Opinion
HHBCV196053364S
12-10-2019
South Central Connecticut Regional Water Authority v. Connecticut State Board of Labor Relations et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Cordani, John L., J.
MEMORANDUM OF DECISION
John L. Cordani, Judge
I. INTRODUCTION
This is an appeal from a final decision of the Connecticut State Board of Labor Relations (Board) finding that the South Central Connecticut Regional Water Authority (plaintiff) violated the Municipal Employees Relations Act (MERA), General Statutes § 7-467 et seq., by failing to properly bargain with the United Steelworkers Union, Local 12160 (Union) concerning changes to two alleged conditions of employment.
II. FACTS AND PROCEDURAL HISTORY
The plaintiff is a quasi-governmental entity that provides water to seventeen towns in Connecticut. Some of the plaintiff’s employees are represented by the Union and the plaintiff is regulated by MERA. The plaintiff and the Union were parties to a collective bargaining agreement for the term from April 14, 2013 through April 15, 2018. On April 27, 2017, the Union filed a complaint with the Board alleging that the plaintiff had violated MERA by unilaterally implementing changes to certain alleged conditions of employment involving personal use of the plaintiff’s computers by employees while on break, and the ability of employees to make up missed work time under certain circumstances. Hearings were held before the Board on August 30 and September 21, 2018. The Board issued its decision on May 17, 2019, finding that the plaintiff violated MERA by failing to bargain with the Union concerning personal use of the plaintiff’s computers by employees while on break and the ability of employees to make up time under certain circumstances. The Board ordered restoration of what it found to be past practices in these areas. The plaintiff has appealed the Board’s decision to this court.
The plaintiff is aggrieved because it is appealing from a Board decision finding that the plaintiff violated MERA and ordering restoration of certain alleged past practices, which orders impact upon the plaintiff’s business.
III. STANDARD OF REVIEW
This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183. Judicial review of an administrative decision in an appeal under the UAPA is limited. Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000). "[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable ... Neither [the Supreme Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact ... Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Id.
Section 4-183(j) provides in relevant part: "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law: (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings."
Although the courts ordinarily afford deference to the construction of a statute as applied by the administrative agency empowered by law to carry out the statute’s purposes, "[c]ases that present pure questions of law ... invoke a broader standard of review than is ... involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010).
IV. ANALYSIS
The underlying complaint by the Union alleged that the plaintiff unilaterally changed three established past practices, two which are relevant to this appeal, without bargaining with the Union. First, the Union alleged that the plaintiff should have bargained with the Union over its instruction to employees to take their breaks away from their work stations because such instruction impinged upon a condition of employment, namely the employees’ use of the plaintiff’s computers for personal purposes during breaks. Second, the Union alleged that the plaintiff placed new restrictions on the employees’ ability to make up work time under certain circumstances.
A basic foundation of labor law is the obligation of an employer to negotiate in good faith with its union over the conditions of employment. See, e.g., West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 579 (1972) (stating that MERA "imposes on the parties the duty to confer in good faith with respect to wages, hours, and other conditions of employment" [internal quotation marks omitted] ). An employer can violate MERA when, absent a defense, it unilaterally changes an existing condition of employment that is subject to a mandatory obligation to negotiate in good faith. Id., 578. A condition of employment may be established either by explicit agreement of the parties or by a clearly enunciated and consistent past practice that has endured over a reasonable length of time. See, e.g., Board of Education of Region 16 v. State Board of Labor Relations, 299 Conn. 63, 73 (2010) (indicating that, "[t]o establish a unilateral change of a condition of employment, the union must establish that the employment practice was clearly enunciated and consistent, [that it] endure[d] over a reasonable length of time, and [that it was] an accepted practice by both parties" [emphasis omitted; internal quotation marks omitted] ). "Condition of employment" is a term of art in labor law which designates a condition that is subject to the mandatory obligation to negotiate in good faith. See, e.g., West Hartford Education Assn., Inc. v. DeCourcy, supra, 162 Conn. 576 (noting that "[t]he significance of calling something a condition of employment is that it then becomes a mandatory subject of collective bargaining"). Thus if a condition of employment is proved, a mandatory obligation arises to negotiate in good faith over non-insubstantial changes to that condition. Id .
