Opinion
No. CV-10-6006885
October 21, 2010
MEMORANDUM OF DECISION ON APPLICATION TO VACATE AND APPLICATION TO CONFIRM ARBITRATION AWARD
The plaintiff, City of Hartford ("Hartford"), has brought this action to vacate the Arbitration Award issued by a panel of the Connecticut State Board of Mediation and Arbitration (the "Panel"), which sustained the grievance filed by the defendant, Hartford Municipal Employee Association, on behalf of Vilma Rivera-Saez. The defendant has filed an application to confirm that Award.
Arbitration Award
The Arbitration Award sets forth the "Issue" as, "Did the City of Hartford terminate Vilma Rivera-Saez for just cause? If not, what shall the remedy be?" The Award contained the following language under the subtitle, "Position of the City:"
The grievant, Vilma Rivera-Saez, worked for the Tax Collector's Office of the Finance Department of the City of Hartford since October 27, 2005. On August 4, 2008, she was terminated from the position of Administrative Assistant for serious acts of misconduct and/or gross negligence and extreme breach of her responsibility as a supervisory employee.
The grievant was responsible for supervising the cashiers who work at the Tax Collector's Office. Her duty was to assure that these employees performed their jobs properly and that the money that they collected was accounted for Their work space is located at the front desk area of the Tax Collector's Office and is divided into several "windows" or "cash registers." When payments are brought to the City, the cashiers are required to record the transaction in the computer system and store, in a locked box, the checks and cash that they receive. Each cashier has a separate locked box. City employees refer to the computer system used in the Tax Office as the "Munis System." At the end of the day, cashiers are responsible for closing out their box and balancing the checks and the cash that they received against a statement generated by the Munis system. This task, which is usually performed at the end of the day, is referred to as "closing out." As part of the closing out process, the cashiers are required to prepare a document called "Daily Deposit Reconciliation Record." This document lists all the checks and cash received by a particular cashier and certifies that monies received are properly accounted for and that the deposits in the box match the deposits recorded in the Munis system. A printout of the Munis report is attached to the Daily Deposit Reconciliation Record. The cash and the checks itemized in the Daily Deposit Reconciliation Record must match the checks and the cash in the Munis report. The adding tape used in the closing out process is also attached to the Deposit Reconciliation Record.
Deputy Finance Director Lydia Rosario testified that the grievant received extensive training during the time that she worked for the City . . .
In the summer of 2008, Patrick Campbell, the City's Chief Auditor, was asked to investigate a series of cash shortages in the Tax Collector's Office. The investigation revealed the existence of a scheme in which checks were substituted for cash in several daily deposits made during the month of November of 2007. Mr. Campbell found that someone in the Tax Office had taken cash out of a cashier's box and replaced it with checks that had been received through the mail. In his testimony, Mr. Campbell gave a general description of how the scheme operated:
It operated by, say for instance, cash of $1,000 was received, just for instance, during a particular daily transaction. What happened was that some of that cash, a check coming in from an outside source, in this case coming in through the mail, was taken and was placed in that batch of cash, swapped out from the batch of cash. They took $500 out of the case, put the check in there so it would still equal $1,000 . . .
Mr. Campbell identified four specific instances where this scheme took place. In these four instances, the cash and the checks reported in the Daily Deposit Reconciliation Record did not match the checks and the cash in the Munis report, namely checks were swapped for cash on four separated occasions. The checks swapped total the exact amount of cash that was taken out of the cashier's box.
During his investigation, Mr. Campbell discovered that the grievant was the person who prepared the Daily Deposit and Reconciliation Record in three of the instances when checks were exchanged for cash. He found out that, on these three occasions, the grievant had prepared the Daily Deposit Reconciliation Record for a cashier named Yordano Vazquez. Moreover, during an interview with Mr. Campbell, the grievant admitted that she prepared the three Daily Deposit Reconciliation Records where checks were exchanged for cash. Furthermore, she admitted that her handwriting was on the endorsement of the checks that were exchanged for the cash. Her handwriting and her initials also appear on the adding tape used to close out on these three occasions.
