Brass City Local, CT Alliance of City Police v. Waterbury ( 2021 )

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BRASS CITY LOCAL, CONNECTICUT ALLIANCE OF
CITY POLICE v. CITY OF WATERBURY ET AL.
(AC 43328)
Bright, C. J., and Alvord and Devlin, Js.
Syllabus
The plaintiff police union sought to vacate an arbitration award in its favor
issued in connection with the defendant city’s alleged breach of a collec-
tive bargaining agreement. Although the plaintiff had proposed a remedy
for the violation of the agreement to include back pay and benefits, the
arbitration panel did not include an award of damages. Initially, in a
first memorandum of decision, the trial court determined that, although
it could not vacate the arbitration award, the matter should be remanded
to the arbitration panel for further proceedings because it appeared that
the panel may have ignored important evidence in the record. Following
a response and clarification from the panel, the trial court, in a second
memorandum of decision, granted the plaintiff’s motion to vacate the
arbitration award, and the defendant appealed to this court. Held that
the trial court erred by granting the plaintiff’s motion to vacate the
arbitration award: in light of the trial court’s conclusions in its first
memorandum of decision, that the conclusion of the panel to deny an
award of damages was neither inconsistent with the plain language of
the parties’ agreement nor was it inconsistent with logic and reason to
deny payment for work not performed, and its determination that the
panel did not violate clear public policy to warrant vacating the arbitra-
tion award, the panel’s award was a mutual, final and definite award
and there was no basis for the court to remand the matter for further
consideration of the evidence or the legal questions involved; accord-
ingly, the court should have denied the plaintiff’s motion to vacate in
light of the conclusions set forth in its first memorandum of decision.
Argued April 14—officially released September 14, 2021
Procedural History
Application to vacate an arbitration award, brought to
the Superior Court in the judicial district of Waterbury,
where the matter was tried to the court, M. Taylor, J.;
judgment granting the application to vacate, from which
the defendant appealed to this court. Reversed; judg-
ment directed.
Daniel J. Foster, corporation counsel, for the appel-
lant (named defendant).
Marshall T. Segar, for the appellee (plaintiff).
Opinion
ALVORD, J. This appeal arises out of an action by
the plaintiff, the Brass City Local, Connecticut Alliance
of City Police, in which a three member panel of the
State Board of Mediation and Arbitration (panel) ren-
dered an arbitration award in favor of the plaintiff. The
plaintiff filed a motion to vacate the arbitration award,
which was granted by the trial court. The defendant
city of Waterbury1 appeals from the judgment of the
trial court vacating the arbitration award. On appeal,
the defendant claims that the trial court erred in grant-
ing the plaintiff’s motion to vacate the arbitration
award. We agree with the defendant and, accordingly,
reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff and the defendant
entered into a collective bargaining agreement (agree-
ment). Article III § 2 (b) of the agreement authorized
the superintendent of police to make vacancy appoint-
ments of eligible persons ‘‘to positions on an acting
basis, due to the non-existence of a civil service promo-
tional list . . . for a period no longer than nine (9)
months.’’ Subsection (b) of § 2 further provided that
the defendant ‘‘may allow a person to continue in such
a position for more than nine (9) months only if all
eligible persons have already held the position for nine
(9) months or have refused assignment to the position
after it has been offered.’’
On May 16, 2016, the plaintiff filed a class action
grievance alleging that the defendant had violated Arti-
cle III § 2 (b) of the agreement on the ground that it
failed to replace police officers holding acting basis
appointments after nine months of service. Specifically,
the grievance stated that ‘‘[t]here are several employees
filling acting positions in excess of nine months . . .
[in] violation of [Article III § 2 (b) of the agreement]
between the [defendant] and the [plaintiff].’’ The defen-
dant denied the grievance. Pursuant to the grievance
procedures set forth in the agreement, the matter was
submitted to the panel. The agreement provided that
the authority of the panel as arbitrators was ‘‘limited
to the interpretation and application of the provisions’’
of the agreement and that the panel did not have
‘‘authority to add to, or subtract from, or otherwise
modify’’ the agreement. The issue submitted to the
panel was: ‘‘Did the [defendant] violate Article III § 2
(b) of the [agreement] when [it] failed to appoint acting
positions for less than [nine] months and if so, what
shall the remedy be?’’
On February 28, 2017, the parties were heard and
presented evidence before the panel.2 Thereafter, at the
request of the panel, the parties submitted posthearing
briefs proposing remedies for the alleged violation of
the agreement. In its July 31, 2017 posthearing brief,
the plaintiff proposed the remedy of ‘‘back pay and
benefits for those members affected [by the defendant’s
alleged violation of the agreement] on or after May 16,
2016, and not before.’’ In its July 31, 2017 posthearing
brief, the defendant proposed that, ‘‘if the grievance
were sustained, it would be appropriate to order [it]
(1) to cease and desist from the practice of maintaining
persons in acting positions for more than nine months;
and (2) to provide the [plaintiff] with written evidence
of its cessation of this practice, including the names of
all persons who held acting positions for longer than
nine months, the positions held, and the beginning and
end dates of their service in an acting capacity. . . .
