Town of Wallingford v. Wallingford Police Union Local 1570, Council 15, AFSCME

• Decision Date: 10 June 1997
• Docket Number: No. AC,AC
• Citation: 45 Conn.App. 432,696 A.2d 1030
• Court: Connecticut Court of Appeals
• Parties: , 157 L.R.R.M. (BNA) 2410 TOWN OF WALLINGFORD v. WALLINGFORD POLICE UNION LOCAL 1570, COUNCIL 15, AFSCME. WALLINGFORD POLICE UNION LOCAL 1570, COUNCIL 15, AFSCME v. TOWN OF WALLINGFORD. 15594.

Page 1030

696 A.2d 1030

45 Conn.App. 432, 157 L.R.R.M. (BNA) 2410

TOWN OF WALLINGFORD v. WALLINGFORD POLICE UNION LOCAL 1570, COUNCIL 15, AFSCME.

WALLINGFORD POLICE UNION LOCAL 1570, COUNCIL 15, AFSCME v. TOWN OF WALLINGFORD.

No. AC 15594.

Appellate Court of Connecticut.

Argued March 3, 1997.

Decided June 10, 1997.

Robert J. Murray, Jr., for appellant (defendant in the first case, plaintiff in the second case).

Dennis G. Ciccarillo, New Britain, for appellee (plaintiff in the first case, defendant in the second case).

Before DUPONT, C.J., and LAVERY and FRANCIS X. HENNESSY, JJ.

LAVERY, Judge.

The defendant, ¹ the Wallingford Police Union Local 1570, Council 15, AFSCME, appeals from the judgment of the trial court vacating an arbitration award in its favor. This dispute arose out of the termination by the plaintiff town of Wallingford of Philip Nickerson's ² employment as a police officer. The defendant claims that the trial court improperly (1) found that under the collective bargaining agreement the termination of a probationary employee was not arbitrable and vacated the arbitration award pursuant to GENERAL STATUTES § 52-418(A)(4), AND (2)³ concluded that the arbitrator was guilty of misconduct under General Statute § 52-418(a)(3) when he considered evidence that was not part of the record and to which the parties were not given an opportunity to respond. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. On November 22, 1991, Philip Nickerson was hired by the plaintiff as a police officer and given probationary status for a period of two years, pursuant to the collective bargaining agreement that the plaintiff and the defendant had entered. During the course of the next year, Nickerson's supervisors conducted detailed investigations into four incidents ⁴ that involved Nickerson. After conducting these investigations, Nickerson's supervisors concluded that his performance included a premature escalation of force, arrest or detention without probable cause or justification, improper tactics, potential injury to fellow officers, potential injury to citizens and potential civil liability.

Prior to Nickerson's termination, the chief of police discussed Nickerson's conduct at length with Nickerson's supervisors and the deputy chief of police. At this meeting, Nickerson's supervisors expressed their concerns about his inappropriate response to several incidents. On November 15, 1992, the chief of police held a conference with Nickerson and terminated him from the Wallingford police.

The defendant filed a grievance protesting the termination, and an arbitration proceeding was convened. Prior to and during arbitration, the plaintiff preserved and argued the claim that the termination of a probationary employee was not subject to arbitration. Thereafter, hearings were held and the arbitrator found that the grievance was arbitrable and defined the issue as whether the termination of the grievant was for "capricious reasons." The arbitrator rendered an award sustaining the grievance, and concluded that Nickerson was entitled to be reinstated to "full status." In his memorandum, the arbitrator referred to the Department of Public Safety Administration and Operations Manual, 3d Ed., of the Connecticut state police.

The defendant filed an application to confirm the arbitration award, pursuant to General Statutes § 52-417. The plaintiff, in turn, filed an application to vacate the arbitration award. An evidentiary hearing was held by the trial court to allow the plaintiff to present evidence that the arbitrator was guilty of misconduct by referring to a manual that was not an exhibit in the arbitration hearing. The trial court subsequently granted the plaintiff's motion to vacate the arbitration award both on the issue of arbitrability and on the merits. The trial court also denied the defendant's motion to confirm the arbitration award. The plaintiff filed a motion for articulation, to which the trial court filed a supplemental memorandum of decision. In its supplemental memorandum of decision, the trial court found that the arbitrator relied on a document not in evidence, resulting in a violation of General Statutes § 52-418(a)(3), and thereby providing an additional ground for vacating the arbitration award. This appeal followed.

I

The defendant claims that the trial court improperly found that under the collective bargaining agreement the termination of a probationary employee was not arbitrable and vacated the arbitration award pursuant to General Statute § 52-418(a)(4). We disagree.

"Whether a particular dispute is arbitrable is typically a question for the court.... It is well established [however] that arbitration is a matter of contract and that parties may agree to have questions concerning the arbitrability of their disputes decided by a separate arbitrator.... In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators.... The intention to have arbitrability determined by an arbitrator can be manifested by an express provision or through the use of broad terms to describe the scope of arbitration...." (Citations omitted; internal quotation marks omitted.) International Marine Holdings, Inc. v. Stauff, 44 Conn.App. 664, 668, 691 A.2d 1117 (1997).

At issue in the present case is the arbitration clause contained in article 16, § 2, of the collective bargaining agreement, which states: "The Union shall have the right to question the propriety of any such disciplinary action or discharge, through the grievance procedure herein outlined, including arbitration, except for termination of probationary employees which is not subject to the grievance and arbitration provisions of this agreement. Probationary employees shall not be terminated for capricious reasons." Concerning Nickerson's employment status at the time of his termination, we look to article 5, § 3, of the collective bargaining agreement, which states: "No appointment or employment in the Police Department shall be deemed final and permanent until after expiration of one (1) year's probationary service and successful completion of the Municipal Police Training Academy. For employees hired after July 1, 1988 the probationary period shall be two years." Therefore, since Nickerson was hired on November 22, 1991, Nickerson was a probationary employee when he was terminated on November 15, 1992.

In Metropolitan District Commission v. AFSCME, Council 4, Local 3713, 35 Conn.App. 804, 811 n. 6, 647 A.2d 755 (1994), this court recently recognized that an arbitrator cannot find a dispute arbitrable if language in the contract indicates that it is not. Furthermore, in White v. Kampner, 229 Conn. 465, 472-73, 641 A.2d 1381 (1994), our Supreme Court held: "We initially note that, because we favor arbitration, we will defer to this alternative method of dispute resolution if the contractual arbitration provisions fall within the grey area of arbitrability, employing the 'positive assurance' test as set out in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). Under this test, "judicial inquiry ... must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance.... An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." ' "

In the present case, the plain language of article 16, § 2, of the collective bargaining agreement explicitly states that the termination of probationary employees "is not subject to the grievance and arbitration provisions of the Agreement." The article 16, § 2, provision that "[p]robationary employees shall not be terminated for capricious reasons" contemplates the fact that the termination of probationary employees is not subject to arbitration but that some job security to probationary employees should be provided. We conclude that this section of the collective bargaining agreement could not have reasonably been given any other interpretation than to exclude the termination of probationary employees from arbitration. There is no grey area in the interpretation of article 16, § 2, of this collective bargaining agreement and Nickerson, as a probationary employee, was not entitled to arbitration.

We agree with the well reasoned analysis of the trial court in ruling on this particular issue when it said: "The collective bargaining...