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American Arbitration Association

City of Middletown, Connecticut

And

AFSCME, Local 466, Council #4

AAA # 12 390 544 12

Gr: Christine Bourne Transfer

Date: July 29, 2013

Arbitrator:

Roberta Golick, Esq.

Hearing:

May 21, 2013

Appearances:

For the City Kori Termine Wisneski, Esq. Deputy City Attorney

For the Union Edward P. Thibodeau AFSCME, Council 4, Staff Representative

The Issue

The parties agreed upon the following statement of the issue:

Did the Employer violate the collective bargaining agreement when Ms. Bourne was moved from her position as Payroll Supervisor at the Middletown Board of Education?

If so, what shall be the remedy?

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The Agreement

The collective bargaining agreement between the parties provides, in pertinent part:

Article I

Recognition

Section 4.

No agreement(s), memorandum(a), or settlement(s) between the City and any members of the bargaining unit with regard to wages, hours or other terms and conditions of employment shall be entered into or considered binding on any party unless it is/they are made pursuant to a written agreement with the Union and/or is/are signed by an authorized representative of the Union.

Article VIII

Disciplinary Procedure

Section 1.

Disciplinary action includes, but is not limited to, oral reprimand, written reprimand, suspension and discharge

Section 3.

No employee shall be disciplined except for just cause…

Article XVI

Grievance Procedure

Section 2.

A grievance for purposes of this procedure shall be considered to be an employee or Union complaint concerned with:

A.

discharge, suspension or other disciplinary action;

Background

On January 6, 2011, the Union filed a grievance at Connecticut’s State Board of Mediation and

Arbitration protesting what it characterized as the “involuntary transfer” of bargaining unit member

Christine Bourne from her position as Payroll Supervisor at the Middletown Board of Education to the

position of Program/Budget Analyst in the Parks and Recreation Department. On October 22, 2012, as

part of a global settlement of several related matters, the parties agreed that Bourne’s grievance “shall

proceed to arbitration before the American Arbitration Association, with the full cost of the arbitration

to be paid by the City.” At the arbitration hearing on May 21, 2013, the City acknowledged that, in

accordance with its 2012 agreement, it intended to bear the full cost of this arbitration.

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This case comes with a dense factual history, virtually none of it in dispute. The parties’ disagreement is

not over what happened, but rather, is over the contractual significance of what happened. The record

establishes the following:

Grievant Christine Bourne began her employment with the City of Middletown in 1994, as a Secretary

for the Middletown Board of Education (BOE). In September 2008, while Bourne was serving as School

Secretary at the Lawrence School in Middletown, the position of Payroll Supervisor was posted to be

filled in the BOE’s Central Office. Though the Salary Grade 10 position fell under the supervision of BOE

personnel, the hiring and firing authority for the position remained with the Mayor, who at the time was

Sebastian Giuliano.

Ms. Bourne applied for the vacant Payroll Supervisor position, and was interviewed. The

Superintendent at the time, Michael Frechette, preferred a different candidate, however. Frechette

recommended to the Mayor that Tammy McPherson, who had been filling in as Acting Payroll

Supervisor, be hired for the promotion. Mayor Giuliano declined Frechette’s recommendation and

selected Ms. Bourne instead. 1

As Mayor Giuliano testified, Superintendent Frechette and other members of the Payroll Office staff

were angry that the Mayor did not select Ms. McPherson for the position. Thus began a long period of

contentiousness in City/BOE relations. As for Bourne, she walked into a hotbed of resentment. She was

not welcomed as the Payroll Supervisor, and she received little training and little support as she tried to

learn her new responsibilities. Within a few weeks, Bourne was complaining to the City’s Director of

1 The Mayor was familiar with Ms. Bourne as she had served for more than a decade in the elected position of City Treasurer of Middletown.

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Personnel Debra Milardo about the ill treatment she was receiving in her new position. Milardo offered

Bourne the opportunity to return to her prior position, but Bourne was determined to make it work.

