Union for distribution among bargaining unit members 50% of one captain's salary calculated from the date of the filing of this grievance until the date of this award."
II
"Arbitration is [a] process of dispute resolution in which a neutral third party (arbitrator) renders a decision after . . . both parties have an opportunity to be heard . . . The decision rendered by the arbitrator upon the controversy submitted for arbitration constitutes the arbitration award. The principal characteristic of an arbitration award is its finality as to the matters submitted so that the rights and obligations of the parties may be definitely fixed . . . In other words, [a] final award is [o]ne [that] conclusively determines the matter submitted and leaves nothing to be done except to execute and carry out [its] terms." (Citations omitted; internal quotation marks omitted.) Coldwell Banker Manning Realty, Inc. v. Cushman Wakefield of Connecticut, Inc., 293 Conn. 582, 594, 980 A.2d 819 (2009).
"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 delineated by the scope of the parties' agreement . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution." (Internal quotation marks omitted.) Comprehensive Orthopaedics Musculoskeletal Care, LLC v. Axtmayer, 293 Conn. 748, 753-54, 980 A.2d 297 (2009).
The state argues that under General Statutes § 52-418(a)(4), the arbitrator's award must be vacated because the arbitrator exceeded her authority or so imperfectly executed her office that a mutual, final and definite award upon the subject matter was not made.
Specifically, the state argues that the arbitrator violated § 52-418(a)(4) on the following grounds: (1) the award of 50% of one captain's salary violates the State Personnel Act, General Statutes § 5-193 et seq., and the State Employees Relations Act, General Statutes § 5-270 et seq., by awarding compensation over which the state has exclusive authority; (2) the award of 50% of one captain's salary violates article 16, section nine of the agreement by altering its wage schedule, codified at General Statutes § 5-278; (3) the award of 50% of one captain's salary violates article 6, sections two and three of the agreement; and (4) the award is not definite.
The union contends in opposition that the court should not vacate the entire arbitration award based only on the portion of the remedy awarding 50% of one captain's salary, and further argues that: (1) the agreement was entered into under the State Employees Relations Act, and therefore, is outside the dictates of the State Personnel Act, which has no relation nor impact on the State Employees Relations Act; (2) the agreement defines what a captain's salary is and that the calculation of "50% of one captain's salary is a simple, definite calculation;" and (3) the award of 50% of one captain's salary is consistent with the agreement "in that it takes the monies that were collectively bargained for, i.e., the captain's salary, and returns it to the bargaining unit from whence it was bargained."
"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 . . . Thus, the restrictions in the submission define the scope of our judicial review . . . When the submission to the arbitrator contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review, the submission is deemed restricted and we engage in de novo review." (Citations omitted; internal quotation marks omitted.) Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, 288 Conn. 223, 228-29, 951 A.2d 1249 (2008). "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." (Internal quotation marks omitted.) Comprehensive Orthopaedics Musculoskeletal Care, LLC v. Axtmayer, supra, 293 Conn. 753.
"If a party specifically contends, however, that the arbitrator's award does not conform to an unrestricted submission in violation of § 52-418(a)(4), we engage in what we have termed `in effect, de novo judicial review.' . . . [T]hat standard best can be understood when viewed in the context of what the court is permitted to consider when making this determination and the exact nature of the inquiry presented. Our review is limited to a comparison of the award to the submission. Our inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred. With respect to the latter, we have explained that as long as the arbitrator's remedies were consistent with the agreement they were within the scope of the submission . . . The party challenging the award . . . bears the burden of producing evidence sufficient to demonstrate that the award does not conform to the submission." (Citations omitted; internal quotation marks omitted.) Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 288 Conn. 229-30.
In Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 288 Conn. 230, our Supreme Court provided that in light of the above principles and the issue presented in that case, it was "clear that the typical threshold question of whether the submission is restricted or unrestricted is academic." The court explained: "Both parties essentially ask us to compare the award with the issue submitted to the arbitrator, pointing to no other evidence as grounds to vacate or confirm the award. The parties have not asked us to review the arbitrator's findings of fact, conclusions of law, or interpretation of article twenty-one of the agreement. Therefore, regardless of whether we engage in a threshold inquiry of whether the submission is restricted or unrestricted, the standard of review of and considerations related to the ultimate issue are essentially the same. We review the plaintiff's claim that the arbitrator exceeded her authority when she awarded prospective relief to the entire bargaining unit de novo and base our determination on a comparison of the award rendered with the submission to the arbitrator." Id., 230-31.
