215 Conn. 14 | Conn. | 1990
The dispositive issue in this appeal is whether a court has subject matter jurisdiction to entertain a contract action arising out of a provision of a collective bargaining agreement that has not been grieved when the parties have exhausted applicable grievance procedures relating to a different provision of the agreement. The plaintiff police officers, having been bypassed for promotion to the rank of lieutenant in the police department of the defendant city of Hartford, brought a breach of contract action against the defendant alleging that the promotional process violated the collective bargaining agreement that had been negotiated between their union and the defendant.
The lengthy procedural background of this action began when the trial court, O’Neill, J., directed a verdict in favor of the defendant and the plaintiffs appealed. The Appellate Court, in Daley v. Gaitor, 16 Conn. App. 379, 390, 547 A.2d 1375, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988), determined that the interpretation of the collective bargaining agreement
The history of this case depicts a regrettably convoluted “nine year saga.” For present purposes, it is necessary only to recite the factual background relating to the specific grievance filed on behalf of the plaintiffs by their union and the inferences from those grievance procedures that the trial court drew upon remand from the Appellate Court.
The plaintiffs are present and former sergeants in the Hartford police department who applied for the position of lieutenant in 1981. Each had attained a score of at least seventy-six on the written examination, the minimum necessary to proceed to the oral examination. Subsequent evaluation of the written test results, however, revealed an adverse impact on minority candidates as measured by the federal Uniform Guidelines on Employee Selection, 29 C.F.R. § 1067 et seq. The
Because of the provisions of General Statutes §§ 7-467 through 7-477, the collective bargaining agreement between the International Brotherhood of Police Officers, Local 308 (union) and the defendant governed the plaintiffs’ employment relationship with the defendant. Section 3.3 of the collective bargaining agreement incorporated the defendant’s personnel rules and regulations. Article II of the agreement provided a four step procedure for the resolution of employment grievances and disputes. The agreement authorized any individual employee to pursue a claim through the first three steps of the grievance procedure, but reserved to the union the discretion to determine whether a grievance would be pursued to the fourth step, the state board of mediation and arbitration.
In accordance with the terms of the collective bargaining agreement, the union filed a fourth step griev
Because this stipulation of the nonarbitrability of the union’s grievance forms the fulcrum upon which the threshold question of subject matter jurisdiction rests, it is significant to note what it left unstated. The stipulation does not reveal the underlying basis for the parties’ agreement that the grievance was nonarbitrable. The parties now disagree about the significance of that omission. There can be no dispute, however, about the fact that § 3.3, the provision delineating applicable personnel rules and regulations, was not one of the specific terms of the collective bargaining agreement submitted by the parties for arbitration. Moreover, the union has never grieved a violation of § 3.3 of the collective bargaining agreement on behalf of the present plaintiffs.
The plaintiffs’ first trial proceeded on a theory of breach of contract, not specifically relying upon § 3.3 as a basis for the defendant’s liability, which was rejected by the Appellate Court.
The trial court denied the defendant’s motion to dismiss for lack of subject matter jurisdiction. The court held that “the substance of the plaintiffs’ claim has been consistent from the outset and the City certainly was aware of the nature of the claim being asserted. Therefore, it is reasonable to conclude that the [defendant’s] position was that the substance of the plaintiffs’ claims, as opposed to the section of the contract upon which
The defendant has renewed its jurisdictional claim in the present appeal.
The plaintiffs concede both their failure specifically to grieve § 3.3 of the collective bargaining agreement and their reliance on this provision in the retrial of their breach of contract claim. They nonetheless contend that the nonarbitrability stipulation should necessarily excuse any technical failure to exhaust their contrac
It is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement between the" defendant and the plaintiffs’ union. Vaca v. Sipes, 386 U.S. 171, 184, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); Republic Steel Corporation v. Maddox, 379 U.S. 650, 652, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965); Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 500, 522 A.2d 264 (1987); School Administrators Assn. v. Dow, supra, 381-82. The threshold question before us is whether, in this case, the defendant’s stipulation of nonarbitrability may be construed as sufficiently expansive to excuse the plaintiffs’ failure to exhaust their contractual remedies with respect to § 3.3 of the collective bargaining agreement. Well established principles governing the arbitration of labor disputes, however, counsel against such an expansive interpretation.
In the same way that the provisions of the collective bargaining agreement strictly limit the authority to arbitrate; North Haven Assn. of Educational Support Staff v. Board of Education, supra, 283; Board of Education v. AFSCME, supra, 271; Board of Police Commissioners v. Maher, 171 Conn. 613, 621, 370 A.2d 1076 (1976); so the agreement between the parties necessarily limits the scope of judicial review. Hartford v.
