Opinion
HHDCV166069527S
05-22-2017
State of Connecticut v. Connecticut Police and Fire Union (NP-5) (Mark Minto, Grievance)
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S APPLICATION TO VACATE AND/OR MODIFY (#100.31) DEFENDANT'S CROSS APPLICATION TO CONFIRM (#103)
A. Susan Peck, Judge.
On July 5, 2016, pursuant to General Statutes § 52-418 and § 52-420, the plaintiff, State of Connecticut, acting through the Department of Mental Health and Addiction Services (DMHAS), and the Office of Labor Relations of the Office of Policy and Management, as the duly designated employer under the State Employees Relations Act a/k/a Collective Bargaining for State Employees, filed an application to the Superior Court to vacate and/or modify an arbitration award, dated June 2, 2016 (award). In response, on August 1, 2016, the defendant, Connecticut Police and Fire Union (NP-5) (union), filed an answer and a cross application to confirm the award, pursuant to General Statutes § 52-417. The underlying grievances contested the discipline of union member, Officer Mark Minto, a DMHAS police officer (grievant). The award was issued pursuant to a stipulated unrestricted submission by the parties to a written collective bargaining agreement (July 1, 2008-June 30, 2012) (hereinafter CBA). The CBA provides for binding grievance arbitration and controls the June 2, 2016 award. The arbitrator, Jeffrey M. Selchick, Esq., was duly designated by mutual agreement of the parties. Hearings were held on November 20, 2014, December 3, 2015, and February 25, 2016. Post-hearing briefs were filed and the record was closed on April 29, 2016.
The parties stipulated to the following issues to be determined by the arbitrator:
1. Was the discipline of the Grievant for just cause? If not, what shall the remedy be, consistent with the NP-5 Contract? 2. Did the State violate Article 2, Sections 1 2, Article 17, Sections 1, 5, & 6 (respectively) as is alleged in grievances 09-3982; -4001; & -4015? If so, what shall be the remedy consistent with the NP-5 Contract?
Article 2, § 1, of the agreement provides: " Each employee shall be expected to render a full and fair day's work in an atmosphere of mutual respect and dignity, and free from significant abusive and/or arbitrary conduct."
Article 2, § 2, of the agreement provides: " An employee's off-duty conduct, speech, beliefs and politics shall not in and of themselves, impact on his/her employment unless clearly job related."
Article 17, § 1, of the agreement provides: " No permanent employee who has completed the [w]orking [t]est [p]eriod shall be demoted, suspended, dismissed, or disciplined in any other manner except for just cause."
Article 17, § 5, of the agreement provides: " Whenever it becomes necessary to discipline an individual employee, the supervisor vested with said responsibility shall undertake said talks in a fashion calculated to apprise the employee of his/her shortcomings, while avoiding embarrassment and public display."
Article 17, § 6, of the agreement provides: " Placement of an employee on an unpaid leave of absence under 5-240-(d) shall be subject to the following: (a) An employee may draw his/her accrued vacation even if he/she remains on an unpaid leave of absence under Regulation 5-248-3. (b) In cases other than those which involve a criminal investigation or the disposition of a criminal charge the employee shall be placed on a paid leave of absence for the duration of the investigation into the situation and/or event. At the conclusion of the investigation the employee will be informed of the disposition and whether he/she is to be disciplined. (c) In all cases where practicable, the [s]tate will investigate the possibility of [an] alternative assignment."
The facts underlying the grievances as found by the arbitrator are not in dispute and are summarized as follows:
The grievant has been a DMHAS employee since January 1999, assigned to Connecticut Valley Hospital as a police officer. The events giving rise to his grievances occurred on May 29, 2012. The grievant was arrested and charged with breach of peace in the second degree, criminal impersonation and following too closely, in connection with an incident reported as " road rage" that began on Route 9 involving another driver. Both parties called 911. The grievant was off duty and on his way home from work at the time. The incident was reported to the grievant's supervisor by a responding state trooper. The grievant informed the trooper that he had a legally registered handgun owned by him in his (personal) vehicle in a gym bag while at work on CVH grounds that day. There is no evidence that he had the weapon on his person at any time after leaving CVH that day and there is no claim that he displayed the handgun while interacting with the other motorist. On the date in question, there was a DMHAS work rule that provided that " [firearms or weapons of any kind are prohibited on work sites."
