Opinion
HHDCV176078460S
12-05-2019
Hartford Federation of Teachers, Local 1018 v. James Howe
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Noble, Cesar A., J.
MEMORANDUM OF DECISION RE MOTION TO VACATE
Cesar A. Noble Judge, Superior Court
Before the court is the application of the plaintiff, Hartford Federation of Teachers, Local 1018 (the HFT), to vacate an arbitration award (Award) by an arbitration panel (panel) of the Connecticut State Board of Mediation and Arbitration (Board) in favor of the defendant, James Howe, and other similarly situated employees. Howe and the other employees are members of the co-defendant, the Office and Professional Employees International Union Local 376 (union). The dispute between the HFT and Howe centers on the calculation of the amount of prorated vacation based severance pay to which the defendant was entitled upon his termination of employment with the HFT. In the view of the HFT, the panel exceeded its powers because the Award did not conform to the claimed restricted submission in that: (1) the parties’ dispute was not an appropriate subject of a grievance, and therefore not arbitrable; (2) the Award impermissibly modified the terms of a collective bargaining agreement; and (3) the panel impermissibly entered an Award for employees other than the defendant. Howe asserts that the panel answered the very issues presented to it by the HFT and Howe’s union, that is, issues related to vacation pay based severance and the impact on other similarly situated employees. Moreover, in Howe’s estimation, the HFT waived any objection to the arbitrability of the issues presented to the panel by failing to comply with sub-section (b) of General Statutes § 31-97 and thus the submission was unrestricted. Because the court agrees with the defendants, the application to vacate the arbitration award is denied.
Arbitration Award, Connecticut State Board of Mediation and Arbitration, Labor Department, Hartford Federation of Teachers and OPEIU Local 376, Case #2016-A-0490, April 18, 2017.
Section 31-97(b) provides in relevant part: "No panel of said board may consider any claim that one or more of the issues before the panel are improper subjects for arbitration unless the party making such claim has notified the opposing party and the chairman of the panel of such claim, in writing, at least ten days prior to the date of hearing, except that the panel may consider such claim if it determines there was reasonable cause for the failure of such party to comply with said notice requirement."
FACTUAL BACKGROUND
The following undisputed facts and procedural history are relevant to this decision. Howe was an employee of the HFT from May 22, 2001 until his retirement on June 30, 2016. On July 1, 2002, Howe became a member of union. The relationship between the union and the HFT was subject to a collective bargaining agreement (CBA) which governed the terms of Howe’s employment with the HFT. The CBA required referral to the Board for arbitration of specified grievances between employees and the HFT. The grievances subject to arbitration were limited to those "relating to the interpretation and application of any provision of the [CBA] to matters of wages, hours of work and working conditions." CBA, Art. IV, § 1.
The parties stipulated to the court’s consideration of all documents attached to their pleadings and briefs. Tr. Hr’g before Bright J., Sept. 27, 2017, 3. All documents referred to by the court in the present decision originate from these sources or exhibits agreed to during the foregoing hearing.
The court adopts the following recitation of facts articulated by the HFT in its Application to Vacate dated May 31, 2017, Entry No. 100.31. "Upon notice of his retirement to the HFT, Mr. Howe claimed that he was owed $87,908.98 ... in vacation pay for completion of ‘15 years here,’ less than 14 years of which were subject to the [union] contract. The HFT disputed the amount due, but offered $5,838.14, or the value of the defendant’s last year of vacation time in the year of his termination. The union subsequently filed a grievance on behalf of Mr. Howe and, failing resolution of the matter, thereafter a request for arbitration with the [Board]." Id., ¶¶4 and 5.
The issue presented on November 17, 2016, by the HFT and the union to the Board for resolution was:
Did the HFT (employer) violate the collective bargaining agreement with OPEIU Local 376 (employees) concerning Article 5, Section 6 and other pertinent sections when it calculated the severance pay for employee James Howe and other OPEIU employees hired before 7-1-2008? If so, what shall be an appropriate remedy?
