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 TOWN OF EAST HARTFORD -AND- EAST HARTFORD POLICE OFFICERS ASSOCIATION DECISION NO JULY 14, 2016 Case No. MPP-31,294 A P P E A R A N C E S: Attorney Peter A. Janus for the Town Attorney Stephen F. McEleney for the Union DECISION AND ORDER On December 19, 2014 the East Hartford Police Officers Association (the Union) filed a complaint with the Connecticut State Board of Labor Relations (the Labor Board), amended on February 1, 2015, alleging that the Town of East Hartford (the Town) had committed practices prohibited by the Municipal Employee Relations Act (MERA or the Act) by failing to comply with an arbitration award, repudiating the collective bargaining agreement, and by otherwise administering the disciplinary process in bad faith. After the requisite preliminary administrative steps had been taken the matter came before the Labor Board for a hearing on September 25, Both parties appeared, were represented by counsel, allowed to present evidence, examine and cross-examine witnesses, and make argument. Both parties submitted post-hearing briefs which were received on October 30, On the basis of the entire record before us, we make the following findings of fact and conclusions of law and we issue the following order.

2 FINDINGS OF FACT 1. The Town 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 relevant times has represented a bargaining unit consisting of all full-time permanent investigatory and uniformed members of the Town s police department with the authority to exercise police powers exclusive of the Chief, Deputy Chief, and Division Commanders. 3. The Union and the Town are parties to a collective bargaining agreement (Ex. 6) with effective dates of July 1, 2012 through June 30, 2016 that provides, in relevant part: SECTION 1 ARTICLE XXIII GRIEVANCE PROCEDURE In order to insure fair and equitable treatment of all employees there is hereby established a formal procedure to permit resolution of all grievances. a) Definition of a grievance shall be as follows: 1. Discharge or other disciplinary action. SECTION 6 3. Interpretation and application of the rules and regulations and policies of the Police Department. 4. Matters relating to the interpretation and application of this Agreement. STEP 3 Either party may request the State Board of Mediation and Arbitration to provide arbitration services [if a grievance is not resolved at the previous steps] a) The decision of the arbitrator shall be binding on both parties. ARTICLE XXIV Discipline, Discharge and Police Rights 2

3 SECTION 6 cause. No employee shall be suspended, discharged or demoted except for just SECTION 8 If an investigation is commenced by Internal Affairs, such investigation shall commence upon conclusion of the preliminary investigation (which shall not take longer than thirty (30 days) and upon the signing of an Internal Affairs complaint by the Chief of Police. Under normal circumstances, the investigation by the Internal Affairs department shall be concluded within ninety (90) calendar days from the signing of the Internal Affairs complaint by the Chief. In extenuating circumstances, an extension of up to sixty (60) calendar days shall be permitted for the completion of the Internal Affairs investigation, with notice to the Union President which notice shall include a statement of such extenuating circumstances. Any such notice of extenuating circumstances shall be kept confidential by the Union President if requested in such notice. 4. At all times relevant hereto, there existed a national database used by law enforcement agencies known as the National Crime Information system (NCIS) and a related database maintained by the State of Connecticut and used by Connecticut law enforcement agencies 1 known as the Connecticut On Line Law Enforcement Teleprocessing (COLLECT) system. COLLECT users must be employed by a criminal justice agency and certified after training in use of the system. Training includes notice of COLLECT s policies which state, in relevant part: SYSTEM SECURITY It is the policy of the COLLECT System that all information obtained via COLLECT is to be used for criminal justice and law enforcement purposes only. Under no circumstances is COLLECT to be used for personal reasons or curiosity... (Ex. 9). 1 Conn. Gen. Stat a states: Each municipal police department shall have access to, and use of, the Connecticut On-Line Law Enforcement Communications Teleprocessing System without charge. 3

