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 HARTFORD BOARD OF EDUCATION -and- LOCAL 566, COUNCIL 4, AFSCME, AFL-CIO DECISION NO JUNE 25, 2009 CASE NO. MPP-26,153 A P P E A R A N C E S: Attorney Ann Bird For the Board of Education Attorney J. William Gagne, Jr. For the Union DECISION AND DISMISSAL OF COMPLAINT On July 17, 2006 Local 566, Council 4, AFSCME, AFL-CIO (the Union or Local 566) filed a complaint with the Connecticut State Board of Labor Relations (the Labor Board) alleging that the Hartford Board of Education (the School Board) had violated of the Municipal Employee Relations Act (MERA or the Act) by refusing to bargain in good faith and refusing to comply with a grievance settlement agreement. After the requisite preliminary steps had been taken, the matter came before the Labor Board for a hearing on June 9, 2008 and August 27, 2008 at which both parties appeared, were represented and were allowed to introduce evidence, examine and crossexamine witnesses, and make argument. Both parties filed post-hearing briefs, the last of which was received on December 17, Based on the entire record before us, we make the following findings of fact and conclusions of law, and we dismiss the complaint.

2 FINDINGS OF FACT 1. The School Board is a municipal employer within the meaning of the Act. 2. The Union is an employee organization within the meaning of the Act and at all material times has been the exclusive bargaining representative of custodial, cafeteria and allied classifications. 3. Local 818, Council 4, AFSCME, AFL-CIO (Local 818) is an employee organization within the meaning of the Act and at all material times has been the exclusive bargaining representative of non-certified supervisory School Board employees. 4. The School Board employs several types of custodians. Local 566 custodians include head custodians, called Head Custodian IIIs. (Ex. 7b). Local 818 custodians are supervisory head custodians, called Head Custodian IVs. (Ex. 17). Unlike Head Custodian IIIs, Head Custodian IVs do not perform custodial functions in addition to their supervisory functions. 5. The Head Custodian at a school is responsible for ensuring that the school is kept clean and properly maintained. He or she also supervises the custodial staff at the school, including coordinating schedules and overtime. 6. Head Custodian IVs are assigned to Hartford s three comprehensive high schools, Hartford Public High School (HPHS), Bulkeley, and Weaver. Head Custodian IIIs are assigned to the other schools in Hartford. 7. On or about February 11, 1998 Superintendent of Hartford Public Schools Patricia Daniel issued an administrative memorandum to all Principals and Central Office Administrators regarding the opening and closing of school buildings. (Ex. 4). The memorandum read, in relevant part: The issue of opening and closing of school buildings has been the subject of several grievances. No one other than a Principal or Vice-Principal performing their regular administrative duties should be opening or closing a school building without the presence of a custodian. The collective bargaining agreement with Local 566 provides that all bargaining unit work will be done by bargaining unit employees, unless there are not bargaining unit employees available. Please ensure compliance with these guidelines. 8. On December 16, 2002, the State Board of Trustees for the Hartford Public Schools and the Union entered into a settlement agreement in resolution of a grievance. (Ex. 5). The agreement was signed by Labor Relations Manager Jill Cutler Hodgman (Cutler Hodgman) and Union President Mark Blumenthal (Blumenthal), and provided in full: 2

