Relations Act (MERA)
(CONN. GEN. STAT. § 7-467,
Municipal Employee Relations Act was enacted in 1965 and covers employees of
local government with the exception of certified teachers and administrators.
MERA governs the collective bargaining relationship between municipal employers
and employee organizations representing municipal employees. It prohibits
certain practices by employers and employee organizations. It provides
procedures for filing, investigation and adjudication of election petitions and
prohibited practice complaints. MERA prohibits strikes. Originally,
MERA provided for mediation and advisory fact-finding to resolve impasses in
collective bargaining. In 1975, the legislature amended the statute to
provide for compulsory mediation and arbitration of unresolved issues.
1. Unilateral Change
A fundamental principle of collective bargaining law is
that before an employer may make changes in conditions of employment, it must
first bargain with the union representing its employees. A unilateral
change in a condition of employment that affects a mandatory subject of
bargaining is considered to be an unlawful refusal to bargain.
Some of these cases focus on the question of whether an
employer's decision affects wages, hours and other conditions of employment and
is, thus, a mandatory subject of bargaining.
In contrast, the concept of managerial prerogative does
not require an employer to bargain about decisions which "lie at the core of
entrepreneurial control" even though the decision may have an indirect effect on
wages, hours and other conditions of employment. The tension between these
two concepts is heightened in the public sector where state statutes and local
charter provisions vest various public bodies with broad powers to control
departments under their jurisdiction.
Several recent decisions involving allegations of
unlawful unilateral change are City of Bristol, Decision No. 3734 (1999); East
Hartford Housing Authority, Decision No. 3733 (1999); City of Hartford,
Decision No. 3716 (1999); Norwalk Third Taxing District, Decision No. 3695
Much of the litigation that falls under the unilateral
change doctrine concerns the issue of subcontracting bargaining unit work.
Cases under this heading not only encompass situations where the employer
decides to subcontract the work to a private company, but also involve
situations where the employer reassigns the work to other non-bargaining unit
employees. The decision to subcontract or transfer bargaining unit work to
non-bargaining unit employees has historically been considered a mandatory
subject of bargaining. In City of New Britain, Decision No. 3290 (1995),
the Board reviewed all of its major decisions on the subject and applied a new
method of analysis. In order for a union to make out a prima facie
case, it must establish that: (1) the work in question is bargaining
unit work; (2) the subcontracting/transfer of the work varies
significantly from what was customary under past established practice; and (3)
there is a demonstrable adverse impact upon the unit. If the Union
establishes the above, the employer will be able to present defenses which
include: (1) a contract clause permitting the subcontracting; (2) the
subcontracting is de minimis; and (3) an emergency exists. Finally,
the Board recognized that, although this analysis is based largely on private
sector labor law precedent, there are differences in the public sector that may
dictate a different result. Therefore, the Labor Board indicated
that it will consider public policy arguments raised by either party.
The subcontracting decisions issued by the Labor Board
concerning MERA relying on City of New Britain, Decision No. 3290 (1995) are:
Groton Board of Education, Decision No. 3466 (1997); City of Torrington,
Decision No. 3663 (1999); Town of Windsor, Decision No. 3671 (1999); East Haven
Board of Education, Decision No. 3698 (1999); City of Waterbury, Decision No.
3711 (1999); and City of Bridgeport, Decision No. 3720 (1999).
3. Duty to Supply
The duty to bargain in good faith extends to all labor
management relations during the term of an agreement. An important aspect
of this duty is the duty to furnish information. The obligation to bargain
in good faith includes the obligation of both labor and management to provide
relevant information that is necessary and relevant to the collective bargaining
relationship. Wage or related economic information is presumptively
relevant. In circumstances where a party claims information to be
confidential, the Labor Board will apply a balancing approach which is adopted
from the National Labor Relations Board case law.
Several decisions issued pursuant to MERA concerning the
duty to provide information are: City of Bridgeport, Decision No.
3127 (1993)(applied the balancing test set forth in Pennsylvania Power and
Light, 301 NLRB 138 (1991) concerning allegedly confidential information); Town
of Stonington, Decision No. 3146 (1993)(Union's duty to provide information to
employer); Town of West Hartford, Decision No. 3525 (1997); City of
Waterbury, Decision No. 3566 (1998).
4. Discrimination for
It is a prohibited practice for an employer to take
adverse action against an employee as a method of retaliation for engaging in
protected concerted activities. Thus, an employer may not discriminate
against an employee for joining a union, engaging in an organizational campaign,
filing grievances or other protected concerted activity.
In order for certain conduct to be protected, it must be
concerted in form and purpose and must be for the mutual aid and protection of
the employees or bargaining unit involved.
Recent cases concerning discrimination are: Town of
Wallingford, Decision No. 3662 (1999); Town of Groton, Decision No. 3623 (1998);
Town of East Haddam, Decision No. 3619 (1998); Town of Bloomfield, Decision No.
5. Duty of Fair
A union has a duty to fairly represent its members
throughout its collective bargaining activities. This duty is expressed
affirmatively in §7-467 of MERA. It is a prohibited practice for a union
to fail in its duty of fair representation. Under MERA individual employees may
file complaints alleging that the union has failed in this duty.
The Labor Board's standard for evaluating duty of fair
representation allegations is based on the United States Supreme Court decision
in Vaca v. Sipes, 386 U.S. 171 (1967 ) in which the Court stated that a breach
of the duty of fair representation occurs only when a union's conduct toward a
member of the collective bargaining unit is arbitrary, discriminatory or in bad
faith. The duty of fair representation standard has been discussed
in recent cases in Norwalk Board of Education and Local 1042, Decision No. 3586
(1998), aff'd Local 1042, AFSCME, Council 4, AFL-CIO v. Connecticut State Board
of Labor Relations, Dkt No. CV 99 0493379s (June 1, 1999, McWeeny, J.); Rudolph
D'Ambrosio, Decision No. 3611 (1998); Waterbury Firefighters Association, Local
1339 v. State Board of Labor Relations, Dkt. No. CV 970570953 (May 6, 1998)
reversing City of Waterbury, Decision No. 3496 (1997).
6. Contract Repudiation
Although the mere breach of a collective bargaining
agreement is not a prohibited practice, a repudiation of the contract may
constitute a refusal to bargain in good faith. The repudiation
doctrine is premised upon the principle that the duty to bargain in good faith
is not limited to the negotiation of a collective bargaining agreement, but
extends to the obligation to carry out the terms of a contract in good faith.
The Board has found three ways in which contract repudiation is found. The
first is where the respondent party has taken an action based upon an
interpretation which is asserted in subjective bad faith. The second is
where the responding party has taken an action based upon an interpretation of
the contract which is wholly frivolous and implausible. The third type of
repudiation is found where the respondent either admits or does not challenge
the complainant's interpretation of the contract, but seeks to defend its action
on some collateral ground which does not rest upon an interpretation of the
contract, e.g., financial hardship.
The repudiation doctrine was discussed recently by the
Board in City of Bridgeport, Decision No. 3667 (1999); Town of Wolcott, Decision
No. 3640 (1998); City of Hartford, Decision No. 3595 (1998); Town of Killingly,
Decision No. 3526 (1997); New Haven Board of Education, Decision No. 3356
(1996), aff'd AFSCME, Council 4, Local 287 v. State Board of Labor Relations, 49
Conn. App. 513 (1998).