Opinion
No. CV 03-0828745 S
February 27, 2004
MEMORANDUM OF DECISION
FACTS AND STATEMENT OF PROCEEDINGS
This case involves an Application to Vacate an Arbitration Award brought by the plaintiff (hereinafter also "State" or the "Board") and an Application to Confirm an Arbitration Award brought by the defendant (hereinafter also "Union").
The State and the Union entered into a collective bargaining agreement with respect to wages, hours, and conditions of employment covering the period from August 27, 1999 to August 28, 2003. The State represents the State Board of Education, and the Union represents bargaining unit members with the State Vocational School System under the management of the State of Connecticut Board and Department of Education. Pursuant to said agreement, the parties submitted a controversy to arbitration on January 9, 2003 regarding the issuance of a job description for the position of Athletic Coordinator. The Union grieved the State Board's intention to implement the job description starting with the school year 2002-03 which, according to the Union, constituted a substantial change in working conditions without first negotiating the same with the Union. The Union's claim is that incumbent athletic coordinators would be required to attend all home games of their respective school and that this change in the job description requiring additional work was implemented by the State without prior collective bargaining negotiations.
The parties joined in framing the issues to be arbitrated before Albert Murphy who was designated as the arbitrator. The language of the submission was framed as follows:
Did the Board violate the Collective Bargaining Agreement when it failed to engage in bargaining prior to implementing the job description for Athletic Coordinator for the 2002/2003 school year?
If so, what shall the remedy be?
Hearings were held on May 12, 2003 and May 21, 2003. Both parties submitted post-hearing briefs, and the record was declared closed on July 25, 2003. On August 29, 2003, the arbitrator issued his arbitration award which states as follows:
AWARD
The grievances are sustained.
The Board shall forthwith cease requiring Athletic Coordinators to attend all home games and shall enter into negotiations to assess and address the impact of the change in the job descriptions subject of this arbitration.
Pending Article 31, Section 2 negotiations the Board shall reinstate the practice of paying Coordinators for duties performed in the various Ancillary Personnel Payment schedule.
The Board shall pay at the contractual rate all coordinators who are able to document attendance and performance as such Ancillary Personnel from June 5, 2002, to the date hereof.
The plaintiff claims in its Motion to Vacate the Award as follows:
In making such award and remedy, 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 insofar as (1) the award was not issued within thirty days of the close of the arbitration proceeding;
(2) the award does not conform to the submission insofar as the framed submission was restricted to whether the State Board failed to engage in bargaining prior to implementing the job description and the submission of the parties did not extend to payment schedules or issues of compensation;
(3) the arbitrator has violated the collective bargaining agreement ("CBA") by altering and adding to it the Ancillary Payment Schedule used to pay individuals in other bargaining units and;
(4) the award violates the Auditors of Public Accounts recommendation to eliminate possible double payment of both a stipend and ancillary personnel payment prohibited by Conn. Gen. Stat § 5-208a.
Parties have filed briefs with this Court, and a hearing was held on February 26, 2004.
STANDARD OF REVIEW
The determination of the issues before this Court has to be based upon the evidence submitted to it with the briefs of the parties. Further, it is plaintiff's burden to produce sufficient evidence to invalidate the award. Awards based upon consensual arbitration are subject to only minimal judicial intervention. See Metropolitan District Commission v. AFSCME, 37 Conn. App. 1 (1995). Every reasonable presumption and intendment must be indulged in favor of the award. Cashman v. Sullivan Donegan, P.C., 23 Conn. App. 24 (1990). Unless the submission provides otherwise, an Arbitrator has authority to decide factual and legal questions, and courts will not review the evidence, or where the submission is unrestricted, the Arbitrator's determination of legal questions. OG/O'Connell Joint Venture v. Chase Family Limited Partnership, 203 Conn. 133 (1987). "When the scope of the submission award 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." SCRRA v. American Re-Fuel Co. of Southeastern Connecticut, 44 Conn. Sup. 482, 484, 485 (1997), aff'd, 44 Conn. App. 728 (1997). "The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of the issues, reserving explicit rights, or conditioning the award on court review." Id. 485.
A leading case concerning the powers of the court to vacate an arbitration award is Garrity v. McCaskey, 223 Conn. 1 (1992). An arbitration award may be vacated on grounds of manifest disregard of the law under § 52-418(a)(4) only when it "manifests an egregious or patently irrational application of the law." [This] ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator's extraordinary lack of fidelity to established legal principles. Id. at 10.
