.

’ f
L P ‘4 4
.; :’ i- ., .! ‘9
I* . ,, ; ” ‘. , 6
) 8
.’ v’ -* -
*’ . .

STATE $CONiQECTICUT
LABOR'DEPARTMENT

CONNECTICUT STATE BOARD OF LABOR RELATIONS

Decision No. 2443

and-
November 7,'1985
LOCAL 1378, Council #4,.
AFSCME, AFL-CIO .

Case No. MPP-8899 I

APPEARANCES:

Myron B. Bell, Esq.

for the City
. .
J. William Gagne, Jr., Esq.
for the Union

DECISION
and
DISMISSAL OF COMPLAINT

On September 28, 1984, Local 1378, Council #4, AFSCME, AFL-CIO (the
Union) filed with the Connecticut State Board of Labor Relations (Labor
Board) a complaint alleging that the City of Neti London (City) had engaged
and was engaging in prohibited practices within the meaning of the Municipal
Employee Relations Act (the Act) in that:

The City is in violation of Section 7-470(a)(4) end 7-470(c) of the

Act in that:

1. The City has unilaterally eliminated a clerical position in

the Assessor's Office and replaced it with a non-bargaining
unit part-time employee; and .
2. The City has unilaterally altered the work week of the
tractor-trailer driver in the transfer station.

The infractions cited in Items I & 2 were done without proper

negotiations or agreement with the Union. .

REMEDY SOUGHT: A statutory and comprehensive remedy is requested

including but not limited to reinstating the bar- -
gaining unit position in the Assessor's Office and
restoring the hours of the tractor trailer driver
and make the employees whole for any losses
incurred as a result of these unilateral changes.
a .’
L .,a
* I * * .’ . l .I
I :’ . , ’
. ;*
: 1 ‘I
’ -

? I

I a

After the requisite preliminary. &e&x had been taken, the parties
appeared before the Labor Board for a hearing on.Maroh 7, 1985. Both
parties were represented at the hearing and were provided .a full opportunity
to adduce evidence, examine and cross-examine witnesses and make argument.
At the hearing, the Union withdrew that'part of its complaint referred to in
numbered paragraph one (I) of the complaint. Written briefs were filed by
the City and the Union respectively on May 9 and May 14, 1985;

On the basis.of the record before us, we make the following findings of
fact, conclusions of law, and order of dismissal.
Findings of Fact

1. The City is a municipal employer within the meaning of the Act.

.
2. The Union is an employee organization within the meaning of the
Act.

3. At the times relevant to this case, the Union has been the
exclusive bargaining representative for employees of the City including the
employees in question in this case. .
4. At the times relevant to this case, the parties had in effect
'between them-a collective bargaining agreement (the Contract) (Exhibit 2).

5. Article VII Section 7.2 of the Contract addresses hours of work and
states:

It is mutually understood and agreed that although there are

employees whose work schedule is outside of the basic work hours
(8:00 a.m. to 4:30 p.m.) the basic work day shall not be more
than eight (8) hours in any twenty-four (24) hour period. And
that the basic work week shall not exceed forty (40) hours in
any pay week.
(Exhibit 2)

6. Article VII Section 7.5 of the Contract also addresses hours 'of
work and states:

A department head after consultation with the Union committee

for his department may for a special purpose make other regular
(full time) assignments. Such assignments shall be for a
continuous eight (8) hour day plus a thirty (30) minute lunch
period. The Union shall have the right to request in writing of
the City Manager a change in the summer operating hours in any
department where summer hours have been implemented from time to
time in past years. These requested changes, if granted, will
be implemented after notice is given to the Union. .
(Exhibit 2)

7. The Contract contains a comprehensive grievance procedure at

Article VI.

-2- ;
.’ , ‘1 *’ - .’ -
!

8 . Article VI Section 6.; 'of:tha 'Contract defines a grievance as

"relative to rates of pay, hours of work, or working conditions."

9. Article VI Section 6.2(A) of the Contract provides that a

grievance may be filed through various progressively higher steps within the
City administration if it is not resolved.

