Opinion
FSTCV176031419S
02-15-2018
Lynne MOORE et al. v. Steven J. ADAMOWSKI, Superintendent of Schools et al.
UNPUBLISHED OPINION
OPINION
David R. Tobin, J.T.R.
On March 9, 2017, the plaintiffs brought a timely application pursuant to General Statutes § 52-418 seeking an order vacating an arbitration award rendered on February 8, 2017. In their application, the plaintiffs allege that plaintiff, Dr. Lynne Moore (Moore), was a member of plaintiff Norwalk Association of School Administrators (the Union), which is the exclusive collective bargaining representative for all school administrators employed by the Norwalk Board of Education. Defendant Steven J. Adamowski (Adamowski) is the superintendent of Norwalk Public Schools and, as such, is the chief executive officer of defendant Norwalk Board of Education (the Board).
The Union and the Board were parties to a collective bargaining agreement which was in force at all relevant times to the arbitration at issue. (Ex. 1.) Pursuant to the terms of the collective bargaining agreement, on June 1, 2016 the Union filed a grievance on behalf of Moore (Ex. 2) after she was issued a letter of reprimand and warning. (Ex. 3.) Following the failure of the internal grievance proceedings to resolve the grievance, the parties agreed to submit the grievance to a single arbitrator. By agreement, the issue submitted to the arbitrator was:
Did the Norwalk Board of Education violate Article XIII(C) of the collective bargaining agreement when, acting through its Superintendent, it issued the letter of reprimand and warning dated April 20, 2016 to Dr. Lynne Moore? If so, what shall be the remedy? (Ex. 4, Sec. II.)
On February 8, 2017, after hearing evidence and reviewing the post-hearing briefs of the parties, the arbitrator issued the following written award:
After careful study of the record in its entirety, including all evidence, argument and supporting cases, submitted by the parties, whether specifically referenced herein or not, the grievance is denied in part and sustained in part. Specifically:
1. The Norwalk Board of Education did not violate Article XIII(C) of the collective bargaining agreement when, acting through its Superintendent, it issued the letter of reprimand and warning dated April 20, 2016 to Dr. Lynne Moore concerning her conduct at the March 28, 2016 parent meeting.
2. The Norwalk Board of Education did not violate Article XIII(C) of the collective bargaining agreement when, acting through its Superintendent, it issued the letter of reprimand and warning dated April 20, 2016 to Dr. Lynne Moore concerning conduct, warnings or unsupported conclusions not directly associated with the March 28, 2016 parent meeting.
As remedy, the Superintendent is ordered to re-issue his April 20, 2016 letter of reprimand. Consistent with the findings herein, the letter shall indicate that Dr. Moore was instructed not to discuss Middle School Redesign at her March 28, 2016 meeting; that by words and conduct, Dr. Moore did discuss Middle School Redesign at her March 28, 2016 meeting; and such discussion constituted insubordination.
Dr. Adamowski is free to use wording of his choosing so long as it follows the above and contains no extraneous verbiage referencing, implicitly or explicitly, facts outside of the March 28, 2016 insubordination. The original April 20, 2016 letter shall be removed or expunged from Dr. Moore’s personal file to the extent permitted by law and replaced with the re-issued copy. The re-issued letter shall be provided to Dr. Moore and NASA within 15 business days of receipt of this Award. (Ex. 4, Section V.)
THE PLAINTIFFS’ POSITION
On June 5, 2017, the plaintiffs submitted a brief in support of their application to vacate the arbitration award. (# 104.00.) In their brief, the plaintiffs claim that the submission to the arbitrator was restricted and that the court can and should engage in a de novo review to determine whether the arbitrator acted outside the scope of his authority. In the alternative, should the court determine the submission to be unrestricted, the plaintiffs urge that the court should, nevertheless, vacate the award. The plaintiffs reason that because the arbitration took place pursuant to the terms of the collective bargaining agreement between the Union and the Board, the court must look to the terms of that agreement to determine the scope of the parties’ agreement to submit grievances to arbitration. The plaintiffs rely on Article VII, para. 6, which limits the extent of such arbitrations. In particular, the plaintiffs note: 1) that paragraph 6. a. only permits grievances to be resolved by arbitration " if the grievance involves the interpretation and/or application of this Agreement, or an alleged violation thereof, and if such grievance does not involve rights and responsibilities conferred upon the Board, by statutes; 2) that section 6.d. mandates that " The decision of the arbitrator shall be final and binding, however, the arbitrator shall not add to, subtract from, or modify the language of this Agreement."
