City of New Britain v. AFSCME, COUNCIL 4, 304 Conn. 639

City and AFSCME negotiated a 2003–2008 collective bargaining agreement.
Arbitration clause in §14.9(F) provided arbitration for upgrades unresolved in negotiations; MOU stated arbitration would NOT be used to redress all upgrades not resolved in negotiations.
In 2006 upgrades were negotiated for some employees; foremen were not upgraded; subordinate employees were.
A settlement on Sept. 8, 2006 allowed a grievance on foremen pay to be filed directly to arbitration, while preserving nonarbitrability defenses.
Arbitration proceeded in two phases, with the board ruling arbitrable and then applying civil service 5% rule; plaintiff sought to vacate under §52-418(a)(4).
Appellate Court affirmed trial court; CT Supreme Court reversed, granting vacatur of the award.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Who has primary authority to decide arbitrability?	Plaintiff contends court—not arbitrator—must decide arbitrability.	Defendant contends settlement granted arbitrators authority to decide arbitrability.	Parties did not clearly vest arbitrators with sole arbitrability authority; court has primary authority.
Was arbitrability preserved or waived by conduct?	Plaintiff preserved nonarbitrability defense; did not waive by arbitration initiation.	Defendant argues settlement authorized arbitrability decision.	Plaintiff preserved nonarbitrability defense; no waiver to bar de novo review.
Did the memorandum of understanding clearly exclude arbitration of foremen pay?	MOU expressed arbitration not to be used for upgrades unresolved in negotiations, including foremen.	MOU limited scope; settlement could still permit arbitration of the foremen issue.	MOU expressly barred arbitration of upgrades not negotiated; foremen issue falls within that exclusion.
Did the settlement agreement alter the parties' arbitration rights?	Settlement did not modify the MOU's nonarbitrability, preserving right to raise nonarbitrability.	Settlement granted right to file grievance directly to arbitration on foremen issue.	Settlement did not extinguish nonarbitrability defense; arbitration could not be compelled.

MBNA America Bank, N.A. v. Boata, 283 Conn. 381 (2007) (arbitration consent and de novo review standards)
White v. Kampner, 229 Conn. 465 (1994) (positive assurance test framework for arbitrability)
Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695 (2010) (preservation vs waiver in arbitrability review; three-step framework)
United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960) (positive assurance test governing arbitration coverage)
Wallingford v. Wallingford Police Union Local 1570, 45 Conn.App. 432 (1997) (language indicating broad arbitration scope and arbitrability)
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (heightened clarity for arbitrability delegation to arbitrators)