4 5. At all times relevant hereto, members of the bargaining unit were subject to a work rule that provides, in relevant part: (Ex. 9). East Hartford Police Department General Order Mobile Data System Administration All CAPTAIN 2 users must be certified for NCIC/COLLECT querying use by the State of Connecticut. All NCIC/COLLECT rules and regulations, including those pertaining to access and disclosure of information, are in full effect when operating a MDT The mobile data system is to be used for official, department-related business only 6. On January 11, 2013, Town police officer Juma Jones (Jones) was arrested by Hartford police and charged with disorderly conduct and criminal trespass on the basis of allegations by a complainant who was concerned that Jones had located her residential address. Shortly after his arrest Jones stated to another Town police officer that he had used his work computer to obtain the complainant s address. (Ex. 9). 7. On January 14, 2013, then Town police chief Mark J. Sirois (Sirois) assigned then Deputy Chief Beau Thurnauer (Thurnauer) to conduct an internal affairs 4 investigation (I.A ) concerning Jones potential violations of COLLECT relating to that conduct which was the subject of Jones arrest on January 11, (Ex. 9). 8. On January 17, 2013, Thurnauer submitted his report in I.A , finding that on December 7, 17, and 23, 2012, Jones had used COLLECT to obtain information about five persons for personal reasons in violation of Town work rules. 5 (Ex. 9) 9. On February 5, 2013, Town police arrested Jones and charged him with committing computer crime in violation of Conn. Gen Stat. 53a by using COLLECT on December 17, 2012 for personal reasons. (Ex. 16). 2 CAPTAIN is the name of the software the Town uses to interface with COLLECT and NCIS. 3 MDT is an acronym for mobile data terminal. 4 The police department s internal affairs section is also referred to as the office of professional standards. 5 On February 4, 2013, Thurnauer issued a supplement to his report in I.A finding that Jones submission of training as the reason for using COLLECT on December 17, 2012 was false in violation of existing work rules. (Ex. 10). 6 Conn. Gen. Stat. 53a 251(b) states, in relevant part: (b) Unauthorized access to a computer system. (1) A person is guilty of the computer crime of unauthorized access to a computer system when, knowing that his is not authorized to do so, he 4

5 10. On February 11, 2013, Sirois ordered a new internal investigation (I.A ) by the police department s office of professional standards to address other potential violations of COLLECT by Jones since the commencement of Jones employment in (Exs. 10, 14, 19). 11. By letter (Ex. 11) to Jones dated February 22, 2013, Sirois stated, in relevant part, NOTICE OF DISCIPLINE 1A 13-03: I have thoroughly reviewed all materials, documents, and reports accumulated during investigation of the internal affairs complaint made against you in O.P.S. case number I.A I also provided you with the opportunity to respond during a pre-disciplinary hearing held on February 21, After careful consideration of the facts, your employment record and statements made during the pre-disciplinary hearing, I am imposing the following discipline for the SUSTAINED charges pursuant to my authority under the Rules and Regulations and Town Charter: DISCHARGE FROM EMPLOYMENT Effective February 22, On March 11, 2013, the Union filed a grievance contending Jones was terminated without just cause. (Ex. 19). 13. Prior to June 14, 2013, Town police conducted a further audit of Jones use of COLLECT during his tenure as a Town employee and found eighteen occasions between March 14, 2011 and August 15, 2012 in which Jones used COLLECT to access information with no apparent law enforcement purpose concerning six other persons. 7 (Ex. 16). 14. On July 9, 2013, Town police arrested Jones and charged him with eighteen counts of computer crime in addition to those relating to Jones arrest on February 5, On or about December 9, 2013, Acting Deputy Chief Kenneth Rosa (Rosa) issued a written report on I.A in which he concluded that Jones had used COLLECT multiple occasions between March 19, 2007 and August 2, 2012 to obtain information with no apparent law enforcement purpose concerning six persons in addition to those identified in I.A (Ex. 14). 16. On January 2, 2014, Scott Sansom (Sansom) succeeded Sirois as Town police chief. 17. On March 20, 2014, an initial arbitration hearing concerning the Union s grievance contesting Jones termination was conducted by a tripartite panel of arbitrators (the accesses or causes to be accessed any computer system without authorization. 7 These persons were in addition to the five persons identified in I.A

