AMERICAN ARBITRATION ASSOCIATION
_________________________________________
In the Matter of an Arbitration Between
:
:
Opinion and Award
Stonington Public Administrators Association
:
Local #54, Connecticut Independent
: AAA #01-15-0004-1639
Labor Union Local #222
United Electrical, Radio, and Machine Workers

:
:
:
And
:
:
Town of Stonington
:
__________________________________________:
Peter Adomeit, Arbitrator
Appearances
For The Employer

For the Union

Michael E. Satti
Rebecca S. Malinguaggio
Michael E. Satti, Attorney at Law, LLC
185 South Broad Street, Suite 301
Pawcatuck, Connecticut 06379

Peter Goselin
The Law Office of Peter Goselin
557 Prospect Avenue, 2nd Floor
Hartford, Connecticut 06105

The Issues
The parties stipulated that the issue before the arbitrator in this proceeding is the
following:
1. Did the Town of Stonington have just cause to suspend the grievant, Mr.
Louis DiCeasare on January 20, 2015?
2. If not, what shall be the remedy?
The parties agreed that the additional dispute between the parties over whether the
Town had just cause to terminate Mr. DiCesare on April 30, 2015, would not be a
part of this arbitration, but would be presented separately before the undersigned, and that
the evidence in the suspension case would be admissible in the termination case.

 Summary of Award
I have analyzed and studied the briefs and reply briefs of the parties, the citations
of law, the voluminous exhibits, including charts, letters, emails, photos, the testimony of
the witnesses, reviewed my notes, and have after charting my decision, reached the
conclusion that the Union’s argument that the grievant had a right under Connecticut Law
to have a Union representative present at the hearing that resulted in the five day
suspension that is the subject of this arbitration, and therefore lacked just cause to
suspend him, is more persuasive than the Town’s argument that the grievant had no such
rights during the pendency of the Town’s objections to the election. Consequently, the
five-day suspension must be overturned.
The decision is based entirely on the Town’s failure to allow the grievant to have
a Union Representative Present during the suspension hearing. To address the other
issues would needlessly delay an already delayed decision, substantially increase the
costs of the arbitration, and not affect the outcome. Thus, having fully considered the
entire case presented by both sides, and outlined the dispute and analyzed how the
opinion should be structured, I have focused on the dispositive issue. However, I have
copied the disciplinary record and the grievant’s responses to show emphasize the sheer
factual complexity of this dispute, and the underlying tensions surrounding this dispute,
and to leave a record.
The parties write about the grievant either being or not being a member of a
union at certain times. That misstates the issue. Membership in a Union is distinct from
being a member of a bargaining unit. Mr. DiCesare has rights as a member of the
bargaining unit irrespective of when he has joined the Union.

 Background
The grievant, Louis DiCesare, at the start of the events leading up to his
suspension, was a non-union employee of the Town of Stonington working in the Street
Department as Highway Supervisor, when his supervisor, the Director of Public Works,
took another job with another town. The Town hired Ms. Barbara McKrell as the new
Director of Public Works. Certain friction developed between DiCeasare and Ms.
McKrell and there came a time that Mr. DiCesare decided that he wanted to have union
representation under the town’s collective bargaining agreement with UE Local 222,
CILU/CIPU (Union). Two parallel series of events moved forward: the friction
continued, and Mr. DiCesare joined an existing bargaining unit. The proper analysis here
is not when he joined the union; it is that he joined the bargaining unit, and whether he
had certain rights as a member of the bargaining unit.
On July 23, 2014 the Union filed a petition with the Connecticut State Board of
Labor Relations (Board) to modify the existing bargaining unit of employees of the Town
to include the position of highway supervisor – which was held by Mr. DiCesare.
On September 16, 2014, the Board Agent ordered a one-person election to
determine whether the highway supervisor desired to be included.
On September 16, 2014, the Agent issued an order of election, and on September
16, 2014, Mr. DiCesare, the only person eligible to vote, voted in favor of inclusion in the
existing bargaining unit. The Town filed an objection to the election on the grounds that
Mr. DiCesare had been a member of the town’s negotiation committee during
negotiations for the 2013-14, was a confidential employee, and not eligible to vote. The
Union responded on November 10, 2014. On January 21, the State Labor Board

