HONULIK v. GREENWICH—DISSENT
KATZ, J., with whom, VERTEFEUILLE, J., joins, dis-
senting. The principal issue in this appeal is whether
the trial court properly concluded that the 1999–2004
collective bargaining agreement (agreement) between
the named defendant, the town of Greenwich (town),
1
and the Silver Shield Association, the union represent-
ing the town’s police officers (union), required the can-
didate ranked first on the promotional list to be
promoted to the position of police captain, a position
outside the bargaining unit. The majority concludes that
the provision in the agreement that expressly addresses
such promotions only prescribes the class of persons
eligible for promotions (members of the bargaining
unit), not substantive conditions for making such pro-
motions. It further concludes that the past practices
clause of the agreement has no bearing on the issue
presented because promotions from a position within
the bargaining unit to a position outside the bargaining
unit is a nonmandatory subject of bargaining. As such,
according to the majority, the town was not bound
to adhere to long-standing and well understood past
practices relating to the procedure for promotions to
police captain prior to the removal of that position from
the bargaining unit. In my view, the majority fails to give
full effect to the provision in the agreement addressing
promotions to the position of captain. The terms therein
have a meaning that is informed by past practices, under
which it is clear that the town contractually was obli-
gated to promote the plaintiff, F. Gary Honulik, to the
position of police captain because he was the highest
ranked candidate on the promotional list. Moreover,
the question of whether promotions from a position
within the bargaining unit to one outside the bargaining
unit is a nonmandatory subject of bargaining is irrele-
vant in light of the fact that the agreement expressly
addresses this subject. Accordingly, I would affirm the
trial court’s judgment.
The trial court and the parties have relied, for varying
propositions, on the town’s generally applicable rules,
policies and procedures for employment decisions,
which are set forth in the town’s classification and pay
plan (pay plan) and personnel policy and procedures
manual (policy manual). The parties agree, however,
that the effect of the 1999 amendment to the collective
bargaining agreement is central to this appeal. Indeed,
both the pay plan and policy manual expressly mandate
that the terms of a bargaining agreement will supersede
contrary terms in those town documents. Greenwich
Classification and Pay Plan § 3.2 (‘‘[a]ny inconsistencies
between these rules and procedures and collective bar-
gaining agreements shall be read in favor of the collec-
tive bargaining agreements’’); Greenwich Personnel
Policy and Procedures Manual § 100 (‘‘[t]he policy man-
Page 3
ual is intended to supplement and should be used in
conjunction with the [t]own [c]harter, union
agreements, [p]olicy[m]anual, [p]ay [p]lan[r]ules, [f]ed-
eral and [s]tate laws and is not intended to supersede
or overrule such agreements or statutes’’). Therefore,
it is clear that the bargaining agreement has primacy
and must be the starting point of our analysis.
‘‘Itis axiomaticthatacollective bargainingagreement
is a contract.’’ D’Agostino v. Housing Authority, 95
Conn. App. 834, 838, 898 A.2d 228, cert. denied, 280
Conn. 905, 907 A.2d 88 (2006); accord W.R. Grace &
Co. v. Local Union 759, International Union of United
Rubber, Cork, Linoleum & Plastic Workers of America,
461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298
(1983); Poole v. Waterbury, 266 Conn. 68, 87, 831 A.2d
211 (2003). ‘‘A contract must be construed to effectuate
the intent of the parties, which is determined from the
language used interpreted in the light of the situation
of the parties and the circumstances connected with
the transaction.’’ (Emphasis added; internal quotation
marks omitted.) Allstate Life Ins. Co. v. BFA Ltd. Part-
nership, 287 Conn. 307, 313, 948 A.2d 318 (2008). ‘‘In
ascertaining intent, we consider not only the language
used in the contract but also the circumstances sur-
rounding the making of the contract, the motives of
the parties and the purposes which they sought to
accomplish.’’ (Emphasis added; internal quotation
marks omitted.) Barnard v. Barnard, 214 Conn. 99,
109–10, 570 A.2d 690 (1990). Thus, a contract’s meaning
is contextual. Cf. Levine v. Advest, Inc., 244 Conn. 732,
753, 714 A.2d 649 (1998) (‘‘[t]he individual clauses of a
contract . . . cannot be construed by taking them out
of context and giving them an interpretation apart from
the contract of which they are a part’’).
To put the provisions of the agreement at issue in
their proper context, it is useful at the outset to state
what is not in dispute. Prior to 1999, the positions of
captain, lieutenant and sergeant were in the bargaining
unit controlled by the agreement between the town and
the union. At that time, the bargaining agreement did
not address promotions expressly but did include a
provision entitled ‘‘Past Practices Clause,’’ which
remained in the agreement after 1999. The past prac-
tices clause, set forth in article XXVIII of the agreement,
provides in relevant part: ‘‘All benefits and obligations
which are not described in this [a]greement or in either
the [town police] manual or [pay] plan and which are
nowenjoyedby orrequiredoftheemployees arespecifi-
cally included in this [a]greement by reference just as
though each such benefit or obligation was specifically
set forth.’’ Thus, if promotion on the basis of one’s
rank on the promotional list was a benefit enjoyed by
members of the bargaining unit, that past practice
would be protected under the agreement, even though
the agreement does not expressly address promo-
tional practices.
Page 4
The trial court concluded that promotional practices
within the bargaining unit were a benefit that fell within
the past practices clause; the town does not dispute
this interpretation of the agreement.
2
Thus, prior to
1999, the past practices provision controlled promo-
tions to the positions of sergeant, lieutenant and cap-
tain. The trial court also made the unchallenged factual
finding, overwhelmingly supported by the evidence,
that ‘‘the well established past or prevailing practice
within the Greenwich police department of the hiring
authority was to fill a vacancy with the top scoring
candidate listed in rank order on the promotional list.’’
3
Indeed, the town’s principal witness, Alfred C. Cava,
director of human resources for the town, conceded in
his testimony before the trial court that, throughout the
extended period in which the town engaged in this
practice, it had acquiesced to the union’s position that
promotion within the bargaining unit of the top ranked
candidate on the promotional list is a past practice
mandated under the agreement.
In 1999, the town and the union agreed to remove
the position of police captain from the bargaining unit.
This change undoubtedly altered the legal rights of per-
sons who already had attained the position of captain.
Once removed from the bargaining unit, the agreement
no longer controlled the wages, hours and conditions
of employment of captains except to the extent that
the parties voluntarily had agreed and provided other-
wise. See Assn. of Civilian Technicians v. Federal
Labor Relations Authority, 353 F.3d 46, 50 (D.C. Cir.
2004); Connecticut Education Assn. v. State Board of
Labor Relations, 5 Conn. App. 253, 271, 498 A.2d 102,
cert. denied, 197 Conn. 814, 499 A.2d 804 (1985). This
appeal turns, however, on whether the agreement, as
amended in 1999, altered the rights of those persons
whose positions are still included within the bar-
gaining unit. Specifically, we must consider whether
the trial court properly construed the agreement as
‘‘call[ing] for the implementation of the procedure of
promoting in rank order from the promotional list’’ for
persons within the bargaining unit, like the plaintiff.
As a result of the parties’ agreement to remove the
position of captain from the bargaining unit, the parties
amended article XXV of the 1999–2004 agreement, enti-
tled ‘‘Conditions of Employment,’’ by adding paragraph
D, which provides: ‘‘Promotion to the classification of
[p]olice [c]aptain shall be made from bargaining unit
employees who are candidates certified to the promo-
tional list.’’
4
(Emphasis added.) It is this provision that
is at the crux of this appeal. The critical question is
whether it evidences an intent to continue the past
practice of promoting the top ranked candidate on the
promotional list or to alter that practice.
5
Specifically,
the question arises as to the meaning of the term ‘‘pro-
motional list.’’ Neither the parties, the trial court nor
Page 5
the majority have concluded that the meaning of this
term is self-evident. The term is not defined in the
agreement, and the agreement does not incorporate by
express reference any documents other than the police
manual. Two sources, however, clarify the meaning of
this term as it affects the resolution of the issue before
us: past practice specific to the police department and
town documents generally applicable to all town
employees.
It is well settled that, even in the absence of an
express past practice clause, past practices properly
may be relied on to illuminate the meaning of a term
or provision of a bargaining agreement. See F. Elkouri &
E. Elkouri, How Arbitration Works (A. Ruben ed., 6th
Ed. 2003) c. 12.1, p. 605 (‘‘[p]roof of custom and past
practice may be introduced . . . to indicate the proper
interpretation of contract language’’); see, e.g., Black v.
Surface Transportation Board, 476 F.3d 409, 414 (6th
Cir. 2007); cf. Anheuser-Busch, Inc. v. International
BrotherhoodofTeamsters,LocalNo.744,280F.3d1133,
1139 (7th Cir.), cert. denied, 537 U.S. 885, 123 S. Ct.
