STATE OF CONNECTICUT LABOR DEPARTMENT CONNECTICUT STATE BOARD OF LABOR RELATIONS

Transcription

1 STATE OF CONNECTICUT LABOR DEPARTMENT CONNECTICUT STATE BOARD OF LABOR RELATIONS IN THE MATTER OF STATE OF CONNECTICUT, DEPARTMENT OF DEVELOPMENTAL SERVICES AND CSEA, SEIU, LOCAL 2001 (P3-B UNIT) -AND- CHRISTOPHER P. WALSH DECISION NO A JULY 21, 2011 Case No. SPP-27,675 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 Christopher P. Walsh Pro Se DECISION AND DISMISSAL OF COMPLAINT On January 14, 2009 Christopher Walsh (the Complainant) filed a complaint (Case No. SPP-27,675), amended on April 9, 2009, with the Connecticut State Board of Labor Relations (the Labor Board) alleging that the State of Connecticut Department of Developmental Services (DDS or the State) had violated the State Employee Relations Act (SERA or the Act) by violating the applicable collective bargaining agreement and that CSEA, SEUI, Local 2001 (P3- B Unit) (the Union) had violated the Act by breaching its duty of fair representation. On May 5, 2009 the Complainant filed with the Labor Board a Petition for Declaratory Ruling (Case No. SDR-27,890) seeking a ruling concerning Executive Order No. 16, issued on August 4, 1999 by then Connecticut Governor John G. Rowland, concerning the State s Violence in the Workplace Prevention Policy. On July 2, 2009 the Labor Board granted the Union s Motion to Dismiss the Petition because it did not conform to the legal requirements for a declaratory ruling, State of Connecticut Department of Developmental Services, Decision No (2009).

2 On July 14, 2009 the Complainant filed with the Labor Board another Petition for Declaratory Ruling (Case No. SDR-27,998) this time seeking a ruling that the Union violated the Act by: 1) discriminating against him and his co-workers; 2) violating its duty of fair representation; 3) restraining and coercing employees in the exercise of their rights under the Act; and 4) refusing to bargain in good faith, and that the State violated the Act by discriminating against him for filing a complaint and refusing to bargain in good faith. On November 12, 2009 the Labor Board granted the State s Motion to Dismiss because the Petition did not conform to the legal requirements for a declaratory ruling. State of Connecticut, Department of Developmental Services, Decision No (2009). On August 5, 2009 the Complainant filed with the Labor Board another Petition for Declaratory Ruling (Case No. SDR-28,069) alleging that the State had violated 5-272(b)(1) in that the behavior and preparation of [witnesses testifying in Case Nos. SPP-27,675 and SDR- 27,998] by parties related to either CSEA P-3B or the State are of very questionable ethical conduct. On September 17, 2009, the Labor Board declined to issue a declaratory ruling finding that Complainant was improperly attempting to dispute witness credibility in the instant case through the declaratory ruling procedure.. State of Connecticut, Department of Developmental Services, Decision No (2009). As to the instant case, after the requisite preliminary steps had been taken, the matter came before the Labor Board for a hearing on January 19, 2009, July 2, 2009, July 27, 2009, October 1, 2009, October 14, 2009, November 29, 2009, November 30, 2009, January 4, 2010 and January 21, All parties appeared, were represented and allowed to present evidence, examine and cross-examine witness, and make argument. All parties filed post-hearing briefs, the last of which was received on April 9, Based on the entire record before us, we make the following findings of fact and conclusions of law and we dismiss the complaint. FINDINGS OF FACT 1. The State is an employer pursuant to the Act. 2. The Union is an employee organization pursuant to the Act and at all material times has been the certified bargaining representative for the Institution Educators (P-3B) bargaining unit of state employees. 3. At all relevant times the Complainant was employed by the (DDS), formerly the Department of Mental Retardation, at the John N. Dempsey Center (Dempsey) in Putnam as an Adult Instructor (DSASI), and was a member of the Union and the P-3B bargaining unit. 4. At all relevant times the position of DSASI, formerly MRASI, at Dempsey involved care and instruction of mentally disabled adults. 5. The Union and the State are parties to a collective bargaining agreement with effective dates of July 1, 2005 through June 30, 2009 (Ex. 57) that contains the following relevant provisions:... ARTICLE 5 MANAGEMENT RIGHTS 2

