GENOVESE v. GALLO WINE MERCHANTS, INC., 226 Conn. 475 (1993)

628 A.2d 946

(14555)Supreme Court of Connecticut

PETERS, C.J., CALLAHAN, BORDEN, BERDON and NORCOTT, Js.

The plaintiff sought, inter alia, damages from the defendant employer pursuant to the statute (31-290) prohibiting discrimination against an employee who has filed a claim for workers’ compensation. He claimed that the defendant had wrongfully terminated his employment in retaliation for his having filed a claim for benefits. The defendant asserted a defense of collateral estoppel on the ground that the plaintiff had unsuccessfully submitted a related claim to final arbitration under a collective bargaining agreement. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed. Held that the trial court improperly granted the motion for summary judgment; employees, like the plaintiff, who are covered by a collective bargaining agreement are, by statute (31-51bb), entitled to the same opportunity to litigate their statutory claims as those who are not covered by a collective bargaining agreement, and they retain that right despite an adverse determination of the same or a similar claim in a grievance or arbitration proceeding.

(One justice dissenting)

Argued February 9, 1993

Decision released July 20, 1993

Page 476

Action to recover damages for the allegedly wrongful discharge of the plaintiff from his employment, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Fracasse, J., granted the defendant’s motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed. Reversed; further proceedings.

W. Martyn Philpot, Jr., for the appellant (plaintiff).

Andrew G. Buckman, with whom, on the brief, were Mary Beattie Schairer and Donn A. Swift, for the appellee (defendant).

BORDEN, J.

The dispositive issue in this appeal is whether an employee’s statutory cause of action for retaliatory discharge, pursuant to General Statutes 31-290a,[1] is precluded by virtue of the doctrine of collateral

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estoppel, because of the employee’s prior unsuccessful submission of a related claim to final arbitration under a collective bargaining agreement. The plaintiff, Joseph J. Genovese, appeals from the judgment of the trial court granting the motion of the defendant, Gallo Wine Merchants, Inc., for summary judgment.[2] We reverse.

The record reveals the following facts. In November, 1985, the plaintiff was employed by the defendant as a warehouse worker. The plaintiff’s employment was governed by the provisions of a collective bargaining agreement between his union, the Teamsters, Chauffeurs and Helpers Local Union No. 443 (union), and the defendant. On two occasions, the plaintiff had suffered physical injuries to his back while lifting boxes in the course of his employment. As a result of these injuries, the defendant was physically unable to work from April 24, 1988, to some time in April, 1989. During this period, the plaintiff filed claims for workers’ compensation benefits and received all appropriate payments.

At this point, the plaintiff’s and the defendant’s version of the facts diverge. The plaintiff claims that in April, 1989, after having received treatment for his injuries, he attempted to return to work but was then improperly discharged by the defendant. The defendant claims, however, that the plaintiff had voluntarily terminated his employment on October 17, 1988, when he requested payment for accrued vacation and personal

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days. The defendant claimed that by requesting such compensation the plaintiff had voluntarily quit his job.

The union then filed, on behalf of the plaintiff, a grievance with the defendant pursuant to the collective bargaining agreement. After initial steps in the grievance procedure failed to resolve the dispute, the grievance was submitted to final and binding arbitration. The union and the defendant agreed to submit the following questions to a mutually agreed upon arbitrator: “Did the grievant, Joseph Genovese, voluntarily quit or was he unjustly terminated by the company? If he was unjustly terminated, what shall be the remedy?”[3]
After analyzing the submitted evidence, the arbitrator found that the plaintiff had voluntarily quit his job and the arbitrator therefore denied his grievance. Neither the defendant nor the plaintiff sought to confirm, modify or vacate the award pursuant to General Statutes 52-420.[4]

Page 479

The plaintiff then filed this action in the Superior Court pursuant to General Statutes 31-290a, which prohibits an employer from discharging or discriminating against any employee because the employee has filed a claim for workers’ compensation benefits. The defendant asserted the special defense of collateral estoppel and moved for summary judgment accordingly. The defendant claimed that because the arbitrator had previously determined that the plaintiff had voluntarily quit his job, the plaintiff was precluded by the doctrine of collateral estoppel from relitigating the issue of whether he had been wrongfully discharged. The trial court agreed and granted the defendant’s motion for summary judgment. This appeal followed.

I A
The plaintiff claims that the trial court improperly concluded that the doctrine of collateral estoppel precluded his cause of action pursuant to 31-290a. To analyze adequately the plaintiff’s claim, some additional procedural background is required.

