Opinion
No. CV 10 600 8206
December 9, 2010
MEMORANDUM OF DECISION RE APPLICATION TO VACATE ARBITRATION AWARD #100.31
This matter came before the court on September 30, 2010. The issue presented is whether the court should grant the plaintiff town of North Branford's application to vacate an arbitration award that found in favor of the defendant, Daniel Pond.
The defendant, Daniel Pond, was employed as a department of public works highwayman by the plaintiff, the town of North Branford. As a safety-sensitive transportation employee, Pond was required to undergo periodic random drug testing pursuant to federal mandate. On February 15, 2008, Pond failed a drug test due to his inability to produce an acceptable urine sample within a three-hour period. Pond subsequently passed nine drug tests. On March 18, 2009, Pond was ordered to take yet another drug test. Pond was unable to produce an acceptable sample upon arriving at the test facility. Pond was placed in a waiting room and allegedly instructed to drink water and remain in the area. The procedures for the testing facility required that any person leaving the waiting area during the testing process would be cited as having failed the test. Pond was away from the waiting area at the time he was called to take his test and was, thus, cited with a failure. Having failed two drug tests, Branford terminated Pond pursuant to its drug and alcohol policy.
The relevant regulations are codified in Title 49 of the Code of Federal Regulations. Employees subject to random testing and categorized as safety-sensitive are listed in plaintiff's exhibit 2: "The Town of North Branford's Policy Implementing the Federal Highway Administration Regulations on Drug Use and Alcohol Misuse."
Thereafter, Pond filed a union grievance and the matter proceeded to arbitration pursuant to the collective bargaining agreement ("CBA") between Branford and Pond's union. The submission presented to the arbitrators was: "Did the [t]own of North Branford terminate Daniel Pond for just cause consistent with the contract? If not, what shall the remedy be?" On January 12, 2010, a three-member arbitration panel ruled in Pond's favor, finding that Branford did not have just cause to terminate Pond. The arbitrators' award directed Pond "to take and successfully pass a drug test at [North Branford's] expense in order to return to work. Until he passes said test and is returned to work, no pay or benefits are due [Pond]."
On February 11, 2010, North Branford filed with this court the present application to vacate the arbitration award. A memorandum in support of the application was filed on May 5, 2010. Pond, through his union representative, filed a memorandum in opposition on June 25, 2010. Argument on the matter was heard on September 30, 2010.
The plaintiff has submitted the following full exhibits into evidence: (1) a copy of the CBA, (2) a copy of a document entitled "The Town of North Branford's Policy Implementing the Federal Highway Administration Regulations on Drug Use and Alcohol Misuse," (3) a copy of Pond's union grievance form, (4) a copy of a signed document entitled "Attachment to and Part of North Branford's Employment Application," and (5) a copy of the arbitration award.
"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 . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution . . .
"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 . . . 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).
Nonetheless, even in the case of an unrestricted submission, three grounds have been recognized for vacating an award. First, an award may be vacated if it "rules on the constitutionality of a statute." AFSCME, Council 4, Local 1565 v. Dept. of Correction, 298 Conn. 824, 835 (2010). Second, vacating an award is appropriate when it "violates clear public policy." Id. Finally, an award is properly vacated if it "contravenes one or more of the statutory proscriptions of Connecticut General Statutes § 52-418(a)." Id.
North Branford moves to vacate the arbitration award on the grounds that: (I) the award violates public policy and (II) the award contravenes one or more of the statutory proscriptions embodied by § 52-418(a). In particular, North Branford argues that the arbitrators are guilty of misconduct under § 52-418(a), in that their award prejudiced North Branford's rights to a fair hearing by failing to conform to the submission of the parties, by requiring the town to repudiate its own policies, practices, procedures and regulations and by violating established public policy. Moreover, North Branford argues that the arbitrators either exceeded or imperfectly executed their powers to such an extent that a mutual, final and definite award upon the subject matter was not made, in contravention of § 52-418(a).
Pond counters that enforcement of the arbitration award would not violate any explicit public policy. Specifically, Pond argues that the award conformed to the parties' voluntary unrestricted submission and that the discipline imposed by the arbitration panel was fair, just, equitable and proportional.
"The public policy exception applies only when [an arbitration] award is clearly illegal or clearly violative of a strong public policy . . . 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 any more than parties can expect a court to enforce such a contract between them . . . 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 . . . The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated . . . Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail in the present case only if it demonstrates that the [arbitrator's] award clearly violates an established public policy mandate." (Citations omitted; internal quotation marks omitted.) Groton v. United Steel Workers of America, 254 Conn. 35, 45-6, 757 A.2d 501 (2000).
