BOARD OF EDUCATION v. STATE BOARD OF LABOR RELATIONS

14010

217 Conn. 110 (1991) | Cited 39 times | Supreme Court of Connecticut | January 8, 1991

This appeal arises out of an arbitrator'saward ordering the plaintiff, the Thomaston board ofeducation (board), to promote a teacher to the position ofdepartment head of the Thomaston high school Englishdepartment. The board, instead of challenging the awardin court, eliminated the department head position forthe admitted purpose of preventing the teacher fromholding the position. The teacher and the union

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     filed an unfair labor practice charge with the statelabor relations board (labor board), which ordered theboard of education to comply with the arbitrator'saward and restore the position. The board of educationthereupon appealed to the Superior Court, challengingboth the decision and the order. The court vacated theorder of the labor board, holding that the eliminationof a teaching position was in the sole discretion ofthe board of education and thus that the labor boardwas without authority to order the board to restore theposition. This appeal ensued.

I

The labor board's factual findings are unchallenged.Fred Schipul taught English at Thomaston high schoolfor eighteen years. In December, 1985, he applied forthe position of English department chairperson, whichwas then vacant. In January, 1986, the board of educationawarded the position to a less senior teacher. Schipulfiled a grievance based on the provision in the teachers'collective bargaining agreement1 that required

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     the board to promote the most senior teacher "where twoor more applicants are equal in qualification."2 OnAugust 10, 1986, the arbitrator upheld the grievanceand ordered the board of education to promote Schipul,retroactively to January, 1986.

Meanwhile, before the arbitration award was made, theboard of education voted to eliminate all departmenthead positions from its budget. Two weeks after theaward was issued, however, the board restored alldepartment head positions - all, that is, except theposition of English department head. As a result of theaward, the board of education paid Schipul what hewould have received as department head until the positionwas eliminated, but never allowed him to performthe job.

Schipul's bargaining representative, the ThomastonEducation Association, duly filed an unfair labor practicecharge with the labor board, claiming that the boardof education's actions interfered with Schipul'sstatutory right to file a grievance. The board ofeducation admitted before the labor board that its solereason for not restoring the position of Englishdepartment head was to prevent Schipul from holdingthat position, for which it honestly believed he wasunqualified.

II

Although the trial court's memorandum of decision didnot address whether the school board's conduct constitutedan unfair labor practice, that issue has been presentedto us on appeal by both parties. The board ofeducation maintains that because the arbitrator'sdecision was "not concerned with the future eliminationof the position but only with Schipul's entitlement tothe position in January, 1986, when it indeed did

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     exist," (emphasis in original) the elimination of theposition in August, 1986, could not logically be arepudiation of the arbitrator's decision that Schipulwas entitled to the position in January, 1986, and that,because the establishment of teaching positions isdiscretionary, elimination of the position could not bean unfair labor practice. The labor board contends thatthe board of education's action, which effectively nullifiedthe arbitrator's award and flouted the contractuallymandated grievance arbitration process, constituted arefusal to participate in good faith in mediation andarbitration, an unfair labor practice under GeneralStatutes 10-153e (b)(4) and (5) of the TeachersNegotiation Act (TNA).3 We conclude that the boardof education's arguments are without merit, and agreewith the labor board.4

A

The labor board first claims that the board ofeducation's action was an unfair labor practice specificallyprohibited by General Statutes 10-153e (b)(5), "refusingto participate in good faith in mediation or

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     arbitration." Without discussing that particular subsectionof the TNA, the board of education emphasizes theabsence in the TNA of language in the MunicipalEmployees Relations Act (MERA), General Statutes 7-407et seq., specifically listing failure to comply with anarbitration award as an unfair labor practice,5 andargues that this absence shows that the legislature didnot intend failure to comply with an arbitration awardto constitute an unfair labor practice under the TNA.

Before considering the implications of the legislature'sdecision not to include in the TNA a provision suchas 7-470 (a)(6) of MERA, we will consider thelanguage of the TNA as it is written. Section 10-153e(b)(5) makes "refusing to participate in good faith inmediation or arbitration" an unfair labor practice. Theword "arbitration" is a general term that may refereither to arbitration of individual claims that anemployer has breached a collective bargaining agreement(grievance arbitration) or to arbitration of broaderdisputes concerning the conditions of employment ingeneral, arising either during contract negotiations orin some cases during the term of an existing contract (interest

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     arbitration). Section 10-153e (b)(5) does not define theterm further to indicate the type or types of arbitrationto which it refers.

We construe a statute as a whole and read itssubsections concurrently in order to reach a reasonableoverall interpretation. Ganim v. Roberts, 204 Conn. 760,763, 529 A.2d 194 (1987). Where the same words areused in a statute two or more times, they willordinarily be given the same meaning. State ex rel.Hyde v. Dowe, 129 Conn. 266, 271, 28 A.2d 12 (1942). Inthe TNA, 10-153d6 and 10-153f7 use the terms

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     "mediation" and "arbitration" to refer to a specificset of procedures a school board and teachers' unionmust pursue if negotiations with respect to the conditionsof employment of teachers in general; General Statutes10-153f (b), (e);

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     reach an impasse.8 Thus, in 10-153d and 10-153f"arbitration" means interest arbitration, not arbitrationof individual grievances.

If we read 10-153e and 10-153f concurrently, we mustconclude that 10-153e (b)(5) addresses only the contractmediation and interest arbitration procedures mandated by10-153f, not the arbitration of an individual employee'sgrievances. The alternative interpretation, that10-153e (b)(5) makes refusal to arbitrate any individualgrievance an unfair labor practice, would impose a dutyto arbitrate grievances upon a board of education even ifits collective bargaining agreement included no suchrequirement. Had the legislature intended such a result,we believe it would have included in the TNA the plainlanguage it used in 7-470 (a)(6) of the MERA. The MERA,unlike the TNA, guarantees the right to mediation or arbitrationof individual grievances. See General Statutes 7-472.9

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

B

In addition to finding that the board of education'sconduct was an unfair labor practice under 10-153e(b)(5), the labor board also concluded that the boardof education's conduct was an unfair labor practiceunder 10-153e (b)(4) as a "refus[al] to negotiate ingood faith with the employees' bargaining gent." Ourconclusion that repudiation of a grievance arbitrationaward is not an unfair labor practice under 10-153e(b)(5) does not prevent the labor board from determiningthat the board's action in this case constitutedan unfair labor practice under 10-153e (b)(4).

In accordance with widely held principles ofadministrative and labor law, we traditionally have accorded

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     deference to the labor board's interpretation of theacts it is charged with enforcing. Lieberman v. StateBoard of Labor Relations, 216 Conn. 253, 263, 579 A.2d 505(1990); Hartford Principals' & Supervisors' Assn. v.Shedd, 202 Conn. 492, 503, 522 A.2d 264 (1987); StateBoard of Labor Relations v. Board of Education,177 Conn. 68, 74, 411 A.2d 28 (1979). "[R]eviewing courts>should uphold reasonable and defensible constructions ofan agency's enabling Act . . . .," Bureau of Alcohol,Tobacco & Firearms v. Federal Labor Relations Authority,464 U.S. 89, 97, 98 n. 8, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983);N.L.R.B. v. Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651,54 L.Ed.2d 586 (1978). The agency's practicalconstruction of the statute, if reasonable, is "`"highevidence of what the law is."'" Cos Cob Volunteer FireCo. No. 1, Inc. v. Freedom of Information Commission,212 Conn. 100, 106, 561 A.2d 429 (1989). In judgingwhether the labor board's interpretation wasreasonable, we may look to federal labor law forguidance in construing our labor relations acts. SuccessVillage Apartments, Inc. v. Local 376, 175 Conn. 165,168, 397 A.2d 85 (1978) (construing state LaborRelations Act); West Hartford Education Assn., Inc. v.DeCourcy, 162 Conn. 566, 579, 295 A.2d 526 (1972)(construing TNA). In light of federal labor law precedent,we consider the labor board's interpretation ofthe act both reasonable and persuasive.

The "duty to bargain in good faith" is a term of artin labor law. It is an ongoing duty that continuesafter initial contract negotiations are over. N.L.R.B. v.Acme Industrial Co., 385 U.S. 432, 436, 87 S.Ct. 565,17 L.Ed.2d 495 (1967); Fafnir Bearing Co. v. N.L.R.B.,362 F.2d 716, 717 (2d Cir. 1966); Hartford Principals'& Supervisors' Assn. v. Shedd, supra, 503; Board ofEducation v. State Board of Labor Relations,190 Conn. 235, 241-42, 460 A.2d 1255 (1983). Itincludes the duty to negotiate "any question arising"

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     under an existing contract. General Statutes 10-153e(d).10 If the contract requires arbitration ofunresolved grievances, the duty to bargain in goodfaith includes the duty to participate in good faith inthe grievance arbitration process, for "disputeresolution under the grievance-arbitration process isas much a part of collective bargaining as the act ofnegotiating the contract." United TechnologiesCorporation, 268 N.L.R.B. 557, 559 (1971); see alsoUnited Steelworkers v. Warrior & Gulf Navigation Co.,363 U.S. 574, 581, 80 S.Ct. 1347, 4 L.Ed.2d 1409(1960).

