American Federation of State, County & Municipal Employees, Council 4, Local 1303-385 v. Westport Dept. of Public Works ( 2014 )

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AMERICAN FEDERATION OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES, COUNCIL 4, LOCAL
1303-385 v. TOWN OF WESTPORT
DEPARTMENT OF PUBLIC
WORKS ET AL.
(AC 35278)
Alvord, Prescott and Harper, Js.
Argued May 14—officially released July 8, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. A. William Mottolese, judge
trial referee.)
J. William Gagne, Jr., with whom, on the brief, was
Kimberly A. Cuneo, for the appellant (plaintiff).
Warren L. Holcomb, for the appellee (named
defendant).
Opinion
ALVORD, J. The plaintiff, American Federation of
State, County and Municipal Employees, Council 4,
Local 1303-385 (union), appeals from the judgment of
the trial court denying its application to vacate an arbi-
tration award. On appeal, the union claims that the
court should have vacated the award because (1) the
arbitration panel failed to comply with the requirements
of General Statutes § 7-473c (d) (6) and (9), and (2) the
award violated public policy. We affirm the judgment
of the trial court.
The following facts are relevant to the union’s appeal.
The union and the defendant Town of Westport Depart-
ment of Public Works (town),1 are parties to a collective
bargaining agreement and entered into negotiations for
a successor agreement. Because the parties were at an
impasse, the State Board of Mediation and Arbitration
imposed binding arbitration pursuant to the provisions
of the Municipal Employees Relations Act (MERA),
General Statutes § 7-460 et seq. A three member arbitra-
tion panel was selected to hear and decide the parties’
disputes. After a six day evidentiary hearing, the union
and the town each submitted their last best offers on
several unresolved issues and filed posthearing briefs.
The panel members subsequently met in two executive
sessions to deliberate, and they issued the arbitration
award on March 20, 2012.
In its twenty-seven page award, the panel first pro-
vided an introduction in which the panel discussed the
procedural history of the mandated arbitration. The
concluding sentence in that introduction stated: ‘‘The
agreed-upon language submitted to the panel is incorpo-
rated and made a part of this award.’’ The section imme-
diately following the introduction set forth the statutory
factors that the panel was required to consider in reach-
ing its decision: ‘‘[T]he arbitration panel shall give prior-
ity to the public interest and the financial capability of
the municipal employer, including consideration of the
demands on the financial capability of the municipal
employer. The panel shall further consider the following
factors in light of such financial capability: (A) The
negotiations between the parties prior to arbitration
. . . (B) the interest and welfare of the employee group
. . . (C) changes in the cost of living . . . (D) the
existing conditions of employment of the employee
group and those of similar groups; and . . . (E) the
wages, salaries, fringe benefits, and other conditions of
employment prevailing in the labor market, including
developments in private sector wages and benefits.’’2
The panel then discussed each unresolved issue.
After presenting the town’s position and the union’s
position, including their last best offers and the evi-
dence presented over the course of the six day hearing,
the panel indicated which last best offer it had decided
to accept. For most of the issues, the majority of the
panel members accepted the last best offer of the town.
The town-appointed arbitrator and the neutral arbitra-
tor were in agreement on all of the issues, whereas the
union-appointed arbitrator uniformly dissented.3 For
example, with respect to issue one, related to emer-
gency call-in provisions in the collective bargaining
agreement, the concluding paragraph in the award pro-
vided: ‘‘It appears that the Town’s proposal is both
practical and reasonable and only applies in emergency
situations. Therefore, after reviewing all of the informa-
tion received by the arbitration panel, in light of the
statutory criteria, the last best offer of the Town for
Issue 1 is accepted. The Town appointed Arbitrator
agrees with the Neutral Arbitrator, based upon the same
statutory criteria, and the Union appointed Panel Mem-
ber dissents on the selection of the last best offer of the
Town for Issue 1 based on the same statutory criteria.’’
On April 16, 2012, the union filed an application to
vacate the arbitration award pursuant to General Stat-
utes § 52-418.4 The union alleged that the panel
‘‘exceeded its power[s] or so imperfectly executed them
such that a mutual, final and definite award upon the
subject matter was not made’’ and that ‘‘[t]he award
[was] against public policy.’’ The union, in its prehearing
brief, more specifically claimed that the award was
deficient because each panel member did not state the
specific reasons, factors considered or standards used
in making his choice of a party’s last best offer on each
unresolved issue. The trial court determined: ‘‘[T]he
present case is controlled squarely by Bridgeport Fire-
fighters Assn., IAFF, Local 834 v. Bridgeport, [48 Conn.
App. 667, 711 A.2d 1188 (1998)] and thus [this court’s]
task is to determine whether the conduct of the arbitra-
tors is sufficiently similar to that of the arbitrators in
Bridgeport so as to entitle it to the same result.’’ The
court concluded that there was ‘‘no functional differ-
ence’’ between the conduct of the two panels and, addi-
tionally, concluded that the award did not violate public
policy. Accordingly, the court denied the union’s appli-
cation to vacate the arbitration award. This appeal
followed.
