Stratford v. International Federation of Professional & Technical Engineers, Local 134 ( 2015 )

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TOWN OF STRATFORD v. INTERNATIONAL
FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS,
LOCAL 134 ET AL.
(AC 35904)
Beach, Sheldon and Schaller, Js.
Argued September 19, 2014—officially released February 3, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Tyma, J.)
Michael S. Casey, with whom, on the brief, was
Christopher J. Smedick, for the appellant (plaintiff).
William S. Palmieri, for the appellee (defendant
John J. Jasinski).
Opinion
SCHALLER, J. The plaintiff, the town of Stratford,
appeals from the judgment of the trial court denying
its application to vacate an arbitration award and grant-
ing the application to confirm the arbitration award
filed by the defendant John Jasinski.1 On appeal, the
plaintiff claims that (1) the court improperly determined
that the arbitration award was not in violation of appli-
cable public policy,2 (2) the court improperly deter-
mined that the arbitration panel did not exhibit evident
partiality toward the defendant, and (3) the plaintiff
was denied a ‘‘full and fair hearing’’ pursuant to General
Statutes § 52-418 (a) (3). We affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to this appeal. Donna Best, the emergency medical
services administrator for the plaintiff, received an
anonymous letter regarding an incident involving the
defendant. Best gave the letter to the plaintiff’s director
of human resources, Ronald Ing, who began to investi-
gate the defendant. The anonymous letter called atten-
tion to an incident that took place on April 26, 2010,
when the defendant, a paramedic, and Jennifer Sim-
mons, a volunteer emergency medical technician, while
working for the plaintiff, responded to a call to transport
a patient to the hospital. While en route to the hospital
following the patient pick up, and with the patient still
in the back of the ambulance, the defendant returned
to the plaintiff’s emergency services headquarters at
900 Longbrook Avenue in Stratford to drop Simmons
off. In the purported language of the profession, the
defendant returned to headquarters to perform a ‘‘crew
swap.’’ The anonymous letter alleged that the defendant
performed the crew swap so that Simmons would not
be late for her regular paid job. The defendant claimed
that he performed the crew swap to put an end to the
verbally aggressive behavior Simmons was directing
toward the patient.3
As a result of this investigation, Ing, on behalf of the
plaintiff, terminated the defendant’s employment by a
letter dated August 2, 2010. The letter stated the follow-
ing reasons, the defendant: did not take the patient
directly to the hospital and instead elected to do a crew
swap with the patient in the ambulance, failed to report
the unprofessional behavior of Simmons, and failed to
verify and correct the emergency medical services form
documenting the call to show the occurrence of the
crew swap. On behalf of the defendant, the union filed
a timely grievance, claiming that the plaintiff had vio-
lated the collective bargaining agreement between the
parties by terminating the defendant without just cause.
The union sought arbitration under the collective bar-
gaining agreement.
On April 5, 2012, and May 4, 2012, an arbitration panel
conducted a hearing to resolve two questions: ‘‘Was
[the defendant] terminated for just and sufficient cause
in accordance with [the collective bargaining
agreement]? If not, what shall the remedy be?’’ On July
19, 2012, the arbitrators issued a unanimous decision
in favor of the defendant.
The arbitrators found that the investigation was not
conducted fairly and objectively, because Best, who
had previously accused the defendant of misconduct,
resulting in his dismissal,4 was ‘‘intimate[ly] involved’’
in this investigation. The arbitration panel also found
that the plaintiff ‘‘mischaracterized’’ and ‘‘overinflated’’
the incident in order ‘‘to justify discharging’’ the defen-
dant. The panel noted that the plaintiff actually encour-
aged crew swaps during nonemergency calls to avoid
overtime. In sum, the panel found that the defendant
had not been terminated for good and sufficient cause
in accordance with the collective bargaining agreement
and ordered that he be reinstated.
