Attorney General's Opinion
Attorney General, Richard Blumenthal
March 5, 2003
The Honorable Nancy Wyman
55 Elm Street
Hartford, CT 06106
Dear Comptroller Wyman:
You have asked for a formal opinion as to whether the State is obligated to provide recently laid off state employees with certain severance benefits, including payment of the State's share of health insurance premiums for a period of six months after their termination from state service, pursuant to certain collective bargaining agreements and during administrative proceedings and/or additional negotiations with the unions on this issue. Although there appears to be a dispute concerning the meaning of the relevant collective bargaining agreements, your letter states that the State has consistently provided laid off state employees with six months of health benefits. If this practice has been established, we conclude that the State may not unilaterally alter that practice while the administrative proceedings are pending and/or without first negotiating with the unions.
According to the information provided in your letter, beginning in 1992 and pursuant to a series of collective bargaining agreements between the State and the State Employees Bargaining Agent Coalition (SEBAC)1, an employee who is terminated from state service as a result of a reduction in force or lay off is eligible, under certain circumstances, for continuation of state sponsored medical and dental coverage for a period of six months. You state that consistent with these agreements and for an uninterrupted period of ten years prior to the most recent lay offs,2 laid off state employees have utilized this severance program without any objection by the State.
Despite your views, after the State announced its intention to lay off 2,800 state employees and, without notice to SEBAC, the Office of Policy and Management asserted that the State was not obligated under the agreements to provide newly laid off state employees with extended health benefits or to negotiate with SEBAC over the issue. The Office of Policy and Management has announced, however, that the State will provide health benefits to laid off employees for one month or until February 28 or March 31, 2003, depending on the date the lay off notice was issued. The parties are presently engaged in ongoing negotiations with respect to this matter and SEBAC has filed a prohibited labor practice complaint to the State Board of Labor Relations.
It is well established that an employer may not unilaterally change the terms and conditions of employment involving mandatory subjects of bargaining. National Labor Relations Board v. Katz, 369 U.S. 736 (1962); West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 526, 533 (1972) (“The employer who engages in such conduct circumvents his duty to deal exclusively with the union and is refusing to bargain in fact with the employee organization.”); Silverman v. Major League Baseball Player Relations Committee, 67 F.3d 1054 (2d Cir. 1995); California State Employees' Association v. Public Employment Relations Board, 51 Cal. App. 4th 923; 59 Cal Rep. 2d 488 (1996); In the Matter of State of Connecticut, Department of Mental Retardation, State Board of Labor Board Decision No. 3107, (May 11, 1993); In the Matter of State of Connecticut, NP-3 Unit and Connecticut State Employees Assn., State Board of Labor Relations, Decision No. 1921 (July 29, 1980); In the Matter of the Town of Ridgefield, State Board of Labor Relations, Decision No. 2891 (March 8, 1991). This "unilateral change doctrine" may apply where an employer departs from an existing practice, involving a condition of employment, whether or not that condition of employment is mandated by the terms of the contract. In the Matter of Town of New Milford, Decision No. 2353 (1985); State of Connecticut (Comptroller) Labor Board Decision No. 1871 (1980).
To establish that an employer has improperly and unilaterally changed a condition of employment, a union must demonstrate a "fixed practice prior to the alleged change and a clear departure from that practice without bargaining." In the Matter of State of Connecticut, Department of Mental Retardation, Decision No. 3107, (May 11, 1993). "Historical past practices are relevant in determining what is an "established practice." California State Employees' Assn., 51 Cal. App. 4th at 943. A "past practice" is a &consistent prior course of conduct between parties to a collective bargaining agreement that may assist the arbitrator in determining the parties' intent." Rhode Island Court Reports Alliance v. State, 591 A.2d 376, 378 (R.I. 1991).3
Matters involving "wages, hours and other conditions of employment" are considered mandatory subjects of collective bargaining. Conn. Gen. Stat. 272(c); N.L.R.B. v. Wooster Division, Borg-Warner Corporation, 356 U.S. 342 (1958); West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 526, 533 (1972). Insurance coverage and severance benefits are mandatory subjects of collective bargaining. Board of Police Commissioners v. White, 171 Conn. 553, 559 (1976) (conditions of employment include severance pay and insurance coverage); State of Connecticut v. Connecticut Board of Labor Relations, 1992 Conn. Super. LEXIS 2613 (January 8, 1993) (severance benefits); In the Matter of the Town of New Milford, Decision No. 2353 (January 11, 1985) (severance pay); In the Matter of Bloomfield Board of Education, Decision No. 3150, (November 9, 1993) (insurance coverage).
In light of these precedents, whether the State is obligated to provide laid off state employees with six months of extended health benefits while administrative proceedings and negotiations are ongoing, ultimately depends on whether the State, by its past conduct, has established a "practice" of providing such benefits to this particular class of employees. Consequently, if such a practice has been established, the State's obligation to provide extended health benefits to laid off state employees should be exercised in accordance with its past practice unless or until the parties reach an agreement or the matter is otherwise resolved.
I trust this opinion responds to your question.
Very truly yours,
1 The collective bargaining agreements at issue are commonly referred to as: SEBAC III; SEBAC V, which remains in effect until 2017; and SCOPE, which contains no expiration date.
2In December, 2002 and January, 2003, the Governor issued lay off notices to approximately 2,800 state employees.
3Unilaterial changes of conditions of employment during the period of negotiations for a successor agreement are similarly disallowed. Under such circumstances, parties are obliged to maintain the "status quo," which requires that the "'terms and conditions of employment remain the same during collective bargaining." Appeal of City of Nashua Board of Education, 141 N.H. 768, 695 A.2d 647 (1997) quoting Appeal of Milton School Dist, 137 N.H. 240, 625 A.2d 1056 (1993); St. Croix Falls School District v. Wisconsin Employment Relations Commission, 186 Wis.2d 671, 522 N.W.2d 507 (1994). “The status quo against which an employer's conduct is evaluated must take into account the regular and consistent past patterns of terms and conditions of employment.” California State Employees' Association v Public Employment Relations Board, 51 Cal. App. 4th 923, 943, 59 Cal Rptr. 2d 488 (1996).