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In the Matter of the Arbitration Between Connecticut State Board of Mediation

and Arbitration
CITY OF MIDDLETOWN
Case No. 2011-MBA-407
-and-

MIDDLETOWN POLICE UNION, J. Larry Foy, Arbitrator


LOCAL1361, COUNCIL 15
AFSCME, AFL-CIO
March 23, 2011
Re: Mid-Term Bargaining (Hours of Work
and Sick Leave)

Appearances

Timothy P. Lynch, Acting City Attorney


For the City

Attorney Eric Brown


For the Union

Arbitration Award

Contents Page

I. The Proceedings ……………………………………………………………… 2

II. The Statutory Factors………………………………………..........................… 3

III. Last Best Offers, Discussion and Award on Disputed Issues ….……………... 4

Issue Contract Subject


Provisions

Issue 1 Multiple Work Schedule and Sick Leave Policy………….. 5

Award Signature Page ………………………………………………………………..... 29

1
I. The Proceedings

This dispute between the City of Middletown (the City) and Middletown Police

Union, Local 1361, Council 15, AFSCME, AFL-CIO (the Union) arose from negotiations

during the term of the current collective bargaining agreement effective from July 1, 2006

through June 30, 2011 (the Contract, Union Exhibit 1, Tab 4). The complicated

circumstances of the dispute involve Contract reopener language, a prohibited practice

complaint settlement and a Memorandum of Understanding (MOU) resulting from that

settlement. The MOU was then rejected by the Middletown Common Council. The full

background is provided in the Discussion portion of this Award, infra.

Based on the prohibited practice settlement the Union on July 16, 2010 requested

"commencement of interim interest arbitration" on the subjects of change in the

Contract's Article 3 Shift Schedule and the Sick Leave Use Policy referenced in Article

16 of the Contract. (Union Exhibit 1, Tab 3, letter from Union attorney Eric R. Brown to

Board of Mediation and Arbitration). The letter also agreed to a single arbitrator by

mutual agreement with the City.

Accordingly, the above referenced arbitrator was selected in accordance with

Connecticut General Statutes Sec. 7-473c. The parties appeared before this arbitrator for

a hearing on January 31, 2011 at the administrative offices of the City of Middletown,

245 DeKoven Street, Middletown Connecticut. The parties were accorded a full

opportunity to adduce evidence, examine and cross examine witnesses, and present

argument.

The parties have waived all the statutory time limits and procedures applicable to

this case. The parties stipulated at the January 31, 2011 hearing to a post hearing schedule

2
for filing Last Best Offers, briefs, and the issuance of the arbitration award. Some of the

stipulated filing dates were later modified by agreement of the parties through email

correspondence.

The Union's Last Best Offer on the sole disputed issue (with multiple parts) was

submitted to the arbitrator via email on February 11, 2011 and the City's Last Best Offer

on February 14, 2011. Written post-hearing briefs were emailed to the arbitrator by the

Union on March 6, 2011 and by the City on March 8, 2011. Upon request of the parties,

concurrent with an extension of time to file briefs, the time for issuing the decision was

extended from March 9 to March 23, 2011.

II. Statutory Factors

Subsection (c) (2) of Section 7-473C of the Connecticut General Statutes sets

forth factors to be considered by the arbitration panel in selecting between the parties’

last best offers. That subsection provides in pertinent part as follows:

In arriving at a decision, the arbitration panel shall give priority to the public
interest and the financial capability of the municipal employer, including
consideration of other demands on the financial capability of the municipal
employer. The panel shall further consider the following factors in light of such
financial capability: (A) The negotiations between the parties prior to arbitration;
(B) the interests and welfare of the employee group: (C) changes in the cost of
living; (D) the existing conditions of employment of the employee group and
those of similar groups; and (E) the wages, salaries, fringe benefits, and other
conditions of employment prevailing in the labor market, including developments
in private sector wages and benefits.

Section III of this award sets forth the “Last Best Offers, Discussion and Award

on Disputed Issue” and my evaluation of the statutory factors as applied to the facts of the

instant case.

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III. Last Best Offers, Discussion and Award on Disputed Issues

4
Issue 1

Contract Provisions:

Subject: Hours of Work and Sick Leave

Town’s Last Best Offer:

Current contract language.

Union’s Last Best Offer:

Paragraph Language

14 (a) The workweek for personnel assigned to any assignment other than
patrol, shall consist of five consecutive eight (8) hour days, Monday through
Friday.

15 (b) Personnel assigned to the patrol division shall work a schedule consisting
of four (4) consecutive days of eight (8) hour shifts, followed by two (2)
consecutive days off. There shall be no fixed days off for anyone assigned to the
patrol division, except for the Patrol Captain, Patrol Lieutenants, the Traffic CO,
and the most senior patrol officer assigned to a shift.

16 (c) Any new position created in any division other than patrol shall work a
5/2 schedule with Saturdays and Sundays off.

17 (d) Notwithstanding the above, any officer assigned to a Task Force


assignment (eg. Statewide Narcotics) will continue on a 5/2 shift with
Saturday and Sunday as days off.

18 (e) Sergeants and below who are not on the 4/2 shift shall earn eight
(8) hours of compensatory time per month.

19 (f) Lieutenants and above who are not on the 4/2 shift shall earn four
(4) hours of compensatory time per month.

