Shelton v. State Board of Labor Relations

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APPENDIX
CITY OF SHELTON v. CONNECTICUT STATEBOARD
OF LABOR RELATIONS ET AL.*
Superior Court, Judicial District of New Britain,
Administrative Appeals Session
File No. CV-XX-XXXXXXX-S

Memorandum filed September 10, 2020

Proceedings

Memorandum of decision on plaintiff’s appeal from
decision by named defendant finding violation of Munic-
ipal Employees Relations Act. Judgment for plaintiff.
Mark J. Sommaruga, for the plaintiff.
Harry B. Elliott, Jr., general counsel, for the defen-
dant State Board of Labor Relations.
Barbara J. Resnick, for the defendant Shelton Police
Union, Inc.
Opinion

CORDANI, J.
INTRODUCTION
The City of Shelton (city) appeals a final decision of
the Connecticut State Board of Labor Relations (board)
finding that the city violated the Municipal Employees
Relations Act, General Statutes § 7-467 et seq. (MERA),
by changing its process for evaluating candidates for
promotion within the city’s workforce without negotia-
tion with the Shelton Police Union (union).
FACTS AND PROCEDURAL HISTORY
At all times relevant to this appeal, the city and the
union had a long-standing collective bargaining rela-
tionship and had been parties to a collective bargaining
agreement, the most recent version of which became
effective on July 1, 2016 (CBA). The CBA § 17.01 pro-
vides:
‘‘Promotions will be made in accordance with the
provisions of the Merit System of the City of Shelton.
Promotional opportunities will be posted with sufficient
time to prepare for the examination and a list of study
materials will be provided. Challenges to the promo-
tional testing results shall be in accordance with Section
29.03A.’’1 (Emphasis added.)
The merit system of the city is defined by city ordi-
nance.2 Prior to February 9, 2018,3 the merit system of
the city was provided for in Ordinance 896.4 Ordinance
896 provided in pertinent part:
‘‘All appointments to positions within the classified
service of the City of Shelton shall be made as provided
herein. Examination and testing shall be established
in accordance with the job description by the [A]dmin-
istrative [A]ssistant who shall first determine whether
an examination shall be open competitive or promo-
tional. . . .
‘‘The examination process shall be of a practical
nature and shall relate to subjects which fairly measure
the relative capabilities of the person examined to exe-
cute the duties and responsibilities of the position
sought. The [A]dministrative [A]ssistant may adopt
or authorize the use of any procedures as deemed
appropriate to assure a selection of employees on the
basis of merit and qualifications. . . .
‘‘Examinations for positions within the classified ser-
vice shall be competitive and may include written, prac-
tical and oral interview test components. All applicants
meeting the prescribed requirements shall be allowed
to participate in the initial test component and shall be
notified, in writing, of the time, place and date of the
initial test.’’ (Emphasis added.) Shelton Code of Ordi-
nances, c. 2, Art. VI, § 2-312 (a), (b), and (e).
On February 9, 2018, the city adopted a new ordi-
nance (2018 Ordinance)5 concerning the merit system
with the goal of enhancing promotion from within the
city’s ranks, which new ordinance provided in perti-
nent part:
‘‘Upon the recommendation of the Department Head
that there are qualified employees presently employed
by the City, including both full time and part time
employees, who are qualified to perform the job that
is opened, the Administrative Assistant may, in his
sole discretion, limit the applications to City employ-
ees and proceed with only a promotional examina-
tion.’’ (Emphasis added.) Shelton Code of Ordinances,
c. 2, art. VI, § 2-301 (7.1.1).
It is the adoption and implementation of this 2018
Ordinance that the union challenged. The board factu-
ally found that ‘‘since on or before October, 1981, to
February, 2018, the promotional process for bargaining
unit members entailed participation by qualified candi-
dates in written and oral examinations, each having a
relative weight of fifty percent (50%) in determining
each candidate’s final score.’’ (Footnote omitted.)
In April of 2018, it was determined that there was
a need for additional lieutenants in the city’s police
department. In accordance with the 2018 Ordinance,
the department head, [the] chief of police, notified the
administrative assistant that several employees within
the city’s police department were qualified for the new
positions. The administrative assistant then engaged
the internal promotion process provided for in the 2018
Ordinance. Five internal candidates applied for the
three available positions. All of the candidates who
applied were subjected to oral examination, determined
to be qualified and ranked. All five were placed on a
certified list of eligible candidates. The police chief
then selected three candidates from the list. No written
examination was given in the process.
