Middlebury v. Fraternal Order of Police, Middlebury Lodge No. 34 ( 2022 )

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TOWN OF MIDDLEBURY v. FRATERNAL ORDER
OF POLICE, MIDDLEBURY LODGE
NO. 34 ET AL.
(AC 44061)
Bright, C. J., and Moll and Bear, Js.
Syllabus
The plaintiff town appealed to the Superior Court from the decision of the
defendant State Board of Labor Relations determining that the town
had unilaterally changed an established past practice of including extra
duty pay in the calculation of pensions for members of the defendant
union, M Co., in violation of the Municipal Employees Relations Act
(§ 7-467 et seq.). The town established a retirement committee to admin-
ister its retirement plan, consisting of three members appointed by the
town. In the midst of ongoing negotiations with M Co. for a successor
collective bargaining agreement, the retirement committee notified M
Co. that it had decided to exclude extra duty pay from pension calcula-
tions. M Co. filed a complaint with the labor board, alleging that the
town violated the act when the retirement committee unilaterally elimi-
nated extra duty pay from pension calculations. The town claimed, inter
alia, that the labor board lacked jurisdiction over the complaint because
the retirement committee was not a municipal employer under the act
as defined by statute (§ 7-467). The labor board issued a finding that
the town violated the statute (§ 7-470 (a) (4)) requiring municipal
employers to bargain in good faith when the retirement committee
excluded extra duty pay from the calculation of pensions. The labor
board found, inter alia, that there was a consistent past practice of
including extra duty pay in pension calculations that had endured for
almost thirty years. It rejected the town’s contract defense, concluding
that M Co. had not waived its right to bargain over changes to the
calculation of future retirement benefits. The labor board applied its
well established standard that a waiver must be clear and unmistakable.
During the pendency of the town’s administrative appeal, the National
Labor Relations Board issued a decision in MV Transportation, Inc.
(368 N.L.R.B. No. 66), in which it abandoned the clear and unmistakable
waiver standard for determining whether a union has waived its right
to bargain over an otherwise mandatory subject of bargaining in favor
of the contract coverage standard in cases over which it had jurisdiction.
Because the National Labor Relations Board held that its newly adopted
rule applied retroactively to all pending cases, the trial court remanded
the town’s case to the labor board to determine whether it would adopt
the new standard. The labor board subsequently issued an order declin-
ing to adopt the contract coverage standard, and the court dismissed
the town’s administrative appeal, finding that the town had failed to
demonstrate any illegality, abuse of discretion, or prejudice to its rights
in the labor board’s decision. On the town’s appeal to this court, held:
1. The town could not prevail on its claim that the labor board improperly
determined that it had jurisdiction over M Co.’s prohibited practice
complaint: there was substantial evidence in the record to support the
labor board’s conclusion that the retirement committee was acting as
the town’s agent, as the town board of selectmen controlled the composi-
tion of the retirement committee under its authority to appoint and
remove committee members, the town charter and retirement plan
vested in the town the authority to amend or cancel the retirement plan
and, in deciding to exclude extra duty pay from pension calculations, the
retirement committee relied on the legal opinion of the town attorney;
moreover, contrary to the town’s claim, the labor board did not fail to
adhere to its own administrative precedent, as those prior labor board
decisions addressed actions by a retirement committee in administering
a plan with regard to specific employee applications, not actions
effecting unilateral change to the terms of a plan, and those decisions
did not address an agency relationship between pension boards and
cities; furthermore, the labor board’s decision did not violate the town’s
rights under the Home Rule Act (§ 7-188) as the labor board’s finding
that the retirement committee was acting as the town’s agent when it
unilaterally effected the change at issue did not deprive the town of the
right to legislate on purely local affairs or invalidate the town’s charter
or retirement plan; additionally, the labor board did not exceed its
jurisdiction, as it properly considered the terms of the town’s charter
and retirement plan to the extent necessary to resolve M Co.’s prohibited
practice complaint.
2. The town could not prevail on its claim that the labor board, in considering
the town’s defense to M Co.’s unilateral change complaint, failed to
apply the contract coverage standard: the labor board was not compelled
to follow the policy adopted by the National Labor Relations Board in
MV Transportation, Inc., and it did not act illegally, arbitrarily, or in
abuse of its discretion in declining to adopt the contract coverage stan-
dard; moreover, this court declined to consider the town’s unpreserved
argument that the labor board misapplied the clear and unmistakable
waiver standard to the facts it found.
Argued November 8, 2021—officially released May 10, 2022
Procedural History
Appeal from the decision of the defendant State
Board of Labor Relations determining that the plaintiff’s
change in its practice of including extra duty pay in
the calculation of pensions for members of the named
defendant violated the Municipal Employees Relations
Act, brought to the Superior Court in the judicial district
of New Britain, where the court, Hon. Stephen F. Fraz-
zini, judge trial referee, remanded the case to the defen-
dant State Board of Labor Relations to determine
whether a decision of the National Labor Relations
Board applied retroactively; thereafter, the case was
tried to the court, Hon. Stephen F. Frazzini, judge trial
referee; judgment dismissing the appeal, from which
the plaintiff appealed to this court. Affirmed.
Thomas G. Parisot, with whom was Connor McNa-
mara, for the appellant (plaintiff).
Frank Cassetta, general counsel, with whom were J.
Brian Meskill, and, on the brief, Harry B. Elliot, Jr.,
former general counsel, for the appellee (defendant
State Board of Labor Relations).
David S. Taylor, for the appellee (named defendant).
Opinion
BRIGHT, C. J. The plaintiff, the town of Middlebury
(town), appeals from the judgment of the trial court
dismissing the town’s administrative appeal from the
decision of the defendant State Board of Labor Rela-
tions (labor board). The labor board found that the
town violated the Municipal Employee Relations Act
(act), General Statutes § 7-467 et seq., by unilaterally
changing an established past practice of including extra
duty pay in the calculation of pensions for members of
the defendant Fraternal Order of Police, Middlebury
Lodge No. 34 (union), the union representing the town’s
police officers. On appeal, the town claims that the labor
board improperly (1) concluded that it had jurisdiction
over the union’s prohibited practice complaint and (2)
applied the incorrect standard for evaluating the town’s
contract defense to the unilateral change complaint.
We disagree and, accordingly, affirm the judgment of
the trial court.
The labor board found the following relevant facts.
The town is a municipal employer under the act, and
the union is an employee organization representing all
full-time employees of the town’s police department
with authority to exercise police powers, except for
the chief of police. By town meeting on March 22, 1967,
the town established the Town of Middlebury Retire-
ment Plan (retirement plan) and created the Retirement
Plan Committee (retirement committee) to administer
the plan. The three members of the retirement commit-
tee are appointed by the town’s board of selectmen and
must include one employee of the town, one member
of the town’s board of finance, and one citizen of the
town. Under the retirement plan, the retirement com-
mittee ‘‘shall have complete authority in all matters
pertaining to the administration of the [retirement]
[p]lan.’’ In addition, the retirement plan ‘‘may be
amended, modified or discontinued in a [t]own [m]eet-
ing held for that purpose.’’
In 1987, the town adopted a municipal charter, which
provided that the provisions of the retirement plan
‘‘shall remain in full force and effect until such time as
said plan is amended.’’
