Opinion
HHBCV156027745S
11-20-2015
Oxford Board of Education v. State Board of Labor Relations et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Carl J. Schuman, J.
Plaintiff Oxford board of education appeals from the final decision of the defendant state board of labor relations (labor board) finding that the plaintiff violated the School Board Teacher Negotiation Act; General Statutes § 10-153e; by denying a teacher's request to use sick leave voluntarily donated to the teacher by other bargaining unit members. The matter came to the labor board's attention as a result of a complaint filed by defendant Oxford Education Association (union). For the reasons that follow, the court affirms the labor board's decision.
I
After a hearing held on the union's complaint, the labor board found the following facts in its November 12, 2014 decision and order (ROR, Exhibit B (Decision and Order).) The plaintiff and the union are parties to a collective bargaining agreement (agreement). The agreement provides that each teacher shall receive fifteen days of sick leave each September and may carry over a maximum of 168 sick days from previous years. Thus each teacher may have up to 183 sick days in a given academic year. The agreement between the plaintiff and the union does not expressly provide for " leave banks" in which union members can donate sick leave to other members who have exhausted or are about to exhaust their allotted sick time.
On October 4, 2012, teacher Adrienne Brown sent an email to superintendent of schools Timothy Connellan requesting that " a sick bank be provided to me as has been done in the past for a number of Oxford teachers and which has become a regular practice . . ." On or about October 10, 2012, Brown exhausted her accumulated sick leave. In a memorandum dated October 22, 2012, Connellan denied Brown's request on the ground that " a Sick Day Bank does not exist currently in the Collective Bargaining Agreement . . . nor is there a fixed practice regarding such a paid leave 'bank' by which I can assess conditions or criteria for eligibility, duration of leave, or any terms of employment applicable to such a leave . . ." As a result, Brown was absent without pay for the remainder of the 2012-13 school year.
On December 7, 2012, the union filed a complaint with the labor board, alleging that, in denying Brown's request for a sick leave bank, the plaintiff made an illegal unilateral change to a mandatory subject of bargaining in violation of the act. The labor board found that the union had made a prima facie case establishing a unilateral change to a practice involving sick leave, which was a mandatory subject of bargaining, and that the plaintiff had not rebutted the union's case or asserted any other defenses. The labor board also found that the practice with regard to donated sick leave was clearly enunciated and consistent over a reasonable period of time, and was accepted by both parties. As a remedy, the labor board ordered that the plaintiff cease and desist from denying bargaining unit members access to donated sick days, that it pay Brown the equivalent of 32.3 sick days at her rate of pay as of October 2012, and that it post a copy of the labor board's decision in a conspicuous place for sixty days. (Decision and Order, pp. 9-13.)
The union also alleged that the plaintiff violated the act when it prohibited Brown from using her own accumulated personal leave to extend her illness-related absence. The board found no violation. The union has not appealed that ruling. (Decision and Order, p. 9.)
The plaintiff appealed to this court. The plaintiff then filed a motion to present additional evidence to the labor board, which the court granted (#116.01.) On remand, the labor board found that the additional evidence, which consisted of sick leave bank provisions found in teacher contracts elsewhere in the state, did not change its position. The labor board stated: " Based on the entire record before us, we find that the parties in Oxford, through their conduct over a period of at least eight years, established a sufficiently fixed and definite sick leave bank practice notwithstanding that such practice differs in some respects from contractual sick leave bank policies in other school districts." (ROR, Exhibit I (Supplemental Decision and Order), p. 12.)
The plaintiff now challenges the labor board's decision on the merits.
II
Under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., judicial review of an agency decision is " very restricted." (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001). Section 4-183(j) of the General Statutes provides as follows: " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
Stated differently, " [r]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither [the appellate] court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Okeke v. Commissioner of Public Health, 304 Conn. 317, 324, 39 A.3d 1095 (2012). " It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
III
General Statutes § 10-153e(b)(4), which is part of the School Board Teacher Negotiations Act (act), provides that " [t]he local or regional board of education or its representatives or agents are prohibited from . . . (4) refusing to negotiate in good faith with the employees' bargaining agent or representative which has been designated or elected as the exclusive representative in an appropriate unit . . ." Our Supreme Court has recognized that " a unilateral change to an employment condition constitutes an unlawful refusal to negotiate under the statute . . . To establish a unilateral change of a condition of employment, the union must establish that the employment practice was 'clearly enunciated and consistent, [that it] endure[d] over a reasonable length of time, and [that it was] an accepted practice by both parties.'" (Citations omitted.) Bd. of Educ. of Region 16 v. Board of Labor Relations, 299 Conn. 63, 72-74, 7 A.3d 371 (2010). " [T]he burden is on the union as complainant to prove that there has in fact been a practice and that it has in fact been changed." (Citation omitted.) Id., 75.
As stated, the Oxford schools' collective bargaining agreement does not provide for sick leave banks. Nonetheless, the parties do not dispute that, under the labor board's decisions, a union may establish a condition of employment not only by reference to conditions stated in a collective bargaining agreement but also by past practice. The dispute here centers on whether the past record of use of sick leave banks in the Oxford schools suffices to create a binding past practice or condition of employment.
The labor board relied principally on evidence that, between 2002 and 2012, six teachers who had exhausted or were about to exhaust their accumulated sick leave utilized sick leave donated to them by their colleagues with the knowledge or assistance of the superintendent of schools in office at the time. Two of these teachers, Karen Giannamore and Greg Champagne, received donated sick leave on two separate occasions. Thus, the total number of uses over this ten-year period was eight. (Decision and Order, pp. 3-6, 10.)
