Opinion
No. CV 05 4007530
March 28, 2007
MEMORANDUM OF DECISION
I. BACKGROUND
In this matter, Council 4, American Federation of State, County Municipal Employees, AFL-CIO (AFSCME) appeals a decision and order of the Connecticut State Board of Labor Relations (Board), dated July 28, 2005, in favor of Donna Bligh. Upon a review of the record and the briefs of the parties, and after a hearing before the court conducted on March 7, 2007, the decision of the Board is affirmed.
Bligh alleged that AFSCME breached its duty of fair representation to her as a union member, in violation of General Statutes § 7-470. AFSCME's appeal, filed September 8, 2005, is made to the superior court pursuant to the provisions of General Statutes § 4-183 (UAPA). AFSCME claims that the Board's decision is in violation of its statutory authority and General Statutes § 7-467 et seq., and that it is made upon unlawful procedure, affected by error of law, clearly erroneous in view of reliable, probative and substantial evidence on the whole record and, in addition, that it is arbitrary, capricious and an abuse of the Board's discretion.
General Statutes § 7-470(b) provides in part, as follows: "Employee organizations or their agents are prohibited from: . . . (3) breaching their duty of fair representation pursuant to section 7-468 . . ."
General Statutes § 4-183(j) provides, as follows: "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. For purposes of this section, a remand is a final judgment."
Upon finding that AFSCME violated its duty of fair representation, the Board ordered AFSCME to pay Bligh's attorneys fees and costs. In its appeal of this order, AFSCME seeks the reversal of the Board's decision and such other relief the court deems just, equitable and proper.
As a preliminary matter, AFSCME seeks to strike Bligh's brief as untimely. AFSCME alleges and Bligh admits that her brief was filed approximately two weeks after the deadline of June 7, 2006, established pursuant to the scheduling order in this case. Although AFSCME cites no particular authority for its motion to strike the late-filed brief, the court notes that it may issue an "order as the ends of justice require" pursuant to Practice Book § 14-7. The court finds that although the scheduling order was violated by Bligh, no prejudice to any party has resulted from her failure to file a timely brief in this matter. Therefore, the court denies the motion to strike.
II. FACTUAL BACKGROUND
The following facts were reasonably found by the Board, based upon the record. Bligh was employed as a full-time secretary by the East Granby Board of Education. In particular, she served as the secretary to the Superintendent of Schools in a non-bargaining unit position. In March 2001, Bligh applied for a bargaining unit position at the Allgrove School within the East Granby school system. Although she was appointed to that position in April 2001, she continued to work part-time for the Superintendent of Schools for several months.
Three other employees had also applied for the secretarial job at the Allgrove School: Ms. Diane Fairbanks, Ms. Bobbie MacNaughton and Ms. Sally Guilmartin. All of these employees were employed by the East Granby school system in bargaining unit positions. In October 2001 the local AFSCME secretary discovered that Bligh was being paid $19.25 per hour in her new position. The local AFSCME president then requested wage information for all the bargaining unit members, specifically for the purpose of confirming Bligh's rate of pay.
In November 2001 Ms. Fairbanks and Ms. MacNaughton, two of the unsuccessful candidates for Bligh's position, were elected as the new president and vice-president of the local AFSCME bargaining unit, respectively. In December 2001 the union received the requested wage information, confirming the fact that Bligh was being paid $19.25 per hour. Although this hourly rate was consistent with her previous rate of pay and the same rate of pay as all other full-time secretaries in the bargaining unit, it was in excess of the collective bargaining agreement's salary schedule, which would have been $15.97 based upon her years of School Board service.
In February 2002 the local AFSCME secretary spoke to Bligh, telling her that some bargaining unit members were unhappy that she was making the same hourly rate as other, more senior secretaries. On March 22, 2002, AFSCME filed a grievance signed by four individuals, including MacNaughton who was one of the unsuccessful candidates for Bligh's position and then AFSCME local vice-president. The grievance alleged that the Superintendent failed to adhere to the salary schedule contained within the collective bargaining agreement when he in filled the secretarial position at the Allgrove School.
AFSCME never informed Bligh of this grievance. Instead, Bligh first learned of the grievance from the Superintendent of Schools, whereupon she requested information from Fairbanks (the local AFSCME president), including whether the grievance would result in a reduction in her wages. This specific question was not answered by Fairbanks. Instead, she told Bligh that the grievance was between AFSCME and the East Granby Board Of Education (School Board). Bligh also requested representation from AFSCME to protect her hourly wage, to which Fairbanks responded that she did not need representation. Although AFSCME disputes these facts, the court finds that there is substantial evidence in the record to support the findings of the Board regarding these factual conclusions. Transcript of Proceedings dated May 3, 2004, pp. 34-44, before the State of Connecticut Department of Labor, Board of Labor Relations.