By town meeting on June 5, 1995, the town amended
the retirement plan, changing, among other things, the
definition of ‘‘salary’’ from ‘‘the actual compensation
received from the [t]own in any plan year’’ to ‘‘the actual
compensation paid to the employee by the [t]own in
any calendar year . . . .’’ Section 7.2 of the retirement
plan provides that ‘‘[t]he primary responsibility of the
[retirement] [c]ommittee is to administer the [retire-
ment] [p]lan for the exclusive benefit of the [m]embers
and their [b]eneficiaries, subject to the specific terms
of the [retirement] [p]lan. The [c]ommittee shall admin-
ister the [retirement] [p]lan in accordance with its terms
. . . and shall have the power to determine all ques-
tions arising in connection with the administration,
interpretation, and application of the [retirement]
[p]lan. Any such determination by the [c]ommittee shall
be conclusive and binding upon all affected parties.
‘‘The [c]ommittee may correct any defect, supply any
information, or reconcile any inconsistency in such
manner and to such extent as shall be deemed necessary
or advisable to carry out the purpose of the [retirement]
[p]lan, provided, however, that any interpretation or
construction shall be done in a nondiscriminatory man-
ner. The [c]ommittee shall have all powers necessary
or appropriate to accomplish its duties under the [retire-
ment] [p]lan.’’ Under § 7.6 of the retirement plan, ‘‘[t]he
[t]own reserves the right at any time and from time to
time by action of [t]own meeting to modify, amend or
terminate the [retirement] [p]lan.’’
By town meeting on August 25, 2011, the town estab-
lished the Town of Middlebury Defined Contribution
Retirement Plan (defined contribution plan) to provide
pension benefits for town employees hired on or after
July 1, 2011. Under the defined contribution plan,
‘‘ ‘[c]ompensation’ ’’ is defined as a ‘‘participant’s wages
as defined in [Internal Revenue] Code [§] 3401 (a) and
all other payments of compensation by the [e]mployer
(in the course of the [e]mployer’s trade or business)
for a [p]lan [y]ear . . . .’’
The town and the union are parties to a series of
successive collective bargaining agreements. The rele-
vant collective bargaining agreement at issue before
the labor board was effective from July 1, 2013, through
June 30, 2017 (agreement). Under article XVI of the
agreement, ‘‘[t]he [t]own agrees to maintain in effect
for the duration of this [a]greement the [retirement]
[p]lan dated July 1, 1967, as amended on July 1, 1995,
and to further amend the [r]etirement [p]lan to provide
that employees retiring after twenty (20) years shall
receive credit for [2.5 percent] of the average pay per
year of service for the first twenty years of service and
[2] percent for years 21 through 30 with a maximum
benefit accrual of [70 percent]. . . . The employee con-
tribution to the Middlebury Retirement Fund shall be
[4.6 percent] for the duration of this agreement. . . .
Those employees hired on or after July 1, 2013, shall
become members of the . . . [d]efined [c]ontribution
[p]lan as developed by the [retirement committee], as
approved at a [t]own [m]eeting on August 25, 2011.’’
Article VI, § 1, of the agreement provides for ‘‘ ‘special
police duty’ ’’ or ‘‘ ‘extra police work’ ’’ (extra duty),
defined as ‘‘assignment for work during off-duty hours
for some other party or entity other than the police
department or other than the [t]own.’’ Article XVII, § 2,
provides that ‘‘[a]ll benefits, rights and privileges
enjoyed by the employees prior to entering into this
[a]greement which are not specifically provided for or
which are not relinquished or abridged by or in conflict
with the other provisions of this [a]greement are hereby
made a part of and protected by this [a]greement.’’
The labor board found that ‘‘[union] members have
regularly worked extra duty. ‘Extra duty’ is work per-
formed in the capacity of a police officer that is volun-
tary, occurs outside the member’s normal work hours,
is not performed as part of the member’s normal duties,
and is paid for by an entity other than the police depart-
ment (e.g., a private contractor or another municipal
department). Such entities pay the town the applicable
rate for extra duty hours worked as well as an adminis-
trative surcharge assessed by the town. The town
includes pay for extra duty hours worked in [union]
members’ regular paychecks and when it receives funds
from third party entities, the town reimburses itself for
such payments and retains the administrative sur-
charges. . . .
‘‘[S]ince on or before 1988, the town included extra
duty pay as ‘salary’ when calculating and paying pension
benefits to [union] members and when calculating and
collecting employee pension contributions, to the
extent that such contributions were assessed, pursuant
to the [retirement plan]. . . . [F]rom the inception of
the defined contribution plan, the town included extra
duty pay as ‘compensation’ when calculating and col-
lecting employee or matching pension contributions to
said plan.’’ (Footnotes omitted.)
In March, 2017, the town and the union began negotia-
tions for a successor agreement to the agreement expir-
ing on June 30, 2017. On August 10, 2017, amidst ongoing
negotiations, the retirement committee ‘‘met and dis-
cussed the impact of [union] extra duty [pay] on the
[retirement plan]. [The] town chief financial officer,
Lawrence Hutvagner, informed the [retirement commit-
tee] that, while third party entities reimbursed the town
for extra duty pay, extra duty was a liability of the
[retirement plan]. The [retirement committee] members
then unanimously voted to have the town attorney clar-
ify whether extra duty pay was properly included in
[retirement plan] benefit calculations.’’
In an October 23, 2017 memorandum addressed to
the retirement committee, the town attorney, Robert
W. Smith, who was representing the town in the negotia-
tions with the union, claimed that ‘‘[t]he definition of
salary, as amended in 1995, in conjunction with the
addition of [§] 7.2 (which vests conclusive plan interpre-
tation in the [retirement committee]), certainly allows
the [retirement committee] to vote, consistent with its
interpretation, on the issue of whether the [retirement
plan] includes/excludes extra duty pay in/from pension
calculations, going forward.’’ Smith averred that the
1995 change to the definition of salary ‘‘is significant,
inasmuch as extra duty pay, although always ‘received
from’ the town, was always ‘paid’ by private parties.
The fact that the money is passed through the town
does not change who actually pays it (private parties).’’
On October 24, 2017, the retirement committee voted
unanimously to clarify that extra duty pay is not included
in a member’s ‘‘salary’’ or ‘‘compensation’’ as defined
in the retirement plan and the defined contribution plan.
In a January 30, 2018 letter, the retirement committee
informed the union that the committee had decided to
exclude all extra duty pay from pension calculations
and that the town would refund the pension contribu-
tions withheld against such pay during the period of
January 1, 2010, through October 24, 2017. The board
noted that the town’s records regarding union members’
wages ‘‘cannot differentiate members’ extra duty earn-
ings from members’ other earnings prior to [January
1, 2010].’’
On January 24, 2018, the union filed a complaint1 with
the labor board alleging that the town violated the act
when the retirement committee unilaterally eliminated
extra duty pay from the calculation of members’ pen-
sions. In response, the town claimed that the board lacked
jurisdiction over the complaint because the retirement
committee, which had engaged in the conduct at issue,
is a separate legal entity from the town and is not a
municipal employer under the act. In the alternative,
the town claimed that the union had waived its right to
bargain as to the change at issue because the agreement
incorporated by reference the retirement plan, which
authorizes the retirement committee ‘‘to determine all
questions arising in connection with the administration,
interpretation, and application of the [retirement plan]’’
and provides that ‘‘[a]ny such determination . . . shall
be conclusive and binding upon all affected parties.’’