119,154L.Ed.2d144(2002).‘‘Indeed,theparties’course
of performance may be the best evidence of their intent
in using a particular term.’’ Martinsville Nylon Employ-
ees Council Corp. v. National Labor Relations Board,
969 F.2d 1263, 1269 (D.C. Cir. 1992); see also id. (criticiz-
ing cramped interpretation of bargaining agreement by
labor board and administrative law judge that failed to
consider meaning of terms in light of past practice,
especially in light of fact that past practice predated
agreement). As the trial court properly recognized,
although it would be improper to read the agreement
to incorporate past practice if such a reading contra-
dicted the express terms of paragraph D of article XXV
of the agreement; F. Elkouri & E. Elkouri, supra, c.
12.9, pp. 627–28; neither the majority nor the town has
demonstrated that any such conflict arises under the
trial court’s construction.
It is an undisputed fact, both here and before the
trial court, that the long-standing past practice in the
police department was to compile and use promotional
lists in a specific, consistent manner. Promotional lists
were compiled on the basis of a competitive examina-
tion, listing candidates in rank order of their score.
Candidates were selected from the promotional lists
strictly in rank order. Therefore, the term ‘‘promotional
list’’ undoubtedly had a particular meaning ‘‘in the light
of the situation of the parties and the circumstances
connected with the transaction.’’ (Internal quotation
marks omitted.) Allstate Life Ins. Co. v. BFA Ltd. Part-
nership, supra, 287 Conn. 313.
Indeed, because promotional lists for sergeant and
lieutenant positions, which are positions within the bar-
gaining unit, undoubtedly continued after 1999 to be
compiled and used in accordance with the past practice
Page 6
of rank order, the use of the term promotional list in
paragraph D of article XXV of the agreement should be
presumed to embody a similar meaning. In other words,
had the parties intended to depart from past practice
of rank order promotion, they presumably would have
usedadifferent termthan‘‘promotionallist’’ orqualified
that term with language indicating that rank order
would not be the sole basis for appointment. For exam-
ple, paragraph D could have provided ‘‘the appointing
authority may select any candidate on the promotional
list, regardless of rank,’’ or ‘‘the appointing authority
may select from the top three ranked candidates on the
promotional list.’’ Compare General Statutes § 5-215a
(‘‘The candidate list certified by the commissioner [of
administrative services] shall contain the final earned
rating of each candidate [for the classified state ser-
vice]. The appointing authority shall fill the vacant posi-
tion by selecting any candidate on the candidate list.’’)
and General Statutes § 7-414 (‘‘Such persons [on the
eligibility list for classified civil service] shall take rank
as candidates upon such register or list in the order of
their relative excellence as determined by test, without
reference to priority of time of test. . . . The board
shall submit to the appointing power for each promo-
tion the names of not more than three applicants having
the highest rating.’’).
6
Turning next to the town’s rules and policies, the
term ‘‘promotional list’’ is defined in the town’s pay
plan and policy manual.
7
A ‘‘promotional list’’ is defined
therein as ‘‘[a] list of qualified employees who have
passed a promotional examination for a position in the
classified service
8
and ranked on the list in the order
of the score received . . . .’’ (Emphasis added.) Green-
wich Classification and Pay Plan § 4.1.19; Greenwich
Personnel Policy and Procedures Manual § 102.
Applying that definition to paragraph D of article XXV
of the agreement, nothing therein would alter, or be
inconsistent with, the meaning of that term as under-
stood in the light of their past practice. Indeed, it
appears to make express the past practice.
9
Prior to
the 1999 amendment of the agreement, the position of
captain had been filled exclusively by persons within
the bargaining unit. Similarly, under that past practice,
bargaining unit members eligible for promotion had
been certified to a promotional list, meaning they had
been ranked high enough, on the basis of a competitive
examination, to be deemed eligible for promotion.
In light of the history of the past practices clause of
the agreement and the language in paragraph D of arti-
cle XXV of the agreement that is entirely consistent with
past practices, I would conclude that the agreement
unambiguously requires the town to continue its past
practices for promotions to captain. Quite simply, the
agreement controls until a bargaining unit member is
promoted to the rank of captain; once appointed to that
position outside the bargaining unit, the agreement no
Page 7
longer controls.
The majority reaches a contrary conclusion on the
basis of two fundamentally flawed propositions relating
to paragraph D of article XXV of the agreement and
the past practices clause. First, it determines that a
noncontextual and selective reading of paragraph D
must apply. The majority reads this provision as if there
was no history between the parties that would have
given particular meaning to the terms they used. It pre-
sumes that the parties were writing on a blank slate
when drafting that provision, unencumbered by and
unaware of the fact that the police department had
used ‘‘promotional lists’’ in a specific manner for many
years—promoting candidates in the order of their rank
onthepromotionallist, withoutexception.Althoughthe
majority faults the dissent for looking to past practice to
illuminate the meaning of paragraph D, it implicitly
acknowledges the ambiguity therein by its resort to the
definitional section of the pay plan. The majority then
determines that this definition renders paragraph D
unambiguous, however, by conveniently omitting from
its analysis the portion of that definition that is consis-
tent with the past practice—’’ranked on the list in order
of the score received . . . .’’ Greenwich Classification
and Pay Plan § 4.1.19; Greenwich Personnel Policy and
Procedures Manual § 102. The majority thereby implic-
itly concludes that this phrase has no meaning, or at
least no intended effect, contrary to the rule that we
do not read contracts to render terms superfluous.
10
See Connecticut Medical Ins. Co. v. Kulikowski, 286
Conn. 1, 12–13, 942 A.2d 334 (2008); American Promo-
tional Events, Inc. v. Blumenthal, 285 Conn. 192, 203,
937 A.2d 1184 (2008).
It defies logic that the parties would have incorpo-
rated a term that had a particular meaning under well
established past practice, which previously was an
implied term of the agreement under the past practice
clause and was defined in the town’s policies in a man-
ner consistent with that practice, if their intent was to
change past practice. If that had been their intention,
it is reasonable to assume that they either would have
provided for a different promotional procedure for cap-
tains than the one previously adhered to (discretion
rather than rank order)
11
or would have expressly disa-
vowed past practice. See, e.g., Truck Drivers Local No.
164 v. Allied Waste Systems, Inc., 512 F.3d 211, 214
(6th Cir. 2008) (citing clause in bargaining agreement
‘‘which [provides] that the terms of the enacted
agreement ‘shall supersede and render ineffective any
past practices, addendum, letters of understanding, oral
or written agreement as may now exist or as may have
existed’ ’’); Michigan Family Resources, Inc. v. Service
Employees International Union Local 517M, 475 F.3d
746,749(6th Cir.)(citingclausein bargainingagreement
providing that ‘‘ ‘[t]here are no past practices which are
binding upon the parties’ ’’), cert. denied,
U.S.
,
Page 8
127S. Ct.2996,168L. Ed.2d704 (2007);GannettRoches-
ter Newspapers v. National Labor Relations Board, 988
F.2d 198, 199 (D.C. Cir. 1993) (citing clause of collective
bargaining agreement providing that contract ‘‘super-
sedes all prior agreements, commitments, and prac-
tices, whether oral or written between the [c]ompany
and the [u]nion, or the [c]ompany and any covered
employee or employees’’ [internal quotation marks
omitted]). The town’s failure to add terms to negate
the past practices clause while expressly reaffirming
procedures consistent with past practice was, in effect,
an agreement to retain the status quo regarding promo-
tions to the rank of captain.
12
To the extent that the town
may have harbored a subjective view of the meaning of
paragraph D of article XXV of the agreement that was
contrary to past practice, I would agree with the trial
court that the town was obligated to make that intention
clear.
13
See Garrison v. Garrison, 190 Conn. 173, 175,
460 A.2d 945 (1983) (‘‘[t]he making of a contract does
not depend upon the secret intention of a party . . .
but upon the intention manifested by his [or her] words
or acts, and on these the other party has a right to
proceed’’ [internal quotation marks omitted]).
Second, the majority concludes that a distinction in
labor law between mandatory and nonmandatory sub-
jects of bargaining is dispostive, when that distinction
has no bearing on the question before this court. The
majority cites cases holding that the subject of promo-
tions within the bargaining unit are mandatory subjects
of bargaining, whereas the subject of promotions from
a position within the bargaining unit to one outside
the bargaining unit is a nonmandatory, or permissive,
subject of bargaining. Accordingly, because promotions
to police captain would have become a nonmandatory
subject of bargaining once that position was removed
from the bargaining unit, the majority posits that the
town could not be compelled to adhere to its past prac-
tices for promotions to police captain. Although I would
agree that the weight of authority, albeit quite limited,
holds that promotions to a position outside the bar-
gaining unit is a nonmandatory subject of bargaining,
14
this distinction is a red herring under the facts of
this case.