10. Article VI Section 6.3 provides that if the grievance is not

resolved by the City Manager or his designee (the last grievance step within
the City administration), it may be brought to arbitration before the
Connecticut State Board of Mediation and Arbitration (Arbitration Board).
In such an arbitration proceeding, the Arbitration Board is empowered to
make an "interpretation and/or application of the particular provision(s) of
the [Contract] which gave rise to the grievance" and the Board's arbitration
decision is binding on both parties. .

11. James Knapp is a member of the bargaining unit.

12. In June 1984, the City changed Knapp's work schedule from Monday
through Friday to Tuesday through Saturday.

13. This was done after notice and discussions with the Union, but
without bargaining to impasse or agreement.

14. Pursuant
- to Article VI of the Contract, the Union filed a
grievance on behalf of Knapp on June 28, 1984. The grievance stated:

.NAME OF EMPLOYEE James Knaun DEPARTMENT

CLASSIFICATION Maintainer-i11
WORK LOCATION Lewis St. Complex IMMEDIATE SUPERVISOR Joseph Foley
TITLE Tractor trailer driver
i
STATEMENT OF GRIEVANCE:
List Applicable violation: Section 7-1, 7-5, 8-1, 8-6
Appendix C. Not Limited to & in violation of M.E.R.A.

Adjustment Required: Return hours to 8 A.M. to 4 P.M. Monday

thru Friday according to Public Works Contract.

I authorize the A.F.S.C.H.E. Local 1343 as my representative to act

for me in the disposition of this fzrievance.
Date 6-28-84 - Signature of Employee s/ James Knapp
Signature of Union Representative s/ Edward F. Lasky
Title Vice-Pres. L. 1378
.
Date Presented to Management Representative 6-29-84
x x x
(Exhibit 3)

15. By July 24, 1984, the grievance had been denied on the merits at .
the first two steps of the grievance procedure. (Exhibits 4 and,5).
The denial issued by A. H. Sims, Jr., City Director of Public Works/City ._
Engineer, stated:

-3- .
 .,
a.’ :s -. 1 . a’., , *
‘,
,.( .f .1* _
f I
. *

TO: Mr. James Knapp, ~a&&T&dler Driver

FROM: A. H. Sims, Jr., P. E., Dirctor of Public Works/City Engineer

SUBJECT: Grievance dated June 28, 1984

------------------------------------------------------------------
Your grievance is denied.

a) Mr. Knapp's assignment complies with sections 7.5 and 7.2

in that it is 40 hours per week, 8 hours per day, and with
l/2 hour for lunch. It is for the special purpose of
providing Saturday bulky waste service to the City's
citizens. It is a direct successor to the assignment
previously worked by Highway Division personnel at the
Bates Woods Landfill. It was implemented after due
consultation with officials of-Local 1378.

b) Shift differential is being paid.for Saturday work as

provided in section 7.7.

4 Overtime, when required, is paid as provided in section 8.1.

d) Overtime, when required, is equalized amongst the.tractor-

trailer drivers as provided in section 8.6.

, 4 Mr. Knapp was assigned to this shift as provided in.

section 3.2 because he is the least senior man in 'the' : '.'
department within his classification and the other two
more senior men preferred not to work this shift.

f) Mr. Knapp is not involved in solid waste collection

procedures and therefore appendix C is not applicable
to him.

The City has offered, and hereby repeats that offer, to schedule this
shift in any manner acceptable to the three tractor trailer drivers
involved. The City has suggested a monthly rotation with each driver
in turn taking one month of special purpose shift so that each would
work Saturdays only one month per quarter.

cc: President, Local 1378

Personnel Officer
Superintendent, Solid Waste
(Exhibit 4)

16. The Union did not pursue the grievance to arbitration. .

17. Subsequently, the prohibited practice complaint

. in the present
ca<se was filed on September 28, 1984.

.
-4- -

.
 1 . The Labor Board has jurisdiction to interpret a collective bargain-
ing agreement when the employer raises its terms as a defense to the Union's
charge of illegal unilateral change.

