Town of S. Windsor v. S. Windsor Pol. U., No. Cv-94-705142 S (Dec. 19, 1994)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO INTERVENE In this action sounding in unlawful termination of employment, defendant, Friendly Ice Cream Corporation moved on July 25, 1994 to intervene as a co-plaintiff under General Statutes § 31-293 for reimbursement of any sums it might pay to the plaintiff pursuant to the Workmen's Compensation Act.

General Statutes § 31-293, entitled "Liability of third persons to employer and employee," in part (a) provides that:

[w]hen any injury for which compensating is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury . . . any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against the third person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. (Emphasis added.)

The defendant argues that the statute allows for intervention as a matter of right, and further that under the "dual capacity" doctrine it may intervene as a co-plaintiff despite being the sole defendant in the action since it "can be reasonable characterized as a `third party' whose interests are distinguishable from those of the intervening co-plaintiff despite the fact that they are, nominally, the same." Additionally, the defendant argues that it may intervene pursuant to § 31-293 since the payment it made to the plaintiff pursuant to their stipulation agreement was `compensation' within the meaning of the statute. This statute provides an employer with a "right to intervene in a case in which the employer would not usually be a necessary party . . . [and] the employer's only interest in the litigation is a statutory right to reimbursement of money paid to an employee, should the employee prevail in an action against a third partytortfeasor." (Emphasis added.) Hallenbeck v. St. Mark theEvangelist Corp. , 29 Conn. App. 618, 623-24 (1992). "General Statutes § 31-293 specifically grants an employer who has paid workers' compensation benefits to an employee the right to CT Page 12818 join as a party plaintiff in the employee's action against athird party tortfeasor." (Emphasis supplied) Packtor v.Seppala AHO Construction Co., 33 Conn. App. 422, 430 (1994).

Statutes are to be applied as their words direct. RiverDock Pile, Inc. v. O G Industries, Inc., 219 Conn. 787,805 (1991). When language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction. The words of a statute are to be given their commonly approved meaning, unless a contrary intent is clearly expressed. State v. Kish, 186 Conn. 757, 764 (1982).

No Connecticut case law has been called to our attention which has embraced the "dual capacity" doctrine, i.e., allowing an employer to be the defendant and co-plaintiff in the same case. In Bouley v. City of Norwich, 222 Conn. 744 (1992), the Supreme Court, when given the opportunity to consider the "dual capacity" doctrine as it relates to an employer under the Workers' Compensation Act, stated that "[w]e have previously considered and expressly rejected the dual capacity doctrine . . . [and] . . . [i]n doing so, we recognized that the weight of authority in nearly all jurisdictions had rejected similar dual capacity arguments."Id., 762, citing Panaro v. Electrolux Corp. , 208 Conn. 589,545 A.2d 1086 (1988). Since the language of General Statutes § 31-293(a) is clear and unambiguous regarding an employer's intervention in an action as against a third party, the defendant may not intervene as a co-plaintiff under § 31-292(2) where the same defendant is the sole defendant in the action. We are unable to accept the alternative arguments raised by the defendant in its motion to intervene.

Defendant's motion to intervene as a co-plaintiff is denied.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION Plaintiff applies to vacate and defendant to confirm an arbitration award.

FACTS CT Page 12812

The grievance, which was the subject of arbitration hearings before the State of Connecticut Board of Mediation and Arbitration ("Board"), was filed by the defendant on behalf of Patrolman Michael Guglietta (Grievant) regarding his termination of employment with the South Windsor Police Department.

The Collective Bargaining Agreement ("Agreement") between the parties provides for a "Grievance Procedure", which is found in Article XVI. Section 16.5 sets out the steps of the procedure. There are four (4) steps to the procedure, with the fourth giving the defendant the right to submit grievances to the Board. The procedure found in the Agreement was negotiated by the parties. The result is that it was agreed to submit disputes addressed in the Agreement to the Board.

A grievance was filed December 1990 with the Board. After many delays, on September 12, 1991 the parties presented their respective positions and a hearing before the Board began.

The parties appeared at the September 12, 1991 hearing and the Town proposed the issue to be, "Did the Town of South Windsor violate Article 16 of 1988-1992 Collective Bargaining Agreement when it discharged Michael Guglietta on or about December 15, 1990?" The Union proposed, "Was the grievant, Michael Guglietta, discharged for just cause? If not, what should the remedy be?" The Arbitration panel decided to accept the proposed issues as exhibits, and review the proposals during deliberations, and frame the issue after their review. Neither party objected to that proposed procedure.

Hearings on the matter concluded on September 15, 1992.

Final briefs were received on January 28, 1993.

