AFSCME, AFL-CIO, Council 4, Local 2405 v. Norwalk ( 2015 )

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AFSCME, AFL-CIO, COUNCIL 4, LOCAL 2405 v. CITY
OF NORWALK ET AL.
(AC 35917)
Beach, Prescott and Foti, Js.
Argued October 27, 2014—officially released March 24, 2015
(Appeal from Superior Court, judicial district of New
Britain, Cohn, J.)
J. William Gagne, Jr., with whom, on the brief, was
Kimberly A. Cuneo, for the appellant (plaintiff).
M. Jeffry Spahr, deputy corporation counsel, for the
appellee (named defendant).
Frank N. Cassetta, assistant general counsel, for the
appellee (defendant State Board of Labor Relations).
Opinion
PRESCOTT, J. General Statutes § 7-470 (a) (1) prohib-
its municipal employers from ‘‘[i]nterfering, restraining
or coercing employees in the exercise of the rights
guaranteed in section 7-468’’1 of the Municipal
Employee Relations Act (MERA), General Statutes § 7-
460 et seq. This administrative appeal arises out of a
prohibited practice complaint filed by the plaintiff,
AFSCME, AFL-CIO, Council 4, Local 2405 (union),
against the defendant city of Norwalk (city), alleging
that supervisory personnel employed by the city’s
Department of Public Works (department) engaged in
conduct prohibited by § 7-470 (a) (1) after one of the
union’s members filed a grievance against the depart-
ment. The State Board of Labor Relations (board), a
codefendant in this case, denied the union’s complaint
after concluding that the union had failed to prove a
prima facie case that the city violated § 7-470 (a) (1). The
dispositive issue in this appeal is whether substantial
evidence supported the board’s decision. We conclude
that it did and, accordingly, affirm the judgment of the
trial court dismissing the union’s appeal.
The following facts, which are relevant to our resolu-
tion of this appeal, were found by the board. The union
represents a bargaining unit composed of city employ-
ees assigned to the department. On December 21, 2009,
Christopher Torre, a department supervisor, held a
snowplow crew meeting to address complaints that
snow had not been properly removed from intersections
during a storm the previous weekend. At some point
during this meeting, Torre asked three crew members
why they were late arriving to the meeting. One of the
crew members, Hector DeJesus, responded that he was
late because he had been conducting union business.
Torre responded that union business during work hours
must be preapproved by the department’s director, and
that the city and/or Torre ‘‘ ‘owns you from 7 to 3.’ ’’
DeJesus responded that certain union business did not
require preapproval. Torre disputed DeJesus’ claim, dis-
cussed the manner in which intersections should be
plowed in the future, and adjourned the meeting.
Approximately nine days later, Lawrence Taylor, a
crew member who attended the meeting held by Torre,
filed a grievance on a form filled out by DeJesus alleging
that ‘‘[Torre’s] . . . constant racist statements, telling
the men . . . I own you from 7 a.m. till 3:30 p.m. . . .
[and scare] tactics are in violation [of the parties’ collec-
tive bargaining agreement] and [d]iscrimination [l]aws
. . . .’’ Two or three days after filing the grievance,
Taylor received a telephone call from Torre during
which Torre told him that he should ‘‘ ‘not go down that
road’ ’’ with DeJesus and Milton Giddiens, the union’s
president. Taylor asked Torre if Torre was threatening
him, and Torre denied that he was. Taylor then told
Torre that his crew did not like Torre or his scare
tactics, and the conversation ended.
On January 5, 2010, Torre told DeJesus that his truck
was dirty and directed him to wash it. DeJesus
responded that the truck had just been washed and still
had soap residue on it. He further told Torre to speak
with another supervisor to confirm that the truck had
been washed. Torre responded by taking photographs
of DeJesus’ truck. Around the same time, Torre told
other employees within the department that the city
had previously terminated DeJesus’ employment for
taking money from a customer, but that the city was
forced to reinstate him on the basis of a technicality.
Two days later, a member of the union’s executive
board heard Torre singing ‘‘Back Stabbers,’’ a popular
rhythm and blues song, loudly near the entrance to
the cafeteria.
Approximately three days after the dispute over the
cleanliness of DeJesus’ work vehicle, the department’s
director, Harold Alvord, reminded Giddiens in a letter
that a longstanding department policy required union
members to seek preapproval before conducting union
business during work hours. Four days later, Alvord
sent Giddiens a memorandum denying Taylor’s
grievance.
