Opinion
HHBCV186046177S
03-20-2019
LOCAL 1716, COUNCIL 4, AFSCME v. CITY OF HARTFORD et al.
UNPUBLISHED OPINION
OPINION
Sheila A. Huddleston, Judge
The plaintiff, Local 1716, Council 4, AFSCME (union), appeals the final decision of the defendant Connecticut State Board of Labor Relations (board), which dismissed the union’s complaint that the defendant City of Hartford (city) had committed a practice prohibited under the Municipal Employee Relations Act (the act or MERA) by laying off bargaining unit tree trimmers and unilaterally transferring their work out of the bargaining unit to private forestry contractors. The board and the city argue that the board properly applied its well-established test for determining whether an employer’s unilateral change constitutes a prohibited practice. The defendants further argue that substantial evidence supports the board’s finding that the union failed to prove that the contracting out of tree trimming work varied significantly in kind or degree from what had been customary under established past practice. For the reasons stated below, the court concludes that the board’s decision is supported by substantial evidence and is consistent with the test the board has applied in many similar cases for nearly twenty-five years. Accordingly, the appeal is dismissed.
BACKGROUND
General Statutes § 7-470(a) provides in relevant part that "[m]unicipal employers ... are prohibited from ... (4) refusing to bargain collectively in good faith with an employee organization which has been designated ... as the exclusive representative of employees in an appropriate unit ..." The union alleges that the city violated § 7-470(a)(4) when it laid off two city employees and transferred their work to private contractors.
The board is authorized by General Statutes § 7-471(5) to hear and determine claims that a municipal employer has committed a practice prohibited by the act, including the failure or refusal to bargain over a mandatory subject of bargaining. In this case, the union filed a prohibited practices complaint with the board, which held a hearing on September 14, 2017, and October 18, 2017. Both parties appeared, were represented by counsel, and presented testimony that was subject to cross examination. Both parties presented exhibits that were made part of the record, and both parties filed post-hearing briefs on January 5, 2018. The board issued its decision dismissing the union’s complaint on May 31, 2018. This appeal followed.
General Statutes § 7-471(5) provides in relevant part as follows: "Whenever a question arises as to whether a practice prohibited by sections 7-467 to 7-477, inclusive, has been committed by a municipal employer or employee organization, the board shall consider that question ... (B) 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 ... (C) If, upon all of the testimony, the board determines that a prohibited practice has not been or is not being committed, it shall state its finding of fact and shall issue an order dismissing the complaint ..."
THE BOARD’S FACTUAL FINDINGS AND CONCLUSIONS OF LAW
The board found the following material facts.
The city is a municipal employer within the meaning of the act. The union is an employee organization within the meaning of the act. At all material times the union has been the representative of certain city employees, including the positions of Tree Trimmer I and Tree Trimmer II (tree trimmers).
The city and the union are parties to a collective bargaining agreement with effective dates of July 1, 2011 to June 30, 2015. Article II of that agreement, captioned "Management Rights," provides in relevant part: "Except as otherwise abridged or modified by any provision of this Agreement, it is the right of the City ... to determine the standards of service to be offered by its departments and agencies ... [and to] relieve its employees from duty because of lack of work or for other legitimate reasons." Article XIV, Section 14.07 provides in relevant part: "All work customarily performed by the employees of the bargaining unit shall continue to be so performed unless there is no bargaining unit member available. This does not limit the provisions of Article II of the Agreement, but the City agrees it will not lay off employees except for lack of work or funds." Article XI, Section 11.00, "Layoff," requires that "[a] department head shall give written notice to the employee and to the Union of any proposed layoff and the reasons therefore at least fourteen (14) calendar days prior to the effective date of such action."
For at least fourteen years before June 1, 2016, the city employed Freddie Cook and Brian Murray in the positions of Tree Trimmer I and II, respectively, in the forestry division of the department of public works (DPW). Tree trimmers perform tree and log removal, pruning, wood chipping, and stump grinding.
At the start of each regular work shift, Murray and Cook would report to a maintenance building at Colt Park, where a DPW supervisor, Heather Dionne, would give them their daily assignments. Murray and Cook also sometimes performed emergency work for which they received overtime compensation ranging from three to ten thousand dollars annually.
