author: Shea, J.

text:
    Board of Education of the Town of Thomaston v. State Board of Labor Relations et al.
    (14010)
    Shea, Callahan, Glass, Covello and Borden, Js.

      Argued November 1, 1990
    decision released January 8, 1991

      Joseph M. Celentano, with whom was Ronald Cordilico, for the appellants (defendants).

      Victor M. Muschell, for the appellee (plaintiff).
   Shea, J.

This appeal arises out of an arbitrator’s award ordering the plaintiff, the Thomaston board of education (board), to promote a teacher to the position of department head of the Thomaston high school English department. The board, instead of challenging the award in court, eliminated the department head position for the admitted purpose of preventing the teacher from holding the position. The teacher and the union filed an unfair labor practice charge with the state labor relations board (labor board), which ordered the board of education to comply with the arbitrator’s award and restore the position. The board of education thereupon appealed to the Superior Court, challenging both the decision and the order. The court vacated the order of the labor board, holding that the elimination of a teaching position was in the sole discretion of the board of education and thus that the labor board was without authority to order the board to restore the position. This appeal ensued.

I

The labor board’s factual findings are unchallenged. Fred Schipul taught English at Thomaston high school for eighteen years. In December, 1985, he applied for the position of English department chairperson, which was then vacant. In January, 1986, the board of education awarded the position to a less senior teacher. Schipul filed a grievance based on the provision in the teachers’ collective bargaining agreement that required the board to promote the most senior teacher “where two or more applicants are equal in qualification.” On August 10, 1986, the arbitrator upheld the grievance and ordered the board of education to promote Schipul, retroactively to January, 1986.

Meanwhile, before the arbitration award was made, the board of education voted to eliminate all department head positions from its budget. Two weeks after the award was issued, however, the board restored all department head positions—all, that is, except the position of English department head. As a result of the award, the board of education paid Schipul what he would have received as department head until the position was eliminated, but never allowed him to perform the job.

Schipul’s bargaining representative, the Thomaston Education Association, duly filed an unfair labor practice charge with the labor board, claiming that the board of education’s actions interfered with Schipul’s statutory right to file a grievance. The board of education admitted before the labor board that its sole reason for not restoring the position of English department head was to prevent Schipul from holding that position, for which it honestly believed he was unqualified.

II

Although the trial court’s memorandum of decision did not address whether the school board’s conduct constituted an unfair labor practice, that issue has been presented to us on appeal by both parties. The board of education maintains that because the arbitrator’s decision was “not concerned with the future elimination of the position but only with Schipul’s entitlement to the position in January, 1986, when it indeed did exist,” (emphasis in original) the elimination of the position in August, 1986, could not logically be a repudiation of the arbitrator’s decision that Schipul was entitled to the position in January, 1986, and that, because the establishment of teaching positions is discretionary, elimination of the position could not be an unfair labor practice. The labor board contends that the board of education’s action, which effectively nullified the arbitrator’s award and flouted the contractually mandated grievance arbitration process, constituted a refusal to participate in good faith in mediation and arbitration, an unfair labor practice under General Statutes § 10-153e (b) (4) and (5) of the Teachers Negotiation Act (TNA). 123 We conclude that the board of education’s arguments are without merit, and agree with the labor board.

A

The labor board first claims that the board of education’s action was an unfair labor practice specifically prohibited by General Statutes § 10-153e (b) (5), “refusing to participate in good faith in mediation or arbitration.” Without discussing that particular subsection of the TNA, the board of education emphasizes the absence in the TNA of language in the Municipal Employees Relations Act (MERA), General Statutes § 7-407 et seq., specifically listing failure to comply with an arbitration award as an unfair labor practice, and argues that this absence shows that the legislature did not intend failure to comply with an arbitration award to constitute an unfair labor practice under the TNA.

Before considering the implications of the legislature’s decision not to include in the TNA a provision such as § 7-470 (a) (6) of MERA, we will consider the language of the TNA as it is written. Section 10-153e (b) (5) makes “refusing to participate in good faith in mediation or arbitration” an unfair labor practice. The word “arbitration” is a general term that may refer either to arbitration of individual claims that an employer has breached a collective bargaining agreement (grievance arbitration) or to arbitration of broader disputes concerning the conditions of employment in general, arising either during contract negotiations or in some cases during the term of an existing contract (interest arbitration). Section 10-153e (b) (5) does not define the term further to indicate the type or types of arbitration to which it refers.

We construe a statute as a whole and read its subsections concurrently in order to reach a reasonable overall interpretation. Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987). Where the same words are used in a statute two or more times, they will ordinarily be given the same meaning. State ex rel. Hyde v. Dowe, 129 Conn. 266, 271, 28 A.2d 12 (1942). In the TNA, §§ 10-153d and 10-153Í use the terms “mediation” and “arbitration” to refer to a specific set of procedures a school board and teachers’ union must pursue if negotiations with respect to the conditions of employment of teachers in general; General Statutes § 10-153f (b), (e); reach an impasse. *****8 Thus, in §§ 10-153d and 10-153f “arbitration” means interest arbitration, not arbitration of individual grievances.

If we read § 10-153e and § 10-153f concurrently, we must conclude that § 10-153e (b) (5) addresses only the contract mediation and interest arbitration procedures mandated by § 10-153Í, not the arbitration of an individual employee’s grievances. The alternative interpretation, that § 10-153e (b) (5) makes refusal to arbitrate any individual grievance an unfair labor practice, would impose a duty to arbitrate grievances upon a board of education even if its collective bargaining agreement included no such requirement. Had the legislature intended such a result, we believe it would have included in the TNA the plain language it used in § 7-470 (a) (6) of the MERA. The MERA, unlike the TNA, guarantees the right to mediation or arbitration of individual grievances. See General Statutes § 7-472.

The labor board’s own decisions support our interpretation, as they have repeatedly cited § 10-153e (b) (4), not (b) (5), when finding unfair labor practices in situations similar to the one now before us. See In the Matter of East Hartford Board of Education, Connecticut State Board of Labor Relations Decision No. 1911 (July 7, 1980); In the Matter of Southington Board of Education, Connecticut State Board of Labor Relations Decision No. 1788 (July 19, 1979).

B

In addition to finding that the board of education’s conduct was an unfair labor practice under § 10-153e (b) (5), the labor board also concluded that the board of education’s conduct was an unfair labor practice under § 10-153e (b) (4) as a “refus[al] to negotiate in good faith with the employees’ bargaining agent.” Our conclusion that repudiation of a grievance arbitration award is not an unfair labor practice under § 10-153e (b) (5) does not prevent the labor board from determining that the board’s action in this case constituted an unfair labor practice under § 10-153e (b) (4).

In accordance with widely held principles of administrative and labor law, we traditionally have accorded deference to the labor board’s interpretation of the acts it is charged with enforcing. Lieberman v. State Board of Labor Relations, 216 Conn. 253, 263, 579 A.2d 505 (1990); Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 503, 522 A.2d 264 (1987); State Board of Labor Relations v. Board of Education, 177 Conn. 68, 74, 411 A.2d 28 (1979). “[Reviewing courts should uphold reasonable and defensible constructions of an agency’s enabling Act . . . .” Bureau of Alcohol, Tobacco & Firearms v. Federal Labor Relations Authority, 464 U.S. 89, 97, 98 n.8, 104 S. Ct. 439, 78 L. Ed. 2d 195 (1983); N.L.R.B. v. Iron Workers, 434 U.S. 335, 350, 98 S. Ct. 651, 54 L. Ed. 2d 586 (1978). The agency’s practical construction of the statute, if reasonable, is “ ‘ “high evidence of what the law is.” ’ ” Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 106, 561 A.2d 429 (1989). In judging whether the labor board’s interpretation was reasonable, we may look to federal labor law for guidance in construing our labor relations acts. Success Village Apartments, Inc. v. Local 376, 175 Conn. 165, 168, 397 A.2d 85 (1978) (construing state Labor Relations Act); West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 579, 295 A.2d 526 (1972) (construing TNA). In light of federal labor law precedent, we consider the labor board’s interpretation of the act both reasonable and persuasive.

