Opinion
No. CV 04 0085514 S
April 13, 2006
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
This is an action instituted by the plaintiff, Seymour Board of Education, against the defendant union, Seymour Education Association. Pursuant to a collective bargaining agreement between the parties, the defendant, on behalf of a group of Seymour public school teachers, filed a grievance against the plaintiff contending that the plaintiff failed to recognize the teachers as members of the teachers' bargaining unit during a time period when they worked as tutors. The grievance was denied by the plaintiff on the ground that it was not filed within the required time limits of the collective bargaining agreement. In response to this denial, the defendant made a demand for arbitration with the American Arbitration Association as provided under the agreement.
Article IV, Section C of the Collective Bargaining Agreement provides the following: "Since it is important that the grievances or disputes be initiated and processed as rapidly as possible, the number of days indicated at each level should be considered as maximum and every effort should be made to expedite the process. The time limits specified may, however, be extended by mutual agreement. If a member of the unit does not file a written grievance with the President of the Association committee established to administer the grievance procedure, or forward a written grievance to his immediate supervisor within thirty (30) school days after the member of the unit knew or should have known of the act or condition on which the grievance is based, then the grievance shall be waived."
Article IV, Section C.4.a. of the Collective Bargaining Agreement provides the following: "In the event that the aggrieved member of the unit is not satisfied with the disposition of his grievance at Level Three, or in the event no decision has been rendered within thirty (30) school days after he has first met with the Board Committee, he/she may, within ten (10) school days after a decision by the Board or thirty-five (35) school days after he has first met with the Board Committee, whichever is sooner, present a request in writing to the President of the Association and the Board to submit the grievance to arbitration."
In the present action, the plaintiff seeks a declaratory judgment that the grievance is not arbitrable because it was not timely filed, and on this ground, the plaintiff also seeks an injunction precluding the arbitration. The parties have submitted the case for disposition on the basis of stipulated facts. The parties have also filed memoranda in support of their positions.
The plaintiff's position emphasizes that the collective bargaining agreement requires a grievance to be filed "within thirty (30) school days after the member of the bargaining unit knew or should have known of the act or condition on which the grievance is based." The plaintiff insists that there is no dispute that the defendant became aware that the plaintiff hired reading tutors that were not recognized as part of the bargaining unit as early as 1979. Moreover, by September 1997, all of the tutors at issue had been hired by the plaintiff in different positions that were part of the teachers' bargaining unit. Thus, the plaintiff argues that the grievance is not arbitrable because the defendant knew about the matter many years before the filing of the grievance, and therefore, the grievance was filed beyond the time limitations of the collective bargaining agreement.
The parties' stipulated facts indicate that this dispute was also the subject of a grievance filed by the defendant in September 1980, but the parties do not indicate how this grievance was resolved. The stipulation also indicates that one of the teachers (and the primary, individual grievant), Joan Belinsky, retained counsel and contacted the plaintiff about this issue in December 2000. The plaintiff responded to Ms. Belinsky by indicating that she was not entitled to anything from the plaintiff relating to the time she worked as a tutor. The defendant was aware of these communications.
The defendant's response is that the plaintiff's failure to recognize correctly these teachers' past service is depriving them of longevity pay and other benefits relating to seniority, and therefore, the plaintiff's conduct represents a continuing violation of the collective bargaining agreement. The defendant contends that this continuing conduct creates an ongoing violation of the agreement, which in turn, operates to make the filing of the grievance timely. See generally American Fabrics Company v. United Textile Workers of America, Local 240, 12 Conn.App. 642, 533 A.2d 579 (1987).
In American Fabrics Company v. United Textile Workers of America, Local 240, 12 Conn.App. 642, 533 A.2d 579 (1987), the Appellate Court applied the "continuing violation" doctrine in a case where the agreement provided that a grievance was required to be filed within ten days of "the occurrence of the condition giving rise to the grievance." Id., at 647. As previously stated, in the present case, the limitation provision requires the grievance to be filed "within thirty school days after the member of the unit knew or should have known of the act or condition on which the grievance is based." The court ordered the parties to file supplemental memoranda to address whether the differences between these limitation provisions were legally significant to the application of the continuing violation doctrine. See, e.g., Rosato v. Mascardo, 82 Conn.App. 396, 402-08, 844 A.2d 893 (2004) (discussing the application of the continuing course of conduct doctrine to the statute of limitations and the statute of repose provisions of General Statutes § 52-584).
For the following reasons, the court does not address the substantive merits of the parties' dispute concerning arbitrability. Contrary to the parties' position, the court concludes that under the arbitration provision of the parties' agreement the question at issue is a matter for arbitral, rather than judicial determination, and as a consequence, the complaint should be dismissed.
DISCUSSION
The law is well established that "arbitration is the favored means of settling differences . . ." (Internal quotation marks omitted.) Diamond Fertiliser Chemical Corp. v. Commodities Trading International Corp., 211 Conn. 541, 546, 560 A.2d 419 (1989). "[The Supreme Court of Connecticut] has long recognized and endorsed arbitration as an alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation." (Internal quotation marks omitted.) Id.
Nevertheless, in the absence of a statute, a party's obligation to arbitrate is dependent on and determined by the parties' contract. "Parties who have contracted to arbitrate certain matters have no obligation to arbitrate any matters other than those which they have agreed to arbitrate . . . Whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question also." (Citation omitted; internal quotation marks omitted.) Security Ins. Co of Hartford v. DeLaurentis, 202 Conn. 178, 182-83, 520 A.2d 202 (1987). Consequently, "[t]he function of the court . . . is to determine, in the first instance, whether the issue is arbitrable. If the court so decides, an order compelling arbitration is issued. If, on the other hand, the court decides that the issue is not arbitrable, it can proceed to decide the issue on the merits." Id., at 187.
