Opinion
No. CV 03-0481415 S
April 15, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 103)
The plaintiff, Domenic Busto ("Busto"), brings this action against the defendant, AFSCME Council 15, Local 1237 AFL-CIO (hereinafter "Union") and City of Waterbury (hereinafter "City") arising out of Busto's termination from employment as a Waterbury Police Officer. The original complaint is in four counts. Count One alleges a breach of the collective bargaining agreement by the City and is not affected by the present motion. Count two alleges that the Union breached its duty of fair representation. Count three alleges intentional infliction of emotional distress against both the Union and the City. Count four alleges negligent infliction of emotional distress against both the Union and the City.
Subsequent to the filing of the motion to dismiss, the plaintiff filed a request to file an amended complaint. Since the motion to dismiss asserts a lack of subject matter jurisdiction, the court must resolve it before proceeding further with the case. Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 579 (2003). Accordingly, for purposes of this motion, the court views the original complaint as operative.
The Union has moved to dismiss Counts two, three and four asserting that the court lacks subject matter jurisdiction to consider these claims. For the reasons set forth below, the motion to dismiss is granted as to Count two and denied as to Counts three and four.
FACTS
The complaint alleges the following facts. Busto was a police officer employed by the City from June 8, 1997 through July 27, 2001. He was a member of the Union and the terms and conditions of his employment were subject to the collective bargaining agreement between the Union and the City. The Union was Busto's exclusive bargaining agent.
On August 10, 1998, Busto was suspended for five days that was later reduced to three days. On January 28, 1999, Busto received a ten-day suspension. This resulted in hearings scheduled before the state board of mediation and arbitration on December 15, 2000 and April 24, 2001. The Union allegedly informed Busto that he would not have to appear at the April 24, 2001 hearing and that it would be postponed. The arbitration panel refused to postpone the hearing and Busto was allegedly denied the opportunity to be heard.
On May 26, 2001, Busto allegedly drove an unregistered motor vehicle to the police department from his residence. On July 3, 2001, the state board of mediation and arbitration issued a decision that upheld Busto's ten-day suspension. The Union brought an action in the Superior Court to vacate that decision. AFSCME, Council 15, Local 1237 v. Waterbury, Superior Court, judicial district of Waterbury, Docket CV 01 0166468.
As a result of Busto's use of an unregistered motor vehicle, he was terminated from employment on July 27, 2001. The termination letter stated that incidents from his work history had been considered in determining the appropriate disciplinary action. Busto appealed pursuant to the collective bargaining agreement and the civil service rules and regulations of the City. On October 19, 2001, the City's civil service commission denied the Union's grievance of Busto's termination. The Union then petitioned for arbitration. On November 22, 2002, the state board of mediation and arbitration issued an award finding that the City had just cause to terminate Busto. On December 4, 2002, the Union informed Busto that it would decline to proceed further with his grievance. Busto attempted to vacate the arbitration award in the Superior Court but was unsuccessful. Busto v. Waterbury, Superior Court, judicial district of New Britain, Docket CV 02 0518777.
STANDARD
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51 794 A.2d 498 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "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.) Flanagan v. Blumenthal, 265 Conn. 350, 365, 828 A.2d 572 (2003).
"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, 821 A.2d 725 (2003). "The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions . . . [The courts] have recognized such exceptions only infrequently and only for narrowly defined purposes . . . such as when recourse to the administrative agency would be futile or inadequate." (Citations omitted; internal quotation marks omitted.) Id., 565. "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." (Internal quotation marks omitted.) Hartford v. Hartford Municipal Employees Assn., 259 Conn. 251, 283, 788 A.2d 60 (2002). Furthermore, "[t]he issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003); see also Practice Book § 10-31(a).
DISCUSSION A. Count Two: Breach of Duty of Fair Representation
The Union moves to dismiss Count Two asserting that the state labor board has primary jurisdiction over claims by municipal employees for a union's alleged breach of the duty of fair representation. In support of its position, the Union relies on two statutes: General Statutes § 7-468(d) and § 7-470(b)(3), as amended by P.A. 93-426, §§ 4 and 5.
General Statutes § 7-468(d) provides: "When an employee organization has been designated in accordance with the provisions of sections 7-467 to 7-477, inclusive, as the exclusive representative of employees in an appropriate unit, it shall have a duty of fair representation to the members of that unit." (Emphasis added.)
General Statute § 7-470(b) provides in relevant part: "Employee organizations or their agents are prohibited from: . . . (3) breaching their duty of fair representation pursuant to section 7-468 . . ." (Emphasis added.)
Prior to the passage of P.A. 93-426, claims involving the duty of fair representation received similar treatment under Connecticut and federal law. That is, Connecticut courts and the state labor board had concurrent jurisdiction over claims involving a breach of the duty of fair representation. See Fetterman v. University of Connecticut, 192 Conn. 539, 557 (1984); Grano v. Suffield, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 0523427 (October 27, 1993, Wagner, J.) ( 10 Conn.L.Rptr. 296).
Though the enactment of P.A. 93-426, the legislature added breach of the duty of fair representation to the statutory list of unfair labor practices. The union asserts that this change was intended to give the state labor board primary jurisdiction over duty of fair representation claims. In support of its position, the Union points to the statements of Representative Michael Lawlor, the bill's sponsor, during legislative debate in the House of Representatives. Representative Lawlor stated that a Union employee would not have an option as to where to initiate a grievance, "but would first be required to go to the [state labor board] and then if not satisfied there, could appeal it to the Superior Court." 36 H.R. Proc., Pt. 36, 1993 Sess., p. 12904. Representative Lawlor further stated that the appeal "would be governed by the Administrative Procedures Act." 36 H.R. Proc., supra, pp. 12904-05.