The plaintiff claimed in the trial court and on appeal that the doctrines of res judicata and collateral estoppel should not apply to the present action because, inter alia, his participation in the arbitration proceeding was involuntary and a product of coercion by the union.[5]
After oral argument, we issued an order to the parties directing them to file supplemental, simultaneous briefs limited to two issues: “(1) What effect, if any, does this court’s decision in Kolenberg v. Board of Education, 206 Conn. 113, 536 A.2d 577 [cert. denied,

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487 U.S. 1236, 108 S.Ct. 2903, 101 L.Ed.2d 935] (1988), have on the judgment under appeal? (2) What effect, if any, does General Statutes 31-51bb have on the judgment under appeal?”[6]

We have previously held that an employee’s failure to exhaust the grievance and arbitration procedures available under a collective bargaining agreement deprived a trial court of jurisdiction over a cause of action arising from the employment relationship. Kolenberg v. Board of Education, supra, 123. In Kolenberg, we dismissed for lack of subject matter jurisdiction an employee’s action, brought pursuant to General Statutes 10-151, the Teacher Tenure Act, because the employee had failed to exhaust the grievance procedures afforded by an applicable collective bargaining agreement. We concluded that the grievance and arbitration procedures were the appropriate and exclusive vehicle for the resolution of the plaintiff’s claims, “including his constitutional claims.” Id.

Page 481

Shortly after we issued our decision in Kolenberg, the legislature enacted General Statutes 31-51bb, which provides: “No employee shall be denied the right to pursue, in a court of competent jurisdiction, a cause of action arising under the state or federal constitution or under a state statute solely because the employee is covered by a collective bargaining agreement. Nothing in this section shall be construed to give an employee the right to pursue a cause of action in a court of competent jurisdiction for breach of any provision of a collective bargaining agreement or other claims dependent upon the provisions of a collective bargaining agreement.”

B
Both the language of 31-51bb and the legislative history indicate that the legislature intended to overturn our decision in Kolenberg v. Board of Education, supra, and thereby eliminate the requirement that a plaintiff who is subject to a collective bargaining agreement exhaust all grievance and arbitration procedures before pursuing any statutory remedies in the trial court. Section 31-51bb provides that a cause of action arising under the state or federal constitution or state statute cannot be lost solely because the employee is covered by a collective bargaining agreement. Plainly, therefore, an employee who does not exhaust the grievance procedures established in a collective bargaining agreement may pursue a cause of action in the Superior Court if the cause of action is premised on an independent statutory claim.[7] To hold otherwise would be

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to deny such an employee the right to pursue a statutory action solely because of the existence of a collective bargaining agreement.[8]

This reading of the statute is well supported by the legislative history of this provision. See Public Acts 1988, No. 88-275. For example, Representative Dale W. Radcliffe stated that the purpose of the legislation is “to insure that the courts of this state are going to be open to all individuals, regardless of whether they are covered by a collective bargaining agreement. There was some language in Kolenberg versus Board of Education . . . which some felt would prevent an individual covered by a collective bargaining agreement from pursuing [a statutorily based] cause of action.” 31 H.R. Proc., Pt. 13, 1988 Sess., pp. 4567-68; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1988 Sess., p. 1449, remarks of Attorney Ruth Pulda (“[e]ach of these [statutory] causes of action is threatened by the holding of Kolenberg . . .”); id., p. 1452, remarks of Barry Williams of the AFL-CIO (“[a]s I understand it, Connecticut courts have erroneously ruled that a worker covered by a collective bargaining agreement must [adjudicate all claims] through the process established in the contract before seeking a remedy in court”).

II
The conclusion that a failure to exhaust the grievance procedures does not bar the assertion of a statutory

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cause of action does not, however, necessarily resolve this case, in which the plaintiff did, albeit unsuccessfully, invoke the grievance and arbitration procedures. Despite the legislative elimination, in broad terms, of the exhaustion requirement for claims based on an independent statutory right, the defendant contends that the doctrine of collateral estoppel nonetheless applies to the plaintiff’s cause of action.[9] Specifically, the defendant argues that 31-51bb does not apply in this case because that provision prohibits denial of the plaintiff’s right to bring a court action solely on the basis that he is covered by a collective bargaining agreement. In this case, the defendant argues, the cause of action is precluded, not solely because the plaintiff is covered by a collective bargaining agreement, but because, pursuant to that agreement, he has litigated the issue of whether he was unjustly discharged or voluntarily quit. Consequently, he contends, the plaintiff is collaterally estopped from relitigating the same questions of fact.

