STATE OF CONNECTICUT DEPARTMENT OF LABOR CONNECTICUT STATE BOARD OF LABOR RELATIONS

Transcription

1 STATE OF CONNECTICUT DEPARTMENT OF LABOR CONNECTICUT STATE BOARD OF LABOR RELATIONS In the Matter of TOWN OF WINDSOR (Police Department) - and - THE WINDSOR POLICE DEPARTMENT EMPLOYEES ASSOCIATION, INC. CASE NO. ME-1386 DECISION NO. 659 DECIDED DECEMBER 28, 1965 A P P E A R A N C E S: For the Municipal Employer: For the Petitioner: Norman Bernstein, Esq. Thaddeus Maliszewski, Esq. DECISION AND DIRECTION OF ELECTION Statement of the Case On August 19, 1965 the Windsor Police Department Employees Association, Inc., hereinafter called the Petitioner, filed with the Connecticut State Board of Labor Relations, hereinafter called the Board, a petition alleging that a question or controversy had arisen concerning the representation of all employees with the exception of the Chief in the Police Department, employed by the Town of Windsor, hereinafter called the Municipal Employer, and requesting that, pursuant to the authority granted in Section 5 (1) of the Municipal Employee Relations Act (Public Act #159), hereinafter called the Act, the Board investigate such question or controversy and certify the name of the representative that had been designated or selected by said employees. On November 1, 1965, pursuant to notices given to the parties, the Board held a hearing on the petition at Windsor, Connecticut. The Municipal Employer appeared and was represented by Norman Bernstein, its attorney. The Petitioner appeared and was represented by Thaddeus Maliszewski, its attorney. Full opportunity to be heard and to examine and cross-examine witnesses and to introduce evidence bearing upon the issues was afforded all parties. THE ISSUE Whether the Deputy Chief and Lieutenant of the Police Department are to be included in the bargaining unit? The Petitioner claims both because of their voluntary membership in the Union. The Municipal Employer contends both should be excluded from the unit because of their supervisory position within the Police

2 Department. Section 5, subsection 2 reads as follows: The Board shall have the power to determine whether a supervisory or other position is covered by this act in the event of a dispute between the municipal employer and an employee organization. In determining whether a supervisory position should be excluded from coverage under this act, the Board shall consider among other criteria, if the principal functions of the position are characterized by: (A) Performing such management control duties as scheduling, assigning, overseeing and reviewing the work of subordinate employees; or (B) performing such duties as are distinct and dissimilar from those performed by the employees supervised; or (C) exercising judgment in adjusting grievances, applying other established personnel policies and procedures and in enforcing the provisions of a collective bargaining agreement; or (D) establishing or participating in the establishment of performance standards for subordinate employees and taking corrective measures to implement those standards. The above criteria for supervisory positions shall not necessarily apply to police and fire departments". In the light of the above provisions contained in the Act, we shall consider the duties of the Deputy Chief within the Department. The evidence adduced at the hearing revealed that the Deputy Chief reported for duty at 9:00 a.m., and left at 5:00 p.m., on a basis of a forty hour work week. His duty is to review all work that has taken place during the past sixteen hours during his absence. He reviews all the reports. He is actually more of a liaison officer. (Transcript Page 45) He goes to court with the patrolmen. He picks up any mistakes they make. He is consistently reviewing the work of all officers. His other principal duty is that of training officers. He is responsible for the entire training program of the