It is well established that parties may agree to include
a nonmandatory subject in a bargaining agreement, and,
if they do so, a breach of contract action will lie for a
violation of such a term. See Danbury v. International
Assn. of Firefighters, Local 801, 221 Conn. 244, 253,
603 A.2d 393 (1992) (‘‘The duty to negotiate is limited to
mandatory subjects of bargaining. As to other matters,
however, each party is free to bargain or not to bargain.
. . . To the extent that such permissive bargaining
results in an accord between the parties, their
agreement may be incorporated into a binding contract
. . . .’’ [Internal quotation marks omitted.]); First
National Maintenance Corp. v. National Labor Rela-
Page 9
tions Board, 452 U.S. 666, 675 n.13, 101 S. Ct. 2573, 69
L. Ed. 2d 318 (1981) (parties are free to negotiate in
good faith nonmandatory subject of bargaining but may
not insist on it to point of impasse); Allied Chemical &
Alkali Workers of America v. Pittsburgh Plate Glass
Co., 404 U.S. 157, 187–88, 92 S. Ct. 383, 30 L. Ed. 2d
341 (1971) (‘‘By once bargaining and agreeing on a per-
missive subject, the parties, naturally, do not make the
subject a mandatory topic of future bargaining. . . .
The remedy for a unilateral mid-term modification to
a permissive term lies in an action for breach of contract
. . . not in an unfair-labor-practice proceeding.’’ [Cita-
tion omitted.]); see also Lid Electric, Inc. v. Interna-
tional Brotherhood of Electrical Workers, Local 134,
362 F.3d 940, 943 (7th Cir. 2004) (‘‘Labor law permits
collective bargaining agreements to reach beyond the
certified unit of workers. How employers treat non-unit
workers is a permissive subject of bargaining. Neither
union nor employer is required to negotiate about per-
missive subjects [that is what it means to call them
‘permissive’ rather than ‘mandatory’] . . . but they can
do so when they find it mutually beneficial.’’ [Cita-
tion omitted.]).
Paragraph D of article XXV of the agreement is clear
evidence that the town did bargain on the subject of
promotions to police captain and agreed to included
terms consistent with past practice. Thus, the distinc-
tion that the majority and the town draw between man-
datory and nonmandatory subjects of bargaining as it
bears on whether the town could be compelled to bar-
gain on this matter or could unilaterally alter a past
practice that was not protected expressly in the
agreement is irrelevant. Moreover, neither the majority
nor the town has pointed to any case law that requires
us to eschew basic principles of contract interpretation,
under which we determine the parties’ intent in light of
their situation and the circumstances of the transaction,
when a nonmandatory subject of bargaining has been
included in an agreement.
15
In sum, the parties previously had agreed to include
a past practices clause in the bargaining agreement.
Promotions made strictly on the basis of rank order
on the promotional list had been the established past
practice. The parties thereafter agreed to remove the
position of captain from the bargaining unit, but to add
paragraph D to article XXV of the agreement to address
the procedure for promotions to captain. That para-
graph simply restates the past practice. Indeed, in light
of the numerous ways that the agreement could have
reflected a clear intention to break from past practice,
I question how the majority can fail, at the very least,
to conclude that the agreement is ambiguous as to the
question before us.
16
Therefore, I would determine that
the trial court properly concluded that the town had
breached the contract by failing to promote the plaintiff,
who was ranked first on the promotional list.
Page 10
Accordingly, I respectfully dissent.
17
1
Although the plaintiff, F. Gary Honulik, also named certain town employ-
ees as defendants; see footnote 2 of the majority opinion; all of the defendants
assert the same claims with respect to this appeal, and I refer to them
collectively as the town for purposes of convenience.
2
In its brief to this court, the town relies on labor board decisions that
have held that promotions within the bargaining unit constitute a mandatory
subject of bargaining, whereas promotions from a position within the bar-
gaining unit to one outside the bargaining unit constitute a nonmandatory
subject of bargaining. It then contends that ‘‘[t]he [state labor relations
board], construing ‘benefits’ in a past practices clause, has concluded that
‘benefits’ are mandatory subjects of bargaining. . . . Thus . . . the past
practices clause must be read to apply only to ‘benefits’ that are mandatory
subjects of bargaining. Because promotion to a supervisory position outside
the bargaining unit is a nonmandatory subject of bargaining, it is not a
‘benefit’ preserved by the past practices clause.’’ (Citations omitted.) There-
fore, the town implicitly concedes that the subject of promotions within
the bargaining unit falls within the past practices clause by virtue of its
status as a mandatory subject of bargaining. Despite this uncontested point,
the majority faults the trial court and this dissent for failing to analyze the
contours of the past practices clause and contends that the trial court did
not make an explicit finding that rank order promotion was a ‘‘benefit’’
within the meaning of the past practices clause. Unlike the majority, I think
this connection is implicit in the trial court’s numerous citations to the past
practices clause in its analysis and its repeated findings as to the past
practice of rank order promotion.
3
The lone exception to this practice was a situation in which a top ranked
candidate for a promotion to captain apparently had agreed to be passed
over as part of negotiations to resolve pending disciplinary issues.
4
There was no evidence admitted to explain the textual differences
between the 1999 preliminary agreement and article XXV, paragraph D, of
the 1999–2004 bargaining agreement, but the bargaining agreement controls
the issue in the present case.
5
Because the parties expressly included promotions to captain as a ‘‘condi-
tion of employment’’ in the agreement, there is no need to determine whether,
in the absence of any such express manifestation, the past practices clause
alone would require the town to promote in the rank order of the promo-
tional list.
6
Section 7-414 embodies what is commonly known as the ‘‘rule of three,’’
a practice adopted by many municipalities. See Kelly v. New Haven, 275
Conn. 580, 587 and nn.9 and 10, 881 A.2d 978 (2005) (citing New Haven
city charter and civil service rules); Hartford v. Board of Mediation &
Arbitration, 211 Conn. 7, 10–11, 557 A.2d 1236 (1989) (citing Hartford city
charter and personnel rules and regulations); State ex rel. Barnard v.
Ambrogio, 162 Conn. 491, 495 n.2, 294 A.2d 529 (1972) (citing Haddam
town charter).
7
The term ‘‘promotional list’’ is not actually used in the section of either
the policy manual or the pay plan that encompasses the subject of promo-
tions. The definitions, of course, could not, in and of themselves, prescribe
substantive rights. Cf. 1A J. Sutherland, Statutory Construction (6th Ed.
Singer 2002) § 27.1; Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 70, 689 A.2d
1097 (1997); Toll Gate Farms, Inc. v. Milk Regulation Board, 148 Conn.
341, 342–43, 170 A.2d 883 (1961).
8
A classified position is one filled by way of a competitive examination
process; Greenwich Classification and Pay Plan § 4.1.8; whereas an unclassi-
fied position is excluded from the merit testing policies because of the
nature of the authority and responsibilities exercised. Id., § 4.1.14. Although
the town recently changed the position of police chief to unclassified, during
the period relevant to this appeal, all positions in the police department
were classified.
9
The significance of rank order is underscored in other provisions in the
policy manual, suggesting that rank order may in fact be intended to operate
as a constraint on filling promotions. The policy manual sets forth a proce-
dure for breaking tie scores, and that procedure relates to the merits of the
examination rather than nonmerit based criteria. See Greenwich Personnel
Policy and Procedures Manual § 402.1 (‘‘[w]henever identical grades are
received, such names shall be arranged in order of relative rating given in
the most heavily weighed part of the examination’’). It also requires notifica-
tion to employees of their ‘‘final grade and relative standing on the employ-
ment list . . . immediately after the certification of the employment list to
Page 11
the appointing authority.’’ (Emphasis added.) Id. We need not, in the present
case, however, determine whether the town generally has committed to fill
promotions in rank order. The question before us is the intent of the parties
to the bargaining agreement at issue, specifically, what meaning they
attached to the term ‘‘promotional list.’’
10
The majority gives substantive effect to the part of paragraph D of
article XXV of the agreement that requires candidates to be ‘‘certified’’ to
the promotional list and the counterpart in § 4.1.19 of the pay plan and § 102
of the policy manual that requires a qualified employee to have ‘‘passed a
promotional examination . . . .’’ The majority fails, however, to ascribe any
substantive meaning to, or even acknowledge, the portion of the definition
that requires candidates to be ‘‘ranked on the list in the order of the score
received . . . .’’ Greenwich Classification and Pay Plan § 4.1.19; Greenwich
Personnel Policy and Procedures Manual § 102. Under the majority’s view,
despite the clear meaning that rank order had with respect to promotional
lists in the police department, it would not be a substantive violation of the
agreement for the town to compile a promotional list in alphabetical order
of those candidates who passed the promotional examination.
