10 Conn. App. 611 | Conn. App. Ct. | 1987
This is a combined appeal by the defendants, an employee and two unions, from the judgments of the trial court, which vacated an arbitration award rendered in favor of Diane Sherriffs Fontanella (employee), a mémber of the East Hartford Municipal Employees Union, Inc. (union) and of the Civil Service Employees Affiliates, Inc. (CSEA). The defendants claim in two separate but identical appeals that the trial court exceeded its scope of review by substituting its factual findings for those of the state board of mediation and arbitration and holding that the employee’s grievance was untimely filed. We find no error.
The plaintiff filed a cross appeal in each case setting forth four alternative grounds to sustain the trial court’s decision. While these cross appeals are not properly before this court,
Prior to addressing the merits of the defendants’ appeals, we note that neither the employee nor the CSEA is a proper party to these appeals. Article 13.0, step 5, of the working agreement between the plaintiff and the union provides “the Union may submit the dispute ... to arbitration by the Connecticut State Board of Mediation and Arbitration . . . . ” The agreement does not specifically authorize an employee to seek arbitration. We have clearly stated that “[ujnless a collective bargaining agreement provides for a personal right to seek arbitration ... an employee subject to the agreement is not a ‘party to the arbitration’ under General Statutes § 52-417
An examination of the agreement in this case reveals that only the union may submit the dispute to arbitration and provides no similar personal right for the employee. Hence, the employee is not a proper party to these proceedings. Furthermore, while the CSEA has enjoyed a working relationship with the plaintiff for many years as agent for the union,
In August, 1981, the employee took a promotional examination for a job as a caseworker in the social services department. As a result, she was offered and accepted the position. According to § 34.1 (a) and (b) of the town’s personnel rules and merit system, employees must serve a three month period of probation when granted promotional appointments. An extension of up to two months of that period may be granted by the personnel director upon request by the particular department head. In late October, 1981, the director of social services sought a two month extension of the probationary period citing a need for additional supervisory and observation time. The employee objected in writing to both the director of social services and the town personnel director. The personnel director extended the probationary period for one month commencing November 10,1981. By letter dated November 19, 1981, the employee was informed that her employment as a caseworker was terminated due to unsatisfactory work. A second letter informed her of the availability of her prior position. The employee, however, had previously indicated that she did not wish to return to that position. By letter dated November 23, 1981, the deputy chief of the police department informed the employee that failure to resume her former position with the police department would result in complete severance from employment by the town.
On December 21,1981, the employee filed a written complaint with the personnel director. Since she was
On appeal, the trial court vacated the award, finding that the termination was final on November 23, 1981, and finding that no grievance had been filed until March 26,1982, well beyond the thirty day time limit set forth in article 13.3
Arbitration is peculiarly a creature of contract, and the parties, by drafting and agreeing to the submitted contract, vest certain authority in the arbitrators. See generally Local 63, Textile Workers Union v. Cheney Bros., 141 Conn. 606, 613, 109 A.2d 240 (1954), cert. denied, 348 U.S. 959, 75 S. Ct. 449, 99 L. Ed. 748 (1955). Since the parties themselves grant power to and draw limits for the arbitrators, they are strictly bound by the limits they have set. Norwich R. C. Diocesan Corporation v. Southern New England Contracting Co., 164 Conn. 472, 476, 325 A.2d 274 (1973); Wolf v. Gould, 10 Conn. App. 292, 297, 522 A.2d 1240 (1987).
Judicial review of an arbitration award is stringently limited by statute and confined to examining the parameters of the contractual agreement between the parties. If the agreement specifies that the issue of arbitrability is within the purview of the arbitrator, the
The specific clause in a collective bargaining agreement relating to the question of arbitrability is separate and distinct from the remainder of the agreement. The parties may empower the arbitrators to make legal and factual conclusions. This can include interpreting the provisions of the agreement specifically applicable to the dispute under consideration. This does not mean, however, that the arbitrators are automatically authorized to determine the threshold question of arbitrability. Whether the parties have submitted the question of arbitrability to arbitration, as well as the merits of the dispute, depends upon the intention manifested in the agreement. A party has no obligation to submit any issue to arbitration unless it chooses to do so. Thus, unless specifically granted to the arbitrators, the issue of arbitrability lies with the court. The court must also
Initially, we must decide if arbitrability was to be determined by the arbitrators in this case. Our Supreme Court has stated that the “intention to have arbitrability determined by an arbitrator can be manifested by an express provision or through the use of broad terms to describe the scope of arbitration, such as ‘all questions in dispute and all claims arising out of the contract or ‘any dispute that cannot be adjudicated.’ ” Board of Education v. Frey, 174 Conn. 578, 581, 392 A.2d 466 (1978).
We are convinced that the question of arbitrability was submitted to the arbitrators by the broad language of article 13.0 of the contract. That portion of the collective bargaining agreement provides: “Grievances arising out of matters covered by this Agreement and disputes and consultations of any questions arising out of the employer-employee relationship will be processed in the following manner . . . . ” This is essentially the same broad, all inclusive language that our Supreme Court held, in Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 105, 438 A.2d 1171 (1981), was intended to submit the question of arbitrability to the arbitrators. Thus, the question of arbitrability was properly before the arbitrators.
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, 318. We have held that the failure to file a timely grievance is a question of
We conclude that the trial court did not exceed its scope of review and properly vacated the award rendered in favor of the union. In view of our holding, it is unnecessary to consider the plaintiff’s alternate grounds to sustain the decision of the trial court.
There is no error in the first case (4657); the appeal in the second case (4760) is dismissed.
In this opinion the other judges concurred.
The proper procedure for the plaintiff, as appellee, was to file a preliminary statement of issues within fourteen days of the filing of the appeal. Practice Book § 4013 (a) (1) (formerly § 3012 [a]).
General Statutes § 52-417 provides in part: “[A]ny party to the arbitration may make application ... for an order confirming the award
General Statutes § 52-418 (a) provides in part: “Upon the application of any party to an arbitration . . . any judge . . . shall make an order vacating the award if he finds any of the following defects . . . .”
When this court raised the issue of the appellate standing of CSEA at oral argument, all the parties represented to us that they considered the union and CSEA to be one and the same for collective bargaining purposes, and that they considered CSEA to be the bargaining agent for the union. They also conceded, however, that the two are separate entities, as is apparent. The fact that they consider themselves to be one and the same, or one as the agent of the other for collective bargaining purposes, is not sufficient to make them such for purposes of subject matter jurisdiction in this court.
Article 13.3 of the working agreement provides in pertinent part: “Employee grievances must be indicated no later than thirty (30) days following the date of the incident giving rise to the alleged grievance . . . .”
The defects which merit vacating an award are delineated in General Statutes § 52-418 (a) as follows: “(1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (S) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”