The panel framed the issue as, "Was the grievant terminated by the Town for just cause in accordance with the relevant provisions of the Collective Bargaining Agreement and any Departmental Rules and Regulations and Policies? If not, what shall the remedy be?" CT Page 12813

The full panel did not agree as to the award itself but was unanimous in the following findings:

July 28, 1990 — Grievant violated 2.3.36 of the Duty Manual by divulging information regarding "R.J." for the purpose of "burning" him. This violation occurred because the Grievant acknowledged himself to be a police officer and that position asserted the truth of the information and divulged "R.J."'s identity, without Departmental approval. Section 2.2 outlines conflicts of interest "in fact or in appearance". — Grievant did not violate 2.3.8 of the Duty Manual — use of intoxicants. Prohibition is not an absolute one as it reads ". . . or drinking it so as to render himself unfit to report for scheduled duty".

July 30, 1990 — Grievant violated 2.3.36 and 2.2.7 of the Duty Manual by again divulging and disseminating information concerning "R.J." He did not intentionally interfere in an ongoing police investigation because he did not know about Operation Trifecta.

August 2, 1990 — Grievant's potential violations attributed to this date not substantiated.

August 10, 1990 — Grievant violated Duty Manual 2.3.36 and 2.2.7. See above explanation.

October 10, 1990 — Grievant did not violate Duty Manual 2.2.6 — use of official position. — Grievant violated Duty Manual 2.3.10 since visit not performed in discharge of official duty. The evidence did not provide a clear picture of what occurred. The Town's witness changed his testimony and he had worked as a police officer in Stafford Springs with CT Page 12814 Officer Thompson. The Grievant's explanation of the reason for his visit was not entirely credible. Fred Lee, at this point, was under arrest for drugs.

Operations Directive D-1-e and D-1-i — Not substantiated. The Grievant's actions toward this end were acknowledged by the testimony concerning his efforts to have "R.J." arrested. Although the Town claims that he did not follow through the chain of command in some of his various efforts, the evidence is clear that the determination of the appropriate chain of command was frustrated due to the multi-Town collaboration effort of Operation Trifecta which operated under a separate set of rules and policies.

Duty Manual 2.3.2 — Conduct Unbecoming an Officer — admitted by Grievant concerning his frequenting Town bars, etc.

Duty Manual 2.3.3 — Neglect of Duty — not substantiated.

On April 20, 1994 the majority of the panel issued the following Award:

The grievance is upheld in part and denied in part.

The Town shall reinstate the Grievant without prejudice or loss of seniority and he shall be made whole for any loss of wages less the 150 days of suspension without pay imposed herein. See DISCUSSION AND ANALYSIS, regarding reduction of wages, etc., from backpay.

THE CONNECTICUT STATE BOARD OF MEDIATION AND ARBITRATION

BY:

___________________________ Susan E. Halperin CT Page 12815 Attorney-at-Law Panel Chair Public Member

___________________________ (DISSENTING) Harold LeMay (Regarding Management Member payment of any backpay)

___________________________ Michael Vernoval, Sr. Labor Member

I Public Policy

The panel found that grievant did not know that "R.J." was an informant.

The panel did find that the grievant's "actions seemed to violate the Dissemination and Divulging sections of the duty manual."

Our C.G.S. §§ 54-142a et seq., and §§ 54-142g et seq. establish a strong public policy against the disclosure of both conviction and non-conviction information held by municipal police departments. That policy is explicit, well-defined, dominant and found by reference to laws, not "general considerations", Watertown Police Union Local 541v. Watertown, 210 Conn. 333, 339-340.

II Exoneration

In Article XVII 21 § 17.3 the Agreement permits reinstatement if the employee "is subsequently exonerated". Grievant was never exonerated according to the panel's findings. As a result the Agreement does not allow "that he be made whole."

III Framing of Submission

Although the panel used the peculiar method of framing the submission after hearing the matter this was the procedure the parties agreed to before the hearing began. CT Page 12816

IV Lawful Employee Organization

Plaintiff alleges that defendant is not an employee organization under C.G.S. § 7-407(b). The plaintiff has not sustained its burden of proof in regard to that allegation.

V Timeliness of Award

Plaintiff claims that the award was not rendered "within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the . . . arbitrators . . . for the receipt of the material as is required by C.G.S. § 52-416(a)."

The defendant cites AFSCME v. New Britain, 206 Conn. 465 as to a plaintiff's waiver of this provision. First, it would appear that that arbitration dealt with C.G.S. § 31-98 whereas ours dealt with § 52-408 et seq. In addition, in that case the court found an oral extension of the time limit for rendering the award. id. 347. There is no such extension in the instant case. There was no waiver.

The award was not rendered within the time permitted by C.G.S. § 52-416(a) and therefore "shall have no legal effect."

The award was not rendered within a reasonable time.

VI Ability to Comply

The court makes no finding as to what if any effect the certification program set out in C.G.S. §§ 7-294a and7-294d would have on the award if it were to be confirmed[.]

The application to vacate is granted.

The application to confirm is denied.

N. O'Neill, J. CT Page 12817