Opinion
No. 113442
December 2, 1997
MEMORANDUM OF DECISION
I
This is an application filed pursuant to General Statutes § 52-418 (a) and Practice Book § 525 by Connecticut Independent Labor Union, Local 24 (hereinafter the Union) to vacate an arbitration award of the State Board of Mediation and Arbitration (hereinafter the Board) arising out of a controversy between the Union, acting on behalf of Francis Davis (hereinafter the Grievant), and the City of Norwich (hereinafter the City).
For reasons stated below, the application to vacate the award is denied.
The basic facts which give rise to these proceedings are not greatly in dispute and may be summarized as follows.
The Union and the City are parties to a collective bargaining agreement which contains an arbitration clause. The Grievant, who was employed as a mechanic with the City's public works department, suffered numerous spinal injuries. On November 8, 1995, the Grievant provided the City with a report indicating that he suffered from a physical condition which affected his ability to perform his duties as a mechanic.
On December 11, 1995, a meeting was held with the Grievant together with representatives of the City and the Union. After the meeting, the Grievant was transferred to a garage where he performed custodial duties, although he continues to receive mechanic's pay.
The situation continued through March, 1996 when it was confirmed that the Grievant could perform his regular duties as a mechanic. At that time he was returned to his regular position.
The Grievant was not allowed to perform overtime work during the period he was employed as a custodian, although he claims it was available. In February of 1996, he filed a grievance with the City claiming that he had not received an equal share of overtime distribution as required by the Collective Bargaining Agreement, Article III, Section 6 while he was assigned to light duty. His claim covered the period from December 31, 1995 through April 14, 1996.
Section 6. The Employer will make every reasonable effort to distribute overtime equally among employees in their respective departments.
The matter not being amicably resolved, pursuant to the contract it came before a panel of the Board for a hearing on April 22, 1997. In preparation for the hearing, the attorney for the City drafted a statement of the issue to be submitted to the arbitration panel selected to hear the matter. The attorney for the Union did not agree to this submission. After some negotiations, however, pen and ink changes were made and the following modified version of the statement was signed and submitted to the panel.
Statement of Issue by the City of Norwich
IN the Matter of City of Norwich and CILU, #24
Whether the City of Norwich violated the contract [ Article III, Section 6] by failing to offer overtime [ to] Francis Davis, a mechanic employed by the City of Norwich Department of Public Works, [(Bold type indicates interlined language.)after he was placed on light duty]fn [ from December 9, 1995 through April 14, 1996. If so, what shall be the remedy?]fn
Upon conclusion of the hearing, it was agreed that the parties would submit briefs. The Union's attorney received the post-hearing brief of opposing counsel on June 19, 1997. After reviewing this brief, the attorney for the Union wrote to the Board strenuously objecting to the inclusion of alleged facts not in evidence before the panel in the City's brief.
The Board does not appear to have responded to the Union attorney's letter.
On July 31, 1997, the Board issued the arbitration award. In the award, the Board stated the question submitted as:
Whether the City of Norwich violated the contract by failing to offer overtime to Francis Davis, a mechanic employed by the City of Norwich, Department of Public Works, after he was placed on light duty. If so, what shall be the remedy?
The question was answered by the award as follows:
AWARD: No, the City of Norwich did not violate the contract by failing to offer overtime to Francis Davis, a mechanic employed by the City of Norwich, Department of Public Works, after he was placed on light duty.
By the present application, the Union seeks to vacate the award under the provisions of General Statutes § 52-418 (a).
In its brief and oral argument, the Union has raised two separate claims which must be considered.
I. That in making the award, the Board relied upon unsubstantiated statements made in the City's post-hearing brief and thereby denied the Union a fair hearing.
II. In making the award, the Board proceeded on a submission of issue which was different from the submission made by the parties.
In the case at bar, it was necessary for the court to receive evidence so that the claim of the parties could be placed on the record and resolved. In so doing, the court proceeded with caution ever mindful of the restraints which limit the court's authority in proceedings under General Statutes § 52-418 (a). No attempt has been made to usurp the authority of the Board or to substitute the court's findings for the Board's findings. Norwich v. Norwich Fire Fighters, 173 Conn. 210, 214 (1977).