3 This settlement agreement (the Settlement ) is made by and between the State Board of Trustees for the Hartford Public Schools (the Board ), the American Federation of State, County and Municipal Employees/Local 566, AFL-CIO ( Local 566 ). Whereas Local 566 has asserted a claim against the Board for violation(s) of the Collective Bargaining Agreement (the Agreement ); and Whereas the Board denies that it, its officers, representatives or employees have violated the Agreement; Now, therefore, in the interest of fully and finally resolving all matters and disputes arising out of or in any way connected to the grievance filed by Local 566 on or about November 16, 2001, Local 566 and the Board agree to the following: 1. Local 566 agrees to withdraw the grievance filed by Local 566 on or about November 16, 2001 (SBMA 2002-A-0567), with prejudice. Local 566 agrees that it will not file and/or pursue any other grievances or any claims arising out of and/or in any way related to the above referenced grievance. 2. The Board and Local 566 acknowledge and agree that an Administrative Memorandum was issued on February 11, 1998 by then Superintendent, Patricia A. Daniel, which stated in part: No one other than a Principal or Vice Principal performing their regular administrative duties should be opening or closing a school building without the presence of a custodian. The collective bargaining agreement with Local 566 provides that all bargaining work will be done by bargaining unit employees, unless there are not bargaining unit employees available. 3. The Board and Local 566 further acknowledge and agree that in addition to the Principal or Vice Principal, who may open and/or close a school building if performing their regular administrative duties without the presence of a custodian, a non 566 unit member may open or close a school building without the presence of a custodian, on an emergency basis. 9. On February 10, 2003, the School Board and the Union entered into a settlement agreement in resolution of at least three grievances. (Ex.6). The agreement was signed by Cutler Hodgman, Blumenthal and Custodial Manager Raymond DeMonte, and provided in full: This settlement agreement (the Settlement ) is made by and between the State Board of Trustees for the Hartford Public Schools (the Board ), the American Federation of State, County and Municipal Employees/Local 566, AFL-CIO ( Local 566 ). 3

4 Whereas Local 566 has asserted a claim against the Board for violation(s) of the Collective Bargaining Agreement (the Agreement ); and Whereas the Board denies that it, its officers, representatives or employees have violated the Agreement; Now, therefore, in the interest of fully and finally resolving all matters and disputes arising out of or in any way connected to any grievance filed by Local 566 regarding non-566 members opening or closing district buildings, Local 566 and the Board agree to the following: 1. Local 566 agrees to withdraw any and all grievances filed by Local 566 regarding non-566 members opening and/or closing district buildings, with prejudice. Local 566 agrees that it will not file and/or pursue any other grievances or any claims arising out of and/or in any way related to the above referenced grievance. Specifically, Local 566 will not file and/or pursue any other grievance or any claims arising out of and/or in any way related to the opening and closing of schools by non-566 members. Specifically, the following non-exhaustive list of grievances includes grievances that shall be withdrawn with prejudice: Grievance Head Custodian Performing 566 Work Filed 11/25/02 Grievance Opening and Closing of Hartford Public High School Filed 11/14/02 Grievance Opening and Closing HALO Filed 11/14/02 2. The Board and Local 566 acknowledge and agree that an Administrative Memorandum was issued on February 11, 1998 by then Superintendent, Patricia A. Daniel, which stated in part: No one other than a Principal or Vice Principal performing their regular administrative duties should be opening or closing a school building without the presence of a custodian. The collective bargaining agreement with Local 566 provides that all bargaining work will be done by bargaining unit employees, unless there are not bargaining unit employees available. 3. The Board and Local 566 further acknowledge and agree that in addition to the Principal or Vice Principal, who may open and/or close a school building if performing their regular administrative duties without the presence of a custodian, a non 566 unit member may open or close a school building without the presence of a custodian, on an emergency basis. 10. The School Board and the Union were parties to a collective bargaining agreement with effective dates of July 1, 1996 through June 30, 2002 (Ex. 3) that contained the following relevant provision: 4

