Opinion
No. CV 08-4035842-S
November 2, 2009
MEMORANDUM OF DECISION RE APPLICATION TO VACATE ARBITRATION AWARD (#101)
This dispute arises out of the dismissal of Deric Pina, a union member, from his position of employment with the defendant, the Connecticut department of correction (the department). Pursuant to a collective bargaining agreement, the union filed for arbitration with the state board of mediation and arbitration. The evidentiary hearing concluded on April 18, 2007. Briefs were filed on June 11, 2007. The arbitrator issued her decision on January 31, 2008, over seven months after the filing of the briefs and over nine months after the conclusion of the hearing.
For purposes of this memorandum, Deric Pina and the union will collectively be referred to as the plaintiffs.
In the award, the arbitrator found that the department met its burden of proof and acted properly with reference to Pina's dismissal. In reaching her conclusion, the arbitrator reviewed and analyzed the record evidence in light of the contractual just cause standard to determine if the evidence supported the termination based on the charges. Specifically, the arbitrator assessed the credibility of the department's witnesses by comparing their testimony at the hearing with their statements made during the investigation. The arbitrator discredited the testimonies of both Pina and the department's two witnesses based on prior inconsistent statements. The arbitrator credited the department's investigation to the extent that the investigation was conducted in accordance with established protocols based on the department's training manuals and the testimonies of the investigator and the Director of Equal Opportunity and Assurance. With respect to the appropriateness of the level of discipline, the arbitrator determined that Pina's dismissal was supported by his prior disciplinary history.
On February 28, 2008, the plaintiffs filed an application to vacate the arbitrator's award pursuant to General Statutes § 52-418(a). The defendants filed an application to confirm the award pursuant to General Statutes § 52-417 on April 1, 2008. The plaintiffs filed a memorandum in support on their application to vacate the award on June 2, 2008. On September 9, 2008, the defendant filed a memorandum in opposition to the plaintiffs' application to vacate. A hearing on the matter was held on August 18, 2009.
General Statutes § 52-418(a) provides in relevant part: "Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides 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 was not made."
General Statutes § 52-417 provides in relevant part: "At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or . . . when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419."
The plaintiffs set forth three arguments in support of their application. The plaintiffs argue that the award was untimely because it was not issued within thirty days of the filing of briefs, as required by General Statutes § 52-416(a). According to the plaintiffs, the award has no legal effect because it was issued over seven months after the filing of post-hearing briefs. Alternatively, the plaintiffs argue that the award should be vacated because: (1) the arbitrator exceeded her powers under § 52-418(a)(4) by failing to evaluate the credibility of witnesses and improperly applying the burden of proof; and (2) the arbitrator exhibited partiality toward the department under § 52-418(a)(2) because the award made specific reference to a prior matter involving the parties over which the arbitrator had presided.
General Statutes § 52-416(a) provides in relevant part: "If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator . . . shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator . . . for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing."
In opposition, the defendant argues that the award was timely because the time limit for awards of the state board of mediation and arbitration is governed by General Statutes § 31-98, which provides a discretionary time limit, and not General Statutes § 52-416(a). The defendant argues that notwithstanding the applicable time limitation, the plaintiffs waived the issue of timeliness by waiting to object until after the award was issued. Further, the defendant argues that the arbitrator did not exceed her powers because, since the award conformed to the submission, the underlying facts and conclusions of law are not subject to judicial review. Specifically, the arbitrator's determinations of witness credibility and reliance on the defendant's investigation are not subject to review where, as here, the submission was unrestricted. Finally, the defendant argues that the arbitrator did not exhibit partiality because the reference to the prior disciplinary matter involving the parties was for purposes of the appropriateness of the penalty imposed and not for purposes of determining whether the defendant had just cause to dismiss Pina.
General Statutes § 31-98(a) provides in relevant part: "The panel, or its single member if sitting in accordance with section 31-93, may, in its discretion and with the consent of the parties, issue an oral decision immediately upon conclusion of the proceedings. If the decision is to be in writing, it shall be signed, within fifteen days, by a majority of the members of the panel or by the single member so sitting, and the decision shall state such details as will clearly show the nature of the decision and the points disposed of by the panel . . ."