"Going through the motions" does not fulfill the dutyto bargain in good faith. Thus, failing to provide theother party with relevant information during the collectivebargaining process or at other times; Board ofEducation v. State Board of Labor Relations, supra, 241;failing to make contract proposals in goodfaith; New Canaan v. State Board of Labor Relations,160 Conn. 285, 292, 278 A.2d 761 (1971); andfailing to bargain before making unilateral changes interms and conditions of employment after a contract hasbeen signed; Fibreboard Corporation v. N.L.R.B.379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233(1964); West Hartford Education Assn., Inc. v.DeCourcy, supra, 596; have all been described as

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     breaches of the duty to bargain in good faith. Thesetypes of conduct have one thing in common: they areattempts to evade the statutorily mandated collectivebargaining process. See New Canaan v. State Board ofLabor Relations, supra.

The board of education's conduct fits the samedescription. The board and the teachers associationbargained to include in their contract a provisionregulating promotions and another provision providingfor grievance arbitration of employment decisions,including promotions. The board of education's attemptto circumvent these provisions makes the collectivebargaining process a hollow exercise.

The board of education's attempt to "evade" thearbitrator's decision is thus no different from arepudiation of the arbitration process itself. Sincerepudiation of the collective bargaining agreement as awhole constitutes ipso facto a breach of the duty tobargain in good faith; see Taylor Bus Services, Inc.,284 N.L.R.B. 530, 550 (1987); N.L.R.B. v. Hyde,339 F.2d 568 (9th Cir. 1964);11 an employer who repudiatesthe grievance process as a whole by refusing to process

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     grievances violates the duty to bargain in good faith,as the National Labor Relations Board has consistentlyheld. See, e.g., Conoco, Inc., 287 N.L.R.B. 548 (1987);Manchester Health Center, Inc., 287 N.L.R.B. 328(1987); Wald Mfg. Co., 176 N.L.R.B. 839(1969). Repudiation of an arbitration award may alsoviolate the duty to bargain in good faith; Meat &Allied Food Workers Local No. 248 v. Packerland PackingCo., 411 F. Sup. 1280 (E.D. Wis. 1976); O. P. Held,Inc., 286 N.L.R.B. 676 (1987); B. N. Beard Co., 231N.L.R.B. 191 (1977); when the repudiation constitutes arejection of the grievance process itself. See GeneralChemical Corporation, 290 N.L.R.B. No. 13, 131 L.R.R.M.(BNA) 1103 (July 29, 1988).12

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In this case, the board deliberately flouted thegrievance arbitration provision of the contract betweenthe board and the Teachers' Association. Instead ofseeking to vacate or modify the award pursuant to GeneralStatutes 52-418,13 52-41914 and 52-420,15

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     it decided to do indirectly what it could not dodirectly: keep Fred Schipul out of the position thatthe arbitrator had determined he was qualified for andentitled to hold.

The board argues that its sincere belief that Schipulwas unqualified somehow releases it from its duty tocomply in good faith with the grievance arbitrationprocess. It is not exceptional for an employer chargedwith violating a promotion provision in a collectivebargaining agreement to believe sincerely that thegrievant is less qualified than the candidate promoted.The point is that the board of education agreed to letan arbitrator decide whether the grievant was the mostqualified candidate for the position in question. Oncethe board agreed to subject promotions to the grievanceprocess, it was bound by the arbitrator's decision.East Haven v. AFSCME, Council 15, Local 1662, 212 Conn. 368,372, 561 A.2d 1388 (1989); Milford Employees Assn.v. Milford, 179 Conn. 678, 684, 427 A.2d 859 (1980);Board of Education v. Waterbury Teachers Assn.,168 Conn. 54, 62, 357 A.2d 466 (1975). "`There aresituations in which it is not enough that an employer isconvinced he is right,' N.L.R.B. v. M & M Oldsmobile,Inc., [377 F.2d 712, 716 (2d Cir. 1967)], and this isone of them." General Teamsters Local 162 v. N.L.R.B.,568 F.2d 665, 668 (9th Cir. 1978).

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The board further contends that its obligations underGeneral Statutes 10-22016 and 10-22217 exempt itfrom the rule that an arbitrator's unchallenged decision isfinal and binding. Under these statutes, the board isrequired to "implement the educational interests of thestate . . . as in its judgment will best serve theinterests of the school district" and is authorized tospend the money the town appropriates for education "in[its] discretion." The board argues that these statutesrequire it to eliminate a teaching position rather thanallow a teacher the board feels is unqualified to holdthat position.

The board's argument reaches too far. If 10-220compels the board of education to follow its own judgmentat all times, 10-220 could just as easily compelthe board of education to perform acts specificallyprohibited by the statutes, including discrimination onthe basis of race, sex or union membership, so long asthe board genuinely believed those acts were in thebest interests of the school district. "`"Inconstruing a statute, common sense must be used,and the courts> will assume that the legislatureintended to accomplish a reasonable and rationalresult."`" Ford Motor Credit Co. v. B.W. Beardsley,Inc., 208 Conn. 13, 20, 542 A.2d 1159 (1988)."A statute . . . should not be interpreted

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     to thwart its purpose." Builders Service Corporation v.Planning & Zoning Commission, 208 Conn. 267, 276,545 A.2d 530 (1988). The legislature did not intend thegeneral mandate of 10-220 to swallow up the collectivebargaining process mandated by the TNA.

Finally, the board of education argues that it cannotbe an unfair labor practice for it to perform an actthat lies within its exclusive discretion, namely, theelimination of a teaching position. We have held,however, that a public employer's discretion to hireand fire18 may not be used as a "subterfuge tocircumvent the provisions of the act." Winchester v.State Board of Labor Relations, 175 Conn. 349, 369,402 A.2d 332 (1978); L. Suzio Construction Co. v.State Board of Labor Relations, 148 Conn. 135, 144,168 A.2d 553 (1961); Imperial Laundry, Inc. v. StateBoard of Labor Relations, 142 Conn. 457, 467,115 A.2d 439 (1955).

The facts in Winchester are especially similar to thefacts now before us. In that case, the Winchester firedepartment eliminated its only salaried position afterArmand Sartirana, who held the position, joined aunion. Although we held in Winchester that the protectionsof MERA did not cover a one-person bargainingunit, so that the employer had no duty to conductcontract negotiations with the union; Winchester v.State Board of Labor Relations, supra, 361-62; wewent on to hold that the employee's rights under MERAhad nevertheless been violated when the position waseliminated, even though the department claimed that theposition was eliminated for economic reasons. Id., 371.While Winchester dealt with anti-union animus inviolation of General Statutes 7-470 (a)(1) (parallelto General Statutes 10-153e [b] [1]), which is notalleged in the present case, and did not address thescope of

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     the discretion granted to school boards, it presentedessentially the same issue we confront here: may a publicemployer do indirectly what it is forbidden to dodirectly, that is, may it use its discretionary powerto eliminate a position in order to bring about aprohibited result? In Winchester and in the presentcase, the answer is "no."

III

Once the labor board had correctly determined thatthe board of education had committed an unfair laborpractice, it was empowered to order a remedy that wouldbest effectuate the purposes of the act. GeneralStatutes 10-153e (e).19 Our labor board, like theNational Labor Relations Board, has broad remedialpowers. Board of Education v. State Board of LaborRelations, supra, 241. Its enumerated powersinclude the power to order reinstatement and back payfor unjustly terminated employees, including the powerto order reinstatement of all employees who have beensubject to an unfair labor practice. General Statutes31-107 (c).20 A public employer subject to such an

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     order would implicitly have to find the necessaryfunds to comply with a back pay order. In this case, ofcourse, the labor board's order requires the board ofeducation to restore and fund a position it had votedto eliminate. The board of education argues thatcreation and elimination of teaching positions lieswithin its exclusive authority and that the labor boardexceeded its authority by requiring the board torecreate a defunct teaching position. "The short answeris that the Board had jurisdiction to find an unfairlabor practice and to remedy it." N.L.R.B. v. M & MOldsmobile, Inc., supra, 716.

While as a general proposition it is true that creationor elimination of teaching positions is within the"sound discretion" of the board of education; Baston v.Ricci, 174 Conn. 522, 528, 391 A.2d 161 (1978); WestHartford Education Assn., Inc. v. DeCourcy, supra, 586;we have also held that the TNA divests the board ofeducation of some of its discretionary power under

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     General Statutes 10-220 and 10-222. West HartfordEducation Assn., Inc. v. DeCourcy, supra. A board ofeducation may not use its discretionary power toeliminate teaching positions in order to bypassthe grievance arbitration process. Consequently,the labor board has the power to order the boardof education to restore a teaching positioneliminated for such an improper purpose. Theboard of education retains the right to eliminatethe position if it has a legitimate reason for doingso, or to terminate or demote the teacher if hisperformance is objectively inadequate.

