Connecticut Police and Fire Union v. State of Connecticut (2011)

FOOTNOTES

FOOTNOTE.  

Domnarski, Edward S., J. Opinion Title MEMORANDUM OF DECISION ON PLAINTIFF'S APPLICATION TO VACATE AWARD AND DEFENDANT'S CROSS–APPLICATION TO CONFIRM AWARD The plaintiff, Connecticut Police and Fire Union, has filed this application to vacate the award of the arbitrator filed after the hearing on a grievance filed by the plaintiff on behalf of one of its members pursuant to the collective bargaining agreement between the parties.   The plaintiff maintains the award should be vacated pursuant to General Statutes § 52–418(a)(4) 1 because the arbitrator exceeded his powers by determining issues that were not part of the original submission.   The plaintiff also argues that the remedy rendered by the arbitrator did not address the issue submitted.   The defendant, the State of Connecticut, opposes the vacatur and has filed a cross-application to confirm the arbitration award.  “ ‘Judicial review of arbitral decisions is narrowly confined ․ When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties' agreement ․ Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference” with an efficient and economical system of alternative dispute resolution.’  ․” Bridgeport City Supervisors' Assn. v. Bridgeport, 109 Conn.App. 717, 723, 952 A.2d 1248, cert. denied, 289 Conn. 937, 958 A.2d 1244 (2008).  “The scope of judicial review of arbitration awards is generally determined by whether the submission in question is restricted or unrestricted ․ Even when the submission is unrestricted, if a party specifically contends that the arbitrator's award does not conform to the submission in violation of § 52–418(a)(4), we engage in de novo review.   Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFLCIO, 288 Conn. 223, 229–30, 951 A.2d 1249 (2008).  ‘[T]hat standard can best be understood when viewed in the context of what the court is permitted to consider when making this determination and the exact nature of the inquiry presented.   Our review is limited to a comparison of the award to the submission.   Our inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred.   With respect to the latter, we have explained that as long as the arbitrator's remedies were consistent with the agreement they were within the scope of the submission ․ The party challenging the award ․ bears the burden of producing evidence sufficient to determine that the award does not conform to the submission.’  “ (Citation omitted.)   State v. Connecticut State Employees Assn, SEIU Local 2001, 117 Conn.App. 54, 57–59, 978 A.2d 131 (2009).   The court must first determine whether the submission is unrestricted.  “In determining whether a submission is unrestricted, we look at the authority of the arbitrator.  ‘The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.   In the absence of any such qualifications, an agreement is unrestricted.’   Garrity v. McCaskey, 223 Conn. 1, 5, 612 A.2d 742 (1992);  Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983).”   Alderman & Alderman v. Pollock, 100 Conn.App. 80, 85, 917 A.2d 60 (2007).   The following issues were submitted by the parties to the arbitrator on November 16, 2010:  “1. Did the agency violate article 2, sec. 1, article 2 sec. 2 and/or article 7, sec. 6 of the contract in the manner specified in the statement of grievance? “1a.   If the answer to the above question is in the affirmative, what shall be the remedy, consistent with the contract?”   Arbitrator's Decision, p. 2. Since there were no limitations on the submission, the court concludes the submission was unrestricted.   In his decision, the arbitrator noted that the case challenged the procedures that led to the discharge of the grievant union member.   The subject grievance is contained in the award and states:  “The agency called for a Loudermill/pre-disciplinary hearing but then refused to provide the grievant and/or the union with 1) copies of the complaints and statements made against him;  2) a detailed statement of the evidence against him;  and 3) the genesis of the investigation, in violation of the NP–5 contract.   The union continually requested the documents prior to and during the alleged Loudermill and was told there were none.   The union also requested a copy of the investigative report conducted by the agency and again was told there was no such document.   The grievant was subsequently terminated without just cause ․” Arbitrator's Decision, p. 5. In addition to the original two issues submitted, the arbitrator determined that the parties consented to the following four additional issues:  “2. Did the agency violate article 17, sec. 9 of the contract and the statute and regulations incorporated therein and/or the due process principles stated by the Supreme Court in Cleveland Board of Education v. Loudermill in the manner specified in the statement of grievance? “2a.   If the answer to the above question is in the affirmative, what shall be the remedy, consistent with the contract? “3. Did the agency violate article 2, sec. 3, subsection 5 of the contract in the manner specified in the statement of grievance? “3 a. If the answer to the above question is in the affirmative, what shall be the remedy, consistent with the contract?”   Arbitrator's Decision, pp. 2–3.   Two points should be mentioned here.   First, the arbitrator found that the parties made a mutual mistake in citing section 2 rather than section 3, and its subsection 5, of article 2. Second, at the hearing the parties entered into a stipulation which stated:  “The parties stipulate that a copy of the ‘complaints and statements' required in article 2, section 3, subsection 5 of the contract was not provided in this case until the step 2 meeting of the grievance procedure.”   The arbitrator found this stipulation “most relevant.”   Arbitrator's Decision, p. 50.   Additional Issues The plaintiff maintains that the arbitrator exceed his authority by creating new issues expanding upon the scope of dispute.   As noted earlier, the arbitrator found that the parties consented to the additional issues.   At the hearing on the subject motions, counsel for both parties acknowledged the experience and ability of the arbitrator.   In this case, the arbitrator filed an arbitration opinion and award that was fifty-nine pages in length.   The arbitrator acknowledged that the determination of the case presented a significant procedural issue, specifically, the parties actually litigated issues that were in addition to the agreed upon issues.   This procedural issue, which was identified by the arbitrator, addresses the objections raised by the plaintiff here.   The arbitrator's findings and determinations on the issue are relevant.   In his decision the arbitrator stated:  “This case presents an issue unique in my long experience as an arbitrator:  the most significant issues in dispute between the parties arising out of the grievance that were litigated at the hearing and addressed in the briefs and reply briefs were not included in the parties' stipulated issues.   