Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199 ( 2016 )

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BURR ROAD OPERATING COMPANY II, LLC v. NEW
ENGLAND HEALTH CARE EMPLOYEES UNION,
DISTRICT 1199
(AC 33954)
DiPentima, C. J., and Beach and Bear, Js.
Argued October 14, 2015—officially released January 26, 2016
(Appeal from Superior Court, judicial district of
Hartford, Hon. Robert F. Stengel, judge trial referee.)
Jeffrey R. Babbin, with whom, on the brief, was
Andrea C. Kramer, for the appellant (plaintiff).
Michael E. Passero, for the appellee (defendant).
Opinion
BEAR, J. This appeal comes to us on remand from
our Supreme Court. In Burr Road Operating Co. II,
LLC v. New England Health Care Employees Union,
District 1199, 142 Conn. App. 213, 214–15, 70 A.3d 42
(2013), rev’d, 316 Conn. 618, 621, 114 A.3d 144 (2015),
this court held that an arbitration award ‘‘reinstating
the grievant, Leoni Spence, who is an employee of the
plaintiff, Burr Road Operating Company II, LLC . . .
and a member of the defendant, New England Health
Care Employees Union, District 1199,’’ violated public
policy, and we reversed the trial court’s determination
to the contrary. Our Supreme Court reversed our deci-
sion, holding that the award did not violate public pol-
icy. Burr Road Operating Co. II, LLC v. New England
Health Care Employees Union, District 1199, 316
Conn. 618, 621, 114 A.3d 144 (2015) (Burr Road). Conse-
quently, the court remanded the case to us with the
direction to consider the plaintiff’s remaining claim.1
Id., 651. The sole remaining issue for our consideration
is whether the trial court improperly denied the plain-
tiff’s application to vacate the award pursuant to Gen-
eral Statutes § 52-418 (a) (4)2 because the arbitrator
exceeded his authority. We conclude it did not and
accordingly affirm the judgment of the trial court.
The facts relevant to our resolution of the plaintiff’s
remaining claim, as set forth by our Supreme Court,
are as follows. ‘‘The plaintiff operates a 120 bed skilled
nursing facility known as the Westport Health Care
Center (Westport). . . . The grievant was employed
there as a certified nursing assistant from 2002 until
the termination of her employment in 2010, and is repre-
sented by the defendant. . . .
‘‘Between 2005 and 2009, the grievant was the subject
of three disciplinary actions that have remained part
of her personnel file. . . . In 2005, she received a sus-
pension and final warning after she improperly
restrained a resident by using a bed sheet to tie him
into his wheelchair. . . . In April, 2009, she received
a written warning for speaking to a resident in an inap-
propriately rude, loud, and scolding manner, and for
being insubordinate and disrespectful to her shift super-
visor, registered nurse Gay Muizulles. . . . Finally, in
August, 2009, the grievant received a [second] and
[f]inal written warning for addressing a resident disre-
spectfully and touching that resident without first
explaining the procedure involved.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Id., 621–22.
The particular incident giving rise to the plaintiff’s
termination of the grievant’s employment began on Sat-
urday, March 20, 2010. Id., 622. During a night shift
beginning on the evening of March 20 and ending on
the morning of March 21 in Westport’s Riverside unit
(Riverside), the grievant overheard a conversation
between two coworkers, Dezra Leonard and Laurel
Johnson. Id. ‘‘On the basis of the conversation she over-
heard, the grievant concluded that Muizulles had been
involved in an incident [in Westport’s Woodside unit
(Woodside)] in which a resident had been crying. . . .
Although the grievant could not be certain, she also
believed that the incident might have involved abuse.
. . . Before her shift ended, the grievant went to Wood-
side to . . . investigate. . . . The residents were all
asleep, however, and no one was crying.’’ (Citations
omitted.) Id., 622–23. The grievant failed to report her
suspicions immediately, because, as found by the arbi-
trator, ‘‘[she] didn’t know for sure that there had been
abuse . . . .’’ (Internal quotation marks omitted.) Id.,
623. Further, ‘‘[t]here . . . is no indication that she pur-
sued the matter the following night shift, from Sunday,
March 21, to Monday, March 22, when she again worked
on Riverside with Muizulles.’’ Id.
‘‘The first shift that the grievant worked on Woodside
after the suspected incident was the next night, from
Monday, March 22, to Tuesday, March 23. . . . During
that shift, she had occasion to speak with a resident of
Woodside, who told the grievant that, on the previous
Saturday night, Muizulles had been somewhat rough
while helping her get her legs up onto her bed, had
spoken gruffly, and had turned down the television
without asking permission. . . . The resident’s room-
mate confirmed that these events had upset the resi-
dent, who had cried for some time afterward. . . .
‘‘The grievant realized that this was likely the incident
she had overheard Johnson and Leonard discussing
during the Saturday night shift. . . . The grievant com-
forted the resident, explained to her that she should
not have been subjected to such treatment, and
informed her that she should feel comfortable reporting
it. . . . The grievant suggested that she could arrange
for someone to come and speak to the resident about
what had happened to her, and the resident agreed.’’
(Citations omitted.) Id., 623. Subsequently, ‘‘[a]fter her
shift ended on Tuesday morning, the grievant went
home and tried to call a social worker at Westport. . . .