The plaintiffs suggest, however, that, whatever the scope of the arbitration might originally have been, the effect of the stipulated agreement of nonarbitrability was to relieve them of any further obligation to exhaust contractual remedies concerning provisions of the collective bargaining agreement, such as § 3.3, that are inferentially related to those that had been grieved. In pressing this contention, the plaintiffs maintain that we should focus on the omission in the stipulation of the grounds upon which the parties agreed that the grievance was nonarbitrable, rather than upon the submission itself. The plaintiffs assert that the gravamen of their grievances was their complaint about the fairness of the defendant’s promotional process, rather than the applicability of particular provisions of the collective bargaining agreement. In the light of this shared understanding about what was at issue, and the fact
This argument might have some merit were it not for the fact, emphasized by the defendant, that the untimely filing of the plaintiffs’ grievance presented the primary procedural impediment to the arbitrability of the grievance. The plaintiffs do not contend that the filing of an untimely grievance serves as compliance with the exhaustion requirement. The present record compels the conclusion that the stipulation of nonarbitrability arose out of the plaintiffs’ own delay in pursuing their grievance rather than out of an agreement about the merits of their underlying controversy with the defendant. The trial court therefore improperly relied upon the nonarbitrability stipulation as a basis for enlarging the terms of the submission and as an excuse for the plaintiffs’ failure to exhaust their contractual remedies with respect to § 3.3.
Our conclusion that the plaintiffs’ failure specifically to grieve § 3.3 would ordinarily deprive the trial court of subject matter jurisdiction does not, however, end their appeal. The plaintiffs maintain, in the alternative, that application of the principles of finality and law of the case requires us to hold that, in this case, the defendant has become estopped to avail itself of this jurisdictional claim of error. Although the plaintiffs concede that subject matter jurisdiction may be raised at any time and the lack thereof can neither be waived; Meinket v. Levinson, 193 Conn. 110, 114, 474 A.2d 454 (1984); Vogel v. Vogel, 178 Conn. 358, 362, 422 A.2d 271 (1979); nor conferred by consent; Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985); they assert that the defendant’s jurisdictional claim must fall to “[t]he modern rule on conclusiveness of
The plaintiffs assert that because the defendant failed to utilize its full opportunity to litigate its jurisdictional claim prior to the Appellate Court’s remand for a new trial, its challenge to the exercise of the court’s jurisdiction upon remand functionally amounts to a collateral attack upon the Appellate Court’s judgment. Since this court “strongly disfavor[s] collateral attacks upon judgments because such belated litigation undermines the important principle of finality”; Meinket v. Levinson, supra, 113; Vogel v. Vogel, supra; see also Convalescent Center of Bloomfield, Inc. v. Department of Income Maintenance, 208 Conn. 187, 200, 544 A.2d 604 (1988); the plaintiffs contend that the defendant has forfeited its right to mount a jurisdictional challenge to the plaintiffs’ cause of action. The plaintiffs further maintain that, given the defendant’s failure to pursue a jurisdictional defense in the original action, or before the Appellate Court, no strong public policy reasons operate to afford the defendant a second opportunity to do so. Moreover, because the mandate of the Appellate Court significantly determined the course to be pursued in the trial court on remand; Hartford National Bank & Trust Co. v. Tucker, 195 Conn. 218, 220, 487 A.2d 528, cert. denied, 474 U.S. 845, 106 S. Ct. 135, 88 L. Ed. 2d 111 (1985); the plaintiffs urge us to hold that the defendant is bound by the law of the case and is therefore estopped from asserting a jurisdictional defense at this late juncture. We disagree that the principles that govern either finality or the law of the case foreclose the defendant’s jurisdictional claim in the circumstances presently before us.
This court has often stated that the question of subject matter jurisdiction, because it addresses the basic
We decline to view an order remanding a case for a new trial as a final judgment for the purposes of the principle of finality. See State v. Malkowski, 189 Conn. 101, 105, 454 A.2d 275 (1983); cf. Armac Industries, Ltd. v. Citytrust, 203 Conn. 394, 401-403, 405, 525 A.2d 77 (1987). We are equally unpersuaded that the law of the case stands as an obstacle to inquiry into judicial competence to act. “The law of the case . . . is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478. In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power.” (Emphasis added.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982); Rosenblit v. Danaher, 206 Conn. 125, 132, 537 A.2d 145 (1988). The present record does not demonstrate that the Appellate Court in fact or in law decided the issue of subject matter jurisdiction. Although the defendant had unsuccessfully moved several times, prior to the Appellate Court’s decision in Daley v. Gaitor, supra, 390, to dismiss the companion case of Daley v. Gaitor,
Finally, we note the public policy interest in the settlement of employment relationship disputes through contract grievance-arbitration procedures, as expressed in the legislature’s enactment of the state Labor Management Relations Act, General Statutes §§ 31-101 through 31-lllb, the Municipal Employee Relations Act, General Statutes § 7-467 et seq., and the arbitration statutes, General Statutes §§ 52-408 through 52-424. See Republic Steel Corporation v. Maddox,
The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendant.
