Opinion
The central issue in this case is whether an increase in the workload of certain teachers during the course of a school year constituted a unilateral change of a condition of employment under this state’s collective bargaining law. The plaintiff, the board of education of Region 16, appeals 1 from the judgment of the trial court dismissing its appeal from the decision of the named defendant, the state board of labor relations (board), in which the board concluded that the plaintiff had violated General Statutes § 10-153e (b) when it unilaterally changed a condition of employment. 2 Specifically, the board concluded that the plaintiff acted unlawfully when it unilaterally and substantially increased the workload of certain employees who were members of the defendant Region 16 Education Association (union). In addition, the board concluded that the plaintiff had engaged in unlawful direct dealing with the employees.
The plaintiff claims that the trial court improperly: (1) upheld the board’s conclusion that the union was not required to prove that there was a unit wide employment practice in order to establish a prima facie case of a unilateral change; (2) concluded that the board’s determination that the union had established a prima facie case of a unilateral change of a definite and fixed employment practice was supported by substantial evidence; and (3) concluded that the board’s ruling that the plaintiff had engaged in unlawful direct dealing with the employees was supported by substantial evidence. We conclude that the board’s finding that the plaintiff had unilaterally and substantially changed a definite and fixed employment practice was not supported by substantial evidence and, therefore, we revеrse the portion of the trial court’s judgment relating to that issue.
3
We agree with the trial court,
The board found the following relevant facts. The plaintiff operates a high school known as Woodland High School (high school). The plaintiff also operates one middle school and three elementary schools. All of the schools provide both regular and special education programs. The length of the work year and work day of all teachers in the schools operated by the plaintiff is specified in the collective bargaining agreement (agreement) between the plaintiff and the union. The agreement also provides that “[t]eachers are expected to be available for student help, parent conferences, faculty meetings, general staff department or group meetings, committee work, and other activities of a professional nature before and after regular school hours.” 4
At the beginning of the 2004-2005 school year, the high school had five special education teachers, including four “skills lab” teachers, each of whom was responsible for teaching a specific number of special education students, known as the teacher’s “caseload,” and one transition coordinator, who was responsible for placing students in jobs in the community. The skills lab teachers were Arthur Richardson, Deborah Flaherty, Tracy Brunelle and Melissa Dean, and the transition coordinator was Jessica Veneziano. Richardson’s caseload was approximately seventeen students; Flaherty’s caseload was ten students; Brunelle’s caseload was sixteen students; and Dean’s caseload was fifteen students. No students were specifically assigned to Veneziano.
In October, 2004, Richardson resigned from his teaching position at the high school. The plaintiff attempted to find a replacement for him, but, because of a shortage of special education teachers in the state, was unable to do so. Mama Murtha, the plaintiffs director of pupil personnel and the person in charge of the plaintiffs department of special education, met several times with the skills lab teachers and Veneziano to discuss the best way to service Richardson’s former students. Ultimately, they decided to divide Richardson’s caseload among the skills lab teachers. In addition, Veneziano took on several of Richardson’s students. As a result, Flaherty’s caseload increased from ten to fourteen students and her work horns increased by approximately fourteen hours per week; Brunelle’s caseload increased
In January, 2005, the plaintiff hired a permanent, full-time substitute teacher to replace Richardson for the remainder of the school year. The substitute was not certified as a special education teacher, but had a “dura-tional shortage area permit” authorizing him to teach special education students on a temporary basis. 6 After the substitute was hired, Murtha met with the skills lab teachers and Veneziano (special education teachers), and they decided that the substitute teacher would teach the self-contained history class, which had been one of Richardson’s duties. Because they were “not comfortable” with allowing the substitute to take on Richardson’s other duties, however, the four special education teachers retained his caseload. At either the initial meeting or at another meeting, Murtha suggested that the special education teachers use the looping method employed by the middle school, in which teachers are assigned to students in a single grade level and move with the students when they progress to the next grade level. The union was not informed of the meetings аt which these decisions were made. It was Murtha’s standard practice when school employees left employment unexpectedly to attempt to hire replacements and to collaborate with the remaining staff, but not the union, to allocate the former employee’s workload among the staff.