Department. (Transcript Page 45) In the absence of the chief, the Deputy is in full command to perform the duties and exercise the authority of the Chief. (Exhibit 5) He spends approximately seventy per cent of his time scheduling, assigning and reviewing the work of his subordinates in the course of a day. In view of the duties performed by the Deputy, we conclude his is a supervisory position within the Department and pursuant to Section 5, subsection 2, excluded from the coverage of the Act. Therefore, the Deputy Chief will be excluded from the bargaining unit. The Lieutenant within the Department is in the field more often than the Deputy. He assists the patrolmen in investigation. He assigns to the patrolmen their respective posts. He spends approximately three hours a day scheduling men. (Transcript Page 49) He is involved simply in the mechanics of scheduling. The policy decision remains under the control of the Chief. We find the Lieutenant spends substantially less than fifty percent of his time performing any supervisory functions contained in Section 5, subsection 2 of the Act, and therefore we conclude he will be included within the bargaining unit. FINDINGS OF FACT. 1. THE MUNICIPAL EMPLOYER. The Town of Windsor (Police Department) is a political subdivision of the State of Connecticut and is a municipal employer. 2. THE PETITIONER. The Windsor Police Department Employees Association, Inc., is a lawful

3 association having as a primary purpose the improvement of wages, hours and other conditions of employment among employees of municipal employers. 3. THE QUESTION OR CONTROVERSY CONCERNING REPRESENTATION. We find there is a question or controversy concerning the representation of the employees and we feel it would best be resolved by conducting an election by secret ballot to determine the wishes of the employees. 4. THE APPROPRIATE UNIT. Based upon the foregoing ruling, we find the unit appropriate for bargaining purposes to be as follows: All uniformed and investigatory employees, excluding the Chief and Deputy Chief, in the Police Department, employed by the Town of Windsor, who were on the payroll on August 19, 1965, the date of the filing of the instant petition and who are on the payroll on the date of the election to be conducted under the supervision of the board, who shall by secret ballot determine whether or not they wish to be represented by the Petitioner. CONCLUSIONS OF LAW Upon the basis of the foregoing Findings of Fact and upon the entire record of the proceedings, the Board finds and concludes as a matter of law: 1. The Town of Windsor (Police Department) is a municipal employer within the meaning of Section 1 (1) of the Act; 2. The Windsor Police Department Employees Association, Inc., is a lawful organization within the meaning of Section 1 (3) of the Act. 3. The unit described in Paragraph 4 of the above Findings of Fact constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 5 (3) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the Connecticut State Board of Labor Relations by Section 5 (1) of the Municipal Employee Relations Act (Public Act #159) it is D I RE C T E D that, as part of the determination by the Board to ascertain the exclusive representative for collective bargaining with the Municipal Employer, an election by secret ballot shall be conducted under the supervision of the Agent of the Board within fifteen days of the date hereof at Windsor, Connecticut, among the following employees: All uniformed and investigatory employees, excluding the Chief and Deputy Chief in the Police Department employed by the Town of Windsor who were on the payroll on August 19, 1965, the date of the filing of the instant petition and who are on the payroll on the date of the election to be conducted under the supervision of the board to determine whether or not they wish to be represented by The Windsor Police Department Employees Association, Inc.

