Bd. of Educ. of Region 16 v. State Bd. of Labor Relations

• Citation: 299 Conn. 63,7 A.3d 371
• Decision Date: 16 November 2010
• Docket Number: No. 18347.,18347.
• Court: Connecticut Supreme Court
• Parties: BOARD OF EDUCATION OF REGION 16 v. STATE BOARD OF LABOR RELATIONS et al.

7 A.3d 371

299 Conn. 63

BOARD OF EDUCATION OF REGION 16

v.STATE BOARD OF LABOR RELATIONS et al.

No. 18347.

Supreme Court of Connecticut.

Argued Sept. 8, 2010.

Decided Nov. 16, 2010.

William R. Connon, with whom, on the brief, was Brooke H. Sherer, Hartford, for the appellant (plaintiff).

Alexandra M. Gross, for the appellee (named defendant).

Ronald Cordilico, for the appellee (defendant Region 16 Education Association).

Kelly B. Moyher filed a brief for the Connecticut Association of Boards of Education as amicus curiae.

ROGERS, C.J., and NORCOTT, PALMER, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.

ROGERS, C.J.

The central issue in this case is whether an increase in the workload of certain teachers during the course of a school year constituted a unilateral change of a condition of employment under this state's collective bargaining law. The plaintiff, the board of education of Region 16, appeals ¹ from the judgment of the trial court dismissing its appeal from the decision of the named defendant, the state board of labor relations (board), in which the board concluded that the plaintiff had violated General Statutes § 10-153e (b) when it unilaterally changed a condition of employment.² Specifically, the board concluded that theplaintiff acted unlawfully when it unilaterally and substantially increased the workload of certain employees who were members of the defendant Region 16 Education Association (union). In addition, the board concluded that the plaintiff had engaged in unlawful direct dealing with the employees.

The plaintiff claims that the trial court improperly: (1) upheld the board's conclusion that the union was not required to prove that there was a unit wide employment practice in order to establish a prima facie case of a unilateral change; (2) concluded that the board's determination that the union had established a prima facie case of a unilateral change of a definite and fixed employment practice was supported by substantial evidence; and (3) concluded that the board's ruling that the plaintiff had engaged in unlawful direct dealing with the employees was supported by substantial evidence. We conclude that the board's finding that the plaintiff had unilaterally and substantially changed a definite and fixed employment practice was not supported by substantial evidence and, therefore, we reverse the portion of the trial court's judgment relating to that issue.³ We agree with the trial court,however, that the board's ruling that the plaintiff had engaged in unlawful direct dealing was supported by substantial evidence. Accordingly, we affirm the judgment to the extent that it upheld the board's conclusion that the plaintiff had engagedin direct dealing and ordered the plaintiff to cease and desist from such conduct.

The board found the following relevant facts. The plaintiff operates a high school known as Woodland High School (high school). The plaintiff also operates one middle school and three elementary schools. All of the schools provide both regular and special education programs. The length of the work year and work day of all teachers in the schools operated by the plaintiff is specified in the collective bargaining agreement (agreement) between the plaintiff and the union. The agreement also provides that "[t]eachers are expected to be available for student help, parent conferences, faculty meetings, general staff department or group meetings, committee work, and other activities of a professional nature before and after regular school hours." ⁴

At the beginning of the 2004-2005 school year, the high school had five special education teachers, including four "skills lab" teachers, each of whom was responsible for teaching a specific number of special education students, known as the teacher's "caseload," and onetransition coordinator, who was responsible for placing students in jobs in the community. The skills lab teachers were Arthur Richardson, Deborah Flaherty, Tracy Brunelle and Melissa Dean, and the transition coordinator was Jessica Veneziano. Richardson's caseload was approximately seventeen students; Flaherty's caseload was ten students; Brunelle's caseload was sixteen students; and Dean's caseload was fifteen students. No students were specifically assigned to Veneziano.