The union claimed that the adoption of the 2018 Ordi-
nance and its implementation in the promotion of the
three police lieutenants amounted to a unilateral change
in the material conditions of employment by the city
without the mandatory negotiation with the union. In
particular, the union claimed that conducting the pro-
motional process without a written examination was an
improper unilateral change made without negotiation
with the union. The city admits that it did not negotiate
with the union over the adoption of the 2018 Ordinance
or its implementation in the promotion of the lieuten-
ants without a written examination. The union then
filed a complaint with the board.
The matter was heard before the board on July 19,
2019. Testimony was taken and evidence entered into
the record. On March 10, 2020, the board issued its final
decision which concluded that the city violated MERA
by unilaterally changing the promotion process to elimi-
nate the written examination portion of the process,
thereby changing the mandatory equal weighting
between written and oral exams. The city then appealed
the board’s final decision to this court.
The city is aggrieved because it has exhausted its
administrative remedies and appeals a final adverse
decision of the board finding that the city violated
MERA and compelling the city to change its promo-
tional process.
STANDARD OF REVIEW
This appeal is brought pursuant to the Uniform
Administrative Procedure Act (UAPA), General Stat-
utes § 4-183.6 Judicial review of an administrative deci-
sion in an appeal under the UAPA is limited. Murphy
v. Commissioner of Motor Vehicles, 254 Conn. 333, 343,
757 A.2d 561 (2000). ‘‘[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 Supreme 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 evi-
dence, whether the agency, in issuing its order, acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion.’’ (Internal quotation marks omitted.) Id.
Although the courts ordinarily afford deference to the
construction of a statute applied by the administrative
agency empowered by law to carry out the statute’s
purposes, ‘‘[c]ases that present pure questions of law
. . . invoke a broader standard of review than is . . .
involved in deciding whether, in light of the evidence,
the agency has acted unreasonably, arbitrarily, illegally
or in abuse of its discretion.’’ (Internal quotation marks
omitted.) Dept. of Public Safety v. Freedom of Informa-
tion Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010).
ANALYSIS
The board’s final decision finds that the city violated
MERA by removing the written examination from the
promotional process without negotiation with the
union. Specifically the board found that the fact that
the promotional process contained a mandatory written
examination7 weighted at 50 percent of the candidate’s
overall score was a material term and condition of
employment and could not be changed without negotia-
tion with the union. Based upon the foregoing violation,
the board ordered various remedies.
Pursuant to General Statutes § 7-474 (g), the merit
system, once established, is not subject to mandatory
negotiation, except for three particular topics specified
in the statute, which statute provides in pertinent part:
‘‘The conduct and the grading of merit examinations,
the rating of candidates and the establishment of lists
from such examinations and the initial appointments
from such lists and any provision of any municipal
charter concerning political activity of municipal
employees shall not be subject to collective bargaining,
provided once the procedures for the promotional pro-
cess have been established by the municipality, any
changes to the process proposed by the municipality
concerning the following issues shall be subject to col-
lective bargaining: (1) The necessary qualifications for
taking a promotional examination; (2) the relative
weight to be attached to each method of examination;
and (3) the use and determination of monitors for writ-
ten, oral and performance examinations. . . .’’
Here the board found that the administration of a
written examination was required by the merit system,
and therefore by conducting the promotional process
without a written examination, the city changed the
relative weight to be attached to each method of exami-
nation without negotiation. However, as found by the
court below, the city’s merit system did not require a
written examination, and accordingly, the city’s choice
to act in accordance with its merit system and not
employ a written examination was not a change in the
relative weight to be attached to each method of exami-
nation. Thus the exception in § 7-474 (g) was not
engaged and no negotiation was required.
The court begins its analysis by examining what the
CBA provided for concerning the city’s merit system
promotional process. The CBA § 17.01 provides: ‘‘Pro-
motions will be made in accordance with the provisions
of the Merit System of the City of Shelton.’’8 The forego-
ing provision is subject to only two possible interpreta-
tions. First, the provision could mean that promotions
will be made in accordance with the city’s merit system
as it existed at the time that the CBA was entered into,
namely, July 1, 2016. In the alternative, the provision
could mean that promotions will be made in accordance
with the city’s merit system as that system is amended
from time to time.9 The interpretation of contract lan-
guage is a question of law for the court to resolve. See
Thompson & Peck, Inc. v. Harbor Marine Contracting
Corp., 203 Conn. 123, 131, 523 A.2d 1266 (1987).
