Opinion
No. CV-08-4038540
November 25, 2008
MEMORANDUM OF DECISION
In this case the International Brotherhood of Police Officers, Local 731 (the "Union"), seeks to vacate an arbitration award issued by J. Larry Foy, Esq. (The "Arbitrator"). The Award resulted from a grievance filed by the Union claiming that the Judicial Branch reassigned Joseph Gaetano and similarly situated employees from its Hartford lockup location to other facilities in the Hartford Judicial District in violation of the collective bargaining agreement (the "Contract") between the Judicial Branch and the Union.
Factual Background
In October 2007, Mr. Gaetano and other Judicial Marshals assigned to the Hartford lockup, including Anthony Anastasi, John Crowley, Andrew Hallums, Elsa Martinez, and Kenneth Montague, were reassigned to other posts within the Hartford Judicial District. An equal number of Judicial Marshals were reassigned from other posts within the Hartford Judicial District to the lockup.
Thereafter, the Union filed a grievance claiming that the reassignments out of the Hartford lockup violated certain provisions of the Contract because they were made without using seniority or written expressions of interest, and were, therefore, arbitrary and capricious. The grievance was heard and denied by the Judicial Branch and then was arbitrated in accordance with the provisions of the Contract.
At the arbitration hearing, the parties agreed upon the issue for arbitration: "[d]id the Branch violate Article XV, section 4 of the Contract when it reassigned Joseph Gaetano and similarly situated employees from the Hartford 24-hour lockup as alleged in the grievance? If so, what shall be the remedy?"
Article XV, section 4 of the Contract provides:
The employer shall solicit annually (July 1) written expressions of interest in assignment into or out of one of the two 24-hour lockups. Before making a reassignment decision of indefinite duration within the district, either into or out of one of the two 24-hour lockups, such expressions of interest will be considered. All job-related factors being equal, seniority will be the controlling factor when expressions of interest are used in the decision. Reassignment decisions under this section will not be subject to the grievance procedure unless such decisions are arbitrary or capricious.
The Arbitrator's Award was issued on June 15, 2008. The Award stated:
The Branch did not violate Article XV, Section 4 of the Contract when it reassigned Anthony Anastasi, Joseph Gaetano, Andrew Hallums and Elsa Martinez from the Hartford twenty-four (24) hour lockup as alleged in the grievance.
The Branch did violate Article XV, Section 4 of the Contract when it reassigned Kenneth Montague from the Hartford twenty-four (24) hour lockup as alleged in the grievance.
The remedy with regard to Montague shall be limited to that stated in the "Discussion" section of the award under the subsection "Remedy to Montague." Jurisdiction is retained if the parties are unable to agree on calculation of lost overtime to be paid to Montague.
The "Remedy to Montague" portion of the Award provided:
The remedy for this violation must be limited only to Montague. There are two arguably appropriate remedies. One is to order Montague reassigned to the 24-hour lockup on the same shift he worked before his October 19, 2008 reassignment. This, however, could have unforeseen adverse impact on operations and on other bargaining unit employees. In addition, even if he were returned to the 24-hour lockup assignment, Montague would be subject to reassignment at some point in the foreseeable future. These complications militate against ordering Montague returned to the 24-hour lockup assignment at this time.
There appears to be a typographical error in this date, which should be October 19, 2007.
The second arguably appropriate remedy is to make Montague whole for overtime earnings he would have worked had he not been prematurely reassigned out of the 24-hour lockup on October 19, 2007. The opportunity for overtime earning was a very important consideration both for employees who wanted to move to the 24-hour lockup and for those who did not want to leave that assignment. It is highly likely that Montague lost overtime opportunities directly as the result of his premature reassignment. If so, he should be made whole for those losses to the extent the Union can show that Montague actually would have accepted and worked those opportunities. The mere fact that an opportunity existed on a given day is not sufficient to conclude that Montague would have accepted and worked the overtime. An important indicia for that is Montague's previous history of accepting and working when overtime opportunities were available. Significantly, the arbitrary and capricious decision that resulted in Montague's premature reassignment resulted from an unintentional error as previously discussed. It therefore would be an unjust burden to the Branch to confer upon Montague a large windfall for overtime he has not actually worked. Thus, there will be a maximum limit to the lost overtime award that may be paid to Montague. That limit is a total of ten (10) days at the applicable overtime rate. No further lost overtime will accrue to Montague beyond the date of this award.