20 (1) For purposes of computing compensatory time in (e) and (f) above,
transfers in and out of positions shall have such time computed at or on the
first full month of the new assignment

21 (g) Each patrol officer shall be paid based upon a 40-hour work-week
schedule regardless of the number of hours worked in a work week, and

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each officer’s hourly rate shall be based upon 2088 hours worked
annually, regardless of the number of hours actually worked in a work
year. Each officer shall receive overtime pay for each hour or part thereof
worked in excess of the officer’s regularly scheduled work hours for any
work week. For example, an officer regularly scheduled to work only 32
hours in a work week based upon the 4/2 schedule shall receive overtime
pay for any hours worked in excess of 32 hours in that work week.

27 No language.

31 Midnight Shift
Early cars 11:00 p.m. to 7:00 a.m.
Others 12:00 a.m. to 8:00 a.m.

32 Day Shift
Early Cars 7:00 a.m. to 3:00 p.m.
Others 8:00 a.m. to 4:00 p..m.

33 Evening Shift
Early Cars 3:00 p.m. to 11:00 p.m.
Others 4:00 p.m. to 12:00 a.m.

34 At no time will there be more than three (3) early cars on any given shift.

35 No language

36 No language

37 No language

39 The shifts in the Patrol Division will change, per the bid system described within
this Collective Bargaining Agreement, every eighteen (18) weeks.

40 No language

41 No language

42 SECTION 10 Employee(s) may request an exchange of shift for a one (1) day
period provided such request is presented forty-eight (48) hours prior to the shift
and provided the Chief or his/her representative approve said request.

45 Shift and assignment bidding is open to all bargaining unit members of the rank of
patrol officer, sergeant or lieutenant who are assigned to the Patrol Division, except
those members on probationary status resulting from their initial appointment to

6
the department, and those bargaining unit members on an extended absence due to
their illness, injury, or any
authorized leave of absence.

48 The Chief or his/her designee shall post a shift/squad bid list for the upcoming
eighteen (18) week shift period, no less than forty-five (45) calendar days prior to
the start of each shift/squad period, listing the total number of lieutenant, sergeant
and patrol officer positions and assignments available for each shift and
squad.

49 (1) Officers will be assigned to a specific district or beat for the


duration of said bid cycle (18 weeks), however

50 (2). Officers will not be forced to work as the desk officer for said
duration of the eighteen (18) week bid cycle but may opt to do so.

51. Each bargaining unit member shall submit to the Chief, or his/her designee, a bid
list stating his/her first, second, and third choice of shifts and assignments no later
than thirty-five (35) calendar days prior to the start of each eighteen (18) week
shift period. Personnel shall be assigned to shifts by seniority bid. Assignments
will be at the sole discretion of the Chief of Police

52 Members of the bargaining unit assigned as K9 handlers shall be allowed to bid


for shifts and assignments, but the City shall not be required to assign more than
one K9 handler to any shift.

61 8. As needed to replace a bargaining unit member due to extended sick or


injury leave, retirement or termination within an eighteen (18) week shift cycle
provided that the vacant position will be filled in inverse order of seniority.

64 That members of the bargaining unit failing to submit a shift/assignment bid per
Section 12(E), shall be assigned to a shift/ assignment by the Chief of Police or
his/her designee, consistent with the operating needs of the Department.

65. Members of the bargaining unit transferred into the Patrol Division shall be
notified of said transfer, as soon as practicable prior to the start of the shift/
assignment bidding process.

66. Shift/assignment bidding forms and appropriate informational material shall be


made available to members of the bargaining unit, absent from duty for extended
periods of injury or sick leave, if their return to duty is anticipated by the
beginning of the upcoming shift period.

242 No language.

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243. SECTION 16. Effective upon the issuance of the Award in Case No.
2011-MBA-407, the following sick leave policy shall apply:

244. (a) Each fiscal year shall be broken into quarters as follows:

245. (1) 1st quarter – July 1 to September 30

246. (2) 2nd quarter – October 1 to December 31

247 (3) 3rd quarter – January 1 to March 31

248 (4) 4th quarter – April 1 to June 30

249 (b) A “sick occurrence” shall be defined as the use by an employee of


more than four (4) consecutive hours of sick leave for a singular reason as
set forth in Section 1 above. (Eg. A flu illness necessitating three
consecutive days off will count as one occurrence; A broken leg
necessitating 3 months off shall count as one occurrence).

250 (1) An employee who uses sick time for purposes of Family Medical
Leave to attend to the serious illness of a family member other than
himself, or related to a workers compensation injury or illness of the
employee, would not be considered a “sick occurrence.”

251 (c) An employee who uses zero sick time per quarter shall be paid one
day of pay for said quarter by the next pay date after the end of the
quarter.

252 (d) An employee who uses zero sick time for a complete fiscal year
shall be paid an additional one day of pay by the next pay date after the
end of the fiscal year for a total of five days of pay for said fiscal year.

253 (e) The use of sick time will be considered “hours worked” for
purposes of computing overtime.

254 (f) An employee who uses more than three sick occurrences per fiscal
quarter, shall , for the first offense, be issued a documented verbal warning
which shall be placed in the employee’s personnel file. Additional
occurrences would be handled under the premise of progressive discipline.

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DISCUSSION

A. Procedural History

This is a highly unusual statutory interest arbitration case. The normal interest

arbitration case results in a new contract between the parties for a future term of years.