The judgment is reversed and the case isremanded with direction to render judgmentdismissing the board of education's appeal fromthe decision and order of the labor board.

In this opinion the other justices concurred.

1. The contractual provision in effect from 1985 through1987 provided, in pertinent part: "Article 19 - Promotions "19.1 Positions as used in this section mean anyposition which pays a salary differential and/orinvolves additional or higher level of responsibility."19.2 Vacancies of position which are caused by death,retirement, discharge, resignation, or by the creationof a new position shall be filled pursuant to thefollowing procedures:"19.2.1 The existence of vacancies of position shallbe adequately publicized by a notice in every school asfar in advance of the date of filling such vacancy aspossible. At all times, consideration will be given topresent qualified staff members who have evinced aninterest in the vacated position."19.2.3 Teachers who desire to apply for suchvacancies of position shall file their applications inwriting with the Superintendent."19.2.4 Such vacant positions shall be filled on thebasis of qualification for the vacant position,provided, however, that where two or more applicantsare equal in qualification, the applicant with thegreatest amount of seniority in the system shall begiven the preference. "19.2.5 . . . ."

2. The arbitrator found that Schipul met the onlyqualifications that were posted.

3. General Statutes 10-153e (b) provides: "The local or regional board of education or itsrepresentatives or agents are prohibited from: (1)interfering, restraining or coercing certifiedprofessional employees in the exercise of the rightsguaranteed in sections 10-153a to 10-153n; (2)dominating or interfering with the formation, existenceor administration of any employees' bargaining agent orrepresentative; (3) discharging or' otherwisediscriminating against or for any certifiedprofessional employee because such employee has signedor filed any affidavit, petition or complaint undersaid sections; (4) refusing to negotiate in good faithwith the employees' bargaining agent or representativewhich has been designated or elected as the exclusiverepresentative in an appropriate unit in accordance withthe provisions of said sections; or (5) refusing toparticipate in good faith in mediation or arbitration.A prohibited practice committed by a board of education,its representatives or agents shall not be a defenseto an illegal strike or concerted refusal to renderservices."

4. According to the board of education's interpretationof the arbitrator's award, the board did comply with theletter of the award. Whether or not the board compliedwith the letter of the award, however, its conductnot sanctioned by the award may still constitutean unfair labor practice.

5. General Statutes 7-470 (a) provides: "Municipalemployers or their representatives or agents areprohibited from: (1) Interfering, restraining orcoercing employees in the exercise of the rightsguaranteed in section 7-468; (2) dominating orinterfering with the formation, existence or administrationof any employee organization; (3) discharging orotherwise discriminating against an employee becausehe has signed or filed any affidavit, petition orcomplaint or given any information or testimony undersections 7-467 to 7-477, inclusive; (4) refusing tobargain collectively in good faith with an employeeorganization which has been designated in accordancewith the provisions of said sections as the exclusiverepresentative of employees in an appropriate unit; (5)refusing to discuss grievances with the representativesof an employee organization designated as the exclusiverepresentative in an appropriate unit in accordancewith the provisions of said sections; (6) refusing tocomply with a grievance settlement, or arbitrationsettlement, or a valid award or decision of anarbitration panel or arbitrator rendered in accordancewith the provisions of section 7-472."

6. General Statutes 10-153d provides in pertinentpart:"(b) The local or regional board of education andthe organization designated or elected as the exclusiverepresentative for the appropriate unit, throughdesignated officials or their representatives, shallhave the duty to negotiate with respect to salaries,hours and other conditions of employment about whicheither party wishes to negotiate. . . . Any local boardof education shall file forthwith a signed copy of anycontract with the town clerk and with the commissionerof education. Any regional board of education shallfile forthwith a signed copy of any such contract withthe town clerk in each member town and with thecommissioner of education. Upon receipt of a signedcopy of such contract the clerk of such town shall givepublic notice of such filing. The terms of suchcontract shall be binding on the legislative body ofthe local or regional school district, unless such bodyrejects such contract at a regular or special meetingcalled and convened for such purpose within thirty daysof the filing of the contract. . . ."(c) If the legislative body rejects the contractpursuant to the provisions of subsection (b) of thissection, the parties shall commence the arbitrationprocess, in accordance with the provisions ofsubsection (c) of section 10-153f . . . provided, ifrequested by either party, the parties shall mediatethe contract dispute prior to the initial arbitrationhearing . . . "

7. General Statutes 10-153f provides, inter alia:"MEDIATION AND ARBITRATION OF DISAGREEMENTS . . . (b)If any local or regional board of education cannotagree with the exclusive representatives of a teachers'or administrators' unit after negotiation concerningthe terms and conditions of employment applicable tothe employees in such unit, either party may submit theissues to the commissioner for mediation. On the onehundred tenth day prior to the budget submission date,the commissioner shall order the parties to reporttheir settlement. If, on such one hundred tenth day,the parties have not reached agreement and have failedto initiate mediation, the commissioner shall order theparties to notify the commissioner of the name of amutually selected mediator and to commence mediation.The commissioner may order the parties to appear beforesaid commissioner during the mediation period. In eithercase, the parties shall meet with a mediator mutuallyselected by them, provided such parties shall inform thecommissioner of the name of such mediator, or with thecommissioner or the commissioner's agents or a mediatordesignated by said commissioner. "(c)(1) On the fourth day next following the end ofthe mediation session or on the eighty-fifth day priorto the budget submission date, whichever is sooner, thecommissioner shall order the parties to report theirsettlement of the dispute or, if there is nosettlement, to notify the commissioner of the name ofthe single arbitrator mutually selected by them orshall notify the commissioner of the name of thearbitrator selected by each of them. . . . (4) Afterhearing all the issues, the arbitrators or the singlearbitrator shall, within twenty days, render a decisionin writing, signed by a majority of the arbitrators orthe single arbitrator, which states in detail thenature of the decision and the disposition of theissues by the arbitrators or the singlearbitrator. . . . The decision of the arbitrators orthe single arbitrator shall be final and binding uponthe parties to the dispute. . . . The parties shallsubmit to the arbitrators or the single arbitratortheir respective positions on each individual issue indispute between them in the form of a last bestoffer . . . . The arbitrators or the single arbitratorshall resolve separately each individual disputedissued by accepting the last best offer thereon ofeither of the parties, and shall incorporate in adecision each such accepted individual last bestoffer . . . . Notwithstanding the provisions ofsubsection (b) of section 10-153d . . . the decision ofthe arbitrators or the single arbitrator shall not besubject to rejection by the legislative body of thelocal or regional school district or by referendum. . . . "(e) The local or regional board of education and theorganization designated or elected as the exclusiverepresentative for the appropriate unit, throughdesignated officials or their representatives, whichare parties to a collective bargaining agreement, andwhich, for the purpose of negotiating with respect tosalaries, hours and other conditions of employment,mutually agree to negotiate during the term of theagreement or are ordered to negotiate said agreement bya body of competent jurisdiction, shall notify thecommissioner of the date upon which negotiationscommenced within five days after said commencement. Ifthe parties are unable to reach settlement twenty-fivedays after the date of the commencement of negotiations,the parties shall notify the commissioner of thename of a mutually selected mediator and shall conductmediation pursuant to the provisions of subsection(b) of this section, notwithstanding the mediation timeschedule of subsection (b) of this section. On the fourth daynext following the end of the mediation session or onthe fiftieth day following the date of the commencementof negotiations, whichever is sooner, if no settlementis reached the parties shall commence arbitrationpursuant to the provisions of subsections (a), (c)and (d) of this section, notwithstanding the referenceto the budget submission date."

8. In 1987, in response to our decision in HartfordPrincipals' & Supervisors Assn. v. Shedd, 202 Conn. 492,522 A.2d 264 (1987), the legislature amended10-153f so that it now requires mediation and bindingarbitration of midterm contract disputes as well asinitial contract negotiation disputes. See remarks ofSen. Kevin B. Sullivan, Conn. Joint Standing Committee Hearings,Education, Pt. 3, 1987 Sess., p. 976, and 30 S. Proc.,Pt. 7, 1987 Sess., p. 2613; remarks of Rep. NaomiCohen, 30 H.R. Proc., Pt. 15, 1987 Sess., p. 5316.