The social worker was not available, however, so the
grievant left her three lengthy voice mail messages
reporting what the resident had told her and urging
the social worker to talk to the resident.’’ (Citation
omitted.) Id., 624.
After ‘‘a thorough investigation of Muizulles’ treat-
ment of the resident,’’ the plaintiff determined that,
although insensitive, her treatment did not rise to the
level of abuse or neglect and gave her a five day suspen-
sion and a final warning. Id., 624. During this investiga-
tion, ‘‘the plaintiff also concluded that three staff
members . . . [one of whom was] the grievant . . .
had failed to fulfill their obligations promptly to report
Muizulles’ possible abuse.’’ Id. Johnson received a sus-
pension and a final warning, and the other staff member
received a suspension. Id. ‘‘There is no indication in
the record that Leonard was ever disciplined for her
failure to report what Johnson had told her.’’ Id.
‘‘By contrast, the plaintiff terminated the grievant’s
employment on the ground that she had failed to make
a timely report of an allegation of resident abuse. . . .
It subjected her to more serious discipline than Muizul-
les, Johnson, and the [other staff member] because,
unlike those employees, the grievant already had a final
warning in her employee file. Prior to terminating the
grievant’s employment, the plaintiff never informed her
that she was under investigation, nor afforded her any
opportunity to tell her side of the story or to explain
or to clarify why she did not immediately report her
suspicions after her shift had ended on Sunday morning.
. . . ‘This most rudimentary due process,’ the arbitrator
remarked, ‘was not afforded to the grievant.’
‘‘The grievant grieved her termination, and the defen-
dant took the termination to arbitration pursuant to the
collective bargaining agreement between the parties.
The parties asked the arbitrator to determine: (1)
whether the grievant had been terminated for just
cause; and (2) if not, what the remedy should be.’’ (Cita-
tions omitted.) Id., 624–25.
The arbitrator determined that ‘‘the grievant improp-
erly had delayed reporting an incident of suspected
resident abuse’’ and, thus, ‘‘was guilty of the offense of
failing to timely report to a nursing supervisor (or higher
authority) the information that had come into her pos-
session . . . .’’ (Internal quotation marks omitted.) Id.,
625–26. In evaluating whether just cause existed to ter-
minate the grievant’s employment for her failure to
timely report, the arbitrator considered a health care
provider’s statutory duty to report suspected abuse3
and the potential harms that could arise if an employee
delays reporting, ultimately ‘‘credit[ing] the plaintiff’s
argument that a delay in reporting is almost as bad as
not reporting at all.’’ (Internal quotation marks omitted.)
Id., 626. ‘‘The arbitrator also concluded, however, that
it was ‘an important mitigating fact that the grievant was
the one who actually came forward, although belatedly,
and made [the plaintiff] aware of the problem. If the
grievant had not come forward on March 23, it is quite
likely that [the plaintiff] never would have learned of
the insensitive treatment given by Muizulles, nor of
the failure to report by multiple staff members. It is
important to recognize that contribution which the
grievant made, then, albeit belatedly, to help assure the
well-being of the residents . . . .’ For that reason, the
arbitrator recognized that ‘the grievant’s misconduct
arguably was much less egregious than the misconduct
of the others involved,’ who ‘apparently had no inten-
tion of making any report.’
‘‘Ultimately, the arbitrator found as follows: ‘The
grievant did fail to make a timely report of what she
had learned on March 20. She knew the rule that she
had to report, and to do so without delay. She failed
to fulfill that responsibility in a timely manner. And,
she had a poor disciplinary record, so that placed her
in a worse position than the other staff members
involved . . . . On the other hand, there is the signifi-
cant mitigating factor that it was the grievant, not the
others, who did come forward and report to [the plain-
tiff], although belatedly; and it was her reporting [that]
allowed [the plaintiff] to take corrective actions.’ . . .
Accordingly, the arbitrator concluded that the plaintiff
lacked just cause to terminate the grievant’s employ-
ment. Instead, the arbitrator interpreted the parties’
collective bargaining agreement to mean that ‘severe
disciplinary action just short of termination was war-
ranted.’ The arbitrator therefore determined that the
plaintiff had just cause to suspend the grievant without
pay for one month and to issue her a final warning
and, accordingly, he ordered the grievant reinstated.’’
(Footnotes omitted.) Id., 626–27.
The plaintiff filed an application to vacate the arbitra-
tion award on two grounds—specifically, that the award
violated public policy and that ‘‘the arbitrator exceeded
his powers under the collective bargaining agreement
and refused to hear pertinent evidence’’—and the defen-
dant filed an application to confirm the award. Id., 627–
28. The trial court, Hon. Robert F. Stengel, judge trial
referee, rejected both of the plaintiff’s grounds in sup-
port of its application to vacate. In addressing whether
the arbitrator exceeded his authority, the court deter-
mined that the award answered the questions specifi-
cally before him. Considering the plaintiff’s arguments
that the failure of the arbitrator to give credit to the
final warnings and his consideration of the mitigating
factor ‘‘create[d] a new category of disciplinary infrac-
tion that doesn’t exist in the collective bargaining
agreement,’’ the court observed that ‘‘there was no
express language which restricted the issues to be con-
sidered by the arbitrator in determining whether the
grievant was terminated for just cause.’’ Noting that ‘‘the
arbitrator [had] considered but rejected the grievant’s
voluntary admission of her failure to report abuse and
the argument that the final warning in the grievant’s
file created just cause for termination,’’ had found that
although she had a poor disciplinary history, her mis-
conduct was less egregious than that of her coworkers,
and had determined that ‘‘she reported the abuser when
others did not was a mitigating factor,’’ the court held
that it was bound by these legal and factual determina-
tions by the arbitrator. ‘‘Accordingly, the trial court
rendered judgment denying the plaintiff’s application
to vacate and granting the defendant’s application to
confirm the award.’’ Burr Road, supra, 316 Conn. 628.