The panel, consisting of three arbitrators, conducted hearings on November 17, 2016, December 22, 2016 and January 9, 2017, during which the parties presented evidence and witness testimony. Wayne Gilbert, a union representative who represented the union during the grievance and who was present during the arbitration, testified before the court, Bright J., that at no time during the hearings did the HFT raise the issue of the arbitrability of the dispute presented to the panel. The parties filed their initial briefs on February 9 and 10, and submitted simultaneous reply briefs on February 22, 2017. In its reply brief, the HFT advanced, for the first time, the argument that because "both severance allowance and vacation pay are benefits, and not wages," and because Article IV, § 1, of the CBA limits grievances to "matters of wages, hours of work and working conditions," the dispute presented to the panel for resolution by the union and the HFT itself, was not subject to the grievance procedure.
The parties stipulated that this was the first hearing date. Tr., Sept. 27, 2017, 14.
Reply Memorandum in Support of Respondent Employer the Hartford Federation of Teachers, Feb. 22, 2017, Case No. 2016-A-0490, 3.
The panel issued its Award on April 18, 2017, in which it found that the HFT violated Article V, § 6 of the CBA when it calculated the severance pay of Howe and other similarly situated union employees. It ordered HFT to pay Howe for prorated vacation/severance pay in accordance with the amount he had calculated, $87,908.08.
In its Award, the panel identified as pertinent to its decision several contract provisions of the CBA that included the following:
Article IV. Grievance Procedure
Section 2. No arbitrator shall have any right to change, add to, subtract from or modify any of the terms of any written agreement exi[s]ting between the parties ...
Article V. Vacations
Section 1. The employer shall grant vacations with pay to all employees each year of this Agreement according to the following schedule:
6 months but less than 1 year 7 1 week (5 working days)
1 year but less than 5 years = 2 weeks (10 working days)
5 years but less than 15 years = 3 weeks (15 working days)
15 years but less than 20 years = 4 weeks (20 working days) 20 years or more = 5 weeks.
Vacation days will be granted as full days only ...
Section 6. Any employee who terminated his/her employment, or is laid off, shall be given prorated vacation pay in accordance with the following formula: Any employee with six months’ service will get one (1) day for each ten (10) weeks of service; an employee with one (1) year of service will get two (2) days for each ten (10) weeks of service; an employee with five (5) years of service will get three (3) days for each ten (10) weeks of service; an employee with fifteen (15) years of service will get four (4) days for each ten (10) weeks of service; an employee with twenty-five (25) years of service will get five (5) days for each ten (10) weeks of service.
Award, 2-3. The panel found that after ending his employment with HFT, Howe claimed "HFT owes him for ‘prorated vacation pay,’ which HFT disputes." Id., 1. The panel found that "Howe originally notified HFT that his estimate of the vacation pay due under the [CBA] was $109,434.00, but corrected that figure to $87,908.98 ... HFT disagreed with Howe, and informed him that his vacation pay must be calculated based on his last year of vacation time, [which] amounted to $5,838.14, which was paid to Howe via direct deposit ... Howe subsequently repaid that amount to HFT, and after unsuccessful attempts to resolve this matter via the collective bargaining agreement’s grievance process, [the union] appealed Mr. Howe’s grievance to the State Board of Mediation and Arbitration." Id., 2.
In its summary of the position of the parties, the panel noted the disagreement between the parties in how the vacation based severance was to be calculated pursuant to Article V, § 6. Further, the panel commented on the HFT’s argument regarding the arbitrability of the issue: "Next, under Connecticut law, accrued vacation pay is not defined as ‘wages’ under the state wage payment statute, thus severance and vacation pay should be consider[ed] benefits, not wages. Under the collective bargaining agreement, grievances pertaining to ‘benefits’ are not subject to the parties’ grievance procedure because Article IV, Section 1 provides that only grievances ‘relating to the interpretation and application of any provision of the Agreement to matters of wages, hours of work and working conditions’ are grievable. Since vacation pay is not any of these subjects, it cannot be a proper subject of a grievance." Award, 4. The Award is silent as to its disposition of the arbitrability argument.