Both General Statutes §§ 31-98 and 52-416 set out the time within which an arbitrator shall issue an award. See State v. AFSCME, Council 4, Local 1565, 49 Conn.App. 33, 37-38, 713 A.2d 869 (1998), aff'd, 249 Conn. 474, 732 A.2d 762 (1999). Section 52-416 applies to arbitration awards in general whereas § 31-98 applies specifically to employee/employer arbitration awards that are submitted to the state board of mediation and arbitration. AFSCME Council 4, Local 1565 v. Dept. of Correction, Superior Court, judicial district of New Britain, Docket No. CV 04 0524924 (November 15, 2005, Burke, J.), citing Danbury Rubber Co. v. Local 402, United Rubber, Cork, Linoleum and Plastic Workers of America, C.I.O., 145 Conn. 53, 58, 138 A.2d 783 (1958).
Our Appellate Court has made it clear that § 31-98(a), and not § 52-416(a), applies where a labor dispute between an employee and employer is heard by the state board of mediation and arbitration. See State v. AFSCME, Council 4, Local 1565, supra, 49 Conn.App. 39. In State v. AFSCME, Council 4, Local 1565, supra, 49 Conn.App. 38-40, the Appellate Court reversed the trial court's ruling that it did not have the authority pursuant to General Statutes § 52-418(b) to remand the case to the arbitrator for rehearing. The trial court's conclusion was based on its finding that the award, which had been issued by the state board of mediation and arbitration, was untimely because it had not been issued within thirty days as required by § 52-416(a). Id., 35. In holding that "the trial court improperly applied § 52-416" where the dispute was heard by the state board of mediation and arbitration, the Appellate Court explained that § 31-98 merely requires an arbitrator to render an award within a reasonable time. Id., 39.
General Statutes § 52-418(b) provides in relevant part: "If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators . . ."
In the present case, the labor dispute between Pina and his employer was heard by the state board of mediation and arbitration. Because of this, § 31-98 applies rather than § 52-416(a), and the fifteen-day directory time limitation was triggered upon the conclusion of the hearings on April 18, 2007.
The defendant argues that the plaintiffs waived their right to raise the issue of untimeliness by failing to raise it prior to the award's issuance.
In an arbitration pursuant to § 31-98, "the plaintiffs' failure to raise the issue of timeliness prior to the issuance of the arbitration award operates as a waiver of their right to assert the lack of timeliness in the board's decision." (Emphasis added.) AFSCME v. New Britain, 206 Conn. 465, 468, 538 A.2d 1022 (1988). A party cannot "manipulate the arbitration process by reserving objection until after the announcement of the arbitral award." Diamond Fertiliser Chemical Corp. v. Commodities Trading International Corp., 211 Conn. 541, 554, 560 A.2d 419 (1989). Where the record discloses that the only challenge to timeliness is in the post-decision application to vacate the award, the plaintiff cannot prevail. See AFSCME v. New Britain, supra, 468-69. Because the record in the present case discloses that the only challenge to timeliness was in the post-decision application to vacate the award, the plaintiff has waived any issue of timeliness.
Note that a plaintiff's failure to raise the issue of timeliness prior to the issuance of the arbitration award does not necessarily operate as a waiver of the right to assert the lack of timeliness in the arbitrator's decision where General Statutes § 52-416(a) applies. See Remax Right Choice v. Aryeh, 100 Conn.App. 373, 386, 918 A.2d 976 (2007).
The plaintiffs next argue that the award should be vacated under General Statutes § 52-418 because the arbitrator manifestly disregarded the law and exhibited partiality toward the department. It is appropriate to begin with a review of the principles guiding the review of private consensual arbitration. "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 . . . by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators' decision of the legal questions involved . . . In other words, [u]nder an unrestricted submission, the arbitrators' decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact . . ." (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 611, 887 A.2d 872 (2006).