Ms. Bourne gradually mastered the responsibilities attendant to her position, and nothing remarkable

occurred until May 2010. That month, in connection with the annual budget process, the City Council

announced its intent to have a forensic audit conducted of the Board of Education. On May 14, 2010,

Mayor Giuliano received a phone call from Personnel Director Milardo. Milardo reported that she had

heard a disturbing report: According to Union President Jeff Daniels, a BOE employee named Tracy Vess

had overheard BOE Business Manager Nancy Haynes speak of a plan to shred BOE documents in

anticipation of the audit. Mayor Giuliano immediately spoke with both Ms. Vess and Ms. Bourne, and

they confirmed their suspicion that certain staff at the BOE were planning to destroy records in the

accounts payable department. The following morning (a Saturday), at the request of Ms. Milardo, both

Bourne and Vess provided statements to the Middletown Police Department. They registered their

concerns about questionable business practices they had observed in the office and the information

they had gleaned about a plan to remove and shred documents. That day, the Middletown Police

Department interrupted BOE staff in the process of removing documents from the BOE offices.

From that point forward, Ms. Bourne (and apparently Ms. Vess) were caught in the crossfire of litigation

and ill-will between the City and the Board of Education. Ms. Bourne believed that Ms. Haynes took a

number of steps against her in retaliation for her reports about BOE business practices. On May 26,

Bourne’s office at the BOE was vandalized. And by the end of May, Haynes had a) informed Bourne that

the BOE no longer needed her to work overtime; b) rescinded her prior approval of Bourne’s flexible

work schedule; and c) mandated the timing of Bourne’s lunch period. At some point, too, Bourne

realized that Haynes was monitoring all of her email and phone calls.

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Over the course of the summer of 2010, the BOE and the City and their respective attorneys participated

in informal settlement negotiations to resolve their litigation. One unalterable demand from the BOE,

however, was that Bourne and Vess be transferred out of the Board of Education to a different City

department. 2 Bourne, described by the City attorney in an August 2010 email as “a fighter who isn’t

willing to see Haynes ‘win’” refused to agree to a transfer.

In the fall of 2010, matters deteriorated further. On September 10, 2010, Haynes issued Bourne a

written memo listing several “serious concerns” about Bourne’s performance. On November 3, Haynes

imposed a two-day paid suspension on Bourne for an alleged breach of the payroll system and breach of

confidentiality. When Bourne returned to work on November 5, Haynes told her she should still be out

on suspension. An altercation ensued in which, according to Bourne, Haynes grabbed her by the arm

and scratched her in an attempt to remove her from the office. Bourne called the police, and Haynes

was arrested. On November 8, Bourne came to work to find the lock on her office door changed. That

day, Superintendent Frechette directed Bourne “to vacate the premises of the Middletown Board of

Education immediately, and to remain off premises until further notice.” He wrote, in relevant part:

You are not authorized to perform any work on behalf of the Board, at any location.

You will receive full pay during this period.

Your presence on the premises of the Board is disruptive to the Board’s operations.

If you do not obey this directive, the police will be contacted.

In early December 2010, the City and the BOE engaged in further settlement negotiations with the

assistance of the Honorable Robert Holzberg. The BOE remained adamant that Bourne be removed

from the Board of Education. The City was of the belief by then that Bourne was amenable to the idea

2 Vess ultimately agreed to a transfer, and she is not involved in this grievance.

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of being transferred to a different department and it communicated that information to Judge Holzberg.

With Holzberg serving as a mediator, the City and the BOE reached a tentative Settlement Agreement on

a host of outstanding matters, one premise of which was that Bourne would vacate the BOE Payroll

Supervisor’s position and that the Mayor would not appoint her to “any other position in the Board’s

operations at any time after the date of this Agreement unless requested to do so by the

Superintendent of Schools.”

