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 UNIVERSITY OF CONNECTICUT -AND- UNIVERSITY OF CONNECTICUT PROFESSIONAL EMPLOYEES ASSOCIATION DECISION NO SEPTEMBER 25, AND- SHANE LAPOINTE Case No. SPP-29,836 A P P E A R A N C E S: Attorney Michael J. Eagen Attorney Kelly L. Bannister for the University Attorney Brian A. Doyle for the Union Shane LaPointe Pro Se DECISION AND DISMISSAL OF COMPLAINT On June 13, 2012, Shane LaPointe (the Complainant) filed a complaint, amended on February 7, 2014, with the Connecticut State Board of Labor Relations (the Labor Board) alleging that the University of Connecticut (the University) violated the State Employee Relations Act (SERA or the Act) by breaching a grievance settlement agreement and that the University of Connecticut Professional Employees Association (the Union) had violated the Act by breaching its duty of fair representation. 1 1 On July 8, 2013, Complainant withdrew his complaint against the Union.

2 After the requisite preliminary steps had been taken, the matter came before the Labor Board for hearings on July 8, September 9 September 10, November 18, and December 2, All parties appeared, were represented and were given full opportunity to present evidence, examine and cross-examine witnesses, and make argument. The parties submitted post-hearing briefs on February 24, Based on the entire record before us, we make the following findings of fact and conclusions of law and dismiss the complaint. FINDINGS OF FACT 1. The University of Connecticut is an employer within the meaning of the Act. 2. The Union is an employee organization within the meaning of the Act and represents a bargaining unit of certain professional employees employed by the University, including the position of Area Assistant Manager and excluding the position of Location Supervisor. 3. At all times relevant hereto the Union and the University were parties to a collective bargaining agreement (Ex. 4) with effective dates of July 1, 2007 through June 30, 2011 that provided, in relevant part: Article 20 PROBATIONARY EMPLOYEES 20.1 A probationary employee is a new employee who has not completed a working test or trial period 20.3 Approximately halfway through and at the end of his/her probationary period, each employee shall be given a written evaluation of his/her performance that is not grievable under [Article 23] Article 22 DISMISSAL OR OTHER DISCIPLINARY ACTION The provisions of this article apply to all non-probationary members of the bargaining unit. The parties are in agreement that discipline shall be for just cause 23.1 Definitions ARTICLE 23 GRIEVANCE PROCEDURE 2

3 a. A contractual grievance shall be limited to a claim that there has been a violation of this agreement 23.4 Procedure for Contractual Grievances c. Step Three: Arbitration If the grievance is not resolved to the satisfaction of the Union the Union may submit the grievance to the American Arbitration Association 4. The Employee Handbook (Ex. 44), revised in November 2010, for the University s Department of Dining Services (DDS) states, in relevant part: 1. WORKING TEST PERIODS All new staff members are placed on a probationary period. This time is used to determine whether an employee is able and willing to perform the assigned duties Non-state, non-represented 120 workdays 5. The written job description (Ex. 39) for the position of Location Supervisor in DDS states, in relevant part: SUMMARY: Under the direction of a management representative of higher grade. This position supervises all aspects of the assigned location. This is a working supervisory position. To perform the job successfully, an individual should demonstrate the following competencies: Leadership & Supervisory Skills The ability to teach, coach and motivate employees on a daily basis while maintaining high standards and leading by example. Interpersonal Skills Focuses on solving conflict. Must have the ability to work with others and to take and give direction. This is a non-state, non-union management position. The working test period for this position is one (1) year. 3

