Opinion
No. HHD CV 11-6020639-S
September 29, 2011
MEMORANDUM OF DECISION
I.
The plaintiff Burr Road Operating Co., II, LLC, moves to vacate an arbitration award dated March 13, 2011 and the defendant New England Health Care Employees Union, District 1199, has filed a cross-application to confirm the arbitration award.
The facts relevant to the resolution of the present applications are as follows. The plaintiff, Burr Road Operating Company II, LLC, doing business as the Westport Health Care Center, (the Center) a nursing facility located in Westport, Connecticut, and the defendant, New England Health Care Employees Union, District 11199, is a union representing the plaintiff's employee, Leoni Spence (grievant). The parties' relationship is governed by a collective bargaining agreement that provides that employee grievances will be resolved through arbitration. The grievant was employed at the nursing facility as a certified nursing assistant from 2002 until 2010, when she was terminated. The events that led to the grievant's termination occurred between March 20, 2010 and March 24, 2010. While she was working the night shift under the direct supervision of Gay Muizulles, shift supervisor, the grievant overheard two coworkers discussing an event involving a patient who had been crying. She heard another coworker mention Muizulles' name in the same conversation. The grievant believed the coworkers were discussing the possible abuse of a patient, but she chose not to make an immediate report as she wished to seek further information.
During her next shift, which was not supervised by Muizulles, the grievant spoke to a resident who informed the grievant that Muizulles had been rough with her and thereby caused her to cry. The grievant then went home and telephoned the social worker at her workplace to report her suspicions of abuse. The social worker was not available, so the grievant proceeded to leave three separate messages for the social worker wherein she described her conversation with the patient and urged the social worker to investigate the situation.
The grievant, as well as all other certified nursing assistants employed by the center, had received repeated training regarding their duty to immediately report patient abuse, even if the abuse was merely suspected rather than witnessed. After investigating the possible abuse by Muizulles, the center found that she had acted insensitively towards the patient, but that her conduct did not rise to the level of abuse or neglect. Given her twenty years of employment without any prior disciplinary action taken against her, Muizulles was given a five-day suspension and a final warning. During that investigation, the center found that three other staff members had failed to fulfill their obligation to promptly report possible abuse of patients by Muizulles and disciplined those staff members.
The center did not carry out a separate investigation regarding whether the grievant had failed to make a timely report of possible abuse. The grievant was not informed that she was under investigation for possible misconduct or given the opportunity to provide her side of the story. Also, the employer did not hold a hearing, which would have given the grievant the opportunity to be heard and to present her position.
The employer decided to terminate the grievant based on her previous record and the information that had come to its attention in the course of its investigation regarding possible abuse by Muizulles. The grievant's previous record of discipline included a termination in 2005 for patient abuse, which was reduced to a suspension and final warning by agreement between the employer and the union. In 2009, the grievant received a written warning for speaking rudely to a patient and being insubordinate and disrespectful to her shift supervisor, Muizulles. Later in the same year, the grievant received a second and final written warning after another instance of alleged patient abuse.
The grievant received a second and final written warning after a resident reported that the grievant was rude and touched the patient without explaining the procedure.
The grievant filed a union grievance against the center challenging her termination, and the matter proceeded to arbitration pursuant to the collective bargaining agreement between the parties. On March 13, 2011, the arbitrator ruled in the grievant's favor, finding that Westport Health Care Center did not have just cause to terminate her. The arbitrator's award stated that although the center lacked just cause to terminate the grievant's employment, the center did have just cause to suspend the grievant without pay for a month and to issue her a final warning. Further, the arbitrator directed the center to "reinstate the grievant and make her whole for all wages and benefits she lost by virtue of the unjust termination of her employment, less the period of the one month suspension for which there was just cause."
On June 16, 2011, the center filed the present application to vacate the arbitration award as well as a brief in support of the application. On June 29, 2011, the defendant filed a cross application to confirm the arbitration award as well as a memorandum in support of the application and in opposition to the center's application to vacate the arbitration award. The center filed a subsequent reply brief on July 18, 2011.
II.