We agree with the defendant that ordinarily a factual determination made in final and binding arbitration is entitled to preclusive effect.[10] Corey v. Avco-Lycoming

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Division, 163 Conn. 309, 318, 307 A.2d 155 (1972), cert denied, 409 U.S. 1116, 93 S.Ct. 903, 34 L.Ed.2d 699
(1973); see also Convalescent Center of Bloomfield, Inc. v. Department of Income Maintenance, 208 Conn. 187, 198, 544 A.2d 604 (1988). The legal doctrines of res judicata and collateral estoppel are designed to “promote judicial economy by preventing relitigation of issues or claims previously resolved.” Scalzo v. Danbury, 224 Conn. 124, 127, 617 A.2d 440 (1992).

This case requires us to determine, therefore whether the doctrine of collateral estoppel applies to the plaintiff’s cause of action under 31-290a, or whether, contrary to that general rule, the adverse determination in the arbitration proceeding is not entitled to preclusive effect. We conclude that the legislature intended that such an adverse determination should not have preclusive effect.

Section 31-51bb was enacted by the legislature to ensure that employees covered by a collective bargaining agreement receive the same opportunity to litigate their statutory claims as those employees who are not covered by a collective bargaining agreement. 31 H.R. Proc, Pt. 13, 1988 Sess., pp. 4567-68. The defendant’s narrow construction of 31-51bb would defeat that legislative intent.

The legislative history indicates that the legislature intended that employees covered by a collective bargaining agreement retain the right to pursue a statutory action despite an adverse determination in a grievance or arbitration proceeding. Representative Jay B. Levin stated, in response to a fellow legislator’s question: “[W]hat this act also makes clear is if the employee has had a right violated, or alleges that a right has been violated by their employer, which has a remedy outside of the collective bargaining agreement . . .

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Moreover, Representative Levin clearly indicated that the statute would codify federal cases that have refused to give collateral estoppel effect to an adverse determination in an arbitration proceeding in an employee’s subsequent court action brought to vindicate statutory rights that are not dependent upon a collective bargaining agreement. Id. The purpose of the bill “is consistent with existing decisions of the United States Supreme Court. . . . In particular, the cases that this statute would seek to uphold . . . [are] the United States Supreme Court decisions of [McDonald v. West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984); Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981); Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)].” Id., pp. 4565-66.

In each of these decisions, the United States Supreme Court explicitly refused to give preclusive effect to a prior arbitral decision in a subsequent court action brought to vindicate an employee’s statutory rights. See McDonald v. West Branch, supra, 292 (“in a 1983 action, a federal court should not afford res judicata or collateral-estoppel effect to an award in an arbitration proceeding brought pursuant to the terms of a collective-bargaining agreement”); Barrentine v. Arkansas-Best Freight System, supra, 745 (“petitioners’ [statutory] claim is not barred by the prior submission of their grievances to the contractual dispute-resolution procedures”); Alexander v. Gardner-Denver Co., supra, 59-60 (plaintiff may pursue statutory cause of action despite prior adverse determination by arbitrator pursuant

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to collective bargaining agreement). In light of this history, we read 31-51bb to incorporate these principles so as to permit an employee to assert statutory rights in a court action despite a prior adverse determination of the same or similar claim in an arbitration proceeding brought pursuant to a collective bargaining agreement.

Our reading of 31-51bb is supported by sound policy reasons that justify limiting the doctrine of collateral estoppel in these circumstances. First, although an “arbitrator may be competent to resolve many preliminary factual questions”; Barrentine v. Arkansas-Best Freight System, supra, 743; the scope of the submission may mean that the arbitrator lacks the power to decide mixed questions of law and fact[11] or the ultimate legal issue of whether, for example, the employee was discharged in violation of 31-290a. The ultimate determination reached by the arbitrator, therefore, often may be made only by reference to the full range of “public law” and public policy considerations that inform the employer-employee relationship. An arbitrator’s frame of reference, however, may be narrower than is necessary to resolve the dispute because the arbitrator’s power is both derived from, and limited by,

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the collective bargaining agreement and the submission of the parties. Alexander v. Gardner-Denver Co., supra, 53; see also American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 185, 530 A.2d 171 (1987).