The grievant was not the employee responsible for completing the Daily Deposit Reconciliation Records where checks were swapped for cash. The person responsible was Yordano Vasquez, a cashier who worked under the grievant's supervision. Mr. Campbell conducted extensive interviews regarding these cash shortages. During the course of these interviews, he found out that, on many occasions, Mr. Vazquez was instructed by the grievant to leave his cash register open while he went for lunch of for a break. Subsequently, the grievant admitted that she told Mr. Vazquez to leave the cash register open.
On or around January of 2008, a taxpayer by the name of Talish A. Graves came to the Tax Collector's Office to complain that a $200 check that she had paid to the City, back in November 2007, had not been credited to her account. It turns out, that this $200 payment was one of the checks that had been substituted for cash back on November 15, 2007. Coincidentally, this check was endorsed by the grievant and deposited with the Daily Deposit Reconciliation Record that she prepared on November 15, 2007. When the grievant became aware of the fact of this issue, she proceeded to credit the $200 towards Ms. Graves' account without conducting any investigation to determine the reason why the check was not deposited properly . . .
. . . In this case, the City has established that the grievant engaged in a gross act of negligence when she purported to balance Mr. Vasquez's cash register on November 15th, 16th and 21st. On those occasions, she prepared a Report that failed to account for the whereabouts of several thousands of dollars that the City had received. All that she did on November 15th, 16th and 21st was add the payments collected in the locked box without properly balancing them against the report generated by the computer system. This procedure is completely contrary to the training that she received throughout her career as a cashier. The City maintains that this act of gross negligence constitutes just cause for termination.
The biggest proof of the grievant's gross negligence is, perhaps, her assertion that as a supervising cashier, she was not required to match the checks and the cash against the Munis report. This statement is an admission of her extreme breach of her responsibility as a supervisor. How can she adequately supervise Mr. Vazquez if she does not check the Munis report that itemizes the checks and the cash? Allegedly, the grievant prepared the Daily Reconciliation Records on November 15th, 16th and 21st because Mr. Vazquez was having "problems ". . .
Further proof of the grievant's negligence is the fact that she ended up doing practically all of her subordinate employee's duties but never disciplined him for failing to do his work . . . She went as far as endorsing the back of checks that had not been endorsed. Curiously, these checks were not received at the cashier's window. These checks came from the mail and were later substituted for cash in Mr. Vazquez locked box.
The grievant's testimony was contradictory with respect to Mr. Vazquez's job performance. She indicated that he had "prior problems," however, Mr. Vazquez's performance history reveals that he had very good evaluations.
The grievant showed that she was a poor supervisor when she criticized Mr. Vazquez but failed to articulate the precise nature of his problems. She did not explain why she had to close out for Mr. Vazquez on three occasions within a period of seven days . . .
The grievant also failed as a supervisor when she instructed her subordinate employee to keep his drawer open during lunch and during break. Allowing a cash register to remain open is clearly wrong and highly suspicious. There should be only one cashier per cash register. Any person responsible for a cash drawer should know that cashiers cannot share cash registers. If a cashier needs a substitute, a new box must be opened by the new cashier . . .
Emphasis added.
The Award contained the following language under, "Position of the Union:"
The grievant was charged with improper preparation, reconciliation and follow up on deposits. However, the City offered no evidence to substantiate its claim. The grievant denied misappropriating these funds totaling $2,421.18 on September 12, 2007 and another shortage of $100 on November 16, 2007. The City offered no proof she took the money. The City terminated the grievant for stealing but it is unable to substantiate the claim.
Mr. Lee Erdmann, the decision-maker in the grievant's termination, was unequivocal in the allegation contained in this August 4, 2008 termination letter in which he stated that "The misappropriation of cash through the substitution of seven checks for cash in a cashier's daily batches totaling $6,657.73 on four separate occasions even though there was no need for you to be involved in any of the batches or to have completed the Daily Deposit Reconciliation Record form for any of the cash shortages;" Mr. Erdmann fired the grievant because he claimed she stole $6,657.73 on four separate occasions . . .