All facts recited herein, as well as quoted material in this section of this memorandum of decision are taken from the award.
As a result of the incident and his arrest " on multiple charges, " on May 30, 2012, the grievant was notified by letter from the Department of Emergency Services and Public Protection (DESPP), that his " Special Police Powers" were revoked. The letter also indicated that if the charges were resolved in his favor, DMHAS could request restoration of his police powers by DESPP. In addition, DESPP rescinded grievant's handgun permit.
As the arbitrator noted, " DMHAS has no power to reinstate [Minto]'s [s]pecial [p]olice [p]owers . . ." Rather, this authority belongs to DESPP. See General Statutes § 29-18. Section 29-18 provides in relevant part: " The Commissioner of Emergency Services and Public Protection may appoint one or more persons nominated by the administrative authority of any state buildings or lands . . . to act as special policemen in such buildings and upon such lands. Each such special policeman shall be sworn and may arrest and present before a competent authority any person for any offense committed within his precinct." See also State v. Sober, 166 Conn. 81, 89-90, 347 A.2d 61 (1974).
All the criminal charges were ultimately dismissed, the first two were dismissed on January 28, 2015 and the third charge was dismissed on February 4, 2015.
On June 6, 2012, the grievant received a letter from DMHAS notifying him that he was no longer qualified to serve as a police officer at the hospital because DESPP had revoked his special police powers. The letter instructed him to attend a predetermination hearing, and further stated that the action under consideration was his immediate, administrative separation from state service because he no longer met the requirements for his job classification. On June 8, 2012, the grievant received another letter from DMHAS placing him on voluntary leave without pay, as of June 6, 2012, because it was necessary to investigate the criminal charges, violation of DMHAS work rules and other state policies. Ultimately, the grievant received a letter, dated September 26, 2012, from the DMHAS Chief Police Officer Aleksunes informing him that he was suspended from work for thirty (30) working days, from September 27, 2012 to November 9, 2012, without pay, in lieu of termination from state employment. On the same day, Chief Aleksunes transmitted another letter informing the grievant that upon completion of his suspension and his return to work on November 9, 2012, if his police powers were reinstated and he was deemed qualified to perform his duties, he would return to his position as a police officer with the same schedule and shift, but if his special police powers remain revoked, he would be deemed not qualified to perform his duties as a police officer and would work as a " Building and Grounds Patrol Officer, night shift, Whiting Forensic Institute."
Thereafter, the defendant filed four grievances on behalf of the grievant which were submitted to arbitration. The first grievance challenged the thirty (30) day suspension on the ground that it was issued " without cause"; the second grievance challenged an " unsatisfactory" performance appraisal on the ground that it was issued " without cause"; the third grievance asserted that DMHAS " demoted" the grievant by directing him to return to work as a " Building and Grounds Officer" after his suspension was served; and the fourth grievance maintained that the grievant was placed on unpaid administrative leave " without cause."
On June 2, 2016, the arbitrator issued the award. He resolved the grievances concerning the thirty (30) day suspension, the unsatisfactory performance appraisal and the unpaid administrative leave in favor of the plaintiff and resolved the grievance concerning the demotion in favor of the defendant. The plaintiff's application to vacate and/or modify the award and the defendant's application to confirm award focus only on the part of the award concerning the demotion grievance. On that subject, the arbitrator found that the charges that gave rise to the grievant's suspension were all resolved in his favor by February 4, 2015, and that the union president requested in a letter to the Chief Aleksunes immediate restoration of the grievant's special police powers and his return to the position of police officer. The arbitrator further found that there was no record that DMHAS ever requested the restoration of the grievant's special police powers; there was no question that DMHAS never had the ability to restore the grievant's police powers on its own; therefore, the agency's assignment of the grievant to the Building and Grounds Patrol Officer position cannot be seen as a demotion. However, because the May 30, 2012 letter informed advised that DMHAS could request restoration of the grievant's police powers if the criminal charges were resolved in his favor, the arbitrator found that " the lack of such a request by DMHAS did result in demotion but only after DMHAS" was notified of the favorable resolution of the charges by the union president on February 27, 2015. (Emphasis original.) Finally, the arbitrator concluded that upon receipt of that letter, " DMHAS was clearly in a position to seek restoration of Grievant's special police powers. Its failure to seek restoration has effectively imposed upon Grievant a penalty in the form of a demotion, which penalty is not supported, needless to say, by any showing of just cause." Accordingly, the arbitrator, in relevant part, entered the following award:
The discipline of the Grievant was for just cause. All grievances are denied except for the grievance claiming that Grievant was 'demoted' after serving his 30 day suspension . . . That grievance is sustained . . . and DMHAS is directed to seek the restoration of Grievant's special police powers and, beginning with the date of March 29, 2015 and ending on the date Grievant is returned to the DMHAS Police Officer position he occupied when suspended, Grievant should receive the difference between the salary of DMHAS Police Officer and the salary of a Building and Ground Patrol Officer.