The union subsequently filed a prohibited practice
complaint against the city claiming that Torre’s actions
in (1) calling Taylor and encouraging him to withdraw
his grievance, (2) directing DeJesus to clean his work
vehicle, and (3) notifying the union that it would begin
enforcing the department’s policy of requiring union
members to seek preapproval before conducting union
business during work hours2 interfered with, restrained,
and coerced employees in the exercise of rights guaran-
teed in MERA and, as a consequence, violated § 7-470
(a) (1).3
The board held a hearing on the union’s complaint
and, with one member dissenting, dismissed it after
concluding that the union had failed to make a prima
facie showing that the city had discriminated against
department employees on the basis of their protected
activity. In doing so, the board also considered and
rejected an additional claim not raised in the union’s
complaint that Torre had improperly disclosed DeJesus’
past disciplinary history to other city employees.
The union appealed from the board’s decision to the
trial court, which dismissed the union’s appeal after
concluding that substantial evidence supported the
board’s decision. The union then appealed to this court
from the judgment of the trial court. Additional facts
will be set forth as necessary.
The union advances two principal claims. First, it
claims that the trial court improperly concluded that
the board applied the proper standard in determining
that the city did not violate § 7-470 (a) (1). Second, it
claims that the trial court improperly concluded that
the board’s determination that the union failed to dem-
onstrate the existence of antiunion animus was sup-
ported by substantial evidence.4 In light of the manner
in which this case has been litigated by the union, we
are not persuaded.
I
We turn first to the union’s claim that the board failed
to apply the proper standard in determining that the
city did not violate § 7-470 (a) (1). We begin our analysis
of this claim by setting forth the well established stan-
dard governing our review. ‘‘[J]udicial review of an
administrative agency’s action is governed by the Uni-
form Administrative Procedure Act (UAPA), General
Statutes § 4-166 et seq., and the scope of that review is
limited. . . . When reviewing the trial court’s decision,
we seek to determine whether it comports with the
[UAPA]. . . . [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 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. . . . Conclusions of law reached by
the administrative agency must stand if . . . they
resulted from a correct application of the law to the
facts found and could reasonably and logically follow
from such facts. . . . The court’s ultimate duty is only
to decide whether, in light of the evidence, the [agency]
has acted unreasonably, arbitrarily, illegally, or in abuse
of [its] discretion.’’ (Citations omitted; internal quota-
tion marks omitted.) Dickman v. Office of State Ethics,
Citizen’s Ethics Advisory Board, 140 Conn. App. 754,
766–67, 60 A.3d 297, cert. denied, 308 Conn. 934, 66
A.3d 497 (2013).
Our Supreme Court has previously recognized that
‘‘[MERA] . . . is closely patterned after the National
Labor Relations Act [(NLRA), codified at 29 U.S.C. § 151et seq.] . . . [and] the language of these [acts] is essen-
tially the [same] . . . .’’ (Internal quotation marks omit-
ted.) Labbe v. Pension Commission, 239 Conn. 168,
193 n.3, 682 A.2d 490 (1996). Accordingly, ‘‘[i]n judging
whether the labor board’s interpretation was reason-
able, we may look to federal labor law for guidance in
construing our labor relations acts.’’ Board of Educa-
tion v. State Board of Labor Relations, 217 Conn. 110,
120, 584 A.2d 1172 (1991); see Board of Education v.
State Board of Labor Relations, 299 Conn. 63, 80, 7
A.3d 371 (2010) (‘‘because Connecticut statutes dealing
with labor relations have been closely patterned after
the [NLRA] . . . the federal statute is of great assis-
tance and persuasive force in the interpretation of our
own acts’’ [citation omitted; internal quotation marks
omitted]); Stratford v. Local 134, IFPTE, 201 Conn. 577,
589, 519 A.2d 1 (1986) (‘‘[T]he language of ‘‘[MERA]
. . . and of the [NLRA] . . . is essentially the same.
. . . Therefore, the judicial interpretation frequently
accorded the federal act is of great assistance and per-
suasive force in the interpretation of our own acts.’’
[Citations omitted; internal quotation marks omitted.]);
Winchester v. State Board of Labor Relations, 175 Conn.
349, 354, 402 A.2d 332 (1978) (‘‘[MERA] . . . is closely
patterned after the [NLRA] . . . which a comparison
of the two acts clearly demonstrates. . . . This court
has stated that it is for this reason that the judicial
interpretation frequently accorded the federal act is of
great assistance and persuasive force in the interpreta-
tion of our own act. . . . In speaking of the similarity
of language that exists between the [NLRA] . . . and
. . . MERA, we have often noted that the language of
these [acts] is essentially the same . . . .’’ [Citations
omitted; internal quotation marks omitted.]).