‘‘The propriety of arbitration awards often turns on
the unique standard of review and legal principles
applied to decisions rendered in this forum. Judicial
review of arbitral decisions is narrowly confined. . . .
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. . . . When the parties
agree to arbitration and establish the authority of the
arbitrator through the terms of their submission, the
extent of our judicial review of the award is delineated
by the scope of the parties’ agreement. . . . Parties to
an arbitration may make a restricted or an unrestricted
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 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. . . . In other words, [u]nder an
unrestricted submission, the arbitrators’ decision is
considered final and binding; thus the courts will not
review the evidence considered by the arbitrators nor
will they review the award for errors of law or fact. . . .
A submission is deemed restricted only if the agreement
contains express language restricting the breadth of
issues, reserving explicit rights, or conditioning the
award on court review.’’ (Citations omitted; internal
quotation marks omitted.) AFSCME, Council 4, Local
2663 v. Dept. of Children & Families, 317 Conn. 238,
249–50, 117 A.3d 470 (2015).
‘‘The significance, therefore, of a determination that
an arbitration submission was unrestricted or restricted
is not to determine what the arbitrators are obligated
to do, but to determine the scope of judicial review of
what they have done. Put another way, the submission
tells the arbitrators what they are obligated to decide.
The 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.) Industrial Risk
Insurers v. Hartford Steam Boiler Inspection & Ins.
Co., 258 Conn. 101, 110, 779 A.2d 737 (2001).
Here, the parties agree that the submission was
unrestricted, and our own review of the language of the
submission and agreement finds no express language
placing restrictions on the arbitrator’s authority. Never-
theless, the plaintiff asserts that, despite this
unrestricted submission, the award must be vacated
pursuant to § 52-418 (a) (4) because the arbitrator
exceeded his authority.
‘‘When addressing a claim that the arbitrators have
exceeded their authority and violated § 52-418 (a) (4),
the court’s inquiry generally is limited to a determina-
tion as to whether the parties have vested the arbitrators
with the authority to decide the issue presented or to
award the relief conferred. . . . Thus, the court’s
review of [a] claim that the arbitrators exceeded their
authority in rendering their award is limited to a com-
parison between the submission and the award to see
whether, in accordance with the powers conferred upon
the arbitrators, their award conforms to the submission.
. . . During this limited inquiry, the court is required
to provide [e]very reasonable presumption and
intendment . . . in favor of the award and of the arbi-
trators’ acts and proceedings. Hence, the burden rests
on the party attacking the award to produce evidence
sufficient to invalidate it or avoid it. . . .
‘‘Furthermore, [a]rbitration awards . . . are not to
be invalidated merely because they rest on an allegedly
erroneous interpretation or application of the relevant
collective bargaining agreement. . . . Rather, in
determining whether the arbitration award draws its
essence from the collective bargaining agreement, the
reviewing court is limited to considering whether the
collective bargaining agreement, rather than some out-
side source, is the foundation on which the arbitral
decision rests. . . . If that criterion is satisfied . . .
then [the court] cannot conclude that the arbitrator
exceeded his authority or imperfectly executed his
duty. . . . Ultimately, [n]either a misapplication of
principles of contractual interpretation nor an errone-
ous interpretation of the agreement in question consti-
tutes grounds for vacatur. . . . It is not [the court’s]
role to determine whether the arbitrator’s interpretation
of the collective bargaining agreement was correct. It
is enough to uphold the judgment of the court, denying
the . . . application to vacate the award, that such
interpretation was a good faith effort to interpret the
terms of the collective bargaining agreement. . . .
‘‘Indeed, [b]y including an arbitration clause in their
contract, the parties bargain for a decision maker that
is not constrained by formalistic rules governing court-
room proceedings and dictating judicial results. . . .
Put simply, the parties bargain for the arbitrator’s inde-
pendent judgment and sense of justice . . . . Thus, it
is only [w]hen the arbitrator’s words manifest an infidel-
ity to [the obligation of rendering an award that draws
its essence from the collective bargaining agreement],
[that] courts have no choice but to refuse enforcement
of the award. . . . . Finally, even if we disagree with
the arbitrators’ reasoning and the bases for their award,
the award nevertheless controls unless the arbitrators’
memorandum patently shows an infidelity to [their]
obligation . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) AFSCME, Council 4, Local 1303-
325 v. Westbrook, 309 Conn. 767, 779–81, 75 A.3d 1
(2013).