However, awarding back pay to all persons who, by
reason of rank alone, would have been eligible to apply
for the open budgeted positions would constitute a total
payment to [the plaintiff’s] members far in excess of
the total that those members could actually have earned
in acting positions.’’ Ultimately, the defendant main-
tained that, ‘‘even if the grievance were sustained, any
financial remedy would be an unwarranted punitive
penalty and would constitute an improper windfall to
the [plaintiff] and its members.’’
On September 5, 2017, the panel sustained the plain-
tiff’s grievance. Specifically, the panel decided: ‘‘The
[defendant] did violate Article III [§] 2 (b) of the collec-
tive bargaining agreement when it failed to appoint
acting positions for less than nine months. The [defen-
dant] is ordered to stop the practice of maintaining
persons in acting basis positions for more than nine
months consistent with the terms of Article III [§] 2
(b). The [defendant] is further ordered to provide the
[plaintiff] with written evidence that its practice has
ended, including the names of all persons who have
held acting basis positions for longer than nine months,
the positions held, and the beginning and end dates of
their service in an acting capacity.’’ The panel found that
‘‘[a]n award of [monetary] damages is inappropriate.’’3
On October 4, 2017, the plaintiff filed in the Superior
Court a one count complaint and a motion to vacate
the arbitration award. The plaintiff’s complaint alleged
that the panel had ‘‘exceeded [its] powers or so imper-
fectly executed them that a mutual, final and definite
award upon the subject matter was not made’’ in viola-
tion of General Statutes § 52-418 (a) (4).4 Specifically,
the plaintiff maintained that ‘‘the . . . panel issued [its]
award which chose a nonfinancial remedy stating that
the privilege of working in a higher classification was
the reward in this case.’’ The plaintiff further maintained
that ‘‘[t]he award issued by the panel . . . did not
address the gravamen of the grievance filed or evidence
presented as remedy was not being sought for those
who acted in a higher pay class but rather those that
did not.’’ Accordingly, the plaintiff requested that the
arbitration award be vacated. The defendant filed an
objection to the plaintiff’s motion to vacate the arbitra-
tion award, in which it disagreed with the plaintiff’s
characterization of the arbitration award and argued
that the panel ‘‘did decide the issues presented to them,
they just didn’t give the plaintiff the remedy it desired.’’
Thereafter, the parties submitted additional briefing
in support of their respective positions. The plaintiff
maintained that a financial remedy was appropriate
because the agreement expressly provides: ‘‘When an
employee performs, with the authorization of the Chief/
Superintendent or his or her designee, a substantial
portion of the duties of a higher classification for a day,
or a major portion thereof, he or she shall receive a
normal day’s pay for the higher classification.’’ The
defendant responded that this provision of the agree-
ment was inapplicable because ‘‘[w]hat the plaintiff is
seeking . . . is not increased pay for officers who per-
formed the duties of a higher classification . . . [but]
increased pay for all officers who did not perform the
duties of a higher classification . . . but were eligible
to do so.’’ (Emphasis added.) With respect to determin-
ing the applicable standard of judicial review of the
panel’s decision, the plaintiff argued that the submis-
sion to the panel was restricted and, thus, the panel’s
decision was subject to de novo review.5
In a February 27, 2019 memorandum of decision, the
court, M. Taylor, J., first concluded that the submission
to arbitration was unrestricted because ‘‘there was no
agreement in the submission of the parties to restrict
the scope of the remedy imposed by the [panel].’’ As
such, the court recognized three grounds for vacating
an arbitration award, as set forth by our Supreme Court
in Industrial Risk Insurers v. Hartford Steam Boiler
Inspection & Ins. Co., 273 Conn. 86, 94, 868 A.2d 47(2005): ‘‘(1) the award rules on the constitutionality of
a statute . . . (2) the award violates clear public policy
. . . [and] (3) the award contravenes one or more of the
statutory proscriptions of § 52-418.’’ (Internal quotation
marks omitted.) The court further noted that § 52-418
(a) (4) provides that an arbitration award shall be
vacated if ‘‘the arbitrators have exceeded their powers
or so imperfectly executed them that a mutual, final
and definite award upon the subject matter submitted
was not made.’’ General Statutes § 52-418 (a) (4). The
court then proceeded to consider the plaintiff’s argu-
ments that the second and third grounds for vacating
an arbitration award apply.
