Opinion
No. CV-06-4006814 S
June 23, 2008
MEMORANDUM OF DECISION
The defendant, City of Milford, moves to dismiss the present action claiming that the court lacks subject matter jurisdiction. More particularly, the defendant claims that the plaintiff, a retired Milford firefighter, failed to exhaust his administrative remedies by not following grievance procedures set forth in an applicable collective bargaining agreement (hereinafter "union contract"). The plaintiff objects to the motion asserting that he was not required to file a grievance under the union contract.
The plaintiff commenced the present action against the named defendant and Milford. The plaintiff retired as a firefighter with Milford in 1996, and has been receiving pension benefits under a collective bargaining agreement that was in effect at that time. In 2002, the plaintiff married Yiling Qi. Thereafter, the plaintiff sought to enroll his wife in the health insurance plan provided to him under the union contract with Milford. In accordance with the contract, Milford is required to provide health insurance to retirees and their "enrolled dependants." Milford rejected the plaintiff's claim to enroll his wife in the plan for the reason she was not an "enrolled dependant" at the time of the plaintiff's retirement from the fire department.
The action against the named defendant was dismissed by the court (Esposito, J.) for the reason that the defendant was not a separate legal entity from Milford. Consequently, it was not a proper party to the action.
The collective bargaining agreement in effect at the time of the plaintiff's retirement was between Milford and Local 944 International Association of Firefighters AFL-CIO. Among other things, it provided health insurance for retired employees such as the plaintiff.
The present action ensued. In his complaint, the plaintiff seeks (1) an order of mandamus requiring Milford to enroll his wife in his health insurance plan; (2) a declaratory judgment that under the agreement the plaintiff has the right to enroll his wife in the health insurance plan as a dependent; and (3) compensatory damages based on breach of the union contract.
The present action arises from the plaintiff's claim that his wife is entitled to be enrolled in his health insurance plan based on her status as an "enrolled dependant." The motion to dismiss is premised on Milford's assertion that the plaintiff's claim is fatally defective jurisdictionally because he failed to follow the grievance procedures contained in Article IV A of the union contract.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "The standard governing a trial court's review of a motion to dismiss is well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Davis v. Environmental Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4007475 (January 26, 2007, Tobin, J.). Moreover, it is well established that "the plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423 430 n. 12, 829 A.2d 801 (2003).
Article I of the union contract provides that Milford "recognizes the union as the exclusive representative and sole bargaining agent for all permanent . . . positions within the Milford Fire Department . . ." There is no dispute that at the time of his retirement the plaintiff was a member in good standing of the union and covered under the union contract. Pursuant to Article XXII C of the union contract, Milford "shall provide and pay for [insurance] . . . for all retirees and their enrolled dependants . . ." There is also no dispute that the plaintiff, as a retiree, is entitled to health insurance under the union contract.
The grievance process outlined in the union contract must be adhered to by "[a]ny permanent employee . . . aggrieved concerning wages, hours or conditions of employment, which are controlled by this Contract . . . or concerning any matter or condition arising out of the employer-employee relationship . . ." A grievance must be made by way of a written submission to, in order, the Chief of the Fire Department, Board of Fire Commissioners and the State Board of Mediation and Arbitration. Article IV A.
"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 . . . Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction . . . The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it . . . [I]t would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements." (Citations omitted; internal quotation marks omitted.) Labbe v. Pension Commission, 229 Conn. 801, 811-12, 643 A.2d 1268 (1994).
The plaintiff claims that he is not an employee under the union contract and, therefore, is not subject to the grievance procedure. In support of his claim, the plaintiff refers to Article IV A of the union contract that states that only "permanent employees" who are "aggrieved" are subject to the grievance procedure. Milford contends that Article XII, concerning insurance, and specifically Article XII C pertaining to health insurance for "retirees and their enrolled dependents" subjects retirees such as the plaintiff to the grievance process concerning any claims relating to retirement benefits.
