Watertown Police Union Local 541 v. Town of Watertown

Arthur H. Healey, J.,

dissenting. I cannot agree with the majority, but would find error and remand this matter with direction to vacate the award of the Connecticut board of mediation and arbitration (board).1

Initially, I note that, despite the contentions of the town of Watertown (town), the reason for the board’s decision was: “The majority of the Panel finds that the *344reason for the discharge of the grievant, Michael Thompson was for his failure to obey the orders of his superior, Sergeant Sheehan.”2 The board’s finding of facts, by which we are bound, states that the grievant was given orders by his supervisor Sergeant James Sheehan not to make “any motor vehicle stops.” That finding also discloses that “[t]he reason for this order [of Sergeant Sheehan] was that the grievant at the time was involved in receiving training at the Police Academy and the Town did not want the grievant involved in court appearances which would keep him from receiving training at the Academy.”3

*345The majority states that: “Because Sergeant Sheehan’s order does not violate established public policy, we hold that the trial court did not err in refusing to vacate the board’s award.” I cannot agree with this holding that is, in my opinion, based upon several conclusory justifications. The first is that “Sheehan’s order did not prohibit Thompson from making arrests under it. Rather, [Sheehan’s] order was to make no ‘motor vehicle stops.’ ” (Emphasis in original.) Without making any substantive distinctions with any basis in the record, the majority hastens to say: “Implicit in that order is that Thompson was to make no routine or investigative stops for minor infractions of the state motor vehicle laws.” Apart from the fact that there is no basis in the record for this distinction, “no stops” reasonably means “no stops,” regardless of the nature of the law that may have been violated. There was, contrary to the assertions of the majority, nothing implicit in Sheehan’s order to Thompson “not to make any motor vehicle stops.” (Emphasis added.) The majority specifically states that, despite the unequivocal order of Thompson’s superior, “[ojrders, such as the one in the present case, do not hinder an officer in exercising his discretion to carry out his duty to protect the community to the extent that they clearly rise to the status of a violation of established public policy.” This is a troublesome and discomforting resolution of the plaintiff’s complaint of Thompson’s absolute discharge from police duties because he disobeyed his superior’s order not to make “any motor vehicle stops.” This order was given because the town, under the board’s finding, “did not want [Officer Thompson] involved in court appearances which would keep him from receiving training at the [Police] Academy.”

*346Although I disagree with the result reached by the majority, I agree with the majority that it has been our consistent policy to foster settling differences voluntarily by arbitration. Moreover, arbitration awards are generally upheld unless “an award clearly falls within the proscriptions of § 52-418 of the General Statutes.” Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985). While the general rule is that challenges to an arbitrator’s authority are limited to a comparison of the award to the submission, there exists an additional challenge under § 52-418 (a) (4), where the award rendered is alleged to be in contravention of public policy. New Haven v. AFSME, Council 15, Local 530, 208 Conn. 411, 416-17, 544 A.2d 186 (1988); Stratford v. Local 134, IFPTE, 201 Conn. 577, 590-91, 519 A.2d 1 (1986); International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145, 483 A.2d 626 (1984); Avco Corporation v. Preteska, 22 Conn. Sup. 475, 174 A.2d 684 (1961).4 That challenge allows an exception with respect to matters of public policy generally because arbitrators exceed their authority if their award orders a party to engage in conduct that is patently illegal or in clear violation of public policy. New Haven v. AFSCME, Council 15, Local 530, supra, 416. “In such a case, we are not concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award.” Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979). “Awards which con*347travene the public policy of a state exceed the powers of an arbitrator and are illegal and unenforceable.” Avco Corporation v. Preteska, supra, 480; see International Brotherhood of Police Officers v. Windsor, supra, 147; Black v. Cutter Laboratories, 43 Cal. 2d 788, 278 P.2d 905 (1955), cert. dismissed, 351 U.S. 292, 76 S. Ct. 824, 100 L. Ed. 1188 (1956). There is little question but that “public policy exceptions to arbitral authority should be narrowly construed . . . . ” New Haven v. AFSCME, Council 15, Local 530, supra, 417.

I recognize that each case, especially in this narrow public policy exception area, should be searchingly analyzed on its own facts. This becomes pointedly crucial where here there must be a resolution between two conflicting public policies. On the one hand, there is the public policy of fostering, by limited judicial intrusion, the voluntary system of dispute resolution through arbitration. See, e.g., Naugatuck v. AFSCME, 190 Conn. 323, 326, 460 A.2d 1285 (1983); Middletown v. Police Local, No. 1361, 187 Conn. 228, 230, 445 A.2d 322 (1982). On the other hand, there is the competing public policy that the police have the duty to obey and enforce the law to protect and preserve the public welfare. See, e.g., State v. Donovan, 132 N.J.L. 319, 321, 40 A.2d 546 (1945); State v. Stevens, 203 N.J. Super. 59, 495 A.2d 910 (1984).

It should be made clear that I understand that all too often police personnel and resources available to preserve life and property and to enforce the law as they have undertaken to do are hardly sufficient to perform this task as fully as they desire. The award in this case did not approve or disapprove the allocation of scarce police personnel but has to do solely with the discharge of the grievant Thompson. It should be made clear that it is one thing to order a policeman not to do something that it is his duty to do, but it is quite another matter, not only throughout the arbitration procedure but also *348thereafter, to invoke judicial approbation of the arbitration award to cashier him for doing what he was hired to do—enforce the law.

