STATE OF CONNECTICUT LABOR DEPARTMENT CONNECTICUT STATE BOARD OF LABOR RELATIONS IN THE MATTER OF STATE OF CONNECTICUT -AND- CONNECTICUT STATE EMPLOYEES ASSOCIATION, SEIU, LOCAL 2001 DECISION NO. 4658 APRIL 3, 2013 Case No. SPP-27,448 A P P E A R A N C E S: Attorney Ellen M. Carter for the State Attorney Robert J. Krzys for the Union DECISION AND DISMISSAL OF COMPLAINT On August 25, 2008, Connecticut State Employees Association, SEIU, Local 2001 (the Union) filed a complaint with the Connecticut State Board of Labor Relations (the Labor Board) alleging that the State of Connecticut (the State) had violated the State Employee Relations Act (SERA or the Act) by unilaterally changing specifications for two state job classifications pending evaluation by a joint labor/management committee. After the requisite preliminary steps had been taken, the matter came before the Labor Board for a formal hearing on September 19, 2011. The parties appeared, were represented by counsel and were given full opportunity to present evidence, examine, and cross-examine witnesses and make argument. The parties submitted post-hearing briefs, which were received on March 20, 2012. Based on the entire record before us, we make the following findings of fact and conclusions of law and dismiss the complaint.
1. The State is an employer under the Act. FINDINGS OF FACT 2. The Union is an employee organization and the exclusive representative of the Engineering & Scientific (P-4) bargaining unit under the Act. 3. At all times relevant hereto the Department of Administrative Services (DAS) has conducted objective job evaluation (OJE) studies of the classifications in each bargaining unit pursuant to Conn. Gen. Stat. 5-200a(a). 1 Each OJE study included the collection of employee job questionnaires designed for the OJE process. 4. On March 24, 1994 the State and the State Coalition on Pay Equity (SCOPE) 2 entered into an Agreement (Ex. 6) which states, in relevant part: Section Two Maintenance of the Pay Equity System B. The Objective Job Evaluation unit in concert with the Master Evaluation Committee will complete an evaluation for new jobs in accordance with the Willis Point Factor Evaluation system. Once the class has been filled by an employee for at least 12 months, the agency and the Union will be notified by the Objective Job Evaluation unit that an evaluation review of the job will take place. The salary group will be established as temporary pending the formal Master Evaluation Committee review after a permanent incumbent has been in the job for twelve months. After that formal review the salary group will be re-adjusted up or down to its appropriate place on the line. If the points indicate that the salary group should move down, current incumbents will remain in the salary group that they were hired in and will move through the maximum of that salary group; future incumbents will be hired in at the appropriate salary group 1 Conn. Gen. Stat. 5-200a(a) states, in relevant part: (a) The Commissioner of Administrative Services shall adopt and implement a system for evaluating classifications in state service on the basis of objective job-related criteria [which] shall include but not be limited to: (1) Knowledge and skill required to carry out the duties of the position, (2) effort, both mental and physical, and (3) accountability. 2 SCOPE exists pursuant to Conn. Gen. Stat. 5-200c which states, in relevant part: (a) [T]he General Assembly shall appropriate funds for salary adjustments for use in eliminating inequities in the wages paid for state service, as identified by the findings of (1) the objective job evaluation process conducted by the Commissioner of Administrative Services pursuant to section 5-200a (b) [C]ollective bargaining negotiations concerning wage changes as a result of objective job evaluations shall commence [S]uch negotiations shall be conducted between the employer and a coalition committee which represents all state employees who are members of any designated employee organization. The results of any such negotiations shall be implemented as of July 1, 1995. (emphasis added). 2