The School Board denied the grievance but AFSCME pursued the grievance to the next level. Again Bligh attempted to get information from Fairbanks and requested union representation at the grievance hearing. Again, Fairbanks would not give Bligh specific information on whether AFSCME was trying to reduce her wages, saying only that the grievance was the result of Bligh's hourly rate being above the salary scale. Fairbanks again denied Bligh's request for union representation, and again stated that the matter was between the School Board and AFSCME. Although AFSCME disputes these facts, the court finds that there is substantial evidence in the record to support the findings of the Board regarding these factual conclusions. Transcript of Proceedings dated May 3, 2004, pp. 76-82, before the State of Connecticut Department of Labor, Board of Labor Relations.
Bligh eventually retained legal counsel at her own expense, who investigated the matter on her behalf. Her legal counsel found that two other School Board employees had moved from non-union positions into the bargaining unit at the same hourly rate they had received previously, notwithstanding a lower hourly rate contained in the salary schedule, established pursuant to the collective bargaining agreement. Bligh's legal counsel also directed AFSCME's attention to a provision in the collective bargaining agreement, which he believed permitted the Superintendent to approve wages, such as Bligh's, that depart from the salary schedule. After informing AFSCME of the similarly situated employees and the contract provision, AFSCME proceeded with its grievance directed toward Bligh alone and did not include the other, similarly situated employees, including the previously mentioned Ms. Guilmartin, in the grievance action.
Section 33 of the collective bargaining agreement provides that new personnel may be credited with prior service at the discretion of the Board of Education. The School Board and AFSCME ultimately agreed that this language allowed the Superintendent to credit Bligh with her past experience as a employee of the School Board and that she need not be placed on the salary schedule as claimed by AFSCME. See Decision And Order In The Matter of Council 4, AFSCME, AFL-CIO and Donna Bligh, Case No. MUPP-24,184, Decision No. 4066, July 28, 2005, pp. 8-9, Factual Finding No. 38.
Bligh submitted written arguments against AFSCME's position and sought to participate in the grievance process. Although the Union representative objected to Bligh's presence and participation at the next grievance hearing, the School Board allowed Bligh and her legal counsel to participate in the grievance proceedings. The grievance was again denied and AFSCME appealed. During the pendency of the appeal, the parties settled the issue of Bligh's wages in a manner that resulted in no change in her hourly rate, notwithstanding the salary schedule contained in the collective bargaining agreement.
Based upon these factual findings, the Board found that AFSCME had acted in bad faith in that it was deceitful and intentionally misleading toward Bligh and had therefore violated its duty of fair representation. Consequently, the Board ordered AFSCME to pay her reasonable attorneys fees and the costs she had incurred in this case.
III. DISCUSSION A. Standard of Review
Under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., judicial review of an agency decision is very restricted. See MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001). Section 4-18(j) of the General Statutes provides as follows: "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."
Stated differently, "judicial review 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." (Internal quotation marks omitted.) Schallenkamp v. DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994). An administrative finding is supported by substantial evidence if the record affords a reasonable basis of fact from which the fact in issue can be reasonably inferred. Dolgner v. Alander, 237 Conn. 272, 281, 676 A.2d 865 (1996). Although the substantial evidence test allows the administrative agency to resolve inconsistencies in the evidence and make credibility determinations, the test requires something beyond conclusory and general statements in the record. Id., 281-82. Furthermore, "[i]t is fundamental that a plaintiff has the burden of proving that the [agency], on the fact before [it], acted contrary to law and in abuse of [its] discretion . . ." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
B. Duty of Fair Representation
In the case before the court, AFSCME is subject to the Municipal Employee Relations Act (MERA), §§ 7-467 et seq., in which § 7-468(d) specifically provides that: "as the exclusive representative of employees in an appropriate unit, [the union] shall have a duty of fair representation." The Board has found that AFSCME breached this duty to Bligh.
The U.S. Supreme Court has held that "a breach of the duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminating, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190, 17 L.Ed.2d 842, 87 S.Ct. 903 (1967). Connecticut courts have upheld the State Labor Board's reliance upon this federal definition. See Brantley v. New Haven Firefighters, Local 825, Superior Court Judicial District of New Haven, Docket No. CV 04 4004588 (July 25, 2005, Corridino, J.) [ 39 Conn. L. Rptr. 701]; also see Waterbury Firefighters v. State Board of Labor Relations, 1998 Conn.Super. LEXIS 1237, 1998 Ct.Sup. 5846, McWeeny J., also see Labbe v. Hartford Pension Commission, 239 Conn. 168, 193-95, 682 A.2d 490 (1996).
