Opinion
No. CV99-0155286 S
March 17, 2005
MEMORANDUM OF DECISION
This action arises out of a dispute between the plaintiff, Nicholas Biello, and his employer, the defendant, town of Watertown, over the plaintiff's entitlement to back pay for work performed pursuant to an alleged promotion.
The following facts are gleaned from the plaintiff's complaint. The plaintiff alleges that he was employed by the defendant municipal corporation in either its engineering department or water and sewer authority (WSA). In July 1992, the plaintiff held the position of water and sewer technician, and later became water and sewer supervisor (supervisor) pursuant to a collective bargaining agreement (CBA) between the defendant and the CSEA, Inc./SEIU, AFL-CIO, Local 760 (union). The plaintiff states that in July 1994, he was offered the position of WSA superintendent, but he declined this offer and was "instructed he would have to accept" the position of assistant superintendent and act as department head until the superintendent position could be filled. He alleges that at all times relevant, the defendant had an established practice of allowing the managing boards of its departments, including the WSA, to recommend salaries for positions with the departments, and that in recommending the salary for WSA employees, the WSA used the "rational basis method," which involved comparing salaries for its employees to the salaries of those employees of the town fire district who held similar positions and performed similar duties. The plaintiff alleges that pursuant to Watertown's town charter, its town council was vested with the authority to establish job descriptions and set salary ranges for employment positions, including assistant superintendent of the WSA, and that the town council had an established practice of adopting the salary recommendations proposed by the boards of town departments. The plaintiff maintains that, rather than setting the salary for the plaintiff's position as assistant superintendent based on the "rational basis method," the town manager wrongfully advised the town council that the salary had to be negotiated through the union and, acting on the defendant's behalf, "adopted a strategy to ensure that collective bargaining would fail."
In April 1996, the plaintiff alleges that he participated in arbitration with the defendant and the union concerning his entitlement to the assistant superintendent's salary and to compensation for additional duties he performed as department head. Thereafter, he alleges, the union and the defendant entered into a stipulation to compensate the plaintiff for additional duties he had performed during the previous two years. The plaintiff maintains, however, that the stipulation only covered his compensation as acting department head, and did not account for the increased pay he should have received in his capacity as assistant superintendent. The plaintiff alleges that in July 1996, the defendant filled the superintendent position, but the town council never abolished the position of assistant superintendent. Thereafter, the plaintiff alleges, the town manager discontinued salary negotiations with him for the assistant superintendent position and claimed that he never recognized the position. The plaintiff contends that the defendant then unilaterally changed his job description to water and sewer supervisor without hearing or just cause.
The plaintiff contends that from the time he accepted the position of assistant superintendent in July 1994, to the time his position was changed back to water and sewer supervisor in July 1996, the defendant wrongfully held him to the same salary and pay scale of water and sewer supervisor despite the fact that he performed the duties of assistant superintendent and acted as department head in accordance with the mandate of the town council. He alleges that the defendant did not recognize or treat the position of assistant superintendent as a position under the CBA, but treated it as a management position and failed or refused to act and bargain in good faith in paying him the salary already set, thereby rendering any administrative remedies provided by the CBA inadequate or futile.
On September 27, 1999, the plaintiff filed a complaint setting forth the following allegations in four counts: the first count sounds in breach of implied contract, quantum meruit and unjust enrichment; the second count sounds in breach of implied covenant of good faith and fair dealing, and the third and fourth counts, respectively, sound in intentional and negligent infliction of emotional distress. On August 30, 2002, the defendant filed a motion for summary judgment, and the plaintiff filed a timely objection. On January 30, 2004, partial judgment was entered by the court (Leheny, J.), granting summary judgment as to counts three and four, and denying summary judgment as to counts one and two.
The matter presently before the court is the defendant's motion to dismiss the plaintiff's complaint, filed on November 9, 2004, with memorandum of law, pursuant to Practice Book § 10-31. The plaintiff timely filed an objection to the motion to dismiss, with memorandum of law, on November 17, 2004.
"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." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442 (2002). "It is well established that, in ruling on a motion to dismiss, the trial 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.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33 (2003).
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485-86 (2003); see Practice Book § 10-33.
In its motion to dismiss, the defendant contends that the plaintiff's failure to join his union in this case as a necessary party and his failure to allege a breach of the duty of fair representation against the union deprives the court of subject matter jurisdiction for failure to exhaust administrative remedies. In particular, the defendant asserts that the plaintiff did not exhaust the grievance procedures contained in his CBA on the issues underlying this lawsuit prior to bringing suit against the defendant. To illustrate the proper grievance procedures in this matter, the defendant points to Article V of the CBA, which requires that employees pursue their grievances through the union. The defendant asserts that inasmuch as the plaintiff alleges in his complaint that he arbitrated payment issues through his union, and the union and the defendant then entered into a stipulation to compensate the plaintiff for additional duties performed in his role as department head, the plaintiff never exhausted union grievance procedures with respect to seeking compensation for his promotion to assistant superintendent. As such, the defendant contends that the plaintiff should have joined the union and alleged breach of duty of fair representation rather than bringing suit against the defendant directly, and in so failing to exhaust his administrative remedies, the plaintiff has deprived this court of subject matter jurisdiction.