In its opinion, the majority extends legality to this award and finds no violation of public policy. With that I cannot agree. To say that all Thompson’s superior ordered was that he not make “routine or investigative” motor vehicle “stops” granitizes form over substance because, despite what the majority says, there is nothing “implicit” in Sheehan’s order that Thompson was to make “no routine or investigative stops for minor infractions of the state motor vehicle laws.” The board did not so find. Moreover, the board’s decision offers absolutely no distinction between different types of motor vehicle stops, a distinction which the majority makes in a conclusory fashion. Insofar as the town was concerned, the board decision does show that Sheehan’s order was given in order to prevent Thompson’s having to go to court. Any stop at all might have resulted in the necessity of Thompson’s appearing in court and, thus, there is no basis for the majority’s distinction among different types of stops.

It is for the legislature to determine public policy. See, e.g., International Business Machines Corporation v. Brown, 167 Conn. 123, 135, 355 A.2d 236 (1974); Consolidated Diesel Electrical Corporation v. Stamford, 156 Conn. 33, 39, 238 A.2d 410 (1968); Old Colony Gardens, Inc. v. Stamford, 147 Conn. 60, 64, 156 A.2d 515 (1959). The legislature spoke on this not only when they enacted statutes concerning arbitration but also in the many statutes on motor vehicle violations. Both classes of these statutes, i.e., arbitration and motor vehicle, are the public policy of this state. The arbitration statutes encourage the voluntary resolution of disputes. The motor vehicle statutes also state public policy because they endeavor to promote the safe and proper use of the highways throughout the state. A *349court should not lightly interfere with the award of an arbitration panel where there may be conflicts between the two public policies involved. It should, however, not be reluctant to do so where the award, as in this case, derogates the stronger policy of the two. Confirming this award, under the unique facts of this case, judicially affirms the discharge of a police officer for performing the duty that he was hired to do but which he was ordered not to do on the date involved. On this record, I firmly believe that to cashier Officer Thompson by affirming the arbitration award violates public policy and falls squarely within the narrow public policy exception of General Statutes § 52-418 (a) (4).

Therefore, I dissent.

The board denied Michael Thompson’s grievance by a vote of two to one with the labor member dissenting.

The failure to radio a “signal seventeen” to police headquarters, which the majority implies was also a reason for the board’s decision, is clearly not so; the opinion of the board demonstrates that this is not so. The opinion of the board is the following: “In regard to the problem at hand, the Panel finds that the termination of the grievant was proper. The Panel relies on Article VI, Section 8 of the Labor Contract between the parties which states that the Town may terminate a probationary employee at its sole discretion, for any reason whatsoever. This Panel ruled earlier that this matter was arbitrable and that the grievant was entitled to use the grievance procedures set forth in the contract. Although being able to use the grievance procedure, the grievant is not entitled to the protection of just cause as set forth in the grievance procedure. The contract itself must be read as a whole and the grievance procedure as set forth in the contract in relation to probationary officers must be amended and modified by Article VI, Section 8 of the contract. Based on this, the majority of the Panel finds that there was a reason for the grievant’s termination and that the Town did, under Article VI, Section 8 have the right in its sole discretion to terminate the grievant, as he was a probationary officer. The majority of the Panel finds that the reason for the discharge of the grievant, Michael Thompson was for his failure to obey the orders of his superior, Sergeant Sheehan.”

The board’s finding of facts in full were the following: “Michael Thompson the grievant in this matter was a probationary officer working for the Town of Watertown Police Department. On January 5,1985 the grievant was assigned to patrol with an Auxiliary Officer. The grievant was given orders by his supervisor Sergeant James Sheehan not to make any motor vehicle stops. The reason for this order was that the grievant at the time was involved in receiving training at the Police Academy and the Town did not want the grievant involved in court appearances which would keep him from receiving training at the Academy. The grievant did on January 5, 1985 make a motor vehicle stop and in addition failed to call in a signal seventeen which would indicate to the police department that he was stop*345ping a motor vehicle. The grievant was thereafter terminated by the Water-town Police Department under the provisions of Article VI, Section 8 of the Labor Conract between the parties.”

Federal and state courts have indicated that labor arbitrators’ awards that contravene public policy may be vacated. See, e.g., Local 453 v. Otis Elevator Co., 314 F.2d 25 (2d Cir.), cert. denied, 373 U.S. 949, 83 S. Ct. 1680, 10 L. Ed. 2d 705 (1963); International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145, 483 A.2d 626 (1984); Avco Corporation v. Preteska, 22 Conn. Sup. 475, 174 A.2d 684 (1961); Black v. Cutter Laboratories, 43 Cal. 2d 788, 278 P.2d 905 (1955), cert. dismissed, 351 U.S. 292, 76 S. Ct. 824, 100 L. Ed. 1188 (1956); Western Union Telegraph Co. v. American Communications Assn., 299 N.Y. 177, 86 N.E.2d 162 (1949).