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TOWN OF STRATFORD v. INTERNATIONAL

FEDERATION OF PROFESSIONAL AND

TECHNICAL ENGINEERS,

LOCAL 134 ET AL.

(AC 35904)

Beach, Sheldon and Schaller, Js.

Argued September 19, 2014—officially released February 3, 2015

(Appeal from Superior Court, judicial district of

Fairfield, Tyma, J.)

Michael S. Casey, with whom, on the brief, was

Christopher J. Smedick, for the appellant (plaintiff).

William S. Palmieri, for the appellee (defendant

John J. Jasinski).
Opinion

SCHALLER, J. The plaintiff, the town of Stratford,

appeals from the judgment of the trial court denying

its application to vacate an arbitration award and granting the application to confirm the arbitration award

filed by the defendant John Jasinski.1 On appeal, the

plaintiff claims that(1)the court improperly determined

that the arbitration award was not in violation of applicable public policy,2

(2) the court improperly determined that the arbitration panel did not exhibit evident

partiality toward the defendant, and (3) the plaintiff

was denied a ‘‘full and fair hearing’’ pursuant to General

Statutes § 52-418 (a) (3). We affirm the judgment of the

trial court.

The following facts and procedural history are relevant to this appeal. Donna Best, the emergency medical

services administrator for the plaintiff, received an

anonymous letter regarding an incident involving the

defendant. Best gave the letter to the plaintiff’s director

of human resources, Ronald Ing, who began to investigate the defendant. The anonymous letter called attention to an incident that took place on April 26, 2010,

when the defendant, a paramedic, and Jennifer Simmons, a volunteer emergency medical technician, while

working forthe plaintiff,responded to a call to transport

a patient to the hospital. While en route to the hospital

following the patient pick up, and with the patient still

in the back of the ambulance, the defendant returned

to the plaintiff’s emergency services headquarters at

900 Longbrook Avenue in Stratford to drop Simmons

off. In the purported language of the profession, the

defendant returned to headquarters to perform a ‘‘crew

swap.’’ The anonymous letter alleged that the defendant

performed the crew swap so that Simmons would not

be late for her regular paid job. The defendant claimed

that he performed the crew swap to put an end to the

verbally aggressive behavior Simmons was directing

toward the patient.3

As a result of this investigation, Ing, on behalf of the

plaintiff, terminated the defendant’s employment by a

letter dated August 2, 2010. The letter stated the following reasons, the defendant: did not take the patient

directly to the hospital and instead elected to do a crew

swap with the patient in the ambulance, failed to report

the unprofessional behavior of Simmons, and failed to

verify and correct the emergency medical services form

documenting the call to show the occurrence of the

crew swap. On behalf of the defendant, the union filed

a timely grievance, claiming that the plaintiff had violated the collective bargaining agreement between the

parties by terminating the defendant without just cause.

The union sought arbitration under the collective bargaining agreement.

On April 5, 2012, and May 4, 2012, an arbitration panel
conducted a hearing to resolve two questions: ‘‘Was

[the defendant] terminated for just and sufficient cause

in accordance with [the collective bargaining

agreement]? If not, what shall the remedy be?’’ On July

19, 2012, the arbitrators issued a unanimous decision

in favor of the defendant.

The arbitrators found that the investigation was not

conducted fairly and objectively, because Best, who

had previously accused the defendant of misconduct,

resulting in his dismissal,4 was ‘‘intimate[ly] involved’’

in this investigation. The arbitration panel also found

that the plaintiff ‘‘mischaracterized’’ and ‘‘overinflated’’

the incident in order ‘‘to justify discharging’’ the defendant. The panel noted that the plaintiff actually encouraged crew swaps during nonemergency calls to avoid

overtime. In sum, the panel found that the defendant

had not been terminated for good and sufficient cause

in accordance with the collective bargaining agreement

and ordered that he be reinstated.

