Town of East Hartford v. East Hartford Mun. Employees Union, Inc.

Decision Date22 March 1988
Docket NumberNo. 13187,13187
Citation206 Conn. 643,539 A.2d 125
CourtConnecticut Supreme Court
PartiesTOWN OF EAST HARTFORD v. EAST HARTFORD MUNICIPAL EMPLOYEES UNION, INC., et al.

Robert J. Krzys, Hartford, for appellant (named defendant).

David A. Zipfel, East Hartford, with whom, on the brief, were Barry S. Zitser, Corp. Counsel, Hartford, and Jose Ramirez, for appellee (plaintiff).

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

SHEA, Associate Justice.

The only issue presented by this appeal is whether the Appellate Court was correct in concluding that the trial court had the authority to substitute its own finding of the untimeliness of a grievance complaint by a discharged employee for the arbitrators' finding of timeliness when, as part of an unlimited submission to arbitration, the parties have empowered the arbitrators to decide the question of arbitrability. We conclude that the trial court did not have such authority. Accordingly, we reverse the judgment of the Appellate Court, and remand the case to that court with direction that it then be remanded to the trial court for reinstatement of the findings of the arbitrators concerning timeliness.

The facts pertinent to this appeal are not disputed. The defendant East Hartford Municipal Employees Union, Inc. (union), and the plaintiff town of East Hartford (town) entered into a collective bargaining agreement for the period July 1, 1980, to June 30, 1982, in which the union was recognized as the bargaining agent for certain town employees. For approximately two and one-half years prior to August, 1981, Diane Fontanella, an employee covered by the contract, worked as an information technician for the police department. In August, 1981, Fontanella scored first on a promotional examination for the position of caseworker in the social services department and, as a result, was offered the job. That month she began to serve a mandatory three month period of probation. The town's personnel rules provide that the three month period of probation may be extended for up to two additional months. At the request of Fontanella's supervisor, the town's personnel director extended the probationary period for one month commencing November 10, 1981.

On November 19, 1981, the town notified Fontanella by letter that her employment as a caseworker was terminated on the ground that her work performance had been unsatisfactory. A second letter that same day instructed her that she could resume her previous position in the police department. Fontanella had previously informed the town's personnel director that she did not wish to return to her previous job as an information technician. She left the department of social services on November 19, 1981. By a letter dated November 23, 1981, the deputy chief of the police department informed Fontanella that her employment with the town was terminated because she had failed to resume her previous job in the police department. On December 21, 1981, Fontanella filed a written complaint with the personnel director concerning her termination. The town refused to hold a hearing concerning her complaint because it claimed that probationary employees had no appeal rights under the contract. The union did not file a formal grievance until March 26, 1982.

The union's challenge to the town's termination of Fontanella was submitted to a panel of arbitrators acting as the state board of mediation and arbitration. As the town has conceded, this submission was unrestricted and thus the arbitrators had authority to decide the question of arbitrability as well as the substantive issues involved in the dispute. The town argued that the arbitrators lacked jurisdiction to resolve Fontanella's claim on the ground that the grievance was not timely under the parties' collective bargaining agreement because the union did not file a formal grievance until 127 days after her termination from the caseworker position. Section 13.3 of the collective bargaining agreement provides that "[e]mployee grievances must be indicated no later than thirty (30) days following the date of the incident giving rise to the alleged grievance...." Notwithstanding the objection concerning untimeliness, the arbitrators found the dispute arbitrable. "The Panel majority finds that the Town's objection as to the time limits should be dismissed as [a] result of its own continuous violation of [Fontanella's] rights to the grievance and arbitration process under the contract. Where a grievance is one which is continuous in nature, time periods should not apply." The arbitrators found that Fontanella had been discharged without just cause and was entitled to reinstatement as a caseworker with commensurate benefits.