2 . In such a case, if a grievance previously had been filed

challenging the same employer action challenged by the prohibited practice
complaint, and the union failed to bring the grievance to binding arbitra-
tion after denial of the grievance on the merits, the union will be barred
from challenging the employer's interpretation of the contract if:
(a) the, issue of contract interpretation determinative of the
grievance is the same issue of contract interpretation that would be
determinative of the prohibited practice case; and
(b) the grievance proceedings were fair and regular; and
(c) the parties have agreed to be bound by grievance settlements;
- . and (d) to apply such a bar would not be repugnant to the purposes
and policies of the Act.

3. Based on the rule set forth in conclusion two (2), the Union is
barred from denying the City's interpretation of Article VII Section 7.5 in
this case, and its complaint therefore must be dismissed.

Discussion

The present case presents precisely the sa.me type of fact pattern as
existed in City of New London, Decision No. 2411 (June 26, 1985) and what we
said there is also dispositive here:

A unilateral change in an existing practice concerning the

fixed schedule of employee hours will constitute a violation of the
employer's duty to bargain in good faith and a prohibited practice
unless the employer has an appropriate defense.. Town of Newington,
Decision No. 1116 (1973); Town of Westport, Decision No. 1602
(1977); Town of East Windsor, Decision No. 2334 (1984). One
defense which an employer may show is that the change in practice
is permitted by the collective bargaining agreement. Town of
Newington, supra; State of Connecticut (Office of Corncw),
Decision No. 1871 (1980); Redding Board of Education, Decision No.
1922 (Woo); Town of North Branford, Decision No. 2242 (1983).

It is the employer's position that Article VII Section 7.5 of

the Contract permitted the change in question provided the employer
had previously consulted with the Union over the change. The
employer argues that it met this pre-condition and that it was
therefore allowed by Section 7.5 to make the change. On the other
hand, the Union argues that Section 7.5 requires negotiation to
final impasse or agreement before a change in hours can be made and
that the City's interpretation that mere discussion fulfills the
pre-condition of Section 7.5 is an erroneous interpretation.of the
Contract. The Union also argues that the change here in question
is not the type of change in hours contemplated under Section 7.5. --
It is upon this dispute over the meaning of the Contract that this
-5- .
 4 6

case would ultimately turn. ' However; for the reasons dis&ssed
below, we must dismiss the Union?8 complaint without giving our own
interpretation to the Contract.

In Windsor Board of Education, Decision No. 1644 (May 9, 1978),

we ruled that in the context of a grievance procedure which
provides only advisory arbitration-as a final step, a union's .
acceptance of the employer's denial of a grievance on the merits
will not constitute a bar to our consideration of the same
contractual issue in a subsequent prohibited practice proceeding if .
the union is able to show that the employer has made a unilateral
change in an existing practice. In that case, we discussed various
theories for why the prior abandonment of the grievance might
constitute such a bar and explained why'there was no such bar in
that case:

[the union] claims that Respondent violated the Act by

making a unilateral change in the terms and conditions of
employment and by repudiation of the Contract. This Board
clearly has jurisdiction to determine whether those claims, or
either of them, has merit. Respondent does not question this
but contends that [the union] is estopped from proceeding in
this forum because of its abortive,attempt to present.the
dispute to the contractual grievance-arbitration procedure.
Me overrule this contention for several reasons.
x'x x
* If Respondent, by claiming estop@l, intends to invoke some
aspect of the ,doctrine of res judicata, the claim must fail
because the denial of the grievance was probably not on the
merits. To the extent that it was (as an alternative ground,
see Ex. #8), we hold that the advisory character o.f the final
step (arbitration) deprives all grievance steps of that
character of finality that is required for application of any
aspect of res judicata.
(Windsor Bd. of Ed. at pp. 3 and 4)

With regard to res judicata, the record shows that the crucial
factors that werabsent in Windsor Board of Education are in fact
fully present in the instant case. Here, the arbitration available
to the Union was not advisory; it was binding. Also, the denial of
the grievance here was on the merits. Finally, the contractual
issue determinative of the grievance is the same contractual issue
. that would be determinative of whether the City committed a
. prohibited practice, i.e., Did Article VII, Section 7.5 allow the
City to malse the change? Had .such facts obtained in Windsor Board
of Education, we undoubtedly would have found the union's claim
barred.