Union members created an additional sick day bank for Colleen Longo in 2008, but she did not use it. (Decision and Order, p. 4.)
The labor board's subsidiary findings on the factors recited above; see Board of Education v. Board of Labor Relations, supra, 299 Conn. 72-74; that define a binding past practice or condition of employment were reasonable and supported by substantial evidence. To begin with, the board could reasonably have found that the practice was clearly enunciated and consistent. Although there was no formal posting or description of the donated sick leave policy, the labor board essentially found that a process existed. The labor board observed that, for a period of at least eight years, members who needed additional sick leave could advise the union of their need and the union would then " request donations from bargaining unit members on behalf of the afflicted employee . . ." The member would then use any donated sick days after exhausting his or her own accumulated sick and personal leave. Any unused donated sick days would be returned to the donors. Until Brown's 2012 request to use donated sick leave, no superintendent had ever denied a request for a sick leave bank. (Decision and Order, p. 10.)
This practice prevailed over a period of approximately ten years from the 2002-03 school year, when Giannamore utilized donated sick leave, until October 2012, when Connellan denied Brown's request on the ground that a sick leave bank did not exist. Such a time period satisfies the requirement that the practice endure " over a reasonable length of time . . ." See Board of Education v. Board of Labor Relations, supra, 299 Conn. 75-78 (labor board should have relied on employment practice in place for a number of years rather than on a practice in place for only a matter of weeks).
The third factor is whether the practice in question was accepted by both parties or whether, instead, it was discretionary with management. While it is true that during this time period nine teachers took unpaid leaves of absence without accessing donated sick days, the plaintiff did not show that any of these individuals ever requested the use of donated time. Until Brown's request, not a single request for the use of donated sick leave time was denied by the plaintiff. The plaintiff's secretary, Olga Terwilliger, performed all of the accounting associated with the sick leave banks, so that a record was kept, and insured the return of any unused sick leave to the donors. (Decision and Order, pp. 10-11.) Judith Palmer, who was the plaintiff's superintendent from 2002 to 2010, sent thank you notes to teachers who donated sick leave time and Terwilliger continued the practice after Palmer left. (Decision and Order, pp. 3, 10.) Thus, it is fair to say that both the plaintiff and the union accepted the practice of a donated sick leave bank.
Although the union bore the burden of establishing a prima facie case; Board of Education v. Board of Labor Relations, supra, 299 Conn. 75; evidence that union members had applied for but not received donated sick leave would have been in the nature of a defense that the plaintiff would have had to produce. The plaintiff did not do so. The plaintiff also did not establish the reasons why these teachers apparently did not make a request. The record does reveal that some of these unpaid absences were for maternity leave, which apparently is not a basis for using sick leave. Further, one teacher, Michelle DeSousa, received " childrearing leave" for much of the school year that she missed due to a medical condition related to birth of her child. (Decision and Order, pp. 4-6; ROR, pp. 49-50.)
The plaintiff relies on several factors that do not ultimately undermine the reasonableness of the labor board's conclusion. Thus, the fact that several past superintendents testified at the hearing that a sick bank practice did not exist or that it was discretionary in nature is not dispositive because an agency has a " right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part." Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989). The board could reasonably have credited Brown's contrary testimony that members would not seek the permission of the superintendent but rather would simply inform him or her of the need for a sick bank in a particular case. (Decision and Order, p. 11.) While it is also true, as the plaintiff also points out, that there was a lack of written evidence of the precise features of the sick bank policy, the level of detail required to label a particular trend as a " condition of employment" is a judgment call for the labor board, and the court cannot substitute its judgment for the board or retry the case. See Okeke v. Commissioner of Public Health, supra, 304 Conn. 324. Finally, the fact that, compared to other towns, the sick leave plan outlined by the union and credited by the labor board may make it the most generous sick leave plan in the state does not negate its existence as an established practice. As the board noted after the remand, the evidence " established a sufficiently fixed and definite sick leave bank practice notwithstanding that such practice differs in some respects from contractual sick leave bank policies in other school districts." (ROR, Exhibit I (Supplemental Decision and Order), p. 12.)
The plaintiff analogizes the concept of an established past practice in labor law to the legal concepts of adverse possession or common-law marriage. But neither adverse possession nor common-law marriage is a matter normally determined by an administrative agency. Further, the guidelines for adverse possession are rather precise, requiring, among other things, that the owner shall be " ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by open, visible and exclusive possession of the claimant without license or consent of the owner." (Internal quotation marks omitted.) Castro v. Mortgage Lenders Network USA, Inc., 158 Conn.App. 371, 376, 119 A.3d 639 (2015). For an established past labor practice, in contrast, the case law guidelines are more general; see Board of Education v. Board of Labor Relations, supra, 299 Conn. 73; and the court must grant deference to the judgment of an agency with expertise in the matter.
The plaintiff's other argument is that the labor board made a " hasty generalization" from a very small sample that a sick leave bank existed for all teachers. To be sure, the court could find that the rather limited number of teachers who sought and obtained donated sick leave does not justify the conclusion that this approach qualified as a district-wide employment practice or a fixed condition of employment. Ultimately, however, " the question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the action taken." (Internal quotation marks omitted.) Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 99 n.3, 671 A.2d 349 (1996). As discussed, there is substantial evidence to support the labor board's findings and its conclusion is a reasonable one.
V
The court affirms the labor board's decision and dismisses the appeal. It is so ordered.