The “duty to bargain in good faith” is a term of art in labor law. It is an ongoing duty that continues after initial contract negotiations are over. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 436, 87 S. Ct. 565, 17 L. Ed. 2d 495 (1967); Fafnir Bearing Co. v. N.L.R.B., 362 F.2d 716, 717 (2d Cir. 1966); Hartford Principals’ & Supervisors’ Assn. v. Shedd, supra, 503; Board of Education v. State Board of Labor Relations, 190 Conn. 235, 241-42, 460 A.2d 1255 (1983). It includes the duty to negotiate “any question arising” under an existing contract. General Statutes § 10-153e (d). 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).

“Going through the motions” does not fulfill the duty to bargain in good faith. Thus, failing to provide the other party with relevant information during the collective bargaining process or at other times; Board of Education v. State Board of Labor Relations, supra, 241; failing to make contract proposals in good faith; New Canaan v. State Board of Labor Relations, 160 Conn. 285, 292, 278 A.2d 761 (1971); and failing to bargain before making unilateral changes in terms and conditions of employment after a contract has been signed; Fibreboard Corporation v. N.L.R.B., 379 U.S. 203, 85 S. Ct. 398, 13 L. Ed. 2d 233 (1964); West Hartford Education Assn., Inc. v. DeCourcy, supra, 596; have all been described as breaches of the duty to bargain in good faith. These types of conduct have one thing in common: they are attempts to evade the statutorily mandated collective bargaining process. See New Canaan v. State Board of Labor Relations, supra.

The board of education’s conduct fits the same description. The board and the teachers association bargained to include in their contract a provision regulating promotions and another provision providing for grievance arbitration of employment decisions, including promotions. The board of education’s attempt to circumvent these provisions makes the collective bargaining process a hollow exercise.

The board of education’s attempt to “evade” the arbitrator’s decision is thus no different from a repudiation of the arbitration process itself. Since repudiation of the collective bargaining agreement as a whole constitutes ipso facto a breach of the duty to bargain in good faith; see Taylor Bus Services, Inc., 284 N.L.R.B. 530, 550 (1987); N.L.R.B. v. Hyde, 339 F.2d 568 (9th Cir. 1964); an employer who repudiates the grievance process as a whole by refusing to process grievances violates the duty to bargain in good faith, as the National Labor Relations Board has consistently held. See, e.g., Conoco, Inc., 287 N.L.R.B. 548 (1987); Manchester Health Center, Inc., 287 N.L.R.B. 328 (1987); Wald Mfg. Co., 176 N.L.R.B. 839 (1969). Repudiation of an arbitration award may also violate the duty to bargain in good faith; Meat & Allied Food Workers Local No. 248 v. Packerland Packing Co., 411 F. Sup. 1280 (E.D. Wis. 1976); O. P. Held, Inc., 286 N.L.R.B. 676 (1987); B. N. Beard Co., 231 N.L.R.B. 191 (1977); when the repudiation constitutes a rejection of the grievance process itself. See General Chemical Corporation, 290 N.L.R.B. No. 13, 131 L.R.R.M. (BNA) 1103 (July 29, 1988).

In this case, the board deliberately flouted the grievance arbitration provision of the contract between the board and the Teachers’ Association. Instead of seeking to vacate or modify the award pursuant to General Statutes §§ 52-418, 52-419 and 52-420, it decided to do indirectly what it could not do directly: keep Fred Schipul out of the position that the arbitrator had determined he was qualified for and entitled to hold.

The board argues that its sincere belief that Schipul was unqualified somehow releases it from its duty to comply in good faith with the grievance arbitration process. It is not exceptional for an employer charged with violating a promotion provision in a collective bargaining agreement to believe sincerely that the grievant is less qualified than the candidate promoted. The point is that the board of education agreed to let an arbitrator decide whether the grievant was the most qualified candidate for the position in question. Once the board agreed to subject promotions to the grievance process, it was bound by the arbitrator’s decision. East Haven v. AFSCME, Council 15, Local 1662, 212 Conn. 368, 372, 561 A.2d 1388 (1989); Milford Employees Assn. v. Milford, 179 Conn. 678, 684, 427 A.2d 859 (1980); Board of Educations. Waterbury Teachers Assn., 168 Conn. 54, 62, 357 A.2d 466 (1975). “ ‘There are situations in which it is not enough that an employer is convinced he is right,’ N.L.R.B. v. M & M Oldsmobile, Inc., [377 F.2d 712, 716 (2d Cir. 1967)], and this is one of them.” General Teamsters Local 162 v. N.L.R.B., 568 F.2d 665, 668 (9th Cir. 1978).

The board further contends that its obligations under General Statutes §§ 10-220 and 10-222 exempt it from the rule that an arbitrator’s unchallenged decision is final and binding. Under these statutes, the board is required to “implement the educational interests of the state . . . as in its judgment will best serve the interests of the school district” and is authorized to spend the money the town appropriates for education “in [its] discretion.” The board argues that these statutes require it to eliminate a teaching position rather than allow a teacher the board feels is unqualified to hold that position.

The board’s argument reaches too far. If § 10-220 compels the board of education to follow its own judgment at all times, § 10-220 could just as easily compel the board of education to perform acts specifically prohibited by the statutes, including discrimination on the basis of race, sex or union membership, so long as the board genuinely believed those acts were in the best interests of the school district. “ ‘ “In construing a statute, common sense must be used, and the courts will assume that the legislature intended to accomplish a reasonable and rational result.” ’ ” Ford Motor Credit Co. v. B.W. Beardsley, Inc., 208 Conn. 13, 20, 542 A.2d 1159 (1988). “A statute . . . should not be interpreted to thwart its purpose.” Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 276, 545 A.2d 530 (1988). The legislature did not intend the general mandate of § 10-220 to swallow up the collective bargaining process mandated by the TNA.

Finally, the board of education argues that it cannot be an unfair labor practice for it to perform an act that lies within its exclusive discretion, namely, the elimination of a teaching position. We have held, however, that a public employer’s discretion to hire and fire may not be used as a “subterfuge to circumvent the provisions of the act.” Winchester v. State Board of Labor Relations, 175 Conn. 349, 369, 402 A.2d 332 (1978); L. Suzio Construction Co. v. State Board of Labor Relations, 148 Conn. 135, 144, 168 A.2d 553 (1961); Imperial Laundry, Inc. v. State Board of Labor Relations, 142 Conn. 457, 467, 115 A.2d 439 (1955).

The facts in Winchester are especially similar to the facts now before us. In that case, the Winchester fire department eliminated its only salaried position after Armand Sartirana, who held the position, joined a union. Although we held in Winchester that the protections of MERA did not cover a one-person bargaining unit, so that the employer had no duty to conduct contract negotiations with the union; Winchester v. State Board of Labor Relations, supra, 361-62; we went on to hold that the employee’s rights under MERA had nevertheless been violated when the position was eliminated, even though the department claimed that the position was eliminated for economic reasons. Id., 371. While Winchester dealt with anti-union animus in violation of General Statutes § 7-470 (a) (1) (parallel to General Statutes § 10-153e [b] [1]), which is not alleged in the present case, and did not address the scope of the discretion granted to school boards, it presented essentially the same issue we confront here: may a public employer do indirectly what it is forbidden to do directly, that is, may it use its discretionary power to eliminate a position in order to bring about a prohibited result? In Winchester and in the present case, the answer is “no.”

Ill

Once the labor board had correctly determined that the board of education had committed an unfair labor practice, it was empowered to order a remedy that would best effectuate the purposes of the act. General Statutes § 10-153e (e). Our labor board, like the National Labor Relations Board, has broad remedial powers. Board of Education v. State Board of Labor Relations, supra, 241. Its enumerated powers include the power to order reinstatement and back pay for unjustly terminated employees, including the power to order reinstatement of all employees who have been subject to an unfair labor practice. General Statutes § 31-107 (c). A public employer subject to such an order would implicitly have to find the necessary funds to comply with a back pay order. In this case, of course, the labor board’s order requires the board of education to restore and fund a position it had voted to eliminate. The board of education argues that creation and elimination of teaching positions lies within its exclusive authority and that the labor board exceeded its authority by requiring the board to recreate a defunct teaching position. “The short answer is that the Board had jurisdiction to find an unfair labor practice and to remedy it.” N.L.R.B. v. M & M Oldsmobile, Inc., supra, 716.

