Opinion
No. CV-06-4005847
April 19, 2007
MEMORANDUM OF DECISION ON APPLICATION TO VACATE ARBITRATION AWARD
The Town of Clinton (the "Town") has filed an application to vacate an arbitration award concerning the calculation of retirement benefits for Albert Hawkes.
Factual and Procedural History
The Town's application to vacate the arbitration award alleges the following facts. The Town entered into a collective bargaining agreement with the International Brotherhood of Police Officers, Local 360 (I.B.P.O.), effective July 1, 2000 through June 30, 2004. On December 1, 2005, the defendant, the United Public Service Employees Association/C.O.P.S. Division, Local #360 (Union) was elected the exclusive bargaining representative of a bargaining unit of Town employees who work as regular, full-time investigating and uniformed police officers in the Clinton police department (bargaining unit). In 2004, a dispute arose between the parties concerning the Town's calculation of disability pension benefits for Corporal Albert Hawkes, a member of the bargaining unit.
The parties filed a stipulation of facts with the arbitrators on April 11, 2006, which contained the following: Hawkes was a Town police officer who suffered an injury during the course of his employment in February 2003. Hawkes underwent surgery and was placed on injury leave from the date of surgery pursuant to the terms of the collective bargaining agreement. In March 2004, the Town informed Hawkes that his injury leave would cease because he was unable to return to duty as a police officer. On March 8, 2004, Hawkes requested a disability retirement from the Town. Pursuant to the agreement, the Town police pension committee (pension committee) met and approved Hawkes' application on May 26, 2004, making it effective on June 1, 2004.
Hawkes disagreed with the pension committee's starting date, arguing that the pension should be effective April 1, 2004. On July 12, 2004, Hawkes' wife, Pollyanne Hawkes, requested a meeting with the pension committee to discuss alleged miscalculations in her husband's pension amounts. The pension committee, Hawkes' wife, and several lawyers met several times to discuss the alleged miscalculations. On September 10, 2004, the pension committee issued a written response to Hawkes' wife denying any change in the pension benefit calculations. The response stated that the pension committee had applied the terms of the Police Pension Plan, considered the options available to Mr. Hawkes, and had awarded him the greatest benefit permitted by the terms of the Pension Plan.
While Hawkes' wife pursued this matter with the pension committee, I.B.P.O., the union representing Hawkes at the time, filed a grievance on July 9, 2004, pursuant to the agreement. I.B.P.O claimed that Hawkes' disability pension should be computed based on his three highest years of salary. The Clinton chief of police subsequently denied the grievance. On July 12, 2004, the Clinton board of police commissioners met and discussed the grievance and denied it two days later. The Union requested arbitration of the grievance on October 5, 2004.
Article XVII of the agreement is titled "Grievance Procedure" and sets forth a four-step procedure.
The parties submitted the dispute to binding arbitration. The arbitration hearing, originally scheduled for January 11, 2006, later postponed to February 22, 2006, finally occurred on April 11, 2006. On April 3, 2006, the Town sent a letter to the state board of mediation and arbitration. (board), citing General Statutes § 31-97(b), challenging the board's subject matter on the ground that "[p]ursuant to the terms of the collective bargaining agreement, the Union failed to meet the timeliness of the grievance procedure." On April 4, 2006, the Town amended its challenge to arbitrability, alleging that "[t]he subject matter of the grievance is not arbitrable in that the Police Pension Plan at issue provides the exclusive remedy for the resolution of this dispute."
General Statutes § 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."
The arbitration hearing took place on April 11, 2006. The parties agreed to the following unrestricted submission:
1. Did the Union fail to meet the timeliness of the grievance procedure?
2. Does the Police Pension Plan provide the exclusive remedy for the resolution of this dispute?
3. Based on Nos. 1 and 2, is the matter arbitrable?
4. If so, did the Town violate the collective bargaining agreement/pension agreement between the parties by the manner in which it calculated the grievant's monthly disability benefits?
5. If so, what shall the remedy be, consistent with the contract/pension agreement?
The parties agreed to submit post-hearing briefs. The Town filed its brief on May 26, 2006, and the Union filed its brief on May 30, 2006.