The plaintiff’s contentions that the arbitrator
exceeded his authority can be summarized into three
general arguments, the first two of which concern the
arbitrator’s consideration of the final warnings that the
grievant previously had been given. First, the plaintiff
argues that the arbitrator’s failure to give dispositive
weight to these final warnings shows that he ignored
the language of the collective bargaining agreement
concerning the special nature of the ‘‘patient care
related disciplinary infractions.’’ Second, the plaintiff
argues that, by determining that the grievant’s eventual
report of her suspicions was a mitigating factor to her
disciplinary record, the arbitrator implicitly added a
term in violation of the provisions of the collective
bargaining agreement prohibiting any such change by
the arbitrator. This second argument overlaps substan-
tially with the plaintiff’s third argument, specifically,
that the arbitrator, by refusing to consider the grievant’s
statements in her voice messages because the plaintiff
failed to investigate these statements, impermissibly
added a procedural requirement that the collective bar-
gaining agreement does not mandate.
We first note that, despite certain language to the
contrary, none of the plaintiff’s arguments truly sug-
gests that the arbitrator’s award failed to answer the
questions submitted or answered questions beyond
those submitted.4 Rather, each of its arguments concern
the manner in which the arbitrator arrived at his conclu-
sions. We, therefore, review these claims to determine
only whether they show a patent infidelity by the arbi-
trator to his obligation to interpret and apply the collec-
tive bargaining agreement. We are not convinced that
the award represents anything less than a good faith
effort by the arbitrator to construe and apply the rele-
vant terms of the collective bargaining agreement in
the context of the questions submitted to him.
‘‘[A]n arbitrator is confined to interpretation and
application of the collective bargaining agreement; he
does not sit to dispense his own brand of industrial
justice. He may of course look for guidance from many
sources, yet his award is legitimate only so long as it
draws its essence from the collective bargaining
agreement.’’ (Internal quotation marks omitted.) Hud-
son Wire Co. v. Winsted Brass Workers Union, 150
Conn. 546, 553, 191 A.2d 557 (1963), quoting United
Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S.
593, 597, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960). ‘‘If, for
example, there was evidence that revealed that [the
arbitrator] had reached his decision by consulting a
ouija board, [it would] not suffice that the award con-
formed to the submission. . . . It must be emphasized,
however, that merely claiming inconsistency between
the agreement and the award will not trigger judicial
examination of the merits of the arbitration award.
Rather, in the face of such a claimed inconsistency, this
court will review the award only to determine whether
it draws its essence from the collective bargaining
agreement. . . . We will not, however, employ a
broader standard of review simply as an alternative
means for determining whether the arbitrator correctly
decided the issues that were submitted to arbitration.’’
(Citation omitted; internal quotation marks omitted.)
Teamsters Local Union No. 677 v. Board of Education,
122 Conn. App. 617, 624–25, 998 A.2d 1239 (2010).
Finally, we previously have stated that ‘‘[m]erely
because an arbitral decision is not based on the express
terms of a collective bargaining agreement does not
mean that it is not properly derived from the agreement.
An arbitrator is entitled to take cognizance of contract
principles and draw on them for guidance in construing
an agreement.’’ (Internal quotation marks omitted.)
Local 391, Council 4, AFSCME v. Dept. of Correction,
76 Conn. App. 15, 19, 817 A.2d 1279 (2003).
Having set forth the principles governing our analysis,
we turn to the portions of the collective bargaining
agreement in effect at all times relevant to this dispute.5
Article 5 of the agreement defines generally the manage-
ment rights retained by the plaintiff. It provides in rele-
vant part that, ‘‘[e]xcept as otherwise specifically
provided herein, the management and operation of the
nursing [c]enter, the control of the premises and the
direction of the work force are vested exclusively with
[the plaintiff] and the right to manage includes, but is
not limited to the right to . . . discipline, enforce work
rules, suspend, [or] discharge for just cause . . . .’’
(Emphasis added.)
Article 25 of the collective bargaining agreement
defines both the plaintiff’s general right to discipline
and discharge, certain specific restrictions on that right,
and the applicable procedures to be followed if the
plaintiff wishes to exercise that right. Section A of arti-
cle 25 restates the plaintiff’s ‘‘right to discharge, sus-
pend or discipline an Employee for just cause.’’ It
provides no further definition of just cause and does
not list either specific instances of behavior sufficient
to establish just cause or any actions that will result in
an employee’s automatic termination. Section B
requires the plaintiff to mail notice to the defendant of
any suspension or discharge; if the defendant subse-
quently contests the discipline, then the dispute will
be resolved pursuant to the grievance and arbitration
provisions of the collective bargaining agreement. Sec-
tion F requires the plaintiff to remove any record of
disciplinary action within twelve months of its issuance
if no new record of discipline is entered, but exempts
‘‘disciplinary actions regarding patient abuse’’ from
these requirements.
Finally, article 29 provides the general structure of
any arbitration taken pursuant to the collective bar-
gaining agreement if a grievance is not resolved pursu-
ant to the procedures outlined in article 28. Section B
of article 29 provides in relevant part: ‘‘It is the function
of the Arbitrator to make and issue decisions only
regarding matters expressly submitted to him or her.
