Union Wins ‘Public Policy’ Challenge To Arbitrator’s Opinion

Most states, and the United States Supreme Court, have found a narrow “public policy” exception to the general rule that arbitrators’ opinions are final and binding. The usual rubric is that for the exception to apply, there must be an “explicit, well defined and dominant public policy” violated by the arbitrator’s decision.

Usually, the “public policy” exception is the province of employers seeking to overturn arbitration awards. Because of the narrowness of the “public policy” exception, most of those challenges fail. That is why it was unusual to see a recent decision from the Connecticut Supreme Court involving not only a union’s “public policy” challenge to an arbitration award, but a successful challenge.

The case involved Eunice Smith, a corrections officer for the State of Connecticut. On January 17, 2003, as the result of a police investigation into a complaint that Smith had threatened to shoot a coworker for refusing to answer questions about a union-related posting, Smith was arrested and charged with making threats, breach of the peace and inciting injury to a person. On January 19, 2003, the police conducted a search of Smith’s residence in order to confiscate a weapon registered to her. Due to the officers’ discovery of a partially-smoked marijuana cigarette and a pill bottle under Smith’s bed, Smith was charged with possession of marijuana and drug paraphernalia.

On May 19, 2003, Smith told the captain conducting the employer’s internal investigation that she had accepted what Connecticut calls “accelerated rehabilitation” (or diversion) for the criminal charges against her. When the Department found that Smith had been arrested and charged with threatening, inciting injury to persons, breach of the peace and possession of marijuana and drug paraphernalia, it terminated her. Smith’s labor organization challenged the termination in arbitration.

An arbitrator upheld Smith’s termination. The Arbitrator’s opinion contained the following passage: “Although Smith claims that she accepted accelerated rehabilitation on the advice of her attorney, the fact that she asked the Court for and was granted accelerated rehabilitation indicates that she accepted responsibility for the charges and assumes culpability. I find that fact to be substantial evidence of her violations before this arbitration.”

The Supreme Court began its assessment of the Union’s challenge to the Arbitrator’s opinion by reviewing the Connecticut statutes dealing with accelerated rehabilitation. The Court found that “at first blush, it is readily apparent that adjudication of guilt or innocence is deferred upon a defendant’s admission into the accelerated rehabilitation program. An accelerated rehabilitation applicant is never: Confronted directly by the trial court with the evidence that the state claims to have against her; canvassed or questioned about what rights are being forfeited; asked to accept any responsibility for the alleged offense; or advised that an inference of guilt or acceptance of accelerated rehabilitation will disadvantage her in any way other than the express conditions imposed pursuant to the law. Upon successful completion of the program, the charges are dismissed and all records of the charges are erased. Indeed, the effect of accelerated rehabilitation is to delay, and possibly to end, criminal prosecution.”

The Court found:“The present case is not about the defendant’s rules and regulations that are meant to promote public safety or whether the Arbitrator properly could base an award on clear violations of those rules. Clearly, she could. Rather, it is about the Arbitrator’s reliance on Smith’s admission into the accelerated rehabilitation program, which the Arbitrator found was ‘substantial evidence’ of her misconduct. The Legislature has provided that the acceptance of accelerated rehabilitation does not furnish any inference of guilt or acceptance of responsibility, and, thus, there is no need to identify the various settings in which this impermissible inference conceivably could, but properly may not, be drawn.

“It is clear from her decision that, although the Arbitrator noted that Smith had been terminated for her alleged behavior as it related to both her employee conduct and for alleged off-duty criminal charges, the question before the Arbitrator was not whether Smith had been fired for alleged misconduct, but rather whether those allegations were true. When deciding that issue, it is clear that the Arbitrator relied exclusively on Smith’s acceptance of accelerated rehabilitation. It is clear to this Court that the Arbitrator, unable to credit the defendant’s evidence in support of its claims that Smith had engaged in the alleged misconduct and uncertain about what actually had transpired, relied on Smith’s accelerated rehabilitation application as the dispositive factor in her decision. When, as here, the Arbitrator has violated public policy in making the determination upon which the award is based, we will not afford our usual deferential standard of review to the remainder of the award in order to uphold the award.”

AFSCME, Council 4, Local 1565 v. Department of Correction, 298 Conn. 824 (2010).

This article appears in the January 2011 issue