STATE OF CONNECTICUT LABOR DEPARTMENT CONNECTICUT STATE BOARD OF LABOR RELATIONS

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1 STATE OF CONNECTICUT LABOR DEPARTMENT CONNECTICUT STATE BOARD OF LABOR RELATIONS IN THE MATTER OF DECISION NO A P P E A R A N C E S: Attorney Melika S. Forbes for the School Board Attorney Eric W. Chester for the Union DECISION AND DISMISSAL OF OBJECTIONS AND MODIFICATION OF UNIT On February 6, 2018, the Norwalk Federation of Educational Personnel, Local 3793, AFT, AFL-CIO (the Union) filed a petition with the Connecticut State Board of Labor Relations (the Labor Board) seeking to modify an existing bargaining unit of non-certified 1, non-supervisory employees of the Norwalk Board of Education (the School Board) to include the position of Board Certified Behavior Analyst 2 currently held by three employees. On March 18, 2018, a Labor Board Assistant Agent concluded a conference with the parties representatives as part of the investigation of the petition and after the Union produced evidence of the requisite showing of interest, the School Board objected to the proposed modification on the grounds that the position was supervisory within the meaning of Section 7-471(3) 3 of the Act. 1 Conn. Gen. Stat (a) states, in relevant part: 2 (a) No teacher, supervisor, administrator, special service staff member or school superintendent shall be employed in any of the schools of any local or regional board of education unless such person possesses an appropriate state certificate The title of the position refers to certification by the Behavior Analyst Certification Board pursuant to Conn. Gen. Stat ii, not certification by the state board of education pursuant to Conn. Gen. Stat (a). 3 Conn. Gen. Stat (3) states, in relevant part: 3) The board shall decide in each case whether, in order to insure to employees the fullest freedom in exercising the rights guaranteed by section to 7-477, inclusive, and in order to insure a clear and 1

2 On March 29, 2018, and after investigation of the petition, the Labor Board Agent issued a Report Upon Investigation and Recommendation for Direction of Election and the Agent issued an Order of Election pursuant to 7-471(1) of the Act. On April 12, 2018, the School Board filed an objection to the Order of Election contending that the position was supervisory and that community of interest was lacking. An Assistant Agent conducted an election by secret ballot on April 27, A Report Upon Secret Ballot was issued showing that three (3) votes were cast, 3 in favor or representation by the Union. Pursuant to 7-471of the Act and of the Regulations, the Agent reported these action to the Labor Board. On May 4, 2018, the Union filed a response to the School Board s objection. DISCUSSION In addition to the School Board s initial claim that Board Certified Behavior Analysts (BCBAs) are barred from inclusion in the unit because they supervise Applied Behavior Analysts (ABAs), the School Board now contends that BCBAs do not share a community of interest with other unit members. 4 The Union responds that there is sufficient community of interest to support the proposed modification and that while BCBAs are responsible for some measure of supervision, they are not supervisors as defined by the Act in this context. Given the arguments and admissions of the parties, we find that further evidentiary proceedings are unnecessary and grant the Union s petition. Background. Federal law 5 and Connecticut law 6 establish an extensive statutory and regulatory framework to provide special education for disabled children in public schools. Since 1976, a fundamental component of this framework has been the individualized education program (IEP) which is a written statement for each child with a disability that is developed, reviewed and revised 7 in accordance with state and federal law. Bridgeport Board of Education, Decision No (2011). Conn. Gen Stat ii 8 is part of this framework and provides in relevant part: identifiable community of interest among employees concerned, the unit appropriate for purposes of collective bargaining provided no unit shall include both supervisory and nonsupervisory employees (Emphasis added). 4 The School Board admits that it did not raise this latter ground until after the completion of the Assistant Agent s investigation and the issuance of the Agent s order of election, a practice inconsistent with an orderly administration of the Act. 5 The Individuals with Disabilities Education Act, 20 U.S.C 1400 et.seq. 6 Conn. Gen. Stat a et. seq. 7 See 20 U.S.C. 1413(d); 34 C.F.R Conn. Gen. Stat ii was enacted by No of the 2010 Public Acts, effective July 1,

