749 v. Judicial Branch (2012)

MEMORANDUM OF DECISION

The plaintiff, Judicial Employees Local 749 (Union), brings this action to vacate the arbitration award of June 15, 2011, in which the arbitrator dismissed the grievance, and he found that the grievance was terminated for just cause in accordance with Article 14 of the collective bargaining agreement between the Union and the Judicial Branch (Branch).

The following facts are relevant to the court's consideration of this appeal.   The grievant was a juvenile detention staff supervisor who alleges he was terminated without just cause.   The grievant initiated his grievance in accordance with the relevant provisions of the collective bargaining agreement and proceeded to arbitration.   The first hearing was held on December 6, 2010.   The parties submitted the following agreed issues to be resolved at arbitration:  “1. Did the State of Connecticut Judicial Branch have just cause, pursuant to Article 14 of the collective bargaining agreement between the parties, to terminate the grievant, Juvenile Shift Supervisor Herbert Bagwell on September 30, 2009? 2. If not, what shall be the remedy in accordance with the collective bargaining agreement?”

The December 6 hearing commenced approximately one hour late due to the tardiness of the grievant.   Upon the grievant's arrival, the Branch offered “voluminous documentary evidence” to be included in the record, and the Branch's representative “presented an extended opening statement.”   Before the Branch called any witnesses, however, the grievant stated that he had a family commitment for the afternoon.   In order to accommodate the grievant, the arbitrator recessed the proceedings until December 22, 2010.

In the morning of December 21, 2010, the Union's representative sent an e-mail to the grievant reminding him of the hearing the following day, and telling him that “the hearing will continue until it is finished.   The arbitrator will not consider any requests for a continuance and will allow the Branch to proceed whether you are present or not.   I will see you tomorrow ․” The grievant responded to the email in the afternoon of that day, stating:  “Just finished a meeting with my counselors regarding the Branch issue.   I will not be attending the Arbitration meeting tomorrow morning.   There is a much bigger picture than tomorrow.”  (Emphasis in original.)

Representatives from the Union and Branch appeared at the December 22, 2010, hearing, but the grievant did not.   The arbitrator then informed the parties that he considered the grievant to have abandoned his grievance and that he would issue a ruling and award upholding the termination.   On June 15, 2011, the arbitrator issued such ruling setting forth the above facts and made the following rulings, that the “grievance giving rise to this proceeding is hereby dismissed,” and that “the termination of the grievance was for just cause pursuant to Article 14 of the contract.”

The plaintiff-Union filed an application to vacate the arbitration award on June 22, 2011, and the defendant-Branch filed a motion to confirm the award on August 3, 2011.   The plaintiff filed a brief in support of its application to vacate the award on September 7, 2011, and the defendant filed a memorandum in support of its motion to confirm the award on October 14, 2011.   Both motions were heard on November 22, 2011.

The first step in judicial review of the arbitration decision before this court is to determine whether the instant submission to arbitration is restricted or unrestricted, which requires a determination by the court if the arbitrator was limited as to how he could render his decision.  Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 273 Conn. 86, 92–93, 868 A.2d 47 (2005).  “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).   Arbitration is a creature of contract and the parties themselves, by the terms of their submission, define the powers of the arbitrator.   Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983).  “[W]hen the parties have established the authority of the arbitrator, the extent of [the court's] judicial review of the award is delineated by the scope of the parties' agreement.”  (Internal quotation marks omitted.)   Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 427, 747 A.2d 1017 (2000).

The portions of the collective bargaining agreement submitted to the court set some limits to the power of the arbitrator, and, additionally, it also delineates the scope of judicial review.   The contract provides that “[t]he arbitrator shall have no power to add to, subtract from, alter, or modify this Agreement, nor to grant to either party matters which were not obtained in the bargaining process, nor to impose any remedy or right of relief for any period of time prior to the effective date of the pertinent provision of this Agreement ․ The arbitrator's decision shall be final and binding on the parties in accordance with Connecticut General Statutes § 52–418, provided, however, neither the submission of question of arbitrability to any arbitrator in the first instance nor any voluntary submission shall be deemed to diminish the scope of judicial review over arbitral awards, including a decision by a court of competent jurisdiction that the arbitrator's award:  (1) contravenes the public interest, or (2) is arbitrary and capricious.   As to the specific and express provisions of this Agreement, the parties have bargained for the arbitrator's construction.   Absent any of the above grounds for overturning an award, the courts shall not substitute their interpretation for that of the arbitrator.” ¹

Although the language of the parties' submission to the arbitrator is broad, there can be no doubt that this is a restricted submission due to the restrictive language included in the collective bargaining agreement.²  In such a case where the submission is deemed restricted, the court will engage in de novo review.  Office of Labor Relations v. New England Health Care Employees Union, District 199, AFL–CIO, 288 Conn. 223, 229, 951 A.2d 1249 (2008).

