Opinion
No. CV 03 0524197 S
March 23, 2004
MEMORANDUM OF DECISION RE APPLICATION TO VACATE ARBITRATION AWARD AND CROSS APPLICATION TO CONFIRM ARBITRATION AWARD
The instant action concerns an application to vacate an arbitration award and a counter application by the Defendants to confirm an arbitration award.
The Applicant, Tilcon Connecticut, Inc. (hereinafter "Tilcon") is a company authorized to do business within the state of Connecticut. The Defendant, Louis Romano is a member of the International Union of Operating Engineers, Local 478 (hereinafter "Romano"). The remaining Defendant is the International Union of Operating Engineers (hereinafter the "Union").
Pursuant to a collective bargaining agreement between Tilcon and the Union, the Union brought a grievance on behalf of the Defendant Romano. The matter was eventually submitted to an arbitration panel. The arbitration panel was comprised of J. Larry Foy, (Arbitration Board Chair) D'Arcy Didier (Tilcon's appointed arbitration board member), and Benedict Cozzi (the Union's appointed arbitration board member.
The subject of the grievance was that the Applicant had terminated the defendant Romano. The stated reason for said termination was that on or about December 23, 2002, Romano had telephoned an employee of the Applicant and left a voice mail message concerning a safety incentive bonus. The Applicant alleges that after giving information concerning the aforementioned issue, Romano was unaware that the recording device was still recording and that Romano made expletive laced threats against the employee, the employee's wife and the employee's child.
An arbitration hearing was held on June 30, 2003. The unrestricted submission to arbitration was "Did the Company violate the Contract when it terminated Louis Romano? If not, what shall the remedy be?"
The arbitration panel issued its decision on October 10, 2003 finding that "[t]he Company violated the Contract when it terminated Louis Romano." The panel also fashioned a four-part remedy that included rescinding the termination, restoring Romano's seniority, payment into the pension fund on Romano's behalf, and denying back pay for lost wages or other benefits. The gist of the panel's decision was that Romano did not intend to threaten the Applicant's employee but to do a parody of a character played by the actor Joe Pesci in the movie Casino.
The decision of the panel was unanimous with the exception that Mr. Cozzi, dissented on the issue of the panel's refusal to award back pay.
The Applicant asserts that the arbitration award should be vacated for reason that the Chairman of the panel considered evidence, i.e., the viewing of the movie Casino, and said evidence was not submitted to the panel.
Mr. Foy wrote in the decision in pertinent part that:
I have reflected upon Romano's testimony about what he and Testa were doing at Testa's house that day. I have listened to the audio tape, studied the transcript of that tape, and viewed the movie Casino in consideration of this case.
(Emphasis added.) It is uncontested that Mr. Foy actually viewed the movie Casino. It is also uncontested that the movie was not submitted by either party as a piece of evidence, or made a part of the record during the arbitration hearing.
Although the movie was not introduced into evidence the arbitrator's decision indicates that the issue of the movie was presented throughout the hearing, including, but not limited to the following:
7. Testa and Romano had recently viewed a video of the movie Casino. The movie is a violent fictional account of organized crime activities in Las Vegas. The movie features actors Robert DeNiro and Joe Pesci . . .
9. During the day of December 23, 2002, Testa and Romano were playing Play Station game "NHL 2002" at Testa's home. They were also discussing the movie Casino . . .
19. At the arbitration hearing Romano convincingly testified in detail that said part of the message involved Romano engaging in a parody of the Joe Pesci character from the movie Casino in front to Testa and that he (Romano) neither intended a threat against Williamson nor intended Williamson (or anyone other than Testa) to hear the parody.
The Applicant asserts that the reliance upon evidence that was outside of the record was prejudicial for reason it was not able to appropriately respond to its consideration in this matter. The Applicant further asserts that viewing said evidence exceeded the arbitrator's authority under the circumstances.
We begin our analysis of the defendants' claim by setting forth the general rule regarding arbitration awards." The standard of review relative to arbitration awards depends on the nature of the challenge. With a voluntary, unrestricted submission to an arbitrator, as is the case before us (footnote omitted), the court may only examine the submission and the award to determine whether the award conforms to the submission . . . 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 . . .
"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." (Citations omitted; internal quotation marks omitted.) 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).
Metropolitan District Commission v. Local 184, 77 Conn. App. 832, 838-39 (2003).
Private Healthcare Sys. v. Torres, No. CV 03 0089697 (Sep. 3, 2003, Walsh, J.T.R.) ( 35 Conn.L.Rptr. 412, 2003 Ct. Sup. 10470).
Section 52-418 of the Connecticut General Statutes concerns vacating arbitration awards. Subsection 52-418(a) provides that:
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 thereon 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 Applicant in the instant action asserts that the arbitration award should be vacated for the following reasons:
A. Arbitrator Foy engaged in conduct violative of § 52-418(a)(3) when he relied on evidence not contained in the record.
B. The arbitration panel engaged in conduct violative of § 52-418(a)(3) when it participated in ex parte communications.
C. Arbitrator Foy's prejudice against Tilcon rises to the level of evident partiality contemplated by § 52-418(a)(2).
It is settled law in this state that an arbitrator's consideration of evidence that is not in the record may rise to the level of being sufficient misconduct so as to violate the provisions of § 52-418(a)(3). Wallingford v. Wallingford Police Union Local 1570, 45 Conn.App 432, 438-39 (1997).
In Wallingford, id. our Appellate Court upheld that court's vacating of an arbitration award when one of the arbitrators "referred to the Department of Public Safety Administration and Operation Manual, 3d Ed., of the state police in its memorandum of decision." Id. at 439. The reference was made despite the fact that the manual was not offered or received into evidence or even mentioned during the hearing process.
In the case at bar, the movie Casino was not offered or received into evidence, but as previously indicated herein, it was discussed during the course of the hearing.
Section 52-418(a)(3) provides in pertinent part that the court shall vacate an arbitration award if the arbitrators engage in an "action by which the rights of any party have been prejudiced." The arbitrator in the current situation obtained a copy of the movie Casino and relied upon his review of said movie to reach his decision in this matter. No admissible evidence was submitted to this court that the movie Casino was submitted as evidence in the arbitration hearing. Furthermore, no admissible evidence was submitted indicating that either of the parties consented to the arbitrators reviewing the movie. The Applicant was deprived of any opportunity to object to the arbitrator watching the movie or to explain distinguish, or otherwise deal with this issue.
The fact that the arbitrator viewed the movie Casino without it being a part of the evidence is especially troublesome in light of the apparent weight that it was given in Mr. Foy's deliberations. As was mentioned earlier herein, the gist of the panel's decision was that what Romano did was not intended to threaten the Applicant's employee but to do a parody of a character in the movie. In light of the circumstances, the viewing of the movie was not a de minimus act, but one that served to prejudice the Applicant in violation of the provisions of § 52-418(a)(3) of the Connecticut General Statutes and put a taint on the entire process.
Our courts strongly support arbitration. Administrative Residual Employees Union v. State, 200 Conn. 345, 348-49; AFSCME v. New Britain, 206 Conn. 465, 469. But in order to strengthen and uphold arbitration we must keep it free of any taint.
Peerless Ins. Co. v. Roberto, No. CV91-0701922 (Mar. 30, 1992, O'Neill, J.) 6 Conn.L.Rptr. 682, 1992 Ct. Sup. 2913, 7 CSCR 466.
For all of the foregoing reasons, the Application to Vacate the Arbitration Award is granted and the Cross Application to Confirm the Arbitration Award is denied.
Richard A. Robinson.