232 Conn. 57 (1995) | Cited 14 times | Supreme Court of Connecticut | January 31, 1995

The plaintiff, Greater Bridgeport TransitDistrict (transit district), appealed to the SuperiorCourt from a decision of the defendant state board oflabor relations (board) in which the board ruled in favorof the defendant Amalgamated Transit Union, Local1336 (union). That court affirmed the board's decision,and the plaintiff appealed from that judgment to theAppellate Court. We transferred the appeal to thiscourt pursuant to Practice Book § 4023 and GeneralStatutes § 51-199 (c).

The underlying dispute between the transit districtand the union involved the transit district's revised

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     attendance policy for its employees.1 The revised policywas instituted unilaterally by the transit district onJanuary 1, 1987. At that time, a collective bargainingagreement, entered into between the transit districtand the union in 1979, was in effect.

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On January 12, 1987, the union filed a complaint withthe board pursuant to the State Labor Relations Act;General Statutes § 31-101 et seq.; alleging that thetransit district had implemented the revised attendancepolicy without negotiating with the union in violationof General Statutes §§ 31-105 (6), 7-469 and 7-470 (4).2Additionally, the union filed a demand for arbitrationwith the American Arbitration Association on February13, 1987. On the union's motion, the arbitrationwas held in abeyance pending the outcome of the disputebefore the board.

The union also filed a complaint with the NationalLabor Relations Board (NLRB) alleging a violation of§ 8 of the National Labor Relations Act (NLRA),29 U.S.C. § 158. The NLRB concluded that the transit districtwas a political subdivision of the state of Connecticutand, therefore, was exempt from its jurisdictionpursuant to § 2(2) of the NLRA. Accordingly, theNLRB dismissed the complaint.

On September 15, 1987, the union filed a second complaintwith the board, pursuant to General Statutes(Rev. to 1987) § 7-471 (4)3 of the Municipal Employees

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     Relations Act (MERA); General Statutes § 7-407 etseq.; alleging that the transit district had violated§§ 31-105 (6), 7-469 and 7-470 (4).

On November 16, 1987, the day before a scheduledhearing before the board on the two complaints,4 thetransit district filed in the Superior Court an applicationfor a temporary and permanent injunction and anorder to show cause to halt the hearing. The court dismissedthe transit district's action on the ground thatthe court lacked subject matter jurisdiction because thetransit district had failed to exhaust its administrativeremedies. This court affirmed the dismissal. GreaterBridgeport Transit District v. Local Union 1336,211 Conn. 436, 559 A.2d 1113 (1989).

The board thereafter held a hearing on the union'stwo consolidated complaints. Two years after the hearing,5the board rendered a decision concluding that the

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     transit district had violated MERA,6 and ordered thetransit district to cease and desist from refusing to bargainwith the union "over the unilateral changes in thesick leave, discipline for late attendance and disciplinefor absences." In addition, the board ordered the transitdistrict to "[t]ake the following affirmative steps whichthe [b]oard finds will best effectuate the purposes ofthe [a]ct: (a) Reinstate Ezell Robinson, Pamela Davis,and any other employees who were discharged underthe unilaterally changed provisions . . . and makewhole said employees together with all accruing backpay and associated benefits . . . (c) Report to the[board] within thirty (30) days of this Decision andOrder of the steps taken by [the transit district] to complytherewith."

The transit district appealed from the board's decisionto the Superior Court claiming that the board'sdecision was illegal, arbitrary and an abuse of discretionin that: (1) the board's decision had not been timelyrendered; (2) General Statutes § 7-273j, concerning collectivebargaining for transit districts, rather thanMERA, was controlling and therefore, the board hadlacked jurisdiction; (3) the board had erred in failingto defer to arbitration, which was the primary remedybetween the parties in the collective bargaining agreement;(4) the transit district had been given inadequatenotice of the nature of the remedies and orders issuedby the board; and (5) the board had erred in determiningthat the new attendance policy was a mandatorysubject of bargaining rather than a work rule.