D. Master Evaluation Committee Composition. There shall be a Master Evaluation Committee comprised of union and management representatives of classes that fall under the scope of the Master Evaluation Committee. Each interested bargaining unit which represents such classes may appoint the representative and an alternate for the representative to the Master Evaluation Committee All members shall be trained and qualified in the application of the Willis Point Factor Evaluation System 5. The State and the Union are parties to a collective bargaining agreement (Ex. 4) with effective dates of June 1, 2005 through June 30, 2009 that provides, in relevant part: ARTICLE 5 MANAGEMENT RIGHTS Section One. Except as otherwise limited by an express provision of this Agreement, the State reserves and retains, whether exercised or not, all the lawful and customary rights, powers and prerogatives of public management. Such rights include but are not limited to the determination of the content of job classification ARTICLE 19 COMPENSATION Section Five: Effective June 23, 1995 and thereafter, bargaining unit classifications, except data processing classifications which have been evaluated pursuant to the Objective Job Evaluation (OJE) process, shall be assigned to pay grades based upon the points to pay relationship as reflected on the following schedule SG OJE Point Range 16 188-193 19a 243-257 There shall be no downgrading of P-4 classifications or salaries 6. Data processing and/or information technology classifications in the P-4 unit are compensated under the EU salary plan which is not subject to the points to pay schedule in the collective bargaining agreement. Classifications in the P-4 unit subject to the points to pay schedule in the P-4 collective bargaining agreement are compensated under the ES salary plan. 7. On March 3, 2006 the State established Geographical Information Systems Technician (GIST) and Geographical Information Systems Coordinator (GISC) classifications (collectively, GIS classes) to work in the Office of Statewide Emergency Telecommunications (OSET) at the Department of Public Safety (DPS). As initially established, the GIST was expected to perform[] a range of tasks in collecting, reviewing and reconciling Geographic Information Systems data for usage by local, state, regional and federal authorities in emergencies. As initially established, the GISC was expected to act[] as a working supervisor for the identification, receipt and digitizing of current and accurate emergency telecommunications map information in the Geographic Information Systems database.. Exs. 7, 8, 10. 3
8. On June 8, 2007 Union Executive Director Robert Rinker (Rinker) and Director of Labor Relations Robert L. Curtis (Curtis) of the State s Office of Policy and Management signed an agreement (Ex. 9), which provides, in relevant part: This is to affirm the [GIST and GISC] classifications will be encumbered for one year Having been so encumbered for one year (12 months) and consistent with Section Two (B) of the Pay Equity Agreement (SCOPE), said classes shall be submitted to the Master Evaluation Committee (MEC) for final evaluation during the month of October 2007. Following MEC evaluation and review the Union and State shall determine whether the placement of these classes within a salary plan warrants negotiations over compensation or the salary plan designation resolves any pay rates issues. For example, if placed on the ES pay plan, no negotiations over rates of pay would occur; if placed on the EU pay plan rates of pay would be subject to negotiations 10. Effective April 3, 2006 and prior to announcing the GIST and GISC examinations, DAS modified the job requirements for the classes in order to obtain a larger pool of applicants by expanding the education achievements that could be substituted for the general experience requirement. (Exs.15, 16, 32). 11. By letter dated August 15, 2007 DAS informed DPS that it was conducting a preliminary review of the GIST and GISC classes pursuant to the SCOPE agreement. DAS requested that each incumbent employee complete an OJE questionnaire, that the questionnaires be reviewed and signed by the incumbents supervisors and that the DPS human resources director also review, sign, and offer comments. The questionnaires were completed on September 21, 2007. (Exs. 24, 25, 26). 12. On November 9, 2007 DAS representatives interviewed Brian Pavlik (Pavlik), the sole GIST incumbent, Daniel Czaja (Czaja), the sole GISC incumbent, and OSET Director George Pohorilak. Audit reports summarizing these interviews issued November 19, 2007. (Exs. 27, 28). 13. On December 11, 2007 the MEC met to evaluate the GIST and GISC classes and reviewed materials including the OJE questionnaires and audit reports. The MEC also reviewed a document (Ex. 10) prepared by DAS in advance of the meeting entitled PRELIMINARY EVALUATION dated December 11, 2007 which stated, in relevant part: At the time of class establishment the [GISC] was to act as a working supervisor over several [GIST employees]. However, the current office organizational structure has only one [GIST] and one [GISC] and the [GISC] does not act in a lead capacity. Rather the Director sets unit priorities, approves time, provides labor and fiscal decisions and conducts performance reviews The [GIST] contacts appropriate personnel, identified by the [GISC] to obtain mapping updates electronically and through telephone discussions. The incumbent performs a cursory analysis and updates existing vendor created mapping software as necessary 4
