AFSCME, Council 4, Local 1303–325 v. Town of Westbrook

• Decision Date: 20 August 2013
• Docket Number: No. 18969.,18969.
• Court: Connecticut Supreme Court
• Parties: AFSCME, COUNCIL 4, LOCAL 1303–325 v. TOWN OF WESTBROOK.

309 Conn. 767

75 A.3d 1

AFSCME, COUNCIL 4, LOCAL 1303–325

v.TOWN OF WESTBROOK.

No. 18969.

Supreme Court of Connecticut.

Argued Dec. 5, 2012.

Decided Aug. 20, 2013.

J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, West Hartford, for the appellant (plaintiff).

Gabriel J. Jiran, Hartford, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA and EVELEIGH, Js.

NORCOTT, J.

The determinative question in this appeal ¹ is whether the trial court properly limited the scope of its review when it denied an application, filed by the plaintiff, AFSCME, Council 4, Local 1303–325 (union), to vacate an arbitration award (award), which concluded that a grievance challenging the decision of the defendant, the town of Westbrook (town), not to reappoint its assessor, Ivan Kuvalanka, to a successive term of office was not arbitrable. Specifically, the union claims on appeal that the trial court improperly limited its scope of review and incorrectly concluded that the town's decision to terminate Kuvalanka's employment upon the expirationof his term of office was not governed by the terms of the applicable collective bargaining agreement (agreement). We disagree and conclude that the trial court properly limited the scope of its review when considering the union's application to vacate the award and properly determined that the union did not establish grounds to vacate the award. Accordingly, we affirm the judgment of the trial court.

The parties stipulated the following underlying facts. The town's Board of Selectmen (board) appointed Kuvalanka to the position of town assessor for an initial term beginning March 2, 2000, and ending July 1, 2000. The board voted to reappoint Kuvalanka to this position annually for the following eight fiscal years pursuant to § 17–1 of the Code of Ordinances of Westbrook (town ordinances),² the provision which governed the appointment of the town assessor. In June, 2008, however, the board unanimously voted not to reappoint Kuvalanka as assessor for the following fiscal year and, accordingly, terminated his employment with the town effective June 30, 2008.

During his employment, Kuvalanka was a member of the union, which had entered into the agreement with the town. This agreement remained in effect through June 30, 2009. Following the termination of his employment, Kuvalanka filed a timely grievance arguing that the town had violated article XVI of the agreement ³ by terminating his employment without just cause. Thereafter, the grievance was duly processed through the procedures set forth in the agreement. When those efforts failed to resolve the dispute, the parties submitted the following questions for arbitration: (1) “Is the grievance arbitrable?”; (2) “If so, did the [town] violate [a]rticle XVI of the ... agreement by choosing not to reappoint [Kuvalanka]?”; and (3) “If so, what shall the remedy be, consistent with the agreement?” The town challenged the arbitrability of the grievance during arbitration, arguing that the nonreappointment of an assessor upon the expiration of his term of office was not a discharge requiring just cause under the agreement.

The arbitrators considered the question of the arbitrability of the grievance before addressing the other two questions and, on September 17, 2009, based on the facts as stipulated by the parties solely for the purpose of determining that issue, the arbitrators determined that the grievance was not arbitrable. Specifically, the arbitrators concluded that the position of assessor was a political position for which, pursuant to General Statutes (Rev. to 2007) § 9–198,⁴ the town had the sole discretionto set the length of the term of office. The arbitrators noted that, under this authority, the town had established a one year term for the assessor position pursuant to § 17–1 of its ordinances. See footnote 2 of this opinion. Given that there was no evidence that Kuvalanka had a right to reappointment, the arbitrators concluded that the board's decision not to reappoint Kuvalanka upon the expiration of his term of office was not subject to review under the grievance and arbitrationprocedures of the agreement and, therefore, the grievance was not arbitrable. The arbitrators then issued an award in accordance with that finding.

