Town of Stratford v. 136 (2013)

MEMORANDUM OF DECISION

The applicant, Town of Stratford, pursuant to General Statutes § 52–418, applies to vacate an arbitration award issued by a three-person panel of the State of Connecticut, Department of Labor, State Board of Mediation and Arbitration.   The issue decided by the panel was whether the respondent, John Jasinski,¹ was terminated by Stratford “for good and sufficient cause in accordance with Article 10, Section 12” of the applicable collective bargaining agreement, and, if not, what would be the remedy?   The arbitrators unanimously found that Jasinski was terminated without cause within the meaning of the agreement and, among other things, order that he be reinstated.

Jasinski was hired by Stratford in 2005 as a paramedic in the emergency medical services department.   Relevant to the present application, Stratford terminated Jasinski on August 2, 2010.   The primary reason for his termination was that he returned to headquarters with a patient in the ambulance, rather than proceeding directly to the hospital, in order to drop off his co-worker, Jennifer Simmons.   She was a volunteer emergency medical technician ² that needed to get to her regular, paid employment.   Simmons was replaced in the ambulance by another emergency medical technician, Ann Marie Lee. Other reasons given for Jasinski's( termination were that he failed to report alleged unprofessional behavior of his co-worker towards the patient, and failed to sign and verify a report of the matter.

The union, on behalf of Jasinski, sought arbitration under the agreement.   The arbitrators were asked to answer two questions:  Was Jasinski “terminated for good and sufficient cause in accordance with Article 10, Section 12 [of the collective bargaining agreement?]   If not, what shall the remedy be?” ³

The arbitrators heard evidence over the course of two days, and the parties submitted post-hearing briefs.   The arbitrators issued their unanimous award in favor of Jasinski on July 19, 2012, concluding that Stratford did not have cause within the meaning of the agreement to terminate Jasinski.   The arbitrators ordered that Jasinski be reinstated to his position without back pay and subject to a fitness for duty examination.   The present application by Stratford seeking to vacate the award followed.   Jasinski opposes the application and cross moves to confirm the award.

The following findings of the arbitrators are relevant to a decision in this matter, and entitled to deference.   The crew swap at issue came to the attention of Donna Best, administrator of Stratford's emergency medical services, by way of an anonymous letter.   Best gave the letter to Ronald Ing, the director of human resources.   Ing began his own investigation of the incident because of his knowledge of an adverse history between Best and Jasinski, and Ing's knowledge that Jasinski had made claims of bias against Best in the past.   Specifically, Best had terminated Jasinski in 2007, but he was reinstated to the position, without back pay, pursuant to an arbitration award.

Nevertheless, Ing asked Best to become involved in the investigation.   He asked Best to contact Lee and request that Lee prepare a written statement of the crew swap in which Jasinski was involved.   Best gave Lee's written statement to Ing, and then was present at a meeting with Ing and Lee at which the incident was discussed.   Additionally, Ing and Best interviewed Simmons about the swap, and also had her give a written statement.   Finally, Best was present at a meeting with Ing, Jasinski and a union representative.   Jasinski was terminated as a result of the investigation.

The arbitrators considered the evidence and the memoranda submitted by the parties in rendering their written decision.   The strongly worded decision makes clear that the arbitrators were troubled by Best's involvement in the investigation, as shown by their collective comment that Ing should have had some management person other than Best assist him.

Based on Best's involvement, the arbitrators concluded “that the investigation was not conducted fairly and objectively,” and that Stratford “mischaracterized” and “overinflated” the incident “to justify discharging” Jasinski.   In support of that conclusion, the arbitrators noted the following:  “[W]e noticed that this was a non-emergency call and that the patient was stable and actually did not wish to be transported to the hospital but went as a result of the request of a relative.   We also note that crew swaps are performed routinely when the patient, as in this case, is stable.   [Stratford] also encourages crew swaps during non-emergency calls to avoid overtime ․ Further, [Jasinski] did not veer off far from the route to the St. Vincent's Hospital to drop off a volatile Simmons.   The route he was traveling took him near headquarters at precisely the time that Simmon's relief was scheduled to start work.”   The arbitrators additionally concluded that they “believe[d] that [Stratford] used the issue of the crew swap and added the two other issues as a pretext for terminating [Jasinski] thereby attempting to create a credible controversy to support its decision.   We unanimously find that the degree of discipline issued to [Jasinski] is not supported by the facts.”