The trial court resolved each of these issues in favorof the board, and dismissed the transit district's appeal.The transit district has raised the same issues on appealbefore this court. We will briefly summarize seriatim

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     the trial court's reasoning in resolving each issue. First,the trial court found, based on precedent; Jutkowitzv. Dept. of Health Services, 220 Conn. 86, 95,596 A.2d 374 (1991); that the transit district had waived its rightto challenge the timeliness of the board's ruling by notapplying to the Superior Court pursuant to GeneralStatutes (Rev. to 1987) § 4-180(b)7 for an order requiringthe board to issue its decision. Second, the trialcourt found that § 7-273j8 would be relevant only ifthere was a labor dispute "where collective bargainingdoes not result in agreement." Because the partiesin this case had not collectively bargained thedisputed issue, the court concluded that application of§ 7-273j would not be appropriate. Third, the courtfound that the plain language of the collective bargainingagreement provided for arbitration only when a disputeis over "the application or interpretation of anyof the provisions of this Agreement." The dispute inthis case, however, was over the unilateral implementationof a revised attendance policy in violation of theduty to bargain, which is a prohibited labor practice.Therefore, the board did not have to defer to arbitration.Fourth, the court relied on Levinson v. Board ofChiropractic Examiners, 211 Conn. 508, 536,560 A.2d 403 (1989), citing Harwinton Drilling & EngineeringCo. v. Public Utilities Control Authority, 188 Conn. 90,

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     95-96, 448 A.2d 210 (1982), to conclude that the transitdistrict had waived its right to question the sufficiencyof the notice of the relief requested by not requestinga more definite and detailed statement as permittedunder General Statutes (Rev. to 1987) § 4-177(b).9Finally, based on both Connecticut and federal case law,the trial court found that the revised attendance policy,which included disciplinary measures,10 was a "conditionof employment," and therefore a mandatory subjectof bargaining pursuant to §§ 7-469 and 7-470(c).See Board of Police Commissioners v. White, 171 Conn. 553,560, 370 A.2d 1070 (1976) (defining the term "conditionsof employment" as that which "is intended toinclude the entire spectrum of conditions and benefitswhich apply to public employment, in addition to thecommonly understood basic provisions relating to payand hours of work, including but not limited to . . .discipline and discharge").

"Judicial review of the [board's] action is governedby the Uniform Administrative Procedure Act (General

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     Statutes, c. 54, §§ 4-166 through 4-189), and thescope of that review is very restricted. . . . Neitherthis court nor the trial court may retry the case or substituteits own judgment for that of the [board]. . . .The court's ultimate duty is only to decide whether,in light of the evidence, the [board] has acted unreasonably,arbitrarily, illegally, or in abuse of [its] discretion."(Citations omitted; internal quotation marksomitted.) Buckley v. Muzio, 200 Conn. 1, 3,509 A.2d 489 (1986); see also Starr v. Commissioner of EnvironmentalProtection, 226 Conn. 358, 371, 627 A.2d 1296(1993); Caldor, Inc. v. Heslin, 215 Conn. 590, 596,577 A.2d 1009 (1990), cert. denied, 498 U.S. 1088, 111S.Ct. 966, 112 L.Ed.2d 1053 (1991).

Our examination of the record and the briefs andarguments of the parties on appeal persuades us thatthe judgment of the trial court should be affirmed. Theissues raised on appeal were resolved properly in thecourt's thoughtful and comprehensive memorandum ofdecision. Greater Bridgeport Transit District v. StateBoard of Labor Relations, 43 Conn. Sup. 340, 653 A.2d 229(1993). Because that memorandum of decision fullystates and meets the arguments raised in the presentappeal, we adopt the trial court's well reasoned decisionas a statement of the facts and the applicable lawon these issues. It would serve no useful purpose forus to repeat the discussion contained therein. AdvancedBusiness Systems, Inc. v. Crystal, 231 Conn. 378,380-81, 650 A.2d 540 (1994); Van Dyck Printing Co.v. DiNicola, 231 Conn. 272, 273-74, 648 A.2d 877(1994); Connecticut Resources Recovery Authority v.Refuse Gardens, Inc., 229 Conn. 455, 458-59,642 A.2d 697 (1994); Daw's Critical Care Registry, Inc. v. Dept.of Labor, 225 Conn. 99, 101-102, 622 A.2d 518 (1993).11

The judgment is affirmed.