The plaintiff filed an application to vacate the arbitra-
tion award and the defendant filed an application to
confirm the arbitration award. The plaintiff argued that
the award should be vacated because: (1) it violated
public policy and was contrary to public safety and
state regulations; (2) the arbitrators exhibited evident
partiality, and (3) it was not afforded a ‘‘full and fair
hearing.’’ In its July 9, 2013 decision, the court denied
the plaintiff’s application to vacate and granted the
defendant’s application to confirm the award. The court
found that this state has a clear, well-defined and domi-
nant public policy of protecting patients from ‘‘ ‘detri-
mental acts’ ’’ by emergency medical personnel, and
that there is a resulting expectation that such personnel
will provide reasonable care and treatment to patients.
The court determined, specifically, that the claim that
the award violated public policy was colorable and mer-
ited de novo review.
Upon review of the claim on its merits, the court
concluded that the award in favor of the defendant did
not violate public policy and that there was no evidence
that the crew swap adversely impacted the patient’s
health or safety. The court also found that the award
did not run contrary to public policy by undermining
the plaintiff’s ability to manage and discipline its
employees. The court took note of the investigatory
participation of Best, who the court noted had an
adverse history with the defendant.5 Additionally, in
response to the plaintiff’s arguments regarding the par-
tiality of the arbitration panel6 and the lack of a ‘‘full
and fair’’ hearing as grounds for vacating the award,7 the
court found that the plaintiff failed to meet its burden.
On appeal, the plaintiff asserts the same three
grounds to support its claim that the court should have
vacated the arbitration award and asks that we remand
the case for further hearings. We affirm the decision
of the court.
Prior to review of the plaintiff’s claims, we set forth
the standard for appellate review. Our analysis is guided
by the well established principles of law governing con-
sensual arbitration. ‘‘Arbitration is a creature of con-
tract and the parties themselves, by the terms of their
submission, define the powers of the arbitrators. . . .
The authority of an arbitrator to adjudicate the contro-
versy is limited only if the agreement contains express
language restricting the breadth of issues, reserving
explicit rights, or conditioning the award on court
review. In the absence of any such qualifications, an
agreement is unrestricted.’’ (Citation omitted; internal
quotation marks omitted.) Industrial Risk Insurers v.
Hartford Steam Boiler Inspection & Ins. Co., 258 Conn.
101, 109, 779 A.2d 737 (2001).
Arbitration is favored when settling private disputes
and, as such, judicial review of arbitration awards is
conducted in a manner ‘‘designed to minimize interfer-
ence with an efficient and economical system of alterna-
tive dispute resolution.’’ (Internal quotation marks
omitted.) Saturn Construction Co. v. Premier Roofing
Co., 238 Conn. 293, 304, 680 A.2d 1274 (1996). Two types
of evidentiary submissions are allowed in arbitration
proceedings, restricted and unrestricted, which func-
tion to limit the undertaking of the arbitration panel.
Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80,
881 A.2d 139 (2005). The scope of the submission is
negotiated by the contracting parties prior to a dispute.
Under an unrestricted submission, the arbitrators’ deci-
sion is considered final and binding. Id. In this situation,
courts will not review the evidence considered by the
arbitrators nor will they review the award for errors of
law or fact. Id. ‘‘The resulting award can be reviewed,
however, to determine if the award conforms to the
submission.’’ (Internal quotation marks omitted.)
Industrial Risk Insurers v. Hartford Steam Boiler
Inspection & Ins. Co., supra, 258 Conn. 110. ‘‘[A] limited
scope of judicial review is warranted given the fact that
the parties voluntarily bargained for the decision of the
arbitrator and, as such, the parties are presumed to
have assumed the risks of and waived objections to
that decision. . . . It is clear that a party cannot object
to an award which accomplishes precisely what the
arbitrators were authorized to do merely because that
party dislikes the results.’’ (Internal quotation marks
omitted.) Id.
The purpose of a determination as to whether an
arbitration submission was unrestricted or restricted is
not to determine what the arbitrators were obligated
to do, but, rather, 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.) Id.
