Bruno v. Department of Consumer Protection

• Decision Date: 03 May 1983
• Citation: 190 Conn. 14,458 A.2d 685
• Court: Connecticut Supreme Court
• Parties: Dominic BRUNO v. DEPARTMENT OF CONSUMER PROTECTION et al.

Page 685

458 A.2d 685

190 Conn. 14

Dominic BRUNO v. DEPARTMENT OF CONSUMER PROTECTION et al.

Supreme Court of Connecticut.

Argued March 11, 1983.

Decided May 3, 1983.

Ronald E. Cassidento, West Hartford, for appellant (plaintiff).

Robert E. Walsh, Asst. Atty. Gen.; with whom were Richard T. Sponzo, Asst. Atty. Gen.; and, on the brief, Joseph I. Lieberman, Atty. Gen., and Bernard F. McGovern, Jr., Asst. Atty. Gen.; for appellees (defendants).

Before PETERS, ARTHUR H. HEALEY, PARSKEY, SHEA and GRILLO, JJ.

PER CURIAM.

The plaintiff has appealed from the dismissal of his application to vacate or to vacate in part and correct an arbitration award. The facts have been stipulated. The plaintiff was employed as an inspector by the state department of consumer protection. On or about January 12, 1979, the plaintiff was arrested and charged with larceny and possession of weapons in a motor vehicle. As a result of these charges, the plaintiff was immediately notified that he had been placed on leave of absence. This leave was extended by letters from the department in February, March and September of 1979. The leave expired on July 11, 1980. After the charges arising from the January, 1979 arrest were dismissed in May, 1980, the plaintiff sought reinstatement. His request was denied. One month after his first arrest, the plaintiff was arrested and charged with three counts of criminal mischief, six counts of eavesdropping and one count of conspiracy. The department learned in late July, 1980, of the plaintiff's conviction on several of these charges. In late August, 1980, the plaintiff was notified that he had been dismissed for misconduct and for the good of the state service.

Pursuant to a collective bargaining agreement, the plaintiff filed a grievance and both parties sought arbitration of the issues: "Was the dismissal of Dominic Bruno for good cause? If not, what shall the remedy be?" Basing his analysis on state personnel regulations, ¹ the arbitrator ruled that the reasons for the dismissal given by the department constituted good cause, and that no notice of dismissal was necessary under the circumstances. Nevertheless, the arbitrator concluded that the failure of the state to reinstate the plaintiff or to take other disciplinary action based on the later charges once the leave arising from the first arrest expired on July 11, 1980, constituted a "procedural violation" of the just cause standard. Accordingly, the plaintiff was awarded back pay for the period between the expiration of the leave and the date of dismissal. In his application to the Superior Court for relief from the arbitrator's decision, the plaintiff alleged that the award was contradictory and also that the arbitrator had exceeded his powers, had miscalculated damages and had violated the plaintiff's constitutional rights. The defendants, the department of consumer protection and the state of Connecticut personnel appeal board, moved to strike the application. Concluding that the award conformed to the submission, the trial court granted the motion. ² Judgment was rendered for the defendant.

The plaintiff has appealed from the judgment. He claims that the trial court erred (1) in failing to vacate the just cause determination, pursuant to General Statutes § 52-418(a)(4), ³ because the arbitrator exceeded his powers in finding that the termination of the plaintiff was not rendered ineffective because of the state's failure to reinstate him in July, 1980, and to give him two weeks notice of dismissal; or (2) in failing to modify the award, pursuant to General Statutes § 52-419(a)(1), ⁴ because the arbitrator miscalculated the damages by awarding back pay from the expiration date of the leave instead of from the starting date. We find no error.

We have stated repeatedly that judicial review of arbitration awards is limited in scope because arbitration is a creature of contract and the parties delineate the power of the arbitrator by the terms of the submission. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983); Bic Pen Corporation v. Local No. 134, United Rubber, Cork, Linoleum & Plastic Workers of America, 185 Conn. ---, ---, 440 A.2d 774 (1981); Waterbury v. Waterbury Police Union, 176 Conn. 401, 403, 407 A.2d 1013 (1979). Any challenge to an award on the ground that the arbitrator exceeded his powers is, therefore, properly limited to a comparison of the award with the submission. Bic Pen Corporation v. Local No. 134, supra, 14; New Britain v. Connecticut State Board of Mediation & Arbitration, 178 Conn. 557, 562, 424 A.2d 263 (1979); Waterbury v. Waterbury Police Union, supra, 176 Conn. 404, 407 A.2d 1013; Board of Education v. Bridgeport Education Ass'n, 173 Conn. 287, 291, 377 A.2d 323 (1977). " 'Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and the award cannot be vacated on the grounds that the construction placed on 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. Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 [1977].' Waterbury v. Waterbury Police Union, 176 Conn. 401, 404, 407 A.2d 1013 (1979)." Bic Pen Corporation v. Local No. 134, supra, 185 Conn. ---, 440 A.2d 774. Every reasonable presumption is made in favor of sustaining the award; id.; and the burden of demonstrating the nonconformance of the award to the submission is on the party challenging the arbitrator's decision. Ramos Iron Works, Inc. v. Franklin Construction Co., 174 Conn. 583, 590, 392 A.2d 461 (1978).

There can be no doubt that a determination of just cause and a remedial assessment of back pay were within the authority conferred upon the arbitrator by the issues submitted for arbitration. ⁵ Since the submission was unrestricted; see Bic Pen Corporation v. Local No. 134, supra, 185 Conn. --- n. 1, ---, 440 A.2d 774; Milford Employees Ass'n v. Milford, 179 Conn. 678, 680, 427 A.2d 859 (1980); Waterbury v. Waterbury Police Union, supra, 176 Conn. 404, 407 A.2d 1013, no judicial review of the arbitrator's resolution of legal questions is permissible. Nevertheless, this is precisely what the plaintiff seeks. The first claim of error, that the arbitrator erred in determining the plaintiff was properly terminated, necessarily challenges the arbitrator's interpretation of state regulations. Similarly, although phrased in terms of miscalculation in order to authorize judicial modification pursuant to General Statutes § 52-418(a)(4), the plaintiff's second claim, that the amount of back pay awarded was insufficient, is premised on the arbitrator's erroneous interpretation of...