Similar to Office of Labor Relations, in the present matter, the state does not argue that the arbitration award should be vacated because of any incorrect findings of fact, conclusions of law, or interpretations of the agreement. There is no dispute among the parties that the arbitrator did not exceed her authority, as granted to her by the parties' submission, in deciding that the state violated article 34, section three, of the agreement. Similarly, there is no dispute among the parties that the arbitrator was within her authority to order the state to stop Deputy Chief McGovern from performing captain's work, and that the state return the job duties of captain that he had been performing to the union.
The only dispute is whether the arbitrator exceeded the authority granted to her in the submission when she ordered the remedy that the state "pay to the Union for distribution among bargaining unit members 50% of one captain's salary calculated from the date of the filing of this grievance until the date of this award." Therefore, comparable to our Supreme Court's approach in Office of Labor Relations, this court need not engage in a threshold inquiry of whether the submission is restricted or unrestricted. Instead, the court reviews the state's claim that the arbitrator exceeded her authority when she awarded "distribution among bargaining unit members 50% of one captain's salary calculated from the date of the filing of this grievance until the date of this award," and bases its determination on a comparison of the remedy rendered with the submission to the arbitrator.
"[Section] 52-418(a)(4) provides that an arbitration award shall be vacated 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.
"In [the Supreme Court's] construction of § 52-418(a)(4), [it has], as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers . . . [o]ur inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred . . .
"In determining whether an arbitrator has exceeded the authority granted under the contract, a court cannot base the decision on whether the court would have ordered the same relief, or whether or not the arbitrator correctly interpreted the contract. The court must instead focus on whether the [arbitrator] had authority to reach a certain issue, not whether that issue was correctly decided. Consequently, as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of authority, the award must be enforced. The arbitrator's decision cannot be overturned even if the court is convinced that the arbitrator committed serious error . . . Moreover, [e]very reasonable presumption and intendment will be made in favor of the award and of the arbitrator's acts and proceedings. Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission . . .
"Such a limited scope of judicial review is warranted given the fact that the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision . . . It is clear that a party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do merely because that party dislikes the results." (Citations omitted; internal quotation marks omitted.) Comprehensive Orthopaedics Musculoskeletal Care, LLC v. Axtmayer, supra, 293 Conn. 754-56.
"Because [a]rbitration is a creature of contract . . . in comparing the award to the submission we have found principles of contract interpretation to be helpful tools . . . We therefore note the following well settled rules. A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Also, [w]hen interpreting a contract, we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result." (Citations omitted; internal quotation marks omitted.) Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 288 Conn. 231-32.
III
The state's arguments under § 52-418(a)(4) that the arbitrator exceeded her powers, in other words, exceeded the mandates of the parties' submission, in issuing the award can be summarized into three categories: (1) the arbitrator exceeded her authority by making an award in violation of the terms of the agreement; (2) the arbitrator exceeded her authority by making an award in violation of statutory law; and (3) the arbitrator exceeded her authority because the grievance only pertained to the performance of bargaining unit work by a non-bargaining unit member, not to a wage or compensation issue for union members.
In Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 288 Conn. 224, the plaintiff, the state office of labor relations, appealed from the judgment of the trial court granting the application of the defendant, a union, to confirm an arbitration award rendered in its favor. The facts of the case show that the union filed grievances on behalf of three employees of the state department of veterans' affairs in their bargaining unit. Id., 225. The grievances alleged that the employees had not been paid premium holiday pay in accordance with the parties' collective bargaining agreement. Id., 226. The parties submitted the following issue to the arbitrator: "`Did the [s]tate violate [a]rticle [twenty-one] of the [agreement] in the [s]tate's application of holiday designation and payment of holiday pay to the [g]rievants, [Allegra, LaVigne and Kemp]? If so, what shall be the appropriate remedy, consistent with the [agreement]?'" Id., 226.
