Opinion
HHBCV126017119S.
10-31-2012
UNITED PUBLIC SERVICE EMPLOYEES UNION v. CONNECTICUT STATE BOARD OF LABOR RELATIONS et al.
UNPUBLISHED OPINION
ROBERT F. VACCHELLI, Judge.
This case is an administrative appeal from the July 3, 2012, decision of the defendant, Connecticut State Board of Labor Relations (Labor Board) dismissing petitions filed by the plaintiff, United Public Service Employees Union (UPSEU), pursuant to the State Employee Relations Act (SERA), also known as the Collective Bargaining for State Employees Act, particularly General Statutes § 5-275, seeking elections for it to be designated the exclusive representative for certain bargaining units of employees of the State of Connecticut and for decertification of existing bargaining representatives. Other defendants in the case are: CSEA/SEIU, Local 2001; State Employees Bargaining Agent Coalition (SEBAC); the State of Connecticut, Judicial Branch and Division of Criminal Justice (State); and the American Federation of Teachers (AFT-CT). In advance of the hearing on the merits, the defendants, Labor Board and State, have filed motions to dismiss arguing that the enabling statutes contain no right to appeal from the Labor Board's decision in this circumstance and, therefore, the plaintiff has failed to invoke the court's subject matter jurisdiction. (Doc. Nos. 103.00 and 116.00.) All defendants support the motions to dismiss. The plaintiff is opposed to those motions. For the following reasons, the court grants the motions to dismiss and, accordingly, enters judgment dismissing the case.
I
" 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 ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Citation omitted; internal quotation marks omitted .) R.C. Equity Group, LLC v. Zoning Commission of the Borough of Newtown, 285 Conn. 240, 248, 939 A.2d 1122 (2008).
" Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ... The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Citation omitted; internal quotation marks omitted.) Bingham v. Dept. of Public Works, 286 Conn. 698, 701, 945 A.2d 927 (2008). " Unless an appeal from an administrative agency is authorized by statute, courts do not have jurisdiction to entertain such an appeal ." (Citations omitted.) Windsor v. Windsor Police Department Employee's Assn., Inc., 154 Conn. 530, 534, 227 A.2d 65 (1967). The issue is properly tested by a motion to dismiss. Windsor v. Windsor Police Department Employee's Assn., Inc., supra (affirming the granting of a motion to erase, the predecessor pleading to the modern motion to dismiss).
" [I]n ruling [on] 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[.]" (Citation omitted; internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 290, 933 A.2d 256 (2007). Where subject matter jurisdiction is involved, it may also consider any affidavits or other uncontroverted evidence, and even conduct an evidentiary hearing when appropriate. See, e.g., Fennelly v. Norton, 103 Conn.App. 125, 139 n. 11, 931 A.2d 269 (2007), cert. denied, 284 Conn. 918, 931 A.2d 936 (2007); Bellman v. Town of West Hartford, 96 Conn.App. 387, 394, 900 A.2d 82 (2006); Manifold v. Ragaglia, 94 Conn.App. 103, 121, 891 A.2d 106 (2006). " [I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) Novak v. Levin, 287 Conn. 71, 79, 951 A.2d 514 (2008).
" The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Citation omitted.) Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
II
The essential facts necessary for resolution of the motions to dismiss, gleaned from the complaint, record submissions of the parties and undisputed facts, are as follows: The plaintiff, UPSEU, filed petitions for elections with the Labor Board on August 31, 2011, in which it subscribed and swore that there were at least 30 per cent or more employees, in each respective bargaining unit, that wanted to be represented by the UPSEU. It also petitioned that the respective incumbent representatives; CSEA/SEIU Local 2001; Local 749, Council 4, AFSCME, AFL-CIO; AFT/AFT-CT, AFL-CIO Professional Judicial Employees; IBPO, Local 731, Judicial Marshals; and Local 749, AFSCME, AFL-CIO; be decertified. Additionally, it petitioned the Labor Board to certify UPSEU as the official bargaining representative for the units involved.