4 6. At all times relevant hereto the University had certain written policies and procedures, including UCPEA Merit and Performance Evaluations (Ex. 47) which was jointly prepared by the Union and the University and which states, in relevant part: DEFINITION AND PURPOSE OF PERFORMANCE EVALUATION Since performance evaluation is communication between supervisor and employee, it is an extremely important supervisory responsibility, with farreaching consequences for the employee s career. It is also a contractual obligation While performance evaluation is not simple, it nevertheless remains a primary responsibility of those functioning in a supervisory role BEFORE THE INTERVIEW Keep accurate records on employee performance. 7. In August of 2007, the University hired Complainant as a DDS Area Assistant Manager. By letter to Complainant and the Union dated July 7, 2010, University Vice President for Student Affairs John R. Saddlemire (Saddlemire) notified Complainant that effective immediately, his employment was terminated for engaging in certain misconduct. The Union contested the termination through the grievance procedure and the grievance was eventually submitted to the American Arbitration Association which assigned Case No to the matter and scheduled an arbitration hearing for November 18, 2010 before Arbitrator Leslie A. Williamson, Jr. (Williamson). (Exs. 5, 45). 8. On November 18, 2010, the Union and the University notified Williamson that they had entered into a written agreement resolving the grievance and which they asked be issued as a Stipulated Award. After confirming that Complainant understood and voluntarily signed the agreement, Williamson issued a Stipulated Award (Ex. 5) in Case No which states, in relevant part: 1. The dismissal of the grievant shall be converted to an unpaid disciplinary suspension beginning July 9, 2010 through and including January 7, The reason for the disciplinary suspension is misuse of time and meal privileges. 3. [Complainant] will be reinstated effective January 10, 2011 to a non-union position as a Location Supervisor for a six (6) month trial period at an 4

5 annual salary of Removal of [Complainant] from this position must be reviewed and approved by the Vice President of Student Affairs. 4. The parties agree to conduct a three (3) month midterm performance evaluation on or before April, 2011 and a final evaluation on or before June 30, 2011 using the non-state supervisory evaluation form. 5. Upon successful completion of the six (6) month trial period [Complainant] will be reinstated as an Area Assistant Manager 6. [Complainant s] employment will be subject to a Last Chance Agreement for an eighteen (18) month period commencing January 10, 2011 and ending June 30, The Last Chance Agreement means that any future incidents of misconduct or unsatisfactory performance as measured by the non-state/ucpea evaluation process will result in termination without any right of appeal. 9. Complainant was reinstated as a DDS Location Supervisor on or about January 10, 2011 and his immediate supervisor was Assistant Director of Retail Operations Charles Couture (Couture) 2 who was aware of Complainant s employment history with the University. 10. By (Ex. 40) to Couture dated February 25, 2011, UNITE HERE Local 2527T 3 president David Gould (Gould) forwarded a letter he received from an employee supervised by Complainant and Gould stated, in relevant part: I wanted to share this letter with you. There is a problem with what is being perceived as bullying. From what I understand it has happened to at least one other person. As a courtesy, I am trying to see if you can keep it in house. If you follow the letter it seems [Complainant] is trying to bait [ ] into a confrontation, from what I am told, in front of about 5 witnesses. This is a form of bullying. We can t have folks trying to get a rise out of someone by baiting them. I know [Complainant] and I happen to like the guy and hopefully we can get this taken care of without having to go further. 2 At some point between November 19, 2010 and March 8, 2011, Couture was promoted from Area Assistant Manager to Assistant Director of Retail Operations. (Exs. 24, 30). 3 UNITE HERE Local 2527T is a labor organization which represents certain DDS employees supervised by Complainant during his tenure as Location Manager. 5