A prima facie case of unlawful unilateral change exists where the union proves a specific condition of employment which has been changed unilaterally by the employer in a non-insubstantial manner without good faith negotiation. See, e.g., Board of Education of Region 16 v. State Board of Labor Relations, supra, 299 Conn. 75 (noting that "the burden is on the union as complainant to prove that there has in fact been a practice and that it has in fact been changed" [internal quotation marks omitted] ). It is a defense to such a charge that the employer’s legitimate unilateral action only impinged upon a condition of employment to a de minimus or insubstantial degree when weighed against the employer’s right to take unilateral action. Id., 74-75.
The employer generally retains the right to make traditionally managerial decisions such as setting business policy and goals, managing the overall business, and managing its employees and the workplace generally. West Hartford Education Assn., Inc. v. DeCourcy, supra, 162 Conn. 583. These traditionally managerial decisions lie at the heart of entrepreneurial control. Id. Sometimes, however, traditionally managerial decisions can impact conditions of employment, and in such cases the court must weigh the rights and goals of management in making such decisions against the depth or significance of the impingement on the conditions of employment. See id. Further, if management decisions cause changes to conditions of employment, no violation of MERA occurs if the change caused is insubstantial or de minimus. Board of Education of Region 16 v. State Board of Labor Relations, supra, 299 Conn. 74-75.
A. PLAINTIFF’S CONTROL OF ITS WORK AREA
On April 4, 2017, the plaintiff announced to its employees, without bargaining with the Union, that they were required to take their breaks away from their work stations. The plaintiff explained that this rule was required for several reasons. First, the rule ensured that employees did not work during their breaks. This important, because the plaintiff may be accused of violating the collective bargaining agreement by not appropriately providing breaks if employees work during their break time, and the plaintiff may be held liable for failing to pay for that extra time worked. Second, employees on break at their work stations may interfere with the work of the nearby employees when working in such close quarters. Third, taking breaks at work stations may cause confusion among other employees and customers. Lastly, the plaintiff determined that its customers’ experiences would be enhanced if employees did not take their breaks at their work stations. Upon this instruction, the Union complained that forcing employees to take breaks away from their work stations interfered with the employees’ ability to use the plaintiff’s computers for personal purposes during breaks. In response, the plaintiff provided computers in the break room for the employees to use during breaks. This accommodation did not satisfy the Union, which claimed that the two-minute walk to the break room one floor below and the turn on/log-in procedures for the computers there interfered with the employees’ full use of them.
The record contains evidence that previously and for a reasonable period of time, employees took breaks at their work stations. The record contains conflicting evidence of whether the plaintiff was aware that employees were using the plaintiff’s computers for personal purposes. The collective bargaining agreement has no provisions that would give employees the right to use the plaintiff’s computers for personal purposes, or to stay at their work stations during breaks. As is typical, the plaintiff retained its rights to properly manage its business and its employees within the terms of the collective bargaining agreement.
The Board concluded the following:
Limiting the immediate area of the workplace to actively working employees, in our view, directly concerns the assignment of Water Authority personnel and the technology of performing CSD work. Access to a Water Authority computer for personal use on break time is, however a different matter.In re South Central Regional Water Authority & United Steelworkers, Local 12160, Conn. Board of Labor Relations Decision No. 5072 (May 17, 2019) p. 8. Thus, the Board correctly concluded that it was the plaintiff’s managerial right to require that employees leave their work stations during their breaks, and that the plaintiff generally had the right to make this instruction unilaterally without bargaining. However, because this instruction impinged on the past practice of allowing the employees to use the computers for personal purposes, the Board found that the plaintiff was required to bargain over the change.
