15 AFSCME AFL CIO v. Town of Ledyard (2015)

MEMORANDUM OF DECISION ON MOTION TO VACATE ARBITRATION AWARD (# 100.31)

The plaintiff union, named in the subject arbitration award as “Local 2693L, AFSCME” (the union), filed this action pursuant to General Statutes § 52–418 on September 8, 2014, on behalf of its member, James A. Grzesiak (the grievant), to vacate the award of a State Board of Mediation and Arbitration panel of three arbitrators (the panel).  The union filed part of the record on October 31, 2014, and the respondent, Town of Ledyard (the town), supplemented the record on November 17, 2014.¹  The union filed its brief on December 1, 2014, and the town filed its brief on January 8, 2015.  Oral argument on the application was heard on June 8, 2015.

FACTS

The essential facts are those found by the panel, which are not subject to judicial review.  Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, 316 Conn. 618, 638, 114 A.3d 144 (2015).

The grievant is a nineteen year veteran of the town's Police Department.  He was arrested on January 21, 2013, following an incident that involved allegations of domestic violence, specifically disorderly conduct and assault, in an altercation with Joshua Thibeault (Thibeault), the eighteen year old son of the grievant's girlfriend, Ruby York (York).  The incident occurred at the home of the grievant and York. The night before the incident, Thibeault had been invited to come live with the grievant and York.

On January 21, York and Thibeault, while hanging curtains in Thibeault's room, began to argue.  There was some loud yelling.  The grievant heard the yelling and went to investigate.  Although York's safety was never at issue,² the grievant got in an argument with Thibeault.  The argument became a physical altercation.  Thibeault stated that, contrary to the grievant's claim of only two punches, the grievant punched him “multiple (ten) times.”  York corroborated Thibeault's account and the panel found the grievant's “account as to the number of punches conflicts with the number of bruises and cuts on Thibeault's face.”

The panel found “no credible evidence in the record to explain or verify why the [g]rievant could not take steps to defuse the situation ․ After all, he had received prior training in assessing and diffusing [sic] difficult situations.  Likewise there is no explanation as to why the [g]rievant did not call 911 for help.  These facts, along with other inconsistencies in the record, tarnish the credibility and weight of the [g]rievant's account ․” It was York who separated the grievant and Thibeault.  When Thibeault got a baseball bat, the grievant, “instead of defusing the situation, told Mr. Thibeault to take his best shot.  Despite the fact that Thibeault did not attack him it is difficult to see why the [g]rievant would kindle the flame of emotion.”

The grievant was arrested by state police troopers, who asked him to surrender his service weapon and other firearms.  Five handguns were seized.  After several hours in custody, the grievant was released, one of the conditions of release being that the grievant not use or possess a dangerous weapon.  At first, the town placed the grievant on paid administrative leave and suspended his police powers.  On January 22, the Mayor requested an investigation by the state police, which was promptly done:  the investigation, completed on January 24, found that the grievant had violated “multiple provisions of the Connecticut State Police manual and the Ledyard Police Department regulations,” including “engaging in a physical alter[c]ation” and “engaging in conduct that would embarrass the police department.”  On January 29, the town changed the grievant's administrative leave to unpaid leave because of his inability to carry a firearm.

The grievant had a disciplinary record for a series of lesser offenses, including three suspensions without pay in 2008 (for inefficiency and failure to comply with assignments), 2010 (following a complaint of harassment by York), and 2012 (for threatening and intimidation of several parties while in uniform and driving a town patrol car).³  Based on his record, the town had concluded that the grievant's “demeanor reflected ‘a clear pattern of unprofessionalism ․’ “

Against that background, the town held a predisciplinary hearing on April 26, 2013, on the charges of “Conduct unbecoming an officer[;] Uncivil conduct [;] Engaging in domestic violence[;] Conduct resulting in prolonged inability to carry your service weapon[;  and] Failure to be honest and forthcoming with the State Police regarding your firearms in the process of securing the incident site.”  The panel found that, except to claim he had a document (which he refused to allow town officials to inspect) showing the criminal charges from the subject incident had been dismissed,⁴ the grievant “did not rebut the charges against him, ․ or offer any mitigating circumstances” or otherwise respond to the charges.  The court infers from this finding of the panel that, at the predisciplinary hearing, the grievant did not claim he had a right under General Statutes § 53a–19 to do what he did or that, because of that statute, it would violate public policy to terminate his employment as a police officer.

After the hearing, and effective that same day, April 26, 2013, the town's Mayor terminated the grievant's employment based on the five grounds stated above, the state police investigation report, and “the existence of a clear progressive discipline in the Grievant's prior discipline.”