On July 6, 2006, the arbitrators issued a written decision and award which held:
Issue No. 3 — Based on Issues No. 1 and 2, the matter is arbitrable.
Issues 1 and 2 were not considered valid due to their late introduction by the Town.
Issue No. 4 — The Town did violate the collective bargaining agreement/pension agreement between the parties by the manner in which it calculated the grievant's monthly disability benefit.
The arbitrators directed the following remedy:
Therefore, the remedy shall be, consistent with the contract/pension agreement, the following: The Town shall calculate the grievant's Disability Pension by using the entirety of Section 5.05 of Article V, relying on the exception in the final three lines only if it is to the benefit of the grievant.
The Town has moved to vacate the arbitration award on the grounds that the arbitrators (1) improperly failed to consider the Town's challenges to arbitrability, (2) lacked jurisdiction over the subject matter of the case, and (3) exceeded and/or improperly executed their authority in issuing the award.
Discussion of the Law and Ruling
"Judicial review of arbitral decisions is narrowly confined . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of [the court's] judicial review of the award is delineated by the scope of the parties' agreement." (Internal quotation marks omitted.) Stutz v. Shepard, 279 Conn. 115, 124, 901 A.2d 33 (2006). The Supreme Court has also "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 . . . Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator's powers, the parties are generally bound by the resulting award . . . [Finally] [t]he party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it . . ." (Internal quotation marks omitted.) Id.
Connecticut General Statutes § 52-418(a), provides, in pertinent part: "Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any of the following defects . . . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made." With regard to that statute, the Supreme Court has stated that "[i]n [its] construction of § 52-418(a)(4), [it has], as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers." (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 612, 887 A.2d 872 (2006).
Failure to Consider Challenges to Arbitrability and Subject Matter Jurisdiction of Arbitrators
The first ground offered by the Town for vacating the arbitration award is that the arbitrators exceeded their authority by concluding that the case was arbitrable. The Town argues that according to the general rule, the determination of whether a dispute is arbitrable is a question of law over which the courts have plenary review; the Town, however, does recognize that an exception applies when the parties have agreed to submit the question of arbitrability to an arbitrator in the agreement. Nevertheless, the Town argues that the language of the arbitration clause in the agreement does not expressly commit the question of arbitrability to the arbitrators nor does it indicate that the parties intended the arbitrators to have the authority to decide arbitrability instead of the courts.
"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 . . . 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.' " (Internal quotation marks omitted.) White v. Kampner, 229 Conn. 465, 472, 641 A.2d 1381 (1994). In White, the Supreme Court noted that because arbitration is favored, the court would defer to that alternative method of dispute resolution "if the contractual arbitration provisions fall within the grey area of arbitrability, employing the 'positive assurance' test . . ." (Citation omitted.) Id., 472-73. "Under this test, judicial inquiry . . . must be strictly confined to the question 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. Doubts should be resolved in favor of coverage." (Internal quotation marks omitted.) Id., 473.
The arbitrability issues in this case are similar to those considered by the Supreme Court in Policemen's Firemen's Retirement Board v. Sullivan, 173 Conn. 1, 376 A.2d 399 (1977). In Sullivan, the unions representing two police officers sought arbitration of a grievance initiated pursuant to the procedure provided in an agreement between the city of New Haven and the union. Id., 3. The union claimed that the dispute, which arose out of the denial of the officers' application for disability retirement, should go to arbitration under the terms of the agreement. Id. The policemen's and firemen's retirement board of the city of New Haven and the city of New Haven instituted an action in Superior Court seeking an injunction to restrain the unions and the officers it represented from proceeding with arbitration. Id. Simultaneously, the unions filed an action to compel arbitration. Id. Sullivan decided two issues: (1) whether the issue of the arbitrability of the grievance was a question for the court or for the arbitrator to decide, and (2) whether the particular issue was arbitrable.