If the provision has the first meaning, namely, that
the merit system authorized by the CBA is that system
in effect on July 1, 2016, when the CBA was signed,
then that merit system was reflected in Ordinance 896
which was publically adopted several months before
the CBA was signed, and which provided that (i) the
examination could be open competitive or promotional,
(ii) the administrative assistant may adopt or autho-
rize the use of any procedures as deemed appropriate
to assure a selection of employees on the basis of merit
and qualifications, and (iii) that examinations may
include written components. Thus, the city’s merit sys-
tem as it existed on July 1, 2016, did not absolutely
require a written examination because the ordinance
gave the administrative assistant power to adopt any
procedures deemed appropriate and because the ordi-
nance indicated that the process may contain a written
component. A 1977 Ordinance provided: ‘‘Effective
immediately any written and oral examinations speci-
fied in the requirement sections of all ordinances deal-
ing with job descriptions will be weighed equally, 50%
written and 50% oral.’’10 (Emphasis added.) Shelton,
Conn., Code of Ordinances, adopted March 14, 1977.
This clearly meant that if the process included written
and oral examinations, the two exams would be
weighted equally. Accordingly, it is clear that the merit
system that existed on July 1, 2016, did not absolutely
require a written examination, but instead only required
that if the process contained both oral and written com-
ponents, they would be weighted equally. The adminis-
trative assistant was provided with the discretion to
choose the appropriate procedure.
If the CBA provision authorizes any merit system that
the city maintains as amended from time to time, then
the merit system relevant to this case was as described
in the 2018 Ordinance, and that merit system did not
require a written exam. Similar to Ordinance 896, the
2018 Ordinance provided the administrative assistant
with discretion to determine the proper procedure.
Thus, in either case the CBA authorizes the use of a
merit system which allows for but does not require
a written examination and allows the administrative
assistant to choose the appropriate procedure.11
The board factually found that, in practice, from Octo-
ber, 1981, through February, 2018, the city’s merit sys-
tem was actually conducted in such a manner that it
included a written examination weighted at 50 percent.
Such a long established practice of an important aspect
of employment could amount to a material term and
condition of employment and the board found that it
did. A material term and condition of employment gen-
erally cannot be altered without negotiation with the
union. Further, the board found that the weighting of
the written and oral examinations at 50 percent each
was a condition that required negotiation to change
under . . . § 7-474 (g).12 Thus, the board found that
the provision of a written examination weighted at 50
percent within the merit system could not be changed
without negotiation with the union. However, § 7-474
(g) only required negotiation if a change was made to
the relative weight to be applied. Here no change was
made because the merit system allowed a process with-
out a written examination. Further, if the CBA covers
this term and condition of employment, then the city
and the union have already negotiated over the matter
and arrived at a result that is memorialized in the CBA.
A failure to negotiate over a term of employment cannot
be found where an express agreement between the
parties that covers that term of employment is found
in a collective bargaining agreement such as the CBA
here. An employer does not have a duty to bargain over
a term of employment that is covered by a provision
of a collective bargaining agreement. See Board of Edu-
cation v. State Board of Labor Relations, 299 Conn. 63,
74, 7 A.3d 371 (2010); see also Norwich v. Norwich Fire
Fighters, 173 Conn. 210, 215–16, 377 A.2d 290 (1977).
Collective bargaining agreements are the cornerstone
of the relationship between the employer and labor.
Collective bargaining agreements memorialize the bar-
gaining that has occurred between the parties and estab-
lish each party’s rights and obligations concerning the
topics covered by the collective bargaining agreement.
Thus, it is clear that the parties have the right and the
obligation to conduct themselves in accordance with
the terms of the collective bargaining agreement.
Clearly the CBA covers this matter. The CBA requires
that promotions be made by the city in accordance with
the city’s merit system. As noted [previously], the merit
system authorized by the CBA does, and did, not require
a written examination within the process. Although the
board factually found that, since 1981, the city utilized
written examinations, on July 1, 2016, the union and
the city negotiated and agreed that the merit system
would be that system described in the city’s ordi-
nances.13 Thus the union has had its negotiation con-
cerning this term of employment and came to an agree-
ment reflected in the CBA, and that agreement does
not require a written examination.
