Opinion
No. CV08-4018358S
July 17, 2009
MEMORANDUM OF DECISION RE APPLICATION TO VACATE ARBITRATION AWARD
The parties are governed by a Collective Bargaining Agreement ("CBA") dated June 30, 2006, is for the term 7/1/06 — 6/30/09, and applicable to Danbury school lunch program workers. R. Tab 1. Patricia Russo had been employed by such program for approximately twelve (12) years — on the applicable dates as "Cook Manager" — and, as such, was covered by the CBA. For the past five (5) years, she had also been concurrently employed by H R Block during the tax season of January through April. Her work as Cook Manager ended daily at 1:00 p.m. or shortly thereafter and sometimes required heavy lifting; her H R block employment involved telephone work, greeting clients, and other light clerical assignments without heavy lifting. Tr., 5/28/09, at 33; Application, at 11. Russo was terminated effective April 2, 2008, as a result of her manager (Kingston) having discovered Russo at work at H R Block on March 17, 2008, while on paid sick leave from her school job under Article VII, Sect. 2 of the CBA. The stated reason for termination was that Russo "engaged in gainful employment while being on a leave of absence with the Danbury Public Schools. This dismissal is for just cause and in accordance with the principles of progressive discipline." Appl., at Tabs 4, 5. Russo filed a grievance which was denied and the dispute was submitted to arbitration in accord with Article IX of the CBA. The parties submitted the following issue:
There is no dispute that Kingston was incorrect in stating Russo was on a "leave of absence" as that term is defined by Art. VII, Sec. 1 of the CBA.
Was the grievant, Patricia Russo, terminated for just cause in accordance with Article VIII(D)(1) of the collective bargaining agreement? If not, what shall the remedy be?
Article VIII(D)(1) provides:
The Employer may discharge Employees for any offense that the Employer deems of sufficient seriousness to warrant discharge, provided that all such discharges shall be for just cause and in accordance with the principles of progressive discipline.
Testimony was taken and exhibits offered at a hearing before the mutually agreed upon arbitrator on September 24, 2008. (No transcript of that hearing was provided the court.) Numerous post-hearing briefs were filed. The arbitrator was initially instructed to issue his award by November 26, 2008, which date the parties agreed to extend to December 1, 2008, at the arbitrator's request. By electronic mail, the parties received, on December 2, 2008, a letter from the American Arbitration Association which stated a copy of the Award/Opinion was attached. R. Tab, at 15. The e-mailed copy of the Arbitration Award was dated December 1, 2008, consisted of eleven (11) un-numbered pages, and was not signed or notarized. The "Award" (on un-numbered p. 9) read, "In view of the above premises I deny Patricia Russo's grievance." Id. On December 3, 2008, a second letter from the American Arbitration Association was mailed to the parties. attached to the letter was the "original hand copy of the Arbitrator's Award in the above-captioned matter previously e-mailed on December 2, 2008." Id. That "Arbitration Award" consisted of eleven (11) numbered pages and a notarization sheet signed by the arbitrator and dated December 1, 2008. The "Award" in the hard copy read, "In view of the above premises I find that the Board terminated Russo in accordance with Article VI, Section D1 of the collective bargaining agreement. I therefore deny Ms. Russo's grievance." The Union's position is that the awards were inconsistent and that the signed award — though dated December 1, 2008 — was "rendered past the due date" and should be vacated as untimely. Memorandum, at p. 32. The Board disagrees.
The Union further claims the award did not conform to the submission in that the submission referenced Article VIII(D)(1) of the GSA and the "Second Award" referenced Article VI of that Agreement. Both parties agree Article VI is not applicable, applying as it does to "vacations" and containing no Section D.
