SBLR and Grievance Arbitration Update

Transcription

1 SBLR and Grievance Arbitration Update Kevin Roy Jessica Ritter Henry Zaccardi March 10, 2017 Shipman & Goodwin LLP All rights reserved.

2 Today s Agenda Analyze Connecticut State Board of Labor Relations and State Board of Mediation and Arbitration decisions and their effect on public workplaces, including the following:! Employee discipline! Contract interpretation and implementation! Managerial rights and prerogatives! Union elections and trends in changes in representation! Success stories and cases of interest

3 SBLR Update Administrative Matters A review of the Board s Activity from March 1, 2016-January 19, 2017! 39 decisions in representation related matters! 29 decisions in prohibited practice cases

4 Union Elections and Trends in Changes in Representation Noteworthy cases:! City of Bristol and Bristol Police Union/NIPSEU and AFSCME, Co. 15, Dec. No Decision and Dismissal of Petition (April 27, 2016)! AFSCME, Co. 4 and City of New Haven, Dec. No Decision and Dismissal of Petition (May 13, 2016)! Town of North Haven and UPSEU, Dec. No Decision and Dismissal of Objections and Certifications (June 30, 2016)

5 Notable Decision Scenario The Nutmeg Town Council votes to install artificial turf on its local high school s football field. Prior to the vote, the School board maintenance employees were primarily responsible for the grooming and upkeep of the school s football field. After the installation of the turf, however, the Board implemented a new policy allowing community organizations and Town park employees to assist with bathroom cleanup, trash removal and the locking and unlocking of vehicular gates.

6 The Union files a claim with the SBLR, asserting the Board illegally transferred its work. Can the Union meet its burden of establishing a prima facie case for an illegal transfer of work? 1. Yes 2. No 3. It Depends Yes 0% 0% 0% No It Depends

7 Noteworthy Case See. Southington Board of Education and Local & of Council 4, AFSCME, AFL-CIO, SBLR Decision No (March 10, 2016). Must analyze this case under City of New Britain, Dec. No (St. Bd. Lab. Rel. 1995). The Board found that occasional trash pickup by parks department employees was not a significant departure from past practices. Outsiders had never completely been completely excluded from performing some cleanup duties connected to the maintenance of the football field. Additionally, to the extent non-bargaining unit workers have performed any work that deviates from traditional practice such transfer of work was determined to be de minimis. The Union s complaint was dismissed.

8 Noteworthy Case re: Managerial Rights See State of Connecticut DOC and NP-4 AFSCME CO. 4, Dec. No Decision and Dismissal of Complaint (Dec. 6, 2016) SBLR confirms that the power to reassign employees to other duties which are concededly within the job description of those employees is fundamental to the operation of any public agency and therefore involves the exercise of managerial discretion

9 SBMA Update Administrative matters Grievance Arbitration Decisions! Arbitrability Decisions " During the period June 1, 2015 to April 30, 2016, there were 23 awards on the question of arbitrability, compared to 15 in the prior 12 month period. 9 of the 13 decisions (57%) held the matters arbitrable and 10 (43%) held the matters not arbitrable.

10 Notable Decision Scenario A corrections officer takes an unauthorized leave and is terminated after he fails to appear at his pre-disciplinary hearing. Prior to his termination, the grievant entered into a Last Chance Agreement which provided that if he had any more unauthorized absences, he would have the right to appeal to Step 3 of the grievance process, but no right to arbitration if grievance was denied. Grievant files grievance over termination, which is denied at Step 3. He then files a grievance with the SBMA.

11 Is this grievance substantively arbitrable? 1. Yes, the last chance agreement is unenforceable as it obstructs the grievant s due process rights 2. By violating the last chance agreement, the grievant waived his right to proceed to arbitration and the grievance is not arbitrable 0% 0% 1 2 See Corrections, State of CT and AFSCME Co. 4, Local 387, SBMA Case No C-001 (September 10, 2015)

12 Contract Interpretation Scenario The City s contract requires that the City hire a bargaining unit employee to cover any absences and vacancies at the dispatch center. The Union files a grievance claiming that the contract provision meant that a dispatcher s lunch periods and other regular breaks should be covered by hiring another employee. The District contends the lunch and other similar breaks do not count as absences and vacancies.

13 Who prevails? 1. The City 2. The Union 0% 0% The City The Union

14 Contract Interpretation See. City of Waterbury and CACP, Brass City Local, 2014-A-0468 (July 7, 2015) (Daly, Malse, Krzywicki). The Panel disagreed and concluded that lunch breaks and similar breaks do not count as absences and vacancies, which refer to employees being out of work entirely (such as for vacations).

15 The Past Practice Rule Grievants were denied compensation for mileage incurred on their personal cars after attending a mandatory staff meeting on a scheduled day off. The collective bargaining agreement stated, as follows:! The Town shall reimburse employees at the rate of the current Federal Standard per mile if they were ever required to use their personal car.

16 You be the Arbitrator: 1. Grievance should be denied 2. Grievance should be sustained 0% 0% 1 2

17 The Past Practice Rule Town of New Canann and AFSCME Co. 15, Local 1575, 2014-A-0588 (Jan. 5, 2016) (Blum, Brown, Podurgiel). Grievants were denied compensation for mileage incurred on their personal cars after attending a mandatory staff meeting on a scheduled day off. The collective bargaining agreement stated that the Town shall reimburse employees at the rate of the current Federal Standard per mile if they were ever required to use their personal car. The Panel denied the union s grievance challenging the denial of reimbursement. Evidence demonstrated that the Town had a practice of denying reimbursement under the same circumstances and the same contract language.

18 The Fundamentals of Past Practice Not all management decisions are subject to the past practice rule. A given action may be a management prerogative. The employer has the fundamental right to manage the affairs of the enterprise. The past practice rule does not apply if there is contract language controlling the situation. A past practice must be consistent to be binding.

19 SBMA Discipline case A police officer was placed on unpaid administrative leave pending an internal investigation into misconduct allegations.the Town contended that the administrative leave was unpaid because of a protective order prohibiting grievant from carrying a firearm that was imposed in connection with criminal charges. The Union filed a grievance.

20 Would you decide in favor of The Union, as a matter of due process 2. The Employer, as the Town had no obligation to place him on paid leave 0% 0% 1 2

21 SBMA Discipline case See. Town of Ledyard ad AFSCME Co. 15 Local 26 93L, SBMA Case No A-0451 (Nov. 5, 2015) (Weiner, Shea, Boldry). Grievant was placed on unpaid administrative leave pending an internal investigation into misconduct allegations. The administrative leave was unpaid because of a protective order prohibiting grievant from carrying a firearm that was imposed in connection with criminal charges. The Panel determined that placing grievant on unpaid leave did not violate the collective bargaining agreement. Since the protective order prohibited grievant from carrying a firearm, he was incapable of performing his job. Therefore, the Town had no obligation to place him on a paid leave.

22 Questions? Visit: shipmangoodwin.com/ LEseminar for a copy of this presentabon These materials have been prepared by Shipman & Goodwin LLP for informabonal purposes only. They are not intended as adverbsing and should not be considered legal advice. This informabon is not intended to create, and receipt of it does not create, a lawyer-client relabonship. Viewers should not act upon this informabon without seeking professional counsel.