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

• Decision Date: 09 December 1986
• Docket Number: No. 4432,4432
• Citation: 9 Conn.App. 260,518 A.2d 941
• Court: Connecticut Court of Appeals
• Parties: LOCAL 530, AFSCME, COUNCIL 15 v. CITY OF NEW HAVEN.

Page 941

518 A.2d 941

9 Conn.App. 260

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

No. 4432.

Appellate Court of Connecticut.

Argued Oct. 8, 1986.

Decided Dec. 9, 1986.

Frank J. Raccio, New Haven, for appellant (plaintiff).

H. Gordon Hall, Asst. Corp. Counsel, New Haven, for appellee (defendant).

Before DUPONT, C.J., and HULL and SPALLONE, JJ.

HULL, Judge.

This case involves the narrow issue of whether an arbitration award by the Connecticut board of mediation and arbitration should be vacated on the ground of "evident partiality" of an arbitrator who had been appointed by the mayor of the city of New Haven to the representative policy board of the south central regional water authority. We conclude that the trial court was correct in refusing to vacate the award.

For disciplinary reasons, the New Haven police chief suspended Officer Thomas Morrissey for five days without pay. In accordance with the collective bargaining agreement, he submitted a grievance through the plaintiff Council 15 (hereinafter "the union") to the board of mediation and arbitration. The board designated a tripartite panel to arbitrate the dispute. This panel consisted of Thomas J. Staley, panel chairman and public member, Angelo Monitto, management member, and Frank J. Avallone, labor member. At the start of the hearing, the union moved that Avallone be disqualified. The basis for the motion was that Avallone was a "mayoral appointee." No further representations concerning his appointed capacity were made in support of the motion. The arbitration panel denied the motion and proceeded with the hearing. The board ruled that the five day suspension was not for just cause and ordered it modified to a one day suspension without pay. The plaintiff then filed suit in Superior Court seeking an order vacating the board's award. It claimed that the rendition of the award by a panel of arbitrators that included a city appointee represented evident partiality on the part of that arbitrator in violation of General Statutes § 52-418(a)(2). ¹ The defendant filed a cross application to confirm the award. The court denied the application to vacate and granted the cross application. This appeal followed. The parties stipulated to the court that Avallone had been appointed to the south central regional water authority by the mayor of New Haven before the commencement of the arbitration proceedings. The plaintiff conceded at trial and in this court that there was no evidence of impropriety or misconduct on the part of the arbitrators. The court's memorandum of decision stated simply that: "The plaintiff's sole claim is that the panel member created an appearance of bias. It is the finding of the court that there is no evidence to support the alleged appearance of bias."

The south central regional water authority, the south central regional water district and the representative policy board were created by Connecticut Special Act No. 77-98, as amended by Connecticut Special Act No. 78-24, §§ 3, 4 and 5. The authority was created to provide and assure the provision of an adequate supply of pure water at a reasonable cost within the regional water district. The authority is described in the special act creating it as a public corporation, a public instrumentality and a political subdivision. The functions of the representative policy board include the power to approve (1) water rates established by the authority, (2) the disposition of land and establishment of land use standards, (3) the initiation of large-scale construction projects, (4) the acquisition of any other water system, (5) the location of a new filter plant, if necessary, and certain other items. The voting power of each member of the board is a weighted vote based upon the number of customers and the number of acres owned by the authority in the municipality from which the member has been appointed. Avallone, the board member named by the city of New Haven, had the largest weighted vote.

The plaintiff claims that close judicial scrutiny should be paid to the question of "evident partiality" because Avallone was the "labor member" of the tripartite arbitration panel. When an employer and employee organization submits a grievance to the Connecticut board of mediation and arbitration for arbitration, a tripartite panel of board members is assigned to the case unless the parties agree to a single member. See General Statutes §§ 31-93 and 31-97. ² Such a panel was set up in this case. The members of the tripartite panel are empowered by statute to represent the interests of employers, employees, and the public. See General Statutes §§ 31-91 and 31-92. ³ When an alternate member 518 A.2d 943 serves on a panel in place of a member, he is required to represent the same interest as the member in whose place he serves. General Statutes § 31-92. The plaintiff points out that Avallone was an alternate labor member of the board. He was not designated by the plaintiff to serve in the arbitration proceeding in question. Thus, the plaintiff argues that it was the labor member, the plaintiff's representative on the arbitration panel, who gave "the appearance of bias" in favor of the employer who appointed him. The plaintiff asserts that since the claim of an "appearance of bias" relates to an arbitrator who is charged by statute with representing the interest of the party asserting the claim, a conflict of interest can be inferred which amounts to "evident partiality." We conclude that no special close judicial scrutiny is required other than that which we are sworn to give in every case.

