Opinion
No. CV 05 4004914 S
November 17, 2005
MEMORANDUM OF DECISION RE APPLICATION TO VACATE ARBITRATION AWARD AND CROSS APPLICATION TO CONFIRM ARBITRATION AWARD
Facts
The arbitration award before the court has generated two separate lawsuits. On April 6, 2005, in Tilcon Connecticut, Inc. (Tilcon) v. The International Union of Operating Engineers, Local 478 (Union); Superior Court, judicial district of New Britain, Docket No. CV 05 4004914, Tilcon filed an application to vacate the arbitration award. On May 9, 2005, in The International Union of Operating Engineers, Local 478 v. Tilcon Connecticut, Inc., Superior Court, judicial district of New Britain, Docket No. CV 05 4005493, the Union filed an application to confirm and enforce the same arbitration award. The applications were consolidated by agreement before the court on January 20, 2004.
This matter arises in part out of conduct exhibited by the arbitrator during the course of the arbitration of the underlying dispute between the parties and the appropriateness of the arbitrator's ultimate decision. The underlying dispute centers on Tilcon's decision to terminate the employment of Louis Romano, who is a member of the Union. It is undisputed that Tilcon discharged Romano effective December 23, 2002 because he made threatening statements in a portion of a voice mail message he left when he made a telephone call to Tim Williamson, a safety manager. Romano contends that he did not intend to record that portion of the message and was merely parodying a movie character.
Pursuant to the terms of the collective bargaining agreement between the parties, the Union filed a grievance on behalf of Romano, and the parties eventually submitted the matter to arbitration. According to the record, the parties submitted the following issues to the arbitrator: "Whether the Employer had just cause to terminate the employment of Louis Romano effective December 23, 2002 for the reasons set forth in the Employer's letter of termination dated January 23, 2003."
The January 23, 2003 letter provided: "Dear Mr. Romano: Please be advised that your employment with Tilcon Connecticut Inc. is terminated effective December 23rd, 2002. On that day, you telephoned Tim Williamson, a fellow Tilcon employee, and left a message regarding a bonus issue. You then threatened to kill both Mr. Williamson and his family. Tilcon has a zero policy for workplace violence and will not tolerate acts like yours. Regretfully, Gary Wall, Manager of Quarries."
The arbitrator determined that Tilcon did not have just cause to terminate Romano's employment for the reasons stated in the letter but did have just cause to suspend him for thirty days. The arbitrator concluded that Tilcon should reinstate Romano with full back pay and benefits, less substantive earnings from January 22, 2003. The defendant argues that the arbitrator's decision should be vacated pursuant to General Statutes § 52-418 because 1) the award violates the public policy against violence in the workplace, and 2) the defendant was prejudiced and the arbitrator acted inappropriately by telling the plaintiff's attorney where he could find an expert witness and, subsequently, when she relied on that expert's testimony in reaching her decision.
The plaintiff, in responding to the defendant's arguments and moving to confirm the arbitration award, argues that 1) public policy was not violated and the defendant waived its right to make this claim, and 2) the defendant waived its right to claim that it was prejudiced by the arbitrator's conduct. Each of these will be discussed, in turn, below.
Discussion
The parties have stipulated that the arbitration submission was unrestricted. "The arbitration clause in a contract constitutes the written submission to arbitration . . . If the parties have agreed in the underlying contract that their disputes shall be resolved by arbitration, the arbitration clause in the contract is a written submission to arbitration." (Internal quotation marks omitted.) Local 1042, Council 4, AFSCME, AFL-CIO v. Board of Education of Norwalk, 66 Conn.App. 457, 460, 784 A.2d 1018 (2001). In their collective bargaining agreement, the parties voluntarily agreed to resolve any disputes regarding the terms of their agreement. "The written decision rendered by the Arbitrator shall be final and binding on the parties to this Agreement and shall be enforceable in any court of competent jurisdiction." In addition, "[our Supreme Court] consistently has concluded that submissions that require arbitrators to determine whether a party has violated a particular section of a collective bargaining agreement constituted unrestricted submissions." Industrial Risk Insurers v. Hartford Steam Boiler Inspection Ins. Co., 258 Conn. 101, 111, 779 A.2d 737 (2001).