4 CONNECTICUT STATE BOARD OF LABOR RELATIONS BY: TO: Robert B. Weiss, Town Manager Town of Windsor Windsor, Connecticut Certified (RRR) Norman Bernstein, Esq. 62 Bloomfield Avenue Windsor, Connecticut Julian P. Darman, Chief of Police Town of Windsor Windsor, Connecticut Windsor Police Department Employees Association, Inc. 18 Greenfield Street Certified Windsor, Connecticut (RRR) Thaddeus Maliszewski, Esq. 19 Wells Street Hartford, Connecticut

5 Ic,\~, ~~.. ~. it, I FEBRUARY, Conn 530 Windsor v. Windsor Police Depart~ent Employees Assn., Inc., statement than that which he himself gave. Also, there was no doubt here that the jury were clearly instructed that the statement was inadmissible,' and was not to be considered, against Hunt. ",Ve are satisfied that there was no error in either of the two respects claimed and also that Hunt was well and effectively represented and was given a fair trial in the full sense of the word. Although here the joint confrontation of the complainant and the united front which both accused presented against her proved unavailing to overcome the strength of the state's case, it gave, as we l1uye pointed out, the only real hope of acquittal open to either Doten or Hunt. The public defender took the best possible course to serve the interests of each accused, not only when they are considered together, but also when each is considered separately. Hunt's other claims require no discussion. There is no error. In this opinion the other judges concurred. TOWN OF WINDSOR v. WINDSOR POLICE DEPARTMENT EMPLOYEES ASSOCIATION, INC. KING, C. J., ALCORN, HOUSE, THIM and RYAN, Js. Unless an appeal from an administrative agency is authorized by statute, courts have no jurisdiction to entertain such an appeal. The defendant association petitioned the state labor relations board, under the provisions of a 1965 act ( 7-471), to investigate an alleged controversy with the plaintiff as to whether the deputy chi!'f and the lieutenant of the Windsor police department should be ineluded in a collective bargaining unit and to certify the name of the representative of the unit as designated or selected by the employeps. No request was made to include the chief of police in the unit. After a. h!'aring, the board found that a controw'ray over representation existed, and it Conn 530 FEBRUARY, Windsor v. Windsor Police Department Employees Assn., Inc. determined that the collective bargaining unit would include all uniformed and investigatory employees of the plaintiff, excluding the chief of police and- the deputy chief, and that a secret election should be conducted c among the employe!'s withiu the unit to determine- their exclusive repr!'s!'ntative. The board's action,vas authorized by a provision ( 7-471) of the Municipal Employee Relations Act.' The only provision in Jhe act for appellate review i~ a section incorporating by reference the statute ( [d]) whieh entitles an aggrieved person to appe~l from a final order of the board adjudicating an alleged unfair labor practice prohibited by statute ( 7-740). The act was patterned after th~ National LabOr Relations Act of 1935, which has been construed -by the federal courts not to allow, in the ordinary case, au immediate direct appeal from a certification decision of the national board. The plaintiff alleged in its petition, drawn in the manner of an appeal, that it is aggrieved by the board's decision, and it claimed that tho position' of lieutenant should be excluded from the bargaining unit and that additional evidence should be permitted on this subject. Held: 1. The omission in the act of an appeal provision from certification proceedings must have been intentional when the act is considered in connection with the provisions of the older and related federal act aud its construction by the federal courts that the omission was an intentional effort by Congress to postpone the delay necessary to judicial intervention until a representation election was held and the employer was required to do something predicated on the results of the election. 2. Since a town, as a creature of the state, cannot challeuge the legality of legislation enacted by its creator and since due process is not infringed by the withholding from the courts a jurisdiction which they never possessed, the plaintiff's claim of unconstitutionality has no merit. 3. As the plaintiff's appeal was not from a final appealable order of the board, the court was justifipd in granting the board's motion to erase for want of jurisdiction. Argued January 5-decided February 21, 1967 Petition to review the decision of the state board of labor relations to include the lieutenant of the Windsor police department as a member of the defendant association bargaining unit, broug~t to the Superior Court in Hartford County, where a motion to erase was granted and judgment was