The HFT filed a timely application to vacate the Award. The application named Howe as the sole defendant. Thereafter the court, Bright, J., granted the union’s motion to intervene as a co-defendant. Following briefing and two hearings on the application to vacate, the court remanded the case to the panel for clarification of its Award. Hartford Federation of Teachers, Local 1018 v. Howe, Superior Court, judicial district of Hartford, Docket No. 176078460S, 2018 WL 3711407 (July 11, 2018, Bright, J.) . In its order, the court found an ambiguity in the Award. It noted that at the first hearing "the defendants agreed that the claim for vacation pay was not the proper subject of a grievance, but argued that the plaintiff waived any objection to the arbitrability of the claim by not timely objecting pursuant to General Statutes § 31-97(b)." Id., *1. While the HFT acknowledged that the notice required by § 31-97(b) had not been provided, it claimed that reasonable cause for its failure to do so existed in that it did not fully appreciate the nature of the defendant’s claim until the hearing was underway. Id. The court explained the ambiguity as follows. "[I]t is clear that the panel acknowledged the plaintiff’s argument that the defendant’s claim was not arbitrable. It is also clear that the panel did not adopt the plaintiff’s arbitrability argument, instead deciding the defendant’s claim on the merits. What is unclear is the basis for the panel’s rejection of the plaintiff’s arbitrability argument ... Thus, the award is ambiguous in that it does not set forth whether the panel rejected the plaintiff’s arbitrability argument on the merits, because it was untimely under § 31-97(b), or for some other reason." Id. The court concluded that under the holding of Hartford Steam Boiler Inspections & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 271 Conn. 474, 482, 857 A.2d 893 (2004), cert. denied, 544 U.S. 974, 125 S.Ct. 1826, 161 L.Ed.2d 723 (2005), it had authority, without vacating the Award, to remand the case to the panel for clarification of its Award.
See footnote 2.
On remand, the panel clarified that it had "unanimously determined that [the] HFT had raised the issue of arbitrability too late in this matter, and thus found that HFT’s right to raise this argument had been waived." Clarification on Remand to Award Dated April 18, 2017 (Remand), Case No. 2016-0490, December 24, 2018, 2. The first basis relied upon by the panel in its Remand for finding waiver was the failure of the HFT to provide the ten-day notice required by both § 31-97(b) and Section 31-91-23(b) of the Regulations of Connecticut State Agencies. Moreover, the panel found that the "HFT had never asserted, let alone established, that HFT had ‘reasonable cause’ for failing to file the required notice." (Emphasis added.) Remand, 2-3. The comment that "reasonable cause" was not established is a finding of fact by the panel. Finally, the panel articulated that the HFT had waived its opportunity to challenge the arbitrability of the grievance because of its conduct, to wit, agreeing in writing to arbitrate the specific issue it decided and participating in a full hearing. Remand, 3. The panel noted that the first challenge to the arbitrability of the issue was "in a reply brief filed six weeks after the hearing was concluded." Id.
Similar to General Statutes § 31-97(b), § 31-91-23(b) of the Regulations of Connecticut State Agencies mandates a ten-day notice requirement for raising the issue of arbitrability. "A party claiming the dispute is not arbitrable shall submit notice of such claim and the reasons therefor, to the board and to the opposing party at least ten days prior to the initial hearing date." Regs., Conn. State Agencies § 31-91-23(b).
In fact, counsel for the HFT represented to the court at the Sept. 27, 2017 hearing that he was aware prior to ten days before the hearing that the dispute involved the interpretation of Article 5, § 6. Tr., Sept. 27, 2017, 59-60.
DISCUSSION
The HFT asserts in its Application to Vacate that the Award was outside the scope of, and did not conform to, the submission. This is so, in its view, for three reasons. The first is that the panel was only authorized by the CBA to hear grievances involving matters relating to matters of wages, hours of work and working conditions. Thus, the panel could not properly consider the issues before it which involved severance benefits calculated on prorated vacation pay as delineated in Article V, § 6 of the CBA. This is in actuality an assertion that the issue was not arbitrable. The second reason advanced by the HFT is that the panel deviated from the submission because it had no right to change, add to, subtract from or modify any of the terms of the CBA in violation of Article IV, § 2. In HFT’s estimation, the panel, by adopting the precise formula suggested by the defendants, deviated from the terms of the written contract, which constituted a modification of the contract terms. This is in actuality an assertion that the panel’s interpretation of the contract was erroneous. Third, the HFT suggests that the Award did not conform to the submission because "it did not respond to the issues presented by the parties" and it had no authority to fully decide issues for "other [union] employees" because the "other employees were not parties to the underlying grievance arbitration proceedings." The defendants maintain that any issues related to the scope of the submission or the arbitrability of the issues presented to the panel were waived by the HFT. The court agrees with the defendants.
Appl. to Vacate, ¶13(a), 6.
Appl. to Vacate, ¶13(b), 6.
Appl. to Vacate, ¶13(c), 8.