Our Supreme Court, in Labbe v. Hartford Pension Commission, 239 Conn. 168, 682 A.2d 490 (1996), has further reasoned that the duty of fair representation requires a union to "represent its members in good faith. This duty of fair representation derives from the union's status as the sole bargaining representative for its members. As such, the union has the exclusive right and obligation to act for its members and to represent their interests . . . Because the individual members are thereby deprived of the opportunity to represent themselves or to select a minority union, this duty of fair representation is a necessary bulwark to prevent arbitrary union conduct . . . The duty of fair representation requires the union to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion in complete good faith and honesty, and to avoid arbitrary conduct . . . In light of these principles, we conclude that a union's actions are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a wide range of reasonableness . . . as to be irrational. Furthermore, a union's actions are in bad faith if the union acts fraudulently or deceitfully . . . or does not act to further the best interests of its members." (Citations and Internal Quotations Omitted.) Labbe v. Hartford Pension Commission, supra, 239 Conn. 193-95.
In its decision in this matter, the Board has adequately summarized the legal standard applicable to a union's duty of fair representation. The Board appropriately found that AFSCME filed a grievance which, if granted, would have reduced Bligh's hourly wage from nineteen dollars and twenty-five cents to fifteen dollars and ninety-seven cents, which is a position adverse to Bligh's interest as a member of the union. The Board acknowledged that taking a position adverse to one of its members would not breach AFSCME's duty of fair representation, so long as it had a legitimate interest in taking such a position, such as protecting the integrity of the collective bargaining agreement, and did not involve hostile discrimination based on irrelevant and invidious considerations. Based upon substantial evidence in the record of the proceedings before the Board, it was determined that AFSCME's conduct in pursuing the grievance involving Bligh to arbitration was discriminatory.
In particular, based upon substantial evidence in the record, the Board found that AFSCME took no similar grievance action toward similarly situated bargaining unit members, made known to it prior to the June 2002 hearing before the School Board. Therefore, the Board found that AFSCME engaged in discriminatory conduct when it knowingly pursued a grievance and requested a remedy which would have adversely affected Bligh individually, compared to similarly situated bargaining unit members.
The Board also found, based upon substantial evidence in the record, that AFSCME acted in bad faith in that it was deceitful and intentionally misleading in representations made to Bligh. The court finds that there is ample evidence in the record for the Board to have reached this conclusion. In this case, the local AFSCME president repeatedly told Bligh that the grievance had nothing to do with her when, in fact, it had everything to do with the union's attempt to substantially reduce her hourly wages. The fact that the local AFSCME president and vice president were competitors for Bligh's position is an appropriate and compelling factor in the Board's conclusion that the union's actions were discriminatory, deceitful and intentionally misleading.
In a supplemental brief filed with the court on March 21, 2007, AFSCME claims that an additional legal issue is present in this appeal. Specifically, it claims that the duty of fair representation is inapplicable where there is no allegation of a breach of the collective bargaining agreement by the employer, citing Masto v. Board of Education, 200 Conn. 482, 511 A.2d 310 (1986). In Masto, the union had determined that the union member's grievance lacked merit. The court agreed that a union cannot be held liable for failing to pursue a grievance that had no merit because there was no breach of the collective bargaining agreement by the employer. However, instead of failing to pursue a claim lacking merit against an employer, as was the case in Masto, here it has been found and determined by the Board that the union, in fact, pursued a discriminatory claim in a deceitful manner against one of its members. Masto is therefore inapplicable to the case before the court.
C. Attorneys Fees and Costs
In its decision, the Board ordered AFSCME to pay Bligh's attorneys fees and costs, subject to the Board's approval. As authority for this order, the Board cites General Statutes § 7-471(5), which requires the Board to "take such further affirmative action as will effectuate the policies of [collective bargaining under MERA]," upon finding that a prohibited practice has been committed. Consistent with other superior court case law, the awarding of a prevailing parties costs and expenses is within the discretion of the Board, so long as the union has the opportunity to examine and challenge the reasonableness of the attorneys fees and cost incurred. See Local 1042, AFSCME, Council 4, AFL-CIO v. Connecticut State Board of Labor Relations, Superior Court, Judicial District of New Britain, Docket No. CV 99 0493379 (June 1, 1999, McWeeny J.).
General Statute section 7471(5)(B) provides: "If, upon all the testimony, the board determines that a prohibited practice has been or is being committed, it shall state its findings of fact and shall issue and cause to be served on the party committing the prohibited practice an order requiring it or him to cease and desist from such prohibited practice, and shall take such further affirmative action as will effectuate the policies of sections 7-467 to 7-477, inclusive, including but not limited to: 6) Withdrawal of certification of an employee organization established or assisted by any action defined in said sections as a prohibited practice, (ii) reinstatement of an employee discriminated against in violation of said sections with or without back pay, or (iii) if either party is found to have refused to bargain collectively in good faith, ordering arbitration and directing the party found to have refused to bargain to pay the full costs of arbitration under section 7-473c, resulting from the negotiations in which the refusal to bargain occurred."
IV. CONCLUSION
For the reasons set forth above, the Board's decision in this matter is affirmed.