Policemen's Firemen's Retirement Board v. Sullivan is a consolidation of two cases, which the Supreme Court treated in a single opinion since both cases were treated as companion cases throughout the course of their development. Policemen's Firemen's Retirement Board v. Sullivan, supra, 173 Conn. 1. "In the first case the plaintiffs, the Policemen's and Firemen's Retirement Board of the city of New Haven and the city of New Haven, sought an injunction, which was granted by the Superior Court, restraining and prohibiting the defendants from initiating or proceeding with arbitration. In the second case, the plaintiffs, New Haven Police Union Local 530 and Council 15, AFSCME, AFL-CIO, sought an order, which was denied, directing the defendant to proceed with arbitration. Local 530, Donald R. Sullivan and James Jackson appealed from the judgment in the first case and both unions appealed from the judgment in the second case." Id., 3.
Regarding the first issue, the Sullivan court examined the grievance procedure found in article 3 of the parties' agreement. The last step of the four-step process outlined, stated: "If the complainant and his representative, if represented, are not satisfied with the decision rendered, he or his representative may submit the grievance to the Connecticut State Board of Mediation and Arbitration, and the decision rendered by the arbitrator(s) shall be final and binding upon both parties." (Internal quotation marks omitted.) Id., 4. "In order to invoke article 3, the claimant must have a grievance, which is defined by article 3(b) as follows: 'A grievance for the purpose of this procedure shall be considered to be an employee or Union complaint concerned with . . . (4) Matters relating to the interpretation and application of the Articles and Sections of this Agreement.' " Id.
The agreement's definition of grievance includes three other definitions: "(1) Discharge, suspension or other disciplinary action. (2) Charge of favoritism or discrimination. (3) Interpretation and application of rules and regulations and policies of the Police Department."
In the present case, the grievance procedure is found in article XVII of the agreement. The last step in this four-step process states: "The decision of the arbitrators shall be final and binding provided it is not contrary to the law. The authority of the Board of Mediation and Arbitration shall be limited to the application and interpretation of the Agreement. It shall have no authority to add to or subtract from the Agreement." Article XVII section 1 of the agreement defines a grievance "as a dispute concerning one of the following . . . c) the interpretation and application of the Articles and Sections of this Agreement." The agreement language in the present case is nearly identical to the language interpreted by the court in Sullivan.
The first sentence in the grievance procedure in article XVII, step four, reads: "If the Board's decision is not satisfactory to the employee, the grievance may be submitted by the Union to the Connecticut State Board of Mediation and Arbitration within twenty (20) days after the decision of the Board."
The agreement's definition of grievance also includes two other definitions: "(a) a discharge, suspension or other disciplinary action; (b) a charge of discrimination . . ."
After addressing the grievance procedure, the court in Sullivan examined the agreement language to determine the boundaries of the dispute that the parties had agreed to submit to arbitration. The court found these boundaries in article 3, step 4(e): "The arbitrator(s) jurisdiction to make an award shall be limited by the submission and confined to the interpretation and/or application of the provisions of this Agreement." Policemen's Firemen's Retirement Board v. Sullivan, supra, at 5. In the present case, similar language is found in article XVII, step four: "The authority of the Board of Mediation and Arbitration shall be limited to the application and interpretation of the Agreement. It shall have no authority to add to or subtract from the Agreement."
The court in Sullivan stated that "[d]espite our acceptance of the federal rule favoring arbitration, we are unpersuaded that the language of this agreement requires that we send the question of the arbitrability of the dispute to arbitration." Id., 8. Given the similarity of the agreement language examined by the court in Sullivan and the agreement language in the present case, this court reaches the same conclusion as that of the court in Sullivan. The court in Sullivan noted that "[w]here the assertion by the claimant is that the parties excluded from court determination not merely the decision of the merits of the grievance but also the question of arbitrability, vesting power to make both decisions in the arbitrator, the claimant must bear the burden of a clear demonstration of that purpose." Id., 8-9. In this case, there is no clear demonstration of the parties' intent to have the question of arbitrability determined by the arbitrators given the language of their agreement. Therefore, according to the agreement between the Town and the Union, the parties have not clearly demonstrated an intent to have the arbitrators determine arbitrability.