In support of its application to vacate, the plaintiff argues that the arbitrator exceeded his authority by dismissing the proceedings and determining that the grievant's termination was for just cause.   It argues that the arbitration can proceed in the absence of a party, and it also points to General Statutes § 52–418(3), and argues as a basis of vacatur, that the arbitrator wrongfully refused to postpone the arbitration for sufficient cause shown.³

In response, the defendant argues that the arbitrator did not “refuse to postpone the hearing” because the “grievant simply decided not to pursue the arbitration ․ and made a deliberate decision not to attend.”   Further, the defendant argues that the evidence before the arbitrator, from the first day of hearings, provided a sufficient basis for the arbitrator's decision.   Finally, it argues that the arbitrator did not exceed his powers because the arbitrator's decision conformed to the issues.

First addressing the plaintiff's argument that vacatur of the arbitrator's decision is warranted via General Statutes § 52–418(a)(3), the court rejects the plaintiff's assertion that the arbitrator is guilty of misconduct for refusing to postpone the hearing for sufficient cause shown.   The plaintiff has submitted no evidence that in any way suggests that the plaintiff requested a postponement, which it bears the burden of doing.   As such, the court concludes that the arbitrator's award cannot be vacated on this ground.

Concerning the argument that the arbitrator's decisions conformed to the submissions, the court notes that this standard applies when the plaintiff argues that the arbitration award should be vacated because of arbitrator noncompliance with General Statues § 52–418(a)(4).  “[Section] 52–418(a)(4) provides that an arbitration award shall be vacated 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 ․ We have also recognized, however, that ․ [a]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52–418(a)(4) ․” (Internal quotation marks omitted.)  Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 81, 881 A.2d 139 (2005).

In the present matter, the plaintiff did not explicitly argue that the award should be vacated due to the fact that the arbitrator exceeded his powers pursuant to § 52–418(a)(4), but the plaintiff implicitly made this argument by repeatedly emphasizing how the arbitrator's award was not drawn from the essence of the collective bargaining agreement, or did not render an award within the terms of the contract, which is related to what must be shown under § 52–418(a)(4).   Additionally, in the plaintiff's application itself, if not the memorandum of law, the plaintiff used language lifted from § 52–418 in explaining why the award should be vacated.   Thus, the court will construe the plaintiff's arguments that the award should be vacated pursuant to § 52–418(a)(4).

Although the usual analysis in determining a § 52–418(a)(4) violation is to determine if the award conforms to the submission, further inquiry is often required because the court must ensure that the award is drawn from the essence of the contract.   Our Appellate Court has recognized this by stating “[t]his additional analysis is conducted pursuant to such a claim because an arbitrator's award is legitimate only so long as it draws its essence from the collective bargaining agreement.   When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of this award ․ If, for example, there was evidence that revealed that [the arbitrator] had reached his decision by consulting a ouija board, [it would] not suffice that the award conformed to the submission ․ It must be emphasized, however, that merely claiming inconsistency between the agreement and the award will not trigger judicial examination of the merits of the arbitration award.   Rather, in the face of such a claimed inconsistency, this court will review the award only to determine whether it draws its essence from the collective bargaining agreement.”  (Citations omitted;  internal quotation marks omitted.)  Board of Education v. Local 818, 5 Conn.App. 636, 640, 502 A.2d 426 (1985).

The court is sympathetic to the arbitrator's plight, and appreciates that he was understandably frustrated with the grievant's failure to appear.   However, the court must review the operative contract, in this case the collective bargaining agreement, and determine whether the arbitrator's remedy was permitted by the agreement, and not substitute its view of what the arbitrator's powers ought to be and thus deprive the parties of what they bargained for in the agreement.