3 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, establishing standards of productivity and performance of its employees: ARTICLE 6 EMPLOYEE BILL OF RIGHTS Section One. Each employee shall be protected in the full exercise of the rights of freedom of speech, assembly, due process, and equal protection under the provisions of this Agreement and the U.S. Constitution. Additionally, each employee shall be protected under the provisions of Section 4-61d of the Connecticut General Statutes. (Whistle Blowing Statute). Section Two. Each employee shall be expected to render a full and fair day s work in an atmosphere of mutual respect and dignity, and free from significant abusive and/or arbitrary conduct by supervisors.... ARTICLE 16 GRIEVANCE PROCEDURE Section One. Definition. A grievance is defined as any written complaint involving an alleged violation or a dispute involving the application or interpretation of a specific provision(s) of this Agreement. Section Two. Format. Grievances shall be filed on mutually agreed upon forms which specify: (a) the facts; (b) the issue; (c) the date of the violation alleged and the location of the affected employees(s); (d) the controlling contract provision; and (e) the remedy or relief sought. The Union representative or steward shall make his/her best effort to clearly and completely fill out the grievance form and to include the specified information. In the event a form filed is unclear or incomplete and not in compliance with this Section, the State employer shall make his/her best efforts to handle the grievance as he/she understands it.... Section Three. Grievant. A Union representative, with or without the aggrieved employee, may submit a grievance, and the Union may, in appropriate cases, submit an institutional or general grievance in its own behalf. When individual employee(s) or group of employees elect(s) to submit a grievance on their own behalf without Union representation, the Union s representative or steward shall be notified of the pending grievance, shall be provided with a copy thereof, and shall have the right to be present at any discussions of the grievance, except that if the employee does not wish to have the steward present, the steward shall not attend the meeting.... 3

4 Section Five. A grievance shall be deemed waived unless submitted at Step I within thirty (30) days from the date of the cause of the grievance or within thirty (30) days from the date the grievant or the Union representative or steward knew or through reasonable diligence should have known of the cause of the grievance. This provision shall not preclude a grievant from having the right to pursue and obtain remedy for any continuing or ongoing violation. Section Six. The Grievance Procedure. Step I. A grievance may be submitted within the thirty (30) day period specified in Section Five to the subagency designee who is outside the bargaining unit.... Step II. Agency Head or Designee. When the answer at Step I does not resolve the grievance, the grievance shall be submitted by the Union representative and/or the grievant to the agency head or his/her designee within seven (7) days of the previous response.... Section Eight. In the event that the State employer fails to answer a grievance within the time specified, the grievance may be processed to the next higher level and the same time limits therefore shall apply as if the State employer s answer had been timely filed on that last day. The grievant accepts the last attempted resolution by failing timely to appeal said decision, or by accepting said decision in writing.... ARTICLE 18 HOURS OF WORK. Section One. (a) Standard Work Week. The standard work week for full-time employees shall be seven (7) hours per day,... Section Four. Meal Periods. Meal Periods shall be scheduled close to the middle of a shift, consistent with the operating needs of the agency. Employees required to be on duty during their meal period shall have such time counted as work time. Employees may make a request to reschedule their meal period to any other time of the day provided that it does not conflict with facility operating needs Tracie Casparino (Casparino) held the position of Day Program Supervisor at Dempsey from June, 2006 to March, 2008 and served as the immediate supervisor of nine to ten persons including Complainant. 7. Janet Wagner (Wagner) held the position of Regional Program Manager for adult day service programs in the Putnam area, including those at Dempsey, from June 2003 to November 4