6 arbitrators) of the Connecticut State Board of Mediation and Arbitration (CSBMA) in Case No A-0509 and the Town offered a copy of Rosa s December 9, 2013 report in I.A into evidence. At a subsequent hearing on May 5, 2014, the arbitrators accepted the offer and marked Rosa s report as a full exhibit. (Exs. 15A, 15B). 18. After conclusion of the evidentiary phase of the arbitration proceedings, the parties submitted written briefs. The Town argued in its brief that the arbitrators should include in their assessment of just cause for Jones termination the additional violations of COLLECT addressed in Rosa s December 9, 2013 report in I.A because the violations occurred prior to February, 2013 and involved the same offenses which prompted the termination. (Ex. 17). 19. On November 10, 2014 the arbitrators 8 issued an award (Ex. 19) that states, in relevant part: ISSUE Whether Officer Juma Jones was terminated on February 22, 2013 for just cause? If not, what shall the remedy be? 9 FACTS The second internal investigation of Jones resulted in an Investigation Report dated December 9, 2013, from then-deputy Chief Ken Rosa (Union Exhibit 7). Rosa determined that Jones had used COLLECT to conduct inquiries on six individuals for personal reasons, unrelated to any law enforcement purpose Rosa concluded in his report that Jones had committed the same violations of Police Department Rules and Regulations and COLLECT policy as in the first internal investigation AWARD For the above reasons, the panel finds by a majority decision that the Town did not have just cause to terminate Juma Jones, and orders that he be reinstated to his prior position effective as of the date of this award. The panel further decides that the appropriate discipline against Juma Jones shall be reduced to a suspension without pay from the time of his discharge by the Town until the date of this award. 8 The November 10, 2014 award was by a majority of the tripartite panel. The dissenting member of the panel declined to issue a separate opinion. 9 The parties stipulated to the language of the Issue. (Ex 6) 6

7 20. After reviewing the arbitration award, Sansom became aware that I.A was pending at the time Jones was terminated and that with respect to the conduct which was the subject of that investigation, Jones had not been interviewed under the Garrity rule 10 or been afforded a Loudermill 11 hearing. Sirois ordered I.A reopened 12 and assigned Lieutenant Javier Rosario (Rosario) to handle the matter. (Ex. 22). 21. On December 2, 2014, the Town filed an application to vacate the November 10, 2014 arbitration award in superior court pursuant to Conn. Gen. Stat (Ex. 20). 22. By letter to Jones dated December 4, 2014, Rosario stated, in relevant part: (Ex. 7). On November 10, 2014, the arbitration panel issued an award in Case No A-0509 that ordered your reinstatement to your prior position as a Police Officer. However, the Town of East Hartford has appealed that decision to the Connecticut Superior Court. As you are aware, Chief of Police Mark Sirois directed the Office of Professional Standards to conduct Internal Affairs investigation IA You are the subject of the investigation. Chief of Police Scott Sansom has ordered that this investigation be reopened. Your Garrity Interview regarding this investigation is scheduled for Thursday, December 18, 2014, in the Administration Conference Room at the East Hartford headquarters. I further wish to advise you that if you refuse to testify or answer questions relating to the performance of your official duties or fitness for duty, you will be subject to Departmental charges that could result in your dismissal from the East Hartford Police Department 23. By letter dated December 4, 2014 to Town attorney Peter A. Janus, Union attorney Stephen F. McEleney (McEleney) stated, in relevant part: As you are well aware, the Town litigated all of the allegations in IA13-04 in the arbitration proceeding resulting in reinstatement of Officer Jones. Indeed, the full 10 In Garrity v. New Jersey, 385 U.S. 493 (1967), the United States Supreme Court held that fifth amendment protection against self-incrimination prohibited use in criminal proceedings of information obtained from public employees compelled to answer questions under threat of termination of employment. 11 In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the United States Supreme Court held that public employees having property interests in their employment may not be terminated without due process in accordance with the fourteenth amendment. 12 The Town contends that internal affairs investigation had not been completed at the time the arbitration award issued and Sirois testified that the investigation was renewed or reopened in November,

