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*********************************************** 
TOWN OF MIDDLEBURY v. FRATERNAL ORDER

OF POLICE, MIDDLEBURY LODGE

NO. 34, ET AL.

(SC 20733)

Robinson, C. J., and McDonald, D’Auria,

Mullins and Alexander, Js.

Syllabus

The plaintiff town appealed to the trial court from the decision of the

defendant State Board of Labor Relations, which concluded that the

town had violated the Municipal Employee Relations Act (§ 7-467 et

seq.) by unilaterally changing its past practice of including extra duty

pay in calculating pension benefits for members of the named defendant

union. The labor board’s decision was based on its conclusions that

the town had violated the statute (§ 7-470 (a) (4)) requiring municipal

employers to bargain in good faith, that there had been a consistent

past practice of including extra duty pay in the calculation of pension

benefits, and that the union had not waived its right to bargain with

respect to changes to the calculation of future retirement benefits. In

reaching its decision, the labor board applied its well established standard that a union’s waiver of its right to bargain with respect to an

otherwise mandatory subject of bargaining must be clear and unmistakable. During the pendency of the town’s administrative appeal to the

trial court, however, the National Labor Relations Board (NLRB) issued

a decision in MV Transportation, Inc. (368 N.L.R.B. No. 66), in which

the NLRB abandoned the clear and unmistakable waiver standard in

favor of the contract coverage standard, under which the NLRB initially

reviews the plain language of the parties’ collective bargaining agreement

to determine whether the change made by the employer was within the

compass or scope of the contractual language granting the employer

the right to act unilaterally. Because the NLRB had held that the contract

coverage standard applied retroactively to all pending cases, the trial

court remanded the case to the labor board to consider whether to

adopt that new federal standard. Subsequently, the labor board declined

to adopt the contract coverage standard, and the trial court rendered

judgment dismissing the town’s administrative appeal, concluding, inter

alia, that the town had failed to demonstrate any illegality, abuse of

discretion, or prejudice to the town’s rights in the labor board’s decision.

On appeal to the Appellate Court, that court concluded that, because

NLRB decisions are not binding on the labor board, the labor board did

not act unreasonably, illegally, arbitrarily, or in abuse of its discretion

in declining to adopt the contract coverage standard. The Appellate

Court also concluded that, because the labor board is the administrative

agency tasked with enforcing the Municipal Employee Relations Act,

its policy decision to continue to apply the clear and unmistakable waiver

standard was entitled to deference. On the granting of certification, the

town appealed to this court.

Held that the Appellate Court correctly concluded that the labor board did

not act unreasonably, illegally, arbitrarily, or in abuse of its discretion

when it declined to follow MV Transportation, Inc., and to apply the

contract coverage standard in determining whether the town’s unilateral

change to the way it calculated pension benefits for union members

violated the Municipal Employee Relations Act:

Although the Municipal Employee Relations Act was predicated on, and

its phraseology was patterned after, the National Labor Relations Act

(29 U.S.C. § 151 et seq.), and although this court frequently has relied

on federal labor law precedent in interpreting parallel state legislation,

including the Municipal Employee Relations Act, the federal act does

not apply to Connecticut municipalities, the labor board was neither

bound by NLRB precedent nor required to follow the NLRB’s decision

in MV Transportation, Inc., and, accordingly, the labor board did not
act unreasonably, illegally, arbitrarily, or in abuse of its discretion in

declining to follow that case.

Moreover, even if the labor board had followed MV Transportation,

Inc., and had adopted the contract coverage standard, the outcome of

the present case would not have changed, as the NLRB has clarified that

application of the contract coverage standard is limited to cases involving

unexpired collective bargaining agreements, and it was undisputed that

the agreement between the town and the union expired before the town

unilaterally changed its past practice of including extra duty pay in the

calculation of pension benefits.

Furthermore, contrary to the town’s claim, the Appellate Court did not

improperly defer to the labor board’s decision to apply the clear and

unmistakable waiver standard, as the labor board has applied that standard for approximately fifty years, this court long has approved of the

labor board’s application of that standard to claims that an employer’s

unilateral change violated the Municipal Employee Relations Act, prior

to MV Transportation, Inc., the United States Supreme Court had

endorsed the NLRB’s application of the clear and unmistakable waiver

standard to claims that an employer’s unilateral change to employment

conditions constituted a refusal to bargain collectively, and the labor

board was the administrative agency authorized and vested with broad

powers to enforce collective bargaining rights in this state, such that its

policy decision to retain the long-standing and judicially approved clear

and unmistakable waiver standard was entitled to deference.

