Opinion
KNLCV186034278S
09-24-2018
TOWN OF STONINGTON v. STONINGTON PUBLIC ADMINISTRATORS ASSOCIATION, Connecticut Independent Labor Union, Local #54 Affiliated with the United Electrical, Radio and Machine Workers (UE), UE Local 222, CILU/CIPU
UNPUBLISHED OPINION
OPINION
Knox, J.
On March 29, 2018, the plaintiff, the Town of Stonington, brought a timely application, pursuant to General Statutes § 52-418, seeking an order vacating an arbitration award rendered on March 2, 2018.
In its application, the plaintiff alleges that it and the defendant, Stonington Public Administrators Association, Connecticut Independent Labor Union, Local # 54, affiliated with the United Electrical, Radio, and Machine Workers (UE), UE Local 222 CILU/CIPU ("the Union"), entered into a written Collective Bargaining Agreement ("the CBA") that called for the arbitration of grievances between the parties. On February 13, 2015, the defendant filed a grievance on behalf of highway supervisor Louis DiCesare, claiming that the plaintiff did not have just cause to suspend DiCesare. The parties submitted the controversy to arbitration with the following stipulated submission: "Did the Town of Stonington have just cause to suspend the grievant, Mr. Louis DiCesare on January 20, 2015? If not, what shall be the remedy?" The parties excluded from the stipulated submission "the additional dispute between the parties over whether the Town had just cause to terminate Mr. DiCesare on April 30, 2015 ..." An arbitrator conducted hearings on fifteen days over several months.
On March 2, 2018, the arbitrator issued a written award in favor of DiCesare. The arbitrator’s decision states in relevant part: "I have analyzed and studied the briefs and reply briefs of the parties, the citations of law, the voluminous exhibits, including charts, letters, emails, photos, the testimony of the witnesses, reviewed my notes, and have after charting my decision, reached the conclusion that the Union’s argument that the grievant had a right under Connecticut Law to have a Union representative present at the hearing that resulted in the five-day suspension that is the subject of this arbitration, and therefore lacked just cause to suspend him, is more persuasive than the Town’s argument that the grievant had no such rights during the pendency of the Town’s objections to the election. Consequently, the five-day suspension must be overturned.
"The decision is based entirely on the Town’s failure to allow the grievant to have a Union Representative present during the suspension hearing. To address the other issues would needlessly delay an already delayed decision, substantially increase the costs of the arbitration, and not affect the outcome. Thus, having fully considered the entire case presented by both sides, and outlined the dispute and analyzed how the opinion should be structured, I have focused on the dispositive issue. However, I have copied the disciplinary record and the grievant’s responses to show emphasize the sheer factual complexity of this dispute, and the underlying tensions surrounding this dispute, and to leave a record."
On July 2, 2018, the plaintiff submitted a memorandum of law in support of its application to vacate the arbitration award (# 103). The plaintiff claims that the arbitrator "so imperfectly executed" his powers, pursuant to § 52-418(a)(4). The plaintiff argues that the arbitrator improperly overturned the suspension due to the plaintiff’s failure to allow DiCesare to have a union representative present during the suspension hearing and by ignoring the other pre- and post-deprivation procedures provided to DiCesare.
On July 30, 2018, the defendant submitted a memorandum of law in opposition to the application to vacate the arbitration award (# 104). The defendant argues that the failure to allow union representation is a prohibited practice, that it resulted in more than one reason to sustain the grievance, and the absence of a discussion in the arbitration decision of other pre- and post-determination procedures does not negate the failure to allow union representation. On September 12, 2018, the court heard oral argument on the motion to vacate the arbitration award.
Scope of Review
"The propriety of arbitration awards often turns on the unique standard of review and legal principles applied to decisions rendered in this forum." AFSCME, Council 4, Local 2663 v. Dept. of Children & Families, 317 Conn. 238, 249, 117 A.3d 470 (2015). "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." (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80, 881 A.2d 139 (2005).
"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 ... 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.) McCann v. Dept. of Environmental Protection, 288 Conn. 203, 214, 952 A.3d 43 (2008).
In the present case, the parties’ submission expressly excluded DiCesare’s subsequent termination. However, the submission regarding the suspension contains no language that is restrictive because no limitations or conditions are placed on the Arbitrator’s authority or conditioning the award on judicial review. The parties have not argued otherwise. Thus, the submission was unrestricted.