In regard to the second issue decided in Sullivan, whether the particular issue was arbitrable, the court examined the following language from article 15 of the agreement: "Section 1. Police Pension Plan #1, and all amendments thereto, shall continue to be the Police Pension for all members of the Department employed prior to December 31, 1957. Section 2. Police Pension Plan #2, and all amendments thereto, shall continue to be the Police Pension for all members of the Department employed on or after January 1, 1958." (Internal quotation marks omitted.) Id., 5. An analogous provision in the present case is found in article X of the agreement, which states: "Employees shall be enrolled in the pension plan and be eligible for pension benefits in accordance with the parties' pension agreement."
Following its examination of the reference to the pension in the agreement, the Sullivan court stated: "Article 15 merely states which pension plans shall apply to which employees and states nothing about the provisions of either. Further, the pension plans were not established by the agreement, but were created by special act." Policemen's Firemen's Retirement Board v. Sullivan, supra, at 10. The court also found that the pension board was "a distinct entity which was not made a party to the agreement and could not, therefore, have agreed to grant its powers to an arbitrator, who derives his powers from the agreement." Id., 11. Having found that the language in the agreement did not incorporate the pension plan and that the pension board was a distinct entity, the court in Sullivan held that "[t]he pension plans are not incorporated by reference nor are they set forth verbatim in the agreement. It is, therefore, impossible to say that the substantive provisions of the pension plans were made part of the agreement or that the parties signified their willingness to submit pension disputes to arbitration." Id.
To bolster its conclusion that the pension plans were not incorporated by reference in the parties' agreement, the court in Sullivan also compared the provisions of article 15 of the agreement to article 17, § 1, of the agreement, which stated "[t]he City agrees to continue to provide for the member and his enrolled dependents, at no cost to the employee, the Blue Cross Semi-Private Room Plan with the Maternity Care Rider, Major Medical insurance coverage and the CMS Community Plan." (Internal quotation marks omitted.) Id. The court noted that "the parties, by agreeing to article 17, did not intend to allow the submission to arbitration of claims by covered employees which had been disallowed by Blue Cross, CMS or the major medical carrier." Id. The Sullivan court also concluded that "[n]o one is under a duty to submit any question to arbitration except to the extent that he has signified his willingness." (Internal quotation marks omitted.) Id., citing Conn. Union of Telephone Workers v. So. N.E. Telephone Co., 148 Conn. 192, 197, 169 A.2d 646 (1961).
In the present case, the Union argues that the direct reference to the pension agreement in article X constitutes an incorporation of the pension plan in the agreement. Thus, the Union argues that this court cannot say with positive assurance that the grievance is not covered by the arbitration provision of the collective bargaining agreement. The Union's argument is similar to an argument made by the plaintiffs in Sullivan. The rationale of Sullivan can be applied to the present case. The mere mention of the pension plan in the agreement between the Town and the Union does not constitute incorporation of the pension plan; the pension committee is a distinct entity; and the agreement fails to incorporate the pension plan verbatim. Moreover, Article X of the agreement explicitly mentions that employees must enroll in the pension plan in order to be eligible for pension benefits. While there is no mention in the preamble or the substantive provisions of the pension plan of its relationship to the agreement, the pension plan was amended, effective January 1, 2002, to incorporate the applicable requirements of a variety of outside acts, e.g., the Taxpayer Relief Act of 1997, but did not incorporate the agreement. In addition, while the agreement delineates a grievance procedure, the pension plan contains a procedure to be followed to secure a review of a denial of any claim for benefits under the plan. The record shows that Hawkes, through his wife, took advantage of this review procedure. Apparently unhappy with the result, Hawkes then chose to file a request to arbitrate under the agreement.
"The Clinton Police Department first adopted the Clinton Police Department Trusteed Pension Plan ('Trusteed Pension Plan'), effective July 1, 1971, to replace the Clinton Police Plan. The Trusteed Pension Plan was subsequently amended, effective January 1, 1979. Effective July 1, 1989, the Trusteed Pension Plan was amended and restated in its entirety, and was renamed The Clinton Police Department Pension Plan for Bargaining Unit Employees ('Plan'). Effective July 1, 1998, the Plan is being amended and restated in its entirety. Non-Bargaining Unit Employees are not eligible to participate in the Plan."
