Opinion
Nos. CV 09-5033952-S, CV 11-6021782-S
July 8, 2011
FACTS AND PROCEDURE:
These cases arise out of arbitration awards by the Connecticut State Board of Mediation and Arbitration (hereinafter also "CSBMA" or "Panel") involving former Police Officer Michael Bracken, Jr. (hereinafter also "Bracken").
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?" This Court denied the application to vacate that Award and granted the application to confirm that Award.
In Bracken 2, the case ending in Docket Number 52, 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 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." This Court granted the application to confirm the Award and denied the application to vacate the Award. This Court's decision was upheld by the Appellate Court.
We now come to Bracken 3, International Brotherhood of Police Officers, Local 523 v. Town of Windsor Locks, the Docket Number ending in 82. The parties stipulated to the following issue: "Did the Town's Termination of the Grievant's Employment on or Around November 19, 2009 Violate the Parties' Collective Bargaining Agreement? Is so, what Shall the Remedy Be?" On April 20, 2011, the Arbitration Panel rendered its Award: "The Union's grievance on behalf of Officer Michael Bracken is denied."
Briefs were filed regarding the motion for contempt and the motions to vacate the Arbitration Award and confirm the Arbitration Award. A hearing was held before this Court on June 30, 2011.
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 confirmed . . . 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. Should the Application for Order of Contempt in Docket Number Ending 952 be Granted?
The short answer is No.
During the hearing of June 30, 2011, counsel for the Town stated that the Town was about to and would issue a check to the grievant, Michael Bracken, for the pay due him while he was on administrative leave. This complies with the Award in Bracken 2, this Court's decision upholding the Award in that case and the Appellate Court's decision upholding this Court. Counsel for the Union argues that the portion of the Award in Bracken 2 under "DISCUSSION" provided that former Officer Bracken was to be examined by a physician and not a psychologist. However, that DISCUSSION was not part of the Award. As stated in pertinent part the Award simply stated that "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." To further support this Award was as stated above is the fact that on page five of this Court's decision in Bracken 2 dated April 23, 2010, this Court decided that the Award was as stated above. It should be noted that this Court did not include the wording of the Discussion by the Panel but stated the Award as it was stated in the decision by the Panel.
Accordingly, since counsel for the Town stated they were cutting a check to former Officer Bracken for the amount due him while he was on administrative leave before his termination, there is no reason to hold the Town in contempt, and the application for order of contempt is hereby denied.
2. In Docket Number Ending in 82, Should the Application to Vacate the Award be Denied and the Application to Confirm the Award be Granted?
The short answer is Yes.
The Submission was Unrestricted, the Award Conformed to the Submission, and it is well settled law as indicated in the Standard of Review, that arbitrators are permitted to decide issues of fact and issues of law. The termination of former Officer Bracken's employment was the issue, former Office Bracken was terminated on or about April 20, 2011, he filed a grievance through his Union which the Panel denied. The Award was, "The Union's grievance on behalf of Officer Michael Bracken is denied."
However, what disturbs this Court is the potential for further grievances in this case. The Town has cited Town of Stratford v. International Association of Fire Fighters AFL-CIO, Local 998, 248 Conn. 108 (1999), to the effect that an arbitration panel is not bound by a prior arbitration panel's decision on the same issues with the same parties. What is important is the following in that decision: "Therefore, at the core of this issue is a conflict between two competing policy considerations: (1) the desire to promote stability and finality of judgments, and the closely related interest of judicial economy; and (2) the desire to maintain the flexibility of the arbitral process." Id. 116-17. Stratford, supra, came down in favor of maintaining the flexibility of the arbitral process.
In this particular case, this Court, in upholding the decision of the Panel, subject to appeal, effectively terminates former Officer Bracken's employment. Therefore, as stated by both counsel at the June 30, 2011 hearing, he can no longer take advantage of the grievance process. However, if this Court were ruling the other way in favor of former Officer Bracken and would be upheld by the Appellate Court, what is to prevent the Town from invoking another police commission to terminate Officer Bracken in what would become Bracken 4 which would permit Officer Bracken to file a grievance and do this all over again. Where does finality of judgment trump the flexibility of the arbitral process?
In this case, that scenario does not apply because Officer Bracken was terminated, and this Court now confirms the Award of the state Panel, leaving, as both counsels stated, former Officer Bracken no further ability to file a grievance.
To further support this decision, it should be noted that the Award in Bracken 2 and the Award in Bracken 3 are not the same. Bracken 2 dealt solely with back pay while Officer Bracken was on administrative leave, and Bracken 3 dealt solely with whether or not his employment should be terminated.
CONCLUSION:
For the reasons stated above the application to vacate the arbitration award in Bracken 3 is denied, and the application to confirm the arbitration award in Bracken 3 is granted.