I
The union’s first claim is that the arbitration panel
failed to comply with the requirements of § 7-473c (d)
(6) and (9). We begin by setting forth the legal principles
that guide our analysis. ‘‘The mandatory binding arbitra-
tion that is authorized by MERA does not permit the
arbitration panel to exercise the broad discretion nor-
mally associated with consensual arbitration. Section
7-473c (d) limits the discretion of the arbitration panel
in two significant respects. First, with regard to any
issue that the parties have not been able to resolve
themselves, the statute confines the discretion of the
arbitration panel to a choice between the last best offer
of one party or another. . . . Second, in the exercise
of a choice between one or another last best offer, the
arbitration panel must give priority to the public interest
and the financial capability of the municipal employer
. . . .’’ (Citations omitted; internal quotation marks
omitted.) International Brotherhood of Police Officers,
Local 564 v. Jewett City, 234 Conn. 123, 132, 661 A.2d
573 (1995).
Questions of law decided by arbitrators in compul-
sory arbitration proceedings are subject to de novo
review. See Aetna Life & Casualty Co. v. Bulaong, 218
Conn. 51, 58, 588 A.2d 138 (1991). Whether the panel’s
award comports with the statutory requirements of § 7-
473c (d) (6) and (9) involves a question of statutory
construction, which requires our plenary review. See
Bloomfield v. United Electrical, Radio & Machine
Workers of America, Connecticut Independent Police
Union, Local 14, 285 Conn. 278, 286, 939 A.2d 561(2008). Accordingly, because this issue involves one of
statutory construction, and because the arbitration was
compulsory, our review is de novo. See Gormbard v.
Zurich Ins. Co., 279 Conn. 808, 816, 904 A.2d 198 (2006).
We agree with the trial court that Bridgeport Fire-
fighters Assn., IAFF, Local 834 v. Bridgeport, supra,
48 Conn. App. 667, controls the resolution of the union’s
claim in the present appeal. In Bridgeport, this court
construed the language of § 7-473c, the same statute
that is at issue in the present appeal. The sole issue on
appeal in Bridgeport was ‘‘whether each member of
the . . . panel failed to state the specific reasons and
standards used in making his choice on each unresolved
issue, thereby exceeding the . . . panel’s powers or so
imperfectly executing them that a final and definite
award was not made.’’ Id., 668.
In its award, the panel in Bridgeport stated: (1) the
panel had reviewed the record of the evidence and the
positions of the city and the union; (2) the members had
arrived at the award by applying the statutory criteria of
§ 7-473c (d), which it then recited in the award; and (3)
‘‘[t]he decisions on the individual issues hereinafter set
out are the decisions agreed to by all members of the
panel. The specific reasons given and standards used
in said decisions are adopted by all members of the
panel.’’ (Emphasis omitted; internal quotation marks
omitted.) Id. Thirty issues had been presented to the
panel in Bridgeport. Each issue determination by the
panel concluded with the following statement: ‘‘Based
on a preponderance of the evidence submitted by the
parties and giving priority to the public interest and
financial capability of the City, and considering the
other statutory factors in light of the financial capability
of the City of Bridgeport and the public interest, the
offer of the [city or union] is awarded by the arbitration
panel.’’ (Internal quotation marks omitted.) Id., 669.
Applying the well settled principles of statutory con-
struction, this court in Bridgeport held as follows: ‘‘[I]t
is not a rational interpretation of the statute to require
each panel member to set forth the specific reasons
and standards used in making his choice on all thirty
issues where the report from the panel indicates that
the specific reasons given and standards used were
agreed to by all members of the panel. To have each
member set forth his views individually is not a rational
requirement if the same result can be accomplished by
reporting what all the members agreed to, rather than
setting them forth individually. It would be unreason-
able to require each panel member to set forth his views
even when his views are consistent with those of his
colleagues. We hold that the award complied with § 7-
473c (d) (1).’’5 (Emphasis in original.) Id., 671.
Here, the members of the panel recited the applicable
statutory factors that they relied on in making their
decisions, set forth the positions of the union and the
town for each issue, and referred to the evidence rele-
vant to those positions. At the end of each issue discus-
sion, the panel stated that it had reviewed all of the
information it had received and selected a particular
last best offer in light of the statutory criteria. The panel
expressly provided that the town-appointed arbitrator
and the neutral arbitrator were in agreement ‘‘based
upon the same statutory criteria’’ and that the union-
appointed arbitrator dissented on the selection ‘‘based
on the same statutory criteria.’’ The reasoning and hold-
ing in Bridgeport is clearly applicable to the present
case, and controls the resolution of the union’s first
claim.6 We therefore conclude that the arbitration
award complied with § 7-473c (d) (6) and (9).7
II
The union’s final claim is that the court should have
vacated the arbitration award because it violated public
policy. Specifically, the union argues that enforcement
of the award would be illegal because (1) the award
was not in compliance with § 7-473c8 and (2) the award
violated General Statutes § 7-4509 because it diminished
the employees’ pension benefits.
