822 A.2d 399
(AC 22774)Appellate Court of Connecticut
Foti, Dranginis and Freedman, Js.
The plaintiff union sought a judgment declaring that the defendant state’s treatment of past leave accruals was illegal and contrary to statute (§§ 5-247 and 5-250), and ordering the state to recalculate past leave accruals for 1995, 1996 and 1997. The trial court granted the state’s motion to dismiss, concluding that it lacked subject matter jurisdiction because the plaintiff had failed to file a timely application to vacate the arbitration award in which an arbitrator previously had determined that the state’s treatment of past leave accruals violated the parties’ collective bargaining agreement and that the plaintiff was entitled to a recalculation of those accruals only as far back as 1998. On the plaintiff’s appeal to this court, held that the trial court properly granted the state’s motion to dismiss for lack of subject matter jurisdiction; in the present action, the plaintiff raised a public policy challenge to the legality of the arbitration award, which should have been raised by way of an application filed pursuant to statute (§§ 52-418 and 52-419) to vacate, modify or correct the award, and by failing to file such an application, the plaintiff failed to exhaust the specific statutory procedures established for obtaining review of an arbitration award.
Argued February 10
Officially released June 17, 2003
Action for a judgment declaring unlawful the defendant’s calculation of vacation leave under the parties’ collective bargaining agreement, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Hon. Jerry Wagner, judge trial referee, granted the defendant’s motion to dismiss and rendered judgment for the defendant, from which the plaintiff appealed to this court. Affirmed.
James C. Ferguson, for the appellant (plaintiff).
Thomas P. Clifford III, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
The plaintiff, the Administrative and Residual Employees Union, Local 4200, AFT/CSFT, AFL-CIO (union), appeals from the judgment of the trial court, granting the motion of the defendant state of Connecticut to dismiss this declaratory judgment action. The union argues that the court improperly granted the state’s motion to dismiss based on lack of subject matter jurisdiction because of the union’s failure to file an application to vacate, modify or correct an arbitration award pursuant to General Statutes §§ 52-418 and 52-419. We disagree with the union and, accordingly, affirm the judgment of the trial court.
The following facts are not in dispute. Prior to this action, the union and the state had entered into a collective bargaining agreement that governed, inter alia, the duration of the standard workweek and accrual of paid vacation leave. The parties’ agreement later was modified to allow a phased increase in the workweek from thirty five hours to forty hours between 1995 and 1998.
On July 28, 1998, the union filed a grievance contesting the state’s calculation of vacation time based on hours rather than on whole days as required by the agreement. By decision dated September 1, 2000, an arbitrator concluded that the state had violated the agreement by its treatment of past leave accruals. The arbitrator held that the grievants were entitled to the number of days previously earned, despite an increase in the number of hours in their standard workday. The arbitrator held, however, that this entitlement went back only as far as July 1, 1998.
The union then filed the present declaratory judgment action, requesting that the court order the state to calculate the vacation accruals on a daily basis rather than on an hourly basis for periods prior to July 1, 1998. The court granted the state’s motion to dismiss on the ground that the union had failed to file a timely application to vacate the decision of the arbitrator. The court concluded, on the basis of that failure, that it lacked jurisdiction over the declaratory judgment action. The union then filed the present appeal.
“We first set forth our standard of review governing an appeal from a judgment granting a motion to dismiss on the ground of a lack of subject matter jurisdiction. A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintif cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide. . . . Our Supreme Court has determined that when 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. . . .
A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [B]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Bailey v. Medical Examining Board for State Employee Disability Retirement, 75 Conn. App. 215, 219, 815 A.2d 281 (2003).
The parties in the present case submitted the following issue to arbitration: “Did the State violate Article 4, Article 18, Article 19, Article 40, Article 41, Article 42, Article 43 or Article 38 Section Nine of the P-5 collective bargaining contract by the treatment of past leave accruals? If so, what shall the remedy be consistent with the contract?” In his award, the arbitrator stated: “The state violated the collective bargaining agreement by its treatment of past leave accruals. The grievants are entitled to the number of days of leave previously earned, despite an increase in the number of hours in their standard workday. As more fully described [in the arbitrator’s decision], such entitlement shall only go back to July 1, 1998, as a result of this award.” The union was successful, therefore, in its claim that the state had violated the collective bargaining agreement by converting past leave accruals to hours rather than days. The arbitrator, however, limited
the entitlement to the award to July 1, 1998, and did not order relief retroactive to 1995, 1996 and 1997.