It is boilerplate labor relations law that an arbitrator's jurisdiction is limited by the scope of the issues submitted for decision by mutual consent of the parties.   There are, however, widely recognized exceptions to this general rule.   The most common exception is when the parties cannot agree on the issue, in which case the arbitrator must frame the issue consistent with the collective bargaining agreement, the grievance and the facts presented by the parties.  “Arbitrators and courts have found that the consent of the parties to have an arbitrator decide an issue can be evidenced by a variety of means, express or implied, in addition to a joint written submission of the issues in dispute.   Fairweather's Practice and Procedure in Labor Arbitration notes the applicable principle:  Parties to a collective bargaining agreement containing arbitration may supplement and extend that agreement in their submission to the arbitrator—and the agreement to arbitrate a particular issue may be implied from the parties' conduct, including their actual litigation of the issue. (emphasis added, quoting Carpenters Local 1027 v. Lee Lumber, 2 F.3d 796, 799 (7th Cir.1993)).   In researching the case law further I am convinced that Fairweather's correctly states the law and that it is consistent with well recognized labor relations principles ․ “Applying these principles to the case at hand it is clear that the parties consented to the submission of two issues for decision (issues 2a and 3a) in addition to those stated in their joint submission at the start of the arbitration hearing.   Indeed, those two additional issues are central to the grievance filed by the union and the dispute litigated at the hearing:  1) Did the predisciplinary procedures used by the state in this case violate due process principles enunciated by the Supreme Court in their Loudermill decision and similar principles incorporated into article 17 of the contract? and 2) Did the state violate the specific requirement of article 2, section 3, subsection 5 that they provide the union with copies of all ‘complaints and statements' made against the grievant prior to the pre-disciplinary/Loudermill hearing?   The parties' consent to the resolution of these issues by this arbitration proceeding is evident by all three phases of this case, the contractual grievance procedure, the evidence and testimony submitted at the arbitration hearing and the briefs and reply briefs of the parties.”  (Citations omitted.)   Arbitrator's Decision, pp. 36–39.   The arbitrator went on to extensively discuss the contract and the grievance procedure, the evidence submitted at the hearing and the contents of the briefs of the parties.   See Arbitrator's Decision, pp. 39–43.   The issue of whether the parties to an arbitration consent to additional issues, not contained in the original submission, by litigating those issues in the arbitration has not been determined by our Appellate Courts.   This court finds Carpenter's Local 1027 v. Lee Lumber Building Material, 2 F.3d 796, 799 (7th Cir.1993) instructive and concludes “the agreement to arbitrate a particular issue may be implied from the parties' conduct, including their actual litigation of that issue.”   See also Newmont U.S.A. Ltd. v. Ins. Co. of North America, 615 F.3d 1268, 1276 n.7 (10th Cir.2010).   In this case, the parties actually litigated the additional issues that were determined by the arbitrator to be within the scope of the original submission.  “[T]he arbitrator's interpretation of the scope of the issue must be upheld so long as it is rationally derived from the parties' submission.”   (Internal quotation marks omitted.)   Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 99, 991 A.2d 139 (2005).   The court also finds persuasive the holding of Ficek v. Southern Pacific Co., 338 F.2d 655, 656–57 (9th Cir.1964) where the court stated:  “(1) It is true that arbitration is a matter of contract, and that one is bound by an award only if he agreed to submit the issue to arbitration.   But an agreement to arbitrate a particular issue need not be express—it may be implied from the conduct of the parties ․ Even if the initial arbitration clause was not broad enough to include [the plaintiff's] claim, by voluntarily submitting the dispute to arbitration, [the parties] evinc[ed] a subsequent agreement for private settlement which would cure any defect in the arbitration clause ․ “The rule is sometimes stated in terms of waiver:  A claimant may not voluntarily submit his claim to arbitration, await the outcome, and, if the decision is unfavorable, then challenge the authority of the arbitrators to act.”  (Citations omitted;  internal quotation marks omitted.)   Ficek v. Southern Pacfic Co., supra, 338 F.2d 656–57.   The court has compared the original submission, and the additional issues which the parties consented to by litigating them, with the award.   The court determines that the parties vested the arbitrator with the authority to decide the issues.   The plaintiff has not sustained its burden of establishing, pursuant to § 52–52–418(a)(4), that the arbitrator exceeded his powers.   Remedy Awarded The plaintiff also argues that the arbitrator failed to address the issue before him with regard to remedy.   Specifically, the plaintiff maintains that the arbitrator did not address the admitted violation of the state with regard to article 2, section 3, subsection 5 which requires that copies of complaints and statements shall be given to an accused employee prior to any predisciplinary hearing.   This argument lacks foundation in the decision and the award.   The arbitrator specifically acknowledged the violation in his decision and stated a remedy in the award.   The effect of the remedy was to order compliance with article 2, section 3, subsection 5. The plaintiff characterizes this an institutional remedy which did not address the grievance of a specific union member.   This characterization ignores the decision of the arbitrator wherein he thoroughly reviewed the information that was not delivered and the potential consequences of the failure to deliver the information.   He found that the violation did not give rise to an individual remedy.   The arbitrator stated:  “There is thus no evidence of prejudice or harm to [the grievant] that would justify a remedy of his reinstatement to work and make whole remedy in the instant case.   The state's violation of the contract, however, should not go without a remedy.”   Arbitrator's decision, p. 58.   Conclusion The application to vacate the award is denied and the cross-application to confirm the award is granted.   Domnarski, J. FN1. (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 ․ (4) ․ 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.”