Opinion
FSTCV156026331S
08-05-2016
Paul Turner v. State of Connecticut Department of Mental Health & Addiction Svcs
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re MOTION TO DISMISS (#107.00)
Kenneth B. Povodator, J.
Effective July 1, 2014, the plaintiff's employment by the defendant was terminated, allegedly for cause. Pursuant to the collective bargaining agreement covering that employment relationship, a grievance process was initiated, culminating in an arbitration decision directing the defendant to reinstate the plaintiff to his prior position, with back pay, etc.
This proceeding was commenced as an application to confirm that arbitration award, and an order confirming the award was entered on October 13, 2015. (#104.00.) Approximately 2 1/2 months later, the plaintiff filed a motion seeking to compel compliance with the arbitration award/judgment, claiming that the defendant had failed/refused to reinstate the plaintiff to his former position. The motion recites a contention of the defendant that " at some point after the Award and prior to the plaintiff's reinstatement, it had changed its policy in a manner that precluded the plaintiff from serving on the Mobile Crisis Unit as previously, " but the motion goes on to contend that there is no evidence of any such policy change and inferentially, no valid reason for the defendant not to have reinstated the plaintiff to his prior position.
Approximately 4 weeks later, the defendant filed a motion to dismiss the application to compel compliance, principally arguing that " [t]he Grievant has failed to exhaust his available administrative remedy under the State Employees Relation Act (SERA) aka Collective Bargaining for State Employees which vests in the State Board of Labor Relations exclusive jurisdiction over any prohibited practice arising under SERA." To the extent that the plaintiff also was seeking attorneys fees, the motion to dismiss claims that such a claim is barred by sovereign immunity.
Chapter 68 of the General Statutes, § 5-270 et seq.
The plaintiff responded to the motion with a memorandum in opposition to the motion, followed by a supplemental memorandum (#109.00 and # 110.00); in mid-May, the plaintiff filed a motion for expedited resolution of the pending issues, claiming urgency based on the plaintiff's medical condition (# 112.00).
Discussion
Somewhat simplistically, the dispute pits two generally-applicable principles against each other: courts have authority to enforce their judgments (the basis for the plaintiff's claim) but the various entities created within the state Labor Department are entrusted with resolving labor disputes including enforcement of grievance decisions--in particular, the State Board of Labor Relations (the basis for the defendant's claim).
The plaintiff does not seem to dispute the baseline proposition that, but for the judicial confirmation of the award pursuant to General Statutes § 52-417, the issue of whether the defendant had complied with a final/binding a grievance decision would be entrusted to the State Board of Labor Relations. The Board has statutory authority to resolve claimed failures to comply with grievance awards under the rubric of prohibited practices/unfair labor practices; see, especially, General Statutes § § 5-272 through 5-274.
" We have long held that the refusal to comply with a valid arbitration award constitutes a refusal to bargain and a prohibited practice. Although the Act involved here, unlike the Municipal Employees Relations Act, does not expressly make it a prohibited practice to fail to comply with a grievance settlement or an arbitration award, we have consistently held that such conduct amounts to a refusal to bargain in good faith and is therefore a violation of Conn. Gen. Stat. § 5-272(a)(4). State of Connecticut (Gary Thomas), Dec. No. 1766 (1979); State of Connecticut Department of Children and Youth Services, Dec. No. 1870 (1980); State of Connecticut Office of Labor Relations, Dec. No. 2947 (1991); State of Connecticut (NP-2 Unit), Dec. No. 3064 (1993); State of Connecticut (Michelle Dickens), Dec. No. 3372 (1996)." In the matter of State of Connecticut, Eastern Connecticut State University and Protective Services Employees Coalition (Gilbert Miranda), Decision No. 4281 at page 14 (January 18, 2008) (footnote referring to specific provision in MERA, omitted).
http//www.ctdol.state.ct.us/csblr/decisions-pdf/2008/4281.pdf (The Dickens matter, cited in this passage, was reversed on appeal to the Superior Court, on the merits.)
Further references to this decision will be indicated as " ECSU ."
In light of the almost 30-year history of this interpretation as recited in ECSU, the court concludes that this constitutes " a time-tested interpretation by the board" that is entitled to deference by the court, Vincent v. City of New Haven, 285 Conn. 778, 783-84, n.8, 941 A.2d 932 (2008).