Agreement between the Connecticut Construction Industries Association, Inc. and the International Union of Operating Engineers Local 478 and its branches AFL-CIO Plants, Article seventeen.
The Supreme Court has recently reiterated the general deference given to unrestricted arbitration submissions and the statutory and common-law exceptions to that deference, as follows. When, as in the present case, "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.) Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 80, 881 A.2d 139 (2005). "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.) Id., p. 81.
As to the public policy exception, in Groton v. United Steelworkers of America, 254 Conn. 35, 45-46, 757 A.2d 501 (2000), the Supreme Court explained, "when a challenge to a voluntary arbitration award rendered pursuant to an unrestricted submission raises a legitimate and colorable claim of violation of public policy, the question of whether the award violates public policy requires de novo judicial review . . . The public policy exception applies only when an award is clearly illegal or clearly violative of a strong public policy . . . When a challenge to the arbitrator's authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator's decision but with the lawfulness of enforcing the award . . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court's refusal to enforce an arbitrator's interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests." (Citations omitted; internal quotation marks omitted.)
In this case, Tilcon argues that the arbitrator's decision violates the well defined Connecticut policy against workplace violence, which is evidenced in Executive Order No. 16 and an OSHA statute. The Union does not dispute that such a policy exists, but asserts that Tilcon's public policy argument is misplaced because the arbitrator found that Romano did not engage in or threaten violence and that, even if he had done so, the arbitrator's decision did not violate Executive Order No. 16 and OSHA requirements because they do not mandate termination. Alternatively, the Union argues that Tilcon waived its public policy argument.
Tilcon references OSHA statute 29 U.S.C. § 654(a)(1) which provides, in part, that "[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . ." This federal statute is identical to General Statutes § 31-370, which is discussed herein.
The courts use a two-part process to determine whether the arbitration award violates public policy. "First, [the courts] determine whether an explicit, well-defined and dominant public policy can be identified . . . If so, [the courts] then [decide] if the arbitrator's award violated the public policy." (Citation omitted; internal quotation marks omitted.) MedValue USA Health Programs, Inc., v. Member Works, Inc., 273 Conn. 634, 656, 872 A.2d 423, cert. denied, 74 U.S.L.W. 3246 (October 17, 2005). "[Courts] have looked to a variety of sources in determining whether an arbitral award violates a well defined public policy, and have cited, as examples of possible sources, statutes, administrative decisions and case law . . . Rather than requiring that public policy be grounded a particular type of source, however, in determining whether a party has satisfied its burden of demonstrating the existence of a well-defined public policy, we have instead focused our inquiry on whether the alleged public policy is in fact clearly discernable in the purported source." (Citation omitted.) Id., 657-58.
In the present case, Tilcon relies on, inter alia, Executive Order No. 16, in which then governor John G. Rowland stated, in pertinent part: "WHEREAS, the State of Connecticut recognizes that workplace violence is a growing problem that must be addressed; and WHEREAS, the State is committed to providing its employees a reasonably safe and healthy working environment, free from intimidation, harassment, threats, and/or violent acts; and WHEREAS, violence or the threat of violence by or against any member of the public in the workplace is unacceptable and will subject the perpetrator to serious disciplinary action up to and including discharge and criminal penalties. NOW, THEREFORE, I . . . do hereby ORDER and DIRECT: 1. That all state agency personnel, contractors, subcontractors, and vendors comply with the following Violence in the Workplace Prevention Policy: The State of Connecticut adopts a statewide zero tolerance policy for workplace violence. Therefore, except as may be required as a condition of employment . . . No employee shall cause or threaten to cause death or physical injury to any individual in a state worksite . . . Violation of the above reasonable work rules shall subject the employee to disciplinary action up to and including discharge . . ."
In addition, in Parsons v. United Technologies Corp., 243 Conn. 66, 79, 700 A.2d 655 (1997), our Supreme Court determined that General Statutes § 31-49 (which provides that "[i]t shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work . . .") and General Statutes § 31-370, (which provides that "(a) each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . ."), "[expresses] a clear and defined public policy requiring an employer who conducts business in Connecticut to provide a reasonably safe work place to its employees."
