Opinion
No. CV 05-400 51 73 S
October 14, 2005
MEMORANDUM OF DECISION
The plaintiff, Local 530 of the International Brotherhood of Police Officers (union), and the defendant, town of Fairfield (town), are parties to a collective bargaining agreement that provides for the arbitration of grievances. Under the terms of the collective bargaining agreement, the union, on behalf of Sergeant James Ward, filed a grievance against the town stemming from Ward's termination from the Fairfield police department for allegedly providing untruthful and dishonest statements in connection with a police investigation. The grievance was ultimately submitted to the Connecticut state board of mediation and arbitration. The parties submitted the following joint issue to the arbitration panel: "Did the town have just cause to terminate the employment of the grievant, Sergeant James Ward? If not, what shall the remedy be in accordance with the collective bargaining agreement?" On December 15, 2004 the panel found that the town did not have just cause to terminate the employment of Ward finding that Ward did not intentionally lie but did fail to conduct a proper investigation. Based on their findings the panel reduced the termination to an indefinite suspension without back pay.
Pursuant to Practice Book § 23-1 and General Statutes § 52-418(a)(4) the union filed an application to vacate the arbitration award on January 11, 2005. The union seeks, inter alia: that the court issue an order vacating that portion of the award imposing the indefinite suspension without pay; that the court uphold the reinstatement and award back pay, benefits and seniority; and that the court remand the matter back to the state board of mediation and arbitration. On February 9, 2005 the town filed a cross application to confirm the arbitration award. Both parties filed briefs on March 21, 2005, and the matter was argued before this court on August 22, 2005. Upon request of the court, both parties filed supplemental memorandums of law on September 6, 2005 to address the following questions: (1) Whether the failure to find that the conduct was a major or a minor infraction is significant; (2) The effect of the progressive discipline policy; and (3) How the court can infer that a major infraction was committed by the penalty that was issued.
Practice Book § 23-1 provides: "In proceedings brought for confirming, vacating or correcting an arbitration award under General Statutes §§ 52-417, 52-418 or 52-419, the court or judge to whom the application is made shall cause to be issued a citation directing the adverse party or parties in the arbitration proceeding to appear on a day certain and show cause, if any there be, why the application should not be granted."
General Statutes § 52-418(a)(4) provides: "(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects . . . (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."
Both parties filed one memorandum in support of their motion and in opposition to the other party's motion.
"Judicial review of arbitral decisions is narrowly confined . . . When the parties agree to arbitration and establish the authority of the arbitrator through 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 . . . Because [courts] favor arbitration as a means of settling private disputes, [they] 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 . . .
"The significance . . . of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do, but to determine the scope of judicial review of what they have done. Put another way, the submission tells the arbitrators what they are obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrators' decision . . .
"Even in the case of an unrestricted submission, [courts] 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 . . . [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] construction of § 52-418(a)(4), [courts] have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers . . . [Courts] have also recognized, however, that . . . [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 [their] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made." (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 80-81, 881 A.2d 139 (2005).
The union challenges the decision of the panel under both avenues afforded under General Statutes § 52-418(a)(4). The union argues that the award granted by the arbitration panel violates this provision because the award does not conform to the submission. Since it is outside the submission, the union argues that the award is internally inconsistent with their finding that the town lacked just cause to terminate Ward. Furthermore, the panel's legal findings "exceeded its powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made."
See General Statutes § 52-418(a)(4) footnote 2.
The town argues in response that a decision of an arbitration panel is entitled to deference under the laws and policy of the state of Connecticut. In addition, the decision of the panel should be confirmed because it constitutes a mutual, final and definite award on the subject matter. Both parties agree that the submission was unrestricted.
I
The union argues that even though the submission was unrestricted, the award must be vacated because it exceeds the authority granted to the arbitration panel, and is internally inconsistent. This issue has been recently addressed by our Supreme Court.
"Even with an unrestricted submission . . . it is well settled that the award may be reviewed to determine if the arbitrators exceeded their authority, one of the statutory grounds under § 52-418 for vacating an award . . . We have explained that, [i]n our construction of § 52-418(a)(4), we have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers . . . The standard for reviewing a claim that the award does not conform to the submission requires what we have termed `in effect, de novo judicial review' . . . We also have recognized, however, that a claim that the arbitrators have manifestly disregarded the law may be asserted under § 52-418(a)(4) as well . . . Thus, 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 . . .
"Although we have not explained precisely what `in effect, de novo judicial review' entails as applied to a claim that the award does not conform with the submission, that 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." (Citations omitted; internal quotation marks omitted.) Harty v. Cantor, Fitzgerald Co., supra, 275 Conn. 84-86. "While the court, in such situations, may examine the memorandum of the arbitrators to determine if the arbitrators were faithful to their obligations, the result reached by the award will control unless the memorandum patently discloses an infidelity to the obligation imposed upon the arbitrators." (Emphasis added.) New Britain v. Connecticut State Board of Mediation and Arbitration, 178 Conn. 557, 562, 424 A.2d 263 (1979) (holding that the arbitration panel's award reducing the discipline from termination to suspension was within the submission and therefore not internally inconsistent).