Section 7-470 (a) (1), which is almost identical to § 8
(a) (1) of the NLRA, codified at 29 U.S.C. § 158 (a) (1),5
provides that ‘‘[m]unicipal employers or their represen-
tatives or agents are prohibited from . . . [i]nterfering,
restraining or coercing employees in the exercise of
the rights guaranteed in section 7-468 . . . .’’ The board
has interpreted this provision as prohibiting employers
from harassing, retaliating, or discriminating against
employees because they exercised rights guaranteed
by MERA. See In re Bridgeport Housing Authority,
Conn. Board of Labor Relations, Decision No. 4754
(August 7, 2014) (‘‘[i]t is a prohibited practice within
the meaning of [MERA] for an employer to discriminate
or retaliate against an employee for engaging in union
or other protected activities’’); In re Hartford, Conn.
Board of Labor Relations, Decision No. 3785 (August
22, 2000) (‘‘[s]ection 7-470 [a] [1] of [MERA] prohibits
an employer from harassing and retaliating against an
employee for engaging in protected, concerted activ-
ity’’). In analyzing claims of this nature, the board has
traditionally applied the burden-shifting framework
first developed and described by the National Labor
Relations Board (NLRB) in Wright Line, 251 N.L.R.B.
1083, 1089 (1980), enf’d, 662 F.2d 899 (1st Cir. 1981),
cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d.
848 (1982).6 Pursuant to this framework, a complainant
must make an initial prima facie showing that an
employee’s protected activity was a motivating factor
in the employer’s adverse employment action against
an employee. Id. ‘‘The elements of this prima facie case
are (1) the employee was engaged in protected activity;
(2) . . . the employer knew of the employee’s pro-
tected activity; and (3) . . . the employer acted as it did
on the basis of anti-union animus.’’ (Internal quotation
marks omitted.) N.L.R.B. v. RELCO Locomotives, Inc.,
734 F.3d 764, 780 (8th Cir. 2013). Once the complainant
has satisfied its initial burden under Wright Line, the
burden shifts to the employer to prove that it would
have taken the same action regardless of the employee’s
protected activity. Wright Line, supra, 1089. In other
words, if the employee or union raises a prima facie
case that the employer acted as it did on the basis of
antiunion animus, the employer may avoid liability by
demonstrating that such animus, if any, did not motivate
its decision to take adverse employment action against
the employee.
Applying Wright Line to each of the union’s claims,
the board concluded that the union had failed to estab-
lish a violation of § 7-470 (a) (1) because it did not
prove the third element of its prima facie case, namely,
that the city’s actions were motivated by antiunion ani-
mus. Specifically, the board stated: ‘‘In sum, the [u]nion
has not established animus necessary to a prima facie
case of discriminatory treatment under [MERA]. Disci-
pline was neither threatened nor imposed and no
change of substance to the [city’s] existing policies was
effected. As such, we dismiss the [u]nion’s complaint.’’7
(Emphasis omitted.) Although conceding that its claims
are properly analyzed under Wright Line, the union
contends that the board applied the wrong legal stan-
dard in deciding whether the union had met its prima
facie burden with respect to the third prong of the
Wright Line framework. Specifically, the union con-
tends that it may meet its obligation to prove antiunion
animus simply by demonstrating that the employer’s
conduct could objectively be viewed as tending to
coerce employees from engaging in protected union
activities, without needing to demonstrate that the
employer’s conduct actually coerced employees from
engaging in protected union activities. For reasons we
will discuss at greater length, we reject the union’s
claim because it is fundamentally inconsistent with the
Wright Line test, which the union had relied upon
before the board, the trial court, and this court as the
appropriate framework against which to measure its
factual claims in this case.
Before addressing the propriety of the union’s claim,
it is helpful to first review the function and applicability
of the Wright Line test. Wright Line is ‘‘the test the
[NLRB] uses when an employer has discharged (or dis-
ciplined) an employee for a reason assertedly uncon-
nected to protected activity—for example, poor
performance. In such cases, the central question is
whether the [adverse employment action] was moti-
vated by anti-union animus, and the [NLRB] uses varia-
tions on Wright Line’s burden-shifting framework to
test the veracity and sufficiency of the employer’s expla-
nation.’’ (Emphasis omitted.) Shamrock Foods Co. v.
N.L.R.B., 346 F.3d 1130, 1135–36 (D.C. Cir. 2003); see
N.L.R.B. v. RELCO Locomotives, Inc., supra, 734 F.3d
780 (‘‘[t]he so called Wright Line analysis is applied
when an employer articulates a facially legitimate rea-
son for its termination decision, but that motive is dis-
puted’’). Importantly, application of this framework is
normally limited to situations in which the employer’s
motive is suspect, and the employer has taken certain
delineated adverse employment action, such as disci-
pline or discharge, against an employee. See N.L.R.B.
v. White Oak Manor, 452 Fed. Appx. 374, 383 (4th Cir.