These facts are analogous to the facts in Sullivan where the defendants first went before the pension board, then, upon disagreeing with the pension board's result, filed a grievance through their union as provided for in the agreement. As in Sullivan, the defendants here could not proceed to arbitration because "[t]he pension plans [were] not incorporated by reference nor [were] they set forth verbatim in the agreement." Policemen's Firemen's Retirement Board v. Sullivan, supra, at 11. In light of the similarity of the two issues of arbitrability addressed by the court in Sullivan, this court applies the reasoning of that court and holds that (1) the issue of arbitrability in the present case is one for the trial court and (2) the dispute arising out of the pension plan is not arbitrable.
This court is not foreclosed from determining the question of the arbitrability of the dispute, although the parties initially submitted the question of arbitrability to the arbitrators. As the Supreme Court stated in White v. Kampner, supra, at 476, "there are two procedural routes by which [it] 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." This was the procedural route taken by the plaintiffs in Policemen's Firemen's Retirement Board v. Sullivan, supra. "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." (Internal quotation marks omitted.) Id. This is the procedural route taken by the plaintiffs in both the present case and White v. Kampner, supra, at 465.
Once a party files a motion to vacate an arbitration award on the ground that the arbitrators lacked the authority to arbitrate, the court must determine whether the moving party waived its right to preserve the issue of arbitrability because "[p]arties [may not] forego objections to arbitration, gambling upon a favorable result and, when losing . . . raise the procedural defects in a motion to vacate." (Internal quotation marks omitted.) White v. Kampner, supra, at 476-77. "[A] party who voluntarily submits a dispute to arbitration without objecting to the arbitrability of the dispute waives judicial review of that issue." Id., 477; see also New Britain v. Connecticut State Board of Mediation and Arbitration, 178 Conn. 557, 561, 424 A.2d 263 (1979).
With regard to the issue of waiver in the present case, the Town argues that it timely filed its arbitration challenge with the board; the Town's challenge was that the grievance filed by the Union was untimely and therefore not arbitrable. The Town argues that pursuant to § 31-91-23 of the Regulations of State Agencies and Connecticut General Statutes § 31-97(b), challenges to arbitrability shall be raised ten days prior to the arbitration date. The Town states that the arbitration in the present case was held on April 11, 2005, and the tenth day prior to that date was Saturday, April 1, 2005. The Town argues that because April 1 was a Saturday, it filed its arbitrability challenge on the following Monday, April 3, 2005, the first business day following the tenth day prior to arbitration.
The Town submits that the Union's grievance was untimely because pursuant to the grievance procedures outlined in the agreement, the Union should have submitted the grievance to arbitration within twenty days after the decision of the Board of Police Commissioners. The Town argues that the Board of Police Commissioners, through a written memorandum to the Union president, dated July 14, 2004, denied the grievance. The Town further argues that the Union had until August 3, 2004, to submit the matter to arbitration. Because the Union only submitted the matter to arbitration on October 5, 2004, the grievance was not timely appealed.
[Reg. Conn. State Agencies] Sec. 31-91-23 provides in relevant part: "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."
See footnote 2.
Citing to other arbitration cases, the Town argues that other arbitrators of the state board of mediation and arbitration, in addressing the issue of the timeliness of challenges to arbitrability under circumstances identical to those found in the present case, have found such challenges to be timely. In addition, the Town argues that it timely filed its objection pursuant to Practice Book § 7-17.
