Opinion
No. CV03-0176039S
June 4, 2003
MEMORANDUM OF DECISION
This matter came to the court by way of an application for ex parte injunction and order to show cause wherein the Town of Southbury and Alfie Candido, were seeking injunctive relief against Southbury Police Union and the State Board of Mediation and Arbitration. The injunctive relief requested that the defendants be enjoined from proceeding to arbitrate a certain matter before the State Board of Mediation and Arbitration, namely case number 2001-A-0325. By agreement of the parties and pursuant to an order entered by Pittman, J., on February 5, 2003, an application for an order to proceed with arbitration was filed with the Court on February 24, 2003. Thereafter, an objection to defendant's application for an order to proceed with arbitration together with a brief in support of the objection were filed on March 21, 2003. The matter was set down for a hearing on the motion to compel with the court on March 31, 2003. Counsel for parties appeared and the court entertained oral argument.
Plaintiff and the defendant are parties to a collective bargaining agreement. Not surprisingly, the agreement authorized that grievances proceed to arbitration. The defendant union filed a grievance on behalf of the grievant, Kevin Burns, on July 19, 2000, claiming that the plaintiff town had violated Article XIV of the Collective Bargaining Agreement. The grievance procedure set forth in Article VIII of the Collective Bargaining Agreement, authorizes a grievance defined as "a dispute between the town and the employee or the town and the union involving an alleged violation, misapplication or misinterpretation of a specific provision of this agreement, or an issue relating to the health and safety," be arbitrated by the State Board of Mediation and Arbitration, if not settled at a preliminary grievance step. The grievant claims that he was arbitrarily denied a promotion in violation of Article XIV. The parties dispute the application and interpretation of the contractual language of Article XIV of the Collective Bargaining Agreement.
ARTICLE XIV BILL OF RIGHTS
A. Each employee shall be expected to render a full and fair day's work in an atmosphere of mutual respect and dignity, and free from abusive and/or arbitrary conduct by supervisors.
In determining whether a case is arbitrable, the Connecticut Supreme Court has endorsed the "positive assurance" test as set out in United Steelworkers of America v. Warrior Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); White v. Kampner, 229 Conn. 465 (1994). Sacred Heart Teachers' Association v. Sacred Heart High School Corporation, 65 Conn. App. 195, 199 (2001)
Under the "positive assurance" test, inquiry "must be strictly confined to whether the reluctant party did agree to arbitrate the grievance . . . An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. White v. Kampner, at 472-73." Sacred Heart Teachers v. Sacred Heart, 65 Conn. App. at 199, 200.
The contract language relied upon by the plaintiff, Town of Southbury, does not necessarily lead to where the plaintiff would like to take us.
The Management Rights Clause, in Article XI, provides, in relevant part,
Except as otherwise provided by the express provisions of this Agreement, the Town reserves and retains, whether exercised or not, all the lawful and customary rights, powers and prerogatives of public management. Such rights include but are not limited to . . . the appointment, promotion, assignment, direction and transfer of personnel . . .
There is no reason to necessarily preclude the imposition of the prohibition on "abusive and/or arbitrary conduct" onto the Management Rights Clause. The provisions are capable of being read consistently. Instructively, the town doesn't argue that the Management Rights Clause would allow a supervisor to "assign, direct or transfer" in an arbitrary manner.
Similarly, Article VI provides in relevant part,
The First Selectmen/Police Chief has the sole responsibility for determining selection criteria for the position of corporal.
The use of the word "criteria," suggests the very antithesis of arbitrariness.
Finally, the chief's power to demote or reassign a corporal during the probationary period contained in Article VI E is limited to performance standards.
E. Police Officers who have been promoted to Corporals shall serve a qualifying period of one year. Whenever during the qualifying period, it shall be determined by the First Selectman that the employee is not satisfactorily performing the duties of a position to which he or she has been promoted, he or she shall be reassigned to his or her previous position.
In this case, the arbitration clause of the CBA certainly allows for an interpretation which makes the grievance arbitrable. The clause states specifically that the Union may arbitrate a grievance alleging a "violation" of a "specific provision" of the Agreement.
Dubay, J.