5 2008. Wagner supervised Casparino and reported to Steven Robson (Robson), Assistant Regional Director for Public Programs. 8. Patrice Peterson (Peterson) was a State School Teacher for DDS with over thirty years of service and was a Union steward responsible for bargaining unit members at Dempsey during the events at issue and had thirty years experience serving in such capacity. 9. Robert Adriani (Adriani) was the Union president at all times relevant hereto. 10. By memo dated September 24, 2007 Casparino issued the following directive to her subordinates, including Complainant: (Ex. 30). IT HAS BEEN REPORTED TO ME, AND I HAVE OBSERVED STAFF EATING LUNCH WHILE THE CLIENTS ARE NOT ENGAGED STAFF HAVE A WORKING LUNCH. THAT MEANS WE EAT WITH THE CLIENTS... IF STAFF ARE TAKING A HALF AN HOUR TO EAT THEIR LUNCH WITHOUT CLIENTS, THEN THEIR WORK SCHEDULE NEEDS TO REFLECT THAT BY WORKING A 7.50 HOUR DAY. 11. Complainant believed that eating lunch with clients having communicable diseases could compromise employee health and he discussed this issue with Casparino as well as his coworkers. Casparino told Complainant that employees could use the contractual fifteen minute daily break for a non-working lunch to avoid an extended work day. 12. Complainant did not file a grievance contesting the Casparino s directive of September 24, On or about the end of September, 2007 Complainant and a number of other instructors met with Peterson and voiced their concerns regarding the workplace. 14. The following day Peterson met with Wagner and raised the issue of eating lunch with persons with communicable diseases. Wagner assured Peterson that such was not required and Peterson considered the matter resolved. 15. Complainant was aware of a document entitled Basic MRASI Requirements (Ex. 34) that he believed had been provided by supervisors. Complainant felt that this was a change in working conditions, in part because it appeared to require that the instructor engage with the client a minimum of every five minutes. The Complainant contacted Peterson regarding the document. 16. Peterson was not asked and did not file a grievance regarding the MRASI requirements. 17. By letter dated August 18, 2008 Complainant wrote Adriani regarding the process by which my current grievance and labor/management meetings have been addressed through representative Patrice Peterson. (Ex. 36). Complainant noted that there were difficulties scheduling meetings with management to discuss issues but that he was tentatively scheduled for such a meeting that week. Id. 5

6 18. On August 21, 2008 at Peterson s request, Complainant and Peterson met with the then new Assistant Regional Director, Steve Robson. Complainant provided Robson with a written summary of concerns and incidents that Complainant claimed were characteristic of Casparino s and Wagner s style of managerial professionalism and which initiates and fosters violence in the workplace. (Ex. 38). The meeting lasted approximately three hours and at the conclusion of the meeting Robson stated that he would have the matter investigated. 19. Peterson believed that the claims set forth in Complainant s written summary, if credited, did not establish violations of the collective bargaining agreement. 20. By letter dated August 22, 2008 Complainant wrote Adriani regarding the meeting the previous day with Robson and Peterson. (Ex. 37). Complainant acknowledged that Robson assured him these issues would be looked at carefully and as soon as possible. Id. Complainant noted that he felt confident these issues will be addressed but admitted I don t know how this situation will be handled or mediated. Id. 21. Robson assigned Kevin Martin (Martin) a DDS Regional Manager to investigate the matter and after reviewing existing documents including Complainant s written summary (Ex. 38), Martin issued an extensive report on September 16, (Ex. 66). Martin concluded that Complainant s allegations against his supervisors were unsubstantiated and Martin recommended that his report be referred to Human Resources for possible action against Complainant for creating a hostile work environment as to Casparino and Wagner. Id. 22. After reviewing Martin s report and consulting with Human Resources, Robson decided not to refer Complainant to Human Resources for investigation and possible discipline. 23. By letter dated October 27, 2008, Robson notified Complainant and Peterson that Complainant s claims had been investigated and found to be unsubstantiated. (Ex. 41). By letter dated October 31, 2008 Complainant notified Adriani, that he was dissatisfied with the response to his written summary and that Complainant wanted a Union representative other than Peterson. (Ex. 42). 24. After reading Complainant s written summary and concluding that it did not allege a breach of the collective bargaining agreement, Adriani spoke with Complainant by telephone and informed him of his opinion and that Thomas Welch (Welch) and Joe Stohoviac (Stohoviac) were available as Union representatives. Welch, in Adriani s presence, also informed Complainant by telephone that the Union had concluded that Complainant s written summary did not allege a breach of the collective bargaining agreement. 25. Complainant took no action to file and prosecute a grievance on his own behalf under Article 16 of the collective bargaining agreement after hearing from Robson and Adriani. 26. By dated October 24, 2008, DSASI Philip Miller (Miller) wrote Robson alleging that his signature on his annual performance appraisal had been forged. Robson responded by e- mail on October 27, 2008 requesting a copy of the forged appraisal. Miller sent Robson a copy on October 30, (Ex. 24). 6

