State v. AFSCME, Council 4, Local 391.

• Decision Date: 06 August 2013
• Docket Number: No. 18749.,18749.
• Citation: 309 Conn. 519,69 A.3d 927
• Parties: STATE of Connecticut v. AFSCME, COUNCIL 4, LOCAL 391.
• Court: Connecticut Supreme Court

309 Conn. 519

69 A.3d 927

STATE of Connecticut

v.AFSCME, COUNCIL 4, LOCAL 391.

No. 18749.

Supreme Court of Connecticut.

Argued Nov. 30, 2012.

Decided Aug. 6, 2013.

J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellant (defendant).

Thomas P. Clifford, II, assistant attorney general, with whom were Ann H. McCarthy, certified legal intern, and, on the brief, George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (plaintiff).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.^*

ROGERS, C.J.

The issue to be decided in this appeal is whether an arbitrator's award violates public policy when an employer's decision to dismiss an employee who has engaged in sexual harassment is reduced to a one year suspension without pay. The Appellate Court affirmed the judgment of the trial court vacating on public policy grounds an arbitration award reinstating the grievant, Scott Gamache, to his employment with the plaintiff, the state of Connecticut. State v. AFSCME, Council 4, Local 391, 125 Conn.App. 408, 422, 7 A.3d 931 (2010). The defendant, AFSCME, Council 4, Local 391, filed a petition for certification to appeal to this court, which we granted limited to the following issue: “Did the Appellate Court properly conclude that the arbitration award was correctly vacated on the ground that it violated the public policy against workplace sexual harassment?” State v. AFSCME, Council 4, Local 391, 300 Conn. 912, 13 A.3d 1101 (2011). We answer this question in the affirmative and, accordingly, affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts and procedural history. “The plaintiff and the defendant entered into a collective bargaining agreement effective December 2, 2004, through June 30, [309 Conn. 522]2008. On December 5, 2005, the grievant, a correctional officer employed by the [D]epartment of [C]orrection (department) and member of the bargaining unit represented by the defendant, was discharged from his employment for allegedly engaging in an open pattern of sexual harassment in knowing violation of the department's administrative directive 2.2.¹ The defendant filed a grievance against the plaintiff, and the parties submitted the controversy to arbitration pursuant to the terms of the collective bargaining agreement. The parties joined in framing the following issue to be submitted to the arbitrator: ‘Was the dismissal of the [g]rievant for just cause? ² If not, what shall be the remedy consistent with the [collective bargaining agreement]?’

“On September 20, 2007, following a five day hearing, the arbitrator issued an arbitration award that reduced the grievant's dismissal to a one year suspension from his position without pay or benefits. Specifically, the award provided: ‘The dismissalof the [g]rievant was not for just cause. The dismissal is reduced to a suspension of [the] [g]rievant from December 5, 2005, to December 5, 2006. Said suspension shall be without pay and benefits. [The] [g]rievant is hereby reinstated as of December 6, 2006, to the position he held at the time of his termination. He shall be paid the wages that would have been due an employee in the position to which [the] [g]rievant is being reinstated commencing on December 6, 2006, less any earnings [the] [g]rievant received from December 6, 2006 to the date he actually returns to work.... [The] [g]rievant shall return to his position within thirty (30) days of the date of this [a]ward.’

“In reaching his decision, the arbitrator also set forth the following factual findings: ‘[The] [g]rievant in this matter was disciplined by way of termination because of his violation of [a]dministrative [d]irective 2.2 .... The actions allegedly committed by [the] [g]rievant were verbal comments made about [the] [c]omplainant ³ in this matter and other individuals. Some of the comments referred to oral sex in reference to [the] [c]omplainant in this matter, which was done at his pleasure or as compensation for something [the] [c]omplainant wanted. Some of the actions charged against [the] [g]rievant involve [his] personal touching of [the] [c]omplainant. The comments and the physical touching were allegedly done publicly in front of other employees and inmates of the institution. The acts alleged ... did not all happen at once, but it was alleged that the entire set of acts complained about ... happened over a substantial period of time....