The Supreme Court of this state has for many years wholeheartedly endorsed arbitration as an effective alternate method of settling disputes "intended to avoid the formalities, delay, expense and vexation of ordinary litigation. When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention. Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator's powers, the parties are generally bound by the resulting award. Since the parties consent to arbitration, and have full control over the issues to be arbitrated, a court will make every reasonable presumption in favor of the arbitrator's acts and proceedings. The party challenging the award bears the burden of producing the evidence sufficient to invalidate or avoid it, and only upon a showing that it falls within the proscriptions of § 52-418 of the General Statutes, or procedurally violates the parties' agreement will the determination of an arbitrator be subject to judicial inquiry." O G/O'Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 145-146 (1987). (Citations and internal quotation marks omitted.)
The principal claim advanced by the Union is that the City included in its post-hearing brief facts which were not placed in evidence before the panel and that the panel based its award on these alleged facts.
The submission of evidence for the first time in a post-hearing brief would be improper. Such evidence would not be under oath and opposing counsel would not have an opportunity to respond to it.
The Union claims that the offending allegations were set forth on page four of the City's brief. The specific language which the Union claims was improper may be found in the following lines on page four.
". . . all sides agreed that the grievant would be placed on light duty until the City of Norwich conducted a functional job analysis (the assignment was performed by Conn. Care, a specialist in this type of study) and until the grievant was examined by Dr. Walter Becker of the Orthopedics Associates of Hartford. It was agreed that Dr. Becker would evaluate the grievant's ability to return to work as a mechanic in light of the functional job analysis to be done by Conn. Care. Conn. Care is a division of William Backus Hospital.
During the interim, Mr. Davis was not allowed to perform overtime assignments. . . ."
Although there was testimony concerning the meeting presented to the panel there are questions concerning the scope of such testimony. There does not appear to be any great question concerning discussions about the Grievant being placed on light duty or the procedure for his medical evaluation.
The Union strongly objects, however, to inclusion of the last sentence above quoted in the City's brief. The claim is that overtime eligibility was not discussed at the meeting, that there was never any agreement that the Grievant was not to perform overtime work and it was improper to include such a statement in the brief.
A careful reading of page four of the City's brief, however, does not indicate a claim that there was agreement with respect to overtime work. The sentence "During the interim, Mr. Davis was not allowed to perform overtime assignments" starts a new paragraph following the paragraph concerning agreement over medical evaluation and transfer to light duty. This sentence does not reflect a claim of agreement. The phrase "was not allowed" is more indicative of a management decision than a matter of accord.
Language in the award that "while the functional job analysis was being completed the Grievant was not allowed to perform overtime functions" is consistent with a finding that the Grievant's deprivation of overtime was based on a management decision and not a conclusion of any agreement based upon evidence improperly submitted.
Under the " City Position" section of the award the Board did not set forth any claim by the City that there had been an agreement that the Grievant would not perform overtime work. Certainly, if the Board had been proceeding on a conclusion that there was such an agreement based upon statements in the City's brief this crucial claim would have been mentioned.
The language of the Discussion section of the award could be construed to support the Union's agreement that the Board was relying on evidence of an argument reached at the December meeting with respect to overtime. This construction is not compelling and is inconsistent with the prior sections of the award.
In Main v. Main, 17 Conn. App. 670, 675 (1989), the Appellate Court held that in order to successfully attack a trial court's decision on a claim that the court erred in considering post-trial evidence contained in a post-trial brief a party must show that the court relied on matters not in evidence or not properly in evidence for the basis of its decision. Judicial review of arbitration awards is even more restrictive. Every reasonable presumption and intendment must be made in favor of the award and of the arbitration's acts and proceedings. AFSCME v. New Britain, 206 Conn. 465, 472 (1988).