 dismissed the objections and issued this Order:
“CERTIFIED that the bargaining unit here in question be and the same hereby is,
modified to include the position of Highway Supervisor.”
On November 4, 2014, after the election but before the certification, Ms.
McKrell issued to Mr. DiCesare a verbal warning, confirmed in writing. The italics are
not in the original but added to denote quoted material.
Date: November 4, 2014
Subject: Confirmation of Verbal Warning on October 8, 2014
On October 8, 2014 you and I met to discuss past events that have resulted or could have
resulted in extra costs to the Town based on your actions. These additional costs could
have been avoided if you had communicated and involved others in your decision
making. A list of items discussed included:
1. You contacted French Paving questioning location of paving work on September 23,
2014 and asked him if we were paving on Deer Ridge, although the schedule and
locations of work had been discussed with you the previous day and emailed to you.
Contractor stayed with the planned schedule. However, if paving had taken place in the
wrong location this could have resulted in not getting Pequotsepos complete before the
Nature Center's event that the Town had made a previous commitment to complete prior
to its commencement. You stated that you had a "brain fart" and could not remember all
of the previous discussions and emails pertaining to the schedule. Therefore, you called
the contractor directly instead of asking your supervisor. As I said you can always
contact me directly with any questions pertaining to your work assignments or paving.
2. Direct contracting of work to French Paving to complete full depth replacement on
Rivercrest Road that was the Yankee Gas' responsibility, not the Town's. You included
this repair work with French by accident and did not communicate with others that work
was being done to ensure it was our responsibility. Future pavement repair work using
an outside contractor must be reviewed with Director of Public Works. Director will also
give the contractor NTP.
3. You had a direct discussion with the All-Purpose Field contractor telling him you
would not provide an equipment operator, although you added the Town obligation, on a
daily basis, to the contract. As a result, the contractor issued the Town a $500.00 change
order due to you not providing obligated Highway staff to support the construction
activities. Instead you should have communicated with Town All-Purpose Field
Construction Manager to be notified and get approval for the changes.
It was agreed that you will not directly contact contractors on projects that you are not
directly responsible for, plan ahead on projects that are assigned to you and increase
your communication. If you have questions pertaining to your work assignments you

 should contact me.
You accepted this warning and responded that you would like the Director of Public
Works to also communicate more with you. I responded that I do most of my
communication through email and expect you to contact me if you have questions.
Acknowledged receipt on 11/4/2014 [Italics added to signify quoted material]
Mr. DiCesare told Ms. McKrell that he did not agree with the verbal warning
and would not discuss his performance without his labor counsel present.
On January 7, 2016 Ms. McKrell sent a notice to Mr. DiCesare containing a list
of deficiencies and asking him to attend a disciplinary hearing. The document also
contained 36 pages of Exhibits (not reproduced here) consisting of emails, photos related
to the charges. The document was highly detailed and listed problems with great
specificity.
TO: Louis DiCesare II1
FROM: Barbara McKrell, PE
SUBJECT: Notification of Meeting Concerning Potential Discipline
[ Italics

not in original. Used to show quoted material throughout this Opinion and
Award.]
6
DATE: January 7, 2015
This is a formal notice that I am directing you to appear at an investigatory meeting that I
will conduct to determine if the possible instances of employee insubordination and insufficient
planning that I briefly summarize in this memo may warrant disciplinary action, including
suspension from your position with the Town of Stonington Highway Department. I am
holding this meeting for various reasons related to incidents of insubordination and the
unnecessary and additional expenditures incurred by the Town as a result of your poor planning
functions as the Town's Highway Supervisor.

