East Hartford v. East Hartford Police

Full title: TOWN OF EAST HARTFORD v. EAST HARTFORD POLICE OFFICERS' ASSOCIATION

Court: Connecticut Superior Court, Judicial District of Hartford at Hartford

Date published: Feb 23, 2005

2005 Ct. Sup. 3142 (Conn. Super. Ct. 2005)

38 CLR 814

Opinion

No. CV 04 4005647 S

February 23, 2005

MEMORANDUM OF DECISION

BEACH, JUDGE.

Labor relations between the plaintiff town of East Hartford ("town") and its police officers, who are represented by the defendant East Hartford Police Officers' Association ("union"), are governed, not surprisingly, by a collective bargaining agreement. In this action, the town seeks a temporary injunction prohibiting arbitration of an underlying grievance, on the ground that the union failed to file a request for arbitration with the State Board of Mediation and Arbitration in a timely manner and thus was bound by the decision at the prior step of the grievance process.¹

1 By agreement of the parties, the court has been asked to resolve only the first count of the amended complaint dated January 10, 2005. This court seeks the temporary injunction.

The facts underlying the timeliness of the process are largely, though not entirely, undisputed. The subject of the grievance is whether certain procedures required when extending the time of an internal affairs investigation were followed. The subject matter of the grievance is itself immaterial to the present dispute. The timing of the various procedures is not immaterial, however, and the contract provisions concerning timing are as follows.

The grievance procedure is governed by Article XXIII of the collective bargaining agreement, which agreement was introduced in the hearing on February 8, 2005, as Exhibit 1. Step one² of the process requires an employee who has a grievance to present it to the chief or his designee within ten days of the event complained of. The chief or his designee is to render a decision in writing within fourteen days of receipt. If the employee is dissatisfied, he or she may proceed to Step Two. There is no claimed infirmity in the Step One phase of the grievance in question here.

2 See Art. XXIII, § 3 of the Agreement.

As to Step Two,³ the grievant has ten days from receipt of the Step One decision to present the grievance to the town's personnel director, or his designee, who has ten calendar days to meet with the parties, " and, in any case, shall render his decision in writing within fifteen (15) calendar days of the receipt of the grievance." If this decision does not resolve the dispute, then the process moves to the next step.

3 See Art. XXIII, § 4 of the Agreement.

Step Three allows for mediation by agreement, which is not relevant here. Step Four involves arbitration by the state board. If unsatisfied with the outcome of Step Two, either party may request arbitration "within fifteen (15) calendar days following a decision . . . at the preceding step."⁴

4 See Art. XXIII § 6 of the Agreement.

The final relevant provisions of the agreement are that a failure on the part of an East Hartford representative to act within the prescribed time limit shall be deemed a denial of the grievance " on the last day allowed for such action by the representative of the Town," and failure by the union or the grievant to proceed to the next level within the prescribed time limit shall constitute acceptance of the decision rendered at the last step. "However, all time limits expressed herein may be waived by mutual written agreement." ⁵

5 See Art. XXIII § 6(f) of the Agreement.

The grievance in the instant matter was presented to the chief on November 26, 2003, and was denied by him on December 8, 2003. The union president, Frank Mormino, presented the grievance to Steven Bielenda, the town's personnel director, on December 9, 2003. Because of the holidays and other scheduling difficulties, Bielenda did not hear the parties until January 21, 2004. This postponement, though not in writing, was by mutual agreement and was consistent with the informal practice of the parties.⁶

6 Hypertechnically, the failure to reduce the agreement to postpone the meeting with Bielenda to writing could be viewed as resolving the dispute. If the postponement was not in writing, then the town had the obligation to hold the hearing by no later than December 19, and to render a decision by no later than December 24. The time for the town to act expired before any action occurred, but again, hypertechnically, the town had failed to act by December 24, and the failure would constitute a denial of the grievance. The union would then have until January 8, 2004 (fifteen days after the town's time to act expired) to file its arbitration claim. The claim was not filed until March 12, 2004. Neither side has urged this analysis, because both sides have proceeded more informally in regard to the scheduling and postponing process, in order to accommodate their schedules and to allow for representation by counsel if appropriate. I, then, will not adopt this analysis, though it conceivably could be the intent of the drafters of the collective bargaining agreement that such would be the result. Had the parties in this instance agreed in writing to a postponement of the Step Two meeting and to a specific postponement of the time in which a decision was required, this dispute would not be here.