The Arbitrator shall not have jurisdiction to add to,
modify, vary, change, or remove any terms of this
Agreement.’’ Section C provides in relevant part: ‘‘In
the event of an arbitration of the discharge of an
Employee, the [A]rbitrator may uphold the discharge
or reinstate the discharge, with or without back pay,
in whole or in part, as the circumstances in his or her
opinion warrant.’’
The plaintiff’s first argument concerning the arbitra-
tor’s failure to give dispositive weight to the two ‘‘final
warnings’’ that the grievant had been given is without
merit. As our Supreme Court noted, ‘‘[a]lthough the
arbitrator suggests that these notations [concerning
final warnings] had important significance under the
collective bargaining agreement, that significance is not
explained in the arbitration award.’’ Burr Road, supra,
316 Conn. 622 n.2. Further, there is also no language
in the collective bargaining agreement defining the role
of a ‘‘final warning’’ or, as our Supreme Court pointed
out, strictly requiring discharge if an infraction occurs
while there is a ‘‘final warning’’ on file. See id., 651.
Consequently, despite the plaintiff’s contentions that
the arbitrator failed to give sufficient weight to the
fact that incidents related to patient care are never
expunged from an employee’s personnel files, the deter-
mination of the role and weight to be accorded to these
final warnings under the collective bargaining
agreement was left solely within the province of the
arbitrator.6 See AFSCME, Council 4, Local 2663 v. Dept.
of Children & Families, supra, 317 Conn. 255–56 (find-
ing that arbitrator did not exceed authority in determin-
ing off duty conduct was just cause to terminate
employee when, inter alia, ‘‘collective bargaining
agreement did not . . . limit just cause for dismissal
to conduct on the job’’).
The plaintiff’s second and third arguments concern-
ing the allegedly impermissible addition of terms by the
arbitrator to the collective bargaining agreement are
also without merit. We begin by noting that the term
‘‘just cause,’’ despite being used several times in the
collective bargaining agreement,7 is nowhere therein
defined or limited. Therefore, to give effect to this provi-
sion, the arbitrator was required to construe the mean-
ing of ‘‘just cause’’ in the collective bargaining
agreement.
As we previously have noted, in interpreting this
agreement, the arbitrator is permitted to ‘‘look for guid-
ance from many sources’’; (internal quotation marks
omitted) Hudson Wire Co. v. Winsted Brass Workers
Union, supra, 150 Conn. 553; and ‘‘is entitled to take
cognizance of contract principles and draw on them
for guidance in construing an agreement.’’ (Internal quo-
tation marks omitted.) Local 391, Council 4, AFSCME
v. Dept. of Correction, supra, 76 Conn. App. 19. ‘‘In
interpreting and construing contracts . . . [l]anguage
must be given its ordinary meaning unless a technical or
special meaning is clearly intended.’’ (Internal quotation
marks omitted.) Perkins v. Eagle Lock Co., 118 Conn.
658, 663, 174 A. 77 (1934). ‘‘Technical words in a con-
tract will be interpreted as they are usually understood
by persons in the profession or business to which they
relate, and are taken in a technical sense, unless the
context of the instrument, the applicable usage, or the
surrounding circumstances clearly indicates that a dif-
ferent meaning was intended. Technical words, includ-
ing legal terms, therefore ordinarily will be given a
technical meaning.’’ (Footnotes omitted.) 17A C.J.S.
301, Contracts § 408 (2011).
The term ‘‘just cause,’’ despite its relative ubiquity in
collective bargaining agreements, does not lend itself
to a single universal characterization or test. See M.
Trotta, Arbitration of Labor-Management Disputes
(1974), pp. 231, 236 (almost all collective bargaining
agreements place limitations on management’s right to
discharge through language such as, inter alia, ‘‘for just
cause,’’ but ‘‘no standards exist for defining ‘just
cause’ ’’). A common understanding of what just cause
requires in this context involves not only a determina-
tion of whether the employee committed the infraction
in question, but whether ‘‘the proven conduct consti-
tutes sufficient grounds to support the discipline or
discharge imposed.’’ R. Abrams, Inside Arbitration: How
an Arbitrator Decides Labor and Employment Cases
(2013), § 10.IV.3, pp. 208–209; accord The Common Law
of the Workplace: The Views of Arbitrators (T. St.
Antoine ed., 1998) § 6.7, comment (a), p. 172 (‘‘[t]he
concept of ‘just cause’ implies not only that the
employer have a ‘cause’ for disciplining the employee,
but also that the discipline be ‘just’ in relation to the
asserted cause’’). Pursuant to this understanding, sev-
eral treatises on arbitration have noted that the concept
of just cause to impose a particular type of discipline
may involve both an evaluation of any mitigating cir-
cumstances8 and an implicit guarantee of due pro-
cess protections.9
As recognized by our Supreme Court, parties to a
collective bargaining agreement may impose limitations
as to what an arbitrator may consider in determining
whether just cause exists. State v. AFSCME, Council
4, Local 391, 309 Conn. 519, 533 n.10, 69 A.3d 927
(2013).10 Absent such restrictions, however, it has
refused to vacate an award where the arbitrator had
determined that the party engaged in the alleged con-
duct, but found the punishment unjust. See Niles-
Bement-Pond Co. v. Amalgamated Local 405, 140 Conn.