The following instances are as follows:
• December 18, 2014 Weekly Meeting - ~t the conclusion of our December 18, 2014
Weekly Meeting, you make unnecessary and insubordinate comments to me. You stated
that, '·You do not trust [me] at all," as well as that,: "You do not trust [me] as far as you
can throw [me]." This type of outspoken behavior will not be tolerated.
• Status of the equipment required for leaf collection - at the August 11, 2014 Biweekly
Highway Meeting, it was discussed and documented in the August 12, 2014 Biweekly
Highway Meeting Minutes that the " ... leaf collection equipment and trucks [were] a
priority and need to be ready for leaf collection." See Exhibit A - August 12, 2014

 Biweekly Highway Meeting Minutes. You were aware of the new· leaf collection
program that was announced Tuesday, September 30, '2014, via email and that the
program was published on the Town website on October I, 2014. See Exhibit B September
30, 2014 Email from me to you. The leaf collection was to begin on Monday,
November 3, 2014 and end, at the latest, during the first week of December. However,
knowing this, you instructed Steve Burdick on Monday, October 27, 2014 to ignore the
preparation that had been previously conf1lmed by Steve in a prior meeting with Joe
Curioso and me as attainable without need for any overtime and told him to stop working
on the vacuum equipment for leaf collection because you determined that one would be
sufficient, and to begin working on different equipment in anticipation of a salt/snow
event. See Steve Burdick email to me dated October 29, 2014 attached as Exhibit C October 29, 2014. Additionally, knowing the leaf collection program was to start on
November 3 on Monday, October 27,2014 you also approved Steve Burdick to take a
vacation day on Friday, October 31, 2014. This was not the appropriate time to do so
even if you thought a snow event was forecast because of the urgency of the mechanical
work to be completed for leaf collection and/or the "snow event." Steve Burdick, as
Master Mechanic was essential to completing the repairs and assigning other employees,
both mechanics and not mechanics to prepare the vehicles and equipment, was
inappropriate. Your actions resulted in the need to approve previously unnecessary
overtime to complete repairs. Your conduct is insubordinate.
• Center Line Striping - at the August 11, 2014 Biweekly Highway Meeting it was
discussed that you would "contact the contractor to schedule" this work and you were
informed that the "work needs to be completed before the leaves start falling." See
Exhibit A - August 12, 2014 Biweekly Highway Meeting Minutes. Also, on the
Highway Weekly Work Schedule you prepared for the week of August 18, 2014 August
22, 2014, the center line striping had a target schedule date of September 29,
2014. See Exhibit D - Your Highway Weekly Work Schedule for the week of August
18,2014 - August 22,2014. However, the work was not completed until November 22,
2014 when Elmridge was finally striped. This delay resulted in an ongoing safety
concern for the Town and Chief Stewart contacted me concerning this.

7
• French Notice to Proceed on Paving- on May 16, 2014 I instructed you that in order for
me to track costs and activities better, I would be the only one to give Ed French the
Notice to Proceed on all paving. See Exhibit E - May 16,2014 Email From me to you.
However, on July 17, 2014, Ed French informed me that you contacted him directly to
hire him for paving work under the current agreement. I emailed you of this instance in
an email dated August 3, 2014 stating that you "ignored my directive [from May] and
your action appears to be insubordinate." See Exhibit F - August 3, 2014 From me to
you.
Abrupt departure from our October 29, 2014 Weekly Meeting - We met to discuss leaf
collection and your unilateral change in direction without informing me of those changes
beforehand. During our conversation you were loud and argumentative and you leaving
.

 in the middle of a meeting with me is unprofessional, entirely insubordinate and will not
be tolerated.
POOR PLANNING LEADING TO UNNECESSARY, ADDITIONAL EXPENDITURES
• Aqua-Turf Irrigation Change Order - on July 31, 2014 a loader and operator had to be
supplied by the contractor to load top soil for the all-purpose field due to Highway
Department short staffing although you committed on behalf of the Town to supply the
contractor with an equipment operator each day as needed during construction. See
Exhibit G - AlA Change Order and Invoice. However, you failed to supply one that day
resulting in additional costs. The total charge to the Town for this error was $500. See
Exhibit G - AlA Change Order and Invoice.
• River Crest Drive - on April 4, 2014 you directed Ed French to make full depth repairs
on River Crest Drive for a total cost of$II,500. However, a portion of that trench work
should have been repaired by RH White as Yankee Gas' Contractor. See Exhibit F August
3, 2014 Email from me to you. Therefore, the Town spent approximately $750
for this work when it was not our obligation to do so, and this cost could and should have
been avoided.
• Pawcatuck Avenue - on June 10, 2014 I met with you on Pawcatuck Avenue to discuss
the particular job for this road. See Exhibit H - June 11, 2014 Emails between me and
you. I requested that you place asphalt on the new drainage trenches before paving
commenced. I also advised you that street sweeping should be completed before 7 AM,
the following day, June 11, 2014 and to have a highway employee start work at 6 AM
that morning to do the work; you agreed to have all prep work completed before 7 AM on
June 11,2014. However, none of this work was completed timely by the deadline you
had committed to resulting in a ninety minute delay for Lynch paving on June 11, 2-014.
Your response to my June 11, 2014 email at 9:57 PM outlining these issues was sent at
10:10 PM and it was entirely unprofessional. You stated, "If you expect to hold me
responsible for any portion of any highway work being conducted by highway personnel
and or subcontractors, I expect to be fully involved in all aspect of the work." See
Exhibit H - June 1I, 2014 Emails between me and you. Additionally, you were
responsible for the specific work mentioned, and whether or not you instructed the crew