"[W]hen a party challenges a consensual arbitral award claiming that it violates public policy and that challenge has a legitimate, colorable basis, we will engage in de novo review of the award to determine whether the award in fact violates public policy." AFSCME, Council 4, Local 1565 v. Dept. of Correction, supra, 298 Conn. 837. Nevertheless, "a reviewing court still is bound by the arbitrator's factual findings in making such a determination." Id.
Pursuant to North Branford's implementation of federal regulations governing transportation employees, Pond was subject to random drug screening. North Branford contends that the federal testing regulations evince a national concern regarding the effects of drug and alcohol abuse in the workplace. Integral to the execution of the federal policy, North Branford maintains, is the imposition of discipline on employees who have failed a substance abuse test as prescribed by an employer's policy implementing the federal regulations and any applicable collective bargaining agreements. North Branford's drug and alcohol policy states that a "positive test result for a[n] employee subject to follow-up testing . . . wil[l] be ground for immediate discharge." Therefore, North Branford argues the arbitrators' award reinstating Pond contravenes established public policy.
Administrative directives "are not in and of themselves determinative of public policy. Internal `practices and procedures may reflect public policy but those practices and procedures do not determine that policy.' South Windsor v. South Windsor Police Union, 41 Conn.App. 649, 658, 677 A.2d 464, cert. denied, 239 Conn. 926, 683 A.2d 22 (1996)." State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 476-77 n. 10, 747 A.2d 480 (2000). Therefore, North Branford's internal policies concerning discharge will not be considered determinative as to the expression of a dominant public policy.
The determination of a dominant public policy "is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests." Groton v. United Steel Workers of America, supra, 254 Conn. 46. Although the federal regulations demonstrate a policy against workplace substance abuse through the provision of random drug and alcohol screening on safety-sensitive employees, established public policy does not require this court to vacate the present arbitration award.
In Eastern Associated Coal Corp. v. United Mine Workers of America, District 17, 531 U.S. 57, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000), the United States Supreme Court considered the policy implications of the Omnibus Transportation Employee Testing Act of 1991 ("OTETA") and its implementing regulations, from which the federal standards relied on by North Branford are derived. In that case, an employer sought to vacate an arbitration award reinstating a safety-sensitive highway employee who had twice failed a random drug test. The court noted that the federal regulatory scheme at issue embodied several relevant policies, including "policies against drug use by employees in safety-sensitive transportation positions and in favor of drug testing. They also include a . . . policy favoring rehabilitation of employees who use drugs. And the relevant statutory and regulatory provisions must be read in light of background labor law policy that favors determination of disciplinary questions through arbitration when chosen as a result of labor-management negotiation." Id., 65. In holding that the employee was properly reinstated, the court stated that Congress has not "seen fit to mandate the discharge of a worker who twice tests positive for drugs . . . We cannot find in the [a]ct, the regulations, or any other law or legal precedent an `explicit,' `well defined,' `dominant' public policy to which the arbitrator's decision `runs contrary.'" Id., 67.
Although portions of the OTETA and 49 C.F.R. § 40 have been amended subsequent to the Eastern Associated Coal decision, the amendments to the testing provisions relied on by North Branford in their memorandum do not substantively affect the present public policy analysis as they do not appear to touch on relevant issues of employee discharge or discipline.
Under the present facts, Pond was terminated for twice failing random drug screening tests. In contrast to the discharged employee in Eastern Associated Coal, Pond did not receive a verified positive test result for actual drug use. Rather, Pond's two failures were the result of his alleged refusal to test. The fact that the arbitrators considered Pond's failures procedural defects is of no moment; Pond could just as easily have been terminated had he received two verified positive tests confirming actual drug use. Nor does Pond's alleged recidivism affect the validity of the present arbitration award, as Pond's punishment — a suspension of pay and benefits until he passes a return-to-duty drug test — contemplates the severity of his actions. In light of the United States Supreme Court's determination that the federal regulatory scheme adopted, implemented and relied on by North Branford does not require the discharge of a worker who twice tests positive for drugs, the arbitration award reinstating Pond does not contravene a well-defined, dominant public policy as ascertained through legal precedent.
Under 49 C.F.R. § 40.191(a)(2), employees are deemed to have refused a drug test if they "[f]ail to remain at the testing site until the testing process is complete." Under North Branford's drug and alcohol policy, "a refusal to take a test will constitute the equivalent of a positive drug test or an alcohol test of 0.04 or greater. Therefore, refusal by a[n] employee to submit to required testing or failure to pass a drug or alcohol test will lead to disciplinary action, up to and including discharge."
Moreover, the fact that the arbitrators did not explicitly hold that by leaving the waiting area Pond failed the test does not necessitate vacating their award. There is no dominant, established public policy prohibiting the reinstatement of an employee who leaves a waiting area during a drug screening, particularly under circumstances where the employee has not received any warning, written or verbal, as to the consequences of his actions. Nor is there a well-established policy preventing arbitrators from considering mitigating facts under such circumstances. See Pasternack v. National Transportation Safety Board, 596 F.3d 836, 389 US App. DC 266 (D.C. Cir. 2010) (declining to reach issue of whether consideration of exculpatory justification is required or whether 49 C.F.R. § 40.191(a)(2) is strict liability provision).