The union's grievance of the termination of the grievant's employment eventually was arbitrated by the panel, which issued the award sought in this action to be vacated.  “Was there just cause to terminate James Grzesiak's employment with the Town of Ledyard on April 26, 2013?” was the first issue submitted to the panel.⁵  After three hearings, the panel, on August 13, 2014, issued the subject award in nine pages of single-spaced text (the award).

DISCUSSION

Arbitration is a favored method of dispute resolution.  See International Union v. Fafnir Bearing Co., 151 Conn. 650, 653–54, 201 A.2d 656 (1964).  All reasonable presumptions are to be made in favor of an arbitration award.  Board of Education v. AFSCME, Council 4, Local 287, 195 Conn. 266, 271, 487 A.2d 553 (1985).

The ground of the present application is that “the award violates a clear, dominant, and well-defined public policy of the state ․ and that 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, all in violation of Conn. Gen. Stats.  Sec. 52–418 ․” ⁶ In particular, the union claims that a) the grievant was terminated for “allegedly engaging in the crime of ‘domestic violence’ “;  b) the grievant defended his actions based on General Statutes § 53a–19, concerning use of force in the defense of oneself or another; ⁷  and c) the evidence supported the grievant's belief that he was justified in using force against a third person.

The union has the burden of clearly demonstrating that the award is illegal or conflicts with public policy.  South Windsor v. South Windsor Police Union Local 1480, Council 15, 255 Conn. 800, 816, 770 A.2d 14 (2001) (“The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated.”);  see Stratford v. AFSCME, Council 15, Local 407, 315 Conn. 49, 105 A.3d 148 (2014) (concluding that grievant's behavior was not so egregious that award violated public policy).  Because the union does not claim the award is illegal, its burden is to prove, first, that “the award implicates [an] explicit, well-defined, and dominant public policy.”  (Citations omitted.)  Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, supra, 316 Conn. 630–31.  The union's burden includes adducing evidence sufficient to invalidate the award.  See Hartford v. Local 308, 171 Conn. 420, 431, 370 A.2d 996 (1976).  The submission being unrestricted, the court reviews neither claims of error of law nor claims of error of fact.  See Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 273 Conn. 86, 93, 868 A.2d 47 (2005).

In essence, the union's challenge to the award is both legal—the claim that § 53a–19 articulates an “explicit, well-defined, and dominant” public policy that is violated by enforcement of the award—and factual, in that the union claims the grievant acted in a manner permitted by § 53a–19.⁸  On the legal question, the union claimed at oral argument that the statute is a “safe harbor” from both criminal punishment and employment discipline.  The union offers no authority for that proposition, and the court finds none.  The first and fundamental question is this:  what is the explicit, well-defined, and dominant public policy the union claims to be violated by enforcement of the award, i.e., by termination of the grievant?  The union implicitly, but essentially, argues that the policy is this:  one may not be disciplined in his or her employment for “using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose ․” § 53a–19(a).  (The union does not claim that the panel properly could reasonably find just cause for some discipline but not for termination.) § 53a–19 does not explicitly articulate such a policy, let alone define it with sufficient clarity to apply it to the present case.  Indeed, there is nothing in the statute from which such a policy may reasonably be inferred.  There is certainly nothing in the statute from which to infer dominance of any such policy over employers' rights to require integrity and the perception of integrity of their employees, to impose and enforce reasonable and lawful discipline of their employees, and to maintain the morale of other employees and of the public.  To the contrary, the statute, being part of the state Penal Code;  General Statutes § 53a–1;  only explicitly applies to statutory offenses and to the defense of prosecutions for such offenses.  General Statutes § 53a–2.

In the interstices between the union's legal and factual claims, even if § 53a–19 were an explicit, well-defined, and dominant public policy for present purposes, the statute is explicitly conditional, even as a defense to criminal prosecution:  only reasonable physical force upon another person is allowed;  that force must be to defend oneself or a third person from what the actor reasonably believes to be the use or imminent use of physical force;  and the actor may only use such degree of force which he reasonably believes to be necessary for such purpose.  The union admits that § 53a–19(a) would not be a legitimate defense if the grievant “was the initial aggressor or if he provoked Mr. Thibeault to use physical force.” ⁹  The clear import of the award is that the panel found that the grievant, not Thibeault, was the initial aggressor and that the grievant acted to provoke Thibeault to use physical force (at least with the baseball bat—an exhorted “best shot” which, fortunately, Thibeault did not take).  More generally, the award clearly finds the grievant's credibility to be poor.  This court cannot second-guess the findings of the panel, whether specific or general.  Burr Road Operating Co. Company II, LLC v. New England Health Care Employees Union, District 1199, supra, 316 Conn. 638.  Based on this analysis, the court finds that the union has failed to bear its burden of proof of the first requirement for vacating an arbitration award on public policy grounds, i.e., that the award implicates any explicit, well-defined, and dominant public policy.  No such policy having been proven, there is no point, let alone need, to discuss whether enforcement of the award actually violates public policy.

