IN THE MATTER OF .us



STATE OF CONNECTICUT

LABOR DEPARTMENT

CONNECTICUT STATE BOARD OF LABOR RELATIONS

IN THE MATTER OF

CITY OF NEW BRITAIN

DECISION NO. 4346

-AND-

OCTOBER 15, 2008

INTERNATIONAL ASSOCIATION OF

FIREFIGHTERS, LOCAL 992

Case No. MPP-26,505

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

Attorney Mary C. Pokorski

For the City

Attorney Eric Chester

For the Union

DECISION AND ORDER AND PARTIAL DISMISSAL OF COMPLAINT

On February 8, 2007 the International Association of Firefighters, Local 992 (the Union) filed a complaint with the Connecticut State Board of Labor Relations (the Labor Board) alleging that the City of New Britain (the City) had violated § 7-470 of the Municipal Employee Relations Act (MERA or the Act) by unilaterally implementing an audit system.

After the requisite preliminary steps had been taken, the matter came before the Labor Board for a formal hearing on May 5, 2008. Both parties appeared, entered into a partial stipulation of facts and exhibits, were represented and allowed to present evidence, examine and cross-examine witnesses and make argument. Both parties filed post-hearing briefs and reply briefs, the last of which was received on July 9, 2008. Based on the entire record before us, we make the following findings of fact and conclusions of law and we issue the following order.

FINDINGS OF FACT

1. The City is a municipal employer within the meaning of the Act.

2. The Union is an employee organization within the meaning of the Act and at all material times has represented a bargaining unit of uniformed and investigatory firefighters employed by the City. The Chief and Assistant Chief are excluded from the bargaining unit.

3. The City and the Union are parties to a collective bargaining agreement with effective dates of July 1, 2004 through June 30, 2008 (Ex. 3) that contains the following provisions:

ARTICLE TWO – THE RIGHTS OF THE CITY

2:1 Unless clearly limited or relinquished by a specific section of this Agreement, the rights, powers and authority held by the City and any of its departments, agencies or boards pursuant to any Charter, General or Special Statute, Ordinance, Regulation or other lawful provisions over matters involving the municipality, and the complete operational control over the policies, practices and procedures and regulations with respect to employees of the Fire Department, shall remain vested solely and exclusively in the City of New Britain.

ARTICLE THREE – UNION SECURITY

3:1 All present employees who are members of the Union upon the effective date of the Agreement shall remain members of the Union in good standing, during the life of this Agreement or extension thereof.

ARTICLE SIXTEEN – GENERAL PROVISIONS

16:12 The parties agree to continue for the period of this agreement an Employee Performance Evaluation System, provided the evaluation shall no longer affect an employee’s progression within the salary range for his position. If the City changes an existing system, it shall negotiate over the effects of such change upon the request of the Union. Such negotiations shall include mediation and Binding Arbitration, if necessary. Nothing herein shall be construed to require negotiation under Connecticut General Statute 7-474(g) or other applicable law.

4. The Deputy Fire Chief job description (Ex. 7) includes, among other listed duties, enforcing discipline among companies and personnel; ensuring the proper use and maintenance of quarters, apparatus, appliance, tools and equipment; enforcing all rules and regulations; ensuring that reports and records are accurate and maintained; assuming command at alarms; insuring that training schedules are carried out; making regular inspections of personnel, property, apparatus, tools, equipment and records of fire companies and completing performance evaluations of subordinates.

5. The Fire Lieutenant job description (Ex. 8) includes, among other listed duties, supervising inventory control, general and custodial maintenance, and operational inspections of all property, apparatus, tools and equipment under his/her control; conducting fire surveys of all types of occupancies for the purposes of detecting fire hazards or conditions dangerous to life or property, developing pre-fire plans and familiarizing fire fighters with building occupancy, design and systems; transmitting orders and information to subordinate fire fighters; enforcing rules, regulations, standard operating procedures and training standards; and maintaining comprehensive individual and company records and submitting reports regarding alarms, emergency calls, fire inspections and surveys, attendance, service – connected injuries and other matters as directed.

