City of Hartford v. 760 IAFF AFL CIO CLC (2011)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO VACATE OR MODIFY ARBITRATION AWARD (# 104 )

The issue presently before the court is whether to vacate or modify an arbitration award ordering the reinstatement of a former Hartford firefighter, deputy chief Daniel C. Nolan (the grievant).   The grievant was terminated from his employment with the plaintiff, the city of Hartford, in January 2009, after allegedly soliciting charitable donations during working hours and reducing towers ¹ for members of the recruit class who donated.   The defendant, Hartford Firefighters Union, Local 760, IAFF, AFL–CIO, CLC, is the bargaining representative for all Hartford firefighters.   After the grievant's termination, the matter was submitted to the American Arbitration Association, pursuant to the collective bargaining agreement entered into between the plaintiff and the defendant.

On March 29, 2011, the arbitrator, Harvey M. Schrage, determined the plaintiff “did not have just cause to terminate the grievant” and ordered that he be reinstated.   On April 29, 2011, the plaintiff filed an application to vacate or modify the arbitration award on the grounds that the award is violative of public policy and General Statutes § 52–418(a).   The plaintiff submitted a memorandum of law and exhibits in support of its application on July 11, 2011.   On May 17, 2011, the defendant submitted an answer and cross-application to confirm the arbitration award.   The defendant submitted a memorandum in opposition to the application to vacate the arbitration award and in support of its cross-application to confirm the arbitration award on August 8, 2011.   Argument on this matter was heard by the court on September 7, 2011.   The parties both filed post-hearing briefs on September 22, 2011.

FACTS

The facts relevant to resolution of the present motion are as follows.²  The plaintiff and the defendant are parties to a collective bargaining agreement.   The agreement contains a provision requiring “just cause” for disciplinary action and also sets forth the various steps of the grievance procedure.   The agreement provides that either party may request to have a particular case heard by the American Arbitration Association, if the grievance remains unresolved.

The grievant was employed by the plaintiff as a firefighter from June 1983 until his termination in January 2009.   He began his career as a firefighter and eventually by April 2001 was promoted to deputy chief of training.   One of the grievant's job responsibilities was to conduct training classes, including supervision of the recruit classes.   The training program is a minimum of fourteen weeks and involves rigorous activity from 8 a.m. until 5 p.m. One such rigorous activity involved the running of towers.   A tower is a six-story structure that the recruits would run up and down as a form of punishment.   Recruits were punished for not doing well on a run, making errors in a drill, forgetting a name tag and many other things.

In August 2008, the assistant fire chief, Michael Parker, became aware of some concerns regarding the grievant.   Parker received three complaints about the grievant, one of which is relevant to this case.   The union submitted a complaint alleging that “the grievant was soliciting recruits for donations for charities in return for reducing the number of ‘punishment towers' the recruits had to run” during the 2007–2008 recruit class.   Parker then conducted an investigation and interviewed the grievant and members of the recruit class.   After an initial investigation, fire chief Charles Teale conducted a second investigation with the assistance of human resources and the corporation counsel's office.   After the second investigation, Loudermill proceedings were held on January 14 and January 23, 2009, after which, the grievant was “summarily terminated.”   On or about April 23, 2009, the matter was submitted to the American Arbitration Association.

The submission to the arbitrator stated:  “Was the grievant terminated for just cause?   If not, what shall the remedy be?”   Testimony heard by the arbitrator revealed the following relevant facts.   Parker testified that “one-half of the recruit class came in and said that they were purchasing raffle tickets or tickets to a fundraiser to have towers reduced.”   He also noted that electronic games, such as playstations were also brought in.   Some of the recruits told Parker that they were asked to solicit donations from area businesses as well.   Teale contradicted that testimony when he stated that “he did not have evidence that the grievant told recruits that they were mandated to solicit donations or that they could lose their job if they did not donate for charities.”

The grievant testified about the allegations against him and admitted that he received donations including money for raffle tickets, free salsa lessons and oil.   The testimony revealed that it was “undisputed that the grievant reduced the number of towers for a number of reasons, including recruits participating in or making donations for charities.”   Recruit Michael Sanchez testified that towers were not added if a recruit did not participate in the charity.   Recruit Joseph Huertas testified that he made charitable gifts to the grievant because he “wanted to get rid of towers.”   He also stated that when one recruit donated, towers were reduced for all members of the class.   Other recruits, including recruit Ashley Shapiro, testified that the recruits were not told that towers would be reduced prior to making the donations, but rather after the donations were made, towers were reduced.

