Opinion
CASE NO. 855 CRD-1-89-4
AUGUST 20, 1990
The claimants Catherine M. Daly, Dependent Widow of Michael F. Daly, Deceased, and Coleen Marie Daly, Maura Elizabeth Daly, and Michael M. Daly, Minor Dependent Children of Michael F. Daly, Deceased; Nicholas P. Santore, and Edward Foley, all were represented by John Kennedy, Esq., and Diane Marshall, Esq., both of Kennedy Johnson.
The claimant Philip V. Madonna was represented by Frank Marcucci, Esq., and Gary W. Stegina, Esq. both of Cohen and Acampora. No appearance was made at oral argument on behalf of this claimant, however a brief was filed.
The respondent-Amalgamated Transit Union was represented by Norman Zolot, Esq.
The respondent-H.N.S. Management Company, Inc., d/b/a Connecticut Transit was represented by James L. Pomeranz, Esq., and Anne Kelly, Esq., both of Pomeranz, Drayton Stabnick.
The Second Injury and Compensation Assurance Fund was represented by Michael Belzer, Esq., Assistant Attorney General.
This Petition for Review from the April 11, 1989 Finding and Award of the Commissioner for the First District was heard March 30, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Robin Waller and George Waldron.
OPINION
United States constitutional and statutory laws are cited by the employer appellant as reasons to overturn the award to the claimants. Nicholas P. Santore, Philip Madonna and the deceased Michael F. Daly were all employees of H.N.S. Management Company, Inc., hereinafter referred to as Connecticut Transit. All three were also officers of the Amalgamated Transit Union. The other claimants are the surviving widow and children, dependents of the decedent.
The Supremacy Clause, Article VI, U.S. Constitution
29 U.S.C. § 157, 158.
The instant action originally included the claim of Edward Foley. By agreement of the parties Mr. Foley's claim was accepted by the respondent-Union.
On March 1, 1988 Connecticut Transit and the Union were engaged in negotiations for a new collective bargaining agreement. These three employees represented the union in the contract negotiations. A negotiation session had been scheduled for 9:30 a.m. at an East Hartford location on that date. Tuesday, March 1, 1988 was a work day. But Section 84(a) of the existing collective bargaining agreement provided, "Upon reasonable notice, members of the committee regularly representing the employees will be given leave of absence when engaged in work for the association."
Consequently, these employees were excused from work that day in order that they might attend the negotiation meeting. They received no wages from the company for the day but were paid by the union. However whenever employees were excused under Sec. 84(a), the employer was obligated to credit the employees' time thus "booked off" for accrual of Connecticut Transit pension benefits, seniority and vacation time. The pension benefit wage amount credited would be the amount of money paid by the union to the employee for that day.
By prearrangement these three employees met at a commuter parking lot in Hamden early March 1. They met in order to be driven to East Hartford for the bargaining session in Philip Madonna's car. Accompanying them on the trip was Edward Foley, the union business agent. The plan was to discuss their negotiating strategy on the drive before the 9:30 a.m. meeting. At approximately 8:42 a.m. the Madonna vehicle became involved in an accident injuring Madonna and Santore and causing Daly's death, events resulting in these worker compensation claims.
The First District found the claims compensable. The trial commissioner concluded that (1)the three workers at the time of the accident were employees temporarily lent by Connecticut Transit to the respondent Union pursuant to the provisions of Sec. 31-292 C.G.S.
Connecticut Transit's appeal denies that the individual involved were lent employees under Sec. 31-292.
Section 31-292 provides:
When the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service, the latter shall, for the purposes of this chapter, he deemed to continue to be the employer of such worker while he is so lent or hired by another.
This respondent argues that the employees "were not lent" but instead were "taken" by the union. To support that argument it cites 29 U.S.C. § 158(d) and 29 U.S.C. § 157. It contends that those federal statutes obligate the employer to permit its employees to engage in the collective bargaining process. Further, as Connecticut Transit was so obligated, to characterize the process as a lending is incorrect absent any volitional component in the employer's permitting its workers to travel to the scheduled bargaining session during a work day.
BLACK'S LAW DICTIONARY 811 (5th ed. 1979) defines "lend" as follows:
To give or put out for hire or compensation. To part with a thing of value to another for a time fixed or indefinite, yet to have some time in ending, to be used or enjoyed by that other; the thing itself or the equivalent of it to be given back at the time fixed, or when lawfully asked for, with or without compensation for the use as may be agreed upon. . . .
Nothing in that definition requires as a matter of law that we cease to consider an act a lending when it is done pursuant to a lawful obligation, i.e. the collective bargaining agreement, adopted in accordance with rights defined in Title 29 of the U.S. code.
29 U.S.C. § 158(d) defines the duty to bargain collectively as the:
mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached . . ., but such obligation does not compel either party to agree to a proposal . . .
Neither that statute nor 29 U.S.C. § 157 obligates the employer to do any specific act. A casual perusal of the annotations in 29 U.S.C.A., particularly 29 U.S.C.A. 157, notes 78 and 104, and 29 U.S.C.A. 158, notes 126 and 127, would reveal that the employer is not even obligated to permit employee representatives to bargain on company time. Certainly, nothing in Title 29 obligated this employer to grant pension accrual, seniority rights and vacation credit for the "booked off" time spent in negotiating sessions or other union business. We therefore find no element of compulsion in this lending.
The matter lies squarely within the ambit of Sec. 31-292 as interpreted in Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 640(1936). We affirm the First District and dismiss the appeal.
Commissioners Robin Waller and George Waldron concur.