6. The Fire Captain job description (Ex. 9) includes, among other listed duties, directing the work of firefighters in-house duties and testing and maintaining equipment, inspecting station houses, grounds and apparatus; conducting company drills and instruction periods; periodically inspecting the area served by the company; and preparing personnel records and fire reports regarding alarms, supplies and other matters pertaining to his unit and equipment.

7. There is currently in effect an employee performance evaluation system and form. (Ex. 18). The evaluation form indicates that all employees are rated in the categories of Performance, Dependability, Bearing and Neatness, Attention to Duty, Initiative, Cooperation, Performance, Endurance, Personal Relationships and Capacity to Develop. Supervisors are also rated in the categories of Leadership, Judgment, Handling Personnel, Administrative Duties and Evaluation Ability.

8. Mark Carr (Carr) was appointed Fire Chief in 2004. After his appointment, Carr requested a consultation with the State Occupational Safety and Health Division (OSHA) for the purpose of identifying any safety and health deficiencies in the department. OSHA issued its report in January 2005 noting deficiencies in certain areas including the lack of certain written procedures, lack of clear training objectives and failure to adequately inspect certain equipment.

9. In or about June, 2005 Carr asked the Union to negotiate a new performance evaluation system because Carr is unsatisfied with the current system. In July 2005 Carr forwarded a draft performance evaluation system to the Union for review. (Exs. 12 and 18). The Union rejected the request to negotiate a new evaluation system. (Ex. 13).

10. In April 2006 Carr began to implement a program entitled Departmental Performance Audit, which required that Deputy Chiefs to review certain areas. The complete system audits the following areas: (1) Community Fire Education; (2) Home Survey and Preplanning Visits; (3) Equipment Readiness and Premises Assessment; (4) Training and Development; (5) Incident Operations; (6) Responding to Incidents; (7) Customer Care; (8) Human Resources Management; (9) Certified Fire Inspector Duties; and (10) Personnel Accountability. (Ex. 17). The audit process for the areas of Incident Operations and Responding to Incidents were not implemented at the time of the hearing in this matter. Carr gave Power Point presentations to all employees when he implemented the audit system covering the elements of the system and explaining its purpose as an information gathering tool.

11. The Union demanded bargaining concerning the new audit system but the City, after consultation with counsel, refused to bargain.

12. In or about June, 2006 Carr, the Assistant Chief and Deputy Chief conducted the first audit. (Exs. 11 and 15). The audit report concluded that there were deficiencies in Community Fire Education, Equipment Readiness and Premises Assessment, Training and Development and Personnel Accountability. In the “comments” section of the Training and Development part, the auditors wrote:

Questions to verify of training activity/process was conducted…Privates Carlone, Ciccarillo and Mera were questioned on training activities carried out by company officer as detailed in log book….

There was some challenge in determining this information also there appeared to be a lack of training follow up to ensure understanding and awareness of key training issues. Answers given by Fire-fighters exhibited an understanding of the subject areas with the exception of Private Mera who refused to answer a question on pump operations referring to obtaining written guarantees that this will not affect future driver applications.

Private Mera stated that he could not…remember ladder safety information as he no longer worked on a ladder when questioned by the Deputy Fire Chief fortunately the other fire-fighters knew this information and were able to articulate this information even though they had never worked on a ladder. Lt. O Connor mentioned that Private Mera always seemed to be off during company drills and had was [sic] not able to do anything with him for the past 4 months or so.

13. Immediately following the audit report quoted above, Carr transferred Mera to a company that Carr believed would provide more training for Mera. The Union filed a grievance regarding the transfer, claiming that the transfer was discipline because Mera refused to answer questions during the audit interview. By award dated January 11, 2007 the arbitration panel denied the grievance, finding that it was not discipline and was justified under the collective bargaining agreement because Mera had refused to answer questions. The panel further stated that, notwithstanding its conclusion, the transfer “appears to be an overreaction on the part of the Chief.” (Ex. 11).

CONCLUSIONS OF LAW

1. An employer’s unilateral change in an existing condition of employment that is a mandatory subject of bargaining during the term of an existing collective bargaining agreement will constitute a refusal to bargain in good faith and a violation of the Act, unless the employer establishes an adequate defense.

2. The City violated the Act when it unilaterally implemented Section D and Section J, Part C of the New Britain Fire Department Company Performance Audit.