to complete the tasks I had instructed you to, ultimately, your performance was
unacceptable.
More importantly, you set the levels of the catch basins on Pawcatuck Avenue,
not Rodney Galton from CLA, as confirmed by Joseph Ferraro who told me that he held
the transom for you while you, he and other highway personnel were on site.
Additionally, Robert DeLuca from CLA stated in his letter to me that, "eLA also
8
provided inspection of the paving work after the drainage work was installed by the
Town. It was observed that the new catch basins were installed too high to be effective in
collecting storm water." See Exhibit I - December 1,2014 Letter from Robert A. DeLuca
to me. As a result, additional unnecessary asphalt had to be put down to bring up the
elevation around the catch basins before the final wearing course could be put down. The

 road had to be leveled three times, requiring multiple lifts and adding an additional day of

work to the paving of this road. The additional cost is not to be attributed to CLA as you
believe. The cost to the Town is approximately $7,000 due to the additional 91.1 tons
required for this road to meet the catch basin elevations so that storm water runoff would
make it to the catch basins. See Exhibit J, page 8 - Town of Stonington - Paving
Completed 2014 Excel Spreadsheet attached to Consultant Support of the 2014 Paving
Effort September, 2014 Report.
• Prentice Williams Road - on September 17, 2014 I had circulated an email with the
paving schedule for the week ahead. See Exhibit K - September 17, 2014 Email From

me to Peter Lynch, Joe Curioso, yo~ and Levi French. On September 23, 2014 the
schedule indicated that you and Joe Curioso would be the leads for the paving of Deer
Ridge and Prentice Williams. It was also stated that a 700 ton max would be used to

level these two roads. However, the paving was rescheduled and another email was sent
out on September 28, 2014 stating that the paving for Deer Ridge and Prentice Williams
would be done on October 6, 2014 with you as the lead on the work. See Exhibit L September
28, 2014 Email From me to you, Joe Curioso, Peter Lynch and Levi French.
It was decided between Joe Curiosa, you and I that 500 tons would be used to fix the
unevenness of both roads. But without consulting me, you used approximately 50 tons
less on Deer Ridge and used the tonnage on Prentice Williams, which received a
complete overlay. Due to your improper placement of the overlay on Prentice Williams
repairs were necessary to provide proper transitions between the overlay and the portions
of the road that were full depth replaced. The repair work was completed on December
1, 2014 for a total additional cost to the Town of $1,984.73, excluding the cost to the
Town of your initial paving done in October in the amount of $16,470.49.

• Deer Ridge Road - as previously discussed I had appointed you as the lead on the Deer
Ridge project overseeing the paving contractor and determination of the best use of
asphalt to extend the life of the road. See Exhibits K and L - September 17, 2014 Email
From me to Peter Lynch, Joe Curioso, you and Levi French; September 28, 2014 Email
From me to you, Joe Curioso, Peter Lynch and Levi French. The application of asphalt
on this road was extremely below my expectations. A Stonington citizen, Kevin Whalen,
emailed the former First Selectman, Ed Haberek, on October 6, 2014 at 5:14 PM. See
Exhibit M - October 6, 2014 Email from Kevin Whalen to Edward Haberek. Mr.
Whalen stated that, "The work that has been done so far is uneven, irregular and looks
amateurish...! was hoping the current work was simply prep work...lf not I'd consider
the work done thus far to be a waste of taxpayer money." This was just one of the many
complaints received by Ed, as I had included in my October 7, 2014 email to you
containing the Mr. Whalen complaint. See Exhibit N - October 7, 2014 Email From me
to you and Joe Curioso. Due to the poor application here, under your direction, the Town
has now incurred excessive additional costs to repair this road. Additionally, the road
could not be entirely repaired due to time constraints because of the weather; the road is
only 70% complete to date. The repair work by external contractors and internal staff
was done on November 6, 7, 10, 12, 13, 14, 25 and December 1 and 4. The total