The plaintiffs claim that the award should be vacated because the award was not final or definite because duties were delegated to one of the parties, the superintendent, to revise the letter of reprimand. In particular the plaintiffs note that, in the revised letter, the superintendent added the word " final" before the word " warning." In the plaintiffs’ memoranda of law filed in support of their application to vacate the arbitration award, the plaintiffs point out that defendant Adamowski added the word " final" before the word " warning" in his revised letter. However the memoranda do not claim that addition of the word " final" had any legal significance either under the collective bargaining agreement or otherwise.
On July 17, 2017, the defendants filed a memorandum of law in opposition to the plaintiffs’ application. (# 105.00.) By order of the court (Karazin, J.T.R.) dated August 8, 2017 (# 106.00) the plaintiffs and defendants submitted additional memoranda of law supporting and opposing the plaintiffs’ application. The plaintiffs’ memorandum (# 107.00) was filed on August 28, 2017 and the defendants’ memorandum (# 108.00) was filed on September 11 2017. The matter was heard at short calendar on December 11, 2017.
DISCUSSION
A. Was the Submission Restricted or Unrestricted?
" Arbitration is a creature of contract and the parties themselves, by the terms of their submission, define the powers of the arbitrators." (Internal quotation marks omitted.) United States Fidelity & Guaranty Co. v. Hutchinson, 244 Conn. 513, 519 (1998). " 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 ..." (Internal quotation marks omitted.) Hardy v. Cantor Fitzgerald and Co., 275 Conn. 72, 80 (2005).
" 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 ..." (Internal quotation marks omitted.) McCann v. Department of Environmental Protection, 288 Conn. 203, 214 (2008) " 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 ..." United States Fidelity & Guaranty Co. v. Hutchinson, supra at 520.
" Where the language of the arbitration indicates an intention on the part of the parties to include all controversies which may arise under their agreement, and where the record reveals no specific questions which the parties submitted to the arbitrator, the submission will be construed as unrestricted." Zelvin v. JEM Builders, Inc., 106 Conn.App. 401, 408 (2008). Therefore, a submission is restricted only if the agreement contains express language restricting the issues, reserving rights, or conditioning the award on court review. See Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 109 (2001). In Zelvin, the court found that the arbitration submission was unrestricted because " the arbitration clause also lacked any language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review." (Internal quotation marks omitted.) 106 Conn.App. 408. Furthermore, the purchase and sale contract permitted the arbitrator to decide " any controversy or claim arising from or relating to the agreement." Id.
In the present case, the parties submitted the following issues before the Arbitrator:
Did the Norwalk Board of Education violate Article XIII(C) of the Collective Bargain Agreement when, acting through its Superintendent, it issued the letter of reprimand and warning dated April 20, 2016 to Dr. Lynne Moore? If so, what shall be the remedy?
Accordingly, there contains no language that is restrictive in that submission because no limitations or conditions are placed on the Arbitrator’s authority or conditioning the award on judicial review. Furthermore, the arbitration clause in the Collective Bargaining Agreement (CBA) contained no language restricting or limiting the breadth of issues, reserving rights, or conditioning the award on judicial review. See Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 230 (2000) (finding an unrestricted submission where the arbitration of disputes between the parties contained no language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review).
The plaintiffs argue that the contractual provision that allows for arbitration only if the grievance involves the interpretation of the Parties’ Agreement. However, courts have repeatedly held that this argument is misguided because it would result in every submission being restricted. See Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., supra, 258 Conn. 112-13. In that case, the plaintiff argued that the language " under the contract of reinsurance as identified by the Phase II Arbitration" evidenced an intent to create a restricted submission. Id., 111. However, the court disagreed and concluded that " submissions that require arbitrators to determine whether a party violated a particular section of a [CBA] constituted unrestricted submission. Id. See also Bic Pen Corp. v. Local No. 134, 183 Conn. 571, 581 n.1 (1981) (submission did not contain any conditional language and, therefore, was found to be unrestricted).
