Opinion
FILE No. 1419
The plaintiff state board of labor relations sought enforcement of its August, 1981, order directing the defendant town of South Windsor to negotiate with the union which the town had, in December, 1979, voluntarily recognized as the bargaining representative for certain of its employees. After recognizing the union, the town refused to negotiate with it pending the board's decision on the petition, filed by one of the employees in October, 1980, to decertify the union. The union filed a complaint with the board alleging that the town's refusal to bargain violated the statute ( 7-470 [a] [4]) which prohibits a municipal employer from refusing to bargain in good faith with a duly designated employee representative. After consolidating the union's complaint and the decertification petition, the board ordered the town to negotiate and dismissed the petition on the ground that it was premature because it had been brought less than one year after the union had been recognized. The trial court, upon determining that the board erred in dismissing the decertification petition, refused to enforce the board's bargaining order and remanded the matter with instructions to reopen the decertification hearing and to determine whether the employees wanted to be represented by the union. On the board's appeal to this court, held: 1. Although a union which has been voluntarily recognized as a bargaining representative must remain so recognized for a reasonable period to allow the union an opportunity to work toward obtaining a contract, since there was no evidence here that one year was a "reasonable period," the board acted illegally in dismissing the decertification petition filed nine months after recognition; accordingly the trial court properly denied the board's petition for enforcement of its bargaining order. 2. Because it did not appear as a matter of law that there was only one conclusion that the board could have reached, the trial court's remand exceeded the scope of its authority.
Argued March 16, 1983 —
Decided May 13, 1983
Petition for enforcement of an order of the Connecticut state board of labor relations, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford, where the court, Hale, J., denied the petition; from that judgment the plaintiff appealed. Error in part; further proceedings.
Joseph M. Celentano, with whom was J. Larry Foy, for the appellant (plaintiff).
Donald W. Strickland, with whom, on the brief, was Henry S. Cohn, for the appellee (defendant).
The Connecticut state board of labor relations (hereinafter the board) has appealed from the trial court's denial of a petition to enforce its order of August 3, 1981, directing the town of South Windsor to bargain with Council No. 4 of The American Federation of State, County and Municipal Employees (hereinafter AFSCME). The facts are not in dispute. On October 4, 1979, AFSCME filed a petition with the board pursuant to General Statutes 7-471 (1), by which it sought to become the representative of the supervisory employees of the town. Following two informal conferences with the assistant agent of the board, the acting town manager, Charles N. Enes, and the AFSCME representative, on December 5, 1979, entered into a voluntary recognition agreement which designated AFSCME as the exclusive bargaining representative of all but five supervisory town positions. Because the town and the union were unable to agree on whether to include the five additional positions in the unit, the board, on January 4, 1980, notified the parties that it would conduct a hearing on the original petition on March 10. After the hearing, the board issued its decision on July 24.
"[General Statutes (Rev. to 1981)] Sec. 7-471. POWERS OF STATE BOARD OF LABOR RELATIONS. The state board of labor relations shall have the following power and authority in relation to collective bargaining in municipal employment: "(1) Whenever, in accordance with such regulations as may be prescribed by the board, a petition has been filed (A) by an employee or group of employees or any employee organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining by an employee organization as exclusive representative, or (ii) assert that the employee organization which has been certified or is currently being recognized by their municipal employer as the bargaining representative is no longer the representative of a majority of employees in the unit; or (B) by a municipal employer alleging that one or more employee organizations have presented to him a claim to be recognized as the representative of a majority of employees in an appropriate unit, the board shall refer the petition to its agent who shall investigate the petition and issue a direction of election and conduct a secret ballot election to determine whether and by which employee organization the employees desire to be represented if he has reasonable cause to believe that a question of representation exists, or issue a recommendation to dismiss the petition if he finds that there is not such reasonable cause, or refer the petition to the board for a hearing without having conducted an election or issuing a recommendation of dismissal, in which event the board shall conduct an appropriate hearing upon due notice. The agent shall report his action to the board. The board shall issue an order confirming the agent's direction of election and certifying the results of the election, or issue an order confirming the agent's recommendation for dismissal, or order a further investigation, or provide for an appropriate hearing upon due notice. Before taking any of the aforesaid actions, the board shall provide the parties with an opportunity to file briefs on the questions at issue and shall fully consider any such briefs filed. After a hearing, the board shall order any of the aforesaid actions on the petition or shall, upon good cause, order any other suitable method to determine whether and by which employee organization the employees desire to be represented. The board shall certify the results. No election shall be directed in any bargaining unit or any subdivision thereof within which in the preceding twelve-month period a valid election has been held. No election shall be directed by the board during the term of a written collective bargaining agreement, except for good cause. In any election where none of the choices on the ballot receives a majority, a runoff shall be conducted, the ballot providing for a selection between the two choices receiving the largest and the second largest number of valid votes cast in the election. An employee organization which receives a majority of votes cast in an election confirmed or ordered by the board shall be designated by the board as exclusive representative of the employees in the unit."