3 (a) On and after July 1, 2012, a local board of education that is responsible for providing special education and related services to a child shall provide applied behavior analysis services to any such child if the individualized education program requires such services. (1) Such services shall be provided by a person who is... certified by the Behavior Analyst Certification Board as a behavior analyst (2) A teacher or paraprofessional may implement the individualized education program providing for such applied behavior analysis services, provided such teacher or paraprofessional is under the supervision of a person described in subdivision (1) of this subsection. For purposes of this section, applied behavior analysis means the design, implementation and evaluation of environmental modifications, using behavioral stimuli and consequences, including the use of direct observation, measurement and functional analysis of the relationship between the environment and behavior, to produce socially significant improvement in human behavior. Conn. Gen. Stat 10-76ii(a). The School Board employs certified special education teachers as well as employees in the bargaining unit (the existing unit) represented by the Union which consists of approximately 420 non-certified, non-supervisory employees that work either in the School Board s Central Office providing clerical/administrative support or in one of 21 other buildings providing either clerical/administrative support or direct student support services. The existing unit includes approximately 30 ABAs, a paraprofessional position the School Board describes as follows: JOB SUMMARY: The ABA Therapist will be responsible for working 1-1 with students with disabilities. In implementing individually designed interventions and behavior protocols, ensuring that all IEP goals are addressed/mastered, and collecting data ESSENTIAL FUNCTIONS: 4. Consistently implements behavior plans to reduce student s socially, inappropriate behavior and promotes appropriate social behaviors; 5. Continually evaluates the effectiveness of the treatment program, and makes any necessary changes to help students learn new skills and behaviors more effectively; 6. Functions as an active member of the treatment team; 7. Implements Individualized Treatment Plans (ITPs) under the direction of the behavior analysts/consultants; Since on or about September 2016, the School Board has employed three BCBAs, a position the School Board describes as follows: JOB SUMMARY: 3

4 The BCBA will provide behavior analysis services and develop behavior intervention plans for special education students. In addition, support and professional learning will be provided to school staff, paraprofessionals, and parenting/guardians, with respect to behavior intervention techniques, conducting assessments, and developing behavior intervention plans. ESSENTIAL FUNCTIONS: 2. Administers programs and services for behaviorally or emotionally disturbed students for the purposes of improved functioning and ensuring program eligibility and compliance with established guidelines; 4. Assists in developing interventions, functional behavior assessments and behavior plans for the purpose of providing a safe and effective educational environment for students with challenging behaviors; 11. Facilitates and coaches teams through the development and implementation of functional behavior assessments/behavior interventions plans and crisis plans for identified students; 12. Implements and coaches school personnel on research based methods of classroom management and behavioral strategies; 15. Provides social skills instruction to students utilizing research based methodologies and approved District curricula; Unlike ABAs, BCBAs hold advanced degrees and as such, are exempt as professional employees from the overtime and minimum wage provisions of the Fair Labor Standards Act of 1961 (FLSA). See 29 U.S.C. 213(a)(1); 29 C.F.R ; 20 C.F.R (a). Community of Interest. When determining whether a proposed bargaining unit is appropriate, the Labor Board historically examined three elements: community of interest as objectively measured, the effects of burdensome over fragmentation on the employer, and the desires of the employees. Town of Southington, Decision No (1998); Wolcott Board of Education, Decision No (1995); Willimantic Sewer Authority, Decision No (1980). Since our statutory obligation to ascertain community of interest is paramount, we do not consider employee wishes until we are satisfied that the members of a proposed unit share a distinct community of interest. Town of Wallingford, Decision No (2012); City of Middletown, Decision No (2000). The objective factors which establish community of interest include commonality of function (duties, skills, education), supervision, geographic location, and benefits and wage structure. Town of Wolcott, Decision No (1995); Town of West Hartford, 4

5 Decision No (1988); Town of Litchfield, Decision No (1987); Town of Redding, Decision No (1985); Town of Westport, Decision No. 2163A (1983). We have also looked to the degree of interaction between groups and whether employees take work breaks together. Town of Litchfield, supra; Town of Redding, supra. Town of Suffield, Decision No. 4680, pp. 3-4 (2013) (Footnote omitted). We find there exists a sufficient community of interest to justify inclusion of BCBAs in the existing unit. The School Board has adopted a team approach to providing applied behavior analysis services in which ABAs and BCBAs work closely together and share duties and skills 9. Furthermore, BCBAs hold advanced degrees and while we ordinarily do not consider employee wishes when assessing community of interest, the Act dictates otherwise when professionals are involved. 10 In short, [e]xtra sensitivity to employee wishes is necessary in the case of professionals given the statutory provisions. City of Waterbury, Decision No p. 4 (1986). Nor do we find other disparities between BCBA s and members of the existing unit, viewed in context, particularly troubling. BCBAs are supervised within the same framework established by the School Board for all other employees and while state and federal wage and hour statutes expressly exclude 11 professionals such as BCBAs, they do not prohibit overtime compensation, a mandatory subject of collective bargaining, 12 to such employees. Lastly, although BCBAs are few in number and must travel to engage in teamwork with special education teachers and ABA Therapists working in specific schools, BCBAs must necessarily interact with unit members on a regular basis. As such, we conclude that BCBAs share the requisite community of interest with the existing unit. Statutory Supervisor Status. Conn. Gen. Stat (2) states, in relevant part: 9 Although ABAs primarily implement plans designed by BCBAs, they must [c]ontinually evaluate [ ] the effectiveness of the treatment program and make[] any necessary changes. Similarly, while BCBAs primarily develop behavior intervention plans for special education students, they also [i]mplement[] classroom management and behavioral strategies and [p]rovide social skills instruction to students 10 Conn. Gen. Stat (3) states, in relevant part: No unit shall include both professional and nonprofessional employees unless a majority of such professional employees vote for inclusion in such unit The term professional employee means: (A) Any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given time period; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual or physical processes 11 See 29 U.S.C. 213(a)(1); Conn. Gen. Stat (f). 12 West Hartford Education v. DeCourcy, 162 Conn. 566, (1972). 5

