Board of Education v. New Milford Education Assn.

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BOARD OF EDUCATION OF THE TOWN OF
NEW MILFORD v. NEW MILFORD
EDUCATION ASSOCIATION
(SC 20140)
Robinson, C. J., and Palmer, D’Auria, Mullins,
Kahn, Ecker and Vertefeuille, Js.
Syllabus
The plaintiff board of education sought to vacate an arbitration award in
which the arbitrator found that the board had violated the terms of the
parties’ collective bargaining agreement by improperly extending the
workday for teachers on multiple occasions during the 2015–2016 school
year. While the parties were in the process of negotiating a new collective
bargaining agreement, the board gave notice to the defendant union
that it planned to eliminate certain shortened school days that previously
had been used to allow for teacher development during normal workday
hours. After reaching an impasse in their negotiations, the parties submit-
ted to a three member interest arbitration panel last best offers on
several issues, including those relating to the impact of the notice sent
by the board and the number of evening meetings that teachers were
required to attend. Regarding the impact of the notice, the board’s
last best offer suggested no new language in the collective bargaining
agreement, whereas the union’s last best offer referred to its response
regarding evening meetings. With respect to the number of evening
meetings, the board’s and the union’s last best offers both permitted
six evening meetings each school year, but the union’s last best offer
provided, in addition, that teachers should be paid for additional pro-
grams beyond the normal workday. The interest arbitration panel
awarded the board’s last best offers on both issues, noting that a griev-
ance or future negotiations would be the appropriate forum to resolve
any disputes regarding additional events scheduled beyond the normal
workday. Following interest arbitration, the board published a calendar
for the 2015–2016 school year eliminating the shortened school days
and scheduling various events beyond the normal workday. Thereafter,
the union filed a grievance, claiming that the board improperly extended
the normal workday and exceeded the permitted number of events
outside the normal workday. The parties subsequently agreed to submit
three questions to an arbitrator, namely, whether the grievance was
arbitrable, whether the claims set forth in the grievance were barred
under the doctrines of res judicata and collateral estoppel on the basis
of the prior interest arbitration, and whether the board violated the
collective bargaining agreement by directing teachers to attend certain
events beyond the normal workday. The arbitrator subsequently issued
an award, finding that the matter was arbitrable and ruling in favor of
the union on the merits. The trial court subsequently denied the board’s
application to vacate that award and granted the union’s application
to confirm, concluding that the board failed to demonstrate that the
arbitrator had manifestly disregarded the law of res judicata and collat-
eral estoppel and that, although the arbitrator lacked authority to deter-
mine the issue of arbitrability, the grievance was arbitrable. The board
thereafter appealed from the trial court’s judgment. Held:
1. The trial court correctly concluded that the arbitrator did not manifestly
disregard the law of res judicata and collateral estoppel and, therefore,
properly denied the board’s application to vacate on those grounds: the
board did not meet its burden of demonstrating that the arbitrator
committed an obvious error when it concluded that the grievance was
not barred by the doctrines of res judicata and collateral estoppel on
the ground that the subject of the grievance was not addressed or
resolved during the interest arbitration, as the interest arbitration panel
decided only the language of the collective bargaining agreement by
accepting the board’s last best offers on the relevant issues, rather than
deciding the issue of whether the board had violated the terms of that
agreement, and the interest arbitration panel had explicitly acknowl-
edged that disputes regarding events scheduled beyond the normal work-
day would need to be resolved through a grievance or future
negotiations; moreover, the board did not meet its burden of demonstra-
ting that the arbitrator ignored clearly applicable governing law, as a
review of the arbitrator’s award revealed that the arbitrator carefully
considered the doctrines of collateral estoppel and res judicata, and, in
any event, it was unclear whether the arbitrator was required to apply
those doctrines in the absence of a provision in the collective bargaining
agreement requiring arbitrators to follow prior arbitration decisions.
2. The board could not prevail on its claim that the trial court incorrectly
concluded that the grievance was arbitrable under the terms of the
parties’ collective bargaining agreement: the issue of arbitrability was
subject to judicial review, as there was nothing in the language of the
collective bargaining agreement that clearly indicated an intent to submit
that issue to the arbitrator’s sole authority, and the board did not other-
wise waive its right to judicial review of that issue merely by agreeing
to include it in the grievance submission; moreover, the grievance was
arbitrable because the collective bargaining agreement permitted, and
the grievance in the present case involved, the arbitration of questions
involving the interpretation or application of the agreement’s express
and specific provisions.
Argued October 18, 2018—officially released April 30, 2019
Procedural History
Application to vacate an arbitration award, and for
other relief, brought to the Superior Court in the judicial
district of Litchfield, where the defendant filed an appli-
cation to confirm the award; thereafter, the case was
tried to the court, Hon. John W. Pickard, judge trial
referee, who, exercising the powers of the Superior
Court, rendered judgment denying the application to
vacate and granting the application to confirm, from
which the plaintiff appealed. Affirmed.