 additional cost to the Town for this unfinished repair is $85,662.23. It is anticipated that
at the very least, approximately $30,000 will be required to complete the repair in Spring,

9
2015.
By way of comparison, the amount of residences serviced by Deer Ridge is
approximately 76 homes. The pavement area is 141,926 square feet and the repair cost
per square foot is $0.22. The poor condition of this road was equally as deteriorated as
Prentice Williams. Prentice Williams only serves 20 residences through this dead end
road. The total area of this road is only 41,184 square feet and the repair cost per square
foot is $0.40. Therefore, due to the overwhelming amount of residents that needed repair.. _ _---on Deer Ridge versus Prentice Williams, a higher level of repair should have been done
on Deer Ridge, which would have resulted in a higher per square foot repair cost, not
approximately half the cost of Prentice Williams.
You are hereby directed to report to the lower level large conference room in To\vn Hall on
Friday, January 9, 2015 at 9:00 AM for the purpose of discussing potential disciplinary
action up to and including a suspension.
At this meeting, you will have an opportunity to answer the allegations that I am raising in
this letter as well as to present any information about the incidents at issue. After the
conclusion of the meeting, I will assess all relevant and appropriate information and make a
determination as to what action, if any, should be taken. In addition, any disciplinary action
that results will become part of your official personnel file.
...

On January 13, 2015, Mr. DiCesare asked for a extension to prepare a response.
His attempt to bring Union Representative Barbara Resnick to the disciplinary hearing
was denied by the Town, and enforced by the presence of a Stonington Police Officer,
who stated that if she did not leave he would arrest her. She left.
At the outset of the follow up meeting, Mr. DiCesare presented a written rebuttal,
and objected to the decision not to allow him representation.The rebuttal reads as follows.
[Italics, used to show quoted material are not in the
original.]
I just want to state before we start that I did my best to
prepare for this meeting under the severe time constraints
given to me, even though I have requested additional time in
order to prepare for this meeting. I also want to state for the
record that I have asked for representation during this

 meeting per the Stonington Employee Handbook but I was
denied. [Emphasis in original]
December 18, 2014 Weekly'Meeting: I did state that I do not
trust Barbara McKrell. I was speaking honestly about how I feel.
At absolutely no time during this meeting did I use profanity, nor
did I issue threats or act insubordinately. I simply made a
statement of fact that is true to me.
10
Status of the equipment for leaf collection - This alleged incident
is addressed in my e-mail dated October 30, 2014: (see attached
Memorandum). Again, I re-directed Steve Burdick from the leaf
equipment because the forecast indicated that there was a
potential weather event. I have not have time to research myoId
Precision Weather Reports, but I will look into those reports as
soon as possible.
Center tine Stripping: Ms.. McKrell aIleges in. her memorandum
that I did not perform my job in a timely manner and that resulted
in a safety issue. I have e-mails dated as early as August 13,
2014, shortly after BOF approval of the bid waiver, making
contact with Hi-Way Safety Systems, Inc. regarding scheduling
for line striping. Multiple e-mails shows the on-going
communicatons between myself and the contractor in order to
accomplish this task. You state that this work needed to be
completed “before the leaves start falling." As you show on your
Highway Weekly Work Schedule 8/18/14 ~ 8/22/14, the
contractor was scheduled for September 29, 2014. Due to
weather or other unforeseen difficulty on the contractor's part,
they were re-scheduled for October 5, 2014. (e-mail) I was out on
medical leave from October 14, 2014 through October 23, 2014.
E-mails indicate that upon my return I requested a status from
Ms. McKrell so that I may complete this task. Further e-mails
illustrate the difficulty weather presented in completing all of
the line striping in Town.
French Notice to Proceed on Paving: Ms. McKrell references a
conversation she had with Ed French on July 17, 2014 where
French informed her that I contacted him directly to hire him for
paving work under the current agreement. I have no idea what
this is in reference to. Since this alleged incident occurred
about six months ago, I would need more information in order to
respond to this issue.