9. "[General Statutes] Sec. 7-472. MEDIATION BY STATEBOARD OF MEDIATION AND ARBITRATION. (a) The services ofthe state board of mediation and arbitration shall beavailable to municipal employers and employeeorganizations for purposes of mediation of grievancesor impasses in contract or contract reopenernegotiations and for purposes of arbitration ofdisputes over the interpretation or application of theterms of a written agreement and, if such service isrequested by both the municipal employer and theemployee organization except as provided in section7-473c or subsections (h) to (k), inclusive, of section7-474, for purposes of arbitration of impasses in contractor contract reopener negotiations. Whenever any impasse incontract or contract reopener negotiations is submittedto arbitration, the decision of the arbitration panelor arbitrator shall be rendered no later than twentydays prior to the final date by which time thebudget-appropriating authority of the municipality isrequired to adopt its budget or forty days after the closeof the arbitration hearing, whichever is later, providedthat in no case except when such arbitration service isrequested or mandated after the final budget adoptiondate shall such decision be rendered later than fivedays prior to such final budget adoption date. Nothingcontained herein shall prevent any agreement from beingentered into in accordance with the provisions ofsubsection (e) of section 7-474. "(b) Nothing in this section is intended to preventthe use of other arbitration tribunals in theresolution of disputes over the interpretation orapplication of the terms of written agreements betweenmunicipal employers and employee organizations."

10. General Statutes 10-153e (d) provides: "As usedin this section, sections 10-153a to 10-153c, inclusive,and section 10-153g, `to negotiate in good faith' isthe performance of the mutual obligation of the boardof education or its representatives or agents and theorganization designated or elected as the exclusiverepresentative for the appropriate unit to meet atreasonable times, including meetings appropriatelyrelated to the budget-making process, and to participateactively so as to indicate a present intention to reachagreement with respect to salaries, hours and otherconditions of employment, or the negotiation of anagreement, or any question arising thereunder and theexecution of a written contract incorporating anyagreement reached if requested by either party, butsuch obligation shall not compel either party to agreeto a proposal or require the making of a concession."

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

12. The National Labor Relations Board does notgenerally view a single instance of repudiation, in andof itself, as an unfair labor practice. Molders Local164 (Pacific Steel), 270 N.L.R.B. 1105, 1108 (1984),enf'd, 765 F.2d 858 (9th Cir. 1985); Danny's Foods,Inc., 260 N.L.R.B. 1445, 1448 (1982); Malrite ofWisconsin, Inc., 198 N.L.R.B. 241 (1972), enf'd subnom. Local Union No. 715, International Brotherhoodof Electrical Workers, AFL-CIO v. N.L.R.B., 494 F.2d 1136(D.C. Cir. 1974); just as a single breach ofcontract is not, in and of itself, an unfair laborpractice; Molders Local 164 (Pacific Steel), supra, 1108;Papercraft Corporation, 212 N.L.R.B. 240, 241 n. 3(1974). In Malrite, the board dismissed the charge thatan employer's repudiation of an arbitrator's decisionconstituted an unfair labor practice, relying on thetheory of deferral first enunciated in SpielbergMfg. Co., 112 N.L.R.B. 1080 (1955); andemphasized that the union could seek enforcement of thedecision in a court of law. See also J & H Rainwear,273 N.L.R.B. 497 (1984). Subsequently, however, theboard has ruled that where the events underlying theunfair labor practice charge occurred after thearbitrator's award, deferral was not appropriate.Litton Systems, 283 N.L.R.B. 973, 976 (1987). Where, ashere, the event underlying the unfair labor practicecharge - elimination of the position - occurred after theaward, and the employer's justification for its actionessentially repudiates the authority of an arbitratorto decide any promotional grievance, the reasoning ofthe National Labor Relations Board in Malrite does notapply. As discussed in footnote 4, supra, we need notdecide whether the board of education's action was arepudiation of the letter of the award.

13. "Sec. 52-418. VACATING AWARD. (a) Upon theapplication of any party to an arbitration, thesuperior court for the judicial district in which oneof the parties resides, or, in a controversy concerningland, for the judicial district in which the land issituated or, when the court is not in session, anyjudge thereof shall make an order vacating the award ifit finds any of the following defects: (1) If the awardhas been procured by corruption, fraud or undue means;(2) if there has been evident partiality or corruptionon the part of any arbitrator; (3) if the arbitratorshave been guilty of misconduct in refusing to postponethe hearing upon sufficient cause shown or in refusingto hear evidence pertinent and material to the controversyor of any other action by which the rights of anyparty have been prejudiced; or (4) if the arbitratorshave exceeded their powers or so imperfectlyexecuted them that a mutual, final and definiteaward upon the subject matter submitted was not made. "(b) If an award is vacated and the time within whichthe award is required to be rendered has not expired,the court or judge may direct a rehearing by thearbitrators. "(c) Any party filing an application pursuant tosubsection (a) of this section concerning anarbitration award issued by the state board of mediationand arbitration shall notify said board and theattorney general, in writing, of such filing withinfive days of the date of filing."

14. "Sec. 52-419. MODIFICATION OR CORRECTION OF AWARD.(a) Upon the application of any party to an arbitration,the superior court for the judicial district in which oneof the parties resides or, in a controversy concerningland, for the judicial district in which the land issituated, or, when the court is not in' session, anyjudge thereof, shall make an order modifying orcorrecting the award if it finds any of the followingdefects: (1) If there has been an evident materialmiscalculation of figures or an evident materialmistake in the description of any person, thing orproperty referred to in the award; (2) if thearbitrators have awarded upon a matter not submitted tothem unless it was a matter not affecting the merits ofthe decision upon the matters submitted; or (3) if theaward is imperfect in matter of form not affecting themerits of the controversy. "(b) The order shall modify and correct the award, soas to effect the intent thereof and promote justicebetween the parties."

15. "Sec. 52-420. MOTION TO CONFIRM, VACATE OR MODIFYAWARD.(a) Any application under section 52-417, 52-418 or52-419 shall be heard in the manner provided by lawfor hearing written motions at a short calendarsession, or otherwise as the court or judge maydirect, in order to dispose of the case with the leastpossible delay."(b) No motion to vacate, modify or correct an awardmay be made after thirty days from the notice of theaward to the party to the arbitration who makes themotion. "(c) For the purpose of a motion to vacate, modify orcorrect an award, such an order staying any proceedingsof the adverse party to enforce the award shall be madeas may be deemed necessary. Upon the granting of anorder confirming, modifying or correcting an award, ajudgment or decree shall be entered in conformitytherewith by the court or judge granting the order."

16. General Statutes 10-220 provides in pertinentpart: "DUTIES OF BOARDS OF EDUCATION. (a) Each local orregional board of education shall maintain good publicelementary and secondary schools, implement theeducational interests of the state as defined insection 10-4a and provide such other educationalactivities as in its judgment will best serve theinterests of the school district . . . shall employ anddismiss the teachers of the schools of such districtsubject to the provisions of sections 10-151 and10-158a . . . and shall perform all acts required of it bythe town or necessary to carry into effect the powersand duties imposed by law."

17. General Statutes 10-222 provides in pertinentpart: APPROPRIATIONS AND BUDGET. FINANCIAL INFORMATIONSYSTEM. (a) . . . . The money appropriated by anymunicipality for the maintenance of public schoolsshall be expended by and in the discretion of the boardof education."

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

19. General Statutes 10-153e (e) provides inpertinent part: "If, upon all the testimony, said boarddetermines that the party complained of has engaged inor is engaging in any prohibited practice, it shallstate its finding of fact and shall issue and cause tobe served on such party an order requiring it to ceaseand desist from such prohibited practice, and shalltake such further affirmative action as will effectuatethe policies of subsections (b) to (d), inclusive, ofthis section."

20. General Statutes 31-107 (c) provides asfollows: "A stenographic or electronic record of thetestimony shall be taken at all hearings of the boardand a transcript thereof shall be filed with the boardupon its request. The board shall have the power toorder the taking of further testimony and for furtherargument. If, upon all the testimony, the boarddetermines that the employer has engaged in or isengaging in any unfair labor practice, it shall stateits finding of fact and shall issue and cause to beserved on such employer an order requiring him to ceaseand desist from such unfair labor practice, and shalltake such further affirmative action as will effectuatethe policies of this chapter, including, but notlimited to: (1) Withdrawal of recognition from andrefraining from bargaining collectively with anycompany union, established, maintained or assisted byany action defined in this chapter as an unfair labor practice;(2) awarding of back pay; (3) reinstatement with or withoutback pay of any employee discriminated against inviolation of section 31-105 or by maintenance of apreferential list from which such employee shall bereturned to work; (4) reinstatement with or withoutback pay of all employees whose work has ceased orwhose return to work has been delayed or prevented asthe result of unfair labor practice in respect to anyemployee or employees or the maintenance of apreferential list from which such employees shall bereturned to work. Such order may further require suchperson to make reports from time to time showing theextent to which the order has been complied with. Ifupon all the testimony the board is of the opinion thatthe person or persons named in the complaint have notengaged in or are not engaging in any such unfair laborpractice, then the board shall make its finding of factand she issue an order dismissing the complaint. Theboard shall not require as a condition of taking actionor issuing any order under this chapter that employeeson strike or engaged in any other lawful concertedactivity shall discontinue such strike or suchactivity. Until a transcript of the record in a casehas been filed in the superior

This appeal arises out of an arbitrator'saward ordering the plaintiff, the Thomaston board ofeducation (board), to promote a teacher to the position ofdepartment head of the Thomaston high school Englishdepartment. The board, instead of challenging the awardin court, eliminated the department head position forthe admitted purpose of preventing the teacher fromholding the position. The teacher and the union

[217 Conn. 112]

     filed an unfair labor practice charge with the statelabor relations board (labor board), which ordered theboard of education to comply with the arbitrator'saward and restore the position. The board of educationthereupon appealed to the Superior Court, challengingboth the decision and the order. The court vacated theorder of the labor board, holding that the eliminationof a teaching position was in the sole discretion ofthe board of education and thus that the labor boardwas without authority to order the board to restore theposition. This appeal ensued.