A major policy consideration underlying the concept of res .

judicata is that adjudication should be brought to a final 7
conclusion with reasonable promptness and with finality.* This is
, . also one of the major policy reasons behind the grievance
procedures found in collective bargaining agreements. See, e.g.,
4- . .

.
 State of Connecticut (Gary Thomas), Decision No. 1766 (1979); State
of Connecticut, Department of Children and Youth Services
(Molinaro), Decision No. 1870 (1980). Such grievance procedures
are the parties' mutually agreed upon private substitute for
litigation in the courts. It is at least as important that issues
litigated in grievance procedures be disposed of quickly and with
finality as is the case with court litigation.

In the present case, that part of the doctrine of res judicata

referred to as issue preclusion is fully applicable.*yhe
contractual interpretation point in question was litigated through
the grievance procedure by the parties, was determined on its
merits, and was necessarily determined. To now unravel that
determination after the Union in effect accepted that determination
. instead of exercising its right to pursue arbitration would
undermine the important policies served by accepted principles of
civil procedure and grievance procedures. .
Abiding by resolutions of disputes accomplished through the
grievance procedure is one of the most important policies of the
Act. Sections 7+70(a)(6) and (b)(3) of the Act expressly make it
a prohibited practice for either an employer or a union to
"[refuse] to comply with a grievance settlement...". The fact that
the Legislature chose to include in the Act the express prohibited
practice embodied in Section 7-470(a)(6) and (b)(3) demonstrates _ .e
the strength of the public policy that adherence to grievance
settlements is essential to our system of collective bargaining.
When.the Union failed to proceed to.arbitration after the City's
denial of the grievance on the merits, the dispute over the change
in schedule and the contract interpretation point on which it
turned was settled for the incident in,question. This is at least
the equivalent of a'grievance settlement.***
The rule that we have set forth in the present case is similar
to our longstanding policy of post-arbitral deferral. It has
always been the rule of both this Board and the NLRB that when a
prohibited practice or unfair labor practice case turns upon an
interpretation of a collective bargaining'agreement, the labor
relations agency will defer to an arbitration award resulting from
prior resort to the grievance procedure. In such cases we do
require that the arbitral proceedings were "fair and regular," all
parties had agreed to be bound by the arbitral award and the award
is not repugnant to the purposes and policies of the labor
. relations statutes. See New Fairfield Board of Education, Decision
.l No. 1666 (1978); Spielberg Manufacturing Co., 112 NLRB 1080
(1955). It would be wholly arbitrary to follow such an approach
where grievances are resolved by an arbitration award, but refuse
to follow that course where a grievance has been resolved at an
earlier step of the grieyance,procedure. In the present case, the .
grievance proceedings appear to have been fair and regular in every
way and there is no evidence to the contrary. Similarly, the
parties' collective bargaining agreement clearly contemplates that
each be bound by grievance settlements reached at any step of the

-7-
 ’ ( . - . .
(I; *.: a
. , ‘. ,:
‘ . ’
t I
4 8
procedure. Finally, to bar the Union from challenging the City's
interpretation of the Contract'in the present case is in no way
repugnant to.the purposes and policies of the Act. The settlement
in effect acknowledges that in a collective bargaining agreement a
union may agree either expressly or by fair implication to an
employer's making unilateral changes. We have always recognized
that such specific provisions in.collective bargaining agreements
are legal and should be given effect where they are found to
exist.- Town of Newington Board of Education, supra, State of
Connecticut (Office of the Comptroller), supra; Redding Board of
Education, supra; Town of North Branford, supra.

