City of New Haven v. AFSCME, Council 15, Local 530, AFL-CIO

• Decision Date: 26 July 1988
• Docket Number: No. 13363,AFL-CIO,13363
• Parties: CITY OF NEW HAVEN v. AFSCME, COUNCIL 15, LOCAL 530,
• Court: Connecticut Supreme Court

Page 186

544 A.2d 186

208 Conn. 411

CITY OF NEW HAVEN v. AFSCME, COUNCIL 15, LOCAL 530, AFL-CIO.

No. 13363.

Supreme Court of Connecticut.

Argued June 1, 1988.

Decided July 26, 1988.

Edward Mattison, Deputy Corp. Counsel, New Haven, for appellant (plaintiff).

Jackson T. King, with whom, on the brief, was Susan King Shaw, New Haven, for appellee (defendant).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

PETERS, Chief Justice.

The sole issue in this appeal is whether arbitrators violated public policy by awarding back pay to a policeman for the period between his termination for a criminal conviction and his reinstatement following reversal of his conviction on appeal. Pursuant to a collective bargaining agreement between the parties, the defendant, AFSCME, Council 15, Local 530, AFL- (AFSCME), invoked arbitration on behalf of the policeman, Ralph Hodge. The arbitrators found, over the city's objection, that the grievance was arbitrable and that Hodge had suffered discipline without just cause. They awarded Hodge the wages and benefits that he had lost as a result of his discharge. ¹ The city then filed an application in the Superior Court to vacate the arbitration award pursuant to General Statutes § 52-418. ² The trial court denied the city's application. The city has appealed that judgment. We find no error.

The relevant facts are not in dispute. Patrolman Ralph Hodge of the New Haven police department was convicted of violating General Statutes § 29-9, ³ which prohibits a police officer from accepting gifts or awards to influence his behavior in office. In 1983, the board of police commissioners discharged Hodge. The sole ground for discharge was the fact that Hodge had been convicted. The city neither referred to the underlying misconduct nor undertook to inquire into what had transpired. The city relied instead on that part of § 29-9 that provides that a police officer convicted of violating that section "shall be dishonorably discharged from the division of state police or from the police department." At the time of Hodge's discharge, the city was aware that Hodge was appealing his conviction.

Hodge's appeal resulted in the reversal of his conviction. The Appellate Court ruled that the trial court had erroneously determined that § 29-9 is a lesser included offense of General Statutes § 53a-148. State v. Hodge, 5 Conn.App. 125, 128-29, 497 A.2d 79 (1985). On further review after certification, this court concluded that Hodge's conviction had to be set aside because the trial court had made an erroneous finding about the intentionality of Hodge's conduct. State v. Hodge, 201 Conn. 379, 383, 517 A.2d 621 (1986). On January 26, 1987, the city voluntarily reinstated Hodge without loss of seniority but denied his claim for back pay and benefits for the period of his discharge.

AFSCME filed a grievance on behalf of Hodge and submitted the dispute to the Connecticut state board of mediation and arbitration. ⁴ The city objected, claiming that the dispute was not arbitrable. It contended that Hodge's termination "was required by law and therefore is not subject to examination under the contract." The city did not, however, avail itself of the opportunity to obtain an immediate judicial determination of arbitrability pursuant to General Statutes § 52-415. ⁵ Daginella v. Foremost Ins. Co., 197 Conn. 26, 34, 495 A.2d 709 (1985). In these circumstances, despite the city's reluctance to do so, it submitted the arbitrability of the grievance to the arbitrators, and is as bound by the arbitrators' resolution of that issue as it is bound by any other arbitral determination. East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 648, 539 A.2d 125 (1988); Costello Construction Corporation v. Teamsters Local 559, 167 Conn. 315, 318, 355 A.2d 279 (1974).

The arbitrators framed the issues as follows: "Is the grievance arbitrable? If so, has Officer Ralph Hodge suffered discipline without just cause by virtue of the City's refusal to make him whole for all losses he has suffered from the date of his discharge to the date of his reinstatement? If so, what shall be the remedy?" The arbitrators decided that the grievance was arbitrable, that Hodge had suffered discipline without just cause and that the city should pay Hodge all wages and benefits that he lost as a result of his discharge. The trial court denied the city's application to vacate the award.