"Judicial review of arbitral decisions is narrowly confined . . . 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. Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution." (Internal quotation marks omitted.) AFSCME, Council 4, Local 1565 v. Dept. of Correction, 298 Conn. 824, 834, 6 A.3d 1142 (2010), see Knox v. Smith, 127 Conn.App. 593, 596, 14 A.3d 495 (2011); see also Windsor Locks v. International Brotherhood of Police Officers, Local 523, 128 Conn.App. 400, 403-04, 17 A.3d 499 (2011). "[I]n 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." (Internal quotation marks omitted.) Groton v. United Steelworkers of America, 254 Conn. 35, 44, 757 A.2d 501 (2000). "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." (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 80, 881 A.2d 139 (2005).
In the present case, there is no dispute that the submission was unrestricted.
"Nonetheless, even in the case of an unrestricted submission, three grounds have been recognized for vacating an award." North Branford v. Pond, Superior Court, judicial district of New Haven, Docket No. CV 10 6008206 (December 9, 2010, Skolnick, J.) ( 51 Conn. L. Rptr. 130, 131). These are: "(1) the award rules on the constitutionality of a statute . . . (2) the award violates clear public policy . . . or (3) the award contravenes one or more of the statutory proscriptions of § 52-418(a) . . . The judicial recognition of these grounds for vacatur evinces a willingness, in limited circumstances, to employ a heightened standard of judicial review of arbitral conclusions, despite the traditional high level of deference afforded to arbitrators' decisions when made in accordance with their authority pursuant to an unrestricted submission." (Internal quotation marks omitted.) Marlborough v. AFSCME, Council 4, Local 818-052, 130 Conn.App. 556, 563, 23 A.3d 798 (2011).
Here, the center filed an application to vacate the arbitration award on the grounds that (1) the award violates public policy, and (2) the award contravenes one or more of the statutory proscriptions of § 52-418(a). Specifically, it argues that the award violates the state of Connecticut's clear public policy of protecting residents in nursing facilities in that it reinstates the grievant and in effect declares a policy that a certified nursing assistant can never be discharged for late and improper reporting of suspected abuse. Further, it argues that the arbitrator's award contravenes the statutory proscriptions of § 52-418(a) because the arbitrator exceeded his authority by de facto inserting an implicit restriction in the parties' collective bargaining agreement in that it ignores the final warning in the grievant's file and creates a "due process" requirement to investigate the grievant' s statements that does not exist in the collective bargaining agreement.
The defendant subsequently filed a cross application to confirm the arbitration award and filed a memorandum in support of the application and in opposition to the center's application. The defendant argues that the award does not violate public policy, and that the arbitrator did not exceed his authority. In particular, it claims that the court's review of the arbitration award does not involve making substitute or supplementary factual findings, the court should not afford de novo review of the award without first determining that the center's challenge truly raises a legitimate claim of violation of public policy and that the court's role is to compare the award with the parties' submission to the arbitrator to determine whether the arbitrator exceeded his powers. The center counters that the arbitrator's determination violates the public policy of protecting nursing home patients from abuse by essentially prohibiting nursing homes from discharging employees who fail to follow employer policies and procedures that require prompt reporting, as long as those employees eventually report the abuse. Further, it contends that the arbitrator did in fact exceed his authority.
III. PUBLIC POLICY
"[W]hen a challenge to a voluntary arbitration award rendered pursuant to an unrestricted submission raises a legitimate and colorable claim of violation of public policy, the question of whether the award violates public policy requires de novo judicial review." (Internal quotation marks omitted.) State v. New England Health Care Employees Union, District 1199, AFL-CIO, 271 Conn. 127, 135, 855 A.2d 964 (2004). Regardless, "a reviewing court still is bound by the arbitrator's factual findings in making such a determination." AFSCME, Council 4, Local 1565 v. Dept. of Correction, supra, 298 Conn. 837. "A challenge that an award is in contravention of public policy is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement . . ." State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 271 Conn. 135. "When a challenge to the arbitrator's authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator's decision but with the lawfulness of enforcing the award . . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court's refusal to enforce an arbitrator's interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests . . ." (Citations omitted.) Id. 135-36.