The arbitrator noted that this date was selected " in recognition of the fact that it would have taken a reasonable amount of time for the Department of Emergency Services and Public Protection to restore the grievant's police powers had it received such a request from DMHAS."
I
PENDING MOTIONS
In the plaintiff's application to vacate and/or modify, the plaintiff claims that the arbitrator exceeded his authority in violation of the collective bargaining agreement in prescribing the remedy that is set forth in the award. Specifically, the plaintiff claims that the arbitrator made an " obvious remedial error" in that he presumed DESPP, which is not a party to the arbitration, " will independently reinstate" the grievant's police powers, despite the finding of misconduct " and a matter of record by the just cause finding sustaining his thirty day suspension." The plaintiff alternatively seeks modification of the award because it " orders the state to pay Grievant retroactively to March 29, 2015, for a period of time in which he is unqualified to be a special police officer."
Although the application filed by the plaintiff seeks to vacate and/or modify, in fact, as stated, it is more precisely an application to vacate or modify.
The plaintiff emphasizes that its application is directed only to the remedy portion of the award.
On the other hand, in support of its motion, the defendant claims that the award should be confirmed for the reason that it conforms to the submission and the arbitrator acted within the scope of his power pursuant to the collective bargaining agreement. Specifically, the defendant argues that the award does none of the things argued by the plaintiff. " It simply requires the employer to " seek restoration of the grievant's special police powers ." (Emphasis original.) The defendant further argues that the arbitrator " correctly found" DMHAS, the employer, is " clearly in a position to seek restoration of the grievant's special police powers" and that " the failure [of DMHAS] to do so effectively imposes a second penalty on the grievant in the form of a demotion [in addition to the thirty (30) day suspension], which penalty is not supported . . . by any showing of just cause."
All the quotes in this paragraph are taken from the respective briefs submitted by the parties.
II
SCOPE OF REVIEW
" The scope of judicial review of arbitration awards is generally determined by whether the submission in question is restricted or unrestricted." State v. Conn. State Employees Ass'n., 117 Conn.App. 54, 58, 978 A.2d 131 (2009). In this regard, " [t]wo types of evidentiary submissions are allowed in arbitration proceedings, restricted and unrestricted, which function to limit the undertaking of the [arbitrator] . . . The scope of the submission is negotiated by the contracting parties prior to a dispute." (Citation omitted.) Town of Stratford v. Int'l Fed'n. & Tech. Eng'rs, Local 134, 155 Conn.App. 246, 252, 108 A.3d 280 (2015). " A submission is restricted if the agreement conferring the arbitrator's authority over the dispute limits the breadth of issues to be resolved, reserves explicit rights or conditions the award on court review. In the absence of any such restraints, it is unrestricted." Bd. of Educ. v. Local R1-126, NAGE, 108 Conn.App. 35, 41 n.3, 947 A.2d 371 (2008). " Under an unrestricted submission, the [arbitrator's] decision is considered final and binding; thus the courts will not review the evidence considered by the [arbitrator] nor will they review the award for errors of law or fact." Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 110, 779 A.2d 737 (2001). " If the parties engaged in voluntary, but restricted, arbitration, the trial court's standard of review would be broader depending on the specific restriction." Maluszewski v. Allstate Ins. Co., 34 Conn.App. 27, 32, 640 A.2d 129, cert. denied, 229 Conn. 921, 642 A.2d 1214 (1994).
In the present case, it is undisputed that the submission was unrestricted. Thus, judicial review of the award is limited. The court cannot examine the award for legal or factual errors; nor can it assess the sufficiency of the evidence that was presented at arbitration. " Such a limited scope of judicial review is warranted given the fact that the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision." (Internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., supra, 258 Conn. 110.
