405 A.2d 84 | Conn. Super. Ct. | 1978
The two plaintiffs, who were police officers of the defendant city of Shelton1 (hereinafter Shelton), brought this action against Francis X. Kelley (hereinafter Kelley) as the chief executive officer of Shelton and against George F. Regan (hereinafter Regan) as chief of the police department of Shelton. This action arose out of the dismissal of the plaintiffs from the Shelton police department. In their complaint, they seek a writ of mandamus ordering the defendants "to obey and implement the decision of the Public Employees Appeals Board [hereinafter PEAB] by reinstating the Plaintiffs . . . to their positions as police officers in the City of Shelton Police Department." The trial court ordered that a writ in the nature of *647 mandamus issue requiring the defendants Kelley and Regan to obey the decision of the PEAB. The defendants have appealed from that judgment.2
The finding discloses the following facts: The defendant Kelley was the duly elected chief executive officer of Shelton and the defendant Regan was the duly appointed chief of police of Shelton. Prior to December 19, 1975, both plaintiffs were employed as police officers in the police department of Shelton. On December 19, 1975, the plaintiffs were dismissed from the police department by the defendant Regan for making contributions to a political party in violation of 9.42 of the Shelton city charter, and in violation of article 134 of the Shelton city ordinance entitled, "Personnel Rules and Merit Systems." Later that same day the plaintiffs began the first step of the grievance procedure provided under a collective bargaining agreement5 then in effect between Shelton and Teamsters Local Union No. 145 by filing labor grievance number 41 alleging violation *648 of the union contract. The grievance procedures which are set out in that collective bargaining agreement are still in effect. On December 27, 1975, Regan instituted the second step of the grievance procedure by denying the grievance filed by the plaintiffs. Thereafter, the only remaining step of the grievance procedure under the collective bargaining agreement was the referral of the grievance to the Connecticut board of arbitration and mediation. On January 6, 1976, the plaintiffs withdrew labor grievance number 41.
The plaintiffs then filed an appeal with the PEAB, which was established by 5.3.3.6 of the Shelton city charter. Pursuant to 5.3.3, the decision of the PEAB is final unless within ten days of the receipt of the decision the mayor shall submit a different decision in writing to the PEAB, in which event the decision of the mayor shall be final unless within ten days the PEAB shall reaffirm its original decision in writing after the affirmative vote of at least four of its members. On January 7, 1976, the PEAB heard the appeal of the plaintiffs from their dismissal, and, at its meeting on that date, it voted to order the reinstatement of the plaintiffs. On *649 January 19, 1976, Kelley, as mayor of Shelton, was officially notified of the PEAB's decision and, within ten days of this notification, he issued a decision different from that rendered by the PEAB. On January 30, 1976, the PEAB voted to reaffirm its original decision to reinstate the plaintiffs to their positions as members of the Shelton police department. On January 31, 1976, Kelley was notified of the PEAB's reaffirmation of its decision. On or about February 1, 1976, the plaintiffs requested that the PEAB's decision be effectuated immediately and that they be reinstated. Kelley and Regan refused to implement the PEAB's decision. The plaintiffs followed all of the required procedural steps in a timely fashion.
In their assignment of errors the defendants attack the trial court's conclusions as not supported by the facts found.7 The conclusions of the court are to be tested by the findings and not by the evidence. Weingarten v. Allstate Ins. Co.,
At oral argument and in their brief, the defendants set forth three arguments in support of their *650 position: (1) The trial court had no jurisdiction over the subject matter of the action; (2) 5.3.3 of the Shelton city charter, providing for the creation of the PEAB, is invalid because it is in conflict with the General Statutes; and (3) the trial court abused its discretion in granting the writ of mandamus that the plaintiffs requested.
The plaintiffs claim that the controversy bringing about their dismissal was not a "grievance" as defined in the contract and that state law prohibits any municipal charter provisions concerning political activity by municipal employees from being the subject of collective bargaining, which law, they *651 claim, the contracting parties must be presumed to have had in mind. The plaintiffs go on to assert that inasmuch as the political activity prohibition was not properly a part of the collective bargaining agreement, any alleged violations of it could not constitute a breach of the agreement. Consequently, they conclude that their subsequent attempts to vindicate their legal rights did not have to be pursued through the grievance procedure described in that agreement.
Under certain portions of chapter 113 of the General Statutes, collective bargaining between a municipality and its employees is provided for. General Statutes
Section 9.4 of the Shelton city charter prohibits political activity, an activity which cannot be the subject of collective bargaining under the enabling statutes that permit collective bargaining agreements between a municipality and its employees. Therefore, the plaintiffs' dismissal for alleged political activity in violation of the charter cannot be construed as a grievance that was required to be subjected to binding arbitration as provided for in the collective bargaining agreement. This case cannot be said to come within the rule that specific designation of arbitrable matters is unnecessary where the language of the arbitration clause indicates an intention of the parties to include all controversies which may arise under the principal agreement between them. A. Sangivanni Sons v. F. M. Floryan Co.,
General Statutes
Section 5.3.3 of the charter is also consistent with the statutes in that the appeals board created by it could also have been created pursuant to
The defendants' claim that the trial court abused its discretion in granting a writ of mandamus requires an examination of the nature of that remedy. "`The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy.'" State ex rel. Golembeske v. White,
The plaintiffs have a clear legal right against the defendants Kelley and Regan to have the final *658
decision of the PEAB implemented. This decision of the PEAB was final and binding and its implementation by the defendants Kelley and Regan was purely ministerial, involving no discretion on their part. The writ of mandamus gave the plaintiffs no right they did not already have. Boyko v. Weiss,
Since the conclusion we have reached is adequate for the disposition of this appeal, we shall not consider the question, never raised by the parties, of whether the plaintiffs had the right to appeal their dismissals to the PEAB despite the existence of the collective bargaining agreement, which provides a grievance procedure with ultimate resort to arbitration at the request of the local union or the employer, but not of the employee. Section 5.3.3 of the Shelton city charter authorizes appeals by any employee of the city `[s]ubject to the provisions of any applicable collective bargaining agreement." As previously mentioned,
There is no error.
In this opinion PARSKEY and D. SHEA, Js., concurred.