Stratford applies to vacate the award for the following reasons.   There has been partiality on the part of the arbitrators.⁴  The arbitrators failed to provide the Town with “a full and fair hearing” in that they refused to consider certain evidence relating to past disciplinary actions against Jasinski.⁵  The award violates public policy “in that it is against the clear public policy of Connecticut prohibiting paramedics from acting against the welfare of their patients,” and “in that the panel has limited and constrained the Town's contractual and statutory management rights.”   Finally, Stratford claims that the award should be vacated because it “violates [General Statutes] § 52–418(a)(4) ⁶ in that the panel exhibited a manifest disregard of the public safety and state regulations ․”

The court will first set forth the applicable arbitration law.  “Arbitration is a creature of contract between the parties and its autonomy requires a minimum of judicial intrusion ․ The parties themselves, by the agreement of the submission, define the powers of the arbitrator ․ The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided ․ When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits.”  (Citations omitted;  internal quotation marks omitted.)  Bic Pen Corp. Corporation v. Local No. 134, 183 Conn. 579, 583–84, 440 A.2d 774 (1981).

In reviewing the arbitration award, the court must initially determine whether the submission to arbitration was restricted or unrestricted.  “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 even 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 ․

“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 ․

“The significance ․ of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do, but to determine the scope of judicial review of what they have done.   Put another way, the submission tells the arbitrators what they are obligated to decide.   The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrators' decision ․

“Even in the case of an unrestricted submission, we have ․ recognized three grounds for vacating an award:  (1) the award rules on the constitutionality of a statute ․ (2) the award violates clear public policy ․ [and] (3) the award contravenes one or more of the statutory proscriptions of § 52–418 ․ [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) because the arbitrator has exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”  (Internal quotation marks omitted.)  Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80–81, 881 A.2d 139 (2005).

Stratford asserts, pursuant to General Statutes § 52–418(a)(2), that the award should be vacated because there was partiality on the part of the arbitrators.   More particularly, Stratford claims that the award facially demonstrates the partiality of the arbitrators toward Jasinski.   This claim is based on certain comments made by the arbitrators in their decision to the extent that Stratford's investigation was unfair and its evidence “manufactured.”

A party seeking to vacate an arbitration award on the ground of evident partiality has the burden of producing sufficient evidence in support of the claim.  “An allegation that an arbitrator was biased, if supported by sufficient evidence, may warrant the vacation of the arbitration award ․ The burden of proving bias or evident partiality pursuant to § 52–418(a)(2) rests on the party making such a claim, and requires more than a showing of an appearance of bias ․ In construing § 52–418(a)(2), this court concluded that evident partiality will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration.   To put it in the vernacular, evident partiality exists where it reasonably looks as though a given arbitrator would tend to favor one of the parties.”   (Citations omitted;  internal quotation marks omitted.)  Alexson v. Foss, 276 Conn. 599, 617, 887 A.2d 872 (2006).⁷  Stratford's claims of the arbitrator's alleged improper construction of the facts relating to the crew swap or characterizations of the evidence, without more, does not constitute sufficient evidence of evident partiality to justify vacation of the award.   The assertions do not even give rise to the appearance of partiality by the arbitrators.   Therefore, Stratford has failed to meet its burden to establish evident partiality.

Stratford alleges, pursuant to General Statutes § 52–418(a)(3), that the award should be vacated for the reason that the arbitrators failed to provide Stratford with “a full and fair hearing” in that the panel refused to consider certain evidence relating to past disciplinary actions against Jasinski.   Under the facts and circumstances of the present case, this claim does not provide a reason for the court to vacate the arbitrator's decision.  “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 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.”  Bic Pen Corp. Corporation v. Local No. 134, supra, 183 Conn. 584.   Stratford's claim of an unfair hearing due to the preclusion of certain evidence, without more is merely an expression of Stratford's disagreement and dissatisfaction with the award.   As a result, the claim is rejected.

Stratford claims that the arbitrators' award violates public policy “in that it is against the clear public policy of Connecticut prohibiting paramedics from acting against the welfare of their patients,” and “in that the panel has limited and constrained the Town's contractual and statutory management rights.”   The court will separately consider each claim.

Stratford asserts that the award should be vacated because it violates public policy pertaining to public safety.   The alleged source of the public policy “is found in Connecticut laws and regulations regarding patient care, [and] in [Stratford's] policies ․” More particularly, Stratford points to Section 19a–179–9(f) of the Regulations of Connecticut State Agencies which provides, in part, that “[n]o person engaged in the provision of emergency medical services shall commit an act which is detrimental to the safety, health or welfare of a patient or the general public.”   Stratford also cites to case law for the general proposition that patient care should be a priority of a health care provider.