Thereafter, the union filed an application in the trial court to vacate the award pursuant to General Statutes § 52–418.⁵ In its application, the union claimed that, because the arbitrators referenced § 17–1 of the town ordinances, rather than confining their review exclusively to the language of the agreement, when they decided the question of arbitrability, they: (1) exceeded their powers; (2) were guilty of misconduct; and (3) the award violated public policy. The trial court denied the union's application to vacate the award, concluding that, “[b]ased on the court's limited scope of review when a submission [to the arbitrators], as in this case, is unrestricted, [the union's] claims of errors of law are not reviewable, and, in any event, do not provide a basis for vacating the award.” This appeal followed.

On appeal, the union claims that the trial court improperly limited its review to determining solely whether the award conformed to the submission. Specifically, the union asserts that its claims before the trial court, namely, that the award was inherently inconsistent with the agreement, was rendered in excess of the arbitrators' authority and violated public policy, required the trial court to apply a less deferential standard than traditionally used to by courts to review questionsthat the parties have committed to arbitration for a final and binding decision. Furthermore, the union claims that, had the trial court applied a broader scope of review, it would have concluded that the provisions of the agreement—including the inclusion of the assessor position in the list of positions covered by the agreement, the just cause requirement for discharge and the grievance and arbitration procedures—control. Therefore, the union claims that the trial court improperly refused to vacate the award.

In response, the town claims that the trial court appropriately limited its review of the award because the parties gave the arbitrators the “broad authority” to decide the question of arbitrability in the first instance, and the award clearly reveals that the arbitrators decided only that question. Thus, the town argues that the union had the burden to establish, to the trial court, that the arbitrators issued an award that was contrary to or beyond the issue submitted, and that the union failed to meet that burden. Furthermore, the town argues that the union's claims regarding the reasons that the trial court should have applied a broader standard of review are merely disagreements with the arbitrators' analysis and are not appropriate grounds for vacating the award.

We conclude that the parties committed the question of arbitrability to the authority of the arbitrators for their full and final consideration and were, therefore, bound by the arbitrators' decision on that issue. Furthermore, we conclude that the union failed to establish grounds to apply a broader standard of review or to vacate the award. Accordingly, we conclude that the trial court appropriately limited its scope of review when considering the union's application to vacate the award and, because the award conformed to the submission, properly denied the union's application.

I

To begin our analysis, we note that the question of whether the trial court properly limited the scope of its review of the arbitrators' determination that the grievance was not arbitrable and, on that basis, denied the union's application to vacate the award, is a question of law that we review de novo. Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 707–708, 987 A.2d 348 (2010). Turning to the scope of review that the trial court should have applied when considering the union's application to vacate the award in the present case, we first acknowledge that “[i]t is well established that, absent the parties' contrary intent, it is the court that has the primary authority to determine whether a particular dispute is arbitrable, not the arbitrators.... Thus, courts generally review challenges to an arbitrator's determination of arbitrability de novo.” (Citation omitted; emphasis added.) New Britain v. AFSCME, Council 4, Local 1186, 304 Conn. 639, 647, 43 A.3d 143 (2012). “[A]rbitration is a creature of contract”; (internal quotation marks omitted) MBNA America Bank, N.A. v. Boata, 283 Conn. 381, 386, 926 A.2d 1035 (2007); however, and “[i]t is [similarly] well established ... that parties may agree to have questions concerning the arbitrability of their disputes decided by a[n] ... arbitrator.” (Internal quotation marks omitted.) New Britain v. AFSCME, Council 4, Local 1186, supra, at 648, 43 A.3d 143. “The intention to have arbitrability determined by an arbitrator can be manifested by an express provision or through the use of broad terms to describe the scope of arbitration, such as ‘all questions in dispute and all claims arising out of’ the contract or ‘any dispute that cannot be adjudicated.’ ” Board of Education v. Frey, 174 Conn. 578, 581, 392 A.2d 466 (1978); see also White v. Kampner, 229 Conn. 465, 472, 641 A.2d 1381 (1994). “Courts should not assume [however] that the parties agreed to arbitrate arbitrability unless there is [clear] and unmistakabl[e] evidence that they did so.” (Internal quotation marks omitted.) First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995).

In the present appeal, both parties have expressly indicated that they agreed to arbitrate the question of arbitrability and to be bound by the arbitrators' decision in that regard. See Bacon Construction Co. v. Dept. of Public Works, supra, 294 Conn. at 710, 987 A.2d 348 (party waives right to...