Discussion of the Law and Ruling
Arbitration is a favored method of dispute resolution, particularly in the area of labor-management relations and collective bargaining agreements. Plainfield Board of Education v. National Ass'n of Government Employees, 108 Conn.App. 35, 39, 947 A.2d 371 (2008); East Haven Board of Education v. East Haven Education Association, 66 Conn.App. 202, 207, 784 A.2d 958 (2001). Where the parties have agreed to arbitration, "[e]very reasonable inference is to be made in favor of the arbitral award and of the arbitrator's decision." Plainfield Board of Education v. National Ass'n of Government Employees, supra; New Haven Board of Education v. AFSCME, Council 4, Local 287, 195 Conn. 266, 271, 487 A.2d 553 (1985); Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 585, 440 A.2d 774 (1981). "Courts should be extremely reluctant to interfere with the decisions of arbitrators in the field of labor-management relations where arbitration is to be encouraged as a means of promoting tranquility and the prompt and equitable settlement of disputes." International Union v. Fafnir Bearing Co., 151 Conn. 650, 653-54, 201 A.2d 656 (1964).
This special deference to arbitration requires the courts to "undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution." Garrity v. McCaskey, 223 Conn. 1, 4, 612 A.2d 742 (1992) (quoting City of Hartford v. Connecticut State Board of Mediation Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989)). As a result, "arbitration awards are generally favored as a means of settling disputes." Steiner v. Middlesex Mutual Assurance Co., 44 Conn.App. 415, 437, 689 A.2d 1154 (1997).
In City of Bridgeport v. Connecticut Police Dep't Employees, 32 Conn.App. 289, 293-94, 628 A.2d 1336 (1993), the Court described the limited nature of judicial review of arbitration awards as follows:
Specifically, our review is limited to a comparison of the arbitrators award with the submissions, and to a determination of whether the award conforms to the submissions. Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 338-39, 555 A.2d 406 (1989); Greater Bridgeport Transit Dist. v. Amalgamated Transit Union, Local 1336, supra. The party seeking to vacate the award has the burden of demonstrating its nonconformity to the submission. Watertown Police Union Local 541 v. Watertown, supra, 339; Greater Bridgeport Transit Dist. v. Amalgamated Transit Union, Local 1336, supra. Every reasonable presumption will be made in order to sustain an award. Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 585, 440 A.2d 774 (1981); Trumbull v. Trumbull Police Local 1745, supra.
If the submission does not contain limiting or conditional language, then the submission is unrestricted. Bic Pen Corporation v. Local No. 134, supra, 584-85. If the submission is unrestricted, the award is final and binding, and cannot be reviewed for factual or legal error. Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985). In addition, if the submission is unrestricted, an arbitrator is not required to decide the issues presented according to law. Bridgeport v. Bridgeport Police Local 1159, supra, 106-07; Trumbull v. Trumbull Police Local 1745, supra, 213. Thus, "[w]here 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 . . ." (Citations omitted; internal quotation marks omitted.) Caldor, Inc. v. Thornton, supra, 340-41, quoting Bic Pen Corporation v. Local No. 134, supra, 584; Trumbull v. Trumbull Police Local 1745, supra.
In its Application to Vacate Arbitration Award, the Union alleges two bases for vacating the award. First, the Union claims that the award violated Connecticut General Statutes § 52-418(a)(4) on the ground that it was not mutual, final and definite. Second, the Union argues that the award exceeded the Arbitrator' s authority in that it was contrary to the collective bargaining agreement.
With respect to the issue of whether the award was sufficiently final and definite, the Court in Plainfield Board of Education v. National Ass'n of Government Employees, supra, considered a challenge to the validity of an arbitration award which provided that "[t]he [b]oard . . . shall apply the language of [a]rticle XXI pertinent to filling positions on an overtime basis to determine the [moneys] to be given bargaining unit members who were wrongfully denied the right to fill the absences of full-time employees up to a term of four (4) weeks." 108 Conn.App. at 38. Upholding the award, the Court rejected the Board of Education's claim that the calculation of the award was open to negotiation.
In State v. Connecticut Employees Union Indep., Inc., 46 Conn.App. 520, 524-25, 699 A.2d 307, cert. denied, 243 Conn. 948 (1997), the Court determined that an arbitrator is not required to present a detailed explanation as to how the grievant should be made whole. As long as he provides sufficient guidance for the parties to satisfy the award, it will be considered final and definite. Therefore, where, as here, the parties have sufficient guidance to determine the parameters of the remedy portion of an arbitration award, the award is mutual, final and definite and not subject to vacatur under Connecticut General Statutes § 52-418.