Bielenda usually rendered decisions within fifteen days of the time he heard the parties. In this instance, however, he did not render a decision. In the course of a telephone call sometime after the hearing but before the union filed for arbitration, Bielenda told the attorney for the union that he (Bielenda) was not going to issue a decision but instead was relying on the contract, that is, in effect denying the grievance by inaction. The union then filed a request for arbitration with the state board. A first hearing at the board was scheduled and then postponed; this action for injunctive relief was filed after the time the arbitration was first scheduled to be held but before the second date that the arbitration was scheduled to be heard.

The question to be resolved is whether, in the circumstances presented, the union effectively waived its right to proceed to arbitration because the town's inaction constituted a denial more than fifteen days prior to the union's demand for arbitration.

The parties seem to agree that the issue presented is appropriately resolved by the court rather than by the arbitrator. The agreement specifically provides that the authority of the arbitrator is limited to the application of the agreement and that "nothing in this Agreement shall be interpreted so as to limit the authority of the Superior Court to determine the question of arbitrability."⁷ Parties generally, of course, may be forced to arbitrate only what they have agreed to arbitrate; see, e.g., Plainfield v. State Board of Mediation and Arbitration, 15 Conn.App. 450, 454 (1988).

7 Article XXIII § 6(b) of the Agreement.

The standards for granting a temporary injunction are a matter of black letter law and are not in dispute. In order for a temporary injunction to issue, the proponent must show (1) a reasonable degree of the probability of success on the merits of the injunction; (2) irreparable harm with no adequate remedy at law; (3) a favorable balancing of the equities involved. See, e.g., Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 457-58 (1985); Waterbury Teachers Ass'n. v. Freedom of Information Commission, 230 Conn. 441, 446 (1994). To my mind, the first issue, probability of success on the merits, is the most problematical.

Collective bargaining agreements are, in essence, contracts, and, subject to several special considerations applicable to labor contracts, are construed according to usual principles applied to contract construction. See, e.g., Waterbury Teachers Assn. v. Freedom of Information Com'n., 42 Conn.App. 700, 711 (1996); White v. Kampner, 229 Conn. 465, 473-74 (1994); Charette v. Waterbury, 80 Conn.App. 232, 241 (2003). "The traditional rule requiring that courts consider the intentions of both parties in construing a contract is well settled . . . This rule allows parties to enter into contractual arrangements with the confidence that they subsequently will not find themselves legally bound to unknown or unanticipated obligations." (Citations omitted.) Grigerik v. Sharpe, 247 Conn. 293, 311 (1998).

The town relies primarily on the testimony of Mr. Bielenda, who said that he had uniformly rendered his decisions within fifteen days. He believed that after a Step Two hearing was postponed by agreement, such that the time limitations of the collective bargaining agreement could no longer literally apply, he then thought that he had fifteen days within which to render a decision. He did not point to contract language which expressly compelled that conclusion, but he noted that fifteen day limitations appeared to apply to closely analogous situations. The town's position appears to be that the customary practice of the parties supplies a workable interpretation of the agreement, which the parties have in effect intended to adopt through practice.

Although the use of customary practice is not foreign to the interpretation of collective bargaining agreements; see, e.g., Elkouri Elkouri, How Arbitration Works, 6th Ed., 623 et seq., ch. 12, § 6; the union argues that the facts in this case do not logically lead to a conclusion that the time for the personnel director to act expired fifteen days after he heard a matter and that the union's time in which to request arbitration began to run at that time. Bielenda testified that he had no memory of having specifically communicated that understanding to a union official or representative, and Frank Mormino, the union president, testified that he was unaware of any such understanding. Further, the evidence showed that the town, acting through Bielenda, had taken the position in a reasonably similar situation in 2002 that there was no such time limit.

