190 Conn. 235 (1983) | Cited 12 times | Supreme Court of Connecticut | May 31, 1983

This is an appeal by the West HartfordBoard of Education (school board) from a SuperiorCourt judgment dismissing the school board's appealfrom a decision and orders of the defendant ConnecticutState Board of Labor Relations (labor board). Thelabor board concluded that the school board did notbargain in good faith thereby violating 10-153e (d)of the Teacher Negotiation Act (act);1 General Statutes10-153a through 10-153n; when it failed to provideinformation requested by the defendant West HartfordEducation Association (WHEA), (the exclusive statutorybargaining representative for the bargaining unitcomprised of certified teachers employed by the schoolboard).

[190 Conn. 237]

Elementary school teachers in the West Hartfordschool system (system) are eligible for the position ofcoordinating teacher. The coordinator position ordinarilyentails curriculum development and does not interferewith the coordinator's teaching assignment. TheWest Hartford school administration (administration),(composed of the school board's director of instruction,associate superintendent and superintendent), annuallyselects the coordinating teachers, who receive additionalcompensation for the appointment. The systemhad twenty-seven coordinating teachers during the1977-78 school year. Since student enrollment haddecreased, the school board decided to reduce thenumber to seventeen for the 1978-79 school year.Twenty-two teachers, all of whom had been coordinatorsduring 1977-78, sought reappointment thatyear.

Dr. James Moore, the school board's director of personnelservices, gathered and appraised informationon each applicant to assist in selecting the seventeencoordinators. The evaluative data included (1) performanceratings prepared by each applicant's principal;(2) performance ratings prepared by members ofthe school board's central office staff; (3) results fromthe application of a weighing scale to those performanceratings (intended to reflect the degree of familiaritywith the applicant's performance by the individual submittingthe rating); (4) information obtained from interviewswith the applicants; and (5) the annual evaluationsof the applicants. Moore reported his evaluationof the prospective coordinators to the administrationwhich thereafter, in June, 1978, appointed the successfulapplicants. A few days later, Moore destroyed theinformation compiled during the appraisal process.

On June 30, 1978, Victor Terek, president of theWHEA, filed a grievance on behalf of the five unsuccessful

[190 Conn. 238]

     applicants. The grievance charged that theadministration did not adhere to a contractual clausein the collective bargaining agreement (contract) betweenthe WHEA and the school board. Article 18.6of the contract2 established that length of service andrelative performance are the prime factors to be consideredequally in making staff reductions. Thegrievants claimed that the administration had consideredperformance, but ignored seniority in selectingthe 1978-79 coordinators. A grievance meeting washeld on August 1, 1978; but, the school board deniedthe grievance on the grounds that article 18.6 appliedonly to teachers laid off from their regular duties andthat decisions concerning annual assignments of additionalduty did not entail staff reductions.

The WHEA believed that it needed information aboutthe factors employed in the coordinator selection processin order to evaluate and process the grievance properly.It sought that data, moreover, so that a determinationcould be made whether to bring additionalgrievances under the contract's article 6.1(a) provisionrequiring that the contract be fairly administered. TheWHEA requested the information at the grievancemeeting and again by memo. The school board respondedto the memo stating that the data which hadbeen the basis for the reappointment decisions had beendestroyed pursuant to a teacher-approved policy.3 Itdid forward (1) the blank rating form employed by theprincipals and central office staff; (2) the system of

[190 Conn. 239]

     weighing; and (3) data on age distribution of elementaryschool coordinators. The school board also agreedthat the permanent annual teacher evaluations of theapplicants were obtainable. The WHEA, nonetheless,still sought the performance ratings completed by theprincipals and the school board's central office staffspecifically for Moore's evaluation system. To that end,it filed a complaint with the labor board4 on October5, 1978, alleging that refusal to provide such informationwas a practice prohibited by 10-153e (d) of theact.5