2011) (‘‘invocation of the Wright Line analysis is appro-
priate only in situations where the employer’s motive
is at issue, such as cases where the employee claims
that the employer took action against him for engaging
in protected activity and the employer claims that it
took action against the employee for some other rea-
son’’ [emphasis added; internal quotation marks omit-
ted]); A & G, Inc., 351 N.L.R.B. 1287, 1302 (2007)
(‘‘[u]nder the [NLRB’s] Wright Line analysis, the Gen-
eral Counsel must prove that an adverse employment
action occurred’’). The test has generally not been
applied in circumstances where the employer’s motive
is undisputed or irrelevant. See Shamrock Foods Co. v.
N.L.R.B., supra, 346 F.3d 1136 (Wright Line analysis
unnecessary if employer’s motive is ‘‘not at issue’’). The
test is also generally not used in cases in which the
employee or union has not alleged adverse employment
action, but instead simply claims that the employer’s
conduct tended to interfere with, restrain, or coerce
employees in the exercise of protected rights. See
N.L.R.B. v. Air Contact Transport Inc., 403 F.3d 206,
213 (4th Cir. 2005) (‘‘the issue is not the label placed
on the employer’s action, but whether the action tends
to coerce [or not]’’).
The standard advanced by the union, on the other
hand, entails determining whether ‘‘under all the
existing circumstances, the [employer’s] conduct has a
reasonable tendency to coerce or intimidate employees,
regardless of whether they are actually coerced.’’ New
York University Medical Center v. N.L.R.B., 156 F.3d
405, 410 (2d Cir. 1998). By its very language, this test
is inconsistent with Wright Line because it considers
an employer’s motive, i.e., antiunion animus, to be irrel-
evant. See Medeco Security Locks, Inc. v. N.L.R.B., 142
F.3d 733, 744–45, 747 (4th Cir. 1998). Conduct that tends
to coerce or intimidate employees includes, inter alia,
‘‘threats of discharge in retaliation for union activity
. . . grants or promises to grant benefits to discourage
employee support for a union . . . the cultivated
impression that employees’ union activities are under
surveillance . . . coercive interrogations of employees
concerning their union activity . . . and, in certain cir-
cumstances, threats of plant closure.’’ (Citations omit-
ted; internal quotation marks omitted.) Kinney Drugs,
Inc. v. N.L.R.B., 74 F.3d 1419, 1427 (2d Cir. 1996).
The federal courts view these two analytical frame-
works as distinct and applicable to claims of manifestly
different natures. Wright Line, and its attendant
requirement that a complainant demonstrate the exis-
tence of antiunion motive, is most often applied to
claims arising under § 8 (a) (3) of the NLRA, codified
at 29 U.S.C. § 158 (a) (3), which provides that ‘‘[i]t shall
be an unfair labor practice for an employer . . . by
discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encour-
age or discourage membership in any labor organization
. . . .’’ In other words, the Wright Line standard typi-
cally applies in cases in which the union or employee
has alleged that the employer took specific adverse
employment action against the employee to encourage
or discourage membership in a labor organization.8
The standard advanced by the union, in contrast, is
typically applied to claims that an employer’s conduct
is, regardless of any specified adverse employment
action or the employer’s intent, inherently coercive in
violation of § 8 (a) (1) of the NLRA, codified at 29 U.S.C.
§ 158 (a) (1), which provides that ‘‘[i]t shall be an unfair
labor practice for an employer . . . to interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed in section 157 of this title . . . .’’
These two provisions are not coterminous; Metropoli-
tan Edison Co. v. N.L.R.B., 460 U.S. 693, 698 n.4, 103
S. Ct. 1467, 75 L. Ed. 2d 387 (1983); and the nature
of the violation therefore determines which analytical
framework applies. Independent Electrical Contractors
of Houston, Inc. v. N.L.R.B., 720 F.3d 543, 553 (5th Cir.
2013). Notably, ‘‘[a]nti-union animus or discriminatory
motive are essential proof for § 8 (a) (3). . . . For a
violation of § 8 (a) (1), however, an employer’s motive
is irrelevant.’’ Id.; see Medeco Security Locks, Inc. v.
N.L.R.B., supra, 142 F.3d 747 (‘‘[u]nlike violations of
§ 8 [a] [3], an employer’s anti-union motivation is not
a required element of § 8 [a] [1]’’).9
In sum, Wright Line generally applies in federal cases
brought pursuant to § 8 (a) (3) of the NLRA where the
employer is alleged to have taken adverse employment
action against an employee and the factual inquiry
focuses on the employer’s intent in doing so. The Wright
Line test is generally not used in § 8 (a) (1) cases in
which the employee or union claims that the employer’s
conduct (which may not rise to the level of an adverse
employment action) has a tendency to coerce employ-
ees from engaging in protected activities regardless of
its intent.
This dichotomy can be difficult to transfer to claims
brought under MERA, our state statute, because MERA
does not contain an analog to § 8 (a) (3) of the NLRA.