6 11. On March 4 and 17, 2011, Couture met with Complainant and discussed his concerns with Complainant s job performance. Couture prepared and forwarded a written summary of each discussion to Complainant. (Ex. 30). 12. At some point prior to April 14, 2011, Complainant believed a certain student manager was not effectively directing employees assigned to her and Complainant intervened and issued directives to those employees. The student manager complained and Couture counseled Complainant on interacting with student managers. 13. On April 14, 2011, Couture issued Complainant a written 3 month performance evaluation in which Couture opined that Complainant was In Need of Improvement in the areas of quality of work, interpersonal relationships, and personal qualities and was Good in the areas of professional development and public relations. On that date Complainant sent Couture certain records Couture had asked for and Complainant requested both an assignment to acquire experience in an area in which he needed improvement and training in interpersonal relationships. (Exs. 15, 31-33). 14. On April 28 and May 16, 2011, Couture met with Complainant and discussed his concerns with Complainant s job performance. Couture prepared and forwarded a written summary of each discussion to Complainant. (Ex. 30). 15. At some point prior to June 17, 2011, Couture contacted University Assistant Department Head of Human Resources Judy A. Watson (Watson) and requested Watson s assistance drafting Complainant s 6 month performance evaluation. Couture did not consider himself to be a proficient writer and had consulted with Watson concerning the drafting of other employee performance evaluations at that time. On June 17, 2011, Watson sent Couture a draft performance evaluation of Complainant together with an stating, in relevant part: (Exs ). Chuck this is what I have for you to build on. It is a bit sketchy because I did not work with him daily. Edit it as much as you like 16. After consulting with his immediate supervisor, Director of Dining Services C. Dennis Pierce (Pierce), Couture gave Pierce a final version 4 of Complainant s 6 month performance evaluation in which Couture opined that Complainant was Unsatisfactory in the areas of quality of work, interpersonal relationships, and personal qualities and was In Need of Improvement in the area of professional development and was Good in the area of public relations. In the quality of work section of the evaluation form Couture incorrectly 5 stated that Complainant had not [s]uccessfully kept up-to-date records on 4 While the final version of Couture s 6 month performance evaluation incorporates much of Watson s proposed language, substantive differences exist. 6

7 the tardy tracking sheet assigned. Couture gave Complainant an overall rating of Unsatisfactory and recommended that Complainant s University employment not continue. (Ex. 35). 17. On June 22, 2011, Pierce sent Saddlemire Couture s 6 month performance evaluation of Complainant and a letter recommending that Complainant be terminated. Saddlemire approved the recommendation after meeting with Pierce and Couture. (Ex. 19). 18. On June 23, 2011, Couture met with Complainant, informed Complainant that he had not passed the trial period and provided Complainant with a copy of his 6 month performance evaluation and a letter notifying him of termination of employment. Complainant became upset, refused to sign the performance evaluation, and left the area. (Exs. 35, 41-42). 19. On July 18, 2011, the Union filed a grievance contesting Complainant s termination and on September 1, 2011, the Union submitted the grievance to the American Arbitration Association which assigned Case No to the matter. The University notified the Union at this time that it intended to seek a dismissal of the case on the basis that Complainant s termination was not subject to the grievance procedure in the collective bargaining agreement between the University and the Union. (Exs. 6, 27, 37). 20. On December 12, 2011, the parties appeared before Arbitrator J. Larry Foy and on February 15, 2012, Foy issued a ruling on arbitrability (Ex. 43) in Case No which states, in relevant part: The last chance agreement reinstated Grievant to [sic] non-union position not covered by a collective bargaining contract and states that the Grievant will be in a trial period for the first six months he is in the new position. This provision provides two additional reasons the University had the right to terminate Grievant without just cause and bar that decision from the grievance procedure [I]f the Grievant s position is not covered by the Contract he does not have the rights conferred by the Contact (e.g. the just cause standard and access to the Contract s grievance procedure). Additionally, if an employee is a probationary employee even the Contract does not protect him from termination For all the above reasons, I find that the grievance is non-arbitrable because the Union and Grievant have waived their rights to arbitration. (Emphasis in original). 5 Couture admitted during his testimony that he erred by overlooking a June 17, (Ex.15) by which Complainant sent him the tardy tracking sheet at issue. 7