32, 38, 97 A.2d 898 (1953) (‘‘Even though [the employee]
had been insubordinate, it did not necessarily follow
that he should have been discharged. There was still
the question whether his insubordination was of such
a nature as to constitute ‘just cause’ for his discharge.’’);
cf. Burr Road, supra, 316 Conn. 638 (courts must ‘‘defer
. . . to the arbitrator’s ultimate determination whether
termination was a just or appropriate punishment for
the conduct at issue’’ in evaluating egregiousness factor
of public policy review).11
Further, this court has refused to vacate an arbitra-
tion award under similar circumstances in Board of
Education v. Local 818, 5 Conn. App. 636, 502 A.2d 426
(1985). There, the award, made pursuant to a submis-
sion virtually identical to the one before the arbitrator
in the present case, interpreted the applicable portions
of the collective bargaining agreement as requiring ‘‘just
cause’’ to discipline despite that specific language not
being present in the collective bargaining agreement.
See id., 638–39. In affirming the trial court’s denial of
the motion to vacate, we stated: ‘‘[A] comparison of the
contract and the award does not support the board’s
claim that the arbitrators failed to interpret the
agreement as written. The award ordered reinstatement
of the employee because he had not been terminated
for ‘just cause.’ The contract required that disciplinary
actions be applied in a ‘fair manner’ and consistent with
the nature of the infraction for which the disciplinary
action was taken. A requirement of just cause for termi-
nation and a requirement of fairness in discipline are
not so inconsistent as to give rise to an inference that
the arbitrators did not reach their decision by interpre-
ting the parties’ agreement.’’ Id., 641.
Finally, we note that the courts of this state repeat-
edly have upheld awards as drawing their essence from
the collective bargaining agreement, despite the pres-
ence of provisions that limit an arbitrator’s ability to
add, delete, or modify the express terms of the
agreement, when the arbitrator’s analysis shows that
the award found its genesis in the provisions of the
agreement rather than some outside source. See, e.g.,
Board of Education v. Bridgeport Education Assn.,
173 Conn. 287, 292–94 and nn. 2 and 3, 377 A.2d 323
(1977); New Haven v. AFSCME, Council 15, Local 530,
106 Conn. App. 691, 699–700, 943 A.2d 494 (2008); Board
of Education v. Civil Service Employees Affiliates,
Local 760, 88 Conn. App. 559, 560–61, 570–71, 870 A.2d
473 (2005).
In support of its latter two arguments, the plaintiff
places great emphasis on Danbury v. Teamsters Local
677, Superior Court, judicial district of Waterbury,
Docket No. CV-98-0144861-S (May 7, 1998) (22 Conn.
L. Rptr. 249), and certain cases cited therein, to demon-
strate that the arbitrator impermissibly altered the col-
lective bargaining agreement by considering any
mitigating circumstances or refusing to consider certain
alleged admissions by the grievant because they were
not independently investigated. Neither the analysis in
Danbury12 nor the appellate authority on which it relies,
however, compels the result that the plaintiff seeks.
Even assuming that the court’s decision in Danbury
was correct, the situation here is distinguishable in that
the arbitrator was both within his authority under the
submission13 and arguably interpreting a term in the
collective bargaining agreement rather than adding a
wholly new term. See id., 251 (vacating award reinstat-
ing employee because no express requirement of warn-
ing prior to discharge for insubordination within
agreement and arbitrators relied on general arbitral
practice rather than pointing to any specific terms of
agreement). Further, both of the cases discussed in
Danbury are also distinguishable for similar reasons.14
Here, the parties sought a determination whether the
grievant had been terminated for just cause, and if not,
what the remedy should be. To answer this question,
the arbitrator was required to determine what just cause
to terminate meant within the context of the parties’
collective bargaining agreement. Therefore, by constru-
ing the term just cause in a manner consistent with its
general usage in the field of labor agreements, his award
patently drew its essence from the collective bargaining
agreement. See Comprehensive Orthopaedics & Mus-
culoskeletal Care, LLC v. Axtmayer, 293 Conn. 748, 755,
980 A.2d 297 (2009) (‘‘as long as the arbitrator is even
arguably construing or applying the contract and acting
within the scope of authority, the award must be
enforced’’ [internal quotation marks omitted]).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Following this order by the Supreme Court, this court, on June 11, 2015,
ordered, sua sponte, that the parties be allowed to file supplemental briefs
by August 3, 2015. Pursuant to this order, the defendant filed a supplemental
brief on August 3, 2015. Additionally, on September 9, 2015, we granted the
motion to substitute Wiggin & Dana, LLP, for the plaintiff’s original counsel.
2
General Statutes § 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 . . . (4) if the arbitrators have exceeded their powers or so imper-
fectly executed them that a mutual, final and definite award upon the subject
matter submitted was not made.’’
3
General Statutes § 17b-451 (a) requires certain parties involved in the
care of elderly persons to report any reasonably suspected abuse. This
requirement applies to ‘‘any registered nurse, any nursing home administra-
tor, nurse’s aide or . . . staff person employed by a nursing home facility
. . . .’’ (Internal quotation marks omitted.) Burr Road, supra, 316 Conn.
642; see also General Statutes § 17b-451 (a).