The general principles guiding the court’s analysis are well known. "Our Supreme Court has for many years wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation ... When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention." (Citations omitted, internal quotation marks omitted.) Milford v. Coppola Construction Co., 93 Conn.App. 704, 709-10, 891 A.2d 31 (2006). An award may be vacated by the court if, relevantly, "the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made." General Statutes § 52-418. "[A] claim that the arbitrators have ‘exceeded their powers’ may be established under § 52-418 [if] ... the award fails to conform to the submission, or, in other words, falls outside the scope of the submission ..." Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 85, 881 A.2d 139 (2005).
Section 52-418(a) provides "(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made."
The parties in their numerous memoranda addressed the issues presented through the construct of two inter-related principles, arbitrability and whether the Award was within the scope of the submission. These will be discussed in turn.
The question of arbitrability involves an examination of whether the parties’ agreement authorizes an arbitrator to resolve a particular contractual dispute. "Whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question ..." (Internal quotation marks omitted.) White v. Kampner, 229 Conn. 465, 472, 641 A.2d 1381 (1994). "Because ... [a]rbitration is a creature of contract parties may agree to arbitrate the question of arbitrability ... It is well established ... that parties may agree to have questions concerning the arbitrability of their disputes decided by a separate arbitrator ... In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls ... When deciding whether a party has agreed that an arbitrator should have the sole authority to decide arbitrability, we must not assume that the parties agreed to arbitrate arbitrability unless there is clea[r] and unmistakabl[e] evidence that they did so ... In this manner the law treats silence or ambiguity about the question who (primarily) should decide arbitrability differently from the way it treats silence or ambiguity about the question whether a particular [merits related] dispute is arbitrable because it is within the scope of a valid arbitration agreement ... In this state, the intention to have arbitrability solely determined by an arbitrator can be manifested by an express provision or through the use of broad terms to describe the scope of arbitration, such as all questions in dispute and all claims arising out of the contract or any dispute that cannot be adjudicated." (Alterations in original, internal quotation marks omitted.) Board of Education v. New Milford Education Assn., 331 Conn. 524, 541-42, 205 A.3d 552 (2019).
Even in the absence of a clear and unmistakable waiver of judicial review arbitrability such a review may be forfeited. "[T]here are two procedural routes by which a party may preserve the issue of the arbitrability of a particular dispute for judicial determination. First, a party may refuse to submit to arbitration at the outset and instead compel a judicial determination of the issue of arbitrability ... Alternatively, threshold questions of arbitrability may properly be committed to the arbitrators themselves for determination under the terms of the contract, along with the merits of the underlying dispute ... In such cases a court, on a motion to vacate, may properly entertain a challenge to an award alleging disregard of the limits in the parties’ agreement with respect to arbitration ... With regard to this second route ... a party who voluntarily submits a dispute to arbitration without objecting to the arbitrability of the dispute waives judicial review of that issue. Thus, we determined that, when a party has opted to take the second route, the issue of whether that party has preserved judicial review of arbitrability turns on whether it properly objected to the arbitrability of the dispute ... [T]hree distinct inquiries may arise: (1) whether the matter is arbitrable; (2) who has primary authority to decide that question- the arbitrator or the court; and (3) if the matter is one over which the court would have primary authority, did the parties engage in, or fail to engage in, conduct that precludes judicial review of the arbitrator’s decision on that matter." (Citations omitted, emphasis added, internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 709, 987 A.2d 348 (2010).
"A party preserves its right to judicial review of an arbitrator’s conclusion regarding arbitrability by raising that issue before the arbitrator. A party who [makes] such a challenge nonetheless may waive its right to judicial review by agreeing to vest the arbitrator with authority to decide whether the matter is arbitrable. In order to obtain judicial review of the arbitrator’s arbitrability determination, therefore, a party must both preserve its claim and refrain from activities that would, in essence, estop that party from asserting its claim at a later time." (Internal quotation marks omitted.) New Milford Education Assn., supra, 331 Conn. 543-44. In the view of the present defendants, the delay in raising the issue of arbitrability until the reply brief constitutes a waiver of the HFT’s right to assert that claim. This is so, argue the defendants, based on general principles of waiver and the HFT’s failure to comply with the time mandates of § 31-97(b). The HFT claims that its objection to arbitrability was properly preserved and accordingly the court has authority to resolve the issue. As explained below, the court agrees with the defendants. The issue of whether, as claimed by the HFT, the Award failed to conform to the submission is in the present case intertwined inextricably with the issue of waiver of arbitrability and is thus addressed next.