Relevant to the application of "progressive discipline" — never defined in the GSA but referenced in Article VIII, Section (D)(1) cited in the submission — is Russo's prior work history. She had been counseled during the school year 2006-07 on multiple occasions regarding her "professional demeanor and treatment of colleagues." R. Tab, at 1. In May of 2007, she received a written warning for unprofessional conduct in "refusing to communicate with the staff members whom she supervises and she was advising them that they should not try to communicate with her." Id. She was then advised that future incidents of inappropriate conduct could, in accordance with just cause, result in future disciplinary action up to and including discharge. Id. On January 18, 2008, she was given a written warning for failure to follow proper food storage procedures (food for the entire day already cooked at 9:00 a.m. and ready to be served). On February 21, 2008, she was issued a final warning and a one-day suspension for having improperly refrigerated an estimated $300 worth of turkey as well as other food items. Id. Again, she was advised that failure to meet identified goals "May result in further progressive disciplinary action in accordance with just cause, up to and including discharge (Emphasis added.)." Id., p. 2 of 2. Russo did not serve the one-day suspension on 2/22/08 as planned for reason of a snow day. On the following Monday (2/25/08), she submitted a work status certificate from her doctor. The note stated she suffered from "cubital tunnel syndrome, mononeuritis, lesion of ulnar nerve, and epicondylitis, (sic) medial," the onset of which occurred on Friday, Feb. 10, 2006, that she was to "be off due to pending surgery and long arm cast . . . Estimated return to work is 4 weeks after surgery." R. Tab 3. She later verbalized to others her surgery was scheduled for March 20, 2008. R. Tab. 5. On March 27, 2008, Russo was notified of a pre-termination meeting on April 3, 2008, and that her action warranted "progressive disciplinary action in accordance with just cause." Id.
The Union asks the award be vacated pursuant to Connecticut General Statutes § 52-418(a)(3) because the arbitrator sustained the discharge on presumptions that had no basis in the CBA or record (i.e., that Russo had an obligation to inquire whether light duty work at the school was available to her) and for which the Union had been given no prior notice, thereby prejudicing the rights of the Grievant and the Union. Memo, at 5. It also asks the award be vacated pursuant to Connecticut General Statutes § 52-418(a)(4) because it did not conform to the submission, failed to apply the terms of the CBA but instead applied "the Arbitrator's own brand of industrial justice," and because the "Arbitrator exceeded his powers or so imperfectly executed them that a mutual, final and definite Award upon the subject matter was not made." Id. at 4. The Union asks the court, pursuant to Connecticut General Statute § 52-418(b) direct a rehearing of the dispute before a different arbitrator mutually agreed upon by the parties. Id., at 5. The Board disagrees with all of the Union's positions and requests.
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 . . .
"A submission of arbitration is unrestricted if there is no express language restricting the breadth of issues, reserving explicit rights or conditioning the award on court review." Board of Education v. Civil Service Employees, 88 Conn.App. 559, 568 (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). Economos v. Liljedahl Bros, Inc., 279 Conn. 300, 3056 (2006)
The resulting award can be reviewed, however, to determine if the award conforms to the submission . . . Such a limited scope of judicial review is warranted given the fact that the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision . . . 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 arbitrator's decision. Blakeslee Arpaia Chapman, Inc. v. Dept. Of Transportation, 273 Conn. 746, 755-56 (2005).
In the instant case, there was in the submission no express language which restricted the issues to be considered by the arbitrator (In fact, Article VIII(D)(1) of the CBA is itself very broad in requiring merely that dismissals be for conduct of sufficient seriousness as to constitute "just cause" without further definition and be in accord with the "principles of progressive discipline" — also not defined anywhere in the CBA), no reservation of explicit rights is articulated therein, and there is not the conditioning of the award on court review (The agreement makes no reference anywhere within to a "court" or "judicial authority"). This court finds the submission here was unrestricted. See e.g. McCann v. Dept. of Environmental Protection, 288 Conn. 203, 210 (2008) (Unrestricted submission required arbitrator to determine if employee was terminated for "just cause" and, if not, the appropriate remedy to be applied).
However, even in the case of an unrestricted submission, three grounds have been recognized for vacating an award: (1) The award rules on the constitutionality of a statute; (2) It violates clear public policy; and (3) It convenes one or more of the statutory proscriptions of Connecticut General Statute § 52-418. Economos, supra, 279 Conn., at 305-06. Section 52-418(a)(4) provides for vacatur "if the arbitrators have exceeded their power or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made." It is this ground upon which the Union relies for its argument the award violates § 52-418(a)(4).
In [the] construction of § 52-418(a)(4), [courts] have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers (Internal quotation marks omitted). Alexson v. Foss, 276 Conn. 599, 612 (2006). If the award conforms to the submission, the arbitrators have not exceeded their powers (Internal quotation marks omitted). Exley v. Connecticut Yankee Greyhound Racing, 59 Conn.App. 224, 228, cert. denied, 254 Conn. 939 (2000) . . . [A court's] review is limited to a comparison of the award to the submission. [The] inquiry generally is submitted to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred. With respect to the latter, [the Supreme Court has] explained that . . . as long as the arbitrator's remedies were consistent with the agreement, they were within the scope of the submission. In making this determination, the court may not engage in fact-finding by providing an independent interpretation of the contract, but simply is charged with determining if the arbitrators have ignored their obligation to interpret and to apply the contract as written (Citations omitted; internal quotation marks omitted). Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 86 (2005).