That is not so in this case. This case also is not typical as a mid-term bargaining interest

arbitration. Mid-term bargaining cases are often the result of reaching impasse in

negotiation specifically called for in the existing contract or in situations where the

employer wants to make significant changes in a current practice and the union demands

bargaining before the change is made. This interest arbitration case instead is a result of

a combination of a Contract reopener provision on sick leave policy, two subsequent mid-

term agreements between the parties and action by the City's legislative body rejecting

one of those agreements. The full history of the case must be fully explored for the

statutory factors to be fully considered.

The current Contract was signed by the parties on September 8, 2008 (Union

Exhibit 1, Tab 1, p. 43). The Contract term runs from July 1, 2006 from June 30, 2011

and has fairly typical pre-Great Recession municipal police contract terms.1 The

Contract provides for police pay increases of $5,000 in 2006-2007 and thereafter

percentage general wage increases of 4.5% in 2007-2008, 2.5% in 2008-2009, 2.75% in

2009-2010 and 3% in 2010-2011. (Union Exhibit 1, Tab 1, pp. 5-6). The Middletown

police bargaining unit obviously had very fortunate timing for the establishment of their

1
Most of the bank failures, the Bush administration TARP bank bailout proposals, the market crash and
steep rise in unemployment came after the parties signed the Contract.

9
Contract economic terms. Furthermore, there is no record of any concession negotiations

subsequent to the September 8, 2008 Contract signing date.2

Article 16, Section 16 of the Contract states:

The parties agree to negotiate over the contents of a Sick Leave Use
Policy to replace the existing policy on this subject. During such
negotiations, the parties may mutually agree to address certain aspects of
Article 3, Hours of Work, insofar as they may relate to sick leave use. In
the event the parties do not reach agreement within six (6) months after
this Agreement is ratified by both parties or otherwise becomes effective
by operation of law, binding arbitration shall be requested under the mid-
term bargaining procedures in the Municipal Employee Relations Act. The
arbitrators shall only have authority to determine the contents of the Sick
Leave Use Policy, and shall have no authority to render an award
changing any provision of Article 3 of this Agreement.

(Union Exhibit 1, Tab 1)

Two days later, on September 10, 2008, the City and the Union reached a

Memorandum of Understanding (MOU #1) resolving two municipal prohibited practice

complaints then pending before the Connecticut State Board of Labor Relations, MPP

26,929 and MPP 26,928. (Union Exhibit 1, Tab 4). In MOU #1 the parties agreed to the

following:

1. The Union shall withdraw, with prejudice, MPP-26,929 and MPP-26,928.

2. The parties agree to negotiate the modification of the current shift schedules,
Article 3, Hours of Work, along with the contents of a Sick Leave Use Policy.
Negotiations for the Sick Leave Use Policy are referenced in Article 16, Section
16 of the current collective bargaining agreement. By execution of this
Memorandum of Understanding, Article 16, Section 16 is hereby waived.

3. In the event the parties do not reach agreement on the above referenced
topics within six (6) months from the signing of this Agreement, binding

2
There is mention in Common Council resolutions, the Council minutes of July 8, 2010 and the City labor
counsel's opinion of the receipt of a binding interest arbitration award in August 2008(See, e.g. City Exhibit
2, paragraph 1, City Exhibit 3, p. 11 and Union Exhibit 1, tab 6). That award was not introduced on the
record of this case. The Contract submitted on the record has signatures by the authorized representatives of
the parties. Apparently the parties negotiated a complete agreement after receipt of the arbitration award.

10
arbitration shall be requested under the mid-term bargaining procedures in
the Municipal Employee Relations Act. Should the matter then proceed to
binding arbitration, the City and the Union agree that the claimed
violations contained in the MPPs that are the subject of this MOU shall
not be raised, discussed or used as argument or a defense in said binding
arbitration. The arbitrators shall only have authority to determine the
contents of Article 3, Hours of Work and/or the Sick Leave Use Policy,
and shall have no authority to render an award changing any other
provision of the Collective Bargaining Agreement.

4. The City and the Union agree that from the date this Agreement is
entered into that the parties shall meet in good faith to resolve the matter
in a timely fashion. The parties agree to meet not less than two (2) time
per month to negotiate.

As a result of MOU #1 the parties engaged in negotiations. The negotiations took

longer than the six months provided in MOU #1, partly as a result of the retirement of the

Chief of Police and the assumption of those duties by Acting Chief McMahon.

Ultimately those negotiations resulted in a tentative agreement in the form of a

memorandum of understanding on January 29, 2010 and a final Memorandum of

Understanding (MOU #2) consummated on June 29, 2010. MOU #2 is Joint Exhibit 1.

Although MOU #2 is unsigned the City's Director of Personnel, Debra Milardo, and the

Union President, Derek Puorro, testified without contradiction that Joint Exhibit 1

reflected the agreement of the City and Union (Transcript pp. 55-56 and 58).3

MOU #2 contains the substantive provisions concerning work schedule and sick

leave policy which the parties agreed upon and which form the basis for the Union's Last

Best Offer in the instant case. 4 MOU #2 contains extensive whereas clauses explaining

3
Joint Exhibit 1 (MOU #1) and the prior drafts included in the record reference an integral Appendix A
(the new shift schedule) as being attached to the MOU, but Appendix A is not on the record of this case.
4
The Union states in its brief: "The contract language necessary to implement the terms of the agreement is
set forth in the union’s Last Best Offers, and in its Proposed Agreement (Union Exhibit 1, Tab 2; Tr. Test.
of Puorro, 1/31/11, p. 55)." (Union brief, p. 4)

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the background and benefits of the agreement, the substantive provisions of the

agreement concerning work schedule and sick time, and then the following paragraph:

This Memorandum of Understanding is contingent upon approval by the Common


Council. The parties further agree that should the Memorandum of
Understanding be rejected, all current and applicable contract language shall
remain in effect through the duration of the Agreement.