After a three day hearing, the labor board issued its
decision on December 21, 2018,2 finding that the town
violated General Statutes § 7-470 (a) (4) when the retire-
ment committee excluded extra duty pay from the cal-
culation of members’ pension benefits.3 The labor board
first determined that it had jurisdiction to adjudicate the
union’s prohibited practice complaint because, although
the retirement committee is not a municipal employer
under the act,4 the retirement committee’s change to
the calculation of retirement benefits was attributable
to the town under principles of agency law. The labor
board then determined that the union had established
a prima facie case of unlawful unilateral change to a
term or condition of employment. Specifically, the labor
board found that there was a consistent past practice
of including extra duty pay in the calculation of pension
benefits that had endured for almost thirty years before
the retirement committee’s October, 2017 meeting. The
labor board rejected the town’s contract defense, con-
cluding that the union had not waived its right to bargain
over changes to the calculation of future retirement
benefits by referencing the retirement plan in the par-
ties’ agreement. In so concluding, the labor board
applied its well established standard for determining
whether a union has waived its right to bargain over
an otherwise mandatory subject of bargaining, which
requires that the waiver be clear and unmistakable. See,
e.g., In re State of Connecticut, Conn. Board of Labor
Relations Decision No. 2859 (October 30, 1990) p. 5
(‘‘[t]o constitute a waiver of rights . . . the waiver
must be clear and unmistakable’’).
The town appealed from the labor board’s decision
to the Superior Court pursuant to General Statutes § 4-
183.5 After the parties appeared for oral argument and
submitted briefs in the trial court, the National Labor
Relations Board (NLRB) issued a decision in which it
abandoned the clear and unmistakable waiver standard
in favor of the contract coverage standard in cases over
which it has jurisdiction. See MV Transportation, Inc.,
368 N.L.R.B. No. 66 (September 10, 2019). Because the
NLRB held that the newly adopted rule applies retroac-
tively to all pending cases, the trial court remanded the
present case to the labor board to consider whether to
adopt the new federal standard in Connecticut and, if
so, whether to apply it retroactively in the present case.
On December 12, 2019, the labor board issued an
order declining to adopt the contract coverage stan-
dard, and the court issued its decision dismissing the
town’s appeal on March 12, 2020. The court determined
that the labor board’s decision was supported by sub-
stantial evidence and that the town had failed to demon-
strate any illegality, abuse of discretion, or prejudice
to its rights in the labor board’s decision. This appeal
followed. Additional facts will be set forth as necessary.
We begin with the applicable standard of review for
both of the plaintiff’s claims. ‘‘[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. . . . [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.’’ (Internal quotation marks omitted.)
AFSCME, AFL-CIO, Council 4, Local 2405 v. Norwalk,
156 Conn. App. 79, 85–86, 113 A.3d 430 (2015).
I
The town first claims that the labor board improperly
determined that it had jurisdiction over the union’s pro-
hibited practice complaint. The town argues that, in
finding that the retirement committee’s decision to
exclude extra duty pay from pension calculations was
attributable to the town under principles of agency law,
the labor board (1) misapplied the law of agency, (2)
failed to adhere to its own administrative precedent,
(3) failed to consider the import of Connecticut’s Home
Rule Act, General Statutes § 7-188, and (4) exceeded
its authority under the act by considering whether the
retirement plan had been modified. We address each
argument in turn.
A
We first address the town’s argument that the labor
board misapplied the law of agency. ‘‘The existence of
an agency relationship is a question of fact . . . which
may be established by circumstantial evidence based
upon an examination of the situation of the parties,
their acts and other relevant information. . . .
‘‘Three elements are required to show the existence
of an agency relationship: (1) a manifestation by the
principal that the agent will act for him; (2) acceptance
by the agent of the undertaking; and (3) an understand-
ing between the parties that the principal will be in
control of the undertaking. . . . [A]n essential ingredi-
ent of agency is that the agent is doing something at the
behest and for the benefit of the principal.’’ (Citations
omitted; internal quotation marks omitted.) Bank of
America, N.A. v. Gonzalez, 187 Conn. App. 511, 516–17,
202 A.3d 1092 (2019). ‘‘[T]he labels used by the parties
in referring to their relationship are not determinative;
rather, a court must look to the operative terms of
their agreement or understanding.’’ (Internal quotation
marks omitted.) National Publishing Co. v. Hartford
Fire Ins. Co., 287 Conn. 664, 678, 949 A.2d 1203 (2008).
In its decision, the labor board explained that
‘‘[c]ourts have found the absence of a specific enabling
statute to be dispositive in determining that a municipal
body is not a distinct body politic. . . . The sole appli-
cable enabling statute, [General Statutes] § 7-450,6 does
not afford the [retirement committee] legal status inde-
pendent of the town. . . . Furthermore, the record
before us reflects the three elements necessary to estab-
lish an agency relationship . . . . We find the first two
elements in the town’s establishment of the [retirement
committee] and the pension plans at issue. As to the
third element, we note that it is only the general right
to control, and not the actual exercise of specific con-
trol that must be established, that [a]gents may be
vested with considerable discretion and independence
in how they perform their work for the principal’s bene-
fit, yet still be deemed subject to the principal’s general
right to control, and that the control needed to establish
the relation of master and servant may be very attenu-
ated. . . .
‘‘The town created the [retirement committee], which
exists for the sole purpose of administering a town
retirement plan according to its terms. This function
does not include the power to modify or to amend the
terms of the plans as that authority is expressly reserved
to the town’s legislative body, not the [retirement com-
mittee]. . . .
‘‘Purporting to administer the pension plans in the
absence of a specific application for benefits, the [retire-
ment committee] substantially changed the terms of
the plans, diminishing [union] members’ future benefits
to the town’s advantage. We need not assess whether
this conduct was unauthorized or ultra vires because
. . . the town has ratified the [retirement committee’s]
conduct. . . . Absent a statute affording the [retire-
ment committee] independent legal status, we cannot
but find that it is [the town’s] agent acting with actual
authority and we reject the specious argument that
these circumstances afford the town a valid means to
circumvent its duty under the act to negotiate substan-
tial changes to [union] members’ future pension bene-
fits with the union.’’ (Citations omitted; emphasis in
original; footnote added; footnotes omitted; internal
quotation marks omitted.)
On appeal, the town argues that, as to the first two
agency elements, ‘‘[u]ncontested evidence established
that the [retirement committee] constitutes an indepen-
dent committee, comprised of members from labor,
management, and the electorate, with the independent
purpose of providing administrative and fiduciary over-
sight of the retirement plan(s).’’ As to the third element,
the town argues that it ‘‘has no oversight capability with
respect to the [retirement committee]; it cannot direct
the [retirement committee] and it cannot review the
[retirement committee’s] authorized actions pursuant
to its duties.’’