Moreover, the union does not claim, let alone establish, that a police officer's employment can only be terminated for criminal conduct, particularly with the disciplinary history of the grievant.  Even if the panel had based its award solely on its finding that the dropping of criminal charges against the grievant was irrelevant to the finding of good cause for termination of the grievant, this court would find that the union had failed to bear its burden of proof for vacatur of the award.  But that finding and the domestic violence finding are not the only bases for the panel's finding of good cause.  The union's application—based as it is on the grievant's version of the subject incident—barely acknowledges the fact that there are grounds other than engaging in domestic violence on which the town's termination of the grievant's employment was based. § 53a–19 is not claimed to be a public policy preventing the town from terminating the grievant's employment for conduct unbecoming an officer,¹⁰ uncivil conduct,¹¹ conduct resulting in prolonged inability to carry a service weapon,¹² or failure to be honest and forthcoming with the state police regarding the grievant's firearms.

The applicant has failed to bear its burden of proof that the panel's award must be vacated because it may not be enforced on public policy grounds.  Therefore, the application is denied.

Cole–Chu, J.

FOOTNOTES

FN1. Neither party submitted transcripts of the arbitration hearings.  Where, as here, the submission is unrestricted, the court will neither review the evidence considered by the panel nor claims of error or fact.  See Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Insurance Co., 273 Conn. 86, 93, 868 A.2d 47 (2005)..  FN1. Neither party submitted transcripts of the arbitration hearings.  Where, as here, the submission is unrestricted, the court will neither review the evidence considered by the panel nor claims of error or fact.  See Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Insurance Co., 273 Conn. 86, 93, 868 A.2d 47 (2005).

FN2. Here, for the first of three times, the panel uses the word “arguably” in a way that is questionable.  In this instance, on pages 2–3 of the award, the panel says, “[the grievant] originally testified that he went there fearing for York's safety.  However, the record arguably reflects that Ms. York's safety was never at issue.  Nonetheless, Mr. Grzesiak engaged in an argument with Mr. Thibeault.”  Also on page 3, the panel states, “[d]espite the fact that Thibeault did not attack him it is difficult to see why the [g]rievant would kindle the flame of emotion.  This type of behavior seems to show a pre-disposition which permeates previous incidents whereby discipline was imposed.  Together with other unexplained conduct this arguably discredits the [g]rievant's ․ defense.”  On page 7, the panel states, “[i]n our view, the [g]rievant is a trained professional who arguably has exhibited inappropriate aggressive and intimidating behavior in previous occasions and has been admonished to correct this behavior.”  In light of the context—the entire award and the record—the court concludes that the panel found as true the three findings to which it applied the word “arguably.”  The court also finds that, even if “arguably” is interpreted as “might reasonably be claimed to,” or the like, its use has no effect on the validity or enforceability of the award on public policy or any other ground..  FN2. Here, for the first of three times, the panel uses the word “arguably” in a way that is questionable.  In this instance, on pages 2–3 of the award, the panel says, “[the grievant] originally testified that he went there fearing for York's safety.  However, the record arguably reflects that Ms. York's safety was never at issue.  Nonetheless, Mr. Grzesiak engaged in an argument with Mr. Thibeault.”  Also on page 3, the panel states, “[d]espite the fact that Thibeault did not attack him it is difficult to see why the [g]rievant would kindle the flame of emotion.  This type of behavior seems to show a pre-disposition which permeates previous incidents whereby discipline was imposed.  Together with other unexplained conduct this arguably discredits the [g]rievant's ․ defense.”  On page 7, the panel states, “[i]n our view, the [g]rievant is a trained professional who arguably has exhibited inappropriate aggressive and intimidating behavior in previous occasions and has been admonished to correct this behavior.”  In light of the context—the entire award and the record—the court concludes that the panel found as true the three findings to which it applied the word “arguably.”  The court also finds that, even if “arguably” is interpreted as “might reasonably be claimed to,” or the like, its use has no effect on the validity or enforceability of the award on public policy or any other ground.

FN3. In sum, the town's prior discipline of the grievant included a two-day suspension after a March 26, 2010, arbitration panel's award reducing the town's five-day suspension;  a five-day suspension following a January 18, 2012, arbitrator's award reducing the town's ten-day suspension;  and a thirty-day suspension by the town's Mayor beginning November 9, 2012..  FN3. In sum, the town's prior discipline of the grievant included a two-day suspension after a March 26, 2010, arbitration panel's award reducing the town's five-day suspension;  a five-day suspension following a January 18, 2012, arbitrator's award reducing the town's ten-day suspension;  and a thirty-day suspension by the town's Mayor beginning November 9, 2012.

