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STATE OF CONNECTICUT
LABOR DEPARTMENT

CONNECTICUT STATE BOARD OF LABOR RELATIONS

In the matter of

STATE OF CONNECTICUT
DEPARTMENT OF PUBLIC SAFETY Decision No. 2419

J u l y 9 , 1985

CONNECTICUT -STATE POLICE UNION I

APPEARANCES:

Steven Weinberger, Esq.

for the State of Connecticut

Robert J. Krzys, Esq.

for the Union

DECISION and ORDER

On January 26, 1984, the Connecticut State Police Union filed with
the Connecticut State Board of Labor Relations (the Board) a complaint
alleging that the State of Connecticut (the State) had engaged and was
engaging in practices prohibited by an Act Concerning Collective Bargaining
for State Employees (the Act) in that:

1. The complainant and the respondent.are parties subject to the

Act and have entered into a collective bargaining agreement
which was effective July 1, 1981 and will expire June 30, 1984.

2. The complainant represents troopers and sergeants in the NP-1

u n i t . Troopers can.be assigned various duties within the
Department of Public Safety including assignment to the role of
resident trooper.

3. The respondent recently issued an order stating in pertinent

p a r t t h a t r e s i d e n t t r o o p e r s , including current troopers so
assigned, would be subject to removal after two years in a
resident trooper position.
 4. ‘The assignment of troopers to a resident trooper position is a
lateral transfer which transfer is governed by a contractual
provision in the present collective bargaining agreement.

5. The assignment of a trooper from a resident trooper position to

another assignment is a lateral transfer which is also governed
by an existing contractual provision.

6. Transfers to and from resident trooper positions have been the

subject of grievances and arbitration decisions under the
present contract.

7. The new order referred to in paragraph 3 above was issued

unilaterally without bargaining with the complainant.

8. ,The assignment of troopers to and from resident trooper

positions is a mandatory subject of bargaining and is a subject
addressed in the present contract. Accordingly, neither party
may unilaterally modify the conditions pertaining to assignment
of resident troopers,during the term of the present contract
without the consent of both’parties. The complainant does not
consent to any such modification.

The remedy requested is that any troopers affected be made whole, and that
the Board issue any other appropriate relief.

After the requisite preliminary administrative steps had been duly

taken, the matter came before the Board for hearing on July 11, 1984, at
which time the parties appeared, were represented by counsel, and had the
opportunity to examine and cross-examine witnesses. Both parties
.subsequently filed written briefs in October, 1984.

* On the whole record before us, we make the following findings of

fact, conclusions of law, and order.

Findings of Fact

1. The State is an employer within the meaning of the Act.

2. The Union is an employce‘organization within the meaning of the

Act, and has at all material times been the -exclusive statutory bargaining ’
representative for troopers and sergents in the HP-1 unit which includes
resident state troopers.

3. Since 1947, there has existed within the Connecticut State Police
a. Resident Trooper Program which, inter alia, placed one or more troopers in
several of Connecticut’s smaller towns to handle some or all of a particular
town’s police functions.

4. The applicable collective bargaining agreement between the

parties contains the following pertinent provision:

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ARTICLE XVI
WORK SCHEDULES, HOURS OR’WORK
AND OVERTIME

Section Twelve. In decisions concerning lateral assignments

other than assignments covered under Article XXII c(l): if in
the supervisor’s discretion all factors -- efficiency, training
needs, operational needs, etc. are considered equal, the
supervisor shall take into account departmental seniority. The
supervisorts decision concerning such factors is final. The
Union may grieve and arbitrate a pattern of failure to give
proper consideration to seniority as a factor not justified by
operational needs.
(Exh. 2)

5. ‘Theassignment, in or out of the position of Resident Trooper,

within ranks is a lateral assignment.

6. Since at least the advent of collective bargaining in 1977, there

have existed three established methods.of removal from the position of
Resident Trooper.
1) Voluntary request for transfer by the Resident Trooper:
2) Involuntary removal based upon sub-par job performance;
3) Involuntary removal for disciplinary reasons.

7. The position of Resident Trooper is one without fixed term.

8 . On January 9, 1984, the State Police issued HQ Special Order

21-A, and subsequent Addendum thereto, which changed the existing policy
.concerning Resident Troopers in pertinent part as follows:

. F. TENURE/LENGTH OF ASSIGNMENT

1 . In order to afford upward mobility and diversified

experience to all members of the Division of State
Police, resident trooper assignments will be of a 2
year duration. At the end of that period, the
resident trooper position will be re-advertised.

a . I n n o n - d i s c i p l i n a r y cases,‘the d i s t r i c t
commanding officer may extend the length
of the initial assignment of an incumbent
resident trooper for one (I > year.