The labor board responds that, ‘‘[v]iewed as a whole,
the [retirement plan’s] language limiting the [retirement
committee’s] role to ‘administer[ing] the [retirement
plan]’ and reserving to the town the exclusive right to
‘amend, modif[y] or discontinue’ the plan terms, evi-
dences an understanding that the town, not the [retire-
ment committee], is in overall control of the undertak-
ing.’’ For its part, the union argues that, ‘‘[b]y handpicking
all three members of the [retirement committee], the
town controls not just the one member [whom] the
town characterizes as ‘management,’ but the entire
panel. . . . [T]he [retirement committee] actively coor-
dinated with the town attorney . . . who would later
represent the town before the labor board, to justify
reduction of the pension benefit[s] of union members.
. . . This is not the behavior of an independent body.’’
We agree with the labor board and the union.
In support of its argument, the town principally relies
on § 7.2 of the retirement plan, which provides that the
retirement committee’s primary responsibility is to
administer the retirement plan for the exclusive benefit
of the members and grants the retirement committee
‘‘conclusive and binding’’ authority ‘‘to determine all
questions arising in connection with the administration,
interpretation, and application of the [retirement plan].’’
Although these provisions arguably support the town’s
position, as the retirement committee’s decisions are
binding on the town as well as the union, the signifi-
cance of these provisions is diminished by other provi-
sions in the charter and retirement plan that support
the labor board’s finding of agency.
For example, the town charter provides that, ‘‘[i]n order
to provide for the proper administration of the business
of the [t]own, the boards, commissions and committees
specified [herein] shall, except as otherwise provided
herein, be appointed by the [b]oard of [s]electmen by
a majority vote of the entire [b]oard to perform the
duties and functions herein provided or provided in the
General Statutes . . . .’’ The charter further provides
that the retirement committee members are ‘‘appointed
to serve the [b]oard of [s]electmen in accordance with
and subject to the provisions of the [t]own [o]rdinances
and the General Statutes.’’ (Emphasis added.) Under the
retirement plan, ‘‘[t]he term of office of each member
of the [retirement] [c]ommittee shall be subject to deter-
mination by the [b]oard [of selectmen]. A [c]ommittee
member . . . may be removed by the [b]oard [of select-
men] by delivery to such member of written notice of
removal, to take effect at a date specified therein, or
upon delivery of such written notice to the [c]ommittee
if no date is specified.’’
These provisions establish that the town created the
retirement committee to serve the town’s board of
selectmen by administering the town’s retirement plan.
The board of selectmen controls the composition of
the retirement committee under its authority to appoint
and remove committee members. In addition, because
the town reserves the right to amend or terminate the
retirement plan, the town has the authority to eliminate
the retirement committee or limit the retirement com-
mittee’s authority to administer the retirement plan.
Indeed, as noted by the court, the town, by town meet-
ing, ‘‘may just as easily remove the [retirement commit-
tee’s] power to administer or interpret the [retirement
plan] as it did in assigning those responsibilities to [the
retirement committee].’’ Accordingly, because the char-
ter and the retirement plan vest in the town the authority
to appoint and remove individual members of the retire-
ment committee and to amend or cancel the retirement
plan itself, it reasonably follows that the town maintains
the right to control the retirement committee.
Furthermore, in deciding to exclude extra duty pay
from the calculation of members’ retirement benefits,
the retirement committee relied on the legal opinion of
the town attorney, who was representing the town in
ongoing negotiations with the union. Consequently, it
reasonably follows that the retirement committee
understood that the town wanted the retirement com-
mittee to ‘‘interpret’’ the retirement plan in accordance
with the town attorney’s opinion. See, e.g., LeBlanc v.
New England Raceway, LLC, 116 Conn. App. 267, 275,
976 A.2d 750 (2009) (‘‘[a]n agent acts with actual author-
ity when, at the time of taking action that has legal
consequences for the principal, the agent reasonably
believes, in accordance with the principal’s manifesta-
tions to the agent, that the principal wishes the agent
so to act’’ (internal quotation marks omitted)). Thus,
although there may be evidence in the record that sup-
ports the town’s position, we conclude that there is
substantial evidence in the record to support the labor
board’s findings and that its conclusion that the retire-
ment committee was acting as the town’s agent logically
follows from the facts found.
B
The town next argues that the labor board failed to
follow its own precedent holding that the labor board
‘‘[does] not have jurisdiction over [prohibited practice]
complaints alleging unilateral change[s] attributed to
municipal pension boards analogous to the [retirement
committee].’’ We disagree.
In its decision, the labor board addressed its prior
decisions in In re City of Norwalk, Conn. Board of
Labor Relations Decision No. 3885 (October 22, 2002),
and In re City of Milford, Conn. Board of Labor Rela-
tions Decision No. 3701 (June 10, 1999). The labor board
distinguished these cases, noting that ‘‘[t]he [retirement
committee] . . . must necessarily act independent of
the town in specific cases if it is to administer [retire-
ment] plan terms notwithstanding the town’s vested
interest in conserving finite resources and its obliga-
tions to ‘make contributions . . . sufficient to make all
benefit payments . . . .’ Citing [In re City of Milford
and In re City of Norwalk], the town argues [that] our
past recognition of this autonomy supports its claim
that the [retirement committee’s] actions in this case
are not attributable to the town through basic principles
of agency. We are not persuaded.
‘‘In [In re] City of Milford, a union did not contest
an arbitration award denying a grievance challenging
a rejection of a disability pension application on the
basis that the pension board making [that] decision was
autonomous and acted independent of the municipal
employer. We subsequently dismissed the . . . prohib-
ited practice complaint for the same reason as res judi-
cata. Similarly, in [In re] City of Norwalk, a union
accepted the municipal employer’s resolution of griev-
ances challenging a pension board’s refusal to afford
applicants survivorship options and we dismissed the
union’s unilateral change complaint because the appli-
cants failed to avail themselves of the appeals provision
in the pension plan. Both cases involved pension board
decisions in cases involving specific employee applica-
tions and reason that, while the municipal employer ‘is
the entity responsible for negotiating pension benefits,
that responsibility clearly does not extend to having
control over the decisions of the pension board itself
. . . . [B]y agreeing to the pension plan, the parties
have agreed to this status and function of the pension
board.’ . . .
‘‘Purporting to administer the pension plans in the
absence of a specific application for benefits, the [retire-
ment committee] substantially changed the terms of
the plans, diminishing [union] members’ future benefits
to the town’s advantage.’’ (Citation omitted; footnote
omitted.)
The town claims that the labor board draws ‘‘an artifi-
cial distinction’’ between In re City of Milford and In
re City of Norwalk in concluding ‘‘that, because this
case arose in the context of general plan administra-
tion—and not in the context of an application for bene-
fits—that the [retirement committee] is not an indepen-
dent entity and was acting as an agent of the town.
This conclusion disregarded the substantial evidence
presented to the [labor] board.’’ We are not persuaded.
Although the town minimizes the distinction drawn
by the labor board, the labor board found it to be signifi-
cant, noting that the retirement committee had not
administered the plan when it effected the unilateral
change but rather ‘‘substantially changed the terms of
the plans, diminishing [union] members’ future benefits
to the town’s advantage.’’ Moreover, in In re City of
Milford and In re City of Norwalk, the labor board did
not address the elements of an agency relationship and,
instead, summarily found that there was insufficient
evidence for it to conclude that either pension board
was an agent of the respective city. In the present case,
by contrast, the labor board found substantial evidence
to support a finding of an agency relationship, and, as
we concluded in part I A of this opinion, the record
supports the labor board’s findings. Accordingly, we
conclude that the labor board reasonably determined
that the decisions in In re City of Milford and In re City
of Norwalk were distinguishable from the present case.
