Opinion
No. CV 09-5033952-S
April 23, 2010
FACTS AND PROCEDURE
This case arises out of an arbitration award by the Connecticut State Board of Mediation and Arbitration (hereinafter also "CSBMA" or "Panel") dated October 14, 2009 involving former police officer Michael Bracken, Jr., (hereinafter also "Bracken") which is also designated as "Bracken 2."
The defendant's full name is International Brotherhood of Police Unions.
The submission in Bracken 1 was " Did the Town Violate the Contract When It Ordered Officer Michael S. Bracken to Undergo a Psychological Examination? If So What Shall Be the Remedy?" The board at that time followed Article 21 Management Rights of the Collective Bargaining Agreement (CBA) finding that under Management Rights, the Town of Windsor Locks through its police chief had a right to refer Officer Bracken for psychological testing. This Court denied the application to vacate that award and granted the application to confirm that award.
In Bracken 2, this case, the submission of the parties to the SBMA was as follows: " Did the Town of Windsor Locks Violate the Collective Bargaining( Agreement When It Placed the Grievant, Officer Michael Bracken, on Unpaid Administrative Leave? If So, What Shall Be the Remedy?" (Emphasis added).
The plaintiff has moved to vacate this arbitration award. The award states as follows: "The Town (referring to the plaintiff) did violate the Collective Bargaining Agreement when it placed the grievant on administrative leave without pay. The grievant shall be returned to administrative leave with pay status retroactive to May 7, 2008, the date he was placed on administrative leave without pay." It should be noted that some of the members of the panel in Bracken 1 and Bracken 2 are the same, but not all of them.
The gravamen of the plaintiff's claim (plaintiff is also known as the "Town") is that the panel in its award exceeded its powers under the submission and contract, and in enforcing the award is a violation of Connecticut public policy. Plaintiff refers to C.G.S. § 52-418(a)(4), in claiming that the award should be vacated, which states: "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." Plaintiff further claims that the award is in direct contradiction of a prior award of the State Board of Mediation and Arbitration (Bracken 1). The prayer for relief seeks a vacating of the award pursuant to C.G.S. § 52-418 and a finding that the award is in violation of public policy. The IBPO Local 523 (hereinafter also the "Union") has countered with an application to confirm the arbitration award and deny the application to vacate the award. Both parties filed briefs, and a hearing was held with oral argument before this Court on April 15, 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. Pollack, 100 Conn.App. 80, 89 (2007).
The second issue to be determined is whether the submission to the arbitrator was restricted or unrestricted. "In determining whether a submission is unrestricted, we look at the authority of 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" . . . in the present case, the agreement does not limit or condition the arbitrators' authority in a manner that would make this a restricted submission. Thus, we conclude that the submission is unrestricted and our review, therefore, is limited." Alderman Alderman v. Pollack, supra, Id. 85.
Where the submission is unrestricted, the arbitrator is empowered to decide factual and legal questions. The submission tells the arbitrator what he or she is obligated to decide. See Harty v. Cantor Fitzgerald, 275 Conn. 72, 80 (2005). "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 . . . 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 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 . . ."
"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 . . ." (Emphasis added.) Id. p. 80.
ISSUES AND FINDINGS 1. Was the Submission Unrestricted?
The short answer is Yes.
The submission does not contain express language restricting the breadth of issues. This submission does not limit or condition the arbitrators' authority in a manner that would make this a restricted submission.
2. Did the Award Conform to the Submission?
The short answer is Yes.
The award stated as follows: "The Town did violate the Collective Bargaining Agreement when it placed the grievant on administrative leave without pay. The grievant shall be returned to administrative leave with pay status retroactive to May 7, 2008, the date he was placed on administrative leave without pay."
3. Should the Application to Vacate be Denied and the Application to Confirm be Granted?
The short answer is Yes.
This Court has found it very difficult to vacate an award by an arbitrator or arbitrators because of the clear principle or standard that states that where the submission is unrestricted the arbitrator is empowered to decide factual and legal questions.
In Bracken 1 the SBMA found that Officer Bracken examined by two physicians was physically fit to return to duty. However, under Management Rights the Chief of Police of the Town ordered officer Bracken to undergo a psychological fitness for duty examination. This examination by a Dr. Safarty, a psychologist and not a physician, concluded that Officer Bracken was not psychologically fit for duty. The Chief of Police had every right as noted in Bracken 1 to refer, pursuant to Management Rights, Officer Bracken for such examination.