A review of the duties and responsibilities of the classes revealed the need to revise the current class specifications. Committee Specifications have been prepared which incorporate revisions and updated language to reflect the current function and duties of both the [GISC and GIST] classes 14. The State did not provide the Union with the Preliminary Evaluation or the revised job specifications before the classes were evaluated by the MEC. 15. By letter dated December 24, 2007, DAS Human Resources Program Manager Carla Martin (Martin) informed Rinker that it has been determined that future positions of the [GISC] and [GIST] classifications should be assigned to the ES Pay Plan. (Ex. 14). 16. By letter (Ex.13) dated December 28, 2007, DAS Commissioner Anne Gnazzo (Gnazzo) wrote Union Representative Dave Glidden (Glidden) stating, in relevant part: This confirms the results of the Master Evaluation Committee session for the classes listed below Geographic Information Systems Coordinator (1271) New Class Current Salary Grade: EU 23 Final Evaluation: = 252 Final Salary Grade: ES 19a Geographic Information Systems Technician (1272) New Class Current Salary Grade EU 18 Final Evaluation: =192 Final Salary Grade ES 16 This is considered to be the final OJE report for these classes. 17. By letter (Ex. 19) dated June 20, 2008 Rinker wrote Office of Labor Relations (OLR) Director Linda Yelmini (Yelmini) and stated, in relevant part: [Last summer] the parties agreed upon a [side letter] pertaining to the.. [GISC and GIST] classifications utilized at [DPS] According to the side letter, theses two new classifications would be further discussed by the parties following MEC evaluation. I ve enclosed a copy 3 of the side letter In December of last year, the MEC evaluated the classifications in question. We discovered, however, that the MEC evaluated a different set of Committee Specifications with downgraded experience and training requirements. Because the MEC used specifications different than the ones that the parties previously agreed would be reviewed, the State is in violation of the side letter. As such, the MEC process must be redone, using the appropriate specifications. Please contact me so that arrangements can be made to correct this problem. 3 The enclosure was a copy of the June 28, 2007 letter (Ex. 9) signed by Rinker and Curtis. 5
18. The State has not changed the final GIST and GISC salary grade as confirmed in Gnazzo s letter of December 28, 2008, however, Czaja and Pavlik continue to be compensated, respectively, at salary grades EU 18 and EU 23. 19. In the past, DAS has changed the job specifications for new classifications prior to final MEC review. (Ex. 31). CONCLUSIONS OF LAW 1. A unilateral change in a condition of employment involving a mandatory subject of bargaining constitutes a refusal to bargain unless the employer proves an adequate defense. 2. The State did not violate the Act by changing the job specifications for the Geographic Information Systems Coordinator and Geographic Information Systems Technician in December 2007. DISCUSSION The Union asserts that the State breached the continuing duty to bargain in good faith codified in Sections 5-2714 and 5-2725 of the Act when it unilaterally altered the experience and training requirements and job specifications for the GISC and GIST classes prior to submitting those specifications to the MEC. The State responds that this Board lacks jurisdiction because the Union s claim amounts to an alleged contract violation. The State also argues even if there is jurisdiction, the State s actions did not the violate terms of the letter agreement and complied with past practice. Finally, the State asserts that it has the contractual and statutory right to determine the content of job classifications. We view the issue before us as limited to alleged illegal unilateral change and assert jurisdiction on that basis. Our case law is clear that [a] unilateral change in a fixed practice concerning a condition of employment rising to the level of a mandatory subject of bargaining is a violation of an employer s duty to bargain under Section 5-272(a)(4) of the Act, unless the employer proves an appropriate defense. State of Connecticut, Department of Public Safety, Decision No. 2419 (1985). It is the Union s initial burden to make a prima facie case establishing that a change in an existing condition of employment has in fact occurred, for if no 4 Section 5-271(a) provides, in relevant part: Employees shall have, and shall be protected in the exercise of the right of self-organization, to form, join or assist any employee organization, to bargain collectively through representatives of their own choosing on questions of wages, hours and other conditions of employment, except as provided in subsection (d) of section 5-272, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from actual interference, restraint or coercion. 