5 ARTICLE II BOARD AND/OR SUPERINTENDENT PREROGATIVES 2.0(A) Unless it is specifically abridged by any provision of this Agreement, it is recognized that the Board and/or Superintendent has and will continue to retain whether exercised or not, the sole and unquestioned right, responsibility and prerogative to direct the operation of the public schools in the City of Hartford in all its aspects including but not limited to, the following: To determine the type of work to be performed by employees; to decide the methods, procedures and means of conducting the work; to select, hire, evaluate and demote employees to discharge or otherwise discipline any employee; to promote, transfer and layoff employees; to establish promotional tests and procedures; to decide the need for facilities; to determine the work year/work day; to establish or continue policies, practices, and procedures for the conduct of business and the management of operations, and from time to time to change or abolish such policies, practices or procedures. 11. The successor contract, with effective dates of July 1, 2002 through June 30, 2007 (Ex. 3a), was issued by an interest arbitration panel in an award on January 24, 2005 in SBMA Case No MBA-272. In the arbitration proceedings, the School Board offered testimony and evidence regarding what it felt was an ongoing conflict between it and Local 566 regarding the opening and closing of school buildings. It noted the series of settlement agreements between the parties addressing the matter, but stated that the Union s interpretation of the agreements caused operational problems, and proposed adding subcontracting language to the management rights clause to resolve the problem. The Union asserted that the agreements required a Local 566 custodian to open and close school buildings and proposed that the current contract language regarding management rights remain unchanged. The interest arbitration panel agreed with the School Board and accepted its Last Best Offer on this issue (Exs. 13a, b), stating, in relevant part: The Board of Education has demonstrated throughout testimony and exhibits that the current language of the contract in the areas of subcontracting restricts the reasonable operations of the schools 12. In accordance with the interest arbitration panel s award, the successor contract contains the following relevant provision: ARTICLE II BOARD AND/OR SUPERINTENDENT PREROGATIVES 2.0(A) Unless it is specifically abridged by any provision of this Agreement, it is recognized that the Board and/or Superintendent has and will continue to retain whether exercised or not, the sole and unquestioned right, responsibility and prerogative to direct the operation of the public schools in the City of Hartford in all its aspects, including but not limited to, the following: to determine the type of work to be performed by employees and/or to establish subcontracts and/or continue existing subcontracts for said work, provided that this right shall 5

6 not be used to eliminate or reduce the number of bargaining unit employees; to decide the methods, procedures and means of conducting the work; to select, hire, evaluate and demote employees to discharge or otherwise discipline any employee; to promote, transfer and layoff employees; to establish promotional tests and procedures; to decide the need for facilities; to determine the work year/work day; to establish or continue policies, practices, and procedures for the conduct of business and the management of operations, and from time to time to change or abolish such policies, practices or procedures. (emphasis added.) 13. The successor contract also contains the following relevant provisions: ARTICLE V HOURS OF WORK, OVERTIME AND HOLIDAY PREMIUM PAY *** 5.1 Time and one-half shall be paid for: 1. All work performed in excess of eight (8) hours in any one day, and forty (40) hours in one (1) week; 2. All overtime work performed on Saturday as such excluding Head Lunch Supervisors/Meal Coordinators; and, 3. All overtime work performed on a day other than an employee s regular work day excluding Head Lunch Supervisors/Meal Coordinators. 5.2 Double time shall be paid for: 1. All work performed on Sunday as such; and, 2. All work performed on holidays listed in Article VI (6.0 A and B), plus regular holiday pay. 5.3 A schedule of overtime assignments shall be prepared by the Head Custodian and posted on the bulletin board. A record of overtime shall be posted on the appropriate bulletin board for custodial, maintenance and cafeteria employees. 1. Full-time employees and regular cafeteria employees shall be given preference on all overtime assignments. 2. Overtime shall be divided equally within classifications, except as provided for in this Article. 3. Except as provided for in this Article of this Agreement, overtime and work performed for outside groups and the Adult School in each school shall be provided equally among the qualified custodians regularly assigned to that school. *** 6