According to Article V of the CBA, grievances are to be processed following a four-step process, beginning with a written complaint to the department head and escalating, as necessary, to arbitration.
"Whether a dispute is grievable under a collective bargaining agreement depends on the proper interpretation of the agreement." Mendillo v. Board of Education, 246 Conn. 456, 476 (1998). But, "[u]nions and their employers have broad contractual authority to provide administrative remedies for disputes arising out of the employment relationship." Trigila v. Hartford, 217 Conn. 490, 494 (1991). "It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . . [B]ecause the exhaustion doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff's] claim." (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563 (2003). In the collective bargaining context, our Connecticut Supreme Court has stated that "[t]he 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 [bargaining] agreements." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 253-54 (2004).
The plaintiff asserts that the defendant's claim that the plaintiff failed to exhaust his administrative remedies is without merit since the defendant previously filed a motion to dismiss on November 2, 1999, on the same grounds, and the court (Leheny, J.) denied the motion. The plaintiff asserts that the court's prior determination should become the law of the case. "Underlying the law of the case doctrine is the view that [a] judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge . . . The doctrine provides that [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Citation omitted; internal quotation marks omitted.) Wasko v. Manella, 87 Conn.App. 390, 395 (2005).
The court (Leheny, J.) initially granted the defendant's motion to dismiss and entered a partial judgment of dismissal as to the first two counts on April 18, 2000. Following an evidentiary hearing on the plaintiff's motion to reargue, that court vacated its judgment of dismissal on December 24, 2003, finding that "the plaintiff was informed by the arbitrator that there were no additional remedies available to him."
In his complaint, the plaintiff alleges that the parties "agreed to arbitrate the issues concerning his entitlement to the salary for assistant superintendent and to compensate him for the additional duties he performed as acting department head." (Complaint, ¶ 11.) Taking the facts to be those alleged in the complaint, the plaintiff evidences that he complied with Article V of the CBA concerning grievance procedures in that he pursued his claims through union channels. Further, the transcript of the evidentiary hearing held on October 31, 2003 (hearing transcript), which accompanies the plaintiff's objection to the motion to dismiss, satisfactorily indicates that the union was told by the arbitrator that after the union filed a complaint with the labor board, it could not force the defendant to fill a position or set a specific salary, and thus the union had no further options to pursue on the plaintiff's behalf to secure compensation for his promotion. Although the defendant maintains that there are administrative remedies remaining to be pursued, it has not presented any new or overriding circumstance that was not before the court previously that necessitates reconsideration of the prior decision of the court. Thus, the decision is found to be the law of the case.
The plaintiff further contends that he did not join his union as a party defendant and allege breach of the duty of fair representation because doing so would have been both unnecessary and futile. He asserts that because the position of assistant superintendent is a management position not posted under the CBA, the union neither had a duty to represent the plaintiff nor the ability to force the defendant to place the position under the CBA, and he is not suing the defendant to enforce the terms of the CBA. As evidence, the plaintiff refers to the hearing transcript, wherein Sandra Abramovich, the assistant finance director for the defendant town and president of the union's bargaining unit, testified that the defendant never posted the new position of assistant superintendent and, due to the absence of a "formal appointment letter" notifying the plaintiff of his appointment, the position was not recognized by the union.
"Ordinarily a court may entertain a suit by an individual employee to enforce the terms of a collective bargaining agreement only if the agreement so provides . . . An employee does, however, have standing to enforce the terms of a collective bargaining agreement if the employee claims that the union has breached its duty of fair representation." (Internal quotation marks omitted.) Stosuy v. Stamford, 65 Conn.App. 221, 223 (2001), citing Labbe v. Hartford Pension Commission, 239 Conn. 168, 182 (1996). "Where the collective bargaining agreement permits only the union to take a grievance to arbitration, the employee has no further remedy unless he can prove that the union breached its duty of fair representation by acting arbitrarily, maliciously or in bad faith." Saccardi v. Board of Education, 45 Conn.App. 712, 722 (1997).
A review of Article I of the plaintiff's CBA, entitled "Recognition," shows that the position of assistant superintendent is not explicitly stated as being recognized by the CBA, although the plaintiff's original position, water and sewer supervisor, is recognized. The plaintiff indicates as much in his complaint, when he states that the job description for water and sewer supervisor was "made subject to the collective bargaining agreement" then in effect between the defendant and the union. (Complaint ¶ 3.) Further, the plaintiff alleges that after he accepted the position of assistant superintendent, the defendant, the union and the plaintiff "agreed to arbitrate the issues concerning his entitlement to the salary for assistant superintendent . . ." (Complaint ¶ 11), which would suggest that the plaintiff still availed himself of union representation after the promotion. In fact, the plaintiff filed several grievances through his union following his promotion. (Complaint ¶¶ 16, 17, 19, 24.) This conclusion is buttressed by Abramovich's statement at the hearing that the union was involved on the plaintiff's behalf only because "the union is basically saying that he's still at [his prior supervisory] position." Thus, it may be found that the plaintiff was still subject to the collective bargaining agreement. As such, to the extent that his suit is based on the CBA, under Stosuy, Labbe, and Saccardi, the plaintiff would be required to join the union as a necessary party and allege breach of the duty of fair representation.