In the present matter the parties submitted the following submission: "Did the town have just cause to terminate the employment of the grievant, Sergeant James Ward? If not, what shall be the remedy in accordance with the collective bargaining agreement?" The union contends that the award granting an indefinite suspension without pay is outside the scope of the collective bargaining agreement because the award fails to specify whether Ward's actions constitute a major or minor infraction. The union argues further that suspension without back pay is internally inconsistent with the infraction found by the panel. Under Appendix E of the collective bargaining agreement, a major infraction can warrant termination or other disciplinary action on the first incident. According to the plaintiff, since the award does not specify the class of infraction, and the infraction itself is not listed under the major infractions, the violation must be a minor infraction. Therefore, the penalty awarded by the arbitration panel is outside the scope of the submission, which limits the remedy to the terms of the collective bargaining agreement. Assuming this is true, the union argues that the discipline is internally inconsistent with the infraction found by the panel.
"A major infraction is one in which disciplinary action can be taken on the very first incident, regardless of the past record of an employee and could include termination. Allegations of untruthfulness or dishonesty that are documented, investigated, and sustained shall result in discipline up to and including discharge. A major infraction would include but not be limited to: Inappropriate conduct under life threatening situations, Thefts, Criminal Acts, Brutality, Insubordination, Unauthorized departure from work, Physical abuse, Untruthfulness or Dishonesty.
A minor infraction would include any act or omission against departmental rules, regulations, policy or general performance which would be considered non-serious in nature and would not generally be a cause for termination for the first offense." Contract Between the town of Fairfield and the Fairfield Police Union International Brotherhood of Police Officers, Appendix E.
The town argues that the award granted by the arbitration panel is consistent with the contract, especially considering the gravity of the misconduct by Ward. The town also argues that "[A]n award conforming to an unrestricted submission should generally be confirmed by the court." (Internal quotation marks omitted.) State v. New England Health Care Employees Union, District 1199, AFL-CIO, 265 Conn. 771, 778, 830 A.2d 729 (2003). The court agrees with the town.
"Although the plaintiff and the trial court may disagree with the arbitrator's ultimate interpretation . . . it is the arbitrator's judgment that was bargained for . . . and [a court does] not substitute [its] own judgment merely because [its] interpretation of the agreement or contract at issue might differ from that of the arbitrator." (Internal quotation marks omitted.) State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 265 Conn. 780, The language of Appendix E states that "[a] major infraction would include but not be limited to: Inappropriate conduct under life threatening situations, Thefts, Criminal Acts, Brutality, Insubordination Unauthorized departure from work, Physical Abuse, Untruthfulness or Dishonesty." (Emphasis added.). The panel stated that "[g]iven the contract, Appendix E, which calls for discipline up to an[d] including termination for failure to conduct a proper investigation, the Panel found that a long term suspension was appropriate." In support the panel found that the actions of Ward "did not impress upon the citizens that their complaints would be investigated properly by the Fairfield Police Department," and that Ward failed to properly instruct a new officer on how to conduct a proper investigation. It can be reasonably inferred that the discipline decided upon by the panel is indicative of their opinion that Ward's actions constituted a major infraction. The public's faith in local law enforcement can reasonably be seen as a serious matter, and once that faith is damaged it is not easily healed. It is not the duty of this court to "engage in fact-finding by providing an independent interpretation of the contract, but [it] simply is charged with determining if the arbitrators have ignored their obligation to interpret and to apply the contract as written." Harty v. Cantor Fitzgerald Co., supra, 275 Conn. 86. The court finds that, given the language of the contract, the arbitration panel did not ignore their obligation to interpret the contract. Accordingly, the award is within the submission.
II
The union next argues that the award of the panel fails to draw its essence from the collective bargaining agreement and therefore the decision of the panel represents a manifest disregard for the law.
There are "three elements, all of which must be satisfied in order for a court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law: (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 . . . [T]he 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." (Citation omitted; internal quotation marks omitted.) Harty v. Cantor Fitzgerald Co., supra, 275 Conn. 102.
In support of the first prong the union argues that the panel's modification of the discipline from a termination to an indefinite suspension without back pay constituted error that was capable of being perceived by an average person. Specifically, they refer to their view that Ward's actions do not warrant inclusion as a major infraction under Appendix E and would be better described as a minor infraction. Resting upon this premise is the union's argument that the second and third prongs are satisfied because the panel deviated from the submission by handing out a suspension for a minor infraction.
As previously stated Appendix E's list of major infractions is not an exclusive list, and the infraction found by the panel is not clearly a minor infraction. The union has the burden of persuading the court that the award does not conform to the submission. Harty v. Cantor Fitzgerald Co., supra, 275 Conn. 89. The union has not met their burden, as this court finds that the award is within the submission. The factual disagreement between the parties about whether the infraction is major or minor indicates that the putative error is not "obvious and capable of being readily and instantly perceived." Id., 102. Under the manifest disregard for the law standard our Supreme Court has held that "[a]bsent a showing of perverse misconstruction [of the law] or positive misconduct . . . the arbitrator's determination is not subject to judicial inquiry." Clairol, Inc. v. Entertac Corp., 44 Conn.App. 506, 512, 690 A.2d 418, cert. denied, 241 Conn. 906, 695 A.2d 537 (1997). "In order to prevail, the [plaintiff] must demonstrate that the award reflects an egregious or patently irrational rejection of clearly controlling legal principles." Garrity v. McCaskey, 223 Conn. 1, 11, 612 A.2d 742 (1992). Regarding the panel's award, the union has failed to demonstrate that the decision of the panel constitutes an error that is patently irrational, nor have they demonstrated that the panel has clearly ignored the governing law. The union, therefore, has not demonstrated a violation of General Statutes § 52-418(a)(4).
For the foregoing reasons, the union's application to vacate the award is denied and the town's application to confirm the arbitration award is granted.