While as a general proposition it is true that creation or elimination of teaching positions is within the “sound discretion” of the board of education; Baston v. Ricci, 174 Conn. 522, 528, 391 A.2d 161 (1978); West Hartford Education Assn., Inc. v. DeCourcy, supra, 586; we have also held that the TNA divests the board of education of some of its discretionary power under General Statutes §§ 10-220 and 10-222. West Hartford Education Assn., Inc. v. DeCourcy, supra. A board of education may not use its discretionary power to eliminate teaching positions in order to bypass the grievance arbitration process. Consequently, the labor board has the power to order the board of education to restore a teaching position eliminated for such an improper purpose. The board of education retains the right to eliminate the position if it has a legitimate reason for doing so, or to terminate or demote the teacher if his performance is objectively inadequate.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the board of education’s appeal from the decision and order of the labor board.

In this opinion the other justices concurred.

       The contractual provision in effect from 1985 through 1987 provided, in pertinent part:
      “Article 19—Promotions
      “19.1 Positions as used in this section mean any position which pays a salary differential and/or involves additional or higher level of responsibility.
      “19.2 Vacancies of position which are caused by death, retirement, discharge, resignation, or by the creation of a new position shall be filled pursuant to the following procedures:
      “19.2.1 The existence of vacancies of position shall be adequately publicized by a notice in every school as far in advance of the date of filling such vacancy as possible. At all times, consideration will be given to present qualified staff members who have evinced an interest in the vacated position.
      “19.2.3 Teachers who desire to apply for such vacancies of position shall file their applications in writing with the Superintendent.
      “19.2.4 Such vacant positions shall be filled on the basis of qualification for the vacant position, provided, however, that where two or more applicants are equal in qualification, the applicant with the greatest amount of seniority in the system shall be given the preference.
      “19.2.5 . . . .”

       The arbitrator found that Schipul met the only qualifications that were posted.

       General Statutes § 10-153e (b) provides: “The local or regional board of education or its representatives or agents are prohibited from: (1) Interfering, restraining or coercing certified professional employees in the exercise of the rights guaranteed in sections 10-153a to 10-153n; (2) dominating or interfering with the formation, existence or administration of any employees’ bargaining agent or representative; (3) discharging or otherwise discriminating against or for any certified professional employee because such employee has signed or filed any affidavit, petition or complaint under said sections; (4) refusing to negotiate in good faith with the employees’ bargaining agent or representative which has been designated or elected as the exclusive representative in an appropriate unit in accordance with the provisions of said sections; or (5) refusing to participate in good faith in mediation or arbitration. A prohibited practice committed by a board of education, its representatives or agents shall not be a defense to an illegal strike or concerted refusal to render services.”

       According to the board of education’s interpretation of the arbitrator’s award, the board did comply with the letter of the award. Whether or not the board complied with the letter of the award, however, its conduct not sanctioned by the award may still constitute an unfair labor practice.

       General Statutes § 7-470 (a) provides: “Municipal employers or their representatives or agents are prohibited from: (1) Interfering, restraining or coercing employees in the exercise of the rights guaranteed in section 7-468; (2) dominating or interfering with the formation, existence or administration of any employee organization; (3) discharging or otherwise discriminating against an employee because he has signed or filed any affidavit, petition or complaint or given any information or testimony under sections 7-467 to 7-477, inclusive; (4) refusing to bargain collectively in good faith with an employee organization which has been designated in accordance with the provisions of said sections as the exclusive representative of employees in an appropriate unit; (5) refusing to discuss grievances with the representatives of an employee organization designated as the exclusive representative in an appropriate unit in accordance with the provisions of said sections; (6) refusing to comply with a grievance settlement, or arbitration settlement, or a valid award or decision of an arbitration panel or arbitrator rendered in accordance with the provisions of section 7-472.”

       General Statutes § 10-153d provides in pertinent part: “(b) The local or regional board of education and the organization designated or elected as the exclusive representative for the appropriate unit, through designated officials or their representatives, shall have the duty to negotiate with respect to salaries, hours and other conditions of employment about which either party wishes to negotiate. . . . Any local board of education shall file forthwith a signed copy of any contract with the town clerk and with the commissioner of education. Any regional board of education shall file forthwith a signed copy of any such contract with the town clerk in each member town and with the commissioner of education. Upon receipt of a signed copy of such contract the clerk of such town shall give public notice of such filing. The terms of such contract shall be binding on the legislative body of the local or regional school district, unless such body rejects such contract at a regular or special meeting called and convened for such purpose within thirty days of the filing of the contract. . . .
      “(c) If the legislative body rejects the contract pursuant to the provisions of subsection (b) of this section, the parties shall commence the arbitration process, in accordance with the provisions of subsection (c) of section 10-153Í . . . provided, if requested by either party, the parties shall mediate the contract dispute prior to the initial arbitration hearing. ...”

       General Statutes § 10-153Í provides, inter alia: “mediation and arbitration op disagreements. ... (b) If any local or regional board of education cannot agree with the exclusive representatives of a teachers’ or administrators’ unit after negotiation concerning the terms and conditions of employment applicable to the employees in such unit, either party may submit the issues to the commissioner for mediation. On the one hundred tenth day prior to the budget submission date, the commissioner shall order the parties to report their settlement. If, on such one hundred tenth day, the parties have not reached agreement and have failed to initiate mediation, the commissioner shall order the parties to notify the commissioner of the name of a mutually selected mediator and to commence mediation. The commissioner may order the parties to appear before said commissioner during the mediation period. In either case, the parties shall meet with a mediator mutually selected by them, provided such parties shall inform the commissioner of the name of such mediator, or with the commissioner or the commissioner’s agents or a mediator designated by said commissioner. . . .
      “(c) (1) On the fourth day next following the end of the mediation session or on the eighty-fifth day prior to the budget submission date, whichever is sooner, the commissioner shall order the parties to report their settlement of the dispute or, if there is no settlement, to notify the commissioner of the name of the single arbitrator mutually selected by them or shall notify the commissioner of the name of the arbitrator selected by each of them. ... (4) After hearing all the issues, the arbitrators or the single arbitrator shall, within twenty days, render a decision in writing, signed by a majority of the arbitrators or the single arbitrator, which states in detail the nature of the decision and the disposition of the issues by the arbitrators or the single arbitrator. . . . The decision of the arbitrators or the single arbitrator shall be final and binding upon the parties to the dispute. . . . The parties shall submit to the arbitrators or the single arbitrator their respective positions on each individual issue in dispute between them in the form of a last best offer .... The arbitrators or the single arbitrator shall resolve separately each individual disputed issued by accepting the last best offer thereon of either of the parties, and shall incorporate in a decision each such accepted individual last best offer .... Notwithstanding the provisions of subsection (b) of section 10-153d . . . the decision of the arbitrators or the single arbitrator shall not be subject to rejection by the legislative body of the local or regional school district or by referendum. . . .
      “(e) The local or regional board of education and the organization designated or elected as the exclusive representative for the appropriate unit, through designated officials or their representatives, which are parties to a collective bargaining agreement, and which, for the purpose of negotiating with respect to salaries, hours and other conditions of employment, mutually agree to negotiate during the term of the agreement or are ordered to negotiate said agreement by a body of competent jurisdiction, shall notify the commissioner of the date upon which negotiations commenced within five days after said commencement. If the parties are unable to reach settlement twenty-five days after the date of the commencement of negotiations, the parties shall notify the commissioner of the name of a mutually selected mediator and shall conduct mediation pursuant to the provisions of subsection (b) of this section, notwithstanding the mediation time schedule of subsection (b) of this section. On the fourth day next following the end of the mediation session or on the fiftieth day following the date of the commencement of negotiations, whichever is sooner, if no settlement is reached the parties shall commence arbitration pursuant to the provisions of subsections (a), (c) and (d) of this section, notwithstanding the reference to the budget submission date.”

       In 1987, in response to our decision in Hartford,Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 522 A.2d 264 (1987), the legislature amended General Statutes § 10-153Í so that it now requires mediation and binding arbitration of midterm contract disputes as well as initial contract negotiation disputes. See remarks of Sen. Kevin B. Sullivan, Conn. Joint Standing Committee Hearings, Education, Pt. 3, 1987 Sess., p. 976, and 30 S. Proc., Pt. 7,1987 Sess., p. 2613; remarks of Rep. Naomi Cohen, 30 H.R. Proc., Pt. 15, 1987 Sess., p. 5316.