“ ‘This [a]rbitrator does find that [the] [g]rievant knew about the [department's] zero tolerance [policy] in reference to [a]dministrative [d]irective 2.2. Because of that, discipline may be called for even though the alleged acts were only done once. One could find that some of the witnesses stretched the truth to some extent because of their own personal feelings either for or against [the] [g]rievant or [the] [c]omplainant in this matter. This [a]rbitrator finds that the accusations made by [the] [c]omplainant are true and were substantiated by the witnesses presented by the [plaintiff]; however, they were not sufficient to require the discipline given [the] [g]rievant. The [defendant] presented evidence of similar incidents as this case that established that the discipline given to [the] [g]rievant was too severe.’ ...

“Thereafter, the plaintiff filed this application to vacate the arbitral award pursuant to General Statutes § 52–418.⁴ The plaintiff claimed that the enforcement of the award, inter alia, violated public policy referenced in Connecticut statutory and common law and disregarded ‘the managerial responsibility of the [plaintiff], as an employer’ to enforce a ‘zero tolerance policy against sexual harassment in the workplace.’ In response, the defendant filed a motion to confirm the award pursuant to General Statutes § 52–417.⁵

“The court, by memorandum of decision, granted the plaintiff's application to vacate the arbitrator's award and denied the defendant's application to confirm the award. The court first determined that there was a well-defined and dominant public policy against workplace sexual harassment as established by General Statutes § 46a–60 (a)⁶ and administrative directive 2.2. The court also noted that the grievant was aware of the department's zero tolerance policy proscribing sexual harassment, ‘yet [he] repeatedly violated that policy over a long period of time. He continued his lewd and offensive conduct toward his fellow employee even after that employee asked him to stop.’ Finally, the court concluded that ‘[a]nything less than termination of the employment of [the grievant] would be insufficient to uphold the important public policy against workplace sexual harassment.’ ” (Emphasis in original; footnotes altered.) State v. AFSCME, Council 4, Local 391, supra, 125 Conn.App. at 410–13, 7 A.3d 931.

The defendant appealed from the judgment of the trial court to the Appellate Court. The Appellate Court concluded that there is a clearly defined and dominant public policy against sexual harassment in the workplace in Connecticut and that the arbitrator's decision violated that public policy. Id., at 422, 7 A.3d 931. Accordingly, it affirmed the judgment of the trial court. This certified appeal followed. The defendant claims that there is no well-defined, dominant public policy against sexual harassment in the workplace and, even if there is, the arbitrator's decision did not violate that policy. We conclude that there is a clear, well-defined and dominant policy against sexual harassment in this state. We further conclude that the arbitrator's interpretation of the just cause provision of the collective bargaining agreement as barring the grievant's dismissal violated that policy.

We begin our analysis with the standard of review. “We have consistently stated that arbitration is the favored means of settling differences and arbitration awards are generally upheld unless an award clearly falls within the proscriptions of § 52–418 .... A challenge of the arbitrator's authority is limited to a comparison of the award to the submission.” (Citations omitted; internal quotation marks omitted.) State v. AFSCME, Council 4, Local 387, AFL–CIO, 252 Conn. 467, 473, 747 A.2d 480 (2000). “Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” (Internal quotation marks omitted.) Id., at 474, 747 A.2d 480.

“In spite of the general rule that challenges to an arbitrator's authority are limited to a comparison of the award to the submission, an additional challenge exists under § 52–418(a)(4) when the award rendered is claimed to be in contravention of public policy.... This challenge is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them.... When a challenge to the arbitrator's authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator's decision but with the lawfulness of enforcing the award .... Accordingly, the public policy exception to arbitral authority should be narrowly construed and [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, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.... The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated.... ...