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: Hearing: Appearances:

Roberta Golick, Esq. May 21, 2013 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?

The Agreement The collective bargaining agreement between the parties provides, in pertinent part: Article I Section 4. Recognition 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 Section 1.

Disciplinary Procedure Disciplinary action includes, but is not limited to, oral reprimand, written reprimand, suspension and discharge No employee shall be disciplined except for just cause

Section 3.

Article XVI Section 2.

Grievance Procedure 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 Connecticuts 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 Bournes 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.

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 BOEs 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 Frechettes 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 Citys Director of

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.

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, Bournes 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 Bournes flexible work schedule; and c) mandated the timing of Bournes lunch period. At some point, too, Bourne realized that Haynes was monitoring all of her email and phone calls.

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 isnt 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 Bournes 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 Boards 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

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

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 Supervisors position and that the Mayor would not appoint her to any other position in the Boards 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 Unions agreement. Milardo met with AFSCMEs 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 Bournes 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 Bournes transfer to Parks and Recreation official.

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 Bournes behalf challenging her removal from her position as Payroll Supervisor.

By January 7, 2011, for reasons unrelated to Bournes 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 Citys agreement to proceed to arbitration on Bournes 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 Citys

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 createdand the position shall be posted internally in accordance with the contract prior to its being filled. In the event that grievance #110105-1B [Bournes transfer grievance] is sustained and the former Payroll Supervisor is restored to

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 Bournes 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.

Bournes 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 Unions argument that the case falls under the just cause provision must be rejected because Bournes transfer was not effectuated for disciplinary purposes. Moreover, Bournes transfer was voluntary. Bournes 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

her position, the City agrees to accommodate the displaced employee in another position of similar pay rate and responsibilities.

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 Bournes transfer was not voluntary and was, instead, a form of discipline within the meaning of the contracts 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 Citys 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. Bournes 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

are not before me. The Citys harsh responses to the Board in that time frame certainly indicated that the City recognized the outrageousness of the BOEs conduct. It would be reasonable to expect, therefore, that that discipline is long gone from Bournes 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 Bournes 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 Citys actions to consider what the City officials understood to be Bournes and the Unions 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 Bournes additions, it was not unreasonable for her to believe that a signed agreement was imminent.

The Union made an argument in its post-hearing brief based on the contracts No Lockout provision, but that contention harkened back to the BOEs 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 Bournes 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.

Bournes 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 Bournes behalf, intended to challenge the propriety of the transfer. Though the City, to its credit, had attempted to make the transfer attractive (given that Bournes 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 Bournes job performance for which discipline might be imposed. But the Citys 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 Citys 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.

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 Citys argument that it was obligated under Federal la w 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 Unions grievance was alive, and Bournes wish to return to her former position was plain. As the only remaining obstacle to Bournes return to her rightful position was the Boards continued stance that Bourne had to go, the Citys 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 Bournes 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 Bournes 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 Supervisors 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 Bournes calculations, she has lost more than $34,000 in lost wages. By the Citys 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, Bournes assertion that she would have worked 359 hours of customary overtime in each of 2011 and 2012 is not established. Second, Bournes W-2s 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-2s.

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 Supervisors 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.

Roberta Golick, Esq. Arbitrator Date: July 29, 2013 15