As a result of the petitions, informal hearings were held. During the initial informal hearing, the agent for the Labor Board, Katherine Foley, found that each petition filed was supported by a sufficient showing of interest to require an election. In addition, pursuant to Section 5-273-11 of the Regulations of Connecticut State Agencies, the incumbent unions demonstrated that at least 10 per cent of the employees from their respective bargaining units expressed a desire to have their respective incumbent unions remain as exclusive representatives. Consequently, the incumbent unions, along with the employer, State of Connecticut, Judicial Branch and Division of Criminal Justice (State), were permitted to intervene. The incumbent unions and the State raised multiple objections. Most pertinent to the issues in the instant motions to dismiss, the issues before the Labor Board were: (1) whether the UPSEU's petitions were untimely under the contract bar rule, General Statutes § 5-275(a)(3) and Regs., Conn. State Agencies § 5-273-10(b); and (2) whether the contract bar deadline was illegally changed due to a failure to follow mandatory supersedence rule procedures, General Statutes § 5-278(b) and (e). SEBAC was permitted to intervene for the limited purpose of addressing the supersedence issue.
Regs., Conn. State Agencies § 5-273-11 provides:
General Statutes § 5-275(a)(3) provides, in pertinent part, as follows:
Section 5-273-10(b) of the Regulations of Connecticut State Agencies provides, in pertinent part, as follows:
General Statutes § 5-278(b) provides, in pertinent part, as follows:
General Statutes § 5-278(e) provides, in pertinent part, as follows:
Formal hearings regarding the petitions were held before the panel of Chair Patricia V. Low, Wendella Ault Battey and Robert A. Dellapina on December 19, 2011, January 11, February 9 and February 15, 2012. The Labor Board, in a 2 to 1 vote, dismissed the petitions on the grounds that they were untimely under the contract bar rule; and it rejected UPSEU's argument that the deadline had been illegally changed due to failure to follow the supersedence rule procedures.
With respect to the issues pertinent to the instant motions to dismiss, the Labor Board found that the various incumbent unions were parties to certain collective bargaining agreements with the State with effective dates of July 1, 2008 or 2009 to June 30, 2012. It further found:
23. On May 22, 2011, representatives of SEBAC and the State executed a written tentative agreement (the SEBAC Agreement) (Ex. 40) effective to June 30, 2022, to which were appended Attachments A through D that provided, in relevant part:
* * * *
ATTACHMENT A
* * * *
D. Expiration date of individual collective bargaining agreements. All individual collective bargaining agreements shall expire effective June 30, 2016.
24. In June of 2011 eleven of SEBAC's fifteen member unions voted to accept the SEBAC Agreement which was insufficient for full ratification under SEBAC's then existing bylaws and so the SEBAC Agreement was rejected.
25. On July 1, 2011 the General Assembly enacted Public Acts, Spec. Sess., June 2011, No. 11-1, § 11(a) (Ex. 29) which states, in relevant part:
(a) Not later than five calendar days after an agreement between the state and the State Employees Bargaining Agreement Coalition ... is filed with the clerks of the Senate and House of Representatives, or August 31, 2011, whichever occurs first, the General Assembly may call itself into special session for the purpose of approving or rejecting any such agreement ... if the General Assembly does not call itself into special session ... such agreement and any appendices filed with such agreement shall be deemed approved by the General Assembly as of the date such agreement was filed with the clerks ...
26. On various dates in July prior to July 22, 2011, representatives of the State and SEBAC met and discussed another potential SEBAC agreement.
27. On July 22, 2011 representatives of SEBAC and the State executed another written tentative agreement (the Revised SEBAC Agreement), the first fourteen pages of which were largely identical to the May 22, 2011 SEBAC Agreement [the Revised SEBAC Agreement differs from the May 22, 2011 SEBAC Agreement as to its title and date of execution] and to which were appended certain attachments that did not include an Attachment H. (Ex. 23.)
28. On or about August 16 and 17, 2011 individual collective bargaining agreements adopting the " 2011 Agreement Framework" set for in Attachment A to the Revised SEBAC Agreement were ratified by the P-4 Unit, DCJ unit, Judicial Professional unit, Judicial Marshals unit, and Judicial Non-Professional unit.
29. On August 18, 2011 all SEBAC member unions voted to approve the Revised SEBAC Agreement including Attachment A through I of which Attachment H states, in relevant part:
Effective on and after July 1, 2011, the contract bar for purposes of any constituent union of SEBAC accepting a contract extension or renewal in accordance with Appendix A of this agreement shall be computed solely from the expiration date of any such extension or renewal.
(Exs.23, 24.)