The portions of the collective bargaining agreement submitted to the court concerning grievance procedure is largely silent on the specifics of arbitration, spare the excerpted portion quoted above.   The collective bargaining agreement does not speak to the procedural rules to be utilized during the proceedings themselves, and the parties have not submitted evidence of the rules used at such proceeding.⁴  Additionally, the agreement also makes no mention of the remedies which can be awarded in arbitration except that the award shall “not grant to either party matters which were not obtained in the bargaining process or impose any remedy or right of relief for any period of time prior to the effective date of the agreement, or award back pay for more than 30 days prior to the time the grievance was submitted.   Therefore, at first glance, it is unclear whether the parties contemplated an arbitrator's outright dismissal of an arbitration.

What cannot be lost in this, however, is that the contract expressly allows for judicial review of arbitrary and capricious decisions of the arbitrator.   “Arbitrary” is defined as “founded on prejudice or preference rather than on reason or fact” and “capricious is defined as “contrary to evidence or established rules of law.”   See Black's Law Dictionary (7th Ed.1999).

In the present case, it is clear from the arbitrator's decision that he did not consider the evidence submitted before rendering a decision.   This is not in comportment with general principles of arbitration, which direct the arbitrator to hear evidence even in the absence of a party to arbitration, and then render a decision based on the evidence before him.⁵  See Rules of Connecticut Board of Mediation and Arbitration § 31–91–32 (“An arbitration hearing may proceed in the absence of any party, who, after due notice, fails to be present or fails to obtain a postponement or adjournment.   An award shall not be made solely on the default of a party.   The panel members shall require the appearing party to submit such evidence as may be required for the making of an award”) (emphasis added);  Rules of the American Arbitration Association 27 (“Unless the law provides to the contrary, the arbitration may proceed in the absence of any party or representative who, after due notice, fails to be present or fails to obtain a postponement.   An award shall not be made solely on the default of a party.   The arbitrator shall require the other party to submit such evidence as may be required for the making of an award”);  Uniform Arbitration Act § 15(c) (“The arbitrator may hear and decide the controversy upon the evidence produced although a party who was duly notified of the arbitration proceeding did not appear”).   These rules are but a mere sampling of collections of procedures governing arbitration that either direct the arbitrator to hear evidence in the absence of a party or permit such.   In fact, the court has been unable to locate a memorialization of procedural rules which does not contain such a rule.   While the agreement between the parties appears to be silent on the particular procedural rules to be used in the proceeding, it is doubtful the parties contemplated embracing a rule so far removed from the procedural norm.

Furthermore, hearing the evidence and making a decision on the merits is expressly sanctioned by Connecticut law.  General Statutes § 52–414(b) (stating “[i]f any party fails to appear before the arbitrators or an umpire after reasonable notice, the arbitrators or umpire may nevertheless proceed to hear and determine the controversy upon the evidence which is produced before them).   See also, International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 64–65 82 A.2d 345 (1951) (noting that the predecessor statute to § 52–414(b) codifies the common-law rule);  International Brotherhood of Teamsters v. Trudon & Platt Motor Lines, 146 Conn. 17, 24, 147 A.2d 484 (1958) (concluding that the fact that the defendant chose not to attend the arbitration proceedings did not effect the right of the arbitrator to decide the case upon the evidence submitted to them).   Cf. General Statutes § 52–549y(a) (concerning fact-finding arbitration) (“Where a party fails to appear at the hearing, the arbitrator shall nonetheless proceed with the hearing and shall make a decision, as may be just and proper under the facts and circumstances of the action, which shall be entered as a judgment forthwith by the court”).

As noted, the court understands the arbitrator's impatience with the grievant in this case.   However, a review of the arbitrator's decision plainly reveals that the arbitrator's award was based solely on the grievant's failure to appear at the second hearing.   This was in error.

There can be no real doubt that when drafting the relevant arbitration provisions of the collective bargaining agreement, the parties contemplated a decision made on the submitted issues based on the evidence before the arbitrator.   Similarly, there is no provision of the agreement which would allow the arbitrator to escape his obligation to make a decision on the merits due to the absence of a witness, whatever the evidence before him.

Indeed, and perhaps even more importantly, the court is empowered by the contract's explicit terms to review decisions of arbitrators for arbitrary and capricious actions.   The court points out that entertaining an arbitration and yet making a decision based on the conduct of the parties rather than on the evidence fits squarely within the definitions of “arbitrary” and “capricious” outlined above.

The court concludes that the arbitrator's anomalous remedy of dismissing the case, yet making a decision that the grievant's termination is not based on just cause without reviewing any of the evidence before him is not drawn from the essence of the collective bargaining agreement, and is a capricious action.   As such, the arbitrator's award should be vacated.

