Opinion
FSTCV126013612S.
12-05-2012
AMERICAN FEDERATON OF STATE, COUNTY AND MUNICIPAL EMPLOYEES COUNCIL 4, LOCAL 1303-385 v. TOWN OF WESTPORT DEPARTMENT OF PUBLIC WORKS et al.
Gagne J. Wm. Jr. & Associates PC, West Hartford, for American Federaton of State, County and Municipal Employees Council 4, Local 1303-385. Berchem Moses & Devlin PC, Milford, for Town of Westport Department of Public Works et. al.
UNPUBLISHED OPINION
Gagne J. Wm. Jr. & Associates PC, West Hartford, for American Federaton of State, County and Municipal Employees Council 4, Local 1303-385.
Berchem Moses & Devlin PC, Milford, for Town of Westport Department of Public Works et. al.
A. WILLIAM MOTTOLESE, J.T.R.
In this application to vacate an arbitration award the plaintiff union alleges that the arbitration panel to whom numerous issues were submitted pursuant to G.S. § 7-473c exceeded its powers or imperfectly executed them, in that the panel did not conform to the statutory requirements set forth in G.S. § 7-473c(d)(6) and did not consider the factors and standards set forth in G.S. § 7-473c(d)(9).
Specifically, the plaintiff finds fault with the award because (1) the individual members of the panel did not state the specific reasons for making their choice of the particular last best offer, and (2) the individual members failed to state which factors and standards they used in reaching their decisions on the issues. The defendant argues that the statute does not require each individual arbitrator separately to recite the reasons for his/her choice or to engage in any written discussion of the standards used in reaching the decision.
Clearly, this arbitration is statutorily mandated. Consequently, the arbitration was compulsory and not consensual and so allegations of law must receive de novo review by the court. Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991). The court's standard of review in the present case is de novo because whether the statute requires the express written statements demanded by the plaintiff presents a question of statutory interpretation which of course presents a question of law. The court is further guided by the following principles:
" Arbitration is favored by courts as a means of settling differences and expediting the resolution of disputes ... There is no question that arbitration awards are generally upheld and that we give great deference to an arbitrator's decision since arbitration is favored as a means of settling disputes ... The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it, and only upon a showing that it falls within the proscriptions of § 52-418 of the General Statutes, or procedurally violates the parties' agreement will the determination of an arbitrator be subject to judicial inquiry." (Citations omitted; internal quotation marks omitted.) Vincent Builders, Inc. v. American Application Systems, Inc., 16 Conn.App. 486, 488, 547 A.2d 1381 (1988), cert. denied, 210 Conn. 809, 556 A.2d 608 (1989)." (Alternate citations omitted.) (Footnote omitted.) Bridgeport Firefighters Assn. IAFF, Local 834 v. Bridgeport, 48 Conn.App. 667, 669-70, 711 A.2d 1188 (1998).With regard to § 7-473c our Supreme Court has stated that " an award made without giving weight to the factors specified for consideration by the panel in making a decision would be ... infirm." Carofano v. Bridgeport, 196 Conn. 633, 637 (1985). Relying on this decision the plaintiff contends that the need for each arbitrator to be specific in both reasoning and prioritizing the factors and standards is essential so that both the legislative body of the municipality pursuant to subsection (12) and the State Board of Mediation and Arbitration pursuant to subsections (13) through (15) of the statute can fulfill their statutory functions. Moreover, it argues that without a rationale provided by the specific reasons " a reviewing court cannot determine whether or not the arbitrator's decision was governed by the rule of law."
The court concludes that the present case is controlled squarely by Bridgeport Firefighters Assn., IAFF, Local 834 v. Bridgeport, supra, and thus its task is to determine whether the conduct of the arbitrators is sufficiently similar to that of the arbitrators in Bridgeport so as to entitle it to the same result. In the present case the arbitrators made the following significant statements:
The plaintiff criticizes this decision as " erroneous" and " unreviewed" by our Supreme Court. It is axiomatic that notwithstanding the plaintiff's claim of error committed by the Appellate Court this court is bound by result and the reasoning of that court.
