Opinion
HHBCV185024211S
09-11-2019
Joan O’Rourke v. Connecticut Department of Labor 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UNPUBLISHED OPINION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.
INTRODUCTION
The plaintiff, Joan O’Rourke, brought this appeal under Section 4-183 of the Uniform Administrative Procedure Act (UAPA), contesting the final decision of the defendant State Board of Labor Relations (Board), which dismissed the plaintiff’s complaint. The underlying complaint, which was dismissed, was a hybrid breach of contract/duty of fair representation complaint, alleging that (1) defendant Connecticut Department of Children and Families (DCF) breached the collective bargaining agreement by terminating the plaintiff’s employment without just cause, and (2) defendant AFSCME, Council 4, Local 2663 (union) committed a prohibited practice by failing to fairly represent the plaintiff during the termination grievance proceeding.
FACTS AND PROCEDURAL HISTORY
The plaintiff was employed by DCF as an investigative social worker. She was discharged from that employment for (i) providing a confidential draft DCF report to opposing counsel without permission to do so, (ii) disclosing DCF confidential information to a third party over a period of years, and (iii) leaving a child, who was in DCF care, unattended in a car. The plaintiff has not contested the foregoing three facts. The unauthorized disclosure of a confidential DCF report to opposing counsel by the plaintiff prompted an internal DCF investigation that ultimately resulted in termination of the plaintiff’s employment. The plaintiff’s union represented the plaintiff at the termination grievance proceeding. The plaintiff lost at the termination grievance proceeding, and her employment with DCF was terminated. Thereafter, the plaintiff brought a hybrid breach of contract/duty of fair representation complaint before the Board, alleging (1) DCF breached the collective bargaining agreement by terminating the plaintiff’s employment without just cause, and (2) the union committed a prohibited practice by failing to fairly represent the plaintiff during the termination proceeding. The Board asserted jurisdiction over the claims pursuant to the holding in Piteau v. Board of Education, 300 Conn. 667, 15 A.3d 1067 (2011). Hearings were held on fourteen occasions over several years. On September 6, 2018, the Board issued its decision, finding that the plaintiff failed to meet her burden of proof on her claim that the union failed to fairly represent her in the termination grievance proceeding. The Board dismissed the complaint.
The record contains evidence that the plaintiff admitted these three facts. (See the arbitration decision.) The plaintiff confirmed the foregoing admissions in the hearing before this court. Each of these admitted facts is very serious in nature in supporting termination of the plaintiff’s employment. At the termination grievance proceeding the plaintiff and the union sought to introduce evidence of mitigation and justification as a defense.
In Piteau, the Supreme Court held that the Board has jurisdiction over hybrid actions that assert both a breach of duty of fair representation against a union and a breach of collective bargaining agreement against the employer because the two claims are inextricably intertwined, such that if the plaintiff fails on either claim, then the plaintiff fails on both. Piteau v. Board of Education, 300 Conn. 667, 688-89, 15 A.3d 1067 (2011).
STANDARD OF REVIEW
This appeal is brought pursuant to 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.) Courts ordinarily afford deference to the construction of a statute applied by the administrative agency empowered by law to carry out its purpose.
General Statutes § 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."
An agency’s factual determinations are to be accorded considerable weight by the courts. Longley v. State Employees Retirement Commission, 284 Conn. 149, 163 (2007). The agency acts as the finder of fact, and as a result the agency’s determination of the facts ordinarily should not be disturbed provided the record contains substantial evidence to support the agency’s findings of fact. A court ordinarily should defer to the agency’s determination, as the finder of fact, to believe or disbelieve the evidence presented by any witness, including expert witnesses, in whole or in part. Bancroft v. Commissioner of Motor Vehicles, 48 Conn.App. 391, 400, cert. denied, 245 Conn. 817 (1998). See also Frank v. Dep’t of Children & Families, 312 Conn. 393 (2014).
ANALYSIS
In the underlying administrative proceeding, the plaintiff had the burden of proving that the union breached its duty to fairly represent her during the termination grievance proceeding. The record contains substantial evidence to support the Board’s finding that the plaintiff failed to meet her burden of proof. In this regard, the administrative record contains substantial evidence supporting the Board’s finding that the plaintiff’s complaint amounted to mere after the fact dissatisfaction with the union’s litigation strategy in light of the adverse arbitration award. The record contains substantial evidence that the union fairly, even vigorously, represented the plaintiff in the termination grievance proceeding despite the fact that the plaintiff had admitted the serious actions for which her employment was being terminated. In fact the record contains substantial evidence that the plaintiff and her union representative worked closely and collaboratively with each other in her defense at the termination grievance proceeding. A review of the arbitration decision reveals that the plaintiff’s union representative, Mr. Cunningham, made the arbitrator keenly aware of the plaintiff’s positions, including that the plaintiff believed that (i) the plaintiff and her supervisor, Ms. Fitzpatrick, had a very adversarial relationship which DCF did little to address, (ii) Fitzpatrick had falsified records and was engaged in a cover up, (iii) Fitzpatrick was looking for reasons to have the plaintiff’s employment terminated, (iv) the DCF internal investigation was unfair, and (v) her actions were justified when she took them. The arbitrator considered these claims of the plaintiff but ultimately decided that they did not justify the plaintiff’s admitted conduct.
