American Federation v. Town of Westbrook (2011)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO VACATE ARBITRATION

The plaintiff, AFSCME, Council 4, AFL–CIO Local 1303–325, seeks to vacate the state board of mediation and arbitration's September 17, 2009 award, which concluded that the dispute between the defendant, the town of Westbrook, and its former tax assessor, Ivan Kuvalanka, is not arbitrable.   The facts giving rise to the underlying arbitration and the instant action seeking to vacate the award are the subject of a stipulation between the plaintiff and the town.

Kuvalanka was appointed to the position of assessor for the town of Westbrook effective March 2, 2000.   His initial term of office expired on July 1, 2000.   Pursuant to Westbrook Code of Ordinance § 17.1, the assessor's term of office is one-year.¹  After his initial 2000 appointment, the Westbrook board of selectmen renewed his contract in successive years, but refused, in June 2008, to offer him an additional one year appointment.   In early July of 2008, Kuvalanka, who is a member of the union representing town employees, filed a grievance claiming that pursuant to the union contract his termination was permissible, if at all, only for “just cause.”   The grievance was denied by the first selectman.   Kuvalanka's appeal to the full board of selectmen was subsequently denied.   Following an unsuccessful mediation, the matter was submitted by the union to arbitration.

The sole issue comprising the submission concerned whether the dispute between Kuvalanka and the town was arbitrable.   In its award of September 17, 2009, the board concluded that the matter was not arbitrable, relying on General Statutes § 9–198, which sets forth the procedure for the appointment of a town assessor.   That provision specifies that the “municipality may provide for the term of office, qualification and compensation for such assessor ․” It further provides that “[a]ny municipality acting under the provisions of this section may, whenever necessary to the action taken hereunder, provide for the termination of the assessors then in office.”

Specifically, the board rejected the plaintiff's claim that the just cause provisions of the contract prohibited the defendant from refusing to renew Kuvalanka's appointment.  “Notwithstanding the just cause provision in the parties' collective bargaining agreement, Section 9–198 of the Connecticut General Statutes grants the Town the right to determine the Grievant's term of office.   Likewise it confers on the Town the sole discretion to his employment when his term of office expires.   There is no evidence which suggests that the Grievant has a right to reappointment.   Therefore the decision not to re-appoint the Grievant is at the discretion of the Town and the same is not subject to review under the grievance and arbitration procedure of the collective bargaining agreement.”

In its complaint in this action, the plaintiff seeks to vacate the award, alleging that the arbitrators exceeded their powers, are guilty of misconduct and/or that the award is against public policy.   In its memorandum, the plaintiff claims specifically that the board erred by making reference to the provision of § 17.1 of the town ordinance, which provides that the assessor will be appointed annually to a one-year term of office.   The plaintiff claims that the arbitrators are limited to the language of the contract and that the board's consideration of the town ordinance exceeds its authority.

The standards governing motions to confirm or vacate arbitration awards are well established.   Every presumption will be made in favor of upholding an arbitration award.   The “burden rests on the party attacking the award to produce evidence sufficient to invalidate it or avoid it ․ The authority to arbitrate is strictly limited by the provisions of the collective bargaining agreement and the scope of the matter to be considered by the arbitrators is limited by the submission ․ The submission, then, defines the scope of the entire arbitration proceeding by specifically delineating the issue to be decided ․ In deciding whether the arbitrators have exceeded their powers, this court, as a general rule, examines only the award to determine whether it is in conformity with the submission.   The memorandum of the arbitrator is irrelevant.”  (Citations omitted;  internal quotation marks omitted.)  Board of Education v. AFSCME, 195 Conn. 266, 271, 487 A.2d 553 (1985).

Our courts have consistently held that:  “If the submission does not contain limiting or conditional language, then the submission is unrestricted ․ If the submission is unrestricted, the award is final and binding, and cannot be reviewed for factual or legal error ․ In addition, if the submission is unrestricted, an arbitrator is not required to decide the issues presented according to law ․ 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.”   (Internal quotation marks omitted.)  Metropolitan District Commission v. AFSCME, Council 4, Local 3713, 35 Conn.App. 804, 808–09, 647 A.2d 755 (1985).   If the parties mutually agree to submit their dispute to arbitration, the resulting award is not reviewable for errors of law or fact.   See Hartford v. IAFF, Local 760, AFL–CIO, CLC, 24 Conn.App. 254, 256–57, 587 A.2d 435 (1991).   Unless the submission restricts the arbitrator's authority, the court is limited to comparing the submission with the award to determine whether the award conforms to the submission.

In this matter the submission to the arbitrator was framed as:  “Is Case Number 2009–A–0333 arbitrable.”   The submission was not restricted;  it placed no limitations on the arbitrator's discretion to enter an award based on the answer to that question.   The plaintiff has not pointed to any deviation between the submission and the award.   Rather, it takes issue with the arbitrator's reference to Westbrook Code § 17.1. Based on the court's limited scope of review when a submission, as in this case, is unrestricted, plaintiff's claims of errors of law are not reviewable, and, in any event, do not provide a basis for vacating the award.   Even if the award were reviewed substantively, it is clear that General Statutes § 9–198 empowers the municipality to establish the term of office for the assessor.   Having been delegated that authority, the defendant enacted § 17.1, establishing the assessor's terms as one year.   The town has the power and authority to refuse to extend or renew the term of appointment provided such decision is not based on unlawful considerations such as age, race or gender.

Accordingly, for the foregoing reasons the plaintiff's motion to vacate is denied.

SO ORDERED.

ROBERT L. HOLZBERG, JUDGE

FOOTNOTES

FN1. Section 17.1 provides:  “[U]nder the authority of Section 9–198 of the General Statutes the office of Assessor shall be by appointment of the Board of Selectmen.   The Board of Selectmen shall appoint an Assessor to serve for a term of one (1) year and shall annually appoint an assessor.”.  FN1. Section 17.1 provides:  “[U]nder the authority of Section 9–198 of the General Statutes the office of Assessor shall be by appointment of the Board of Selectmen.   The Board of Selectmen shall appoint an Assessor to serve for a term of one (1) year and shall annually appoint an assessor.”

Holzberg, Robert L., J.