City of Hartford v. Local 1716, Council 4, AFSCME, AFL-CIO, AFL-CIO

Citation44 Conn.Supp. 312,688 A.2d 882
Decision Date12 January 1996
Docket NumberAFL-CIO,No. CV920703263,CV920703263
CourtSuperior Court of Connecticut
PartiesCITY OF HARTFORD v. LOCAL 1716, COUNCIL 4, AFSCME, -New Britain at Hartford

Corporation counsel of the city of Hartford, for plaintiff.

Gagne & Associates, Wethersfield, for defendant.

BERGER, Judge.

The plaintiff city of Hartford has filed the present action seeking to vacate an arbitration award rendered by the state board of mediation and arbitration (board) in favor of the defendant Local 1716, Council 4, AFSCME, AFL-CIO. Specifically, the plaintiff complains about the procedural and substantive aspects of a May 21, 1992 decision that held that the plaintiff did not discharge its employee, Michael Leonka, for just cause.

According to the board's findings, Leonka had been employed by the plaintiff for approximately twenty-two years and, at the time of his discharge, was a recreation leader in the parks and recreation department. On September 2, 1987, Leonka apparently injured his foot in a work related accident and was reassigned by the plaintiff to a desk job. He was absent from work for the alleged purpose of attending therapy sessions throughout 1988 and January, 1989. His physician had certified him to return to work on December 15, 1988, and his workers' compensation benefits ceased on that date. Leonka's records show that from December 16, 1988, to January 23, 1989, he was absent 155 hours and he indicated to his supervisor that those hours were chargeable to workers' compensation. An investigation conducted by the plaintiff revealed, in part, that on numerous occasions during 1988, Leonka claimed he was going to therapy when, in fact, he did not. In May, 1989, the plaintiff began deducting earned sick time and, at a meeting on January 12, 1990, the parties agreed that $1200 was still owed by Leonka to the plaintiff. Several meetings were held by the parties to discuss Leonka's status and, on February 20, 1990, a formal grievance procedure was held, which resulted in Leonka's discharge, effective March 9, 1990. As a result of a procedural notice difficulty, a second hearing was held, and Leonka was discharged again on March 30, 1990, effective April 2, 1990.

Formal proceedings commenced before the board to determine whether Leonka had been terminated for just cause. A three member arbitration panel was appointed consisting of Frank J. Avallone, labor representative, John M. Romanow, management representative, and Blanca E. Torres, chairperson and public member. Hearings were held on June 8, September 10, October 26, and November 26, 1990. On or about September 21, 1991, Romanow received a copy of the arbitration award from Torres. This document (first award) was signed by Torres but not by Avallone. Romanow signed the award but attached a dissenting opinion essentially arguing that since the time of the filing of the briefs on December 13, 1990, to the time of the issuance of the award, the chairperson had never convened the panel, thereby denying, at least the management member, any participation in the deliberation process. After contact by Romanow, the board administrator, Cathy Serino, directed the panel members to convene an executive session. A session was held on October 22, 1991, and on May 21, 1992, a second award was issued. Romanow again filed a dissenting opinion claiming that the second award was procured by undue means, violated public policy, was untimely, exceeded the submission and was essentially improper. The plaintiff then brought this action to vacate the second award.

As noted by both sides, "[a]rbitration is a contractual remedy designed to expedite, in an informal context, the resolution of disputes"; Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 62, 357 A.2d 466 (1975); and "[a]rbitration is favored by courts as a means of settling differences...." Wolf v. Gould, 10 Conn.App. 292, 296, 522 A.2d 1240 (1987). It is, therefore, the established policy of the courts that "[e]very reasonable presumption and intendment will be made in favor of the award...." Milford Employees Assn. v. Milford, 179 Conn. 678, 683, 427 A.2d 859 (1980). "Courts favor arbitration ... and arbitration awards are generally upheld except where an award clearly falls within the proscriptions of § 52-418 of the General Statutes." Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 290, 377 A.2d 323 (1977).

General Statutes § 52-418 provides in pertinent part: "Vacating award. (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if 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...."

The panel is required to follow its regulations. Section 31-91-45 of the Regulations of Connecticut State Agencies provides in pertinent part: "(a) As promptly as possible after the date of the formal hearing and the receipt of the briefs, where the parties elect to submit briefs, the panel members will meet in an executive panel session to decide the matter submitted.... (c) Decisions shall be made by majority vote of the panel members. A panel member may express his disapproval of the majority decision by adding the word 'dissenting' after his signature on the award, or, said panel member may also prepare a dissenting opinion which shall be sent to the board's office and shall be made part of the award proper."

The plaintiff argues that the first award was issued by the chairperson without consulting with the other members of the panel in a duly called executive session. In other words, the plaintiff complains that instead of meeting, discussing the issues of the case and voting, the chairperson simply wrote and issued the opinion herself.

This court agrees that the panel did not comply with subparagraph (a) requiring an executive session and subparagraph (c) requiring that "[d]ecisions shall be made by majority vote of the panel members." The undisputed evidence indicates that Torres never consulted with the other members before issuing the award. No executive session was held; no discussion took place; no vote was taken.

It can be argued, of course, that the first award was nothing more than a draft decision proposed by its chairperson. After receiving the request of Romanow dated September 23, 1991, however, the board administrator ordered the panel to hold its required executive session stating that a decision issued in violation of state agency regulations § 31-91-45 was invalid. This court does not believe that the first award was ever intended to be simply a draft decision. There is nothing in the evidence that would support that conclusion and, of course, an executive session was never held or scheduled to discuss such a draft decision. Nevertheless, as the first award was invalidated, this court must examine the second award and its relationship to the first award.

As indicated, the panel held an executive session on October 22, 1991. According to Avallone, the meeting "was not a pleasant one" although he testified that Torres held no ill feelings toward Romanow. He indicated that he and Romanow stated their respective positions but that the panel did not take a vote. Seven months after the meeting on May 21, 1991, Torres issued the second award. This award was signed by Avallone as well as by Torres; Romanow also signed it but again issued a dissenting opinion. The plaintiff argues that the second award was tainted by the prior proceedings; it posits that the substantive changes between the two decisions evidences a misconduct that requires that the award be set aside. In the first award, Torres stated that "[t]he Panel has concluded that the grievant reported false information to his employer.... The only remaining issue is the penalty for the offense." While she rejected the penalty of termination, she stated that "[t]he Panel does not intend to reward the grievant with a windfall, however. His conduct was inexcusable and he merits discipline. Reinstatement without back pay will serve as a sufficiently harsh punishment under the circumstances."

The second decision, on the other hand, while finding that "[t]he record supports the conclusion that the grievant engaged in conduct which clearly warrants discipline" ordered reinstatement with full back pay to March 9, 1990.

This court agrees with the plaintiff's position that the award should be set aside. As previously mentioned, this court does not believe that the first award was meant to be a draft decision. Obviously, if it were only a draft, the panel would certainly be free to change its mind and issue a completely opposite decision. In the present case, however, the very essence of the deliberation process was thwarted when, without any debate or discussion, Torres simply issued her decisions. Having been reprimanded by the board administrator (the first decision being declared invalid), she convened an executive session. The evidence indicated that Avallone and Romanow stated their respective positions but there was no discussion among the panel members about an appropriate penalty or remedy, if any, for the acts of...

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