Opinion
No. CV 02-99459
June 18, 2003
MEMORANDUM OF DECISION
This is an action by the Connecticut State Police Union to vacate an arbitration award which upheld the dismissal of Michael Fosque, a State Trooper and member of the Union. Trooper Fosque was an employee of the State of Connecticut Department of Public Safety and was subject to a collective bargaining agreement with respect to wages, hours and conditions of employment for the period in question.
By Application date September 12, 2002, the Union petitioned the court to vacate an arbitration award (the "Award") issued on August 14, 2002 pursuant to the grievance arbitration procedures set forth in the collective bargaining agreement.
The dispute which gave rise to the Award arose from a grievance filed by the Union on behalf of Trooper Fosque, a member of the bargaining unit. Trooper Fosque was charged with violations of the Department of Public Safety Administrative and Operations Manual dealing with conduct unbecoming an officer and improper drug and alcohol use. Trooper Fosque was found to have violated the terms of two Stipulated Agreements and provisions of the A O Manual, including his violation of his agreement to "refrain from all alcohol and substance abuse consumption both on and off-duty." Award at 4-5. Trooper Fosque had earlier agreed in a Stipulated Agreement dated October 16, 2000 that he would submit to random testing and further agreed that any Internal Affairs investigations "which sustain the use of alcohol or drugs, shall result in termination."
On October 27, 2001, during a random integrity test by the Internal Affairs Unit, Trooper Fosque tested positive for alcohol consumption, with a blood alcohol content of .102 and .104 as revealed by two breath samples. Based on the results of the random test and an Internal Affairs investigation, Trooper Fosque was notified of his termination effective December 27, 2001. CT Page 7394-be
Trooper Fosque, through the Union, grieved the firing on December 13, 2001. The grievance was denied at Step 2 and was ultimately submitted to arbitration pursuant to the Collective Bargaining Agreement.
The language of the submission was framed as follows:
1. Was the Grievant Michael Fosque terminated for just cause?
2. If, not, what shall be the remedy consistent with the NP-1 Contract?
Hearings were held in Hartford, Connecticut on June 20, and July 2, 2002. The parties were afforded a full opportunity to present evidence, examine witnesses and make arguments. They also submitted post-hearing briefs.
On August 14, 2002, the arbitrator issued the following award:
Grievant Michael Fosque was terminated for just cause. The termination is sustained and the grievance is denied.
The Union thereafter brought this application dated September 12, 2002, to vacate the Award, and the State filed a cross-application to confirm the Award pursuant to Connecticut General Statutes § 52-417 and § 52-420.
Discussion of the Law and Ruling
It is the established policy of Connecticut courts to regard arbitration awards with liberality and to grant every reasonable presumption in favor of the award and the arbitrators' acts and proceedings. State v. AFSCME, AFL-CIO, 257 Conn. 80, 85, 777 A.2d 169 (2001); Milford Employees Assoc. v. City of Milford, 179 Conn. 678, 683, 426 A.2d 859 (1980); International Union v. Fafnir Bearing, 151 Conn. 650, 653, 201 A.2d 656 (1964); and Town of Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 212, 470 A.2d 1219 (1984). Courts are extremely reluctant to interfere with the decisions of the arbitrators in the field of labor relations, where the process is encouraged as a means of promoting tranquility and the prompt and equitable settlement of disputes. United Steel Workers v. Enterprise Wheel Car Corporation, 363 U.S. 593, 596 (1959); Local 63, Textile Workers Union v. Cheney Bros., 141 Conn. 606, 614, 109 A.2d 240, cert denied, 348 U.S. 959 (1954); City of Middletown v. Police Local 1361, 187 Conn. 228, 230, 445 A.2d 322 (1982). "Every reasonable presumption CT Page 7394-bf and intendment will be made in favor of the award and of the arbitrators' acts and proceedings." Groton v. United Steelworkers of America, 254 Conn. 35, 43-44, 757 A.2d 501 (2000).
Where a submission to an arbitrator is unrestricted, as in this case, the arbitrator is accorded substantial discretion in determining the submission and, in doing so, ruling on the admissibility of evidence. South Windsor v. South Windsor Police Union Local 1480, 57 Conn. App. 490, 505, 750 A.2d 465 (2000). Moreover, an arbitration proceeding is not a civil action where evidentiary rulings, objections, and relevancy can be reviewed in the context of a challenge to an arbitration award. See e.g., Middlesex Ins. Co. v. Castellano, 225 Conn. 339, 344, 623 A.2d 55 (1993); O G/O'Connell v. Chase Family Ltd., 203 Conn. 133, 149, 523 A.2d 1271 (1987); Waterbury v. Waterbury Police Union, 176 Conn. 401, 408-09, 407 A.2d 1013 (1979).
The Union claims that the grievant's rights were prejudiced because the arbitrator improperly construed the Stipulated Agreements and based his decision on insufficient evidence on the question of the grievant' s alcohol consumption.