Thus, claims alleging discrimination and retaliation
under MERA are ordinarily raised and considered pur-
suant to § 7-470 (a) (1), which, as previously noted,
mirrors the language of § 8 (a) (1) of the NLRA. See In
re Bristol, Conn. Board of Labor Relations, Decision
No. 4626 (December 18, 2012); In re Woodbridge Board
of Education, Conn. Board of Labor Relations, Decision
No. 4565 (November 15, 2011); In re Hartford, Conn.
Board of Labor Relations, Decision No. 3785 (August
22, 2000) (‘‘[s]ection 7-470 [a] [1] of [MERA] prohibits
an employer from harassing and retaliating against an
employee for engaging in protected, concerted activ-
ity’’). As the previous discussion suggests, determining
the proper standard requires examining the nature of
the claim. Although this task is generally simpler under
the NLRA due to the fact that different claims typically
correspond to specific provisions of the statute, the
task is more nuanced under MERA where claims of
two distinct natures—that the employer impermissibly
retaliated or that the employer’s conduct objectively
tended to coerce—may both be brought under § 7-470
(a) (1). Caution must therefore be exercised not to
indiscriminately apply the standard generally applicable
to claims arising under § 8 (a) (1) of the NLRA to all
claims arising under § 7-470 (a) (1) of MERA simply
because their language is analogous.
By electing to cast its claims as falling under the
Wright Line standard before the board, the trial court,
and this court, the union may not attempt to import a
test that is fundamentally inconsistent with the Wright
Line standard. By arguing the applicability of Wright
Line to the board, the union necessarily directed the
board’s attention to two fundamental questions: (1)
whether the city had taken adverse employment action
against any of its members, and (2) whether the city’s
conduct was motivated by antiunion animus. With
respect to the first question, the board found that ‘‘[d]is-
cipline was neither threatened nor imposed and no
change of substance to the [city’s] existing policies was
effected.’’ With respect to the second question, the
board refused to draw factual inferences from the city’s
conduct, as urged by the union, that would be necessary
to conclude under Wright Line that the city’s actions
were motivated by antiunion animus.
We recognize that if the union had pursued its claim
under § 7-470 (a) (1) like a claim raised under § 8 (a)
(1) of the NLRA, the board’s focus would rightly have
turned to whether the city’s conduct had the tendency
to coerce employees from exercising the rights pro-
tected by MERA regardless of any formal adverse
employment action or antiunion animus.10 The board,
however, decided the case on the theory on which the
union advanced it. Accordingly, the board cannot now
be faulted for not applying a standard that is inconsis-
tent with the overall standard the union urged it to use
in adjudicating its claim of discrimination. Indeed, our
review of the administrative record demonstrates that
the union never relied upon the theory that it now
advances on appeal. Because it is a well accepted princi-
ple of appellate procedure that a party ‘‘may not try its
case on one theory and appeal on another’’; Mellon v.
Century Cable Management Corp., 247 Conn. 790, 799,
725 A.2d 943 (1999); we conclude that the board did
not apply an improper standard in deciding the
union’s claims.
II
Having determined that the board did not improperly
fail to apply the standard claimed by the union, we now
turn, pursuant to the Wright Line framework, to the
union’s second claim that substantial evidence did not
support the board’s determination that the union did
not prove the existence of antiunion animus on the part
of the city. We begin our analysis by setting forth the
relevant standard of review.
‘‘[The] so-called substantial evidence rule is similar
to the sufficiency of the evidence standard applied in
judicial review of jury verdicts, and evidence is suffi-
cient to sustain an agency finding if it affords a substan-
tial basis of fact from which the fact in issue can be
reasonably inferred. . . . [I]t imposes an important
limitation on the power of the courts to overturn a
decision of an administrative agency . . . and [pro-
vides] a more restrictive standard of review than stan-
dards embodying review of weight of the evidence or
clearly erroneous action. . . . The United States
Supreme Court, in defining substantial evidence . . .
has said that it is something less than the weight of
the evidence, and [that] the possibility of drawing two
inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being
supported by substantial evidence. . . . [T]he credibil-
ity of witnesses and the determination of factual issues
are matters within the province of the administrative
agency. . . . As with any administrative appeal, our
role is not to reexamine the evidence presented to the
council or to substitute our judgment for the agency’s
expertise, but, rather, to determine whether there was
substantial evidence to support its conclusions.’’ (Cita-
tions omitted; internal quotation marks omitted.) Fair-
windCT, Inc. v. Connecticut Siting Council, 313 Conn.
669, 689–90, 99 A.3d 1038 (2014).
In advancing its argument that substantial evidence
did not support the board’s conclusion that the city
lacked antiunion animus, the union relies on a number
of incidents involving city supervisors and employees.
