Opinion
No. FST CV 07 4012532 S
December 28, 2009
MEMORANDUM OF DECISION
The plaintiffs bring this application to vacate the arbitration award, on the grounds that in issuing its award, the arbitration panel has exceeded its powers or so imperfectly executed them that a final and definite award upon the subject matter submitted was not made, the award is erroneous as a matter of law, contrary to law, violates public policy, and manifests an egregious or patently irrational application of the law.
On August 21, 2007, the Connecticut State Board of Mediation and Arbitration rendered an award in the case number 2007-MBA-193. On September 19, 2007, the plaintiff, Norwalk Fire Fighters Local 830, I.A.F.F. (Union), filed an application to vacate the arbitration award, against the defendants, Connecticut State Board of Mediation and Arbitration (State Board), and the city of Norwalk (City). The action arises out of failed negotiations between the Union and the City, regarding a new collective bargaining agreement. The parties requested mediation services from the State Board, resulting in agreement on all but ten issues, which were in turn submitted to binding arbitration.
The application is dated September 19, 2007, and the stamped with the same date, however Edison lists the file date for the pleading to be September 24, 2007, though listing September 19, 2007, as the file date for the action.
The plaintiff now applies to vacate the arbitration award as to five of the ten issues where the arbitration panel awarded the last best offer (LBO) of the City on the issue, alleging that in issuing its award, the panel has exceeded its powers or so imperfectly executed them, that a final and definite award upon the subject matter submitted was not made. The subject issues in this application are one, five, six, seven, and eight. The plaintiff filed its brief in support of its application to vacate the arbitration award on October 10, 2008. The defendant City filed its opposition to the plaintiff's application on November 26, 2008. The argument of the application was heard in the Superior Court on November 3, 2009.
As to issue one, addressing rate of pay for overtime work, the panel awarded the last best offer of the City, maintaining the current contract language. As to issue five, addressing co-pays and deductibles for retiree medical benefits, the panel awarded the last best offer of the City, maintaining the current contract language. As to issue six, addressing limiting retiree medical benefits to spouse and dependents at the time of retirement, the panel awarded the last best offer of the City, where the previous contract had no provision. As to issue seven, addressing employee contributions to trust fund for retiree medical benefits, the panel awarded the last best offer of the City, where the previous contract had no provision. As to issue eight, addressing the designation of the fire department as first responder, the panel awarded the last best offer of the City, where the previous contract had no provision, also stating that the Union's offer involved non-mandatory subjects of bargaining, according to the Municipal Employee Relations Act (MERA), and the panel lacked the jurisdiction to award such an offer.
As the City is the only defendant filing an opposition, any mention of a singular defendant refers to the defendant City.
"Our standard of review is well settled. 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.) Cianbro Corp. v. National Eastern Corp., 102 Conn.App. 61, 64, 924 A.2d 160 (2007).
"Certain conditions do exist, however, under which we conduct a more searching review of arbitral awards. In Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992), our Supreme 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 . . . Section 52-418(a)(4) provides that an arbitration award shall be vacated if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award on the subject matter submitted was not made. [A] claim that the arbitrators have exceeded their powers may be established under § 52-418 in either one of two ways: (1) the award fails to conform to the submission, or, in other words, falls outside the scope of the submission; or (2) the arbitrators manifestly disregarded the law." (Citation omitted; internal quotation marks omitted.) American Federation of State, County and Municipal Employees, Council 4, Local 1303-119 v. East Haven, 109 Conn.App. 179, 183-84, 951 A.2d 21 (2008).
General Statutes § 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 or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it 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."
The plaintiff argues that the panel's award contravenes one or more of the statutory proscriptions of § 52-418(a), and violates clear public policy. Specifically, the plaintiff argues that LBOs are fluid under final binding arbitration, stating that the plain language of the statutes clearly permits the Union and the City to submit proposed language before binding arbitration hearings are held and LBO after the hearings are held that are different from its original proposed language submitted upon entertaining arbitration. The plaintiff further argues that the panel exceeded its authority when it failed to properly consider the plaintiff's LBOs concerning issues one, five, six, seven, and eight. Moreover, the plaintiff argues that the panel's decision violates clear public policy, because in Connecticut arbitration awards that are based on factors other than the narrowly proscribed statutory factors violate the explicitly well defined and dominant public policy of complying with state statutes.
Once the panel has issued an "arbitration statement setting forth all agreement provisions agreed upon by both parties in the proposed agreements and the replies, and in the stipulations . . ." General Statutes § 7-473c(d)(2); the parties have the opportunity to submit "statements of LBO;" General Statutes § 7-473c(d)(3); however that the "obligation [to bargain collectively] shall not compel either party to agree to a proposal or require the making of a concession." General Statutes § 7-470(c).