I

The labor board's factual findings are unchallenged.Fred Schipul taught English at Thomaston high schoolfor eighteen years. In December, 1985, he applied forthe position of English department chairperson, whichwas then vacant. In January, 1986, the board of educationawarded the position to a less senior teacher. Schipulfiled a grievance based on the provision in the teachers'collective bargaining agreement1 that required

[217 Conn. 113]

     the board to promote the most senior teacher "where twoor more applicants are equal in qualification."2 OnAugust 10, 1986, the arbitrator upheld the grievanceand ordered the board of education to promote Schipul,retroactively to January, 1986.

Meanwhile, before the arbitration award was made, theboard of education voted to eliminate all departmenthead positions from its budget. Two weeks after theaward was issued, however, the board restored alldepartment head positions - all, that is, except theposition of English department head. As a result of theaward, the board of education paid Schipul what hewould have received as department head until the positionwas eliminated, but never allowed him to performthe job.

Schipul's bargaining representative, the ThomastonEducation Association, duly filed an unfair labor practicecharge with the labor board, claiming that the boardof education's actions interfered with Schipul'sstatutory right to file a grievance. The board ofeducation admitted before the labor board that its solereason for not restoring the position of Englishdepartment head was to prevent Schipul from holdingthat position, for which it honestly believed he wasunqualified.

II

Although the trial court's memorandum of decision didnot address whether the school board's conduct constitutedan unfair labor practice, that issue has been presentedto us on appeal by both parties. The board ofeducation maintains that because the arbitrator'sdecision was "not concerned with the future eliminationof the position but only with Schipul's entitlement tothe position in January, 1986, when it indeed did

[217 Conn. 114]

     exist," (emphasis in original) the elimination of theposition in August, 1986, could not logically be arepudiation of the arbitrator's decision that Schipulwas entitled to the position in January, 1986, and that,because the establishment of teaching positions isdiscretionary, elimination of the position could not bean unfair labor practice. The labor board contends thatthe board of education's action, which effectively nullifiedthe arbitrator's award and flouted the contractuallymandated grievance arbitration process, constituted arefusal to participate in good faith in mediation andarbitration, an unfair labor practice under GeneralStatutes 10-153e (b)(4) and (5) of the TeachersNegotiation Act (TNA).3 We conclude that the boardof education's arguments are without merit, and agreewith the labor board.4

A

The labor board first claims that the board ofeducation's action was an unfair labor practice specificallyprohibited by General Statutes 10-153e (b)(5), "refusingto participate in good faith in mediation or

[217 Conn. 115]

     arbitration." Without discussing that particular subsectionof the TNA, the board of education emphasizes theabsence in the TNA of language in the MunicipalEmployees Relations Act (MERA), General Statutes 7-407et seq., specifically listing failure to comply with anarbitration award as an unfair labor practice,5 andargues that this absence shows that the legislature didnot intend failure to comply with an arbitration awardto constitute an unfair labor practice under the TNA.

Before considering the implications of the legislature'sdecision not to include in the TNA a provision suchas 7-470 (a)(6) of MERA, we will consider thelanguage of the TNA as it is written. Section 10-153e(b)(5) makes "refusing to participate in good faith inmediation or arbitration" an unfair labor practice. Theword "arbitration" is a general term that may refereither to arbitration of individual claims that anemployer has breached a collective bargaining agreement(grievance arbitration) or to arbitration of broaderdisputes concerning the conditions of employment ingeneral, arising either during contract negotiations orin some cases during the term of an existing contract (interest

[217 Conn. 116]

     arbitration). Section 10-153e (b)(5) does not define theterm further to indicate the type or types of arbitrationto which it refers.

We construe a statute as a whole and read itssubsections concurrently in order to reach a reasonableoverall interpretation. Ganim v. Roberts, 204 Conn. 760,763, 529 A.2d 194 (1987). Where the same words areused in a statute two or more times, they willordinarily be given the same meaning. State ex rel.Hyde v. Dowe, 129 Conn. 266, 271, 28 A.2d 12 (1942). Inthe TNA, 10-153d6 and 10-153f7 use the terms

[217 Conn. 117]

     "mediation" and "arbitration" to refer to a specificset of procedures a school board and teachers' unionmust pursue if negotiations with respect to the conditionsof employment of teachers in general; General Statutes10-153f (b), (e);

[217 Conn. 118]

     reach an impasse.8 Thus, in 10-153d and 10-153f"arbitration" means interest arbitration, not arbitrationof individual grievances.

If we read 10-153e and 10-153f concurrently, we mustconclude that 10-153e (b)(5) addresses only the contractmediation and interest arbitration procedures mandated by10-153f, not the arbitration of an individual employee'sgrievances. The alternative interpretation, that10-153e (b)(5) makes refusal to arbitrate any individualgrievance an unfair labor practice, would impose a dutyto arbitrate grievances upon a board of education even ifits collective bargaining agreement included no suchrequirement. Had the legislature intended such a result,we believe it would have included in the TNA the plainlanguage it used in 7-470 (a)(6) of the MERA. The MERA,unlike the TNA, guarantees the right to mediation or arbitrationof individual grievances. See General Statutes 7-472.9

[217 Conn. 119]

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

B

In addition to finding that the board of education'sconduct was an unfair labor practice under 10-153e(b)(5), the labor board also concluded that the boardof education's conduct was an unfair labor practiceunder 10-153e (b)(4) as a "refus[al] to negotiate ingood faith with the employees' bargaining gent." Ourconclusion that repudiation of a grievance arbitrationaward is not an unfair labor practice under 10-153e(b)(5) does not prevent the labor board from determiningthat the board's action in this case constitutedan unfair labor practice under 10-153e (b)(4).

In accordance with widely held principles ofadministrative and labor law, we traditionally have accorded

[217 Conn. 120]

     deference to the labor board's interpretation of theacts it is charged with enforcing. Lieberman v. StateBoard of Labor Relations, 216 Conn. 253, 263, 579 A.2d 505(1990); Hartford Principals' & Supervisors' Assn. v.Shedd, 202 Conn. 492, 503, 522 A.2d 264 (1987); StateBoard of Labor Relations v. Board of Education,177 Conn. 68, 74, 411 A.2d 28 (1979). "[R]eviewing courts>should uphold reasonable and defensible constructions ofan agency's enabling Act . . . .," Bureau of Alcohol,Tobacco & Firearms v. Federal Labor Relations Authority,464 U.S. 89, 97, 98 n. 8, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983);N.L.R.B. v. Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651,54 L.Ed.2d 586 (1978). The agency's practicalconstruction of the statute, if reasonable, is "`"highevidence of what the law is."'" Cos Cob Volunteer FireCo. No. 1, Inc. v. Freedom of Information Commission,212 Conn. 100, 106, 561 A.2d 429 (1989). In judgingwhether the labor board's interpretation wasreasonable, we may look to federal labor law forguidance in construing our labor relations acts. SuccessVillage Apartments, Inc. v. Local 376, 175 Conn. 165,168, 397 A.2d 85 (1978) (construing state LaborRelations Act); West Hartford Education Assn., Inc. v.DeCourcy, 162 Conn. 566, 579, 295 A.2d 526 (1972)(construing TNA). In light of federal labor law precedent,we consider the labor board's interpretation ofthe act both reasonable and persuasive.

The "duty to bargain in good faith" is a term of artin labor law. It is an ongoing duty that continuesafter initial contract negotiations are over. N.L.R.B. v.Acme Industrial Co., 385 U.S. 432, 436, 87 S.Ct. 565,17 L.Ed.2d 495 (1967); Fafnir Bearing Co. v. N.L.R.B.,362 F.2d 716, 717 (2d Cir. 1966); Hartford Principals'& Supervisors' Assn. v. Shedd, supra, 503; Board ofEducation v. State Board of Labor Relations,190 Conn. 235, 241-42, 460 A.2d 1255 (1983). Itincludes the duty to negotiate "any question arising"

[217 Conn. 121]

     under an existing contract. General Statutes 10-153e(d).10 If the contract requires arbitration ofunresolved grievances, the duty to bargain in goodfaith includes the duty to participate in good faith inthe grievance arbitration process, for "disputeresolution under the grievance-arbitration process isas much a part of collective bargaining as the act ofnegotiating the contract." United TechnologiesCorporation, 268 N.L.R.B. 557, 559 (1971); see alsoUnited Steelworkers v. Warrior & Gulf Navigation Co.,363 U.S. 574, 581, 80 S.Ct. 1347, 4 L.Ed.2d 1409(1960).