Pursuant to the above quoted paragraph, MOU #2 was submitted to the City's

Common Council for approval on July 8, 2010 through a Council Resolution (City

Exhibit 1). A substitute resolution was submitted to the Council and passed on that date.

The substitute resolution states the Council "hereby rejects the Memorandum of

Understanding of June 29, 2010 between Mayor Sebastian N. Giuliano and Derek Puorro,

President of Police Local 1361 for a change in Article 3 from a 5/2 to 4/2 shift schedule

and for changes in the Sick Leave Use Policy…" (City Exhibit 2).

The substitute Council resolution asserted five reasons for rejecting MOU #2,

which are stated in summary form in the headings on the final page of the resolution:

1. The MOU of September/October 2008 is ILLEGAL and therefore renders


these negotiations that brought about the MOU of June 29, 2010 illegal.

2. Unprecedented and unjustifiable financial impact on the City.

3. The City, the State and the Nation are faced with unprecedented financial
difficulties.

4. The City is faced with potentially enormous unanticipated financial issues such
as the clean up of the OMO site.

5. Recent salary agreements that have been ratified by the City Council reflect a
0% increase in salary for 2010-2011.

After the rejection of MOU #2, City Personnel Director Debra Milardo requested an

opinion from the city’s labor counsel, Brian Clemow, concerning "the first reason cited

12
by the Council for its rejection of the Memorandum of Understanding of June 29, 2010."

Attorney Clemow opinion on July 13, 2010 states this conclusion:

Although the 2008-2011 Collective Bargaining Agreement between the City and
Police Union was the product of a binding interest arbitration under MERA, that
does not mean it is not subject to change by agreement of the parties as a result of
voluntary mid-term bargaining. Any agreement resulting from such bargaining, if
submitted to the Common Council under the procedure outline in § 7-474(b), may
be rejected if a majority of the Common Council refuses to appropriate the funds
necessary to implement it, or to approve provisions of such agreement that are in
conflict with the City's charter, ordinances or personnel rules. However, the
supposed "illegality" of the 2008 MOU that led to the negotiations resulting in the
June 29, 2010 agreement is not a valid reason for rejecting the agreement.

(Union Exhibit 1, Tab 6, p. 3)

Attorney Clemow in his opinion "took no position" on whether MOU #2 had a significant

fiscal impact or whether it conflicted with the City's charter, ordinances or personnel

rules. He wrote that “the parties to any labor contract, whether its terms were established

by agreement of the parties or by interest arbitration, are always subject to re-negotiation

by mutual agreement of the parties" and cited recent concessions bargaining and

agreements among unions and municipalities during the economic downturn and

recession as support for that legal principle.

On July 16, 2010 the Union through its counsel requested

"commencement of interim interest arbitration" on the subjects of change in the

Contract's Article 3 Shift Schedule and the Sick Leave Use Policy referenced in Article

16 of the Contract. The Union made the request for interest arbitration based on the

language of MOU #1 which it attached to its request rather than MOU #2 (Union Exhibit

1, Tab 3, letter from Union attorney Eric R. Brown to Board of Mediation and

Arbitration).

13
Normally, the end of the procedural history leads to commencement of the

discussion of the statutory factors and the evidence offered by the adversarial parties that

argue in favor and against their last best offer.. Here, however, there are preliminary

issues that affect those determinations. In this case there was no crucible of adversarial

advocacy, a paucity of evidence was offered to document the statutory factors and

substantial legal impediments exists to any mid-term change in Contract language.

B. Legal Infirmities with the Union's Last Best Offer

The June 29, 2010 Memorandum of Understanding specifically provides for the

possible eventuality of the Common Council rejecting the agreement by the City

administration and Union to change work schedules or sick time policies. It states:

The parties further agree that should the Memorandum of Understanding be


rejected, all current and applicable contract language shall remain in effect
through the duration of the Agreement.

That provision, binding on both the City and Union, bars the City or Union from

modifying the language of the Contract during its current term5 and bars an interest

arbitrator from enacting a change of language. Had the arbitration proceeding been a true

adversarial proceeding this language would have been raised by the City at an early stage

and the arbitration hearing may never have been held. The Union violated the provision

by submitting its Last Best Offer requesting a change in language of the Contract.

The Union's likely argument against MOU #2 barring mid-term interest

arbitration would be that the source of the Union's authority to request mid-term

arbitration is MOU #1. That document specifically provided for interest arbitration in the

event that the parties were unable to reach agreement and it was attached to the Union's

5
The Contract provides in Article 30 that the Contract is in full force and effect "through June 20, 2011,
and from year to year thereafter unless any of the parties shall give a thirty (30) day written notice to the
other party of its or their desire to withdraw from or to modify or amend this Agreement."