C
The town next argues that the labor board, by focus-
ing on the absence of an enabling statute granting the
retirement committee independent legal status, disre-
garded ‘‘the fact that the town’s charter, including its
[retirement plan] and the designation of the [retirement
committee] therein, constitutes the organic law of the
town pursuant to [the] Home Rule Act.’’7 We are not
persuaded.
‘‘It is settled law that as a creation of the state, a
municipality has no inherent powers of its own. . . .
A municipality has only those powers that have been
expressly granted to it by the state or that are necessary
for it to discharge its duties and to carry out its objects
and purposes. . . . The Home Rule Act . . . is the rel-
evant statutory authority. Under the [Home Rule] [A]ct,
municipalities have the power to adopt a charter to
serve as the organic law of that municipality. . . . It
is well established that a [town’s] charter is the fountain-
head of municipal powers. . . . The charter serves as
an enabling act, both creating power and prescribing
the form in which it must be exercised. . . .
‘‘The purpose [of the act] is clearly twofold: to relieve
the General Assembly of the burdensome task of han-
dling and enacting special legislation of local municipal
concern and to enable a municipality to draft and adopt
a home rule charter or ordinance which shall constitute
the organic law of the [municipality], superseding its
existing charter and any inconsistent special acts. . . .
The rationale of the act, simply stated, is that issues
of local concern are most logically answered locally,
pursuant to a home rule charter, exclusive of the provi-
sions of the General Statutes. . . . Moreover, home
rule legislation was enacted to enable municipalities to
conduct their own business and [to] control their own
affairs to the fullest possible extent in their own way
. . . upon the principle that the municipality itself
[knows] better what it want[s] and need[s] than . . .
the state at large, and to give that municipality the
exclusive privilege and right to enact direct legislation
which would carry out and satisfy its wants and needs.
. . . Consistent with this purpose, a state statute can-
not deprive [municipalities] of the right to legislate on
purely local affairs germane to [municipal] purposes.
. . . Consequently, a general law, in order to prevail
over a conflicting charter provision of a [municipality]
having a home rule charter, must pertain to those things
of general concern to the people of the state . . . .’’
(Citations omitted; internal quotation marks omitted.)
Cook-Littman v. Board of Selectmen, 328 Conn. 758,
768–69, 184 A.3d 253 (2018).
The town argues that, ‘‘pursuant to the Home Rule
Act, the charter and the [retirement] plan define that
all issues related to pension administration must be
determined exclusively by the [retirement committee].
. . . The provisions of the [retirement] plan vest in
the [retirement committee] the exclusive authority to
interpret the plan provisions. As such, the determina-
tion of whether the salary contributions and benefit
calculations include police extra duty pay falls squarely
within the [retirement committee’s] enumerated pow-
ers and duties. Further, the [retirement committee’s]
conclusion with respect to whether police extra duty
pay constitutes salary does not conflict with any statu-
tory mandate or any definition or requirement set forth
in the charter or the plan itself.’’ In its reply brief, the
town further argues that ‘‘the state does not have an
interest in whether the town’s police officers’ extra duty
pay is included in or excluded from their pension benefit
calculations. This is a matter of local concern and the
Home Rule Act should apply.’’
Because the labor board’s decision neither deprives
the town of the right to legislate on purely local affairs
nor invalidates the town’s charter or retirement plan,
it is unclear how the Home Rule Act undermines the
labor board’s finding that the retirement committee was
acting as the town’s agent when it unilaterally effected
the change at issue. To the extent that the town suggests
that the Home Rule Act allows the town to avoid its
statutory obligation to bargain with the union regarding
changes to a mandatory subject of bargaining, we are
not persuaded. Aside from the additional description
of the charter and the retirement plan as the ‘‘organic
law’’ of the town, the town simply restates its argument
that the provisions of the retirement plan establish the
independence of the retirement committee. The labor
board rejected this argument and concluded that the
retirement committee was acting as the town’s agent,
and we have determined that this conclusion is sup-
ported by substantial evidence in the record. Accord-
ingly, we conclude that the labor board’s decision did
not violate the town’s rights under the Home Rule Act.
D
Finally, the town argues that, ‘‘assuming arguendo,
that the [labor] board had jurisdiction over the [retire-
ment committee], its order remains outside the scope
of the subject matters that it has jurisdiction to adjudi-
cate.’’ Specifically, the town argues that ‘‘[d]etermining
whether a public retirement system plan has been modi-
fied (properly or defectively) is not within the [labor]
board’s powers and it cannot decide a prohibited prac-
tice complaint premised on a legal determination that
it is not empowered to make.’’ We are not persuaded.
The labor board has jurisdiction to adjudicate a pro-
hibited practice complaint under General Statutes § 7-
471 (5), which provides in relevant part: ‘‘Whenever a
question arises as to whether a practice prohibited by
sections 7-467 to 7-477, inclusive, has been committed
by a municipal employer or employee organization, the
[labor] board shall consider that question . . . .’’ In
Piteau v. Board of Education, 300 Conn. 667, 689, 15
A.3d 1067 (2011), our Supreme Court noted that,
although the labor board ‘‘is not the proper body to
resolve contract disputes that do not involve an allega-
tion of a prohibited labor practice, [there is] no author-
ity . . . to support [a] claim that the [labor board] may
not exercise jurisdiction over a breach of contract claim
when it is interdependent with a claim over which the
[labor board] does have jurisdiction.’’
In the present case, the union filed a prohibited prac-
tice complaint alleging that the town unilaterally
changed a term or condition of employment as to which
it was required to bargain with the union. Under § 7-471
(5), the labor board had jurisdiction to consider whether
such a unilateral change occurred and, in considering
that issue, the labor board found that the town had
changed a condition of employment by reducing the
future retirement benefits of union members without
bargaining. Thus, the labor board had jurisdiction to
consider the terms of the retirement plan insofar as it
was necessary to resolve the prohibited practice com-
plaint, over which the labor board had jurisdiction. See
id., 688–89; see also National Labor Relations Board
v. Strong, 393 U.S. 357, 361, 89 S. Ct. 541, 21 L. Ed.
2d 546 (1969) (‘‘[T]he [NLRB] may proscribe conduct
which is an unfair labor practice even though it is also
a breach of contract remediable as such by arbitration
and in the courts. . . . It may also, if necessary to adju-
dicate an unfair labor practice, interpret and give effect
to the terms of a collective bargaining contract.’’ (Cita-
tion omitted.)). Stated differently, the labor board prop-
erly considered the terms of the charter and retirement
plan to the extent necessary to resolve the union’s pro-
hibited practice complaint. Accordingly, we conclude
that the labor board did not exceed its jurisdiction in
the present case.
In sum, for all of the foregoing reasons, we conclude
that the labor board’s findings are supported by substan-
tial evidence in the record and that its conclusion that
it had jurisdiction to consider the union’s prohibited
practice complaint reasonably follows from the facts
found.