The arbitrator reached the conclusion that the recruits “did not feel compelled to the point of being coerced,” and, therefore, even though “reducing towers may not ‘feel right’ and may not constitute a ‘good’ practice there is no evidence that it was contrary to any rule, statute or past practice.”   He found a lack of evidence to suggest that the recruits were soliciting during working hours or that the grievant benefitted personally, in any way, from the donations he received.   The arbitrator's final award stated:  “The city did not have just cause to terminate the grievant ․ The grievant shall be reinstated to his formed position ․ awarded full back pay, seniority, and other benefits ․” This application to vacate or modify the arbitration award followed.   The defendant's opposition to the application to vacate or modify the arbitration award was filed immediately following, along with a cross-application to confirm the arbitration award.

DISCUSSION

“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 ․ When the scope of the submission is unrestricted, the resulting award is not subject to de novo review for errors of law so long as the award conforms to the submission ․ 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.”  (Internal quotation marks omitted.)   AFSCME, Council 4, Local 1565 v. Dept. of Correction, 298 Conn. 824, 834, 6 A.3d 1142 (2010);  see also Windsor Locks v. International Brotherhood of Police Officers, Local 523, 128 Conn.App. 400, 403–04, 17 A.3d 499 (2011).   “[I]n 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.”  (Internal quotation marks omitted.)  Groton v. United Steelworkers of America, 254 Conn. 35, 44, 757 A.2d 501 (2000).

“Where 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 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.”  AFSCME, Council 4, Local 1565 v. Dept. of Correction, supra, 298 Conn. 834–35.

“The long-standing principles governing consensual arbitration are, however, subject to certain exceptions.   Although we have traditionally afforded considerable deference to the decisions of arbitrators, we have also conducted a more searching review of arbitral awards in certain circumstances.   In Garrity v. McCaskey, [223 Conn. 1, 6, 612 A.2d 742 (1992) ], [our Supreme Court] listed three recognized grounds for vacating an award:  (1) the award rules on the constitutionality of a statute ․ (2) the award violates clear public policy ․ or (3) the award contravenes one or more of the statutory proscriptions of § 52–418(a) ․ The judicial recognition of these grounds for vacatur evinces a willingness, in limited circumstances, to employ a heightened standard of judicial review of arbitral conclusions, despite the traditional high level of deference afforded to arbitrators' decisions when made in accordance with their authority pursuant to an unrestricted submission.”  (Internal quotation marks omitted.)  Marlborough v. AFSCME, Council 4, Local 818–052, 130 Conn.App. 556, 563, 23 A.3d 798, appeal granted in part, 302 Conn. 940 (2011).

In the present case, it is undisputed that the submission to arbitration in this case was voluntary and unrestricted:  “Was the grievant terminated for just cause?   If not, what shall the remedy be?”   The arbitrator decided that the grievant was terminated without just cause and ordered that he be reinstated to his former position.   Therefore, the question is whether the arbitrator's award should be vacated or modified on the basis of one or more of the three recognized grounds for vacating an award.

The plaintiff makes two arguments in support of the application to vacate the arbitration award.   First, the plaintiff argues that the arbitration award violates the clear public policy and established policies of the city of Hartford, because the grievant solicited donations and allegedly asked members of the recruit class to solicit donations during working hours.   Second, the plaintiff argues that the arbitrator exceeded his powers and so imperfectly executed his powers under General Statutes § 52–418(a)(4) that a mutual, final and definite award upon the submitted matter was not made.   The defendant counters that the plaintiff has failed to meet its burden that the award is violative of any public policy because no such public policy exists.   As to the second argument made by the plaintiff, the defendant asserts that the arbitrator did not exceed his powers when rendering the arbitration award.

The court must first examine the plaintiff's first argument.   The plaintiff argues that the Hartford Fire Department Training Academy Conduct Policy (conduct policy) states;  “(7) Soliciting gifts of money, commercial or political solicitation, or collecting private debts is prohibited during duty hours.   This does not apply to (a) approved national or local fund drives for health, welfare, or other purposes;  and (b) personal notices posted on authorized bulletin boards,” and that, as a result of his actions at work, the grievant was violating this policy.  “A court's refusal to enforce an arbitrator's award on the basis of a violation of public policy is a specific application of the more general doctrine, rooted in the common-law, that a court may refuse to enforce contracts that violate law or public policy.   A challenge that an award is in contravention of public policy is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial enforcement any more than parties can expect a court to enforce such a contract between them.”  (Internal quotation marks omitted.)  AFSCME, Council 4, Local 1565 v. Dept. of Correction, supra, 298 Conn. 835–36.

“[W]here ․ a party challenges a consensual arbitral award on the ground that it violates public policy, and where that challenge has a legitimate, colorable basis, de novo review of the award is appropriate in order to determine whether the award does in fact violate public policy.”  (Internal quotation marks omitted.)  MedValUSA Health Programs, Inc. v. Memberworks, Inc., 273 Conn. 634, 655, 872 A.2d 423, cert. denied, 546 U.S. 960, 126 S.Ct. 479, 163 L.Ed.2d 363 (2005).