Busto, on the other hand, asserts that because he has brought an action against his former employer, the City, for breach of contract and against his former collective bargaining representative, the Union, for breach of the duty of fair representation, he is not required to exhaust his administrative remedies before the state labor board. In support of his position, Busto relies on Labbe v. Pension Commission, 239 Conn. 168, 182 (1996), and Stosuy v. Stamford, 65 Conn. App. 221 (2001).
The state labor board is the administrative agency authorized to enforce collective bargaining rights under the Municipal Employee Relations Act, General Statutes § 7-471. By statute, the board has jurisdiction to determine whether a prohibited labor practice has been committed by either a municipal employer or employee organization. § 7-471(5). As noted above, the effect of P.A. 93-426 was to statutorily classify breach of the duty of fair representation as a prohibited practice. § 7-468(d) (as amended by P.A. 93-426).
The issue here is whether an employee by bringing a Superior Court action against the employer for breach of the collective bargaining agreement and simultaneously bringing an action against the employee organization for breach of the duty of fair representation avoids the requirement that the employee must exhaust his administrative remedies. Stated differently, does the coupling by Busto of the action against the City with the action against the Union, provide concurrent jurisdiction to the Superior Court regarding claims of breach of duty of fair representation that would otherwise be exclusive to the state labor board.
There can be little doubt that the legislature's purpose in enacting P.A. 93-426 was to make any breach of the duty of fair representation a prohibited practice and require an employee making such a claim to file it with the state labor board rather than the Superior Court. See Long Ridge Paid Driver's Assn. v. Romaniello, Complex Litigation docketed at Waterbury, Docket No. X02 CV 97 0163992 (August 6, 2002, Sheldon, J.) ( 32 Conn. L. Rptr. 675, 677) ("These purposes were detailed with unusual clarity by the discussion that took place on the floor of the House of Representatives shortly before it was passed"). The Long Ridge Paid Driver's Assn. decision then quoted Representative Lawlor, who stated that "Senate Amendment `B' adjusts the duty of fair representation law imposing on all public employee unions a duty of fair representation. Also, [it] requires that any complaints . . . under a duty of fair representation complaint by an individual state employee or municipal employee be brought directly to the [state labor board] instead of to the Superior Court." Id., quoting 36 H.R. Proc., supra, pp. 12898-99. "According to Representative Lawlor, the Labor Committee had approved the new legislation in response to a recent Superior Court decision — Spadola v. Amity Regional Board of Education, Superior Court, judicial district of New Haven, Docket No. 0610642 (October 16, 1992, Levin, J.) ( 7 Conn. L. Rptr. 473.) ( 7 C.S.C.R. 1342), which had permitted an employee to bring a lawsuit for breach of the duty of fair representation without first bringing his claim before the [state labor board]. The Committee believed that an administrative hearing before the [state labor board], with a later right of appeal to [the] [Superior Court], if necessary, was a less costly and more efficient way to resolve claims for breach of the duty of fair representation than a lawsuit." Long Ridge Paid Drivers Assn. v. Romaniello, supra, 32 Conn.L.Rptr. 677; see also 36 H.R. Proc., supra, p. 12899.
The legislative history demonstrates an intent to require all persons bringing claims for breach of duty of fair representation to file with the state labor board. Neither the legislative history nor text of the statute provides for exceptions.
Busto's argument that Labbe v. Pension Commission, supra, 239 Conn. 168, provides such an exception is not persuasive because the acts complained of in Labbe occurred prior to the enactment of P.A. 93-426. See Boynton v. Bethel, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0348808 (July 15, 1992, Mottolese, J.) (observing that Labbe could not contemplate the effect of PA 93-426 and dismissing a breach of duty of fair representation claim for failure to exhaust administrative remedies). Busto's reliance on Stosuy v. Stamford, 65 Conn. App. 221 (2001), is also not persuasive. Although Stosuy stated that an employee had standing to sue an employer to enforce the terms of a collective bargaining agreement if the employee claimed that the union breached it duty of fair representation, that statement was dicta and arose in the context of a suit against an employer only. Id., 223. In Stosuy the plaintiff did not bring an action against her union for breach of duty of fair representation nor did the Appellate Court discuss P.A. 93-426. This court finds that Stosuy is distinguishable from the present case.
Based upon the words of the statute, § 7-471(5), and the clear legislative history of PA. 93-426, this court finds that a breach of duty of fair representation is a prohibited practice over which the state labor board has jurisdiction. Count two therefore must be dismissed because Busto has failed to exhaust his administrative remedies and accordingly, this court is without subject matter jurisdiction.
B. COUNT THREE: Intentional Infliction of Emotional Distress COUNT FOUR: Negligent Infliction of Emotional Distress
The Union asserts that claims of intentional and negligent infliction of emotional distress cannot be based on a party's refusal to seek judicial review of a labor arbitration award. This is not an argument that implicates the subject matter jurisdiction of the court. A motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. Pratt v. Old Saybrook, 225 Conn. 177, 185 (1993).
The motion to dismiss counts three and four must be denied.
CONCLUSION
For the reasons set forth above, the motion to dismiss Count two is granted and the motion to dismiss Counts three and four is denied.
So Ordered at New Haven, Connecticut this 15th day of April 2004.
Devlin, J.