As to the specific issues, the plaintiff argues that (1) the panel's ruling on issue one violated General Statutes § 7-473c(d)(9) because the plaintiff was not required to make any concessions or quid pro quo; (2) the panel's ruling on issue five violated General Statutes § 7-473c(d)(1), because the plaintiff was not required to submit any cost data; (3) the panel's ruling on issue six violated General Statutes § 7-473c(g), because the plaintiff was not required to submit a compromise offer prior to submitting the last best offer; (4) the panel's ruling on issue seven violated § 7-473c(d)(9), because the plaintiff was not required to submit a proposal other than maintaining status quo, and violated § 7-473c(d)(6) because the issue was not treated separately; (5) the panel's ruling on issue eight violated § 7-473c(g), because the plaintiff was not required to submit a compromise offer prior to submitting the last best offer.
Responding to the plaintiff's allegation, the defendant argues that the panel acted within the scope of its statutory powers, pursuant to General Statutes § 7-473c in issuing the award, that the Union has not met its burden to either produce evidence or to persuade the court that the award manifests an egregious or patently irrational application of law, and that the Union fails to articulate any explicit public policy which is well defined and dominant, not entitling it to a de novo review of the award. The defendant also argues that the court should not vacate the award because the Union has failed to submit a complete record of the arbitration proceedings.
As to the specific issues, the defendant argues that (1) the panel's award on issue one did not violate § 7-473c(d)(9), because the plaintiff fails to note that the panel took a number of factors into consideration in making its decision, and thus the panel did not exceed its powers or improperly execute them as the Union alleges; (2) the panel's decision on issue five comports with the requirements of § 7-473c, and was not in excess of its authority, as the plaintiff's offer was a change to the contract with cost implications, requiring the submission of associated cost data; (3) the Union failed to provide any evidence that the panel exceeded or improperly executed its powers in deciding issue six; (4) the panel's decision on issue seven is based on § 7-473c and thus was not in excess of its powers; and (5) the Union failed to provide any evidence that the panel exceeded or improperly executed its powers in deciding issue eight.
The arbitration proceedings in the present case are subject to the Municipal Employees Relations Act (MERA), General Statutes § 7-470 et seq., which governs collective bargaining rights of municipal employees. The relevant subsections at issue in the present case are the following.
General Statutes § 7-473c(d)(1) provides in relevant part that "[n]ot less than two days prior to the commencement of the hearing, each party shall file with the chairperson of the panel, and deliver to the other party, a proposed collective bargaining agreement, in numbered paragraphs, which such party is willing to execute and cost data for all provisions of such proposed agreement. At the commencement of the hearing each party shall file with the panel a reply . . ."
Further, according to General Statutes § 7-473c(d)(6), "[i]n deciding each such question, the panel agreement shall accept the final provision relating to such unresolved issue as contained in the statement of last best offer of one party or the other. As part of the arbitration decision, each member shall state the specific reasons and standards used in making a choice on each unresolved issue." "The structure of [§ ]7-473c, which limits the arbitrators to choosing the last best offer of one party over that of the other, indicates that the primary emphasis of the legislation was to induce settlement of disputes by negotiation under the impetus that the most reasonable proposal would probably gain acceptance by the arbitrators." (Internal quotation marks omitted.) Local 1339, International Assn. of Firefighters v. Waterbury, 274 Conn. 374, 383, 876 A.2d 511 (2005). Section 7-473c(d)(6) provides that the arbitrator is to choose between the two LBOs, which the arbitration panel in the present case has done, awarding the City's LBO for the five issues on appeal. As to all ten issues subject to arbitration, the panel awarded the offer retaining the status quo in every case where there was a provision already existent, which for the purpose of this appeal were issues one and five.
Moreover, General Statutes § 7-473c(d)(9) provides: "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 (B) the wages, salaries, fringe benefits, and other conditions of employment prevailing in the labor market, including developments in private sector wages and benefits."
Finally, General Statutes § 7-473c(g) provides: "No party may submit for binding arbitration pursuant to this section any issue or proposal which was not presented during the negotiation process, unless the submittal of such additional issue or proposal is agreed to by the parties." This statute is clear on its face. Section 7-473c(g) provides that no "issue or proposal which was not presented during the negotiation process" is permissible to submit as a last best offer. The plaintiff misconstrues the intent behind this section, arguing that it is the purpose of negotiations to make new offers, and that, alternatively, the LBOs in dispute were presented during the negotiations. Section 7-473c(g) does not prohibit new offers aiding the negotiation, however, as the arbitrators are obligated under the statute to choose one offer over the other, it would hardly be feasible for them to be confronted with an offer, the background for which was neither previously discussed, nor any necessary evidence submitted to substantiate it. As there are no hearing transcripts before the court in the present case, the court cannot make a determination as to whether something was or was not discussed during the hearings. Accordingly, the arbitrators' determinations as to what constituted a new issue that was not raised during the hearing, must stand.