William R. Connon, with whom was Zachary D.
Schurin, for the appellant (plaintiff).
Martin A. Gould, with whom was Adrienne R.
DeLucca, for the appellee (defendant).
Rebecca E. Adams filed a brief for the Connecticut
Association of Boards of Education as amicus curiae.
Opinion
MULLINS, J. The plaintiff, the Board of Education of
the Town of New Milford (board), and the defendant,
the New Milford Education Association (union), which
represents the teachers employed by the board, are
parties to a collective bargaining agreement (agree-
ment) governing the terms and conditions of that
employment. The dispute in this case arises from the
union’s claim that the teachers’ normal work day was
extended improperly by the board in the 2015–2016
school calendar.
Prior to issuing the 2015–2016 school calendar, and
while negotiating the agreement for the 2015–2018
period, the board notified the union that it planned
to eliminate abbreviated school days. The abbreviated
school days previously had been used to provide for
teacher development that would take place after stu-
dents were dismissed but still during the teachers’ nor-
mal work day. After bargaining to impasse on a number
of issues, the parties submitted the issues still in dispute
to an arbitration panel (interest arbitration). Following
the interest arbitration, the board issued its calendar
for the 2015–2016 school year, which the union alleged
improperly extended the teacher work day on multi-
ple occasions.
As a result, the union filed a grievance alleging that
the board had violated the agreement by extending the
teacher work day and scheduling an excessive number
of open house and similar evening events (grievance
arbitration). The grievance was heard before an arbitra-
tor, who ultimately decided it in the union’s favor. The
board then filed an application to vacate the grievance
arbitration award with the trial court, and, thereafter,
the union filed an application to confirm that award.
The trial court denied the board’s application to vacate
and granted the union’s application to confirm.
The board now appeals from the judgment of the trial
court.1 The board asserts that the trial court incorrectly
denied its application to vacate the award because the
arbitrator (1) manifestly disregarded the law by con-
cluding that the doctrines of collateral estoppel and
res judicata did not apply to bar the union’s grievance
because the merits of the grievance were decided by the
interest arbitration panel, and (2) incorrectly concluded
that the union’s grievance was arbitrable under the
terms of the agreement. We disagree and, accordingly,
affirm the judgment of the trial court.
The record reveals the following facts and procedural
history. Prior to the 2015–2016 school year, the board
had used abbreviated school days, in which the students
would be dismissed early, to provide teacher profes-
sional development within the teachers’ normal work
day of seven hours and fifteen minutes. While the par-
ties were negotiating the agreement for the 2015–2018
period, the board provided the following notice to the
union: ‘‘Notice of nonmandatory subject of bargaining
. . . the board will eliminate abbreviated student
school days starting in 2015–2016. Bargaining unit work
previously done on these abbreviated days will take
place outside of student hours.’’ Ultimately, during the
negotiation of the agreement, the parties reached
impasse on a number of issues. The parties submitted
six issues for arbitration before a three member arbitra-
tion panel, pursuant to the Teacher Negotiation Act,
General Statutes § 10-153a et seq., only two of which
are at issue in this appeal.
The fifth issue submitted by the parties was entitled
‘‘Impact of Notice of NonMandatory Subject of Bar-
gaining [Regarding] Elimination of Abbreviated School
Days.’’ On that issue, the interest arbitration panel
awarded the last best offer of the board, which was
‘‘[n]o new language.’’ The sixth issue submitted by the
parties was entitled ‘‘Number of Evening Meetings.’’ On
that issue, the interest arbitration panel also awarded
the board’s last best offer, which provided that ‘‘[s]ix
evening meetings each school year may be scheduled
for [o]pen [h]ouse or similar programs with teacher
attendance required.’’ The interest arbitration award
was issued on November 21, 2014.
In June, 2015, approximately seven months after the
interest arbitration panel issued its award, the board
released the 2015–2016 school calendar. In that calen-
dar, there were six after school professional develop-
ment days and ten after school and evening open house
and other similar programs. Thereafter, in August, 2015,
the union filed a grievance on the basis of the board’s
issuance of the 2015–2016 school calendar.
In its grievance, the union made two main claims:
(1) ‘‘The 2015–2016 [s]chool [c]alendar includes six
. . . after school [p]rofessional [d]evelopment [d]ays.
These days are in addition to regular staff meetings
and exceed the number of staff meeting[s] allowed per
month. The scheduled times for the after school profes-
sional development extends the work day for teachers
beyond a ‘reasonable amount of time.’ The [b]oard
failed to provide adequate notice to the [union] of the
extended work day for teachers and failed to negotiate
the impact of the additional extended days.’’ And (2)
‘‘The 2015–2016 [s]chool [c]alendar includes ten . . .
after school and evening ‘[o]pen [h]ouse and similar
programs (e.g., curriculum presentations, parent-
teacher conferences).’ The . . . [a]greement allows
the [b]oard to schedule six . . . such events per year.