5 Section 5-272(a) provides, in relevant part: 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 in accordance with the provisions of said sections as the exclusive representative of employees in an appropriate unit; including but not limited to refusing to discuss grievances with such exclusive representative... 6
change is proven, no further inquiry is warranted. State of Connecticut, Decision No. 4573 (2012). Even if we assume that the minimum experience/training requirements and job specifications for the positions at issue involve mandatory subjects of bargaining, based on the evidence before us we find that the Union failed to establish an improper change to an existing condition of employment. The statutory scheme contemplates that DAS conduct evaluations of all classified positions and that the State negotiate an agreement with SCOPE concerning wage changes as a result of [such] objective job evaluations Conn. Gen. Stat. 5-200c(b). The SCOPE agreement in turn provides that [t]he salary group will be established as temporary for new classifications such as the GISC/GIST positions at issue and that [t]he salary group will be re-adjusted up or down to its appropriate place on the line on the basis of a formal Master Evaluation Committee review after a permanent incumbent has been in the job for twelve months The record establishes this procedure was followed in the instant case. The GISC/GIST positions were established at temporary salary groups, those groups were changed pursuant to MEC formal review, and the incumbents retained their original salary grades. 6 The Union offered no evidence to show a departure from established practice for submitting updated OJE information to the MEC. The collective bargaining agreement does not restrict DAS statutory obligations as to OJE and Article 5 1 reserves determination of the content of job classification to the State. In this instance the OJE studies indicated that the GISC and GIST were not data processing classifications within the meaning of Article 19 5 and as such were subject to the same point system applied to other classifications in the unit as contemplated by the SCOPE agreement. The June 28, 2007 letter signed by Rinker and Curtis expressly contemplated the possibility that if, [f]ollowing MEC evaluation and review, the GISC and GIST positions were placed on the ES pay plan no negotiations over rates of pay would occur We conclude on the basis of the record before us that the State did not violate the Act when it submitted new job specifications for the GISC and GIST classes to the MEC as part of the data resulting from its OJE studies. In the past, the State has changed job specifications and requirements for other classifications pending MEC review utilizing essentially the same procedure. To the extent the Union seeks to renegotiate wages for particular ranges under the Willis Point Factor Evaluation System, it will have that opportunity upon expiration of the collective bargaining agreement. Based on the record before us we conclude that the Union has failed to establish its prima facie case of unilateral change to the practice at issue and so we dismiss the complaint. State of Connecticut, Decision No. 2237 (1983). ORDER Pursuant to the power vested in the Connecticut State 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. 6 The SCOPE agreement provides that [i]f the points [assigned by the MEC] indicate that the salary group should move down, current incumbents will remain in the salary group they were hired in 7
CONNECTICUT STATE BOARD OF LABOR RELATIONS Wendella Ault Battey Wendella Ault Battey Chairman Patricia V. Low Patricia V. Low Board Member Barbara J. Collins Barbara J. Collins Board Member 8
CERTIFICATION I hereby certify that a copy of the foregoing was mailed postage prepaid this 3rd day of April, 2013 to the following: Ellen M. Carter, Esq. Principal Labor Relations Specialist State of Connecticut OPM-OLR 450 Capitol Avenue, MS#53OLR Hartford, CT 06106-1308 Robert J. Krzys, Esq. P.O. Box 207 New Hartford, CT 06057 RRR RRR Linda Yelmini OPM-OLR 450 Capitol Avenue MS#53OLR Hartford, CT. 06106-1308 Harry B. Elliott, Jr., General Counsel CONNECTICUT STATE BOARD OF LABOR RELATIONS 9