6 532 FEBRUARY, Conn 530 Windsor v. Windsor Police Department Employees A1'sn., Inc. rendered, Parskey, J., erasihg~t11e case from the docket, from which the plaintiff appealed to this court. No error. Norman J. Bernstein, with whom was Warren P. Johnso1l, for the appellant (plaintiff). Alphonse C. Jachimczyk, assistant attorney general, with whom, on the brief, was Harold M. Mu,lvey, attorney general, for the appellee (defendant)., HOUSE,.T. This is an appeal from a judgment of the Superior Court erasing from its docket for lack of jurisdiction an appeal by the town of 'Windsor from a decision of the Connecticut state labor relations board, hereinafter referred to as the board. The 'Windsor Police Department Employees Association, Inc., hereinafter referred to as the association, in August, 1965, petitioned the board, pursuant to 5 of the Municipal Employee Relations Act (Public Acts, Spec. Sess., Feb., 1965, No [General Statutes 7-471]), to investigate an alleged controve.r:sy over representation of the employees of the Windsor police department and to certify the name of the representative designated or selected by the employees. The controversy centered on conflicting claims as to whether the deputy chief and the lieutenant in the police department should be included in the bargaining unit. After a hearing, the board (1) found that a controversy over representation did exist, (2) determined that a unit appropriate for collective bargaining purposes would include all uniformed and investigatory employees, excluding the chief and deputy chief, ann (3) directed that to determine the exclu- I, Conn 530 FEBRUARY, Windsor v. Windsor Police Department Employees Assn., Inc. sive representative for collective bargaining a secret election should be conducted among the employees within that unit. The town of Windsor filed a petition in the Superior Court, reciting the ruling of the board and claiming that it was aggrieved by the decision. By way of "relief in accordance with the applicable Connecticut General Statutes' covering such Appeals," the town prayed "that the position of Lieutenant be excluded from the.,bargaining unit n and "that additional evidence be permitted on the question of the exclusion of the Lieutenant from the bargaining unit including evidence as to the desire of the present Lieutenant concerning this." The board, appearing specially, moved that the cause be erased for want of jurisdiction because the board's certification of the appropriate bargaining unit was not a final order from which an appeal' may be taken. The motion was granted, judgment was rendered erasing the "action" from the docket, and the town of Windsor has appealed, assigning as error the granting of the motion to erase. We find no error in the judgment as rendered. The Connecticut Municipal Employee Relations Act (General Statutes ) provides in subdivisions (1), (2) and (3) of General Statutes the procedure and method by which the board is authorized to determine an appropriate bargaining unit and an exclusive bargaining representative of municipal employees. It was pursuant to this statutory authority that the board acted in the present case. In subdivision (1), the board is empowered "[i]f, after hearing, the board finds that there is a controversy concerning the representation of employees,... to determine whether and by which employee organization the employees

7 534 FEBRUARY, Conn 530 Windsor v. "'indsor Police Departm.ent. Employees Assn., Inc.,, desir.e to be represented". "Employee" is defined in to mean "any employee of a municipal employer,... except... persons in such supervisory and other positions as may be excluded from coverage under sections to 7-477, inclusive, in accordance with subdivision (2) of section " Subdivision (2) of delegates to the board "the power to determine whether a supervisory or other position is covered by... [this act] in the event of a dispute between the municipal employer and an employee -organization" and then establishes certain criteria which "shall not necessarily apply to police and fire departments." Subdivision (3) of delegates to the board the power to "decide in each case... the unit appropriate for purposes of collective bargaining". Thus, where, as in this instance, a controver~ over representation of municipal employees is properly before the board, it is authorized to determine what employees comprise an appropriate bargaining unit, and the choice of that unit's representative for the purposes of collective bargaining with the employer. Even if we assume, without deciding, that (a), in including the police lieutenant in the bargaining unit, the board erred and included a supervisory position within a municipal employee bargaining unit, and (b) the municipal employer can be aggrieved by such a decision before there is any requirement that it bargain with the representative of such a unit, the question still remains whether the Superior Court had jurisdiction over a direct appeal from the board's decision to make such an inclusion. Unless an appeal from an administrative agency is authorized by statute, courts do not have jurisdiction to entertain such an appeal. Carilli v. Hnrtford, 151 Conn. 703, 704, 197 A.2d 68; Beard ' 154 Conn 530 FEBRUARY, Windsor v. Windsor Police' Department Employees Assn., Inc. Sand cf Gravel Co. v. Planning cf Zoning Commission, 151 Conn. 635, 636, 201 A.2d 464; Bartlett v. Rockville, 150 Conn. 428, 430, 190 A.2d 690. The only provision for appeal contained in the Municipal Employee Relations Act is