The labor board, charged by statute with the dutyto determine whether a local board of education hasbargained in good faith with the teachers' bargainingrepresentative, issued its decision on November 6, 1979,finding that the school board had violated the act. Itdeclined to consider the school board's contention thatthe WHEA grievance was not meritorious on theground that the contract's grievance-arbitration procedurewas the method to test such an assertion. Thecontrolling issue in the labor board's decision was

[190 Conn. 240]

     whether the information sought by the WHEA wasrelevant to its grievance. The labor board believed thatin order to determine whether the administration consideredperformance and seniority equally the WHEAmust discover the emphasis placed on performance.Since the ratings sought in the complaint would indicatethe consideration given performance, the labor boardfound them to be relevant to the contractual issueraised in the grievance. It further found that the performancedata were therefore necessary so that theWHEA could perform its duty imposed by the act torepresent its bargaining unit members intelligently. Inlight of those findings, the labor board concluded thatthe school board's statutory duty to bargain in goodfaith required it to furnish the information. Accordingly,it ordered the school board (1) to provide the requestedinformation in the best possible manner (includingrecollections by those familiar with the contentsof the destroyed documents); and (2) to cease and desistin the future from destroying documents or otherevidence related to decisions subject to grievance underthe contract (a) during the time within which such agrievance may be filed and/or (b) during the pendencyof the grievance.

The school board filed an appeal in the Superior Courtpursuant to 10-153e (g) of the act seeking to vacatethe labor board's orders. The trial court dismissed theappeal and upheld the labor board's decision in itsentirety. From that judgment the school board hasappealed assigning three errors in the court's conclusion.The school board initially contends that the courterred in upholding the labor board's discovery orderbecause it required disclosure of information irrelevantto the WHEA's grievance. Even assuming arguendothat the requested performance ratings were relevant,the school board claims a second error in the court's

[190 Conn. 241]

     failure to recognize that individual and governmentalrights to privacy prevail here over the union's interestin the ratings. Its final claim is that the orders, ifsustained, constitute an unwarranted burden on theschool board to preserve and disclose all predecisionalmaterial, no matter how remote, ever compiled in aselection process.

The act is essentially patterned on the National LaborRelations Act so that federal judicial interpretationsof the federal act are of great assistance and persuasiveforce in the interpretations of it. West Hartford EducationAssn. v. DeCourcy, Inc. 162 Conn. 566, 578-79,295 A.2d 526 (1972). Since the act is a labor relationsstatute, it is a remedial enactment and as such shouldbe liberally construed to accomplish its objectives. ConnecticutState Board of Labor Relations v. Board ofEducation, 177 Conn. 68, 74, 411 A.2d 28 (1979). "Inthis regard, it is also well established that `courts> shouldaccord great deference to the construction given thestatute by the agency charged with its enforcement.'"Id., quoting Anderson v. Ludgin, 175 Conn. 545, 555400 A.2d 712 (1978). Indeed, courts> have traditionally'granted labor boards a very large degree of discretionwhen making bargaining unit determinations. ConnecticutState Board of Labor Relations v. Board of Education,supra, 74; Success Village Apartments, Inc. v.Local 376, 175 Conn. 165, 397 A.2d 85 (1978).

The school board-employer has the statutory duty tobargain in good faith with the certified representativeof the teachers. General Statutes 10-153a, 10-153e(d). This duty requires an employer to provide relevantinformation that is needed by the representative forthe proper performance of his duties. Detroit EdisonCo. v. NLRB, 440 U.S. 301, 303, 99 S.Ct. 1123, 59L.Ed.2d 333 (1979); NLRB v. Acme Industrial Co.,385 U.S. 432, 435-36, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967).