"The arbitrator rendered an award in favor of the union. In so doing, the arbitrator expressly cited to a 1998 memorandum issued by Eileen Cantin, a state human resources officer, construing the term `continuous operation.' That memorandum, as quoted in the arbitrator's award, provided: "Maintenance employees in the Food Services Department and Physical Plant Department . . . are engaged in a continuous operation as regards the union contract. Premium holidays . . . shall be celebrated on January 1, July 4 and December 25 even if it is a Saturday or Sunday and even if the state celebrated holiday is different." The arbitrator's award provided: `The [s]tate violated [a]rticle [twenty-one] in its application of the holiday designation for Saturday/Sunday, Independence Day, Christmas and New Year's holidays in 2004. In the future, the [s]tate is directed to apply the 1998 Cantin "Premium Holidays" memo, as outlined above, to employees covered by the [agreement].'" Id., 227.
Thereafter, the state filed an application to vacate the award on the ground that "the arbitrator had exceeded her authority by issuing an award that did not conform to the scope of the submission because the award directed the plaintiff to apply Cantin's memorandum to all of the employees covered by the agreement, rather than just the three employees who had been named in the submission." Id. The trial court denied the state's application to vacate, and granted the union's application to confirm the award, and the state appealed to the Appellate Court. Id., 228. The case was later transferred to the Supreme Court. Id.
In comparing the award to the submission, the Supreme Court first stated the applicable Connecticut law, providing that "[i]n cases in which [t]he question submitted by the parties was specific in form and could have been answered with precision and exactitude, we readily have concluded that an arbitrator who had awarded unrequested relief had exceeded his authority . . . When the issue is phrased generally, however, an arbitrator has not exceeded his authority as long as the relief awarded is consistent with the scope of the question posed." (Citations omitted; internal quotation marks omitted.) Id., 233.
Given the above statement of law, the Supreme Court treated the parties' submission as one that was "specific in form," explaining that "[t]he issue presented in the submission in the present case was worded specifically such that the arbitrator's relief had to be tailored specifically to remedy that issue, and not to contain prospective relief to unnamed parties." Id., 234. Therefore, reading the submission as a whole, the court concluded "that the arbitrator exceeded her authority when she fashioned relief for the entire bargaining unit as opposed to simply the three individuals named in the submission." Id., 232.
The court's holding in Office of Labor Relations, that an arbitrator's award fashioning relief for an entire bargaining unit exceeds the scope of a submission that names individual grievants, is distinguishable from the present case because although the award here fashions relief for the entire bargaining unit, the submission does not name any individual grievants. The more relevant portion of the Supreme Court's decision in Office of Labor Relations is its comparison, in analyzing the facts of that case, of submissions that are "specific in form" to submissions that are "phrased generally."
In applying Connecticut law to the facts of the case, the Supreme Court in Office of Labor Relations provided: "Indeed, the first question in the submission plainly indicates that Allegra, LaVigne and Kemp were individual grievants. Had the defendant sought relief for all members of the bargaining unit collectively, the agreement provides a mechanism to do so in article thirty-two, § 2, which provides in relevant part that `the [defendant] may in appropriate cases submit an "institutional" or "general" grievance on its own behalf . . ." See Industrial Risk Insurers v. Hartford Steam Boiler Inspection Ins. Co., [ 258 Conn. 101, 118, 779 A.2d 737 (2001)] (contract must be read as whole); see also Allstate Life Ins. Co. v. BFA Ltd. Partnership, [ 287 Conn. 307, 313, 948 A.2d 318 (2008)] ("[a] contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction" [internal quotation marks omitted]). Thus, if the defendant had intended to seek relief that applied to the entire bargaining unit, it initially could have filed an institutional grievance in order to frame this issue more broadly for arbitration." (Emphasis in original.) Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 288 Conn. 234.
Implicitly, this portion of the Supreme Court's decision provides that if the union's submission had not sought relief for individual grievants, then, given the specific provision in the parties' collective bargaining agreement permitting institutional grievances, and reading the collective bargaining agreement as a whole, the court would have interpreted the parties' submission as seeking relief applicable to the entire bargaining unit, and therefore, a broader award, such as the one the arbitrator ordered in that case, would not have exceeded the scope of the submission on that basis. See id.
In the present case, the state relies on the holding in Office of Labor Relations in arguing that the award should be vacated because it "exceeds the contractual submission, by ordering relief in the form of compensation to all union members." But that narrow application of Office of Labor Relations ignores the Supreme Court's reasoning in that case, as described above, namely, that the award exceeded the submission because it sought relief for individual grievants only.