The board found the city’s reliance on the ordinances
misplaced. The court respectfully disagrees. The CBA
required the city to use its merit system. The merit
system was defined by the ordinances. Thus the CBA,
and therefore the union, agreed that the city should use
its merit system as defined in the ordinances.
The board found that § 17.01 of the CBA must be
read as a whole, and should be read consistent with
§ 29.03A. That may be so, but a corresponding reading
does not change the court’s interpretation of the CBA.
Section 29.03A of the CBA refers to a written memoran-
dum of understanding that is attached to the CBA. The
memorandum of understanding establishes procedures
to be followed to allow candidates to challenge results
on written tests given for promotional purposes. Thus
the memorandum of understanding allows for individ-
ual challenges to scores on written examinations, if
such written examinations are administered. The mem-
orandum of understanding does not change the meaning
of the CBA and does not require the administration of
written examinations. Section 29.03[A] is not meaning-
less, it merely provides procedures that may be used
in applicable circumstances.
The past practice of the city in using written examina-
tions is entirely consistent with the CBA and the ordi-
nances. Both the CBA and the ordinances allow for
written examinations but do not require them. Reading
the CBA as the union and the board do, results in a
meaning that invalidates or undermines the plain mean-
ing of the ordinances which were in existence when
the CBA was signed. Since the CBA clearly uses the
ordinances to define the merit system,14 a reasonable
reading of the CBA must be consistent with and not
undermine the ordinances. Further, reading the CBA
to allow but not require written examinations produces
an interpretation that is consistent with the plain words
of the CBA, including the attached memorandum of
understanding, past practice, and the ordinances.
The union in this instance has not waived its right
to negotiation,15 it has had its negotiation when it agreed
to the CBA, and the CBA does not mandate written
examinations be part of the merit system. Accordingly,
in passing the 2018 Ordinance, and in implementing the
2018 Ordinance in the promotion of the lieutenants, the
city has not deprived the union of negotiation concern-
ing this topic and has not violated MERA.16
Accordingly, the court determines that the plaintiff
has established on appeal that the final decision of the
board is (1) affected by error of law, and (2) clearly
erroneous in view of the reliable, probative, and sub-
stantial evidence on the whole record. The court there-
fore respectfully sustains the appeal.
ORDER
The appeal is sustained. Judgment enters for the
plaintiff. The city of Shelton has not, on the record
before the court, violated MERA. Accordingly, the judg-
ment and orders of the board are vacated.
* Affirmed. 210 Conn. App. 390, A.3d (2022).
1
Section 29.03A refers to a September 18, 2003 memorandum of under-
standing which is attached to the CBA and provides procedures to be fol-
lowed to allow candidates to challenge results on written tests given for
promotional purposes.
2
Although the CBA uses ‘‘Merit System’’ in capital letters, it does not
define the term. The only place in the record where the merit system is
defined in written documents is in the city ordinances. The city ordinances,
in particular Ordinance 896, provide a definition of the merit system,
explaining in detail how the system is applied and how it operates. See
Record Exhibit 17, pages 248–66 for Ordinance 896 entitled ‘‘Merit System
and Personnel Rules.’’ See also Record page 296 for a history of amendments
to these merit system ordinances from 1985 through 2016. As required, these
ordinances are adopted through the normal legislative process of the city
which process is open to the public.
3
The foregoing Ordinance is entitled ‘‘Merit System and Personnel Rules’’
and is found in the Record at Exhibit 17, pages 248–66. The city’s ordinances
concerning the merit system have been amended by the city on a multitude
of occasions over the years, but the details of the changes are not specifically
reflected in the record. See Record page 296 for a history of amendments
to these merit system ordinances from 1985 through 2016.
4
A 1977 ordinance provided: ‘‘Effective immediately any written and oral
examinations specified in the requirement sections of all ordinances dealing
with job descriptions will be weighed equally, 50% written and 50% oral.’’
(Emphasis added.) Shelton, Conn., Code of Ordinances.
5
See Record Exhibit 18, pages 267–352. Again, this ordinance, which
amends the previous merit system ordinances, defines the merit system and
provides significant details concerning the applicability and operation of
the merit system.