       “[General Statutes] Sec. 7-472. mediation by state board op mediation and arbitration, (a) The services of the state board of mediation and arbitration shall be available to municipal employers and employee organizations for purposes of mediation of grievances or impasses in contract or contract reopener negotiations and for purposes of arbitration of disputes over the interpretation or application of the terms of a written agreement and, if such service is requested by both the municipal employer and the employee organization except as provided in section 7-473c or subsections (h) to (k), inclusive, of section 7-474, for purposes of arbitration of impasses in contract or contract reopener negotiations. Whenever any impasse in contract or contract reopener negotiations is submitted to arbitration, the decision of the arbitration panel or arbitrator shall be rendered no later than twenty days prior to the final date by which time the budget-appropriating authority of the municipality is required to adopt its budget or forty days after the close of the arbitration hearing, whichever is later, provided that in no case except when such arbitration service is requested or mandated after the final budget adoption date shall such decision be rendered later than five days prior to such final budget adoption date. Nothing contained herein shall prevent any agreement from being entered into in accordance with the provisions of subsection (e) of section 7-474.
      “(b) Nothing in this section is intended to prevent the use of other arbitration tribunals in the resolution of disputes over the interpretation or application of the terms of written agreements between municipal employers and employee organizations.”

       General Statutes § 10-15Se (d) provides: “As used in this section, sections 10-153a to 10-153c, inclusive, and section 10-153g, ‘to negotiate in good faith’ is the performance of the mutual obligation of the board of education or its representatives or agents and the organization designated or elected as the exclusive representative for the appropriate unit to meet at reasonable times, including meetings appropriately related to the budget-making process, and to participate actively so as to indicate a present intention to reach agreement with respect to salaries, hours and other conditions of employment, or the negotiation of an agreement, or any question arising thereunder and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation shall not compel either party to agree to a proposal or require the making of a concession.”

       Failure to comply with a provision of the collective bargaining agreement does not ipso facto constitute an unfair labor practice. Association of Westinghouse Salaried Employees v. Westinghouse Electric Corporation, 348 U.S. 437, 443-4 n.2, 75 S. Ct. 489, 99 L. Ed. 510 (1954); N.L.R.B. v. M & M Oldsmobile, Inc., 377 F.2d 712, 715 (2d Cir. 1967). If every breach were also an unfair labor practice, any grievant could bypass the arbitration process and come straight to the labor board, thereby destroying the usefulness of the grievance arbitration process. Indeed, even where conduct (such as an allegedly discriminatory discharge) clearly would constitute an unfair labor practice, the National Labor Relations Board’s policy is usually to defer to arbitration any claim that can also be characterized as a breach of contract; United States Postal Service, 270 N.L.R.B. 1022 (1984); United Technologies Corporation, 268 N.L.R.B. 557 (1984); Collyer Insulated Wire, 192 N.L.R.B. 837 (1971). It will not, however, defer to arbitration conduct equivalent to a rejection of collective bargaining principles. The availability of arbitration does not divest the labor board of its statutory authority to deal with unfair labor practices. 29 U.S.C. § 160 (a); Carey
        v. Westinghouse Electric Corporation, 375 U.S. 261, 271, 84 S. Ct. 401, 11 L. Ed. 2d 320 (1964); Smith v. Evening News Assn., 371 U.S. 195, 197, 83 S. Ct. 267, 9 L. Ed. 2d 246 (1962); see also Local 1219 v. State Labor Relations Board, 171 Conn. 342, 354, 370 A.2d 952 (1976).

       The National Labor Relations Board does not generally view a single instance of repudiation, in and of itself, as an unfair labor practice. Molders Local 164 (Pacific Steel), 270 N.L.R.B. 1105, 1108 (1984), enf d, 765 F.2d 858 (9th Cir. 1985); Danny’s Foods, Inc., 260 N.L.R.B. 1445, 1448 (1982); Malrite of Wisconsin, Inc., 198 N.L.R.B. 241 (1972), enf d sub nom. Local Union No. 715, International Brotherhood of Electrical Workers, AFL-CIO v. N.L.R.B., 494 F.2d 1136 (D.C. Cir. 1974); just as a single breach of contract is not, in and of itself, an unfair labor practice. Molders Local 164 (Pacific Steel), supra, 1108; Papercraft Corporation, 212 N.L.R.B. 240, 241 n.3 (1974). In Malrite, the board dismissed the charge that an employer’s repudiation of an arbitrator’s decision constituted an unfair labor practice, relying on the theory of deferral first enunciated in Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955); and emphasized that the union could seek enforcement of the decision in a court of law. See also J &H Rainwear, 273 N.L.R.B. 497 (1984). Subsequently, however, the board has ruled that where the events underlying the unfair labor practice charge occurred after the arbitrator’s award, deferral was not appropriate. Litton Systems, 283 N.L.R.B. 973, 976 (1987). Where, as here, the event underlying the unfair labor practice charge—elimination of the position—occurred after the award, and the employer’s justification for its action essentially repudiates the authority of an arbitrator to decide any promotional grievance, the reasoning of the National Labor Relations Board in Malrite does not apply. As discussed in footnote 4, supra, we need not decide whether the board of education’s action was a repudiation of the letter of the award.

       “Sec. 52-418. vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides, or, in a controversy concerning land, for the judicial district in which the land is situated 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: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (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.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.
      “(c) Any party filing an application pursuant to subsection (a) of this section concerning an arbitration award issued by the state board of mediation and arbitration shall notify said board and the attorney general, in writing, of such filing within five days of the date of filing.”

       “Sec. 52-419. modification or correction of award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or, when the court is not in session, any judge thereof, shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it was a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.
      “(b) The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties.”

       “Sec. 52-420. motion to confirm, vacate or modify award. (a) Any application under section 52-417, 52-418 or 52-419 shall be heard in the manner provided by law for hearing written motions at a short calendar session, or otherwise as the court or judge may direct, in order to dispose of the case with the least possible delay.
      “(b) No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.
      “(c) For the purpose of a motion to vacate, modify or correct an award, such an order staying any proceedings of the adverse party to enforce the award shall be made as may be deemed necessary. Upon the granting of an order confirming, modifying or correcting an award, a judgment or decree shall be entered in conformity therewith by the court or judge granting the order.”

       General Statutes § 10-220 provides in pertinent part: “duties of boards OF education, (a) Each local or regional board of education shall maintain good public elementary and secondary schools, implement the educational interests of the state as defined in section 10-4a and provide such other educational activities as in its judgment will best serve the interests of the school district . . . shall employ and dismiss the teachers of the schools of such district subject to the provisions of sections 10-151 and 10-158a . . . and shall perform all acts required of it by the town or necessary to carry into effect the powers and duties imposed by law.”

       General Statutes § 10-222 provides in pertinent part: “appropriations and budget, financial information system, (a) . . . . The money appropriated by any municipality for the maintenance of public schools shall be expended by and in the discretion of the board of education.”

       The discretionary power to hire and fire may, of course, be limited by a contractual “just cause” requirement, a grievance procedure, or a statute.

       General Statutes § 10-153e (e) provides in pertinent part: “If, upon all the testimony, said board determines that the party complained of has engaged in or is engaging in any prohibited practice, it shall state its finding of fact and shall issue and cause to be served on such party an order requiring it to cease and desist from such prohibited practice, and shall take such further affirmative action as will effectuate the policies of subsections (b) to (d), inclusive, of this section.”

       General Statutes § 31-107 (c) provides as follows: “A stenographic or electronic record of the testimony shall be taken at all hearings of the board and a transcript thereof shall be filed with the board upon its request. The board shall have the power to order the taking of further testimony and for further argument. If, upon all the testimony, the board determines that the employer has engaged in or is engaging in any unfair labor practice, it shall state its finding of fact and shall issue and cause to be served on such employer an order requiring him to cease and desist from such unfair labor practice, and shall take such further affirmative action as will effectuate the policies of this chapter, including, but not limtied to: (1) Withdrawal of recognition from and refraining from bargaining collectively with any company union, established, maintained or assisted by any action defined in this chapter as an unfair labor practice; (2) awarding of back pay; (3) reinstatement with or without back pay of any employee discriminated against in violation of section 31-105 or by maintenance of a preferential list from which such employee shall be returned to work; (4) reinstatement with or without back pay of all employees whose work has ceased or whose return to work has been delayed or prevented as the result of unfair labor practice in respect to any employee or employees or the maintenance of a preferential list from which such employees shall be returned to work. Such order may further require such person to make reports from time to time showing the extent to which the order has been complied with. If upon all the testimony the board is of the opinion that the person or persons named in the complaint have not engaged in or are not engaging in any such unfair labor practice, then the board shall make its finding of fact and shall issue an order dismissing the complaint. The board shall not require as a condition of taking action or issuing any order under this chapter that employees on strike or engaged in any other lawful concerted activity shall discontinue such strike or such activity. Until a transcript of the record in a case has been filed in the superior court, as provided in section 31-109, the board may, at any time, upon notice, modify or set aside in whole or in part any finding or order made or issued by it. Proceedings before the board shall be held with all possible expedition.”