At some point after Richardson’s departure, the special education teachers approached Murtha and complained that their workloads were too heavy. They did not ask Murtha directly for an increase in their compensation, but they asked the union to request an increase on their behalf. Thereafter, in late March, 2005, Murtha approached Brunelle and stated that the special education teachers should not proceed with “their complaint” because there was no point in pursuing it. Murtha also left a voicemail messаge for Brunelle in which she asked Brunelle to meet with the other special education teachers and to send a letter to Marguerite Shook, the plaintiffs superintendent of schools, stating that the union president, Catherine Mirabilio, had approached them regarding the complaint, not the reverse, and that they were not seeking a stipend for their increased workload. Brunelle responded by leaving a voicemail message for Murtha in which she stated that Mirabilio had not approached the special education teachers, but they had approached Mirabilio, and that they would not be sending a letter to Shook. Brunelle also forwarded Mur-tha’s voicemail message to Mirabilio.
Thereafter, the union filed a complaint with the board alleging that the plaintiff had “unilaterally and substantially increased the case management workload of
Thereаfter, the plaintiff appealed from the board’s decision to the trial court. After a hearing, the trial court determined that the board properly had concluded that the plaintiff had unilaterally and substantially changed a fixed and definite employment practice and had engaged in unlawful direct dealing with the special education teachers. Accordingly, it dismissed the plaintiffs appeal. This appeal followed. 7
I
We first address the plaintiffs claim that the trial court improperly concluded that the board’s decision that the plaintiff unilaterally and substantially changed a fixed and definite employment practice when it reassigned Richardson’s caseload to the other special education teachers was supported by substantial evidence. Specifically, the plaintiff claims that, because the union failed to present evidence either that thе caseloads handled by the special education teachers or the hours that they worked per week were substantially greater after Richardson’s departure than in the preceding school years, the union failed to establish a fixed and definite prior practice. We agree.
At the outset, we set forth the standard of review. “[R]eview of an adininistrative 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 this 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
We next review the law governing unilateral changes to employment conditions. Under § 10-153e (b) (4), regional boards of education are prohibited from “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 in accordance with the provisions of said sections . . . .” This court previously has recognized that a unilateral change to an employment condition constitutes an unlawful refusal to negotiate under the statute.
West Hartford Education Assn., Inc.
v.
DeCourcy,
“However, not all unilateral changes made by an employer constitute a refusal to bargain, such as when the change does not amount to a substantial change in a major term or condition ... or when the change solely concerns a matter
With these principles in mind, we address the plaintiffs claim that, because the union presented no evidence of a preexisting, fixed and definite practice concerning the special education teachers’ workload, there was no basis for the board’s finding that the increase in the number of hours that the special education teachers worked per week after Richardson’s departure constituted a unilateral change. We agree. Although the union presented evidence that the weekly work hours of three of the special education teachers had increased by ten to fourteen hours after Richardson’s departure, there was no evidence that the incrеased number of hours was substantially greater than the number of hours per week that they had worked
in previous school years.
Indeed, the only
It is clear, therefore, that the baseline that the board used to determine whether there had been a unilateral change to an employment condition was the number of hours that the special education teachers had worked per week in the weeks immediately preceding Richardson’s departure in October, 2004.
13
The union has provided
To the extent that the board claims that the evidence established that the plaintiff unilaterally changed a fixed and definite practice of not substantially increasing the work hours of the special education teachers suddenly during the school year, we are not persuaded.
14
As we
have indicated, to establish a unilateral change of workload, the union must present evidence both that the employees’ workload after the change was substantially greater than before it and that the preceding workload had “endure[d] over a reasonable length of time, and [that it was] an accepted practice
II
We next address the plaintiffs claim that the trial court improperly concluded that the board’s decision that the plaintiff had engaged in unlawful direct dealing was supported by substantial evidence. We disagree.
This court previously has recognized that, because “Connecticut statutes dealing with labor relations have been closely patterned after the National Labor Relations Act [codified at 29 U.S.C. § 151 et seq.]”;
West Hartford Education Assn., Inc. v. DeCourcy,
supra,
In the present case, the board concluded that, when Murtha met with the special education teachers to discuss the best way to handle Richardson’s caseload after his departure and ultimately decided, in collaboration with the special education teachers, that the caseload would be divided among them, her conduct constituted unlawful direct dealing. The trial court concluded that the board’s determination was supported by substantial evidence and, in addition, found that, when Murtha urged the special education teachers nоt to pursue their complaint to the union, that conduct also constituted unlawful direct dealing.
We have concluded that the evidence did not support the board’s conclusion that the increase in the special education teachers’ workload constituted a substantial change to a fixed and definite employment practice. It necessarily follows that the evidence was insufficient to support the board’s conclusion that Murtha’s initial meetings with the special education teachers and her collaboration with them on the question of how best to reallocate Richardson’s caseload constituted unlawful direct dealing with the teachers on a subject of mandatory negotiation. We conclude, however, that, after she became aware
The judgment is reversed with respect to the trial court’s dismissal of the plaintiffs claim challenging the board’s ruling that the plaintiff had unilaterally changed a condition of employment in violation of § 10-153e (b), and the case is remanded to the trial court with direction to render judgment sustaining the plaintiffs appeal
In this opinion the other justices concurred.