Turning to the facts in the present case, the submission states: "Did the State violate Article 1, Section 1; Article 2, Section 2; and/or Article 34, Section Three? If so, what shall be the remedy per the NP-5 Contract?" Unlike Office of Labor Relations, the present submission does not seek relief for individual grievants, nor does it ask whether the state violated certain sections of the agreement based on specifically named conduct. See Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 288 Conn. 226 ("[d]id the [s]tate violate [a]rticle [twenty-one] of the [agreement] in the [s]tate's application of holiday designation and payment of holiday pay to the [g]rievants, [Allegra, LaVigne and Kemp]?" [Emphasis added.]) Therefore, the submission in this case is one "phrased generally," not the type of submission that is "specific in form" and can be answered "with precision and exactitude," and therefore, as long as the relief awarded is consistent with the scope of the question posed, the arbitrator has not exceeded her authority. See id., 233. That the submission asks "what shall be the remedy per the NP-5 contract" gives the arbitrator "broad powers to fashion a remedy." See id., 234 (citing Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981)).
Because the present submission does not name any bargaining unit members, nor even any specific bargaining unit positions, it is plainly not one seeking relief for individual grievants. Instead, it is "seeking relief for all members of the bargaining unit collectively . . ." See id. Indeed, article 16, section three, of the agreement provides, in relevant part, "the Union may in appropriate cases submit an `institutional' or `general' grievance in its own behalf." That provision is identical to the provision contained in the collective bargaining agreement at issue in Office of Labor Relations, which the Supreme Court cited as providing, in that case, a mechanism for the union to seek relief for all members of the bargaining unit collectively. See id. Therefore, because the present submission seeks relief for all members of the bargaining unit collectively, the arbitrator did not exceed her authority, including a broad power to fashion a remedy, when she fashioned relief for the entire bargaining unit.
In addition to the arguments above, the state argues that the arbitrator exceeded her authority for several other reasons based on statutory law and certain terms of the agreement. First, the state argues that the award of 50% of one captain's salary violates the State Personnel Act (personnel act) and the State Employees' Relations Act (relations act) by awarding compensation over which the state has exclusive authority. In direct opposition to this argument, the union contends that the agreement was entered into under the relations act, and therefore, is outside the dictates of the personnel act, which has no relation nor impact on the relations act.
"[T]he 1967 session of the General Assembly enacted a State Personnel Act, General Statutes chapter 67 . . ." Sullivan v. Morgan, 160 Conn. 176, 181, 276 A.2d 899 (1970). "Chapter 67 of the General Statutes, the State Personnel Act, establishes a civil service system which is based upon principles of merit. General Statutes § 5-195. The act was designed to eliminate, as far as practicable, the `spoils' system of making appointments based upon political affiliations, and to prevent discrimination in appointments and dismissals based upon considerations other than fitness to perform a job . . . General Statutes § 5-194 expressly provides that the act `shall be so construed and administered as to provide a uniform and equitable system of personnel administration of employees in the state service' (emphasis [added]), and that such matters as appointment, discipline, and separation from the service shall be accomplished in a manner to provide for reasonable stability of employment." (Citation omitted.) Wagner v. Connecticut Personnel Appeal Board, 170 Conn. 668, 671-72, 368 A.2d 20 (1976); see CT Page 17383 Merchant v. State Ethics Commission, 53 Conn.App. 808, 813, 733 A.2d 287 (1999) ("the State Personnel Act sets forth a system of personnel administration of employees in state service under the authority of the commissioner of administrative services").
"In 1975, the General Assembly adopted the State Employees' Relations Act (SERA), which, for the first time, granted state employees the right to bargain collectively. Public Acts 1975, No. 75-566 (now codified in General Statutes § 5-270 et seq.) . . . [In 1981,] the General Assembly passed Public Acts 1981, No. 81-457, § 12(b) and (g) (now codified in General Statutes § 5-270[b] and [g]), which explicitly excluded managerial employees from SERA's coverage." State Management Ass'n. of Connecticut, Inc. v. O'Neill, 204 Conn. 746, 747-48, 529 A.2d 1276 (1987).