At all relevant times, the city also hired various private forestry contractors to perform work identical to that performed by Murray and Cook. Employees of these contractors received their daily assignments from Dionne at the same time and in the same place as Murray and Cook, worked the same regular hours, and also worked when necessary to address emergency and other calls for service. The city’s use of outside forestry contractors increased over time to the extent that during the five years preceding June 1, 2016, outside forestry contractors were routinely used on a daily basis.
In 2016, the city experienced a budget crises. By letters dated May 4, 2016, DPW’s director Marilyn Cruz-Aponte notified Murray and Cook as follows: "This letter is to inform you that your position ... is being eliminated from the Public Works Department ... Effective at the close of business on June 1, 2016, you are being separated from employment due to lack of general funds."
In 2016, the city laid off seven employees, including Murray and Cook, and substantially reduced its use of outside forestry contractors. From July 1, 2013, to June 30, 2017, the city expended the following sums for private forestry contractors and bargaining unit tree trimmer salaries and fringe benefits:
Forestry Contractors
Tree Trimmers
7/1/2013— 6/30/2014
636, 516
137, 437
7/1/2014— 6/30/2015
430, 788
138, 630
7/1/2015— 6/30/2016
1, 002, 443
138, 733
7/1/2016— 6/30/2017
593, 079
0
Having found the foregoing facts, the board then stated that "[a]bsent an adequate defense, an employer commits an unlawful refusal to bargain and a prohibited practice when it unilaterally transfers bargaining unit work to non-bargaining unit employees." It concluded that the city had not violated the act when it laid off bargaining unit tree trimmers because there was no transfer of work from the tree trimmers to the private forestry contractors. The record supported a conclusion that the private forestry contractors continued to provide the same type of services, in the same manner, as they had for years, and that in fact the use of these outside contractors decreased substantially after the layoffs. The board concluded that the union had failed to make a prima facie case of illegal transfer of bargaining unit work.
SCOPE OF REVIEW
This appeal is brought pursuant to General Statutes § 4-183. The scope of judicial review under § 4-183 is extremely limited. See Bancroft v. Commissioner of Motor Vehicles, 48 Conn.App. 391, 399, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998). "[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.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
The scope of review is set out in General Statutes § 4-183(j), which provides: "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."
"Even for conclusions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion ... [Thus] [c]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281, 77 A.3d 121 (2013). A plaintiff who challenges an agency decision has the "heavy burden of demonstrating that the department’s factual conclusion lacks substantial support on the whole record." Office of Consumer Counsel v. Dept. of Public Utility Control, 246 Conn. 18, 36-37, 716 A.2d 78 (1998).
ANALYSIS
In Fibreboard Paper Products Corp. v. National Labor Relations Board, 379 U.S. 203, 215, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), the United States Supreme Court held that the "contracting out" of work previously performed by members of a collective bargaining unit is a mandatory subject of collective bargaining. In Fibreboard, the Court held that the refusal to bargain about the contracting out of maintenance work formerly done by bargaining unit members was a prohibited practice. It took care to say, however, that its decision "need not and [did] not encompass other forms of ‘contracting out’ or ‘subcontracting’ which arise daily in our complex economy." Id., 215. The National Labor Relations Board (national board), which had issued the underlying order upheld in Fibreboard, subsequently explained that its "condemnation in Fibreboard and like cases of the unilateral subcontracting of unit work was not intended as laying down a hard and fast new rule to be mechanically applied regardless of the situation involved ... [E]ven where a subject of mandatory bargaining is involved, there may be circumstances which the Board could or should accept as excusing or justifying unilateral action." (Footnotes omitted; internal quotation marks omitted.) Westinghouse Electric Corp., N.L.R.B. Case No. 8-CA-3123 (1965). In Westinghouse, the national board described a number of factors that should be considered in determining whether a unilateral action violated the duty to bargain. Those factors included whether the contracting out was motivated solely by economic considerations; whether it comported with traditional methods by which the employer conducted its business operations; whether during the period in question it varied significantly in kind or degree from what had been customary under established past practice; whether it had a discernible impact on employees in the bargaining unit; and whether the union had the opportunity to bargain about changes in existing subcontracting practices at general negotiating meetings. In Westinghouse, where the employer had for many years contracted out significant portions of its maintenance and manufacturing work that could have been done by its union employees, the national board found no violation of the duty to bargain because it did not appear that "the subcontracting engaged in during the period in question materially varied in kind or degree from that which had been customary in the past." Id.