2. The troop commander may., after discussion with

the town chief executive, request the removal of a
resident trooper for operational considerations’
prior to the conclusion of the assignment period..

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 HQ SPECIAL ORDER 21-A
ADDENDUM # 1
RESIDENT TROOPER PROGRAM

To enhance opportunity for upward mobility and diverse work

experience, resident trooper assignments will be for a two year
term.
In non-disciplinary cases, the district commanding officer may
extend the initial assignment of an incumbent resident trooper
for one (1) year.
At the end of the two year term or the,extension period, the
resident trooper position will be readvertised. The incumbent
resident trooper may reapply for the position and will be
considered with the other candidates.
Expiration of terms in position will be staggered to provide
adequate lead time to incumbents and avoid simultaneous
removals. Upon expiration of the term of appointment, the
position will be readvertised in the subsequent July or
January.
In towns with more than one resident trooper, the individual
who has.been in place the longe3t time over two years will be
r e c o n s i d e r e d f i r s t ( i . e . , July), the next longest in January,
e t c . This will insure continuity for the town concerned.

9. At the time of the hearing, the incumbent resident trooper in

Harwinton had been in position for four years.

. 10. At the time of the ,hearing, the Litchfield resident trooper had
been in position six and one-half years.

11. The position of resident trooper carries with it $1200 in

housing expense and the possibility of Town paid overtime, both of which are
not available to Barracks assigned troopers.

Prior to the hearing the parties stipulated to the following facts:

12. The procedure detailed in HQ order 21-A dated l/9/84 regarding

the tenure/length of assignment of resident troopers is a procedure not
previously announced or utilized by the Department prior to the issuance of
the HQ order.

13. HQ order 21-A was issued without bargaining with the Union.

14. Article II, Section One of the Contract states in relevant part:

Except as otherwise limited by an express provision of this

Agreement, the State reserves and retains, whether exercised or
not, all the lawful and customary rights, powers and prerogatives
of public management. Such.rights include but are not limited to
establishing standards of . . ..performance of its employs
determining the mission of an agency and the methods and means
necessary to fulfill that mission, including . . . the assignment
. . . of personnel. (emphasis supplied)
(Exh. 2 )
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 Conclusions of Law

1. The term limitation on the assignment of resident state trooper

c o n c e r n s a m a n d a t o r y s u b j e c t of.bargaining.

2. The State’s unilateral imposition of the term limitation was a

departure from the fixed practice concerning reassignments and constituted a
violation of the City’s duty to bargain and a prohibited practice under
Section 5-272(a)(4) of the Act.

Discussion

Both Union and State witnesses testified that by practice, the

circumstances for removing a resident trooper from such an assignment were
only: (a) the voluntary request for reassignment, or (b) involuntary
transfer, for either disciplinary or sub-standard job performance reasons.
By stipulation, the parties agreed that “the procedure detailed in HQ order
21-A dated l/9/84 regarding tenure/length of assignment of resident trooper
is a procedure not previously announced or utilized by the Department prior
to the issuance of the HQ order” and that ‘IHQ order 21-A was issued without
bargaining with the Union.”

By definition the State has effected a unilateral change. A

unilateral chan,ge in a fixed practice concerning a condition of employment
rising to the levei of a mandatory subject of bargaining is a violation of
an employer’s duty to bargain.under Section 5-272(a)(4) of the Act unless
. the employer proves an ,appropriate defense. Town of Newington f Dec. No.
1116 (19731, aff’d in Town of Newington v. CSBL;I et ai; Dk 109307, Court of
Common Pleas, Hartford County (1973). Rowever, an employer may effect a
unilateral change where the past practice involves only a sub,ject that falls
in the area of management prerogative unless the employer has contractually
bound himself not to make the change. Town of Newington, Decision No. 1116
(19731; Town of Wallingford, Decision No. 1194 (1974j; City of New Haven,
Decision No. 1672 (1979); Town of Willington, Decision h’o. 2012 (1981). The
State claims that the wnilateral change here falls within the area of
managerial prerogative. It is true that matters which lie at the core of
“entrepreneurial controltl and which are “fundamental to. the existence,
direction and operation of enterprise I1 do not require negotiations with the
bargaining representative before they are decided and implemented. City of
New Haven, Dec. No. 1342 (197.5); West Hartford Education Association v.
DeCourcy, 162 Conn 566, 583 (1972).. To determine what falls within or with-
out the area of managerial prerogative, this Board applies a balancing test:’

