North Haven Ass'n of Educational Support Staff v. Board of Educ. of the Town of North Haven, 13404

• Decision Date: 06 December 1988
• Docket Number: No. 13404,13404
• Citation: 550 A.2d 1077,209 Conn. 280
• Parties: , 50 Ed. Law Rep. 1067 NORTH HAVEN ASSOCIATION OF EDUCATIONAL SUPPORT STAFF v. BOARD OF EDUCATION OF THE TOWN OF NORTH HAVEN.
• Court: Connecticut Supreme Court

Page 1077

550 A.2d 1077

209 Conn. 280, 50 Ed. Law Rep. 1067

NORTH HAVEN ASSOCIATION OF EDUCATIONAL SUPPORT STAFF v. BOARD OF EDUCATION OF THE TOWN OF NORTH HAVEN.

No. 13404.

Supreme Court of Connecticut.

Argued Oct. 11, 1988.

Decided Dec. 6, 1988.

W. Paul Flynn, with whom, on the brief, were Charles L. Flynn and Howard A. Lawrence, New Haven, for appellant (plaintiff).

Anthony J. Palermino, with whom was Gary R. Atkinson, Hartford, for appellee (defendant).

Before PETERS, C.J., and CALAHAN, GLASS, COVELLO and HULL, JJ.

GLASS, Associate Justice.

The sole issue in this appeal is whether, under General Statutes § 52-417, ¹ the trial court properly refused to confirm an advisory arbitration award.

The plaintiff, North Haven Association of Educational Support Staff (association), represents certain employees of the defendant board of education of the town of North Haven (board), including the grievant, Marie Freitag. In May, 1986, Freitag, then employed as a library aide in the North Haven school system, applied for the newly created position of computer operator/clerk. Freitag had participated in the school system's program to acquire computer operator skills, and had completed a twelve week computer training course under the school system's aegis. Ultimately, however, a candidate with less seniority than Freitag was selected for the new position.

On June 18, 1986, the association filed a grievance on Freitag's behalf. Pursuant to the parties' collective bargaining agreement, the grievance was submitted for arbitration to the Connecticut state board of mediation and arbitration. The submission was as follows: "Was the promotion denial of Marie Freitag by the Board of Education in violation of ... the collective bargaining agreement? If so, what shall the remedy be?" On April 8, 1987, the arbitrators made an award in favor of Freitag, on the ground that the board had failed in its evaluation process to consider Freitag's seniority as required by the bargaining agreement. The award provided: "Ms. Freitag is to be appointed to the position of Computer Operator ... within 30 days from the date of this award."

The board, however, refused to appoint Freitag to the position. On August 5, 1987, the association applied to the trial court to confirm the arbitration award, pursuant to General Statutes § 52-417. On January 5, 1988, the trial court dismissed the application, concluding that, under the terms of the bargaining agreement, the award was advisory only and, therefore, could not be confirmed under § 52-417. The association appealed the trial court's denial of its application to the Appellate Court on January 15, 1988. The appeal was transferred to this court pursuant to Practice Book § 4023.

On appeal, the association claims error in the trial court's conclusion that the language of the bargaining agreement precluded the court from confirming the award. ² We find no error.

The critical language of the parties' bargaining agreement provides: "The Connecticut State Board of Mediation and Arbitration shall serve as the arbitrators acting under its rules and regulations. The decision of the arbitrators shall be advisory. The arbitrators shall have no authority to amend, modify, alter, subtract from or add to this Agreement."

The trial court found that, absent a waiver by the parties, any arbitration decision under the agreement would be advisory and nonbinding. The court ruled that because the award was not binding, it had no authority to confirm the award under § 52-417. We agree with the trial court's conclusion.

"The principles governing the arbitration of disputes are well established. Because arbitration is a 'creature of contract,' the parties themselves ordinarily determine the issues to be decided and define the scope of the arbitrator's power. Administrative & Residual Employees Union v. State, 200 Conn. 345, 348, 510 A.2d 989 (1986); Caldor, Inc. v. Thornton, 191 Conn. 336, 341, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985); Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983)." Masters v. Masters, 201 Conn. 50, 70, 513 A.2d 104 (1986). "The authority to arbitrate is strictly limited by the provisions of the collective bargaining agreement and the scope of the matter to be considered by the arbitrators is limited by the submission. Board of Police Commissioners v. Maher, 171 Conn. 613, 621, 370 A.2d 1076 (1976)." (Emphasis added.) Board of Education v. AFSCME, 195 Conn. 266, 271, 487 A.2d 553 (1985).