Despite the parties' agreement that the submission was unrestricted, the plaintiff argues that the award must be vacated pursuant to General Statutes § 52-418(a)(4), or modified because the arbitrator exceeded his authority. On the other hand the defendant argues that the award must be confirmed because it conforms to the submission and the arbitrator acted within the scope of his contractual and statutory authority.
III
APPLICATION TO VACATE AWARD
In general, " [a]n arbitration award will be upheld unless it clearly falls within the proscriptions of General Statutes § 52-418." Administrative & Residual Employees Union FT/CSFT, AFL-CIO v. State, 200 Conn. 345, 349, 510 A.2d 989 (1986). " It is the established policy of the courts to regard awards with liberality. Every reasonable presumption and intendment will be made in favor of the award and of the arbitrators' acts and proceedings." (Internal quotation marks omitted.) Gary Excavating Co. v. North Haven, 160 Conn. 411, 413, 279 A.2d 543 (1971). " [T]he burden rests on the party attacking the award to produce evidence sufficient to invalidate it or avoid it." (Internal quotation marks omitted.) AFSCME, Council 4, Local 1303-325 v. Westbrook, 309 Conn. 767, 779, 75 A.3d 1 (2013). Thus, in the present case, the burden rests with the plaintiff.
Specifically, " § 52-418(a) lists circumstances under which vacatur of an award is required." (Internal quotation marks omitted.) Rocky Hill Teachers' Assn. v. Board of Education, 72 Conn.App. 274, 280, 804 A.2d 999, cert. denied, 262 Conn. 907, 810 A.2d 272 (2002). Within this statutory context, " § 52-418(a)(4) empowers the Superior Court to vacate an arbitration award where 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." (Internal quotation marks omitted.) Hartford v. Local 760, International Assn. of Firefighters, AFL-CIO, 6 Conn.App. 11, 13, 502 A.2d 429 (1986). " It is axiomatic in this jurisdiction that any challenge to an award pursuant to . . . § 52-418[(a)(4)] on the ground that the arbitrators exceeded or imperfectly performed their powers is properly limited to a comparison of the award with the submission." Trumbull v. Trumbull Police Local 1745, Connecticut Council of Police Unions, 1 Conn.App. 207, 212, 470 A.2d 1219 (1984). " If the award conforms to the submission, the [arbitrator] [has] not exceeded [his] powers." Board of Education v. Local 818, 5 Conn.App. 636, 639-40, 502 A.2d 426 (1985).
" In determining whether an arbitrator has exceeded the authority granted under the contract, a 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 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, [e]very 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." (Citations omitted; internal quotation marks omitted.) Teamsters Local Union No. 677 v. Board of Education, 122 Conn.App. 617, 623-24, 998 A.2d 1239 (2010).
" [I]n determining whether the arbitration award draws its essence from the collective bargaining agreement, the reviewing court is limited to considering whether the collective bargaining agreement, rather than some outside source, is the foundation on which the arbitral decision rests . . . If that criterion is satisfied . . . then [the court] cannot conclude that the arbitrator exceeded his authority or imperfectly executed his duty . . . Ultimately, [n]either a misapplication of principles of contractual interpretation nor an erroneous interpretation of the agreement in question constitutes grounds for vacatur . . . It is not [the court's] role to determine whether the arbitrator's interpretation of the collective bargaining agreement was correct. It is enough to uphold the judgment of the court, denying the . . . application to vacate the award, that such interpretation was a good faith effort to interpret the terms of the collective bargaining agreement . . .
" Indeed, [b]y including an arbitration clause in their contract, the parties bargain for a decision maker that is not constrained by formalistic rules governing courtroom proceedings and dictating judicial results . . . Put simply, the parties bargain for the arbitrator's independent judgment and sense of justice . . . Thus, it is only [w]hen the arbitrator's words manifest an infidelity to [the obligation of rendering an award that draws its essence from the collective bargaining agreement], [that] courts have no choice but to refuse enforcement of the award . . . Finally, even if we disagree with the arbitrators' reasoning and the bases for their award, the award nevertheless controls unless the arbitrators' memorandum patently shows an infidelity to [their] obligation . . ." (Citations omitted; internal quotation marks omitted.) Burr Rd. Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, 162 Conn.App. 525, 535-36, 131 A.3d 1238 (2016).