One of the three members of the Board dissented from this point. See In re South Central Regional Water Authority & United Steelworkers, Local 12160, Conn. Board of Labor Relations Decision No. 5072 (May 17, 2019) pp. 12-13.
What is clear here, and a point on which everyone involved appears to agree, is that the plaintiff’s right to manage its business, employees, and premises included the ability to require its employees to leave their work stations while on break. This instruction by the plaintiff served appropriate and necessary goals including: (i) ensuring that employees take breaks when they are supposed to; (ii) avoiding liability for unknowingly inaccurately paying employees; (iii) increasing the efficiency of working employees and reducing confusion; and (iv) enhancing the customer experience. The foregoing are important goals that the plaintiff reasonably expected to achieve by exercising its legitimate management rights. Thus, the plaintiff had the unilateral right to require employees to leave their work stations during their breaks. This instruction, however, has had an unintended consequence of impinging on the employees’ personal use of the plaintiff’s computers, which are installed at each work station, during their breaks.
Managerial decisions which lie at the core of entrepreneurial control in such areas of discretion and policy as the mission of the agency, its budget, its organization and the assignment of its personnel, or the technology of performing its work are not mandatory topics of bargaining. West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 583-84 (1972).
The first issue to consider is whether use of the plaintiff’s computers for personal purposes during breaks is a condition of employment. Nothing in the collective bargaining agreement grants this right. It appears, however, that use of the plaintiff’s computers by employees for personal purposes during their breaks was a prior practice that had continued for a reasonable amount of time in the past. The Board found that this personal use of computers was a condition of employment.
No policy preventing this practice was introduced into evidence.
However, the Board’s analysis in this regard was incomplete. Given the plaintiff’s managerial right and obligation to control the work area and the technology used for the work, the Board was required to weigh the interests of the plaintiff against the interests of the Union to determine whether the matter was one to which an obligation of mandatory negotiation applied. In this regard, the considerations provided for in West Hartford Education Assn., Inc. v. DeCourcy, supra, may assist in distinguishing between exempt managerial functions and those that unduly impinge upon conditions of employment subject to mandatory good faith bargaining. Here, the Board was to consider whether the extent of impingement caused by the plaintiff’s legitimate management instruction, that employees leave work stations during breaks, on the conditions of employment outweighs the plaintiff’s legitimate interests in managing its business, employees and premises.
"The use of the phrase ‘conditions of employment’ reflects a judgment that the scope of negotiations should be relatively broad, but sufficiently flexible to accommodate the changing needs of the parties ... Nevertheless, the phrase ‘conditions of employment’ limits the area of negotiability ... In many of these areas the impact of a particular management decision upon job security may be extremely indirect and uncertain and this alone may be sufficient reason to conclude that such decisions are not ... conditions of employment ... [This should not] be understood as imposing a duty to bargain collectively regarding such managerial decisions which lie at the core of entrepreneurial control." (Citations omitted; internal quotation marks omitted.) Id., 581-83.
The answer here appears to be crystal-clear. The plaintiff has very substantial legitimate managerial interests in ordering employees away from their work stations during breaks. These legitimate interests should be shared by the Union. In comparison, the Union’s interest in demanding effortless access to the plaintiff’s computers for the employees’ personal use during breaks pales in comparison, particularly when we acknowledge the fact that the plaintiff provided computers in the break room one floor below. Thus, this analysis focuses on the balance between the plaintiff’s legitimate and important managerial rights on one hand, and the minor inconvenience of a two minute walk and computer log-in procedures on the other hand. Clearly, the impact of the plaintiff’s legitimate management instruction on the employees’ conditions of employment is insubstantial and de minimus. The plaintiff had no obligation to bargain with the Union over its instruction to have employees leave their work stations during breaks and therefore the plaintiff has not violated MERA by its instruction. Given the alternate computers made available, the impingement upon the conditions of employment caused by the Plaintiff’s instruction was insubstantial and de minimus as weighed against the plaintiff’s interests, and the Board’s finding otherwise was affected by error of law, and was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.