In October, 2004, Richardson resigned from his teaching position at the high school. The plaintiff attempted to find a replacement for him, but, because of a shortage of special education teachers in the state, was unable to do so. Marna Murtha, the plaintiff's director of pupil personnel and the person in charge of the plaintiff's department of special education, met several times with the skills lab teachers and Veneziano to discuss the best way to service Richardson's former students. Ultimately, they decided to divide Richardson's caseload among the skills lab teachers. In addition, Veneziano took on several of Richardson's students. As a result, Flaherty's caseload increased from ten to fourteen students and her work hours increased by approximately fourteen hours per week; Brunelle's caseload increasedfrom sixteen to twenty-one students and her work hours increased by approximately ten hours per week; and Dean's caseload increased from fifteen to twenty-one students and her work hours increased by approximately ten hours per week.⁵ From the 2001-2002 school year through the 2005-2006 school year, special education teachers at the high school, middle school and elementary schools operated by the plaintiff had caseloads ranging from four to twenty-two students.

In January, 2005, the plaintiff hired a permanent, full-time substitute teacher to replace Richardson for the remainder of the school year. The substitute was not certified as a special education teacher, but had a "durational shortage area permit" authorizing him to teach special education students on a temporary basis.⁶ After the substitute was hired, Murtha met with the skills lab teachers and Veneziano (special education teachers), and they decided that the substitute teacher would teach the self-contained history class, which had been one of Richardson's duties. Because they were "not comfortable" with allowing the substitute to take on Richardson's other duties, however, the four special education teachers retained his caseload. At either the initial meeting or at another meeting, Murtha suggested that the special education teachers use the looping method employed by the middle school, in which teachers are assigned to students in a single grade level and move with the students when they progress to the next grade level. The union was not informed of the meetings at which these decisions were made. It was Murtha's standard practice when school employees left employment unexpectedly to attempt to hire replacements and to collaborate with the remaining staff, but not the union, to allocate the former employee's workload among the staff.

At some point after Richardson's departure, the special education teachers approached Murtha and complained that their workloads were too heavy. They did not ask Murtha directly for an increase in their compensation, but they asked the union to request an increase on their behalf. Thereafter, in late March, 2005, Murthaapproached Brunelle and stated that the special education teachers should not proceed with "their complaint" because there was no point in pursuing it. Murtha also left a voicemail message for Brunelle in which she asked Brunelle to meet with the other special education teachers and to send a letter to Marguerite Shook, the plaintiff's superintendent of schools, stating that the union president, Catherine Mirabilio, had approached them regarding the complaint, not the reverse, and that they were not seeking a stipend for their increased workload. Brunelle responded by leaving a voicemail message for Murtha in which she stated that Mirabilio had not approached the special education teachers, but they had approached Mirabilio, and that they would not be sending a letter to Shook. Brunelle also forwarded Murtha's voicemail message to Mirabilio.

Thereafter, the union filed a complaint with the board alleging that the plaintiff had "unilaterally and substantially increased the case management workload of[the] special education teachers without notification and without negotiating with the [union]." After an evidentiary hearing, the board rendered a decision in which it concluded that the union had "demonstrated a fixed and definite practice among [the] special education teachers and a significant departure from that practice [and] ... has established a prima facie case of unlawful unilateral change substantial enough to require bargaining." The board rejected the plaintiff's arguments that, because the caseload of special education teachers both at the high school and throughout the school district historically had fluctuated over the course of the school year as students were placed in or removed from the special education program, the union had failed to establish that the increased workload after Richardson's departure constituted an unlawful unilateral change. The board concluded that the former "sort of variation is anticipated by ... teachers and thus permitsthem to plan for the natural ebb and flow of students in their caseload. Richardson's absence, however, created an unexpected, sudden and fixed swelling in each [special education] teacher's caseload that lasted from the time of Richardson's departure in or about October of 2004 through the end of the school year in June 2005." The board also concluded that the plaintiff had engaged in unlawful direct dealing with the special education teachers. Accordingly, the board ordered the plaintiff to cease and desist from "[i]ncreasing the workload of the special education teachers without negotiating with the [u]nion" and from "[d]ealing directly with employees concerning mandatory subjects of bargaining."

Thereafter, the plaintiff appealed from the...