7 27. By letter dated October 27, 2008 Complainant wrote Robson claiming that his annual performance appraisal had been improperly altered but that he had no proof of such. Complainant enclosed a petition signed by Complainant and eight co-workers alleging their annual performance appraisals were discriminatory and biased while under the supervision of Casparino and Wagner. (Ex. 43,44). 28. Robson referred the Miller claim to DDS Lead Investigator Kevin McNamara and Robson interviewed a number of employees regarding their complaints about the performance evaluations. McNamara was unable to corroborate Miller s claim that his performance evaluation was forged. As a result of Robson s interviews and McNamara s investigation, new procedures were implemented restricting access to employee records, including employee performance evaluations. Robson took no action as to Complainant s claim that his evaluation had been altered because there was no evidence corroborating Complainant s claim and the evaluation rated Complainant s performance as satisfactory. 29. Complainant took no action under the grievance procedure to contest Robson s actions and/or inactions with respect to his annual performance evaluation. 30. On January 14, 2009 Complainant filed a complaint with the Labor Board alleging that the State violated Executive Order No. 16 (Policy on Violence in the Workplace) and that the Union breached its duty of fair representation. (Ex. 1). 31. On March 19 and 20, 2009, twelve Union members led by Complainant signed a petition directed to Adriani stating that as to many issues, union support and intervention simply did not exist. (Ex. 22). The petition noted conflicting P-3B representation issues regarding supervision and direct care personnel and that the employee-union relationship is still somewhat stressed rather than supportive. Id. The petition concluded by opining that some major damage control [is] necessary to at least appear as though P-3B is responsive to their members and contractual obligations. Id. 32. On April 29, 2009 Complainant amended his complaint to the Labor Board to allege that the State and the Union violated Executive Order No. 16 (Violence in the Workplace), that the State violated the contractual prohibition against denial of due process/equal protection and against abusive/arbitrary supervision conduct, and that the Union violated its duty of fair representation by failing to process Complainant s workplace violence grievance. (Ex. 2). 33. On August 4, 1999 Executive Order No. 16 issued by then Governor John Rowland stating in relevant part: No employee shall bring into any state worksite any weapon or dangerous instrument as defined herein. No employee shall use, attempt to use, or threaten to use any such weapon or dangerous instrument in a state worksite. No employee shall cause or threaten to cause death or physical injury to any individual in a state worksite. (Ex. 55). Executive Order No. 16 requires the following of employees aware of violations: 7