Ms. Milardo recognized that the transfer of Ms. Bourne out of her position at the Board of Education to

a new position in a different department required the Union’s agreement. Milardo met with AFSCME’s

officers, who indicated that if Bourne was agreeable to be transferred, they, too, would agree. On

December 6, 2010, Ms. Milardo provided Ms. Bourne with a copy of a tentative Memorandum of

Understanding between the City and the Union laying out the terms of the proposed transfer. Bourne

made several suggested changes, including language reserving her right to continue all pending labor

matters and to press any claims arising from her employment as Payroll Supervisor for the Board of

Education. Milardo incorporated Bourne’s requested changes, and sent the modified MOU to Union

President Jeff Daniels for signing. According to the MOU, Bourne would be transferred from her Grade

10 position in the Board of Education to a Grade 12 position as a Program/Budget Analyst in the Parks

and Recreation Department. The two salary-grade “raise” was designed to make up for the overtime

that Bourne could have received if she had continued working at the BOE as Payroll Supervisor. The

Settlement Agreement between the City and the BOE was signed on December 7 while Milardo waited

for the Union to sign the MOU between the City and the Union.

Expecting that the MOU between the City and the Union would be signed imminently, Ms. Milardo

completed an Employee Change Sheet making Bourne’s transfer to Parks and Recreation official.

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Beginning December 8, 2010, Bourne began receiving pay at the Grade 12 Program/Budget Analyst

level. Bourne was scheduled to report to work in her new position on January 3, 2011.

By December 30, 2010, and despite repeated requests by Milardo, the Union had still not signed the

MOU. Bourne began working at the Parks and Recreation Department on January 3, 2011. The next

day, January 4, 2011, the Union notified Ms. Milardo that it would not be signing the MOU and that it

was filing a grievance on Bourne’s behalf challenging her removal from her position as Payroll

Supervisor.

By January 7, 2011, for reasons unrelated to Bourne’s transfer, the December 7 Settlement Agreement

between the City and the Board of Education “blew up,leaving in its wake a number of ongoing legal

disputes, grievances and unfair labor practice charges.

By mid-2012, Dr. Frechette and Ms. Haynes were no longer employed by the Board of Education.

Meanwhile, Ms. Bourne continued to serve in the Parks and Recreation position. On October 22, 2012,

the City, the Board of Education and the Union signed off on the global resolution of all outstanding

matters, one term of which was the City’s agreement to proceed to arbitration on Bourne’s transfer

grievance.

In late October 2012, the position of Payroll Supervisor at the Board of Education was posted. 3 Ms.

Bourne applied for the position. On November 1, 2012, Bourne sent an email to Kathie Morey, the City’s

3 The posting was in accordance with another provision of the parties’ October 22 Settlement Agreement which provided: “A new job description for the position of Payroll Supervisor at the Board has been created…and the position shall be posted internally in accordance with the contract prior to its being filled. In the event that grievance #110105-1B [Bourne’s transfer grievance] is sustained and the former Payroll Supervisor is restored to

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Deputy Director of Personnel, stating that inasmuch as she was the only candidate seeking the Payroll

Supervisor position for whom the job was not a promotion, she believed that under the collective

bargaining agreement, her application was entitled to preference. Ms. Morey responded that Bourne’s

position at the Parks and Recreation Department was a Salary Grade 9, despite the fact that Bourne was

“red-circled” at the higher pay grade. Accordingly, Morey explained, a return to the Payroll Supervisor

position would be a “promotion,not a transfer, and thus Bourne was not entitled to preference. Ms.

Bourne was not selected for the position. The Union filed a separate grievance challenging that denial.

Bourne’s arbitration case based on her removal from the BOE Payroll Supervisor position now having

been heard and briefed, the matter is ripe for decision.

Positions of the Parties

The City contends that it did not violate any provision of the collective bargaining agreement. The

Union’s argument that the case falls under the “just cause” provision must be rejected because Bourne’s

transfer was not effectuated for disciplinary purposes. Moreover, Bourne’s transfer was “voluntary.”