The arbitrators' fact determinations are entitled to deference, even when their award is challenged on public policy grounds. See State v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 95, 777 A.2d 169 (2001). North Branford, as the party moving to vacate the arbitration award, has failed to carry its burden of demonstrating that the arbitrators' award clearly violates public policy. Thus, the award should not be vacated on public policy grounds.
Section 52-418(a) provides: "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."
North Branford argues that the arbitrators engaged in misconduct proscribed by § 52-418(a). In particular, North Branford maintains that the arbitration award failed to conform to the submission of the parties. In addition, North Branford avers that the award infringes on its contractual rights, reserved under article XIV of the CBA. North Branford points to the express language of that clause, reserving in it "full control of the policies, practices, procedures and regulations with respect to the employee." Moreover, North Branford notes, that clause provides that "actions with respect to such rights and responsibilities are not subject to review."
"It is axiomatic that a collective bargaining agreement is a contract." D'Agostino v. Housing Authority, 95 Conn.App. 834, 838, 898 A.2d 228, cert. denied, 280 Conn. 905, 907 A.2d 88 (2006); accord W.R. Grace Co. v. Local Union 759, International Union of United Rubber, Cork, Linoleum Plastic Workers of America, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983); Poole v. Waterbury, 266 Conn. 68, 87, 831 A.2d 211 (2003). Thus, analysis of the CBA will be guided by well settled principles of contract interpretation. Id. It is apparent that the CBA reserves in North Branford certain rights and responsibilities that are not subject to review. Nonetheless, the express language of article XIV provides for review of those rights and responsibilities "specifically abridged or modified by this agreement." Article XI, paragraph 11.0, of the CBA provides: "No employee shall be discharged or otherwise disciplined without just cause." Thus, any rights reserved by North Branford in article XIV with regard to discharge or discipline are subservient to the just cause provision of article XI. Furthermore, article XI, paragraph 11.2, provides: "All disciplinary actions shall be subject to the grievance procedure." As the grievance procedure embodied in article XII of the CBA provides for binding arbitration between the parties, the arbitrators' award, finding that Pond was not discharged for just cause, did not infringe on North Branford's reserved rights. The submission of the parties requested that the arbitrators determine whether Pond was discharged for just cause pursuant to the contract. The arbitration award answers this query and does not exceed the submission's scope.
North Branford further argues that the arbitration award "would require [it] to repudiate one of its own policies, practices, procedures and regulations." Nevertheless, North Branford bargained away its right to exclusive control of employee discipline and discharge when it signed the CBA. Articles XI and XII provide an avenue for arbitral review of any employee disciplinary action. Therefore, this portion of North Branford's argument must fail.
In addition, North Branford renews its argument that the arbitration award violates established public policy, this time under the auspices of § 52-418(a). As previously noted, the arbitration award does not contravene an established, well-articulated public policy. Since the analytical framework for addressing public policy issues under § 52-418 is substantively similar to the analysis provided above, the court need not address this issue further. See, e.g., State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 747 A.2d 480 (2000) (addressing public policy exception under § 52-418(a)(4)).
Finally, North Branford contends that the arbitrators "exceeded their powers, or so imperfectly executed them, that a mutual, final and definite award upon the subject matter was not made." North Branford supports this contention with the following averments: "The arbitrators arrived at their award that [North Branford] did not have just cause to terminate Pond by deciding factual and legal questions, substituting their own notions of fairness, instead of rendering a decision limiting themselves to the submission of the parties . . . It is incomprehensible that the town manager did not have just cause to terminate the individual grievant if he has the absolute, unreviewable right to terminate the individual grievant under the circumstances of this case . . . The arbitrators imposed a penalty standard . . . to `open the door' as opposed to the town manager's right to impose discharge as mandated in [North Branford's] [d]rug and [a]lcohol policy. The arbitrators also changed the definition of what is deemed a positive test under said [p]olicy to justify modifying the penalty by determining that a refusal or failure to test is a `procedural problem rather than an actual drug problem.'"
North Branford's remaining arguments are unavailing and their substance has been addressed throughout this opinion. As discussed, the arbitration award conforms to the submission of the parties by reasonably interpreting the CBA and the available evidence. The arbitration award does not contravene public policy and the arbitrators did not exceed or imperfectly execute their powers in arriving at such award.
Accordingly, and for the foregoing reasons, North Branford's application to vacate the arbitration award is denied, as such award does not violate public policy or the proscriptions of Connecticut General Statutes § 52-418(a).