II
Finally, the town claims that the labor board, in con-
sidering the town’s defense to the union’s unilateral
change complaint, improperly failed to apply the con-
tract coverage standard, as adopted by the NLRB in MV
Transportation, Inc., supra, 368 N.L.R.B. No. 66.
The following legal principles regarding the unilateral
change doctrine are relevant to the town’s claim. In
National Labor Relations Board v. Katz, 369 U.S. 736,
743, 82 S. Ct. 1107, 8 L. Ed. 2d 230 (1962), the United
States Supreme Court held that an employer violates
§ 8 (a) (5) of the National Labor Relations Act (NLRA),
when, without first bargaining to impasse, the employer
unilaterally changes a term or condition of employment
that is a mandatory subject of bargaining. Although
Katz involved a unilateral change during negotiations
for an initial collective bargaining agreement, ‘‘[t]he
Katz doctrine has been extended as well to cases where
. . . an existing agreement has expired and negotia-
tions on a new one have yet to be completed.’’ Litton
Financial Printing Division v. National Labor Rela-
tions Board, 501 U.S. 190, 198, 111 S. Ct. 2215, 115 L.
Ed. 2d 177 (1991).
Likewise, a municipal employer and an employee
organization ‘‘have the duty to bargain collectively
. . . .’’ General Statutes § 7-469. ‘‘[A] unilateral change
to an employment condition constitutes an unlawful
refusal to negotiate under the [act]. . . . To establish
a unilateral change of a condition of employment, the
union must establish that the employment practice was
clearly enunciated and consistent, [that it] endure[d]
over a reasonable length of time, and [that it was] an
accepted practice by both parties. . . .
‘‘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 where the collective
bargaining agreement gives express or implied consent
to the type of unilateral action involved.’’ (Citations omit-
ted; emphasis omitted; footnote omitted; internal quota-
tion marks omitted.) Board of Education v. State Board
of Labor Relations, 299 Conn. 63, 73–74, 7 A.3d 371(2010).
Although both this court and our Supreme Court have
‘‘had little occasion to address the standards that apply
in determining whether a union has established a viola-
tion of labor law under the unilateral change doctrine,
the [labor] board has applied the doctrine in many cases
over many years.’’ Id., 73 n.8.
In the present case, the town does not dispute that
employees’ pension benefits are a condition of employ-
ment that are a mandatory subject of collective bar-
gaining under the act or that the inclusion of extra duty
pay in the calculation of pension benefits was a clearly
enunciated and consistent past practice. See West Hart-
ford Education Assn., Inc. v. DeCourcy, 162 Conn. 566,
576, 295 A.2d 526 (1972) (‘‘[t]he significance of calling
something a ‘condition of employment’ is that it then
becomes a mandatory subject of collective bargaining’’);
see also Allied Chemical & Alkali Workers of America,
Local Union No. 1 v. Pittsburgh Plate Glass Co., 404
U.S. 157, 180, 92 S. Ct. 383, 30 L. Ed. 2d 341 (1971)
(‘‘future retirement benefits of active workers are part
and parcel of their overall compensation and hence a
well-established statutory subject of bargaining’’). Instead,
the town claimed that the union had waived its statutory
right to bargain regarding the change to the calculation
of members’ pensions because the references to the
retirement plan and the defined contribution plan in
article XVI of the parties’ agreement authorized the
retirement committee’s unilateral action.
‘‘Because waiver of statutory rights by unions is disfa-
vored, the purported waiver must be clear and unmis-
takable. . . . Waiver may be established by either an
express provision in the collective bargaining agree-
ment, or by the conduct of the parties, including past
practices and bargaining history. . . . An employer
relying on a claim of waiver of a duty to bargain bears
the burden of demonstrating it clearly and unmistak-
ably.’’ (Citations omitted; internal quotation marks
omitted.) Greater Bridgeport Transit District v. State
Board of Labor Relations, 43 Conn. Supp. 340, 358, 653
A.2d 229 (1993), aff’d, 232 Conn. 57, 653 A.2d 151 (1995).
In the present case, the labor board, applying the
clear and unmistakable waiver standard, rejected the
town’s defense, explaining that ‘‘[n]either the collective
bargaining agreement nor the [retirement] plan docu-
ments contain the unequivocal and specific language
necessary to waive the union’s right to bargaining over
removal of extra duty compensation from pension cal-
culations and contributions. There is no mention of the
role of extra duty pay in either plan, the specific past
practice at issue. As to past practices in general, consid-
eration of extra duty pay for pension purposes is, in
our view, protected under [article] XVII, § 2, of the
collective bargaining agreement as a ‘[benefit], [right]
and [privilege] enjoyed by the employees’ that was not
‘relinquished or abridged by or in conflict with the other
provisions’ of the agreement. Nor do we find that the
1995 amendments to the [retirement] plan . . . made
any significant change to the [retirement committee’s]
authority. The [retirement committee] already had ‘com-
plete authority in all matters pertaining the administra-
tion’ of the [retirement plan] under the 1967 plan docu-
ment and the town does not contend that the [retire-
ment committee] is empowered to perform functions
in addition to that role.’’
Until recently, the NLRB also applied the clear and
unmistakable waiver standard when considering an
employer’s defense to a unilateral change complaint.
See MV Transportation, Inc., supra, 368 N.L.R.B. No.
66, slip op., p. 4. ‘‘This standard is predicated on the
union’s waiver of its right to insist on bargaining, and
it requires bargaining partners to unequivocally and
specifically express their mutual intention to permit
unilateral employer action with respect to a particular
employment term, notwithstanding the statutory duty
to bargain that would otherwise apply.’’ (Emphasis in
original; internal quotation marks omitted.) Id.
Now, however, under the contract coverage standard
recently enunciated in MV Transportation, Inc., the
NLRB ‘‘will assess the merits of [an employer’s] defense
by undertaking the more limited review necessary to
determine whether the parties’ collective-bargaining
agreement covers the disputed unilateral change (or
covered it, if the disputed change was made during the
term of an agreement that has since expired). In doing
so, the [NLRB] will give effect to the plain meaning of
the relevant contractual language, applying ordinary
principles of contract interpretation; and the [NLRB]
will find that the agreement covers the challenged uni-
lateral act if the act falls within the compass or scope
of contract language that grants the employer the right
to act unilaterally. . . . Accordingly, [the NLRB] will
not require that the agreement specifically mention,
refer to or address the employer decision at issue. . . .
Where contract language covers the act in question, the
agreement will have authorized the employer to make
the disputed change unilaterally, and the employer will
not have violated [§] 8 (a) (5) [of the National Labor
Relations Act (NLRA)].’’ (Citation omitted; internal quo-
tation marks omitted.) Id., 11.