Aggrievement in this matter is apparent and was not contested.
The plaintiff’s union representative, Mr. Cunningham, was known to the plaintiff and had successfully represented the plaintiff in previous matters with her employer.
See in particular the final decision of arbitrator Brown in the termination grievance proceeding (Document 23 in the Record Index). See also the termination grievance proceeding briefs and the testimony before the Board (Documents 17, 28, 29, 41, and A of the Record Index).
The duty of fair representation arises from a union’s legal status as exclusive employee representative with the employer. That status necessarily entails an obligation to honestly serve the interests of all members without hostility or discrimination toward any and to exercise its discretion with good faith and honesty. Vaca v. Sipes, 386 U.S. 171 (1967). The duty of fair representation applies to grievances that a union submits to arbitration, as happened in the underlying grievance here. To establish a breach of the duty of fair representation in the underlying administrative proceeding, the plaintiff bore the burden to prove that the union breached its obligation. Mere disagreements with strategy and tactics are not enough to establish a breach of the duty of fair representation. Even negligence on the part of the union is insufficient to establish a breach. Instead, in order to establish a breach of the duty of fair representation the plaintiff bore the burden of establishing that the union (i) acted with hostility or animus towards the plaintiff, (ii) acted with purposeful discrimination against the plaintiff, or (iii) acted in bad faith. See Acuff v. United Papermakers & Paperworkers, AFL-CIO, 404 F.2d 169 (5th Cir 1968), cert denied 394 U.S. 987 (1969); Spielmann v. Anchor Motor Freight, Inc., 551 F.Supp. 817 (S.D.N.Y. 1982).
In its decision, the Board carefully considered all of the plaintiff’s complaints concerning the union representation of the plaintiff in the termination grievance proceeding. The Board considered the plaintiff’s allegations that the union (i) failed to raise relevant arguments and defenses, (ii) had a conflict of interest, and (iii) failed to file a motion to vacate. On each of these issues the Board took, evaluated and weighed the evidence, finding in each case that the plaintiff had not met her burden of proof. In the end, the Board concluded that the plaintiff failed to meet the burden of proof to establish that the union breached its duty of fair representation, finding instead that the plaintiff’s claims amounted to mere after the fact dissatisfaction with the union’s trial strategies and tactics, despite the union’s good faith efforts. This court finds that the record contains substantial evidence to support the Board’s conclusion.
In her appeal, the plaintiff makes the following arguments:
1. The Board’s decision was not founded on reason or fact.
2. The Board misstated many of the case facts.
3. The Board did not properly weigh the legal issue of indemnity in their decision.
4. The Board gave too much credit to the testimony of Neal Cunningham, her union representative, including not weighing the alleged concealment of criminal violations in determining whether to credit the testimony.
In making the foregoing arguments the plaintiff makes generalized assertions without pointing to any particularized deficiencies in the record or conclusions of law.
As to the first and second points, this court finds that the Board’s decision is supported by substantial evidence in the record. The plaintiff has not pointed to any particular deficiency in the record evidence. This court has reviewed the record and finds that substantial evidence exists to support the Board’s decision. This court further finds that the Board’s application of the law to the facts is not clearly erroneous and that the Board’s decision is not arbitrary or capricious.
As to the third point, the Board did consider the plaintiff’s allegations concerning indemnification. The Board explicitly disagreed with the plaintiff. In any regard, the issue of indemnification apparently went to the plaintiff’s alleged motivation and justification for her actions. As such, this is merely a fact to be considered by the Board in its weighing of evidence. The Board considered this evidence and gave it the weight it thought appropriate.
Lastly, the plaintiff asserts that the Board misjudged or improperly weighed evidence, specifically the testimony of the plaintiff’s union representative, Neal Cunningham. The Board concluded that Mr. Cunningham defended the plaintiff zealously and made legitimate tactical and strategic choices as expected of a union advocate. As noted in the standard of review, the assessment of facts is the province of the trier of fact- in this case, the Board. This court on appeal cannot re-weigh the evidence or reconsider the weight that the Board placed on particular pieces of evidence. Review of an administrative agency decision instead 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. This court has determined (i) that there is substantial evidence in the record to support the agency’s decision, (iii) that the plaintiff failed to meet her burden on appeal, and (iii) that the conclusions drawn by the Board are reasonable.
The plaintiff has appealed in her complaint for each of the statutory reasons specified in General Statutes § 4-183(j). Her brief did not address many of the issues specified in the statute. In any case, this court determines that the plaintiff has failed to establish on appeal that Board’s decision was (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. As such, the court dismisses the appeal.
ORDER
The plaintiff’s appeal is dismissed.