30. By transmittal letter to the General Assembly clerks of the House and Senate dated August 22, 2011, OLR Director Linda Yelmini (Yelmini) gave notice that she had delivered a package which included the Revised SEBAC Agreement, individual collective bargaining agreements (including those for the P-4 unit, DCJ unit, Judicial Professional unit, Judicial Marshals unit, and Judicial Non-Professional unit), " [e]stimates of the savings produced and costs of implementing" the agreements, and " a list of sections of the General Statutes and State Agency Regulations superseded by the SEBAC agreement and related provisions of individual unit agreements ." [This latter document was entitled " Supersedence Appendix." ] (Ex. 27.)
31. Attachment H was appended to the Revised SEBAC Agreement which accompanied Yelmini's August 22, 2011 transmittal letter.
32. Attachment H was not submitted for review to the members of the P-4 unit, DCJ unit, Judicial Professional unit, Judicial Marshals unit, and Judicial Non-Professional unit on or prior to August 16 and 17, 2011.
33. The collective bargaining agreements which accompanied Yelmini's August 22, 2011 transmittal letter reflected consent to the 2011 Agreement Framework summarized in Attachment A to the Revised SEBAC Agreement.
34. The Supersedence Appendix which accompanied Yelmini's August 22, 2011 transmittal letter makes no reference to Attachment H, Connecticut General Statutes § 5-275, or Regs., Conn. State Agencies § 5-273-10.
35. The General Assembly did not call itself into special session within five days after August 22, 2011 for the purpose of approving or rejecting the Revised SEBAC Agreement or any individual unit collective bargaining agreement which accompanied Yelmini's August 22, 2011 transmittal letter.Labor Board Decision, pp. 5-8 (footnotes omitted).
With these facts found, the Labor Board ruled as follows with respect to the contract bar rule:
A proper disposition of the contract bar objections before us requires a review of our case law and its genesis. Both SERA and the Municipal Employees Relations Act (MERA) prohibit representation elections during the term of a collective bargaining agreement " except for good cause." Connecticut General Statutes §§ 5-275(a), 7-471(1). The Labor Board has promulgated regulations under SERA and MERA recognizing fixed windows for the timely filing of petitions. Regs. Conn. State Agencies §§ 5-273-10(b), 7-471-8(b); See West Hartford Board of Education, Decision No. 1183 p. 3 (1973). This approach " serves the dual purposes of allowing employees the opportunity to express their choice of representative but limits the disruption that such a change can bring by only allowing a petition to be filed during the finite period near the end of a contract." Fairfield Board of Education, Decision No. 4329 p. 3 (2008); see State of Connecticut, Department of Correction, Decision No. 4571 (2011); Woodstock Board of Education, Decision No.1992 (1981); West Hartford Board of Education, supra. This approach is also consistent with that of our federal counterpart.
Under these regulations the window is determined by the contract expiration date which the parties dispute in the instant cases, petitioner UPSEU relying on the original scheduled expiration dates for the individual collective bargaining agreements in June 2012 and objectors relying on the expiration dates of those agreements as extended to June 2016. We agree with the objectors' calculation of the window given the record before us. Since the contract extension agreements were filed with the legislature's clerks on August 22, 2011, we must find that they were deemed approved by the legislature on August 28, 2011 by operation of Public Act 11-1 § 11(a). Because the petitions at issue were filed on August 31, 2011 (a date not " of the year prior to the expiration of the collective bargaining agreement[s] covering the employees who are the subject of the petition[s]") an application of the regulation here does not establish " good cause" for directing an " ... election ... during the term of a written collective bargaining agreement ..." See Regs., Conn. State Agencies § 5-273-10(b); C.G.S. § 5-275(a).
Labor Board Decision, pp. 10-11 (footnotes omitted; emphasis in original).
With regard to the supersedence rule, the Labor Board ruled as follows:
UPSEU also contends that Attachment H conflicts with SERA's contract bar statute and related window period regulation and since these conflicts were not identified in the Supersedence Appendix, Attachment H was never approved by the legislature in accordance with Connecticut General Statutes § 5-278(b). We agree that to the extent that Attachment H conflicts with existing law, failure to afford the legislature notice of such conflict would preclude recognition or enforcement of Attachment H pursuant to Connecticut General Statutes § 5-278(e).