‘‘[I]t is well-understood that courts will not enforce an
arbitration award if the award itself violates established
law or seeks to compel some unlawful action. However,
this rule, which is sometimes referred to as a public
policy exception, is extremely narrow. . . . [I]t is plain
. . . that an arbitration award may not be enforced if
it transgresses well defined and dominant laws and
legal precedents. It is also clear . . . that judges have
no license to impose their own brand of justice in
determining applicable public policy; thus, the excep-
tion applies only when the public policy emanates from
clear statutory or case law . . . .’’ (Emphasis in origi-
nal; internal quotation marks omitted.) Marlborough v.
AFSCME, Council 4, Local 818-052, 309 Conn. 790,
803, 75 A.3d 15 (2013). In both the trial court and this
court, the proper scope of review for a colorable claim
that an award violated public policy is plenary. See HH
East Parcel, LLC v. Handy & Harman, Inc., 287 Conn.
189, 196, 947 A.2d 916 (2008). Additionally, whether the
panel’s award violated § 7-450 involves a question of
statutory construction, which also requires our plenary
review. See Bloomfield v. United Electrical, Radio &
Machine Workers of America, Connecticut Indepen-
dent Police Union, Local 14, supra, 285 Conn. 286.
The trial court determined, and we agree, that the
unambiguous language of § 7-450 is not applicable
under the circumstances of this case. The trial court
concluded that ‘‘the text of the statute makes it clear
that it applies only where a municipality acts by ordi-
nance, or alternatively by resolution, to establish a pen-
sion benefits system or to amend a special act pertaining
to such system.’’ (Internal quotation marks omitted.)
See footnote 9 of this opinion. Here, the changes made
to the pension agreement were made through the collec-
tive bargaining process under MERA, not by ordinance.
Accordingly, the union’s final claim has no merit.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that the State Board of Mediation and Arbitration also was a
defendant at trial but is not a party on appeal. We therefore refer in this
opinion to the town as the defendant.
2
This section of the award, titled ‘‘Statutory Factors,’’ tracks the language
of § 7-473c (d) (9).
3
See General Statutes § 7-473c (b) (2) regarding the procedure for the
selection of the three arbitrators.
4
General Statutes § 7-473c (d) (10) provides in relevant part: ‘‘The decision
of the panel and the resolved issues shall be final and binding upon the
municipal employer and the municipal employee organization . . . except
that a motion to vacate or modify such decision may be made in accordance
with sections 52-418 and 52-419.’’
General Statutes § 52-418 (a) provides in relevant part: ‘‘Upon the applica-
tion of any party to an arbitration, the superior court . . . shall make an
order vacating the award if it finds any of the following defects: (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.’’
5
Public Act 99-270 made technical changes to the statute and renumbered
§ 7-473c (d) (1) to § 7-473c (d) (6).
6
The union attempts to distinguish Bridgeport on the ground that the
panel’s decision in that case was unanimous, whereas the panel in this case
reached a split decision. We are not persuaded that this case is materially
different from Bridgeport because the two majority arbitrators and the
dissenting arbitrator expressly stated that they each considered the same
statutory criteria. Thus, as in Bridgeport, a reviewing court knows that each
individual arbitrator met his obligation to apply the required statutory
criteria.
7
The union, having failed to present any material distinctions between
the facts of Bridgeport and the facts of this case, argued that the holding
in Bridgeport was ‘‘erroneous’’ and that ‘‘it was not reviewed by the Supreme
Court.’’ We are bound by our own precedent. ‘‘[A]s we often have stated,
this court’s policy dictates that one panel should not, on its own, reverse
the ruling of a previous panel. The reversal may be accomplished only if
the appeal is heard en banc.’’ (Internal quotation marks omitted.) Three
Levels Corp. v. Conservation Commission, 148 Conn. App. 91, 113, 89 A.3d
3 (2014).
8
Because we have concluded that the arbitration award did comply with
§ 7-473c (d) (6) and (9), this claim by the union has no merit.
9
General Statutes § 7-450 (a) provides in relevant part: ‘‘Any municipality
or subdivision thereof may, by ordinance, or with respect to a municipality
not having the authority to make ordinances, by resolution adopted by a
two-thirds vote of the members of its legislative body, establish pension,
retirement, or other postemployment health and life benefit systems for its
officers and employees and their beneficiaries, or amend any special act
concerning its pension, retirement, or other postemployment health and life
benefit systems, toward the maintenance in sound condition of a pension,
retirement, or other postemployment health and life benefit fund or funds,
provided the rights or benefits granted to any individual under any municipal
pension or retirement system shall not be diminished or eliminated. . . .’’
(Emphasis added.)