The HFT asserts that the Award should be vacated because it did not conform to a restricted submission. "Parties to an arbitration may make a restricted or an unrestricted submission. Under an unrestricted submission, the [arbitrator’s] decision is considered final and binding; thus the courts will not review the evidence considered by the [arbitrator] nor will they review the award for errors of law or fact. A submission is deemed restricted only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. Even in the case of an unrestricted submission, however, a reviewing court will vacate an award when an arbitrator has exceeded the power granted to him or her by the parties’ submission. A claim that [an arbitrator has] exceeded his or her powers may be established under § 52-418 in either one of two ways: (1) the award fails to conform to the submission, or, in other words, falls outside the scope of the submission; or (2) the arbitrator manifestly disregarded the law." (Citations omitted, internal quotation marks omitted.) New Milford Education Assn., supra, 331 Conn. 531-32. The import of whether a submission is restricted or unlimited lies in its effect on the court’s review.
The HFT makes no claim and provides no substantive argument that the panel manifestly disregarded the law, therefore the court need not consider such a claim.
A restricted submission is subject to a de novo review but an award of a restricted submission "is not subject to de novo review even for errors of law so long as the award conforms to the submission." (Internal quotation marks omitted.) Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, 288 Conn. 223, 229, 951 A.2d 1249, 1253 (2008). A review of whether an award does not conform to an award is, however, de novo. State v. Connecticut State Employees Assn., SEIU Local 2001, 117 Conn.App. 54, 59, 978 A.2d 131 (2009). The review is accomplished by "a comparison of the award rendered with the submission to the arbitrator." Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 288 Conn. 231. "A court need only examine the submission and the award to determine whether the award conforms to the submission." New Britain v. Connecticut State Board of Mediation & Arbitration, 178 Conn. 557, 562, 424 A.2d 263 (1979).
The word "submission" in this context is a legal term of art and embodies two concepts. These consist of the language in the contract that obliges the parties to refer specified disputes to arbitration and the designation of issues to be decided by the arbitrator. "[T]he submission consists of a composite of the authorizing clause in the separation agreement and the ... demand for arbitration, including ... claim[s] for relief." (Citation omitted, internal quotation marks omitted.) LaFrance v. Lodmell, 322 Conn. 828, 855, 144 A.3d 373, 392 (2016). "The parameters of the exceeded powers inquiry are defined by the submission of issues to the arbitrator and by the arbitrator’s authority as set forth in the arbitration agreement ... As long as the grounds for the award are based on the agreement of the parties and the issues they present for resolution, further judicial scrutiny is not warranted." 1 M. Domke, Commercial Arbitration (3 Ed. 2003) § 39:6, pp. 39-13 through 39-14.
Because the "submission" is a composite of two concepts, clarity requires that each be examined separately in the determination of whether an award conforms to the "submission." Indeed, the term has been used to refer to each of the concepts separately. Compare New Britain v. Connecticut State Board of Mediation & Arbitration, supra, 178 Conn. 559 ("The submission to the arbitrators by the parties was as follows: ‘Under Article 8.1 of the Collective Bargaining Agreement, was grievant Vincent Fusari discharged for just cause? If not, what shall the remedy be?’ "); with Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 110-11, 779 A.2d 737 (2001) ("In the present case, the settlement agreement [underlying contract] between Industrial Risk and Hartford Steam Boiler constituted the submission to arbitration.") and Vail v. American Way Homes, Inc., 181 Conn. 449, 451, 435 A.2d 993, 995 (1980) ("If the parties have agreed in the underlying contract that their disputes shall be resolved by arbitration, the arbitration clause in the contract is a written submission to arbitration").
Where the underlying contract committing the parties to arbitrate and the designation of issues as communicated to the arbitrator(s) are in harmony, a determination of the scope of the submission simply involves the comparison of the unified submission with the arbitration award. In the present case, however, no such harmony exists. The CBA, which is the initial agreement committing the present parties to resolve certain disputes by arbitration, clearly contains language limiting the scope of the disputes to be arbitrated. "Should any grievance arise between an employee and the Employer relating to the interpretation and application of any provision of the Agreement to matters of wages, hours of work and working conditions, the Employer must follow the procedures in sequence listed below ..." (Emphasis added.) CBA, Art. IV, § 1. The "submission," in the sense of the underlying contractual obligation to arbitrate, is thus restricted because it limits the breadth of issues to be decided by arbitration. It clearly does not include vacation pay based severance, a benefit not "a matter of wages, hours of work and working conditions," within the scope of the submission as that term is understood to mean the issues subject to arbitration under the CBA. Understood in the context of an "arbitrability" analysis, vacation based severance is not a proper subject for arbitration and thus is not arbitrable.