The terms "contracting out," "subcontracting," and "transferring" seem to be used interchangeably in the cases involving the assignment of work formerly done by members of a bargaining unit to a person or entity not in the bargaining unit. The person to whom the work is contracted out, subcontracted, or transferred may be an individual, a company, or a different bargaining unit.
In West Hartford Education Ass’n, Inc. v. DeCourcy, 162 Conn. 566, 584, 295 A.2d 526 (1972), the Connecticut Supreme Court agreed that "contracting-out" is generally a statutory subject of collective bargaining. In reaching that conclusion, it considered federal labor law, on which Connecticut labor law is generally modeled, and common "industrial practices" in this country. Id.
In Connecticut, the board is the agency charged, under General Statutes § 7-471(5), with hearing and determining whether a practice prohibited by the act has occurred. It has dealt with the issue of contracting out since at least the early 1970s. See, e.g., Hamden Board of Education, Conn. Board of Labor Relations Decision No. 1037 (February 17, 1972); Plainville Board of Education, Conn. Board of Labor Relations Decision No. 1192 (January 18, 1974). In 1995, the board comprehensively reviewed both federal precedents and its own prior decisions on contracting out to formulate a test to be applied in such cases. See City of New Britain, Conn. Board of Labor Relations Decision No. 3290 (April 6, 1995). In City of New Britain, the board observed that "[t]he basic rule regarding the nature of subcontracting as a mandatory subject of bargaining and the reason for the existence of the rule has been recognized by our own Supreme Court and remains as solid today as it was many years ago ... Obviously, the more difficult questions arise when the facts reveal a history of subcontracting in the workplace or when other unique factors arise. It was such a situation that presented itself in Westinghouse . For purposes of our discussion today, the important focus of the Westinghouse Board was its concentration on whether the [e]mployer had, in kind or degree, changed its established practice of subcontracting." (Citation omitted.) City of New Britain, supra, Conn. Board of Labor Relations Decision No. 3290, p. 9.
Pursuant to General Statutes § 5-274, the board is similarly responsible for deciding prohibited practice complaints brought under the statutes governing collective bargaining with state employees, General Statutes § § 5-270 through 5-280.
In City of New Britain, the board formulated a three-part inquiry to use in cases challenging contracting out or subcontracting as an improper unilateral change. It determined that: "In order to establish a prima facie case in these matters, the union must show that the work in dispute is bargaining unit work; that the current subcontracting/transfer of the work varies in kind or degree from what had been customary under past established practice; and that there is substantial impact on the bargaining unit as a result." (Footnote omitted; emphasis omitted.) Id., 37. A past established practice is one that is consistent, has endured over a reasonable length of time, and has been accepted by both parties. See Board of Education v. State Board of Labor Relations, 299 Conn. 63, 78-79, 7 A.3d 371 (2010).
In determining whether the subcontracting at issue varies significantly in kind or degree from past established practice, the board explained: "Under this factor, we will look at the history of subcontracting/transfer of work including the type and amount of work performed previously by non-unit personnel and compare this historical information to the current action. We will also consider the ‘category’ of non-bargaining unit personnel who have previously performed bargaining unit work. In this regard, we will consider the importance of facts that show that an employer’s action differs from past practice because the personnel to whom the work is to be assigned are of a different type than those to whom work was previously assigned (e.g., part-time non-unit employees v. outside subcontractor’s personnel)." City of New Britain, supra, Conn. Board of Labor Relations Decision No. 3290, p. 36.