The plaintiff filed an application to vacate the arbitration award and the defendant filed an application to

confirm the arbitration award. The plaintiff argued that

the award should be vacated because: (1) it violated

public policy and was contrary to public safety and

state regulations; (2) the arbitrators exhibited evident

partiality, and (3) it was not afforded a ‘‘full and fair

hearing.’’ In its July 9, 2013 decision, the court denied

the plaintiff’s application to vacate and granted the

defendant’s application to confirm the award. The court

found that this state has a clear, well-defined and dominant public policy of protecting patients from ‘‘ ‘detrimental acts’ ’’ by emergency medical personnel, and

that there is a resulting expectation that such personnel

will provide reasonable care and treatment to patients.

The court determined, specifically, that the claim that

the award violated public policy was colorable and merited de novo review.

Upon review of the claim on its merits, the court

concluded that the award in favor of the defendant did

not violate public policy and that there was no evidence

that the crew swap adversely impacted the patient’s

health or safety. The court also found that the award

did not run contrary to public policy by undermining

the plaintiff’s ability to manage and discipline its

employees. The court took note of the investigatory

participation of Best, who the court noted had an

adverse history with the defendant.5 Additionally, in

response to the plaintiff’s arguments regarding the partiality of the arbitration panel6 and the lack of a ‘‘full

and fair’’ hearing as grounds for vacating the award,7the

court found that the plaintiff failed to meet its burden.

On appeal, the plaintiff asserts the same three

grounds to support its claim that the court should have

vacated the arbitration award and asks that we remand

the case for further hearings. We affirm the decision
of the court.

Prior to review of the plaintiff’s claims, we set forth

the standard for appellate review. Our analysis is guided

by the well established principles of law governing consensual arbitration. ‘‘Arbitration is a creature of contract and the parties themselves, by the terms of their

submission, define the powers of the arbitrators. . . .

The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express

language restricting the breadth of issues, reserving

explicit rights, or conditioning the award on court

review. In the absence of any such qualifications, an

agreement is unrestricted.’’ (Citation omitted; internal

quotation marks omitted.) Industrial Risk Insurers v.

Hartford Steam Boiler Inspection & Ins. Co., 258 Conn.

101, 109, 779 A.2d 737 (2001).

Arbitration is favored when settling private disputes

and, as such, judicial review of arbitration awards is

conducted in a manner ‘‘designed to minimize interference with an efficient and economical system of alternative dispute resolution.’’ (Internal quotation marks

omitted.) Saturn Construction Co. v. Premier Roofing

Co., 238 Conn. 293, 304, 680 A.2d 1274 (1996). Two types

of evidentiary submissions are allowed in arbitration

proceedings, restricted and unrestricted, which function to limit the undertaking of the arbitration panel.

Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80,

881 A.2d 139 (2005). The scope of the submission is

negotiated by the contracting parties prior to a dispute.

Under an unrestricted submission, the arbitrators’ decision is considered final and binding. Id. In this situation,

courts will not review the evidence considered by the

arbitrators nor will they review the award for errors of

law or fact. Id. ‘‘The resulting award can be reviewed,

however, to determine if the award conforms to the

submission.’’ (Internal quotation marks omitted.)

Industrial Risk Insurers v. Hartford Steam Boiler

Inspection & Ins. Co., supra, 258 Conn. 110. ‘‘[A] limited

scope of judicial review is warranted given the fact that

the parties voluntarily bargained for the decision of the

arbitrator and, as such, the parties are presumed to

have assumed the risks of and waived objections to

that decision. . . . It is clear that a party cannot object

to an award which accomplishes precisely what the

arbitrators were authorized to do merely because that

party dislikes the results.’’ (Internal quotation marks

omitted.) Id.

The purpose of a determination as to whether an

arbitration submission was unrestricted or restricted is

not to determine what the arbitrators were obligated

to do, but, rather, to determine the scope of judicial

review of what they have done. ‘‘Put another way, the

submission tells the arbitrators what they are obligated

to decide. The determination by a court of whether the

submission was restricted or unrestricted tells the court
what its scope of review is regarding the arbitrators’

decision.’’ (Internal quotation marks omitted.) Id.

