Caldor, Inc. v. Thornton

• Court: Supreme Court of Connecticut
• Writing for the Court: Before SPEZIALE; GRILLO; In this opinion, SPEZIALE; SHEA
• Citation: 464 A.2d 785,191 Conn. 336
• Parties: , 36 Fair Empl.Prac.Cas. (BNA) 1832, 35 Empl. Prac. Dec. P 34,641, 101 Lab.Cas. P 55,486 CALDOR, INC. v. Donald E. THORNTON.
• Decision Date: 06 September 1983

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464 A.2d 785 191 Conn. 336, 36 Fair Empl.Prac.Cas. (BNA) 1832,
35 Empl. Prac. Dec. P 34,641,
101 Lab.Cas. P 55,486 CALDOR, INC.
v.
Donald E. THORNTON. Supreme Court of Connecticut. Argued March 29, 1983.
Decided Sept. 6, 1983.

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[191 Conn. 337] Eliot B. Gersten, Hartford, for appellant (plaintiff).

Robert L. Fisher, Jr., Kent, for appellee (defendant).

Before [191 Conn. 336] SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, SHEA and GRILLO, JJ.

[191 Conn. 337] GRILLO, Associate Justice.

This appeal from the judgment of the trial court granting an application to confirm an arbitration award and concomitantly denying an application to vacate the award attacks, inter alia, the constitutional validity of § 53-303e of the General Statutes. ¹

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The underlying facts culminating in the present appeal are not in dispute. During 1975 the defendant, Donald Thornton, began working as a department manager for the plaintiff, Caldor, Inc., which operates a [191 Conn. 338] chain of retail department stores in Connecticut. In 1977, Caldor began opening for business on Sundays, thereby requiring the defendant and other department managers to work one out of every four Sundays. Although the defendant worked thirty-one Sundays between 1977 and 1979, in November, 1979, he informed Caldor that he would no longer work on Sunday as that day was his Sabbath.

Subsequently, the defendant had several meetings with Caldor executives in an attempt to resolve the problem. Caldor offered him two choices: (1) to continue in a supervisory capacity at a Massachusetts store, which did not require Sunday employment; (2) to remain at his current location in a nonsupervisory capacity as a member of the employee union, whose contract provided for nonattendance of work on the Sabbath. Thornton rejected both alternatives because of the distance and hardship involved in commuting or moving to Massachusetts, and because remaining in Connecticut as a union member included a decrease in pay from $6.46 to $3.50 per hour. When Caldor informed him, on Thursday, March 6, 1980, that there was "no alternative other than to revert you back to a rank and file at $3.50 an hour beginning this Monday," the defendant resigned from his job with the plaintiff. His last day of work was March 8, 1980.

On May 6, 1980, the defendant appealed Caldor's actions to the Connecticut state board of mediation and arbitration (hereinafter the board) alleging wrongful discharge under General Statutes § 53-303e in that as a department manager he was unable to observe his Sabbath. The parties agreed that the issue before the board was the validity of the defendant's claim under § 53-303e. The matter was heard by the board on July 14, 1980. In a two-fold attack on the validity of the defendant's claim, the plaintiff argued that Thornton [191 Conn. 339] had not been "discharged" within the meaning of the statute, and further that the statute was unconstitutional.

The board, construing its authority as "quasi judicial," concluded that it was not empowered to decide the constitutionality of the statute at issue. It therefore assumed the constitutionality of § 53-303e until a court decided otherwise. The board thereupon determined that Thornton had been "discharged" as a managerial employee in violation of § 53-303e, and issued an award in favor of the defendant.

On November 18, 1980, Caldor filed an application to vacate the arbitration award with the trial court pursuant to General Statutes § 52-418, alleging the award to be illegal and beyond the power of the arbitrators in that (1) Thornton was not "discharged" within the meaning of § 53-303e; and (2) § 53-303e was unconstitutional as a violation of the establishment clause of the

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first amendment to the United States constitution. The defendant subsequently filed a cross application, seeking confirmation of the arbitration award pursuant to General Statutes § 52-417. By memorandum of decision filed August 28, 1981, the trial court, Brennan, J., concluded that § 53-303e did not violate the establishment clause. The court further concluded that the board was correct in finding that the defendant was discharged from his position of employment. Accordingly, the court granted the defendant's cross application to confirm the arbitration award while denying the plaintiff's application to vacate the award. From this judgment, the plaintiff has appealed.