8 (Ex. 7). report in IA13-04 is Town Exhibit 8. You called witnesses to testify to the allegations contained therein. Please be informed we consider the Town s attempt to re-open something it has already fully arbitrated and directing someone who is not an employee to submit to a Garrity Interview constitutes refusal to adhere to an arbitration award, whether or not it is on appeal, failure to adhere to an arbitration award and bad faith bargaining. We will file an SBLR complaint if you insist on moving forward. 24. On January 21, 2015, Rosario issued a written supplement to I. A which essentially reviewed and repeated the content of Rosa s December 9, 2013 report as Rosario had not uncovered any new information or additional evidence. (Ex. 22). 25. By letter dated February 4, 2015 to deputy police chief Rob Davis (Davis), McEleney stated, in relevant part: (Ex. 7). I called yesterday because I had just received a thick packet of documents containing several allegations of violation of Departmental Rules and scheduling a Loudermill for today at 2:00 PM Having now had the opportunity to review the documents contained in the package, I realize that the new charges are nothing more than a reiteration of the charges contained in the I.A report entered into evidence and fully litigated before the SBMA in case number 2013-A The only additional charge involves the Town s attempt to conduct an I.A. interview in December Accordingly, this is to request the Town cease and desist from bargaining in bad faith with [the Union] by pursuing this attempt to terminate Officer Jones based on the same allegations, twice 26. By letter to Jones dated February 5, 2015, Sansom stated, in relevant part: I.A NOTICE OF DISPOSITION I have thoroughly reviewed all materials, documents, and reports accumulated during the investigation of the internal affairs complaint made against you in I.A. case number You have also had the opportunity to present your perspective of this matter during a pre-disciplinary hearing on February 4, You chose not to appear for the scheduled hearing. 8

9 13 (Ex. 7). After careful consideration of the facts, I am imposing the following discipline for the SUSTAINED charges pursuant to my authority under the Rules & Regulations and Town Charter: DISCHARGE FROM EMPLOYMENT Effective February 5, On February 11, 2015, the Union filed a grievance that states, in relevant part: (Ex. 7). [O]n February 5, 2015, Chief Sansom discharged Juma Jones for the second time based on the same allegations (IA 13-04_ [sic] as were presented by the Town as a[] basis for upholding the termination in SBMA Case No A The arbitration panel in said arbitration reinstated Officer Jones having fully heard and considered said allegations. Remedy: That the termination of February 5, 2015 be rescinded without necessity of a full re-hearing or, alternatively, denial of a re-termination. CONCLUSIONS OF LAW 1. A municipal employer s failure or refusal to comply with a valid arbitration award is a prohibited practice under 7-470(a)(6) of the Act. 2. The Town violated the Act when it terminated a member of the bargaining unit for certain misconduct after issuance of an arbitration award ordering reinstatement of the member notwithstanding the said misconduct. DISCUSSION In this case the Union claims that the Town committed multiple violations of the Act when it purported to terminate a former employee after an arbitration award issued ordering the employee s reinstatement. Specifically, the Union contends that the Town violated Section 7-470(a)(6) 14 by imposing discipline in excess of that determined to be appropriate by a valid arbitration award, by repudiating Art of the collective bargaining agreement by failing to conclude IA within ninety days, and by breaching 13 At the September 25, 2015 Labor Board hearing the parties stipulated that Jones failure to submit to an investigatory interview was not a basis for the discipline imposed on February 5, Conn. Gen. Stat (a)(6) states, in relevant part: (a) Municipal employers or their representatives or agents are prohibited from (6) refusing to comply with a valid award or decision of an arbitration panel 9

10 its statutory obligation to bargain in good faith 15 by simultaneously claiming that Jones was properly terminated in February of 2013 and was a Town employee subject to discharge in February of In response the Town argues that since the stated issue before the arbitrators was whether Jones was terminated for just cause on February 22, 2013, and since IA had not been completed by that date, the arbitrator could not include in his assessment of just cause the misconduct which was the subject of that subsequent investigation and as such, the award did not bar Town action directed at that misconduct. As to the Union s charge of repudiation, the Town contends that since its actions were based upon a non-frivolous construction of the collective bargaining agreement, the Union s claims must fail. When a party claims that there has been a refusal to comply with an arbitration award we will interpret the award to ascertain what it requires and then determine whether the respondent has compiled with those requirements. State of Connecticut, Office of Policy and Management, Decision No (2012); Town of Middlebury, Decision No (2012); City of Bridgeport, Decision No (2012); Town of Enfield, Decision No (2010); City of Willimantic, Decision No (1979). We use an objective standard and we do not consider whether the respondent acted in good faith or whether its interpretation of the award is a plausible one as valid defenses. Town of Wallingford, Decision No (2001); Town of Stratford, Decision No (1995); City of New Haven, Decision No (1992); Town of Newington, Decision No (1991); Weston Board of Education, Decision No (1988); Hartford Board of Education, Decision No (1988). Nor is it our function to relitigate or second guess the merits of grievance decisions. Our role is limited to meeting our statutory responsibility to insure that the outcome of the grievance procedure is respected. Connecticut Employees Union Independent (NP-2 Unit), Decision No (1996); City of Waterbury, Decision No (1983). As such, our analysis only looks to the language of the settlement or in this case, the arbitration award. Town of Enfield, supra at p. 11 (quoting City of Waterbury, Decision No (1998). If we find there has not been compliance, we will find a violation of the Act. Town of Westbrook, Decision No pp. 5-6 (2013); State of Connecticut, Department of Correction, Decision No (2010). The Union does not seek enforcement of the arbitrator s reinstatement order prior to resolution of the pending judicial proceedings to vacate the award but rather a determination that by terminating Jones again on February 5, 2015, the Town rejected the arbitrators findings and remedy in violation of the Act. In short, the Union seeks an order rendering unnecessary the pending grievance arbitration proceedings concerning Jones second termination on the grounds that imposition of discipline for misconduct that has already been addressed in an existing award amounts to a refus[al] to comply with a 15 Conn. Gen. Stat (c) states, in relevant part: [T]o bargain collectively is the performance of the mutual obligation to confer in good faith with respect to the negotiation of an agreement, or any question arising these under 10