[Section] 5-278(b) implicitly requires that, in order for the legislature to ‘ approve or reject’ a collective bargaining agreement term in conflict with the law, the particular contract term must be stated distinctly and correctly by the employer in the transmittal of the contract to the legislature. If the notification required by § 5-278(b) did not apprise the legislature of the conflicting ... term, then that term ... would be ultra vires. Put another way, a term at variance with law, not approved by the legislature in accordance with ... § 5-278(b), does not enjoy the preferential position provided for legislatively approved conflicting terms by § 5-278(b), does not enjoy the preferential position provided for legislatively approved conflicting terms by § 5-278(e), but is rendered a nullity. Neither party to the agreement is therefore entitled to enforce that term.Cox v. Aiken, 278 Conn. 204, 216 (2006).
In order to be operative, the " supersedence" notice to the legislature must specifically identify the conflicting provision in the collective bargaining agreement at issue and the statute or regulation involved. Cox v. Aiken, supra, 278 Conn. at 217-18; State College American Assn. of University Professors v. State Board of Labor Relations, 197 Conn. 91, 99 (1985); see also Nagy v. Employees' Review Board, 249 Conn. 693, 707 (1999); Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 191 (1979).
UPSEU's reliance on lack of notice in the Supersedence Appendix is misplaced because, as previously noted, Attachment H did not conflict with Section 5-275(a) of SERA or Section 5-273-10(b) of the regulations or our case law when it was transmitted to the legislature. The August 2011 window changed to August 2015 pursuant to the regulation when the legislature approved the contract extensions ... In short, on August 22, 2011 Attachment H was consistent with and a codification of then existing law under SERA. As such we cannot ignore legislative approval of its provisions on the basis of a supersedence notice the statute did not require.
In sum ... [a]s to [UPSEU] we sustain the objections before us on the basis of the contract bar rule and dismiss the petitions as untimely.Labor Board Decision, pp. 12-13 (footnotes omitted; emphasis in original).
Following the Labor Board's decision, the plaintiff thence appealed to this court, specifically alleging as follows:
12. The Appellee Board in rendering its decision acted in excess of its statutory authority and/or contrary to a specific statutory prohibition. Specifically, the Appellee Board failed to comply with C.G.S. §§ 5-275 and 5-278 and Connecticut State Agency Regulations § 5-273-10.
13. Furthermore, the Appellee Board's Final Decision is made upon unlawful procedure and is arbitrary and capricious in that the decision is an " unfair surprise" as the interpretation provided by the Appellee Board is contrary to State law and the Board's own interpretation of State law.
14. Finally, the Appellee Board's Final Decision and administrative findings, inferences, conclusions and decisions relating thereto are:
(i) in violation of constitutional or statutory provisions;
(ii) in excess of the statutory authority of the agency;
(iii) made upon unlawful procedure;
(iv) affected by other errors of law;Plaintiff's Complaint, paras. 12-14.
III
The issue for the court is whether a direct appeal, or other immediate judicial review, lies from the Labor Board's decision in this case. Appeals from the decisions of the Labor Board are governed by General Statutes §§ 5-274(d) and 31-109(d). Cianci v. Connecticut Counsel, AFSCME, 8 Conn.App.. 197, 202 n. 4, 512 A.2d 232 (1986). General Statutes § 5-274(d) provides as follows:
(d) For the purposes of hearings and enforcement of orders under sections 5-270 to 5-280, inclusive, the board shall have the same power and authority as it has in sections 31-107, 31-108 and 31-109, and the employer and the employee organization shall have the right of appeal as provided therein.General Statutes § 5-274(d).
General Statutes § 31-109(d) provides as follows:
(d) Any person aggrieved by a final order of the board granting or denying in whole or in part the relief sought may appeal pursuant to the provisions of chapter 54 to the superior court for the judicial district where the unfair labor practice was alleged to have occurred, in the judicial district of Hartford, or in the judicial district wherein such person resides or transacts business.General Statutes § 31-109(d) (emphasis added).