The ECSU decision involved a situation having parallels to the present one--the extent to which there must be literal and rigorous compliance with an award, consideration of otherwise-applicable provisions relating to work assignments, etc. There are potential subtleties that may implicate considerations beyond the four corners of the award, e.g., is the claimed improper reassignment a matter of noncompliance with the grievance decision, or is it a potentially-grievable failure to comply with the collective bargaining provisions relating to assignments/reassignments?
In Skinner v. Martin, J.D. Litchfield, No. CV146011250, 2015 WL 2261571 (April 22, 2015), the court took adopted such an approach, analyzing the claim both as a prohibited practice and as a separately grievable matter, concluding that under either approach, the failure to exhaust administrative remedies deprived the court of subject matter jurisdiction.
Under the approach advanced by the plaintiff, the confirmation of a grievance award via General Statutes § 52-417 ousts the Board of jurisdiction to determine whether the conduct of the defendant comports with the decision as confirmed. The court understands the formal and almost simplistic nature of the analysis--once converted to a judgment, the award is entitled to the full panoply of rights associated with a judgment--but in that analysis, to other considerations that point in a different direction are effectively ignored.
The related concepts of primary jurisdiction and exhaustion of administrative remedies are based on the recognition that administrative bodies develop expertise in handling matters entrusted to them, and it is more efficient to allow the agencies to attempt to address disputes prior to seeking judicial recourse.
[A] primary purpose of the [exhaustion] doctrine is to foster an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency's findings and conclusions. It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review . . . Moreover, the exhaustion doctrine recognizes the notion, grounded in deference to [the legislature's] delegation of authority to coordinate branches of [g]overnment, that agencies, not the courts, [should] have primary responsibility for the programs that [the legislature] has charged them to administer . . . Therefore, exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency's role in administering its statutory responsibilities. (Internal quotation marks and citation, omitted.) Piteau v. Board of Education of the City of Hartford, 300 Conn. 667, 679, n.13, 15 A.3d 1067 (2011).
Piteau makes it clear that when the subject is an unfair or prohibited labor practice by a municipal employer, recourse through the State Board of Labor Relations is mandatory, and the Superior Court lacks jurisdiction to address the substance of such a claim (prior to Board action). Piteau is based on application of MERA, General Statutes § 7-467 et seq., and especially General Statutes § 7-471. There are analogous provisions relating to State employees, General Statutes § 5-272, but in the listing of explicitly-prohibited practices of State-level employers, there is no counterpart to General Statutes § 7-470(a)(6), making it a prohibited practice when an employer " [refuses] to comply with a grievance settlement, or arbitration settlement, or a valid award or decision of an arbitration panel or arbitrator . . ." ECSU, discussed above, fills that lacuna.
Note that under federal law applicable to federal employees, a failure to implement an award is considered an unfair labor practice. Department of Treasury-I.R.S. v. Federal Labor Relations Authority, 521 F.3d 1148 (9th Cir. 2008).
As noted earlier, the issues raised by the plaintiff do not neatly fit into the category of enforcement of the grievance decision, especially in light of the recognition that reassignment is not prohibited in connection with a reinstatement. The defendant invokes statutory and contractual provisions relating to managerial prerogatives, and the plaintiff notes that reassignment is a permitted managerial action (by a procedure claimed not to have been followed). So is the claim of failure to assign the plaintiff to his former position a matter of non-compliance with the grievance decision, or is it a potentially-grievable failure to comply with the collective bargaining provisions relating to the manner in which assignments/reassignments are to be undertaken?
The plaintiff relies on the trial court decision in Independent Labor Union v. Town of Wallingford, No. J.D. New Haven, CV000441784S, 2001 WL 686862 (May 23, 2001), but the court finds it to be unpersuasive. Of primary concern is that in the cited case, the issue of mandatory resort to the State Labor Board--the issue raised here--does not appear to have been raised.
Rather, the defendant claims, [the dispute] must first be determined, as was the original controversy, by resort to the administrative remedies outlined in the collective bargaining agreement .
The papers of the parties demonstrate that there continues to be an ongoing dispute about what the appropriate pay and benefits level is for the grievant now that she has been placed in the job pursuant to the arbitrator's award. As with any other union member who disputes the level of pay and benefits, the grievant, and if necessary the union on her behalf, must first resort to that for which they bargained .Id. at *2 (emphasis added).
The employer thus was claiming that the dispute remained within the ambit of the collective bargaining agreement and the contractual dispute resolution mechanism contained therein; here, the claim is that there is a statutory mandate that the dispute be presented to the Board, an analogous but distinct jurisdictional challenge, arising at a later step in the process (after the contractual dispute is resolved).
