City Of New Britain v. Afscme

• Citation: 121 Conn.App. 564,997 A.2d 560
• Decision Date: 08 June 2010
• Docket Number: No. 30597.,30597.
• Court: Appellate Court of Connecticut
• Parties: CITY OF NEW BRITAINv.AFSCME, COUNCIL 4, LOCAL 1186.

121 Conn.App. 564

997 A.2d 560

CITY OF NEW BRITAINv.AFSCME, COUNCIL 4, LOCAL 1186.

No. 30597.

Appellate Court of Connecticut.

Argued Jan. 6, 2010.

Decided June 8, 2010.

Mary C. Pokorski, associate city attorney, for the appellant (plaintiff).

J. William Gagne, Jr., West Hartford, with whom, on the brief, was Kimberly A. Cuneo-DeLaura, for the appellee (defendant).

LAVINE, BEACH and ALVORD, Js.

LAVINE, J.

The plaintiff, the city of New Britain, appeals from the judgment of the trial court denying its application to vacate the arbitration award in favor of the defendant, AFSCME, Council 4, Local 1186. The plaintiff claims that the court improperly denied its application because (1) the issue was not arbitrable, and (2)(a) the submission to the arbitration board was restricted and (b) the board exceeded the scope of the submission in fashioning the award. We affirm the judgment of the trial court.

The following facts and procedural history, as set forth by the court in its memorandum of decision, are relevant to the plaintiff's appeal. “[The plaintiff] and [the defendant] negotiated a collective bargaining agreement ( [agreement] ) running from July 1, 2003, to June 30, 2008. In January, 2006, [the plaintiff] and [the defendant] negotiated a number of upgrades that had the effect of increasing the pay of certain members of the bargaining unit. Thereafter, upon calculating the pay rate for certain of these employees, it was discovered that the supervisors of these employees, classified as ‘foremen,’ were paid a differential that was less than 5 percent above the rate paid to the employees whom they supervised. The civil service regulations of New Britain provide that persons classified as foremen shall be paid at least 5 percent more than the employees whom they supervise.

“The foremen, as a class, filed an unfair labor practice complaint, which was resolved via an agreement with [the plaintiff] on September 8, 2006. That settlement agreement provided: ‘[The plaintiff] hereby agrees that [the defendant] may file a grievance regarding the issue of [f]oremen being paid less than 5 [percent] more than their subordinates. This grievance shall be filed directly at arbitration. [The plaintiff] and [the defendant] further agree that either party may raise [any] claim or defense they could have made had they filed at step [one], including the issue of arbitrability but not including timeliness. In consideration of the above, [the defendant] agrees to the withdrawal and closing of [the unfair labor practice case].’

“The matter was thereafter submitted to arbitration in two phases. In the first submission to the state board of mediation and arbitration, [the plaintiff] argued that the matter was not arbitrable at all. [The plaintiff] pointed to a memorandum of understanding that had been signed with [the defendant] at the time of the January, 2006 upgrades, which read: ‘The parties hereby mutually agreed that the list of proposed upgrades on the attached pages (dated [January 18, 2006] ) would go into effect retroactive to January 1, 2006. Any omissions, adjustments, corrections, etc. can only be made with the signature of both parties. The parties agree that arbitration shall NOT be used to redress all upgrades that have not been resolved in the negotiations.’ [Emphasis in original.]

“The board heard the parties and rendered an award that found that the matter of the claimed inadequacy in the pay differential for the foremen class was indeed arbitrable. Recognizing that the foremen pay differential issue was one that neither side had foreseen, and was an issue that was outside the scope of upgrades that would normally have been the subject of the collective bargaining process, as opposed to the grievance and arbitration process, the board found that the 2006 settlement agreement, read in conjunction with the [agreement] and the letter agreement regarding the upgrades, did not prohibit arbitration of the dispute.