DISCUSSION

In this case the Union contends that the City has unlawfully unilaterally implemented an evaluation system under the guise of the audit system. As such, the Union argues that the City has violated the Act by refusing to negotiate with the Union over the audit system.

The City argues that the audit system is merely a method to oversee established record keeping systems and, as such, is not an evaluation system that must be negotiated. The City concedes that it could not unilaterally implement an evaluation system but contends that the audit is not an evaluation system. We find that the audit system is, in part, a change in the evaluation system for employees that must be negotiated.

It is well established that an employer’s unilateral change in an existing condition of employment involving a mandatory subject of bargaining will constitute a refusal to bargain in good faith and a prohibited practice unless the employer proves an adequate defense. Waterbury Board of Education, Decision No. 4337 (2008) and cases cited therein. An adequate defense to a charge of unilateral change is if the contract between the parties permitted such an action or if the employer merely established reasonable rules designed to govern an existing policy or condition of employment. Waterbury Board of Education, supra and cases cited therein. Here, the City does not offer the contract as a defense to its actions but does argue that the audit is merely a reasonable way to monitor existing obligations.

We have long discussed the difference between promulgating new rules of conduct for employees and implementing measures designed to enforce or monitor existing rules or conditions of employment. Town of Stratford, Decision No. 1833 (1979); Town of Rocky Hill, Decision No. 2050 (1981); City of New Haven, Decision No. 2601 (1987); State of Connecticut, Department of Correction, Decision No. 3170 (1993); City of Waterbury, Decision No. 4238 (2007); Waterbury Board of Education, supra. A procedural measure that does not alter the rule or condition it is designed to enforce will not constitute a mandatory subject of bargaining. However, even if a measure is deemed to be a reasonable means to implement an existing policy or rule, the secondary impacts of such a measure may require bargaining. For example, the specific manner in which a procedure is carried out may affect conditions of employment or other issues may arise such as impacts on seniority or benefits. In such cases, the secondary effects of the procedural measure will require bargaining. Town of Stratford, Decision No. 3402 (1996).

The system at issue in this case is called an “audit” by the City, which argues that it is merely a way to keep tabs on the record keeping responsibilities of its Officers. The Union calls the system an “evaluation”, which we have found to be a mandatory subject of bargaining in prior cases. Hamden Community Child Care, Inc., Decision No. 1771 (1979); State of Connecticut, CHRO, Decision No. 3467 (1997), aff’d Local 2663, Council 4, AFSCME, AFL-CIO v. Connecticut State Board of Labor Relations, et al, Dkt. No. CV97-0568932 (2/19/98, McWeeny, J.), Town of Newtown, Decision No. 4135 (2006). We do not make determinations solely based upon the labels used by the parties in a labor dispute. It is the substance of the action that guides our decision in any matter concerning a change in a mandatory subject of bargaining. Town of East Lyme, Decision No. 3804 (2001); Waterbury Board of Education, supra. We, therefore, review each section of the system at issue to determine its use and impact.

In the first section, Community Fire Education, the audit calls for a review and tally of the records regarding numbers and percentages of fire education activities. The actual audit conducted in June 2006 (Ex.15) shows that the reviewing Officers noted their findings regarding the records, with recommendations made to improve the record keeping function in this area for a specific company. All Officers’ job descriptions specifically include duties involving adequate record keeping. No impact on any Officer was shown as a result of this process and no individual Officer was noted in the comments to this section. We find this type of procedure to be a reasonable method to monitor the existing record keeping responsibilities of the Officers in accordance with job descriptions.

Section B, Fire Fighters Home Safety Surveys and Preplanning Visits, calls for a review and tally of the records and reports regarding home safety inspections and pre-planning visits. The actual audit form shows that this overview recorded the results of the review of records. Again, no impact on any Officer was shown as a result of this process and record keeping is an integral part of the Officers’ job descriptions. We also find that this section of the audit procedure is a reasonable method to monitor record keeping job responsibilities of Officers.

Section C, Equipment Readiness and Premises Assessment, also requires review of the records kept regarding equipment and workplace safety inspections. For the reasons discussed above, we also find that this is a reasonable method to monitor record keeping job responsibilities of Officers.