The AFSCME representative, Peter Thor, had been contacted by Gregory Turek, the town building inspector, in September, 1979, and asked to speak to the town employees concerning unionization. Following that meeting, Thor sent to the employees blank "authorization cards" which designated the union as exclusive representative and authorized it to deduct dues from their pay. A majority of the town employees signed those cards and returned them to the union.
Also in attendance at the first conference on October 30, 1979, were Alan S. Young, town manager, Charles N. Enes, town clerk, and Peter Thor, AFSCME representative. The second conference, on December 5, 1979, was also attended by Thor and by Enes, who by that time had become the acting town manager. At neither time were any of the employees from the proposed unit present.
This agreement was executed in light of the fact that a majority of the town employees had signed union authorization cards thereby expressing their desire for union representation. By executing this agreement, the town waived its right to an election under 7-471 (1) "to determine whether and by which employee organization the employees desire to be represented." See NLRB v. Gissel Packing Co., 395 U.S. 575, 591, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), where the court stated: "When confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees, an employer need not grant recognition immediately, but may, unless he has knowledge independently of the cards that the union has a majority, decline the union's request and insist on an election, either by requesting the union to file an election petition or by filing such a petition himself . . . ."
The bargaining unit designated by the agreement consisted of all Supervisory employees except department heads and the executive secretaries to the town manager and to the director of public works. The parties were unable to agree on whether to include the building inspector, the tax assessor, the director of recreation, the controller and the assistant town clerks, and agreed to let the board resolve this dispute.
The board concluded that of the five positions in dispute, three (building inspector, tax assessor and director of recreation) were to be included in the unit.
By letter dated September 10, 1980, eighteen of the nineteen employees who had previously signed authorization cards communicated to the board and to AFSCME their desires to withdraw the previous authorizations. Thereafter, on October 1, one of those employees, Edward C. Moniz, filed with the board a petition for decertification of the union. On October 3, the AFSCME representative, Peter Thor, wrote the town manager requesting contract negotiation. The latter declined however, based upon the pending decertification petition. As a result of that refusal, AFSCME filed a complaint with the board pursuant to General Statutes (Rev. to 1981) 7-471 (4) alleging a violation of 7-470 (a) (4) Subsequently, a second petition for decertification was filed by Moniz on February 20, 1981.
Thor had previously submitted requests to negotiate on January 3 and on June 23, 1980. The former was delayed, however, at the request of Charles N. Enes, the acting town manager. In response to the second request, the newly appointed town manager, Richard J. Sartor, stated that it would be impossible to begin negotiations until the board had issued its decision on the inclusion in the unit of the five disputed positions.
"[General Statutes] Sec. 7-470. PROHIBITED ACTS OF EMPLOYERS AND EMPLOYEE ORGANIZATIONS. (a) Municipal 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 in accordance with the provisions of said sections as the exclusive representative of employees in an appropriate unit . . . ."
The board consolidated the original decertification petition and the union's complaint and conducted a hearing thereon on February 25, 1981, which was continued to April 21. On August 3, it issued a decision wherein it dismissed the petition for decertification as premature and ordered the town to negotiate with the union. No action was taken with respect to the February 20 decertification petition. The town filed a motion that the board reconsider its decision, but that was denied. Finally, on December 2, 1981, Moniz filed a third petition for decertification on behalf of the employees. Throughout the course of the proceedings, the town manager had refused to bargain with the union.
On May 5, 1982, the board filed a petition in the Superior Court pursuant to General Statutes 31-109 (a) to enforce its order of August 3, 1981. The court, on September 28, without a hearing or oral arguments, denied the petition for enforcement and remanded the matter to the board for an election. This appeal followed.
The issue for our determination, which is one of first impression, concerns the amount of time that must elapse before a petition for decertification may be filed when the union has been designated as unit representative by recognition agreement rather than by election.
General Statutes (Rev. to 1981) 7-471 (1) provides that "[n]o election shall be directed in any bargaining unit or any subdivision thereof within which in the preceding twelve-month period a valid election has been held." The board concluded that this language evinces the legislature's intent to afford a newly designated bargaining representative "a reasonable opportunity to make substantial headway towards obtaining a contract during a period that is free from the risk of losing its representative status because of ephemeral dissatisfaction by its members often generated by the length and the frustrations inherent in the bargaining process." The board went on to say that although the statute is silent with respect to employer-recognized unions, "[w]e have interpreted [ 7-471 (1)] as expressing a legislative policy to protect the designated union from risk of loss of its representative status during the one year period and to make this protection strong and extensive . . . . Since the legislature clearly contemplated a substantial period of similar protection for a union designated by the other method prescribed in the Act (employee recognition) we conclude that the time period deemed reasonable for an elected union would be the same for an employer-recognized union. The purpose of designation in each case is the same as is the task to be performed or attempted by the union — to obtain a contract through bargaining. It therefore held that the original decertification petition filed on October 1, 1980, was untimely since it was filed within one year of the recognition agreement of December 5, 1979. We conclude, as did the trial court, that the board's interpretation of 7-471 (1) was erroneous.