Bourne’s conduct in December 2010 and early January 2011, including making proposed changes to the

MOU, accepting the pay of the Parks and Recreation position, and actually starting work in the new

position on January 3 demonstrate that she agreed to the transfer. That she later reneged on that

agreement does not permit a finding that the City violated the contract.

In any event, the City continues, the City had no option but to remove her from the BOE and to place her

in a different position, given the circumstances. It wrote: “Because the City had no authority to remove

Ms. Haynes, who was a BOE employee, the City had to make sure that Ms. Bourne was safe and it had a

responsibility to its employee to respond to her reports of harassment and retaliation and to provide a

safe environment for her to work.”

The City asks that the grievance be denied, but points out that even if a contract violation is found,

Bourne was not harmed by the transfer, and is entitled to no monetary remedy.

The Union argues that while the City fully agreed with and supported Bourne while she was being

harassed by members of the Board of Education, by the time of the arbitration hearing, it “changed its

tune.” The Union contends that any reasonable assessment of the undisputed facts requires a finding

that Bourne’s transfer was not voluntary and was, instead, a form of discipline within the meaning of the

contract’s definition. Though the City may assert that Bourne agreed to the transfer and that it had no

choice but to remove her from the position for her own safety, Bourne was given no choice in the

matter. Further, when it would have been safe to return her to her position after the hostile BOE

employees were gone, the City did not do so and in fact did not award Bourne her own position when it

became vacant and she applied for it.

Ms. Bourne was wrongfully removed from her BOE position and was harmed both financially and by

reputation by the City’s actions. As a remedy, the Union seeks an order reinstating Ms. Bourne to her

position of Payroll Supervisor at the Board of Education and making her whole for all losses.

Discussion

While it is necessary to appreciate the entire chronology of Ms. Bourne’s travails in order to assess her

grievance, it is important to identify what is and what is not before me in arbitration. The so-called

counseling and suspensions to which the Board of Education subjected Bourne in the latter part of 2010

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are not before me. The City’s harsh responses to the Board in that time frame certainly indicated that

the City recognized the outrageousness of the BOE’s conduct. It would be reasonable to expect,

therefore, that that “discipline” is long gone from Bourne’s record, but that is not what this case is

about. 4

This case focuses solely on the removal of Ms. Bourne from her position as Payroll Supervisor in the

Board of Education and her transfer to the position of Program/Budget Analyst in the Parks and

Recreation Department. The question is whether that transfer violated the parties’ collective bargaining

agreement.

It makes sense to begin the inquiry with the question of whether Ms. Bourne and/or the Union agreed

to the transfer from the BOE to the Parks and Recreation Department. Though we know that the Union

never entered into a written agreement accepting the terms of Bourne’s transfer, we also know that the

Union communicated to the City that if the transfer was acceptable to Bourne, it would be acceptable to

the Union. It is therefore relevant in the overall appraisal of the City’s actions to consider what the City

officials understood to be Bourne’s and the Union’s perspectives.

In fairness to the City, it must be acknowledged that at the beginning of December 2010, it appeared

that the Union and Ms. Bourne would acquiesce in some fashion to the proposed transfer. Bourne

made several modifications to the language of the draft MOU and returned it to Milardo for her

consideration. Given that Milardo was apparently willing to incorporate Bourne’s additions, it was not

unreasonable for her to believe that a signed agreement was imminent.

4 The Union made an argument in its post-hearing brief based on the contract’s “No Lockout” provision, but that contention harkened back to the BOE’s barring of Bourne from her office in November 2010 and is not applicable to the actual removal from her position.

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Significantly, though, even a close reading of Bourne’s response to the draft MOU shows that Bourne

was not in agreement with the transfer. The language Bourne proposed inserting into the draft MOU

was explicit that the agreement would be without prejudice to the continuance of any and all labor

matters involving her, and that nothing in the agreement constituted a release or waiver of any and all

claims that she had or may have against the BOE and/or the City arising from her employment as Payroll

Supervisor for the BOE.