4
Indeed, as the record demonstrates, the arbitrator answered the ques-
tions submitted. The submission in its entirety reads: ‘‘Was [the grievant]
terminated for just cause? If not, what shall the remedy be?’’ In his award,
the arbitrator determined that, although the plaintiff lacked just cause to
discharge the grievant, it had just cause to suspend her without pay for a
month and issue her a final warning. As a remedy, he ordered that the
defendant reinstate the grievant and compensate her for all back pay and
benefits that she lost except for the one month for which it had just cause
to suspend her. Because the award answers precisely the two questions
that were placed before the arbitrator, it manifestly conforms to the submis-
sion. See, e.g., Brantley v. New Haven, 100 Conn. App. 853, 865–67, 920
A.2d 331 (2007) (upholding award made pursuant to similar submission that
found employer lacked just cause to terminate employee, but had sufficient
cause to impose eight month suspension); see also Stratford v. Local 134,
IFPTE, 201 Conn. 577, 584, 519 A.2d 1 (1986) (award finding that plaintiff
city had violated collective bargaining agreement and ordering remedial
payments ‘‘was dispositive of the dispute the parties had submitted to
the [arbitrators]’’).
5
Article 39, § A, of the collective bargaining agreement provides: ‘‘This
Agreement shall be in full force and effect for the period commencing on
December 31, 2004 and ending on March 16, 2011.’’
6
In fact, the arbitrator both recognized and weighed the grievant’s disci-
plinary history in making his ultimate determination that just cause to dis-
charge did not exist, but just cause to suspend did.
7
Article 5 of the collective bargaining agreement reserves to the plaintiff
the sole right, ‘‘[e]xcept as otherwise specifically provided [in the collective
bargaining agreement],’’ to ‘‘discipline . . . suspend, [or] discharge for just
cause . . . .’’ Article 9, § B.3.b, provides that an employee loses his or her
seniority if he or she is ‘‘discharge[d] for just cause . . . .’’ Finally, article
25, § A, reiterates that the plaintiff has ‘‘the right to discharge, suspend or
discipline an Employee for just cause.’’
8
‘‘The just cause principle entitles employees to . . . [an] individualized
consideration of specific mitigating and aggravating factors.’’ The Common
Law of the Workplace: The Views of Arbitrators, supra, § 6.2, p. 159. ‘‘Mitigat-
ing factors include an employee’s . . . good faith . . . [and] the absence
of serious harm from the employee’s conduct . . . .’’ Id., comment (b), p.
160; see also R. Abrams, supra, § 10.V.6, p. 217 (mitigating circumstances
are relevant to employer’s determination that employee can no longer serve
and, therefore, to arbitrator’s subsequent evaluation whether just cause to
discharge exists); F. Elkouri & E. Elkouri, How Arbitration Works (A. Ruben
ed., 6th Ed. 2003) §15.3.F.i, p. 966 (‘‘[i]n [less serious] cases, discipline may
be considered to be excessive if it is disproportionate to the degree of the
offense, if it is out of step with principles of progressive discipline, if it is
punitive rather than corrective, or if mitigating circumstances were ignored’’
[internal quotation marks omitted]); M. Trotta, supra, pp. 236–37 (listing
several illustrative factors to be considered, including nature and number
of past offenses by grievant, how other employees were disciplined for
similar offenses, grievant’s own pattern of conduct, and whether ‘‘the penalty
[is] reasonable and appropriate to the offense’’).
9
‘‘The just cause principle entitles employees to due process . . . .’’ The
Common Law of the Workplace: The Views of Arbitrators, supra, § 6.2, p.
159. Although ‘‘[m]ost arbitrators require that an employer’s decision to
discipline or discharge an employee must be based on a meaningful, more-
than-perfunctory factual investigation’’; id., § 6.14, p. 192; the way in which
this requirement is implemented varies: ‘‘This requirement is sometimes
described as part of an employee’s procedural due process protections, and
sometimes as an element of the employer’s necessary showing of just
cause.’’ (Emphasis added.) Id., comment (a); see also R. Abrams, supra,
§ 10.IV.6, pp. 211 (‘‘the concept of ‘due process’ is inherent in the just cause
provision’’ because it aids accuracy of result); F. Elkouri & E. Elkouri, How
Arbitration Works (A. Ruben ed., 6th Ed. 2003) §15.3.F.ii, p. 967 (‘‘To satisfy
industrial due process, an employee must be given an adequate opportunity
to present his or her side of the case before being discharged by the employer.
If the employee has not been given such an opportunity, arbitrators will
often refuse to sustain the discharge or discipline assessed against the
employee. The primary reason arbitrators have included certain basic due
process rights within the concept of just cause is to help the parties prevent
the imposition of discipline where there is little or no evidence on which
to base a just cause discharge. Thus, consideration of industrial due process
as a component of just cause is an integral part of the just cause analysis
for many arbitrators.’’ [Footnote omitted.])