+ Se'e James and Hazard, Civil Procedure 19'77, Chpt- 11.2, Pa 530

. ** See James'and Hazard at Chpt. 11.16, pp. 563-564

** The City did not file a prohibited practice against the Union
for its having brought the present case. This is understandable
because we have ruled that to find a party's resort to a tribunal
. to test its rights to be a prohibited practice, the complainant
must prove subjective bad faith on the part of the.respondent.
City of New Haven, Decision No. 1325 (1975); Bristol Federation of .
Teachers, Decision No. 1656 (1978); Hartford Board of Education,
Decision No. 2032 (1981). This is a very difficult burden to prove
as was demonstrated in all three of those cases.

(Decision No. 2411, PP* 5-8)

Dismissal of Comnlaint

By virtue of and pursuant to the powers vested in the Connecticut State

Board.of Labor Relations by. the Municipal Employee Relations Act, it. is

ORDERED, that the complaint filed herein be, and the same hereby is,
dismissed.

CONNECTICUT STATE BOARD OF LABOR RELATIONS

BY s/ Patricia V. Low
Patricia V. Low
.

‘.

s/ Craig Shea
Craig Shea

s/.Cornelius J. Scanlon
Cornelius J. Scanlon
CSBLR Dec.
No. 2443
NEW LONDON
MPP-8899
NO. CV 85 0313031 S
LOCAL 1378, COUNCIL 4, : SUPERIOR COURT
AFSCME, AFL-CIO
JUDICIAL DISTRICT OF HARTFORD/
V. : NEW BRITAIN
AT MANCHESTER
CONNECTICUT STATE BOARD OF
LABOR RELATIONS and
CITY OF NEW LONDON : July 14, 1987

MEMORANDUM OF DECISION

On September 28, 1984, Local 1378, Council #4, AFSCME, AFL-

CIO (the Union) filed with the Connecticut State Board of Labor

Relations (Labor Board) a complaint alleging that the City of

New London (City) had engaged and was engaging in prohibited

practices within the meaning of the Municipal Employee Relations

Act, Section 7-467 et seq., Connecticut General Statutes, (the Act

in that the City had unilaterally altered the work week of the

tractor-trailer ‘driver in the transfer station.

On March 7, 1985, the Labor Board conducted a hearing on the

complaint. Both parties appeared, were represented by counsel,
presented testimony and were fully heard. On November 7, 1985, th
Labor Board issued its Decision and Dismissal of Complaint.

This appeal was initialed by the Union under authority of

Section 4-183 of the Connecticut General Statutes (UAPA) on

.c _ _.. i z ! VJ.5
November 27, 1985. After a&kO$r&te !gleading and briefs by the
t . \:LI46.
!!. I:-, , .! .; ;', ._.&..-
7..1 ‘
. . . .
 I..
6
!’ . L’
..

;Inion and the Labor Board, oral argument was had on June 23, 1987.
The City of New London adopted the position of the Labor ;
Board in this appeal.
The Union and the City are parties to a collective
.- bargaining!
agreement (Contract) effective September 27, 1983 to June 30, 1986:
(Exhibit 2). Article VII Section 7.2 of'the Contract (Exhibit 2) !
concerns the employees' hours of work and provides for a basic
work day of 8:00 a.m. to 4:30 p.m. with the proviso that some
employees have in the past worked and will continue ,to work out-
side of these basic hours. Section 7.5 of the same article also
concerns hours of work and provides as follows:
Section 7.5 A department head, after consultation with
the Union Committee for his department may for a special
purpose, make other regular (full-time) assignments.
Such assignments shall be for a continuous eight (8) hour
day plus a thirty (30) minute lunch period. The Union
shall have the right to request in writing ,of the City
Manager a change in the summer operating hours in any
department where summer hours have been implemented from
time to time in past years. These requested changes, if
granted, will be implemented after notice is given to the
Union.
(Exhibit 2)
The Contract between the parties also contains a comprehensive
grievance procedure in Article VI. Section 6.1 of that Article 1
defines a grievance as "relative to rates of pay, hours of work
or working conditions." Section6.3 of the grievance article I
provides that if the grievance is not resolved by the City Manager
o'r his designee (which is the last grievance step within the City :
 ,
administration) it may be processed to arbitration before the

Connecticut State Board of Mediation and Arbitration (hereinafter 1

Arbitration Board). The Arbitration Board is empowered to make (

,
a n "interpretation and/or applicaiton of the particular provision :

of the [Contract] which gave rise to the grievance" and is binding ;

on both parties.