In drawing the line within that area between those items that must
be bargained over and those which‘the employer may act on without
bargaining, a balance must be struck. And in striking it, the
tribunal should consider, we believe, the directness and depth of
the item’s impingement on conditions of employment, on the one
hand, and, on the other hand, the extent of the employer’s need
for unilateral action without negotiation in order to serve or
preserve an important policy decision committed by law to the
. employer’s discretion. Town of East Haven, Dec. No. 1279 (1975).

See also City of New’Haven, Dec. No. 1490 (1977); City of New Haven, Dec..
N o . 1342 (1975).
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 We cannot fail to recognize that the Department of Public Safety is a
para-military organization and that within such an organization operational
needs often require that management not be overly constrained in making
assignments. On the other hand, dramatic changes in long tena work
assignments clearly impact strongly upon employee conditions of employment.
The position of resident trooper carries with it certain benefits and
conditions of employment which usually require bargaining before they can be
changed :

(1) Resident troopers receive $1,200.00 in housing expense which is

not paid to Barracks-assigned troopers.

(2) Resident troopers are eligible for Town paid overtime as well as
overtime available through the Department of Public Safety.

(3) In addition, there is to be considered the very nature of the

job of resident trooper. The trooper is assigned to a particular smaller
town. He works with the first selectman, rather, than report to a change of
command of Barracks ranking officers. He works a set shift. He handles all
the police functions of the town. The job is more independent, and diverse,
than a Barracks assignment.

On an individual basis any one of these three aspects of the resident .

state trooper assignment would probably result in procedures governing such
assignments to be a subject involving a major term or condition of employ-
ment . Certainly when taken together, there is no doubt on that score.

Similarly, the change in the procedure for such assignments

represents a substant.ial change from the fixed past practice. Incumbents
assigned as resident state troopers remained in such positions unless cne of
.the three circumstances referred to in finding of fact number six (6)
occurred. The new procedure was to set a limited term for the assignment of
two years with the possibility of a one year extension. In City - of - Stamford
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Decision No. 2156 (1982), we held that imposition of a five year term on an
incumbent’s term in office concerned a mandatory subject of bargaining and
therefore could not be effected unilaterally. In that case we stated: “we
have no doubt that the five year limitation is one of the clearest possible
examples of a restricting circumstance which more deeply and intimately
concerns employee conditions of employment rather than the type of core
managerial policy decisions of which DeCourcy,speaks;” Stamford at 4. It
is true that in Stamford if the incumbent was not reappointed at the end of
the illegally imposed five year term he would be unemployed, while an
incumbent resident state trooper would only be reassigned if he were not
kept in his position. This perhaps makes the present case closer than
Stamford but the result is still the same.

The practice of limiting reassignments to the three circumstances

noted above left.ample room for management to effect reassignments when
necessary. In this regard, it is highly significant that either sub-par
. performance or disciplinary reasons were bases for reassigning an incumbent
out of a resident state trooper position. In addition, the long term nature
of the assignment is also relevant. These are not daily, weekly, or even
monthly assignments. Such short term assignments would arguably require

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greater flexibility for management to make frequent changes to cope with

changing operational needs. Indeed, even the fixed practice does not reach
the managerial question of whether the State could exercise its managerial
discretion to-abolish resident trooper assignments so that troopers so
assigned could be made available for other operational needs of the State
Police. On balance, it is our conclusion that the impact of the existing
reassignment practice impacts less on management’s need to take unilateral
reassignment actions, while the impact of the change on employee conditions
.of employment is .direct,.deep and substantial. The change concerned a
mandatory subject of bargaining and the State should have bargained to
agreement or final impasse before making it, ,The S t a t e ’ s f a i l u r e t o d o s o
constitutes a violation of Section 5-272(a)(4) of the Act.

We also note that the State itself has in the past been willing to
bargain over restrictions on its right to make assignments or reassignments
and has therefore admitted the amenability of such subjects to collective .
bargaining. In this regard, Article-XVI, Section 12 of .the Contract
recognizes that in making assignments and reassignments, seniority will be
the determinative factor when other considerations are equal. Moreover, the
State expressly agreed that violations of this r e s t r i c t i o n a r e s u b j e c t t o
the grievance/arbitration provisions of the Contract and grievances concern-
ing resident state trooper assignments have been grieved and arbitrated on
the merits (Exhs. 8 and 9).