Notes
The plaintiff appealed from the judgment of the trial court to the Appellate Court and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
General Statutes § 10-153е (b) provides: “The local or regional board of education or its representatives or agents are prohibited from: (1) Interfering, restraining or coercing certified professional employees in the exercise of the rights guaranteed in sections 10-153a to 10-153n; (2) dominating or interfering with the formation, existence or administration of any employees’ bargaining agent or representative; (3) discharging or otherwise discriminating against or for any certified professional employee because such employee has signed or filed any affidavit, petition or complaint under said sections; (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 in accordance with the provisions of said sections; or (5) refusing to partiсipate in good faith in mediation or arbitration. A prohibited practice committed by a board of education, its representatives or agents shall not be a defense to an illegal strike or concerted refusal to render services.”
Accordingly, we need not reach the plaintiffs first claim that the trial court improperly upheld the board’s conclusion that the union was not required to establish a unit wide employment practice. Likewise, we need not reach the plaintiffs subordinate claims that, if this court concludes that the trial court properly concluded that the board properly determined that the union had established a prima facie case of unilateral change, the trial court improperly determined that: (1) the board properly had rejected the plaintiffs defenses; (2) the board properly had excluded certain evidence from thе hearing; and (3) the board’s decision did not violate state and federal special education law and federal law governing the privacy of student educational records.
Article 9 of the agreement provides in relevant part: “A. Commencing with the 2001-02 school year, the standard teacher workday is seven hours [and] fifteen . . . minutes, including the required time stated in [s]ection B of this article. The teacher [work year] shall be . . . 186 . . . days and will include two professional development . . . days and at least one . . . non-student day in addition to the student year. At the [plaintiffs] option, a second semester parent-teacher conference day . . . may be converted into a third professional day.
“B. All teachers will be expected to be on duty before the opening of school and closing of school long enough to plan and fulfill their individual responsibilities. Under normal circumstances, all teаchers should be in their assigned buildings fifteen . . . minutes before the scheduled beginning of the student day and shall remain thirty . . . minutes after the scheduled end of the student day. Teachers are expected to be available for student help, parent conferences, faculty meetings, general staff department or group meetings, committee work, and other activities of a professional nature before and after regular school hours. . . .”
Dean testified that her caseload increased to twenty-one students, but the plaintiff presented documentary evidence that her caseload increased to twenty-two students.
When there is a severe shortage of qualified candidates for a teaching position, the state department of education may issue a special durational shortage area permit that allows individuals without full certification to teach for up to forty days. During thе 2004-2005 school year, school districts were permitted to apply for an extension of that period if no qualified teacher could be found.
After this appeal was filed, the court granted the application of the Connecticut Association of Boards of Education to file an amicus curiae brief in support of the plaintiffs appeal.
Although this court has had little occasion to address the standards that apply in determining whether a union has established a violation of labor law under the unilateral change doctrine, the board has applied the doctrine in many cases over many years. The parties disagree as to how the standards that the board has adopted apply to the facts of this case, but neither the plaintiff nor the union contends that the standards themselves are unreasonable. Accordingly, we defer to the board’s interpretation оf the law.
Vincent
v.
New Haven,
Because we conclude that the board’s determination that the plaintiff had unilaterally changed a condition of employment was not supported by substantial evidence, we need not address the thorny questions of whether the reallocation of Richardson’s caseload to the special education teachers was in the plaintiffs sole discretion and, if so, whether a substantial increase in their workload as the result of the reallocation would, nevertheless, be subject to mandatory negotiation. See
West Hartford Education Assn., Inc.
v.
DeCourcy,
supra,
The board found that “[b]etween 2001 and 2006, special education teachers throughout Region 16 were responsible for anywhere from four to twenty-two students at any given time.” In support of this finding, the board relied on a spreadsheet that the plaintiff had introduced into evidence. It is clear, therefore, that the board accepted the accuracy of that spreadsheet. Accordingly, although the board in its findings оf fact did not specifically address the range of caseloads before Richardson’s departure in October, 2004, which is the relevant time period for purposes of determining whether the union established a fixed and uniform employment practice, and did not focus exclusively on the range of caseloads managed by high school special education teachers, even though it ultimately determined that the practices of special education teachers in other schools were not relevant to its analysis, this court may rely on the spreadsheet to make that determination. As we have indicated, we assume, without deciding, that, in determining whether the union had established a fixed and definite employment practice, the board properly limited its consideration to high school special education teachers.