James Knapp was employed by the City as a tractor-trailer 1

driver. (Trans. page 4). In June of 1984 the City changed Knapp's I

work schedule from Monday through Friday to Tuesday through Sat- I

urday. This change occurred after the City notified the Union and;
discussions with the Union President were held on the proposed ;
schedule change. (Trans. page 39). !

On June 28, 1984, the Union, pursuant to Article VI of the i

Contract, filed a grievance (Exhibit 3) on Knapp's behalf request-;

ing as a remedy a return to a Monday-Friday schedule. The griev- i

I
ante was denied at both the first two steps. (Exhibit 4 and
I
Exhibit 5).

The record does not suggest that the Union pursued the griev-

iance beyond this step. Counsel for the Union admitted during oral
'argument that the grievance procedure terminated after the July
I
124 , 1984 denial. (Exhibit 5). It is therefore found that the Union
;.e
idid not avail itself of the binding arbitration procedures available
1
under the contract to resolve the issue. Thereafter; on September i

;$L 1984, it filed a prohibited practice complaint before the Labor

 I
!oard raising the same issue by alleging in count 2 that the City i
1
lad unilaterally altered Knapphs work week without bargaining with 1
:he Union. (Exhibit 1).
.The Labor Board dismissed the Union's complaint. It reasoned

:hat if a grievance had previously been filed challenging the same

action as challenged by a prohibited practice complaint and the

Jnion failed to bring the grievance to binding arbitration the

Jnion will be barred from challenging the employer's interpretation

of the Contract if:

(1) the issue of contract interpretation determi-

native of the grievance is the same issue of contract

interpretation that would be-determinative of a pro-

hibited practice case;

(2) the grievance proceedings were fair and regular;

(3) the parties have agreed to be bound by grievance

settlements;

(4) to apply such a bar would not be repugnant

to the purposes and policies of the Act. (Return Item No.4.)
From that decision the Union appealed to this Court.
The Court finds from the defendants' admission of paragraphs

2 through 6 of the Union's complaint that the Union is aggrieved

by the decision and has standing to pursue this appeal. The

d;fendants do not contest aggrievement.

i 4
i’
‘I I
!!,/I
jj
/i
‘I i The determinative issue in this case is whether or not the j
I
I/: failure to pursue the grievance procedure to arbitration, as
II authorized by the Contract, constituted a "resolution" or "settle-i
i’
i I ment" of the dispute which precludes the use of the prohibited
I
I practice complaint by the Union thereafter under the-theory of
I :

Iii” deferral", res judicata or otherwise.

! A subordinate issue raised by the Union relates to whether
I
‘! there was a finding or the need for a finding by the Labor Board
I
that the Union was aware of the possible consequences of its
i
action in not proceeding with arbitration.
I!
Based upon the following analysis the Court concludes that
/
I the Labor Board was correct in its determination that the Union
;)
is barred from challenging the employer's interpretation of the
I/ contract where the grievance procedure had previously been used to!

raise the same issue even though not processed to arbitration

I! I
I where
iI
(1) the issue of contract interpretation determinative of the
I
I/
iI
grievance is the same issue that would be determinative of the proI
I
9 hibited practice, (2) the grievance proceedings were fair and j
/ j
Ii
regular, (3) the
parties have agreed to be bound, and (4) to apply/
1’ I
i’ I
/I such a bar would not be repugnant to the purposes of the Act. I
I I

I A unilateral change in an existing practice concerning the (

!’
1:
II fixed schedule of employee hours will constitute a violation of :
jiI; .c ,
I
i/ the employer's duty to bargain in good faith and ,a prohibited
1;
!I practice unless the employer has an appropriate defense. One
j/,
II
jj
:Ia / I

5
i;

i!
defense which an employer may show is that the change in practice j

is permitted by the collective bargaining agreement. I

In the present case the City in the grievance procedure and :
I
,before the Labor Board argued that Article VII 57.5 of the Contract
I

permitted the change of scheduling Knapp from a Monday-Friday ]

schedule to a Tuesday-Saturday one, provided that they consulted !

with the Union over the change prior to implementation of this j

pre-condition. The Union, on the other hand, argued before the !