"Going through the motions" does not fulfill the dutyto bargain in good faith. Thus, failing to provide theother party with relevant information during the collectivebargaining process or at other times; Board ofEducation v. State Board of Labor Relations, supra, 241;failing to make contract proposals in goodfaith; New Canaan v. State Board of Labor Relations,160 Conn. 285, 292, 278 A.2d 761 (1971); andfailing to bargain before making unilateral changes interms and conditions of employment after a contract hasbeen signed; Fibreboard Corporation v. N.L.R.B.379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233(1964); West Hartford Education Assn., Inc. v.DeCourcy, supra, 596; have all been described as

[217 Conn. 122]

     breaches of the duty to bargain in good faith. Thesetypes of conduct have one thing in common: they areattempts to evade the statutorily mandated collectivebargaining process. See New Canaan v. State Board ofLabor Relations, supra.

The board of education's conduct fits the samedescription. The board and the teachers associationbargained to include in their contract a provisionregulating promotions and another provision providingfor grievance arbitration of employment decisions,including promotions. The board of education's attemptto circumvent these provisions makes the collectivebargaining process a hollow exercise.

The board of education's attempt to "evade" thearbitrator's decision is thus no different from arepudiation of the arbitration process itself. Sincerepudiation of the collective bargaining agreement as awhole constitutes ipso facto a breach of the duty tobargain in good faith; see Taylor Bus Services, Inc.,284 N.L.R.B. 530, 550 (1987); N.L.R.B. v. Hyde,339 F.2d 568 (9th Cir. 1964);11 an employer who repudiatesthe grievance process as a whole by refusing to process

[217 Conn. 123]

     grievances violates the duty to bargain in good faith,as the National Labor Relations Board has consistentlyheld. See, e.g., Conoco, Inc., 287 N.L.R.B. 548 (1987);Manchester Health Center, Inc., 287 N.L.R.B. 328(1987); Wald Mfg. Co., 176 N.L.R.B. 839(1969). Repudiation of an arbitration award may alsoviolate the duty to bargain in good faith; Meat &Allied Food Workers Local No. 248 v. Packerland PackingCo., 411 F. Sup. 1280 (E.D. Wis. 1976); O. P. Held,Inc., 286 N.L.R.B. 676 (1987); B. N. Beard Co., 231N.L.R.B. 191 (1977); when the repudiation constitutes arejection of the grievance process itself. See GeneralChemical Corporation, 290 N.L.R.B. No. 13, 131 L.R.R.M.(BNA) 1103 (July 29, 1988).12

[217 Conn. 124]

In this case, the board deliberately flouted thegrievance arbitration provision of the contract betweenthe board and the Teachers' Association. Instead ofseeking to vacate or modify the award pursuant to GeneralStatutes 52-418,13 52-41914 and 52-420,15

[217 Conn. 125]

     it decided to do indirectly what it could not dodirectly: keep Fred Schipul out of the position thatthe arbitrator had determined he was qualified for andentitled to hold.

The board argues that its sincere belief that Schipulwas unqualified somehow releases it from its duty tocomply in good faith with the grievance arbitrationprocess. It is not exceptional for an employer chargedwith violating a promotion provision in a collectivebargaining agreement to believe sincerely that thegrievant is less qualified than the candidate promoted.The point is that the board of education agreed to letan arbitrator decide whether the grievant was the mostqualified candidate for the position in question. Oncethe board agreed to subject promotions to the grievanceprocess, it was bound by the arbitrator's decision.East Haven v. AFSCME, Council 15, Local 1662, 212 Conn. 368,372, 561 A.2d 1388 (1989); Milford Employees Assn.v. Milford, 179 Conn. 678, 684, 427 A.2d 859 (1980);Board of Education v. Waterbury Teachers Assn.,168 Conn. 54, 62, 357 A.2d 466 (1975). "`There aresituations in which it is not enough that an employer isconvinced he is right,' N.L.R.B. v. M & M Oldsmobile,Inc., [377 F.2d 712, 716 (2d Cir. 1967)], and this isone of them." General Teamsters Local 162 v. N.L.R.B.,568 F.2d 665, 668 (9th Cir. 1978).

[217 Conn. 126]

The board further contends that its obligations underGeneral Statutes 10-22016 and 10-22217 exempt itfrom the rule that an arbitrator's unchallenged decision isfinal and binding. Under these statutes, the board isrequired to "implement the educational interests of thestate . . . as in its judgment will best serve theinterests of the school district" and is authorized tospend the money the town appropriates for education "in[its] discretion." The board argues that these statutesrequire it to eliminate a teaching position rather thanallow a teacher the board feels is unqualified to holdthat position.

The board's argument reaches too far. If 10-220compels the board of education to follow its own judgmentat all times, 10-220 could just as easily compelthe board of education to perform acts specificallyprohibited by the statutes, including discrimination onthe basis of race, sex or union membership, so long asthe board genuinely believed those acts were in thebest interests of the school district. "`"Inconstruing a statute, common sense must be used,and the courts> will assume that the legislatureintended to accomplish a reasonable and rationalresult."`" Ford Motor Credit Co. v. B.W. Beardsley,Inc., 208 Conn. 13, 20, 542 A.2d 1159 (1988)."A statute . . . should not be interpreted

[217 Conn. 127]

     to thwart its purpose." Builders Service Corporation v.Planning & Zoning Commission, 208 Conn. 267, 276,545 A.2d 530 (1988). The legislature did not intend thegeneral mandate of 10-220 to swallow up the collectivebargaining process mandated by the TNA.

Finally, the board of education argues that it cannotbe an unfair labor practice for it to perform an actthat lies within its exclusive discretion, namely, theelimination of a teaching position. We have held,however, that a public employer's discretion to hireand fire18 may not be used as a "subterfuge tocircumvent the provisions of the act." Winchester v.State Board of Labor Relations, 175 Conn. 349, 369,402 A.2d 332 (1978); L. Suzio Construction Co. v.State Board of Labor Relations, 148 Conn. 135, 144,168 A.2d 553 (1961); Imperial Laundry, Inc. v. StateBoard of Labor Relations, 142 Conn. 457, 467,115 A.2d 439 (1955).

The facts in Winchester are especially similar to thefacts now before us. In that case, the Winchester firedepartment eliminated its only salaried position afterArmand Sartirana, who held the position, joined aunion. Although we held in Winchester that the protectionsof MERA did not cover a one-person bargainingunit, so that the employer had no duty to conductcontract negotiations with the union; Winchester v.State Board of Labor Relations, supra, 361-62; wewent on to hold that the employee's rights under MERAhad nevertheless been violated when the position waseliminated, even though the department claimed that theposition was eliminated for economic reasons. Id., 371.While Winchester dealt with anti-union animus inviolation of General Statutes 7-470 (a)(1) (parallelto General Statutes 10-153e [b] [1]), which is notalleged in the present case, and did not address thescope of

[217 Conn. 128]

     the discretion granted to school boards, it presentedessentially the same issue we confront here: may a publicemployer do indirectly what it is forbidden to dodirectly, that is, may it use its discretionary powerto eliminate a position in order to bring about aprohibited result? In Winchester and in the presentcase, the answer is "no."

III

Once the labor board had correctly determined thatthe board of education had committed an unfair laborpractice, it was empowered to order a remedy that wouldbest effectuate the purposes of the act. GeneralStatutes 10-153e (e).19 Our labor board, like theNational Labor Relations Board, has broad remedialpowers. Board of Education v. State Board of LaborRelations, supra, 241. Its enumerated powersinclude the power to order reinstatement and back payfor unjustly terminated employees, including the powerto order reinstatement of all employees who have beensubject to an unfair labor practice. General Statutes31-107 (c).20 A public employer subject to such an

[217 Conn. 129]

     order would implicitly have to find the necessaryfunds to comply with a back pay order. In this case, ofcourse, the labor board's order requires the board ofeducation to restore and fund a position it had votedto eliminate. The board of education argues thatcreation and elimination of teaching positions lieswithin its exclusive authority and that the labor boardexceeded its authority by requiring the board torecreate a defunct teaching position. "The short answeris that the Board had jurisdiction to find an unfairlabor practice and to remedy it." N.L.R.B. v. M & MOldsmobile, Inc., supra, 716.

While as a general proposition it is true that creationor elimination of teaching positions is within the"sound discretion" of the board of education; Baston v.Ricci, 174 Conn. 522, 528, 391 A.2d 161 (1978); WestHartford Education Assn., Inc. v. DeCourcy, supra, 586;we have also held that the TNA divests the board ofeducation of some of its discretionary power under

[217 Conn. 130]

     General Statutes 10-220 and 10-222. West HartfordEducation Assn., Inc. v. DeCourcy, supra. A board ofeducation may not use its discretionary power toeliminate teaching positions in order to bypassthe grievance arbitration process. Consequently,the labor board has the power to order the boardof education to restore a teaching positioneliminated for such an improper purpose. Theboard of education retains the right to eliminatethe position if it has a legitimate reason for doingso, or to terminate or demote the teacher if hisperformance is objectively inadequate.