The board has consistently applied the test articulated in City of New Britain since 1995. Each of the three factors in the prima facie case are essential elements of a union’s proof that a prohibited practice has occurred. For instance, in Town of Wallingford, Conn. Board of Labor Relations, Decision No. 3865 (April 10, 2002), the board dismissed a complaint alleging that the town had unilaterally transferred dispatching duties from one bargaining unit to another, finding that the union had failed to prove that a transfer of dispatching duties varied significantly in kind or degree from the past established practice of having civilian dispatchers perform the dispatching work to cover for insufficient staffing. In UConn Medical Center, Conn. State Board of Labor Relations Decision No. 4002 (September 23, 2004), the board dismissed a complaint alleging that the state had improperly laid off bargaining unit members and transferred their work to other personnel. The board found that before December 2002, all correctional facilities run by state had medical personnel including correctional head nurses, registered nurses, and correctional medical attendants (CMAs). The CMAs performed the same work as nurses except that CMAs could not perform invasive procedures such as giving injections or drawing blood. In December 2002, the state eliminated many medical positions in correctional facilities, including twelve nursing positions and all CMAs. The work CMAs had performed was subsequently performed primarily by nurses in the facilities. The board concluded that, despite the layoffs, the union had not made a prima facie case of unlawful transfer of bargaining unit work because at all times before and after December 2002, nurses had performed the same work as CMAs. Id., p. 3. Similarly, in City of Hartford, Conn. Board of Labor Relations Decision No. 4499 (March 1, 2011), the board concluded that the city had not violated the act when it laid off employees in the city’s telecommunications division (represented by one union) and transferred their work of installing and servicing telephones to employees of the Hartford Board of Education (represented by a different union). It observed that "[t]he practice since 2002 is to have the employees of both unions performing the same work." Id., p. 5. It concluded the union had failed to satisfy the second prong under City of New Britain and therefore had not met its prima facie burden. Id.
In the present matter, the union does not claim that the City of New Britain test is flawed as a matter of law, but rather challenges the board’s application of the test to the facts of this case. It argues that the contracting out of forestry work after the layoffs was different in "degree" because the use of private contractors had previously coexisted with the use of bargaining unit employees. This argument fails for two reasons. First, it overlooks the board’s prior decisions finding no improper unilateral change where work was contracted out both before and after layoffs occurred. Second, it conflates the second and third factors under City of New Britain . The second factor focuses solely on the non-bargaining unit personnel performing the work after the alleged unilateral change. It compares the work performed by non-bargaining unit members before the challenged action with the work performed by non-bargaining unit members after the challenged action. It asks whether the type or amount of work performed by non-bargaining unit members has changed and whether the type of non-bargaining unit personnel has changed. The third factor, by contrast, focuses exclusively on the impact of the change on the bargaining unit.
Although the board did not make a specific finding that the challenged action had an adverse impact on the union, the city acknowledges that the union presented sufficient evidence to establish an adverse impact. City Br., p. 3. Both the city and the board argue that such impact has to be analyzed separately from the analysis of past practices. As the city points out, the board has applied the City of New Britain factors in other cases where a bargaining unit has sustained a loss of bargaining unit positions and has found no violation of the act where there was an established past practice of using non-bargaining unit personnel to perform the same work.
"Courts grant an agency particular deference when it has expertise in a given area and a history of determining factual and legal questions similar to those at issue." Celentano v. Rocque, 282 Conn. 645, 653, 923 A.2d 709 (2007). Trial courts have recognized and upheld the board’s decisions in several cases involving its application of the City of New Britain factors. See, e.g., Torrington Education Ass’n v. State Board of Labor Relations, Superior Court, judicial district of New Britain, Docket No. CV 99-0498478-S (December 18, 2000, Satter, J.T.R.) (upholding board’s determination that placing students with special needs in an alternative school operated by a regional education center was not significantly different from school board’s other contracting for services for students with special needs); Local 1303-42 AFSCME v. Connecticut State Board of Labor Relations, Superior Court, judicial district of New Britain, Docket No. CV-99-496505-S (May 4, 2001, McWeeny, J.) (upholding board’s determination that union had failed to meet burden of proof on third factor of City of New Britain test because it had not proven that the one-time contracting out of twelve hours of work for painting crosswalks had impact on bargaining unit); AFSCME, Local 1303-260, Council 4 v. Connecticut State Board of Labor Relations, Superior Court, judicial district of New Britain, Docket No. CV-03-0520244-S (November 18, 2003, McWeeny, J.) (upholding board’s decision that union had failed to make prima facie case under City of New Britain by eliminating position of inventory control clerk because the work performed by non-bargaining unit employees after elimination of the position did not vary significantly in kind or degree from past established practice).