"A two-step analysis . . . [is] often employed [in] deciding cases such as this. First, the court determines whether an explicit, well-defined and dominant public policy can be identified. If so, the court then decides if the arbitrator's award violated the public policy." (Internal quotation marks omitted.) Id., 137. "The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated." (Internal quotation marks omitted.) State v. AFSCME, AFL-CIO Council 4, Local 2663, 257 Conn. 80, 91, 777 A.2d 169 (2001). Further, "[t]he arbitrator's fact determinations are entitled to deference even when their award is challenged on public policy grounds." North Branford v. Pond, supra, 51 Conn. L. Rptr. 132. In State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 271 Conn. 127, the Supreme Court considered an employer's application to vacate an arbitration award that reinstated a state mental health facility employee who was fired for abusing a client in his care. The court noted that "there is an explicit, well defined and dominant public policy against the mistreatment of persons in the department's custody. We conclude that the first prong of the required inquiry is satisfied." Id., 138. As to "whether the arbitrator's award violated the public policy of protecting persons in the custody of the department from abuse"; the court stated: "To conclude that the arbitrator's decision and award violated the public policy of protecting persons in the custody of the department from abuse, the court would have had to conclude that, if a single instance of deliberate conduct results in any injury to a client, no matter how inadvertent or minor, the conduct is grounds for termination, per se . . . [S]uch a rule is not required to advance the public policy of protecting clients from mistreatment. Rather an arbitrator reasonably may consider circumstances such as the length of employment, previous instances of harmful conduct by the employee, and the circumstances and severity of the misconduct under review in determining the likelihood of future misconduct and whether discipline less severe than termination would constitute a sufficient punishment and deterrent. We also agree . . . that the rule urged by the state effectively would grant authority to the state to discharge an employee for such conduct without review, thereby undermining both the collective bargaining process and the arbitration process voluntarily agreed to by the parties." Id. 138-39.
In the present case, the grievant was terminated for failure to report suspected abuse in a timely manner. The center argues that Connecticut has a well-defined public policy of protecting residents in nursing homes that is evidenced by its statutes requiring prompt reporting of abuse or suspected abuse. In addressing the first prong of the public policy analysis there is an explicit, well-defined and dominant public policy against the mistreatment of patients in nursing homes, including the public policy of prompt reporting of abuse, evidenced by General Statutes §§ 17b-451 and 19a-550. Given that a clear, dominant, well-defined public policy exists, the question is whether the award violates that public policy in ordering the reinstatement of an employee with a documented history in regard to patient abuse. There is no established dominant public policy against reinstating an employee who was terminated for failure to promptly report suspected abuse. Nor is there a dominant public policy against arbitrators considering mitigating facts under circumstances where the employee does have a record of prior abuse. As evidenced in State v. New England Health Care Employees Union District, Local 1199, AFL-CIO, supra, 271 Conn. 127, to conclude that the arbitrator's award violated the public policy of protecting nursing home patients from abuse would be to conclude that an employee's failure to timely report abuse is grounds for termination per se. Such a rule is not required to advance the public policy of protecting nursing home patients. Further, the arbitrator's award did not violate public policy by considering mitigating factors. Id., 139. An arbitrator may reasonably consider circumstances including the severity of the misconduct under review. Id. The arbitrator's award does not absolve any employee who eventually reports suspected abuse, rather the arbitrator finds that termination per se is not the appropriate punishment and finds just cause for a one-month suspension without pay and a final warning. Therefore, it is concluded that the arbitrator's decision does not violate public policy.
General Statutes § 17b-451 provides as follows: "[A]ny person paid for caring for a patient in a nursing home facility, any staff person employed by a nursing home facility . . . and any licensed practical nurse . . . who has reasonable cause to suspect or believe that any elderly person has been abused, neglected, exploited or abandoned, or is in a condition which is the result of such abuse, neglect, exploitation or abandonment, or is need of protective services, shall, not later than seventy-two hours after such suspicion or belief arose, report such information or cause a report to be made in any reasonable manner to the Commissioner of Social Services or to the person or persons designated by the commissioner to receive such reports. Any person required to report under the provisions of this section who fails to make such report within the prescribed time period shall be fined not more than five hundred dollars, except that, if such person intentionally fails to make such report within the prescribed time period, such person shall be guilty of a class C misdemeanor for the first offense and a class A misdemeanor for any subsequent offense."