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    Vernon Village, Inc., et al. v. Leslie Carothers, Commissioner of Environmental Protection, et al.
    (13923)
    Peteks, C. J., Glass, Santaniello, F. X. Hennessy and Ment, Js.

      Argued November 6, 1990
    decision released January 15, 1991

      John L. Giulietti, for the appellants (plaintiffs).

      John M. Looney, assistant attorney general, for the appellee (named defendant).

      Mark J. Zimmermann, with whom were Joel M. Fain and, on the brief, Cynthia J. Rummel, for the appellees (defendant Precision Plating Corporation et al.).
   Glass, J.

The dispositive issue in this case concerns the applicability and the effective date of Public Acts 1988, No. 88-317 (act), which substantially revised chapter 54 of the General Statutes, the Uniform Administrative Procedure Act (UAPA). Particularly, our focus is upon the provisions of the act that extend the time period for filing an administrative appeal from pollution abatement orders issued by the commissioner of the department of environmental protection (DEP). The trial court determined that the act was inapplicable to the plaintiffs’ administrative appeal, and accordingly dismissed the appeal in view of the plaintiffs’ failure to appeal from the challenged pollution abatement orders within the required time period under the law in effect prior to its revision by the act. We affirm the judgment of the trial court.

The underlying dispute arose from a determination by the commissioner of the DEP (commissioner) that the respondents, Precision Plating Corporation and Warren J. Gottier, had polluted state ground waters with the chemical chromium while operating an industrial park located on Hartford Turnpike in Vernon. On the basis of this determination, the commissioner issued pollution abatement orders to the respondents on February 14 and March 12, 1986, directing them to investigate and take remedial action to minimize or eliminate the chromium contamination and to supply certain properties located on Hartford Turnpike with potable drinking water.

Within thirty days of the issuance of the orders, the respondents requested a hearing before the commissioner. The commissioner conducted hearings on July 26 and August 31,1989, at which the respondents and the DEP appeared as parties. In addition, Anita, John and James Giulietti, Joanne Giulietti Hollis (Giuliettis), Vernon Village, Inc., and High Manor Mobile Home Park, all of whom own property located on Hartford Turnpike, participated in the hearings as intervenors. On September 29,1989, the commissioner mailed her final decision to all of the parties. Forty days later, on November 8,1989, the plaintiffs, the Giuliettis and Vernon Village, Inc., filed an administrative appeal challenging the decision in the Superior Court.

The defendants, including the respondents and the named defendant, the commissioner, promptly moved to dismiss the plaintiffs’ appeal for lack of subject matter jurisdiction. In their motion, the defendants claimed that the plaintiffs had failed to file their appeal within fifteen days of the issuance of notice of the commissioner’s decision as required by General Statutes § 22a-437 as it existed prior to its revision by the act. The plaintiffs argued in response that their appeal was governed by the act, and that § 30 (a) of the act repealed § 22a-437, and provided that appeals from pollution abatement orders must be filed in accordance with § 23 (c) of the act. Under § 23 (c), the time period for appealing from a final decision of an agency is forty-five days. Since the plaintiffs had filed their appeal before the expiration of the forty-five day period, they claimed that the appeal was timely under the act.

The trial court found that, by its terms, the act applied only to agency proceedings that had commenced on or after July 1, 1989, and had no retroactive effect. The court then determined that the act was inapplicable to the plaintiffs’ appeal, thereby implicitly finding that the agency proceedings involved in the matter had commenced before July 1, 1989. Consequently, the court concluded that the plaintiffs’ appeal was governed by § 22a-437 as it existed before its revision by the act, and since the appeal had been filed after the expiration of the appeal period under that statute, the court dismissed the appeal as untimely.

The plaintiffs appealed to the Appellate Court, and we transferred the appeal to this court in accordance with Practice Book § 4023. Although the plaintiffs have raised a number of claims for our review, they acknowledge that the dispositive issue on appeal is whether the trial court properly concluded that the act was inapplicable to their administrative appeal. Indeed, the plaintiffs concede that if the act “does not apply to the instant case . . . the trial court’s decision should be sustained.” We agree that the issue of the applicability of the act dictates the outcome of this appeal, and therefore, we need not consider any of the other issues raised by the plaintiffs.

The issue before us is a narrow one. If the act applies to the plaintiffs’ administrative appeal, the appeal was timely filed within the forty-five day appeal period provided for under §§23 (c) and 30 (a) of the act and should not have been dismissed. If the act is inapplicable to the appeal, the trial court properly dismissed the appeal since it was filed beyond the expiration of the fifteen day appeal period in General Statutes § 22a-437 prior to its revision by the act.

The act is a comprehensive piece of legislation that contains 107 sections. Sections 24 and 107 pertain to the applicability and the effective date of the act. Section 24 (a) provides: “This chapter, as amended by this act, and sections 8,11,13,15,18, 20, 21 and 22 of this act apply to all agency proceedings commenced on or after the effective date of this act. Each agency proceeding commenced before the effective date of this act is governed by the law in effect when the proceeding was commenced.” The final section of the act, § 107, provides: “This act shall take effect July 1,1989, and shall be applicable to all agency proceedings commenced on or after such date.”

The plaintiffs advance two alternative arguments in support of their claim that the act applies to their appeal. First, they assert that the first clause of § 107 deems the provisions of the act concerning appellate review of administrative decisions applicable to all appeals filed on or after July 1, 1989, without regard to the date that the underlying agency proceedings had commenced. In the alternative, the plaintiffs contend that because the hearings with respect to the commissioner’s orders were agency proceedings that had commenced after July 1,1989, the commencement of those hearings triggered the application of the act. We will consider these alternative claims in sequence.

I

The plaintiffs claim that the first clause of § 107, rather than § 24 (a), governs the application of the provisions of the act concerning judicial review of administrative decisions, and deems these provisions immediately applicable on July 1, 1989. According to the plaintiffs, §§ 107 and 24 (a) should be construed as independent provisions, each specifying a different standard for determining the application and the effective date for certain of the other provisions in the act. The claimed distinction between these sections is premised upon the fact that § 24 (a) refers to agency proceedings, while the first clause of § 107 includes no such reference. The plaintiffs reason that because the definition of the word “agency” in the UAPA specifically excludes courts; see General Statutes § 4-166 (1); the term “agency proceedings” in § 24 (a) cannot encompass the “court proceedings” involved in an administrative appeal. Thus, the plaintiffs assert that the first clause of § 107 independently governs all of the provisions of the act concerning appellate review of administrative decisions, and renders them immediately effective on July 1,1989, without regard to the date that the underlying agency proceedings had commenced in a particular case. Accordingly, the plaintiffs conclude that aside from the date that the agency proceedings had commenced in this case, § 23 (c) of the act became effective on July 1,1989, and their subsequent appeal was timely filed under that section.

We are unpersuaded that § 24 (a) and the first clause of § 107 were designed to provide different standards for determining the application and the effective date of various provisions of the act. Section 24 (a) provides: “This chapter, as amended by this act . . . [applies] to all agency proceedings commenced on or after the effective date of this act.” (Emphasis added.) Section 107 provides: “This act,” which undoubtedly amends chapter 54, “shall take effect July 1, 1989 . . . .” (Emphasis added.) From the emphasized language, it is readily apparent that both sections were intended to govern the application and the effective date of all of the other provisions of the act. Viewing the sections as independent provisions would therefore lead to the anomalous result that under § 107, all of the provisions of the act are immediately effective on July 1, 1989, without regard to the date that the underlying agency proceedings had commenced, and at the same time, under § 24 (a), all of the provisions of the act are inapplicable in cases where the underlying proceedings had commenced before July 1, 1989.