Specifically, it draws our attention to Torre’s telephone
call to Taylor regarding Taylor’s grievance, Torre’s
direction to DeJesus to wash his work vehicle, Torre’s
disclosure to employees that DeJesus’ employment pre-
viously had been terminated, Torre’s rendition of the
song, ‘‘Back Stabbers,’’ in the presence of other employ-
ees, and Alvord’s letter to Giddiens reminding him that,
per department policy, union members must request
preapproval to conduct union business during work
hours. The union contends that the nature of these
interactions, as well as their timing, compels the conclu-
sion that the city’s allegedly improper actions were
motivated by antiunion animus. We do not agree.
We turn first to the union’s claim that Torre had
threatened Taylor during a telephone call about the
grievance Taylor had filed. Specifically, the union
claims, relying solely on its own interpretation of his
comments, that Torre’s statement to Taylor to ‘‘ ‘not go
down that road’ ’’ was ‘‘clearly’’ a threat in response to
Taylor’s grievance.
This argument fails for two reasons. First, even if
Torre’s comments can be construed as threatening, the
union has cast its claims as alleging harassment, dis-
crimination, or retaliation on the basis of protected
activities. See part I of this opinion. Thus, to prevail on
this claim, the union must demonstrate that Torre took
some adverse employment action against Taylor. Here,
the administrative record contains substantial evidence
supporting the conclusion that no adverse action
occurred. Taylor was neither threatened with nor sub-
jected to discipline, and Torre’s ambiguous statement
that Taylor should not ‘‘ ‘go down that road’ ’’ does not
constitute harassment sufficient to qualify as an adverse
employment action. Consequently, the union failed to
establish a predicate fact essential to the type of claim
that it raised.
Second, even if Torre’s comments could constitute
an adverse employment action, substantial evidence
exists in the administrative record to support the con-
clusion that they were not the product of antiunion
animus. Specifically, Torre testified that he and Taylor
had socialized in the past as friends and had previously
discussed personal and family issues, and that the only
reason he telephoned Taylor was because he was ‘‘taken
aback’’ that someone he considered a friend would label
him a racist. As the fact finder, it was within the prov-
ince of the board to infer from this testimony that Tor-
re’s interaction was not the result of antiunion
sentiment, but arose from a personal disagreement with
Taylor that was related to their friendship. Accordingly,
we conclude that the board’s factual determination with
respect to this issue was supported by substantial
evidence.
The union next asserts that Torre’s directive to
DeJesus to wash his work vehicle establishes that Torre
possessed antiunion animus because, at the time that
he issued the directive, Torre allegedly knew that the
vehicle was clean. As with the previous claim, this claim
also fails for want of an adverse employment action.
The board specifically found that even if the evidence
were unequivocal that Torre directed DeJesus to wash a
vehicle that he knew was already clean, ‘‘no disciplinary
consequences followed DeJesus’ refusal to obey Torre’s
directive.’’ We agree that because DeJesus ultimately
suffered no adverse effects from Torre’s directive, in
that he neither washed the vehicle again nor was he
disciplined for refusing to do so, substantial evidence
supported the board’s conclusion that Torre’s conduct
did not constitute harassment, discrimination, or retali-
ation sufficient to violate § 7-470 (a) (1).
Assuming, however, that Torre’s directive did consti-
tute an adverse employment action, we agree with the
board’s conclusion that ‘‘the record . . . is insufficient
to establish that Torre knowingly ordered DeJesus to
wash a clean truck . . . .’’11 Torre testified that he
directed DeJesus to wash his truck because he genu-
inely believed that it was dirty. The board was free
to credit this testimony, which directly negates any
inference that Torre acted out of antiunion animus.
Moreover, the board was not required to credit DeJesus’
testimony that Torre complained to DeJesus about the
grievance filed against him at the same time that he
had directed DeJesus to wash the vehicle.12 See Frank
v. Dept. of Children & Families, 312 Conn. 393, 412,
94 A.3d 588 (2014) (‘‘[a]n administrative agency is not
required to believe any witness’’ [internal quotation
marks omitted]). Because the union’s argument essen-
tially requires the board to resolve the testimony of
competing witnesses in the union’s favor, and the board
is not required to do so, we have no basis to disturb
the board’s determination that Torre was not acting
with antiunion animus when he directed DeJesus to
wash his vehicle.
The union next claims that Torre’s antiunion animus
was evidenced by his disclosure to other employees
that the city previously had terminated DeJesus’
employment because he took money from a customer,
and that the city reinstated him because of a ‘‘technical-
ity.’’ Although this conduct may reflect a negative atti-
tude toward DeJesus, it is also plausible that the
incident merely represents idle gossiping between
employees. In light of these two competing interpreta-
tions of the same incident, the deferential standard we
apply in administrative appeals requires that we defer
to the board’s factual determination that Torre’s con-
duct was not indicative of the kind of animus necessary
to satisfy the requirements of Wright Line.