 Abrupt departure of our October 29,2014 Weekly Me eting: As I
stated in my e-mail referencing thisWeekly Meeting.Ms. McKrell
was very angry and obviously upset with me. Our conversation
was being overheard by clerical staff in the outer office. I felt
very uncomfortable and suggested that we continue our
discussion once cooler heads prevailed.
Aqua-Turf Irrigation Change Order. It was my understanding that
this matter was addressed and resolved months. See my
attached e-mails. It was common practice for the Highway Department to act on
verbal commitments between the Department and our vendors
and I was not told previously that that was not acceptable.
This incident was also discussed with me on October 8, 2014, as
outlined ·on Ms. McKrell's Memorandum dated November 4,2014.
River Crest Drive. The work performed on River Crest Drive in
April by Ed French was done per an "in lieu of fee agreement”
with Yankee Gas. J. Bragaw has made similar arrangements with Aquarian
Water. Basically, instead of the company being responsible for future repairs a
11
fee was established and collected by the Town and the Town would be
responsible for the permanent patch. This was created because it benefitted the
Town in two ways. Financially is was better for the Town and more importantly
permanent patch work could be coordinated with our paving schedule and
elliminated doing patch work on newly paved roads. The prior Director of Public
Works was the individual who managed this program. I was only informed on
work locations_ It should ·be noted that Ms. McKrel1 has reached out to J.
Bragaw for further information regarding this program.
This incident was also discussed with me on October 8. 2014, as outlined on Ms.
McKreII's Memorandum dated November 4, 2014. [Underline in original]
Pawcatuck Avenue. To the best of my recollection, I scheduled
crew to complete this work. It is also my recollection that I was
on vacation on June 11th.I will check into this further.
I have asked for, but did not received enough time to review my
records in order to answer these questions.
It is to the best of my recollection regarding setting the catch
basins that this was done in accordance with a plan prepared by the former Town
Engineer. I would not just set elevation without any plan. A reference point was
established for each of the catch basins and provided to the crew to complete the
work. I also believe that the Foreman (J. Curiuso) was "in charge" according
to Ms. McKreli. Keep in mind, by this time Ms. McKrell had just
about removed me from all paving activities.

 As to Exhibit I, CLA states that for Pawcatuck Avenue their
involvement included walking the road and providing a sketch plan outlining the
extent of the work for the purpose of cost estimating and ordering of materials
and that the Town installed the drainage without CLA's assistance being provided
nor sought. It is my belief that R. Galton was much more involved in this
project. In fact, Ms. McKreII put him "in charge" during her
vacation. See attached emails.
Prentiss Williams Road - Ms. McKrell's email of September 17,
2014 states that a 700 ton max would be used on both Prentiss
Williams Road and Deer Ridge. Further an e-mail dated
September 22, 2014 shows the 200 ton max for Prentiss Williams.
I recall walking Prentiss Williams with Ms. McKrel1 a second time
after the full depth patches were completed and it was decided
to overlay the entire road. Proceeding with the overlay would
require exceeding the original 200 ton max. Also, as to the
improper placement of the overlay on Prentiss Williams, J.
Curioso was left as lead on this paving job due a work meeting I
had to attend with Ms. McKrell.
Deer Ridge Road - This subject was outlined previously in my email
dated October 30, 2014. I would like to note however, that
Ms. McKrel1 and I discussed the application technique (shimming)
and she approved going forward. Please refer to page 2 of Ms.
McKrell's Exhibit M, "Next time I think we would be better off
with a different approach for a better look at the end. This is one
of many complaints Ed has received. How much tonnage did we
12
use on Deer Ridge?" As far as tonnage is concerned, again there
was a 500 ton max on this project.
Again, I do want to emphasize that I did my best to prepare
for this meeting under the severe tie constraints given to
me, even though I have requested additional time in order to
prepare for this meeting. I also want to state again that I have
asked for representation during this meeting per the
Stonington Employee Handbook but I was denied. [Emphasis in original]