The illogical consequence of the plaintiffs’ position demonstrates that the legislature could not have intended § 24 (a) and the first clause of § 107 to provide wholly separate determinants for the application and the effective date of the act. See Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 593, 522 A.2d 771 (1987). In discerning what the legislature did intend with respect to the application and the effective date of the act, we cannot limit our inquiry, as the plaintiffs do, to a consideration of the language of the first clause of § 107 in isolation. See In re Willington Convalescent Home, Inc., 850 F.2d 50, 53 (2d Cir. 1988). “The process by which legislation becomes binding law is not a piecemeal one; statutes are not passed sentence by sentence, or clause by clause. It follows that a court’s interpretation of a single provision necessitates consideration of the statute in its entirety, deriving the meaning of a part from the whole of the words and phrases that the legislature declared to be the law.” Little People’s School, Inc. v. United States, 842 F.2d 570, 573 (1st Cir. 1988). Thus, we must read the act as a whole, with a view toward harmonizing its separate provisions in order to render an overall reasonable interpretation. See Mahoney v. Lensink, 213 Conn. 548, 556, 569 A.2d 518 (1990); Shortt v. New Milford Police Department, 212 Conn. 294, 305, 562 A.2d 7 (1989); see also Natural Resources Defense Council v. United States Environmental Protection Agency, 822 F.2d 104, 113 (D.C. Cir. 1987).

An examination of the language of §§ 24 (a) and 107 reveals that they are interdependent provisions, each deriving its full significance from the other. For example, the first sentence of § 24 (a), which is virtually identical to the second clause of § 107, refers to the effective date of the act without explicitly stating that date. The operation of these provisions cannot be determined without reference to the first clause of § 107, which supplies the omitted effective date. Taken together, therefore, §§24 (a) and 107 provide a single standard for determining the application and the effective date of the act in all cases. That standard is tied to the date that the underlying agency proceedings commenced, and in cases where such proceedings had commenced before July 1, 1989, the effective date of the act, the act is inapplicable.

The codification of §§ 24 (a) and 107 as General Statutes 4-185 (a), entitled “Application of Chapter,” achieves this precise result. Section 4-185 (a) provides: “This chapter applies to all agency proceedings commenced on or after July 1,1989. Each agency proceeding commenced before July 1,1989, is governed by the law in effect when the proceeding was commenced.” Clearly, this section is an amalgam of §§ 24 (a) and 107 of the act; its basic structure is drawn from § 24 (a) and the second clause of § 107, and the statement of the effective date is drawn from the first clause of § 107. Had the legislature intended that the first clause of § 107 independently govern the application of the appeal provisions of the act, the legislature would have ensured that the first clause of § 107 was separately codified or otherwise distinctly preserved in the General Statutes.

We are likewise unpersuaded that the legislature intended § 23 (c) of the act to be immediately applicable on July 1,1989, by virtue of the term “agency proceedings” embodied in § 24 (a) and the second clause of § 107. Despite the limited definition of the word “agency” in General Statutes § 4-166 (1), these sections explicitly state that their application extends to all of the provisions of the act and chapter 54, which certainly include the appeal provisions in § 23 (c). Moreover, construing §§24 (a) and 107 of the act as limited in application to proceedings literally before an agency would completely eviscerate the act, because after such proceedings were completed, the act would be inapplicable to any subsequent court proceedings.

Although we have recognized that ordinarily, “ ‘[w]hen legislation contains a specific definition, the courts are bound to accept that definition’ Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); International Business Machines Corporation v. Brown, 167 Conn. 123,134, 355 A.2d 236 (1974); we have expressed a willingness to depart from this general rule when reading the language of a statute literally would produce an absurd result inconsistent with the intent of the legislature. See Caulkins v. Petrillo, 200 Conn. 713, 718, 513 A.2d 43 (1986); Sienkiewicz v. Sienkiewicz, 178 Conn. 675, 683, 425 A.2d 116 (1979); Miller v. Western Electric Co., 310 Md. 173, 187, 528 A.2d 486 (1987); accord Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 427, 572 A.2d 951 (1990). In such cases, “it is appropriate for this court to construe the statute ... in furtherance of the legislature’s purpose and objectives.” Sienkiewicz v. Sienkiewicz, supra. In light of the terms “this act” and “this chapter” in §§ 24 (a) and 107, and the absurd result that would follow from a narrow construction of the term “agency proceedings,” it is clear that the legislature intended that the appeal provisions of the act be applicable and effective in the same manner as all of the other provisions of the act. We conclude, therefore, that a departure from the literal meaning of the term “agency proceedings” is warranted in this case in order to implement the manifest intent of the legislature. See City Savings Bank v. Lawler, 163 Conn. 149, 157, 302 A.2d 252 (1972).

II

Having determined that all of the provisions of the act, including its appeal provisions, apply only in cases where the underlying agency proceedings had commenced on or after July 1,1989, we must consider the plaintiffs’ alternative claim that the agency proceedings in this case had commenced after that date. As previously noted, the plaintiffs contend that the hearings with respect to the commissioner’s orders were “agency proceedings” that had commenced after July 1, 1989, and triggered the application of the act from that point forward. We disagree.

The plaintiffs have overlooked a crucial, albeit implicit, factual finding of the trial court that the agency proceedings involved in the matter before the court had commenced before July 1,1989. In addition, the commissioner determined in her final decision that the agency proceedings had commenced before that date, specifically identifying the dates of commencement as February 14 and March 12,1986, the dates that the pollution abatement orders had been issued. Presumably, the commissioner based this determination upon a DEP regulation providing that “[a]n administrative action of the department commences when (1) an application or petition is received by the department, or (2) the department issues an order.” Regs., Conn. State Agencies § 22a-3a-l (a) (1) (B) (3). We conclude that in this case, in accordance with the DEP regulations, the agency proceedings had commenced on the date that the commissioner first took formal action against the respondents by issuing the pollution abatement orders. The plaintiffs have offered no persuasive reason why we should ignore the above findings, or why we should view each fragmented subproceeding within an agency proceeding as triggering the application of the act. Indeed, the act itself suggests that hearings are merely component proceedings within a larger, more inclusive agency proceeding commencing before the hearing stage.*

We conclude, therefore, that the commencement of the agency proceedings determinative of the application of the act in this case had occurred when the commissioner issued the pollution abatement orders to the respondents in 1986. Since the agency proceedings had commenced before July 1, 1989, the effective date of the act, the trial court properly concluded that the act was inapplicable to the plaintiffs’ appeal, and that the plaintiffs were required to file their appeal within the fifteen day period under General Statutes § 22a-437 as it existed prior to its revision by the act.

Appeals to courts from administrative agencies exist only under statutory authority. Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988); Tazza v. Planning & Zoning Commission, 164 Conn. 187,190, 319 A.2d 393 (1972). “ ‘A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.’ ” Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986); Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 6, 363 A.2d 1386 (1975). Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal. Basilicato v. Department of Public Utility Control, 197 Conn. 320, 322, 497 A.2d 48 (1985); Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979). It is undisputed that the plaintiffs failed to file their appeal within the fifteen day period under General Statutes § 22a-437 as it existed prior to its revision by the act. Accordingly, we hold that the trial court properly dismissed the appeal for lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other justices concurred.

       Although the plaintiffs’ appeal was dated October 30,1989, it was not filed in the Superior Court until November 8, 1989.

       The DEP, High Manor, Inc., George Van Ostrand and Elsie Patton were also named as defendants in the administrative appeal.

       General Statutes § 22a-437, as it read prior to its amendment by Public Acts 1988, No 88-317, provides in pertinent part: “appeal, (a) Any person who or municipality which is aggrieved by . . . any order of the commissioner ... to abate pollution may, after a hearing by the commissioner as provided for in section 22a-436 or subsection (b) of section 22a-430, appeal from the final determination of the commissioner based on such hearing to the superior court . . . within fifteen days after the issuance of such final determination.”

       The defendants also claimed that the plaintiffs had failed to serve the appeal in accordance with General Statutes § 52-64.

       Public Acts 1988, No. 88-317, § 30 (a) (codified as General Statutes § 22a-437 [a]), provides in pertinent part: “Section 22a-437 of the general statutes is repealed and the following is substituted in lieu thereof: (a) Any person or municipality which is aggrieved by . . . any order of the commissioner . . . to abate pollution may, after a hearing by the commissioner as provided for in section 22a-436 or subsection (b) of section 22a-430, appeal from the final determination of the commissioner based on such hearing to the superior court as provided in chapter 54, as amended by this act, and sections 8, 11, 13, 15, 18, 20, 21 and 22 of this act. . . .”