14
request for arbitration to the Board of Mediation and Arbitration. The problem with that

argument is twofold. First, the purpose of MOU #1 was fulfilled and merged into MOU

#2. That is, the negotiations over work schedule and sick leave policy were successfully

consummated in an agreement between the City and Union (i.e. MOU #2). Second,

MOU #1 provides a remedy for unsuccessful negotiation (i.e. arbitration) that is in direct

conflict with the remedy in MOU #2 for an unsuccessful negotiation. The remedy for an

unsuccessful "negotiation" provided for in MOU #2 (i.e. Council rejection of MOU #2) is

that the current contract language remains unchanged, not that the dispute be submitted

to arbitration. Where two contract provisions addressing the same subject between the

same parties conflict the general rule is that the most recent document controls. This is in

accordance with one of the oldest legal principles: lex posterior derogate priori, where

two documents conflict the later in time prevails.6

This may seem an odd result given the obvious desire of both the City

administration and Union to consummate their agreement. But it is their language and no

revised agreement was submitted in evidence in the arbitration proceeding. The parties

may or may not have recognized the impediment this language posed to their desire to get

an arbitrated solution. But if they did see the issue they would also have also recognized a

possible impediment to changing the language. Interest arbitration can be expensive.

Changing MOU #2 to provide for arbitration of the dispute may have required the Mayor

to submit that agreement to the Common Council to authorize the appropriation of

6
See e.g. Black's Law Dictionary; Harding v. Department of Veterans Affairs, 448 F.3d 1373 (Fed. Cir.
2006) at footnote 2 ("To the extent that § 7425(b) and § 2105(f) can be said to conflict, this is an
appropriate circumstance for the application of the ancient canon of construction lex posterior derogate legi
priori : where two statutory provisions appear to conflict, the later in time prevails."); and People v.
Adamson (1946) 27 Cal.2d 478, 487 ("the [constitutional] amendment . . . being later in time, controls
provisions adopted earlier").

15
money. That is what was suggested by Attorney Clemow shortly after Council rejection

of their agreement.7 To go back to Council would have posed obvious practical and

political problems. The Union and City administration were thus in an apparent box for

which there was no apparent solution. The language of MOU #2 calling for retention of

current Contract language ("all current and applicable contract language shall remain in

effect through the duration of the Agreement") is consistent with the City's last best offer

("Current contract language") and inconsistent with the Union's Last Best Offer. Thus

this legal issue argues strongly in favor of the City's Last Best Offer.

Another legal infirmity exists because of the language of MOU #1 under which

the Union claims the right to arbitrate this dispute states in relevant part:

The arbitrators shall only have authority to determine the contents of


Article 3, Hours of Work and/or the Sick Leave Use Policy, and shall have
no authority to render an award changing any other provision of the
Collective Bargaining Agreement.
(Union Exhibit 1, Tab 4, p.2).

The Union's Last Best Offer in paragraph 21 clearly runs afoul of this provision because

it makes a significant change to the overtime provisions of the Contract, specifically

Article 5, Section 1, which states that employees receive overtime after working 40 hours

in a week. The Union's Last Best Offer in paragraph 21 effectively amends that article by

reducing the weekly overtime threshold to 32 hours a week:

…an officer regularly scheduled to work only 32 hours in a work-week based


upon the 4-2 schedule, shall receive overtime pay for any hours worked in excess
of 32 hours in that work-week.

7
("Any agreement resulting from such bargaining, if submitted to the Common Council under the
procedure outline in § 7-474(b), may be rejected if a majority of the Common Council refuses to
appropriate the funds necessary to implement it…) Union Exhibit 1, Tab 6, p. 3.

16
This provision would clearly "change" another provision of the Contract, Article 5, and

thus renders the Union's Last Best Offer in violation of the Union's request for mid-term

interest arbitration. The same is true of the provision adding substantial compensatory

time for Sergeants and Lieutenants, which is included in paragraphs 18-20 of the Union's

Last Best Offer. The fact that the parties implemented these changes by language

amending Article 3 rather than the substantive provisions of other articles and sections of

the Contract does not change the result. Otherwise the parties could change the entire

Contact by just amending Article 3 and the prohibitions of MOU #1 would be rendered a

nullity.

C. The Non-Adversarial Character of the Proceeding Caused an Absence of


Relevant Evidence

The Municipal Employee Relations Act contemplates that interest arbitration

proceedings are adversarial proceedings. This assures a complete record of the facts

bearing on all the relevant statutory factors that an arbitrator must consider in choosing

between the last best offers of the parties. In fact, the overwhelming majority of interest

arbitration cases are highly adversarial. This one was not.

Two of the three Union witnesses were members of the City administration, i.e.,

the Personnel Director and Acting Chief of Police. These two witnesses were supportive

of the main claim of the Union that MOU #2 had no fiscal impact. The City did not offer

its own witnesses in support of its Last Best Offer and no attempt was made by the City

to claim that the Union's proposal was inconsistent with the City's financial capability,

the public interest or the work schedules of comparable police departments.8 This was

understandable given the Mayor's support for MOU #2 and the City's representatives at

8
The Acting Chief as the Union witness offered cursory evidence about the New Britain Police
Department's use of a 4/2 work schedule which was supportive of the Union's case.

17
the hearing are appointed by the Mayor.9 However, it did nothing to establish an adequate

record for the instant case or support the Last Best Offer the City submitted.