Note that this case could also be framed as presenting an issue analogous to Independent Labor Union, by substituting " transfer" for " pay and benefits":
As with any other union member who disputes [a transfer], the grievant, and if necessary the union on [his] behalf, must first resort to that for which they bargained, an administrative remedy which until it is exhausted affords no direct route to Superior Court.
If the reassignment of the plaintiff was permissible albeit allegedly not done properly, that readily could be characterized as a matter arising under the contract rather than a matter of noncompliance with the award as confirmed. Note that in Independent Labor Union, the court agreed that it lacked jurisdiction to address the merits: " This court determines that the fact that a decree has entered confirming the arbitration award in no way relieves the parties of their obligation to exhaust their administrative remedies." Id.
Conversely, Independent Labor Union could have been presented (and resolved?) on the issue of required recourse to the State Board of Labor, as in that case, the plaintiff was asserting noncompliance with the award: " The plaintiff claims that the defendant has failed to comply with the decree and the defendant contests that claim." MERA explicitly designates a failure to comply with a grievance award as prohibited practice, General Statutes § 7-470(a)(6), in turn to be resolved by the State Board of Labor Relations, General Statutes § 7-471(5).
In his analysis, the plaintiff resorts to hyperbole, particularly in the discussion attempting to distinguish the defendant's authorities. Thus, in his discussion of Cruess v. Connecticut State Employees Association, J.D. Hartford, No. HHDCV136045813S, 2013 WL 6926098 (Dec. 12, 2013), the plaintiff attempts to distinguish this case as involving " a record in which a party was seeking to nullify a pre-existing Superior Court order . . ." (#109.00 at p. 9.) There is nothing in the record to suggest that the defendant is attempting to " nullify" the arbitration decision or the order of the court confirming that decision; the plaintiff's own submissions indicate that the issue is not nullification but rather noncompliance (or from the perspective of the defendant, the extent to which there was compliance). The plaintiff acknowledges that there is authority for the defendant to reassign the plaintiff, but he claims that the proper procedures to do so were not followed. A dispute as to the manner of compliance and/or the need for strict (as opposed to substantial) compliance is not the equivalent of nullification.
Similarly, the plaintiff attempts to distinguish State v. New England Health Care Employees Union District 1199, No. CV000804025S, 2003 WL 1874769, (Super., Mar. 14, 2003), aff'd, 271 Conn. 127, 855 A.2d 964 (2004) as one in which " the Court was not confronted with a record in which the State had disobeyed a binding court order." A more accurate distinction would appear to be that in the cited case, the dispute centered on whether the arbitration award should be confirmed whereas this case is in a post-confirmation posture at this time--both cases involved claimed improper treatment of an employee but the postural distinction implicates the possible need for different venues. There is no claimed or identified authority for the State Labor Board to confirm arbitration awards, and there is no authority for the State Labor Board to adjudicate grievances; the State Labor Board does have authority to resolve claimed failures to comply with grievance awards under the rubric of prohibited practices/unfair labor practices; see, especially, General Statutes § § 5-272 through 5-274. Or, if perhaps oversimplified, the cited case stands for the unremarkable proposition that grievance decisions are amenable to the procedures set forth in Chapter 909 of the General Statutes (§ 52-408 et seq.), whereas this case involves " what happens next."
Only slightly less muted is the plaintiff's response to the claim that the function of the court, in reviewing an arbitration award, essentially is engaging in a " ministerial confirmation of the award."
Confirmation of an arbitration award is not a ministerial act. In its haste to exalt the role and authority of the Board of Labor Relations, the State feels compelled to denigrate the significance of a judgment of this court.(#109.00 at p. 10.)
In making that statement, the plaintiff conflates process and result. Entry of a default judgment may also be said to be somewhat ministerial in nature, but such a judgment would have equal stature to that of a judgment entered after a full hearing. As to the ministerial quality of the arbitration confirmation process itself, in many (perhaps most) instances, that is not far off the mark. " The trial court lacks any discretion in confirming the arbitration award unless the award suffers from any of the defects described in . . . § § 52-418 and 52-419." Rosenthal Law Firm, LLC v. Cohen, 165 Conn.App. 467, 471, 139 A.3d 774 (2016). Unless there is a timely motion/application to correct or vacate and unless such a motion/application is found to be meritorious, the court lacks any discretion with respect to confirmation--and lack of discretion is a hallmark, if not a definition, of ministerial; Smith v. Yurkovsky, 265 Conn. 816, 820, 830 A.2d 743 (2003).