       Public Acts 1988, No. 88-317, § 23 (c) (codified as General Statutes § 4-183 [c]), provides in pertinent part: “Within forty-five days after mailing of the final decision under section 4-180, as amended by section 17 of this act, or if there is no mailing, within forty- five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall . . . file the appeal with the clerk of the superior court

       The issues that we decline to address are whether the trial court properly concluded: (1) that General Statutes § 52-64 precluded service of an administrative appeal upon state agencies by certified mail service, return receipt requested, pursuant to subsections (c) and (d) of General Statutes § 4-183; (2) that the defendants had met their burden of proving that the plaintiffs had improperly served the defendants; and (3) that the defendants had met their burden of proving that the commissioner’s orders were “proceedings” within the meaning of §§ 24 and 107 of the act by considering unsworn statements of fact outside of the record.

       See, e.g., Model State Administrative Procedure Act, 1981 Act, § 1-108, 15 U.L.A. 20, providing: “This Act takes effect on [date] and does not govern proceedings pending on that date. This Act governs all agency proceedings, and all proceedings for judicial review or civil enforcement of agency

        action, commenced after that date. . . .” (Emphasis added.) The text of § 107 of the act does not resemble the text of the modern Model Act, but rather, it is similar to that of the 1961 Model Act, which provides: “This Act takes effect . . . and (except as to proceedings then pending) applies to all agencies and agency proceedings not expressly exempted.” Model State Administrative Procedure Act, 1961 Act, § 19, 15 U.L.A. 553; see historical note, Connecticut General Statutes Annotated § 4-185.

       In her final decision, the commissioner found: “These proceedings commenced with the issuance of the orders on February 14 and March 12,1986, and consequently, the hearing was conducted in accordance with the statutory provisions of the [UAPA] in existence prior to July 1, 1989.”

       An “order” is defined in the DEP regulations as “all or part of any department order, or of any revocation, modification or suspension of a license issued by the department, or of a notice of violation issued under section 22a-6b of the General Statutes as amended, but it does not include any other notice of violation or the issuance or denial of a license.” Regs., Conn. State Agencies § 22a-3a-l (a) (1) (A).

       See Public Acts 1988, No. 88-317, § 11 (codified as General Statutes § 4-176e) (referring to “a hearing in an agency proceeding”), and § 10 (g) (codified as General Statutes § 4-176 [g]) (referring to “a hearing in a proceeding for a declaratory ruling”), and § 22 (codified as General Statutes § 4-178a) (referring to “a hearing in a contested case or in a declaratory ruling proceeding”).


text:
    Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council et al.
    (14042)
    Peters, C. J., Glass, Santaniello, F. X. Hennessy and Ment, Js.
    Argued November 6, 1990
    decision released January 15, 1991

      Wesley W. Horton, with whom was Jeffrey A. Hoberman, for the appellant (plaintiff).

      Phyllis E. Lemell, assistant attorney general, for the appellee (named defendant).

      Lewis K. Wise, for the appellee (defendant Bio-Gen Torrington Partnership).
   Glass, J.

The sole issue in this appeal concerns the applicability and the effective date of Public Acts 1988, No. 88-317 (act), that substantially revised chapter 54 of the General Statutes, the Uniform Administrative Procedure Act (UAPA). Our specific focus is upon the applicability of the provision of the act extending the time period for service of an appeal from the decision of an administrative agency. The trial court determined that the act was inapplicable to the plaintiffs administrative appeal, and accordingly dismissed the appeal for lack of subject matter jurisdiction in view of the plaintiffs failure to serve the appeal within the required time period under the UAPA prior to its revision by the act. We conclude that the trial court properly determined that the act was inapplicable to the plaintiffs appeal, and we therefore affirm the judgment of dismissal.

The relevant facts are as follows. On December 5, 1988, the defendant Bio-Gen Torrington Partnership (Bio-Gen) applied to the named defendant, the Connecticut Siting Council (council), for a certifícate of environmental compatibility and public need for its proposed electricity generating facility. See General Statutes § 16-50L In February, March, April and May of 1989, the council held public hearings concerning the application. Bio-Gen appeared in the hearings as a party, and the council designated the city of Torrington, the towns of Harwinton and Litchfield, the Farmington River Watershed Association, Inc., the Sons of Jacob Cemetery Association, Inc., and Terence Delaney as additional parties of record. The plaintiff, Citizens Against Pollution Northwest, Inc. (CAP), became a party to the hearings by way of intervention, as did Alan DiCara and the Honorable Nancy Johnson.

On November 22,1989, the council rendered its decision granting Bio-Gen’s application. On November 30, 1989, the council mailed copies of its decision to all parties of record. Forty-three days later, on January 12, 1990, CAP appealed from the council’s decision to the Superior Court. On the same date, CAP served copies of the appeal upon all parties of record.

Thereafter, Bio-Gen and the council moved to dismiss the appeal, alleging that the court lacked subject matter jurisdiction because CAP had failed to serve copies of the appeal upon all parties of record within thirty days of the mailing of the council’s decision as required by General Statutes § 4-183 (b). CAP opposed the motions on the ground that its appeal was governed by § 23 (c) of the act, which replaced the thirty day period for service in § 4-183 (b) with a forty-five day period, within which period all record parties had been served. The court found that because the agency proceedings that were the subject of CAP’S appeal had commenced when Bio-Gen applied to the council for the certificate on December 5,1988, § 4-183 (b) prior to its amendment by the act governed the time period for service of the appeal. Since CAP had served its appeal thirteen days after the expiration of the thirty day period under that statute, the trial court dismissed the appeal for lack of jurisdiction.

CAP appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. The sole issue raised by CAP in this appeal is whether the trial court properly concluded that § 4-183 (b) as it existed prior to its amendment by the act, rather than § 23 (c) of the act, governs the time period for service of CAP’s administrative appeal.

The act either revised or repealed almost all of the prior provisions of the UAPA. Among the various provisions revised were those controlling the time period for service of appeals from administrative decisions upon state agencies and record parties. Before its revision by the act, § 4-183 (b) permitted an aggrieved person to appeal from the final decision of an agency within forty-five days of the mailing of notice of that decision, provided that copies of the appeal were served upon the agency and record parties within thirty days of the mailing of notice of the decision. Section 23 (c) of the act, codified as § 4-183 (c), replaced the above provisions of § 4-183 (b) with a forty-five day time period for both the filing of an administrative appeal and service of the appeal upon all parties of record. Because CAP did not serve all record parties until the forty-third day after the mailing of notice of the agency’s final decision, it is clear that unless the act applies to CAP’s appeal, the appeal was not served in a timely manner under § 4-183 (b) as it existed before its revision by the act, and accordingly, that the dismissal of the appeal by the trial court was proper.

CAP claims that the act applies to its appeal for two reasons. First, CAP argues that the act applies by virtue of the first clause of § 107 of the act, which section provides in its entirety: “This act shall take effect July 1,1989, and shall be applicable to all agency proceedings commenced on or after such date.” According to CAP, the first clause of § 107 deems all of the provisions of the act concerning appellate review of administrative decisions applicable to appeals from such decisions rendered on or after July 1, 1989, without regard to the date that the underlying agency proceedings commenced. As for the second clause of § 107, CAP contends that it governs only the application of the provisions of the act concerning “agency proceedings.” Since subsequent appellate review is not itself a part of agency proceedings, CAP maintains the second clause of § 107 does not limit the application of § 23 (c) to those cases where the underlying agency proceedings had commenced on or after July 1, 1989.

CAP’s second argument in support of the claimed applicability of the act rests primarily upon our decision in Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 363 A.2d 1085 (1975). According to CAP, Chieppo establishes a general rule that the process of an appeal is not controlled by the statute in effect on the date the events that gave rise to the appeal occurred, but rather, by the statute in effect on the date that the decision appealed was rendered. Because the administrative decision appealed in this case was rendered after July 1, 1989, CAP contends that the act governs the process of its appeal from that decision, and hence the time period in which copies of its appeal were required to be served. We find both of CAP’s arguments unavailing.

CAP’s argument that the first clause of § 107 renders the provisions of the act concerning appellate review applicable to administrative appeals without regard to the date that the underlying agency proceedings commenced was advanced by the plaintiffs in Vernon Village, Inc. v. Commissioner of Environmental Protection, 217 Conn. 130, 585 A.2d 76 (1990). As in this case, the agency proceedings that culminated in the decision appealed in Vernon Village, Inc., had commenced before July 1,1989. In both cases the agency rendered its final decision after July 1,1989, and an appeal subsequently was filed in the Superior Court. Like the plaintiff in this case, the plaintiffs in Vernon Village, Inc., urged that the first clause of § 107 independently governed the applicability of all of the sections of the act concerning appellate review of administrative decisions. The plaintiffs also maintained that such sections were excluded from the scope of the second clause of § 107, as well as § 24 (a), because the application of these provisions was limited to “agency proceedings,” and thus did not extend to “court proceedings” involved in appellate review.