Following the meeting, on January 20, 2015, Ms McKrell issued MR. DiCesare a
five-day suspension without pay. It states as follows:
This is to advise you that you are suspended for five (5) days without pay as a result of

 your conduct reflected in my January 7, 2015 memo notifying you of potential discipline. I have
reviewed all of the documentation that you have presented to me on Friday, January 16, 2015,
and I have taken into account the statements made to me regarding the instances of
insubordination and insufficient planning that we have discussed previously. My evaluation did
not reveal any information that would lead me to issue any shorter period of suspension, given
your statements to me.
Your suspension without pay will begin on Wednesday, January 21, 2015 and be served
consecutively for the five (5) work days through Tuesday, January 27,2015, You are to report
back to work on Wednesday, January 28, 2015.
According to the Policies of Employment for Non-Union Personnel, under the Grievance
Procedure Section, it states, "Any regular employee who feels aggrieved because of the
application or violation of any police, rule or personnel action, including disciplinary action
affecting wages, hours or conditions of employment, shall, have the right to file a grievance
according to the following procedures." Pursuant to Step 3:
An employee not satisfied with the decision of the Department Director, may obtain a
review by the Director of Administrative Services or his/her designee by submitting a request for
review within five (5) calendar days following the receipt of the decision of the Department
Director. The Director of Administrative Services shall make such investigation and conduct
such meeting as he may deem necessary and shall, within thirty (30) calendar days after the
receipt of the employee's request for review, give the employee a written answer to the
grievance. The decision of the Director of Administrative Services shall be final.
As you are aware, your suspension does not include any discipline related to work you
were responsible for on Elmridge Road nor any information that may be brought to my attention
as a result ofthe catch basin assessment completed by Town Engineer, Scot Deledda on
Elmridge Road. He summarizes the condition and necessary repairs to the road as follows:
The total number of catch basins that will require the permanent repair is (13) on the
westerly end and (6) on the easterly end of Elm Ridge Road. The remaining catch basins were

13
either positioned out of the traveled way or were set at an acceptable elevation with an
appropriate flare. However, all of the catch basins on this road have a double stacked riser
situation and at a minimum should have the risers tack welded as described in the Temporary
Repair above.

Discussion and Analysis
Connecticut law governs municipal labor relations in Town of Stonington.
Section 31-105 creates employer unfair labor practices, some of which which are
patterned after similar rights under the National Labor Relations Act. There are obvious
differences as well between the two statutes, such as the use of strikes and lockouts.
The question here is what happens when the ballot, such as in this case, showed

 the grievant wished to join the bargaining unit, but the employer filed an objection to the
election, which the State Labor Board ultimately dismissed and certified the result. What
may an employer do in that interim period of time. Does the employee have no rights
until certification? May the employer use that period of time to conduct a disciplinary
hearing and deny the employee representative? The Connecticut Courts have not decided
that issue, but the National Labor Relations Act has in a case involving a unilateral
change by an employer after the election but while objections, ultimately overruled, were
pending.
In Mike O'Connor Chevrolet Co., Inc., 209 NLRB 701 (1975), remanded on
other grounds, 512 F.2d 684 (8th Cir.1975), the Board held that, absent
compelling economic reasons, an employer who unilaterally changes terms and
conditions of employment during the pendency of objections may be charged
with a section 8(a)(5) violation once the union is certified. The purpose of the
rule is to prevent employers from postponing their bargaining obligation through
dilatory tactics and spurious objections. Fugazy Continental Corp. v. NLRB, 725
F.2d 1416, 1421 (D.C.Cir.1984). Employers who make unilateral changes during
the pendency of objections to a representation election thus do so at their peril.
"If the election challenge proves fruitless, an order by the Board based on the
refusal to bargain will be enforced." NLRB v. WR. Grace & Co., 571 F.2d 279,
282 (5th Cir.1978); NLRB v. McCann Steel Co., 448 F.2d 277, 279 (6th
Cir.1971). Such a rule recognizes that representation elections are entitled to a
presumption of validity and that the choice of unit employees should be
promptly effectuated. 824 F.2d 318, 320 (4th Cir. 1987) (emphasis added). While not