8 CONCLUSIONS OF LAW 1. A State employer s refusal to comply with a grievance settlement or valid arbitration award is a failure to bargain in good faith and a violation of Section 5-272(a)(4) of the Act. 2. The University did not violate the Act when it terminated Complainant s employment in June, DISCUSSION Complainant contends that the University violated the grievance settlement as set forth in the November 19, 2010 stipulated award and therefore the Act when it terminated his employment as a Location Manager in June, Specifically, Complainant alleges that the University violated its own performance evaluation policies and procedures and in doing so, breached its obligation to fairly evaluate his performance under the settlement. The University denies that it violated the settlement and claims that the performance evaluations were fair and that Complainant s discharge was appropriate under the circumstances. Since we find on the basis of the record before us that the University complied with the terms of the grievance settlement, we dismiss Complainant s complaint. The Labor Board has long recognized that the State s failure to comply with a grievance arbitration award or settlement constitutes a failure to bargain in good faith in violation of 5-272(a)(4) 6 of the Act. State of Connecticut, OPM, Decision No (2012), State of Connecticut, Department of Correction, Decision No (2010); Department of Public Safety, State of Connecticut, Decision No (1988); State of Connecticut, Department of Human Resources, Decision No (1986); State of Connecticut, Judicial Branch, Decision No (1985), State of Connecticut DEP (Gary Thomas), Decision No (1979). We use an objective standard and we do not consider whether the respondent acted in good faith or whether its interpretation of the award is a plausible one. If we find there has not been compliance, we will find a violation of the Act. State of Connecticut, OPM supra; State of Connecticut, Department of Administrative Services, Decision No (1997). Nor is it our function to relitigate or second guess the merits of grievance decisions. Our role is limited to meeting our statutory responsibility to insure that the outcome of the grievance procedure is respected. Connecticut Employees Union Independent (NP-2 Unit), Decision No (1996). 6 Conn. Gen. Stat (a)(4) states, in relevant part: (a) Employers or their representatives or agents 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 8

9 Against this backdrop, we have no difficulty finding that the November 19 stipulated award was a grievance decision or that compliance with the award was mandatory. The State does not dispute that Complainant was a member of the Union s bargaining unit when he was discharged in August of 2011 or that the stipulated award resolved a Union grievance contesting that action. As such, we turn to the terms of that settlement agreement which we construe using standard principles of contract interpretation. The intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract Honulik v. Town of Greenwich, 290 Conn. 421, 432 (2009). The grievance settlement at issue reinstated Complainant s employment with the University subject to an eighteen (18) month period during which unsatisfactory performance will result in termination without any right of appeal. The parties further agreed that Complainant s reinstatement was subject to successful completion of an initial assignment to a non-union position as a Location Supervisor for a six (6) month trial period pursuant to the University s non-state performance evaluation process and as reviewed and approved by the Vice President of Student Affairs. On its face, the University s conduct satisfied these requirements. After six months service as a Location Supervisor, Complainant was terminated with Saddlemire s approval on the basis of a performance evaluation using the appropriate form. Complainant contends, however, that the six month evaluation did not accurately assess his performance, that the University substantially departed from its own performance evaluation policies, and that his evaluation was, in essence, a sham to circumvent the University s obligations under the grievance settlement. We address each of these claims in turn. Citing United Steelworkers, Local 9423 v. Century Aluminum, No (6 th Cir. 2005) and United Steelworkers v. Lukens Steel Co., 969 F.2d 1468 (3 rd Cir. 1992), Complainant contends we should review the factual determinations Couture made in his final performance evaluation of Complainant. Those cases are inapposite because each involved an employer s challenge to the arbitrability 7 of a grievance contesting an employee s discharge pursuant to a last chance agreement. A grievance challenging Complainant s discharge was submitted to arbitration and was found not arbitrable on the basis of Complainant s probationary status in a position outside the bargaining unit. Our 7 [T]he role of an arbitrator in an arbitration concerning an alleged violation of a valid last-chance agreement is generally limited to determining whether the employee s actions or conduct constituted a violation of the last chance agreement If the actions or conduct by the employee is found to violate the last-chance agreement, a majority of arbitrators will enforce the penalty agreed to by the parties in the last chance agreement, usually discharge Elkouri and Elkouri, How Arbitration Works, 15.3.F.iv (7 th ed. 2012) (footnotes and citations omitted). 9