For the foregoing reasons, the plaintiff's application is granted, and the defendant's motion is denied.

Hale, J.T.R.

FOOTNOTES

FN1. Another section of the collective bargaining agreement also enumerates seven matters which are not subject to arbitration.   None of these appear to be at issue in the present case, however..  FN1. Another section of the collective bargaining agreement also enumerates seven matters which are not subject to arbitration.   None of these appear to be at issue in the present case, however.

FN2. It is of no moment that the framed issues submitted to the arbitrator were imprecise.   As aptly explained in Metropolitan District Commission v. AFSCME, Superior Court, judicial district of Hartford, Docket No. CV 94 0705133 (May 8, 1996, Corradino, J.) “[I]t is ․ true that whether or not a submission is ‘unrestricted’ or ‘restricted’ is not to be determined by the language used by the parties in making the submission to the arbitrators-that is, whether that language contains restrictive language.   The actual language used in the submission must be interpreted in light of the collective bargaining agreement ․ To posit that the submission here was unrestricted merely because the submission language contains no restrictive language gets things ․ exactly backwards.   In other words, if the collective bargaining agreement were looked at separately from the submission language and it were to be concluded for one reason or another that in fact the arbitrator had restricted authority, how can it credibly be said that the restrictive language of the agreement is waived merely because the submission did not refer to the restrictive language of the agreement.”.  FN2. It is of no moment that the framed issues submitted to the arbitrator were imprecise.   As aptly explained in Metropolitan District Commission v. AFSCME, Superior Court, judicial district of Hartford, Docket No. CV 94 0705133 (May 8, 1996, Corradino, J.) “[I]t is ․ true that whether or not a submission is ‘unrestricted’ or ‘restricted’ is not to be determined by the language used by the parties in making the submission to the arbitrators-that is, whether that language contains restrictive language.   The actual language used in the submission must be interpreted in light of the collective bargaining agreement ․ To posit that the submission here was unrestricted merely because the submission language contains no restrictive language gets things ․ exactly backwards.   In other words, if the collective bargaining agreement were looked at separately from the submission language and it were to be concluded for one reason or another that in fact the arbitrator had restricted authority, how can it credibly be said that the restrictive language of the agreement is waived merely because the submission did not refer to the restrictive language of the agreement.”

FN3. General Statutes § 52–418(3) provides, in relevant part:  “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides ․ any judge thereof, shall make an order vacating the award if it finds any of the following defects ․ (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 ․.  FN3. General Statutes § 52–418(3) provides, in relevant part:  “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides ․ any judge thereof, shall make an order vacating the award if it finds any of the following defects ․ (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 ․

FN4. The plaintiff did refer to the rules of the American Arbitration Association in its memorandum, but they did not state that these rules were used in connection with the present arbitration..  FN4. The plaintiff did refer to the rules of the American Arbitration Association in its memorandum, but they did not state that these rules were used in connection with the present arbitration.

FN5. Granted, the grievant in this case cannot even be rightly considered a party.   See Housing Authority of City of Hartford v. Local 1161, 1 Conn.App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984) (holding that unless a collective bargaining agreement provides for a personal right to seek arbitration, an employee subject to the agreement is not a “party to the arbitration” under § 52–417).   The collective bargaining agreement in this case does allow for individuals to pursue grievances, but not initiate arbitration.   Thus, the grievant is only a witness, albeit an important one.   All references to rules which allow for arbitration to proceed and mandate a decision on the merits in the absence of party are therefore included by analogy, because if arbitrators must weigh evidence in the absence of a party, surely they must also in the absence of a witness..  FN5. Granted, the grievant in this case cannot even be rightly considered a party.   See Housing Authority of City of Hartford v. Local 1161, 1 Conn.App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984) (holding that unless a collective bargaining agreement provides for a personal right to seek arbitration, an employee subject to the agreement is not a “party to the arbitration” under § 52–417).   The collective bargaining agreement in this case does allow for individuals to pursue grievances, but not initiate arbitration.   Thus, the grievant is only a witness, albeit an important one.   All references to rules which allow for arbitration to proceed and mandate a decision on the merits in the absence of party are therefore included by analogy, because if arbitrators must weigh evidence in the absence of a party, surely they must also in the absence of a witness.

Hale, Robert J., J.T.R.