The [b]oard failed to provide adequate notice to the
[union] of the extended work day for teachers and failed
to negotiate the impact of the additional extended
day[s].’’
The grievance was ultimately heard before an arbitra-
tor appointed by the American Arbitration Association.
Specifically, the parties agreed to submit the following
three issues to the arbitrator: (1) ‘‘Is the grievance arbi-
trable pursuant to [a]rticle XII, [§ 12.04 (B), of the
agreement]?’’2 (2) ‘‘Are the essential elements of the
common-law doctrine of claim preclusion (res judicata)
and/or issue preclusion (collateral estoppel) present?
If so, should the arbitrator apply one or both of those
doctrines, and dismiss the case with prejudice?’’ And
(3) ‘‘Did the [board] violate the . . . agreement when
it directed teachers to attend professional development
activities and parent conferences beyond the scheduled
teacher work day on the following days in the 2015–2016
school year: September 9, September 16, October 14,
October 21, November 16, November 18, March 21,
March 23, April 13, May 4? If so, what shall the rem-
edy be?’’
At the grievance arbitration, the board contested the
arbitrability of the matter. As grounds for its claim, the
board asserted that the union’s grievance (1) failed to
identify a violation of an express provision of the
agreement, and (2) was barred by the doctrines of col-
lateral estoppel and res judicata because the matter of
extending the teacher work day and any concomitant
impact already had been raised and decided before the
interest arbitration panel.
Subsequently, the grievance arbitrator issued a writ-
ten award, finding the matter arbitrable and ruling in
favor of the union on the merits. The board then filed
an application to vacate the grievance arbitration award
with the trial court, and, thereafter, the union filed an
application to confirm. The trial court, also by way of
a written memorandum of decision, denied the board’s
application to vacate and granted the union’s applica-
tion to confirm. The trial court concluded that (1) the
board did not demonstrate that the arbitrator manifestly
disregarded the law, and (2) although the arbitrator
did not have authority to determine arbitrability, the
grievance, nevertheless, was arbitrable. This appeal fol-
lowed. See footnote 1 of this opinion.
I
On appeal, the board first claims that the trial court
incorrectly denied its application to vacate the award
pursuant to General Statutes § 52-418 (a) (4)3 because
the arbitrator exceeded his powers or so imperfectly
executed them that a mutual, final and definite award
upon the subject matter submitted was not made. Spe-
cifically, the board claims that the trial court should
have determined that the arbitrator manifestly disre-
garded the law by concluding that the doctrines of col-
lateral estoppel and res judicata did not preclude the
union from arbitrating its grievance because the merits
of the grievance were decided by the interest arbitration
panel. In particular, the board asserts that the parties
already had negotiated, and the interest arbitration
panel already had decided, the issue of the impact of
the elimination of abbreviated school days, and that
the union’s grievance was an attempt to relitigate that
issue. We disagree.
‘‘The propriety of arbitration awards often turns on
the unique standard of review and legal principles
applied to decisions rendered in this forum. [Thus, judi-
cial] review of arbitral decisions is narrowly confined.
. . . Because we favor arbitration as a means of settling
private disputes, we undertake judicial review of arbi-
tration awards in a manner designed to minimize inter-
ference with an efficient and economical system of
alternative dispute resolution. . . . Parties to an arbi-
tration may make a restricted or an unrestricted submis-
sion. . . .
‘‘[U]nder an unrestricted submission, the [arbitra-
tor’s] decision is considered final and binding; thus the
courts will not review the evidence considered by the
[arbitrator] nor will they review the award for errors
of law or fact. . . . A submission is deemed restricted
only if the agreement contains express language
restricting the breadth of issues, reserving explicit
rights, or conditioning the award on court review. . . .
‘‘Even in the case of an unrestricted submission, how-
ever, a reviewing court will vacate an award when an
arbitrator has exceeded the power granted to [him or]
her by the parties’ submission. . . . [A] claim that [an
arbitrator has] exceeded [his or her] powers may be
established under § 52-418 in either one of two ways:
(1) the award fails to conform to the submission, or,
in other words, falls outside the scope of the submis-
sion; or (2) the [arbitrator] manifestly disregarded the
law.’’4 (Citations omitted; internal quotation marks
omitted.) AFSCME, Council 4, Local 2663 v. Dept. of
Children & Families, 317 Conn. 238, 249–51, 117 A.3d
470 (2015).
In the present case, the arbitrator was required to
determine whether the board violated a particular sec-
tion of the agreement. Accordingly, the submission was
unrestricted. See, e.g., Industrial Risk Insurers v. Hart-
ford Steam Boiler Inspection & Ins. Co., 258 Conn. 101,
111, 779 A.2d 737 (2001) (‘‘this court consistently has
concluded that submissions that require arbitrators to
determine whether a party has violated a particular
section of a collective bargaining agreement constituted
unrestricted submissions’’). The board claims, however,
that the trial court should have concluded that the arbi-
trator manifestly disregarded the law by failing to apply
the doctrines of collateral estoppel and res judicata to
bar the union from arbitrating the grievance.5 Conse-
quently, we must determine whether the trial court
properly concluded that the arbitrator did not mani-
festly disregard the law of collateral estoppel and res
judicata.