According to this source, this state does have a well-defined public policy against workplace violence. The court must next determine whether the arbitrator's award violates this public policy. "[Once] it has been determined that an arbitral award does implicate a clearly established public policy, the ultimate question remains as to whether the award itself comports with that policy." Schoonmaker v. Cummings Lockwood of Connecticut, P.C., 252 Conn. 416, 429, 747 A.2d 1017 (2000). "[T]he award must be clearly illegal or clearly violative of a strong public policy." (Emphasis in original; internal quotation marks omitted.) MedVal USA Health Programs, Inc. v. Member Works, Inc., supra, 273 Conn. 656. "Taking into consideration the narrow scope of the public policy limitation of arbitral authority, the plaintiff [has] the burden of clearly demonstrating illegality or conflict with this established public policy." International Brotherhood of Police Officers, Local 361 v. New Milford, 81 Conn.App. 726, 735, 841 A.2d 706 (2004).
"[W]hen a challenge to a voluntary arbitration award rendered pursuant to an unrestricted submission raises a legitimate and colorable claim of violation of public policy, the question whether the award violates public policy requires de novo judicial review." (Internal quotation marks omitted.) State v. New England Health Care Employees Union, 271 Conn. 127, 135, 855 A.2d 964 (2004). "Under the standard of de novo review . . . when considering arbitral awards involving public policy, [the court] must adhere to the long standing principle that findings of fact are ordinarily left undisturbed upon judicial review . . . Accordingly, [the court does] not substitute [its] own judgment as to what facts should have been found by the arbitrator." (Citation omitted; internal quotation marks omitted.) State v. AFSCME, Council 4, Local 2663, AFL-CIO, 59 Conn.App. 793, 805 n. 7, 758 A.2d 387, cert. denied, 255 Conn. 905, 762 A.2d 910 (2000).
The arbitrator made the following additional findings of facts from the record. Prior to his discharge, Romano had been employed by Tilcon for eight years and had never been disciplined. On December 23, 2003 Romano made a telephone call to Tim Williamson, a Tilcon safety manager, to inquire about a $200 safety incentive bonus that Romano thought he had earned. Romano made the call on his cellular telephone from the home of, and in the presence of another employee, Gary Testa. Williamson did not answer the call, and Romano proceeded to leave a message on Williamson's voice mail. Initially, Romano stated the reason for the call and said goodbye. According to Romano, he thought he disconnected the call at that point, and he proceeded to make statements in which he threatened to kill Williamson and his wife and child in order to get the $200. Romano had not, however, disconnected the call, and all of his statements were recorded on Williamson's voice mail. Williamson retrieved the message and, although he did not believe Romano was talking to him when he left the last part of the message, he did view it as a threat and reported it to Gary Wall, Romano's manager. Neither Wall nor Williamson called the police or Romano. On December 26, Tilcon reported the incident to the police. When the police informed Romano that he had not disconnected his telephone, he stated that he did not remember the latter part of his message, but that he had never threatened anyone. Romano then called Williamson and apologized and said that he was joking with a friend and did not mean to threaten Williamson. Romano later testified that he and Testa had recently seen the movie Casino and that he was trying to do a parody of how the character in the movie, which was portrayed by Joe Pesci, would handle the situation. On January 30, 2003, Wall met with Romano and a Union representative and discharged Romano effective December 23, 2003. The arbitrator pointed out that both parties agreed that violence should not be tolerated in the workplace, and that the Union stipulated that if Romano had violated the policy "just cause had been established." After concluding that public policy establishes zero tolerance for violence and threats of violence in the workplace, the arbitrator focused on whether Romano's telephone messages violated that policy. She determined that Romano's explanation as to the nature of the message fit within the definition of a parody, and that his testimony that he did not intend for Williamson to hear the message was credible. The arbitrator then considered whether Romano's conduct was nevertheless, threatening, to the extent that he was unqualified to remain in his workplace. To answer this question, the arbitrator relied on the testimony of the parties' expert witnesses. Tilcon's expert employed an objective standard and concluded that Romano engaged in workplace violence because he threatened to kill Williamson and Williamson's wife and child. The Union's expert, on the other hand, employed a contextual approach, and analyzed Romano's conduct in the context of the circumstances, Romano's explanation for it and the expert's assessment of Romano's likelihood to engage in violence. The arbitrator adopted the contextual approach and decided that the circumstances indicated that Tilcon did not believe that Romano posed a danger to Williamson or his family, and that the company failed to conduct a fair investigation into the incident or assess Romano's status as a dangerous person. She also noted that Romano expressed remorse for his conduct, understood that it was inappropriate and did not have a history of engaging in violent behavior. The arbitrator concluded that Tilcon did not prove it had just cause in terminating Romano.