There is no evidence whatsoever the grievant was warned that it is "unacceptable work performance' for a supervisor to assist a subordinate who is having trouble in preparing reconciliation reports by filling out a deposit report . . .
It is undisputed the grievant did, on occasion, tell Mr. Vazquez to leave his cash drawer open when he took lunch at lunchtime. The grievant was instructed by Ms. Rosario to personally assist in covering windows at lunchtime. The grievant was not instructed she could not ask a cashier to leave a drawer open so she could assist with the customers . . .
There is no competent evidence proving, by any standard, that the grievant is a thief. The grievant has consistently and adamantly denied this scurrilous allegation . . .
The Award contained the following language under "Discussion:"
The Panel concluded that there was no question that the grievant had failed to perform her supervisory duties correctly. Specifically, it is accepted fiscal practice that any cashier is held accountable for his/her cash drawer and not to pass this responsibility to a third party even it is his/her supervisor.
The grievant's satisfactory rating of her subordinate's performance despite her claims that he "had problems" was baffling to the Panel. As supervisor, she is required to document an employee's work performance and to coach/counsel the employee in steps to improve performance. No such evidence of any coaching, counseling or documentation of performance deficiencies was offered.
Although the City implied that the grievant had "stolen" money through an improper deposit scheme, there was no evidence offered to show the grievant was, in fact, a thief thus this implication was quickly put aside by the Panel. Had the City been able to prove what it apparently believes to be true, the disciplinary action taken in this case would have been supported . . .
The grievant's claim that she was unaware of the Munis system is self-serving and only suggested to the Panel that she was unaware of her responsibilities as a supervisor.
Since the Panel concluded she had been grossly negligent, the next question to be addressed was whether the penalty of termination was appropriate in this case. Two elements were considered relevant to the panel on this question.
First, the discipline given to the grievant and the subordinate cashier was reviewed. When taking this fact into account along with the grievant's previous unblemished disciplinary record, it appeared to the panel that the grievant received the ultimate level of discipline, termination, while the cashier who deposits were improper was only given a slap on the wrist.
Second, the Panel discussed failings on the part of the City that contributed to the grievant's poor performance. Much consideration was given to the fact that the City failed to have written departmental policies and procedures regarding monies collected. Additionally, it was the Panel's belief that the City apparently condoned the grievant's work behaviors as it failed to discipline, coach or counsel the grievant about claimed unacceptable practices. These two points made it apparent to the Panel that the overall operation of the department was lax and unsecure. Soon after the grievant was terminated, new written policies were instituted. Hopefully, these will help restore the department to a safe and secure operation.
Under no circumstances does the Panel condone the manner in which the grievant performed her duties. However, the City must also accept some blame as it failed to adequately supervise the supervisor.
The grievant's total disregard for any accountability on her part was very disturbing to the Panel. The Union admitted that the grievant, while employed as a cashier, understood she was responsible for her own cash drawer. If she understood this while serving as a cashier, why would she ever put her subordinate in a position where his drawer was compromise when directing him to leave it open during his break or lunch period? The Panel does not support the Union's contention that the grievant did not have to follow an auditor's previous admonition regarding cash drawers once she became a supervisor simply because it was said before she became a supervisor. She was well aware of the importance to have secure cash drawers and had received training in collection procedures.
In light of the above, the Panel rules that the termination of the grievant was too harsh a level of discipline but that the grievant is also culpable for deficiencies and is deserving of discipline therefore, the discipline is reduced to that of an indefinite suspension without back pay and/or benefits.
Emphasis added
AWARD
The grievance is sustained. The City of Hartford did not have just cause to terminate Vilma Rivera-Saez. The discipline shall be reduced to that of an indefinite suspension. She shall be restored to her position sans back pay and/or benefits. Additionally, she shall be trained in the department's current practices and procedures.
