City of Norwich v. Norwich Fire Fighters

• Decision Date: 28 June 1977
• Citation: 173 Conn. 210,377 A.2d 290
• Court: Connecticut Supreme Court
• Parties: , 96 L.R.R.M. (BNA) 3171 CITY OF NORWICH v. NORWICH FIRE FIGHTERS et al.

Page 290

377 A.2d 290

173 Conn. 210, 96 L.R.R.M. (BNA) 3171

CITY OF NORWICH v. NORWICH FIRE FIGHTERS et al.

Supreme Court of Connecticut.

Argued April 7, 1977.

Decided June 28, 1977.

Robert W. Murphy, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellant (defendant Connecticut state board of labor relations).

Geurson D. Silverberg, Norwich, with whom was Richard N. Ziff, Norwich, for appellee (plaintiff).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

BOGDANSKI, Associate Justice.

This action arose from a complaint filed by the Norwich Fire Fighters, Local 892, International Association of Fire Fighters, hereinafter the union, with the state board of labor relations, hereinafter the board, on behalf of a retired Norwich fireman, Thomas LaRochelle. The complaint alleged that the city of Norwich, hereinafter the city, had committed a prohibited labor practice by unilaterally excluding accumulated sick leave pay from the compensation upon which LaRochelle's pension benefits were computed. On July 11, 1974, after a hearing, the board decided that the city's unilateral modification of benefits was a violation of § 7-470(a)(4) ¹ of the General Statutes, and ordered the city to recompute LaRochelle's benefits and to pay him accordingly, including the difference between the pension payments he had already received and the pension payments as computed pursuant to the board's order. The city appealed from that decision to the Superior Court pursuant to § 31-109(d) of the General Statutes. That court sustained the appeal and set the award aside. From that judgment the board has appealed, assigning error in the conclusions reached by the court.

Prior to August 26, 1970, the personnel and retirement board, as administrators of the firemen's pension fund, computed pension benefits as provided by contract ² from compensation received by individual firemen during the twelve months preceding their retirements. By past practice, included in that compensation was the value of any accumulated sick leave pay received by the firemen. On August 26, 1970, the city's new corporation counsel ruled that the inclusion of accumulated sick leave pay in the computation of pension benefits was improper. From the time of that ruling, the city (1) recomputed the pensions of persons already retired and started to pay them on the new, reduced basis, and (2) computed the pensions of all persons retiring thereafter by excluding unused sick leave pay.

On December 14, 1969, fireman Clarence Murkett, a member of the bargaining unit, retired under the provisions of the contract, after being told that his unused sick leave pay amounted to $2924.94 and that he would receive a pension for life of $227.94 twice a month. In November, 1970, Murkett was notified that his pension had been improperly computed (through inclusion of accumulated sick leave pay) and that the proper amount should be only $167 twice a month. The union filed a grievance on Murkett's behalf against the city for having made the change. The grievance was processed and culminated in arbitration before the state board of mediation and arbitration. That board made an award on March 15, 1973, which held that Murkett's pension benefits could not be disturbed, and ordered the city to reestablish and pay Murkett's benefits as originally determined. The mediation and arbitration board ruled that the pension vested upon retirement and that the city was not free to change it thereafter unilaterally. It also pointed out that Murkett's decision to retire had been made in reliance upon the amount he was told he would receive as a pension. The city complied with the terms of the award and also adjusted pensions of other retired firemen similarly affected.

The city continued, however, to compute pensions of persons who retired after August 26, 1970, without the inclusion of accumulated sick leave pay in the compensation for the final twelve months of service. The first fireman to retire after August 26, 1970, was Thomas LaRochelle, who retired on July 1, 1973. LaRochelle's accumulated sick leave pay was not included in computing his pension benefits. The present action before the board arose as a result of that exclusion.

After a hearing, the board concluded that the method of pension benefit computation was a matter of long-standing practice whether required by the terms of the contract or not, that any substantial change in that method of computation was a mandatory subject of bargaining with a statutory bargaining representative, and that a unilateral change in the method constituted a refusal to bargain and a violation of § 7-470(a)(4), even though done in good faith and without an intent to injure or discourage the union.

On appeal from the final order of an administrative agency, such as the board, the trial court does not try the case de novo. It is not the function of the court to adjudicate the facts. The court can do no more, on the factual questions presented, than to examine the record to determine whether the ultimate findings were supported, as the statute requires, by substantial evidence. General Statutes § 31-109(b). If the findings are supported by substantial evidence, they cannot be disturbed. L. Suzio Construction Co. v. Connecticut State Board of Labor Relations, 148 Conn. 135, 138, 168 A.2d 553; Imperial Laundry, Inc. v. Connecticut State Board of Labor Relations, 142 Conn. 457, 461, 115 A.2d 439. The court, however, has the function of reviewing the record of the entire proceedings before the board to determine whether the board acted arbitrarily, unreasonably, or contrary to law. Hotchkiss Grove Ass'n, Inc. v. Water Resources Commission, 161 Conn. 50, 56, 282 A.2d 890.

In considering the appeal, the trial court, while adhering to all of the facts found by the board, determined that the board's conclusions were not correct. It reasoned that, although the action of the city taken on August 26, 1970, was a unilateral one, there was no violation by the city since the union had reasonable notice of the employer's decision and a reasonable opportunity for it to have raised the issue at the bargaining table. On that basis the appeal was sustained and the award was set aside.

Because Connecticut's Labor Relations Act and Municipal Labor Relations Act are essentially patterned on the National Labor Relations Act, this court has long held that the judicial interpretation of the National Labor Relations Act is persuasive and helpful in the interpretation of the Connecticut statutes. West Hartford Education Ass'n, Inc. v. DeCourcy, 162 Conn. 566, 579, 295 A.2d 526.

The United States Supreme Court recognized that not all unilateral action taken by an employer necessarily requires a finding of a violation of § 8(a)(5) of the National Labor Relations Act since circumstances of the individual case might excuse or justify the taking of such action. National Labor Relations Board v. Katz, 369 U.S. 736, 747-48, 82 S.Ct. 1107, 8 L.Ed.2d 230. That principle was reiterated by the Circuit Court of Appeals in National Labor Relations Board v. Cone Mills Corporation, 373 F.2d 595 (4th Cir.) when it stated (pp. 599-600): "We do not think Katz leaves us free to disregard the 'record as a whole' in reviewing the question of whether or not unilateral action amounts to a refusal to bargain. See Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). . . . We think it more accurate to say that unilateral action may be sufficient, standing alone, to support a finding of refusal to bargain, but that it does not compel such a finding in disregard of the record as a whole. Usually unilateral action is an unfair labor practice but not always." That court also stated (p. 599): "It seems to us that the predominant factor is not whether the subject was 'under negotiation,' nor even whether general negotiations are then being conducted, but whether in the light of all of the circumstances there existed reasonable opportunity for the Union to have bargained on the question before unilateral action was taken by the employer. Notice is important only as it bears upon whether there actually was such opportunity. Common law conceptions of notice, including formality and specificity, are no more helpful in this area than are traditional contract notions." To determine the question of good faith the totality of the party's conduct throughout the negotiations must be considered. West Hartford Education Ass'n, Inc. v. DeCourcy, 162 Conn. 566, 591-92, 295 A.2d 526; see National Labor Relations Board v. Alva Allen Industries, Inc., 369 F.2d 310, 321 (8th Cir.); New Canaan v. Connecticut State...