I
Labor Board that Article VII S7.5 requires negotiation to final :

impasse or agreement, not mere discussions. Thus the issue before:

&he Labor Board was not whether there was a change in work schedule,

but whether the Contract permitted the change. The Labor Board ;
refused to rule on the interpretation of the Contract because the I

Union had the opportunity to litigate this issue in the grievance/j

arbitration setting but did not elect to pursue'it past the second;
step. The Labor Boarddismissed the complaint stating:

A major policy consideration underlying the con-

I cept of res judicata is that adjudication should be
brought to final conclusion with reasonable prompt-
ness and with finalty. This is also one of the
I major policy reasons behind the grievance procedures I
found in collective bargaining agreements. See, e.g.
State of Connecticut (Gary Thorns), Decision No. 1766
(1979); State of Connecticut,Departmatof Children and
Youth Services (Molinaro), Decision No. 1870 (1980).
Such grievance procedures are the parties' ,mutually
agreed upon private substitute for litigation in the
courts. It is at least as important that issues
litigated in grievance procedures be disposed of
quickly and with finality as is the case with court
litigation.

6
it

:I
] Abiding by resolutions of disputes accomplished
!I through the grievance procedure is one of the most
j/
j: important polices of the Act. Sections 7-470(2)(6)
1; and (b)(3) of the Act expressly make it a prohibited
Ii practice for either an employer or a union to
11I; I
"[refuse] to comply with a grievance settlement...".
'
!i : The fact that the Legislature chose to include in
:! the Act the express prohibited practice embodied in
/I Sections 7-470(a)(6) and (b)(3) demonstrates the-
/I ,
1:: strength of the public policy that adherence to
II grievance settlements is essential to our system of
/I collective bargaining. When the Union failed to
:: proceed to arbitration after the City‘s denial of the
;II! grievance on the merits, the dispute over the change
I!II in schedule and the contract interpretation point on
which it turned was settled for the incident in ques- /
;
IIj tion. This is at least the equivalent of a grievance \
/: settlement. (footnotes omitted). (Complaint Exhibit A
j;
!! pages 6,7).
!;
I;
Ii The Union claims that there is no basis for the Labor Board's;
i!
:Idecision barring the Union from denying the City's interpretation
Ii I
,:of
! Article VII Section 7.5 of the Contract.
Ii:;
The Labor Board's decision is based upon not only well reasoned
!!
;, res judicata grounds but the labor law concept'of deferral.
: I: The doctrine of res judicata is that "[a] final judgment
I/
;.rendered upon the merits without fraud or collusion, . . . is con-
I
::
, elusive of causes of action and of facts or issues thereby litigat id
: as to the parties and their privies in all other actions in the

,:,same or any other judicial tribunal of concurrent jurisdiction.

‘I.. The doctrine is but a manifestation of the recognition that
i
/ endless litigation leads to confusion or chaos". Wade's Dairy, In&.
v . Fairfield, 181 Corm. 556, 559 (1980). The doctrine is applicable
;,
::to administrative agencies acting in their official capacity.
Corey v. Avco Lycominq Division, 163 Conn. 309, 318 (1972).
"Collateral estoppel is an awkward phrase, but
it stands for an extremely important principle in our
adversary system of justice." Ashe v. Swensen, Supra,
443. It is ' 'that aspect of the doctrine of res
judicata which serves to estop the relitigation by
parties and their privies of any right, fact or legal
matter which is put in issue and has been once deter-
mined by a valid and final judgment of a court of
competent jurisdiction."' . . . We ha.ve held that the
doctrine may also apply to determinations of adminis-
trative aclencies under certain circumstances. See
Corey v. Avco Lycoming Division, 163 Conn. 309, 318,
307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S.
ct. 903, 34 L.Ed. 2d 699 (1973); see also United States
V. Utah Construction & Mining Co., 384 U.S. 394, 421,
86 s.ct. 1545, 16 L. Ed. 2d 642 (1965); 2 Am. Jur. 2d,
AdministrativeLaw s496." State v. Fritz, 204 Conn. 156
(1987).
Judicial interpretation accorded the National Labor Relations 1
Act is persuasive in the interpretation of Connecticut labor law. /

Local Union No. 1522 v. Conn. State Board of Labor Relations, 31 1

Conn. Sup. 15, 20 (1973); Windsor v. Employees Assn., 154 Conn.

