STATE OF CONNECTICUT LABOR DEPARTMENT

CONNECTICUT STATE BOARD OF LABOR RELATIONS

IN THE MATTER OF

STATE OF CONNECTICUT DEPARTMENT OF CORRECTION DECISION NO. 5067 -AND- APRIL 26, 2019 LOCALS 387, 391 & 1565 OF NP-4 UNIT OF COUNCIL 4, AFSCME, AFL-CIO

Case No. SPP-32,504

A P P E A R A N C E S:

Attorney Adam Garelick for the State

Attorney J. William Gagne, Jr. for the Union

DECISION AND DISMISSAL OF COMPLAINT

On November 17, 2016, the NP-4 unit of Council 4, AFSCME, AFL- CIO (the Union) filed a complaint with the Connecticut State Board of Labor Relations (the Labor Board) alleging that the State of Connecticut Department of Correction (the State) had violated the State Employee Relations Act (SERA or the Act) by making unilateral changes to established practices governing training-related overtime for correction officers.

After the requisite preliminary steps had been taken, the parties came before the Labor Board for a hearing on July 11, 2018 and September 26, 2018. Both parties were represented, afforded a full opportunity to adduce evidence, examine and cross-examine witnesses and make argument. Both parties filed briefs which were received on December 4, 2018. On the basis of 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 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 unit (NP-4) comprised of certain employees of the Department of Correction (DOC), including employees in the job classification of correction officer.

3. At all times relevant hereto, the State and the Union have been parties to a series of collective bargaining agreements covering the NP-4 Unit. The latest such collective bargaining agreement, effective July 1, 2011 through June 30, 2016, states, in relevant part:

ARTICLE 8 TRAINING

Section 1. Relevant Training. The Employer recognizes the need to provide relevant … on-the-job training. … Section 4. Scheduling Training. Training will be scheduled during normal working hours when, in management’s judgment, it is practical to do so. Training required by the State in addition to regular duty time shall be considered time worked for overtime purposes, except as provided otherwise... … ARTICLE 12 GRIEVANCE PROCEDURE

Section 1. Definition of Grievance. A grievance is defined as, and limited to, a written complaint involving an alleged violation or dispute involving the application or interpretation of a specific provision of this Agreement. … ARTICLE 14 HOURS OF WORK AND WORK SCHEDULES

Section 1. Work Week. … All employees shall be scheduled to work a regular shift as determined by the appointing authority…

Section 2. Continuous Operations. Employees in continuous operations as defined below will have a regularly scheduled work week… … Correction Officer … Section 3. Changes in Schedules. Insofar as possible, changes in work schedules will be made with a minimum of two (2) weeks’ notice to the employee affected by a work schedule change, except when changes are

2 necessary due to emergency situations, in accordance with present practice. … ARTICLE 15 OVERTIME … Section 2. Voluntary Overtime Distribution. All employees wanting to work voluntary overtime will sign a quarterly overtime list. Overtime will be distributed in accordance with either section A. or B. below. … B. “Sign-up Book” System. The sign-up book will contain pages representing each day of each month, separated into three sections representing each shift worked by employees in continuous operations… … 2) Quarterly List. Only employees who have signed the quarterly overtime list will be allowed to place their names in the sign-up book during that quarter.

3) Supervisor to Use Book. When a supervisor needs to fill a vacancy with overtime, he/she will refer to the sign-up book and call the staff member with the least number of overtime hours for that quarter who has signed the book for that day and shift. … 5) Exhaustion of List. When the daily sign-up has been exhausted the quarterly overtime list shall be utilized, beginning with the employee with the least number of hours. Once the quarterly overtime list has been exhausted the employer shall first seek volunteers prior to employees being involuntarily held over. …

Section 9. Overtime Holdover. An employee is held over if he/she is drafted and assumes a post on the shift subsequent to his/her own shift … When a designated work unit requires overtime holdover (i.e., draft) it shall be accomplished by inverse class seniority utilizing staff on duty from the previous shift including those staff currently on a single overtime shift on their day off… … ARTICLE 17 COMPENSATION … Section 6. Night Shift Differential. All employees who are in this bargaining unit and who are eligible to receive shift differential in accordance with current practice and whose assigned work shift begins any time after 2:00 p.m. and before 6:00 a.m. shall receive a night differential of … ninety (90) cents per hour…

3 (Ex. 5).

4. At all times relevant hereto, the DOC has operated at least 15 correctional facilities1 in Connecticut that maintain three work shifts per day, seven days per week. Correction officers assigned to those facilities are considered to be in “continuous operation” within the meaning of Article 14 of the collective bargaining agreement and typically work 5-days on, 3-days off (5/3 schedule). Staff working in assignments which are not in continuous operation typically work Monday through Friday (5/2 schedule) on the first shift. (Exs. 5, 10).