The NLRB noted that the contract coverage standard
encourages employers and unions ‘‘to foresee potential
labor-management relations issues, and resolve those
issues through collective bargaining in as comprehen-
sive a manner as practicable. Moreover, by ensuring
that all provisions of the parties’ agreement are given
effect, the contract coverage test will end the [NLRB’s]
practice of selectively applying exacting scrutiny only
to those provisions of a labor contract that vest in
the employer a right to act unilaterally. The contract
coverage test will also end the [NLRB’s] practice of
sitting in judgment on certain provisions of the parties’
agreement—contrary to the authoritative teaching of
the Supreme Court—by refusing to give effect to those
provisions unless a standard of specificity is met that
is, in practice, all but impossible to meet. By adopting
contract coverage, [the NLRB] will also ensure that [its]
contract interpretations remain within the [NLRB’s] lim-
ited authority to interpret collective-bargaining agree-
ments in the exercise of [its] primary jurisdiction to
administer the [NLRA], but because [the NLRB] will
apply the same standard the courts apply, [its] interpre-
tations will predictably align with theirs as well. Finally,
adopting contract coverage will discourage forum shop-
ping. Since the [NLRB] will resolve unilateral-change
disputes under the same standard that arbitrators apply,
there will no longer be any incentive to bypass grievance
arbitration, and such disputes will be channeled into
the method agreed upon by the parties . . . .’’ (Empha-
sis in original; footnote omitted; internal quotation
marks omitted.) Id., 9.
One member of the NLRB, Lauren McFerran, issued
a separate opinion in MV Transportation, Inc., concur-
ring in part and dissenting in part. McFerran noted
her disapproval with the NLRB’s decision to overrule
seventy years of NLRB precedent by abandoning the
clear and unmistakable waiver standard. Id., 25 (Mem-
ber McFerran, concurring in part and dissenting in part).
She explained that the United States Supreme Court
endorsed the clear and unmistakable waiver standard
in National Labor Relations Board v. C & C Plywood
Corp., 385 U.S. 421, 430–31, 87 S. Ct. 559, 17 L. Ed. 2d
486 (1967), holding that the NLRB properly concluded
that a contested provision in a collective bargaining
agreement did not authorize the employer’s unilateral
action. MV Transportation, Inc., supra, 368 N.L.R.B.
No. 66, slip op., p. 29 (Member McFerran, concurring
in part and dissenting in part); see also C & C Plywood
Corp., 148 N.L.R.B. 414, 416 (1964) (‘‘Waiver of a statu-
tory right will not lightly be inferred. The relinquishment
to be effective must be ‘clear and unmistakable.’ ’’). In
National Labor Relations Board v. C & C Plywood
Corp., supra, 430, the United States Supreme Court
reasoned that, ‘‘[i]n reaching [its] conclusion, the [NLRB]
relied upon its experience with labor relations and the
[NLRA’s] clear emphasis upon the protection of free
collective bargaining. We cannot disapprove of the
[NLRB’s] approach. For the law of labor agreements
cannot be based upon abstract definitions unrelated to
the context in which the parties bargained and the basic
regulatory scheme underlying the context.’’
In her opinion concurring in part and dissenting in
part, McFerran also explained that ‘‘the theory of con-
tract coverage originated with the District of Columbia
Circuit, decades after C & C Plywood [Corp.] was
decided. The [c]ircuit’s seminal 1993 decision in [National
Labor Relations Board v. United States Postal Service,
8 F.3d 832 (D.C. Cir. 1993)] is notable both for its failure
to address the [United States] Supreme Court’s decision
in C & C Plywood [Corp.] and for its inconsistency
with [c]ircuit precedent endorsing the [NLRB’s] waiver
standard. . . .
‘‘There is no acknowledgment in [United States] Postal
Service that the waiver doctrine was (even then) long
and firmly established in [NLRB] law, no acknowledg-
ment that the District of Columbia Circuit had pre-
viously rejected the [NLRB’s] deviation from the waiver
standard, and no acknowledgment that the Supreme
Court had approved the [NLRB’s] application of the
waiver standard in C & C Plywood [Corp.]. . .
‘‘From this flawed analytical foundation, the [District
of Columbia] Circuit reached a flawed result imposing a
new test that leading labor law scholars have criticized.
Those scholars observe that the [NLRB’s] waiver stan-
dard is more consistent with the policy of the [NLRA]
and that statutory policy is better realized when bar-
gaining over real and pressing matters is not held hos-
tage to linguistic contests over hypothetical future con-
tingencies.’’ (Citations omitted; footnotes omitted;
internal quotation marks omitted.) MV Transportation,
Inc., supra, 368 N.L.R.B. No. 66, slip op., 30–31 (Member
McFerran, concurring in part and dissenting in part).
We note that the contract coverage standard has been
considered and adopted by a minority of federal circuit
courts of appeal. At the time MV Transportation, Inc.,
was decided, only the First, Seventh, and District of
Columbia Circuits had adopted the contract coverage
standard. See id., 29 n.41 (Member McFerran, concur-
ring in part and dissenting in part). Recently, the Second
Circuit also adopted the contract coverage standard,
noting that it would ‘‘defer to the [NLRB’s] interpreta-
tions of the NLRA—including with respect to the legal
standard governing an unfair labor practice charge—
as long as its interpretations are ‘rational and consistent
with the [NLRA].’ ’’ International Brotherhood of Elec-
trical Workers, Local Union 43 v. National Labor Rela-
tions Board, 9 F.4th 63, 70–71 (2d Cir. 2021). After
considering the NLRB’s analysis in MV Transportation,
Inc., the Second Circuit concluded that it would ‘‘defer
to the [NLRB] and adopt the contract coverage standard
as rational and consistent with the [NLRA].’’ Id., 73.
The United States Supreme Court and the remaining
federal circuits have not addressed whether they should
similarly defer to the NLRB and abandon the clear and
unmistakable waiver test in favor of the contract cover-
age standard.
In the present case, the town claims that the contract
coverage standard should apply, arguing that the labor
board’s continued application of the clear and unmis-
takable waiver standard raises the same issues as those
identified by the NLRB and ‘‘runs counter to the frame-
work set out by the Connecticut Supreme Court with
respect to interpreting collective bargaining agree-
ments.’’ The labor board responds that the NLRB’s deci-
sions are not binding precedent and that its decision
to adhere to the waiver standard is entitled to deference.
We agree with the labor board.
We begin by noting that ‘‘[t]he Connecticut labor
board, like the NLRB, has broad discretion in adminis-
tering the state labor laws.’’ Connecticut State Labor
Relations Board v. Connecticut Yankee Greyhound
Racing, Inc., 175 Conn. 625, 638, 402 A.2d 777 (1978).
‘‘While the interpretation of provisions of the federal
act may be extremely helpful, however, neither the state
board nor our courts are compelled to slavishly follow
policies which have been adopted by the NLRB for the
purpose of ensuring administrative efficiency at the
federal level.’’ Id., 633–34.
As previously noted in this opinion, the labor board
declined to adopt the contract coverage standard. The
labor board has applied the clear and unmistakable
waiver standard for decades, and that standard has been
affirmed by our Supreme Court. See Greater Bridgeport
Transit District v. State Board of Labor Relations, 232
Conn. 57, 64, 653 A.2d 151 (1995) (adopting trial court’s
decision as ‘‘a statement of the facts and the applicable
law’’). Moreover, although the United States Supreme
Court has endorsed the clear and unmistakable waiver
standard, it has not considered the NLRB’s application
of the contract coverage standard. In addition, as the
agency tasked with enforcing the labor laws of this
state, the labor board’s policy decision is entitled to
deference. See Connecticut State Labor Relations Board
v. Connecticut Yankee Greyhound Racing, Inc., supra,
175 Conn. 640 (‘‘[b]ecause the relation of remedy to
policy is peculiarly a matter for administrative compe-
tence, courts must not enter the allowable area of the
[labor] [b]oard’s discretion and must guard against the
danger of sliding unconsciously from the narrow con-
fines of law into the more spacious domain of policy’’
(internal quotation marks omitted)). Consequently, just
as the Second Circuit, in International Brotherhood of
Electrical Workers, Local Union 43, deferred to the
NLRB, we similarly defer to the labor board in this case.