(1) " This dispute concerns bargaining between the Town of Westport and Westport Public Works Local 130-3-385, Council 4, AFSCME AFL-CIO over the negotiation of a successor labor agreement.
The undersigned arbitrators were designated to hear and decide the dispute in accordance with Section 7-473c of the Connecticut General Statutes. Over six (6) days, the parties appeared before the arbitration panel in Westport, Connecticut. Both parties were represented and were accorded a full opportunity to submit evidence, examine and cross examine witnesses, and present arguments. The parties' last best offers on the issues in dispute were submitted to the panel on November 29, 2011. The panel members met in two (2) executive sessions to deliberate and decide each outstanding issue.
The agreed-upon language submitted to the panel is incorporated and made a part of this award."
(2) " In arriving at a decision, the arbitration panel shall give priority to the public interest and the financial capability of the municipal employer, including consideration of the demands on the financial capability of the municipal employer. The panel shall further consider the following factors in light of such financial capability: (A) The negotiations between the parties prior to arbitration; ... (B) the interest and welfare of the employee group; ... (C) changes in the cost of living; ... (D) the existing conditions of employment of the employee group and those of similar groups; and ... (E) the wages, salaries, fringe benefits, and other conditions of employment prevailing in the labor market, including developments in private sector wages and benefits."
With reference to each of the issues which it decided in the defendant's favor by majority vote the panel stated:
(3) " Therefore, after reviewing all of the information received by the arbitration panel, in light of the statutory criteria, the last best offer of the Town for Issue 1 is accepted. The Town appointed Arbitrator agrees with the Neutral Arbitrator, based upon the same statutory criteria, and the Union appointed Panel Member dissents on the selection of the last best offer of the Town for Issue 1 based on the same statutory criteria."
It is noted that word for word this is the same language which the arbitration panel employed in International Assoc. of Firefighters, Local 998 v. Stratford, 211 W.L. 1031408 (2011), in which the court upheld its usage against an identical attack that the plaintiff makes herein.
In the Bridgeport Firefighters case the panel stated the following:
" Each member of the panel has reviewed the record of the evidence presented to the first panel, the City's statement of reasons for rejection of the award and the Union's response ... The panel discussed the record and written responses and arrived at the hereafter set out Award, applying the criteria of subdivision (2) of Section 7-473c(d) of the Connecticut General Statutes, which reads as follows: ‘ In arriving at a decision the arbitration panel shall give priority to the public interest and the financial capability of the municipal employer, including consideration of other demands on the financial capability of the municipal employer. The panel shall further consider the following factors in light of such financial capability: (A) The negotiations between the parties prior to arbitration; (B) the interests and welfare of the employee group; (C) changes in the cost of living; (D) the existing conditions of employment of the employee group and those of similar groups; and (E) the wages, salaries, fringe benefits, and other conditions of employment prevailing in the labor market, including developments in private sector wages and benefits.’
" The decisions on the individual issues hereinafter set out are the decisions agreed to by all members of the panel. The specific reasons given and standards used in said decisions are adopted by all members of the panel. " (Emphasis added in original.)
Each issue determination concluded with a statement in the report: " Based on a preponderance of the evidence submitted by the parties and giving priority to the public interest and financial capability of the City, and considering the other statutory factors in light of the financial capability of the City of Bridgeport and the public interest, the offer of the [city or union] is awarded by the arbitration panel." Id. at 668-69, 711 A.2d 1188.