This lack of adversarial character in the proceeding also had the effect of reducing

the evidentiary support for the Union's case. It is customary in interest arbitration cases

where the Union advocates a significant change in contract language and department

operations to introduce evidence of the experience of other police departments who have

implemented the proposal of the Union. Such comparability evidence which shows the

cost impact of the proposal and its impact to the public of the provision of police services

was notably absent in this case. With no real opposition or contested case, the Union's

evidentiary submission was very limited. Thus, evidentiary support for the Union's Last

Best Offer required by the priority statutory factors, including the impact of the Union's

Last best Offer on public interest and financial capability of the City, was rudimentary or

non-existent. Moreover, evidence on the record that is contrary to the Union case was

not mentioned or emphasized by the City representatives and were thus not actively

rebutted by the Union.

The general rule is the party who seeks to change existing contract language bears

the burden of proof. This rule is especially appropriate in this case where the issue is a

significant mid-term contract change in the last six months of a five year contract when

negotiations for a new contract are imminent. The lack of evidence in support of the

statutory factors thus harms the Union's position more than the City's.

9
" [T]he Mayor shall be directly responsible for the administration of all Departments, Agencies and
Offices; in charge of persons or Boards appointed by the Mayor and shall supervise and direct the same."
Chapter IV, Section 2 of the City of Middletown Charter. See also Chapter IV, Section 3 B ("All such
officers shall be appointed by the Mayor and confirmed by the Common Council."

18
D. MOU #2 Has A Substantial Fiscal Impact on the City

Many of the statutory factors, and both of the priority factors, which an arbitrator

must consider in municipal interest arbitration cases require consideration of the financial

impact of any proposal to change contract language. The parties in this proceeding

addressed financial issues by claiming MOU #2 has no financial impact on the City of

Middletown. This is shown by the testimony of the Union witnesses, City Director of

Personnel Debra Milardo and City Acting Chief of Police Patrick McMahon.

Milardo testified as follows under questioning by the Union's counsel:

Q. Do you have an understanding as to whether or not this tentative


agreement results in a fiscal impact to the City?
A. Yes, I do.
Q. What's your understanding?
A. From the director of finance he attested that there was no
additional fiscal impact to the City at all concerning the
change to a 4-2 shift.
Q. And reference was made previously to the minutes of the
Personnel Review Commission from June 29th, 2010 in which
director Erlacher, finance director, stated that the change was not
going to cost the City of Middletown any more dollars than what
had been budgeted for. Is that what you base your
understanding of fiscal impact upon?
A. Yes, I do.

(Transcript pp. 58-59)

Acting Chief of Police Patrick McMahon testified in a similar manner when questioned

by Union counsel, and added that the experimental use of the 4-2 shift also showed no

financial impact on the City:

Q. Can I just point your attention under Tab 3? It's I believe the
fifth document in, it's headed at the top Minutes Personnel Review
Commission, June 29th, 2010. The second page of that document,
the last line I'm going to read you, Chief, a statement
that was made by finance director for the City, Eric Erlacher, in the
minutes here. It says "Director Erlacher stated that this is not

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going to cost the City of Middletown any more dollars than what
we have budgeted for." Do you agree with that statement?
A. Yes, I do.
THE ARBITRATOR: You're talking about the 5-2 schedule?
MR. BROWN: The 4-2 schedule.
THE ARBITRATOR: I'm sorry, going to the 4-2 schedule?
MR. BROWN: Yes.
BY MR. BROWN:
Q. And the basis for your agreement is the experience that you've
seen over the last six or seven weeks of utilizing that schedule?
A. That's correct.

(Transcript pp.40-41)

Acting Chief McMahon added the following later in his testimony:

I think the argument and I'm not a financial person, I don't do finances,
but the salaries didn't change, the hourly rates didn't change which mean
their overtime rates didn't change and what it did was it gave them
days off quicker.
(Transcript, p. 46)

The Union's brief agrees with the testimony of its witnesses from the City administration:

The evidence presented before the arbitrator was uncontroverted and showed that
implementation of the 4-2 work schedule will not cost the city any more money
than the current 5-2 schedule costs. The city’s own management employees,
including the finance director, the chief of police, and the director of personnel
confirmed that implementation of the schedule will have no financial impact upon
the city and will not change the budgeting for the city.

(Union brief, pp. 8-9)

The City, however, says the Union's Last Best Offer and MOU #2 does have a fiscal

impact, although the City made no attempt to quantify that impact at the hearing or in its

brief other than stating the following:

The MOU would also have a fiscal impact upon the City. City Exhibit 2. The
change to a 4/2 shift will require more overtime hiring. City Exhibit 2.

(City brief, p. 3)

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City Exhibit 2, referenced in the City's brief is the substitute resolution enacted by a

majority of the City Council which rejected MOU #2 on July 8, 2010. As to the financial

impact of MOU #2 the resolution has this to say:

The proposed tentative agreement would change the work schedule from a 5/2 to
4/2. In effect it would give officers 121.67 days off each year (365/6x2) instead
of 104.29 days off each year (365/7x2). This represents a 16.67% increase. This
change would have a tremendous impact on replacement overtime. This cost
analysis is supported by information provided by the City's Director of Finance.

Evaluation of Cost Information. MOU #2 and the Union's Last Best Offer

implementing MOU #2 have a very significant cost impact on the City of Middletown.

