Francis DALEY, et al.
CITY OF HARTFORD. 13781.
Argued Feb. 27, 1990.
H. Maria Cone, Sr. Asst. Corp. Counsel, with whom, on the brief, was Richard M.
Cosgrove, Sr. Deputy Corp. Counsel, Hartford, for appellant (defendant).
Joseph C. Morelli, West Hartford, for appellee (plaintiffs).
Before PETERS, C.J., and CALLAHAN, COVELLO, HULL and FRANCIS X. HENNESSY, JJ.
[215 Conn. 15] PETERS, Chief Justice.
The dispositive issue in this appeal is whether a court has subject matter jurisdiction to entertain a contract action arising out of a provision of a collective bargaining agreement that has not been grieved when the parties have exhausted applicable grievance procedures relating to a different provision of the agreement. The plaintiff police officers, having been bypassed for promotion to the rank of lieutenant in the police department of the defendant city of Hartford, brought a breach of contract action against the defendant alleging that the promotional process violated the collective bargaining agreement that had been negotiated between their union and the defendant.
The lengthy procedural background of this action began when the trial court, O'Neill, J., directed a verdict in favor of the defendant and the plaintiffs appealed. The Appellate Court, in Daley v. Gaitor, 16 Conn.App. 379, 390, 547 A.2d 1375, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988), determined that the interpretation of the collective bargaining agreement [215 Conn. 16] was a question of fact that should be resolved by a jury in a new trial. Upon remand to the trial court, the defendant unsuccessfully moved to dismiss the case for lack of subject matter jurisdiction, alleging, inter alia, that the plaintiffs, as individual union members, lacked standing to enforce the collective bargaining agreement and, alternatively, that they had failed to exhaust their contractual remedies.  The jury trial resulted in a verdict in favor of the plaintiffs. Denying the defendant's motions to set aside the verdict and for judgment notwithstanding the verdict, the trial court, Thompson, J., rendered judgment for the plaintiffs. The defendant appealed to the Appellate Court and we transferred the appeal to ourselves pursuant to Practice Book § 4023. We find error.
The history of this case depicts a regrettably convoluted "nine year saga." For present purposes, it is necessary only to recite the factual background relating to the specific grievance filed on behalf of the plaintiffs by their union and the inferences from those grievance procedures that the trial court drew upon remand from the Appellate Court. 
The plaintiffs are present and former sergeants in the Hartford police department who applied for the position of lieutenant in 1981. Each had attained a score of at least seventy-six on the written examination, the minimum necessary to proceed to the oral examination. Subsequent evaluation of the written test results, however, revealed an adverse impact on minority candidates as measured by the federal Uniform Guidelines on Employee Selection, 29 C.F.R. § 1067 et seq. The [215 Conn. 17] defendant, in accordance with 29 C.F.R. § 1067.66(2), which provides for modification of employee selection procedures in order to alleviate any discriminatory impact, voluntarily altered its previously established eligibility criteria and permitted any sergeant who had taken the written examination to proceed to the oral evaluation. Thereafter, those individuals who had completed both phases of this bifurcated promotional process were ranked. Daley v. Gaitor, supra, 16 Conn.App. 381, 547 A.2d 1375. As a result, three individuals who, in accordance with the originally established promotional guidelines, would not have proceeded to the oral examination, were ultimately promoted to lieutenant in lieu of the plaintiffs. Id., 382, 547 A.2d 1375.
Because of the provisions of General Statutes §§ 7-467 through 7-477, the collective
bargaining agreement between the International Brotherhood of Police Officers, Local 308 (union) and the defendant governed the plaintiffs' employment relationship with the defendant. Section 3.3 of the collective bargaining agreement incorporated the defendant's personnel rules and regulations. Article II of the agreement provided a four step procedure for the resolution of employment grievances and disputes. The agreement authorized any individual employee to pursue a claim through the first three steps of the grievance procedure, but reserved to the union the discretion to determine whether a grievance would be pursued to the fourth step, the state board of mediation and arbitration.  Pursuant to the fourth step, § 2.1, the state board of mediation and arbitration "shall be limited to the express terms of the contract and shall not have the power to modify, amend or delete any terms or provisions of the Agreement," and its decision "shall be final and binding on the parties."
[215 Conn. 18] Although the promotional process that the plaintiffs challenge occurred in 1981, it was not until 1983 that the plaintiffs, with the support of their union, filed a grievance with the defendant. In their grievance, the plaintiffs specifically alleged violations of the "no discrimination" and "prior benefits and practices" sections of the contract, §§ 1.7 and 3.4 respectively.  Because the collective bargaining agreement expressly required any grievance to be filed within seven days from the date of the alleged violation, the defendant consistently denied the grievance at steps one, two and three of the grievance procedure, on the ground that the grievance was untimely and therefore nonarbitrable. In addition, the defendant maintained, at each juncture, that "the [s]ubject of the grievance [was] specifically excluded from [the] collective bargaining [agreement] and therefore the grievance procedure...." 
In accordance with the terms of the collective bargaining agreement, the union filed a fourth step grievance[215 Conn. 19] with the state board of mediation and arbitration. On May 9, 1984, the state board of mediation and arbitration, acting upon the terms of the parties' stipulation to that effect, issued an award that the grievance was nonarbitrable. The parties' stipulation provided specifically that (1) "[t]he City has raised the issue of arbitrability with regard to Case # 8384-A-274 currently Before the Connecticut State Board of Mediation and Arbitration"; (2) "[t]he Union hereby concedes without prejudice or precedent that the issue in Case # 8384-A-274 is not arbitrable"; and (3) "[t]he parties agree and jointly request that items 1 and 2 above be issued as a stipulated award by the Connecticut State Board of Mediation and Arbitration for Case # 8384-A-274."
Because this stipulation of the nonarbitrability of the union's grievance forms the fulcrum upon which the threshold question of subject matter jurisdiction rests, it is significant to note what it left unstated. The stipulation does not reveal the underlying basis for the parties' agreement that the grievance was nonarbitrable. The parties now disagree about the significance of that omission. There can be no dispute, however, about the fact that § 3.3, the provision delineating applicable personnel rules and regulations, was not one of the specific terms of the collective bargaining agreement submitted by the parties for
arbitration. Moreover, the union has never grieved a violation of § 3.3 of the collective bargaining agreement on ...