State v. AFSCME, Council 4, Local 391, SC18749

• Decision Date: 06 August 2013
• Docket Number: SC18749
• Court: Connecticut Supreme Court
• Parties: STATE v. AFSCME, COUNCIL 4, LOCAL 391

STATE v. AFSCME, COUNCIL 4, LOCAL 391

SC18749

Supreme Court of Connecticut

Dated: August 6, 2013

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EVELEIGH, J., dissenting. I respectfully dissent. While I agree with the majority that Connecticut has a strong public policy against sexual harassment in the workplace, I find no evidence in either our statutes or case law that suggests that this public policy mandates a termination of employment in every instance in which there is a factual finding of sexual harassment and this court determines that ''the employee's misconduct was so egregious that it requires nothing less than termination of the [employee's] employment so as not to violate public policy.'' (Internal quotation marks omitted.) I also respectfully suggest that another strong public policy must be considered in this matter. It is the public policy of this state to encourage employees to bargain with their employers so that both parties may enter into collective bargaining agreements regarding the parameters of the working conditions and benefits and, when employer-employee disputes under those agreements arise, to favor resolutions reached through the use of arbitration. See Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 431-32, 747 A.2d 1017 (2000). Indeed, even when review of an arbitrator's decision is de novo, the reviewing court must give deference to the arbitrator's factual determinations. See Groton v. United Steelworkers of America, 254 Conn. 35, 51-52, 757 A.2d 501 (2000). Thus, while the strong public policy against sexual harassment in the workplace dictates that someone who is found to have committed sexual harassment must receive a strict punishment, our acknowledgment of the strong public policy favoring arbitration should require us to follow the decision of the arbitrator when a strict punishment has been ordered.

Contrary to the conclusion reached by the majority, I would follow the dictates of our decision in State v. New England Health Care Employees Union, District 1199, AFL-CIO, 271 Conn. 127, 137-39, 855 A.2d 964 (2004) (New England Health Care), in which we acknowledged the strong public policy against the abuse of clients in the care of the state agency now known as the Department of Developmental Services. Even with that acknowledgment, however, this court held that the strong public policy did not mandate dismissal in every case where there has been abuse of a client. Id., 139-40. I reach this conclusion because I can find no meaningful distinction between our equally strong public policies against sexual harassment in the workplace and the abuse of clients in the care of the Department of Developmental Services. Consequently, I believe that this court cannot reach the conclusion that the public policy against sexual harassment in the workplace is so strong that, when exhibited, it requires that the offender be terminated and not reinstated with-out explicitly overruling New England Health Care. Put another way, I believe that the majority's conclusion that the facts and circumstances of the present case mandate the termination of the employment of the grievant, Scott Gamache, is in direct conflict with this court's holding in New England Health Care that an arbitration award requiring a thirty day suspension without pay was sufficient to enforce this state's strong public policy against the abuse of clients in a residential facility for the developmentally disabled.

In New England Health Care, the Department of Developmental Services had terminated an employee who was found to have abused a client. Id., 129. In that case, the arbitrator ordered a reinstatement after a thirty day suspension, without pay, and both the trial court and this court affirmed the award. Id. In the present case, the majority opinion concludes that a one year suspension for sexual harassment in the workplace was not enough and that any reinstatement would violate the strong public policy against sexual harassment in the workplace. Indeed, if we are to engage in a process of parsing the specific actions of employees in each case, I am of the opinion that we are usurping the role of the arbitrator. In my view, respectfully, the position taken in this case and New England Health Care are irreconcilable. The difference between the two cases is that, despite equally strong public policies, this court properly deferred to the decision of the arbitrator in New England Health Care while, in the present case, the majority does not. Therefore, since I cannot differentiate between these two strong public policies, I would follow the precedent established in New England Health Care and, accordingly, reverse the judgment of the Appellate Court and remand the case to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court with direction to render judgment affirming the arbitrator's award.

I understand that the majority decision rests on the premise that, in this case, it is the portion of the arbitration award which permits the employee's reinstatement that violates public policy. In my view, however, this is another way of saying that termination, not suspension, was mandated. Additionally, in my view, any reliance upon the unauthenticated letter from the Commissioner of Correction, Theresa Lantz, a document which was not entered as an exhibit and contains factual information far beyond the findings of the arbitrator, is both contrary to our law and ignores the mandate to give deference to the factual findings of the arbitrator. Therefore, I respectfully dissent.

I agree with the majority that Connecticut courts have recognized a public policy exception to the general rule of judicial deference to an arbitration award rendered pursuant to a voluntary submission. See Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992). Theexception applies, however, ''only when the award is clearly illegal or clearly violative of a strong public policy. . . . A challenge that an award is in contravention of public policy 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.'' (Citation omitted; internal quotation marks omitted.) Groton v. United Steelworkers of America, supra, 254 Conn. 45. I agree with the majority that ''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. . . . Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail in the present case only if it demonstrates that the board's award clearly violates an established public policy mandate.'' (Internal quotation marks omitted.) State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 475, 747 A.2d 480 (2000). It has been the clearly articulated law of this state that challenges under the public policy exception to arbitral authority are subject to de novo review since the decision of this court in Schoonmaker v. Cummings & Lockwood of Connecticut P.C., supra, 252 Conn. 417-18. In Schoonmaker, however, we noted that ''[b]y no means should our decision be viewed as a retreat of even one step from our position favoring arbitration as a preferred method of dispute resolution. . . . [O]ur faith in and reliance on the arbitration process remains undiminished, and we adhere to the long-standing principle that findings of fact are ordinarily left undisturbed upon judicial review.'' Id., 431-32.

The United States Supreme Court has set explicit limits on the court's involvement in the review of an arbitration award. In United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 567-68, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960), the United States Supreme Court stated that ''[t]he function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a...