11
Indeed, testimony suggested that, at some point, the town had amended
paragraph F of article XXV of the agreement to alter past practice with
respect to the timing for certain promotional examinations not pertinent to
this appeal.
12
In its brief to this court, the town contends that, applying the maxim
‘‘inclusio unius est exclusio alterius,’’ we must read the express inclusion
in paragraph D of article XXV of the agreement of who is eligible for promo-
tion as excluding how promotions shall be made. I disagree that this maxim
is applicable. Although that maxim might have some force if this provision
set forth a list of similar or related terms that appeared exclusive, that is
not the case here. See F. Elkouri & E. Elkouri, supra, c. 9.3.A.xi, pp. 467–68
(explaining limitations on application of this doctrine); id., p. 622 (general
clause preserving past practice would not require employer to continue past
practice of designating day before Christmas as paid holiday when contract
specifically listed paid holidays and did not include day before Christmas);
see also Cahill v. Board of Education, 187 Conn. 94, 107, 444 A.2d 907
(1982) (Shea, J., concurring) (‘‘the maxim inclusio unius, exclusio alterius
is merely an aid to construction and not a rule of law having universal appli-
cation’’).
13
In its memorandum of decision, the trial court repeatedly emphasized
that ‘‘the [town] specifically and unequivocally declined to negotiate a spe-
cific provision regarding the manner of testing and selecting a person pro-
moted to the rank of [p]olice [c]aptain; and that therefore, the [agreement]
calls for the implementation of the procedure of promoting in rank order
from the promotional list and not according to the ‘[r]ule of the [l]ist,’ so
called.’’ I note that Cava, director of human resources for the town, offered
the following testimony on the express representations made by the town
during negotiations relating to the change in the status of captains:
‘‘[The Plaintiff’s Counsel]: You did discuss with the union during the time
the captain’s position went out of the bargaining unit, the fact that it was
on the table and discussed, that the impact of that would be that the bar-
gaining unit could no longer negotiate for the wages or the benefits, or
those type of things for the captains, correct?
‘‘[Cava]: Correct. . . .
‘‘[The Town’s Counsel]: You said that you chose not to address the issue
of a promotional process with the union, correct?
‘‘[Cava]: Correct.
‘‘[The Town’s Counsel]: Did the union indicate to you that it wanted to
discuss the promotional process for captains?
‘‘[Cava]: Well, they initially raised a number of those issues. And I chose
not to discuss it with them. That was my initial position. They were outside
the bargaining unit and I wouldn’t have any discussion with them over it.
Subsequently, I learned that their real interest was they were concerned
that the town may go outside of the department and hire outside people
into the position of captain, so we acquiesced and that was never our intent.
And we acquiesced to the language that’s now in the [agreement] that the
promotions would continue to come from within the department.
‘‘[The Town’s Counsel]: So you never specifically discussed the promo-
tional process even though the union had indicated that it wished to do that?
‘‘[Cava]: Never discussed it.’’
14
There is not, however, universal consensus on this question. See Local
1383 of the International Assn. of Fire Fighters v. Warren, 411 Mich. 642,
Page 12
653 n.2, 311 N.W.2d 702 (1981) (‘‘[p]romotions are such an important topic
of employment relations that even promotions out of a bargaining unit are
mandatory subjects [of bargaining]’’); Detroit Police Officers Assn. v.
Detroit, 61 Mich. App. 487, 492–94, 233 N.W.2d 49 (1975) (explaining and
applying principle subsequently cited by Michigan Supreme Court in Local
1383 of the International Assn. of Fire Fighters); see also Manistee v.
Manistee Fire Fighters Assn., Local 645, IAFF, 174 Mich. App. 118, 121–22,
435 N.W.2d 778 (1989) (‘‘What constitutes a mandatory subject is determined
on a case-by-case basis. [Detroit Police Officers Assn. v. Detroit, supra,
490–91]. The test generally applied is whether the matter has a significant
impact upon wages, hours, or other conditions of employment, or settles
an aspect of the employer-employee relationship.’’ [Internal quotation marks
omitted.]). I would not conclude, as it appears the majority has, that promo-
tions from a position within the bargaining unit to one outside the bargaining
unit would be a nonmandatory subject of bargaining in every case. Indeed,
the majority’s deference to two state board decisions reaching such a conclu-
sion on the basis of the rule that we afford deference to ‘‘time tested’’
agency interpretations is puzzling given that: (1) this rule applies to formal
interpretations of statutory terms; see Curry v. Allan S. Goodman, Inc.,
286 Conn. 390, 404, 944 A.2d 925 (2008) (‘‘[w]e traditionally have accorded
deference to the time-tested interpretation of an agency charged with enforc-
ing the provisions of a statute, provided that the agency’s interpretation has
been formally articulated and applied for an extended period of time, and
that interpretation is reasonable’’ [internal quotation marks omitted]); and
(2) this court expressly has rejected two agency decisions as being suffi-
ciently numerous to satisfy that standard. See Vincent v. New Haven, 285
Conn. 778, 784 n.8, 941 A.2d 932 (2008); Christopher R. v. Commissioner
of Mental Retardation, 277 Conn. 594, 603 n.9, 893 A.2d 431 (2006). To the
extent necessary to resolve the issue in the present case, I would assume,
without deciding, that such promotions are a nonmandatory subject of
bargaining because of the posture of this case, in that the plaintiff concedes
in his brief to this court that paragraph D of article XXV of the agreement
addresses a nonmandatory subject of bargaining in order to pursue his
independent breach of contract action.
15
Although a past practice may no longer be binding if the underlying
conditions on which the practice was based have changed; F. Elkouri & E.
Elkouri, supra, c. 12.6, p. 618; that rule would not apply in this case for two
reasons: (1) the past practice has been made an express term of the contract;
id.; and (2) there is no evidence that the status of the position at issue in
the promotion as within or outside of the bargaining unit was a ‘‘condition’’
on which the practice of rank order promotion was instituted and main-
tained.
16
To the extent that one still could view the agreement as ambiguous
after considering the undisputed past practice, the evidence before the
trial court did not reflect that the parties’ conduct subsequent to the 1999
amendment manifested a clear intent to alter the existing practice. Signifi-
cantly, within months after agreeing to remove the position of captain from
the bargaining unit, promotions were made to fill two police captain open-
ings. Peter Robbins, the police chief who filled those promotions, testified
that he believed that he was required to promote in rank order of the
promotional list, as the police department always had done in the past, and
that no one had told him anything to the contrary. As a result, Robbins
promoted the top two ranked persons on the promotional list. It seems
extraordinary that the appropriate town officials never communicated to
Robbins, the appointing authority, that there had been a change in the
promotional process such that he now had complete discretion to hire
anyone on the promotional list. See Jaasma v. Shell Oil Co., 412 F.3d 501,
508 (3d Cir. 2005) (subsequent conduct relevant to construe ambiguity in
agreement); Sure-Trip, Inc. v. Westinghouse Engineering & Instrumenta-
tion Services Division, 47 F.3d 526, 534 (2d Cir. 1995) (same); Federal Ins.
Co. v. Scarsella Bros., Inc., 931 F.2d 599, 603 (9th Cir. 1991) (same). More-
over, the announcement for those positions contained nothing that would
have indicated to eligible officers that the practice regarding the promotional
procedure had changed. The only manifestation to the contrary was in a
letter from the town’s deputy director of human resources, which apparently
was sent to only those two top ranked candidates who thereafter were
promoted. That letter provided in relevant part: ‘‘Under the [r]ules and
[r]egulations of the Greenwich [p]ay [p]lan, a [d]epartment [h]ead may hire
any candidate certified as eligible by the [h]uman [r]esources [d]epartment.
Your name has been forwarded to the hiring authority for consideration for
Page 13
appointment to this position.’’ Honulik received a similar, generically
phrased letter in 2003. Under such circumstances, if resort to subsequent
conduct was necessary because the agreement was ambiguous after con-
sulting past practice and applicable town documents, a finding by the trial
court that the ambiguity in the agreement should be read as retaining the
status quo would not be clearly erroneous. See Bristol v. Ocean State Job
Lot Stores of Connecticut, Inc., 284 Conn. 1, 7, 931 A.2d 837 (2007) (noting
that, if contract is determined to be ambiguous, finding of intent is factual
question reversed only if clearly erroneous).
17
In light of the urgency to resolve this expedited public interest appeal
as expeditiously as possible, I do not address the remaining arguments
of the parties. See General Statutes § 52-265a (direct appeal on questions
involving public interest authorized in case ‘‘in which delay may work a
substantial injustice’’).