Practice Book § 7-17 provides: "Clerks' offices shall be open each weekday from Monday to Friday inclusive, between 9 o'clock in the forenoon and 5 o'clock in the afternoon, but they shall not be open on legal holidays. The chief court administrator may increase the hours of the clerk's office for the purpose of the acceptance of bonds or for other limited purposes for one or more court locations. If the last day for filing any matter in the clerk's office falls on a day on which such office is not open as thus provided or is closed pursuant to authorization by the administrative judge in consultation with the chief court administrator or the chief court administrator due to the existence of special circumstances, then the last day for filing shall be the next business day upon which such office is open. A document that is electronically received by the clerk's office for filing after 5 o'clock in the afternoon or a day on which the clerk's office is open or that is electronically received by the clerk's office for filing at any time on a day on which the clerk's office is closed, shall be deemed filed on the next business day upon which such office is open."
The Town contends that the Union, in addition to having notice of the Town's challenge, had sufficient time to address fully the Town's challenge. The Town argues that notwithstanding all of the above factors, the arbitrators chose not to consider whether the grievance was timely filed and proceeded to rule on the merits of the case.
While neither denying that its grievance was filed late nor that the Town had objected to arbitrability, the Union argues in opposition that the Town failed to challenge arbitrability in a timely manner. The Union argues that pursuant to subsection (b) of § 31-91-23 of the regulations, the Town should have objected to arbitrability at least ten days prior to the hearings scheduled for January 11, 2006, February 22, 2006 or April 11, 2006. The Union makes the same argument in regard to the statutory language, but adds that even if subsection (b) of § 31-97 allows the panel to entertain a "reasonable cause for failure of such party to comply with such notice requirement," the Town did not present sufficient evidence at the April 11, 2006 hearing to convince the arbitrators that reasonable cause existed to file the challenge outside the required time limit.
See footnote 2.
The date of the arbitration hearing was April 11, 2006, and the Town submitted its objection on April 3, 2006, eight days before the hearing date. The Town amended its objection the following day, on April 4, 2006. In the arbitration award dated Thursday, July 6, 2006, the arbitrators stated the following:
"On April 11, 2006, the parties jointly placed before the panel a series of five issues, the first two of which had to do with the question of arbitrability.
"As to the challenge to arbitrability initiated by the Town, it is worthwhile noting that this case was scheduled for January 11, 2006 and February 22, 2006 and thus postponed.
"This observation in no way precluded the Town for challenging arbitrability originally on April 3, 2006 (Issue No. 1) and a short time thereafter with reference to Issue No: 2. The Town suggested that the intervening weekend, following April 3, 2006 shall be considered in assessing the State Board of Mediation and Arbitration ten day notice requirement of its intention to do so.
"The panel notes that the Town fell short on this count."
In Brennan v. Fairfield, 255 Conn. 693, 694-95, 768 A.2d 433 (2001), the Supreme Court addressed the issue of whether statutorily required notice was untimely when it was "received by a town official on the ninety-second day, under a ninety day notice statute, when the municipal office that is authorized to receive the notice is closed on the ninetieth and ninety-first days." In support of its holding that notice received on the ninety-second day was sufficient to comply with the statute, given the circumstances of the case, the court looked to the common law: "At common law, when the terminal date for filing legal papers fell on a holiday or Sunday, the plaintiff was able to make performance on the following day." Id., 698.
The Brennan court also noted "that permitting filings past certain deadlines is an accepted practice in our courts. For example, Practice Book § 7-17 provides in relevant part: 'If the last day for filing any matter in the clerk's office falls on a day on which such office is not open . . . then the last day for filing shall be the next business day upon which such office is open.' " Id., 700. The court further noted that some statutes directly provide for extensions of the time for making certain filings when the terminal day falls on a weekend or a holiday, and although the statute in issue in Brennan did not explicitly provide for an extension of time, the court concluded that such an extension would be in keeping with the statute's overall purpose.
The same rationale applied by the Supreme Court in Brennan should be applied to Connecticut General Statutes § 31-97, particularly in light of the language in subsection (b) granting the arbitration panel discretion to allow an untimely challenge to arbitration if the panel "determines there was reasonable cause for the failure of [the party making the claim of lack of arbitrability] to comply with said notice requirement. Therefore, the arbitrators exceeded their authority by failing to consider the Town's challenges to arbitrability on the basis that the Town's challenges were untimely.