Secondly, even if the personal use of the plaintiff’s computers during breaks was found to be a condition of employment because of past practice, it is a defense to the Union’s claim if the plaintiff can prove that its legitimate managerial unilateral action only resulted in a de minimus or insubstantial change to the condition of employment. Such is the case here. Thus, a claim of violation of MERA in this regard only arises if the plaintiff made a unilateral non-insubstantial change to a condition of employment. Here the impact of the managerial instruction coupled with the computers supplied on the floor below amounted to requiring the employees to walk to the floor below and log into the computers provided. Thus, personal use of the plaintiff’s computers during breaks was preserved with a slight inconvenience to the employees. Keeping in mind the substantial interests of the plaintiff, this change is clearly insubstantial or de minimus. As a result, no obligation to bargain over this insubstantial change arose and there was no violation of MERA. The Board’s finding otherwise was affected by error of law, and was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.
B. THE USE OF MAKE UP TIME
Full-time employees of the plaintiff are generally assigned shifts of either 8 a.m. to 5 p.m., or 9 a.m. to 6 p.m., Monday through Friday. Employees have staggered breaks and lunch times to ensure continuous coverage. "Make up time" refers to an employee’s ability to work during part of his or her assigned lunch period, or during hours not generally assigned to that employee, to make up missed time. In this regard the Union claims that the plaintiff unilaterally changed its make up time policy without negotiating with the Union.
The collective bargaining agreement has three provisions that are particularly relevant to this analysis:
Section 18.01: The work day shall consist of eight (8) paid hours of work time interrupted by a lunch period which is without pay, and the week shall consist of five (5) consecutive eight (8) hour days ...
Section 19.01: All employees shall be given a stated hour for reporting for work, and shall be given reasonable notice of any change in starting time, except in case of emergency.
Section 32.01: ... With supervisory approval, an employee’s vacation allotment may be taken in two hour increments ...
See In re South Central Regional Water Authority & United Steelworkers, Local 12160, supra, Conn. Board of Labor Relations Decision No. 5072, pp. 2-3. Accordingly, the court concludes from the collective bargaining agreement that the employees are to work five consecutive eight-hour days with an unpaid lunch break and that the plaintiff will assign a specific start time to each employee. Vacation time requires supervisory approval and may be taken in a minimum of two-hour increments. The foregoing terms appear to be typical provisions that ensure proper staffing levels for the plaintiff and orderly management of time while providing reasonable convenience to the employees.
The Board found that a prior practice existed. The Board imprecisely and partially defined the prior practice as follows:
For many years prior to April 2017, CSD staff were allowed to offset or make up work time lost due to an employee’s late arrival or early departure by working while the CSD was open either before or after the employee’s regular shift hours and/or during one half of the employee’s scheduled lunch hour. Make up time was permitted provided a supervisor was notified, minimum staffing requirements were not violated, there was work for the employee to perform, and the work was performed during CSD’s hours of operation and the same day as the early departure/late arrival.In re South Central Regional Water Authority & United Steelworkers, Local 12160, supra, Conn. Board of Labor Relations Decision No. 5072, p. 3. The court further discerns that an employee will be assigned a start time of either 8 a.m. or 9 a.m. and a one-hour unpaid lunch for an eight-hour workday. Vacation time is approved by supervisors. Approval of vacation time must be obtained in advance unless it involves an unexpected emergency. If an employee arrives late or needs to leave early, the employee may be allowed to make up that time either before or after their assigned shift or during one-half of their assigned lunch time if the following conditions are met: (i) minimum staffing requirements of the plaintiff are maintained; (ii) there is work for the employee to perform during the proposed make up time; (iii) the proposed make up time occurs during a time of the plaintiff’s normal operation; and (iv) the make up time occurs the same day as the missed time.