For these reasons, we conclude that the labor board did
not act illegally, arbitrarily or in abuse of its discretion
in declining to adopt the contract coverage standard.8
Finally, we note that the town did not claim in either
its principal or reply brief to this court that the labor
board misapplied the clear and unmistakable waiver
standard to the facts it found. Nevertheless, at oral
argument before this court, counsel for the town, for
the first time, argued that the town should prevail under
the clear and unmistakable waiver standard, as well as
the contract coverage standard. Because the town did
not properly brief whether the labor board correctly
applied the clear and unmistakable waiver standard,
we decline to consider it. See In re Adelina G., 56 Conn.
App. 40, 42, 740 A.2d 920 (1999) (‘‘[b]ecause the issue
was raised for the first time during oral argument and,
therefore, has not been properly briefed, we decline to
consider it’’).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The complaint was filed by NIPSEU-Middlebury Police Union (NIPSEU),
but the union replaced NIPSEU as the recognized representative for the
bargaining unit in February, 2018.
2
The board initially issued its decision on December 14, 2018, but it issued
a corrected decision on December 21, 2018, to correct minor clerical errors.
3
General Statutes § 7-470 provides in relevant part: ‘‘(a) Municipal employ-
ers or their representatives or agents are prohibited from . . . (4) refusing
to bargain collectively in good faith with an employee organization which
has been designated in accordance with the provisions of said sections as
the exclusive representative of employees in an appropriate unit . . . .’’
4
Under the act, a municipal employer is defined as ‘‘any political subdivi-
sion of the state, including any town, city, borough, district, district depart-
ment of health, school board, housing authority or other authority estab-
lished by law, a private nonprofit corporation which has a valid contract
with any town, city, borough or district to extinguish fires and to protect
its inhabitants from loss by fire, and any person or persons designated by
the municipal employer to act in its interest in dealing with municipal
employees . . . .’’ General Statutes § 7-467 (1).
5
General Statutes § 4-183 provides in relevant part: ‘‘(a) A person who
has exhausted all administrative remedies available within the agency and
who is aggrieved by a final decision may appeal to the Superior Court as
provided in this section. . . .’’
6
General Statutes § 7-450 provides in relevant part: ‘‘(a) Any municipality
or subdivision thereof may, by ordinance, or with respect to a municipality
not having the authority to make ordinances, by resolution adopted by a
two-thirds vote of the members of its legislative body, establish pension,
retirement, or other postemployment health and life benefit systems for its
officers and employees and their beneficiaries, or amend any special act
concerning its pension, retirement, or other postemployment health and life
benefit systems, toward the maintenance in sound condition of a pension,
retirement, or other postemployment health and life benefit fund or funds,
provided the rights or benefits granted to any individual under any municipal
pension or retirement system shall not be diminished or eliminated. The
legislative body of any such municipality, by resolution adopted by a two-
thirds vote of its members, may provide for pensions to persons, including
survivors’ benefits for widows of such persons, not included in such pension
or retirement system.
‘‘(b) Notwithstanding the provisions of the general statutes or of any
special act, charter, special act charter, home-rule ordinance, local ordinance
or other local law, any municipality or subdivision thereof may, by ordinance
and amendment thereto, or with respect to a municipality not having the
authority to make ordinances, by resolution adopted by a two-thirds vote
of the members of its legislative body, (1) establish one or more trusts, or
determine to participate in a multiemployer trust, to hold and invest the
assets of such pension, retirement or other postemployment health and life
benefit system; (2) provide for the management and investment of such
system and any such trust, including the establishment of a board or commis-
sion or the designation of an existing board or commission for such purposes;
or (3) provide for the organization of and the manner of election or appoint-
ment of the members of such board or commission. . . .
‘‘(c) The provisions of subsections (a) and (b) of this section shall not
operate to invalidate the establishment by any municipality or subdivision
thereof, pursuant to the provisions of any public or special act, charter,
special act charter, home-rule ordinance, local ordinance or local law, of
any postemployment health and life benefit system duly established prior
to October 1, 2005, or of any trust duly established or board or commission
duly established or designated prior to July 1, 2006, with respect to a pension,
retirement or other postemployment health and life benefit system.’’
7
General Statutes § 7-188 (a) provides: ‘‘Any municipality, in addition to
such powers as it has under the provisions of the general statutes or any
special act, shall have the power to (1) adopt and amend a charter which
shall be its organic law and shall supersede any existing charter, including
amendments thereto, and all special acts inconsistent with such charter or
amendments, which charter or amended charter may include the provisions
of any special act concerning the municipality but which shall not otherwise
be inconsistent with the Constitution or general statutes, provided nothing
in this section shall be construed to provide that any special act relative to
any municipality is repealed solely because such special act is not included
in the charter or amended charter; (2) amend a home rule ordinance which
has been adopted prior to October 1, 1982, which revised home rule ordi-
nance shall not be inconsistent with the Constitution or the general statutes;
and (3) repeal any such home rule ordinance by adopting a charter, provided
the rights or benefits granted to any individual under any municipal retire-
ment or pension system shall not be diminished or eliminated.’’
8
Following its decision in MV Transportation, Inc., the NLRB held ‘‘that
provisions in an expired collective-bargaining agreement do not cover post-
expiration unilateral changes unless the agreement contained language
explicitly providing that the relevant provision would survive contract expi-
ration.’’ Nexstar Broadcasting, Inc., 369 N.L.R.B. No. 61, slip op., p. 2 (April
21, 2020), enforcement granted, National Labor Relations Board v. Nexstar
Broadcasting, Inc., 4 F.4th 801 (9th Cir. 2021); see National Labor Relations
Board v. Nexstar Broadcasting, Inc., supra, 809 (‘‘[A]n employer may not
excuse itself from its obligation to maintain status quo working conditions
after the [collective bargaining agreement’s] expiration by simple reference
to the broad compass or scope of expired contractual terms. Rather, contract
rights only survive expiration if the [collective bargaining agreement] explic-
itly so provides.’’ (Emphasis in original.)).
In the present case, the town made the unilateral change to the retirement
plan and the defined contribution plan in October, 2017, after the parties’
agreement had expired on June 30, 2017. The provision in the parties agree-
ment on which the town relies provides that ‘‘[t]he [t]own agrees to maintain
in effect for the duration of this [a]greement the [retirement plan] dated
July 1, 1967, as amended on July 1, 1995 . . . .’’ (Emphasis added.) Accord-
ingly, because this provision does not contain express language providing
that it will survive the contract expiration, it appears that, even if we agree
with the town and adopt the contract coverage standard in Connecticut,
that standard would not apply in the present case because the unilateral
change at issue was made after the expiration of the collective bargaining
agreement.