5. At all times relevant hereto, DOC has provided department-wide in-service training (IST) as well as more limited facility-specific training to its employees, including NP-4 bargaining unit members.

6. Prior to 1999, DOC has offered IST on the first shift or the first and second shifts and allowed employees working other shifts the option of working their regular hours on overtime in addition to attending off-shift training.

7. On July 15, 1999, the Union filed a grievance (No. 08-7134) alleging that permitting employees to work their own shift on overtime violated Article 8, Section 4 of the contract. That grievance was sustained on February 10, 1999. (Exs. 20, 21).

8. In or about 2000, and in response to grievance No. 08-7134, DOC no longer allowed employees scheduled for off-shift training to work their regular shifts on overtime. Rather, DOC provided IST on the first and second shifts and assigned employees who regularly worked those shifts to training in lieu of other work assignments. Employees who worked on the third shift were temporarily reassigned to first or second shift2 to attend training.

9. Since at least 2004, DOC has scheduled IST on the first shift and temporarily transferred employees working second and third shifts to the first shift to attend training. Receipt of overtime by employees attending training and working adjacent shifts, however, varies depending on the facility and the circumstances. For example:

 Correction officer Hoai Le (Le) was temporarily transferred from his regular third shift assignment at the Hartford Correctional Center to first shift to attend IST training on January 15, 2015. On January 15, 2015, Le voluntarily worked his regular third shift assignment and then attended IST training from 8:00 a.m. to

1 Bridgeport Correctional Center; Brooklyn Correctional Institution; Cheshire Correctional Institution; Corrigan-Radgowski Correctional Center; Enfield Correctional Institution; Garner Correctional Institution; Hartford Correctional Center; MacDougall-Walker Correction Institution; Manson Youth Institution; New Haven Correctional Center; Northern Correctional Institution; Osborn Correctional Institution; Robinson Correctional Institution; Willard-Cybulski Correctional Institution; and York Correctional Institution. (Exs. 10-11).

2 In September 1999, the Union filed a grievance (No. 08-7502) and a prohibited practice complaint (SPP- 21,191) on behalf of members at the Manson Youth Institution contesting the State’s decision to prohibit third shift staff from working their regular shift on overtime on training days. The State prevailed in the resulting arbitration and prohibited practice proceedings. (Exs. 8, 18, 19).

4 4:00 p.m. DOC paid Le at his regular rate for working third shift and overtime for attending IST training. (Ex. 9).

 Correction officer Susan Watson (Watson) was temporarily transferred from her regular third shift assignment at York Correctional Institution to first shift to attend IST training on November 1, 2016. On November 1, 2016, Watson voluntarily worked her regular third shift assignment and then attended IST training from 8:00 a.m. to 4:00 p.m. DOC paid Watson at her regular rate for working third shift and overtime for attending IST training. (Ex. 13).

 On November 28, 2016, correction officers Angel Irizarry (Irizarry) and Anthony Jusseaume (Jusseaume) attended IST training during their regular first shift assignments at the Corrigan-Radgowski Correctional Center and were paid at their regular rate. Correction officer Friedel Zegarzewski attended the same training on what was otherwise his regular scheduled day off and was paid overtime. (Ex. 12).

 Correction officer Richard Wauthier was temporarily reassigned from his regular second shift assignment at Cheshire Correctional Institution to attend firearms training on July 2, 2018. Wauthier attended the training and was then held over to work part of the second shift. DOC paid at his regular rate for attending the training and overtime for working part of the second shift. (Ex. 14).

9. Between January 1, 2016 and January 1, 2018, York Correctional Institution paid 66.5% of its total staff training hours in overtime while at Corrigan-Radgowski Correctional Center, Hartford Correctional Center, and Cheshire Correctional Institution, respectively, paid 59.4%, 45.8%, and 27.81% of their total staff training hours in overtime. (Exs. 10, 11).

10. At all times relevant hereto, correction officer Ed Morello has been assigned to the second shift at York Correctional Institution. On September 18, 2018, Morello and correction officer Michael Bennett were scheduled to attend training on overtime from 7:45 a.m. to 2:45 p.m. and correction officers Edward Nenna and Steve Zajack were scheduled to work the first two hours of the second shift on overtime. (Ex. 7).

11. On September 20, 2018, Union steward Michael Vargo3 filed a grievance (Ex. 7)4 alleging that the State violated the collective bargaining agreement by requiring Morello and Bennett to work the second shift after completing their training and releasing Nenna and Zajack. As of September 26, 2018, that grievance was still pending. 5

CONCLUSIONS OF LAW

3 Vargo has been employed as a correction officer since 2002 and has worked at 5-6 DOC facilities. Vargo is currently assigned to York Correctional Institution.

