Board of Education v. AFSCME, Council 4, Local 287

Parskey, J.,

dissenting. The question submitted to the arbitrators was whether the New Haven Board of Education (board) violated the collective bargaining agreement between the board and Local 287 of Council 4, American Federation of State, County and Municipal Employees (union). The arbitrators answered this question in the affirmative and the trial court upheld their award. Because there is a basis in the record for upholding the award, the trial court’s judgment should be affirmed.

I agree completely with the court’s analysis of the proper judicial approach to arbitration, namely, that arbitration is the favored means of settling differences; Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 290, 377 A.2d 323 (1977); that every reasonable presumption and intendment will be made in favor of the award and of the arbitrator’s acts and proceedings; Gary Excavating Co. v. North Haven, 160 Conn. 411, 413, 279 A.2d 543 (1971); that the authority to arbitrate is strictly limited by the provisions of the collective bargaining agreement and the scope of the matter to be considered by the arbitrator is limited by the submission; Board of Police Commissioners v. Maher, 171 Conn. 613, 621, 370 A.2d 1076 (1976); and that ordinarily the memorandum of the arbitrator is irrelevant; Waterbury Construction Co. v. Board of Education, 189 Conn. 560, 563, 457 A.2d 310 (1983); In re Curtis-Castle Arbitration, 64 Conn. 501, 513, 30 A. 769 (1894); but that it may be examined to determine if the arbitrator has exceeded his authority. Waterbury Construction Co. v. Board of Education, supra. I part company with the majority when these principles are applied to the facts of this case.

*275Article 11 of the agreement covers disciplinary actions. Section 2 provides: “All disciplinary actions shall be applied in a fair manner and shall be consistent with nature of the infraction for which the disciplinary action is being applied.” Section 3 lists a number of disciplinary actions ranging from a verbal warning to discharge and provides that any disciplinary action shall be consistent with section 2. These sections deal with the “what” and the “how” of disciplinary actions. Under these sections, not only must the penalty fit the nature of the infraction, but it must also be put into effect in a fair manner. The question before the arbitrators was not only whether the specific penalty, namely, discharge, was appropriate, but also whether notifying the grievant of his discharge in person at his home violated section 2. By their award the arbitrators found that, even if discharge of the grievant employee was justified, the manner in which he was notified was unfair and therefore such action violated the agreement.

The fact that a particular penalty is justified does not mean that the employer is free to impose the penalty in any way that it chooses. The purpose of provisions such as section 2 is to permit an employee to retain his self-esteem by protecting him from vexation and embarrassment other than what is implicit in the penalty itself. For example, the fact that an employee may justifiably be discharged does not mean that the employer may elect to “drum him out of the corps” at a public assembly. At the very least, if such action were taken, an arbitrator could find that it violated section 2. Similarly, in this case, the parties by their earlier stipulated award acknowledged that notification of disciplinary action in person at an employee’s home was inappropriate. Even though the award related to another case, the significance of the action is that it amounted to a recognition by the parties that notifica*276tion in person at an employee’s home constituted an unfair disciplinary practice. This inference is bolstered by the fact that, in this very case, the board acknowledged that it engaged in this practice and apologized to the grievant employee for having done so.

The fact that the arbitrators viewed the stipulated award as an amendment to the collective bargaining agreement in no way affects the result. We have upheld judgments of the trial court that have arrived at the right result for the wrong reasons. Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978). We should do no less with respect to the award of an arbitrator. I would affirm.