Bd. of Educ. of Waterbury v. Waterbury Teachers Ass'n

196 Conn.App. 473

230 A.3d 746

BOARD OF EDUCATION OF THE CITY OF WATERBURY

v.WATERBURY TEACHERS ASSOCIATION, CEA-NEA

AC 41981

Appellate Court of Connecticut.

Argued November 12, 2019

Officially released March 17, 2020

Adrienne R. DeLucca, with whom, on the brief, was Martin A. Gould, Hartford, for the appellant (defendant).

Tara L. Shaw, with whom, on the brief, were Connor P. McNamara and Anne Murdica, Waterbury, for the appellee (plaintiff).

Lavine, Prescott and Sheldon, Js.

LAVINE, J.

The defendant, the Waterbury Teachers Association, CEA-NEA (union), appeals from the judgment of the trial court vacating an arbitration award in favor of the plaintiff, the Board of Education of the City of Waterbury (board). On appeal, the union claims that the trial court erred in concluding that (1) the arbitrator so imperfectly executed his powers that a mutual, final, and definite award on the subject matter submitted was not made, and (2) the arbitration award violates public policy. We agree with both of the union's claims and, accordingly, reverse the judgment of the trial court.

The following facts, as found by the arbitrator, are germane to this appeal. In January, 2017, the union filed a grievance on behalf of a class of teachers, some of whom were assigned to Tinker Elementary School (Tinker school), alleging that the board had violated the collective bargaining agreement between the union and the board (agreement) by depriving certain teachers of their bargained for weekly preparation periods. Specifically, the grievance stated: "Preparation [p]eriods. The [union] alleges that the [board] is in violation of the 2016–2019 [agreement] at Tinker [school] and other elementary schools as a result of multiple teachers failing to receive the [bargained for] preparation period." The union requested that the board cease and desist from such violations and that it pay all affected teachers who could quantify the loss at their per diem hourly rate. The board unanimously upheld the grievance and

stated that the administration would make "every effort to provide [teachers with] the required five preparation periods per week." The board, however, denied the monetary award sought by the union.

The union then filed for arbitration, which was held before Attorney Emanuel N. Psarakis (arbitrator) in September, 2017. The parties were unable to agree on an arbitration submission and, therefore, allowed the arbitrator to fashion it. The board did not object to the submission as framed by the arbitrator. The submission stated: "Has the [board] violated the requirement that Waterbury [kindergarten through fifth grade] teachers at the Tinker school receive five weekly preparation periods, and that each preparation period must be no less than [thirty] minutes in duration with no less than three hours of preparation time per week? If so, what shall the remedy be?"¹

Following the arbitration proceedings, the arbitrator found that twenty-two teachers at the Tinker school during the 2016–2017 school year were routinely deprived of one or more of their bargained for weekly preparation periods as a result of being required to substitute for other, absent teachers.² The arbitrator found, and the parties agreed, that the agreement had been violated by the board. The remaining issue for the arbitrator to decide was "whether or not monetary damages [were] appropriate for the admitted deprivation of preparation time authorized for teachers under the [agreement]."

The board took the position that its initial offer, to make "every effort" thereafter to comply with the contract, was reasonable. The board further argued that the

agreement does not authorize damages for such violations and that the agreement does not provide compensation for missed preparation periods.³ Accordingly, the board argued that an award of compensatory damages would exceed the authority of the arbitrator because it would modify and add to the agreement. The arbitrator rejected the board's arguments and concluded that a compensatory award to the aggrieved teachers was appropriate because the agreement expressly authorized the awarding of compensatory damages by an arbitrator, the agreement did not expressly limit compensatory damages for the deprivation of preparation periods, and a monetary award would place the affected parties essentially in the same position in which they would be had there been no violation. The arbitrator further reasoned that "the remedy announced by the board to make ‘every effort’ to provide the required preparation periods is not a viable or reasonable one. It provides no consequences for ongoing violations, and allowed the board to continue violations with impunity." The arbitrator also noted that the board negotiated the provisions of the agreement, and, therefore, it was "not impossible to foresee that absences on account of authorized leave would impact upon the number of teachers available to teach on any day."