The plaintiff contends that the evidence estаblished that, in the 2002-2003 school year, the four special education teachers were responsible for sixty-four students. It further contends that, after Richardson’s departure, those four teachers were responsible for only fifty-eight students. Accordingly, the plaintiff contends that the average caseload of the special education teachers after Richardson’s departure was less than in previous years. Although the defendants do not expressly dispute this contention, because the evidence on this question is not entirely clear, we decline to resolve this factual dispute. See
Wellswood Columbia, LLC
v.
Hebron,
We emphasize that the evidence amply supported the board’s finding that the special education teachers had worked an additional ten to fourteen hours per week after Richardson’s departure than they had in the immediately preceding weeks. In addition, the evidencе shows that these teachers willingly and professionally performed the additional work so as to ensure that the needs of the special education students were met. What the evidence does not show is that the special education teachers performed substantially more hours of work per week after Richardson’s departure than they had in previous school years.
The union suggested at oral argument before this court that it was implicit, in the special education teachers’ testimony that their weekly workload had increased by ten to fourteen hours after Richardson’s departure, that the immediately preceding workload had existed over an extended period of time. In its brief to this court, however, the board states that it considered “the length of time [that] the working conditions of . . . [the] special education teachers had existed, which the [p]laintiff argued was not long enough to have created a past practice. The . . . [b]oard rejected this argument; although the length of time a condition has existed is a factor in the analysis, a relatively short existence is not fatal to a claim of unlawful unilateral change in a past practice.” Thus, the board appears to concede that it compared the number of hours that the special education teachers worked per week after Richardson’s departure to the number of hours the teachers had worked per week immediately before Richardson’s departure, rather than to the number of hours that they had worked in previous school years.
The board concluded that the increase in the weekly work hours after Richardson’s departure was different from “the typical variation in caseload in any given year caused by students entering and exiting the spеcial educa tion program” because Richardson’s departure “created an unexpected, sudden and fixed swelling in each [special education] teacher’s caseload that lasted from the time of [his] departure . . . through the end of the school year . . . .” (Emphasis added.) The board also concluded that “the surprise increase in each [special education] teacher’s caseload [constituted] a substantial impact on their workload.” (Emphasis added.)
For example, if the workload of school employees in a particular school year were substantially lower than in preceding years, and the employees had reason to believe that the workload would remain constant over the course of the year, they might order their personal affairs, such as child care, carpooling, recreational activities and other such matters, acсordingly. A sudden increase in workload to the historic level could disrupt these plans and cause significant inconvenience or expense to the employees. A sudden increase could also cause a temporary surge in workload above historic levels as the teachers attempted to get up to speed. These impacts would not, however, constitute a unilateral change to a fixed and definite employment practice.
Moreover, in the present case, the board found as a factual matter that, when an employee of the plaintiff leaves unexpectedly during the school year and a substitute either cannot be found or cannot taire on all of the former employee’s duties, the plaintiffs ordinary practice is to allocate the former employee’s duties among the remaining employees.
None of the parties has identified the specific provision of state law that prohibits employers from negotiating directly with employees who have chosen a bargaining representative. We presume, however, that the board found that direct dealing with school employees violates § 10-153e (b) (1), which prohibits regional boards of education from “[interfering, restraining or coercing certified professional employees in the exercise of the rights guaranteed in sections 10-153a to 10-153n . . . .” See In re New London, Conn. Board of Labor Relations Decision No. 4187 (October 3, 2006) pp. 1, 4 (direct dealing violates General Statutes § 7-470, which governs municipal employers and is substantially similar to § 10-153e).
We would reach this conclusion even if we were to assume Murtha actually believed that the union had approached the teachers, and not the reverse, and that the teachers were not seeking a stipend for the additional workload. Once the union became involved in the dispute, the plaintiff was required to deal exclusively with it and not with the teachers.
Although the board did not expressly conclude that this conduct by Murtha constituted unlawful direct dealing with the teachers, it expressly found that she had engaged in the conduct. It would elevate form over substance to conclude that the board’s determination that the plaintiff had engaged in unlawful direct dealing was not supported by substantial evidence merely because, in its analysis of the claim, the board did not expressly refer to this particular conduct, which was a clearer case of direct dealing than the conduct to which it did expressly refer. Cf.
Samperi
v.
Inland Wetlands
Agency,