In interpreting identical language in the context of an appeal under the Municipal Employee Relations Act, our Supreme Court held that a Labor Board decision in a certification proceeding, like that in the instant case, is not a final order concerning an unfair labor practice from which a direct appeal may be taken. Windsor v. Windsor Police Department Employee's Assn., Inc., supra, 154 Conn. at 535-36 (1967). " [T]here is statutory provision for an appeal from an order of the board only when that order is a final order of the board and when an unfair labor practice is alleged to have occurred." Id. at 535. Like in the Windsor case, this case does not involve a final decision concerning an unfair labor practice and, likewise, no direct appeal is available. Accord, E.L. Realty Co. v. Board of Labor Relations, 22 Conn.Supp. 132, 164 A.2d 165 (1955); Bisogno v. Board of Labor Relations, 22 Conn.Supp. 133, 138, 164 A.2d 166 (1960), rev'd on other grounds, 149 Conn. 4, 174 A.2d 797 (1961); Conn. Dept. of Public Safety v. State of Conn. Board of Labor Relations, Superior Court, judicial district of New Britain, Doc. No. CV 07-4015397 (May 22, 2008, Cohn, J.) [ 45 Conn. L. Rptr. 621] at n. 3, rev'd on other grounds, 296 Conn. 594, 996 A.2d 729 (2010); Milford Supervisor's Assn. v. State of Conn. Board of Labor Relations, Superior Court, judicial district of Hartford, Doc. No. CV 98-0577451 (March 25, 1998, McWeeny, J.); AFSCME, Council 4, Local 1303-030 v. Town of Hamden, Superior Court, judicial district of Hartford, Doc. No. CV 09-0565297 (April 10, 1997, Maloney, J.); Civil Service Employees Affiliates, Inc. v. State Board of Labor Relations, Superior Court, judicial district of Hartford, Doc. No. CV 93-0531271 (October 18, 1994, Maloney, J.).
Plaintiff argues that Connecticut courts have continuously held that the Board's analysis of General Statutes § 5-278(b) is a final appealable decision, citing Cox v. Aiken, 278 Conn. 204, 897 A.2d 71 (2006); Connecticut State College American Asso. of University Professors v. Connecticut State Bd. of Labor Relations, 197 Conn. 91, 495 A.2d 1069 (1985); Board of Trustees v. Federation of Technical College Teachers, Local 1942, 179 Conn. 184, 425 A.2d 1247 (1979); Connecticut Employees Union Independent, Inc. v. Board of Labor Relations, 43 Conn.Supp. 1, 635 A.2d 891 (1993) [ 10 Conn. L. Rptr. 262]. The court does not agree. Those cases either were not direct appeals from decisions in certification proceedings, or they support the defendants' position that only final decisions concerning unfair labor practices are eligible for direct appeal.
Alternatively, plaintiff argues that it is eligible for immediate judicial review pursuant to certain exceptions found in the case law. Indeed, some exceptions have been created in the case law by courts interpreting the National Labor Relations Act, 29 U.S.C. § 151 et seq. The Connecticut act is closely patterned after that federal act and Connecticut courts have found judicial interpretation of the federal act " of great assistance and persuasive force in the interpretation of our own act." Windsor v. Windsor Police Department Employee's Assn., Inc., supra, 154 Conn. at 536. Thus, citing several federal decisions with approval, our Supreme Court has recognized three exceptions that would permit immediate judicial review of Labor Board decisions not otherwise eligible for direct appeal:
Under extraordinary circumstances, methods of immediate judicial review, other than by way of direct appeal, have been recognized. The extraordinary circumstances so far recognized as sufficient for immediate judicial review have been instances where the national labor relations board has acted in excess of its delegated powers, contrary to a specific statutory prohibition and where there have been public questions of international complexion. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547; Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210. " The Kyne exception is a narrow one, not to be extended to permit plenary district court review of Board orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the Board has led it to a conclusion which does not comport with the law." Boire v. Greyhound Corporation, supra, at 481.Windsor v. Windsor Police Department Employee's Assn., Inc., supra, 154 Conn. at 537-38.
The plaintiff argues that the Labor Board's decision in this case is subject to immediate judicial review because its actions exceeded its delegated powers and it acted contrary to a specific statutory prohibition. Specifically, the plaintiff argues that the board ignored the clear and unambiguous language of General Statutes § 5-275(a)(3) and Reg. § 5-273-10 (the contract bar rule), and General Statutes § 5-278(b) (the supersedence rule). The gravamen of its arguments is that, pursuant to General Statutes § 5-275(a)(3) and the regulation, and prior to the approval of the Revised SEBAC agreement, the time to petition for elections was August 1, 2011 through August 31, 2011. Plaintiff met that deadline. However, plaintiff argues, the Labor Board found that Attachment H to the Revised SEBAC agreement, that became effective on August 22, 2011, changed the window period. Attachment H provided that the " contract bar ... shall be computed solely from the expiration date of [the Revised SEBAC agreement]." As a result, the window period was closed for four additional years, with the new window period being August 1, 2015 through August 31, 2015. Thus, when plaintiff filed its petitions on August 31, 2011, it was too late to be considered timely under the previous contract bar deadline. Plaintiff argues that since the change announced in Attachment H conflicted with the prior contract bar date under the provisions of General Statutes § 5-275(a)(3) and Reg. § 5-273-10, it was mandatory for the legislature to be alerted to that fact in a Supersedence Appendix when the agreement was filed for approval in the legislature, under the mandatory supersedence procedures in General Statutes § 5-278(b). Indeed, it has been held that " a term [in a collective bargaining agreement] at variance with law, not approved by the legislature in accordance with ... § 5-278(b), does not enjoy the preferential position provided for legislatively approved conflicting terms by § 5-278(e), but is rendered a nullity." Cox v. Aiken, supra, 278 Conn. at 216. By not alerting the legislature to that conflict in the Supersedence Appendix filed with the legislature, the deadline change was invalid, and enforcement of that deadline change was ultra vires, plaintiff argues, citing Cox v. Aiken, supra. Therefore, plaintiff argues, the Labor Board exceeded its delegated powers and it acted contrary to a specific statutory prohibition.