With respect to the third ground for vacating an arbi-
tration award pertaining to the statutory proscriptions
of § 52-418, the court stated that it ‘‘[could not] deter-
mine that the decision of the [panel] . . . manifests an
egregious or patently irrational application of the law
[and] is an award that should be set aside pursuant to
§ 52-418 (a) (4).’’ (Internal quotation marks omitted.)
Specifically, the court determined that ‘‘the conclusion
of the panel to deny an award of damages was neither
inconsistent with the plain language of the [agreement]
nor was it inconsistent with logic and reason for it to
deny payment for work not performed . . . .’’ With
respect to the second ground for vacating an arbitration
award pertaining to public policy, the court concluded
that ‘‘ignoring relevant evidence should not form the
basis of a violation of public policy.’’ Specifically, the
court stated that it ‘‘[could not] identify case law that
would suggest that ignoring evidence in the record,
absent misconduct, forms the basis for vacating an arbi-
tration award.’’
Notwithstanding these conclusions, however, the court
remanded the matter to the panel for further proceed-
ings. The court determined: ‘‘It appears that the panel
in this matter may have ignored important evidence6 in
the record leading the panel to a conclusion that was,
ostensibly, disassociated from its stated rationale and
it, therefore, may have reached a different conclusion.
Although the conclusion of the panel to deny an award
of damages was neither inconsistent with the plain lan-
guage of the [agreement] nor was it inconsistent with
logic and reason for it to deny payment for work not
performed, the panel’s rationale is either not fully
explained or, alternatively, is inconsistent with the facts
in the record.’’ (Footnote added.) Accordingly, the court
remanded the decision to the panel for clarification of
the following questions: (1) ‘‘Did the panel take into
consideration the fact that the [defendant] had reestab-
lished the promotions list and, therefore, the rotation
of acting positions for nine months pursuant to Article
III § 2 (b) had ended at the time of its award?’’; (2) ‘‘If
the answer to question number [one] is yes, would the
panel explain in greater detail its rationale for denying
damages?’’; And (3) ‘‘If the answer to question number
[one] is no, would consideration of this fact have
changed the conclusion of the panel in denying dam-
ages?’’
On April 12, 2019, the panel issued a response. With
respect to the first and third questions posed by the
court, the panel stated that it ‘‘did not take into consider-
ation the fact that the [defendant] had reestablished
the promotions list and, therefore, the rotation of acting
positions for nine months pursuant to Article III § 2 (b)
had ended at the time of the award.7 Consideration of
this fact would have resulted in an award making all
eligible employees whole due to the failure to replace
those holding acting basis positions.’’ (Footnote added.)
Following the panel’s response to the court’s order, the
parties submitted supplemental briefing on the motion
to vacate the arbitration award.
In an August 7, 2019 memorandum of decision, the
court reversed its earlier decision with respect to the
third ground for vacating an arbitration award and
agreed with the plaintiff that the arbitration award was
‘‘so imperfectly executed that a mutual, final and defi-
nite award upon the subject matter was not made,’’
in violation of § 52-418 (a) (4). Specifically, the court
concluded that ‘‘[t]he remedy provided by the panel is
a nullity because it presupposed a remedy that no longer
existed. Importantly, had it been aware of the fact that
the promotions list had been reinstituted, it would have
provided a far different and substantive remedy than
the one improvidently imposed.’’ Accordingly, the court
granted the plaintiff’s motion to vacate the arbitration
award. This appeal followed.
On appeal, the defendant claims that the court erred
by granting the plaintiff’s motion to vacate the arbitra-
tion award. In light of the court’s determination that
(1) the submission to arbitration was unrestricted, (2)
the panel’s award was not illogical or inconsistent with
the plain language of the agreement, and (3) the panel
did not violate clear public policy to warrant vacating
the arbitration award, the defendant argues that ‘‘con-
trolling law required that the motion to vacate the award
be denied’’ and that ‘‘further inquiry [on remand] was
neither required nor permitted . . . .’’ We agree with
the defendant.
We first set forth our standard of review. ‘‘The well
established general rule is that [w]hen the parties agree
to arbitration and establish the authority of the arbitra-
tor through the terms of their submission, the extent
of our judicial review of the award is delineated by the
scope of the parties’ agreement. . . . When the scope
of the submission is unrestricted, the resulting award
is not subject to de novo review even for errors of law
so long as the award conforms to the submission. . . .
Because we favor arbitration as a means of settling
private disputes, we undertake judicial review of arbi-
tration awards in a manner designed to minimize inter-
ference with an efficient and economical system of
alternative dispute resolution. . . . Furthermore, in
applying this general rule of deference to an arbitrator’s
award, [e]very reasonable presumption and intendment
will be made in favor of the [arbitral] award and of the
arbitrators’ acts and proceedings. . . .