The relations act provides "a comprehensive scheme for regulating the labor relations between state employees and the state as their employer." Fetterman v. University of Connecticut, 192 Conn. 539, 545, 473 A.2d 1176 (1984). "The act authorizes the use of employee organizations for the purpose of negotiations between the state and its employees, and the creation of collective bargaining agreements for state employees. See General Statutes §§ 5-271, 5-276 and 5-276a. The act also contemplates the use of arbitration for resolving contract disputes between the state and employee organizations. General Statutes § 5-276. Collective bargaining agreements, such as the one in this case, are to be reduced to writing and submitted to the General Assembly for approval. General Statutes § 5-278(b)." Preston v. O'Rourke, 74 Conn.App. 301, 315, 811 A.2d 753 (2002).
The state's argument that the arbitrator's award that 50% of one captain's salary be distributed among the bargaining unit members violates the "basic tenets" of the personnel act and the relations act is unpersuasive. The personnel act regulates the administration of state employees while the relations act merely authorizes the use of employee organizations by state employees and collective bargaining agreements between state employees and the state. It does not follow that an alleged violation of the agreement somehow also violates the statutes constituting these acts.
Second, and related to its first argument, the state argues that the award of 50% of one captain's salary violates article 16, section nine of the agreement by altering the agreement's wage schedule, codified at § 5-278(b). The state's argument is unpersuasive for several reasons.
When engaging in statutory interpretation, "General Statutes § 1-2z . . . instructs [the court] that [its] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, [the court] [seeks] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning . . . § 1-2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) State v. Orr, 291 Conn. 642, 651, 969 A.2d 750 (2009).
Section 5-278(b), part of the relations act, provides, in relevant part: "(b) Any agreement reached by the negotiators shall be reduced to writing. The agreement, together with a request for funds necessary to fully implement such agreement . . . shall be filed by the bargaining representative of the employer with the clerks of the House of Representatives and the Senate within ten days after the date on which such agreement is reached . . . The General Assembly may approve any such agreement as a whole by a majority vote of each house or may reject such agreement as a whole by a majority vote of either house . . . If rejected, the matter shall be returned to the parties for further bargaining. Once approved by the General Assembly, any provision of an agreement . . . need not be resubmitted by the parties to such agreement . . . as part of a future contract approval process unless changes in the language of such provision are negotiated by such parties . . . If the General Assembly is in session, it shall vote to approve or reject such agreement . . . within thirty days after the date of filing. If the General Assembly is not in session when such agreement . . . is filed, it shall be submitted to the General Assembly within ten days of the first day of the next regular session or special session called for such purpose. The agreement . . . shall be deemed approved if the General Assembly fails to vote to approve or reject such agreement . . . within thirty days after such filing or submission. The thirty-day period shall not begin or expire unless the General Assembly is in regular session. For the purpose of this subsection, any agreement . . . filed with the clerks within thirty days before the commencement of a regular session of the General Assembly shall be deemed to be filed on the first day of such session."
Based on the clear language of the parts of the statute relevant to the agreement, above, § 278(b) merely provides the procedure for legislative approval of collective bargaining agreements including the present agreement between the parties. That section does not "codify" the agreement or any provisions contained therein, including the wage schedule.
Article 16, section nine, subsection (c) provides in relevant part: "The arbitrator shall have no power to add to, subtract from, alter, or modify this Agreement, nor to grant to either party matters which were not obtained in the bargaining process . . ." The state argues that the arbitrator has violated this section and the agreement as a whole by attempting to "unilaterally alter these contractually established wages, by distributing `among all union members' the salary (50%) of one captain's position" by ordering a remedy that is not "per the NP-5 contract" as required by the language of the submission.
The challenged portion of the award provides: "The State shall pay to the Union for distribution among bargaining unit members 50% of one captain's salary calculated from the date of the filing of this grievance until the date of this award." The award does not attempt to add provisions to, nor subtract existing provisions from, the agreement, as prohibited by article 16, section nine, subsection (c). Further, while the award orders the payment of a monetary remedy, it does not order that the remedy be distributed as wages or salary, or that the existing wage schedules be modified to effectuate that award in a way that would exceed the arbitrator's authority. Instead, in concluding that the state violated the contract by assigning bargaining unit work to non-bargaining unit personnel, the arbitrator seeks to order a remedy in accord with the one sought by the union.