The proposal gives patrol officers more than 17 additional days off per year. If the City

had proposed to more than double the number of paid holidays (currently 13 a year) or

grant patrol officers an additional three (3) weeks of vacation time the cost impact would

be clear. Instead the proposal for this large increase in days off for patrol officers was

clothed in a schedule change. Increasing the number of days off for patrol officers

increases the overtime payments the City will be making and/or will reduce the level of

police services to the community or require the hiring of more police officers.

The Union had both of the City witnesses refer to one opinion of the City's

Director of Finance that is included in the minutes of a Personnel Review Commission

meeting that the Union's proposal had no fiscal impact. Neither the City nor Union

offered the testimony of the Director of Finance or submitted any documents with his

detailed analysis of the costs of MOU #2. A negative inference can be taken from the

failure to produce such a critical witness and documentation. Moreover, there is contrary

information on the record from the Director of Finance.

21
A Council resolution in December 2010 refers to a January 21, 2010 document by

the Finance Director that the extra 17.4 days off for patrol officers would cost the City

$341,015 per year (Union Exhibit 1, Tab 3, entitled "Resolution" received on 11/17/10).

An earlier email on the record from the Finance Director to the Director of Personnel also

expresses skepticism about the Acting Chief's claims that the change in shift schedule

would have no fiscal impact:

The Chief made it clear that he will be operating within his salary line budgets
and no additional overtime with be needed when officers go from a 5-2 schedule
to a 4-2. But is that really the case? When you go from a 5-2 schedule to a 4-2
schedule an officer who works 260.7 days per year now works 243.3. In the
proposed shift schedule the officer would make the same salary. Is that a
financial impact? It is to the officer who works less for the same pay. My other
questioned (sic) were would less hours worked by each officer require more
department overtime….If the officers are not replaced simple math says on
average there has to be less officers on duty at a given time. ….As part of the
MOU, non 5-2 shift workers would receive compensatory time. I'm not clear if
these officer would need to be replaced with overtime.

(Emphasis in original, City Exhibit 2, p. 4)

The Director of Finance's concerns were clearly accurate. There will have to be very

substantial new overtime costs for the City as a result of the MOU #2 because:

17.4 fewer days a year will be worked by patrol officers necessitating


overtime to attain the same level of shift manning;

The weekly hours worked which make an officer eligible for overtime has
been reduced to 32 hours per week; and

Non-patrol officers, those who will continue to work a 5-2 schedule, are
granted new compensatory time: 96 hours for Sergeants (more than two
week offs) and 48 hours for Lieutenants.

In the course of many years of doing interest arbitrations and seeing costing analysis for

additional days off, including holidays and vacation time, I know that the increased

overtime costs would be very substantial. I have never been presented with or heard of a

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union interest arbitration request for an additional three weeks or more of vacation. Here

the new benefit included in the Union's Last Best Offer is a massive increase in days off

per year for patrol officers. It will inevitably cause a large increase in the City's overtime

budget,10 and/or the need for hiring new officers and/or a significant reduction in police

protection for the City of Middletown.

The Union and Acting Chief argue, however, that their implementation of the 4-2

shift on an experimental basis "proves" that the new shift will not result in increased

overtime. I disagree. The six week experiment reflected in Union Exhibit 2 does not

prove the new schedule and the Union's Last Best Offer will have no fiscal impact on the

City for the following reasons:

 The sample period of six weeks is too short a period to test the likely overtime
costs of the City from the new schedule;

 The Union and City administration implemented the new schedule by agreement
shortly before the arbitration hearing and it would be too easy in a short period for
officers not to take vacations, use compensatory time or take other leave time in
an effort to reduce the overtime during the experiment;

 There is no evidence that the experiment included the shortened weekly overtime
pay eligibility or the compensatory time for sergeants and lieutenants contained in
the Union's Last Best Offer which would also increase overtime costs for the City.

The Union and its City Administration witnesses argue that there are some

offsetting financial benefits to the City of MOU #2 that should be considered. The three

they mention are that 1) the shift bid cycle is increased from 16 week to 18 weeks, saving

a clerk some time, 2) the Union has agreed that three police bargaining unit positions may

be removed from the bargaining unit, which presumably would be filled at lesser pay or

10
I do not know whether the City Finance Director's January 21, 2010 estimate of an additional cost of
$340,000 a year is accurate because his analysis was not admitted into evidence, but it appears to be the
correct order of magnitude.

23
with less generous benefits and 3) that sick time policy was changed so as to reduce

officers using sick time.

The clerk time savings are de minimis and inconsequential from the slightly

longer shift bidding cycle (from 16 to 18 weeks). The Union agreement on the three

bargaining unit positions is not contained in the Union's Last Best Offer or even in the

agreement clauses of MOU #2. Instead, reference to the three positions is only

mentioned in the non-binding "whereas" clauses of MOU #2.