The Award was concurred in by only two of the three members of the Panel. The third member, Marc S. Mandell, filed a dissenting opinion which provided, in part:
I respectfully dissent because I believe that there was overwhelming evidence that the grievant engaged in misconduct including taking money that residents had paid to the City of Hartford's Office of Tax Collector. The residents thought reasonably that the money they were sending to the Office of Tax Collector was being used to pay their property taxes, primarily for motor vehicles. Instead, the money was used in a scheme to deprive the City of Hartford of its tax dollars and to deprive the residents of Hartford from receiving proper credit for having paid their property taxes. I therefore believe that restoration of the grievant to her supervisory position in the very office where the misconduct took place and where she played a leading role in the scheme is improper in light of the contract and in light of public policy.
The scheme was not terribly sophisticated or difficult to understand. When taxes are paid, the cashier makes an entry into the Munis system that states how much money was taken in and by what means (cash, check or money order). At the end of each day, the cashier does a reconciliation to make sure what is in his or her cash register matches what is recorded into the Munis system. If things do not match, then an investigation is needed to reconcile the Munis system report with what was in the cash register.
In the three instances which were brought before the panel by the City of Hartford, it was proven by uncontroverted evidence that checks were received and routed to the cash register of a hapless cashier named Vasquez. In each of the instances, there was uncontroverted evidence that the grievant instructed Vasquez to leave his cash register open (fnl Vasquez was the grievant's subordinate. As supervisor, the grievant could and did require Vasquez to leave his cash drawer open. Vasquez made no independent decisions). In each of the instances, checks were put into the cash register and an identical amount of cash was removed. In each of the instances, there was uncontroverted evidence of the grievant's links to the checks in the form of her signature and on notations made by the grievant in the reconciliation. Most incriminating against the grievant is the fact that she instructed Vasquez to leave his cash register open and she told Vasquez that she would prepare the reconciliation reports. Even more incriminating to the grievant is the fact that there were no instances of check swapping on days when the grievant was not at work. There is no logical reason for the grievant to have told Vasquez to leave his cash register open and there is no logical reason why the grievant was so insistent on having access to Vasquez's cash register. There is no logical reason why the grievant insisted on doing the reconciliation reports only on the days when checks for cash were swapped
The scheme collapsed as it inevitably had to, given how clumsy it was. Taxpayers received letters telling them that they were in arrears on their taxes and then the taxpayers proved that they had brought checks to the Tax Collector, and the checks were deposited. The City proved a link to the grievant on all of the checks that were swapped for cash. The City's investigation showed a link in the form of signatures and notations to the grievant for all of the checks that were swapped. In each instance of check for cash swapping, the grievant told Vasquez to leave his cash drawer open.
I cannot conceive of any further evidence that the City of Hartford needed to enter into the record to prove the grievant's starring role in the scheme.
I believe that returning the grievant to a position of Supervisor in the office of Tax Collection is contrary to public policy. Our award does not allow the City of Hartford to reduce the grievant in rank. When she returns, she will once again by supervising all of the cashiers and the cashiers will be required to obey her instructions. I find that troublesome and therefore dissent.
Emphasis added.
Discussion of the Law and Ruling
Arbitration is a favored method of dispute resolution, particularly in the area of labor-management relations and collective bargaining agreements. Plainfield Board of Education v. National Assoc. of Government Employees, 108 Conn.App. 35, 39, 947 A.2d 371 (2008); East Haven Board of Education v. East Haven Education Association, 66 Conn.App. 202, 207, 784 A.2d 958 (2001). Where the parties have agreed to arbitration, "[e]very reasonable inference is to be made in favor of the arbitral award and of the arbitrator's decision." Plainfield Board of Education v. National Assoc. of Government Employees, supra; New Haven Board of Education v. AFSCME, Council 4, Local 287, 195 Conn. 266, 271, 487 A.2d 553 (1985); Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 585, 440 A.2d 774 (1981). "Courts should be extremely reluctant to interfere with the decisions of arbitrators in the field of labor-management relations where arbitration is to be encouraged as a means of promoting tranquility and the prompt and equitable settlement of disputes." International Union v. Fafnir Bearing Co., 151 Conn. 650, 653-54, 201 A.2d 656 (1964).
This special deference to arbitration requires the courts to "undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution." Garrity v. McCaskey, 223 Conn. 1, 4, 612 A.2d 742 (1992) (quoting City of Hartford v. Connecticut State Board of Mediation Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989)).
