City of New Haven v. Local 884, Council 4, AFSCME, AFL-CIO

• Decision Date: 18 June 1996
• Docket Number: AFL-CIO,No. 15307,15307
• Citation: 677 A.2d 1350,237 Conn. 378
• Court: Connecticut Supreme Court
• Parties: CITY OF NEW HAVEN v. LOCAL 884, COUNCIL 4, AFSCME,

Page 1350

677 A.2d 1350

237 Conn. 378

CITY OF NEW HAVEN v. LOCAL 884, COUNCIL 4, AFSCME, AFL-CIO.

No. 15307.

Supreme Court of Connecticut.

Argued April 30, 1996.

Decided June 18, 1996.

J. William Gagne, Jr., Wethersfield, for appellant (defendant).

Steven G. Mednick, Corporation Counsel, with whom was Steven L. Samalot, Assistant Corporation Counsel, for appellee (plaintiff).

Before PETERS, C.J., and BORDEN, BERDON, KATZ and PALMER, JJ.

KATZ, Associate Justice.

The plaintiff, the city of New Haven, discharged the grievant, Benedetto Minichino, from his position as a sanitarian on April 18, 1986. The state board of mediation and arbitration (board), after denying a continuance requested by the plaintiff due to its attorney's illness, issued an arbitration award in favor of the grievant. The plaintiff appealed to the trial court, which found misconduct on the part of the board pursuant to General Statutes § 52-418(a)(3) on the basis of the board's refusal to grant the continuance. ¹ Because the trial court also found, however, that the plaintiff had waived any defect in the proceedings due to the board's misconduct, it denied the plaintiff's application to vacate the arbitration award. The Appellate Court reversed the judgment of the trial court, holding that the misconduct of the board required that the award be vacated. New Haven v. Local 884 Council 4, AFSCME, AFL-CIO, 38 Conn.App. 709, 714, 662 A.2d 818 (1995). ² The dispositive issue in this appeal is whether a party may waive misconduct, as defined in § 52-418(a)(3), by an arbitration board. We conclude that a party may waive such misconduct, and that in this case the trial court properly found that the plaintiff had waived the misconduct on the part of the board.

The record discloses the following undisputed facts. Following the plaintiff's termination of the grievant's employment on April 18, 1986, the defendant, Local 884, Council 4, AFSCME, AFL-CIO, filed a grievance on his behalf with the board, which issued an award in favor of the grievant. The plaintiff appealed to the trial court and, following a complicated procedural history not relevant to this appeal, the matter was returned to the board, before which each party sought and received at least one continuance. The matter was then assigned for what was to be a final hearing on August 14, 1991.

Clifton E. Graves, Jr., then counsel for the plaintiff, became ill the night before the scheduled hearing. Graves telephoned the board offices the next morning and spoke first with counsel for the defendant, who advised him that the granting of a continuance was the board's decision. Graves spoke next with the board chairperson, who gave him three options: (1) attend the hearing in person; (2) send an alternate from the office of the corporation counsel; or (3) forfeit his right to be present at the hearing.

Graves testified that, because of the nature of his illness and the lack of time to prepare someone to take his place, no satisfactory alternate was available. The board and the defendant then proceeded with the hearing. The board drafted a proposed resolution, which the chairperson read to Graves over the telephone. Graves agreed to listen to the proposed resolution because, as he testified, "if in fact the board was determining to move forward, which I got clear indications that was the case, then the only alternative we had was perhaps in the best interest of the [plaintiff] to look at, or at least to listen to, the proposed resolution to this matter." Graves agreed to the proposed resolution, which was subsequently issued by the board as a written arbitration award.

The plaintiff filed an application to vacate the arbitration award in the Superior Court, claiming that the board's refusal to grant a continuance to Graves due to his illness was improper, and that the subsequent resolution Graves entered into was the result of coercion by the board. The defendant filed an application to confirm the award.

The trial court "agree[d] with the plaintiff's first claim, that it was improper to deny Mr. Graves a continuance because of illness. This same request under these circumstances made to this court would have produced an affirmative response and the matter would be reassigned. The court recognizes the need to move business and afford litigants speedy results. However, a sudden illness and the lack of an available replacement should not determine the rights of parties. It was misconduct on the part of the Board to refuse to postpone the hearing under these circumstances."