In the present case, although in different words, the panel left no doubt that each one of the statutory factors went into each and every determination. Unlike in Bridgeport Firefighters, the decision of the three-member panel was not unanimous but was arrived at by majority vote, hence the need to include reference to the neutral arbitrator agreeing with the Town-appointed arbitrator in their consideration of the " statutory criteria." After comparing the two panel-authored statements the court concludes that there is no functional difference between the two statements. Each statement reflects, implicitly, a consideration by each arbitrator of each of the statutory factors and standards set forth in G.S. § 7-473(d)(9). The reasons given need not refer directly to the factors and standards as long as they fairly reflect such consideration and give them weight. Further, in carrying out their duty to give priority to the public interest and municipal financial capability the panel is not required painstakingly to prioritize each and every factor or even indicate which factor received the highest priority and which the lowest as long as this information can be gleaned from the panel's narrative account.
" It is not a rational interpretation of the statute to require each panel member to set forth the specific reasons and standards used in making his choice on all thirty issues where the report from the panel indicates that the specific reasons given and standards used were agreed to by all members of the panel. To have each member set forth his views individually is not a rational requirement if the same result can be accomplished by reporting what all the members agreed to, rather than setting them forth individually. It would be unreasonable to require each panel member to set forth his views even when his views are consistent with those of his colleagues. We hold that the award complied with § 7-473c(d)(1)" (emphasis in original). Bridgeport Firefighters Assn. IAFF, Local 834 v. Bridgeport, 48 Conn.App. at 667, 711 A.2d 1188.
The plaintiff's second claim of infirmity is that a failure individually to state reasons will impair the ability of subsequent reviewing bodies to perform their statutory functions adequately, namely, the municipal legislative body and the state-sponsored mediation/arbitration service. Initially, it bears noting that the court in the Bridgeport Firefighters case foresaw no such problem. An analysis of the narrative written by the panel indicates that the statutory factors and standards were in fact taken into consideration.
Issue One
This narrative contains a detailed description of why the new practice would impact the financial capability of the town by saving it money by ending a duplicative and unnecessary practice, hence the panel's conclusion that the Town's proposal was " both practical and reasonable." Clearly, the ability to put men to work who otherwise might sit idly goes to the conditions of the employee group as well as the public interest.
Issues 2A, B, C, D
The narrative concerning these wage issues treats abundantly the financial capability of the Town based upon its present financial condition and likely future trends. It also reflects an express consideration of wages in the prevailing labor market.
Issues 3A, B, C, D
This narrative recognizes the increase and upward trend in health care costs to the Town to the extent of a 40% increase in fiscal year 2009. It is obvious from this that a failure of the union to absorb some of this increase will have a real impact on the Town's financial condition.
Issue 4
The panel cannot be faulted for rejecting a last best offer which will increase cost to the Town without providing supporting cost data.
Issue 5
This narrative reflects a consideration of the extraordinarily high cost of workers' compensation in Westport compared to comparable municipalities. It certainly takes into consideration the financial capability of the employer when compared to similar municipal employers.
Issue 6
Same as Issue 4.
Issue 7
Same as Issue 4.
Issue 8
Acceptance of a last best offer because it will eliminate confusion generated by the current contract is inevitably in the public interest and advances the interest of employees.
Issue 10A, B
This reason provides plain evidence of the burdensome fiscal impact which the current pension system has on the Town treasury, viz: (1) increase in pension costs by more than 1000% in five years; (2) drop in value of pension fund by $22 million since fiscal year 2007; (3) underfunding of DPW pension plan by $800,000 and Townwide by $25 million; (4) maximum benefit receivable per employee is exceedingly high compared to contiguous municipalities.
Issue 11
The logic of not terminating the contract until June 30, 2013 rather than 2012 avoids the need for immediate commencement of negotiations and permits all parties to evaluate the changes after living with them for at least a year.
As stated above, while none of these narratives mention the 7-473c(9) factors and standards exclusively, they do so implicitly.