Bourne’s reservation of rights was consistent with the fact that she was accepting the transfer to the

Parks and Recreations Department under duress. The City knew absolutely that she did not wish to be

transferred. It knew absolutely that despite the hostile environment and the harassment Bourne

endured at the hands of BOE colleagues and superiors, she wished to remain in her position as Payroll

Supervisor. Bourne testified at arbitration that she never willingly agreed to the transfer, but rather,

that it was presented to her as a declaration of what had been decided and what had to be. The City has

acknowledged that Bourne never actually stated that she was agreeable to the arrangement. In any

event, by January 4, the City was on explicit notice that the Union did not intend to sign the MOU, that

Bourne did not agree with her removal from the BOE, and that the Union, on Bourne’s behalf, intended

to challenge the propriety of the transfer. Though the City, to its credit, had attempted to make the

transfer attractive (given that Bourne’s continuation in the Payroll Supervisor position was a roadblock

to its ability to ever come to terms with the BOE), Bourne cannot be found to have “agreed” to the

transfer only to have “reneged” later on. The most that can be said is that in December, Bourne was

preparing to submit to an involuntary transfer out of the BOE, while reserving all rights to challenge the

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move. Ultimately, she was unwilling to have the Union sign off on even that, and the Union

communicated as much to the City in a timely fashion. 5

The next question is whether the facts support a finding that the transfer violated the “just cause”

provision of the collective bargaining agreement. The City argues against the applicability of the just

cause provision because, it asserts, the transfer was not disciplinary in intent. I agree with the Union

here that intent alone does not determine whether conduct can be regarded as disciplinary. It is true

that no one has suggested that Bourne engaged in any type of misconduct for which discipline is

traditionally imposed. It is true, too, that there were no issues with Bourne’s job performance for which

discipline might be imposed. But the City’s declaration that the transfer was not disciplinary and

therefore not subject to scrutiny under the just cause provision of the contract does not make it so.

There is no way to sugar-coat the facts: Ms. Bourne was treated horribly by the Board of Education.

And when push came to shove, the City punished the victim. The pressure brought to bear on Bourne to

accept a transfer out of the Board was undoubtedly based in part upon the City’s concern for her, but

the record leaves little doubt that the overriding impetus was to clear the path for a possible settlement

of the complex litigation with the Board of Education. 6 The City was well aware that it could never

resolve the litigation if Bourne remained a BOE employee. And once the transfer was effected, the City

was unwilling to transfer her back even when the Union indicated on January 4 that it would not sign the

MOU and would instead challenge the transfer on her behalf and seek her return to her BOE position,

and even when the Settlement Agreement between the City and the Board of Education blew apart.

5 That she worked one day in the Parks and Recreation Department before the Union registered her challenge cannot be regarded as a waiver of her right to do so. 6 The City’s argument that it was obligated under Federal law to remove Bourne from the hostile work environment injects a statutory defense where there is no issue of discrimination. The harassment Bourne suffered was based upon ill-will alone.

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If, however, for purposes of discussion and giving the City the benefit of the doubt, one might find that

there was sufficient cause to temporarily remove Bourne from the toxic atmosphere while persons over

whom the City had no control continued to work at the BOE, by May 2012, the safety excuse was

eliminated. By May 2012, the BOE was cleansed of those persons who had caused the harassment and

created the hostile environment, the Union’s grievance was alive, and Bourne’s wish to return to her

former position was plain. As the only remaining obstacle to Bourne’s return to her rightful position was

the Board’s continued stance that Bourne had to go, the City’s unwillingness to return her had nothing

to do with her welfare and thus was unfair.