On its face, Section D, Training and Development, requires only a review of the records regarding training of personnel in the fire stations. However, the comments section of the audit shows that this section was used for a very different purpose. In this regard, the reviewing Officers actually conducted an evaluation of three Privates in an individual company. While the document attempts to cast this evaluation process as an investigatory method to determine the training accomplishments of the Company, it was, in reality, an evaluation of the three Privates interviewed. This conclusion is underscored by the fact that Private Mera was immediately transferred after the interview based, in large part, on his answers to interview questions. The manner in which this section of the audit was implemented convinces us that this is really an evaluation method that is a substantial change from the agreed upon evaluation process between the parties. The City argues that because no “rating” was given, this is not an evaluation method. Again, we are not convinced by the labels placed upon the actions by the parties. Here, an individual’s performance was evaluated, impliedly rated and he was transferred as a result of that evaluation. This is a substantial change in a condition of employment and as such, this section of the audit system cannot stand.

There is little information in the record concerning Section G, Customer Care; Section H, Resources Management and Section I, Certified Fire Inspector Duties.[1] The documents offered indicate that these categories also involve record keeping inspections. Some of the documents show that the sections are “under management review” or “under management action”; there is little information upon which to draw a conclusion as to the real purpose of these sections or the impact the results will have on Officers and Firefighters. There is no information regarding the Certified Fire Inspector Duties. Therefore, taking the sections at face value, we conclude at this time that they are reasonable methods to monitor record keeping functions of the Officers and do not, at this time, constitute a change in a mandatory subject of bargaining.

Section J, Part C suffers the same fate as Section D, Training and Development. The record establishes that this section was used as an evaluation tool for the line firefighters and as such, constitutes a change in a mandatory subject of bargaining. The remaining parts of the Section appear on their face to primarily require review of record keeping functions and therefore, at this time, constitute reasonable procedural monitoring methods.

As a final note, we reiterate that the manner in which any portion of this audit system is implemented could affect whether it substantially changes a term and condition of employment or remains a reasonable managerial monitoring tool. Further, at this time there is no information upon which to conclude that there are substantial impacts of the sections we have found to be reasonable procedural devices, which would require bargaining. Again, the further implementation of this system could reveal secondary impacts not known at this time. Based on the above, we issue the following order.

ORDER

By virtue of and pursuant to the powers vested in the Connecticut State Board of Labor Relations by the Municipal Employee Relations Act, it is hereby ORDERED that the City of New Britain:

I. Cease and desist from implementing Section D and Section J, Part C of the New Britain Fire Department Company Performance Audit until such time as it has fulfilled its bargaining obligation with the Union regarding these sections.

II. Take the following affirmative action, which we find will effectuate the purposes and policies of the Act:

A. Immediately rescind Section D and Section J, Part C of the New

Britain Fire Department Company Performance Audit;

B. Immediately rescind the transfer of Private Mera;

C. Bargain immediately upon demand with the Union concerning any proposal to reinstate Section D and Section J, Part C of the New Britain Fire Department Company Performance Audit;

D. Post immediately and leave posted for a period of sixty (60) consecutive days from the date of posting, in a conspicuous place where the employees of the bargaining unit customarily assemble, a copy of this Decision and Order in its entirety.

E. Notify the Connecticut State Board of Labor Relations at its office

in the Labor Department, 38 Wolcott Hill Road, Wethersfield, Connecticut, within thirty (30) days of the receipt of this Decision and Order of the steps taken by the City of New Britain to comply herewith.

CONNECTICUT STATE BOAR OF LABOR RELATIONS

John W. Moore, Jr.

John W. Moore, Jr.

Chairman

Patricia V. Low

Patricia V. Low Board Member

Wendella A. Battey

Wendella A. Battey

Board Member

CERTIFICATION

I hereby certify that a copy of the foregoing was mailed postage prepaid this 15th day of October, 2008 to the following:

Attorney Eric Chester

Ferguson and Doyle RRR

35 Marshall Road

Rocky Hill, CT 06067

Attorney Mary C. Pokorski

City of New Britain RRR

27 West Main Street

New Britain, CT 06051

__________________________

Jaye Bailey, General Counsel

CONNECTICUT STATE BOARD OF LABOR RELATIONS

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[1] Section E, Incident Operations, and Section F, Responding to Incidents, have not yet been implemented.

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