found in a subdivision of concerning prohibited labor practices. Subdivision (4) (D) of this section provides: "For the purposes of hearings and enforcement of orders under sections to 7-477, inclusive, the board shall have the same power and authority as it has in sections , and [of the General Statutes], and the municipal employer and the employee organization shall have the right of appeal as provided therein." The three sections referred to are sections of the Labor Relations Act in chapter 561 of the General Statutes. Section (d) is the only section referred to which deals with appeals. It provides: "Any person aggrieved by a final order of the board granting or denying in whole or in part the relief sought may obtain a review of such order in the superior court for the county in which the unfair labor practice was alleged to have occurred". Accordingly, there is statutory provision for an appeal from an order of the board only when that order is a final order of the board and when an unfair labor practice is alleged to have occurred. Neither of these conditions precedent to an appeal exists in the present case, where the only action of the board has been to decide what constitutes an appropriate bargaining unit and to direct an election among the members of that unit. The board clearly has not yet had occasion to consider any practice prohibited to municipal employers and employee organizations under the provisions of of the General Statutps and" [t]he test of finality is whether the rights ;";',

8 536 FEBRUARY, Conn 530 I ~ I 154 Conn 530 FEBRUARY, ,.,~..."...:-,-:"", ~ Windsor v. 'Vindsor Police DepRrtmeJilt Employees Assn., Inc. of the parties are concluded so ih~t further proceedings cannot affect them. State v. Fahey, 146 Conn. 55,57, 147 A.2d 476; Watson v. Howard, 138 Conn. 464, 467, 86 A.2d 67; Northeastern Gas Transmission Co. v. Bntsh, 138 Conn. 370, 372, 84 A.2d 681; 30A Am. Jur., Judgments, 121." New Haven Redevelopment Agency v. Research Associates, Inc., 153 Conn. 118, 120, 214 A.2d Our conclusion that the General Assembly neither intended to nor did provide for a direct appeal from a decision of the board determining an appropriate bargaining unit and directing an election within that unit is strengthened by an examination of the legislative history of the Municipal Employee Relations Act with reference to the history and interpretation of the National Labor Relations Act of Stat. 449, as amended, 29 U.S.C (1964). The Connecticut Municipal Employee Relations Act, like the Connecticut Labor Relations Act originally enacted in 1945, is closely patterned after the National Labor Relations Act, as amended, which a comparison of the two acts clearly demonstrates. "For this reason, the judicial interpretation frequently accorded the federal act is of great assistance and persuasive force in the interpretation of our own act. See Arnold College v. Danaher, 131 Conn. 503,507, 41 A.2d 89." Imperial Laundry, Inc. v. Connecticut State Board of Labor Relations, 142 Conn. 457, 460, 115 A.2d 439. The Connecticut act adopts, where feasible, the same provisions and procedures as the federal act and, in most instances, in precisely the same language. In particular, subdivisions (1), (2) and (3) of General Statutes 7-471, which provide the procedure and method by which the board is authorized to determine the appropriate bargaining unit and the exclusive bar- f Windsor v. Windsor Police Department Employees Assn., Inc. gaining representative in the event of a dispute, is in part a word-for-word adaptation of 9 of the National Labor Relations Act, as amended. 49 Stat , as amended, 29 U.S.C. 159 (1964). Neither (1), (2) or (3) of the Connecticut act nor 9 of the federal act makes express provision for judicial review. Section 8 of the federal act (29 U.S.C. 158 [1964]) and of the Connecticut act define what practices are prohibited to employers. and to employee organizations. S~ction 10 of the federal act (29 U.S.C. 160 [1964]) 'and subdivision, (4) of General Statutes specify what orders the federal board and the state board, respectively, may issue to remedy a prohibited laoor practice committed by either an employer or an employee organization. Subdivision (4) (D) of General Statutes and 10 (f) of the National Labor Relations Act, as amended (29 U.S.C. 160 [f] [1964]), both provide for an appeal from a final order of the respective labor relations boards. The federal act has been interpreted as not according either an immediate direct appeal from, or any other method of immediate judicial review. of, a certification decision by the national labor relations board. Boire v. Greyhound Corporation, 376 U.S. 473, 84 S. Ct. 894, 11 L. Ed. 2d 849; Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 61 S. Ct. 908, 85 L. Ed. 1251; National Labor Relations Board v. Falk Oorporation, 308 U.S. 453, 60 S. Ct. 307, 84 L. Ed. 396; National Labor Relations Board v. International Brotherhood of Electrical Workers, 308 U.S. 413,60 S. Ct. 306, 84 L. Ed. 354; American Federation of Labor v. National Labor Relations Board. 308 U.S. 401, 60 S. Ct. 300, 84 L. Ed Under extraordinary circumstances, methods of immediate judicial '?y;... :-.