In Vernon Village, Inc.,we rejected the interpretation of the first clause of § 107 proposed by the plaintiffs as inconsistent with the second clause of § 107 and § 24 (a) of the act, and as a consequence, at odds with the manifest intent of the legislature to provide a single standard for determining the application and the effective date of the act in all cases. That standard, we held, “is tied to the date that the underlying agency proceedings commenced, and in cases where such proceedings had commenced before July 1,1989, the effective date of the act, the act is inapplicable.” Id., 138. We also determined that construing the term “agency proceedings” in a literal fashion would effectively read the provisions of the act concerning appellate review out of the act, a result certainly not intended by the legislature. Id., 139. Consequently, we concluded, as did the trial court, that the act was inapplicable to the plaintiffs’ administrative appeal because the underlying agency proceedings had commenced before July 1, 1989. We affirmed the judgment of dismissal in light of the plaintiffs’ failure to comply with the law as it existed before its revision by the act. Id., 142.

CAP concedes that the agency proceedings involved in this case had commenced before July 1, 1989. It is also undisputed that service of CAP’s appeal had occurred beyond the expiration of the time period for service in § 4-183 (b) prior to its revision by the act. We conclude that in this case, as in Vernon Village, Inc., the fact that the agency proceedings had commenced before July 1, 1989, renders the act inapplicable to CAP’s appeal. Therefore, the trial court properly dismissed the appeal for lack of subject matter jurisdiction.

Moreover, we are unpersuaded that a contrary disposition of this appeal is required by our decision in Chieppo v. Robert E. McMichael, Inc., supra. In Chieppo, the plaintiff allegedly suffered a compensable injury on September 25, 1969. General Statutes § 31-301, as amended by Public Acts 1972, No. 108, § 6, effective September 1,1972, required that appeals from awards of the compensation commissioner be filed in the Court of Common Pleas. Prior to that date, such appeals were required to be filed in the Superior Court. On September 8,1972, the compensation commissioner entered a finding and award in favor of the plaintiff. On September 14,1972, the defendant appealed from the finding and award to the Superior Court. The defendant then moved for a transfer of the appeal to the Court of Common Pleas, and the Superior Court granted the motion. The Court of Common Pleas determined that amended § 31-301 governed the appeal, and since the appeal initially had been filed in the wrong court under that statute, the court dismissed the appeal for lack of jurisdiction. Id., 647-48.

Before this court, the defendant claimed that the Court of Common Pleas should have applied § 31-301 as it existed prior to its amendment because that statute had been in effect on the date of the injury, and therefore, that statute should govern the process of the appeal from the commissioner’s decision concerning the injury. We rejected the defendant’s claim on the ground that while the amendment to § 31-301 altered appellate procedures, it “affected neither the employee’s right to compensation nor the employer’s obligation to pay it.” Id., 650. Consequently, we agreed with the trial court’s conclusion that amended § 31-301 governed the defendant’s appeal. Since the appeal had been improperly filed in the Superior Court under that statute, we held that the Superior Court was powerless to transfer the appeal to the Court of Common Pleas because it lacked subject matter jurisdiction over the appeal, and we therefore upheld the judgment of dismissal. Id.

Unlike the act at issue in this case, the act involved in Chieppo merely provided that its provisions “shall take effect September 1,1972.” Public Acts 1972, No. 108, § 14; see Chieppo v. Robert E. McMichael, Inc., supra, 648. No provision of the act in Chieppo distinguished between the law applicable prior to and after that effective date. In this case, the applicability of the act depends not only upon its effective date, but also upon the date that the underlying agency proceedings commenced. The act specifically excludes from its application agency proceedings commenced before its effective date, July 1,1989, and the act specifically includes agency proceedings commenced on or after July 1, 1989. Since the act involved in Chieppo had no similar provisions concerning its applicability, Chieppo is inapposite to this case.

CAP, furthermore, cannot bring this case within Chieppo for the sole reason that § 23 (c) of the act, like the provision of the act involved in Chieppo, pertains only to matters of procedure. While we have recognized that remedial or procedural statutes are generally presumed to have been intended to apply retroactively to pending cases, this rule is subject to abrogation where the statute itself contains an express legislative directive to the contrary. See, e.g., Mulrooney v. Wambolt, 215 Conn. 211, 216-17, 575 A.2d 996 (1990); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 525-26, 562 A.2d 1100 (1989); State v. Paradise, 189 Conn. 346, 351, 456 A.2d 305 (1983); cf. Litton Systems, Inc. v. American Telephone & Telegraph Co., 746 F.2d 168, 174 (2d Cir. 1984); compare General Statutes § 1-1 (u). As we explained in Vernon Village, Inc. v. Commissioner of Environmental Protection, supra, 138, we perceive such a directive when viewing §§24 (a) and 107 of the act in conjunction, which, as demonstrated by the integration of these sections in General Statutes § 4-185 (a), together form a single standard that excludes from the application of the act all matters concerning agency proceedings that had commenced prior to July 1,1989, including matters of appellate review.

We cannot simply override this evident expression of the legislative will because it might have been more appropriate for the legislature to have provided that the sections of the act concerning appellate review would be 'applicable without regard to the date that the underlying agency proceedings had commenced. “The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms.” Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 540, 582 A.2d 1174 (1990); Federal Aviation Administrations. Administrator, 196 Conn. 546, 550, 494 A.2d 564 (1985); accord United States s. Ron Pair Enterprises, Inc., 489 U.S. 235, 240-42, 109 S. Ct. 1026, 103 L. Ed. 2d 290 (1989). Certainly, it is within the province of legislative discretion to determine the application of a statutorily authorized administrative appeal process. We know of no authority, and none has been referred to us by CAP, that precludes the legislature from imposing a limitation upon the application of legislation such as the one imposed by §§24 and 107 of the act.

“Appeals to courts from administrative agencies exist only under statutory authority. Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988); Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972). ‘ “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” ’ Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986); Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 6, 363 A.2d 1386 (1975). Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal. Basilicato v. Department of Public Utility Control, 197 Conn. 320, 322, 497 A.2d 48 (1985); Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979).” Vernon Village, Inc., v. Commissioner of Environmental Protection, supra, 142. Since CAP failed to serve copies of its administrative appeal upon all parties of record within thirty days of the mailing of the council’s decision as required by § 4-183 (b) prior to its revision by the act, we conclude that the trial court properly dismissed the appeal. See id.

The judgment is affirmed.

In this opinion the other justices concurred.

       Copies of the appeal were served in-hand by a sheriff upon the council (at the office of the attorney general), Bio-Gen and the city of Torrington. All remaining parties of record were served by certified mail.

       General Statutes (Rev. to 1989) § 4-183 (b) provides in pertinent part: “Proceedings for such appeal shall be instituted by filing a petition in superior court . . . within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon . . . .”

       Public Acts 1988, No. 88-317, § 23 (c) provides in pertinent part: “Within forty-five days after mailing of the final decision ... a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the attorney general in Hartford .... Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service wdthin forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal.”

       The court also found that the appeal had not been served in accordance with the methods of service permitted under General Statutes § 4-183 (b) prior to its amendment by the act. Since we affirm the judgment of dismissal on the ground that the appeal had not been served in a timely fashion, we need not consider the propriety of this finding.

       See footnote 2, supra.

       See footnote 3, supra.

       Public Acts 1988, No. 88-317, § 24, provides in pertinent part: “Section 4-185 of the general statutes is repealed and the following is substituted in lieu thereof: (a) This chapter, as amended by this act, and sections 8, 11, 13, 15, 18, 20, 21 and 22 of this act apply to all agency proceedings commenced on or after the effective date of this act. Each agency proceeding commenced before the effective date of this act is governed by the law in effect when the proceeding was commenced.”

       “[General Statutes] Sec. 4-185. application of chapter, (a) This chapter applies to all agency proceedings commenced on or after July 1,1989. Each agency proceeding commenced before July 1, 1989, is governed by the law in effect when the proceeding was commenced.”