Furthermore, ‘‘[w]here 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 that . . . the interpretation of

the agreement by the arbitrators was erroneous.’’(Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 80. Section 52-418 (a)

provides in relevant part the following grounds upon

which to vacate an award issued based on an

unrestricted arbitration submission: ‘‘(1) If the award

has been procured by corruption,fraud or undue means;

(2) if there has been evident partiality or corruption on

the part of any arbitrator; (3) if the arbitrators have

been guilty of misconduct in refusing to postpone the

hearing upon sufficient cause shown or in refusing to

hear evidence pertinent and material to the controversy

or of any other action by which the rights of any party

have been prejudiced; or (4) 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.’’ ‘‘In [the] construction

of § 52-418 (a)(4), [our Supreme Court has], as a general

matter, looked to a comparison of the award with the

submission to determine whether the arbitrators have

exceeded their powers . . . . [It has] also recognized,

however, that . . . [a]n award that manifests an egregious or patently irrational application of the law is an

award that should be set aside pursuant to § 52-418 (a)

(4) because the arbitrator has exceeded [his] powers

or so imperfectly executed them that a mutual, final

and definite award upon the subject matter submitted

was not made.’’ (Internal quotation marks omitted.)

Harty v. Cantor Fitzgerald & Co., supra, 81.

The court determined in the present action that there

was an agreement to a consensual and unrestricted

submission in the collective bargaining agreement. In

its appeal, the plaintiff asserts three grounds for vacating the arbitration award: (1) the award violated public

policy; (2) the panel was not impartial toward the plaintiff in violation of § 52-418 (a) (2); and (3) the plaintiff

was denied a ‘‘full and fair hearing’’ pursuant to § 52-

418 (a) (3). We are not persuaded.

I

The plaintiff claims that the award violates the welldefined public policy of this state, prohibiting paramedics from acting in a manner contrary to the welfare of

their patients. Specifically, the plaintiff argues that the

crew swap violated § 19a-179-9 (f) of the Regulations

of Connecticut State Agencies, which provides: ‘‘No

person engaged in the provision of emergency medical

services shall commit an act which is detrimental to

the safety, health, or welfare of a patient or the general

public.’’ The plaintiff also argues that the award violates
public policy because it interferes with the management

rights of the plaintiff by limiting its contractual and

legal right to manage its employees.

‘‘Ordinarily, where there is a consensual, unrestricted

submission to arbitration, the only question is whether

the award conforms to the submission. . . . One

exception to that rule, however, is where the award

violates clear public policy. . . . Where a party challenges an award on the ground that it violates public

policy, de novo review is in order if the challenge has

a legitimate, colorable basis. . . . That de novo review

is limited, however, to the two critical questions: (1)

whether there is an explicit, well-defined and dominant

public policy and (2) whether the award violates that

policy. . . . It does not extend to the facts found by

the arbitrator.’’ (Citations omitted; footnote omitted.)

Burr Road Operating Co. II, LLC v. New England

Health Care Employees Union, District 1199, 142

Conn. App. 213, 223–24, 70 A.3d 42, cert. granted, 309

Conn. 909, 68 A.3d 662 (2013). We note that this exception applies only when the award is clearly illegal or

clearly violates a strong public policy. Garrity v.

McCaskey, 223 Conn. 1, 7, 612 A.2d 742 (1992).

We agree with the trial court that Connecticut has a

clear, well-defined and dominant public policy of protecting patients from detrimental acts by emergency

medical services personnel. See Regs. Conn. State Agencies § 19a-179-9 (f). Emergency personnel are to provide

reasonable care and treatment to the patients whom

they oversee. See id.; see also General Statutes § 20-

206nn (5) (paramedic subject to discipline for negligent

conduct). Although we determine that the underlying

claim made by the plaintiff is colorable, we conclude

that the award in the present action does not violate

public policy.

