D'Agostino v. City of New Britain

• Citation: 507 A.2d 1042,7 Conn.App. 105
• Decision Date: 15 April 1986
• Docket Number: No. 2769,2769
• Parties: Chester D'AGOSTINO et al. v. CITY OF NEW BRITAIN et al. Anthony RAIA v. CITY OF NEW BRITAIN et al.
• Court: Connecticut Court of Appeals

Page 1042

507 A.2d 1042

7 Conn.App. 105

Chester D'AGOSTINO et al. v. CITY OF NEW BRITAIN et al.

Anthony RAIA v. CITY OF NEW BRITAIN et al.

No. 2769.

Appellate Court of Connecticut.

Argued Dec. 4, 1985.

Decided April 15, 1986.

Joseph E. Skelley, Jr., Hartford, for appellants-appellees (defendants).

Harold J. Geragosian and Henry S. Zembko, Jr., New Britain, for appellees-appellants (plaintiffs).

Before DUPONT, C.J., and SPALLONE and BIELUCH, JJ.

BIELUCH, Judge.

This appeal arises out of two consolidated actions wherein the plaintiffs sought and obtained writs of mandamus compelling the defendant city of New Britain to promote each of the three plaintiffs to the position of lieutenant in its fire department. The defendants ¹ have appealed from the judgment, alleging numerous errors in the trial court's decision. The plaintiffs have cross appealed, alleging that the court could also have granted the writs of mandamus on an additional ground. Because we find no error on the defendants' appeal, we conclude that the cross appeal is moot.

The trial court found the following facts. On August 13, 1980, the defendant civil service commission issued a promotional list of seventeen firefighters, in order of rating, who had passed promotional examination P-651 and who could therefore be promoted to fill vacancies in the New Britain fire department with the rank of lieutenant. The promotional list was, by operation of chapter 3, § 372, of the New Britain charter, effective for one year only. ²

During the year in which this list was effective, the first thirteen firefighters thereon were promoted to the rank of lieutenant. The fourteenth firefighter on the list, Kevin Smith, was promoted to the rank of lieutenant after the list expired as the result of a negotiated settlement in a grievance proceeding filed by Smith through the firefighters' union. Smith had claimed that a vacancy existed at the rank of lieutenant when the list expired, and, therefore, that he should have been promoted to fill that vacancy. The plaintiffs, who were the remaining three firemen on the promotional list, also filed a similar grievance, but, in addition, they brought the present actions. ³

Nearly two years after these actions were instituted, the city of New Britain moved for their dismissal on the ground that the plaintiffs had not exhausted their administrative remedies prior to bringing suit, thus depriving the trial court of jurisdiction. The court noted that the written motions were not timely, and that similar motions, made orally on August 14, 1981, shortly after the actions commenced, had been denied. Nonetheless, the court reviewed the merits of the claim and concluded, in a thorough memorandum of decision, that the subject matter of the actions was not "within the purview of the collective bargaining agreement" and, therefore, could not be dealt with in a grievance. The court therefore concluded that the plaintiffs had not failed to exhaust their administrative remedies and denied the motions to dismiss.

After a trial, the court found that there were at least three vacancies in the position of lieutenant in the New Britain fire department on and before the expiration of the promotional list on August 13, 1981, which were improperly held by persons with provisional appointments as acting lieutenants. ⁴ The plaintiffs should have been appointed to these vacancies from the promotional list. On the basis of that finding, the court issued a writ of mandamus in each case. The court, however, rejected the plaintiffs' alternative claim that several positions in upper echelons above the rank of lieutenant had not been filled, except by provisional assignments, and that the failure to fill those positions by promotion from the lower ranks denied the plaintiffs openings in the ranks of lieutenant for their promotion before August 13, 1981. This argument, called the "domino theory" by the plaintiffs, was rejected by the court because the plaintiffs had "no standing to raise the issue in court because none [was] nor could have been, [a candidate] for any of the [upper echelon] positions."

In their appeals, the defendants claim that the court erred (1) in denying their motions to dismiss the complaint on the ground that the plaintiffs had failed to exhaust their administrative remedies, and (2) in concluding that four additional vacancies existed at the rank of lieutenant during the existence of and on expiration of the promotional list. This latter claim of error is made in three separate arguments in their brief. The plaintiffs' cross appeal claims as error (1) the court's failure to accept their "domino theory," (2) its conclusion that the list automatically expired at the end of one year, (3) its conclusion that the defendant acting personnel director for the city was not required to take affirmative steps to cancel or terminate the promotional list, and (4) its failure to deny the defendants' motions to dismiss the actions on the additional ground that the grievance procedure was not an adequate remedy to secure the desired result.

Turning to the first claim of error raised by the defendants' appeal, we find that the trial court rightly held that this dispute was not a proper subject for collective bargaining. The court correctly concluded, therefore, that the grievance procedure was inappropriate and that the plaintiffs had not failed to exhaust their administrative remedies.

General Statutes (Rev. to 1979) § 7-474(g) provides: "The conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such examinations and the appointments from such lists and any provision of any municipal charter concerning political activity of municipal employees shall not be subject to collective bargaining." (Emphasis added.) ⁵ This case squarely presents a dispute involving a promotional appointment from such a merit list. Consequently, collective bargaining, and the grievance procedures imposed thereby, cannot apply here. While it is clear that employees must ordinarily exhaust their grievance procedures prior to resorting to our courts; McNish v. American Brass Co., 139 Conn. 44, 53, 89 A.2d 566 (1952), cert. denied, 344 U.S. 913, 73 S.Ct. 336, 97 L.Ed. 704 (1953); where the subject of the dispute is not within the scope of the collective bargaining agreement, grievance procedures established by collective bargaining agreements do not apply. Section 13:1 of the collective bargaining agreement between the city of New Britain and its firefighters specifically provides that the term grievance means "disputes over the interpretation or application of any written section o...