The court will first address the scope of review regarding Stratford's public policy claim.  “Ordinarily, where there is a consensual, unrestricted submission to arbitration, the only question is whether the award conforms to the submission ․ One exception to that rule, however, is where the award violates clear public policy ․ Where a party challenges an award on the ground that it violates public policy, de novo review is in order if the challenge has a legitimate, colorable basis ․ That de novo review is limited, however, to the two critical questions:  (1) whether there is an explicit, well-defined and dominant public policy and (2) whether the award violates that policy ․ It does not extend to the facts found by the arbitrator.”  Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199, 142 Conn.App. 213, 223–24 (2013).  “The public policy exception applies only when the award is clearly illegal or clearly violative of a strong public policy.”  Garrity v. McCaskey, 223 Conn. 1, 7, 612 A.2d 742 (1992).

This necessarily means, therefore, that, if the plaintiff has established a legitimate, colorable basis for its public policy challenge to the arbitrators' reinstatement decision, although the court defers to the historical facts found by the arbitrators, their conclusion of no just cause for termination is not entitled to deference.   Instead, it is subject to de novo review by the court to determine whether it is in violation of public policy.

The court agrees with Stratford that Connecticut has a clear, well-defined and dominant public policy of protecting patients from “detrimental acts” of emergency medical services personnel.   Simply put, we expect that such personnel will provide reasonable care and treatment to patients.

The court also concludes that Stratford's claim that this policy was violated has a colorable and legitimate basis.   Therefore, the court will apply de novo review to the issue of whether the reinstatement of Jasinski violated public policy.

The court concludes that the award in the present action does not violate public policy.   There was no evidence that demonstrated that Jasinski's returning to headquarters for a crew swap prior to proceeding to the hospital with the patient in the ambulance was a “detrimental act” or an act that adversely affected the patient's safety.   In fact, Stratford admits that the patient was “delivered safely.”   Moreover, the arbitrators found that the patient was taken to the hospital on a non-emergency basis at the request of a relative and was in stable condition.   Additionally, the arbitrators credited the evidence that “crew swaps are performed routinely when the patient ․ is stable ․ [and that Stratford] encourages crew swaps during nonemergency calls to avoid overtime.”

This case is distinguishable from Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199, supra, 142 Conn.App. 213.   In that case, an employee of a nursing facility was terminated because she failed to timely report patient abuse committed by another employee.   Id., 221.   The matter proceeded to arbitration, and the arbitrator concluded that, under the applicable collective bargaining agreement, the plaintiff lacked cause to terminate the employee that failed to timely report the abuse.  Id., 223.   The plaintiff sought to vacate the award claiming that it violated the public policy of Connecticut of protecting nursing facility residents from abuse.  Id., 223.   The trial court denied the plaintiff's application to vacate and found that the award did not violate public policy.   Id., 215.   The Appellate Court agreed with the plaintiff and reversed the trial court's decision.  Id. The Court applied de novo review to the award and concluded, under the particular circumstances, that the award violated the clear public policy of protecting patients from abuse and the associated timely reporting of abuse or suspected abuse.  Id., 224–27.   The Court found that the award “demonstrated [the employee's] inability to meet the demands of the public policy of protection and reporting ․”

In the present case, the award did not show the inability of Jasinski to meet the demands of the public policy of protecting patients from detrimental acts of emergency personnel such as himself.   Rather, the award reflected the evidence that Jasinski did not take any actions adverse to the plaintiff's health and safety.   There is no evidence of any injury suffered by the patient.   The patient was taken by ambulance to the hospital only because a relative asked the patient to go to the hospital, presumably to be examined.   Therefore, the court rejects Stratford's claim that the award should be vacated because it violates public policy.⁸

Stratford claims that the award violates public policy in that it improperly interferes with its management rights bargained for under the collective bargaining agreement, which agreement is governed by the statutory municipal employees retirement act.   The crux of Stratford's argument is that the arbitrators “essentially nullified [Stratford's] management rights to utilize ․ Best to investigate this grievance.”   This claim has no basis in the award.   In their award, the arbitrators merely commented that it would have been more prudent of Ing to complete his investigation without any involvement of Best. The only affirmative relief given by the arbitrators in their award pertained to Jasinski.   Stratford's assertion wholly lacks merit, and is rejected.

In view of the foregoing, the court denies Stratford's application to vacate the award (115.00) and grants Jasinski's application to confirm (123.00) the award.

TYMA, J.

FOOTNOTES

FN1. Jasinski is a member of the International Federation of Professional and Technical Engineers, Local 136, which union is also a respondent in these proceedings..  FN1. Jasinski is a member of the International Federation of Professional and Technical Engineers, Local 136, which union is also a respondent in these proceedings.

FN2. In the purported parlance of the profession, Jasinski returned to headquarters to perform a “crew swap.”.  FN2. In the purported parlance of the profession, Jasinski returned to headquarters to perform a “crew swap.”

FN3. At oral argument, the parties acknowledged and agreed, and the court finds, that the present case was a consensual, unrestricted submission..  FN3. At oral argument, the parties acknowledged and agreed, and the court finds, that the present case was a consensual, unrestricted submission.