KATZ, J., with whom, VERTEFEUILLE, J., joins, dis-
senting. The principal issue in this appeal is whether
the trial court properly concluded that the 1999–2004
collective bargaining agreement (agreement) between
the named defendant, the town of Greenwich (town),
1
and the Silver Shield Association, the union represent-
ing the town’s police officers (union), required the can-
didate ranked first on the promotional list to be
promoted to the position of police captain, a position
outside the bargaining unit. The majority concludes that
the provision in the agreement that expressly addresses
such promotions only prescribes the class of persons
eligible for promotions (members of the bargaining
unit), not substantive conditions for making such pro-
motions. It further concludes that the past practices
clause of the agreement has no bearing on the issue
presented because promotions from a position within
the bargaining unit to a position outside the bargaining
unit is a nonmandatory subject of bargaining. As such,
according to the majority, the town was not bound
to adhere to long-standing and well understood past
practices relating to the procedure for promotions to
police captain prior to the removal of that position from
the bargaining unit. In my view, the majority fails to give
full effect to the provision in the agreement addressing
promotions to the position of captain. The terms therein
have a meaning that is informed by past practices, under
which it is clear that the town contractually was obli-
gated to promote the plaintiff, F. Gary Honulik, to the
position of police captain because he was the highest
ranked candidate on the promotional list. Moreover,
the question of whether promotions from a position
within the bargaining unit to one outside the bargaining
unit is a nonmandatory subject of bargaining is irrele-
vant in light of the fact that the agreement expressly
addresses this subject. Accordingly, I would affirm the
trial court’s judgment.
The trial court and the parties have relied, for varying
propositions, on the town’s generally applicable rules,
policies and procedures for employment decisions,
which are set forth in the town’s classification and pay
plan (pay plan) and personnel policy and procedures
manual (policy manual). The parties agree, however,
that the effect of the 1999 amendment to the collective
bargaining agreement is central to this appeal. Indeed,
both the pay plan and policy manual expressly mandate
that the terms of a bargaining agreement will supersede
contrary terms in those town documents. Greenwich
Classification and Pay Plan § 3.2 (‘‘[a]ny inconsistencies
between these rules and procedures and collective bar-
gaining agreements shall be read in favor of the collec-
tive bargaining agreements’’); Greenwich Personnel
Policy and Procedures Manual § 100 (‘‘[t]he policy man-
Page 3
ual is intended to supplement and should be used in
conjunction with the [t]own [c]harter, union
agreements, [p]olicy[m]anual, [p]ay [p]lan[r]ules, [f]ed-
eral and [s]tate laws and is not intended to supersede
or overrule such agreements or statutes’’). Therefore,
it is clear that the bargaining agreement has primacy
and must be the starting point of our analysis.
‘‘Itis axiomaticthatacollective bargainingagreement
is a contract.’’ D’Agostino v. Housing Authority, 95
Conn. App. 834, 838, 898 A.2d 228, cert. denied, 280
Conn. 905, 907 A.2d 88 (2006); accord W.R. Grace &
Co. v. Local Union 759, International Union of United
Rubber, Cork, Linoleum & Plastic Workers of America,
461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298
(1983); Poole v. Waterbury, 266 Conn. 68, 87, 831 A.2d
211 (2003). ‘‘A contract must be construed to effectuate
the intent of the parties, which is determined from the
language used interpreted in the light of the situation
of the parties and the circumstances connected with
the transaction.’’ (Emphasis added; internal quotation
marks omitted.) Allstate Life Ins. Co. v. BFA Ltd. Part-
nership, 287 Conn. 307, 313, 948 A.2d 318 (2008). ‘‘In
ascertaining intent, we consider not only the language
used in the contract but also the circumstances sur-
rounding the making of the contract, the motives of
the parties and the purposes which they sought to
accomplish.’’ (Emphasis added; internal quotation
marks omitted.) Barnard v. Barnard, 214 Conn. 99,
109–10, 570 A.2d 690 (1990). Thus, a contract’s meaning
is contextual. Cf. Levine v. Advest, Inc., 244 Conn. 732,
753, 714 A.2d 649 (1998) (‘‘[t]he individual clauses of a
contract . . . cannot be construed by taking them out
of context and giving them an interpretation apart from
the contract of which they are a part’’).
To put the provisions of the agreement at issue in
their proper context, it is useful at the outset to state
what is not in dispute. Prior to 1999, the positions of
captain, lieutenant and sergeant were in the bargaining
unit controlled by the agreement between the town and
the union. At that time, the bargaining agreement did
not address promotions expressly but did include a
provision entitled ‘‘Past Practices Clause,’’ which
remained in the agreement after 1999. The past prac-
tices clause, set forth in article XXVIII of the agreement,
provides in relevant part: ‘‘All benefits and obligations
which are not described in this [a]greement or in either
the [town police] manual or [pay] plan and which are
nowenjoyedby orrequiredoftheemployees arespecifi-
cally included in this [a]greement by reference just as
though each such benefit or obligation was specifically
set forth.’’ Thus, if promotion on the basis of one’s
rank on the promotional list was a benefit enjoyed by
members of the bargaining unit, that past practice
would be protected under the agreement, even though
the agreement does not expressly address promo-
tional practices.
Page 4
The trial court concluded that promotional practices
within the bargaining unit were a benefit that fell within
the past practices clause; the town does not dispute
this interpretation of the agreement.
2
Thus, prior to
1999, the past practices provision controlled promo-
tions to the positions of sergeant, lieutenant and cap-
tain. The trial court also made the unchallenged factual
finding, overwhelmingly supported by the evidence,
that ‘‘the well established past or prevailing practice
within the Greenwich police department of the hiring
authority was to fill a vacancy with the top scoring
candidate listed in rank order on the promotional list.’’
3
Indeed, the town’s principal witness, Alfred C. Cava,
director of human resources for the town, conceded in
his testimony before the trial court that, throughout the
extended period in which the town engaged in this
practice, it had acquiesced to the union’s position that
promotion within the bargaining unit of the top ranked
candidate on the promotional list is a past practice
mandated under the agreement.
In 1999, the town and the union agreed to remove
the position of police captain from the bargaining unit.
This change undoubtedly altered the legal rights of per-
sons who already had attained the position of captain.
Once removed from the bargaining unit, the agreement
no longer controlled the wages, hours and conditions
of employment of captains except to the extent that
the parties voluntarily had agreed and provided other-
wise. See Assn. of Civilian Technicians v. Federal
Labor Relations Authority, 353 F.3d 46, 50 (D.C. Cir.
2004); Connecticut Education Assn. v. State Board of
Labor Relations, 5 Conn. App. 253, 271, 498 A.2d 102,
cert. denied, 197 Conn. 814, 499 A.2d 804 (1985). This
appeal turns, however, on whether the agreement, as
amended in 1999, altered the rights of those persons
whose positions are still included within the bar-
gaining unit. Specifically, we must consider whether
the trial court properly construed the agreement as
‘‘call[ing] for the implementation of the procedure of
promoting in rank order from the promotional list’’ for
persons within the bargaining unit, like the plaintiff.
As a result of the parties’ agreement to remove the
position of captain from the bargaining unit, the parties
amended article XXV of the 1999–2004 agreement, enti-
tled ‘‘Conditions of Employment,’’ by adding paragraph
D, which provides: ‘‘Promotion to the classification of
[p]olice [c]aptain shall be made from bargaining unit
employees who are candidates certified to the promo-
tional list.’’
4
(Emphasis added.) It is this provision that
is at the crux of this appeal. The critical question is
whether it evidences an intent to continue the past
practice of promoting the top ranked candidate on the
promotional list or to alter that practice.
5
Specifically,
the question arises as to the meaning of the term ‘‘pro-
motional list.’’ Neither the parties, the trial court nor
Page 5
the majority have concluded that the meaning of this
term is self-evident. The term is not defined in the
agreement, and the agreement does not incorporate by
express reference any documents other than the police
manual. Two sources, however, clarify the meaning of
this term as it affects the resolution of the issue before
us: past practice specific to the police department and
town documents generally applicable to all town
employees.
It is well settled that, even in the absence of an
express past practice clause, past practices properly
may be relied on to illuminate the meaning of a term
or provision of a bargaining agreement. See F. Elkouri &
E. Elkouri, How Arbitration Works (A. Ruben ed., 6th
Ed. 2003) c. 12.1, p. 605 (‘‘[p]roof of custom and past
practice may be introduced . . . to indicate the proper
interpretation of contract language’’); see, e.g., Black v.
Surface Transportation Board, 476 F.3d 409, 414 (6th
Cir. 2007); cf. Anheuser-Busch, Inc. v. International
BrotherhoodofTeamsters,LocalNo.744,280F.3d1133,
1139 (7th Cir.), cert. denied, 537 U.S. 885, 123 S. Ct.