[190 Conn. 242]

     That obligation extends beyond the period of contractualnegotiations to the union's need for informationwhile administering and policing the contract. NLRBv. Acme Industrial Co., supra, 436; WesternMassachusetts Electric Co. v. NLRB, 589 F.2d 42, 46(1st Cir. 1978). Whether information is relevant to therepresentative's duties during this time period dependsupon the factual circumstances of each case. NLRB v.Truitt Manufacturing Co., 351 U.S. 149, 153-54, 76S.Ct. 753, 100 L.Ed. 1027 (1956).

The school board asserts that the requested ratingsare irrelevant because (1) the grievance is without meritin that it is based on article 18.6 of the contract eventhough no staff reductions have occurred; (2) performancedata is unrelated to a claim charging failureto consider seniority; and (3) even if the ratings wouldhave been relevant to a grievance challenging thefairness of the administration's decision under article6.1(a) of the contract, no such charge was timely filed.

The determination of whether information is relevantis not a decision on the merits of the contractual claimstated in the grievance. NLRB v. Acme Industrial Co.,supra, 437. It is analogous to a discovery examinationwhere the matters in dispute between the parties arenot as well determined as at trial and where courts>therefore follow a more liberal relevancy standard. Id.,437 n. 6. An employer, then, must furnish informationto the union even when it appears that the grievancefiled is without merit provided it is probably relevantto the grievance and would be of use to the union infulfilling its statutory duties. Id., 437-38. Decidingwhether there is a probability that the desired informationis relevant is a function best performed by thelabor board. "[G]reat weight should be given theBoard's determination on [the] issue [of relevancy] asthe Board has access to all the evidence, the determination

[190 Conn. 243]

     is within its particular expertise, and the questionthere is one of fact." (Citations omitted.) San DiegoNewspaper Guild v. NLRB, 548 F.2d 863, 869 (9th Cir.1977). Since the labor board's conclusion on relevancyis a finding of fact,6 it is conclusive if supported bysubstantial evidence. General Statutes 10-153e (g)(2)."`[The] so-called substantial evidence rule is similarto the "sufficiency of evidence" standard applied injudicial review . . . if it affords "a substantial basisof fact from which the fact in issue can be reasonablyinferred. . . . [I]t must be enough to justify, if the trialwere to a jury, a refusal to direct a verdict when theconclusion sought to be drawn from it is one of factfor the jury."'" (Citations omitted.) Madow v. Muzio,176 Conn. 374, 381, 407 A.2d 997 (1978), quotingLawrence v. Kozlowski, 171 Conn. 705, 713,372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2930,53 L.Ed.2d 1066 (1977).

The labor board held that there is a probability thatthe performance ratings are relevant to the WHEAgrievance. Although the grievance charges that senioritywas not justly considered, inherent in that claim isan additional allegation that relative performance wasgiven exaggerated importance or that other factors impermissiblyinfluenced the school board's decision. TheWHEA has data on coordinator age distribution; butthey only become meaningful to its grievance whenjuxtaposed with the performance ratings. The laborboard's conclusion, therefore, is reasonable and issupported by substantial evidence in the record. Thereis no error in its finding that the ratings are relevant.

[190 Conn. 244]

In view of our decision on the issue of relevancy andthe WHEA grievance, there is no need to addresswhether the ratings would be relevant to a potentialgrievance under article 6.1(a) of the contract.

Although a union has the right to relevant information,that right can be subject to countervailing privacyinterests. Detroit Edison Co. v. NLRB, supra, 318-19.Detroit Edison decided that the employer's duty to providerelevant information does not extend to validatedpsychological aptitude tests or to the scores of individualstaking such tests. It concluded that seriousconsiderations of privacy outweighed the union's needfor the information and justified conditioning thedisclosure of the test scores on the examinees' consent.7Id., 319. "The sensitivity of any human being todisclosure of information that may be taken to bear onhis or her basic competence is sufficiently well knownto be an appropriate subject of judicial notice." Id., 318.Traditional performance evaluations are distinguishablefrom psychological aptitude tests in that they measurecurrent knowledge and skills rather than basic competence.If the ratings at issue here are so confined,we find no sound justification to extend the DetroitEdison holding to them. We are not privy to the natureof those ratings, however, because they were nevermade part of the record. Indeed, Detroit Edison wasdecided after the labor board's decision in this case sothe applicants' privacy interests were never addressedthere. The principals and central office staff may haveincluded information bearing upon the basic competenceof the applicants for psychological factors.Accordingly, the labor board erred because its orderwas not limited to exclude information containingpsychological factors from the ratings.