It is also significant to note that the Union's attorney, by letter dated June 19, 1997, informed the Board of her concerns over the contents of the City's brief and her objections to the consideration of unsubstantiated evidence. The award was not issued until July 31, 1997, well after the Board had been notified of the Union's position. Considering the presumption and intendment which the court must make in favor of the award and the arbitration proceeding, it cannot be found that the Union was denied a full and fair hearing. AFSCME v. New Britain, supra, 206 Conn. 472.
In the last paragraph of the " Discussion" section of the award, the Board determined that the City had the right to determine what assignments were available to the Grievant and that the City acted reasonably. A finding by the Board that the City had this right, presumably under Article XXXII of the contract, is reasonable and the court has no authority to invalidate the finding. Costello Construction Corporation v. Teamsters Local 559, 167 Conn. 315, 318 (1974).
The Union has raised certain specific claims in support of its position that the award should be vacated. It is claimed that the Union was denied a full and fair hearing because the arbitration panel relied upon unsubstantiated claims first advanced in the City's brief. As noted above the record does not support this contention.
The Union also claims that the Board based its decision upon a mistake of fact. This, however, has not been proven.
It is also claimed that the award should be vacated because it violates public policy. In considering a challenge to an award based upon a claim that the award is contrary to public policy, the 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 an arbitrator's award 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. Watertown Police Union, local 541 v. Watertown, 210 Conn. 333, 339-40 (1984).
There is nothing to indicate that the Board here violated any specific public policy in its award. The public policy claim appears to be restatement of the basic claim that the Board failed to grant a fair hearing by considering improperly submitted evidence. This has not been established.
General Statutes § 52-418 (a)(3) provides that an arbitration award may be vacated if the arbitrators have been guilty of misconduct by an action in which the rights of any party have been prejudiced. Such misconduct has not been proven. The award, therefore, cannot be vacated upon any claim of misconduct.
It is also claimed by the Union that the award should be vacated under the provisions of subsection (4) of § 52-418 (a). Here it is claimed that the arbitration panel improperly relied on unsubstantiated statements contained in the City's post-hearing brief and in so doing exceeded its powers or imperfectly executed them.
It has not been established, however, that the Board exceeded its authority or improperly exercised its powers as alleged. Therefore, the award cannot be vacated under the provision of § 52-418 (a)(4).
The Union also claims that it was improper for the City to have attached certain exhibits to its post-hearing brief, which were not placed in evidence before the arbitration panel. These exhibits were medical in nature. Although the inclusion of exhibits not in evidence at the hearing in a post-hearing brief may not be proper, it cannot be found that these exhibits had any effect on the award or could in any way form the basis for vacating the award.
II
The evidence indicates that the statement of the arbitration issue in the award differs from the statement of the issue agreed to by the parties and submitted at the time of the hearing before the arbitration panel.
In order to decide whether the arbitrators have exceeded their authority, the reviewing court must examine the submission together with the award and determine whether the award conforms to the submission. Trumbull v. Trumbull Police, Local 1745, 1 Conn. App. 207, 212 (1984).
Here the discrepancy between the submission and the statement of the issue in the arbitration award is minimal. The reference to Article III, Section 6, of the contract was specifically mentioned in the UNION POSITION of the award clearly demonstrating that the Board was aware of the section of the contract which the Union claimed had been violated. A reading of the award also indicates that the Board was aware of the dates involved and the period during which, it was claimed, overtime was improperly denied. The reference to light duty stricken by the parties from the submission but included in the statement of the issue in the arbitration award is also not significant since it was agreed by all parties that the Grievant was in fact on light duty at the time he was denied overtime.
It must be concluded that despite the minor discrepancies noted the arbitration award fully conformed to the submission.
III
In summary, every reasonable presumption must be made in favor of the arbitrator's acts. The burden rests on the party attacking the award to produce sufficient evidence to invalidate such acts. Schwarzchild v. Martin, 191 Conn. 316, 327 (1983). In the case at bar, such evidence has not been presented. Arbitration awards are generally upheld and the courts must give great deference to arbitrators' decisions since arbitration is favored as a means of settling disputes. Wolf v. Gould, 10 Conn. App. 292, 298 (1987).
Accordingly, judgment is rendered denying the application to vacate the award.
Joseph J. Purtill Judge Trial Referee