‘‘When the parties have agreed to a procedure and
have delineated the authority of the arbitrator, they
must be bound by those limits. . . . An application to
vacate or correct an award should be granted where
an arbitrator has exceeded his power. In deciding
whether an arbitrator has exceeded his power, we need
only examine the submission and the award to deter-
mine whether the award conforms to the submission.
. . .
‘‘A challenge of the arbitrator’s authority is limited
to a comparison of the award to the submission. . . .
Where the submission does not otherwise state, the
arbitrators are empowered to decide factual and legal
questions and an award cannot be vacated on the
grounds that the construction placed upon the facts or
the interpretation of the agreement by the arbitrators
was erroneous. Courts will not review the evidence nor,
where the submission is unrestricted, will they review
the arbitrators’ decision of the legal questions involved.
. . . The party challenging the award bears the burden
of producing evidence sufficient to demonstrate a viola-
tion of § 52-418.’’ (Citations omitted; internal quotation
marks omitted.). Industrial Risk Insurers v. Hartford
Steam Boiler Inspection & Ins. Co., 258 Conn. 101,
114–15, 779 A.2d 737 (2001).
The issue submitted to the panel was: ‘‘Did the [defen-
dant] violate Article III § 2 (b) of the [agreement] when
[it] failed to appoint acting positions for less than [nine]
months and if so, what shall the remedy be?’’ (Emphasis
added.) With respect to the appropriate remedy, the
panel determined that ‘‘[a]n award of [monetary] dam-
ages is inappropriate’’ and, instead, ordered the defen-
dant to discontinue the improper practice and to pro-
vide the plaintiff with evidence of its discontinuation.
This award conforms to the submission. Thus, it is clear
that the panel did not exceed its authority. Industrial
Risk Insurers v. Hartford Steam Boiler Inspection &
Ins. Co., supra, 258 Conn. 115.
In its February 27, 2019 memorandum of decision,
the court specifically determined that ‘‘the conclusion
of the panel to deny an award of damages was neither
inconsistent with the plain language of the [agreement]
nor was it inconsistent with logic and reason for it to
deny payment for work not performed . . . .’’ More-
over, the court determined that the panel did not violate
clear public policy to warrant vacating the arbitration
award. In light of these conclusions, with which we
agree, applying the general rule of deference to an arbi-
trator’s award, and making every reasonable presump-
tion and intendment in favor of the arbitral award and
of the panel’s acts and proceedings, we conclude that
the court erred when it thereafter granted the plaintiff’s
motion to vacate the arbitration award. The panel’s
award was a mutual, final and definite award and there
was no basis for the court to remand the matter for
further consideration of the evidence or the legal ques-
tions involved. See Industrial Risk Insurers v. Hartford
Steam Boiler Inspection & Ins. Co., supra, 258 Conn.
115. Rather, the court should have denied the plaintiff’s
motion in light of the conclusions set forth in its Febru-
ary 27, 2019 memorandum of decision.
The judgment is reversed and the case is remanded
with direction to deny the plaintiff’s motion to vacate
the arbitration award.
In this opinion the other judges concurred.
1
The State Board of Mediation and Arbitration was also named as a
defendant in the underlying action but is not participating in this appeal.
All references to the defendant in this opinion are to the city of Waterbury.
2
On July 6, 2017, the panel denied the defendant’s motion to open the
arbitration hearing to present additional evidence.
3
Specifically, the panel found that ‘‘[a] prospective order of relief without
back pay will enable those serving on an acting basis to gain both the desired
experience and also the additional compensation for acting service for nine
months. Relief representing more than nine months of acting service is a
modification of the contract prohibited by [the agreement].’’
4
General Statues § 52-418 (a) provides in relevant part: ‘‘Upon the applica-
tion of any party to an arbitration, the superior court for the judicial district
in which one of the parties resides . . . shall make an order vacating the
award if it finds any of the following defects . . . (4) if the arbitrators have
exceeded their powers or so imperfectly executed them that a mutual, final
and definite award upon the subject matter submitted was not made.’’
5
See Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 81, 881 A.2d 139(2005) (‘‘[t]he determination by a court of whether the submission was
restricted or unrestricted tells the court what its scope of review is regarding
the arbitrators’ decision’’ (internal quotation marks omitted)).
6
The court noted that, ‘‘[v]ery importantly, during the period between the
[plaintiff’s] filing of its posthearing brief and the decision of the panel, a
civil service promotional list was generated and police officer promotions
were made by the [defendant] on a permanent basis, thereby eliminating
the need to appoint acting personnel pursuant to [Article III] § 2 (b) of the
[agreement]. In doing so, the first part of the [plaintiff’s] recommended
remedy became moot. The only remedy remaining was the [plaintiff’s]
request for back pay and benefits for eligible officers who were not placed
into the nine month promotion rotations by the [defendant], in order to
make them whole.’’
7
The panel clarified that it ‘‘was not made aware that appointment had
become moot’’ despite the plaintiff’s claims to the contrary.