7 5. If the Manager of Buildings and Grounds or designee determines that a building or facility must be checked, the Head Custodian shall select the person to check the buildings on weekends, taking into consideration travel distance, reliability and responsibility, and the rate of pay shall be two (2) hour minimum at time and one-half. *** 5.4 Employees called in for work outside their regularly scheduled work hours shall be paid straight time if work is contiguous to their regularly scheduled hours, unless the employee has worked more than 40 hours in one week. When employees are called in on a non-contiguous basis, they shall be paid for a minimum of three hours or hours worked, whichever is greater, at the rate of time and one half their regular hourly rate. 5.5 All bargaining unit work will be done by bargaining unit employees, unless there are not bargaining unit employees available. 14. Opening and closing a School Board building entails unlocking and locking the building, deactivating and activating the alarm and turning on/off the lights in the necessary areas. It can also entail escorting individuals to and from their job sites and ensuring the cleanliness and safety of those individuals and the area(s) in which they work. Many of the tasks involved in opening and closing a building vary depending on the building, the time/day it is being opened and closed and the reason it is being used. The custodian who performs such tasks is paid a minimum of three hours of overtime if it is noncontiguous with his or her shift. 15. The regularly assigned workweek for Union custodians at HPHS is Monday through Friday. First shift runs from 6:00 a.m. to 5:00 p.m. and second shift runs anywhere from 12:00 p.m. to 11:00 p.m. It is the Head Custodian s job, in conjunction with the Buildings and Grounds Custodial Manager, to assign the custodians to their working hours within the confines of the shifts for which they were hired. 16. Beginning the Monday after school lets out for the summer and running until the Friday before school reopens in the fall, all custodial staff works the day shift, and not past 6:00 p.m. 17. There is an understanding that weekend building checks may be performed by the Head Custodian in a school, regardless of his or her union affiliation. The two hour building check is conducted sometime between 7:00 a.m. and 10:00 p.m. and entails opening and closing the building; checking both the exterior and interior of the building for signs of trouble, including checking every bathroom to make sure no water is running; checking the boiler; checking the temperature; and checking the windows and doors. Building checks are performed on weekends for approximately four months each year, generally from November through March. 7

8 18. When there is construction at any school in the Hartford Public School System, the head custodian in that school, as the senior custodian in that building, serves as the Buildings and Grounds Department liaison with the construction project. This responsibility includes attending the construction meetings, coordinating schedules and relaying scheduling information to the school s Principal or the Buildings and Grounds Department, as well as allowing access and being present at the school when the construction crews are onsite. 19. During the period from July 2005 through July 2006 construction was taking place at HPHS. Former Chief of Building Operations Al Hinds designated the HPHS Head Custodian IV, Joseph Baker (Baker), to be the Buildings and Grounds Department liaison to that construction project. Hinds instructed Baker to attend all the relevant meetings and be at the school on weekends to open and close the building, provide access to the necessary areas of the building and coordinate the construction process. 20. At some point in or about the summer of 2006, it was discovered by members of the Union that Baker and Michael Piteau (Piteau), a Mechanical Journeyman, were opening and closing HPHS and working overtime on some weekends and that this had been going on since sometime in or about the summer of (Ex. 8). Baker is a member of Local 818; Piteau is a member of Local 566. Several Union custodians asked Baker if they could work the overtime instead and were refused. 21. There are three salary steps for a Union custodian. The custodians who would have been eligible for overtime at HPHS during the relevant time period were all at the top step. The weekend overtime rate during the summer of 2006 for these individuals would have been $22.50 on Saturday and $30.00 on Sunday. CONCLUSIONS OF LAW 1. The failure or refusal to abide by a grievance settlement agreement violates 7-470(a)(6) of the Act. 2. The terms of Article II, Section 2.0(A) of the successor collective bargaining agreement superseded the terms of the grievance settlement agreements at issue in this matter. 3. The School Board did not violate 7-470(a)(6) of the Act. 4. An employer s unilateral change in an existing condition of employment that involves a mandatory subject of bargaining constitutes a refusal to bargain in good faith and a prohibited practice under 7-470(a)(4) of the Act unless the employer proves an appropriate defense. 5. To establish a prima facie case of unilateral change, the Complainant must show there was a fixed practice, that there was a clear departure from that practice 8