General Statutes § 19a-550 provides the patient's bill of rights for "any person admitted as a patient to any nursing home facility or chronic disease hospital." The facility shall provide that such patient is "free from mental and physical abuse . . ."
IV. GENERAL STATUTES § 52-418(a)
Section 52-418(a) provides in relevant part: "Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds . . . (4) 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 our construction of § 52-418(a)(4), we have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers . . ." (Internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. Dept. of Transportation, 273 Conn. 746, 756, 873 A.2d 155 (2005). "The significance . . . 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." Id. 755-56. "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 arbitrator was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, they will review the arbitrators' decision of the legal questions involved." State v. AFSCME, AFL-CIO, Council 4, Local 2663, CT Page 21057 257 Conn. 80, 85-86, 777 A.2d 169 (2001). "The burden of demonstrating the nonconformity of the award to the submission is on the party seeking to vacate the award . . ." (Citation omitted; internal quotation marks omitted.) International Ass. of Fire Fighters, Local 1339, AFL-CIO v. City of Waterbury, 35 Conn.App. 775, 779, 647 A.2d 361 (1994).
General Statutes § 52-418(a) provides: "(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, 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."
"[The] inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred. With respect to the latter, [the Supreme Court has] explained that . . . as long as the arbitrator's remedies were consistent with the agreement, they were within the scope of the submission . . . In making this determination, the court may not engage in fact-finding by providing an independent interpretation of the contract, but simply is charged with determining if the arbitrators have ignored their obligation to interpret and to apply the contract as written . . ." (Citations omitted; internal quotation marks omitted.) Harty v. Cantor Fitzgerald Co., supra, 275 Conn. 85-86.
In the present case, the submission presented to the arbitrators was: "Was Leoni Spence terminated for just case? If not, what shall the remedy be?" The award of the arbitrator was "[t]he Employer lacked just cause to terminate the grievant's employment. However, the Employer had just cause to suspend the grievant without pay for a month and to issue her a final warning." The award further provided that "[t]he Employer shall reinstate the grievant and make her whole for all wages and benefits she lost by virtue of the unjust termination of her employment, less the period of the one month suspension for which there was just cause." The award answered the question whether the grievant was terminated for just cause, thus falling within the scope of the submission.
The center argues the arbitrator exceeded his authority because he failed to give credit to the final warning in the grievant's personnel file and he unilaterally created a "mitigating factor" exception that creates a new category of disciplinary infraction that doesn't exist in the collective bargaining agreement. Here, there was no express language which restricted the issues to be considered by the arbitrator in determining whether the grievant was terminated for just cause. The arbitrator considered but rejected the grievant's voluntary admissions of her failure to report abuse and the argument that the final warning in the grievant's file created just cause for termination. Rather, the arbitrator found that despite the grievant's disciplinary record, her conduct was arguably less egregious than the misconduct of the others involved and the fact that she reported the abuser when the others did not was a mitigating factor. Therefore, as in the case of an unrestricted submission, the court is bound by the arbitrator's legal and factual conclusions. Further the center has not met its burden in demonstrating the nonconformity of the award to the submission, where the award did in fact answer the submitted questions. Therefore, it is held that the arbitrator did not exceed the scope of his authority in violation of the proscriptions of § 52-418(a).
See State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 271 Conn. 138-39, (where the court found: "[A]n arbitrator reasonably may consider circumstances such as the length of employment, previous instances of harmful conduct by the employee, and the circumstances and severity of the misconduct . . . in determining the likelihood of future misconduct and whether discipline less severe than termination would constitute a sufficient punishment and deterrent . . . [T]he rule urged by the state effectively would grant authority to the state to discharge an employee for such conduct without review, thereby undermining both the collective bargaining process and the arbitration process voluntarily agreed to by the parties").
V. CONCLUSION
For the foregoing reasons, the court denies the center's application to vacate the arbitration award as such award does not violate public policy or the proscriptions of § 52-418(a). The defendant's motion to confirm the arbitration award is hereby granted.