On the basis of the facts presented to the arbitration

panel, there was no evidence that the defendant’s crew

swap constituted a detrimental act, or that it put the

patient in harm’s way. Instead, it was reported that the

patient went to the hospital because of a request by

her family, and that the family also requested that the

patient be transported to a hospital further away, based

on a preference for its care. Moreover, counsel for the

plaintiff conceded during argument before this court

that the crew swap took no more than four minutes to

complete. The arbitrators also credited the evidence

that the plaintiff allowed this type of crew swaps:

‘‘[C]rew swaps are performed routinely when the

patient, as in this case, is stable. The [plaintiff] also

encourages crew swaps during nonemergency calls to

avoid overtime.’’ Because the conduct of the defendant

did not constitute a detrimental act, we agree with the

court that the award does not violate public policy.

With regard to the plaintiff’s second public policy

claim, that the award limits its legal right to manage
contractual and disciplinary actions with regard to its

employees, we conclude that this claim has no merit.

The plaintiff’s argument suggests that, by commenting

on its investigatory practices, specifically, the involvement of Best, the panel nullified the plaintiff’s management rights over the investigation of the grievance. We

are not persuaded. The arbitrators merely appear to

have commented on the inclusion of certain actors

within the investigation, who conceivably assisted in

the analysis and findings in this case. We also reject

this argument.

II

The plaintiff next claims that, pursuant to § 52-418

(a) (2), the award should be vacated because there

was evident partiality on the part of the arbitrators.

Specifically, the plaintiff claims that the panel made

arbitrary findings based on evidence that was not contained in the record, which it claims establishes the

panel’s evident partiality and bias against it. The plaintiff points to the arbitration panel’s discussion of the

bias of Best and argues that there was no evidence

that her participation showed any pretextual bias. The

plaintiff further argues that there was no evidence to

support the finding that the plaintiff dismissed Simmons, the volunteer who accompanied the defendant,

to bolster the case against the defendant, or that any

other issues were raised as a pretext in order to support

the plaintiff’s dismissal.

A party seeking to vacate an arbitration award on the

ground of evident partiality has the burden of producing

sufficient evidence in support of the claim. ‘‘An allegation that an arbitrator was biased, if supported by sufficient evidence, may warrant the vacation of the

arbitration award. . . . The burden of proving bias or

evident partiality pursuant to § 52-418 (a) (2) rests on

the party making such a claim, and requires more than

a showing of an appearance of bias. . . . In construing

§ 52-418 (a) (2), [our Supreme Court] concluded that

evident partiality will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration. To put it in the

vernacular, evident partiality exists where it reasonably

looks as though a given arbitrator would tend to favor

one of the parties.’’ (Internal quotation marks omitted.)

Alexson v. Foss, 276 Conn. 599, 617, 887 A.2d 872 (2006).

The trial court noted that, ‘‘[the plaintiff’s] claims of

the arbitrators’ alleged improper construction of the

facts relating to the crew swap or characterizations of

the evidence, without more, does not constitute sufficient evidence of evident partiality by the arbitrators.’’

We agree. The plaintiff’s argument that certain factual

findings made by the arbitration panel were biased lacks

support. For example, the arbitration panel’s decision

stated: ‘‘We note that there was no evidence to show

that . . . Best holds a bias against the [defendant] but
we do note that the union made many assertions of her

bias. While we did not perceive bias on the part of . . .

Best, we do note that the whole investigation seems

improper because of her involvement from the beginning until the [defendant’s] termination.’’ Despite the

plaintiff’s arguments to the contrary, we read the arbitration panel’s decision to say that it did not perceive

bias on the part of Best or receive evidence thereof,

but it did take issue with her participation due to the

adverse history between her and the defendant. In this

case, the arbitration panel was authorized to make such

a finding, as it pertained to whether the defendant was

terminated for just and sufficient cause. See Bic Pen

Corp. v. Local No. 134, 183 Conn. 579, 583–84, 440 A.2d

774 (1981) (‘‘[t]he submission constitutes the character

of the entire arbitration proceedings and defines and

limits the issues to be decided’’). The facts presented

by the plaintiff did not make it reasonably look as

though any of the arbitrators would tend to favor the

defendant or disfavor the plaintiff in this case, as

required to establish evident partiality.