In reaching this conclusion, we do not suggest that an arbitrator lacks the competence or expertise to decide legal issues, including statutory claims. See, e.g., East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 654, 539 A.2d 125 (1988). We merely recognize that the scope of the submission by the parties may limit the arbitrator’s ability to consider all of the relevant legal considerations. We also recognize that, in enacting 31-51bb, the legislature was free to limit an arbitrator’s power to determine finally and conclusively factual and legal issues that are critical to an employee’s right to pursue a statutory cause of action in the Superior Court.

Second, preclusion is not warranted in this case because 31-290a, upon which the plaintiff’s action is based, is a remedial statute that was intended to guarantee the rights afforded to injured employees under our workers’ compensation laws. Section 31-290a provides broad remedies to an employee improperly discharged for filing for workers’ compensation benefits, including reinstatement, back wages, compensatory damages, attorney’s fees, costs and punitive damages. The creation of the substantive right to bring an action for unjust dismissal, and the inclusion of these broad remedies, indicate that the legislature intended that employees should be able to enforce judicially their right to workers’ compensation benefits by subjecting employers to the significant liability that can be imposed only in an action brought pursuant to 31-290a. See Barrentine v. Arkansas-Best Freight System, supra, 745. “[A]rbitrators very often are powerless to grant the aggrieved employees as broad a range of relief.” Id. The creation of the substantive

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rights and remedies in 31-290a, therefore, reflects a legislative preference for a full judicial determination of an employee’s 31-290a claim.

Third, the standard rules of preclusion are not warranted in this case because reliance on an employee’s union to vindicate adequately the employee’s statutory rights may not be justified. “[E]ven if the employee’s claim were meritorious, his union might, without breaching its duty of fair representation, reasonably and in good faith decide not to support the claim vigorously in arbitration.” Id., 742-43; McDonald v. West Branch, supra, 291 (“The union’s interests and those of the individual employee are not always identical or even compatible. As a result, the union may present the employee’s grievance less vigorously, or make different strategic choices, than would the employee.”); J. I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762
(1944). Because a union’s objective may be to maximize the rights and benefits of its members as a whole, rather than to achieve the best possible outcome for an individual employee in a particular case, a union weighing individual and collective interests might validly allow some employee’s statutory rights to be sacrificed “if an alternative expenditure of resources would result in increased benefits for workers in the bargaining unit as a whole.” Barrentine v. Arkansas Best Freight System, supra, 742.[12] In fact, a representative

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from the AFL-CIO testified at the joint hearings on 31-51bb that “unions cannot serve as the repository of . . . all . . . individual rights, and rights which arise out of the Constitution or statutes should be settled in the courts.” Joint Standing Committee Hearings, Judiciary, Pt. 5, 1988 Sess., p. 1452, remarks of Barry Williams.

Finally, although arbitral procedures are well suited to the resolution of contractual disputes, the legislature, in enacting 31-51bb, was entitled to consider that arbitration may be a less effective forum for the final resolution of statutory claims.[13] See McDonald v. West Branch, supra, 291; Alexander v. Gardner-Denver, Co., supra, 57-58. “The fact-finding process is not equivalent to judicial fact-finding. The record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and the rights and procedures common to civil trial, such as discovery, compulsory process, cross-examination, and testimony under oath, are often severely limited or unavailable.” Id.

We recognize that our conclusion in this case may seem inconsistent with our traditional respect for the integrity of grievance and arbitration proceedings. See, e.g., Garrity v. McCaskey, 223 Conn. 1, 10, 612 A.2d 742 (1992); John A. Errichetti Associates v. Boutin, 183 Conn. 481, 488, 439 A.2d 416 (1981). Our decision can, however, be seen as consistent with such respect to the extent that it may, as a practical matter, encourage the use of arbitration.

As noted in part I, 31-51bb was intended to overrule our decision in Kolenberg v. Board of Education,

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supra, by allowing an employee who seeks to vindicate a statutory right to proceed to court whether or not the employee has first exhausted the grievance and arbitration procedures created by the applicable collective bargaining agreement. If an adverse determination by the arbitrator were entitled to preclusive effect, however, an employee, fearing such a determination, might seek relief by initially filing a court action. This choice might be more attractive to an employee because the employee would retain a greater degree of control over the course of the litigation, as opposed to the grievance proceedings in which the union “controls access to the arbitrator, the strategy and tactics of how to present the case, the nature of the relief sought, and the actual presentation of the case.” (Internal quotation marks omitted.) McDonald v. West Branch, supra, 291 n. 10.

