City of Bridgeport v. Bridgeport Police Local 1159, AFSCME, Council 15

• Citation: 438 A.2d 1171,183 Conn. 102
• Court: Supreme Court of Connecticut
• Decision Date: 10 February 1981
• Parties: CITY OF BRIDGEPORT v. BRIDGEPORT POLICE LOCAL 1159, AFSCME, COUNCIL 15.

Page 1171

438 A.2d 1171

183 Conn. 102

CITY OF BRIDGEPORT v. BRIDGEPORT POLICE LOCAL 1159, AFSCME, COUNCIL 15.

Supreme Court of Connecticut.

Argued Dec. 9, 1980.

Decided Feb. 10, 1981.

Thomas W. Bucci, Asst. City Atty., Bridgeport, for appellant (plaintiff).

W. Paul Flynn, New Haven, with whom, on the brief, was Frank J. Raccio, New Haven, for appellee (defendant).

Before BOGDANSKI, PETERS, HEALEY, ARMENTANO and WRIGHT, JJ.

BOGDANSKI, Associate Justice.

This appeal is from the denial of the plaintiff's application to vacate an arbitration award on the ground that the arbitrators exceeded their powers. ¹

The plaintiff city and the defendant union stipulated as follows: On November 9, 1974, the city and the union entered into a collective bargaining agreement which provided for certain grievance procedures in cases of disputes. Two years previously, the city had conducted a promotional examination for the position of sergeant and an eligibility list, based on the results of that examination, was compiled by the civil service commission. The grievants in the present case were ranked on that list but were never promoted to the rank of sergeant. They contend that policemen ranked ahead of them on the eligibility list were not residents of the city of Bridgeport which required that their employment be terminated in accordance with the city charter and applicable ordinances, and that upon their dismissals, the grievants would be entitled to promotion to the rank of sergeant.

On the basis of that stipulation, the parties agreed to the following submission: "Is this matter arbitrable? If so, was the City required to terminate non-resident police department employees under the Collective Bargaining Agreement and applicable ordinances of the City of Bridgeport? If so, was the City required to promote the grievants to the rank of sergeant? If so, what shall the remed (y) (ies) be?"

The arbitrators thereafter issued their award finding that the matter was arbitrable; that the city was required to terminate nonresident policemen; and that the city was required to promote the grievants to the rank of sergeant.

The first issue raised is whether the city may challenge, in court, the arbitrators' determination that the matter was arbitrable.

"This court has long followed the rule that the arbitrability of a dispute is a legal question for the court unless the parties have clearly agreed to submit that question to arbitration. 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, 580-81, 392 A.2d 466 (1978). Where, however, the agreement provides for arbitration of " 'grievance(s) ... based solely upon an alleged breach of (the) agreement' " the language was not sufficiently all-inclusive to warrant the conclusion that the parties intended to have arbitrability submitted to an arbitrator. Board of Education v. Frey, supra, 581, 392 A.2d 466.

Thus, whether the parties have agreed to submit to arbitration not only the merits of the dispute but the very question of arbitrability as well depends upon the intention manifested in the agreement they have made. Connecticut Union of Telephone Workers v. Southern New England Telephone Co., 148 Conn. 192, 197, 169 A.2d 646 (1961). Article VI of the present collective bargaining agreement provides for arbitration of any grievance where "any employee or group of employees feel aggrieved concerning his or their wages, hours or conditions of employment, which wages, hours or conditions are controlled by this contract, or which are provided for in any statute, charter, provision, or ordinance, rule or regulation which is not in conflict with this contract, or concerning any matter or condition arising out of the employee-employer relationship ...." (Emphasis added.) We conclude that the above all-inclusive language of the agreement requires a determination that the parties intended the question of arbitrability to be determined by the arbitrators.

Where the determination of arbitrability has been committed to the arbitrator by the collective bargaining agreement, the proper procedure for challenging that right of determination is to raise it initially in the arbitration proceedings and then to challenge it by a motion to vacate the award. Conte v. Norwalk, 173 Conn. 77, 80, 376 A.2d 412 (1977). Thus, where the parties expressly presented this issue to the arbitrators, by submitting the question "(i)s this matter arbitrable," the plaintiff properly brought a motion to vacate the award. New Britain v. Connecticut State Board of Mediation & Arbitration, (41 Conn.L.J., No. 5, p. 9) (1979).

The trial court next addressed the issue of whether the grievances concerning promotions are arbitrable. In so doing the trial court applied the "positive assurance" test. Board of Education v. Frey, supra; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 583 n.7, 80 S.Ct. 1347, 1353 n.7, 4 L.Ed.2d 1409 (1960). That test provides that when the contract leaves it up to the court to determine arbitrability, "(a)n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 582-83, 80 S.Ct....