11 decision of an arbitration panel within the meaning of Section 7-470(a)(6) of the Act and warrants relief precluding duplicative arbitral review. Given the record before us, we agree. After Jones was terminated on February 22, 2013 for using the police department s computer network on certain occasions to obtain information for personal reasons, the Town ascertained that Jones had improperly accessed the network on numerous other occasions. This additional misconduct was investigated in I.A and comprehensively set forth in Rosa s report of December 9, The arbitrators accepted the Town s offer of Rosa s report as a full exhibit and we view the resulting award as an express rejection of the Town s argument that this additional misconduct, either alone or in conjunction with the misconduct that was the subject of I.A , established just cause for Jones termination. By purporting to discharge Jones for this same misconduct on February 5, 2015, the Town gave notice that it was rejecting the arbitrators findings and that it would not reinstate Jones as ordered. The record does not support the Town s claims that the subject matter of I.A was outside the scope of the arbitrators authority. The Town called Rosa to testify at the arbitration concerning I.A and while his report issued well after Jones termination, it addressed substantially similar misconduct occurring during Jones tenure as a Town employee. In the wake of McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), arbitrators often consider after-acquired evidence of predisciplinary misconduct, particularly where the same type of misconduct is involved and potential remedial action 17 is a concern. See Elkouri & Elkouri, How Arbitration Works 8.8. D.i. (7th ed. 2012); Brand & Biren, Discipline and Discharge in Arbitration 1.VIII.A (2 nd ed. 2008). Nor does the record support the Town s claim that the parties could not have fully litigated I.A at the arbitration because the investigation was not officially completed and a disposition by the police chief made until after the award issued. Although Chief Sansom reopened I.A and assigned it to Rosario after the issuance of the award, Sansom admitted in his testimony that Rosario obtained no new or additional evidence and that Rosario s supplemental report merely reviewed and repeated Rosa s findings and conclusions. In short, the Town elected to rely on Rosa s testimony and report to support its argument to the arbitrators that Jones previous misconduct warranted termination and this decision 18 does not, in itself, limit the scope of the resulting award. Similarly, the scope of the award was not narrowed by the absence of Sansom s disposition 19 of I.A at the time the award issued because the Town had expressly 16 Although Sansom reopened I.A and assigned it to Rosario after the issuance of Rosa s report, Sansom admitted in his testimony that Rosario obtained no new or additional evidence and that Rosario s supplemental report merely reviewed and repeated Rosa s findings and conclusions. 17 It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds. McKennon v. Nashville Banner Publishing Co., supra, 513 U.S. at The Town did not call Sansom to testify at the arbitration hearings. 11