The arbitration decision makes it clear that the monetary effect of the state's conduct was a motivating factor behind the dispute between the parties. Indeed, the impetus of the entire grievance was the suspension of two union positions by the state for budgetary reasons, and the use of money allocated to those positions to fund two other positions. The arbitrator provides in her decision that the union's position was that "when the university was faced with a request to reduce its budget by 5% it simply eliminated two captain positions and used the money to hire two deputy chiefs in violation of article 34." As a result, the union expressly sought a monetary remedy. The decision provides: "For remedy, the union asks that the money `stolen' from the two bargaining unit positions and allocated to managerial positions be returned to the bargaining unit allocation of the budget `so that all of the predetermined employees and positions remain in the [bargaining unit]; which amounts to no more nor less than the state (and the legislature) pledged when the parties exchanged proposals and resolved the contract, replete with this promise (article 34) that the legislature has continuously approved . . . In addition, the union asks that the `lost wage-value of the two lost captain salaries be quantified for the period of loss, and the money equivalent thereto be split equally among the remaining captains."
That at least one of the parties sought a monetary remedy, and thus, expressly believed that ordering payment of a monetary remedy was within the arbitrator's authority, supports the conclusion that the arbitrator was "even arguably construing or applying the contract and acting within the scope of authority." See Comprehensive Orthopaedics Musculoskeletal Care, LLC v. Axtmayer, supra, 293 Conn. 754-56. Further, that the arbitrator chose to base the monetary remedy awarded on the wage schedules contained in the agreement, as quantified by the award of "50% of one captain's salary," only supports the conclusion that the arbitrator made her award within her authority to order a remedy "per the NP-5 contract" as provided in the parties' submission.
Finally, the state argues that "article 6 of the collective bargaining agreement specifically limits the nature and type of payments which are to be made by the state directly to NP-5, under the contract, for the benefit of its members." More specifically, the state argues that sections two and three of article 6 "expressly limit payment to the union, on behalf of its members, to union dues and agency services fees, respectively."
Article 6, section two of the agreement provides: "Union dues and/or assessments shall be deducted by the state employer biweekly from the paycheck of each employee who signs and remits to the state an authorization form. Such deduction shall be discontinued upon written request of an employee (30) days in advance."
Article 6, section three of the agreement provides: "An employee who within thirty (30) days after initial employment in the bargaining unit fails to become a member of the union or an employee whose membership is terminated for nonpayment of dues or who resigns from membership shall be required to pay an agency service under section four."
The state argues that "where a statutory or contractual provision expressly enumerates the type of payments which the state-employer shall directly make to the union, it excludes all others." In support of this purported principle of law, the state quotes Starks v. University of Connecticut, 270 Conn. 1, 11, 850 A.2d (2004), citing State v. Vickers, 260 Conn. 219, 225, 796 A.2d 502 (2002) ("[w]e have stated that [u]nless there is evidence to the contrary, statutory itemization indicates that the legislature intended [a] list to be exclusive" [internal quotation marks omitted]). But those authorities do not support the purported principle the state argues the court should recognize.
Both Starks v. University of Connecticut and State v. Vickers, are distinguishable in that in both cases, the Supreme Court was engaged in statutory, not contract interpretation. See Starks v. University of Connecticut, supra, 270 Conn. 10-11 (interpreting General Statutes § 31-308a); State v. Vickers, supra, 260 Conn. 221-23 (interpreting General Statutes § 29-35(a)). Further, in Starks, although the Supreme Court noted the principle cited above from Vickers in recognizing that § 31-308a enumerated several factors to be considered, it ultimately found such "generalized arguments" not controlling of the interpretation of that statute. Starks v. University of Connecticut, supra, 270 Conn. 11. Moreover, in Vickers, § 29-35(a) created a list of persons specifically excluded from the requirements of the statute. State v. Vickers, supra, 260 Conn. 225. The statute, then, by the very nature of its purpose, was exclusive. See id.
In the present contractual circumstance, the agreement contains two provisions that require the state to make certain mandatory paycheck deductions related to union dues. The agreement does not create an itemized list, as in the statute in Vickers, of state payments or deductions that was intended to be the parties' exclusive representation of the type of payments that the state can make to union members. While the state argues that "nothing in the contract permits or obligates the state-employer to make payment of 50% of a classified service position directly to the union, for distribution to its members," nothing restricts the state from making such payments either.