We are left then with the principal financial benefit to the City of MOU #2 and

the Union's Last Best Offer being the change in sick time policy. The Union, however,

did not prove any City savings from that proposal. Indeed, the savings are speculative

while the additional costs are very real. That is because the proposal grants up to five

additional days pay per year for perfect attendance (one day a quarter and an additional

day for no sick time for a full year). The provision the Union refers to as a major

concession and cost saving is the following language:

An employee who uses more than three sick occurrences per fiscal quarter, shall ,
for the first offense, be issued a documented verbal warning which shall be placed
in the employee’s personnel file. Additional occurrences would be handled under
the premise of progressive discipline.
(Union Last Best Offer, paragraph 254)

There was no testimony or documentary evidence on how this clause would save the City

money or reduce sick time usage. It provides for a "no fault" oral warning for three

usages of sick time per quarter, but it is unclear what impact if any it would have on

either the subsequent disciplinary actions or the conduct of officers in reducing the

amount of sick time they use. The magnitude of any sick days saved for the City is,

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however, dwarfed by the additional paid days the officers are granted by other parts of

the Union's Last Best Offer.

The Union's conclusion that MOU #2 and its Last Best Offer are consistent with

the priority statutory criteria rests on a flawed factual conclusion:

From a financial perspective, all of the evidence presented shows that the city will
at a minimum obtain a neutral financial result, and in all likelihood will save
money as a result of the agreement.
(Union brief, p. 9)

My conclusion is the opposite of the Union's. From a financial perspective the City will

obtain very little, if any, financial benefit and a very substantial level of new costs as a

result of MOU #2 and the Union's Last Best Offer. As previously noted, I discount the

testimony of the Acting Chief and Director of Personnel that there will be no budgetary

or financial impact on the City. However, if what they said is true, no budgetary impact

could only be accomplished by significantly reducing the police manning and protection

for the citizens of the City of Middletown. The public interest would not be served by

that result. Either way, the priority factors of the public interest and the financial

capability of the municipality would be harmed by MOU #2 and the Union's Last Best

Offer.

That conclusion is also supported by the extremely difficult budgetary and

financial problems currently faced by Connecticut municipalities and the dire budgetary

situation of the State of Connecticut. This is reflected on the record of this case by the

Common Council's statement concerning the City's financial problems and the fact that

they had recently approved zero wage increases for Middletown teachers and school

administrators for the 2010-2011 fiscal year (City Exhibit 2, page 3). Unlike the teachers

25
and school administrator the police bargaining unit received a 3% general wage increase

in 2010-2011.

The Union is correct that the statutory factor of interests of the employee group

favors the Union's Last Best Offer. Any employee group would like an additional three

weeks of vacation or 17.4 additional days off a year. The statutory factor of negotiating

history is less clear. The Union's Last Best Offer contains the major changes proposed by

MOU #2. However, it also runs afoul of that same document which provided that if the

Common Council rejected it then the current Contract language would continue. There

was no information on the record about the cost of living/inflation, but it has been low in

recent years and has exceeded the rate of general wage increases for this bargaining unit

in recent years.

The statutory factors also require the arbitrator to consider:

D) the existing conditions of employment of the employee group and those of


similar groups; and (E) the wages, salaries, fringe benefits, and other conditions
of employment prevailing in the labor market, including developments in private
sector wages and benefits.

The Union introduced no evidence on these subjects other than the comments from the

Acting Chief about New Britain's adoption of a 4-2 schedule. That rudimentary

anecdotal information is an insufficient basis upon which to support the Union's Last Best

offer. Since the Union has the burden of proving the statutory factors favor its major

change in Contract language the last two statutory factors also argue against the Union's

Last Best offer.

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E. Conclusion

My conclusions based on the record of this case are summarized below:

 MOU #2 specifically provides that if the Middletown Common Council

rejects the MOU #2 (which it did) then "all current and applicable

contract language shall remain force and effect through the duration of the

Agreement." Thus MOU # 2 supports the City's Last Best Offer and

requires rejection of the Union's proposal to add significant new language.

 The agreement under which the parties agreed to mid-term interest

arbitration of contract terms (MOU#1) specifically limited the

proceeding to "the contents of Article 3, Hours of Work and/or the

Sick Leave Use Policy, and shall have no authority to render an

award changing any other provision of the Collective Bargaining

Agreement." This prohibition is violated by the Union's Last Best

Offer which adds language and subjects not currently addressed in

Article 3 and Article 16 (e.g., subjects such as weekly overtime

eligibility and entitlement to compensatory time which are

addressed in other sections of the Contract)

 The arbitration proceeding was not a truly contested hearing and as a

result information on the record concerning the statutory factors,

including the priority factors, which interest arbitrators are mandated to

consider in interest arbitration proceedings, was either completely missing

or incomplete. The Union has not met it's burden of proof for changing

existing Contract language.

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 MOU #2 and the Union's Last Best Offer have a very substantial new cost

to the City and are not consistent with the priority statutory factors. The

other statutory factors are mixed but generally weigh in favor of the City's

Last Best Offer.

The current Contract expires later this year and the parties are already in the

statutory negotiating period when mediation can be invoked.11 It is in the public interest

that the issues raised by MOU #2 be resolved in the process of establishing new contract

terms for the period after June 30, 2011 rather than in mid-term interest arbitration in

view of the legal and substantive infirmities of the Union's Last Best Offer.

Award
For the reasons discussed above and based upon the statutory factors set forth on

page 3 of this award:

The City’s Last best offer is selected.

11
See Conn. Gen Stat. § 7-473b, "Mandatory timetable for negotiations. Appointment of mediator."

28
IV. Arbitration Award Signature Page

CITY OF MIDDLETOWN

-and-

MIDDLETOWN POLICE UNION, LOCAL1361, COUNCIL 15


AFSCME, AFL-CIO

Re: Interim Police

Case No. 2011-MBA-407

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