The arbitrator did, however, conclude that Romano's conduct was inappropriate and provided Tilcon with just cause for suspending him for thirty days from December 23, 2002.
Thus, the arbitrator determined, after hearing testimony from two experts concerning workplace violence and the propensity to commit workplace violence, that Romano did not intend a threat toward Williamson and that the message he left, in light of its context, was not a threat of violence.
If the arbitrator's findings of fact are accepted as having been proven, Romano has not violated public policy in this case. In other words, although Connecticut has a well-defined public policy prohibiting workplace violence, the arbitrator's factual findings reveal that Romano did not commit an act of violence and he did not threaten an act of violence. Rather, the arbitrator found that Romano was joking about committing violence related to the workplace. Tilcon has not suggested that there is a well defined Connecticut policy against joking about violence in the workplace, nor does this Court find that such a policy exists. Accordingly, the application to vacate the arbitration decision on the ground that the arbitrator's award violates public policy is denied.
See East Hartford v. AFSCME Council 4, Local 1174, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 00 0596762 (May 17, 2000, Booth, J.). ("[S]ince the court has no finding by the arbitrators that [the employee] violated the work place violence policy the court sees no basis for overturning the award of the arbitrators on the grounds that the award is a violation of policy against workplace violence.").
If the court determines that the award did not violate public policy, the court is not required to address the Union's argument that Tilcon waived its public policy argument. It is nevertheless noted that "this court has held to that the waiver rules do not apply to a claim that an arbitration award violates public policy. Such a defense may be asserted at any time prior to judicial confirmation of the award because [a]s a matter of judicial prudence and in the exercise of the court's inherent judicial discretion, the court should not confirm an arbitration decision that violates well-established public policy." (Internal quotation marks omitted.) Trading Direct v. La Russo, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV01 0382217 (February 7, 2002, Stevens, J.) ( 31 Conn. L. Rptr. 383). See also Schoonmaker v. Cummings Lockwood of Connecticut, P.C., supra, 252 Conn. 430 ("often the question of whether the award [violates public policy] will not arise until after the award has been rendered.").
Next, the court considers whether the award should be vacated pursuant to General Statutes § 52-418(a)(2) or (3) on the ground that the arbitrator acted inappropriately during the course of arbitration. General Statues § 52-418 provides, in relevant part: "(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any of the following defects . . . (2) if there has been evident partiality or corruption on the part of any arbitrator; or (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 . . ."
In interpreting General Statutes § 52-418(a)(2), our Appellate 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.) Vincent Builders, Inc. v. American Application Systems, Inc., 16 Conn.App. 486, 495, 547 A.2d 1381 (1988), cert. denied, 210 Conn. 809, 556 A.2d 608 (1989). In asserting a claim for evident partiality "[t]he party attacking an arbitration award on the ground of arbitrator bias must produce sufficient evidence to invalidate it . . . Where the plaintiff cannot produce sufficient evidence to support a finding of partiality, the court should not overturn the award . . . The mere appearance of bias does not disqualify an arbitrator." (Citations omitted.) Emond v. Lumberman's Mutual Casualty Co., 49 Conn.App. 374, 377, 714 A.2d 699 (1998).
"To establish that an evidentiary ruling, or lack thereof, rises to the level of misconduct prohibited by § 52-418(a)(3) requires more than a showing that an arbitrator committed an error of law . . . Rather, a party challenging an arbitration award on the ground that the arbitrator refused to receive material evidence must prove that, by virtue of an evidentiary ruling, he was in fact deprived of a full and fair hearing before the arbitration panel." (Internal quotation marks omitted.) Saturn Construction Co. v. Premier Roofing Co., 238 Conn. 293, 299, 680 A.2d 1274 (1996). Nevertheless, "[t]he presumptive validity of consensual arbitration awards depends upon the underlying integrity of the arbitration process. When the integrity is tainted whether by actual impropriety or the appearance of impropriety, the arbitration award cannot be permitted to stand." OG/O'Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 148, 523 A.2d 1271 (1987).
