State v. Connecticut Police and Fire Union (NP-5)
| Decision Date | 22 May 2017 |
| Docket Number | HHDCV166069527S |
| Court | Connecticut Superior Court |
| Parties | State of Connecticut v. Connecticut Police and Fire Union (NP-5) (Mark Minto, Grievance) |
UNPUBLISHED OPINION
On July 5, 2016, pursuant to General Statutes § 52-418 and § 52-420, the plaintiff, State of Connecticut, acting through the Department of Mental Health and Addiction Services (DMHAS), and the Office of Labor Relations of the Office of Policy and Management, as the duly designated employer under the State Employees Relations Act a/k/a Collective Bargaining for State Employees, filed an application to the Superior Court to vacate and/or modify an arbitration award, dated June 2, 2016 (award). In response on August 1, 2016, the defendant, Connecticut Police and Fire Union (NP-5) (union), filed an answer and a cross application to confirm the award, pursuant to General Statutes § 52-417. The underlying grievances contested the discipline of union member, Officer Mark Minto, a DMHAS police officer (grievant). The award was issued pursuant to a stipulated unrestricted submission by the parties to a written collective bargaining agreement (July 1, 2008-June 30, 2012) (hereinafter CBA). The CBA provides for binding grievance arbitration and controls the June 2, 2016 award. The arbitrator, Jeffrey M. Selchick, Esq., was duly designated by mutual agreement of the parties. Hearings were held on November 20, 2014, December 3, 2015, and February 25, 2016. Post-hearing briefs were filed and the record was closed on April 29, 2016.
The parties stipulated to the following issues to be determined by the arbitrator:
1. Was the discipline of the Grievant for just cause? If not, what shall the remedy be, consistent with the NP-5 Contract?
2. Did the State violate Article 2, Sections 1[1] 2, [2] Article 17, Sections 1 [3] 5, [4] & 6[5] (respectively) as is alleged in grievances 09-3982; -4001; & -4015? If so, what shall be the remedy consistent with the NP-5 Contract?
The facts underlying the grievances as found by the arbitrator are not in dispute and are summarized as follows:
The grievant has been a DMHAS employee since January 1999, assigned to Connecticut Valley Hospital as a police officer. The events giving rise to his grievances occurred on May 29, 2012. The grievant was arrested and charged with breach of peace in the second degree, criminal impersonation and following too closely, in connection with an incident reported as " road rage" that began on Route 9 involving another driver. Both parties called 911. The grievant was off duty and on his way home from work at the time. The incident was reported to the grievant's supervisor by a responding state trooper. The grievant informed the trooper that he had a legally registered handgun owned by him in his (personal) vehicle in a gym bag while at work on CVH grounds that day. There is no evidence that he had the weapon on his person at any time after leaving CVH that day and there is no claim that he displayed the handgun while interacting with the other motorist. On the date in question, there was a DMHAS work rule that provided that " [firearms or weapons of any kind are prohibited on work sites." [6]
As a result of the incident and his arrest " on multiple charges, " on May 30, 2012, the grievant was notified by letter from the Department of Emergency Services and Public Protection (DESPP), that his " Special Police Powers" [7] were revoked. The letter also indicated that if the charges were resolved in his favor, DMHAS could request restoration of his police powers by DESPP. In addition, DESPP rescinded grievant's handgun permit.[8]
On June 6, 2012, the grievant received a letter from DMHAS notifying him that he was no longer qualified to serve as a police officer at the hospital because DESPP had revoked his special police powers. The letter instructed him to attend a predetermination hearing, and further stated that the action under consideration was his immediate, administrative separation from state service because he no longer met the requirements for his job classification. On June 8, 2012, the grievant received another letter from DMHAS placing him on voluntary leave without pay, as of June 6, 2012, because it was necessary to investigate the criminal charges, violation of DMHAS work rules and other state policies. Ultimately, the grievant received a letter, dated September 26, 2012, from the DMHAS Chief Police Officer Aleksunes informing him that he was suspended from work for thirty (30) working days, from September 27, 2012 to November 9, 2012, without pay, in lieu of termination from state employment. On the same day, Chief Aleksunes transmitted another letter informing the grievant that upon completion of his suspension and his return to work on November 9, 2012, if his police powers were reinstated and he was deemed qualified to perform his duties, he would return to his position as a police officer with the same schedule and shift, but if his special police powers remain revoked, he would be deemed not qualified to perform his duties as a police officer and would work as a " Building and Grounds Patrol Officer, night shift, Whiting Forensic Institute."