12 asked the arbitrators to include Jones earlier misconduct in their just cause analysis and introduced the evidence it deemed necessary to establish the existence of that misconduct. We do not read the issue the parties submitted to arbitration as restricting consideration of this evidence, nor do we find persuasive the Town s claim that it was only offered and admitted for the showing of a pattern of conduct of the same nature as the actions by Jones in I.A , which served as the basis for his discharge on February 22, The Town asked the arbitrators to include in [their] assessment of the just cause for Jones termination in February 2013 the subsequent findings by the Town of the additional violations of the COLLECT system by Jones, involving several of the very same offenses that had prompted his discharge. 21 Arbitration awards, like judgments, are to be construed in the same fashion as other written instruments and should admit of a consistent construction as a whole [and] we ascertain intent from the language used and, if necessary, the surrounding circumstances. Wheelabrator Bridgeport, L.P. v. City of Bridgeport, 320 Conn. 332, 355 (2016)(quoting Ottiano v. Shetucket Plumbing Supply Co., 61 Conn. App. 648, 652 (2001)). Reasonably construed in these circumstances, the arbitrators finding that the Town did not have just cause to terminate Juma Jones included the misconduct which was the subject of I.A As such, the subsequent imposition of discipline for the same misconduct is a violation of the Act and relief is warranted. Citing Board of Education v. State Board of Labor Relations, 217 Conn.120 (1991), the Union also contends that by simultaneously refusing Jones reinstatement on the grounds that the February 22, 2016 termination was proper and purporting to terminate Jones Town employment on February 5, 2015, the Town has repudiated the award in violation of its statutory obligation to bargain with the Union in good faith. We dismiss this claim as it is duplicative of the Union s Section 7-470(a)(6) claim and is moot because a complainant need only show that there has been a failure or refusal to comply with a grievance settlement in order to establish that a prohibited practice has been committed. Weston Board of Education, Decision No p.15 (1988). Board of Education v. State Board of Labor Relations, supra, dismissed an appeal of Thomaston Board of Education, Decision No (1988), which used a repudiation analysis to determine whether an employer s response to an arbitration award constituted a prohibited practice. In Weston Board of Education, supra, we expressly rejected the repudiation analysis used in our earlier cases of this type and confirmed that a violation of a grievance settlement or award in itself constitutes a violation of the duty to bargain under all three public sector collective bargaining statutes. See Town of Wallingford, Decision No p. 5 n. 3 (1992). 19 Sansom testified that his actions to make a formal disposition of I.A were prompted by the issuance of the award and were delayed by Jones refusal to submit to a Garrity interview or participate in a Loudermill hearing. We note that Jones was not a Town employee at the time of these refusals and that to the extent that Sansom s disposition was inconsistent with the award on a matter submitted to the arbitrators, its issuance was a prohibited practice under the Act. 20 Town s brief pp Ex. 17 (Town s brief dated August 25, 2014 in SBMA Case No A-0509) p

13 In addition to its claim that the Town repudiated the award, the Union contends that that the Town repudiated Art. XXIV 8 of the collective bargaining agreement when it failed to complete I.A within 90 days of February 1, Our standard for assessing repudiation claims is well-established: The repudiation of contract doctrine arises from the principle that the duty to bargain in good faith is not limited to the negotiations of a formal contract, but also includes the obligation to carry out the terms of the formal contract in good faith Repudiation of a collective bargaining agreement is something beyond mere breach 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. City of Hartford, Decision No pp (2014); see also Town of Enfield, Decision no (2015); City of Bridgeport, Decision No (2010); Ansonia Board of Education, Decision No (1998); Hartford Board of Education, Decision No. 2141(1982). The Town contends that the 90 day period was tolled by Jones termination on February 22, 2013 and recommenced with the issuance of the award reinstating Jones on November 10, 2014, a defense the Union argues is absurd. As such, resolution of the Union s claim turns on whether the Town s interpretation of Art. XXIV 8 is asserted in subjective bad faith or is wholly frivolous or implausible. Conclusions regarding actual or subjective bad faith must be based on an examination of all the evidence, including circumstantial evidence existing when a party s claim flies in the face of clear contract language. City of New Britain, Decision No p. 7 (2012); see also State of Connecticut, Bureau of Rehabilitation Services, Decision No (2015); City of Meriden, Decision No (2011); Ansonia Federation of Teachers, Decision No (1987); Bristol Federation of Teachers, Decision No (1978). It is not unreasonable to infer that the contract provision at issue was intended to protect Town employees from unduly long or continuing internal investigations and while Jones did not resume his status as an employee when the award issued, he did acquire an apparent right to reinstatement of his former status. Municipal employers are expected to conserve finite resources and as such, we find that the Town did not adopt in bad faith its position that the collective bargaining agreement does not require it to complete internal investigations of persons who are no longer Town employees. Since we also find this 13