[190 Conn. 245]

The school board's claim that the performanceevaluations are protected from disclosure by the stateFreedom of Information Act; General Statutes 1-19(b); is without merit. It urges that the evaluations areeither a public agency's preliminary drafts or notes orpart of a public employee's personnel file and thereforeare not subject to inspection pursuant to 1-19 (b)(1)and (2)8 of that statute. Section 1-19b (b), however,rebuts the plaintiff's argument: "[n]othing in Sections1-15, 1-18a, 1-19 to 1-19b, inclusive and 1-21 to 1-21k,inclusive, shall be deemed . . . to affect the rights oflitigants, including parties to administrative proceedings,under laws of discovery of this State."

There is error in part, the judgment is set aside, andthe case is remanded for further proceedings in accordancewith this opinion.

In this opinion the other judges concurred.

1. The legislature gave teachers the right to bargain collectivelyand imposed upon school boards the duty to negotiate with therepresentatives of the teachers through the Teacher Negotiation Act. GeneralStatutes 10-153a.

2. Article 18.6 of the contract reads as follows: "Length of servicein the West Hartford school system and relative performance shall be theprime factors to be considered equally in making staff reductions. If suchreductions are necessary, the retention of tenured teachers shall receivepriority consideration." (Emphasis added.)

3. The union had clearly indicated in prior years that the teacherswished that rating forms such as the ones at issue here were not to beretained permanently.

4. The grievance is still pending. Article 6 of the contractcontains a grievance-arbitration procedure whereby any dispute over thecontract's interpretation is resolved through arbitration. The WHEA decidedto refrain from proceeding to arbitration with this grievance until itobtained a ruling on its right to the performance ratings.

5. Section 10-153e (d) is set forth fully below: "As used in this section, sections 10-153a to 10-153c, inclusive, andsection 10-153g, `to negotiate in good faith' is the performance of themutual obligation of the board of education or its representatives or agentsand the organization designated or elected as the exclusive representativefor the appropriate unit to meet at reasonable times, including meetingsappropriately related to the budget-making process, and to participateactively so as to indicate a present intention to reach agreement withrespect to salaries and other conditions of employment, or the negotiationof an agreement, or any question arising thereunder and the execution of awritten contract incorporating any agreement reached if requested by eitherparty, but such obligation shall not compel either party to agree to aproposal or require the making of a concession."

6. There are cases to the contrary holding such a determination tobe a mixed question of law and fact particularly within the scope of thelabor board's expertise. Cf. International Union Auto Workers v. NLRB,455 F.2d 1357, 1364-65 (D.C. App. 1971); Fafnir Bearing Co. v. NLRB,362 F.2d 716, 721 (2d Cir. 1966).

7. All of the examinees in Detroit Edison Co. v. NLRB, 440 U.S. 301,303, 99 S.Ct. 1123, 59 L.Ed.2d 333 (1979), were grievants. The

8. Section 1-19 (b)(1) and (2) states: "Nothing in sections 1-15,1-18a, 1-19 to 1-19b, inclusive, and 1-21 to 1-21k, inclusive, shall beconstrued to require disclosure of (1) preliminary drafts or notes providedthe public agency has determined that the public interest in withholdingsuch documents clearly outweighs the public interest in disclosure; (2)personnel or medical files and similar files the disclosure of which wouldconstitute an invasion of personal privacy . . ."

Back to top