The parties' collective bargaining agreement provided that arbitration awards would be advisory. This language permitted either party to decline to follow any arbitration decision. " 'Courts of law must allow parties to make their own contracts, and can enforce only such as they actually make. Whether the [arbitration] contract is wise or unwise, reasonable or unreasonable, is ordinarily an immaterial inquiry.' " Chase Brass & Copper Co. v. Chase Brass & Copper Workers Union, 139 Conn. 591, 595, 96 A.2d 209 (1953).

The association, however, argues that by agreeing to the unrestricted submission, the board agreed to be bound by the award. It claims that the "advisory" language of the bargaining agreement was a procedural limitation on the arbitrators' authority. As such, it asserts that the limitation implicated the arbitrability of the dispute itself. The association maintains that the board's failure to raise the issue either before the arbitrators or by an action for injunctive relief in the courts operated as a waiver of the limitation. See Policemen's & Firemen's Retirement Board v. Sullivan, 173 Conn. 1, 6, 8-9, 376 A.2d 399 (1977); Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 63, 357 A.2d 466 (1975). We disagree.

A party's submission to arbitration may constitute a waiver as to the arbitrability of the dispute. Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 192, 425 A.2d 1247 (1979). The question of the efficacy of the "advisory" award provision, however, concerns the nature of the award rather than the arbitrability of the dispute. Consequently, even if, under the present agreement, a party could waive an objection to a dispute's arbitrability by not raising it prior to the arbitration proceedings; see Paranko v. State, 200 Conn. 51, 58, 509 A.2d 508 (1986); Waterbury Board of Education v. Waterbury Teachers Assn., supra; the arbitrability of the dispute is not at issue in this case. By stating that arbitration awards would be advisory, the agreement provided the arbitrators with the authority to issue nonbinding awards, and nothing more. Board of Education v. AFSCME, supra, 195 Conn. at 271, 487 A.2d 553. The parties did not expressly waive this provision in agreeing to the submission. Nor was the board required expressly to reserve that which had already been explicitly provided for in the agreement. ³ Cf. Board of Trustees v. Federation of Technical College Teachers, supra (by agreeing to unrestricted submission, party does not waive claim that award itself violates statutes or regulations).

Similarly, the association argues that, because the arbitrators' authority to modify the agreement was also an issue for the arbitrators to decide, the board should have raised the question of the advisory nature of the award before arbitration began. The association's argument suggests that the initiation of arbitration under the unrestricted submission automatically converted the contract's express term "advisory" into the term "binding" or "final," and that the board consequently had the obligation to object to such a "modification." We are not persuaded.

Ordinarily, where the authority to arbitrate devolves from contract, an unrestricted submission carries with it the power to decide, with finality, all issues of fact or law in the proceedings. Wilson v. Security Ins. Group, 199 Conn. 618, 626, 509 A.2d 467 (1986); Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 (1977); see also Stratford v. Local 134, IFPTE, 201 Conn. 577, 584, 519 A.2d 1 (1986). Under the terms of the agreement in the present case, however, the arbitrators could not have rendered anything but an advisory award. The submission, therefore, could not "carry" to the arbitrators the authority to render a binding award. We also note that although the award was phrased in mandatory terms, the arbitrators did not state that they intended the award to supersede the advisory award provision of the agreement.

We also disagree with the association's further argument that the trial court improperly used the association's application to confirm the award under § 52-417 as a vehicle for vacating the award under General Statutes § 52-418(a)(4). ⁴ Relying on Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 291, 377 A.2d 323 (1977), and Norwich Roman Catholic Diocesan Corporation v. Southern New England Contracting Co., 164 Conn. 472, 477, 325 A.2d 274 (1973), the association asserts that the trial court's resort to the language of the bargaining agreement was contrary to the settled law that courts will only examine the submission and the award to determine whether the arbitrators have exceeded their powers. By referring to the contract, the association contends, the court improperly "second-guessed" the arbitrators by determining whether certain language in the written agreement would support or defeat the claim. See United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 585, 80 S.Ct. 1347, 1354, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 186, 530 A.2d 171 (1987).

We first note that the trial court in this case did not "vacate" the arbitration award under § 52-418. The trial court dismissed the...