There are certain conditions, however, under which the court will conduct a more searching review of arbitral awards. "In Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992), the Court reiterated that there are three grounds for vacating an award when the submission is unrestricted. 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 proscriptions of General Statutes § 52-418." Metropolitan District Commission v. Local 184, 77 Conn.App. 832, 838, 825 A.2d 218 (2003)."[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 of whether the award violates public policy requires de novo judicial review." (Internal quotation marks omitted.) Metropolitan District Commission v. AFSCME, Council 4, Local 184, 89 Conn.App. 680, 683, 874 A.2d 839, cert. denied, 275 Conn. 912, 882 A.2d 673 (2005).
In Board of Police Commissioners v. Stanley, 92 Conn.App. 723, 887 A.2d 394 (2005), the Court upheld the judgment of the trial court vacating on public policy grounds the arbitration award reinstating the employment of the defendant police officer. In Stanley, the defendant's employment as a police officer was terminated following complaints of harassment, intimidation and false statements to the department. Specifically, four women complained of inappropriate language and conduct by the defendant, including the use of sexual language, grabbing of their buttocks, harassment with a police car's flashing lights and observation by the defendant of one of the women while she was getting out of a shower.
After the Board of Police Commissioners terminated the officer's employment, he filed a grievance, which went to arbitration. The arbitrators found that the officer had engaged in misconduct while on duty, but, nevertheless, ordered that he be reinstated. The City filed an application to vacate the award on various grounds including that the award violated the established public policy against sexual harassment. The trial court found that the award violated the clearly defined public policies against harassment and sexual misconduct, as well as the public policy requiring good conduct on the part of police officers, and vacated the arbitration panel's award of reinstatement.
In upholding the decision of the trial court, the Court stated:
Having concluded that the court properly based its decision on a well defined public policy against inappropriate behavior by a police officer on and off duty, and against implied municipal endorsement of such conduct, our analysis shifts to whether enforcing the award reinstating the defendant to the police force violates those public policies. "[A public policy] challenge is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them . . . 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 . . ." (Internal quotation marks omitted. State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 252 Conn. 474-75.
When a municipal employee violates the public policies enumerated in state statutes and employment regulations, a reviewing court cannot enforce an arbitral award reinstating him to employment as a police officer. See, e.g., Groton v. United Steelworkers of America, supra, 254 Conn. 35 (trial court properly determined that arbitrator's award reinstating employee who embezzled from former employer violated public policy); State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 252 Conn. 478 (finding against public policy an award reinstating correction officer who made harassing, racist telephone calls to state legislator while on duty because conduct violated criminal statute and employment regulations of department of correction); South Windsor v. South Windsor Police Union, 41 Conn.App. 649, 654, 677 A.2d 464 (finding against public policy reinstatement of police officer who deliberately revealed identity of confidential informant), cert. denied, 239 Conn. 926, 683 A.2d 22 (1996); State v. Council 4, AFSCME, 27 Conn.App. 635, 641, 608 A.2d 718 (1992) (trial court properly determined that arbitrator's award reinstating employee who misappropriated state funds violated public policy).
Board of Police Commissioners v. Stanley, supra, at 740-43.
The plaintiff argues that the award reinstating the grievant here violates the public policy recognized by our Supreme Court in Groton v. United Steelworkers of America, 254 Conn. 35, 757 A.2d 501 (2000):
For example, the employer is entitled to expect that he be able to trust an employee who is in a position of financial responsibility. The employer is also entitled to expect that his other employees will be able to trust their coemployees, and that those other employees will feel sufficiently deterred from engaging in embezzlement. Finally, the employer is entitled to expect that members of the public who are required to deal with his employees will feel that they are being served in an honest and trustworthy manner. All of these legitimate expectations are severely threatened by a requirement that the employer reinstate an employee who has been convicted of embezzling the employer's funds. That severe threat, moreover, is not removed or significantly ameliorated by the fact that the conviction rests upon a plea of nolo contendere, as opposed to a plea of guilty or a trial.