The plaintiff discusses, at length, the Board decision in State of Connecticut, Office of Policy & Management & Labor Relations and Administrative & Residual Employees Union, SBLR decision No. 4610 (July 16, 2012). The discussion rejects or ignores the unfavorable aspects of the decision while perhaps understating what appears to be the strongest aspect of that decision.
https://www.ctdol.state.ct.us/csblr/decisions-pdf/2012/4610.pdf
On the merits, the case is readily distinguishable, as the underlying order sought to be enforced was not the product of the contractual process nor simply an order confirming an arbitration award; it was a settlement negotiated under the auspices of the judiciary, such that deference to the judicial system for enforcement is hardly surprising (although an alternate result could be justified). Further, the plaintiff overlooks the decision's clear statement, in the Board's first conclusion of law, that " [a] State employer's refusal to comply with a valid arbitration award is a failure to bargain in good faith and a violation of Section 5-272(a)(4) of the Act."
The plaintiff's quote from the decision is (or seemingly should be) the focal point of the discussion of the decision:
More important, we have declined to exercise our jurisdiction over claimed violations of arbitration awards where the parties have submitted the issue of enforcement to the judicial process. In New Haven Board of Education, Decision No. 1426 (1976) we declined to exercise our jurisdiction over claimed violations of arbitration awards where the Union had previously obtained an order confirming the awards and the issue of enforcement had been submitted to the judicial process. Similarly, in City of New Haven [Decision No. 2846 p. 5 (1990)] the parties entered into a settlement resolving a dispute over the employer's compliance with a confirmed arbitration award. Since the settlement was entered as a court order, we found that it superseded and discharged the arbitration and we dismissed the complaint.
The referenced discussion in Decision No. 1426 is illuminating. After discussing the then-recent change to § 7-470, adding subparagraph (a)(6) making it clear that the Board had authority to enforce awards, the Board stated:
http://www.ctdol.state.ct.us/csblr/decisions-pdf/1976/1426.pdf
At the time the arbitrator's award is received the party seeking compliance may go to either the courts or to the Board. But once a judgment is received from the courts this Board will not decide the dispute under Section [7- 470(a)(6)].
The doctrine of merger of judgments supports our decision. The arbitration award was incorporated into the Superior Court judgment confirming the arbitration award. By this action, the arbitration award merged into the judgment and ceased to have an independent existence. Restatement of Judgments § 45(a). With no award remaining, the Municipal Employer cannot be in violation of Section [7-470(a)(6)] of the Act.
This conclusion is further supported by the familiar legal doctrine of election of remedies. The Union in this case elected to enforce the arbitration award through the courts. By this choice the Union foreclosed its opportunity to seek a remedy with this Board.
The Complainant may assert that the legal principles stated above are inapplicable to a labor law statute designed to have a remedial purpose. Section [7-470(a)(6)] does have a remedial purpose in its provision for an alternative forum to seek compliance with an arbitration award, [b]ut no purpose is served by a complaint to this Board when a court judgment already has been received. A union faced with a recalcitrant employer must still go to the courts to enforce an order of this Board. Thus, a union that already has a court judgment confirming an arbitration award must proceed through additional hearings, before the Board and then the courts, to reach the same stage of proceedings. No purpose is served by such duplication.
If the court were to follow the reasoning set forth in Decision No. 1426, then the act of confirmation of the award would preclude consideration by the Board of any application claiming a prohibited practice, leaving this court as the only tribunal available. The Board recently invoked that decision (in Decision No. 4610, such that there is an indication that the Board considers that to be a controlling principle, but unlike the recitation in ECSU of a history of decisions, there is no indicated history of consistent application of the principle at issue. Unlike the issue of characterization of a failure to comply with an order as a prohibited practice, where there is a close analog in the municipal arena (MERA and § 7-470) and an analog in the federal arena, there is no labor-based analog applicable here. This implicates a limiting condition accompanying the notion of time-tested administrative interpretation as being a reason for a court to adopt an administrative interpretation of a statute--the interpretation must be reasonable. " [A]n agency's interpretation of a statute is [time-tested] when the agency's interpretation has been formally articulated and applied for an extended period of time, and that interpretation is reasonable." Indian Spring Land Co. v. Inland Wetlands, 322 Conn. 1, 15-16 n.8 (2016). (Internal quotation marks and citation, omitted.)