[Courts] have also recognized . . . that . . . [a]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418(a)(4) because the arbitrator has exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. (Internal quotation marks omitted.) Alexson v. Foss, supra, 276 Conn., at 612. [T]he following three elements all . . . must be satisfied in order for a court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law: (1) The error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) The arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) The governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable (Internal quotation marks omitted). Industrial Risk Insurers v. Hartford Steam Boiler Inspection Ins. Co., 273 Conn. 86, 95 (2005).
As above discussed, a claim that the arbitrator hAs exceeded his power may be established by showing either that the award failed to conform to the submission (fell outside the scope of the submission) or that the arbitrator manifestly disregarded the law. Harty, supra, at 85.
The court is persuaded neither showing has here been made. The award answered the question whether Russo was terminated for just cause. The arbitrator's opinion clearly articulated his belief Russo, who intended to — and did — work at her secondary job while on earned sick leave and being paid by her employer, should have inquired whether light duty work was available to her at her cafeteria job — particularly when she knew of another school lunch program employee who had worked light duty. In determining whether the award conforms to the submission, the inquiry is whether the award answers the question(s) asked. See Stratford v. Local 134, IFPTE, 201 Conn. 577, 584 (1986). In making such comparison where the submission is unrestricted, the court will not review the evidence or legal questions involved but is bound by the arbitrator's legal and factual determinations. Game-A-Tron Corporation v. Gordon, 2 Conn.App. 692, 695 (1984). Having found Russo was terminated for just cause, the second question posed by the submission (If not [terminated for just cause], what shall the remedy be?) required no response. The Union claimed both in its brief and at the hearing before this court that the award did not conform to the submission because the arbitrator failed to apply the principles of progressive discipline. The arbitrator clearly considered — but rejected — progressive discipline, finding the gravity of Russo's act to be sufficiently serious as to "not merit" progressive discipline (See p. 10 of the hard copy of the decision). "Likewise there are no issues of progressive discipline because her supervisory status, (sic) and long term experience, (sic) reasonably exacerbated the seriousness of the offense she committed." Id. The court, in an unrestricted submission, is bound to accept the arbitrator's factual conclusions.
The Union relies heavily on City of Danbury v. Teamsters Local 677, 1998 Conn.Super. LEXIS 1305 (Super.Ct., May 7, 1998) (Kulawiz, J.) as support for the proposition this award should be vacated because the arbitrator was unfaithful to the CBA in that that agreement did not require Russo to inquire of her primary employer whether light duty work in the cafeteria was available to her. The City of Danbury employee was fired for insubordination in refusing to take a random drug test ordered by the employer; the employee opted to go home "sick." The arbitrators found in favor of the employee, finding the termination violated the CBA there because the worker had not been previously warned his insubordination would lead to termination. On appeal, the court vacated the award, finding nothing in the contract required a warning before being terminated and thus the arbitrators' award exceeded the scope of the submission. Id., at *11. While at first blush the appeal of this case to the Union is understandable, reliance upon City of Danbury is in this court's view misplaced. The instant case is not a "warning" case — nor could it be in view of Russo's multiple prior warnings that her behavior could result in dismissal. However, in the same way that the court in City of Danbury concluded the employee could be terminated without a prior warning, the arbitrator here was free to conclude Russo could be terminated in the absence of a CBA provision requiring her to ask about the availability of light work on her primary job under the circumstances here presented — specifically, that she knew such work had been made available to another school lunch program worker. It is factually incorrect to argue, as the Union does on p. 27 of its memorandum, that the arbitrator decided as he did "because of the exercise of her earned sick leave right guaranteed by the Contract." Not only was Russo not denied that contractual right but, once presented with the medical note, the employer readily granted the sick leave. The Union's argument ignores that City of Danbury upheld termination in the absence of a Contract provision requiring a warning as it also ignores that the arbitrator here found Russo's termination in compliance with Article VIII(D)(1) — i.e., it was "for just cause and in accordance with the principles of progressive discipline."
It is not disputed that another of Russo's school lunch program employees had worked light duty. Additionally, there is in the Record evidence before the arbitrator of the availability of light duty work in her primary employment. See R. Tab 8, p. 1 of 2, Fact-Finding Report re hearing date of 4/21/08 ("When I got the letter from the doctor he asked if there was any light duty available at the school. I had always been told that there was no light duty in the school cafeteria. I went to my team leader at H R Block; he said there was light duty . . ."). Russo then went on to distinguish her situation in stating the co-worker was out on workers' compensation and under an obligation to follow workers' compensation rules. Id.