‘‘[T]his court [has] outlined the following burden of
proof for claims that an arbitrator had issued a decision
in manifest disregard of the law in violation of § 52-
418 (a) (4) [as follows]: (1) the error was obvious and
capable of being readily and instantly perceived by the
average person qualified to serve as an arbitrator; (2)
the [arbitrator] appreciated the existence of a clearly
governing legal principle but decided to ignore it; and
(3) the governing law alleged to have been ignored
by the [arbitrator] is well defined, explicit, and clearly
applicable.’’ AFSCME, Council 4, Local 1565 v. Dept. of
Correction, 298 Conn. 824, 848 n.12, 6 A.3d 1142 (2010).
In order to place the board’s claim in context, we
set forth the ruling and reasoning of the arbitrator on
whether the doctrines of collateral estoppel and res
judicata barred the union’s grievance. The arbitrator
ruled as follows: ‘‘The interest arbitration award fails
to meet the requirement of a final judgment necessary
for the application of claim preclusion. The interest
arbitration award did finally determine the terms of the
[agreement] to be interpreted and applied pursuant to
[the third question submitted by the parties in the griev-
ance arbitration]. However, the [interest arbitration]
panel did not do more [than that]. To the contrary, the
[interest arbitration] panel made clear that its award
would not preclude the adjudication of this grievance.
The [interest arbitration] panel stated on issues five
and six that the matter of additional time outside of the
normal work day will be resolved through the grievance
process or additional negotiations.’’ The arbitrator fur-
ther explained that ‘‘[t]he interest arbitration award also
fails to meet the requirement of issue preclusion that the
issue must have actually been litigated and necessarily
determined in a prior judgment so as to bar their further
assertion. Only the terms of the [agreement] were
resolved in the interest arbitration, not the subject of
this grievance as explained [previously].’’
The arbitrator’s decision convinces us that the trial
court correctly concluded that the arbitrator did not
manifestly disregard the law with respect to the applica-
tion of res judicata and collateral estoppel. That conclu-
sion is supported by the fact that the board has failed
to establish any of the three requirements necessary
to show a manifest disregard of the law. As we have
explained previously in this opinion, the board must
show that ‘‘(1) the error was obvious and capable of
being readily and instantly perceived by the average
person qualified to serve as an arbitrator; (2) the [arbi-
trator] appreciated the existence of a clearly governing
legal principle but decided to ignore it; and (3) the
governing law alleged to have been ignored by the [arbi-
trator] is well defined, explicit, and clearly applicable.’’
AFSCME, Council 4, Local 1565 v. Dept. of Correction,
supra, 298 Conn. 848 n.12. We examine each of these
prongs in turn.
Starting with the first prong, we agree with the trial
court that the grievance arbitrator did not commit an
obvious error in concluding that the subject of the griev-
ance was not addressed in the interest arbitration. The
parties submitted six issues to the interest arbitration
panel. The fifth issue was entitled ‘‘Impact of Notice of
NonMandatory Subject of Bargaining [Regarding] Elim-
ination of Abbreviated School Days.’’ On that issue,
the board’s last best offer read as follows: ‘‘No new
language.’’ The union’s last best offer read as follows:
‘‘The impact [regarding] [e]limination of [a]bbreviated
[s]tudent [d]ays is addressed in [the response to the
sixth issue].’’ The interest arbitration panel adopted the
board’s last best offer on the fifth issue, which was no
new language. As a result of the decision of the interest
arbitration panel, article VII, § 7.02, of the agreement,
which is entitled ‘‘Normal Work Day,’’ remained the
same as it had been previously—i.e., the normal work
day continued to be seven hours and fifteen minutes.
The sixth issue was entitled ‘‘Number of Evening
Meetings.’’ On that issue, the board’s last best offer read
as follows: ‘‘Six evening meetings each school year may
be scheduled for [o]pen [h]ouse or similar programs
with teacher attendance required.’’ The union’s last best
offer read as follows: ‘‘Up to six . . . meetings each
school year may be scheduled for [o]pen [h]ouse or
similar programs with teacher attendance required. In
the event the [s]uperintendent designates additional
[o]pen [h]ouses or similar programs beyond the normal
teacher workday teachers shall be compensated at the
rate of $100 for each such additional [o]pen [h]ouse or
similar program. No teacher shall be required to attend
[o]pen [h]ouse and/or similar programs on consecutive
evenings.’’ On this issue, the interest arbitration panel
also adopted the board’s last best offer, which provided
that six evening meetings per school year could be
scheduled.