“The parties then moved to the second phase of the arbitration. After hearing evidence, the board determined that the civil service rules that mandated a 5 percent pay differential for supervisors applied to this situation. This finding found support in the actual language of the [agreement], article 2.0, that affirms any other ‘statute, ordinance, regulation or other lawful provision over matters involving the municipality’ was to be followed as long as it did not conflict with the specific provision of the [agreement]. The board found that the merit rules of the civil service commission set forth, as a guiding principal, that supervisors are to be paid at a higher rate than their subordinates. The board found that there was nothing about this principal that conflicted with the provisions of the [agreement] and that, indeed, the two provisions could be read and applied in concert.

“Based on the evidence, the board found that it was clearly the intention of the parties to incorporate the language of the civil service rules into the salary schedules used by the parties. Moreover, the board credited evidence that the foreman group that constituted the class about whom the arbitration was filed were all actually supervisory personnel entitled to the benefit of the supervisors' pay differential as prescribed in the civil service rules.”

On February 29, 2008, the plaintiff filed an application to vacate the arbitration award on the ground that “the arbitration panel exceeded its powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made....” See General Statutes § 52-418(a)(4). The court denied the application on November 21, 2008. This appeal followed.

I

The plaintiff's first claim on appeal is that the court erred in denying its application to vacate the arbitration award because the arbitration board improperly found that the issue was arbitrable. We disagree.

“Whether a particular dispute is arbitrable is typically a question for the court.... It is well established [however] that arbitration is a matter of contract and that parties may agree to have questions concerning the arbitrability of their disputes decided by a separate arbitrator.... In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators.... 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....” (Internal quotation marks omitted.) Wallingford v. Wallingford Police Union Local 1570, 45 Conn.App. 432, 436, 696 A.2d 1030 (1997).

“In Metropolitan District Commission v. AFSCME, Council 4, Local 3713, 35 Conn.App. 804, 811 n. 6, 647 A.2d 755 (1994), this court recognized that an arbitrator cannot find a dispute arbitrable if language in the contract indicates that it is not. Furthermore, in White v. Kampner, 229 Conn. 465, 641 A.2d 1381 (1994), our Supreme Court stated: We initially note that, because we favor arbitration, we will defer to this alternative method of dispute resolution if the contractual arbitration provisions fall within the grey area of arbitrability, employing the positive assurance test as set out in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Under this test, judicial inquiry ... must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance.... An 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.” (Internal quotation marks omitted.) Sacred Heart Teachers' Assn. v. Sacred Heart High School Corp., 65 Conn.App. 195, 199-200, 782 A.2d 227 (2001).

Here, the plaintiff is the party that was reluctant to arbitrate this grievance. It argues that the January, 2006 memorandum of understanding specifically states: “The parties hereby mutually agreed that the list of proposed position upgrades on the attached pages (dated [January 18, 2006] ) would go into effect retroactive to January 1, 2006. Any omissions, adjustments, corrections, etc. can only be made with the signature of both parties. The parties agree that arbitration shall NOT be used to redress all upgrades that have not been resolved in the negotiations.” Although the parties originally stated that arbitration would not be used to redress the issue of upgrades, they later signed, on September 8, 2006, a settlement agreement that provides: “[The plaintiff] hereby agrees that [the defendant] may file a grievance regarding the issue of Foremen being paid less than 5 [percent] more than their subordinates. This grievance shall be filed directly at arbitration. [The plaintiff] and [the defendant] further agree that either party may raise [any] claim or defense they could have made had they filed at step [one], including the issue of arbitrability but not including timeliness. In consideration of the above, [the defendant] agrees to the withdrawal and closing of [the unfair labor practice case].” It appears clear that the plaintiff, eight months after agreeing that arbitration should not be used to redress the upgrades, agreed to arbitrate the foremen's grievance as part of its settlement agreement with the defendant. In these circumstances, we cannot say with positive assurance that the parties intended to exclude the issue from arbitration.

II

The plaintiff next claims that (1) the submission to the arbitration board was restricted and (2) the board exceeded the scope of its authority in fashioning the award. Specifically, it argues that the submission was restricted to the question of whether the plaintiff violated §§ 11.0 or...