Pursuant to § 7-470(a) of the Municipal Employee Relations Act, General Statutes § 7-460 et seq., "[m]unicipal employers or their representatives or agents are prohibited from . . . (4) refusing to bargain collectively in good faith with an employee organization which has been designated . . . as the exclusive representative of employees in an appropriate unit . . ." Collective bargaining is described in § 7-470(c) as, in relevant part, "the performance of the mutual obligation of the municipal employer or his designated representatives to . . . confer in good faith with respect to wages, hours and other conditions of employment . . ." Inasmuch as the basis of the plaintiff's complaint is that the defendant did not pay the wages owed to him, and the defendant failed to bargain therefor, his claims are under the umbrella of the CBA.
The plaintiff, however, seeks to distinguish Stosuy, Labbe and Saccardi from the present matter, stating that in all three cases, the plaintiffs had valid claims against their union for breach of its duty of fair representation, whereas he has no basis for such a claim here. The plaintiff maintains that contrary to the three cases, his union did not decline to represent him or otherwise act improperly in handling his grievances, but only found that it could not do anything further for him after taking his claims to arbitration.
In Stosuy, the plaintiff stated that her union "declined to represent her" after she filed a grievance. See Stosuy v. Stamford, supra, 65 Conn.App. 222. In Labbe, the plaintiff claimed that the union "improperly bargained away the right to use up military time up front that had been provided in the collective bargaining agreement" and "the union's participation . . . violated its bylaws, which require that all collective bargaining agreements be presented to the membership for approval." See Labbe v. Hartford Pension Commission, supra, 239 Conn. 178. Finally, in Saccardi, the plaintiff claimed that his union refused to pursue non-binding arbitration on his behalf as only the union could do. See Saccardi v. Board of Education, supra, 45 Conn.App. 721.
"Despite the important public policy considerations underlying the exhaustion requirement, [the Supreme Court has] grudgingly carved several exceptions from the exhaustion doctrine . . . One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate . . . An administrative remedy is futile or inadequate if the agency is without the authority to grant the requested relief." (Citations omitted; internal quotation marks omitted.) Mendillo v. Board of Education, supra, 467. "If the available administrative procedure . . . provide[s] the plaintiffs with a mechanism for attaining the remedy that they seek . . . they must exhaust that remedy"; (internal quotation marks omitted.) BRT General Corp. v. Water Pollution Control Authority, 265 Conn. 114, 123 (2003); but "[t]he guiding principle in determining futility is that the law does not require the doing of a useless thing." (Internal quotation marks omitted.) Frank v. Dept of Parks Recreation, 78 Conn.App. 601, 607, cert. granted, 266 Conn. 914 (2003).
In Frank v. Dept. of Parks Recreation, an employee sought to recover unpaid wages from her employer. On appeal, the Appellate Court held that the trial court improperly dismissed the case for lack of subject matter jurisdiction, stating that it would have been futile for her to follow the grievance procedures in her CBA because the arbitrator had no authority under the agreement's terms to grant the plaintiff the relief she sought. Thus, the court determined, the exhaustion doctrine did not apply. The court reasoned that, "[i]n the labor setting . . . the arbitrator has no authority to award relief to the plaintiff that is not allowed under the terms of the collective bargaining agreement. That is because the provisions of the collective bargaining agreement are solely the product of negotiations between the signatories to the collective bargaining agreement." Supra, 608. Here, as noted in the hearing transcript, the union filed a complaint on the plaintiff's behalf on May 12, 1995, which led to arbitration. The arbitrator indicated that it could not force the defendant to fill a position or set a specific salary, making further recourse to grievance procedures unavailing.
The plaintiff is correct to assert that further resort to administrative remedies, and suit against his union for breach of duty of fair representation, would be both unnecessary and futile. The plaintiff has demonstrated that he is not attempting to "sidestep available grievance procedures in favor of a lawsuit," but has exhausted all avenues, utilizing his union, to obtain the relief he seeks. Further, the plaintiff has adequately alleged that his union has represented him fairly, and not "arbitrarily, maliciously or in bad faith," such that it would be unreasonable to require him to join his union as a necessary party in this action. As established, the prior ruling of the court (Leheny, J.), finding that the plaintiff had exhausted his administrative remedies, is found to be the law of the case.
In view of the foregoing, this court has subject matter jurisdiction and the defendant's motion to dismiss is hereby denied.
Moraghan, J.T.R.