Furthermore, ‘‘[w]here the submission does not oth-
erwise 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.’’ (Inter-
nal quotation marks omitted.) Harty v. Cantor Fitzger-
ald & Co., supra, 275 Conn. 80. Section 52-418 (a)
provides in relevant part the following grounds upon
which to vacate an award issued based on an
unrestricted arbitration submission: ‘‘(1) If the award
has been procured by corruption, fraud or undue means;
(2) if there has been evident partiality or corruption on
the part of any arbitrator; (3) if the arbitrators have
been guilty of misconduct in refusing to postpone the
hearing upon sufficient cause shown or in refusing to
hear evidence pertinent and material to the controversy
or of any other action by which the rights of any party
have been prejudiced; or (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.’’ ‘‘In [the] construction
of § 52-418 (a) (4), [our Supreme Court has], as a general
matter, looked to a comparison of the award with the
submission to determine whether the arbitrators have
exceeded their powers . . . . [It has] also recognized,
however, that . . . [a]n award that manifests an egre-
gious or patently irrational application of the law is an
award that should be set aside pursuant to § 52-418 (a)
(4) because the arbitrator has exceeded [his] powers
or so imperfectly executed them that a mutual, final
and definite award upon the subject matter submitted
was not made.’’ (Internal quotation marks omitted.)
Harty v. Cantor Fitzgerald & Co., supra, 81.
The court determined in the present action that there
was an agreement to a consensual and unrestricted
submission in the collective bargaining agreement. In
its appeal, the plaintiff asserts three grounds for vacat-
ing the arbitration award: (1) the award violated public
policy; (2) the panel was not impartial toward the plain-
tiff in violation of § 52-418 (a) (2); and (3) the plaintiff
was denied a ‘‘full and fair hearing’’ pursuant to § 52-
418 (a) (3). We are not persuaded.
I
The plaintiff claims that the award violates the well-
defined public policy of this state, prohibiting paramed-
ics from acting in a manner contrary to the welfare of
their patients. Specifically, the plaintiff argues that the
crew swap violated § 19a-179-9 (f) of the Regulations
of Connecticut State Agencies, which provides: ‘‘No
person engaged in the provision of emergency medical
services shall commit an act which is detrimental to
the safety, health, or welfare of a patient or the general
public.’’ The plaintiff also argues that the award violates
public policy because it interferes with the management
rights of the plaintiff by limiting its contractual and
legal right to manage its employees.
‘‘Ordinarily, where there is a consensual, unrestricted
submission to arbitration, the only question is whether
the award conforms to the submission. . . . One
exception to that rule, however, is where the award
violates clear public policy. . . . Where a party chal-
lenges an award on the ground that it violates public
policy, de novo review is in order if the challenge has
a legitimate, colorable basis. . . . That de novo review
is limited, however, to the two critical questions: (1)
whether there is an explicit, well-defined and dominant
public policy and (2) whether the award violates that
policy. . . . It does not extend to the facts found by
the arbitrator.’’ (Citations omitted; footnote omitted.)
Burr Road Operating Co. II, LLC v. New England
Health Care Employees Union, District 1199, 142
Conn. App. 213, 223–24, 70 A.3d 42, cert. granted, 309
Conn. 909, 68 A.3d 662 (2013). We note that this excep-
tion applies only when the award is clearly illegal or
clearly violates a strong public policy. Garrity v.
McCaskey, 223 Conn. 1, 7, 612 A.2d 742 (1992).
We agree with the trial court that Connecticut has a
clear, well-defined and dominant public policy of pro-
tecting patients from detrimental acts by emergency
medical services personnel. See Regs. Conn. State Agen-
cies § 19a-179-9 (f). Emergency personnel are to provide
reasonable care and treatment to the patients whom
they oversee. See id.; see also General Statutes § 20-
206nn (5) (paramedic subject to discipline for negligent
conduct). Although we determine that the underlying
claim made by the plaintiff is colorable, we conclude
that the award in the present action does not violate
public policy.