The defendants conceded at argument that the issue decided by the panel involved benefits not otherwise subject to arbitration.
Nevertheless, this is exactly the issue that was specifically, voluntarily and unequivocally designated by the parties to the Board for resolution via arbitration. The task is then to reconcile these two incompatible "submissions." The plaintiff does not seriously dispute that the Award was not within the scope of the submission, where that term is understood to mean the designation to the panel of issues to be decided. Where, as in the present case, an arbitration award is within the scope of the issues designated to the arbitrators for resolution but those same issues are outside of the scope of the issues contemplated by the underlying agreement as being subject to arbitration, the designation of issues to the arbitrator can only be understood as the first step in a continuum to the waiver of the arbitrability of those issues. Unless properly cured arbitrability, in such a case, is considered waived.
The court must now address whether the conduct of the HFT following the designation of the Article V, § 6 vacation based severance to which Howe was entitled properly preserved and/or waived the issue of arbitrability. Arbitration before the Board is subject to the common law, the statutory scheme applicable generally to arbitration; General Statutes § 52-408 et seq., and General Statutes § 31-92 et seq.; which regulates the consensual referral of grievances and arbitrations between an employer and employees to the Board. As previously set forth, the common law establishes that the question of arbitrability is one for the court absent a clear intent of the parties to the contrary. White v. Kampner, supra, 229 Conn. 472. Whether an issue is subject to arbitration, that is the issue of arbitrability of the issue, is subject to waiver. Board of Education v. New Milford Education Assn., supra, 331 Conn. 543. The general statutory scheme set forth in § § 52-408 through 52-424 is silent as to arbitrability or waiver thereof. Section 31-97(b) addresses arbitrability by setting forth preconditions under which the Board may consider the arbitrability of an issue. It provides in relevant part: "No panel of said [Board] may consider any claim that one or more of the issues before the panel are improper subjects for arbitration unless the party making such claim has notified the opposing party and the chairman of the panel of such claim, in writing, at least ten days prior to the date of hearing, except that the panel may consider such claim if it determines there was reasonable cause for the failure of such party to comply with said notice requirement." (Emphasis added). Accordingly, § 31-97(b) imposes the procedural limitations of a ten-day pre-hearing notice or reasonable cause to provide same on the authority of the Board to consider arbitration.
See Bennett v. Meader, 208 Conn. 352, 355, 545 A.2d 553 (1988) (statutory scheme of § 52-408 et seq. controls arbitration where common law is inconsistent with scheme).
This construction of § 31-97(b) is at odds with the dicta in the earlier decision remanding the case to the Board for clarification. "Section 31-97(b) is clear that it is the [Board] that should consider a claim of arbitrability in the first instance." Hartford Federation of Teachers, Local 1018 v. Howe, supra, 2018 WL 3711407, *3. The parties also appear not to have disputed this proposition. This court respectfully disagrees because of the plain language of the statute and on the basis that the legislature would not have intended to abrogate the common law without the clear and plain expression of its intent to do so. Kruger v. Grauer, 173 Conn.App. 539, 552, 164 A.3d 764, cert. denied, 327 Conn. 901, 169 A.3d 795 (2017). No such expression is present in § 31-97(b).
In the present case, the Board’s Remand provides that it did not consider the issue to be properly before it because, apart from the conceded lack of the ten-day pre-hearing notice, the HFT never asserted, nor proved, reasonable cause for failing to file the required notice. Moreover, the panel found that the HFT waived its opportunity to challenge the arbitrability of the grievance by filing such a challenge in a reply brief six weeks after the hearing concluded. The court finds that the issue arbitrability was untimely raised and prejudiced the defendants. This court holds that the arbitrability of the dispute designated for resolution by the panel was not properly preserved and was therefore waived.