Further, Bracken 1 concluded, and this Court agreed, that under Management Rights it was proper public policy for the chief of police to determine whether a police officer was psychologically fit to return to duty.
In Bracken 2 the SBMA panel relied on Article 6, Section 10 and 11 (sic) (in reality it was sections 9 and 10) as well as Article 22, Section 3 which the SBMA in Bracken 2 said mandated that only a physician can issue a recommendation as to whether or not an employee can return to work without restrictions. Those sections refer to a physician, which was not Dr. Safarty who is a psychologist with a Ph.D. but not a medical degree. The panel went on to say that: "Since Dr. Safarty's credentials make no mention that he is a physician, the Town has yet to validate Dr. Safarty's opinion of that of a certified physician . . . Failing to validate Dr. Safarty's opinion by a physician confirms that the Town has not fulfilled its obligation under the contract. The grievant must then remain on administrative leave with pay until such time as the Town obtains a recommendation from a certified physician as to the grievant's ability to return to work without restrictions."
Plaintiff claims that the decision in Bracken 1 is in conflict with the decision in Bracken 2. This issue will be addressed next. However, the Court knows of no public policy that prohibits a police officer put on administrative leave without pay from being awarded administrative leave with pay. Also, based upon the SBMA panel's right to decide issues of fact and law, this Court cannot overturn the panel's conclusion. Accordingly, the Court rejects plaintiff's contention that the SBMA panel in this case violated C.G.S. § 52-418.
4. Is the Award in Direct Contradiction of a Prior Award of the State Board of Mediation and Arbitration?
The short answer is No.
Bracken 1 found that under Management Rights the chief of police had a right to send Officer Bracken for psychological evaluation. In Bracken 2, the SBMA found that because the individual doing the psychological examination was not a physician, there was no valid psychological examination on which the Town could rely.
The SBMA panel in this case, Bracken 2, stated in pertinent part as follows: "The Panel should note that the Panel in case no., 2008-A-0392 (which is Bracken 1) relied heavily on the Town's public policy argument when making its decision. The award states in the analysis and conclusion section that "it is in the interest of society at large and to the Town in particular that the actions of its law enforcement officers be as flawless as possible . . . No such public policy argument can be presented or considered in the instant matter. This case is about wages, the wages the grievant has lost and continues to lose because of the Town's violation of the negotiated provisions of the Collective Bargaining Agreement. The Town may raise a similar public policy argument for this case. If the Town raises that argument, it should be disregarded as irrelevant . . . It is clear that case number 2008-A-0392 deals with an entirely different issue than the instant matter, and while that case involves similar facts and contract provisions, the decision in case number 2008-A-0392 should have no bearing on the panel's decision in this case." The SBMA panel in this case stated in pertinent part: "The instant matter addressed a completely different issue in that of Bracken 1. Bracken 1 addressed whether or not the Town had the right to even send the grievant for a psychological fitness for duty exam." The panel stated that the present matter, Bracken 2 addresses what the grievant's pay status should be.
Assuming arguendo that the two awards are in conflict, the arbitrators have the authority as specified above to determine facts and law, and that is controlling.
It is true that Bracken 1 relied on the Town's Management Rights in sending Officer Bracken for a psychological exam. Bracken 2, on the other hand, focused on whether Officer Bracken should be paid back wages and based its decision on its conclusion that under other sections of the CBA the examination had to be conducted by a physician, and, therefore, invalidated Dr. Safarty's opinion.
Further, there is nothing in case law or statutes which binds the panel in Bracken 2 to the decision in Bracken 1. The plaintiff cites Osbourne v. Locke Steele Chain Co., 153 Conn. 527 (1966), which is irrelevant because it involves whether or not a contract was breached. It has nothing to do with one decision being in conflict with another. Plaintiff also cites Dotolo v. Petroceli, 152 Conn. 654 (1961), and that also is irrelevant because it involves a negligence case without any reference to conflict of decisions. To the contrary the defendant cites Elkouri Elkouri, How arbitration works 591 (Alan Miles Ruben Ed., 6th ed. ABA Section Labor Employment Law 2003) for the proposition as follows: "By no means are arbitrators always swayed by cited awards, even awards that are reasonably on point . . . Arbitrators are likely well aware that their indecisions may be inconsistent with earlier awards."
CONCLUSION
For the foregoing reasons the application to vacate the arbitration award is denied, and the application to confirm the arbitration award is granted.