This past practice was summarized in a memo written by plaintiff’s manager Don Cliang dated June 5, 2014. See In re South Central Regional Water Authority & United Steelworkers, Local 12160, supra, Conn. Board of Labor Relations Decision No. 5072, pp. 3-4. At argument, the parties agreed that the Cliang memo accurately summarized aspects of the prior practice. However, the memo must be read in conjunction with the collective bargaining agreement. The past practice concerning make up time is accurately and fully described by the court later in this decision.
The Cliang memo states that non-emergency time off continues to require at least 24 hours advance approval by a supervisor. If time is not made up the same day, vacation time must be used. "No pay" time will not be granted if vacation time is available. Id.
The Union’s claim of a unilateral change to the foregoing condition arises from an April 5, 2017 email from the plaintiff’s vice president Donna DiGianvittorio to the Union’s vice president Wanda Howard stating in relevant part:
[CSD] work schedules are 8:00 am to 5:00 pm [and] 9:00 am to 6:00 p.m. ... Arrival on time is expected ... There is no make up time if you are late.In re South Central Regional Water Authority & United Steelworkers, Local 12160, supra, Conn. Board of Labor Relations Decision No. 5072, p. 5. The Union asserted that this communication, in its instruction that "there is no make up time if you are late," changed the past practice described above.
The plaintiff appears to have backed away from this statement during the hearing below.
The Board found that the Union proved an unrebutted past practice concerning make up time as described above and thus the practice was a condition of employment. The Board further determined that "[a] past practice affording employees the ability to work make up time to offset early departure or late arrival is a mandatory topic" of bargaining, and that the plaintiff’s unilateral elimination of that past practice was a violation of MERA. The court finds that the record contains substantial evidence to support the Board’s findings in this regard and that the Board’s conclusion was not clearly erroneous, arbitrary and capricious, or an abuse of discretion.
The terms of that past practice are accurately described in the Cliang memo of June 5, 2014 when read in conjunction with the collective bargaining agreement.
The plaintiff’s collective bargaining agreement and its proven past practice establish the following condition of employment:
A full time employee will be assigned a start time of either 8:00 a.m. or 9:00 a.m. and a one hour unpaid lunch time for an eight hour workday. Vacation time is to be approved by supervisors in a minimum of two hour increments. Approval of vacation time must be obtained in advance, with at least 24 hours advance notice, unless it involves an unexpected emergency. Employees must start work at their assigned start time and end work at their assigned end time absent an unexpected emergency or advance management approval. If an employee arrives late or needs to leave early, the employee may be allowed to make up that time either before or after their assigned shift or during one half of their assigned lunch time if the following conditions are met: (i) minimum staffing requirements of the plaintiff are maintained, (ii) there is work for the employee to perform during the proposed make up time, (iii) the proposed make up time occurs during a time of the plaintiff’s normal operation, and (iv) the make up time occurs the same day as the missed time. The make up time must be approved by management in accordance with the foregoing conditions.
The foregoing condition of employment, as defined by both the collective bargaining agreement and the proven past practice, involves the work hours of the employees, a classic condition subject to mandatory negotiation with the Union. The plaintiff attempted to change the foregoing by issuing the April 5, 2017 email from the plaintiff’s vice president Donna DiGianvittorio to the Union’s vice president Wanda Howard unilaterally without negotiation with the Union, and thereby the plaintiff violated MERA.
V. ORDER
The appeal as it pertains to the plaintiff’s ability to control the work area and the employees’ use of the plaintiff’s computers for personal purposes during breaks is sustained, and the Board’s order to "[r]estore and recognize the personal computer use practice in effect for consumer service department staff prior to April 4, 2017" is vacated.
The appeal is dismissed in all other aspects, except that the prior practice concerning make up time is as fully defined by the court herein.