For the foregoing reasons, and in particular, by relying on the Supreme Court's decision in Office of Labor Relations, this court concludes that the portion of the award providing that "[t]he State shall pay to the Union for distribution among bargaining unit members 50% of one captain's salary calculated from the date of the filing of this grievance until the date of this award"; (emphasis added); does not fall outside the scope of the submission, and, accordingly, the arbitrator did not exceed her authority in rendering such an award.
This court's conclusion is consistent with Connecticut's limited scope of judicial review for arbitral matters, requiring that "as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of authority, the award must be enforced. The arbitrator's decision cannot be overturned even if the court is convinced that the arbitrator committed serious error . . . Moreover, [e]very reasonable presumption and intendment will be made in favor of the award and of the arbitrator's acts and proceedings." (Citation omitted; internal quotation marks omitted.) Comprehensive Orthopaedics Musculoskeletal Care, LLC v. Axtmayer, supra, 293 Conn. 755.
IV
This court's conclusion that the arbitrator did not exceed the scope of her authority above, however, does not dispose of the present matter because § 52-418(a)(4) provides not only that an arbitration award shall be vacated if the arbitrators "have exceeded their powers," but by including the word "or," also provides that an arbitration award shall be vacated if the arbitrators "have so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made." See General Statutes § 52-418(a)(4). The state, in addition to its arguments discussed above, also argues that the arbitration award should be vacated under § 52-418(a)(4) because the award is not definite.
"[A]n award must be final as to the matters submitted so that the rights and obligations of the parties may be definitely fixed." Local 63, Textile Workers Union v. Cheney Bros., 141 Conn. 606, 617, 109 A.2d 240 (1954), cert. denied, 348 U.S. 959, 75 S.Ct. 449, 99 L.Ed. 748 (1955); see Board of Education v. Local R1-126, National Association of Government Employees, 108 Conn.App. 35, 42, 947 A.2d 371 (2008); State v. AFSCME, Council 4, Local 1565, 49 Conn.App. 33, 36, 713 A.2d 869 (1998), aff'd on other grounds, 249 Conn. 474, 732 A.2d 762 (1999); see also Bridgeport City Supervisors' Ass'n. v. Bridgeport, 109 Conn.App. 717, 728, 952 A.2d 1248, cert. denied, 289 Conn. 937, 958 A.2d 1244 (2008); Bridgeport Fire Fighters Local 998 v. Bridgeport, 106 Conn.App. 92, 96, 940 A.2d 868 (2008); International Brotherhood of Police Officers, Local 361 v. New Milford, 81 Conn.App. 726, 730-31, 841 A.2d 706 (2004); Rocky Hill Teachers' Ass'n. v. Board of Education, 72 Conn.App. 274, 280, 804 A.2d 999, cert. denied, 262 Conn. 907, 810 A.2d 272 (2002); but see Hayes v. Travelers Indemnity Co., 26 Conn.App. 418, 422, 601 A.2d 555 (1992) ("[m]oreover, the award must be certain in the sense that there are no reasonable questions as to its meaning").
In Board of Education v. Local R1-126, National Association of Government Employees, supra, 108 Conn.App. 44, an arbitration award ordered the plaintiff, a town board of education (the board), to pay full-time employees, members of the defendant, a union, for missed overtime opportunities during a certain period of time. On appeal, following the trial court's denial of its application to vacate, the board argued that the award was indefinite. Id., 36-37, 42. In considering that argument, the Appellate Court compared the factual circumstances to those in State v. Connecticut Employees Union Independent, Inc., 46 Conn.App. 520, 699 A.2d 307, cert. denied, 243 Conn. 948, 704 A.2d 801 (1997), in which "the arbitrator found that the state employer had violated its overtime equalization obligation under its collective bargaining agreement with the defendant employees union . . . The state applied to vacate the award alleging, inter alia, that [t]he award orders the state to provide additional overtime opportunities . . . to those employees who were given fewer overtime opportunities . . . but does not identify those employees or a means by which the state can determine who those individuals are . . . In the course of concluding that the award was sufficiently final and definite, and that the trial court improperly had granted the state's application to vacate, [the Appellate Court] stated that the trial court improperly substituted its judgment for that of the arbitrator because of a perceived lack of evidence and the imprecise nature of the award . . . The decision also noted that an arbitrator is not necessarily required to present a detailed explanation as to how the grievant should be made whole; if he or she provides sufficient guidance for the parties to satisfy the award, it will be considered final and definite . . . see also State v. Connecticut Employees Union Independent, Inc., 33 Conn.App. 737, 739, 638 A.2d 619 (1994) (holding that arbitration award stating that "[t]he [s]tate shall . . . make [the grievant] whole for any lost wages and benefits which he incurred as a result of his layoff," although not detailed, provided sufficient guidance for parties to satisfy award)." (Citations omitted; emphasis added; internal quotation marks omitted.) Board of Education v. Local R1-126, National Association of Government Employees, supra, 108 Conn.App. 43-44.