Thereafter, the defendant filed four grievances on behalf of the grievant which were submitted to arbitration. The first grievance challenged the thirty (30) day suspension on the ground that it was issued " without cause"; the second grievance challenged an " unsatisfactory" performance appraisal on the ground that it was issued " without cause"; the third grievance asserted that DMHAS " demoted" the grievant by directing him to return to work as a " Building and Grounds Officer" after his suspension was served; and the fourth grievance maintained that the grievant was placed on unpaid administrative leave " without cause."
On June 2, 2016, the arbitrator issued the award. He resolved the grievances concerning the thirty (30) day suspension, the unsatisfactory performance appraisal and the unpaid administrative leave in favor of the plaintiff and resolved the grievance concerning the demotion in favor of the defendant. The plaintiff's application to vacate and/or modify the award and the defendant's application to confirm award focus only on the part of the award concerning the demotion grievance. On that subject, the arbitrator found that the charges that gave rise to the grievant's suspension were all resolved in his favor by February 4, 2015, and that the union president requested in a letter to the Chief Aleksunes immediate restoration of the grievant's special police powers and his return to the position of police officer. The arbitrator further found that there was no record that DMHAS ever requested the restoration of the grievant's special police powers; there was no question that DMHAS never had the ability to restore the grievant's police powers on its own; therefore, the agency's assignment of the grievant to the Building and Grounds Patrol Officer position cannot be seen as a demotion. However, because the May 30, 2012 letter informed advised that DMHAS could request restoration of the grievant's police powers if the criminal charges were resolved in his favor, the arbitrator found that " the lack of such a request by DMHAS did result in demotion but only after DMHAS" was notified of the favorable resolution of the charges by the union president on February 27, 2015. (Emphasis original.) Finally, the arbitrator concluded that upon receipt of that letter, Accordingly, the arbitrator, in relevant part, entered the following award:
The discipline of the Grievant was for just cause. All grievances are denied except for the grievance claiming that Grievant was 'demoted' after serving his 30 day suspension . . . That grievance is sustained . . . and DMHAS is directed to seek the restoration of Grievant's special police powers and, beginning with the date of March 29, 2015[9] and ending on the date Grievant is returned to the DMHAS Police Officer position he occupied when suspended, Grievant should receive the difference between the salary of DMHAS Police Officer and the salary of a Building and Ground Patrol Officer.
In the plaintiff's application to vacate and/or modify [10] the plaintiff claims that the arbitrator exceeded his authority in violation of the collective bargaining agreement in prescribing the remedy that is set forth in the award.[11] Specifically, the plaintiff claims that the arbitrator made an " obvious remedial error" in that he presumed DESPP, which is not a party to the arbitration, " will independently reinstate" the grievant's police powers, despite the finding of misconduct " and a matter of record by the just cause finding sustaining his thirty day suspension." The plaintiff alternatively seeks modification of the award because it " orders the state to pay Grievant retroactively to March 29, 2015, for a period of time in which he is unqualified to be a special police officer."
On the other hand, in support of its motion, the defendant claims that the award should be confirmed for the reason that it conforms to the submission and the arbitrator acted within the scope of his power pursuant to the collective bargaining agreement. Specifically, the defendant argues that the award does none of the things argued by the...
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