253 Conn. at 48-49.
In Groton the plaintiff had not introduced any evidence of the terminated employee's conduct that constituted theft. Instead, it relied on the fact that the employee had been convicted of embezzlement. The arbitrators, following well established law, did not consider the conviction because the employee had plead nolo contendere to the theft charges. The Court recognized that a conviction after a plea of nolo contendere was generally not admissible in another criminal, civil or administrative proceeding, but found that the public policy against forcing a municipality to reinstate an employee it could not trust to a position of financial responsibility was sufficiently strong to trump the policy which prohibited the use of a nolo contendere conviction.
In the present case the plaintiff, for undisclosed reasons, did not prosecute the grievant. However, the plaintiff presented abundant evidence that the grievant had played a pivotal role in the theft of public funds. As the dissenting member of the Panel stated:"I cannot conceive of any further evidence that the City of Hartford needed to enter into the record to prove the grievant's starring role in the scheme[to swap cash for unrecorded checks]."
When considering whether an award violates public policy, the court conducts a de novo review. See Metropolitan District Commission v. AFSCME, Council 4, Local 184, supra. Therefore, the court is not bound by the finding by the majority of the Panel that "there was no evidence presented to show that the grievant was a thief." Clearly, there was very strong evidence that the grievant was responsible for the disappearance of the funds at issue. Her endorsement was on the checks which had been swapped out for cash. Those cheeks had never been entered into the Munis System, leaving the citizens of Hartford who wrote the checks, like Talish A. Graves, to receive further delinquency notices after they had paid their taxes. The only dates on which cash was swapped for checks were the dates on which the grievant had prepared the Daily Deposit and Reconciliation Record for her subordinate, Mr. Vasquez. The panel did not believe her reasons for preparing that Reconciliation Record: she claimed that Vasquez was a problem employee, yet he received favorable employment evaluations. On the dates on which the grievant did prepare the Reconciliation Record, she clearly did no reconciliation. Had she done one, it would have been clear that the checks that had been swapped out for cash had not been recorded in the Munis System. The grievant offered the quite unbelievable explanation that she did not know that she had to perform a reconciliation. However, the Panel did not believe that explanation, finding it to be "self serving." Moreover, the Panel did not believe that the grievant was unaware of the well accepted practice of requiring cashiers to keep their cash drawers locked at all times.
Thus, the Panel, while stating that there was no evidence that the grievant was a thief, did not believe any of the grievant's explanations for her conduct. The only other explanation for her conduct, as noted by the dissenting member of the Panel, was that the grievant had a starring role in the scheme to steal from the City of Hartford by swapping out cash for unrecorded checks.
Even more incriminating to the grievant is the fact that there were no instances of check swapping on days when the grievant was not at work. There is no logical reason for the grievant to have told Vasquez to leave his cash register open and there is no logical reason why the grievant was so insistent on having access to Vasquez's cash register. There is no logical reason why the grievant insisted on doing the reconciliation reports only on the days when checks for cash were swapped.
It is true that the the plaintiff did not pursue a criminal conviction against the grievant. However, a conviction of a crime is not a prerequisite to finding that an award violates public policy. See, i.e., Board of Police Commissioners v. Stanley, 92 Conn.App. 723, 887 A.2d 394 (2005); State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 252 Conn. 478; South Windsor v. South Windsor Police Union, 41 Conn.App. 649, 654, 677 A.2d 464, cert. denied, 239 Conn. 926, 683 A.2d 22 (1996).
As the Court stated in Groton, the employer is entitled to expect that it be able to trust an employee who is in a position of financial responsibility. The employer is also entitled to expect that its other employees will be able to trust their coemployees. Finally, the employer is entitled to expect that members of the public who are required to deal with his employees will feel that they are being served in an honest and trustworthy manner. The plaintiff, City of Hartford, is entitled to expect the foregoing from its employees. Based on her clear role in the scheme to swap cash for checks, the City cannot reasonably be expected to trust the grievant. The Award, which returns the grievant to her position of financial responsibility is against public policy. For the foregoing reasons, the Application to Vacate the Arbitration Award is granted and the Application to Confirm the Award is denied.