The initial hearing before the arbitrator took place on September 30, 2004. Shortly thereafter, the arbitration hearing went off the record. According to an affidavit Tilcon submitted in support of its motion, at this point, Tilcon claims that the arbitrator and Cheverie engaged in a conversation where the arbitrator suggested "that a firm in Boston run by Tia Schneider Dennenberg known as Workplace Solutions could provide expert testimony." Tilcon did not object to the conversation at the time. Tilcon also claims that the Union then obtained an expert from Workplace Solutions, called the expert to testify when the hearing recommenced, and that the arbitrator relied primarily on this expert's testimony in reaching her decision to the prejudice of Tilcon.
Ticon's Application to Vacate Arbitration Award, paragraph nineteen.
The Union counters that Tilcon waived its right to object to the impropriety of the arbitrator's actions by remaining silent when it overheard the conversation on September 30, accepting the expert as a witness when the hearing resumed in December 2004, not raising its objection at the conclusion of the hearing or in post-hearing briefs, and waiting seven months after the arbitrator issued the award before raising its allegation of misconduct by the arbitrator.
The court first must decide whether Tilcon, in not objecting to the arbitrator's conduct or the Union's presentation of the expert's testimony, waived its right to do so. As our Supreme Court recently explained, it "has applied the principles of waiver and estoppel to an arbitration proceeding, concluding that a party to the proceeding implicitly waived its right to vacate an arbitration award under § 52-418(a) by its affirmative conduct. [In] New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 237 Conn. 378, 384, 677 A.2d 1350 (1996), the plaintiff city sought to vacate an arbitration award rendered in connection with a grievance filed by the defendant union on behalf of a city employee . . . The city claimed that the state mediation and arbitration board had committed misconduct in refusing to grant the city's attorney a continuance after he suddenly became ill . . . The trial court agreed with the city, but found that its attorney had waived the misconduct claim by continuing to negotiate after the request for a continuance was denied . . . The Appellate Court subsequently reversed the trial court's judgment, concluding that, once a finding of misconduct had been made, the trial court was required to vacate the award under § 52-418 . . . In reversing the Appellate Court's judgment . . . we emphasized the importance of the conduct of the parties in determining whether a waiver had occurred . . . We noted that, although the city's attorney had not waived the misconduct expressly, the trial court explicitly had found that he continued the negotiations `freely and voluntarily' . . . After a thorough review of the record, we concluded that this finding was not clearly erroneous." (Citations omitted.) AFSCME, Council 4, Local 704 v. Dept. of Public Health, 272 Conn. 617, 623-24, 866 A.2d 582 (2005).
Although the particular subsection of the statute at issue in New Haven v. Local 884, Council 4, was § 52-418(a)(3), in AFSCME, Council 4, Local 704, supra, 272 Conn. 625, the Supreme Court determined that the party may also waive its right to challenge an arbitrator's award as untimely, in violation of General Statutes § 52-418(4). This suggests that the same holds true for challenges to awards based on alleged violations of § 52-418(a)(2).
The issue of waiver involves a question of fact. An "implied waiver may be inferred from the circumstances if it is reasonable to do so." (Internal quotation marks omitted.) AFSCME, Council 4, Local 704, supra, 272 Conn. 623. Here, Tilcon's attorney, like the attorney in New Haven v. Local 884, Council 4, engaged in conduct from which waiver may reasonably be inferred. The conduct that Tilcon complains about occurred in the presence of Tilcon's counsel, as evidenced by Tilcon's attorneys thorough description of the conversation between the arbitrator and Attorney Cheverie in his affidavit. Moreover, when the hearing resumed three months later and the Union called its expert to testify, Tilcon had an adequate opportunity to raise an objection. Instead, Tilcon elected to proceed with the hearing without doing so. As the Supreme Court noted in New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 237 Conn. 389, an attorney has "a duty to protect [his client] and is presumed to know his options in his field of practice." For the forgoing reasons this Court concludes that Tilcon waived its arguments that the arbitrator engaged in misconduct in suggesting an expert and then considering the expert's testimony in reaching her decision.
Conclusion
For all of the foregoing reasons, the application to vacate the arbitration award is denied; and the application to confirm the arbitration award is granted. So ordered.