SEIU 2001 v. State of Connecticut (2011)

MEMORANDUM OF DECISION ON MOTION TO VACATE AND MOTION TO CONFIRM ARBITRATION AWARD

The plaintiff, Connecticut State Employees Association, SEIU Local 2001 (“Union”), has filed an Application to Vacate the Arbitration Award and the defendant, State of Connecticut (“State”), Office of Labor Relations on behalf of the Department of Correction (“DOC”), has filed a Cross–Application to confirm the Arbitration Award.

Factual and Procedural Background

The Union is the bargaining agent for correctional supervisors, including the Grievant, Lt. John Roby. The Union and the State are parties to a written collective bargaining agreement (“CBA”), which provides for binding grievance arbitration.

The Arbitration Award which is the subject of this case provides in pertinent part:

ISSUE

During the course of the hearing, and in the presence of the undersigned, the parties stipulated to the following issues:

1.  Was the dismissal of Grievant, John Roby, for just cause?

2. If not, what shall be the remedy consistent with the Contract?

NOTICE OF CHARGES

Lieut. Roby was charged with the following:

․ you are being dismissed from State Service for just cause for violations of Administrative Directives 2.17, Employee Conduct and Administrative Directive 4.6, Use of Computers and Related Technologies.

Specifically, an investigation substantiated that you unitized (sic) your state-issued computer to access non-work related web sites including pornographic web sites.   By your own admission you accessed several non-work related web sites including pornographic web sites.

DISCUSSION AND ANALYSIS OF THE ARBITRATOR

1.  The instant case involves the termination of a fifteen-year Correction Lieutenant who obtained a state owned laptop and kept it in his personal possession for a period of 26 months and while in his care exploited it for his personal use.   Captain Brian Zawilinski, Security Division, testified to the investigation that he conducted into the Roby matter.  (SX# 1) He acquired the laptop in question and ordered a forensic sweep and worked with Technical Analyst II Parrott.  (SX# 3) The Captain interviewed Lt. Roby and learned of the BCC facility radio tracking system.   Roby did not create the radio system but was tasked with its operation.   Roby reportedly told him that the computer was kept at his home and not in the BCC facility.   The Captain noted that there was no evidence of any DOCS work performed at Roby's home and that appeared it was only used for personal activities.   He did however note that the transfer of the computer from the Enfield Radio Shop to Roby was legitimate and that no discipline was imposed on those employees who authorized the transfer.   The record documents that the computer was never issued but instead was acquired by Roby ․

2.  The Union contended that there was no misappropriation of the laptop and it was legally obtained.   The (sic) note that Roby asked for a laptop from “somewhere” and that he accepted personal responsibility for it.   Since he lacked a secure storage place and was not assigned his own office he decided to take the laptop home with him.   He fully intended to return the laptop but when he was removed from the radio detail, he merely put it into storage.   When ordered to return the laptop, the Union notes that he did so in a prompt manner.   At his interrogation, the Grievant admitted personal use of the computer and that he might have surfed some porno.

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13. The issue of penalty was at the crux of this matter.   That Lt. Roby had no prior disciplines was noted and offered in mitigation.   However, the main thrust of the Union's defense was that Roby was subject to disparate treatment and accordingly must be reinstated and receive a minor penalty.   That argument must fall for the following reasons.   A claim of disparate treatment is an affirmative defense which requires the charged party to satisfy the elements of proof.   The Grievant is required to show that other employees who committed similar misconduct were treated differently and received penalties less than termination.   Roby was unable to satisfy this burden.

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16. OLR submitted other cases in which state employees were terminated for similar offenses ․

Not one case was introduced into the record in which an employee found guilty of the type of misconduct engaged in by Roby was not terminated.

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17. The termination of a long term employee is never an easy task;  however, Lieutenant Roby offered neither remorse nor an understanding of the magnitude of his actions.   Roby kept the computer at home or in storage and away from BCC for a period in excess of two years.   Even though there is no evidence that the computer was used after the spring of 2007, Roby simply “forgot” that he had state issue property in his personal possession.   For a supervisor to be unmindful of to (sic) his responsibilities and obligations contributes to my findings.   There is no reason in either the record or in the mitigation offered by Roby to upset the proposed penalty termination.   I thereby find that just cause existed for the termination of the Grievant and so order.

18. The Grievant committed misconduct and accordingly his demotion was for just cause and stands as the basis of this Award.   Therefore, based on the record, and in accordance with Article 18, the following ward is issued:

1.  The grievance is denied.

2. The termination of the Grievant was for just cause.

Emphasis added.

Discussion of the Law and Ruling

Arbitration is a favored method of dispute resolution, particularly in the area of labor-management relations and collective bargaining agreements.   Plainfield Board of Education v. National Assoc. of Government Employees, 108 Conn.App. 35, 39, 947 A.2d 371 (2008);  East Haven Board of Education v. East Haven Education Association, 66 Conn.App. 202, 207, 784 A.2d 958 (2001).   Where the parties have agreed to arbitration, “[e]very reasonable inference is to be made in favor of the arbitral award and of the arbitrator's decision.”   Plainfield Board of Education v. National Assoc. of Government Employees, supra;  New Haven Board of Education v. AFSCME, Council 4, Local 287, 195 Conn. 266, 271, 487 A.2d 553 (1985);  Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 585, 440 A.2d 774 (1981).  “Courts should be extremely reluctant to interfere with the decisions of arbitrators in the field of labor-management relations where arbitration is to be encouraged as a means of promoting tranquility and the prompt and equitable settlement of disputes.”   International Union v. Fafnir Bearing Co., 151 Conn. 650, 653–54, 201 A.2d 656 (1964).