The judgment is reversed and the case isremanded with direction to render judgmentdismissing the board of education's appeal fromthe decision and order of the labor board.

In this opinion the other justices concurred.

1. The contractual provision in effect from 1985 through1987 provided, in pertinent part: "Article 19 - Promotions "19.1 Positions as used in this section mean anyposition which pays a salary differential and/orinvolves additional or higher level of responsibility."19.2 Vacancies of position which are caused by death,retirement, discharge, resignation, or by the creationof a new position shall be filled pursuant to thefollowing procedures:"19.2.1 The existence of vacancies of position shallbe adequately publicized by a notice in every school asfar in advance of the date of filling such vacancy aspossible. At all times, consideration will be given topresent qualified staff members who have evinced aninterest in the vacated position."19.2.3 Teachers who desire to apply for suchvacancies of position shall file their applications inwriting with the Superintendent."19.2.4 Such vacant positions shall be filled on thebasis of qualification for the vacant position,provided, however, that where two or more applicantsare equal in qualification, the applicant with thegreatest amount of seniority in the system shall begiven the preference. "19.2.5 . . . ."

2. The arbitrator found that Schipul met the onlyqualifications that were posted.

3. General Statutes 10-153e (b) provides: "The local or regional board of education or itsrepresentatives or agents are prohibited from: (1)interfering, restraining or coercing certifiedprofessional employees in the exercise of the rightsguaranteed in sections 10-153a to 10-153n; (2)dominating or interfering with the formation, existenceor administration of any employees' bargaining agent orrepresentative; (3) discharging or' otherwisediscriminating against or for any certifiedprofessional employee because such employee has signedor filed any affidavit, petition or complaint undersaid sections; (4) refusing to negotiate in good faithwith the employees' bargaining agent or representativewhich has been designated or elected as the exclusiverepresentative in an appropriate unit in accordance withthe provisions of said sections; or (5) refusing toparticipate in good faith in mediation or arbitration.A prohibited practice committed by a board of education,its representatives or agents shall not be a defenseto an illegal strike or concerted refusal to renderservices."

4. According to the board of education's interpretationof the arbitrator's award, the board did comply with theletter of the award. Whether or not the board compliedwith the letter of the award, however, its conductnot sanctioned by the award may still constitutean unfair labor practice.

5. General Statutes 7-470 (a) provides: "Municipalemployers or their representatives or agents areprohibited from: (1) Interfering, restraining orcoercing employees in the exercise of the rightsguaranteed in section 7-468; (2) dominating orinterfering with the formation, existence or administrationof any employee organization; (3) discharging orotherwise discriminating against an employee becausehe has signed or filed any affidavit, petition orcomplaint or given any information or testimony undersections 7-467 to 7-477, inclusive; (4) refusing tobargain collectively in good faith with an employeeorganization which has been designated in accordancewith the provisions of said sections as the exclusiverepresentative of employees in an appropriate unit; (5)refusing to discuss grievances with the representativesof an employee organization designated as the exclusiverepresentative in an appropriate unit in accordancewith the provisions of said sections; (6) refusing tocomply with a grievance settlement, or arbitrationsettlement, or a valid award or decision of anarbitration panel or arbitrator rendered in accordancewith the provisions of section 7-472."

6. General Statutes 10-153d provides in pertinentpart:"(b) The local or regional board of education andthe organization designated or elected as the exclusiverepresentative for the appropriate unit, throughdesignated officials or their representatives, shallhave the duty to negotiate with respect to salaries,hours and other conditions of employment about whicheither party wishes to negotiate. . . . Any local boardof education shall file forthwith a signed copy of anycontract with the town clerk and with the commissionerof education. Any regional board of education shallfile forthwith a signed copy of any such contract withthe town clerk in each member town and with thecommissioner of education. Upon receipt of a signedcopy of such contract the clerk of such town shall givepublic notice of such filing. The terms of suchcontract shall be binding on the legislative body ofthe local or regional school district, unless such bodyrejects such contract at a regular or special meetingcalled and convened for such purpose within thirty daysof the filing of the contract. . . ."(c) If the legislative body rejects the contractpursuant to the provisions of subsection (b) of thissection, the parties shall commence the arbitrationprocess, in accordance with the provisions ofsubsection (c) of section 10-153f . . . provided, ifrequested by either party, the parties shall mediatethe contract dispute prior to the initial arbitrationhearing . . . "

7. General Statutes 10-153f provides, inter alia:"MEDIATION AND ARBITRATION OF DISAGREEMENTS . . . (b)If any local or regional board of education cannotagree with the exclusive representatives of a teachers'or administrators' unit after negotiation concerningthe terms and conditions of employment applicable tothe employees in such unit, either party may submit theissues to the commissioner for mediation. On the onehundred tenth day prior to the budget submission date,the commissioner shall order the parties to reporttheir settlement. If, on such one hundred tenth day,the parties have not reached agreement and have failedto initiate mediation, the commissioner shall order theparties to notify the commissioner of the name of amutually selected mediator and to commence mediation.The commissioner may order the parties to appear beforesaid commissioner during the mediation period. In eithercase, the parties shall meet with a mediator mutuallyselected by them, provided such parties shall inform thecommissioner of the name of such mediator, or with thecommissioner or the commissioner's agents or a mediatordesignated by said commissioner. "(c)(1) On the fourth day next following the end ofthe mediation session or on the eighty-fifth day priorto the budget submission date, whichever is sooner, thecommissioner shall order the parties to report theirsettlement of the dispute or, if there is nosettlement, to notify the commissioner of the name ofthe single arbitrator mutually selected by them orshall notify the commissioner of the name of thearbitrator selected by each of them. . . . (4) Afterhearing all the issues, the arbitrators or the singlearbitrator shall, within twenty days, render a decisionin writing, signed by a majority of the arbitrators orthe single arbitrator, which states in detail thenature of the decision and the disposition of theissues by the arbitrators or the singlearbitrator. . . . The decision of the arbitrators orthe single arbitrator shall be final and binding uponthe parties to the dispute. . . . The parties shallsubmit to the arbitrators or the single arbitratortheir respective positions on each individual issue indispute between them in the form of a last bestoffer . . . . The arbitrators or the single arbitratorshall resolve separately each individual disputedissued by accepting the last best offer thereon ofeither of the parties, and shall incorporate in adecision each such accepted individual last bestoffer . . . . Notwithstanding the provisions ofsubsection (b) of section 10-153d . . . the decision ofthe arbitrators or the single arbitrator shall not besubject to rejection by the legislative body of thelocal or regional school district or by referendum. . . . "(e) The local or regional board of education and theorganization designated or elected as the exclusiverepresentative for the appropriate unit, throughdesignated officials or their representatives, whichare parties to a collective bargaining agreement, andwhich, for the purpose of negotiating with respect tosalaries, hours and other conditions of employment,mutually agree to negotiate during the term of theagreement or are ordered to negotiate said agreement bya body of competent jurisdiction, shall notify thecommissioner of the date upon which negotiationscommenced within five days after said commencement. Ifthe parties are unable to reach settlement twenty-fivedays after the date of the commencement of negotiations,the parties shall notify the commissioner of thename of a mutually selected mediator and shall conductmediation pursuant to the provisions of subsection(b) of this section, notwithstanding the mediation timeschedule of subsection (b) of this section. On the fourth daynext following the end of the mediation session or onthe fiftieth day following the date of the commencementof negotiations, whichever is sooner, if no settlementis reached the parties shall commence arbitrationpursuant to the provisions of subsections (a), (c)and (d) of this section, notwithstanding the referenceto the budget submission date."

8. In 1987, in response to our decision in HartfordPrincipals' & Supervisors Assn. v. Shedd, 202 Conn. 492,522 A.2d 264 (1987), the legislature amended10-153f so that it now requires mediation and bindingarbitration of midterm contract disputes as well asinitial contract negotiation disputes. See remarks ofSen. Kevin B. Sullivan, Conn. Joint Standing Committee Hearings,Education, Pt. 3, 1987 Sess., p. 976, and 30 S. Proc.,Pt. 7, 1987 Sess., p. 2613; remarks of Rep. NaomiCohen, 30 H.R. Proc., Pt. 15, 1987 Sess., p. 5316.