“The public policy exception applies only when the award is clearly illegal or clearly violative of a strong public policy.”  (Internal quotation marks omitted.)  Groton v. United Steelworkers of America, supra, 254 Conn. 45.   “[T]he court is not concerned with the correctness of the arbitrator's decision but with the lawfulness of enforcing the award ․ Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court's refusal to enforce and arbitrator's interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.”

“A two-step analysis ․ [is] often employed [in] deciding cases such as this.   First, the court determines whether an explicit, well-defined and dominant public policy can be identified.   If so, the court then decides if the arbitrator's award violated the public policy.”  (Internal quotation marks omitted.)  AFSCME, Council 4, Local 1565 v. Dept. of Correction, supra, 298 Conn. 836.  “If ․ it has been determined that an arbitral award does implicate a clearly established public policy, the ultimate question remains as to whether the award itself comports with that policy.”  Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 427, 747 A.2d 1017 (2000).  “That question requires de novo judicial review.   However, the analysis of the issue is confined to the facts as found by the arbitrator.   [State v.] AFSCME, Council 4, Local 391, [125 Conn.App. 408, 419 (2010), cert. granted, 300 Conn. 912, 13 A.3d 1101 (2011) ].”  State v. AFSCME Local 391, Superior Court, judicial district of Hartford, Docket No. CV 10 6010997 (April 7, 2011, Robaina, J.) (51 Conn. L. Rptr. 704).

“[T]he party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated ․ Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail ․ only if it demonstrates that the [arbitrators'] award clearly violates an established public policy mandate ․ It bears emphasizing, moreover, that implicit in the stringent and narrow confines of this exception to the rule of deference to arbitrators' determinations, is the notion that the exception must not be interpreted so broadly as to swallow the rule.”   (Internal quotation marks omitted.)  AFSCME, Council 4, Local 1565 v. Dept. of Correction, supra, 298 Conn. 836.

“We have looked to a variety of sources in determining whether an arbitral award violates a well-defined public policy, and have cited, as examples of possible sources, statutes, administrative decisions and case law ․ In those cases in which we have vacated an arbitral award on public policy grounds, the public policy has most commonly been grounded in the General Statutes ․

“Statutes have not been the exclusive source from which we have found clear statements of public policy.   We also have looked to city charter and, on one occasion, to the rules of professional conduct ․ [O]ur case law establishes that, although we have been willing to find a public policy grounded in a variety of sources, the party seeking to establish the public policy bears a heavy burden of showing the existence of such a well-defined and dominant public policy.   Indeed, we have in the past found a clear statement of that policy in some objectively stated form, such as a statute, city charted or rule of professional conduct.   Although we do not decide that a statement in such a form is always required as the predicate for the public policy exception, we nonetheless adhere to the principle that the public policy must be explicit, well defined and dominant.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  MedValUSA Health Programs, Inc. v. Memberworks, Inc., supra, 273 Conn. 657–61.

The Connecticut courts have never addressed whether a department's conduct policy, standing alone, is enough to establish an explicit, well-defined and dominant public policy.   In State v. AFSCME Local 391, supra, 51 Conn. L. Rptr. 704, the court found that there was a well defined and dominant public policy “against the use of and trafficking of illicit substances ․ in Connecticut General Statutes as well as the [department of correction] regulations.”   In doing so, the court noted:  “While [department of correction] directives are not determinative of public policy in and of themselves, such internal regulations, practices and procedures may reflect public policy.  [The department of correction regulation] is not the sole expression of the explicit public policy” but rather a “further reflection upon the public policy set forth in [General Statutes §§ ]21a–277 and 21a–279.”  State v. AFSCME Local 391, supra, 51 Conn. L. Rptr. 704.

In the present case, the department conduct policy is not enough to establish “an explicit, well-defined and dominant public policy.”   The conduct policy is “not determinative of public policy,” and unlike State v. AFSCME Local 391, supra, 51 Conn. L. Rptr. 704, the fire department's conduct policy does not “[reflect] upon the public policy set forth in [the] General Statutes,” a city charter or the rules of professional responsibility.   Therefore, since there is no violation of an explicit, well-defined and dominant public policy the court need not address whether the arbitrator's award violated the public policy.