Accordingly, the interest arbitration award on the
fifth issue resulted in the previously existing provisions
defining a ‘‘[n]ormal [w]ork [d]ay’’ being incorporated
into the agreement.6 Those provisions provided that a
normal work day extends approximately thirty minutes
after dismissal and that, if the board alters that work
day, it must give notice thirty days in advance and
negotiate the impact of the change. The interest arbitra-
tion award on the sixth issue provided that the board
could schedule six evening meetings. Nothing in the
language of the award by the interest arbitration panel,
however, addresses additional time required of the
teachers beyond their normal work day.
Indeed, the union’s grievance does not challenge the
provisions of the agreement defining the hours of the
teachers’ normal work day, which was decided by the
interest arbitration panel. Rather, the union’s grievance
claims only that the 2015–2016 school calendar violates
the express terms of the agreement by extending the
work day and increasing the number of after school or
evening meetings. This is the critical distinction
between the two arbitrations—the interest arbitration
decided the language of the agreement between the
parties, whereas the grievance arbitration decided
whether the board had violated the terms of the
agreement. Specifically, the union claimed that the
2015–2016 school calendar included (1) six after school
professional development days that extend the normal
work day beyond ‘‘a reasonable amount of time,’’ and
(2) ten after school and evening programs that exceeded
the maximum number of six open house and evening
programs allowed by the agreement. Although these
topics may relate to the interest arbitration award, nei-
ther of them definitively was decided by the interest
arbitration panel.
Furthermore, we find it telling and significant that the
interest arbitration panel itself seemed to acknowledge
that the types of issues addressed in the union’s griev-
ance were not decided by the interest arbitration. Dur-
ing the interest arbitration, the union asserted that ‘‘[i]f
the [s]uperintendent required teachers to stay beyond
their contractual work day, the request may be grieved
or the [union] may demand to bargain the impact of
such a request.’’ (Internal quotation marks omitted.) In
addressing this specific assertion, the interest arbitra-
tion panel stated in its decision that ‘‘[c]learly, this is
an issue for the future.’’
With respect to the sixth issue submitted to the inter-
est arbitration panel, the union asserted that ‘‘[t]he
[b]oard’s [o]ffer presents no such alternative [to meet-
ings beyond the school day] and in the event additional
time is needed outside of the regular work day it will
either be resolved through the grievance process or
additional negotiations.’’ (Internal quotation marks
omitted.) The interest arbitration panel recognized the
union’s claim and explained that, ‘‘[b]ased on the evi-
dence before [it], that appears to be the appropriate
place to resolve such an issue because resolution of
meetings beyond the school day, excluding evening
meetings, does not fall within the confines of the issue
before us.’’
As the foregoing demonstrates, the interest arbitra-
tion panel did not address the subject of the union’s
grievance but, instead, recognized that those issues
would need to be decided in the future. Indeed, as
the arbitrator explained in the grievance award, ‘‘[t]he
interest arbitration award did finally determine the
terms of the [agreement] to be interpreted and applied
. . . . [T]he [interest arbitration] panel did not do more
[than that].’’ Accordingly, we cannot conclude that the
trial court erred in confirming the grievance arbitration
award insofar as the arbitrator found that the union’s
grievance was not litigated during, and resolved by, the
interest arbitration.
The board also cites In re Bloomfield Board of Educa-
tion, Conn. Board of Labor Relations Decision No. 2821
(July 3, 1990) pp. 4–5, in support of its position that
the subject of the grievance had been bargained about
by the parties during the negotiations and decided in the
subsequent interest arbitration. Specifically, the board
asserts that when it notified the union that it planned
to eliminate abbreviated school days, the impact of that
elimination became a mandatory subject of bargaining
between the parties. The board further asserts that the
fact that it was a mandatory subject of bargaining
between the parties is support for its position that the
trial court should have concluded that the doctrines
of collateral estoppel and res judicata bar the union’s
grievance. We disagree.
We acknowledge that this court and the state Board
of Labor Relations have repeatedly explained that
‘‘boards of education have the right to determine educa-
tional policy and unilaterally implement such policy
decisions, but where this implementation impinges in
some substantial way upon a major term or condition of
employment, there arises a duty to bargain the impact.’’
(Internal quotation marks omitted.) Board of Education
v. State Board of Labor Relations, 299 Conn. 63, 75 n.9,
7 A.3d 371 (2010); see also West Hartford Education
Assn. v. DeCourcy, 162 Conn. 566, 586–87, 295 A.2d
526 (1972). Contrary to the board’s position, however,
simply having a duty to bargain does not mean we
necessarily must infer both that such bargaining
occurred and was decided by the interest arbitration
panel. Indeed, the record reflects that the interest arbi-
tration panel stated that it was not deciding this issue. At
best, there was notice of the board’s intent to eliminate
abbreviated school days, but nothing was decided
regarding any time that would be required of the teach-
ers beyond the normal work day. In fact, the interest
arbitration panel astutely noted that without abbrevi-
ated school days, the issue of any additional time
required of teachers beyond the normal work day was
not before the panel and, thus, would need to be
addressed through additional negotiation or a griev-
ance. Accordingly, the trial court correctly concluded
that the board did not meet its burden of demonstrating
that the arbitrator committed an obvious error by find-
ing that the union’s grievance was not barred by the
doctrines of collateral estoppel and res judicata.
