State v. AFSCME, Council 4, Local 391, No. 30857.

• Decision Date: 07 December 2010
• Docket Number: No. 30857.
• Citation: 125 Conn.App. 408,7 A.3d 931
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. AFSCME, COUNCIL 4, LOCAL 391.

7 A.3d 931

125 Conn.App. 408

STATE of Connecticut

v.AFSCME, COUNCIL 4, LOCAL 391.

No. 30857.

Appellate Court of Connecticut.

Argued Sept. 15, 2010.

Decided Dec. 7, 2010.

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

Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (plaintiff).

BEACH, ROBINSON and BORDEN, Js.

BORDEN, J.

The defendant union, AFSCME, Council 4, Local 391, appeals from the judgment of the trial court granting the application of the plaintiff, the state of Connecticut, to vacate an arbitration award. The defendant claims that the court improperly (1) vacatedthe arbitration award on the ground that it violated public policy and (2) considered a letter from the commissioner of correction (commissioner) in vacating the award. We affirm the judgment of the trial court.

An arbitrator made an award reinstating the grievant, Scott Gamache, to his employment with the plaintiff. The plaintiff applied to the court to vacate the award, and the defendant thereafter filed a motion to confirm the award. The court granted the plaintiff's application to vacate and denied the defendant's motion to confirm. This appeal followed.

The following undisputed facts and procedural history are relevant to our resolution of the defendant's appeal. The plaintiff and the defendant entered into a collective bargaining agreement effective December 2, 2004, through June 30, 2008. On December 5, 2005, the grievant, a correctional officer employed by the department of correction (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 thecollective 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? 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 dismissal of 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 ² 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 entireset 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." (Emphasis added.)

Thereafter, the plaintiff filed this application to vacate the arbitral award pursuant to General Statutes § 52-418.³ Theplaintiff 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." Inresponse, the defendant filed a motion to confirm the award pursuant to General Statutes § 52-417.⁴

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) ⁵ 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." Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly concluded that enforcement of the arbitration award would violate a clearly established public policy against workplace sexual harassment. We disagree.

We begin our analysis by setting forth the applicable law regarding our review of arbitral awards, as stated by our Supreme Court. "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....

"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." (Citations omitted; internal quotation marks omitted.) State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 473-74, 747 A.2d 480 (2000). Additionally, "[e]very reasonable presumption and intendment will be made in favor of the award and of the arbitrator's acts and proceedings. Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission." (Internal quotation marks omitted.) Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd's & Cos. Collective, 121 Conn.App. 31, 52, 994 A.2d 262, cert. denied, 297 Conn. 918, 996 A.2d 277 (2010).

"Although we have traditionally afforded considerable deference to the decisions of arbitrators, we have also conducted a more searching review of arbitral awards in certain circumstances. In Garrity v. McCaskey, [223 Conn. 1, 6, 612 A.2d 742 (1992) ], thiscourt listed three recognized grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of § 52-418(a).... The judicial recognition of these grounds for vacatur evinces a willingness, in limited circumstances, to employ a heightened standard of judicial review of arbitral conclusions, despite the traditional high level of deference afforded to arbitrators' decisions when made in accordance with their authority pursuant to an unrestricted submission." (Internal quotation marks omitted.) HH East Parcel, LLC v. Handy & Harman, Inc., 287 Conn. 189, 197, 947 A.2d 916 (2008). The issue raised in this appeal concerns the second recognized exception for vacating an arbitral award, namely, whether enforcement of the award reducing the grievant's dismissal to a one year suspension violates a clear and well-defined public policy.

"The public policy exception applies 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.... [T]he 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...