Following this discussion in Local R1-126, National Association of Government Employees, the Appellate Court then concluded that its reasoning in Connecticut Employees Union Independent, Inc., supra, 46 Conn.App. 520, applied to the circumstances of the case before it. The court stated: "The award in the case at hand orders the board to pay full-time employees for missed overtime opportunities during a certain period of time; it thereby fixes the board's obligation in relation to the union and provides the board sufficient guidance in how to fulfill that obligation. The board's suggestion that the award is somehow indefinite and impermissibly `open to negotiation' because it claims it is unable to calculate damages misses the point. A party's putative inability to implement an award does not necessarily compel the conclusion that the award in question either is indefinite or somehow fails to fix definitively the rights and obligations of the parties. The two issues are not necessarily related. Because, pursuant to § 52-418(a)(4), this court has the power to order that an award be vacated only when the second of those issues is implicated, the trial court properly denied the board's application to vacate the award." (Emphasis added.) Id., 44-45.
This court concludes that Local R1-126, National Association of Government Employees applies to the present circumstances. The remedy portion of the award in the present case orders the state to pay to the union for distribution among bargaining unit members 50% of one captain's salary calculated from the date of the filing. This order fixes the state's obligation in relation to the union and provides the board sufficient guidance on how to fulfill that obligation, even though the state does not know the exact class or level of captain's salary to use in calculating the remedy. See id.
In arguing that the award is not definite, the state cites two appellate cases in support of its argument: State v. AFSCME, Council 4, Local 1565, and Rocky Hill Teachers' Ass'n. v. Board of Education. The Appellate Court in Local R1-126, National Association of Government Employees, however, specifically distinguished those two cases from the factual circumstances in that case. The court said: "In AFSCME, Council 4, Local 1565, the aggrieved party was a correction officer who wrongly had been dismissed from her job. The arbitration award ordered the grievant to be reinstated at either the Niantic correctional facility or at an alternate facility that would be agreeable to all parties . . . In Rocky Hill Teachers' Ass'n., the issue was the calculation of employee contributions for health and dental care premiums. In the award, the arbitrator ordered the parties `to negotiate the issue of whether to include the dental costs within the formula to determine teacher contributions toward medical/health premiums. In the event that said negotiations do not result in an agreement between the parties within thirty (30) days, I order the parties to submit this issue to binding arbitration . . .' (Citation omitted; internal quotation marks omitted.) Rocky Hill Teachers' Ass'n. v. Board of Education, supra, 72 Conn.App. 277. [The Appellate Court] concluded in that case, as in AFSCME, Council 4, Local 1565, that because the award similarly required further negotiation, it thereby failed to fix the rights and obligations of the parties and was not final under § 52-418." (Citation omitted; emphasis in original.) Board of Education v. Local R1-126, National Association of Government Employees, supra, 108 Conn.App. 42-43.
After the above review of AFSCME, Council 4, Local 1565 and Rocky Hill Teachers' Ass'n., the Appellate Court in Local R1-126, National Association of Government Employees concluded: "We disagree with the [plaintiff's] equating its case, which may involve further negotiation, with those two cases, in which further negotiation was impermissibly required as part and parcel of the awards rendered in those cases." (Emphasis in original.) Id., 43.
For the foregoing reasons, and relying on Local R1-126, National Association of Government Employees, this court concludes that the fact that the state does not know the exact class or level of captain's salary to use in calculating the remedy, "does not necessarily compel the conclusion that the award in question either is indefinite or somehow fails to fix definitively the rights and obligation of the parties." See id., 45. Therefore, the arbitrator did not fail to make a mutual, final and definite award upon the subject matter submitted.
CONCLUSION
For the foregoing reasons, the state's application to vacate the arbitration award is denied.