The second ground offered by the Town for vacating the arbitration award, that is, that the arbitrators lacked subject matter jurisdiction over the case, is related to the issue of the arbitrability of the dispute, and the discussion of these grounds is overlapping in the parties' memoranda. The Town argues that even if the grievance was timely filed with the board pursuant to the grievance procedures, another limitation on the arbitrators' authority to hear this case existed. That limitation was the arbitrator's lack of subject matter jurisdiction, which the Town argues it is entitled to raise at any time prior to a final court judgment.
The Town argues that a prior arbitration panel in the case Town of Clinton and IBPO Local 360, SBMA Case No. 9596-A-889 (January 14, 1998), examined the same language in the same agreement and applicable to the same bargaining unit as the language, agreement and bargaining unit found in the present case and concluded that it did not have jurisdiction over a claim involving the language in the agreement. Because that panel of arbitrators determined the same issue now in issue in the present case, the Town argues that the prior panel's determination that the Clinton pension plan provided the exclusive remedy over the issue should be given preclusive effect, thereby depriving the arbitrators of jurisdiction over the subject matter of the present case.
In Stratford v. International Assn. of Firefighters, AFL-CIO, Local 998, 248 Conn. 108, 118 728 A.2d. 1063 (1999), the Supreme Court held:
It is black letter law that arbitration awards are not entitled to the precedential effect accorded to judicial decisions. Indeed, an arbitration award is not considered conclusive or binding in subsequent cases involving the same contract language but different incidents or grievances . . . Courts reviewing inconsistent arbitration awards have generally concluded that arbitrators are not bound by the rationale of earlier decisions and that inconsistence with another award is not enough to justify vacating an award. (Internal quotation marks omitted; emphasis added.)
Given the clear language of Stratford, the second ground offered by the Town for vacating the award is unavailing.
The Arbitrators Exceeded Their Authority in Issuing the Award
The third ground advanced by the Town to vacate the award is that the board, in issuing the award, exceeded or improperly executed its authority. Specifically, the Town argues in its memorandum of law in support of its application to vacate: "The arbitrators' award on the merits . . . is confusing and contradictory, and did not resolve the issue presented to them. The arbitrators granted the grievance, but then issued an order that the Town calculate the retirement benefit for Mr. Hawkes in the exact same manner as the Town did prior to arbitration. The ruling is truly one where a definite award has not been issued by the arbitrators. Under such circumstances, vacatur is appropriate."
In finding the dispute arbitrable, the arbitrators in the present case required the parties to arbitrate a dispute that this court has found to be outside the limits of their agreement to arbitrate. Moreover, while "[j]udicial review of unrestricted submissions is limited to a comparison between the submission and the award to see whether, in accordance with the powers conferred upon the arbitrators, their award conforms to the submission"; New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988); "the mere conformity of the submission to the award does not foreclose the court from reviewing whether that award is in violation of the parties' agreement." White v. Kampner, supra, at 476. In White, the court was required to analyze the agreement language at issue to determine whether the parties were required to participate in mandatory negotiation sessions prior to arbitration. The court found that the sessions were a condition precedent to arbitration and the determination of whether these sessions had been held was not an arbitrable issue under the language of the agreement. Id., 475. The court noted that "a person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner in which, he has agreed so to do." (Internal quotation marks omitted.) Id., 471. The trial court vacated the arbitration award because the plaintiff in White never contracted to arbitrate the issue presented before the arbitrators.
In the present case, there is nothing in the agreement between the Town and the Union to indicate that the Town contracted to arbitrate issues regarding the pension plan; in reaching such issues the arbitrators exceeded their authority, a defect justifying a vacation of the award pursuant to General Statutes § 52-418(a)(4).
Under the language of the parties' agreement, the issue of arbitrability was one for the trial court, and the issue in regard to the pension benefits was not arbitrable. The Town preserved its right to bring the issue of arbitrability before the trial court because it filed a timely objection. The arbitrators exceeded their powers in finding that the issues were arbitrable. Based on the foregoing, the Town's motion to vacate the arbitration award is hereby granted.
By the court,