On the basis of the facts presented to the arbitration
panel, there was no evidence that the defendant’s crew
swap constituted a detrimental act, or that it put the
patient in harm’s way. Instead, it was reported that the
patient went to the hospital because of a request by
her family, and that the family also requested that the
patient be transported to a hospital further away, based
on a preference for its care. Moreover, counsel for the
plaintiff conceded during argument before this court
that the crew swap took no more than four minutes to
complete. The arbitrators also credited the evidence
that the plaintiff allowed this type of crew swaps:
‘‘[C]rew swaps are performed routinely when the
patient, as in this case, is stable. The [plaintiff] also
encourages crew swaps during nonemergency calls to
avoid overtime.’’ Because the conduct of the defendant
did not constitute a detrimental act, we agree with the
court that the award does not violate public policy.
With regard to the plaintiff’s second public policy
claim, that the award limits its legal right to manage
contractual and disciplinary actions with regard to its
employees, we conclude that this claim has no merit.
The plaintiff’s argument suggests that, by commenting
on its investigatory practices, specifically, the involve-
ment of Best, the panel nullified the plaintiff’s manage-
ment rights over the investigation of the grievance. We
are not persuaded. The arbitrators merely appear to
have commented on the inclusion of certain actors
within the investigation, who conceivably assisted in
the analysis and findings in this case. We also reject
this argument.
II
The plaintiff next claims that, pursuant to § 52-418
(a) (2), the award should be vacated because there
was evident partiality on the part of the arbitrators.
Specifically, the plaintiff claims that the panel made
arbitrary findings based on evidence that was not con-
tained in the record, which it claims establishes the
panel’s evident partiality and bias against it. The plain-
tiff points to the arbitration panel’s discussion of the
bias of Best and argues that there was no evidence
that her participation showed any pretextual bias. The
plaintiff further argues that there was no evidence to
support the finding that the plaintiff dismissed Sim-
mons, the volunteer who accompanied the defendant,
to bolster the case against the defendant, or that any
other issues were raised as a pretext in order to support
the plaintiff’s dismissal.
A party seeking to vacate an arbitration award on the
ground of evident partiality has the burden of producing
sufficient evidence in support of the claim. ‘‘An allega-
tion that an arbitrator was biased, if supported by suffi-
cient evidence, may warrant the vacation of the
arbitration award. . . . The burden of proving bias or
evident partiality pursuant to § 52-418 (a) (2) rests on
the party making such a claim, and requires more than
a showing of an appearance of bias. . . . In construing
§ 52-418 (a) (2), [our Supreme Court] concluded that
evident partiality will be found where a reasonable per-
son would have to conclude that an arbitrator was par-
tial to one party to the arbitration. To put it in the
vernacular, evident partiality exists where it reasonably
looks as though a given arbitrator would tend to favor
one of the parties.’’ (Internal quotation marks omitted.)
Alexson v. Foss, 276 Conn. 599, 617, 887 A.2d 872 (2006).
The trial court noted that, ‘‘[the plaintiff’s] claims of
the arbitrators’ alleged improper construction of the
facts relating to the crew swap or characterizations of
the evidence, without more, does not constitute suffi-
cient evidence of evident partiality by the arbitrators.’’
We agree. The plaintiff’s argument that certain factual
findings made by the arbitration panel were biased lacks
support. For example, the arbitration panel’s decision
stated: ‘‘We note that there was no evidence to show
that . . . Best holds a bias against the [defendant] but
we do note that the union made many assertions of her
bias. While we did not perceive bias on the part of . . .