The defendant also claims that the limited judicial scrutiny of arbitration awards requires a strict rule concerning the appearance of bias of arbitrators. The limited scope of judicial review of awards is clearly the law in Connecticut. Middletown v. Police Local, No. 1361, 187 Conn. 228, 231, 445 A.2d 322 (1982). American Motorists Ins. Co. v. Brookman, 1 Conn.App. 219, 221-22, 470 A.2d 253 (1984), cert. denied, 193 Conn. 801, 473 A.2d 1226 (1984); State v. Connecticut Council 4, CEU, AFSCME, 7 Conn.App. 286, 289, 508 A.2d 806 (1986); Hartford v. Local 760, 6 Conn.App. 11, 13-14, 502 A.2d 429 (1986). The burden of proof is on the movant. Milford Employee Association v. Milford, 179 Conn. 678, 682-83, 427 A.2d 859 (1980).

The defendant argues that the relationship of Avallone with the city is free from factors allowing the city to pressure him or cause him to identify his interests with those of the city. This argument, however, does not meet head on the plaintiff's argument. The plaintiff presents the very narrow issue that it doesn't "look right" if the labor member of the arbitration panel has earlier been appointed by the employer to an important position affecting the employer's interests.

The plaintiff particularly relies on Commonwealth Coatings Corporation v. Continental Casualty Co., 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968). In Commonwealth Coatings, the petitioner, a subcontractor, had sued the sureties on the prime contractor's bond to recover money allegedly due on a painting job. Under the arbitration clause in the contract, the petitioner appointed one arbitrator, the prime contractor appointed another, and the two appointed a third. The third arbitrator was an engineering consultant whose services were used sporadically by the prime contractor. He was paid about $12,000 over four or five years for his services. The relationship "went so far as to include the rendering of services on the very projects involved in [the arbitration]." Id., 146, 89 S.Ct. at 338. The petitioner challenged the arbitration award on the ground that this close business connection was not disclosed until after the award was made. The Court of Appeals affirmed the District Court's refusal to set aside the award. The Supreme Court reversed, holding that even in the absence of actual fraud or bias on the part of an arbitrator, an arbitration award should be vacated where the arbitrator failed to disclose a prior business connection with one of the parties.

The applicable federal legislation authorized vacation of an award which was " 'procured by ... undue means' or '[w]here there was evident partiality ... in the arbitrators.' " Id., 147, 89 S.Ct. at 338. The majority analogized the appropriate test to that required of the judiciary stating that "this canon of judicial ethics rests on the premise that any tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias." Id., 150, 89 S.Ct. at 340. The court also stated a stricter rule for arbitrators than judges, holding that "[i]t is true that arbitrators cannot sever all their ties with the business world, since they are not expected to get all their income from their work deciding cases, but we should, if anything, be even more scrupulous to safeguard the impartiality of arbitrators than judges, since the former have completely free rein to decide the law as well as the facts and are not subject to appellate review." Id., 148-49, 89 S.Ct. at 339.

There is a paucity of Connecticut authority on the exact point in issue. In Schwarzchild v. Martin, 191 Conn. 316, 464 A.2d 774 (1983), the issue of disqualification of an arbitrator for evident partiality was not involved. The court stated in not upholding a party's claim of unlawful bias that "[t]his court has summarily rejected attempts to overturn arbitration awards on grounds of partiality in cases, like the present one, which lacked sufficient evidentiary support. Von Langendorff v. Riordan, 147 Conn. 524, 163 A.2d 100 (1960)." Schwarzschild v. Martin, supra, 191 Conn. at 327, 464 A.2d 774. Von Langendorff likewise did not involve the issue in this case.

Although it did not face the exact situation with which we are faced, Petrowski v. Norwich Free Academy, 199 Conn. 231, 506 A.2d 139 (1986), is dispositive. The Supreme Court,...