CT Supreme Court Interprets Labor Arbitration Award In Determining Whether Public Policy Violated

It’s getting tougher to represent employees in employment matters today. Last month, I spoke about two employer-friendly cases issued by the U. S. Supreme Court.

Now, in a case released August 6, 2013 by the Connecticut Supreme Court, labor arbitration awards will be factually scrutinized even closer to see if a public policy violation has occurred. State of Connecticut v. AFSCME, Council 4, Local 391, 2013 Conn. LEXUS 266. This represents a departure from legal practice of judicial deference to arbitral awards as the favored means of settling collective bargaining differences.

The issue decided by the Supreme Court was whether an arbitrator’s award violates public policy when an employer’s decision to dismiss an employee who has engaged in sexual harassment is reduced to a one year suspension without pay. The trial court and the Appellate Court had vacated the arbitration award on the basis that it violated the public policy against workplace sexual harassment.

In this case, a correctional officer was discharged from the Department of Corrections for allegedly engaging in an open pattern of sexual harassment of another employee. The Union grieved the termination and submitted it to arbitration before a third-party neutral.

The arbitrator reduced the termination to a one-year suspension without pay. It is interesting to note that the decision omits the reasons why the arbitrator ruled this way. For example, did the State fail to completely prove its case? Did long service and no prior discipline, factors which arbitrators routinely consider when deciding the penalty, factor against dismissal? No information here.

The Court, unsurprisingly, found a clear, well-defined and dominant policy against sexual harassment in this state based upon Conn. Stat. Sec. 46a-60(a)(8)(c) prohibiting sexual harassment at the workplace. The next step was the Court to see if the arbitrator’s award violated that public policy.

What disturbs me is the following statement from the Court: “….we must assume for purposes of our review that the arbitrator correctly determined that there was no just cause to terminate the grievant [corrections officer] under the terms of the collective bargaining agreement and that, instead, a one year suspension without pay was the appropriate sanction under the agreement.” (emphasis added). Ironically, the Court cited the U.S. Supreme Court case for the proposition that “an arbitrator is authorized to disagree with the sanction imposed for employee misconduct.” United Paperworkers International Union v. Misco, 484 U.S. 29, 41 (1987).

But the Connecticut Supreme Court then stated as follows: “Rather, the question that we must answer is whether, under the specific facts and circumstances of this case, a contract
provision requiring the reinstatement of the grievant violates a well-defined and dominant public policy. In other words, we must determine whether public policy required the grievant’s dismissal.”

Having negotiated and drafted collective bargaining agreements since 1980, I can state that no contract provision could survive or even be drafted that challenged a public policy on its face.

The Court then proceeded to what amounts to a second arbitration of the case by examining the facts concerning the specific allegations of the complainant and the conduct alleged. In other words, the Court substituted its judgment for the arbitrator and afforded the employer a second bite at the apple in complete reversal of the judicial policy of deference to arbitration. The Court then decided that “anything less than termination of the grievant for his knowing, egregious, incorrigible and disruptive misconduct in a prison setting would violate the public policy against sexual harassment in the workplace.”

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