Board of Police Com'rs of City of New Haven v. White

Decision Date14 September 1976
Citation171 Conn. 553,370 A.2d 1070
CourtConnecticut Supreme Court
Parties, 93 L.R.R.M. (BNA) 2637, 80 Lab.Cas. P 53,917 BOARD OF POLICE COMMISSIONERS OF the CITY OF NEW HAVEN et al. v. William WHITE et al.

Arnold J. Bai, Trumbull, with whom was Paul E. Pollock, Seymour, for appellant (named plaintiff).

Donald G. Walsh, New Haven, with whom was Jeffrey Rozen, New Haven, and, on the brief, T. Paul Tremont, Bridgeport, and William M. Mack, for appellees (defendants).

Robert W. Murphy, Asst. Atty. Gen., for appellee (defendant board of mediation and arbitration).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

HOUSE, Chief Justice.

This is an action seeking a temporary and permanent injunction restraining and prohibiting the defendants, William White, Ralph DiNello, and New Haven Police Union Local No. 530 of the Connecticut Council of Police Unions No. 15, from initiating 'and/or' proceeding with any arbitration action before the defendant Connecticut Board of Mediation and Arbitration or any other body in any way related to orders of dismissal of the defendants White and DiNello from the New Haven police department. The plaintiffs are the board of police commissioners of the city of New Haven, hereinafter called police commissioners, and the city of New Haven which intervened, claiming that its position and that of the police commissioners are analogous. The case was presented to the trial court on a stipulation of facts and memoranda of law.

The facts may be summarized as follows: The plaintiff board of police commissioners is an administrative body whose six members are appointed pursuant to the charter of the city of New Haven. The charter charges the police commissioners with the administration, operation and control of the department of police service of the city of New Haven and empowers them to appoint, recommend the pay of, define the duties of, promote, remove, reduce in rank, and suspend officers of the New Haven police department and to make all rules necessary for the proper government of the police department. Prior to February 26, 1973, the defendants William White and Ralph DiNello were police officers in the city of New Haven. On or about January 4, 1972, Biagio DiLieto, in his capacity as chief of police of the city of New Haven, presented to the police commissioners charges of misconduct against White and DiNello arising out of their duties as police officers. Following numerous hearings, at which White and DiNello were represented by counsel, and after deliberation and consideration of the evidence, which included testimony covering 1956 pages of transcript, the police commissioners, on February 26, 1973, found the defendant White guilty of procuring a false statement in connection with a police departmental investigation of his activities, found the defendant DiNello guilty of falsifying an arrest report in order to strengthen the alleged case against the arrestee, and ordered both defendants dismissed from the New Haven police department. Both defendants, pursuant to § 129 of the New Haven charter, took appeals which are presently pending before the Court of Common Pleas. On or about March 9, 1973, the defendant union, on behalf of White and DiNello, initiated a grievance proceeding pursuant to the provisions of article 3 of an existing collective bargaining agreement between the union and the city of New Haven. The specific grievance claimed was the discharge of White and DiNello by the police commissioners, and the union sought arbitration of that alleged grievance by arbitrators appointed by the defendant state board of mediation and arbitration. The union claimed that the decision of the arbitrators would be binding on the police commissioners. At no prior time had a dismissed police officer sought to invoke the grievance procedures provided in the collective bargaining agreement. On April 9, 1973, the police commissioners brought this action seeking to enjoin the defendants from initiating or proceeding with any such arbitration and, on June 21, 1973, the city of New Haven filed an intervening complaint seeking the same relief. The court rendered judgment for the defendants and denied the plaintiffs' prayers for relief.