The town applied to the Superior Court to vacate the arbitrators' award. The trial court vacated the award on the ground that the grievance was not timely because it had been filed beyond the thirty day limit set forth in the parties' agreement. The union then filed an appeal with the Appellate Court. The town cross appealed, setting forth alternative grounds to sustain the trial court's decision. 2 The Appellate Court affirmed the trial court's decision without dismissing the cross appeals or considering these alternative grounds. 3 East Hartford v. East Hartford Municipal Employees Union, Inc., 10 Conn.App. 611, 612, 618, 525 A.2d 112 (1987). The town has also raised in this court four alternative grounds for affirming the decision of the Appellate Court. 4 The town conceded at oral argument that the trial court did not make findings concerning these alternative grounds, and, therefore, an adequate record did not exist for this court to review these issues. In view of our conclusion that the trial court did not have the authority to substitute its own finding of timeliness, we remand these four remaining issues to the Appellate Court to be remanded to the trial court for determination.

In Costello Construction Corporation v. Teamsters Local 559, 167 Conn. 315, 318, 355 A.2d 279 (1974), where we reversed a trial court's decision to vacate an arbitrator's award, we defined the scope of judicial review applicable when, as part of an unlimited submission to arbitration, the parties have empowered the arbitrators to decide the question of arbitrability. "The scope of judicial review of an arbitration award is limited by statute and by the contractual agreement between the parties. Where by the parties' agreement the question of arbitrability is clearly committed to the arbitrator for determination, the court is bound by the arbitrator's determination unless that determination clearly falls within the proscriptions of § 52-418 of the General Statutes, or procedurally violates the parties' agreement." (Emphasis added.) Id. It is not entirely clear that the Costello court intended by the italicized phrase that the scope of review for procedural issues be enlarged beyond that prescribed by § 52-418, 5 because the court ultimately found that the trial court had erred in overturning the arbitrator's determination of a procedural issue in that case which also had involved timeliness. Later cases, however, have repeated the statement in Costello referring to procedural violations of the contract as grounds for upsetting an award in addition to those specified by § 52-418. O & G/O'Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 146, 523 A.2d 1271 (1987); Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 62-63, 357 A.2d 466 (1975). The Appellate Court in the case at bar viewed the Costello decision as expanding the scope of review by the Superior Court beyond that defined in § 52-418. "A trial court's review of the arbitrator's decision on arbitrability, however, includes the question of whether the arbitrators' conclusion 'procedurally violates the parties' agreement.' Costello Construction Corporation v. Teamsters Local 559, supra [167 Conn. at], 318 [355 A.2d 279]. We have held that the failure to file a timely grievance is a question of procedure stemming from the agreement itself. See Flynn v. Newington, [2 Conn.App. 230, 235, 477 A.2d 1028, cert. denied, 194 Conn. 804, 428 A.2d 709 (1984) ]. The trial court, therefore, had the authority to substitute its finding that the grievance was not filed until March 26, 1982, for the arbitrators' finding. Since the grievance was late, the court concluded that arbitration of the merits was precluded. We conclude that the trial court did not exceed its scope of review and properly vacated the award rendered in favor of the union." East Hartford v. East Hartford Municipal Employees Union, Inc., supra, 10 Conn.App. 617-18, 525 A.2d 112.

Relying upon the Costello pronouncement and its progeny, the town contends that our courts should employ a different standard of review for an arbitrator's procedural determinations than for his substantive ones. Section 52-418, however, defines the statutory grounds upon which a court may vacate an arbitrator's award and cannot be construed to create any distinction in the standard of review applicable to his decision of procedural as opposed to substantive questions. In the absence of a legislative directive, we are not inclined in this instance to enlarge the grounds for upsetting voluntary arbitration awards beyond those prescribed by the statute. 6 Accordingly, we overrule the statement in Costello implying that the review of the procedural determination of an arbitrator is not restricted by the criteria established by § 52-418. For this conclusion we rely not only upon our interpretation that the statute was intended to include all of the grounds the legislature regarded as justifying the vacating of an award but also upon the great weight of authority, which has rejected any distinction between procedural and substantive determinations in defining the scope of judicial review of arbitration...

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