III

Finally, the plaintiff claims that, pursuant to § 52-

418 (a) (3),8

the award should be vacated because the

arbitration panel failed to provide a ‘‘full and fair hearing.’’ Specifically, the plaintiff argues that the panel

refused to consider evidence relating to past disciplinary actions against the defendant. We disagree.

Under the facts presented by the plaintiff, this claim

does not provide an adequate basis to vacate the arbitrators’ decision. ‘‘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 that the construction placed

upon the facts or the interpretation of the agreement

by the arbitrators was erroneous. Courts will notreview

the evidence nor, where the submission is unrestricted,

will they review the arbitrators’ decision of the legal

questions involved.’’ (Internal quotation marks omitted.) Bic Pen Corp. v. Local No. 134, supra, 183

Conn. 584.

We are unpersuaded by the plaintiff’s argument that

the preclusion of certain evidence before the arbitration

panel renders the award unfair. The plaintiff failed to

demonstrate that the arbitration panel engaged in misconduct. Based upon applicable Supreme Court precedent, we conclude that arbitrators are entrusted to act

upon their discretion in deciding whether to hear or,

conversely, not hear evidence. See Bridgeport v. Kasper

Group, Inc., 278 Conn. 466, 474, 899 A.2d 523 (2006)

(arbitrators afforded ‘‘substantial discretion’’ in

determining admissibility of evidence). As a result, the

court’s determination was proper.

The judgment is affirmed.
In this opinion the other judges concurred.

1

John Jasinski is a member of the International Federation of Professional

and Technical Engineers, Local 134, which represented his interests in the

underlying action. For clarity, we refer to Jasinski as the defendant and to

the named defendant as the union.

2 The plaintiff raises two public policy issues on appeal, which have been

organized as one issue for purposes of this decision.

3 The arbitration panel found in part: ‘‘We believe that the reason for the

crew swap was two-fold. The first was to drop off a volatile and angry

Simmons who had profaned the patient as reported by the [defendant], and

the second reason was to drop her off so she could go to work.’’

4 The union also sought arbitration in this previous matter which resulted

in a finding that the defendant was not terminated for good and sufficient

cause, and the panel ordered that he be reinstated.

5

‘‘The arbitrators considered the evidence and the memoranda submitted

by the parties in rendering their written decision. The strongly worded

decision makes clear that the arbitrators were troubled by Best’s involvement in the investigation, as shown by their collective comment that Ing

should have had some management person other than Best assist him. . . .

Based on Best’s involvement, the arbitrators concluded that the investigation

was not conducted fairly and objectively, and that [the plaintiff] mischaracterized and overinflated the incident to justify discharging [the defendant].’’

(Internal quotation marks omitted.)

6

‘‘[The plaintiff’s] claims of the arbitrator’s alleged improper construction

of the facts relating to the crew swap or characterizations of the evidence,

without more, does not constitute sufficient evidence of evident partiality

to justify vacation of the award. The assertions do not even give rise to the

appearance of partiality by the arbitrators. Therefore, [the plaintiff] has

failed to meet its burden to establish evident partiality.’’

7

‘‘[The plaintiff’s] claim of an unfair hearing due to the preclusion of

certain evidence, without more, is merely an expression of [the plaintiff’s]

disagreement and dissatisfaction with the award.’’

8 General Statutes § 52-418 (a) (3) provides in relevant part that an award

shall be vacated if the court finds that ‘‘the arbitrators have been guilty . . .

in refusing to hear evidence pertinent and material to the controversy . . . .’’