The plaintiff argues that "it is encouraged, for parties to submit LBO final agreement provisions that are different than that submitted initially just prior to the commencement of evidentiary hearings." In the present case, however, the issue is not that the offer has been changed since prior to the negotiations, but rather that no argument was made, nor evidence in support of the LBO submitted during the negotiations. Accordingly, the case law to which the plaintiff cites does not in fact contradict the panel's application of § 7-473c(g).
For the purpose of this present appeal, the plaintiff must submit an adequate record for review of the court. See Stutz v. Shepard, 279 Conn. 115, 123, 901 A.2d 33 (2006) (reasoning that "[b]ecause the plaintiff has failed to sustain his burden to furnish an adequate record on appeal, we are unable to resolve the merits of his claims"). In the present case, as there were no hearing transcripts submitted as part of the record, the plaintiff has failed to submit a complete record for the purpose of the resolution of any issues relating to what was and was not discussed during said hearings.
"When a party challenges a consensual arbitral award on the ground that it violates public policy, and where that challenge has a legitimate, colorable basis, de novo review of the award is appropriate in order to determine whether the award does in fact violate public policy." (Internal citation marks omitted.) State v. Connecticut State Employees Assn., SEIK Local 2001, 287 Conn. 258, 272, 947 A.2d 928 (2008). "The public policy exception applies only when the award is clearly illegal or clearly violative of a strong public policy . . . A challenge that an award is in contravention of public policy 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 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 . . .
"A two-step analysis . . . [is] often employed [in] deciding cases such as this. First, the court determines whether an explicit, well-defined and dominant public policy can be identified. If so, the court then decides if the arbitrator's award violated the public policy . . . We note that [t]he party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated . . . Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail . . . only if it demonstrates that the [arbitrators'] award clearly violates an established public policy mandate . . . It bears emphasizing, moreover, that implicit in the stringent and narrow confines of this exception to the rule of deference to arbitrators' determinations, is the notion that the exception must not be interpreted so broadly as to swallow the rule." (Citations omitted; internal quotation marks omitted.) Id., 272-74.
The plaintiff is required to submit a complete record for any issues where consulting the record will be relevant, as the court's scope of review cannot be a de novo review, with the exception of public policy reasons. The panel did not disregard, misinterpret, or misapply the relevant statutes. As it is the plaintiff's burden to prove a public policy violation, and there is no public policy cited in the present case, beyond the adherence to statutes, the court will not review this arbitration decision de novo but purely on procedural grounds.
The panel elaborated substantively on its decision as to every single separate issue subject to arbitration. As to issue one, the panel awarded the City's offer maintaining the status quo, reasoning that the Union had "not made a single concession that would qualify as a substantial `quid pro quo' for a change in the overtime it seeks." The plaintiff argues that pursuant to § 7-473c(d)(9), the Union was not required to make any concessions or offer any quid pro quo for the demands. The panel was consistent in always maintaining the status quo as to all issues for which there was an existent provision. The panel goes on to substantively discuss why maintaining the status quo would be beneficial and necessary according to the statutory factors to be considered. Accordingly, even though the plaintiff may be right in its statement that § 7-473c(d)(9) does not require any concessions to be made by either party during negotiations, and in light of the fact that § 7-473c(d)(9)(A) permits the consideration of "[t]he negotiations between the parties prior to the arbitration," the panel appears to have stated this as a summary as to why maintaining the status quo is the final decision.
As to issue five, the panel awarded the City's offer maintaining the status quo, reasoning that "the Union presented no cost data or any other evidence on this proposal at any time either prior to or during the arbitration hearings," and that this constituted a new issue or proposal pursuant to § 7-473c(g). As to issue six, the panel awarded the City's offer, reasoning that this is a new proposal, pursuant to § 7-473c(g). As to issue seven, the panel awarded the City's offer, reasoning that this constituted a new proposal, pursuant to § 7-473c(g). As to issue eight, the panel awarded the City's offer, reasoning that this constituted a new proposal, pursuant to § 473c(g), and for the alternative and additional reason that "the Union's offer involves non-mandatory subjects of bargaining and that the panel lacks jurisdiction to award such an offer."
The plaintiff's claim that the panel's mention of additional reasons, cited under issue of four and five, also applying as reasoning for issue seven, is inadequate, is without merit. The panel clearly explains its reasoning.
As discussed above, the lack of adequate record limits the court's review of what constitutes a new issue or proposal. The same problem exists as to the determination of whether the submission of cost data was necessary, as that is related to the type of information discussed and submitted during negotiations. Accordingly, due to the lack of adequate record, the court is bound by the panel's determination as to the sufficiency of evidentiary support.
Accordingly, as the panel did not exceed its powers or so imperfectly execute them that a mutual, final and definite award was not made, but rather conformed to the submissions, and abided by the governing statutes, the application to vacate the arbitration award as to all five contested issues is denied.