9 FEBRUARY, Conn 530 Windsor v. Windsor Police Depart~e~t Employees Assn., Inc.., review, other than by way ar direct appeal, have been recognized. The extraordinary circumstances so far recognized as sufficient for immediate-judicial review have been instances where the national labor relations board has acted in excess of its delegated powers, contrary to a specific statutory prohibition and where there have been public questions of international complexion. McCulloch v. Socieded Nacional de Marineros de Hond,ltras, 372 U.S. 10, 83 S. Ct. 671, 9 L. Ed. 2d 547; Leedom v. Kyne, 358 U.S. 184, 79, S. CL180, 3 L. Ed. 2d 210. "The Kyne exception is a narrow one, not to be extended to permit plenary district court review of Board orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the Board has led it to a conclusion which does not comport with the law." Boire v. Greyhound Corporation, supra, 481. The omission in the federal act of a provision for direct appeal from certification proceedings has been held to be an intentional effort by Congress to postpone the delay necessary to judicial intervention in the administrative process until a representation election has been held and the employer has been required to do something predicated on the results of the election. Boire v. Greyhound Corporation, supra. Since it was well established by the time the Boire case was decided in 1964 that the federal act precluded not only direct appeals but all immediate judicial review of certification proceedings, t11e General Assembly in 1965 could hardly have omitted provision for direct appeal from such proceedings and at the same time have intended to grant such a right in an act which it so closely structured and worded after the federal act. ( { - } J, ~ i~ 'i t I' 154 Conn 530 FEBRUARY, Windsor v. 'Vindsor Police Department Employees At'sn., Inc. 1Ye find no merit in the plaintiff's claim that in the absence of a provision for appeal from the board's decision as to the composition of an appropriate bargaining unit and a direction for an election of a bargaining representative by that unit, the act is "1,ltnconstitutional in that it deprives a municipality of due process of law." "Towns... are creatures of the state, and though they may question the interpretation, they aannot challenge the legality, of legislation enacted py their creator. New Haven v. New Haven TVater Co., 132 Conn. 496, 513, 45 A.2d 831; Sanger v. Bridgeport, 124 Conn. 183, 188, 198 A. 746." Waterford v. Connecticut State Board of Education, 148 Conn. 238, 245, 169 A.2d 891. This disability aside, the claim is tantamount to arguing that the General Assembly "has infringed due process by withholding from... courts a jurisdiction which they never possessed" and is without force. American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 412, 60 S. Ct. 300, 84 L. Ed Our conclusion does not indicate that the act fails to provide adequate safeguards against any illegal or arbitrary action by the board. -When the board has issued a final order against a municipality predicated on a prior determination of an appropriate bargaining unit and an unfair labor practice, the Superior Court has clear jurisdiction to review the board's decision if the municipality is aggrieved and then appeals or if the board petitions for enforcement of its order. See Connecticut State Board of Labor Relations v; Greenwich Taxi Co., 151 Conn. 573, 200 A.2d 712. There is no error. In this opinion the other judges concurred.,:.~,".l<-. r.t>. ::1..