This special deference to arbitration requires the courts to “undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.”  Garrity v. McCaskey, 223 Conn. 1, 4, 612 A.2d 742 (1992) (quoting City of Hartford v. Connecticut State Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989)).   As a result, “arbitration awards are generally favored as a means of settling disputes.”  Steiner v. Middlesex Mutual Assurance Co., 44 Conn.App. 415, 437, 689 A.2d 1154 (1997).

In City of Bridgeport v. Connecticut Police Dep't Employees, 32 Conn.App. 289, 293–94, 628 A.2d 1336 (1993), the Court described the limited nature of judicial review of arbitration awards as follows:

Specifically, our review is limited to a comparison of the arbitrators' award with the submissions, and to a determination of whether the award conforms to the submissions.  Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 338–39, 555 A.2d 406 (1989);  Greater Bridgeport Transit Dist. v. Amalgamated Transit Union, Local 1336, supra.   The party seeking to vacate the award has the burden of demonstrating its nonconformity to the submission.   Watertown Police Union Local 541 v. Watertown, supra, 339;  Greater Bridgeport Transit Dist. v. Amalgamated Transit Union, Local 1336, supra.   Every reasonable presumption will be made in order to sustain an award.  Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 585, 440 A.2d 774 (1981);  Trumbull v. Trumbull Police Local 1745, supra.

If the submission does not contain limiting or conditional language, then the submission is unrestricted.  Bic Pen Corporation v. Local No. 134, supra, 584–85.   If the submission is unrestricted, the award is final and binding, and cannot be reviewed for factual or legal error.  Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985).   In addition, if the submission is unrestricted, an arbitrator is not required to decide the issues presented according to law.  Bridgeport v. Bridgeport Police Local 1159, supra, 106–07;  Trumbull v. Trumbull Police Local 1745, supra, 213.   Thus, “[w]here 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 ․” (Citations omitted;  internal quotation marks omitted.)  Caldor, Inc. v. Thornton, supra, 340–41, quoting Bic Pen Corporation v. Local No. 134, supra, 584;  Trumbull v. Trumbull Police Local 1745, supra.

Connecticut General Statutes § 52–418(a) applies in this case and provides:

a) 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 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.

“[I]n determining whether an arbitrator has exceeded his authority or improperly executed the same under § 52–418(a), the courts need only examine the submission and the award to determine whether the award conforms to the submission.”  (Citations omitted.)  American Universal Ins. Co. v. Degreco, 205 Conn 178, 186, 530 A.2d 171 (1987).  “Under an unrestricted submission, the arbitrator's 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.”  Id.

The Union asserts two grounds for the vacatur of the arbitration award.   Both relate to § 52–418(a)(4).   First, the Arbitrator's memorandum incorrectly references a “demotion” of the grievant as opposed to a “dismissal” for cause.   Second, that the Arbitrator rejected the Union's evidence that the grievant's discipline was unfair as compared to other misconduct cases.

The submission in this matter was unrestricted.   Therefore, the arbitrator was empowered to decide factual and legal questions and the Award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the CBA by the Arbitrator was erroneous.

With respect to the use of the word “demotion” in the Award, the court finds that this was an unintended error.   It is clear from a review of the Award as a whole that the Arbitrator was aware that the grievant's employment had been terminated.   For example, paragraph 17 of the Award states:

The termination of a long term employee is never an easy task;  however, Lieutenant Roby offered neither remorse nor an understanding of the magnitude of his actions.   Roby kept the computer at home or in storage and away from BCC for a period in excess of two years.   Even though there is no evidence that the computer was used after the spring of 2007, Roby simply “forgot” that he had state issue property in his personal possession.   For a supervisor to be unmindful of to (sic) his responsibilities and obligations contributes to my findings.   There is no reason in either the record or in the mitigation offered by Roby to upset the proposed penalty termination.   I thereby find that just cause existed for the termination of the Grievant and so order.

The Union and the grievant may not like the ruling, but it is what the parties bargained for and is binding and conclusive upon them.  O & G/O'Connell Joint Venture v. Chase Family Ltd Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (2004).   This court cannot disturb the Arbitrator's Award because its review is limited to a determination of whether the Arbitrator has properly discharged his office and issued an award which conforms to the unrestricted submission.  Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80–81, 881 A.2d 139 (2005);  State v. Connecticut State Employees Association, 117 Conn.App. 54, 59 (2009).   In this case the Arbitrator has properly and thoroughly discharged his office and issued an Award which conforms to the unrestricted submission.

With respect to the Union's claim that the Arbitrator ignored the Union's argument that the grievant received “disparate treatment,” it is clear that the Arbitrator did not ignore the argument.   Rather, he considered it and rejected it, stating:  “Not one case was introduced into the record in which an employee found guilty of the type of misconduct engaged in by Roby was not terminated.”   The Arbitrator's finding that there was no disparate treatment of the grievant is a conclusive and binding arbitral finding.

Based on the foregoing, the Application to Vacate the Award is denied and the Cross–Application to Confirm the Award is granted.

By the Court,

Aurigemma, J.

Aurigemma, Julia L., J.