The union did not file an application to vacate or to modify the award. Rather, it brought the present action seeking a “declaratory judgment determining that the action of the Defendant in calculating vacation leave accrual based upon hours rather than days and thereby diminishing members of the Plaintiff’s bargaining unit vacation banks is illegal and contrary to Connecticut General Statute § 5-250 and the Plaintiff’s Collective Bargaining Agreement.” The union further sought an order of the court requiring the state to calculate properly the vacation accruals of its members on a daily basis rather than on an hourly basis.
The union argues on appeal that the court improperly determined that it lacked subject matter jurisdiction to address the declaratory judgment action. The union contends that it is not seeking a review of the arbitration award pursuant to §§ 52-418 or 52-419 because it agrees with the arbitration award insofar as it construes the rights and responsibilities of the parties pursuant to the agreement. The union argues that the complaint sought, not a review of the arbitrator’s decision, but a determination of whether the state’s action in determining vacation and sick leave accrual, on the basis of hours rather
than on the basis of days, was illegal and contrary to General Statutes §§ 5-247 and 5-250. The union contends that pursuant to those statutes, as interpreted by our Supreme Court in Nagy v. Employees’ Review Board, 249 Conn. 693, 735 A.2d 297 (1999), an employee who earns one day of sick or vacation leave is entitled to the use of one day of sick or vacation leave, regardless of the lengthening of the standard workweek. The
union argues that the state’s action in providing leave, not in conformance with §§ 5-247 and 5-250, is an action clearly in excess of what the legislature authorized and is ultra vires as defined by our Supreme Court in Nagy. Finally, the union contends that it exhausted its administrative remedies and could obtain no further relief through applications to vacate, modify or correct the award pursuant to §§ 52-418
The state essentially posits three arguments in response to the union’s claims, namely, that the union is not entitled to relief because (1) this action is barred by the doctrine of sovereign immunity, (2) the union failed to file an application to vacate, modify or correct the arbitration award, and (3) the union failed to grieve the state’s calculation of past leave accruals for 1995, 1996 and 1997 in a timely manner. We conclude, as did the court, that because the union failed to file an application to vacate, modify or correct the arbitration award, pursuant to §§ 52-418 and 52-419, the court was without jurisdiction over the matter. The court, therefore, properly granted the state’s motion to dismiss this action for lack of subject matter jurisdiction.
“We have consistently stated that arbitration is the favored means of settling differences and arbitration awards are generally upheld unless an award clearly
falls within the proscriptions of § 52-418 of the General Statutes. . . . A challenge of the arbitrator’s authority is limited to a comparison of the award to the submission.” (Citations omitted; internal quotation marks omitted.) State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 473, 747 A.2d 480 (2000).
“In spite of the general rule that challenges to an arbitrator’s authority are limited to a comparison of the award to the submission, an additional challenge exists under § 52-418 (a) (4) when the award rendered is claimed to be in contravention of public policy. . . . This challenge is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. . . . When a challenge to the arbitrator’s authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award.” (Citations omitted; internal quotation marks omitted.) Id., 474-75.
The challenge raised by the union is that the state has acted in violation of §§ 5-247 and 5-250 by calculating vacation leave accrual on the basis of hours rather than on the basis of days, thus providing employees with less than that to which they are entitled by statute. We interpret that claim as one raising a public policy challenge to the legality of the award; as such, the union could have filed an application to vacate the arbitration award on public policy grounds pursuant to § 52-418.
Apparently satisfied, however, with the decision of the arbitrator with regard to the accruals for 1998, the union opted not to pursue that avenue to obtain relief for the years 1995, 1996 and 1997. To do so potentially would have jeopardized its partial victory with regard to the 1998 accruals. In light of the foregoing, we conclude that the union failed to exhaust the specific statutory procedures established for obtaining review of arbitration awards. See Hunt v. Prior, 236 Conn. 421, 431-32, 673 A.2d 514 (1996).
Because the union failed to seek relief pursuant to §§ 52-418
and 52-419, the court properly dismissed the action on the ground of lack of subject matter jurisdiction.
The judgment is affirmed.
In this opinion the other judges concurred.
As correctly pointed out by the state, however, there was no jurisdictional issue in Nagy. The plaintiffs in that case appealed to the employees’ review board from the decision of the commissioner of the department of administrative services, who had denied their appeal. The plaintiffs then filed an administrative appeal from the board’s decision to the Superior Court pursuant to General Statutes § 4-183.