FN4. In the record, the union's arbitration exhibit 6 is described in the supplemental “Contents of the Record” (filed by the town without objection from the union) as “Case Status of Criminal Case Against J. Grzesiak as of October 25, 2013.”  That exhibit is a blank page—a curiosity of no relevance to this decision..  FN4. In the record, the union's arbitration exhibit 6 is described in the supplemental “Contents of the Record” (filed by the town without objection from the union) as “Case Status of Criminal Case Against J. Grzesiak as of October 25, 2013.”  That exhibit is a blank page—a curiosity of no relevance to this decision.

FN5. The plaintiff's statement of this first issue, “Did the City have just cause to terminate the employment of James Grzesiak?” differed in no important way.  The second issue submitted was contingent on the panel finding no just cause and is irrelevant to this decision..  FN5. The plaintiff's statement of this first issue, “Did the City have just cause to terminate the employment of James Grzesiak?” differed in no important way.  The second issue submitted was contingent on the panel finding no just cause and is irrelevant to this decision.

FN6. The union claims that the award goes beyond the scope of the issue submitted, but does not brief that claim.  The court deems that claim abandoned..  FN6. The union claims that the award goes beyond the scope of the issue submitted, but does not brief that claim.  The court deems that claim abandoned.

FN7. The part of § 53a–19 quoted in the application is from subsection (a):  “ ․ a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose ․”.  FN7. The part of § 53a–19 quoted in the application is from subsection (a):  “ ․ a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose ․”

FN8. The union claims that, “[h]ad the Town even considered the applicability of the public policy set forth in [§ ]53a–19, it could not have justified its decision to discipline Mr. Grzesiak.”  This court rejects that claim, for the reasons here stated and for the additional reason that the grievant did not ask the town to consider that defense..  FN8. The union claims that, “[h]ad the Town even considered the applicability of the public policy set forth in [§ ]53a–19, it could not have justified its decision to discipline Mr. Grzesiak.”  This court rejects that claim, for the reasons here stated and for the additional reason that the grievant did not ask the town to consider that defense.

FN9. Subsection (c) of § 53a–19 provides, in pertinent part, as follows:  “Notwithstanding the provisions of subsection (a) ․ a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force ․”.  FN9. Subsection (c) of § 53a–19 provides, in pertinent part, as follows:  “Notwithstanding the provisions of subsection (a) ․ a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force ․”

FN10. The Ledyard Resident Trooper's Office Policies and Procedures Manual provides, at Section 1.15:  “ ‘Conduct Unbecoming’ states that the following [s]ituations may be considered unbecoming an officer and may result in disciplinary action:  ․ ‘Engaging in conduct which would bring embarrassment upon the department.’ “.  FN10. The Ledyard Resident Trooper's Office Policies and Procedures Manual provides, at Section 1.15:  “ ‘Conduct Unbecoming’ states that the following [s]ituations may be considered unbecoming an officer and may result in disciplinary action:  ․ ‘Engaging in conduct which would bring embarrassment upon the department.’ “

FN11. The Ledyard Resident Trooper's Office Policies and Procedures Manual provides, at Section 1.5, “ ‘Civility’ states that ‘All personnel shall be civil, orderly, diligent, courteous, and patient in any situation and shall not engage in any altercation, physical or otherwise, whether on duty or not.  The exception to this is the use of force allowed by these regulations or statute.’ “.  FN11. The Ledyard Resident Trooper's Office Policies and Procedures Manual provides, at Section 1.5, “ ‘Civility’ states that ‘All personnel shall be civil, orderly, diligent, courteous, and patient in any situation and shall not engage in any altercation, physical or otherwise, whether on duty or not.  The exception to this is the use of force allowed by these regulations or statute.’ “

FN12. The internal affairs investigator concluded, according to the record, that “[Conn. State Police] A & O Manual:  14.2.2b(1)(a)1:  Serious Offenses, which may result in termination of employment.  Any conduct which results in the inability of an employee to perform his/her essential job function, e.g., ... suspension of police powers.  Recommendation:  Sustained.”  Also sustained were “14.2.2b(1)(a)3:  Serious Offenses, which may result in termination of employment.  Engaging in domestic violence involving physical abuse of any victim” and Ledyard Police Manual sections on “civility” and “conduct unbecoming.”.  FN12. The internal affairs investigator concluded, according to the record, that “[Conn. State Police] A & O Manual:  14.2.2b(1)(a)1:  Serious Offenses, which may result in termination of employment.  Any conduct which results in the inability of an employee to perform his/her essential job function, e.g., ... suspension of police powers.  Recommendation:  Sustained.”  Also sustained were “14.2.2b(1)(a)3:  Serious Offenses, which may result in termination of employment.  Engaging in domestic violence involving physical abuse of any victim” and Ledyard Police Manual sections on “civility” and “conduct unbecoming.”

Cole–Chu, Leeland J., J.