6 In determining whether a position is supervisory the board shall consider, among other criteria, whether the principal functions of the position are characterized by not fewer than two of the following: (A) Performing such management control duties as scheduling, assigning, overseeing and reviewing the work of subordinate employees; (B) performing such duties as are distinct and dissimilar from those performed by the employees supervised; (C) exercising judgment in adjusting grievances, applying other established personnel policies and procedures and in enforcing the provisions of a collective bargaining agreement; and (D) establishing or participating in the establishment of performance standards for subordinate employees and taking corrective measures to implement those standards We find that BCBAs are not supervisors prohibited from inclusion in the existing unit under the Act. The School Board employs BCBAs to design, implement[] and evaluat[e] environmental modification[] plans for special education students pursuant to Conn Gen. Stat ii which permits special education teachers and paraprofessionals such as ABAs to participate in the implementation of such plans provided they are working under [BCBA] supervision. While the relationship between BCBAs and ABAs may properly be characterized as supervision within the commonly accepted meaning of the term 13, it does not meet the more restrictive criteria set forth in Section 7-471(2) of the Act. Even if we assume 14 ABAs are subordinate employees within the meaning of (A), we find no basis for us to conclude that BCBAs exercise authority within the scope of (C) or (D). As such, BCBAs are not statutory supervisors unless they meet (B) by performing such duties as are distinct and dissimilar from ABA Therapists and, for reasons largely noted above, we find that they do not. Since BCBAs implement as well as design environmental modification plans and ABA Therapists evaluate and make necessary changes to existing treatment programs, there is significant overlap between the duties and responsibilities of the two positions. It has, however, always been our practice to make a distinction between a statutory supervisor and what we in our case law have defined as a working supervisor. The former are excluded from non-supervisory units and have duties of a clearly and predominately supervisory nature as set out in the Act. The working supervisor, however, is an employee with only insignificant and in most cases incidental supervisory functions. Indeed the title working supervisor is primarily a word of art to describe an employee who although he may at times perform some supervisory acts, spends most of the workday doing substantially the same jobs under substantially the same conditions as all other workers. In order to prevent an unjust barring of employees from the rights afforded by the Act, we have traditionally held working supervisors to be appropriate members of non-supervisory bargaining units. 13 [T]he word supervision denotes broad authority to oversee with the powers of direction and decision. State v. Burney, 189 Conn. 321, 326 (1983) (citation omitted). Webster s defines supervise as [t]o direct and watch over the work and performance of. Webster s New Collegiate Dictionary (Houghton Mifflin Co. 1995). 14 To the extent that certified special education teachers implement environmental modification plans, such an assumption may also entail an inference that such teachers are also subordinate employees to BCBAs. 6

7 Town of Plymouth, Decision No p. 2 (1979); see also Windsor Locks Board of Education, Decision No (2014); Town of Stratford, Decision No (1995); Town of Farmington, Decision No (1994); Canton Board of Education, Decision No (1979); Paper Delivery, Inc., Decision No. 509-A (1960). Admittedly, this situation differs from the usual working supervisor context in that BCBAs have advanced degrees and have technical plan design skills ABA Therapists do not possess. In our view, however, these differences are characteristic of professionals in general and do not elevate what we would ordinarily consider insignificant or incidental supervisory functions. In short, under Section 7-471(2)(B) the work of a supervisor not only has to be distinct and dissimilar from that of his/her subordinates, but the dissimilarities must have a supervisory flavor. Town of Farmington, Decision No p. 5 (1994) (quoting Canton Board of Education, Decision No (1979)). Since we do not view the dissimilarities at issue as fundamentally supervisory, we find that the principle functions of the BCBA position are characterized by fewer than two of the criteria set forth in Section 7-471(2) and the position is not supervisory as to members of the existing unit. Given the record before us, we find that the objections to the order of election should be dismissed and the election results certified. ORDER By virtue of and pursuant to the powers vested in the Connecticut State Board of Labor Relations by the Municipal Employee Relations Act, it is hereby ORDERED that the objections filed herein be and the same hereby are DISMISSED, and it is CERTIFIED, that the bargaining unit here in question be and the same hereby is, modified to include the position of Board Certified Behavior Analyst. CONNECTICUT STATE BOARD OF LABOR RELATIONS Wendella Ault Battey Wendella Ault Battey Acting Chairman Barbara J. Collins Barbara J. Collins Board Member 7

8 CERTIFICATION I hereby certify that a copy of the foregoing was mailed postage prepaid this 18 th June, 2018 to the following: day of Attorney Eric W. Chester Ferguson, Doyle & Chester, P.C. 35 Marshall Road Rocky Hill, CT Attorney Melika S. Forbes Shipman & Goodwin LLP 300 Atlantic Street, 3 rd Floor Stamford, CT RRR RRR Harry B. Elliott, Jr., General Counsel CONNECTICUT STATE BOARD OF LABOR RELATIONS 8