5 The Union filed at least one prior grievance alleging that DOC improperly required employees assigned to training to work overtime. (Ex. 16). . 5 1. Absent an adequate defense, an employer’s unilateral change in an existing condition of employment that is a mandatory subject of bargaining will constitute a refusal to bargain in good faith and a violation of the Act.

2. To establish a prima facie case of a unilateral change, the complainant must show that there was an existing fixed practice prior to the alleged change and a clear departure from that practice.

3. The State did not violate the Act.

DISCUSSION

In this case, the Union does not contest the temporary reassignment of bargaining unit members to the first shift to attend training. Rather, the Union contends that the State violated Section 5-272(a) (4)6 of the Act by requiring correction officers to work their regular shifts in addition to attending training when volunteers or less senior employees were available, by reassigning employees attending training to their regular shifts on the same day to avoid paying overtime, and by paying such employees straight time for working adjacent shifts.7 The State responds that the Labor Board does not have jurisdiction over the complaint because the Union alleges mere breach of the collective bargaining agreement. In the alternative, the State argues that the Labor Board should defer to the arbitration process since this dispute is also the subject of a pending grievance. Lastly, the State argues that the complaint should be dismissed because the Union failed to prove that there has been a change to a consistent bargaining unit-wide practice governing training- related overtime. Based on the entire record before us, we find that the union has failed to establish a prima facie case of unlawful unilateral change and we dismiss the complaint.

With respect to jurisdiction, the State argues that the complaint should be dismissed because, as the Union’s own witnesses admitted, the allegations therein establish a claim that the collective bargaining agreement was violated. We disagree. We have long held that while a mere breach of contract does not amount to a violation of the Act, conduct that is illegal under the Act may also breach the contract.

If the only question concerns whether the contract has been breached, this Board is without jurisdiction to decide the question. The proper forum for resolving such disputes is through the grievance arbitration process.

6 Conn. Gen. Stat. § 5-272 provides, in relevant part:

(a) Employers or their representatives or agents are prohibited from: … (4) refusing to bargain collectively in good faith with an employee organization which has been designated … as the exclusive representative of employees in an appropriate unit…

7 For example, the Union contends that the State temporarily assigned Morello to the first shift for training, improperly required him to work the second shift after he completed his training, and simultaneously reassigned him to his regular shift for payroll purposes. Accordingly, the Union argues, Morello received overtime for the training shift and straight time for the additional shift. According to the Union, Morello lost money including but not limited to the second shift differential while other employees lost overtime opportunities. 6

Meriden Board of Education, Decision No. 2380 p.4 (1985). However, the complaint before us charges the State with making a unilateral change to conditions of employment involving scheduling and the distribution of overtime, which are both mandatory subjects of bargaining. State of Connecticut Department of Correction, Decision No. 3269 (1995); State of Connecticut, Department of Correction, Decision No. 2729 (1989); Amity Board of Education, Decision No. 1845 (1979).While certain provisions of the parties’ collective bargaining agreement may well be implicated, unilateral change involving mandatory subjects is a violation of the Act and a claim over which we have jurisdiction. City of Hartford, Decision No. 4981 (2017). That being so, “the possibility that the offending conduct may also constitute a breach of contract does not oust the Board of jurisdiction.”8 City of Bridgeport, Decision 1091 p.2 (1972); see also City of Hartford, supra.

We also decline to defer to the grievance arbitration process. “Deferral to arbitration is a discretionary doctrine, rather than a mandatory one”, Town of Middlebury, Decision No. 4603 p.6 (2012), and we do not believe that the State has provided us with a sufficient basis for exercising that discretion in its favor. In City of New London, Decision No. 2411 (1985), this Board held that it will decline to address an issue of contract interpretation if such issue has been grieved and the union failed to pursue binding arbitration after denial of the grievance on the merits. That is not the case here. The most recent grievance (Ex. 7) filed by the Union is still pending and there is no evidence of any other arbitral rulings interpreting a specific provision of the collective bargaining agreement relevant to the claims of unilateral change presently before us.

Turning to the substance of the complaint,

It is by now well established that an employer violates the Act when, absent a defense, it unilaterally changes an existing condition of employment that is a mandatory subject of bargaining. Shepaug Valley Regional School District, Decision No. 4765 (2014); State of Connecticut, Judicial Branch, Decision No. 4532 (2011); Norwalk Third Taxing District, Decision No. 3695 (1999); Bloomfield Board of Education, Decision No. 3150 (1993); City of Stamford, Decision No. 2680 (1988). It is the Union’s initial burden to make a prima facie case establishing that a change in an existing condition of employment has in fact occurred, for if no change is proven, no further inquiry is warranted. State of Connecticut, Decision No. 4573 (2012); Town of Hamden, Decision No. 2364 (1985). A condition of employment may be established by past practice where the complainant shows that the employment practice was “clearly enunciated and consistent, [that it] endured[d] over a reasonable length of time, and [that it was] an accepted practice by both parties.”(Emphasis in original, internal quotation marks omitted). Board of Education of Region 16 v. State Board of Labor Relations, 299 Conn. 63, 73 (quoting Honulik v. Greenwich, 293 Conn. 698, 719 n. 33 (2009)).