8 That any employee who feels subjected to or witnesses violent, threatening, harassing, or intimidating behavior in the workplace immediately report the incident or statement to their supervisor, manager, or human resources office. That any employee who believes that there is a serious threat to their safety or the safety of others that requires immediate attention notify proper law enforcement authorities and his or her manager or supervisor. Id. 34. The collective bargaining agreement is silent as to Executive Order No. 16 and/or workplace violence. 35. Casparino was reassigned to another worksite in March of 2008 and Wagner was reassigned in December of 2008 after a lengthy medical leave. 36. Complainant had access to Union representatives at all time relevant hereto including three hours of cell phone conversations with Adriani, interactions with Peterson prior to August 21, 2008, and access to Adriani and staff representatives other than Peterson thereafter. CONCLUSIONS OF LAW 1. The State did not violate the Act as to Complainant including when it declined further action after investigating Complainant s allegations. 2. The Union did not violate its duty of fair representation as to Complainant including when it declined to prosecute grievances under the collectively bargained grievance procedure on the basis of Complainant s allegations. DISCUSSION This case arises from a series of conflicts between Complainant and two supervisors over one and one-half years that Complainant contends created a hostile work environment 1 in violation of an Executive Order prohibiting workplace violence as well as a prohibition of abusive/arbitrary supervisor conduct in the collective bargaining agreement. Complainant also contends that the Union breached its duty of fair representation by failing to act to remedy the situation. The State contends that the Board has no independent jurisdiction over disputes concerning executive orders, that the Board has no jurisdiction over simple contract disputes, that Complainant as an individual is without standing to prosecute a repudiation claim, and that Complainant, in any event, has failed to establish a contractual violation. We agree that Complainant has failed to establish a contractual violation. We also agree that Complainant has failed to establish a violation of the Act by the State. 1 The phrase hostile work environment ordinarily refers to circumstances which violate state and federal prohibitions against certain forms of discrimination. See, National R.R. Passenger Corp. v. Morgan, 510 U.S. 17, 21 (1993); State v. SEIC Local 2001, 287 Conn. 258, (2008). Complainant does not claim membership in a protected class (e.g., race, gender, age, disability, etc.) under Title VII or Conn. Gen. Stat. 46a 60. As such, we conclude that Complainant s use of the phrase is anomalous. 8

9 We have already ruled in this case that we do not have jurisdiction to adjudicate alleged violations of gubernatorial executive orders. See, State of Connecticut, Dept. of Developmental Services, Decision No (2009). As such, Complainant s case against the State wholly depends on the issue of whether there exist violations of the collective bargaining agreement such that the proscriptions of the Act are in issue. The State correctly notes that we are not charged with resolving simple disputes over the interpretation and application of collective bargaining agreements. City of Bridgeport, Decision No (2009); NEHCEU, District 1199, Decision No (2009). Complainant s case against the State then is limited to a claim that the State somehow repudiated the collective bargaining agreement. The State argues that since the repudiation doctrine is grounded in good faith compliance with the terms of an existing collective bargaining agreement and since the State cannot bargain directly with individuals, then the State cannot repudiate the agreement as to Complainant. We need not address this claim, however, because we find that no repudiation occurred given the record before us. The contract language Complainant relies upon is contained in Article 6 and protects employees in the full exercise of the rights of... due process and the ability to work... free from significant abusive and/or arbitrary conduct by supervisors. The record before us reflects Complainant s disagreement with actions by former supervisors Casparino and Wagner on numerous issues including dining with school clients, frequency of client contact, and ratings in employee evaluations. Complainant readily voiced his concerns both to his coworkers and to management representatives and his claims were investigated and in certain instances corrective action was afforded. In no instance was Complainant disciplined or instructed to refrain from voicing concerns in the future. Although Complainant took no steps to formally contest State actions through the grievance-arbitration procedure without Union assistance, we note that he had the right to do so. Repudiation of a collective bargaining agreement is something beyond mere breach. Town of Plainville, Decision No (1979). The Labor Board has found that repudiation of a collective bargaining agreement may occur in three circumstances: 1) where the respondent has taken an action based upon an interpretation of the contract and that interpretation is asserted in subjective bad faith by the respondent; 2) where the respondent has taken an action based upon an interpretation of the contract and that interpretation is wholly frivolous or implausible; and 3) does not involve an interpretation of the contract by the respondent nor does the respondent challenge the complainant s interpretation of the contract, but rather it seeks to defend its action on some collateral ground which does not rely on an interpretation of the contract, e.g., financial hardship or administrative difficulties. Hartford Board of Education, supra. See also New Haven Board of Education, Decision No (1996); Norwich Board of Education, Decision No (1986). City of Bridgeport, Decision No. 4478, pp (2010). The State denies that Complainant was subjected to abusive/arbitrary conduct by Casparino or Wagner in violation of Article 6 (Employee Bill of Rights) and claims that Complainant was afforded all the process he was due. Based on the evidence before us we find that this good faith interpretation of the collective bargaining agreement is plausible and as such we do not find repudiation by the State. 9