To the contrary, the principle articulated in Decision No. 1426 seemingly conflicts with the notion that deference to administrative specialists is desirable, more efficient, etc. To repeat the applicable language from Piteau as quoted above, deference to administrative agencies
relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review . . . Moreover, the exhaustion doctrine recognizes the notion, grounded in deference to [the legislature's] delegation of authority to coordinate branches of [g]overnment, that agencies, not the courts, [should] have primary responsibility for the programs that [the legislature] has charged them to administer . . . Therefore, exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency's role in administering its statutory responsibilities.
If the Board were to order relief as requested by the plaintiff, the plaintiff would have the order he seeks and the order would have been issued by the agency that the defendant contends is the appropriate (required) tribunal. Although the specter of an appeal of an administrative decision cannot be eliminated, the limited scope of judicial review of administrative decisions moderates the " risk" associated with such an approach. Conversely, at least for purposes of this case, having the court address the issues on the merits would simply invite a different form of likely subsequent proceedings, i.e. appellate review of the jurisdictional issues raised by the defendant. In other words, the practical/procedural concerns identified in Decision No. 1426 have negligible weight here.
The court must recognize a different " risk" --that the Board will adhere to the position articulated in Decision No. 1426 and refuse to consider the plaintiff's contentions on the merits. The plaintiff may then be caught in the middle of a mutualdenial-of-jurisdiction quagmire--the court deferring to the jurisdiction of the Board while the Board defers to the jurisdiction of the court. That requires the court to consider a different aspect of Piteau:
We note that a number of trial judges have characterized the role of the board of labor relations with respect to deciding claims under the act as implicating the doctrine of primary jurisdiction. Although it may seem appropriate to characterize the role of the board of labor relations as primary in view of our determination that an employee first must present his or her claim to the board, the doctrine of primary jurisdiction traditionally has been held to apply when a claim is originally cognizable in the courts . . . and . . . enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed with the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 349, 363 A.2d 170 (1975); see also Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58-59 (2d Cir. 1994) (" [p]rimary jurisdiction applies [when] a claim is originally cognizable in the courts . . . but enforcement of the claim requires, or is materially aided by, the resolution of threshold issues, usually of a factual nature, which are placed within the special competence of the administrative body"); Waterbury v. Washington, 260 Conn. 506, 546, 800 A.2d 1102 (2002) (" under the . . . doctrine of primary jurisdiction . . . the court has discretion, and in certain cases should refer the case, or certain aspects of it, to the administrative agency, yet retain jurisdiction for further action, if appropriate"). Because the board of labor relations has exclusive original jurisdiction over claims under the act, and in the interest of avoiding any confusion between the doctrine historically referred to as primary jurisdiction and the doctrine implicated in the present case, we characterize the jurisdiction of the board of labor relations as exclusive rather than primary.300 Conn. 681.
Therefore, even assuming the Board to be correct in its election-of-remedies analysis, whereby confirmation of an award constitutes an election necessitating recourse to the courts for enforcement--which implicitly would negate the exclusive jurisdiction argument of the defendant--the doctrine of primary jurisdiction would come into play. Even if the plaintiff's " claim is originally cognizable in the court's enforcement of the claim requires, or [would be] materially aided by, the resolution of threshold issues, usually of a factual nature, which are placed within the special competence of the administrative body, " the court should defer to the Board for the benefit of its expertise. Again, issues within the Board's expertise include the degree to which strict versus substantial compliance with a grievance decision is required; whether a permissible transfer allegedly executed without proper regard to contractually-required procedures is a matter of non-compliance with an order of reinstatement or is a separately-grievable contract violation (improper transfer); whether the transfer in question comes within the scope of contractual or statutory management prerogative provisions as claimed by the defendant; etc.
Decision No. 1426 seems to present the strongest possible argument in favor of the plaintiff's election of remedies argument (negating exclusive jurisdiction of the Board), but the court believes that even if correct, that would be but a somewhat circuitous route to the same result--the issue of whether the conduct of the defendant constitutes a failure to comply with the outcome of a labor grievance (that was confirmed pursuant to § 52-417) is a matter that should be determined, on the merits, by the Board.