Grounds to Vacate
Our Supreme Court articulated three grounds for vacating an award when the submission is unrestricted. Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992). "These grounds arise when the award (1) rules on the constitutionality of a statute, (2) violates clear public policy, or (3) contravenes one or more of the statutory prescriptions of General Statutes § 52-418." (Internal quotation marks omitted.) Enfield v. AFSCME Council 4, Local 1029, 100 Conn.App. 470, 474, 918 A.2d 934, cert. denied, 282 Conn. 924, 925 A.2d 1105 (2007).
In this case, the court is presented with the narrow issue of whether the decision contravenes § 52-418(a)(4). Section 52-418(a) provides for an "order vacating the award if [the court] 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."
Analysis
The issue presented by the applicant is whether the arbitrator exceeded its powers or so imperfectly executed them by basing the award on a finding of lack of due process, namely the opportunity to have a union representative at the predetermination hearing, without consideration of the pre- and post-determination processes.
The plaintiff cites the seminal public employee due process case of Cleveland Board of Education v. Loudermill, 470 U.S. 532, 547-48, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), which held that "all the process that is due is provided by a pre-termination opportunity to respond, coupled with post-termination administrative procedures ..."
The plaintiff further relies on Locurto v. Safir, 264 F.3d 154, 171 (2d Cir. 2001), where the Second Circuit explained, "[w]hen ... a public employee is [disciplined], procedural due process is satisfied if the government provides notice and a limited opportunity to be heard prior to termination, so long as a full adversarial hearing is provided afterwards." In that case, the court considered as a matter of first impression whether "due process [required] a neutral adjudicator at a pre-termination hearing of a tenured public employee." Id., 174. The court held it did not, because such a requirement would run contrary to the letter and the spirit of Loudermill, which provided that the public employer give its employee notice of any charges and a chance to hear and respond to any evidence against him. Id., 174. The court further considered the costs to the state of additional pre-deprivation guarantees (in this case, a neutral adjudicator) and determined that the costs outweigh possible benefits to the employee, given the availability of a full post-deprivation hearing. Id. While Locurto held that due process may not require a neutral adjudicator at the pre-termination hearing, it did not hold that an arbitrator cannot determine that due process was absent in the pre-determination process without conducting a full analysis of the pre- and post-determination processes.
In the present case, based on a review of the relevant law, the court cannot conclude that the arbitrator exceeded his powers or so imperfectly executed them by failing to consider the due processes afforded to the grievant in the pre- and post-determination procedures. Indeed, the award does exactly that- the arbitrator, in examining the process, found a failure of due process in the pre-determination process. This finding occurs in the context of a fully adjudicated post-determination hearing and within the scope of the submission.
First, the award conforms to the submission presented by the parties. The submission was "Did the Town of Stonington have just cause to suspend the grievant, Mr. Louis DiCesare on January 20, 2015?" The arbitrator submitted a sixteen-page opinion and award. The arbitrator concluded that the grievant had a right under Connecticut law to have a union representative present at the hearing that resulted in the five-day suspension, and the employer, therefore, lacked just cause to suspend him. The plaintiff does not contest this part of the decision, namely that the employer denied the employee union representation at the pre-determination hearing.
The plaintiff only contests that the arbitrator failed to consider the pre- and post-determination processes. The parties did not limit the submission and the arbitrator made its conclusions to a broadly framed submission. Because this was an unrestricted submission, this court cannot review the factual or legal merits of the underlying decision. See AFSCME, Council 4, Local 2663 v. Dept. of Children & Families, supra, 317 Conn. 250. Additionally, the arbitration hearings themselves were an integral part of the process.
Second, the court will not vacate the award based on a claim that the arbitrator was required to perform a more expansive analysis. A recitation of pre- and post-determination due processes that the arbitrator did not find at issue does not necessitate a conclusion that the arbitrator "so imperfectly executed" its authority. It is notable that the plaintiff is seeking in the alternative an order to "remand the matter back to the Arbitrator with an order to consider both pre- and post-deprivation procedures in determining whether the Town had just cause to suspend DiCesare" (# 103). The award clearly shows that the issue of the denial of union representation at the pre-determination hearing was presented by the parties at arbitration. The arbitration hearing provided for a full hearing of all legal and factual issues.
Therefore, the application to vacate the arbitration award is denied.