Opinion
No. CV 07-4028353
April 18, 2008
MEMORANDUM OF DECISION
The plaintiff, Town of Manchester (hereinafter "Town") moves to modify or correct an arbitration award pursuant to Conn. Gen. Stat. § 52-419.
The facts are as follows:
The Town placed an employee, Paul Locke, on leave without pay after he tested positive for drugs. The defendant union, AFSCME Council 4, Local 991, filed a grievance, and ultimately the matter was submitted to arbitration before the Connecticut State Board of Mediation and Arbitration. The issue presented to the board was: "Did the Town of Manchester violate the Collective Bargaining Agreement by placing Paul Locke on leave without pay for the period of September 20, 2005 through October 24, 2005.
If so, what shall be the remedy?"
The panel entered the following award: "The Town did not violate the Collective Bargaining Agreement by placing Paul Locke on leave without pay for the period of September 30, 2005 through October 24, 2005. However, the Grievant shall be able to utilize his sick time while on leave."
The Town moves to modify the award on the grounds that it did not conform to the submission regarding the part of the award relating to the employee's utilization of his sick time.
The statute authorizing this court to modify or correct an award is Conn. Gen. Stat. § 52-419(a). That statute provides: Sec. 52-419(a): "Upon the application of any party to an arbitration, the Superior Court for the judicial district in which one of the parties resides . . . shall make an award modifying or correcting the award if it finds any of the following defects . . . (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of a decision upon the matter submitted; . . ."
The plaintiff interprets subsection (2) to mean that the court can modify an award if the award is upon a matter not submitted to the arbitrator and which affects the merits of the decision.
The plaintiff recognizes, as it must, that the panel's allowing the employee sick leave for the time suspended affects the merits of the decision. The Town states in its brief: "By also finding that the employee could use sick time while on leave, however, the Arbitration Panel necessarily found that the Town was required to pay the employee for a certain portion of the days he was on leave without pay."
The Town's interpretation of the meaning of subsection (a)(2) is plausible because "unless" and "not" in that subsection create a double negative. But, that interpretation is wrong.
Judge Learned Hand once said, "[t]here is no sure surer way to misread [a statute] than to read it literally;" Guiseppi v. Walling, 144 F.2d 608, 624, (2d Cir., 1944). Even the Connecticut statutory "plain rule of law" (§ 1-2z) allows deviation from the plain and unambiguous text of a statute when it yields "absurd or unworkable results."
Our courts have recognized the awkwardness of the word "unless" in subsection (2) and have chosen to ignore it in order to get at the true intent of that section. As the Supreme Court said in Local 63, Textile Workers Unions v. Cheney Bros., 141 Conn. 606, 614: "The use of the word `unless' in this portion of the statute is confusing, but obviously the intendment of the enactment is that the court may strike out such portion of award as is not responsive to the submission if, by doing so, the merits of the portion of the award which is within the submission are not affected." In Waterbury Construction Co. v. Board of Education, 189 Conn. 560, 564 (1983), the court held that when arbitrators awarded upon a matter not submitted to them and that matter did not affect the merits of the decision, a motion to modify was granted.
This interpretation is also consistent with subsection (3) of § 52-49(a) which provides that the court may modify an award "(3) if the award is imperfect in matter or form not affecting the merits of the controversy."
Finally, to interpret subsection (a)(2) of § 52-49 as meaning an award can be corrected if the matter exceeding the submission affects the merits of the decision creates an "absurd or workable result." § 1-2z. If the matter sought to be corrected affects the merits of the decision, it goes to the substance of the award. In such event, the award should not be corrected, but vacated.
Thus, in the instant case, where part of the award does not conform to the submission but the matter not conforming does affect the merits of the decision, a motion to correct cannot be granted. The motion is denied.