9. "[General Statutes] Sec. 7-472. MEDIATION BY STATEBOARD OF MEDIATION AND ARBITRATION. (a) The services ofthe state board of mediation and arbitration shall beavailable to municipal employers and employeeorganizations for purposes of mediation of grievancesor impasses in contract or contract reopenernegotiations and for purposes of arbitration ofdisputes over the interpretation or application of theterms of a written agreement and, if such service isrequested by both the municipal employer and theemployee organization except as provided in section7-473c or subsections (h) to (k), inclusive, of section7-474, for purposes of arbitration of impasses in contractor contract reopener negotiations. Whenever any impasse incontract or contract reopener negotiations is submittedto arbitration, the decision of the arbitration panelor arbitrator shall be rendered no later than twentydays prior to the final date by which time thebudget-appropriating authority of the municipality isrequired to adopt its budget or forty days after the closeof the arbitration hearing, whichever is later, providedthat in no case except when such arbitration service isrequested or mandated after the final budget adoptiondate shall such decision be rendered later than fivedays prior to such final budget adoption date. Nothingcontained herein shall prevent any agreement from beingentered into in accordance with the provisions ofsubsection (e) of section 7-474. "(b) Nothing in this section is intended to preventthe use of other arbitration tribunals in theresolution of disputes over the interpretation orapplication of the terms of written agreements betweenmunicipal employers and employee organizations."

10. General Statutes 10-153e (d) provides: "As usedin this section, sections 10-153a to 10-153c, inclusive,and section 10-153g, `to negotiate in good faith' isthe performance of the mutual obligation of the boardof education or its representatives or agents and theorganization designated or elected as the exclusiverepresentative for the appropriate unit to meet atreasonable times, including meetings appropriatelyrelated to the budget-making process, and to participateactively so as to indicate a present intention to reachagreement with respect to salaries, hours and otherconditions of employment, or the negotiation of anagreement, or any question arising thereunder and theexecution of a written contract incorporating anyagreement reached if requested by either party, butsuch obligation shall not compel either party to agreeto a proposal or require the making of a concession."

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

12. The National Labor Relations Board does notgenerally view a single instance of repudiation, in andof itself, as an unfair labor practice. Molders Local164 (Pacific Steel), 270 N.L.R.B. 1105, 1108 (1984),enf'd, 765 F.2d 858 (9th Cir. 1985); Danny's Foods,Inc., 260 N.L.R.B. 1445, 1448 (1982); Malrite ofWisconsin, Inc., 198 N.L.R.B. 241 (1972), enf'd subnom. Local Union No. 715, International Brotherhoodof Electrical Workers, AFL-CIO v. N.L.R.B., 494 F.2d 1136(D.C. Cir. 1974); just as a single breach ofcontract is not, in and of itself, an unfair laborpractice; Molders Local 164 (Pacific Steel), supra, 1108;Papercraft Corporation, 212 N.L.R.B. 240, 241 n. 3(1974). In Malrite, the board dismissed the charge thatan employer's repudiation of an arbitrator's decisionconstituted an unfair labor practice, relying on thetheory of deferral first enunciated in SpielbergMfg. Co., 112 N.L.R.B. 1080 (1955); andemphasized that the union could seek enforcement of thedecision in a court of law. See also J & H Rainwear,273 N.L.R.B. 497 (1984). Subsequently, however, theboard has ruled that where the events underlying theunfair labor practice charge occurred after thearbitrator's award, deferral was not appropriate.Litton Systems, 283 N.L.R.B. 973, 976 (1987). Where, ashere, the event underlying the unfair labor practicecharge - elimination of the position - occurred after theaward, and the employer's justification for its actionessentially repudiates the authority of an arbitratorto decide any promotional grievance, the reasoning ofthe National Labor Relations Board in Malrite does notapply. As discussed in footnote 4, supra, we need notdecide whether the board of education's action was arepudiation of the letter of the award.

13. "Sec. 52-418. VACATING AWARD. (a) Upon theapplication of any party to an arbitration, thesuperior court for the judicial district in which oneof the parties resides, or, in a controversy concerningland, for the judicial district in which the land issituated or, when the court is not in session, anyjudge thereof shall make an order vacating the award ifit finds any of the following defects: (1) If the awardhas been procured by corruption, fraud or undue means;(2) if there has been evident partiality or corruptionon the part of any arbitrator; (3) if the arbitratorshave been guilty of misconduct in refusing to postponethe hearing upon sufficient cause shown or in refusingto hear evidence pertinent and material to the controversyor of any other action by which the rights of anyparty have been prejudiced; or (4) if the arbitratorshave exceeded their powers or so imperfectlyexecuted them that a mutual, final and definiteaward upon the subject matter submitted was not made. "(b) If an award is vacated and the time within whichthe award is required to be rendered has not expired,the court or judge may direct a rehearing by thearbitrators. "(c) Any party filing an application pursuant tosubsection (a) of this section concerning anarbitration award issued by the state board of mediationand arbitration shall notify said board and theattorney general, in writing, of such filing withinfive days of the date of filing."

14. "Sec. 52-419. MODIFICATION OR CORRECTION OF AWARD.(a) Upon the application of any party to an arbitration,the superior court for the judicial district in which oneof the parties resides or, in a controversy concerningland, for the judicial district in which the land issituated, or, when the court is not in' session, anyjudge thereof, shall make an order modifying orcorrecting the award if it finds any of the followingdefects: (1) If there has been an evident materialmiscalculation of figures or an evident materialmistake in the description of any person, thing orproperty referred to in the award; (2) if thearbitrators have awarded upon a matter not submitted tothem unless it was a matter not affecting the merits ofthe decision upon the matters submitted; or (3) if theaward is imperfect in matter of form not affecting themerits of the controversy. "(b) The order shall modify and correct the award, soas to effect the intent thereof and promote justicebetween the parties."

15. "Sec. 52-420. MOTION TO CONFIRM, VACATE OR MODIFYAWARD.(a) Any application under section 52-417, 52-418 or52-419 shall be heard in the manner provided by lawfor hearing written motions at a short calendarsession, or otherwise as the court or judge maydirect, in order to dispose of the case with the leastpossible delay."(b) No motion to vacate, modify or correct an awardmay be made after thirty days from the notice of theaward to the party to the arbitration who makes themotion. "(c) For the purpose of a motion to vacate, modify orcorrect an award, such an order staying any proceedingsof the adverse party to enforce the award shall be madeas may be deemed necessary. Upon the granting of anorder confirming, modifying or correcting an award, ajudgment or decree shall be entered in conformitytherewith by the court or judge granting the order."

16. General Statutes 10-220 provides in pertinentpart: "DUTIES OF BOARDS OF EDUCATION. (a) Each local orregional board of education shall maintain good publicelementary and secondary schools, implement theeducational interests of the state as defined insection 10-4a and provide such other educationalactivities as in its judgment will best serve theinterests of the school district . . . shall employ anddismiss the teachers of the schools of such districtsubject to the provisions of sections 10-151 and10-158a . . . and shall perform all acts required of it bythe town or necessary to carry into effect the powersand duties imposed by law."

17. General Statutes 10-222 provides in pertinentpart: APPROPRIATIONS AND BUDGET. FINANCIAL INFORMATIONSYSTEM. (a) . . . . The money appropriated by anymunicipality for the maintenance of public schoolsshall be expended by and in the discretion of the boardof education."

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

19. General Statutes 10-153e (e) provides inpertinent part: "If, upon all the testimony, said boarddetermines that the party complained of has engaged inor is engaging in any prohibited practice, it shallstate its finding of fact and shall issue and cause tobe served on such party an order requiring it to ceaseand desist from such prohibited practice, and shalltake such further affirmative action as will effectuatethe policies of subsections (b) to (d), inclusive, ofthis section."

20. General Statutes 31-107 (c) provides asfollows: "A stenographic or electronic record of thetestimony shall be taken at all hearings of the boardand a transcript thereof shall be filed with the boardupon its request. The board shall have the power toorder the taking of further testimony and for furtherargument. If, upon all the testimony, the boarddetermines that the employer has engaged in or isengaging in any unfair labor practice, it shall stateits finding of fact and shall issue and cause to beserved on such employer an order requiring him to ceaseand desist from such unfair labor practice, and shalltake such further affirmative action as will effectuatethe policies of this chapter, including, but notlimited to: (1) Withdrawal of recognition from andrefraining from bargaining collectively with anycompany union, established, maintained or assisted byany action defined in this chapter as an unfair labor practice;(2) awarding of back pay; (3) reinstatement with or withoutback pay of any employee discriminated against inviolation of section 31-105 or by maintenance of apreferential list from which such employee shall bereturned to work; (4) reinstatement with or withoutback pay of all employees whose work has ceased orwhose return to work has been delayed or prevented asthe result of unfair labor practice in respect to anyemployee or employees or the maintenance of apreferential list from which such employees shall bereturned to work. Such order may further require suchperson to make reports from time to time showing theextent to which the order has been complied with. Ifupon all the testimony the board is of the opinion thatthe person or persons named in the complaint have notengaged in or are not engaging in any such unfair laborpractice, then the board shall make its finding of factand she issue an order dismissing the complaint. Theboard shall not require as a condition of taking actionor issuing any order under this chapter that employeeson strike or engaged in any other lawful concertedactivity shall discontinue such strike or suchactivity. Until a transcript of the record in a casehas been filed in the superior

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