Thus, for purposes of determining the scope of review, it is important to decide at this juncture whether the submission in the present case 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 [submission] contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, [a submission] is unrestricted." (Internal quotation marks omitted.) Alderman Alderman v. Pollack, 100 Conn.App. 80, 85, 917 A.2d 60 (2007). In the present case, the agreement does not limit or condition the arbitrator's authority in a manner that would make this a restricted submission. Furthermore, the Appellate Court has concluded that the following submission, which is nearly identical to that in the present case, is unrestricted: "1. Was the dismissal of the grievant . . . for just cause? 2. If not, what shall be the remedy?" See State v. Connecticut State Employees Ass'n., SEIU Local 2001, 117 Conn.App. 612, 614-16 (2009). Thus, the submission in the present case is unrestricted, and since the plaintiffs are not contesting whether the award conforms to the submission, the review, therefore, is limited.
The submission in the present case was as follows: "Was the dismissal of the Grievant, Deric Pina, for just cause? If not, what shall the remedy be, consistent with the NP-4 contract?"
"Even in the case of an unrestricted submission, we have . . . recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute (2) the award violates clear public policy . . . [and] (3) the award contravenes one or more of the statutory proscriptions of § 52-418." (Internal quotation marks omitted.) Alexson v. Foss, supra, 276 Conn. 611-12. Under § 52-418(a), a judge may vacate an award if, inter alia, the arbitrators have exceeded their powers or exhibited partiality. See General Statutes § 52-418(a)(2) and (4).
"[A] claim that the arbitrators have `exceeded their powers' may be established under § 52-418 in either one of two ways: (1) the award fails to conform to the submission, or in other words, falls outside the scope of the submission; or (2) the arbitrators manifestly disregarded the law." Harty v. Cantor Fizgerald Co., 275 Conn. 72, 85, 881 A.2d 139 (2005). "[A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418(a)(4) because the arbitrator has exceeded [her] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. We emphasize, however, that the manifest disregard of the law ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator's extraordinary lack of fidelity to established legal principles." (Internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. Dept. of Transportation, 273 Conn. 746, 756-57, 873 A.2d 155 (2005).
In the present case, the plaintiffs are not claiming that the award fails to conform to the submission. Instead, they are arguing that the arbitrator manifestly disregarded the law by improperly applying the burden of proof and deferring to the state's decision. The test for whether an arbitrator manifestly disregarded the law consists of the following three elements, all of which must be satisfied: "(1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable." (Internal quotation marks omitted.) Alexson v. Foss, supra, 276 Conn. 614.
The plaintiffs have not established the three elements required to prove that the arbitrator manifestly disregarded the law. The plaintiffs' assertion that the arbitrator exceeded her powers is but a thinly veiled attempt to have the award vacated on the ground that it was not supported by the evidence presented at the hearing. Specifically, in their brief, the plaintiffs state that when "the trier is unable to evaluate the credibility of witnesses, then the trier is unable to declare that the party with the burden of proof has proved its case." They argue that when the arbitrator stated she could not reach a conclusion about the alleged violation on the basis of the department's two witnesses, the only reasonable conclusion was that the defendants had failed to meet their burden of proof.
The plaintiffs' argument fails for two reasons. First, the trial court does not have authority to review the record to determine the sufficiency of the evidence in support of an arbitration award unless the plaintiffs can establish egregious error, which they have not done in this case. O G/O'Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 155, 523 A.2d 1271 (1987). Thus, even if the trial court would have reached a different decision based on the evidence, it has no authority to do so. See id., 154.
