Opinion
No. HHB CV 10 6007425 S
March 2, 2011
MEMORANDUM OF DECISION RE PLAINTIFF'S APPLICATION TO VACATE ARBITRATION AWARD
HISTORY OF THE PROCEEDINGS:
The plaintiff, New Britain Firefighters Association, Local 992, IAFF, AFL-CIO [the union] seeks to vacate the September 22, 2010 award of an arbitration panel. The defendant, City of New Britain [the city] objects to the application.
On June 10, 2009 the union filed a grievance, asserting the city was in violation of a memorandum of understanding [MOU] dated January 3, 2003, which was incorporated into the collective bargaining agreement [CBA] between the union and the city. That MOU provides for promotions to be made from a certified promotional list if a vacancy occurs in a higher rank prior to 120 days for which the list is in effect. The city claims that the MOU is in violation of General Statutes § 7-474(g).
110.00, Defendant's brief, Exhibit 1.
Plaintiff's exhibits, Attachment A.
The CBA provides for arbitration of grievances. The union processed the grievance to the State of Connecticut, Department of Labor, State Board of Mediation and Arbitration. In turn, on May 19, 2010, the city raised the issue of arbitrability, pursuant to General Statutes § 31-97(b), claiming that the MOU was in derogation of General Statutes § 7-474(g). No objection to the submission was raised by the union in response.
101.00, Plaintiff's exhibits, Attachment A, Collective Bargaining Agreement, ¶ 13:5(a).
110.00 Brief of the Defendant, Exhibit 2.
General Statutes § 31-97(b) states, "No panel of said board may consider any claim that one or more of the issues before the panel are improper subjects for arbitration unless the party making such claim has notified the opposing party and the chairman of the panel of such claim, in writing, at least ten days prior to the date of hearing, except that the panel may consider such claim if it determines there was reasonable cause for the failure of such party to comply with said notice requirement."
General Statutes § 7-474(g) states, "Nothing herein shall diminish the authority and power of any municipal civil service commission, personnel board, personnel agency or its agents established by statute, charter or special act to conduct and grade merit examinations and to rate candidates in the order of their relative excellence from which appointments or promotions may be made to positions in the competitive division of the classified service of the municipal employer served by such civil service commission or personnel board. The conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such examinations and the initial appointments from such lists and any provision of any municipal charter concerning political activity of municipal employees shall not be subject to collective bargaining, provided once the procedures for the promotional process have been established by the municipality, any changes to the process proposed by the municipality concerning the following issues shall be subject to collective bargaining: (1) The necessary qualifications for taking a promotional examination; (2) the relative weight to be attached to each method of examination; and (3) the use and determination of monitors for written, oral and performance examinations. In no event shall the content of any promotional examination be subject to collective bargaining."
A hearing was held on June 25, 2010 and the submission to the arbitration panel was unrestricted as to the issue of arbitrability. On September 22, 2010, the panel issued its award that the grievance was not arbitrable, stating that the MOU violated General Statutes § 7-474(g). This application for an order of vacatur followed.
101.00, Plaintiff's Exhibits, Attachment B; 110.00, Defendant's Brief, Exhibit 3, arbitration award. As to Issue, the award states, "Is this matter arbitrable? Yes or No?" The only evidence provided reveals that the submission was unrestricted as to the issue of arbitrability. Since neither the submission formulated by the arbitrators nor the issue contain conditional language, the submission at issue is unrestricted. Industrial Risk Insurers v. Hartford Steam Boiler Inspection Ins. Co., 258 Conn. 101, 111-12, 779 A.2d. 737 (2001).
The panel stated, "In summary, it is found that the appointment from a promotional list, the subject of the instant grievance, is clearly exempted from being collectively bargained by the . . . language of Conn. Gen. Stats. Section 7-474(g) and its interpretation through Connecticut case law. As the appointment from a promotional list is exempt from collective bargaining, it is not part of the contract and cannot be grieved by the Union." Defendant's Brief, January 10, 2011, Exhibit 3, Arbitration Award, p. 7, one arbitrator dissenting.
The union claims the arbitration panel exceeded its authority in awarding that the issue was not arbitrable. The city asserts the award is within the parameters of the submission as the city presented its claim that that the MOU is in violation of § 7-474(g) as part of the submission to the arbitrators.
LEGAL STANDARD:
For many years, the courts have wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. When arbitration is created by contract, its autonomy can only be preserved by minimal judicial intervention. Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator's powers, the parties are generally bound by the resulting award. Since the parties consent to arbitration, and have full control over the issues to be arbitrated, a court will make every reasonable presumption in favor of the arbitration award and the arbitrator's acts and proceedings. The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it. There are three recognized grounds for vacating an arbitrator's award: (1) the award rules on the constitutionality of a statute; (2) the award violates clear public policy or (3) the award contravenes one or more of the statutory proscriptions of § 52-418. Marulli v. Wood Frame Construction Co., LLC, 124 Conn.App. 505, 509, 5 A.3d 957 (2010); Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 473-77, 899 A.2d 523 (2006).
