Professional Documents
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STATE $CONiQECTICUT
LABOR'DEPARTMENT
and-
November 7,'1985
LOCAL 1378, Council #4,.
AFSCME, AFL-CIO .
DECISION
and
DISMISSAL OF COMPLAINT
On September 28, 1984, Local 1378, Council #4, AFSCME, AFL-CIO (the
Union) filed with the Connecticut State Board of Labor Relations (Labor
Board) a complaint alleging that the City of Neti London (City) had engaged
and was engaging in prohibited practices within the meaning of the Municipal
Employee Relations Act (the Act) in that:
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After the requisite preliminary. &e&x had been taken, the parties
appeared before the Labor Board for a hearing on.Maroh 7, 1985. Both
parties were represented at the hearing and were provided .a full opportunity
to adduce evidence, examine and cross-examine witnesses and make argument.
At the hearing, the Union withdrew that'part of its complaint referred to in
numbered paragraph one (I) of the complaint. Written briefs were filed by
the City and the Union respectively on May 9 and May 14, 1985;
On the basis.of the record before us, we make the following findings of
fact, conclusions of law, and order of dismissal.
Findings of Fact
3. At the times relevant to this case, the Union has been the
exclusive bargaining representative for employees of the City including the
employees in question in this case. .
4. At the times relevant to this case, the parties had in effect
'between them-a collective bargaining agreement (the Contract) (Exhibit 2).
5. Article VII Section 7.2 of the Contract addresses hours of work and
states:
6. Article VII Section 7.5 of the Contract also addresses hours 'of
work and states:
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12. In June 1984, the City changed Knapp's work schedule from Monday
through Friday to Tuesday through Saturday.
13. This was done after notice and discussions with the Union, but
without bargaining to impasse or agreement.
14. Pursuant
- to Article VI of the Contract, the Union filed a
grievance on behalf of Knapp on June 28, 1984. The grievance stated:
15. By July 24, 1984, the grievance had been denied on the merits at .
the first two steps of the grievance procedure. (Exhibits 4 and,5).
The denial issued by A. H. Sims, Jr., City Director of Public Works/City ._
Engineer, stated:
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The City has offered, and hereby repeats that offer, to schedule this
shift in any manner acceptable to the three tractor trailer drivers
involved. The City has suggested a monthly rotation with each driver
in turn taking one month of special purpose shift so that each would
work Saturdays only one month per quarter.
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1 . The Labor Board has jurisdiction to interpret a collective bargain-
ing agreement when the employer raises its terms as a defense to the Union's
charge of illegal unilateral change.
3. Based on the rule set forth in conclusion two (2), the Union is
barred from denying the City's interpretation of Article VII Section 7.5 in
this case, and its complaint therefore must be dismissed.
Discussion
The present case presents precisely the sa.me type of fact pattern as
existed in City of New London, Decision No. 2411 (June 26, 1985) and what we
said there is also dispositive here:
case would ultimately turn. ' However; for the reasons dis&ssed
below, we must dismiss the Union?8 complaint without giving our own
interpretation to the Contract.
With regard to res judicata, the record shows that the crucial
factors that werabsent in Windsor Board of Education are in fact
fully present in the instant case. Here, the arbitration available
to the Union was not advisory; it was binding. Also, the denial of
the grievance here was on the merits. Finally, the contractual
issue determinative of the grievance is the same contractual issue
. that would be determinative of whether the City committed a
. prohibited practice, i.e., Did Article VII, Section 7.5 allow the
City to malse the change? Had .such facts obtained in Windsor Board
of Education, we undoubtedly would have found the union's claim
barred.
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State of Connecticut (Gary Thomas), Decision No. 1766 (1979); State
of Connecticut, Department of Children and Youth Services
(Molinaro), Decision No. 1870 (1980). Such grievance procedures
are the parties' mutually agreed upon private substitute for
litigation in the courts. It is at least as important that issues
litigated in grievance procedures be disposed of quickly and with
finality as is the case with court litigation.
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procedure. Finally, to bar the Union from challenging the City's
interpretation of the Contract'in the present case is in no way
repugnant to.the purposes and policies of the Act. The settlement
in effect acknowledges that in a collective bargaining agreement a
union may agree either expressly or by fair implication to an
employer's making unilateral changes. We have always recognized
that such specific provisions in.collective bargaining agreements
are legal and should be given effect where they are found to
exist.- Town of Newington Board of Education, supra, State of
Connecticut (Office of the Comptroller), supra; Redding Board of
Education, supra; Town of North Branford, supra.
+ Se'e James and Hazard, Civil Procedure 19'77, Chpt- 11.2, Pa 530
** The City did not file a prohibited practice against the Union
for its having brought the present case. This is understandable
because we have ruled that to find a party's resort to a tribunal
. to test its rights to be a prohibited practice, the complainant
must prove subjective bad faith on the part of the.respondent.
City of New Haven, Decision No. 1325 (1975); Bristol Federation of .
Teachers, Decision No. 1656 (1978); Hartford Board of Education,
Decision No. 2032 (1981). This is a very difficult burden to prove
as was demonstrated in all three of those cases.