530, 536 (1967).

The National Labor Relations Board (NLRB) has historically

deferred to a previously rendered arbitration award where (1) the

artitral proceedings have been fair and regular, (2) the parties
had agreed to be bound, and (3) the arbitral award is not repug-

nant to the purposes and policies of the act. Spielberg Manufac-

turing Co., 112 NLRB'(#139) 1080 (1955). The Connecticut Labor
Board adopted this reasoning in New Fairfield Board of Education,

Decision No. 1666 (1978).

a
j. The rationale for such deferral has been articulated by the

.,NLRB and the federal courts. In International Harvester Co., 138

'NLRB (No. 88) 923, 927, 51 LRRM 1155 (1962) the NLRB stated:

If complete effectuation of the Federal policy is

to be achieved, we firmly believe that the Board, which
is entrusted with the administration of one of the many
facets of national labor policy, should give hospitable
acceptance to the arbitral process as "part and parcel
of the collective bargaining process itself" and vol-
untarily withhold its undoubted authority to adjudicate
alleged unfair labor prohibited charges involving the
same subject matter, unless it clearly appears that the
arbitration proceedings were tainted by fraud, collusion,
unfairness or serious procedural irregularities or that
the award was clearly repugnant to the purposes and
policies of the Act. . . . (footnotes omitted).

Plaintiff also argues that the Labor Board's decision is

arbitrary and capricious because it was made without precedent

and was applied retroactively. This argument is flawed in two

respects. First, the reasoning used by the Labor Board in the

~I
#present case are standards initially articulated by the NLRB in
,;
i:Spielberg, supra, and adopted by the Labor Board in New Fairfield,
'supra. Also in Town of Manchester, Decision 1836 (1979), the Labor

'Board held that an employer is precluded on res judicata grounds

from disputing the union's interpretation of a contract article

which had previously been submitted to arbitration and decided

in the union's favor. This contract language was central to the

cdmplaint filed before the Labor Board. Subsequently, in New

London, Decision NO. 2411 (1985), the Labor Board applied the
 .
. ii
. \ .’ ‘I
!I: I
i’ c ‘. 4
iI
[I
II!
I!

Spielberq standards to a grievance which had not been pursued to

arbitration on res judicata grounds. The reasoning used by the

Labor Board in the present case quoted extensively from this

previous case which appears to have involved the same labor contract
ii article.

Second, it is well settled that the Labor Board "... is not I

precluded from announcing new principles in an adjudicative pro-
ceeding and that the choice between rule making and adjudication
,
1.
!.
lies in the first instance within the Board's discretion although

there may be situations where the . . . adjudication would amount

I /
to an abuse of discretion . . . not.hing in the present case would

justify such a conclusion." NLRB v. Bell Aerospace, 416 U.S. 267,:

294 (1973); Michigan Wisconsin Pipeline Co. v. Federal Power I
:I
il
j,Comm., 520 F.2d 84 (D.C. Cir. 1975). Administrative agencies must:

jibe allowed to retain flexibility for ".. .problems may arise in a /

I
:I
jlcase which the administrative agency could not reasonably foresee,:
I
I!
ljproblems which must be solved despite the absence of a relevant 1
I- I
general rule." SEC v. Cheney Corp., 332 U.S. 194, 202 (1946).
, Thus, whether or not the Labor Board based its decision upon a 1

.'prior decision does not preclude it from announcing new principles/

I
: :in
' an adjudicatory proceeding. !
r For the above reasons the appeal is dismissed.
/'

10