The court is not persuaded. Attachment H did not conflict with General Statutes § 5-275(a)(3) and Reg. § 5-273-10. Those laws did not contain a stated deadline. They merely stated a rule for calculating a deadline based on the facts. The facts changed when the Revised SEBAC Agreement was approved. Attachment H merely referenced the new reality. The facts changed, not the law. So, there was no conflict with the contract bar law, and no reason to alert the legislature under the supersedence rules. The plaintiff's petition was too late under the contract bar rule because the facts change, not because the law changed. Therefore, the Labor Board did not exceed any of its delegate powers or ignore any statute or regulation.
Moreover, even a cursory review of the Labor Board's decision in this matter evinces nothing more than a classic exercise of adjudicatory powers specifically delegated. The board is responsible for administering the SERA, General Statutes § 5-273; and it is empowered to conduct certification proceedings. General Statutes § 5-275. In this case, it found facts, and applied the facts to the law and made a determination resolving the dispute of the parties. That exercise of authority is expressly outside the purview of immediate judicial review in this type of case. As our Supreme Court cautioned in the Windsor case, " The Kyne exception is a narrow one, not to be extended to permit plenary ... review of Board orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the Board has led it to a conclusion which does not comport with the law." Id. at 538. Likewise, in the instant case, the fact that the plaintiff disagrees with the Labor Board's conclusion does not confer a right to immediate judicial review. Cf., AFSCME, Council 4, Local 1303-30 v. Town of Hamden, supra (interpretation and application of regulation is not in excess of delegated powers or contrary to specific statutory prohibition); but see Hamden Board of Education v. Conn. State Board of Labor Relations, Superior Court, judicial district of New Britain, Doc. No. CV 06-4010196 (September 15, 2006, Levine, J.) (allegation that board acted in excess of statutory authority or contrary to specific statutory prohibition sufficient to withstand motion to dismiss absent record to review).
IV
For all of the foregoing reasons, the court grants the motions to dismiss and, accordingly, enters judgment dismissing the case.
Whenever a notification had [sic] been filed with the Board under subdivision (1) of subsection (a) of Section 5-275 any other employee organization may file with the Board a challenge in writing which states that ten percent (10%) or more of the employees have expressed the desire to have the intervenor as exclusive representative in writing in the manner specified in subdivision (2) of subsection (a) of Section 5-275. The employer may also file a challenge as to the appropriateness of the unit.
Such challenge shall be deemed to include a petition for intervention and shall, in addition to the requirements specified in this section, conform to the requirements set forth in section 5-273-10. A challenge must be filed within thirty (30) days of the filing of the notification.
No election shall be directed by the board during the term of a written collective bargaining agreement, except for good cause.
(b) A notification will be considered timely if it is filed between August 1 and August 31 inclusive of the year prior to the expiration of the collective bargaining contract covering the employees who are the subject of the petition.
(b) Any agreement reached by the negotiators shall be reduced to writing. The agreement, together with a request ... and for approval of any provisions of the agreement which are in conflict with any statute or any regulation of any state agency ... shall be filed by the bargaining representative of the employer with the clerks of the House of Representatives and the Senate within ten days after the date on which such agreement is reached ... The General Assembly may approve any such agreement as a whole by a majority vote of each house or may reject such agreement as a whole by a majority vote of either house.
(e) Where there is a conflict between any agreement ... approved ... and any general statute or special act, or regulations adopted by any state agency, the terms of such agreement ... shall prevail ...