On appeal, the sole issue is whether the arbitration award so clearly violated public policy that it should have been vacated by the trial court as exceeding the arbitrators' power under § 52-418(a)(4). The city maintains that it cannot be required to give back pay to a police officer whose discharge was mandated by statute. AFSCME claims, to the contrary, that the arbitrators' award is not inconsistent with any statutory mandate or the public policy of this state, and should therefore be enforced. We agree with AFSCME.

This court has long endorsed arbitration as "an alternative method of settling disputes 'intended to avoid the formalities, delay, expense and vexation of ordinary litigation.' Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981); Administrative & Residual Employees Union v. State, 200 Conn. 345, 349, 510 A.2d 989 (1986)." O & G/O'Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987). We have recognized that when arbitration is consensual, rather than statutorily imposed, judicial review is limited in scope. Convalescent Center of Bloomfield, Inc. v. Department of Income Maintenance, 208 Conn. 187, 199, 544 A.2d 604 (1988); O & G/O'Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 203 Conn. 154, 523 A.2d 1271; Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983); Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983); Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 583, 440 A.2d 774 (1981). If the parties mutually agree to submit their dispute to arbitration, the resulting award is not reviewable for errors of law or fact. Stratford v. Local 134, IFPTE, 201 Conn. 577, 585, 519 A.2d 1 (1986); Wilson v. Security Ins. Group, 199 Conn. 618, 626-27, 509 A.2d 467 (1986); Milford Employees Assn. v. Milford, 179 Conn. 678, 683, 427 A.2d 859 (1980); Waterbury v. Waterbury Police Union, 176 Conn. 401, 404, 407 A.2d 1013 (1979). Judicial review of unrestricted submissions is limited to a comparison between the submission and the award to see whether, in accordance with the powers conferred upon the arbitrators, their award conforms to the submission. O & G/O'Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 203 Conn. 153-54, 523 A.2d 1271; Bic Pen Corporation v. Local No. 134, supra, 183 Conn. 584, 440 A.2d 774; New Britain v. Board of Mediation & Arbitration, 178 Conn. 557, 562, 424 A.2d 263 (1979); Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 291, 377 A.2d 323 (1977).

In their collective bargaining agreement, the city and AFSCME agreed to arbitrate grievances involving the discharge or discipline of an employee. Although the city recognizes that the authority conferred by this agreement encompasses arbitral power to determine questions both of law and of fact, the city would have us carve out a broad public policy exception to the limited review otherwise afforded to arbitral awards. We decline to do so.

We have recognized two narrow exceptions grounded in public policy to the broad authority that arbitrators are ordinarily permitted to exercise over unrestricted submissions. First, with respect to constitutional questions, although arbitrators may decide legal issues that have constitutional implications, they exceed their authority when they address the constitutional validity of a statute. Stratford v. Local 134, IFPTE, supra, 201 Conn. 585-86, 519 A.2d 1; Carofano v. Bridgeport, 196 Conn. 623, 637-38, 495 A.2d 1011 (1985); Caldor, Inc. v. Thornton, 191 Conn. 336, 345, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985). That exception has no relevance in the present circumstances. Second, with respect to matters of public policy generally, arbitrators exceed their authority if their award orders a party to engage in conduct that is patently illegal or in clear violation of public policy. Stratford v. Local 134, IFPTE, supra, 201 Conn. 585, 519 A.2d 1; Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979); Gorman, Basic Text on Labor Law, Unionization and Collective Bargaining (1976) p. 593. The party challenging an arbitration award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. We "make every reasonable presumption in favor of the arbitration award and the arbitrator's acts and proceedings." O & G/O'Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 203 Conn. 145, 523 A.2d 1271; Administrative & Residual Employees Union v. State, supra, 200 Conn. 349, 510 A.2d 989. ⁶

Our view that public policy exceptions to arbitral authority should be narrowly construed finds support in a recent decision of the United States Supreme Court. In United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. ----, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987), the Supreme Court concluded that a policy against the operation of dangerous machinery by persons under the influence of drugs or alcohol, while "firmly rooted in common sense," did not permit a court to set aside an arbitration award. Id., 108 S.Ct. at 374. The court stated: "[A] court's refusal to enforce an arbitrator's interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate 'some explicit public policy' that is 'well defined and dominant,...