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 CITY OF STAMFORD -and- LOCAL , COUNCIL 4, AFSCME DECISION NO MARCH 6, 2017 Case No. MPP- 31,589 A P P E A R A N C E S: Attorney Gabriel J. Jiran for the City Attorney J. William Gagne, Jr. For the Union DECISION AND DISMISSAL OF COMPLAINT On June 1, 2015, Council 4, AFSCME, Local (the Union) filed a complaint with the Connecticut State Board of Labor Relations (the Labor Board), alleging that the City of Stamford (the City) violated the Municipal Employee Relations Act (MERA or the Act) when its human resources director questioned a campaign endorsement of the Union s president by another labor organization. After the requisite preliminary steps had been taken, the matter came before the Labor Board for a hearing on August 17, The City and the Union 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 on November 18, Based on the entire record before us, we make the following findings of fact and conclusions of law, and we dismiss the Union s complaint.

2 FINDINGS OF FACT 1. The City is a municipal employer within the meaning of Section 7-467(1) of the Act. 2. The Union and Local 2377 UAW (Local 2377) are employee organizations within the meaning of Section 7-467(6) of the Act and represent different bargaining units of City employees. 3. At all times relevant hereto there has existed a pension fund for City employees known as the City of Stamford Certified Employees Retirement Fund (CERF). Members of bargaining units represented by the Union and Local 2377 are eligible to participate in CERF and it is governed by a board consisting of three City trustees and three union trustees. Union trustees are elected to staggered three-year terms by CERF participants. The City s human resources director serves as secretary to the board and does not vote on board matters or for CERF board candidates. 4. The City s human resources office conducts the elections for CERF union trustees. Candidates prepare written campaign statements which the human resources office mails to all CERF participants together with a notice containing the date, time, and location of the election. The human resources office also posts these materials on bulletin boards in City facilities. 5. Burt Rosenberg (Rosenberg) has been employed by the City as an assistant corporation counsel since 1998 and has served as Union president for approximately sixteen years. Rosenberg was initially elected to serve as a CERF union trustee for a term from January, 2012 to December, 2014 and he campaigned in November and December, 2014 for election to a successor term. Rosenberg s campaign statement noted that he had been endorsed for re-election by Local In December, 2014, Joe Caruso (Caruso), a member of the bargaining unit represented by Local 2377, was already serving a term as a CERF trustee and as such, was not eligible for re-election at that time. 7. City human resources director Clemon Williams (Williams) read Rosenberg s campaign statement after it was posted and at that time Williams was under the mistaken impression that Caruso was running against Rosenberg. Shortly thereafter, Williams encountered then Local 2377 president Gloria Kelly (Kelly) 1 in a hallway and Williams asked her why Local 2377 endorsed Rosenberg. Kelly responded that Rosenberg supported the existing defined benefit plan and his challenger 2 did not. After speaking further with Kelly, Williams realized that Caruso was not running for the position at that time and the conversation ended. 1 Kelly has since retired. 2 Tim Beeble, a member of a bargaining unit represented by another AFSCME local, ran for the CERF union trustee position in

3 8. Rosenberg was re-elected to a second term as a CERF union trustee in December CONCLUSIONS OF LAW 1. Employee discrimination and retaliation against employees for engaging in protected, concerted activity is a violation of the Act. 2. The City did not violate the Act when its human resources director questioned the basis of a campaign endorsement of the Union s president by another labor organization. DISCUSSION The Union contends that the City violated Section 7-470(a)(1) 3 of the Act when Williams asked Kelly why Local 2377 endorsed Rosenberg in the CERF union trustee election. 4 The City admits that Williams made the inquiry as alleged but argues that taken in context, Williams actions were within the parameters of the Act. Given the record before us, we agree with the City and dismiss the Union s complaint. A complainant alleging that employees were discriminated against in their employment because of union activity has the initial burden of showing that the discriminatory action was taken because of these protected activities, or at least that the protected activities were a substantial factor in bringing about these adverse actions. Town of Greenwich, Decision No (1983), aff d O Brien v. State Board of Labor Relations, 8 Conn. App. 57 (1986); Connecticut Yankee 3 Conn. Gen. Stat (a)(1) states, in relevant part: Municipal employers or their representatives or agents are prohibited from (1) Interfering, restraining or coercing employees in the exercise of the rights guaranteed in Section Section 7-468(a) states, in relevant part: Employees shall have... the right... to bargain collectively through representatives of their own choosing... 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. The Union s complaint also alleges a violation of Section 7-470(a)(2) which is concerned with circumstances where an employer inserts itself into the structure or operation of what purports to be a labor organization, thereby creating a so-called company union. See Town of Windham, Decision No (2016); Town of Cheshire, Decision No (2015); New Fairfield Board of Education, Decision No (1995). Since the record is devoid of evidence or argument material to such issue we dismiss the Union s claim under that section. 4 The Union s complaint also alleged that Williams told a Local 2377 representative that the Local should not have endorsed Rosenberg. As the Union has offered neither evidence nor argument to support this allegation, we deem it abandoned. State of Connecticut, Department of Correction, Decision No (2016); Town of Guilford, Decision No (2015); City of Hartford, Decision No (2013); Town of Wallingford, Decision No (1998); East Lyme Board of Education, Decision No (1985). 3