Second, contrary to the plaintiffs' assertions, the award establishes that the arbitrator did in fact apply the burden of proof and evaluate the credibility of the witnesses. The arbitrator found that the testimonies supplied at the hearing by the two department employees were inconsistent with their earlier statements made during the investigation. Based on this finding, she assessed their credibility and concluded that they were, in fact, not credible. As such, the arbitrator stated that she "[could] not reach a conclusion about the alleged violation on the basis of said statements . . ." The testimony of those two witnesses, however, was not the only evidence for the arbitrator to consider in reaching her decision. The arbitrator considered, and ultimately reached her conclusion based on, Pina's own statements and the findings of the investigation to the extent that proper protocol was followed. In fact, the award establishes that Pina's own statements, which were used to assess his credibility, were "critical to [the arbitrator's] ultimate determination." The plaintiffs' mere disagreement with the arbitrator's assessment of credibility or application of the burden of proof is not grounds for vacating the award.
The plaintiffs' last argument is that the award should be vacated because it made specific reference to a prior matter involving the parties over which the arbitrator had presided and relied on the department's findings. These actions, the plaintiffs argue, establish that the arbitrator exhibited partiality toward the department under § 52-418(a)(2).
"An allegation that an arbitrator was biased, if supported by sufficient evidence, may warrant the vacation of the arbitration award . . . The burden of proving bias or evident partiality pursuant to § 52-418(a)(2) rests on the party making such a claim, and requires more than a showing of an appearance of bias . . . In construing § 52-418(a)(2), [the Supreme Court has] concluded that evident partiality will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration. To put it in the vernacular, evident partiality exists where it reasonably looks as though a given arbitrator would tend to favor one of the parties." (Internal quotation marks omitted.) Alexson v. Foss, supra, 276 Conn. 617. Nevertheless, "without more, adverse rulings do not amount to evidence of bias . . ." (Citation omitted; internal quotation marks omitted.) Id., 618.
The case of McNeiece Construction Co. v. Tandem Foods Corp., Superior Court, judicial district of New Haven, Docket Nos. 341121 342779 (February 5, 1993, Hodgson, J.) (8 Conn. L. Rptr. 327), presents a good example the type of favoritism required to establish bias. In that case the arbitrator openly "made remarks that [could] reasonably [have been taken] to indicate his view that lawyers of a particular ethnicity were likely to make specious, unreliable or unduly aggressive claims." McNeiece Construction Co. v. Tandem Foods Corp., supra, 8 Conn. L. Rptr. 327. In deciding to vacate the award under § 52-418(a) (2), the court explained that "[t]he remarks of the arbitrator raise[d] serious questions as to the fairness of his review of the positions taken by the respondents and their counsel." Id.
Unlike the plaintiffs in McNeiece Construction Co. v. Tandem Foods Corp., supra, 8 Conn. L. Rptr. 237, the plaintiffs in the present case have not established bias or partiality of the arbitrator. All they point to in support of their claim is an adverse ruling, the arbitrator's crediting of the department's investigation to the extent proper procedures were followed, and the award's reference to prior disciplinary proceedings in determining the appropriateness of dismissal. However, contrary to the plaintiffs' assertions, the record shows that the arbitrator assessed the credibility of the evidence before her and did not blindly accept the department's conclusions. In particular, the award shows that the arbitrator discredited the statements of two witnesses who were testifying on behalf of the department. Furthermore, the arbitrator's deference to the department's investigation was only credited to the extent that the investigation was conducted in accordance with established protocols and was based on the department's training manuals and the testimonies of the investigator and the Director of Equal Opportunity and Assurance.
Lastly, the plaintiffs' claim that the arbitrator's involvement in a prior arbitration involving the parties somehow contributed to her favoritism toward the department is unfounded. Any arbitrator assigned to hear the dispute between the parties would have properly considered Pina's prior disciplinary history, which was part of the record, in determining whether the level of discipline imposed was appropriate. Prior disciplinary history was only considered for purposes of determining whether the level of discipline was appropriate, and the award expressly acknowledged that "[Pina] was not primarily at fault in [the] prior matter." As such, the arbitrator's involvement in the prior matter did not raise doubts as to the integrity of this matter.
For the foregoing reasons, this court declines to vacate the arbitrator's award, and the plaintiffs' motion is denied, and the defendant's application to confirm the award is granted.