 binding on the Connecticut courts, the reasoning is equally valid, and that an election in
favor of the Union, or in this case, in favor of joining the bargaining unit, has a
“presumption of validity.” Adjusting grievances is part of collective bargaining. An
employer who seeks to treat an employee as non-union after the election but while
objections are pending does so at their peril. Connecticut law, like federal law, requires
municipal employers to bargain in good faith. C.G.S. Section 31-106.
It is undisputed that if the Town had not filed objections to the election, the Labor
Board would have promptly certified the addition of the grievant’s position to the
bargaining unit. Just as a employer cannot create a window of opportunity to make
unilateral changes without bargaining by filing an objection to an election, neither can a
municipal employer create a window of opportunity to have a disciplinary hearing
without a union representative in that window. The reasons are identical: an employer
who refuses to bargain by making unilateral changes in that window runs the risk that if
the election objections are rejected, those changes are an unfair labor practice. Here, the
employer ran the risk that their objections would be rejected, and conducted the
disciplinary hearing without allowing the grievant to have a union representative at his
side.
In the case of this grievant, the refusal to allow the grievant to be represented by
the Union in the suspension hearing is both a unilateral denial by the employer of the
grievant’s rights, and the employer cannot by filing an objection to a otherwise valid
election take those rights away and use the interim between the objection and the Labor
Board’s dismissal to discipline the grievant without allowing him to have a representative
present. The employer thus made a unilateral change in the grievant’s right, after he voted

 in favor of joining the Union, the election, to Union representation.
The IBM case, IBM Corp., 341 NLRB 1288 (2004), cited by the Town, is
factually different. It does not answer the question of whether an employer who has
delayed a union being certified by filing objections to the election can refuse to bargain
by unilaterally changing the right to be represented by a Union. IBM involved a nonUnion employer, did not involve a successful Union election, and provides no answer to
the issue in this case.
The argument that one of the Union representatives was not of the same view as
the view advanced in this arbitration is not persuasive. The representative was focused on
whether the grievant had become a member of the Union. That misstates the issue. It is
whether once the election went in his favor, he was as a member of the bargaining unit
entitled to certain rights. Ultimately the Union’s position as to what the law is, and the
Town’s position, are to be stated by their attorneys in arbitration.
The concept of “just cause” involves the procedures an employer uses before
disciplining an employee. Thus, by not allowing the employee to have union
representation at the suspension hearing, the employer forced the grievant to defend
himself, and violated the “just cause” standard.
The disadvantage is obvious. Grievants are workers, not experts in presenting
grievances. They are emotionally involved in the proceeding. They are frequently
nervous and upset. They are placed at a substantial disadvantage in a disciplinary
proceeding where they are forced to defend themselves without assistance.
The only adequate remedy in such as case is to reverse the discipline. It is not
harmless error or a formality. A Union representative, for example, could have alerted the

 Ms McKrell that she was imposing second discipline for several offenses that the
employee had previously been discipline for.1 A representative could have argued that
progressive discipline cannot permit an employer to collect offenses and hit an employee
for all of them at once with a five-day suspension.
For the forgoing reasons, the grievance is sustained. The town must make the
employee whole for the five day suspension without pay, and remove the suspension
from his record.
AWARD
1. The Town of Stonington did not have just cause to suspend the grievant, Mr.
Louis DiCeasare, on January 20, 2015.
2. Mr. DiCeasare is to be made whole for any loss of pay or other benefits and
the suspension removed from his record.
3. The arbitrator retains jurisdiction over the remedy for 90 days to resolve any
dispute that may arise as to computation of the back pay amounts or other
benefits, if any, due the Mr. DiCeasare

Dated: March 2, 2018______________________________________
Peter Adomeit, Arbitrator

1

Once an employee is disciplined for an offense, the employer cannot justly call the
employee back in and increase the discipline for the same offense. See In the Matter of
Ray Rice, November 28, 2014 (Hon. Barbara Jones (ret.) written by a retired Federal
Judge, reversing Football Commissioner Roger Goodell’s double disciplining of Ray
Rice. https://www.espn.com/pdf/2014/1128/141128_rice-summary.pdf