You asked for a summary of the State Board of Labor Relations decision barring East Hartford from participating in two regional police units unless the town first negotiates the matter with the town police union. You also wanted to know on what legal authority this decision is based and whether the law could be changed to allow towns to more easily enter into regional police units.

SUMMARY

The board ruled that the town assigned police officers to the Capital Region Emergency Service Team (CREST) and the Regional Traffic Unit without first negotiating with the East Hartford police union as required by the Municipal Employee Relations Act (MERA). Thus the board issued a cease-and-desist order prohibiting the town’s participation in both regional units until East Hartford negotiates such an arrangement with the union (State Board of Labor Relations, Decision No. 3853-A, see attachment A).

MERA gives the board the authority to hear complaints when a party believes there has been a violation of MERA, such as a prohibited labor practice. The board has the power to issue a cease-and-desist order if it finds a violation (CGS § 7-471).

The law could be changed to make it easier for towns to enter into regional police units, but it would be altering a fundamental principle of collective bargaining: That an employer must first bargain with the affected bargaining unit before changing the conditions of employment for bargaining unit members. An exception could be added to MERA allowing a town to assign some of its employees to a regional service unit without first negotiating the change with the union, as long as the assignment does not decrease the level of service in the town.

The other option is the legislature could enact a law making participation in regional services, such as police units, a mandatory subject of collective bargaining. For this individual case, this would be putting into statute the effect of the board’s order.

BOARD RULING

On May 17, 2004, the board ruled the town and the police bargaining unit both fall under MERA and therefore the town was obligated to bargain with the union before making changes in the conditions of employment. Making such a unilateral change is prohibited under the law. Under MERA, the board issues decisions that interpret the act, including deciding specifically whether something constitutes a change of working conditions.

The union brought two complaints (one for each regional unit) to the board accusing the town of violating MERA by “unlawfully subcontracting and/or unilaterally implementing a change in bargaining unit work. ” The union argued the East Hartford police already had an Emergency Response Team (ERT) performing the work that CREST was designed to do, and it already had its own traffic unit essentially doing the same thing as the Regional Traffic Unit.

MERA gives the board not only the power to issue cease-and-desist orders, but to require the offending party to take affirmative steps to remedy the situation. In this case it (1) ordered East Hartford to stop participation in either regional police unit, (2) ordered the town to fulfill its collective bargaining obligations, (3) ordered the town to make whole any employee who suffered losses as a result of the town being part of the regional units, and (4) gave the town 30 days to notify the board on the town’s progress toward complying with the order.

In its decision, the board found the assignment of officers to the two regional units met the definition of subcontracting union work out to separate entities (the regional units). Subcontracting work without union negotiation is a specific kind of unilateral work change.

The board considers three-part criteria when determining whether the union is making a prima facie case of prohibited subcontracting:

In the two regional unit examples the board found all three parts existed in both units.  Under MERA, an employer can defend such subcontracting, even if these three elements are found, if it can prove all the following:

The town argued the management rights clause of the union contract gives the chief the authority to direct the police department’s operations including making assignments to regional units, in effect the clause allowed subcontracting. The board found the management rights language in the contract was “not nearly specific enough to abrogate the union’s right to bargain regarding the subcontracting of bargaining unit work. The language to that effect would have to be clear and unmistakable to support the town’s position. ” The board cited previous decisions on this matter, Town of Farmington, Decision No. 3237 (1994) and City of Torrington, Decision No. 3237 (1995).

The board also ruled against the town’s contention that the subcontracting was de minimis, having little impact on the bargaining unit. The board noted the town’s units performing these duties offered overtime and career enhancement opportunities to the officers chosen for the units. The police department disbanded its ERT when it began participating in CREST. It never disbanded its own traffic unit when it joined the Regional Traffic Unit, but the town stopped applying for state grant money for the town traffic unit to conduct extra driving while intoxicated patrols as it had done in the past.

CHANGING MERA

MERA could be changed to make it easier for towns to enter into regional police units, but it would be altering a fundamental principle of collective bargaining: That an employer must first bargain with the affected bargaining unit before changing the conditions of employment for bargaining unit members.

MERA prohibits strikes and lockouts and in exchange for that it requires employers and bargaining units to bargain in good faith over all work place issues. It also requires both sides to enter into, first mediation and then, if issues are still unresolved, binding arbitration to resolve any impasses while keeping the workers on the job. If the law were changed to allow subcontracting through regional programs, it would be a fundamental change to MERA. For example, in the private sector workers can strike to protest subcontracting out their work. One of the goals of MERA, and other collective bargaining laws for public employees, is to provide a means to resolve issues without strikes. This way the essential public service the employees are performing is not interrupted by the work stoppage.

The other option is the legislature could enact a law making participation in regional services, such as police units, a mandatory subject of collective bargaining. This would force both sides to negotiate and work out the details of such regional efforts. Of course, the town does not need any action by the legislature to go ahead and negotiate an agreement with the union that would allow the town to participate in these regional police units.

JM: ts