On appeal, the plaintiff pursues its two primary claims presented before both the board and the trial court: (1) that the defendant was not "discharged" within the meaning of § 53-303e, and (2) that § 53-303e [191 Conn. 340] is constitutionally infirm because the statute violates the establishment clause of the first amendment of the United States constitution. ² Although we do not agree that the board exceeded its powers in determining that Caldor violated the provisions of § 53-303e, we agree with the plaintiff's contention that the statute does not pass constitutional muster under the strictures of the establishment clause.

The plaintiff first asserts that the board impermissibly exceeded its powers by finding Caldor in violation of § 53-303e. It contends that the statute refers only to "dismissal and discharge," and is therefore not applicable under the facts of the present case, which reveal that the defendant resigned his position. We find this claim unpersuasive.

It is settled law in this jurisdiction that "[a]ny challenge to an award on the ground that the arbitrator exceeded his powers is ... properly limited to a comparison of the award with the submission." Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983). "Where the submission is unrestricted, 'the award is ... final and binding and cannot be reviewed for errors of law or fact.' Milford Employees Assn. v. Milford, 179 Conn. 678, 683, 427 A.2d 859 (1980)." Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 19, 453 A.2d 1158 (1983). " '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 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[191 Conn. 341] 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, United Rubber, Cork, Linoleum & Plastic Workers of America, 183 Conn. 579, 584, 440 A.2d 774 (1981).

Ordinarily, "[a]rbitration is a creature of contract and the parties themselves, by the terms of their submission, define the powers of the arbitrators." Waterbury v. Waterbury Police Union, supra, 176 Conn. at 403, 407 A.2d 1013. In the present case, however, the statute itself mandates compulsory arbitration and defines the powers of the arbitrators. ³ Under subsection (c) of

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§ 53-303e, "[a]ny employee, who believes that his discharge was in violation of subsection (a) or (b) of this section may appeal such discharge to the state board of mediation and arbitration. If said board finds that the employee was discharged in violation of said subsection (a) or (b), it may order whatever remedy will make the employee whole...." Clearly, the language of subsection (c) empowers the board to resolve all issues arising under subsections (a) or (b), the operative provisions of § 53-303e. Moreover, [191 Conn. 342] although the parties have consistently disputed the applicability of the "discharge" language within the statute to the facts of this case, they freely submitted this and all other issues concerning the validity of the defendant's claim under § 53-303e to the board, which entered its decision in favor of the plaintiff. The submission can only be construed as unrestricted.

The plaintiff, by alleging error in the construction of the scope of § 53-303e, "effectively seeks a second determination of the underlying dispute on the merits." Carroll v. Aetna Casualty & Surety Co., supra, 189 Conn. at 23, 453 A.2d 1158. Such a claim, regardless of whether it is construed as an attack on the factual or legal conclusions of the arbitrators, is "outside the permissible scope of judicial review." Bruno v. Department of Consumer Protection, supra, 190 Conn. at 20, 458 A.2d 685. When there is an unrestricted submission, the award need only conform thereto. The record before us clearly reveals that it did. ⁴

Since the limited scope of judicial review accorded arbitration awards compels us to conclude that there was no error in the board's determination with regard to discharge, we turn to a consideration of the plaintiff's claim that § 53-303e is unconstitutional. See State v. DellaCamera, 166 Conn. 557, 560-61, 353 A.2d 750 (1974).

Our threshold inquiry is directed toward whether it was incumbent upon the board to consider the constitutional issue. The unrestricted submission clearly included the constitutional question, and therefore unless the [191 Conn. 343] board's construction of the scope of its authority is correct, the award must be vacated as not in conformity with the submission. The board expressly declined to make such a determination, concluding that its "quasi-judicial" power does not encompass a decision as to the constitutionality of § 53-303e. We agree.

The powers of government are divided into three distinct departments--legislative, executive and judicial, judicial power being vested in a Supreme Court, an Appellate Court, a Superior Court and such lower courts as the General Assembly establishes. ⁵ " '[T]he powers granted to the General Assembly are legislative only and those granted to the judiciary are judicial only.' " Szarwak v. Warden, 167 Conn. 10, 31, ...