In addition to claiming that the defendant has not complied with the grievance decision as confirmed, the plaintiff also seeks attorneys fees as compensation for the need to engage counsel for post-confirmation proceedings. The defendant claims, in response, that sovereign immunity precludes such an award. The court declines to treat this aspect of the plaintiff's application (#106.00) separately, as the claim for attorneys fees inherently is linked to the substantive issues that the court has determined must be submitted to the State Board of Labor Relations, i.e. the claim for attorneys fees is ancillary to the claimed failure to comply with the arbitration award as confirmed. That certainly is true with respect to the claimed failure to reinstate the plaintiff to his prior position.
With respect to the claimed " foot-dragging" as to other (financial) aspects of the award, that inferentially also comes within the scope of the failure to comply with the award. That is especially so given the analysis (quoted above) by which the Board has concluded that the failure to comply with an award constitutes a prohibited practice--" we have consistently held that such conduct amounts to a refusal to bargain in good faith and is therefore a violation of Conn. Gen. Stat. § 5-272(a)(4)." The court sees no bright-line demarcation between an outright refusal/failure to comply with an order and allegedly intentional or willful delay in compliance--both are inconsistent with any notion of " good faith" dealings in employer-employee relations. Subsumed in any review by the Board would be consideration of whether the requested relief is warranted and authorized, as appropriate relief under § 5-274(b) (" such further affirmative action as will effectuate the policies of sections 5-270 to 5-280, inclusive"). See, e.g., City of Boston v. Labor Relations Commission, 15 Mass.App.Ct. 122, 444 N.E.2d 950 (1983) (unreasonable delay by employer in implementation of bargaining agreements can constitute unfair labor practice).
If the court were to treat the claim for attorneys fees as an independent claim warranting independent treatment, the court would be compelled to dismiss the claim based on sovereign immunity: " In the absence of legislative authority, however, we have declined to permit any monetary award against the state or its officials." Doe v. Heintz, 204 Conn. 17, 32, 526 A.2d 1318, 1326 (1987) (specifically relating to a claim for attorneys fees).
Conclusion
The court appreciates the apparent deference by the Board in matters in which there has been some judicial activity. The court construes the statutory scheme, however, to warrant deference to the Board with respect to matters within its expertise, specifically prohibited labor practices (a substantial portion of the Board's raison d'etre).
Although perhaps not directly applicable, courts routinely recognize that when there are two seemingly-applicable (but inconsistent) procedures or rules, the more general provision gives way to a provision more narrowly applicable. (" It is also a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling, " (internal quotation marks and citation, omitted), Lagueux v. Leonardi, 148 Conn.App. 234, 242, 85 A.3d 13 (2014)). The failure to comply with a grievance decision is explicitly a prohibited practice under MERA and implicitly a prohibited practice under SERA, and prohibited practices generally are entrusted to the Board. There is nothing to suggest that the potential utilization of a general procedure for converting arbitration decisions into judgments was intended to carve out an exception to the statutory designation of the Board as the proper tribunal for prohibited practices.
The processes for confirming, vacating or modifying arbitration decisions do not implicate factfinding or even (for most purposes) verification that proper legal principles were applied; the procedures in Chapter 909 of the General Statutes are roughly equivalent to highly limited appellate review, screening for grossly-improper proceedings or outcomes (e.g., arbitrator exceeding his/her authority or decision contravening strong public policy); see, e.g., Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, Dist. 1199, 162 Conn.App. 525, 534, 131 A.3d 1238 (2016). Absent an application to modify or vacate, the process of confirmation is, effectively, ministerial, i.e. lacking any discretion.
Further, even if the Board does not have exclusive jurisdiction, the concept of primary jurisdiction is an alternate but no less determinative route to the same result. The doctrine starts with the premise of a choice of forum, but compels utilization of the administrative forum for reasons of efficiency and expertise.
Notwithstanding the discussion in Decision No. 1426, the court rejects the contention that the effectively-ministerial act of converting an arbitration decision into a judgment can override the statutory delegation of jurisdiction over prohibited practices to the Board, and/or can so easily be used to circumvent the policy considerations behind the concept of primary jurisdiction. The court cannot and should not entertain the merits of a dispute that statutorily is, and is intended to be, entrusted to the Board. But for the imprimatur of " judgment" based on confirmation, the issues in this dispute at this time, fall well within the scope of the Board's jurisdiction, experience and expertise.
For all of these reasons, then, the motion to dismiss is granted.
It is hardly surprising that the court resolved the jurisdictional issue consistent with the manner in which it had been presented, i.e. mandatory contractual dispute resolution.