The facts of this case are substantially similar to the facts in Smith v. Pension Retirement Board, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 02 0080150, (July 28, 2003, Cremins, J.), in which the plaintiff, a widow of a retired Milford police officer, brought an action against the defendant for payment of certain pension benefits. The decedent married the plaintiff after he retired from the police force. It was undisputed that the decedent was a retired employee of the City at the time of his death. The plaintiff brought an action seeking increased pension benefits under the collective bargaining agreement and a separate pension agreement between Milford and the police union. The defendant moved to dismiss the action claiming the court lacked subject matter jurisdiction because the plaintiff, standing in the shoes of the decedent, failed to exhaust her administrative remedies by filing a grievance under the collective bargaining agreement. The court denied the motion concluding, among other things, that a retired employee such as the plaintiff's decedent was not required to exhaust the grievance procedures under the applicable collective bargaining agreement before bringing a direct action.
In support of its finding, the court in Smith cited Flynn v. Newington, 2 Conn.App 230, 477 A.2d 1028, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984). In Flynn, a retired teacher and his wife, who were not parties to a collective bargaining agreement between the teachers union and the town board of education, brought an action against the town for failure to pay a claim for medical expenses incurred by the plaintiff's wife after the plaintiff had retired. The plaintiffs in Flynn argued that they were under no duty to exhaust arbitration procedures because the retired teacher's wife was a third-party beneficiary of the collective bargaining agreement.
The Flynn court held that retired employees and third party beneficiaries, who are not signatories to the applicable agreement, are not required to exhaust the administrative grievance procedures and may seek redress through the courts. Specifically, the court held that the plaintiffs were "under no duty to exhaust arbitration procedures before bringing a direct action." Id., 238. In so holding, the court stated: "The legal remedies of a pensioner are not wholly prescribed by the collective bargaining agreement itself, but by standard contractual principles, including promissory estoppel and third party beneficiary principles . . . Retirees are not employees for the purposes of the National Labor Relations Act, and the union which may have represented them while they were active members of the bargaining unit is under no statutory duty to represent them in negotiations with their former employer." Id., 237.
In support of its holding, the court in Flynn cited to the case of Anderson v. Alpha Portland Industries, 727 F.2d 177 (8th Cir. 1984). In that case, the plaintiffs made a claim for insurance benefits under collective bargaining agreements that were in effect at various times when certain plaintiffs retired. Id., 179. The district court granted summary judgment in favor of the defendant, a cement production company, for its failure to exhaust administrative remedies. Id. The circuit court of appeals reversed the decision of the district court granting summary judgment holding that the plaintiff was not required to exhaust such remedies. Id., 185. The basis of the circuit court's holding was its conclusion that "[b]ecause plaintiffs are retirees the union owes them no duty of fair representation." Id., 181.
In that context, the circuit court discussed the decision of the United States Supreme Court in Allied Chemical Alkali Workers, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971). "In Allied Chemical . . ., the Supreme Court made clear that retirees cannot be employees within a bargaining unit by holding that retirees are not "employees" within the meaning of the collective bargaining obligations of the National Labor Relations Act. The issue . . . was whether the employer committed an unfair labor practice in dealing directly with retirees concerning their insurance benefits. The [Supreme] Court held that such dealing was not an unfair labor practice because the employer's duty to bargain collectively extended only to mandatory subjects of collective bargaining, that is, to the terms and conditions of employment of employees within the bargaining unit. The Court held that retiree benefits are not mandatory subjects of collective bargaining because retirees are not employees and retiree benefits do not vitally affect employees . . . However [the Court] noted that a union may bargain for retiree benefits if it chooses to do so — retiree benefits remain a permissive subject of bargaining." (Citations omitted; internal quotation marks omitted.) Id.
The union contract provides that Milford acknowledges "the union as the exclusive representative and sole bargaining agent for all permanent, paid, uniformed and investigatory positions within the Milford Fire Department . . ." Article I. That article clearly provides that the union's duty of fair representation applies only to employees and not retirees. This conclusion is buttressed by the language in Section IV of the union contract outlining the grievance procedures and providing that such procedures apply to "permanent employees," and the language in Article XII concerning insurance that specifically refers to Milford's obligations to "retirees." There is no dispute that the plaintiff is a retiree and not an employee within the meaning of the union contract. Consequently, the plaintiff was not required to file a grievance before initiating the present action.
In view of the foregoing, Milford's motion to dismiss (126.00) based on lack of subject matter jurisdiction is denied.