119,154L.Ed.2d144(2002).‘‘Indeed,theparties’course
of performance may be the best evidence of their intent
in using a particular term.’’ Martinsville Nylon Employ-
ees Council Corp. v. National Labor Relations Board,
969 F.2d 1263, 1269 (D.C. Cir. 1992); see also id. (criticiz-
ing cramped interpretation of bargaining agreement by
labor board and administrative law judge that failed to
consider meaning of terms in light of past practice,
especially in light of fact that past practice predated
agreement). As the trial court properly recognized,
although it would be improper to read the agreement
to incorporate past practice if such a reading contra-
dicted the express terms of paragraph D of article XXV
of the agreement; F. Elkouri & E. Elkouri, supra, c.
12.9, pp. 627–28; neither the majority nor the town has
demonstrated that any such conflict arises under the
trial court’s construction.
It is an undisputed fact, both here and before the
trial court, that the long-standing past practice in the
police department was to compile and use promotional
lists in a specific, consistent manner. Promotional lists
were compiled on the basis of a competitive examina-
tion, listing candidates in rank order of their score.
Candidates were selected from the promotional lists
strictly in rank order. Therefore, the term ‘‘promotional
list’’ undoubtedly had a particular meaning ‘‘in the light
of the situation of the parties and the circumstances
connected with the transaction.’’ (Internal quotation
marks omitted.) Allstate Life Ins. Co. v. BFA Ltd. Part-
nership, supra, 287 Conn. 313.
Indeed, because promotional lists for sergeant and
lieutenant positions, which are positions within the bar-
gaining unit, undoubtedly continued after 1999 to be
compiled and used in accordance with the past practice
Page 6
of rank order, the use of the term promotional list in
paragraph D of article XXV of the agreement should be
presumed to embody a similar meaning. In other words,
had the parties intended to depart from past practice
of rank order promotion, they presumably would have
usedadifferent termthan‘‘promotionallist’’ orqualified
that term with language indicating that rank order
would not be the sole basis for appointment. For exam-
ple, paragraph D could have provided ‘‘the appointing
authority may select any candidate on the promotional
list, regardless of rank,’’ or ‘‘the appointing authority
may select from the top three ranked candidates on the
promotional list.’’ Compare General Statutes § 5-215a
(‘‘The candidate list certified by the commissioner [of
administrative services] shall contain the final earned
rating of each candidate [for the classified state ser-
vice]. The appointing authority shall fill the vacant posi-
tion by selecting any candidate on the candidate list.’’)
and General Statutes § 7-414 (‘‘Such persons [on the
eligibility list for classified civil service] shall take rank
as candidates upon such register or list in the order of
their relative excellence as determined by test, without
reference to priority of time of test. . . . The board
shall submit to the appointing power for each promo-
tion the names of not more than three applicants having
the highest rating.’’).
6
Turning next to the town’s rules and policies, the
term ‘‘promotional list’’ is defined in the town’s pay
plan and policy manual.
7
A ‘‘promotional list’’ is defined
therein as ‘‘[a] list of qualified employees who have
passed a promotional examination for a position in the
classified service
8
and ranked on the list in the order
of the score received . . . .’’ (Emphasis added.) Green-
wich Classification and Pay Plan § 4.1.19; Greenwich
Personnel Policy and Procedures Manual § 102.
Applying that definition to paragraph D of article XXV
of the agreement, nothing therein would alter, or be
inconsistent with, the meaning of that term as under-
stood in the light of their past practice. Indeed, it
appears to make express the past practice.
9
Prior to
the 1999 amendment of the agreement, the position of
captain had been filled exclusively by persons within
the bargaining unit. Similarly, under that past practice,
bargaining unit members eligible for promotion had
been certified to a promotional list, meaning they had
been ranked high enough, on the basis of a competitive
examination, to be deemed eligible for promotion.
In light of the history of the past practices clause of
the agreement and the language in paragraph D of arti-
cle XXV of the agreement that is entirely consistent with
past practices, I would conclude that the agreement
unambiguously requires the town to continue its past
practices for promotions to captain. Quite simply, the
agreement controls until a bargaining unit member is
promoted to the rank of captain; once appointed to that
position outside the bargaining unit, the agreement no
Page 7
longer controls.
The majority reaches a contrary conclusion on the
basis of two fundamentally flawed propositions relating
to paragraph D of article XXV of the agreement and
the past practices clause. First, it determines that a
noncontextual and selective reading of paragraph D
must apply. The majority reads this provision as if there
was no history between the parties that would have
given particular meaning to the terms they used. It pre-
sumes that the parties were writing on a blank slate
when drafting that provision, unencumbered by and
unaware of the fact that the police department had
used ‘‘promotional lists’’ in a specific manner for many
years—promoting candidates in the order of their rank
onthepromotionallist, withoutexception.Althoughthe
majority faults the dissent for looking to past practice to
illuminate the meaning of paragraph D, it implicitly
acknowledges the ambiguity therein by its resort to the
definitional section of the pay plan. The majority then
determines that this definition renders paragraph D
unambiguous, however, by conveniently omitting from
its analysis the portion of that definition that is consis-
tent with the past practice—’’ranked on the list in order
of the score received . . . .’’ Greenwich Classification
and Pay Plan § 4.1.19; Greenwich Personnel Policy and
Procedures Manual § 102. The majority thereby implic-
itly concludes that this phrase has no meaning, or at
least no intended effect, contrary to the rule that we
do not read contracts to render terms superfluous.
10
See Connecticut Medical Ins. Co. v. Kulikowski, 286
Conn. 1, 12–13, 942 A.2d 334 (2008); American Promo-
tional Events, Inc. v. Blumenthal, 285 Conn. 192, 203,
937 A.2d 1184 (2008).
It defies logic that the parties would have incorpo-
rated a term that had a particular meaning under well
established past practice, which previously was an
implied term of the agreement under the past practice
clause and was defined in the town’s policies in a man-
ner consistent with that practice, if their intent was to
change past practice. If that had been their intention,
it is reasonable to assume that they either would have
provided for a different promotional procedure for cap-
tains than the one previously adhered to (discretion
rather than rank order)
11
or would have expressly disa-
vowed past practice. See, e.g., Truck Drivers Local No.
164 v. Allied Waste Systems, Inc., 512 F.3d 211, 214
(6th Cir. 2008) (citing clause in bargaining agreement
‘‘which [provides] that the terms of the enacted
agreement ‘shall supersede and render ineffective any
past practices, addendum, letters of understanding, oral
or written agreement as may now exist or as may have
existed’ ’’); Michigan Family Resources, Inc. v. Service
Employees International Union Local 517M, 475 F.3d
746,749(6th Cir.)(citingclausein bargainingagreement
providing that ‘‘ ‘[t]here are no past practices which are
binding upon the parties’ ’’), cert. denied,
U.S.
,
Page 8
127S. Ct.2996,168L. Ed.2d704 (2007);GannettRoches-
ter Newspapers v. National Labor Relations Board, 988
F.2d 198, 199 (D.C. Cir. 1993) (citing clause of collective
bargaining agreement providing that contract ‘‘super-
sedes all prior agreements, commitments, and prac-
tices, whether oral or written between the [c]ompany
and the [u]nion, or the [c]ompany and any covered
employee or employees’’ [internal quotation marks
omitted]). The town’s failure to add terms to negate
the past practices clause while expressly reaffirming
procedures consistent with past practice was, in effect,
an agreement to retain the status quo regarding promo-
tions to the rank of captain.
12
To the extent that the town
may have harbored a subjective view of the meaning of
paragraph D of article XXV of the agreement that was
contrary to past practice, I would agree with the trial
court that the town was obligated to make that intention
clear.
13
See Garrison v. Garrison, 190 Conn. 173, 175,
460 A.2d 945 (1983) (‘‘[t]he making of a contract does
not depend upon the secret intention of a party . . .
but upon the intention manifested by his [or her] words
or acts, and on these the other party has a right to
proceed’’ [internal quotation marks omitted]).
Second, the majority concludes that a distinction in
labor law between mandatory and nonmandatory sub-
jects of bargaining is dispostive, when that distinction
has no bearing on the question before this court. The
majority cites cases holding that the subject of promo-
tions within the bargaining unit are mandatory subjects
of bargaining, whereas the subject of promotions from
a position within the bargaining unit to one outside
the bargaining unit is a nonmandatory, or permissive,
subject of bargaining. Accordingly, because promotions
to police captain would have become a nonmandatory
subject of bargaining once that position was removed
from the bargaining unit, the majority posits that the
town could not be compelled to adhere to its past prac-
tices for promotions to police captain. Although I would
agree that the weight of authority, albeit quite limited,
holds that promotions to a position outside the bar-
gaining unit is a nonmandatory subject of bargaining,
14
this distinction is a red herring under the facts of
this case.