We also defer to the board’s reasonable conclusion
that Torre’s rendition of the song, ‘‘Back Stabbers,’’ did
not constitute evidence of antiunion animus. Nothing
in the administrative record remotely suggests that this
act was intended to serve as an expression of Torre’s
personal feelings toward union members. Torre’s testi-
mony that he was simply singing along with the song
as it played on the radio—testimony that is undisputed
by the union—provides a sound basis from which the
board could find that the act carried no significant
meaning.
We similarly discern no compelling basis in the
administrative record to conclude that Alvord’s letter
to Giddiens reminding him that union members must
seek preapproval for time off for any reason, including
the performance of union business during work hours,
evidenced antiunion animus. To the contrary, Alvord
testified that the policy requiring preapproval for time
off is applicable to all employees, including nonunion
employees, and is necessary so that the department can
properly plan for employees to be away from their work
responsibilities. Moreover, given the apparent confu-
sion between union officers and department supervi-
sors as to the applicability of the policy, which was
clearly evidenced by Torre and DeJesus’ disagreement
during the snowplow meeting, we agree with the board
that Alvord’s letter served the legitimate and reasonable
purpose of clarifying the scope of the attendance policy
and avoiding future misunderstandings.
Finally, we are not persuaded by the union’s con-
tention that the timing of each of these incidents neces-
sarily gave rise to an inference of antiunion animus.
Indeed, it would ‘‘swallow the burden and entire pur-
pose of the Wright Line analysis’’; N.L.R.B. v. Arkema,
Inc., 710 F.3d 308, 323 (5th Cir. 2013); if temporal con-
gruity between protected activity and adverse employ-
ment action alone could satisfy the union’s burden of
proving antiunion animus.
In sum, we conclude that substantial evidence sup-
ported the board’s determination that the union failed
to establish adverse employment action and that the
city’s conduct was motivated by antiunion animus on
the part of city supervisors. We therefore conclude that
the trial court properly dismissed the union’s appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 7-468 (a) provides: ‘‘Employees shall have, and shall
be protected in the exercise of, the right of self-organization, to form, join
or assist any employee organization, to bargain collectively through repre-
sentatives of their own choosing on questions of wages, hours and other
conditions of employment and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, free
from actual interference, restraint or coercion.’’
2
The union also alleged that Torre had ‘‘harass[ed] the President of the
Union . . . not to eat in a lunchroom or he would be disciplined . . . .’’
This allegation was not addressed by either the board or the court, and the
union does not raise it on appeal.
Additionally, although the union referenced Torre’s rendition of the song
‘‘Back Stabbers’’ in its prohibited practice complaint, it makes no argument
on appeal that this conduct by itself constituted a violation of § 7-470 (a)
(1). Rather, the union argues that this act provided a basis from which the
board should have found the existence of antiunion animus with respect
to other conduct alleged to violate § 7-470 (a) (1).
3
Although the union cited to §§ 7-467 through 7-470 of MERA in its com-
plaint, the board’s inquiry focused solely on whether the union violated § 7-
470 (a) (1). Neither the union nor the city challenge this aspect of the
board’s decision, and we therefore limit our analysis to determining whether
substantial evidence supported the board’s determination that the city did
not violate § 7-470 (a) (1).
4
The union also claims that the trial court erroneously found that the
union had conceded that substantial evidence supported the board’s deci-
sion. Because we conclude that substantial evidence did, in fact, support
the board’s decision, we need not address this issue.
5
29 U.S.C. § 158 (a) (1) provides in relevant part that ‘‘[i]t shall be an
unfair labor practice for an employer . . . to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in section 157 of
this title . . . .’’
6
See, e.g., In re Bridgeport Housing Authority, Conn. Board of Labor
Relations, Decision No. 4754 (August 7, 2014); In re Bristol, Conn. Board
of Labor Relations, Decision No. 4626 (December 18, 2012); In re Woodbridge
Board of Education, Conn. Board of Labor Relations, Decision No. 4565
(November 15, 2011).
7
We read the board’s decision in this regard to constitute a conclusion
that with respect to the third prong (1) the city did not harbor antiunion
animus, and (2) any conduct it engaged in was not motivated by anti-
union animus.