6
General Statutes § 4-183 (j) provides in relevant part: ‘‘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, con-
clusions, 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. If the court finds
such prejudice, it shall sustain the appeal and, if appropriate, may render
a judgment under subsection (k) of this section or remand the case for
further proceedings. . . .’’
7
The board’s decision thus depends upon its finding that the city’s merit
system absolutely required a written examination, and therefore proceeding
without a written examination changed the relative weight to be attached
to each method of examination.
8
The CBA further provides for a process of challenging the test results,
however it is clear that this challenge process is directed to case-by–case
challenges of individual candidates. Thus, if a particular candidate believes
that there was a mistake in scoring, that candidate may challenge the particu-
lar score(s) through the specified challenge process. Thus, this challenge
process adds nothing to the analysis of the issues before us.
9
The board factually found that the merit system had been amended by
the city on a multitude of occasions over the years, but that the record does
not reflect the details of all changes to the merit system by city ordinances.
10
Thus, this 1977 ordinance refers to ‘‘any written and oral examinations’’
‘‘specified in the requirement sections of all ordinances.’’ (Emphasis added.)
Clearly this ordinance does not specify that a written examination is required.
Instead, it indicates that, if a written examination is administered, it will be
weighted equally with the oral examination.
11
Given the multitude of changes to the merit system over the years made
by city ordinances, the court finds that the meaning of this CBA provision
is that the city is authorized and required to use the city’s merit system as
that system is defined and modified by city ordinance from time to time,
with the potential exception for negotiation required by § 7-474 (g) if changes
are made that fit within the statutory exceptions. However, since no change
was made to the relative weighting of examinations, no negotiation was
required here. The court notes that the CBA defers to the city ordinances
to define the merit system and does not prohibit the city from changing the
merit system. This also makes sense since the merit system is used citywide
across many unions and collective bargaining agreements. Further the vari-
ous union’s interests here are to ensure that promotions are provided in an
evenhanded, fair and rational way. This interpretation is also consistent
with § 7-474 (g), which exempts the merit based promotional process from
mandatory negotiation except for the specific topics specified in the statute.
However, regardless of which interpretation of this CBA provision is applied,
the provision does not require the use of written examinations, thus no
change was made in that regard.
12
General Statutes § 7-474 (g) provides, inter alia, that the merit based
promotional process is exempt from mandatory negotiation with a union
except that changing the relative weight to be attached to methods of
examination shall be subject to negotiation.
13
As noted [previously], regardless of the interpretation of this provision,
the merit system as described by the ordinances did not require a written
examination, whether we look to Ordinance 896, which was in effect when
the CBA was signed, or the 2018 ordinance. Neither ordinance required a
written examination.
14
The CBA does not itself explicitly define or describe the city’s merit
system in any detail. The city defined its merit system through city ordi-
nances.
15
However, even if we look at waiver, the union signed the CBA referencing
the city’s merit system while knowing that Ordinance 896 had been enacted
months before defining and explaining the city’s merit system as a system
that ‘‘may’’ include, but does not require, a written examination, and authoriz-
ing the administrative assistant to utilize any procedures deemed appropriate
by the administrative assistant. This ordinance was adopted through the
normal public legislative process, and the union either was aware of it or
should have been. The union chose to adopt the CBA requiring the city to
use its merit system without further definition or limit in the CBA. If the
union was dissatisfied with Ordinance 896, it should have objected when
the ordinance was enacted or dealt with the matter in the CBA. The city
now is merely acting in accordance with its agreement.
16
The board found that the CBA language did not reflect a mutual intent
to authorize elimination of the written exam. However, the CBA is absolutely
clear in requiring the city to use its merit system in evaluating promotions.
The city’s merit system, whether the system in place at the time that the
last CBA was signed or the system as established from time to time by city
ordinance, does not require a written examination. Thus, there was nothing
to waive. Conduct in accordance with the CBA effective at the time does
not require a waiver because the city had the right and the obligation to
conduct itself in accordance with the CBA. Although the city did use a
written examination for some time, the system that it was operating under
allowed for but did not require the use of a written examination. Further
the CBA signed in 2016, and applicable to all relevant periods here, specifies
and confirms that the city is to use its merit system. This is exactly what
the city did.