Because we do not review an arbitrator's decision merely for errors of law, in the present case we do not decide the merits of the defendant's argument regarding the proper application of the statutes of limitations to the plaintiff's securities claims. Even if the arbitrators were to have misapplied the law of governing statutes of limitations, such a misconstruction of a law would not demonstrate the arbitrators' egregious or patently irrational rejection of clearly controlling legal principles. The defendant's claim in this case falls far short of an appropriate invocation of § 52-418(a)(4) for a manifest disregard of the law . . . The defendant has not demonstrated anything more than his disagreement with the arbitrators' interpretation and application of established legal principles . . . Acceptance of his argument would turn every disagreement with arbitrators' rulings of law into an allegation of manifest disregard of the law. We have never construed § 52-418(a)(4) so broadly and we decline to do so today.
Id. at 11-13 (emphasis added).
". . . [where] the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators' decision of the legal questions involved." Trumbull v. Trumbull Police Local, 1745, 1 Conn.App 207, 213 (1984). (Emphasis added.)
ISSUES AND FINDINGS
A. Plaintiff has conceded that there was an agreement of the parties for an extension of time in which to file the Arbitrator's Award of thirty-five days. Since the arbitrator rendered his award on August 29, 2003, the award was rendered within the thirty-five days previously agreed to and ratified in writing by the parties. Plaintiff concedes in its reply brief of February 4, 2002 ". . . that the award was timely." Accordingly, this issue is moot.
B. Was the Submission Restricted to Whether the State Employer Must Bargain the Implementation of the Job Description?
The short answer to this question is no. Plaintiff does not quarrel with the arbitrator finding that the Board did violate the CBA when it failed to engage in bargaining prior to implementing the job description for Athletic Coordinator for the 2002-03 school year. Plaintiff claims that it was beyond the power of Arbitrator Murphy to address the payment issue and the use of the Ancillary Personnel Payment Schedule. The Court is not persuaded. Plaintiff overlooks the remainder of the submission which states: "If so, what shall the remedy be?"
The arbitrator is, therefore, authorized to fashion a remedy, and that part of the submission is unrestricted. By fashioning a remedy which is perfectly proper under the STANDARD OF REVIEW described above, the arbitrator did not exceed his powers under CGS § 52-418(a)(4).
C. Did the Arbitrator Improperly Add to the Collective Bargaining Agreement a Payment Schedule That Is Not Part of the CBA?
The short answer to this question is no.
The remedy was designed to compensate the Athletic Coordinators for the time they had to spend and did spend at home games as required by the unilateral implementation of their job description by the Board. The remedy was to make them whole for work that they were not at this point required to perform. It would have been impractical and probably improper if the arbitrator had utilized the 2002-03 stipend of $6,417 for Athletic Coordinators as cited in Appendix B to the CBA. Instead, under Supplemental Agreement Article 21 Salaries the arbitrator utilized Appendix D which for the year 2002-03 is $22.50 per hour. This was proper to compensate the Athletic Coordinators for their extra work the performance thereof being in violation of the CBA. It is the only practical remedy that the arbitrator could fashion.
Under the law as stated above in STANDARD OF REVIEW, this Court cannot quarrel with the arbitrator's finding in this regard. Accordingly, this claim of the plaintiff is rejected.
D. Did, as the Plaintiff Claims, the Award Violate the Auditors of Public Accounts' Recommendation to Revise Past Practice of Permitting Athletic Coordinators to Receive Both Stipends and Ancillary Personnel Payments Which Fosters Double Payment of Public Employees?The short answer to this question is no. "The party challenging the Award `bears the burden of proving that illegality or conflict with public policy is clearly demonstrated.'" Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 340 (1989). The plaintiff cites CGS § 5-208a. However, the Union employees in this case are excluded from the State Personnel Act which includes CGS § 5-208a. The plaintiff's counsel conceded at oral argument that CGS § 5-198 excludes ". . . teachers certified by the State Board of Education employed in teaching positions in state institutions" which is the case of the Union employees in the case at bar. They are employees of the State Vocational Schools.
Additionally, there is no evidence in the record that these employees, the Athletic Coordinators, received duplicate pay. They received their annual stipend which included all the duties in the CBA. When they were required to expand their duties in violation of the CBA, they are to be paid for same as determined by the arbitrator. This is additional pay for additional work and is not double-dipping or duplicative of their annual stipend.
Further, there is nothing in the report of the State Auditors of Public Accounts for the fiscal year ending June 30, 1998 which is cited by the plaintiff that the subject employees engaged in double-dipping.
This Court concludes that the arbitrator's Award does not violate the recommendations or reports of the Auditors of Public Accounts. This claim by the plaintiff is, therefore, rejected.
CONCLUSION
For the foregoing reasons, Plaintiff's Application to Vacate the Arbitration Await dated on or about September 29, 2003 is denied, and the Defendants' Application to Confirm the Arbitration Award dated October 20, 2003 is granted.
Rittenband, JTR