Dismissal of Comnlaint
ORDERED, that the complaint filed herein be, and the same hereby is,
dismissed.
BY s/ Patricia V. Low
Patricia V. Low
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s/ Craig Shea
Craig Shea
s/.Cornelius J. Scanlon
Cornelius J. Scanlon
CSBLR Dec.
No. 2443
NEW LONDON
MPP-8899
NO. CV 85 0313031 S
LOCAL 1378, COUNCIL 4, : SUPERIOR COURT
AFSCME, AFL-CIO
JUDICIAL DISTRICT OF HARTFORD/
V. : NEW BRITAIN
AT MANCHESTER
CONNECTICUT STATE BOARD OF
LABOR RELATIONS and
CITY OF NEW LONDON : July 14, 1987
MEMORANDUM OF DECISION
;Inion and the Labor Board, oral argument was had on June 23, 1987.
The City of New London adopted the position of the Labor ;
Board in this appeal.
The Union and the City are parties to a collective
.- bargaining!
agreement (Contract) effective September 27, 1983 to June 30, 1986:
(Exhibit 2). Article VII Section 7.2 of'the Contract (Exhibit 2) !
concerns the employees' hours of work and provides for a basic
work day of 8:00 a.m. to 4:30 p.m. with the proviso that some
employees have in the past worked and will continue ,to work out-
side of these basic hours. Section 7.5 of the same article also
concerns hours of work and provides as follows:
Section 7.5 A department head, after consultation with
the Union Committee for his department may for a special
purpose, make other regular (full-time) assignments.
Such assignments shall be for a continuous eight (8) hour
day plus a thirty (30) minute lunch period. The Union
shall have the right to request in writing ,of the City
Manager a change in the summer operating hours in any
department where summer hours have been implemented from
time to time in past years. These requested changes, if
granted, will be implemented after notice is given to the
Union.
(Exhibit 2)
The Contract between the parties also contains a comprehensive
grievance procedure in Article VI. Section 6.1 of that Article 1
defines a grievance as "relative to rates of pay, hours of work
or working conditions." Section6.3 of the grievance article I
provides that if the grievance is not resolved by the City Manager
o'r his designee (which is the last grievance step within the City :
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administration) it may be processed to arbitration before the
driver. (Trans. page 4). In June of 1984 the City changed Knapp's I
The record does not suggest that the Union pursued the griev-
iance beyond this step. Counsel for the Union admitted during oral
'argument that the grievance procedure terminated after the July
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124 , 1984 denial. (Exhibit 5). It is therefore found that the Union
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idid not avail itself of the binding arbitration procedures available
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under the contract to resolve the issue. Thereafter; on September i
settlements;
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‘I i The determinative issue in this case is whether or not the j
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I/: failure to pursue the grievance procedure to arbitration, as
II authorized by the Contract, constituted a "resolution" or "settle-i
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i I ment" of the dispute which precludes the use of the prohibited
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I practice complaint by the Union thereafter under the-theory of
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defense which an employer may show is that the change in practice j
&he Labor Board was not whether there was a change in work schedule,
but whether the Contract permitted the change. The Labor Board ;
refused to rule on the interpretation of the Contract because the I
arbitration setting but did not elect to pursue'it past the second;
step. The Labor Boarddismissed the complaint stating:
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] Abiding by resolutions of disputes accomplished
!I through the grievance procedure is one of the most
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j: important polices of the Act. Sections 7-470(2)(6)
1; and (b)(3) of the Act expressly make it a prohibited
Ii practice for either an employer or a union to
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"[refuse] to comply with a grievance settlement...".
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!i : The fact that the Legislature chose to include in
:! the Act the express prohibited practice embodied in
/I Sections 7-470(a)(6) and (b)(3) demonstrates the-
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1:: strength of the public policy that adherence to
II grievance settlements is essential to our system of
/I collective bargaining. When the Union failed to
:: proceed to arbitration after the City‘s denial of the
;II! grievance on the merits, the dispute over the change
I!II in schedule and the contract interpretation point on
which it turned was settled for the incident in ques- /
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IIj tion. This is at least the equivalent of a grievance \
/: settlement. (footnotes omitted). (Complaint Exhibit A
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!! pages 6,7).
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Ii The Union claims that there is no basis for the Labor Board's;
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:Idecision barring the Union from denying the City's interpretation
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! Article VII Section 7.5 of the Contract.
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The Labor Board's decision is based upon not only well reasoned
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;, res judicata grounds but the labor law concept'of deferral.
: I: The doctrine of res judicata is that "[a] final judgment
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;.rendered upon the merits without fraud or collusion, . . . is con-
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, elusive of causes of action and of facts or issues thereby litigat id
: as to the parties and their privies in all other actions in the
artitral proceedings have been fair and regular, (2) the parties
had agreed to be bound, and (3) the arbitral award is not repug-
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j. The rationale for such deferral has been articulated by the
'NLRB (No. 88) 923, 927, 51 LRRM 1155 (1962) the NLRB stated:
previous case which appears to have involved the same labor contract
ii article.
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