But by late October 2012, when the City and the BOE had already signed a Settlement Agreement and

the vacancy in the BOE Payroll Supervisor position was posted, the reality that Bourne’s transfer was

both disciplinary and unfair came into sharp relief. It was then that the City made its view clear that for

Bourne to return to her former position would entail a “promotion,” which means that Bourne’s transfer

to the Parks and Recreation position was, for purposes of the parties’ contract, a demotion.

In the final analysis, then, the finding is compelling that Ms. Bourne, who was doing a good job in her

role as Payroll Supervisor, was removed from her position involuntarily and demoted. Why? Because

employees including the Superintendent at the Board of Education resented the fact that she was

selected by the Mayor to fill the position in the first place; then later on they wanted her ousted

because she played a role in uncovering their unorthodox business practices.

Ms. Milardo fully agreed

with Bourne in 2010 that the atmosphere was hostile, that she was harassed, that the actions of

Superintendent Frechette and Ms. Haynes were retaliatory and unacceptable, and that the conflicts

were highly publicized. While there is no question that Milardo attempted to do right by Bourne and to

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arrive at an acceptable arrangement for her, what ultimately occurred was tantamount to a punishment

for Bourne without just cause.

The fact that Bourne was not given contractual preference or selected for the Payroll Supervisor’s

position when it was posted in October 2012 is not before me as a contract issue and is the subject of

another grievance. But the permanent removal of Bourne from her position in December 2010 is before

me, and that was, I find upon review of the entire record, without just cause. Accordingly, Ms. Bourne is

entitled to be reinstated to her prior position and to be made whole for lost wages and benefits, if any.

Make Whole

The parties disagree as to whether Ms. Bourne has suffered any actual monetary losses. By Bourne’s

calculations, she has lost more than $34,000 in lost wages. By the City’s calculations, Bourne has

actually come out ahead, earning more money in her Parks and Recreation position than she would have

had she remained in the BOE position. The record evidence is quite muddled on this point, but two

observations are warranted: First, Bourne’s assertion that she would have worked 359 hours of

“customary” overtime in each of 2011 and 2012 is not established. Second, Bourne’s W-2’s from 2011

and 2012 upon which the City relies are not conclusive because Bourne testified that she worked a

“second job” in a different City department during this time frame and the stipend she received for that

work is included in her W-2’s.

If, in fact, Ms. Bourne earned lower wages in her Parks and Recreation position than she would have

earned in her Board of Education position (including overtime), she is entitled to be made whole for the

loss. The parties are directed to jointly attempt to determine the extent of the loss, if any. If they are

unable to come to mutual agreement, they are to be guided by the following factors:

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1.

The period covered by the make whole remedy is December 8, 2010 to Date of Reinstatement in

the Payroll Supervisor’s position.

2.

The parties are to compute the number of overtime hours actually worked by person(s)

performing the tasks of the Payroll Supervisor and/or Payroll Coordinator (and/or related)

positions during the make whole remedy period, and to calculate therefrom the number of

hours that Bourne likely would have worked had she remained in her BOE position.

3.

The comparison of wages is to be strictly between the Parks and Recreation position and the

BOE position. The stipend Bourne received performing extra work for a different City

department during the make whole period is to be excluded from the comparison.

Award

The Employer violated the collective bargaining agreement when it transferred Ms. Bourne from her position as Payroll Supervisor at the Middletown Board of Education.

The City is directed to immediately reinstate Ms. Bourne to her prior position at the Board of Education, and to make her whole for losses, if any, in wages and benefits for the period December 8, 2010 to date of reinstatement.

The parties are directed to jointly attempt to calculate damages. If they are unable to agree on a computation of wages, they are to be guided by the factors listed above.

In accordance with the Settlement Agreement dated October 22, 2012, and by its acknowledgement at arbitration, the City is responsible for the full cost of this arbitration.

Date: July 29, 2013

the City is responsible for the full cost of this arbitration. Date: July 29, 2013 Roberta

Roberta Golick, Esq. Arbitrator

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