With regard to the second prong of the manifest disre-
gard of the law test, the board also has failed to demon-
strate that the arbitrator ‘‘appreciated the existence of
a clearly governing legal principle but decided to ignore
it . . . .’’ AFSCME, Council 4, Local 1565 v. Dept. of
Correction, supra, 298 Conn. 848 n.12. In the present
case, a review of the arbitrator’s decision reveals that
he appreciated the existence of, and fully examined,
the doctrines of collateral estoppel and res judicata. He
did not ignore those doctrines. To the contrary, his
decision reveals that he considered the doctrines in
light of the facts of the present case and reached a
reasoned determination that the union’s grievance was
not barred by the doctrines of collateral estoppel and
res judicata.
The third and final requirement of the manifest disre-
gard of the law test is for the board to show that ‘‘the
governing law alleged to have been ignored by the [arbi-
trator] is well defined, explicit, and clearly applicable.’’
Id. The board has not met its burden with respect to
this prong either. First and foremost, the arbitrator did
not ignore the governing law. Second, this court pre-
viously has concluded that, ‘‘in the absence of a specific
contract provision to the contrary, an arbitrator is not
bound to follow prior arbitration decisions, even in
cases in which the grievances at issue involve the same
parties and interpretation of the same contract provi-
sions. Although an arbitrator may find well reasoned
prior awards to be a compelling influence on his or her
decision-making process, the arbitrator need not give
such awards preclusive effect. Rather, the arbitrator
should bring his or her own independent judgment to
bear on the issue to be decided, using prior awards as
the arbitrator sees fit, as it is the arbitrator’s judgment
for which the parties had bargained.’’ Stratford v. Inter-
national Assn. of Firefighters, AFL-CIO, Local 998,
248 Conn. 108, 125, 728 A.2d 1063 (1999).
In the present case, the parties have not pointed to,
and we have not uncovered, any specific provision of
the agreement stating that the grievance arbitrator was
bound to follow prior arbitration decisions. In the
absence of such a provision, it is not at all clear that
the grievance arbitrator was required to apply collateral
estoppel and res judicata, even if the elements of those
doctrines were satisfied. See id., 124–25. Therefore, the
trial court correctly concluded that the board did not
meet its burden of demonstrating that the arbitrator
ignored governing law that was clearly applicable to
the present case.
Accordingly, we conclude that the board cannot pre-
vail on its claim in the present appeal relating to the
doctrines of collateral estoppel and res judicata, and
that, for all of the foregoing reasons, the trial court
correctly denied the board’s application to vacate the
grievance arbitration award on those grounds.
II
The board also claims that the trial court improperly
confirmed the grievance arbitration award because the
arbitrator had incorrectly concluded that the grievance
was arbitrable under the language of the agreement.
Specifically, the board asserts that the agreement did
not give the arbitrator authority to determine the ques-
tion of arbitrability and that, on the merits, the grievance
was not arbitrable under the terms of the agreement.
In addressing this claim, we first determine our stan-
dard of review. As we explained previously in this opin-
ion, when reviewing a denial of an application to vacate
under § 52-418 (a) (4), we generally reverse only if we
conclude that the arbitrator acted in manifest disregard
of the law. However, when a party appeals from an
arbitrator’s ‘‘determination that the dispute was arbitra-
ble, rather than from the award itself, we must examine
more closely the question of our standard of review.
‘‘[A party] can be compelled to arbitrate a dispute
only if, to the extent that, and in the manner which, [it]
has agreed so to do. . . . Because arbitration is based
on a contractual relationship, a party who has not con-
sented cannot be forced to arbitrate a dispute. . . . We
recently noted that three distinct issues arise in cases
such as the present one: (1) whether the parties agreed
to arbitrate the underlying merits of the case, i.e.,
whether the matter is arbitrable; (2) who has the pri-
mary authority to decide that question—the arbitrator
or the court; and (3) if the court has the primary author-
ity to decide that question, whether the parties engaged
in conduct that precludes judicial review of the arbitra-
tor’s decision on that matter. Bacon Construction Co.
v. Dept. of Public Works, 294 Conn. 695, 709–10, 987
A.2d 348 (2010).
‘‘In accordance with these principles, in determining
our standard of review, we first examine who had the
primary authority to resolve the question of arbitrability
in the present case: the court or the arbitrators. It is
well established that, absent the parties’ contrary intent,
it is the court that has the primary authority to deter-
mine whether a particular dispute is arbitrable, not the
arbitrators. . . . Thus, courts generally review chal-
lenges to an arbitrator’s determination of arbitrability
de novo. . . .
‘‘Because, however, [a]rbitration is a creature of con-
tract parties may agree to arbitrate the question of arbi-
trability. . . . It is well established . . . that parties
may agree to have questions concerning the arbitrability
of their disputes decided by a separate arbitrator. . . .