1. The revised policy provides for "attendance-related discipline" inaddition to suspension and termination, where the original policy onlyprovided for warnings, suspension and termination. The revised attendancepolicy provides in relevant part: "1. 6 absences — Warning, counseling and notification to employeein writing . . . that for all subsequent absences a doctor's certificatewill be required "2. 8 absences — 3 days foot-of-list for operators, 3 days shiftchange for maintenance "3. 10 absences — 5 days foot-of-list for operators, 5 days shiftchange for maintenance "4. 12 absences — 10 days foot-of-list for operators, 10 days shiftchange for maintenance "5. 14 absences — 5 days suspension "6. 16 absences — Termination. . . ." "Foot-of-list" refers to a disciplinary measure in which operators mustreport for duty and remain at work to back up the scheduled operator shouldan operator miss his shift. According to the policy, "[o]perators assignedfor attendance-related discipline to the foot-of-list will report withoutguarantee," that is, without pay unless they actually substitute for anotheroperator. "Shift change" for maintenance employees refers to a disciplinarymeasure in which they must work a shift that they did not select and donot wish to work. The preexisting attendance policy provided in relevant part: "1. When an operator incurs three (3) incidents of absence or six (6) daysof absence in a six month period, over and above earned sick leave, theoperator will be counseled from that day on. . . . "3. When an operator incurs another incident of absence or day of absencewithin six (6) months of the date of counseling, the operator will be issueda written warning and counseled. "4. When an operator incurs a second incident of absence or day of absencewithin six (6) months of the date of the initial counseling, the operatorwill be issued a second warning. "5. When an operator incurs a third incident of absence or day of absencewithin six (6) months of the date of initial counseling, the operator willbe issued a third and final warning and may be given a five (5) dayssuspension. . . . "6. When an operator incurs a fourth incident of absence or day of absencewithin six (6) months of the date of initial counseling, the operator maybe terminated. . . ."

2. General Statutes § 31-105 (6) provides in relevant part:"UNFAIR LABOR PRACTICES. It shall be an unfair labor practice for anemployer . . . (6) to refuse to bargain collectively with therepresentatives of employees. . . ." General Statutes § 7-469 provides: "DUTY TO BARGAIN COLLECTIVELY.The municipal employer and such employee organization as has been designatedas exclusive representative of employees in an appropriate unit,through appropriate officials or their representatives, shall have the dutyto bargain collectively. This duty extends to the obligation to bargaincollectively as set forth in subsection (c) of section 7-470." General Statutes § 7-470 provides in relevant part: "PROHIBITED ACTSOF EMPLOYERS AND EMPLOYEE ORGANIZATIONS. (a) Municipal employersor their representatives or agents are prohibited from . . . (4) refusingto bargain collectively in good faith with an employee organization whichhas been designated in accordance with the provisions of said sections asthe exclusive representative of employees in an appropriate unit. . . ."