It is well established that parties may agree to include
a nonmandatory subject in a bargaining agreement, and,
if they do so, a breach of contract action will lie for a
violation of such a term. See Danbury v. International
Assn. of Firefighters, Local 801, 221 Conn. 244, 253,
603 A.2d 393 (1992) (‘‘The duty to negotiate is limited to
mandatory subjects of bargaining. As to other matters,
however, each party is free to bargain or not to bargain.
. . . To the extent that such permissive bargaining
results in an accord between the parties, their
agreement may be incorporated into a binding contract
. . . .’’ [Internal quotation marks omitted.]); First
National Maintenance Corp. v. National Labor Rela-
Page 9
tions Board, 452 U.S. 666, 675 n.13, 101 S. Ct. 2573, 69
L. Ed. 2d 318 (1981) (parties are free to negotiate in
good faith nonmandatory subject of bargaining but may
not insist on it to point of impasse); Allied Chemical &
Alkali Workers of America v. Pittsburgh Plate Glass
Co., 404 U.S. 157, 187–88, 92 S. Ct. 383, 30 L. Ed. 2d
341 (1971) (‘‘By once bargaining and agreeing on a per-
missive subject, the parties, naturally, do not make the
subject a mandatory topic of future bargaining. . . .
The remedy for a unilateral mid-term modification to
a permissive term lies in an action for breach of contract
. . . not in an unfair-labor-practice proceeding.’’ [Cita-
tion omitted.]); see also Lid Electric, Inc. v. Interna-
tional Brotherhood of Electrical Workers, Local 134,
362 F.3d 940, 943 (7th Cir. 2004) (‘‘Labor law permits
collective bargaining agreements to reach beyond the
certified unit of workers. How employers treat non-unit
workers is a permissive subject of bargaining. Neither
union nor employer is required to negotiate about per-
missive subjects [that is what it means to call them
‘permissive’ rather than ‘mandatory’] . . . but they can
do so when they find it mutually beneficial.’’ [Cita-
tion omitted.]).
Paragraph D of article XXV of the agreement is clear
evidence that the town did bargain on the subject of
promotions to police captain and agreed to included
terms consistent with past practice. Thus, the distinc-
tion that the majority and the town draw between man-
datory and nonmandatory subjects of bargaining as it
bears on whether the town could be compelled to bar-
gain on this matter or could unilaterally alter a past
practice that was not protected expressly in the
agreement is irrelevant. Moreover, neither the majority
nor the town has pointed to any case law that requires
us to eschew basic principles of contract interpretation,
under which we determine the parties’ intent in light of
their situation and the circumstances of the transaction,
when a nonmandatory subject of bargaining has been
included in an agreement.
15
In sum, the parties previously had agreed to include
a past practices clause in the bargaining agreement.
Promotions made strictly on the basis of rank order
on the promotional list had been the established past
practice. The parties thereafter agreed to remove the
position of captain from the bargaining unit, but to add
paragraph D to article XXV of the agreement to address
the procedure for promotions to captain. That para-
graph simply restates the past practice. Indeed, in light
of the numerous ways that the agreement could have
reflected a clear intention to break from past practice,
I question how the majority can fail, at the very least,
to conclude that the agreement is ambiguous as to the
question before us.
16
Therefore, I would determine that
the trial court properly concluded that the town had
breached the contract by failing to promote the plaintiff,
who was ranked first on the promotional list.
Page 10
Accordingly, I respectfully dissent.
17
1
Although the plaintiff, F. Gary Honulik, also named certain town employ-
ees as defendants; see footnote 2 of the majority opinion; all of the defendants
assert the same claims with respect to this appeal, and I refer to them
collectively as the town for purposes of convenience.
2
In its brief to this court, the town relies on labor board decisions that
have held that promotions within the bargaining unit constitute a mandatory
subject of bargaining, whereas promotions from a position within the bar-
gaining unit to one outside the bargaining unit constitute a nonmandatory
subject of bargaining. It then contends that ‘‘[t]he [state labor relations
board], construing ‘benefits’ in a past practices clause, has concluded that
‘benefits’ are mandatory subjects of bargaining. . . . Thus . . . the past
practices clause must be read to apply only to ‘benefits’ that are mandatory
subjects of bargaining. Because promotion to a supervisory position outside
the bargaining unit is a nonmandatory subject of bargaining, it is not a
‘benefit’ preserved by the past practices clause.’’ (Citations omitted.) There-
fore, the town implicitly concedes that the subject of promotions within
the bargaining unit falls within the past practices clause by virtue of its
status as a mandatory subject of bargaining. Despite this uncontested point,
the majority faults the trial court and this dissent for failing to analyze the
contours of the past practices clause and contends that the trial court did
not make an explicit finding that rank order promotion was a ‘‘benefit’’
within the meaning of the past practices clause. Unlike the majority, I think
this connection is implicit in the trial court’s numerous citations to the past
practices clause in its analysis and its repeated findings as to the past
practice of rank order promotion.
3
The lone exception to this practice was a situation in which a top ranked
candidate for a promotion to captain apparently had agreed to be passed
over as part of negotiations to resolve pending disciplinary issues.
4
There was no evidence admitted to explain the textual differences
between the 1999 preliminary agreement and article XXV, paragraph D, of
the 1999–2004 bargaining agreement, but the bargaining agreement controls
the issue in the present case.
5
Because the parties expressly included promotions to captain as a ‘‘condi-
tion of employment’’ in the agreement, there is no need to determine whether,
in the absence of any such express manifestation, the past practices clause
alone would require the town to promote in the rank order of the promo-
tional list.
6
Section 7-414 embodies what is commonly known as the ‘‘rule of three,’’
a practice adopted by many municipalities. See Kelly v. New Haven, 275
Conn. 580, 587 and nn.9 and 10, 881 A.2d 978 (2005) (citing New Haven
city charter and civil service rules); Hartford v. Board of Mediation &
Arbitration, 211 Conn. 7, 10–11, 557 A.2d 1236 (1989) (citing Hartford city
charter and personnel rules and regulations); State ex rel. Barnard v.
Ambrogio, 162 Conn. 491, 495 n.2, 294 A.2d 529 (1972) (citing Haddam
town charter).
7
The term ‘‘promotional list’’ is not actually used in the section of either
the policy manual or the pay plan that encompasses the subject of promo-
tions. The definitions, of course, could not, in and of themselves, prescribe
substantive rights. Cf. 1A J. Sutherland, Statutory Construction (6th Ed.
Singer 2002) § 27.1; Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 70, 689 A.2d
1097 (1997); Toll Gate Farms, Inc. v. Milk Regulation Board, 148 Conn.
341, 342–43, 170 A.2d 883 (1961).
8
A classified position is one filled by way of a competitive examination
process; Greenwich Classification and Pay Plan § 4.1.8; whereas an unclassi-
fied position is excluded from the merit testing policies because of the
nature of the authority and responsibilities exercised. Id., § 4.1.14. Although
the town recently changed the position of police chief to unclassified, during
the period relevant to this appeal, all positions in the police department
were classified.
9
The significance of rank order is underscored in other provisions in the
policy manual, suggesting that rank order may in fact be intended to operate
as a constraint on filling promotions. The policy manual sets forth a proce-
dure for breaking tie scores, and that procedure relates to the merits of the
examination rather than nonmerit based criteria. See Greenwich Personnel
Policy and Procedures Manual § 402.1 (‘‘[w]henever identical grades are
received, such names shall be arranged in order of relative rating given in
the most heavily weighed part of the examination’’). It also requires notifica-
tion to employees of their ‘‘final grade and relative standing on the employ-
ment list . . . immediately after the certification of the employment list to
Page 11
the appointing authority.’’ (Emphasis added.) Id. We need not, in the present
case, however, determine whether the town generally has committed to fill
promotions in rank order. The question before us is the intent of the parties
to the bargaining agreement at issue, specifically, what meaning they
attached to the term ‘‘promotional list.’’
10
The majority gives substantive effect to the part of paragraph D of
article XXV of the agreement that requires candidates to be ‘‘certified’’ to
the promotional list and the counterpart in § 4.1.19 of the pay plan and § 102
of the policy manual that requires a qualified employee to have ‘‘passed a
promotional examination . . . .’’ The majority fails, however, to ascribe any
substantive meaning to, or even acknowledge, the portion of the definition
that requires candidates to be ‘‘ranked on the list in the order of the score
received . . . .’’ Greenwich Classification and Pay Plan § 4.1.19; Greenwich
Personnel Policy and Procedures Manual § 102. Under the majority’s view,
despite the clear meaning that rank order had with respect to promotional
lists in the police department, it would not be a substantive violation of the
agreement for the town to compile a promotional list in alphabetical order
of those candidates who passed the promotional examination.