Best, we do note that the whole investigation seems
improper because of her involvement from the begin-
ning until the [defendant’s] termination.’’ Despite the
plaintiff’s arguments to the contrary, we read the arbi-
tration panel’s decision to say that it did not perceive
bias on the part of Best or receive evidence thereof,
but it did take issue with her participation due to the
adverse history between her and the defendant. In this
case, the arbitration panel was authorized to make such
a finding, as it pertained to whether the defendant was
terminated for just and sufficient cause. See Bic Pen
Corp. v. Local No. 134, 183 Conn. 579, 583–84, 440 A.2d
774 (1981) (‘‘[t]he submission constitutes the character
of the entire arbitration proceedings and defines and
limits the issues to be decided’’). The facts presented
by the plaintiff did not make it reasonably look as
though any of the arbitrators would tend to favor the
defendant or disfavor the plaintiff in this case, as
required to establish evident partiality.
III
Finally, the plaintiff claims that, pursuant to § 52-
418 (a) (3),8 the award should be vacated because the
arbitration panel failed to provide a ‘‘full and fair hear-
ing.’’ Specifically, the plaintiff argues that the panel
refused to consider evidence relating to past disciplin-
ary actions against the defendant. We disagree.
Under the facts presented by the plaintiff, this claim
does not provide an adequate basis to vacate the arbitra-
tors’ decision. ‘‘Where the submission does not other-
wise 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.’’ (Internal quotation marks omit-
ted.) Bic Pen Corp. v. Local No. 134, supra, 183
Conn. 584.
We are unpersuaded by the plaintiff’s argument that
the preclusion of certain evidence before the arbitration
panel renders the award unfair. The plaintiff failed to
demonstrate that the arbitration panel engaged in mis-
conduct. Based upon applicable Supreme Court prece-
dent, we conclude that arbitrators are entrusted to act
upon their discretion in deciding whether to hear or,
conversely, not hear evidence. See Bridgeport v. Kasper
Group, Inc., 278 Conn. 466, 474, 899 A.2d 523 (2006)
(arbitrators afforded ‘‘substantial discretion’’ in
determining admissibility of evidence). As a result, the
court’s determination was proper.
The judgment is affirmed.
In this opinion the other judges concurred.
1
John Jasinski is a member of the International Federation of Professional
and Technical Engineers, Local 134, which represented his interests in the
underlying action. For clarity, we refer to Jasinski as the defendant and to
the named defendant as the union.
2
The plaintiff raises two public policy issues on appeal, which have been
organized as one issue for purposes of this decision.
3
The arbitration panel found in part: ‘‘We believe that the reason for the
crew swap was two-fold. The first was to drop off a volatile and angry
Simmons who had profaned the patient as reported by the [defendant], and
the second reason was to drop her off so she could go to work.’’
4
The union also sought arbitration in this previous matter which resulted
in a finding that the defendant was not terminated for good and sufficient
cause, and the panel ordered that he be reinstated.
5
‘‘The arbitrators considered the evidence and the memoranda submitted
by the parties in rendering their written decision. The strongly worded
decision makes clear that the arbitrators were troubled by Best’s involve-
ment in the investigation, as shown by their collective comment that Ing
should have had some management person other than Best assist him. . . .
Based on Best’s involvement, the arbitrators concluded that the investigation
was not conducted fairly and objectively, and that [the plaintiff] mischarac-
terized and overinflated the incident to justify discharging [the defendant].’’
(Internal quotation marks omitted.)
6
‘‘[The plaintiff’s] claims of the arbitrator’s alleged improper construction
of the facts relating to the crew swap or characterizations of the evidence,
without more, does not constitute sufficient evidence of evident partiality
to justify vacation of the award. The assertions do not even give rise to the
appearance of partiality by the arbitrators. Therefore, [the plaintiff] has
failed to meet its burden to establish evident partiality.’’
7
‘‘[The plaintiff’s] claim of an unfair hearing due to the preclusion of
certain evidence, without more, is merely an expression of [the plaintiff’s]
disagreement and dissatisfaction with the award.’’
8
General Statutes § 52-418 (a) (3) provides in relevant part that an award
shall be vacated if the court finds that ‘‘the arbitrators have been guilty . . .
in refusing to hear evidence pertinent and material to the controversy . . . .’’