In apportioning, between the court and the arbitrators,
the responsibility for determining which disputes are
arbitrable, the language of the contract controls . . . .
When deciding whether a party has agreed that an arbi-
trator should have the sole authority to decide arbitra-
bility, we must not assume that the parties agreed to
arbitrate arbitrability unless there is clea[r] and unmis-
takabl[e] evidence that they did so. . . . In this manner
the law treats silence or ambiguity about the question
who (primarily) should decide arbitrability differently
from the way it treats silence or ambiguity about the
question whether a particular [merits related] dispute
is arbitrable because it is within the scope of a valid
arbitration agreement . . . . In this state, the intention
to have arbitrability solely determined by an arbitrator
can be manifested by an express provision or through
the use of broad terms to describe the scope of arbitra-
tion, such as all questions in dispute and all claims
arising out of the contract or any dispute that cannot
be adjudicated.’’ (Citations omitted; footnotes omitted;
internal quotation marks omitted.) New Britain v.
AFSCME, Council 4, Local 1186, 304 Conn. 639, 646–48,
43 A.3d 143 (2012).
The arbitration provision at issue in the present case,
which is set forth in article XII, § 12.04 (B), of the
agreement, provides as follows: ‘‘No grievance will be
submitted to arbitration and no grievance will be arbi-
trable, unless it actually involves the interpretation or
application of an express and specific provision of this
[a]greement. Further, the arbitrator will only have
authority to determine whether the [b]oard violated an
express and specific provision of this [a]greement and
will not have authority to add to, detract from or modify
any such provision of this [a]greement.’’ This language
clearly does not reflect an express intention to have the
arbitrator decide all questions in dispute or all claims
arising from the agreement. This language also falls far
short of the type of broad terms from which we will
infer the parties’ intent to have the arbitrator decide the
question of arbitrability. See, e.g., Liggett v. Torrington
Building Co., 114 Conn. 425, 430, 158 A. 917 (1932)
(language in contract that ‘‘ ‘[a]ll questions in dispute
and all claims arising out of said contract’ ’’ gave arbitra-
tors authority to make determinations regarding ‘‘all
questions of law and fact’’).
Rather, by providing that ‘‘the arbitrator will only
have authority to determine whether the [b]oard vio-
lated an express and specific provision of this
[a]greement,’’ the arbitration provision limits the arbi-
trator’s authority to resolving disputes about express
provisions of the agreement, and does not extend that
authority to the overall question of arbitrability. See,
e.g., New Britain v. AFSCME, Council 4, Local 1186,
supra, 304 Conn. 641, 649 (concluding that arbitration
provision that read, ‘‘ ‘arbitration shall be used to
redress all upgrades that have not been resolved in
negotiations,’ ’’ limited the arbitrator’s authority to the
merits of the dispute and not to determining arbitrabil-
ity). Thus, we cannot conclude that the arbitration pro-
vision in the agreement contained any expression of
the parties’ intent to submit the issue of arbitrability to
the arbitrator’s sole authority.
‘‘Having determined that the parties did not clearly
and unmistakably indicate in [their agreement or any
documents submitted during the arbitration] an inten-
tion to waive judicial review of the question of arbitra-
bility, we next turn to the third inquiry set forth in
Bacon Construction Co., which consists of two parts:
preservation and waiver. Bacon Construction Co. v.
Dept. of Public Works, supra, 294 Conn. 710. A party
preserves its right to judicial review of an arbitrator’s
conclusion regarding arbitrability by raising that issue
before the arbitrator. Id. ‘A party who [makes] such a
challenge nonetheless may waive its right to judicial
review by agreeing to vest the arbitrator with authority
to decide’ whether the matter is arbitrable. Id. In order
to obtain judicial review of the arbitrator’s arbitrability
determination, therefore, a party must both preserve its
claim and refrain from activities that would, in essence,
estop that party from asserting its claim at a later time.’’
New Britain v. AFSCME, Council 4, Local 1186, supra,
304 Conn. 650. In the present case, it is undisputed that
the parties raised the issue of arbitrability before the
arbitrator. Accordingly, the parties preserved their right
to judicial review of that matter.
The union asserts, however, that the board engaged
in conduct that waived its right to judicial review of
the issue of whether the arbitrator had authority to
decide arbitrability. Specifically, the union claims that
the board’s agreement to submit the question of arbitra-
bility to the arbitrator precludes the board from seeking
judicial review of that issue. We disagree. In New Brit-
ain v. AFSCME, Council 4, Local 1186, supra, 304
Conn. 651–52, this court explained that when relevant
documents do not ‘‘evidence any intention by the parties
to submit the question of arbitrability to the arbitrators
for their full and final decision on the matter,’’ the par-
ties have not waived their right to judicial review of the
issue of arbitrability. See id. (contrasting agreements
in which parties agreed for issue of arbitrability to ‘‘be
heard and fully and finally determined by this arbitra-
tion’’ [internal quotation marks omitted]); cf. Bacon
Construction Co. v. Dept. of Public Works, supra, 294
Conn. 710–11 (concluding that defendant waived right
to judicial review of arbitrator’s determination of arbi-
trability by agreeing, during course of arbitration, that
certain ‘‘ ‘issues may be heard and fully and finally deter-
mined by [the] arbitration’ ’’).