As previously mentioned, a party to arbitration preserves the issue of arbitrability of a particular dispute for judicial determination by either refusing to submit to arbitration at the outset- requiring the opponent to move to compel arbitration- or by committing the issue to the arbitrators along with the merits. Bacon Construction Co. v. Dept. of Public Works, supra, 294 Conn. 709. The HFT does not assert that it refused to arbitrate. Accordingly, the only manner in which it could have preserved the issue of arbitrability for judicial review was by raising that issue before the arbitrator. The HFT argues that in fact it preserved the issue of the arbitrability of the vacation based severance pay, even though it unequivocally designated the issue for resolution by the panel, by ultimately raising it before the arbitrators in its reply brief. The court disagrees. Section 31-97(b) is clear that the Board may consider whether "issues before the panel are improper subjects for arbitration," that is, arbitrability, only under the two enumerated conditions. The panel found, and the court so finds, that these conditions were not met. Accordingly, the HFT failed to preserve the arbitrability of the vacation based severance pay calculation.
In addition to its failure to meet the mandates of § 31-97(b), the conduct of the HFT constitutes waiver. The decision of the Supreme Court in C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 919 A.2d 1002, 1024 (2007), is instructive. In that case, a construction manager, C.R. Klewin Northeast, LLC (Klewin) filed an application to confirm an arbitration award regarding a municipal public works contract and the City of Bridgeport (city) moved to vacate the award. The city disputed the authority of the arbitral panel to decide the case on its merits because the contract was illegally procured. Klewin claimed that the city had waived its right to object to the arbitrability of Klewin’s claims, because the issue was not asserted until after the issue had been presented for arbitration and twenty days of hearings had been held. It is noteworthy that the taking of evidence continued after the attempt to raise arbitrability. Moreover, the award, as in the present case, was rendered after the attempt to raise the issue of arbitrability. The arbitrators declined to review the claim because it was presented "too late in the game." Id., 83. The panel determined that the facts underlying the claim were known or should have been known for over a year before the arbitration hearings began. The trial court confirmed the award finding that the arbitrability of the merits had been waived.
In upholding the Appellate Court’s decision affirming the trial court, the Supreme Court considered the nature of waiver, which "is the intentional relinquishment or abandonment of a known right or privilege." (Internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Bridgeport, supra, 282 Conn. 87. "The waiver doctrine applies to arbitration because we have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial." (Internal quotation marks omitted.) Id. The court’s conclusion that the city waived its arbitrability claim was based on the findings by the panel and the trial court that the city unduly delayed the presentation of the claim, notwithstanding the fact that it was aware of the bases for the claim for approximately two and a half years after the indictment of the city’s former mayor on corruption-related charges. Id., 89.
In the present case, this court makes independent findings of waiver on the same grounds as the panel. The HFT voluntarily and unequivocally designated for arbitration the calculation of Howe’s entitlement to vacation based severance pay. The HFT conceded that it had known, at least since the tenth day before the first hearing date, that the issue it designated for resolution involved Article V, § 6 of the CBA. Any assertion by the HFT that it was not, nor could have been, aware that the dispute it submitted to arbitration involved wages, and not what it later termed as benefits, is not credible. Three days of hearings were held, post-trial briefs were prepared and filed, and only then, in its reply brief, did the HFT first assert the issue it had asked the panel to resolve was not arbitrable. The issue was untimely raised, not properly preserved and was waived by the HFT.
This conclusion is also informed by the "the well settled principle that claims may not be raised for the first time in a reply brief." Haughwout v. Tordenti, 332 Conn. 559, 568 n.12, 211 A.3d 1 (2019). "[A]rguments first presented in a reply brief impair the opposing party’s opportunity to reply in writing." (Internal quotation marks omitted.) Mangiafico v. State Board of Education, 138 Conn.App. 677, 680, n.4, A.3d 1066 (2012). "[T]he function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim ..." (Citations omitted; internal quotation marks omitted.) Kelley v. Thomas, 66 Conn.App. 146, 163-64, 783 A.2d 1226 (2001). Moreover, the delay attendant to the proper raising of the arbitrability of the merits, following the submission of the merits, frustrate the benefits sought to be realized by arbitration, that is, the avoidance of "the formalities, delay, expense and vexation of ordinary litigation." Milford v. Coppola Construction Co., supra, 93 Conn.App. 709. The HFT therefore failed to preserve properly and waived the arbitrability of the vacation based severance due to Howe. The panel’s award thereby conformed to and was within the scope of the submission.