There is no Connecticut case on this particular point. It is well established, however, that since the Connecticut Municipal Employee Relations Act, like the Connecticut Labor Relations Act, is patterned after the National Labor Relations Act, as amended, "`[T]he judicial interpretation frequently accorded the federal act is of great assistance and persuasive force in the interpretation of our own acts.'" Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 354, 402 A.2d 332 (1978), quoting West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 579, 295 A.2d 526 (1972). In NLRB v. Cayuga Crushed Stone, Inc., 474 F.2d 1380 (2d Cir. 1973), the Court of Appeals for the Second Circuit had before it a similar issue. In that case, the court held that the one year rule does not apply to designations by employer recognition agreements. Rather, it concluded that "the Unions' status must be recognized for a reasonable period despite the loss of majority employee support." (Emphasis added.) Id., 1383. We believe that the rationale of Cayuga Crushed Stone, Inc., is sound and we adopt this "reasonable period" standard as the rule in Connecticut.
The court also articulated the reason for the distinction between designations by election and by authorization cards: "There is no doubt but that an election supervised by the Board which is conducted secretly and presumably after the employees have had the opportunity for thoughtful consideration, provides a more reliable basis for determining employee sentiment than an informal card designation procedure where group pressures may induce an otherwise recalcitrant employee, to go along with his fellow workers. It is further true that Justice Frankfurter in Brooks [v. NLRB, 348 U.S. 96, 99, 75 S.Ct. 176, 99 L.Ed. 125 (1954)] referred to the solemnity of the election and decertification process in approving the so-called `one year certification' rule of the Board." NLRB v. Cayuga Crushed Stone, Inc., 474 F.2d 1380, 1383 (2d Cir. 1973).
The board, in its conclusion, held that "[a] reasonable time for a recognized representative to make substantial headway towards obtaining a contract is one year from the date of recognition and we interpret the Act as prescribing such a duration for the recognition and its exclusive quality. Cf. sec. 7-471 (1)." The board contends, therefore, that even if we follow Cayuga Crushed Stone, Inc., its conclusion that one year was a reasonable period meets the standard of that case. Moreover, it argues that its finding in this regard was within its discretion and should not be disturbed on appeal. We disagree.
In order to pass judicial review, the ultimate findings of the board must be supported, as the statute requires, by substantial evidence. General Statutes 31-109 (b); Success Village Apartments, Inc. v. Local 976, 175 Conn. 165, 170, 397 A.2d 85 (1978); L. Suzio Construction Co. v. State Board of Labor Relations, 148 Conn. 135, 138, 168 A.2d 553 (1961). "`Substantial evidence is evidence that carries conviction . . . . It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . . . . It means something more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established.'" Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 365-66, 402 A.2d 332 (1978). The record in the present case is devoid of any evidence that one year was a reasonable period of time for the union to work towards obtaining a contract free from the risk of losing its representative status in this particular case. Accordingly, we hold that the trial court was correct in its conclusion that the board acted illegally in dismissing the decertification petition. Therefore, the court properly denied the board's petition for enforcement of its order.
We further hold, however, that the trial court erred in ordering "the Board to reopen the hearing on the decertification petition and direct an election by secret ballot or use any other suitable method to determine whether and by which employee organization the employees desire to be represented and certify the results thereof." The applicable provisions of General Statutes 31-109 (a) permit the trial court "to make and enter a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part, the order of the board." Only where it appears as a matter of law that there was but a single conclusion that an administrative agency could reasonably reach, may the court direct it to do or refrain from doing what the conclusion legally requires. Feinson v. Conservation Commission, 180 Conn. 421, 430, 429 A.2d 910 (1980); Thorne v. Zoning Commission, 178 Conn. 198, 206, 423 A.2d 861 (1979); Watson v. Howard, 138 Conn. 464, 470, 86 A.2d 67 (1952). In the absence of such a limited finding, the trial court, upon concluding that the action taken by the agency was illegal, arbitrary or in abuse of its discretion, should go no further than to sustain the appeal, or in this case, should only have denied the petition for enforcement of the board's order. "For the court to go further and direct what action should be taken by the administrative agency would be an impermissible judicial usurpation of the administrative functions. Guerriero v. Galasso, 144 Conn. 600, 608, 136 A.2d 497; Watson v. Howard, 138 Conn. 464, 469-70, 86 A.2d 67." Arterburn Convalescent Home v. Committee on State Payments to Hospitals, 176 Conn. 82, 86, 405 A.2d 48 (1978).
Because it does not appear as a matter of law that there is only one single conclusion that the Board could reasonably reach, a direct order to the board is legally unwarranted. Feinson v. Conservation Commission, supra.