The arbitrator issued the following arbitration award (award): "Compensatory damages to each affected teacher as set forth [herein]; [a]n [o]rder that the [b]oard [c]ease and [d]esist from refusing to provide contract[ual] preparation periods to teachers at the Tinker

[s]chool; [and] [f]ailing compliance with such [c]ease and [d]esist [o]rder, the [b]oard will become liable for and obligated to pay appropriate compensatory damages to affected teachers consistent with the formula discussed [herein]. It thereby will become responsible for compensatory damages to teachers for any preparation periods that continue to be denied [them] after the date of this decision."

After the award was issued, the union wrote to the arbitrator and requested the following clarification: "Does the [c]ease and [d]esist [o]rder requiring prospective compensatory liability for the denial of preparation periods during the remainder of the current [agreement] apply only to Tinker [school] teachers, all elementary school teachers in the bargaining unit or all teachers within the bargaining unit?" Over the board's objection, the arbitrator responded to the union's request for clarification. He stated in part: "Consequently, to the extent that clarification may be necessary, any further monetary liability under this [award] for subsequent denial of preparation periods during the remainder of the current [agreement] applies only to the affected teachers at the Tinker school for which compensatory damages were awarded ." (Emphasis added.)

The union filed in the trial court an application to confirm the award pursuant to General Statutes § 52-417, and the board filed an application to vacate the award pursuant to General Statutes § 52-418. In support of its application, the board argued that, pursuant to § 52-418 (a) (4), the award must be vacated because the arbitrator exceeded his powers under the agreement and the award was not final and definite and was, therefore, unenforceable.⁴ The board also argued that the

award was contrary to law in that it disregarded the doctrines of impossibility and/or impracticality,⁵ and that the award violated public policy.

The court granted the board's application to vacate the award and issued a memorandum of decision, in which it stated that the award "created an inconsistency in the application of the [agreement] to members of the union," despite an agreement provision to the contrary, because it "limit[ed] remuneration to Tinker's teachers" and that "parties are statutorily required to collectively bargain over the terms and conditions of employment, which includes salaries." The court decided that the "award was imperfectly executed, in that a mutual, final and definite award upon the subject matter submitted was not made, as it may be inconsistently applied to teachers in the district and, moreover, without following the mandatory provisions of the [Teacher Negotiation Act, General Statutes § 10-153a et seq. ], applicable to the entire bargaining unit." The court concluded that the award violates public policy. Accordingly, the court

granted the board's application to vacate the award and denied the union's application to confirm it. This appeal followed.

I

The union claims that the trial court improperly concluded that the arbitrator so imperfectly executed his powers that a mutual, final, and definite award on the subject matter submitted was not made. We agree with the union.

The standard that governs our review of arbitration awards that are challenged pursuant to § 52-418 (a) (4) is as follows. "The scope of judicial review of arbitration awards is very narrow. Our courts favor arbitration as a means of settling differences and uphold the finality of arbitration awards except where an award clearly falls within the proscriptions of § 52-418 .... Subsection (a) (4) of ... § 52-418 ... provides in part that an award is invalid 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. Generally, any challenge to an award pursuant to ... § 52-418 (a) (4) on the ground that the arbitrators exceeded or imperfectly performed their powers is properly limited to a comparison of the award with the submission. ... If the award conforms to the submission, the arbitrators have not exceeded their powers." (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, Inc. , 59 Conn. App. 224, 228, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000). "In deciding whether the arbitrators have exceeded their powers, this court, as a general rule, examines only the award to determine whether it is in conformity with the submission. The memorandum of the arbitrator is irrelevant." Board of Education v. AFSCME , 195 Conn. 266, 271, 487 A.2d 553 (1985).

"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...