11
Indeed, testimony suggested that, at some point, the town had amended
paragraph F of article XXV of the agreement to alter past practice with
respect to the timing for certain promotional examinations not pertinent to
this appeal.
12
In its brief to this court, the town contends that, applying the maxim
‘‘inclusio unius est exclusio alterius,’’ we must read the express inclusion
in paragraph D of article XXV of the agreement of who is eligible for promo-
tion as excluding how promotions shall be made. I disagree that this maxim
is applicable. Although that maxim might have some force if this provision
set forth a list of similar or related terms that appeared exclusive, that is
not the case here. See F. Elkouri & E. Elkouri, supra, c. 9.3.A.xi, pp. 467–68
(explaining limitations on application of this doctrine); id., p. 622 (general
clause preserving past practice would not require employer to continue past
practice of designating day before Christmas as paid holiday when contract
specifically listed paid holidays and did not include day before Christmas);
see also Cahill v. Board of Education, 187 Conn. 94, 107, 444 A.2d 907
(1982) (Shea, J., concurring) (‘‘the maxim inclusio unius, exclusio alterius
is merely an aid to construction and not a rule of law having universal appli-
cation’’).
13
In its memorandum of decision, the trial court repeatedly emphasized
that ‘‘the [town] specifically and unequivocally declined to negotiate a spe-
cific provision regarding the manner of testing and selecting a person pro-
moted to the rank of [p]olice [c]aptain; and that therefore, the [agreement]
calls for the implementation of the procedure of promoting in rank order
from the promotional list and not according to the ‘[r]ule of the [l]ist,’ so
called.’’ I note that Cava, director of human resources for the town, offered
the following testimony on the express representations made by the town
during negotiations relating to the change in the status of captains:
‘‘[The Plaintiff’s Counsel]: You did discuss with the union during the time
the captain’s position went out of the bargaining unit, the fact that it was
on the table and discussed, that the impact of that would be that the bar-
gaining unit could no longer negotiate for the wages or the benefits, or
those type of things for the captains, correct?
‘‘[Cava]: Correct. . . .
‘‘[The Town’s Counsel]: You said that you chose not to address the issue
of a promotional process with the union, correct?
‘‘[Cava]: Correct.
‘‘[The Town’s Counsel]: Did the union indicate to you that it wanted to
discuss the promotional process for captains?
‘‘[Cava]: Well, they initially raised a number of those issues. And I chose
not to discuss it with them. That was my initial position. They were outside
the bargaining unit and I wouldn’t have any discussion with them over it.
Subsequently, I learned that their real interest was they were concerned
that the town may go outside of the department and hire outside people
into the position of captain, so we acquiesced and that was never our intent.
And we acquiesced to the language that’s now in the [agreement] that the
promotions would continue to come from within the department.
‘‘[The Town’s Counsel]: So you never specifically discussed the promo-
tional process even though the union had indicated that it wished to do that?
‘‘[Cava]: Never discussed it.’’
14
There is not, however, universal consensus on this question. See Local
1383 of the International Assn. of Fire Fighters v. Warren, 411 Mich. 642,
Page 12
653 n.2, 311 N.W.2d 702 (1981) (‘‘[p]romotions are such an important topic
of employment relations that even promotions out of a bargaining unit are
mandatory subjects [of bargaining]’’); Detroit Police Officers Assn. v.
Detroit, 61 Mich. App. 487, 492–94, 233 N.W.2d 49 (1975) (explaining and
applying principle subsequently cited by Michigan Supreme Court in Local
1383 of the International Assn. of Fire Fighters); see also Manistee v.
Manistee Fire Fighters Assn., Local 645, IAFF, 174 Mich. App. 118, 121–22,
435 N.W.2d 778 (1989) (‘‘What constitutes a mandatory subject is determined
on a case-by-case basis. [Detroit Police Officers Assn. v. Detroit, supra,
490–91]. The test generally applied is whether the matter has a significant
impact upon wages, hours, or other conditions of employment, or settles
an aspect of the employer-employee relationship.’’ [Internal quotation marks
omitted.]). I would not conclude, as it appears the majority has, that promo-
tions from a position within the bargaining unit to one outside the bargaining
unit would be a nonmandatory subject of bargaining in every case. Indeed,
the majority’s deference to two state board decisions reaching such a conclu-
sion on the basis of the rule that we afford deference to ‘‘time tested’’
agency interpretations is puzzling given that: (1) this rule applies to formal
interpretations of statutory terms; see Curry v. Allan S. Goodman, Inc.,
286 Conn. 390, 404, 944 A.2d 925 (2008) (‘‘[w]e traditionally have accorded
deference to the time-tested interpretation of an agency charged with enforc-
ing the provisions of a statute, provided that the agency’s interpretation has
been formally articulated and applied for an extended period of time, and
that interpretation is reasonable’’ [internal quotation marks omitted]); and
(2) this court expressly has rejected two agency decisions as being suffi-
ciently numerous to satisfy that standard. See Vincent v. New Haven, 285
Conn. 778, 784 n.8, 941 A.2d 932 (2008); Christopher R. v. Commissioner
of Mental Retardation, 277 Conn. 594, 603 n.9, 893 A.2d 431 (2006). To the
extent necessary to resolve the issue in the present case, I would assume,
without deciding, that such promotions are a nonmandatory subject of
bargaining because of the posture of this case, in that the plaintiff concedes
in his brief to this court that paragraph D of article XXV of the agreement
addresses a nonmandatory subject of bargaining in order to pursue his
independent breach of contract action.
15
Although a past practice may no longer be binding if the underlying
conditions on which the practice was based have changed; F. Elkouri & E.
Elkouri, supra, c. 12.6, p. 618; that rule would not apply in this case for two
reasons: (1) the past practice has been made an express term of the contract;
id.; and (2) there is no evidence that the status of the position at issue in
the promotion as within or outside of the bargaining unit was a ‘‘condition’’
on which the practice of rank order promotion was instituted and main-
tained.
16
To the extent that one still could view the agreement as ambiguous
after considering the undisputed past practice, the evidence before the
trial court did not reflect that the parties’ conduct subsequent to the 1999
amendment manifested a clear intent to alter the existing practice. Signifi-
cantly, within months after agreeing to remove the position of captain from
the bargaining unit, promotions were made to fill two police captain open-
ings. Peter Robbins, the police chief who filled those promotions, testified
that he believed that he was required to promote in rank order of the
promotional list, as the police department always had done in the past, and
that no one had told him anything to the contrary. As a result, Robbins
promoted the top two ranked persons on the promotional list. It seems
extraordinary that the appropriate town officials never communicated to
Robbins, the appointing authority, that there had been a change in the
promotional process such that he now had complete discretion to hire
anyone on the promotional list. See Jaasma v. Shell Oil Co., 412 F.3d 501,
508 (3d Cir. 2005) (subsequent conduct relevant to construe ambiguity in
agreement); Sure-Trip, Inc. v. Westinghouse Engineering & Instrumenta-
tion Services Division, 47 F.3d 526, 534 (2d Cir. 1995) (same); Federal Ins.
Co. v. Scarsella Bros., Inc., 931 F.2d 599, 603 (9th Cir. 1991) (same). More-
over, the announcement for those positions contained nothing that would
have indicated to eligible officers that the practice regarding the promotional
procedure had changed. The only manifestation to the contrary was in a
letter from the town’s deputy director of human resources, which apparently
was sent to only those two top ranked candidates who thereafter were
promoted. That letter provided in relevant part: ‘‘Under the [r]ules and
[r]egulations of the Greenwich [p]ay [p]lan, a [d]epartment [h]ead may hire
any candidate certified as eligible by the [h]uman [r]esources [d]epartment.
Your name has been forwarded to the hiring authority for consideration for
Page 13
appointment to this position.’’ Honulik received a similar, generically
phrased letter in 2003. Under such circumstances, if resort to subsequent
conduct was necessary because the agreement was ambiguous after con-
sulting past practice and applicable town documents, a finding by the trial
court that the ambiguity in the agreement should be read as retaining the
status quo would not be clearly erroneous. See Bristol v. Ocean State Job
Lot Stores of Connecticut, Inc., 284 Conn. 1, 7, 931 A.2d 837 (2007) (noting
that, if contract is determined to be ambiguous, finding of intent is factual
question reversed only if clearly erroneous).
17
In light of the urgency to resolve this expedited public interest appeal
as expeditiously as possible, I do not address the remaining arguments
of the parties. See General Statutes § 52-265a (direct appeal on questions
involving public interest authorized in case ‘‘in which delay may work a
substantial injustice’’).
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