We also note that the board’s recitation of the Wright Line test in its
decision is incomplete because its discussion of the third prong omits the
critical notion that the employer’s antiunion animus, if any, must be a
motivating factor in the adverse employment action. Instead, the board
treats the causal connection between the antiunion animus and the adverse
employment action as an affirmative defense. Our review of federal cases,
which we find persuasive, reveals that the causal connection between the
antiunion animus and the adverse employment action must be demonstrated
as part of the complainant’s prima facie case. See Sociedad Espanola de
Auxilio Mutuo y Beneficiencia de P.R. v. N.L.R.B., 414 F.3d 158, 161 (1st
Cir. 2005) (prima facie case under Wright Line must demonstrate, inter alia,
‘‘that the employer harbored animus toward unions, and . . . a causal link
between the anti-union animus and the termination’’); Huck Store Fixture
Co. v. N.L.R.B., 327 F.3d 528, 533 (7th Cir. 2003) (general counsel must
demonstrate ‘‘a causal connection between the animus and the implementa-
tion of the adverse employment action’’); N.L.R.B. v. Clinton Electronics
Corp., 284 F.3d 731, 738 (7th Cir. 2002) (NLRB must find ‘‘that the employer
harbored animus toward union activities, and that there was a causal connec-
tion between the animus and the decision to discipline’’).
8
Section 8 (a) (3) cases typically involve an employer discriminating or
retaliating against an employee for engaging in activities related to or arising
out of his or her union membership. In some cases, however, employees
may engage in protected activities that do not require membership in a
union, such as collectively raising workplace safety concerns to an employer.
In these situations, the claim is often pursued under § 8 (a) (1) of the NLRA,
which employs broader language and does not require that the employer’s
conduct be for the purpose of discouraging membership in a labor organiza-
tion. In these limited circumstances, regardless of whether the claim is
brought pursuant to § 8 (a) (3) or § 8 (a) (1), Wright Line is the appropriate
analytical framework to assess the complainant’s claim. See Holder Con-
struction Co., 327 N.L.R.B. 326, 326 (1998) (applying Wright Line to § 8 [a]
[1] claim that employer discharged employees for raising safety concerns
about work equipment).
9
Although violations of § 8 (a) (3) of the NLRA ordinarily require a showing
of antiunion animus under Wright Line, and violations of § 8 (a) (1) of the
NLRA usually do not require inquiring into an employer’s motive, exceptions
to these general principles do exist. For example, Wright Line is not applica-
ble in cases involving § 8 (a) (3) if the employer admits that it discharged
an employee for engaging in certain conduct, but disputes that the conduct
was protected by the statute. See N.L.R.B. v. Tri-County Manufacturing &
Assembly, Inc., 76 Fed. Appx. 1, 6 (6th Cir. 2003) (‘‘In the present case, the
conduct that [the employer] claims justifies the termination is the very same
conduct that the [NLRB] determined to be protected activity. Accordingly,
Wright Line is not instructive.’’). Moreover, the NLRB has acknowledged
that in a small category of § 8 (a) (1) claims that ‘‘[turn] on’’ employer
motivation, the Wright Line framework should be applied. See Wright Line,
supra, 251 N.L.R.B. 1089.
10
The NLRB has recognized that, as a matter of logic and statutory con-
struction, a violation of § 8 (a) (3) of the NLRA would necessarily constitute
a violation of § 8 (a) (1). See Hospital Cristo Redentor, Inc. v. N.L.R.B.,
488 F.3d 513, 518 n.1 (1st Cir. 2007) (‘‘[a] violation of [§] 8 [a] [3] of the
[NLRA] necessarily interferes with the exercise of statutory rights, and
therefore derivatively violates [§] 8 [a] [1] of the [NLRA]’’). The NLRB has
referred to such a violation as ‘‘derivative’’ and, thus, not independent of
the other sections of the NLRA. See Fun Striders, Inc. v. N.L.R.B., 686 F.2d
659, 661 (9th Cir. 1981) (‘‘Section 8 [a] [1] [of the NLRA] was intended as
a general definition of employer unfair labor practices. Violations of it may
be either derivative, independent, or both. . . . A derivative violation is
premised on a violation of [§ 8 (a) (2) through (5) of the NLRA, codified at
29 U.S.C. § 158 (a) (2) through (5)], which establish more specific categories
of employer unfair labor practices. In general, a violation of one of these
provisions will support a finding that [§] 8 [a] [1] has been derivatively
violated.’’).
11
The union quibbles with this language and asks, ‘‘how could one not
‘knowingly’ order someone to do something?’’ It is clear, however, that the
board’s use of the word ‘‘knowingly’’ was meant to convey that it found the
union’s evidence insufficient to establish that Torre ordered DeJesus to
wash a truck that he knew was clean.
12
Although the union makes the conclusory assertion that the board ‘‘bla-
tantly disregarded the evidence and testimony before it,’’ we find no indica-
tion in the record that the board disregarded any of the union’s evidence,
let alone that it did so ‘‘blatantly.’’ On the contrary, we construe the board’s
statement that the evidence before it was insufficient to establish that Torre
knowingly ordered DeJesus to wash a clean truck as a direct assessment
of the union’s evidence and a determination that it did not establish the
union’s prima facie case.