14 construction of Art. XXIV 8 to be plausible, 22 we dismiss the Union s claim that the Town repudiated the collective bargaining agreement. In conclusion, we find that the Town failed to comply with the arbitration award of November 10, 2014, by terminating Jones on February 5, 2015 for misconduct that the arbitrators had already assessed and determined did not warrant termination of Jones employment. While we do find that this subsequent imposition of discipline was an unlawful circumvention or evasion of the award, we do not find that the Town repudiated the award or the collective bargaining agreement and we dismiss the Union s claims in that regard. Turning to the issue of remedy, we find that an order requiring the Town to comply with the arbitration award and to cease and desist imposing of discipline for that misconduct described in I.A , including termination as set forth in Sansom s February 5, 2015 letter, would best effectuate the policies of the Act. 23 The Union seeks an award of attorney s fees. The Act affords us the authority and discretion to award a prevailing party s reasonable attorney s fees and costs where we conclude that a proffered defense presents no debatable issue and is wholly frivolous. See City of Hartford, Decision No (2014); City of Bridgeport, Decision No (2010); Norwalk Third Taxing District, Decision No.3676 (1999); Killingly Board of Education, Decision No (1982). If a party only presents defenses that are not reasonably debatable, the other party has been caused to incur expenses for no valid reason. City of Hartford, Decision No p. 5 (2011). While we reject the Town s defense that the arbitration award did not encompass the misconduct which was the subject of I.A , we do not find the defense so meritless so as to justify an award of attorney s fees. In fact, Rosa s report issued after Jones termination and the discipline at issue was imposed after the award issued. But for the parties submissions at arbitration, the Town would have had more than a debatable technical defense and possibly obtained a different outcome in this case. As such, we decline to award the Union attorney s fees. 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 Town of East Hartford shall: I. Cease and desist from refusing to comply with the arbitration award issued by the Connecticut State Board of Mediation and Arbitration in Case No A-0509, including imposition of discipline, other than as found appropriate in said award, on Juma Jones for misconduct described in the investigation report of the Town police 22 A plausible or non-frivolous contract interpretation is the kind a reputable lawyer might urge with a straight face. Town of Plainville, Decision No p. 6 (1979) 23 Our findings and conclusions assume that the award is valid and as such, we expressly order compliance subject to any and all court orders which may issue in the pending judicial proceedings commenced by the Town to vacate the award. 14

15 department s office of professional standards, case no (Ex. 14). This Order is expressly subject to the proceedings in Town of East Hartford v. East Hartford Police Officers Association, Superior Court, judicial district of Hartford at Hartford, Docket No. HHD-CV and a final judgment in said proceedings vacating the award shall relieve the Town of an obligation to comply with the award under this Order. II. Take the following affirmative action, which we find will effectuate the purposes of the Act: A. Rescind that discipline imposed by Scott M. Sansom on Juma Jones by notice letter dated February 5, 2015 concerning I. A and give written notice of said rescission to the Union and Juma Jones. B. Post immediately and leave posted for a period of sixty (60) consecutive days from the date of posting, in a conspicuous place where the employees of the bargaining unit customarily assemble, a copy of this Decision and Order in its entirety. C. Notify the Connecticut State Board of Labor Relations at its office in the Labor Department, 38 Wolcott Hill Road, Wethersfield, Connecticut within thirty (30) days of receipt of this Decision and Order of the steps taken by the Town of East Hartford to comply herewith. CONNECTICUT STATE BOARD OF LABOR RELATIONS Patricia V. Low Patricia V. Low Chairman Barbara J. Collins Barbara J. Collins Board Member Ann Bird Ann Bird Alternate Board Member 15

16 CERTIFICATION I hereby certify that a copy of the foregoing was mailed postage prepaid this 14 th day of July, 2016 to the following: Peter A. Janus, Esq. Seigel, O Connor, O Donnell & Beck, P.C. 150 Trumbull Street Hartford, CT Stephen F. McEleney, Esq. McEleney & McGrail, LLC 20 Church Street, Suite 1730 Hartford, CT RRR RRR Harry B. Elliott, Jr., General Counsel CONNECTICUT STATE BOARD OF LABOR RELATIONS 16