[A]rbitrators are accorded substantial discretion in determining the admissibility of evidence, particularly in the case of an unrestricted submission, which "relieve[s] the arbitrators of the obligation to follow strict rules of law and evidence in reaching their decision." [Citations omitted] . . . This relaxation of strict evidentiary rules is both necessary and desirable because arbitration is an informal proceeding designed, in part, to avoid the complexities of arbitration.
O G/O'Connell v. Chase Family Ltd., supra, at 148-49.
The Union must demonstrate that it has been "deprived of a full and fair hearing before the arbitration panel." Id. Since it fully participated in the proceedings, introduced exhibits, examined witnesses and briefed the submission, the Union cannot now require this court to second-guess the weight accorded evidentiary rulings by the arbitrator.
Arbitration is a favored procedure. Connecticut General Statutes § 52-418 (a) provides:
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 CT Page 7394-bg 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.
Courts must uphold the finality of an award unless it clearly falls within the proscription of Connecticut General Statutes § 52-418 (a). Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983); Board of Ed. of the City of Waterbury v. Waterbury Teachers Assoc., 174 Conn. 123, 126, 384 A.2d 350 (1977). "Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrator's decision of the legal questions involved." Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981).
The above having been stated, the evidentiary ruling by the arbitrator concerning the Intoxilyzer 400 machine and his award are consistent. The award conforms to the submission. Trooper Fosque was accorded a fair hearing and the arbitrator was faithful to the collective bargaining agreement. The 19 page decision indicates that Trooper Fosque had been previously disciplined on September 24, 1997 (30-day suspension) and again on October 16, 2000 (60-day suspension). Both disciplinary assessments required Trooper Fosque to "refrain from all alcohol . . . consumption both on and off-duty." Award at 4-5. Notably, the assessments did not provide that Fosque would only violate the disciplinary assessment if he consumed alcohol in excess of a certain limit. It prohibited all alcohol consumption. He agreed to this. He also agreed that "[a]ny further IA investigation, which sustain the use of alcohol or drugs, shall result in termination." Id. Pursuant to the stipulated agreement, the Department of Public Safety conducted a random "integrity test" on October 27, 2001. That test revealed a blood alcohol content of .102 and .104 based on the use of the Intoxilyzer 400 machine.
Trooper Fosque was represented by counsel at his arbitration, The arbitrator fully reviewed Fosque's challenges to the use of the Intoxilyzer 400 machine and weighed the same arguments asserted here concerning that machine:
Concerning the results of Grievant's October 27, 2001 random alcohol testing, the Arbitrator finds that the Intoxilyzer 400 machine used to test Grievant's breath samples was a reliable instrument for detecting CT Page 7394-bh alcohol in Grievant's system by measuring the blood alcohol concentrations of such samples. (State Exhibit 1, Tab 9.) Although the instrument is not acceptable as evidence in criminal proceedings pertaining to motor vehicle offenses involving allegations of driver intoxication or impairment, the evidence reflects that the Intoxilyzer 400 definitely can detect the presence of alcohol in breath samples which is indicative of alcohol consumption. (State Exhibit 1, investigation at 16; Tabs 5, 9.) As two of the three breath tests administered to Grievant establish intoxication, the Arbitrator finds that the evidence supports the conclusion that Grievant consumed alcohol in violation of the terms of Stipulated Agreements. (State Exhibit 1, Tab 5.)
Importantly, Grievant's consumption of alcohol on October 27, 2001 is confirmed and supported by the observations of two experienced State Police Sergeants — Gould and Griffin — who testified that Grievant's eyes were bloodshot and watery. Additionally, Sgt. Gould testified that he detected the odor of alcohol on Grievant's breath and Sgt. Griffin testified that Grievant's speech was slurred.
Award at 16.
With a voluntary, unrestricted submission to the arbitrator, as in this case, the court is limited to the "examination of the submission and the award to determine whether the award conforms to the submission." Cheverie v. Ashcraft Gerel, 65 Conn. App. 425, 430, 783 A.2d 474, cert. denied, 258 Conn. 932, 785 A.2d 228 (2001); Hartford v. International Ass'n of Firefighters, Local 760, 49 Conn. App. 805, 814, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998).
In making such a comparison when the submission is unrestricted, the court will not review the evidence or legal questions involved, but is bound by the arbitrator's legal and factual determinations. Game-A-Tron Corp. v. Gordon, 2 Conn. App. 692, 483 A.2d 620 (1984).
State v. AFSCME Council 4, Local 2663, AFL-CIO, 59 Conn. App. 793, 796, 758 A.2d 387, cert. denied, 255 Conn. 905, 762 A.2d 910 (2000). CT Page 7394-bi
The court finds that the award clearly conforms with the submission, that the grievant received a fair hearing, and that the arbitrator did not exceed his powers in violation of Connecticut General Statutes § 52-418 (a) (4). Therefore, the Application to Vacate the award is denied and the Application to Confirm the award is granted.
By the court,
Aurigemma, J. CT Page 7394-bj