FN4. General Statutes § 52–418(a)(2) provides, in pertinent part, that an award shall be vacated if the court finds that “there has been evident partiality ․ on the part of any arbitrator.”.  FN4. General Statutes § 52–418(a)(2) provides, in pertinent part, that an award shall be vacated if the court finds that “there has been evident partiality ․ on the part of any arbitrator.”

FN5. Stratford advances this claim under General Statutes § 52–418(a)(3), in pertinent part, that an award shall be vacated if the court finds that “the arbitrators have been guilty ․ in refusing to hear evidence pertinent and material to the controversy ․”.  FN5. Stratford advances this claim under General Statutes § 52–418(a)(3), in pertinent part, that an award shall be vacated if the court finds that “the arbitrators have been guilty ․ in refusing to hear evidence pertinent and material to the controversy ․”

FN6. General Statutes § 52–418(a)(4) provides that an 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.”.  FN6. General Statutes § 52–418(a)(4) provides that an 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.”

FN7. “McNeiece Construction Co. v. Tandem Foods Corp., Superior Court, judicial district of New Haven, Docket Nos 341121 & 342779 (February 5, 1993, Hodgson, J.) (8 Conn. L. Rptr. 327), presents a good example the type of favoritism required to establish bias.   In that case, the arbitrator openly made remarks that reasonably [could have been taken] to indicate his view that lawyers of a particular ethnicity were likely to make specious, unreliable or unduly aggressive claims ․ In deciding to vacate the award under § 52–418(a)(2), the court explained that [t]he remarks of the arbitrator raise[d] serious questions as to the fairness of his review of the positions taken by the respondents and their counsel.”   (Citations omitted;  internal quotation marks omitted.)   AFSCME Co. 4 Local v. Dept. of Corrections, Superior Court, judicial district of Hartford, Docket No. CV 08 4035842 (November 2, 2009, Langenbach, J.T.R.).Conversely, in Alexson v. Foss, the court stated “[o]ther than pointing out evidence that the arbitrator may have overlooked or discredited in making the award, the plaintiff does not mention any conduct on the arbitrator's part that indicates he was anything less than the impartial authority that they had bargained for with the defendants.   Inasmuch as, without more, adverse rulings do not amount to evidence of bias ․ we conclude that the trial court correctly determined that the plaintiff has not adduced sufficient evidence of evident partiality or bias by the arbitrator justifying vacatur of the award under § 52–418(a)(2).”  (Citations omitted;  internal quotation marks omitted.)  Alexson v. Foss, supra, 276 Conn. 617–18..  FN7. “McNeiece Construction Co. v. Tandem Foods Corp., Superior Court, judicial district of New Haven, Docket Nos 341121 & 342779 (February 5, 1993, Hodgson, J.) (8 Conn. L. Rptr. 327), presents a good example the type of favoritism required to establish bias.   In that case, the arbitrator openly made remarks that reasonably [could have been taken] to indicate his view that lawyers of a particular ethnicity were likely to make specious, unreliable or unduly aggressive claims ․ In deciding to vacate the award under § 52–418(a)(2), the court explained that [t]he remarks of the arbitrator raise[d] serious questions as to the fairness of his review of the positions taken by the respondents and their counsel.”   (Citations omitted;  internal quotation marks omitted.)   AFSCME Co. 4 Local v. Dept. of Corrections, Superior Court, judicial district of Hartford, Docket No. CV 08 4035842 (November 2, 2009, Langenbach, J.T.R.).Conversely, in Alexson v. Foss, the court stated “[o]ther than pointing out evidence that the arbitrator may have overlooked or discredited in making the award, the plaintiff does not mention any conduct on the arbitrator's part that indicates he was anything less than the impartial authority that they had bargained for with the defendants.   Inasmuch as, without more, adverse rulings do not amount to evidence of bias ․ we conclude that the trial court correctly determined that the plaintiff has not adduced sufficient evidence of evident partiality or bias by the arbitrator justifying vacatur of the award under § 52–418(a)(2).”  (Citations omitted;  internal quotation marks omitted.)  Alexson v. Foss, supra, 276 Conn. 617–18.

FN8. Stratford also refers to its EMS Operations Manual in making its public policy argument The Manual, however, does not constitute public policy.   Even if it did, the court's analysis of the issue would yield the same result.   The court similarly rejects Stratford's liability argument..  FN8. Stratford also refers to its EMS Operations Manual in making its public policy argument The Manual, however, does not constitute public policy.   Even if it did, the court's analysis of the issue would yield the same result.   The court similarly rejects Stratford's liability argument.

Tyma, Theodore R., J.