Thus, the court must first address whether the procedural issue concerning the timeliness of the grievance has been committed to arbitral determination. This evaluation is controlled by the parties' intent as expressed by the language of their collective bargaining agreement. "The intention to have arbitrability 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.'" White v. Kampner, 229 Conn. 465, 472, 641 A.2d 1381 (1994) (Citation omitted; internal quotation marks omitted).
The arbitration provision contained in the parties' collective bargaining agreement is broad and unconditional. The provision provides that a person whose grievance has not been favorably resolved may "submit the grievance to arbitration." [See fn. 2.] This broad language providing for the unrestricted submission of all disputes relating to a grievance not satisfactorily resolved, places no limitations on what issues may be decided by the arbitrators, including issues concerning arbitrability. Consequently, the parties must submit their dispute about the timeliness and arbitrability of the defendant's grievance to the arbitrator. This conclusion is dictated by controlling precedent. East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 539 A.2d 125 (1988); Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 318 A.2d 84(1972); College Plaza, Inc. v. Harlaco, Inc., 152 Conn. 707, 206 A.2d 832 (1965).
In East Hartford v. East Hartford Municipal Employees Union, Inc., supra, 206 Conn. 643, the Supreme Court held that the trial court erred in concluding that it had the authority to determine whether a grievance was timely. The lower court decision was incorrect because the parties had contractually empowered the arbitrators to decide the question of arbitrability as part of their unlimited submission of the dispute to arbitration. "Numerous courts have held that questions of contractual time limits in collective bargaining agreements upon which the arbitrability of a dispute may depend are arbitrable unless the contract specifically provides otherwise, and also have refused to apply a higher standard of review concerning this type of issue." Id., at 652.
Similarly, in Gary Excavating, Inc. v. North Haven, supra, 164 Conn. 119, a contract provided that contract disputes had to be presented to the defendant within ten days of the dispute, and if not so presented, they would be deemed waived. The contract also provided that the plaintiff could demand arbitration as to any disputed decision rendered by the defendant. After the parties became embroiled in a contract dispute, the plaintiff instituted suit seeking an order compelling arbitration. The defendant opposed the suit on the ground that the plaintiff did not timely assert the claim according to the terms of the contract, arguing that the court had the authority to find that the claim was untimely and not arbitrable. The Supreme Court affirmed the trial court's rejection of the defendant's argument, holding that the broad, unrestricted nature of the parties' arbitration agreement committed the issue of arbitrability to the arbitrators: "Since the [plaintiff] could demand arbitration of any decision of the [defendant], it could demand to arbitrate a conclusion by the [defendant] that [the plaintiff] had waived claims or failed properly to demand arbitration." Id., at 123-24.
Interestingly, both parties in the present case contend that the court, and not the arbitrator, has the authority to determine whether the defendant's grievance was timely filed and is therefore subject to arbitration. As just explained, both parties are wrong. The plaintiff contends, with the defendant apparently agreeing, that a party may raise the issue of arbitrability in the first instance either with the court or an arbitrator, and that "[r]ecourse to the court to decide arbitrability as a matter of law is therefore available irrespective of the terms of any agreement between the parties." Memorandum of Law In Support of Declaratory Judgment, p. 7. As the previous discussion indicates, this contention erroneously states the law because settled precedent establishes that the parties may agree to commit the issue of arbitrability to the arbitrator's determination, and when they do, this agreement must be enforced by the court in the absence of any modification. Gary Excavating, Inc. v. North Haven, supra, 164 Conn. 119; College Plaza, Inc. v. Harlaco, Inc., supra, 152 Conn. 707.
To support the view that the arbitrator's discretion is limited by the terms of the collective bargaining agreement, the plaintiff relies on the provision of the agreement placing the time limit on the filing of grievances [See fn. 2], and the defendant relies on the provision of the agreement defining the parameters of a grievance. These provisions may be relevant to an interpretation of the contract but neither party directs any attention to the most crucial part of the agreement, which is the arbitration provision itself. The arbitration provision simply provides that any unsatisfactory resolution of a grievance may be submitted to arbitration.
Article IV.B.1. of the Collective Bargaining Agreement provides the following: "A grievance shall mean a complaint by teachers or a group of teachers that there has been a violation, misinterpretation, or misapplication of a specific provision of this Agreement and/or a past practice."
The essence of the parties' claims is that under the collective bargaining agreement, only substantive disputes, and not procedural disputes such as the timeliness of a grievance, are proper subjects for arbitration, but this view is not supported by the express language of their agreement. "Nowhere does the contract affirmatively state that failure to comply with these procedures for notice of claims . . . will operate as a bar to arbitration." Gary Excavating, Inc. v. North Haven, supra, 164 Conn. 123; see also, East Hartford v. East Hartford Municipal Employees Union, Inc., supra, 206 Conn. 643 (rejecting an argument that a different standard of judicial review should be applied to an arbitrator's procedural, as compared to substantive decisions).
The cases relied on by the parties are also inapposite. They either involve cases where the arbitration of disputes under insurance policies was statutorily limited to "coverage" disputes; see, e.g., Security Ins. Co of Hartford v. DeLaurentis, supra, 202 Conn. 178; or cases where the submissions to arbitration were expressly limited or conditioned. See, e.g., White v. Kampner, supra, 229 Conn. 465; Conn. Union of Telephone Workers v. So. N.E. Telephone Co., 148 Conn. 192, 169 A.2d 646 (1961).
CONCLUSION
Therefore, for the foregoing reasons, the complaint filed by the plaintiff Seymour Board of Education is hereby dismissed.
So ordered.