AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES COUNCIL 4 LOCAL 1186 v. NEW BRITAIN BOARD OF EDUCATION, No. HHBCV11-6010949 (2012)


Superior Court of Connecticut.

American Federation of State, County & Municipal Employees Council 4 Local 1186 v. New Britain Board of Education et al.

HHBCV11 6010949

Decided: January 17, 2012

MEMORANDUM OF DECISION ON APPLICATION TO VACATE ARBITRATION AND CROSS?APPLICATION TO CONFIRM ARBITRATION

The plaintiff American Federation of State, County, and Municipal Employees, Council 4, Local 1186, (?union?) applies to vacate an arbitration that upheld the termination from employment of a union member, Anne Bastek, from her Clerk Typist position with the defendant New Britain Board of Education (?board?). ? The Board opposes vacatur and applies to confirm the arbitration. ? Bastek’s termination resulted after many months of progressively poor job performance evaluations. ? The board claimed that Bastek had not sufficiently improved in any of her deficient areas of job performance over the months of her evaluations. ? The union claimed that she was not evaluated fairly and should not have been terminated. ? After Bastek’s grievance was denied, the union initiated an arbitration.

The parties agreed on an unrestricted submission to the State Board of Mediation and Arbitration:

Did the New Britain Board of Education violate Article VIII, Section 8.0 of the parties’ collective bargaining agreement when it terminated the employment of the grievant, Anne Bastek? ? If so, what shall the remedy be?

Article VIII, Section 8, of the collective bargaining agreement (?CBA?) provides, ?No employees covered by this agreement will be discharged or disciplined except for just cause.?

The arbitrators, by vote of two to one, found that the board had not violated the CBA when it terminated Bastek. ? The union filed a timely application with the Superior Court to vacate the arbitration, and the board filed a timely application to confirm the award.

FACTS

Bastek had worked for a number of years in the position of Clerk Typist 2 for the Board of Education. ? In 2008, the board instituted a new evaluation process that revised the evaluation guidelines and that evaluated employees more frequently than before (bi-annually instead of annually). ? As part of this process, Bastek was asked to specify what tasks she performed at her job, and her answers were used in developing a written instrument to assist in evaluating her performance.

The first evaluation of Bastek under the new procedure occurred for the period ending June 30, 2009. ? She was evaluated as having deficits in the areas of accuracy, quality of work, efficient use of time and setting priorities. ? It was also noted that she failed to follow work rules, policies, and procedures. ? A follow-up evaluation occurred three months later, for the period from June 30 to September 28, 2009. ? In the seven categories in which Bastek was noted as needing improvement, she was noted as improving in only one area. ? Another follow-up evaluation occurred for the period ending December 18, 2009. ? That evaluation noted no improvement in any of the areas. ? An evaluation for the period ending April 5, 2010, showed some improvement, but the overall result of the evaluation still rated Bastek’s performance as unsatisfactory. ? Also, in the three years leading up to her termination, Bastek was given three separate warnings regarding her poor work performance. ? In November 2009, she was given a one-day suspension for insubordination.

On May 13, 2010, after these four unsatisfactory work evaluations, three warnings, and one suspension, Bastek, with her union representative, met with the board’s Director for Human Resources. ? The purpose was to determine whether she should continue to be employed by the board or whether she should be terminated. ? She was given the reasons why she was subject to termination and was given an opportunity to respond. ? As a result of that meeting, Bastek sent a letter refuting her most recent evaluation, but did not address the three earlier evaluations or her overall work performance. ? Up to this time Bastek had not challenged any of the ratings in these evaluations, nor the evaluation procedure as a whole. ? On May 27, 2010, the Director, on behalf of the board, sent Bastek a letter terminating her from her employment. ? The Director had concluded that Bastek was either unable or unwilling to improve her performance to a satisfactory level.

The union argues that this pre-termination procedure was inadequate; ?and that the instrument used to evaluate Bastek was overly subjective and had not been officially approved by the board. ? The arbitrators found that pre-termination procedure was adequate?she had been given the reasons for her termination and an opportunity to respond before the final decision was made. ? The arbitrators also found that the instrument used to evaluate Bastek was no more than a description of the daily duties that she actually performed and that, since she had assisted in developing the description of her daily duties, she could not complain that it was an invalid instrument. ? Indeed the arbitrators found that she had never complained about the standards used to evaluate her in the four evaluations until she was told that she was to be terminated. ? The arbitrators acknowledged that the burden was on the board to prove that it had just cause to terminate Bastek. ? They found that the evidence all together proved by a preponderance of the evidence that the board was justified in doing so.

THE SCOPE OF REVIEW

When a submission is unrestricted, the scope of review for arbitration awards is exceedingly narrow. ? Every reasonable inference is to be made in favor of the arbitral award and of the arbitrator’s decisions. ?International Brotherhood of Police Officers, Local 361 v. New Milford, 81 Conn.App. 726, 729, 841 A.2d 706 (2004). ? This applies to the determination of arbitrability in the first instance, as well as to the determination of the merits of the dispute. ? See, e.g. East Hartford v. East Hartford Municipal Employees Union, 206 Conn. 643, 645, 539 A.2d 125 (1988). ? Where the submission does not otherwise limit the issue, the arbitrators are empowered to decide all 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 ? Furthermore, in 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. ?(Citation omitted; ?internal quotation marks omitted.)

Brantley v. New Haven, 100 Conn.App. 853, 864?65, 920 A.2d 331 (2007); ?Rocky Hill Teachers’ Assn. v. Board of Education, 72 Conn.App. 274, 278, 804 A.2d 999, cert. denied, 262 Conn. 907, 810 A.2d 272 (2002).

THE ARBITRATION AWARD

The submission to the arbitrators was unrestricted. ? They were asked to hear the evidence and determine whether the relevant provisions of the CBA were violated when the defendant board determined that it would terminate Bastek for poor work performance. ? By majority vote, the arbitrators determined that there was no contract violation, but rather that the board had just cause to terminate the grievant.

Whether the arbitrators correctly decided the matter or not, when the submission to the arbitrators is unrestricted, as it was here, the argument that the arbitrators arrived at the wrong result is insufficient to justify a conclusion that they exceeded their powers or so imperfectly executed their power that this award should be overturned. ?Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 114?15, 779 A.2d 737 (2001); ?see also New Britain v. AFSCME, Council 4, Local 1186, 121 Conn.App. 564, 575?76 (2010). ? And contrary to the claims of the plaintiff in the application to vacate, there is not a shred of evidence that there was any misconduct by these arbitrators or that the award implicates any public policy issue.

CONCLUSION

The award conforms to the submission and the court is not authorized to substitute its judgment for that of the arbitrators. ? The Application to Vacate the Award is denied. ? The Application to confirm the Award is granted.

Patty Jenkins Pittman, Judge

Pittman, Patty Jenkins, J.