3. General Statutes (Rev. to 1987) § 7-471 provides in relevant part:"POWERS OF STATE BOARD OF LABOR RELATIONS. The state board of laborrelations shall have the following power and authority in relation tocollective bargaining in municipal employment . . . "(4) Whenever a question arises as to whether a practice prohibited bysections 7-467 to 7-477, inclusive, has been committed by a municipalemployer or employee organization, the board shall consider that questionin accordance with the following procedure. . . . (B) If, upon all thetestimony, the board determines that a prohibited practice has been or isbeing committed, it shall state its findings of fact and shall issue andcause to be served on the party committing the prohibited practice an orderrequiring it or him to cease and desist from such prohibited practice, andshall take such further affirmative action as will effectuate the policiesof sections 7-467 to 7-477, inclusive, including but not limited to . . .(ii) reinstatement of an employee discriminated against in violation ofsaid sections with or without back pay. . . ." General Statutes § 7-471 was amended in 1991, adding a subdivision.Public Acts 1991, No. 91-255, § 2. Thus, subdivision (4), which wasalleged in the union's complaint in 1987, became subdivision (5) in 1991with the addition of the new subdivision, which is irrelevant to theinstant case.

4. The board had consolidated the complaints on September 21, 1987.

5. The briefs of the parties were submitted to the board on March 27,1989, after evidentiary hearings had been conducted on September 22, 1988,and December 7, 1988. The decision and order of the board was released onMarch 27, 1991.

6. Because the board found that MERA applied to this case, itdismissed the first complaint brought by the union pursuant tothe State Labor Relations Act.

7. General Statutes (Rev. to 1987) § 4-180(b) provides aremedy to the parties should the board fail to comply with § 4-180(a)by not issuing a decision within ninety days: "If anyagency fails to comply with the provisions of subsection(a) . . . any party thereto or any interested person may apply tothe superior

8. General Statutes § 7-273j provides in part: "Eachtransit district shall have power to engage in collectivebargaining with duly appointed representatives of an employeelabor organization and may enter into labor contracts concerningwages, salaries, hours, sick leave, working conditions collectivebargaining and pension or retirement provisions. In case of anylabor dispute involving a district and its employees wherecollective bargaining does not result in agreement, the partiesshall submit such dispute to arbitration. . . ." (Emphasis added.)

9. General Statutes (Rev. to 1987) § 4-177(b) provides inrelevant part: "If the agency or other party is unable to statethe matters in detail at the time the notice is served, theinitial notice may be limited to a statement of the issuesinvolved. Thereafter upon application a more definite anddetailed statement shall be furnished." Although Levinson v. Board of Chiropractic Examiners, supra,211 Conn. 536, is controlling, we note that the complaint formissued by the board states that the complaint is brought"[p]ursuant to Section 7-471(4) [Rev. to 1987] of the MunicipalEmployees Relations Act." Section 7-471(4) (currently§ 7-471[5]) provides that "[i]f, upon all the testimony, the boarddetermines that a prohibited practice has been or is beingcommitted, it shall state its findings of fact and shall issueand cause to be served on the party committing the prohibitedpractice an order requiring it or him to cease and desist fromsuch prohibited practice, and shall take such furtheraffirmative action as will effectuate the policies of sections7-467 to 7-477, inclusive, including but not limited to . . . (ii)reinstatement of an employee discriminated against in violationof said sections with or without back pay . . . ." (Emphasisadded.) This appears to have been sufficient to put the transitdistrict on constructive notice of the power that the boardpossessed should the union have been successful on the merits ofits claim.

10. See footnote 1.

11. In response to the board's order, the transit districtrescinded its unilaterally implemented attendance policy andeliminated the discipline imposed on employees pursuant to thatpolicy. It did not, however, reinstate or reimburse anydischarged employees. There is no indication that the transitdistrict reported to the board the steps that it had taken tocomply with the board's order. It presumably would have to do sonow. In attempting to demonstrate compliance, the transitdistrict should be allowed to present evidence in mitigation ofits damages. See National Labor Relations Board v. MastroPlastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert. denied,384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966) (dischargedemployees have duty to mitigate their damages); Coppola v.Personnel Appeal Board, 174 Conn. 271, 275, 386 A.2d 228 (1978)(evidentiary hearing is necessary to determine amount of lostback pay and benefits).Page 65

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