city of hartford appeal-digiacomo

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DOCKET NO. CV : SUPERIOR COURT:

CITY OF HARTFORD : J.D. HARTFORDApplicant :

V. : AT HARTFORD:

HARTFORD FIREFIGHTERS UNION, : APRIL 21, 2011LOCAL 760, IAFF, AFL-CIO, CLC

Respondent

APPLICATION TO VACATE OR MODIFYARBITRATION AWARD

TO THE SUPERIOR COURT FOR THE JUDICIAL DISTRICT OFHARTFORD:

The applicant, City of Hartford, seeks an order pursuant to General StatutesSections 52-418, 52-419 and/or the common law vacating or modifying an arbitrationaward in Case No. 2010-A-0434 before the State of Connecticut, Board of Mediation andArbitration, Department of Labor involving the applicant City of Hartford andrespondent HARTFORD FIREFIGHTERS UNION, LOCAL 760, IAFF, AFL-CIO, CLCrendered March 22, 2011 and received at the Office of Corporation Counsel for the Cityof Hartford on March 29, 2011.

Applicant complains and prays as follows:

1. Applicant is a Connecticut municipality.


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2. Respondent is the collective bargaining representative for City of

Hartford employees for the purposes of collective bargaining under the Municipal

Employees Relations Act, General Statutes 7-467, et seq.

3. Applicant and Respondent are parties to a collective bargaining

agreement. (Arb. Rec. Exh. 2. attached hereto as Applicants Exh. A).

4. On or about November 10, 2009, Michael DiGiacomo, a Caucasian-

American, was informed by Assistant Chief Milner, an African American, of a

directive from then Fire Chief Charles Teale, an African-American, advising him to

remove his motor vehicle from the interior of the fire station at Engine Co. 9.

5. The directive followed a verbal complaint and subsequent filing of a Fire

Service report by Firefighter Kerry B. Foster, Sr., an African American who had

temporarily been assigned to Engine Co. 9 in the Southwest District of Hartford, a

predominately white and Hispanic District 1, that DiGiacomos motor vehicle

contained four of five bumper stickers that he considered racially offensive. (Fire

Service Report-Referenced in Joint Exhibit 5 of Arb. Rec. and attached hereto as

Applicants Ex. B).

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6. It was observed through testimony at the Second Step of the Grievance

process that DiGiacomo had just put the stickers on the motor vehicle within the three

months preceding Fosters complaint to Chief Teale. (See Second Step Grievance

Decision, Jt. Exh. 5 of Arb. Rec. and attached hereto as Applicants Ex. C). This

coincided with Fosters assignment to Engine Co. 9.

7. On November 12, 2009, HARTFORD FIREFIGHTERS UNION, LOCAL

760, IAFF, AFL-CIO, CLC filed a grievance alleging that the City violated the Entire

Collective Bargaining Agreement when DiGiacomo was told by the department that he

would no longer be allowed to park inside the firehouse and could possibly be denied

any parking on city property while at work, without just cause.

8. The grievance was not resolved through the contractual grievance

process and was claimed for arbitration to the State Board of Mediation and

Arbitration.

9. The Parties agreed to the following statement of the issue before the

State Board of Mediation and Arbitration:

1 See US Census Data, 2000, Census Tract 5047 and 5048.

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Did the City of Hartford violate the Collective Bargaining Agreementwith Local 760 when it denied Michael DiGiacomo the right to park hisvehicle inside the Engine Co. 9 station?

If so, what should the remedy be?

10. The State Board of Mediation and Arbitration conducted a hearing on

December 9, 2010 with the panel members consisting of arbitrators: Peter Blum,

Chairman, Michael C. Culhane, Management Member and John P. Colangelo, Labor

Member.

11. The following exhibits were put into evidence during the hearing:

Joint Exhibit 1 Issue Statement

Joint Exhibit 2 Collective Bargaining Agreement (Attached as

Applicants, Exh. A)

Joint Exhibit3 Fire Department Rules and Regulations (Attached

as Applicants, Exhibit D)

Joint Exhibit 4 Grievance Form (Attached as Applicants, Exhibit E)

Joint Exhibit 5 Second Step Decision (Attached as Applicants,

Exhibit C)

12. On January 7, 2011, both parties submitted briefs to the arbitration panel.

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13. On January 20, 2011, Respondent submitted a reply brief, at which time

the submission thereof closed the record in the arbitration proceeding.

14. On March 22, 2011, the State Board of Mediation and Arbitration issued

a written Award (the Award) finding that the City violated 3.4 2 of the Collective

Bargaining Agreement when it directed DiGiacomo to remove his motor vehicle from

inside the fire station at Engine Co. 9 and that DiGiacomo was free to park his vehicle

at Engine Co 9 with the five (5) bumper sticks or any other fire station at which he is

assigned to work. (A true and correct copy of the Award is attached hereto and

incorporated herein as Exhibit F).

15. The Award should be vacated for one or more of the following reasons:

a) The Award violates clear public policy and established law of theState of Connecticut, the policies of the City of Hartford and theHartford Fire Department Directives re: Anti-Discrimination in theWorkplace; and

2 3.4 of the Collective Bargaining Agreement is the Prior Benefits and Practices provision and states, Any jobbenefits or work practices existing prior to the date of the Agreement that were established in written documentsissued by duly authorized City agencies or officials and which are not specifically provided for or abridged in

this Agreement shall continue in effect. The City shall have the right to make reasonable changes in such jobbenefits or work practices provided that the City shall discuss any such changes with the Union before suchchanges are made, and the Union shall have access to the grievance procedure to determine whether suchchanges are reasonable as required herein.

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b) The arbitrators3

on the panel exceeded their powers and soimperfectly executed their powers that a mutual, final and definite awardupon the matter submitted was not made, in that, among other things, theAward was not issued in compliance with the General Statutes or theRegulations of Connecticut State Agencies.

c) The issuance of the award was untimely and in violation of Connecticut General Statute 52-416.

WHEREFORE , the Applicant prays:

1. That the Award be vacated;

2. That a de novo review be granted as to the public policy violation;

3. That in the alternative, the Award be modified to exclude the

portions thereof that violate public policy;

4. That in the alternative, the Award be modified to both exclude the

portions thereof that violate public policy, interfere with the

3 Not including the dissenting arbitrator, Michael C. Culhane, Management Member.

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Hartford Fire Departments discretion and public safety

obligations as to where and how to locate Fire trucks, equipment

and apparatus at each of its fire stations and where the Award

trumps the past practice of first come first serve as to available

parking inside.

5. That an order be issued directing the respondents to appear on a

day certain to show cause, if any there be, why this application

should not be granted;

6. Such other relief in law or equity as may appertain, includingattorney fees and cost.

CITY OF HARTFORD

BY_/s/ Catharine H. Freeman Catharine H. FreemanAssistant Corporation CounselIts Attorney550 Main StreetHartford, CT 06103Juris No. 26795Telephone (860) 757-9700Facsimile (860) 722-8114


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