The statutorily created directive for a statement of reasons by an administrative agency is not peculiar to the field of labor law. Since the advent of modern zoning law, zoning boards have been required to state their reasons on the record when changing a zoning regulation or boundary. (G.S. § 8-3(c).) Notwithstanding this requirement such a provision has been held to be directory rather than mandatory and failure to do so does not render the board's actions void but places a burden on the court to search the record. Morningside Assoc. v. Planning and Zoning Board, 162 Conn. 154, 156, 292 A.2d 893 (1972). So too in the field of affordable housing land use appeals brought pursuant to G.S. § 8-30g where the public interest is similarly given priority in the doings of the land use agency, the agency is required to state its reasons for denying an application for affordable housing. In Quarry Knowll II Corp. v. Planning and Zoning Commission, 256 Conn. 674, 728-30, 780 A.2d 1 (2001) our Supreme Court recognized the ability of a zoning commission to carry out its statutory burden to prove that identified public interests outweigh the need for affordable housing by expressing itself either explicitly in its articulated reasons or implicitly in its narrative but that it was not required to do so explicitly. So too where de novo review is required in an arbitration proceeding " if the arbitrators fail to state findings or reasons for the award, or the stated findings or reasons are inadequate, the court shall search the record to determine whether a basis exists to uphold the award." Metropolitan District Commission v. AFSCME Counsel 4 Local 184, 89 Conn.App. 680, 686, 874 A.2d 839 (2005). The court notes that G.S. § 7-463c(14) prescribes that the mediation/arbitration review be " limited to the record and briefs of the hearing, the written explanation of the reasons for the vote and the written response by either party."
The plaintiff's final claim is that the award violates a public policy in three different ways.
A. The Constitutional Argument
The plaintiff argues that the panel violated the constitutional rights of the union members, cites well established federal case law which recognizes that union members have certain due process rights which arise by virtue of their collective bargaining agreement, but fails to provide any analysis whatsoever of how the action of the arbitration panel in the present case violated these members' rights. " We repeatedly have stated that " [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Citations omitted; internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn.App. 808, 818, 733 A.2d 287 (1999). These same principles apply to claims raised in the trial court. (Alternative citation omitted.) Conn Light & Power Co. v. Department of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
Section 7-450 provides in pertinent part as follows: " [a]ny municipality ... may, by ordinance, or with respect to a municipality not having the authority to make ordinances, by resolution adopted by a two-thirds vote of the members of its legislative body, establish pension, retirement, or other postemployment health and life benefit systems ... or amend any special act concerning its pension, retirement, or other postemployment health and life benefit systems, toward the maintenance in sound condition of a pension, retirement, or other postemployment health and life benefit fund or funds, provided the rights or benefits granted to any individual under any municipal pension or retirement system shall not be diminished or eliminated."
The plaintiff claims that the panel's decision on issues 10A and B violates public policy because G.S. § 7-450 prohibits the diminution of pension benefits and the panel's award does precisely that. The identical issue was addressed by the court in International Association of Firefighters, Local 998 v. Stratford, 2011 WL 1031408, supra.
There the court held that the meaning of the statute was plain and unambiguous and that the text of the statute makes it clear that it applies only where a municipality " acts by ordinance, or alternatively by resolution to establish a pension benefits system or to amend a special act pertaining to such system." The court went on to state that if it were to accept the union's argument that the statute applies to a reduction in pension benefits produced by collective bargaining it would be " to twist the plain meaning of the words to create uncertainty in the language." This court agrees.
" When construing a statute, our fundamental objective is to ascertain and to give effect to the apparent intent of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ... in seeking to determine that meaning ... § 1-2z directs us to first consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered ... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, the legislative policy was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." Rivers v. City of New Britain, 288 Conn. 1, 10-11, 950 A.2d 1247 (2008). This statute plainly and unambiguously does not apply to the present case. There is no merit to this claim.
C. Enforcement of the Award Would be Illegal
The plaintiff offers nothing more than woefully conclusory statements that the panel's award violates public policy without offering any analysis other than the bold assertion that because § 7-473c deals with the public interest, a failure to adhere rigidly to its requirements violates public policy. This is a circuitous argument that contains no substantive analysis and therefore is subject to the same affliction which the court has identified in A above.
For the foregoing reasons the application to vacate the arbitration award is denied.