Finally, we note that the management rights clause contained at

Article II, Section Cne of the Contract does no”i re:;;ove !;he change in
.qlJestion frcr.1 t h e stop e of mandatory bargaining and place it instead within
the realm of management’s sole,discretion. In other words, it is the
State’s position that. Article II, Section One constitutes a waiver by the
Union of its right to bargain over unilateral. changes in the area of
.procedures for assignment.s and reassignments. In past cases, we have found
that to accomplish such a result a management rights clause must be specific
in the language it uses. City of Meriden, Decision No, 1925 (1980); Redding
Board of Education, Deci S‘ion No. 1922 (1980); Amity Board of Education,
Decision’No. 1845 (1979) ., Town of Stratford, Decision No. 1471 (197%x Ci
of Hartford, Decision No 1425 (1976); and City of New Haven, Decision ‘No.
1342 (19’75), wherein we S tated: “To constitute a waiver of rights based on a
management functions clause, the waiver must be clear and unmistakable.lf
Murphy Diesel Co. v. NLRB, 454 F.2d 303 (7th Cir. 1971). Even if it stood
alone, the language used in Article II, Section One would not remove the
change in question from the scope of mandatory bargaining. However f in
construing provisions of a collective bargaining agreement, each provision ’
must be read in the light of the agreement as a whole. In the present case,
the parties have expressly and specifically recognized by way of Article
XVI, Section 12 that procedures for assignments is a question for union and
management bargaining. Moreover, in arbitration this section has been held
applicable to assignments of resident state troopers. Thus, i t i s p l a i n t o
us that in negotiating the Contract there was no intent to remove the
subject of assignments and reassignments from the scope of mandatory
bargaining where impact on conditions of employment outweighs the need for
employer unilateral action. Decourcy, supra; East Haven, supra.

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 O R D E R

By virtue of and pursuant to the powers vested in the Connecticut State

Board of Labor Reiations by the State Employee- Relations Act, it is hereby

ORDERED, that

I. The State of Connecticut shall cease and desist from

(a> continuing’to implement unilaterally HQ Special Order 21-A and

its Addendum i/l ;

(b) r e f u s i n g t o b a r g a i n w i t h t h e U n i o n c o n c e r n i n g s a i d O r d e r a n d
Addendum.

I I . The State of Connecticut shall take the following affirmative

action which the Labor Board finds will effectuate the purposes of the Act:

(a) . Rescind the above referenced Order and Addendum until and
unless it is agreed to through negotiations with the Union or final
impasse is reached in such negotiations;

(b) U p o n r e q u e s t b y t h e U n i o n , b a r g a i n o v e r s a i d O r d e r a n d
Addendum;

(c) A n y a n d a l l r e s i d e n t s t a t e t r o o p e r s r e a s s i g n e d f r o m s u c h
positions pursuant to said Order and Addendum shall be immediately
reassigned to such positions as t.hey formerly held or to comparable
p o s i t i o n s i f and. o n l y i f ccnsented t o b y t h e U n i o n ;

(d) Make whole any a n d a l l r e s i d e n t s t a t e t r o o p e r s r e a s s i g n e d f r o m

such positions pursuant to said Order and Addendum for all salary hnd
ether employer or Town-paid financial losses they have incurred as, a
result of reassignment, less salary and other financial benefits such
t r o o p e r s h a v e b e e n e l i g i b l e f o r a n d h a v e r e c e i v e d o n l y b e c a u s e o? t h e i r
reassignment, if any;

(e) P o s t i m m e d i a t e l y a n d l e a v e p o s t e d f o r a p e r i o d o f s i x t y (60)
consecutive days from the date of posting, in a conspicuous place where
the employees customarily assemble, a copy of this Decision and Order
in its entirety; and

(f) N o t i f y t h e Connecticut State Board of Labor Relations at its

o f f i c e in the Labor Department, 200 Folly Brook Boulevard, Wethers-
field, Connecticut, within thirty (30) days of the receipt of this
Decision and Order, o f t h e s t e p s .taken b y t h e S t a t e o f C o n n e c t i c u t t o
comply therewith.

CONNECTICUT STATE BOARD OF LABOR RELATIONS

s/ V i c t o r M . Ferract;e
Victor M. Ferrante, Chairman

s/ Patricia V. Low
Patrjcia V. Low

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