See also Nghiem v. NEC Electronic, Inc., 25 F.3d 1437 (9th Cir. 1994) (arbitrability of breach of employment contract claim waived by grievant where he voluntarily initiated arbitration, attended the hearings with representation, presented evidence and submitted a closing brief, only thereafter filing suit in state court on his breach of contract claim); Fortune, Alsweet & Eldridge, Inc. v. Daniel, 724 F.2d 1355, 1357 (9th Cir. 1983) (arbitrability waived where appellee’s representative attended three days of hearings and only thereafter claimed lack of arbitrability).
The second reason for vacating the Award advanced by the HFT is that the panel deviated from the submission because it had no right to change, add to, subtract from or modify any of the terms of the CBA in violation of Article IV, § 2. The HFT asserts that by adopting the precise formula suggested by the defendants, the panel deviated from the terms of the written contract, which constituted a modification of the contract terms. Further facts are necessary for the determination of this claim.
Article V, "Vacation," § 6, provided in pertinent part: "Any employee who terminated his/her employment ... shall be given prorated vacation pay in accordance with the following formula ... an employee with fifteen (15) years of service will get four (4) days for each ten (10) weeks of service." Notwithstanding the nomenclature of the Article, the panel interpreted this section to describe severance pay. It further interpreted the section to mean that Howe was entitled to "783 weeks of total employment service, divided by 10 weeks, multiplied by 4 days, which entitles him to 313.2 days of vacation pay. Since his daily rate of pay is $280.68, his total claim for prorated vacation pay is $87,908.98." Award, 6. The HFT posits that the panel erred because "vacation pay was to be computed based on weeks of ‘service’ and years of ‘service,’ as opposed to paid, but not worked, days (e.g. holidays, vacation days, funeral leave, personal leaves of absence, absences without leave, or sick leave)." Appl. to Vacate, 6. The interpretation of the CBA by the panel constituted, asserts the HFT, a miscalculation. Id., 7. Accordingly, in the estimation of the HFT, the Award constitutes a change, addition to, subtraction from, or modification of the terms of the written agreement that violates Article IV, § 2 of the CBA.
Because the argument is merely another way of saying that the panel’s interpretation of the CBA is erroneous, it is easily disposed of. The submission, defined as the designation of the issues to be decided by the arbitrators, was not restricted. The CBA did not reserve to the courts the authority to review the merits of an award by the arbitrators. See Hartford Steam Boiler Inspections & Ins. Co. v. Underwriters at Lloyd’s & Co. Collective, supra, 271 Conn. 473 (A designation of an issue to be decided by the arbitrators may be unrestricted even where the underlying agreement requiring arbitration limits the scope of what issues may be arbitrated.) "Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that ... the interpretation of the agreement by the arbitrators was erroneous." (Internal quotation marks omitted.) AFSCME, Council 4, Local 1303-325 v. Westbrook, 309 Conn. 767, 776, 75 A.3d 1 (2013). This basis for vacating the Award is therefore rejected.
The last basis for vacatur asserted by the HFT is that the Panel had no authority to determine if the HFT calculations applicable to Howe were also erroneous as to other union employees. "While the arbitration had the authority to determine if the employer violated the collective bargaining agreement in its calculation of the severance for the Grievant, James Howe, it did not have the authority to decide if [the HFT] violated the collective bargaining agreement for ‘other OPEIU employees hired before 7-1-2008.’ " Appl. to Vacate, 8. As with its claim of a lack of arbitrability relative to the vacation based severance pay calculation, this issue was also waived. Again, the issue was expressly designated for arbitration. To reiterate, the issue the HFT asked the panel to decide in the designation was "Did the HFT (employer) violate the collective bargaining agreement with OPEIU Local 376 (employees) concerning Article 5, Section 6 and other pertinent sections when it calculated the severance pay for employee James Howe and other OPEIU employees hired before 7-1-2008? If so, what shall be an appropriate remedy?" (Emphasis added.) The panel was simply asked to determine whether the methodology it applied to calculating severance pay for James Howe and other OPEIU employees hired before 7-1-2008, violated the CBA. The HFT received an answer to the question it posed. It should not now be heard to complain that the panel lacked the authority to answer that question. More importantly, at no time before the Award was rendered did the HFT assert the arbitrability of this question. The issue was not preserved and is therefore waived.
CONCLUSION
For the foregoing reasons, the HFT’s application to vacate is denied.