10 Turning to the Complainant s case against the Union we note that our standard for the duty of fair representation is based on the United States Supreme Court s reasoning in Vaca v. Sipes, 386 U.S. 411 (1967), that a union s status as exclusive employee representative imposes a statutory obligation to secure the interests of all the members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Id. at 177. In affirming this basic principle we have long required evidence that a union s conduct towards a bargaining unit member is motivated by hostility, bad faith, or dishonesty in order to establish a violation of the duty. NEHCEU, District 1199 (Joe Rosa), Decision No (2010); Local 1565, Council 4, AFSCME (David Bishop), Decision No. 3510(1997); City of Bridgeport (Kenneth Brown), Decision No 1963(1980). A union does not breach its duty of fair representation simply by taking a position that adversely impacts a member of the bargaining unit. This includes an exercise of a union s discretion as to whether and how far to purse a grievance, provided the decision is made in good faith and without discrimination. Local 269, Council 4, AFSCME (Vera O Brien), Decision No (2010); NEHCEU, District 1199 (Joe Rosa), supra; Town of Greenwich (June Davila), Decision No (2008); Teamsters, Local 677 (Ida Singer), Decision No (1973). The Supreme Court states with respect to a union s duty in grievance processing: Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. Vaca v. Sipes, supra, 386 U.S. at 191. The evidence does not support a conclusion that the Union cavalierly ignored Complainant s demands to file grievances of substance. Both Peterson and Adriani credibly testified that they did not feel that Complainant s allegations, if credited, amounted to violations of the collective bargaining agreement. While that communication between Complainant and Peterson waned over time, contact with Adriani was ongoing and Adriani clearly informed Complainant that the Union would not be contesting the outcome of Martin s investigation or Robson s decision to refrain from further action. In crediting the Union s claim that it elected to forgo Complainant s grievances as being without merit we are mindful that Grievant s initial claim to the Labor Board was wholly based on his violence in the workplace theory under Executive Order No. 16. It was only after the Labor Board s Agent s recommendation for dismissal and Respondent s motions for dismissal that Complainant amended his complaint to allege a violation of a specific provision of the collective bargaining agreement. Presumably, he failed to make this claim to the Union at the time he wanted a grievance pursued. In this case, the Complainant has failed to provide any evidence of improper motive or conduct on the part of the Union. Rather, it is clear from the totality of the evidence before us that the Union in this matter acted in good faith and without hostility, arbitrariness, or discrimination toward the Complainant. Based on the foregoing, we conclude there is no violation of the Act and accordingly we dismiss the complaint. 10

11 ORDER By virtue of and 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. CONNECTICUT STATE BOARD OF LABOR RELATIONS John W. Moore, Jr. John W. Moore, Jr. Chairman Patricia V. Low Patricia V. Low Board Member Wendella Ault Battey Wendella Ault Battey Board Member 11

12 CERTIFICATION I hereby certify that a copy of the foregoing was mailed postage prepaid this 21 st day of July, 2011 to the following: Christopher P. Walsh 59 Nauset Avenue RRR Danielson, CT Attorney Ellen M. Carter OPM-OLR 450 Capitol Avenue, MS53OLR Hartford, CT Attorney Robert J. Krzys P.O. Box 207 New Hartford, CT RRR RRR Linda Yelmini, Director of Labor Relations OPM-OLR 450 Capitol Avenue, MS53OLR Hartford, CT Harry B. Elliott, Jr., General Counsel CONNECTICUT STATE BOARD OF LABOR RELATIONS 12