871 AFT AFL CIO v. New Britain Consolidated School District (2010)

MEMORANDUM OF DECISION ON APPLICATION TO VACATE ARBITRATION

The plaintiff New Britain Federation of Teachers, Local 871 of AFT Connecticut, AFL-CIO, brings this application to vacate an arbitration award.   The award grows out of a grievance filed by three ninth-grade teachers in the “Academy” program of New Britain High School.   They were assigned four “preparations” as part of their teaching assignments for the 2007-2008 school year, when the relevant provisions of the collective bargaining agreement (CBA) limited their teaching preparations to a maximum of three.   After properly initiating the grievance process under the CBA, the union and the school district eventually submitted the matter for arbitration under the contract provisions related to dispute resolution.

The arbitrator issued an award ordering the defendant to cease and desist from the practice of assigning more than three preparations to teachers.   The plaintiff moved to vacate the award on the grounds that the award exceeded the arbitrator's powers.   See Conn. Gen.Stat. § 52-418(a)(4).   Thereafter the defendant school district filed a timely cross-application to confirm the award.   For reasons stated herein, the court denies the former and grants the latter.

THE FACTS AND THE CONTRACT PROVISIONS

Right from the start of the 2007-2008 school year, the grievants were assigned four preparations as part of their schedule.   The term “preparations” is not otherwise defined in the CBA but can fairly be understood from the CBA and from the arbitrator's findings to mean a period of time set aside solely for a teacher to perform the necessary tasks to teach the upcoming lessons in a particular subject area.   The time thus set aside is distinguished from time spent with students in the classroom and from time spent on other types of duties such as attending faculty meetings, supervising lunch in the cafeteria, and the like.   For some period of time the grievants simply acquiesced in the assignment of the fourth preparation, but after a while, when the assignment of other duties began to eat into their segregated preparation time, the grievants sought the assistance of their union.

The parties and the arbitrator all point to the following contract provisions as the ones that control this issue:

Section 4.3 Teacher Workday

e.  In order to prepare effectively for class, teachers are entitled to planning periods to fall within the school day during which they are free from other responsibilities.   These periods shall aggregate no less than two hundred ten (210) minutes per week.   Where practicable, planning time shall be spread over at least three (3) days of the week.

Section 4.6 Teacher Preparations

In general, high school teachers shall not be required to teach more than two (2) subject areas nor make more than a total of three (3) teaching preparations.   Middle school teachers shall not be required to teach more than three (3) subject areas or to make more than a total of three (3) teaching preparations.  (Classes, which require different courses of study, shall be considered different teaching preparations.)

The submission to the arbitrator involved the following questions:  1) was the grievance timely filed?;   2) did the Board violate Section 4.6 and past practice when the grievants, “as part of their ninth grade academy assignment, were assigned four preparations and relieved of all duty assignments during the 2007-2008 work year?”   Arb. Award, page 2;  3) is the arbitration advisory or binding?;   4) if a violation occurred, what should the remedy be?

It appears from the plaintiff's Application to Vacate and the Brief in Support of that application that the plaintiff has waived any argument about issues 1, 2, and 3, above.

THE SCOPE OF REVIEW

When a submission is unrestricted, the scope of review for arbitration awards is exceedingly narrow.   Every reasonable inference is to be made in favor of the arbitral award and of the arbitrator's decisions.  International Brotherhood of Police Officers, Local 361 v. New Milford, 81 Conn.App. 726, 729, 841 A.2d 706 (2004).   This applies to the determination of arbitrability in the first instance, as well as to the determination of the merits of the dispute.   See, e.g. East Hartford v. East Hartford Municipal Employees Union, 206 Conn. 643, 645, 539 A.2d 125 (1988).   Where the submission does not otherwise limit the issue, the arbitrators are empowered to decide all factual and legal questions, and an award cannot be vacated on the grounds that 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 ․ In other words, [u]nder 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 ․

Furthermore, in applying this general rule of deference to an arbitrator's award, [e]very reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators' acts and proceedings.  (Citation omitted;  internal quotation marks omitted.)

Brantley v. New Haven, 100 Conn.App. 853, 864-65, 920 A.2d 331 (2007);  Rocky Hill Teachers' Assn. v. Board of Education, 72 Conn.App. 274, 278, 804 A.2d 999, cert. denied, 262 Conn. 907, 810 A.2d 272 (2002).

THE ARBITRATION DECISION AND AWARD

The arbitrator found that from the start of the school year the grievants had been assigned more than three preparations.   In unequivocal language, the arbitrator found this to be a violation of the contract.   Indeed the arbitrator determined that the language of the applicable CBA provisions was not so broad “as to permit [the school district] to assign to teachers on a yearly basis a schedule requiring more than three preparations.   In this regard, it is undisputed that class assignments were made prior to the start of school for the entire school year.   This is not a case in which the assignment of more than three preparations was temporary or occasional.”   Arb. Award, p. 11.   In addition, the grievants were not consistently given additional time beyond the two hundred ten minutes (presuming each preparation as taking seventy minutes a piece) to perform the additional preparations.

The arbitrator went on the consider the appropriate remedy.   He determined that a monetary remedy would not be appropriate under all the circumstances.   Rather the arbitrator was persuaded that a cease and desist remedy was appropriate “to avoid the potential for violations in the future.”   Arb. Award, p. 13.

The Arbitrator phrased the cease and desist order as follows:

The Board of Education shall cease and desist from assigning more than three teaching preparations to the Grievants without providing a minimum of seventy (70) additional minutes for planning time for each additional preparation.   Such “planning time” shall be free from other responsibilities, including free from attending collaborative team meetings.

The plaintiff argues that the arbitrator exceeded his powers by essentially approving the assignment of a fourth preparation.   That is not the essence of the award, however.

It is clear that the arbitrator's award, read in conjunction with the arbitrator's decision, constitutes a determination that the defendant is not entitled to make yearly or regular teacher assignments that obligate the teacher to make more than three preparations.   That being so, the award recognized that unusual circumstances occasionally arise, such as one in which one teacher might have to fill in for another on a temporary basis, and that this might result in a situation in which a fourth preparation was required for a short period of time.   Only in that event is the second part of the “cease and desist” award operative.   To read the award otherwise is to ignore the findings and analysis of the decision on which the award is based.

In any case, when the submission to the arbitrator was unrestricted, as it was here, it cannot be said that the arbitrator exceeded his powers by crafting the award as he did.  Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 114-15, 779 A.2d 737 (2001);  see also New Britain v. AFSCME, Council 4, Local 1186, 121 Conn.App. 564, 575-76 (2010).

CONCLUSION

The award conforms to the submission and the court is not authorized to substitute its judgment for that of the arbitrator.   The Application to Vacate the Award is denied.   The Application to confirm the Award is granted.

Patty Jenkins Pittman, Judge

Pittman, Patty Jenkins, J.