10
‘‘[A] collective bargaining agreement may reserve to the employer the
unreviewable discretion . . . to discharge an employee once a violation of
[an employment rule] is found . . . in which case the arbitrator would be
required to defer to the employer’s choice of discipline after finding that
the employee engaged in the claimed misconduct. . . . If an employer speci-
fies in the collective bargaining agreement that it reserves the nonreviewable
power to choose the form of discipline for such misconduct, and the submis-
sion to the arbitrator specifies that the arbitrator is authorized to determine
only whether the alleged misconduct occurred, not whether the punishment
was appropriate, an arbitration award imposing a lesser form of discipline
. . . would be subject to vacatur as exceeding the arbitrator’s powers.’’
(Citations omitted; internal quotation marks omitted.) State v. AFSCME,
Council 4, Local 391, supra, 309 Conn. 533 n.10.
11
A number of courts in other jurisdictions have upheld awards under
similar circumstances and against similar arguments as those raised by the
plaintiff in this case. See, e.g., PSC Custom, LP v. United Steel, Paper &
Forestry, Rubber, Mfg., Energy, Allied Industrial & Service Workers Inter-
national Union, Local No. 11-770, 756 F.3d 627, 629–32 (8th Cir. 2014)
(award limited determination of issues on due process grounds and found
that just cause did not exist to discharge despite provisions in collective
bargaining agreement reserving management rights generally and forbidding
modification or alteration of terms of agreement); General Truck Drivers,
Chauffers, Warehousemen & Helpers, Local Union 957 v. Dayton Newspa-
pers, Inc., 190 F.3d 434, 435–36, 438–39 (6th Cir. 1999) (reversing vacation
of award where collective bargaining agreement had similar terms as those
presently before this court and rejecting argument that award impermissibly
created additional terms), cert. denied, 528 U.S. 1137, 120 S. Ct. 980, 145 L.
Ed. 2d 931 (2000); Federated Dept. Stores v. United Food & Commercial
Workers Union, Local 1442, 901 F.2d 1494, 1496–98 (9th Cir. 1990) (uphold-
ing award against arguments that it did not draw essence from collective
bargaining agreement and that arbitrator exceeded powers because
‘‘whether there was just cause to discharge [the grievant] was explicitly
before the arbitrator and he justifiably viewed due process as an element
of just cause’’); Office of Attorney General v. Council 13, AFSCME, AFL-CIO,
577 Pa. 257, 268–71, 844 A.2d 1217 (2004) (upholding award that considered
mitigating factors to find ‘‘just cause’’ did not exist because term was not
defined by collective bargaining agreement and refusing ‘‘[t]o reduce the
undefined term just cause to the equivalent of a mere factual finding of mis-
conduct’’).
12
As we previously have recognized, although they can be used as persua-
sive authority, decisions of the Superior Court are not binding on this court.
See Green Falls Associates, LLC v. Zoning Board of Appeals, 138 Conn.
App. 481, 490 n.7, 53 A.3d 273 (2012).
13
The defendant argues that Danbury may be distinguished because the
submission in that case required the arbitrators to determine whether the
city ‘‘violate[d] the collective bargaining agreement by terminating the
employment of the [grievant]’’; Danbury v. Teamsters Local 677, supra, 22
Conn. L. Rptr. 250; whereas the submission in the present case asked the
arbitrator to determine only whether ‘‘just cause’’ existed to discharge the
grievant. Thus, the arbitrator, the defendant contends, ‘‘was directed by the
parties to apply the arbitral standard of just cause,’’ seemingly unmoored
from the language of the collective bargaining agreement. (Emphasis added.)
Our statements in North Branford v. Pond, 134 Conn. App. 89, 94 n.2,
38 A.2d 198 (2012), addressing whether the modifier ‘‘consistent with the
contract’’ rendered an otherwise unrestricted submission restricted, demon-
strate that the defendant’s arguments are without merit: ‘‘When a submission
to an arbitration panel requires the panel to determine if a standard set
forth in the parties’ agreement has been met, it is axiomatic that the arbitra-
tors must construe and apply that provision in accordance with the entire
agreement, as they interpret it. Just as their arbitral authority arises only
from the agreement, so too must the limits of that authority derive their
essence from the agreement. Accordingly, words in a submission confirm-
ing that the matter at issue must be determined in a manner consistent
with the contract neither add to nor subtract from arbitral authority
. . . .’’ (Emphasis added.)
14
See Board of Education v. AFSCME, 195 Conn. 266, 271–73, 487 A.2d 553
(1985) (award in excess of authority not only because manner of providing
termination notices not defined in collective bargaining agreement, but also
because award relied solely on stipulated arbitration award from separate
grievance, agreement prevented arbitrators from issuing award that
amended agreement or ‘‘determine[d] that the parties by implication have
supplemented their agreement unless that issue is expressly submitted,’’
and issue submitted solely concerned whether employer violated agreement
in terminating employee [emphasis added]); International Assn. of Fire
Fighters, Local 1339, AFL-CIO v. Waterbury, 35 Conn. App. 775, 780, 647
A.2d 361 (1994) (where submission required arbitrators to determine if
city violated particular provision of collective bargaining agreement, and
‘‘[i]nstead of answering the question submitted, the arbitrators stated that
they were denying the grievance because of ‘extenuating circumstances’ and
because they were ‘without jurisdictional authority to make the pension
adjustments’ . . . [t]he arbitrators . . . exceeded their powers . . .
because their award included matters outside the submission, namely the
arbitrators’ noncontractual reasons for denying the grievance’’ [emphasis
in original]).