In its post-hearing brief, the plaintiff adds three additional arguments.   First, the plaintiff argues that the city charter establishes a explicit, well-defined and dominant public policy when it states that the fire chief must “ensure the efficiency, discipline and good character of the department, establishing that disobedience to the lawful orders of the chief or to the rules and regulations shall be grounds for dismissal or for other appropriate disciplinary action.”   Second, the plaintiff argues that the public policy established in the personnel rules and regulations of the city of Hartford is violated by the arbitrator's award.   Those rules and regulations state:  “No person shall either directly or indirectly solicit, pay, render, receive, or give any money, service or other valuable thing to any person for, or on account of or in connection with any test, appointment, promotion, demotion, layoff, or dismissal.”   Third, the plaintiff argues that the arbitrator's award is contrary to the public policy contained in the fire department rules and regulations.

“The court may not consider new evidence that was not presented to the arbitrators.  Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 666, 591 A.2d 101 (1991) (Permitting a litigant ․ to supplement the arbitration record by presenting evidence to the trial court that was not presented to the arbitrators would be inconsistent with ․ the substantial evidence scope of judicial review of the arbitrators' findings).”  (Internal quotation marks omitted.)   Lumbermens Mutual v. McDonough, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 94 0141794 (April 15, 1996, Karazin, J.).

In the present action, there is no reference to any of this evidence in the arbitrator's decision.   Further, the plaintiff did not assert that this evidence was submitted to the arbitrator or that it attempted to submit the evidence and it was excluded, and, consequently, the court is unable to consider the plaintiff's three additional arguments.

The court must now address the plaintiff's second argument, that the arbitrator exceeded his powers and so imperfectly executed them under General Statutes § 52–418(a)(4), because the arbitrator's decision was inconsistent with the evidence found by him.  Section 52–418(a)(4) provides:  “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 ․ (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.”

“In our construction of § 52–418(a)(4), we have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers ․ The standard for reviewing a claim that the award does not conform to the submission requires what we have termed in effect, de novo judicial review ․ Although we have not explained precisely what in effect, de novo judicial review entails as applied to a claim that the award does not conform with the submission ․ [o]ur 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 ․

“In determining whether an arbitrator has exceeded the authority granted under the contract, a court cannot base the decision on whether the court would have ordered the same relief, or whether or not the arbitrator correctly interpreted the contract.   The court must instead focus on whether the [arbitrator] had authority to reach a certain issue, not whether that issue was correctly decided.   Consequently, as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of authority, the award must be enforced.   The arbitrator's decision cannot be overturned even if the court is convinced that the arbitrator committed serious error ․ Moreover, [e]very reasonable presumption and intendment will be made in favor of the award and of the arbitrator's acts and proceedings.   Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission ․

“Such a limited scope of judicial review is warranted given the fact that the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision ․ It is clear that a party cannot object to an award which accomplished precisely what the arbitrators were authorized to do merely because that party dislikes the results.”  (Citations omitted;  internal quotation marks omitted.)  Comprehensive Orthopaedics & Muscuoloskeletal Care, LLC v. Axtmayer, 293 Conn. 748, 754–56, 980 A.2d 297 (2009).

In the present action, the submission to the arbitrator stated:  “Was the grievant terminated for just cause?   If not, what shall the remedy be?”   The arbitrator found:  “The city did not have just cause to terminate the grievant.   Any formal or informal reference to the termination shall be expunged from the grievant's files.   The grievant shall be reinstated to his former position.   The grievant shall be awarded full back pay, seniority, and other benefits consistent with the position he held at the time of his termination.   Such back pay shall be reduced by the amount of any compensation, and any earnings from other employment received by the grievant during the period that back pay accrued.   Such back pay shall be subject to the grievant's duty to mitigate, so far as reasonable, the amount of the loss.”

When comparing the award with the submission, the court finds that the arbitrator did not exceed his authority.   The arbitrator determined that the grievant was not fired for just cause, which was a direct answer to the submission.   He further determined that any reference to such an action should be removed from his record, he should be reinstated, and determined what compensation and benefits he was entitled to.   The submission in no way restricted what remedy the arbitrator was allowed to give, and, therefore, the remedies the arbitrator provided were well within those permitted by the submission.   Therefore, the court finds that the arbitrator did not exceed his authority.

CONCLUSION

For the foregoing reasons, the application to modify or vacate the arbitration award is denied.   The defendant's application to confirm the arbitration award is granted.

Woods, J.

FOOTNOTES

FN1. According to the arbitrator's decision:  “A tower is a cement building with stairs approximately six stories high that is used for training purposes.”.  FN1. According to the arbitrator's decision:  “A tower is a cement building with stairs approximately six stories high that is used for training purposes.”

FN2. The facts are taken from the March 29, 2011 decision of the arbitrator, following the parties' arbitral submission..  FN2. The facts are taken from the March 29, 2011 decision of the arbitrator, following the parties' arbitral submission.

Woods, Glenn A., J.