9 without bargaining, and that the change involved a mandatory subject of bargaining. 6. The Union has not proven its prima facie case. DISCUSSION The Union s complaint alleges that the School Board violated both past practice and a series of grievance settlement agreements between the parties when it did not have a Union custodian present when opening and closing HPHS and working the related overtime on the weekends in question between July 2005 and July The School Board argues that the contract awarded by the interest arbitration panel overturns the prior grievance settlement agreements by directly addressing this very issue and clearly establishing the School Board s right to subcontract bargaining unit work so long as bargaining unit positions are not reduced or eliminated as a result. The School Board argues in the alternative that even if the settlement agreements had continuing viability, the School Board did not violate their terms by allowing the head custodian at HPHS, who happened to be a member of Local 818 and not the Union, perform his function as the Buildings and Grounds Department liaison to the construction project on the weekends in question. We agree with the School Board in this matter for the following reasons. In our prior decisions concerning claims of settlement agreement violation, we have consistently held that when a party alleges that there has been a refusal to comply with a grievance settlement, we will interpret the settlement to ascertain its requirements. Our interpretation is based on an objective standard, and we will find no defense in the claim that the respondent has acted based on a good faith or plausible interpretation of the agreement. City of Waterbury, Decision No (1998); Town of Newington, Decision No (1991). As we have stated before, the Board will not examine the merits of the underlying grievance complaint nor the parties intentions or goals in the formulation of the settlement. The Board s analysis focuses solely on the language of the settlement itself. City of Waterbury, supra. On their face, the settlement agreements in question address the issue of responsibility for opening and closing Hartford school buildings. Given the particular facts of this case, however, there is no need for further analysis of the settlement agreements. The testimony and evidence before us lead to the conclusion that the settlement agreements have been superseded by Article II, Section 2.0(A) of the successor collective bargaining agreement. It is clear from the record presented that the School Board proposed that new language be included in the parties management rights clause regarding subcontracting in an effort to resolve the longstanding conflict between the School Board and Local 566 regarding the opening and closing of schools and the interpretation of the related 9

10 settlement agreements. The interest arbitration panel favored the School Board s proposal on this issue and added the proposed language, permitting the School Board to subcontract bargaining unit work unless to do so would result in a loss of bargaining unit positions. The Union has not claimed that bargaining unit positions have been lost here and has produced no evidence that contradicts our findings regarding the successor contract. Since we conclude that the settlement agreements have been superseded by the successor collective bargaining agreement, we find the School Board did not violate the Act by failing to comply with a grievance settlement agreement. We turn now to the Union s allegation that the School Board s action violated a longstanding practice of using a Union custodian to assist in opening and closing schools. By now it is well settled that an employer s unilateral change in an existing condition of employment involving a mandatory subject of bargaining will constitute a refusal to bargain in good faith in violation of 7-470(a)(4) of the Act unless the employer provides an adequate defense. Norwalk Third Taxing District, Decision No (1999); Bloomfield Board of Education, Decision No (1993); City of Stamford, Decision No (1988). In order for a union to establish a prima facie case of unlawful unilateral change, it must show that there has been an existing fixed practice, a clear departure from that practice without bargaining, and that the change involved a mandatory subject of bargaining. City of Waterbury, Decision No (1994). Once the union has made out its prima facie case, the burden shifts to the employer to establish an adequate defense. We recognize a controlling provision of a collective bargaining agreement as a defense. City of Stamford, Decision No (1992). We conclude that the Union has failed to establish its prima facie case. In so concluding, we find that the Union s allegation in this regard is unsupported by the evidence. We note, however, that even if there was evidence to support the Union s allegation of unilateral change in a past practice, any such practice would have been nullified by Article II, Section 2.0(A) of the successor collective bargaining agreement. For the foregoing reasons, the complaint is dismissed. 10

11 ORDER By virtue of and pursuant to the power vested in the Connecticut State Board of Labor Relations by the Municipal 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 John W. Moore, Jr. John W. Moore, Jr. Chairman Patricia V. Low Patricia V. Low Board Member Wendella A. Battey Wendella A. Battey Board Member 11

12 CERTIFICATION I hereby certify that a copy of the foregoing was mailed postage prepaid this 25 th day of June, 2009 to the following: Attorney J. William Gagne, Jr Gagne & Associates 970 Farmington Avenue, Suite 207 West Hartford, CT Attorney Ann Bird Bird & Apostolidis, Attorneys at Law P. O. Box 532 Middletown, CT RRR RRR Attorney Susan Creamer AFSCME 444 East Main Street New Britain, CT Alexandra M. Gross, Acting General Counsel CONNECTICUT STATE BOARD OF LABOR RELATIONS 12