8 We also note that while Vargo testified to filing one or more grievances on the same issue, Council 4 staff representative Jason Wells characterized the State’s conduct as both a contract breach and an illegal unilateral change. (Tr. 09/26/18, pp. 23-24, 42).

7 Once the Union has made its prima facie case, the burden shifts to the employer to establish an adequate defense. Norwalk Third Taxing District, Decision No. 3695 (1999).

City of Danbury, Decision No. 4975 p. 6 (2017); see also State of Connecticut Department of Children and Families, Decision No. 5026 (2018); City of Bristol, Decision No. 2361 (1985).

“It is the Union’s burden to prove the existence of a fixed past practice from which the employer has departed.” Milford Board of Education, Decision No. 3333 p.4 (1995). Establishing a change from a preexisting, fixed and definite practice requires evidence of a baseline of substantial duration. Region 16 v. State Board of Labor Relations, supra, 299 Conn. at 75 – 78 (Union must establish “baseline” drawn from the previous school years to prove unilateral change to teachers’ workload). Furthermore, the employment practice at issue must be uniform among all members of “the same bargaining unit . . . [who are] bound by the same collective bargaining agreement …” Portland Board of Education, Decision No. 1670 p.3 (1978); see also State of Connecticut, Judicial Branch, Decision No. 4532 (2011). Therefore, “to find a violation based upon unilateral change theory, the practice that has been changed must be shown to be unit-wide rather than at a specific location.” State of Connecticut Department of Correction, Decision No. 2729 p. 5 (1989); see also Hartford Board of Education, Decision No. 2573 (1987); Portland Board of Education, supra.

In this case, we find that the Union failed to meet its burden of proving that the State departed from a fixed, unit-wide practice by failing to pay Morello, among others, overtime for their second shift hours. Vargo testified that the practice at York CI is to pay staff overtime for any hours they are held over after a training shift. Vargo, however, also admitted on cross-examination that “it’s been done differently” in the other facilities he has worked and his testimony in this regard is consistent with the testimony of a State witness, Captain Paul DeFelice, who confirmed that the practice “varies by facility”.9 Furthermore, even if we were to accept the existence of a binding practice, the Union produced no evidence showing how the State compensated Morello or other affected employees. As such, there is no way to determine whether they received overtime for attending the training, working the adjacent shift, or both.

The Union also failed to prove that the State violated the Act by unilaterally changing employees’ shift schedules and improperly assigning involuntary overtime. In the first instance, the Union relies on Wells’ testimony that the State unilaterally returned bargaining unit members to their regular shifts for overtime purposes without any prior notice and that the State has “never done this before.” We will not, however, infer the existence of a contrary practice absent evidence of the scope, consistency, or duration of that practice. Similarly, there is little or no evidence in the record before us of an actual preexisting practice regarding overtime distribution. Although Article 15 of the collective bargaining agreement creates a pecking order for distributing involuntary overtime, the Union produced no evidence establishing the extent to which those provisions were applied prior to the alleged change and we will not presume a binding practice without

9 DeFelice has been employed since 1999 and has worked at 6-9 correctional facilities. DeFelice is currently an operations captain in charge of staffing and scheduling for DOC.

8 evidence of a baseline. See Board of Education Region 16 v. State Board of Labor Relations, supra, 299 Conn. at 75-76. In the absence of such evidence, we are left with a potential breach of contract over which we have no jurisdiction.

Accordingly, we dismiss the complaint in its entirety.

ORDER

Pursuant to the power vested in the Connecticut State Board of Labor Relations by the State Employee Relations Act, it is hereby ORDERED that the complaint filed herein be and the same hereby is, DISMISSED.

CONNECTICUT STATE BOARD OF LABOR RELATIONS

Wendella Ault Battey Wendella Ault Battey Chairman

Barbara J. Collins Barbara J. Collins Board Member

Susan Meredith Susan Meredith Alternate Board Member

9 CERTIFICATION

I hereby certify that a copy of the foregoing was mailed postage prepaid this 26th day of April, 2019 to the following.

Attorney J. William Gagne, Jr. 1 Congress Street, 3rd floor RRR Hartford, CT 06114

Attorney Adam Garelick OLR, Office Policy & Management RRR 450 Capitol Avenue Hartford, CT 06106

______Harry B. Elliott, Jr., General Counsel CONNECTICUT STATE BOARD OF LABOR RELATIONS

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