The board’s analysis of the second factor under the City of New Britain test is based upon a comparison between an established past practice and the action that is the subject of the complaint before it. Such a comparison is inherently fact-based, and under General Statutes § 4-183(j), the court "shall not substitute its judgment for that of the agency as to the weight of 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 ... (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record."
Substantial evidence in the record supports the board’s findings as to the second factor of the City of New Britain test. Both tree trimmers testified that for five years before they were laid off, the city had been using private forestry contractors to do the same work that they did. Both the tree trimmers and the forestry contractors reported to the same place, at the same time, for daily assignments. Both performed the same type of work, pruning and felling trees, grinding stumps, cleaning up debris after tree work. Both were called out as needed for emergency work. A union representative testified that the number of tree trimmers had decreased by attrition over the years and the union had never filed a prohibited practices complaint when the city did not fill the vacant bargaining unit positions but continued to use private contractors alongside the city’s tree trimmers.
Although the board’s final decision did not reach the defense of waiver after concluding that the union had failed to prove its prima facie case, the board does note, in its brief, that "[b]y failing to demand bargaining in the past and allowing establishment of the existing practice of subcontracting forestry work, the Union effectively waived its rights under MERA." Board’s Br., p. 4, n.5. In support, the board cites Norwich v. Norwich Fire Fighters, 173 Conn. 210, 218, 377 A.2d 290 (1977) ("A union cannot charge an employer with refusal to negotiate when it has made no attempts to bring the employer to the bargaining table" [internal quotation marks omitted]).
In June 2016, when the city experienced a budget crisis, it laid off the two city tree trimmers and substantially decreased its use of private contractors. The union argues that the city’s budget for the fiscal year July 1, 2016-June 30, 2017 included money for the tree trimmers’ salaries (Pl. Br., p. 8). This claim is directly contradicted by the testimony the union cites in support of it. The city’s director of public works testified that "fiscal year ‘16-’17" was the first time that salaries for the tree trimmers had not been included in the city’s budget. Hrg. Tr., p. 80. The union also argues that private forestry contractors received more money after the layoffs than the tree trimmers’ salary and benefits would have cost. Although that is true, it is not relevant to the second factor under City of New Britain, which compares the private contractors’ work before the challenged action with the private contractors’ work after the challenged action. That is the nature of the past practices inquiry that the board has conducted in "contracting out" cases under the City of New Britain decision.
In this case, in the three years preceding the June 2016, layoffs, private forestry contractors were paid $ 636, 516 (July 1, 2013-June 30, 2014); $ 430, 7888 (July 1, 2014-June 30, 2015); and $ 1, 002, 433 (July 1, 2015-June 30, 2016), for an average of $ 689, 916 a year. For the fiscal year July 1, 2016-June 30, 2017, private forestry contractors were paid $ 593, 079, nearly $ 97, 000 less than the average amount for the previous three years and more than $ 400, 000 less than the private contractors had been paid during the last year in which the city employed tree trimmers. This evidence supports the board’s conclusions that, after the layoffs, the private forestry contractors continued to perform the same type of services they had provided before the layoffs, but were used substantially less than before. As the board concluded, "since forestry contractor assignments decreased after the layoffs, there is no reasonable basis for us to conclude that there was a transfer of bargaining unit work." (Emphasis in original; footnote omitted.) Final Decision, pp. 4-5.
CONCLUSION
The court concludes that the board’s decision is supported by substantial evidence. It is also consistent with the board’s long-established City of New Britain test, which has previously been reviewed and upheld by Connecticut trial courts. Accordingly, the union’s appeal is dismissed.