Without the risk of the preclusive effect of an adverse determination, however, the employee might select the less costly and more expeditious grievance procedures. Id., 292 n. 11 (“a rule of preclusion might have a detrimental effect on the arbitral process . . . [because if] such a rule [were] adopted, employees who were aware of this rule and who believed that arbitration would not protect their [statutory] rights as effectively as an action in court might bypass arbitration”); Alexander v. Gardner-Denver Co., supra, 59 (a rule of preclusion would reduce the possibility of voluntary compliance or settlement of statutory claims, and thus the result “could well be more litigation, not less”).

We also recognize, however, that construing the statute in accordance with its legislative history creates a range of problems that the legislature may not have fully considered when it enacted 31-51bb. In deciding to afford a judicial remedy despite the employee’s

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coverage by a collective bargaining agreement, the legislature unquestionably swept more broadly than was required to overrule our decision in Kolenberg v. Board of Education, supra. Its apparent decision to overturn established principles of collateral estoppel will enable any employee invoking any statutory or constitutional claim, not only a discrimination claim under 31-290a, to test the waters in a grievance proceeding and then, if dissatisfied with the outcome, to relitigate the issue de novo in the Superior Court.

This legislative decision runs contrary to the established judicial principle that voluntary recourse[14] to arbitration proceedings allows the prevailing party, after a final arbitral judgment, to raise a defense of collateral estoppel or res judicata if the losing party thereafter initiates a judicial cause of action. Corey v. Avco-Lycoming Division, 163 Conn. 309, 318, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S.Ct. 903, 34 L.Ed.2d 699 (1973); see also Convalescent Center of Bloomfield, Inc. v. Department of Income Maintenance, 208 Conn. 187, 198, 544 A.2d 604 (1988). The applicability of principles of res judicata to arbitration proceedings reflects the confidence, ordinarily shared by the legislature; see General Statutes 52-418; and by our courts, that arbitrators have the competence to decide complex issues of law and of fact; see, e.g., Bodner v. United States Automobile Assn., 222 Conn. 480, 489-91, 610 A.2d 1212 (1992); O G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 145-46, 153-55, 523 A.2d 1271 (1987); including issues relating to disputes arising in the workplace. See Daley v. Hartford, 215 Conn. 14, 24, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S.Ct. 513,

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112 L.Ed.2d 525 (1990); East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 654, 539 A.2d 125 (1988). Outlawing the defense of collateral estoppel also runs counter to the established legislative policy favoring alternate methods of dispute resolution as economical and efficient alternatives, in the days of crowded court calendars, to judicial disposition of civil cases. That policy has only recently been reaffirmed by the enactment of Public Acts 1993, No. 93-108, concerning the Joint Sta-Fed Alternative Dispute Resolution Program.

The legislative decision to permit an employee to disregard the outcome of an adverse grievance or arbitration proceeding arising out of a collective bargaining agreement also raises questions of fairness that the legislature may want to reconsider. As currently drafted, 31-51bb permits an employee to decide whether to initiate arbitration proceedings in the first instance and thereafter to decide whether to walk away from an unsatisfactory grievance or arbitration outcome. The employer, meanwhile, is limited to the narrow review afforded by 52-418 if it concludes that an arbitral result was inappropriate. A similar disparity in access to our courts, in the case of compulsory lemon law arbitration procedures, was held unconstitutional in Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 212 Conn. 83, 93-98, 561 A.2d 917 (1989), because it violated the open courts provision of our state constitution.[15]

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Although labor law grievance procedures are not themselves directly compulsory, our statutes mandate collective bargaining; General Statutes 31-104; and such mandated bargaining regularly results in collective bargaining contracts that establish mandatory grievance procedures for the resolution of workplace disputes. “If the contract requires arbitration of unresolved grievances, the duty to bargain in good faith includes the duty to participate in good faith in the grievance arbitration process, for `dispute resolution under the grievance arbitration process is as much a part of collective bargaining as the act of negotiating the contract.’ United Technologies Corporation, 268 N.L.R.B. 557, 559 (1971); see also United Steelworkers v. Warrior Gulf Navigation Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).” Board of Education v. State Board of Labor Relations, 217 Conn. 110, 121, 584 A.2d 1172 (1991).

Despite these serious concerns, we are persuaded that the language of 31-51bb, illuminated by its legislative history, supports the conclusion that the legislature intended to permit an employee, despite his prior voluntary submission of a related claim to final arbitration under a collective bargaining agreement, to pursue a statutory cause of action in the Superior Court. Consequently, the trial court improperly granted the defendant’s motion for summary judgment.

The judgment is reversed and the case is remanded for further proceedings according to law.