4 Catering Co., Inc., Decision No (1977). We determine whether the complainant has met this burden to establish a prima facie case of discrimination using an analytical framework such as is found in Wright Line, 251 NLRB 1083, enf d 622 F.2d 899 (1 st Cir. 1981), cert denied 455 U.S. 989 (1982. A prima facie case includes proof that: (1) the employee engaged in protected, concerted activities; (2) the employer had knowledge of those activities; and (3) the employer harbored anti-union animus. New Britain Board of Education, Decision No p. 4 (2008). Once a prima facie case is established, we then address whether the employer has established an affirmative defense which may include proof that the employer would have pursued its course of conduct regardless of any anti-union motivation. City of Hartford, Decision No (2000); New Fairfield Board of Education, Decision No (1995). City of Norwalk, Decision No p. 6 (2012), appeal dismissed, 156 Conn. App. 79 (2015). See also City of Bridgeport, Decision No (2016); City of New Haven, Decision No (2016); Town of Windham, Decision No (2016); City of Hartford, Decision No (2015); Town of Montville, Decision No (2015); Town of Hamden, Decision No (2009); Town of Wallingford, Decision No (2004); Orange Board of Education, Decision No (1996). We have little difficulty finding that running for the position of CERF union trustee and disseminating campaign materials in furtherance of that end are protected activities under the Act. See Conn. Gen. Stat (a) ( Employees shall have the right to bargain collectively through representatives of their own choosing... ); Norwalk Board of Education, Decision No (1998) (seeking election for union office is protected activity); cf. City of New Britain, Decision No (2000) (campaigning to elect officials favorable to union demands is protected activity). Since Williams and the City were aware of Rosenberg s candidacy, we turn to the issue of animus. As does our federal counterpart in these types of cases, we have consistently held that the [prohibited] practice consists of a discharge or other adverse action that is based in whole or in part on anti-union animus or as the [National Labor Relations] Board now puts it, that the employee s protected conduct was a substantial or motivating factor in the adverse action. NLRB v. Transportation Management Corp, 462 U.S. 393, 401 (1983). Ascertaining motive, however, is often difficult. In this day and age, discrimination is almost invariably conducted surreptitiously; employers who engage in this form of misconduct do not do so overtly. Town of Watertown, Decision No (1999). Proof need not consist [of] direct evidence of improper motive. Such direct evidence is rarely available and the Union is entitled to the benefit of any inferences that are reasonable under the circumstances... Connecticut Yankee Catering Co., Decision No p. 5 (1977). In this regard, the Labor Board considers indirect evidence of anti-union bias such as the timing of an employer s decision 4

5 in relations to the protected activity. Town of East Haven, Decision No (1990)... City of Hartford, supra at p. 9. The evidence in the record before us is insufficient to establish improper motive, either directly or by means of reasonable inference. Williams prior statements do not reflect hostility as to the Union or its president and we credit his testimony that he posed the questions to Kelly because he believed, in error, that Rosenberg was running against a member of Kelly s own bargaining unit. The Union does not claim there existed undue tension or conflict between Williams or the City and Rosenberg during his initial term as a CERF union trustee and we note that at the time of the conversation between Kelly and Williams, Rosenberg s campaign statement had already been disseminated to eligible voters. Unlike the situation in City of Stamford, Decision No (2013), the City s conduct in the instant circumstances does not violate specific standards designed to protect employees engaged in protected concerted activity. 5 Williams inquiry was neutral on its face and absent a showing that it was otherwise, we conclude that the Union has not established a prima facie case of unlawful interference with protected rights and we dismiss the complaint. 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 Barbara J. Collins Barbara J. Collins Acting Chairman Robert A. Dellapina Robert A. Dellapina Alternate Board Member 5 In City of Stamford, supra, we found use of a cell phone by a City human resources representative to photograph a labor coalition rally violated the well-established rule of our federal counterpart that photographing employees engaged in protected concerted activities constitutes unlawful surveillance because it has the tendency to intimidate employees, implant the fear of future reprisals and interfere with the exercise of statutory rights. Id. at p. 4. 5

6 CERTIFICATION I hereby certify that a copy of the foregoing was mailed postage prepaid this 6th day of March, 2017 to the following: Attorney Gabriel J. Jiran Shipman & Goodwin, LLP One Constitution Plaza Hartford, CT Attorney J. William Gagne, Jr. Gagne & Associates 1 Congress Street Hartford, CT RRR RRR Harry B. Elliott, Jr., General Counsel CONNECTICUT STATE BOARD OF LABOR RELATIONS 6