In this opinion the other justices concurred.
The motion to dismiss was first denied by Koletsky, J., because of the defendant’s failure to present evidence to support its factual allegations regarding the exhaustion of remedies. Thereafter, the defendant renewed its jurisdictional claim at trial, with an evidentiary showing, but its motion was again denied by Thompson, J.
Further background information is contained in Daley v. Gaitor, 16 Conn. App. 379, 547 A.2d 1375 (1988).
The collective bargaining agreement expressly provided that Article II did not prohibit the defendant from processing a grievance through the entire grievance procedure up to and including arbitration.
Section 1.7 of the collective bargaining agreement provides: “No Discrimination. The provisions of this Agreement shall be applied equally to all employees in the bargaining unit without discrimination because of age, sex, marital status, race, color, religion, creed, national origin, political affiliation or union membership.”
Section 3.4 of the collective bargaining agreement provides: “Prior Benefits and Practices. Any job benefits or work practices existing prior to the date of this Agreement, which were the subject of any written memoranda or directives issued by the Chief or his Superiors and which are not specifically provided for or abridged in this Agreement, are hereby protected by this contract. This provision shall not preclude the right of the City Manager to make reasonable changes in such work practices and job benefits, provided that no such change shall be made for the purpose of undermining the Union.”
In its denial of the third step grievance, the defendant, for the first time, introduced a third ground for nonarbitrability that neither party has raised as an issue in this appeal. With respect to the subject matter of the grievance, the defendant further contended that “[tjhe matter being grieved, the establishment of a passing score on a written examination for Lieutenant, falls under Section 1.5 Management Rights and as such, is not subject to the grievance procedure.”
Although the plaintiffs’ complaint generally referenced the personnel rules and regulations incorporated into the collective bargaining agreement at § 3.3, and specifically referred to Rule VI, § 3, which provided in perti
The defendant has also renewed on appeal its jurisdictional claim that the plaintiffs lacked standing, as bargaining unit members, to enforce a collective bargaining agreement between the defendant and their union. The trial court, in rejecting this claim, opined that because “the union would be in a situation of conflict of interest in doing so since a successful result in the case at hand necessarily includes taking action which might be prejudicial to the interests of minority officers who are also members of the union ... it would appear only equitable that such employee [whose interests differed from that of the union as a whole] should have standing to enforce his or her rights under a collective bargaining agreement, particularly where the agreement itself does not preclude such action.” The defendant now argues that, in order for the plaintiffs successfully to initiate a breach of contract claim against their employer and to overcome a defense of failure to exhaust their contractual remedies, they must prove that the union breached its duty of fair representation in its handling of the employee grievance. The failure to allege the breach of the duty of fair representation by the union, the defendant asserts, is fatal to the plaintiffs’ complaint. Moreover, the defendant argues that, in view of the exclusive nature of the grievance procedure articulated in the collective bargaining agreement and the
On appeal, the defendant has also raised an insufficiency of the evidence claim. Given our disposition of the threshold question of subject matter jurisdiction, however, it is unnecessary to review this alternate claim of error.
The plaintiffs alternatively contend that General Statutes § 7-474 (g) precluded their submission of § 3.3 for arbitration, and thus their failure
The record reflects no reason why the plaintiffs might not have additionally submitted § 3.3 for arbitration.
In Daley v. Gaitor, which had been consolidated with their breach of contract action at the first trial, the plaintiffs additionally had sought an injunction to restrain city officials from administering the oral examination to any police officer who had not scored in the top 50 percent of those
Even were we to determine, however, that the defendant’s jurisdictional claim was untimely as it had not been explored prior to remand, our resolution of this question would have been no different. Under the restatement guidelines, “[a] subsequent challenge to subject matter jursidiction, when that issue was not actually litigated in the prior action, is authorized only if the litigant can show that ‘the tribunal’s excess of authority was plain or has seriously disturbed the distribution of gpvernmental powers . . . . ’ 1 Restatement (Second), Judgments § 12, comment d; 2 Restatement (Second), Judgments § 69; Vogel v. Vogel, [178 Conn. 358, 362-63, 422 A.2d 271 (1979)].” Meinket v. Levinson, 193 Conn. 110, 114-15, 474 A.2d 454 (1984).