Opinion
No. CV02 0080150S
July 28, 2003
MEMORANDUM OF DECISION RE MOTION TO DISMISS ( #106)
FACTS AND PROCEDURAL HISTORY
The plaintiff, Penelope Smith, widow of City of Milford (city) police officer, Daniel Smith brought the current action against the defendant Pension and Retirement Board of the City of Milford (board) in three counts seeking mandamus, declaratory relief and damages for breach of contract alleging that plaintiff is entitled to certain increases in pension benefits.
Daniel Smith was employed as a full-time police officer with the city until his retirement in 1985. The plaintiff married Daniel Smith subsequent to his retirement.
There are two, now expired, agreements at issue, the collective bargaining agreement between the city and Milford Police Union Local No. 899 and the pension agreement between the union and the city.
The complaint alleges the following. Daniel Smith was employed as a Milford police officer from November 11, 1957 until his retirement on February 22, 1985. Upon his retirement he was entitled to a board approved, service connected disability pension. Section 3 of the pension agreement provides for the payment to retirees and widows of deceased retirees of incremental increases of "fifty (50) percent of the maximum amount of each salary increase granted to employees of the classification held by such widow's or widower's husband or wife at the time of his or her death or retirement as the case may be." On September 13, 2000, Daniel Smith died.
The plaintiff made demand on the city for payment of certain benefits under Section 3 of the pension agreement. The city denied the plaintiff's request. The instant action followed.
On February 20, 2003, the defendants filed the present motion to dismiss on the ground that the plaintiff failed to exhaust her administrative remedies by failing to file a grievance and by failing to pursue her claim though arbitration as provided for in a collective bargaining agreement. The defendants have attached a corresponding memorandum of law in support of their position, and have since filed a supplemental memorandum of law.
On March 10, 2003, the plaintiff filed a memorandum of law in opposition to the defendant's motion to dismiss. She has since filed a supplemental memorandum of law in support of her position.
DISCUSSION
"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.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "It is well established that [i]n 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.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999).
"Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Konover v. West Hartford, 242 Conn. 727, 740, 699 A.2d 158 (1997). "[O]nce the question of a lack of subject matter jurisdiction of a court is raised, it must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Community Collaboration of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997).
The defendant argues that the motion to dismiss should be granted as the court lacks subject matter jurisdiction. The defendant argues that the pension agreement is incorporated into the collective bargaining agreement, and because the plaintiff stands in the shoes of the deceased retiree, the grievance procedure must be followed, and therefore the plaintiff's complaint should be dismissed.
The plaintiff, on the other hand, contends that the court has subject matter jurisdiction. Specifically, the plaintiff argues that she is not subject to the grievance procedure as she is a third-party beneficiary rather than an employee.
"It is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement . . . Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct 903, 17 L.Ed.2d 842 (1967); Republic Steel Corporation v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); Hartford Principals' Supervisors' Assn. v. Shedd, 202 Conn. 492, 500, 522 A.2d 264 (1987); School Administrators Assn. v. Dow, supra, [ 200 Conn.] 381-82." Daley v. Hartford, 215 Conn. 14, 23, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 525 (1990). "Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction." (Internal quotation marks omitted.) Hartford v. Hartford Municipal Employees Association, 259 Conn. 251, 283, 788 A.2d 60 (2002).
The 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 agreements." (Internal quotation marks omitted.) School Administrators Assn. v. Dow, 200 Conn. 376, 382, 511 A.2d 1012 (1986); see Republic Steel Corp. v. Maddox, supra, 379 U.S. 650; see also Tedesco v. Stamford, 222 Conn. 233, 250-52, 610 A.2d 574 (1992); Harwinton Drilling Engineering Co. v. Public Utilities Control Authority, 188 Conn. 90, 93, 448 A.2d 210 (1982).
Article XII of the collective bargaining agreement sets out the grievance procedure for employees to follow. Article XII, section 2 of the collective bargaining agreement, provides that `any employee may use this grievance procedure with or without Union assistance." (emphasis added.) Section 2 further provides that employees must use the grievance procedure for "[m]atters relating to the interpretation of the articles and sections of this agreement." (Emphasis added.)
It is undisputed that Daniel Smith was a retired employee at the time of his death. It is also undisputed that the plaintiff is a third-party beneficiary of the pension agreement.
In Flynn v. Town of Newington, 2 Conn. App. 230, 237-38, 477 A.2d 1028, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984), the Connecticut Appellate Court, following the precedent of federal appellate courts, held that retired employees and third-party beneficiaries are not required to exhaust the administrative grievance procedure and may directly seek redress though the courts. The court stated: "The legal remedies of a pensioner are not wholly prescribed by the collective bargaining agreement itself but by standard contractual principles, including promissory estoppel and third-party beneficiary principles. Note, `Pension Plans and the Rights of the Retired Worker,' 70 Colum. L. Rev. 909, 916-17 (1970). Retirees are not employees for the purposes of the National Labor Relations Act, and the union which may have represented them while they were active members of the bargaining unit is under no statutory duty to represent them in negotiations with their former employer. Allied Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971). A retired employee has contractual rights under a collective bargaining agreement for which he may independently seek redress regardless of whether the union chooses to represent him. Id., 181 n. 20. The signatories to a collective bargaining agreement are not the only entities with rights which arise from that contract. The trustees of a pension and welfare fund are third-party beneficiaries of the agreement and are not bound by the grievance-arbitration provisions of an agreement under federal law statutes, allowing them a direct right of access to the courts, without the necessity of arbitration. Robbins v. Prosser's Moving Storage Co., 700 F.2d 433, 436-37 (8th Cir. 1983). Although active employees are deprived of the ability to deal with or directly sue their employer when their bargaining agent has entered into a collective bargaining agreement with the employer, retired employees have no duty to exhaust arbitration procedures required by the agreement before bringing a direct action against their employer. Anderson v. Alpha Portland Industries, 727 F.2d 177, 184-85 (8th Cir. 1984)." (Emphasis added.) Id. Thus, the plaintiff was not required to file a grievance before initiating the present action.
Nevertheless, the plaintiff further argues that she is not subject to the grievance procedure as she is bringing a claim under the pension agreement, rather than the collective bargaining agreement. The defendant, on the other hand, contends that the pension agreement was incorporated into the collective bargaining agreement.
"Generally, incorporation by reference of existing documents produces a single contract which includes the contents of the incorporated papers. Where . . . the signatories execute a contract which refers to another instrument in such a manner as to establish that they intended to make the terms and conditions of that other instrument a part of their understanding, the two may be interpreted together as the agreement of the parties." (Internal quotation marks omitted.) Randolph Construction Co. v. Kings East Corporation, 165 Conn. 269, 275, 334 A.2d 464 1973).
In this case, Article VII of the collective bargaining agreement states: "Members of the Police Department will receive Pensions in accordance with the Pension Agreement between the Union and the City dated April 5, 1979."
Although the collective bargaining agreement references the pension agreement, the court finds that Article VII of the collective bargaining agreement does not manifest an intent to incorporate the provisions of the pension agreement. Rather, the court finds that the language demonstrates that the parties intended the pension agreement to be a separate and distinct contract. This conclusion is supported by the fact that the grievance procedure, as found in Article XII of the collective bargaining agreement, requires that a member first file a complaint with the member's division commander. Certainly a retiree or a survivor is not going to have a division commander.
For the foregoing reasons, the court denies the motion to dismiss and sustains the objection to it.
THE COURT
By Cremins, J.