The union, on the other hand, argues that there is no time limit in a situation where the hearing has been postponed by agreement but there is no agreement as to the time in which a decision must be issued. In such a case, a decision can be compelled by principles requiring good faith execution of the collective bargaining agreement; or, after the passage of some time, the union can simply file for arbitration. Either way, according to the union, the temporary injunction ought not to be issued, because either there has not yet been an effective denial of the grievance at the Step Two level, and thus the "appeal" period has not yet begun to run, or the March 12 filing was in fact timely.

There are difficulties with both interpretations, and I do not adopt either position entirely. It seems to be inescapable that the collective bargaining agreement simply does not anticipate the situation where the Step Two meeting is specifically postponed by agreement, such that the express language in the collective bargaining agreement regarding timing is inapplicable, but no agreement between the parties is reached as to what date the personnel director's decision is due. I also find that the practice and custom of the parties has not been such that the parties intended to functionally agree to a fifteen-day time limitation on the personnel director's issuing decisions. `Where a contract is silent as to a time limitation, a reasonableness standard is applied:

"Where no time for the performance of a contract is contained within its terms, the law presumes that it is to be performed within a reasonable time. Texas Co. v. Crown Petroleum Corporation, 137 Conn. 217, 227, 75 A.2d 499 [1950]; Santoro v. Mack, 108 Conn. 683, [689-90], 145 A. 273 [1929]; Benassi v. Harris, 147 Conn. 451, 458, 162 A.2d 521 (1960); see also Central New Haven Development Corporation v. La Crepe. Inc., 177 Conn. 212, 216, 413 A.2d 840 (1979). What is a reasonable length of time is ordinarily a question of fact for the trier. International Tool Gauge Co. v. Borg, 145 Conn. 644, 648, 145 A.2d 750 [1958]; Loomis v. Norman Printers Supply Co., 81 Conn. 343, 347, 71 A. 358 [1908]; Parkway Trailer Sales. Inc. v. Wooldridge Bros., Inc., 148 Conn. 21, 26, 166 A.2d 710 (1960) . . . Martin v. Martin's News Service. Inc., 9 Conn.App. 304, 308-09, 518 A.2d 951 (1986), cert. denied, 202 Conn. 807, 520 A.2d 1287 (1987)." (Internal quotation marks omitted.) Schlicher v. Schwartz, 58 Conn.App. 80, 86, 752 A.2d 517 (2000).

Putnam Park Assoc. v. Fahnestock Co., 73 Conn.App. 1, 11 (2002).

What, then, is a reasonable time, on the facts presented, for Mr. Bielenda to have issued a decision, with the understanding that such a time may also limit the union's ability to pursue arbitration? I am guided to a degree by considerations favoring arbitration of labor disputes; see Policemen's and Firemen's Retirement Board v. Sullivan, 173 Conn. 1, 9-10 (1977); and by the more general notion favoring decisions on the merits rather than by default. With these understandings, and reading the collective bargaining agreement as a whole, I find that the facts of this case compel the conclusion that it was reasonable for the union to wait at least several weeks for the decision of Mr. Bielenda, and then to file for arbitration at least within several weeks of discovering that he did not intend to write a decision. Though the town is not unreasonable is asserting a fifteen-day limit, and such may well be consistent with much of the collective bargaining agreement, there is nothing to suggest that the town's understanding was fully shared by the union. In the circumstances, then, I find that the demand for arbitration is likely to have been timely filed, and the element of probability of success on the merits does not favor the town.

In the circumstances presented, I find that the other elements to be considered are not as critical. Despite the union's remonstances, I do believe that, in the circumstances, proceeding to arbitration would constitute irreparable injury to the town if it had showed that it had not agreed to proceed to arbitration. It is true that City of Hartford v. American Arbitration Ass'n., 174 Conn. 472 (1978), clarified somewhat the application of Policemen's and Firemen's Retirement Board v. Sullivan, supra, but in the facts of this case I believe that irreparable harm and the absence of an adequate remedy at law were sufficiently proven. And the consideration of balancing the equities does especially favor either side.

I find, then, that the town has not met its burden as to the element of probability of success on the merits and has not met its burden as to Count One of the complaint. The request for the temporary injunction is denied.

Beach, J.