Because arbitration is favored as a means of settling private disputes, judicial review of arbitration awards is undertaken in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. Additionally, every reasonable presumption and intendment will be made in favor of the award and of the arbitrator's acts and proceedings. Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission. State v. AFSCME, Council 4, Local 391, 125 Conn.App. 408, 414, 7 A.3 931 (2010).
Whether a particular dispute is arbitrable is typically a question for the court. It is well established, however, that arbitration is a matter of contract and that parties may agree to have questions concerning the arbitrability of their disputes decided by a separate arbitrator. In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators. The intention to have arbitrability determined by an arbitrator can be manifested by an express provision or through the use of broad terms to describe the scope of arbitration. New Britain v. AFSCME, Council 4, Local 1186, 121 Conn.App. 564, 569, 5 Conn.App. 957 (2010).
Under 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. The resulting award can be reviewed, however, to determine if the award conforms to the submission. The significance of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obliged to do, but to determine the scope of judicial review of what the arbitrators have done. Id. at 572-73. 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. Id. at 574.
DISCUSSION:
There is no issue as to whether the arbitration panel was to determine arbitrability. That was all the arbitrators were to decide. Both parties submitted that very issue to the arbitration panel.
Additionally, it appears that, save the question of the validity of the MOU, the city would not have contested arbitrability, as the COA clearly provides for arbitration. The source of this dispute is whether the city's claim, that the MOU violated § 7-474(g), was properly for the arbitrators' consideration in determining the issue of arbitrability. The merits of the grievance itself are not at issue here.
101.00, Plaintiff's exhibits, Attachment A, collective bargaining agreement, ¶ 13:5(a).
The union claims that the award denying arbitrability contravenes General Statutes § 52-418 and "the plain language of the agreement." As to § 52-418, the union claims the following defect: "(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." § 52-418(a). Whether the arbitrators contravened the plain language of the agreement is not a basis for review by this court. Marulli, supra. In constructing § 52-418(a)(4), the court looks to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers. The inquiry is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred. Westbrook Police Union, Local 1257, Council 15 v. Westbrook, 125 Conn.App. 225, 227-28, 6 A.3 1164 (2010).
General Statutes § 52-418(a) states, "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: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (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 union argues that the arbitration panel should have been limited to deciding whether the CBA and MOU provided for arbitrating the issue of whether there was compliance with the MOU. The union asserts that the panel went beyond that issue and determined that the MOU violated General Statutes § 7-474(g). The city's argument is that the issue of the validity of the MOU must be considered in order to determine whether the grievance is arbitrable and that it submitted the issue to the arbitrators as part of the submission. The court's review is limited to determining whether the award is within the parameters of the submission. Id.
On May 19, 2010, in a letter to the Chair of the Board of Mediation and Arbitration, the city attorney advised the board and the union that, as part of the submission on the issue of arbitrability, the city claimed that the grievance does not present a proper subject for arbitration pursuant to § 7-474(g). The plaintiff union has the burden of proving that this was not included in the submission. State v. AFSCME, Council 4, Local 391, supra. There is no evidence that the union contested the city's claim as part of the submission to the arbitrators. Therefore, the claim was properly considered by the arbitrators in determining the issue of arbitrability.
110.00 Brief of the Defendant, Exhibit 2.
In determining whether an arbitrator has exceeded the authority granted under the contract, the court cannot base the decision on whether the court would have ordered the same relief, or whether or not the arbitrator correctly interpreted the contract. The court must instead focus on whether the arbitrator had the authority to reach a certain issue, not whether that issue was correctly decided. Consequently, as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of authority, the award must be enforced. The arbitrator's decision cannot be overturned even if the court is convinced that the arbitrator committed serious error. Moreover, every reasonable presumption and intendment will be made in favor of the award and of the arbitrator's acts and proceedings. Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission. Id. at 228, citing Teamsters Local Union No. 677 v. Board of Education, 122 Conn.App. 617, 621-24, 998 A.2d 1239 (2010).
Again, this court's review is very limited. That review is to determine whether the arbitrators has the authority to consider the issue of whether the MOU violates General Statutes § 7-474(g) as part of its submission and in making its award. This issue was presented by the city to the arbitrators as part of the submission of arbitrability. The arbitrators had the authority to consider it. The role of the court is not to determine the merits of the underlying claims. The union has not met its burden of proof in its application for vacatur.
ORDER:
The application to vacate the arbitration award is denied.