From this judgment the plaintiffs have appealed, assigning as error the finding of various facts, the reaching of certain conclusions and the overruling of claims of law made by the plaintiffs. Some of the assignments of error have not been briefed and are treated as abandoned. Ruick v. Twarkins, 171 Conn. 149, 151, 367 A.2d 1380. The defendants have briefed for this court claims that the plaintiffs had waived any claim of illegality as to the collective bargaining agreement and that the court erred in overruling their plea in abatement addressed to the capacity of the plaintiffs to bring this action. They did not file an assignment of errors and a cross appeal and we do not consider the merits of these contentions. Practice Book § 607; Akin v. Norwalk, 163 Conn. 68, 70, 301 A.2d 258. In any event, since the city of New Haven intervened as a party plaintiff and joined in the prosecution of the action the contention of the defendants as to the lack of standing of the police commissioners would appear at this point to be of only academic interest.

The plaintiffs' first contention is that the trial court erred in not considering the plaintiffs' claims (1) that the proposed arbitration proceeding is not authorized by the collective bargaining agreement with the union, and (2) that the defendant state board of mediation and arbitration has no statutory authority to arbitrate the matter. In its finding, the court stated as a conclusion that these claims were not considered because 'such claims were neither pleaded nor presented at the trial.' An examination of the pleadings discloses that the court properly did not consider the claim that the state board of mediation and arbitration lacked statutory authority to arbitrate the matter because the pleadings do not raise that issue. It does appear that the plaintiffs' trial memorandum of law contained some reference to that question but the issue was not raised by the pleadings. 'It is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings. Rose v. Van Bosch, 119 Conn. 514, 518, 177 A. 565.' Lesser v. Altnacraig Convalescent Home, Inc., 144 Conn. 488, 491, 133 A.2d 908, 910.

An examination of the pleadings and record reveals a more ambiguous situation with respect to the trial court's consideration of the provisions of the collective bargaining agreement relative to arbitration. The complaint and special defenses refer only vaguely to the contract issue. On the other hand, the stipulation of facts made specific reference to the contract stating that the agreement was left to speak for itself. Furthermore, despite the court's conclusory disavowal of consideration of the question whether the proposed arbitration proceedings were authorized by the collective bargaining agreement, the court did find as a fact that '(t)he provisions of the Union agreement, Exhibit A, defining discharge of a police officer to constitute a grievance and providing for binding arbitration of such a grievance before the defendant Connecticut Board of Mediation and Arbitration, are in conflict with the power of plaintiff Board of Police Commissioners to remove police officers.' The court also expressly stated in its memorandum of decision, which we may consult for a better understanding of the basis of its decision; Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 120, 318 A.2d 84; Rosenberg v. Planning Board, 155 Conn. 636, 643, 236 A.2d 895; that '(i)t is clear to this court from the language of the Union contract that binding arbitration of a discharge agreement (sic) is allowed in the Union contract.' We conclude, despite the ambiguity, that the court did consider the contract, interpreted it to provide for arbitration and then proceeded to decide the claims before it.

The plaintiffs next contend that the city of New Haven had no authority to enter into a contract providing for binding arbitration of a discharge grievance. They properly assert that the city is a creature of the state and "can exercise only such powers as are expressly granted to it, or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation.' Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428.' Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 236, 215 A.2d 409, 411. However, under § 7-469 1 of the General Statutes, a municipal employer such as the city of New Haven has the duty to bargain collectively with designated employee organizations and by the terms of § 7-490(c) that includes the duty to bargain 'with respect to wages, hours and other conditions of employment.' The broad statutory term 'conditions of employment' may be construed to include the question whether a person shall continue in employment; cf. Fibreboard Paper Products Corporation v. National Labor Relations Board, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233; has been held by at least one court to apply to a discharge; Local 1401, Retail Clerks International Assn. v. Woodman's Food Market, Inc., 371 F.2d 199 (7th Cir.); and may include grievance procedures. See Norwalk Teachers' Assn. v. Board of Education, 138 Conn. 269, 278, 83 A.2d 482. Of particular significance, indicative of the statutory intention in the use of the term 'conditions of employment' is the report of the interim commission to study collective bargaining by municipalities which led to the adoption of Public Acts 1965, No. 159, which act included what is now General Statutes § 7-470(c). We may properly consider such a report in determining the general intent of the legislature. State ex rel. Pettigrew v. Thompson, 135 Conn. 228, 234, 63 A.2d 154...

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