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In this opinion PETERS, C.J., CALLAHAN and NORCOTT, Js., concurred.

BERDON, J., dissenting in part and concurring in part.

I dissent because I do not believe that General Statutes 31-51bb permits an employee, who voluntarily submits to and actively participates in an arbitration proceeding, subsequently to pursue an independent judicial remedy on the same subject matter.

The majority’s interpretation of 31-51bb violates established principles of statutory construction for several reasons. First, the plain language of 31-51bb
requires only that the employee shall not “be denied the right to pursue, in a court of competent jurisdiction, a cause of action arising under the state or federal constitution or under a state statute solely because the employee is covered by a collective bargaining agreement.” Section 31-51bb merely states that the employee is not bound by a collective bargaining grievance procedure, but may pursue his constitutional or statutory claims directly in court. The statute does not give the employee the right to elect to pursue a collective bargaining remedy such as the arbitration in the present action, and then ignore the outcome. The majority’s interpretation of 31-51bb would allow the employee to bring an independent action against the employer, even if the employee had succeeded in the arbitration proceeding but was not satisfied with the monetary award. “In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.” (Internal quotation marks omitted.) Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988).

Second, the majority acknowledges that although the legislature intended to overrule this court’s decision in Kolenberg v. Board of Education, 206 Conn. 113, 536 A.2d 577, cert. denied, 487 U.S. 1236, 108 S.Ct. 2903,

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101 L.Ed.2d 935 (1988), it “unquestionably swept more broadly than was required . . .” and in doing so overturned established principles of collateral estoppel. That sweep, however, was not accomplished by the precise language of 31-51bb but only by the judicial gloss placed upon it by the majority. In doing so, the majority ignores long established principles of statutory interpretation requiring that a “`statute should not be construed as altering the common law rule, farther than the words of the statute import, and should not be construed as making any innovation upon the common law which the statute does not fairly express.'” Dart Bogue Co. v. Slosberg, 202 Conn. 566, 573, 522 A.2d 763 (1987).

Finally, the majority acknowledges that its decision, which permits an employee to avoid an adverse outcome in an arbitration proceeding but binds an employer, may violate the open courts provision of our state constitution. Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 212 Conn. 83, 88-89, 561 A.2d 917 (1989) (striking down the compulsory lemon law that authorized consumers, but not manufacturers, to arbitrate disputes before panels created by the department of consumer protection and that authorized consumers, but not manufacturers, to avoid unfavorable arbitration outcomes and bring the same claim before the court). When interpreting a statute, we must “follow the `golden rule of statutory interpretation’ . . . that the legislature is presumed to have intended a reasonable, just and constitutional result.” (Citations omitted; emphasis added.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991).

Disregarding these concerns, the majority holds that an employee may pursue a cause of action in the Superior Court, despite the voluntary submission of the claim to final arbitration. Since the legislature has failed

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to provide specifically that employees may have two bites of the apple, I am reluctant to read into the plain language of the statute a result that undermines sound principles of statutory construction, collateral estoppel, and constitutional law.

I have a further concern. The majority, through statutory construction, has tipped that delicate procedural balance for resolving grievances between organized labor and management, by giving the employee an advantage not envisioned by the clear mandate of the legislation. The grievance procedure was bargained for by both labor and management in order to create the necessary harmony for the interests of society. Just last year, Justice Borden, writing for a unanimous court, recognized the societal benefits of “an orderly and efficient system of dispute resolution in the public sector in the form of union grievance procedures set forth in a collective bargaining agreement, with benefits inuring to both employer and employee.” Tedesco v. Stamford, 222 Conn. 233, 244, 610 A.2d 574 (1992). This has equal application to employment in the private sector.

I also write separately to endorse the procedural activism employed by the majority in this case. The plaintiff in this case failed to raise his claim under 31-51bb
both in the trial court and initially before this court. We, on our own, raised the applicability of 31-51bb
and ordered the parties to submit supplemental briefs. Accordingly, the majority has decided this case on the basis of a claim that was never raised in the trial court and was raised in this court only as a result of our direction. Although I do not agree with the majority’s interpretation of 31-51bb, I applaud the procedural route employed in this case. We may now employ this procedure in other cases as justice demands. Certainly, if we may use this newly established procedure to achieve justice on behalf of civil litigants, where

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only money is involved, we must do likewise when an individual’s liberty is at stake.[1]

I respectfully dissent to the majority’s interpretation of 31-51bb, but concur with the procedural route adopted to review the statute.