Nevertheless, the trial court concluded that the plaintiff had waived any defect in the proceedings and, consequently, decided not to vacate the award pursuant to § 52-418(a)(3). The court had heard testimony by two members of the board. The chairperson testified that she had discussed the matter "fully and carefully" with Graves and had told him that he did not have to accept the resolution crafted by the board and counsel for the defendant. The management member of the board testified that he had explained the agreement to Graves and that Graves had told him that he was in complete agreement. The court, after considering these factual circumstances, explicitly stated that it did "not find that [the] agreement was the result of coercion, but was entered into freely and voluntarily."

In reaching that conclusion, the trial court noted that Graves was disadvantaged because he had been ill, had not been physically present during negotiations, and had been told that the matter would not be postponed. The court added, however, that Graves "was a practicing lawyer who is presumed to know the remedies he would have upon the denial of his request for a continuance. He also had a duty to protect his client, the plaintiff. Certainly, an award made over his objection would be more likely to be overturned than one in which he joined." The court further stated that, "[w]hile an attorney is an advocate and not a gladiator, there are times when one must resist persuasion, temptation and even coercion.... [E]ven if he felt they were exerting pressure on him, [Graves] should have been able to utilize his own free will and resist such tactics." The court concluded that, "[t]hough a continuance should have been granted, once Mr. Graves went on to negotiate he waived any defect in the proceedings up to that point." Accordingly, the trial court denied the plaintiff's application to vacate the arbitration award. ³

The plaintiff appealed from that judgment to the Appellate Court. The Appellate Court addressed the issue of whether the trial court had "improperly denied the application to vacate the arbitration award on a finding that the arbitrators had committed misconduct in violation of General Statutes § 52-418(a)(3)." New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, supra, 38 Conn.App. at 710, 662 A.2d 818. The Appellate Court concluded that, upon finding misconduct, ⁴ the trial court was required to grant the application to vacate the arbitration award and that the issue of waiver was, therefore, not before that court. Accordingly, the Appellate Court reversed the decision of the trial court. Id., at 714, 662 A.2d 818. The defendant subsequently petitioned this court for certification to appeal, ⁵ which we granted. We reverse the judgment of the Appellate Court.

In their briefs to this court, the plaintiff and the defendant focus their arguments on whether the word "shall" in § 52-418(a)(3) is mandatory or permissive. See footnote 1. The plaintiff argues that the language is mandatory, while the defendant argues that it is merely permissive. Because we conclude that under the circumstances of this case a party may waive his or her rights under § 52-418(a)(3), regardless of whether the statutory language is mandatory or permissive, we focus on the issue of waiver. ⁶

At oral argument, the plaintiff initially argued that the failure to postpone a hearing upon sufficient cause shown is the type of misconduct that goes to the integrity of the arbitral process and, therefore, may never be waived. The defendant argued in response that it would be nonsensical to hold that a failure to postpone a hearing is never a waivable defect. The defendant offered as an example a situation in which misconduct is expressly waived and neither party is prejudiced by such waiver, but the losing party then seeks to vacate the award on grounds of misconduct. The defendant also argued that, given the strong public policy favoring arbitration, and the resultant interest in upholding and preserving arbitration awards, it is inconsistent to require vacation of an arbitral award every time there is a finding of arbitral misconduct. The plaintiff conceded, in the face of these arguments, that § 52-418(a)(3) rights may be explicitly waived. We agree with the defendant that misconduct under § 52-418(a)(3) may be waived, either expressly or impliedly, by the injured party.

Waiver is the "intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Advest, Inc. v. Wachtel, 235 Conn. 559, 569, 668 A.2d 367 (1995). "In general, federal and state constitutional and statutory rights can be waived. See, e.g., Johnson v. Manson, 196 Conn. 309, 324, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787, reh. denied, 475 U.S. 1061, 106 S.Ct. 1290, 89 L.Ed.2d 597 (1986); Grecki v. New Britain, 174 Conn. 200, 201-202, 384 A.2d 372 (1978)." ⁷ Hensley v. Commissioner of Transportation, 211 Conn. 173, 178, 558 A.2d 971 (1989). For example, "[a] criminal defendant has the capacity to waive many of his or her fundamental procedural rights. The defendant can waive the right to counsel; Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Frye, 224 Conn. 253, 617 A.2d 1382 (1992); the right to remain silent; Miranda v....