10 jurisdiction arises from the Act and in this context, as noted above, is limited to assessing whether the University violated the grievance settlement. In lieu of pursuing a grievance contesting his termination, Complainant agreed that he would serve an initial trial 8 period as a Location Manager. Given the record before us, we find that the parties intended to limit review of Complainant s six month performance evaluation to Saddlemire. It is generally accepted that a probationary employee may be discharged for any [lawful] reason or for no reason at all Rankin v. McPherson, 483 U.S. 378, (1987). [D]ifferential treatment of probationers stems from rational and legitimate considerations and is not arbitrary. Probationers are new employees whose qualifications are as yet untried so far as the employer is concerned. There is nothing irrational in such an employer's desire for a reasonable trial period before the employee becomes vested with full contract rights and nothing irrational in a [u]nion's agreement to such an arrangement. Council 15, AFSCME, Decision No A p. 8 (1974). In short, had the parties intended to limit or to qualify the University s existing discretion over probationary employees as regards Complainant, they would have so stated in the November, 2010 grievance settlement. The agreement requires the vice president for student affairs to approve Complainant s discharge on the basis of the six month evaluation and it is undisputed that Saddlemire held that position 9 when he ratified Couture s recommendation. Our inquiry does not end with our declination to review Couture s factual conclusions concerning Complainant s performance in the position of Location Manager. If the University entered into the grievance settlement at issue with the intent to discharge Complainant after six months regardless of his performance, then the evaluations were a sham and the University would have violated its duty under the Act to bargain in good faith. See Hartford Public Schools (Thomas Latina), Decision No (2013) (intentional fabrication of incident to discharge employee is repudiation of last chance agreement). We have examined the circumstances when probationary employees are alleged to have been discharged for engaging in protected, concerted activity. State of Connecticut, Department of Social Services, Decision No (1999); City of New Britain, Decision No (1996); Council 15, AFSCME, supra; cf. State of Connecticut, Department of Correction, Decision No (1987). In short, the exercise of an employer s discretion to discharge a probationary employee does not validate conduct that otherwise is in violation of the Act or other law. See e.g. Rankin v. McPherson, supra; Goodman v. Lukens Steel Co., 482 U.S. 656 (1987). 8 We consider the terms trial period, working test period, and probationary period to be synonymous in this context. 9 At the time of the Labor Board hearings, Saddlemire was no longer employed by the University. 10

11 The record does not support a finding that Complainant was predestined to fail or that the evaluation of his performance was a sham. Couture s failure to credit Complainant with providing the necessary tardy tracking sheet is information that would certainly be relevant to a grievance contesting the evaluation. See, e.g. Town of West Hartford, Decision No (1997), appeal dismissed, Town of West Hartford v. West Hartford Police Union, judicial district of Hartford/New Britain at Hartford, No. cv (1998). This error does not, in itself, establish malice or predisposition given Couture s ready acknowledgement of the positive aspects of Complainant s performance and Complainant s admitted shortcomings during his trial period. Nor do we agree with Complainant that Watson s involvement was inappropriate or somehow tainted the evaluation process. Couture had only recently been promoted from Area Assistant Manager and given his lack of confidence in his own writing skills and his knowledge of the events leading to Complainant s assignment to Location Manager, he reasonably sought the assistance of a University human resource professional in drafting an important document. After consulting with Couture, Watson issued a draft which invited editing and which Couture modified so that it conformed to his own observations and opinions. In sum, the record does not support the claim that the six month evaluation of Complainant s performance in the position of Location Manager violated the University s policies such that the evaluation should be deemed predetermined and a sham. Since the University complied with the terms of the grievance settlement at issue, we find no violation of the Act and we dismiss the complaint. ORDER By virtue of and pursuant to the power vested in the Connecticut Board of Labor Relations by the State Employee Relations Act, it is hereby ORDERED that the complaint filed herein be, and the same hereby is DISMISSED. CONNECTICUT STATE BOARD OF LABOR RELATIONS Patricia V. Low Patricia V. Low Chairman Wendella A. Battey Wendella A. Battey Board Member Barbara J. Collins Barbara J. Collins Board Member 11

12 CERTIFICATION I hereby certify that a copy of the foregoing was mailed postage prepaid this 25th day of September, 2014 to the following: Shane LaPointe 24 Patriots Square RRR Mansfield, CT Michael J. Eagen, Esq. Kelly L. Bannister, Esq. University of Connecticut 9 Walters Avenue, Unit 5075 Storrs, CT Attorney Brian Doyle Ferguson & Doyle, P.C. 35 Marshall Road, Rocky Hill, CT RRR RRR Harry B. Elliott, Jr., General Counsel CONNECTICUT STATE BOARD OF LABOR RELATIONS 12