B. Did the Award Conform to the Submission?
" The significance ... of a determination that an arbitration submission was unrestricted or restricted is ... to the scope of judicial review of what they have [decided]." Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., supra, 258 Conn. 101. " The standard for reviewing a claim that the award does conform to the submission requires what [the Supreme Court has] termed in effect, de novo judicial review ." (Emphasis added; internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 84 (2005). In essence, the inquiry is limited to " determin[ing] ... whether the parties have vested the arbitrators with the authority to decide the issues presented or to award the relief conferred." (Internal quotation marks omitted.) Id., 85.
The three grounds for vacating an award when the submission is unrestricted have been articulated by our Supreme Court. See Garrity v. McCaskey, 223 Conn. 1, 6 (1992). " These grounds arise when the award (1) rules on the constitutionality of a statute, (2) violates clear public policy, or (3) contravenes one or more of the statutory prescriptions of General Statutes § 52-418." (Internal quotation marks omitted.) Enfield v. AFSCME Council 4, Local 1029, 100 Conn.App. 470, 474 (2007).
General Statutes § 52-418(a) provides in relevant part: " Upon the application of any party to an arbitration, the superior court ... or ... any judge thereof, shall make an order vacating the award if it finds ... 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." Furthermore, " an award must be final as to the matters submitted so that the rights and obligations of the parties may be definitively fixed." Local 63 Textile Workers Union v. Cheney Bros., 141 Conn. 606, 617, 109 A.2d 240 (1954), cert. denied, 348 U.S. 959, 75 S.Ct. 449, 99 L.Ed. 748 (1955). " [A]n award must conform to the submission ... Ordinarily, an award which does not [conform] to the submission cannot be upheld ... It is void to the extent to which it is outside the submission." Id., 613; see also State v. AFSCME Council 4 Local 1563, 49 Conn.App. 33, 36 (1998).
The plaintiffs rely on the ruling set forth in Local 1563, which held that the arbitration award was not final because the arbitrator did not award a " specific remedy upon a finding that the grievant was terminated without just cause," which violated § 52-418(a). Id., 37. In that case, the arbitrator’s award specifically stated that the " grievant [should] be placed at either Niantic or an alternate facility that would be agreeable to all parties ." (Emphasis added.) Id. The court found that this award was not specific because it would require further litigation, the arbitrator retained jurisdiction over the matter, and did not specify an exact location or remedy. Id. Furthermore, the court found that this award did not " fix definitively the rights and obligations of the parties." Id.
On the other hand, in Bd. of Education v. Local R1-126, Natl. Assoc. Of Government Employees, the appellate court upheld the denial of an application to vacate an arbitration based on a finding that the award was final and definite. 108 Conn.App. 35, 44, 947 A.2d 371 (2008). In that case, the arbitrator awarded a remedy which mandated that the board pay their full-time employees for missed overtime periods over a specific period of time. Id. The court further distinguished the holding in Local 1563 by finding that the parties were required to negotiate to complete the remedy in that case, whereas in Bd. of Education, the parties were not required to negotiate. Id., 45.
The present case is more akin to Bd. of Education, where the parties are not required to negotiate or litigate the case any further. Therefore, the court should find that the arbitration award is final and definite, and fixes the obligations of the parties. Furthermore, an arbitrator providing guidance as to fulfill the remedy does not equate to the award not being final. See State v. Connecticut Employees Union Independent, Inc., 33 Conn.App. 737, 739, (arbitration award, even though not detailed, provided sufficient guidance for parties to satisfy award). Moreover, in this case, there is no question that the award devised a remedy which fixed the Board’s obligation to revise the letter of reprimand to Dr. Moore and re-issue a letter omitting certain facts related to Dr. Moore’s history. However, there is no requirement for any further negotiation or litigation on the matter between the parties as the Board is the only party that must act to complete the remedy. Accordingly the court finds that the plaintiffs have not established that the arbitration award in this case was not final and definite.
CONCLUSION
The court finds that the submission to the arbitrator was unrestricted and that the award was final and definite. Accordingly, the court denies the plaintiffs’ application to vacate the arbitrator’s award.