The submission to the arbitrator at issue in the pres-
ent case did not contain any language indicating that
the arbitrator would make the full and final decision
on the matter of arbitrability. The record also does not
reflect that the parties had agreed, during the course
of the arbitration, to have the arbitrator fully and finally
decide the question of arbitrability. Thus, we reject the
union’s claim that, by merely submitting the question
of arbitrability to the arbitrator, without more, the board
waived its right to judicial review. Accordingly, the par-
ties did not waive their right to judicial review of the
question of arbitrability. Therefore, we review the ques-
tion of whether the union’s grievance was arbitrable
under the terms of the agreement de novo. See New
Britain v. AFSCME, Council 4, Local 1186, supra, 304
Conn. 651.
As we explained previously in this opinion, the arbi-
tration provision of the agreement provides that ‘‘no
grievance will be arbitrable, unless it actually involves
the interpretation or application of an express and spe-
cific provision of this [a]greement.’’ The union’s griev-
ance involves the interpretation and application of
express provisions of the agreement—namely, article
VII, § 7.02, of the agreement, which is entitled ‘‘Normal
Work Day’’; article VII, § 7.03, of the agreement, which
is entitled ‘‘Staff Meetings’’; and article VII, § 7.04, of
the agreement, which is entitled ‘‘Open House.’’ These
are express and specific provisions of the agreement.
Consequently, the grievance was arbitrable. Thus,
although the arbitrator could not determine the ques-
tion of arbitrability, nothing was amiss in the trial
court’s conclusion that, the grievance was, in fact, arbi-
trable.
Accordingly, we conclude that the trial court properly
denied the board’s application to vacate the grievance
arbitration award and granted the union’s application
to confirm the grievance award.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The board appealed to the Appellate Court, and this court transferred
the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-2.
2
Article XII, § 12.04 (B), of the agreement provides that ‘‘[n]o grievance
will be submitted to arbitration and no grievance will be arbitrable, unless it
actually involves the interpretation or application of an express and specific
provision of this [a]greement. Further, the arbitrator will only have authority
to determine whether the [b]oard violated an express and specific provision
of this [a]greement and will not have authority to add to, detract from or
modify any such provision of this [a]greement.’’
We note that there were certain technical changes to the designation of
articles and sections within the agreement following interest arbitration
between the parties. Citations to the agreement within this opinion use the
designations set forth in the agreement covering the 2015–2018 period.
3
General Statutes § 52-418 provides in relevant part: ‘‘(a) Upon the applica-
tion of any party to an arbitration, the superior court for the judicial district
in which one of the parties resides . . . or, when the court is not in session,
any judge thereof, 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 submitted was not made.’’
4
The trial court found that the board failed to make any substantive
argument as to how the grievance arbitration award failed to conform to
the submission of issues before the arbitrator. We also do not read the
board’s brief as raising any such claim. Therefore, our review is limited to
whether there was a manifest disregard of the law.
5
‘‘[T]he doctrines of collateral estoppel and res judicata, commonly
referred to as issue preclusion and claim preclusion, respectively, have been
described as related ideas on a continuum. [C]laim preclusion prevents a
litigant from reasserting a claim that has already been decided on the merits.
. . . [I]ssue preclusion . . . prevents a party from relitigating an issue that
has been determined in a prior suit.’’ Cumberland Farms, Inc. v. Groton,
262 Conn. 45, 57 n.16, 808 A.2d 1107 (2002).
6
Article VII, § 7.02, of the agreement provides: ‘‘Normal Work Day
‘‘A. The starting and dismissal times of all schools shall be set forth in
administrative regulations and published for any succeeding year by no later
than four . . . weeks prior to the opening of school. The work day shall
be seven . . . hours and fifteen . . . minutes. The time that has been added
to the teacher work day as of July 1, 2003 may be student instructional time.
‘‘B. Provided that a teacher has no professional commitment (such as
assisting students after school, meeting the professional requirements of
his or her position, participating in the activities deemed necessary to the
maintenance and development of a good school) after notifying the office,
he or she may leave the building ten . . . minutes before the end of the
normal work day as defined in the administrative regulations of his or her
particular school (the normal work day extends approximately thirty . . .
minutes after student dismissal).
‘‘C. In the event the Board of Education should alter the work day for
teachers, the Board shall provide the Association with thirty . . . days
advance notification and shall meet with the Association to negotiate the
impact of such alteration. Such negotiations shall be subject to the provisions
of [General Statutes §§ 10-153a through 10-153f]. This paragraph shall not
be applicable to alterations in the work day which are otherwise covered
by a specific provision of this [a]greement.’’