The Union's brief does not address the three (3) elements necessary to be proven to conclude the award manifested disregard of the law as enunciated in Industrial Risk Insurers, supra, and as earlier here provided. Our Supreme Court has said a court may not vacate an award on the ground that it disregards the law unless the arbitrator has displayed "extraordinary lack of fidelity to established legal principles." McCaskey, 223 Conn., at 10. The court cannot so find.
The Union has claimed the award ought be vacated under Connecticut General Statutes § 52-418(a)(3) because the arbitrator was "guilty of misconduct . . . by which the right of any party has been prejudiced." Specifically, it is claimed the arbitrator's reference to Russo's conduct as constituting "fraud" (See e.g., R. Tab 2, at 7-8) or "reckless abandonment" ( Id., at 8) or "unjust enrichment" ( Id., at 10) or "negligent misrepresentation" ( Id., at 7) prejudiced the Union's/Grievant's rights because these "theories" did not surface until the hearing and they were thus deprived of the opportunity to defend against such claims. Memo, at pp. 33-38. It is generally so that claims raised and adjudicated under this provision have rested on procedural errors in the conduct of the hearing — i.e., the failure to postpone a hearing on request of a party or to accept proffered testimony or an arbitrator's reliance on a document not in evidence at the hearing or part of the submitted Record. Such conduct is not here claimed. To the extent § 52-418(a)(3) encompasses misconduct other than occurring through administrative error, the arbitrator's use of the terms just referenced constitute legal conclusions. "When the scope of the submission is unrestricted, the resulting award is not subject to de novo review for errors of law so long as the award conforms to the submission . . . (Citations omitted.)." Saturn Construction Co. v. Premier Roofing Co., 238 Conn. 293, 304 (1996). This statute provides for the vacating of an award if a party was "deprived of a full and fair hearing." O G/O'Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 149 (1987). A hearing is "fair" if each party had "an adequate opportunity to present its evidence and argument." Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 475-76 (2006). The Union has not carried its burden here. The arbitrator heard all of the evidence the Union wished to present; the hearing required a day; the Union was permitted to file two (lengthy) post-hearing briefs. The Union has offered no evidence it was denied any request. Proof of a violation of § 52-418(a)(3) requires "a showing of perverse misconstruction [of the law] or positive misconduct . . ." Clairol, Inc. v. Enertrac Corp., 44 Conn.App. 506, 512 (1997).
It is not correct, as the Union suggests on p. 34 of its memorandum, that the "fraud" theory was first articulated at the hearing. The Notice to the Board on 4/18/08 (part of the Record before the arbitrator and therefore earlier available to the Union and certainly to the Grievant) states the following as the Grievant's version of the "Reason for Separation": "Discharged. I was accused of fraud." R. Tab 2. The issue is not what term(s) the arbitrator chose to describe the subject behavior but rather is whether the operative facts underlying such behavior was known to the Union, thereby affording it full opportunity to defend against the same. It cannot be disputed that the Union was aware of the conduct which resulted in termination. Re-casting the same allegations as were alleged to be violative of § 52-418(a)(4) as a violation of § 52-418(a)(3) fails to demonstrate a deprivation of a full and fair hearing under these circumstances.
There remain two (2) further claims by the Union. The first is that the award should be vacated because it references — on p. 11 — that the Grievant was terminated in accordance with "Article VI" . . . of the CBA. In the same decision, the arbitrator notes the issue before him arises under Article "VIII." R. Tab 2, at p 2. The court therefore views the reference to Article "VI" as a scrivener's error indicative, at most, as a failure to proofread before signing. There is not a Section D in Article VI. Further, the arbitrator references "just cause" and "progressive discipline" — language taken from Article VIII(D)(1) of the CBA. The errant reference does not constitute a lack of fidelity to the submission or to the Agreement.
Finally, the Union argues the award is untimely. The hard copy forwarded the parties by the American Arbitration Association on December 3, 2008, is dated December 1, 2008 (the date to which the parties mutually agreed the decision would be extended). The hard copy (R. Tab 2) contains the arbitrator's notarized signature on the same date. The arbitrator is a Commissioner of the Superior Court and, absent any evidence the notarization was signed on a different date or that the final award was rendered on a different date, the court may not speculate that either is true. The arbitrator is a Commissioner of the Superior Court and, absent any evidence the notarization was signed on a different date or that the final award was rendered on a different date, the court may not speculate that either is true.
For all of the above stated reasons, the Motion to Vacate the Arbitration Award is denied.