The Union further claims that the Award was not mutual, final and definite because it stated "[j]urisdiction is retained if the parties are unable to agree on calculation of the lost overtime to be paid to Montague." It relies on State v. AFSCME, Council 4, Local 1565, 49 Conn.App. 33, 713 A.2d 869 (1998), aff'd, 249 Conn. 474, 732 A.2d 762 (1999), for the proposition that retention of jurisdiction language in an arbitration Award is "reason enough for it to be vacated." Union Memorandum, p. 9. In that case, the Court upheld the trial court's decision to vacate an arbitration Award related to the termination of an employee because "the remedy remained open to negotiation at the time the award was rendered . . ." State v. AFSCME, Council 4, Local 1565, supra, at 37.
In Plainfield Board of Education v. National Ass'n of Government Employees, supra, the Board relied on State v. AFSCME, supra, and Rocky Hill Teachers' Ass'n v. Board of Education, 72 Conn.App. 274, 278, 804 A.2d 999, cert. denied, 262 Conn. 907, 810 A.2d 272 (2002), in its argument that the award was not final. The Court distinguished those two cases as follows:
The cases on which the board relies are distinguishable from the present circumstances. The board concedes that the language of the award in this case does not require the parties to engage in future negotiation, as was the situation in both AFSCME, Council 4, Local 1565, and Rocky Hill Teachers' Ass'n. Rather, the board argues that the award is "open to further negotiation" because the board does not possess the employment records required to determine payments under the award and because the damages period is unascertainable. In short, it argues that any payments that it would make to the bargaining unit employees pursuant to the award would be highly imprecise. As a result of its inability to calculate damages, the board contends that the award in this matter impermissibly leaves the remedy to the judgment of one of the parties and open to the possibility of further negotiation or litigation. We disagree with the board's equating its case, which may involve further negotiation, with those two cases, in which further negotiation was impermissibly required as part and parcel of the awards rendered in those cases.
The circumstances of this case are more akin to those in State v. Connecticut Employees Union Independent, Inc., 46 Conn.App. 520, 699 A.2d 307, cert. denied, 243 Conn. 948, 704 A.2d 801 (1997) . . . In the course of concluding that the award was sufficiently final and definite, and that the trial court improperly had granted the state's application to vacate, this court stated that "the trial court improperly substituted its judgment for that of the arbitrator because of a perceived lack of evidence and the imprecise nature of the award." Id., 525. The decision also noted that an arbitrator is not necessarily required to present a detailed explanation as to how the grievant should be made whole; if he or she provides sufficient guidance for the parties to satisfy the award, it will be considered final and definite. Id., 524-25; see also State v. Connecticut Employees Union Independent, Inc., 33 Conn.App. 737, 739, 742, 638 A.2d 619 (1994) (holding that arbitration award stating that "[t]he [s]tate shall . . . make [the grievant] whole for any lost wages and benefits which he incurred as a result of his layoff," although not detailed, provided sufficient guidance for parties to satisfy award).
Plainfield Board of Education v. National Ass'n of Government Employees, supra, at 43-44 (emphasis added).
Under the Award in this case, the Union need only present evidence regarding Mr. Montague's availability and willingness to accept overtime, and he may recover for the lost overtime. There is no requirement that the parties negotiate anything.
Notwithstanding the clear principle that arbitration awards made pursuant to an unrestricted submission cannot be invalidated for erroneous interpretation of the collective bargaining agreement. AFSCME Council 4 v. Dept of Correction, et al., 76 Conn.App. 15, 20, 817 A.2d 1279 (2003), the Union argues that the Arbitrator exceeded his authority by limiting Mr. Montague's remedy to a limit of ten days in overtime payments. The Union claims that the Arbitrator disregarded Article VII, § 7(e) of the Contract, which states, in relevant part, that an Arbitrator may not "grant pay retroactively for more than fourteen (14) calendar days prior to the date a grievance was previously submitted."
The foregoing argument is without merit. The ten-day limitation period in the Award was well within the fourteen-day limitation prescribed by the Contract. Moreover, this court may not review the Arbitrator decision for errors of fact, or second-guess his interpretation of the Contract. The issue submission provided the Arbitrator with the authority to determine whether the Contract had been violated and "[i]f so, what shall the remedy be?" Therefore, the parties gave the Arbitrator specific authority to determine the remedy. "An arbitrator is entitled to take cognizance of contract principles and draw on them for guidance in construing an agreement . . . Neither a misapplication of principles of contractual interpretation nor an erroneous interpretation of the agreement in question constitutes grounds for vacatur. AFSCME Council 4 v. Dept of Correction, et al., supra, at 18 (citing Harry Hoffman Printing, Inc. v. Graphic Communications International Union, Local 261, 950 F.2d 95-98-99 (2d Cir. 1991).
For the foregoing reasons, the Application to Vacate Arbitration Award is denied.