In the present case, the submission, previously quoted, may be summarized as follows: 1) Was the discipline imposed on the grievant, that is, a thirty (30) day suspension, for just cause, and, if not, what is the remedy consistent with the CBA? 2) Did the DMHAS violate the CBA as alleged in the underlying grievances, and, if so, what is the remedy consistent with the CBA? The award, also previously quoted, in relevant part, may be summarized as follows: The thirty (30) day suspension, the unsatisfactory performance appraisal and the unpaid administrative leave grievances are denied. The grievance claiming that the grievant was demoted after his thirty (30) days suspension was sustained to the extent " that DMHAS was clearly in a position to seek restoration of Grievant's special police powers. Its failure to seek restoration has effectively imposed on Grievant a penalty in the form of a demotion, which penalty is not supported, needless to say, by any showing of just cause." Accordingly, the arbitrator sustained the grievance and directed DMHAS " to request Grievant's restoration of special police powers and to make him whole based on the difference between the salary of a Police Officer and the salary of a Building and Grounds Patrol Officer until such time as the Grievant is restored to his Police Officer position. The starting date for the back pay award is March 29, 2015, " in recognition of the fact that it would have taken a reasonable time for . . . [DESPP] to restore Grievant's police powers had it received such a request from DMHAS." Based on a plain reading of the award, the court finds that the plaintiff has failed to meet its burden of demonstrating that the award fails to conform to the submission.
In the present case, article 17, § 1, of the agreement commands that " [n]o permanent employee . . . shall be demoted, suspended, dismissed, or disciplined in any other manner except for just cause." " It is true that the award rather than the finding and conclusions of fact controls and, ordinarily, the memorandum of an arbitrator is irrelevant . . . There is no legal doctrine, however, which dictates the exclusion of an arbitrator's opinion or which forbids its examination in the determination whether . . . an arbitrator in his award has demonstrated infidelity to his obligation." (Citations omitted.) International Union v. Fafnir Bearing Co., 151 Conn. 650, 654, 201 A.2d 656 (1964). The arbitrator sustained the grievance based on his conclusion that when DMHAS was notified that the criminal charges against the grievant were resolved in his favor, it was in a position to seek the restoration of his special police powers and its failure to do so in effect converted the grievant's thirty (30) day suspension into a demotion without just cause in violation of the CBA. Therefore, it cannot be said that the award did not draw its essence from the agreement or that the arbitrator exceeded his powers or so imperfectly executed them that " a mutual, final and definite award upon the subject matter submitted was not made." General Statutes § 52-418(a)(4). Accordingly, the application to vacate the award is hereby denied.
IV
APPLICATION TO MODIFY AWARD
In the alternative, the plaintiff claims that the remedy set forth in the award should be modified on the ground that it orders DMHAS to compensate the grievant retroactively based on an erroneous assumption that DESPP would restore the grievant's special police powers upon request. " An arbitration award may be modified or corrected . . . if the award violates any one or more of the proscriptions in General Statutes § 52-419." Willington Educ. Ass'n. v. Bd. of Educ., 45 Conn.App. 769, 771, 699 A.2d 186, cert. denied, 243 Conn. 921, 701 A.2d 344 (1997). Section 52-419(a) provides in relevant part: " Upon the application of any party to an arbitration, the superior court . . . shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy."
The plaintiff has not demonstrated that the award suffers from the type of error identified in § 52-419. Further, the challenged remedy falls within the scope of the submission by the parties as addressed elsewhere in this memorandum of decision. Accordingly, the plaintiff's application to modify the award is also hereby denied.
V
CROSS APPLICATION TO CONFIRM AWARD
The defendant has filed a cross application to confirm the award pursuant to General Statutes § 52-417. Section 52-417 provides in relevant part: " At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court . . . for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419." (Emphasis added.) In the present case, for the reasons previously stated herein, the plaintiff's application to vacate or modify the award has been denied. Accordingly, the defendant's cross application to confirm the award is hereby granted.
CONCLUSION
For all the following reasons, the plaintiff's application to vacate, or, in the alternative, to modify the arbitration award, is denied and the defendant's cross application to confirm the arbitration award is granted.