Argued March 30—officially released October 24, 2023

Procedural History

Appeal from the decision of the defendant State

Board of Labor Relations that the plaintiff’s change in

its practice of including extra duty pay in the calculation

of pensions for members of the named defendant violated the Municipal Employee Relations Act, brought to

the Superior Court in the judicial district of Waterbury,

where the case was transferred to the judicial district

of New Britain; thereafter, the court, Hon. Stephen F.

Frazzini, judge trial referee, remanded the case to the

State Board of Labor Relations to determine whether a

decision of the National Labor Relations Board applied

retroactively; subsequently, the case was tried to the

court, Hon. Stephen F. Frazzini, judge trial referee,

who, exercising the powers of the Superior Court, rendered judgment dismissing the appeal, from which the

plaintiff appealed to the Appellate Court, Bright, C. J.,

and Moll and Bear, Js., which affirmed the trial court’s

judgment, and the plaintiff, on the granting of certification, appealed to this court. Affirmed.

Thomas G. Parisot, with whom were Connor P.

McNamara and Anne Murdica, for the appellant

(plaintiff).

Frank N. Cassetta, general counsel, with whom was

Tamara Titre, assistant general counsel, for the appellee (defendant State Board of Labor Relations).

Stephen F. McEleney, with whom was David S. Taylor, for the appellee (named defendant).
Opinion

ALEXANDER, J. In the absence of a valid defense, a

municipal employer’s unilateral change to an employment

condition constitutes a refusal to bargain collectively

in good faith in violation of the Municipal Employee

Relations Act (MERA), General Statutes § 7-467 et seq.

One such defense is that the union consented, either

expressly or impliedly, to the unilateral change at issue.

For nearly fifty years, the defendant State Board of

Labor Relations (labor board) has required municipal

employers to demonstrate such consent by establishing

that the union clearly and unmistakably waived its right

to bargain with respect to the particular employment

condition.1

In this certified appeal, the plaintiff, the town

of Middlebury (town), challenges the trial court’s dismissal of the town’s administrative appeal from the

decision of the labor board concluding that the town

violated MERA by unilaterally changing the town’s past

practice of including extra duty pay in the calculation of

pension benefits for members of the named defendant,

Fraternal Order of Police, Middlebury Lodge No. 34 (union).

The town claims that the Appellate Court incorrectly

determined that the labor board did not act unreasonably, illegally, arbitrarily, or in abuse of its discretion

when it declined to apply the ‘‘contract coverage’’ standard, as adopted by the National Labor Relations Board

(NLRB) in MV Transportation, Inc., Case No. 28-CA173726, 368 N.L.R.B. No. 66, slip op., pp. 1–2, 9–11 (September 10, 2019),2 and instead applied the clear and

unmistakable waiver standard to the union’s claim that

the town’s unilateral change to its pension plan constituted a refusal to bargain collectively in good faith in

violation of MERA. We disagree and affirm the judgment

of the Appellate Court.

The opinion of the Appellate Court sets forth the

relevant procedural background and facts as found by

the labor board. See Middlebury v. Fraternal Order of

Police, Middlebury Lodge No. 34, 212 Conn. App. 455,

458–64, 275 A.3d 664 (2022). In its decision, the labor

board found that ‘‘the town violated General Statutes

§ 7-470 (a) (4)3 when the [town’s] retirement [plan] committee4 excluded extra duty pay from the calculation

of members’ pension benefits. . . . The labor board

. . . determined that the union had established a prima

facie case of unlawful unilateral change to a term or

condition of employment. Specifically, the labor board

found that there was a consistent past practice of

including extra duty pay in the calculation of pension

benefits that had endured for almost thirty years before

the retirement [plan] committee’s October, 2017 meeting.

The labor board rejected the town’s contract defense,

concluding that the union had not waived its right to

bargain over changes to the calculation of future retirement benefits by referencing the retirement plan in the

parties’ agreement. In so concluding, the labor board
applied its well established standard for determining

whether a union has waived its right to bargain over

an otherwise mandatory subject of bargaining, which

requires that the waiver be clear and unmistakable. . . .

‘‘The town appealed from the labor board’s decision

to the Superior Court pursuant to [the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-

183]. After the parties appeared for oral argument and

submitted briefs in the trial court, the [NLRB] issued a

decision in which it abandoned the clear and unmistakable waiver standard5

in favor of the contract coverage

standard6

in cases over which it has jurisdiction. See

MV Transportation, Inc., [supra, 368 N.L.R.B. No. 66].

Because the NLRB held that the newly adopted rule

applies retroactively to all pending cases, the trial court

remanded the present case to the labor board to consider whether to adopt the new federal standard in

Connecticut and, if so, whether to apply it retroactively

in the present case.

‘‘On December 12, 2019, the labor board issued an

order declining to adopt the contract coverage standard, and the [trial] court . . . dismiss[ed] the town’s

appeal on March 12, 2020. The [trial] court determined

that the labor board’s decision was supported by substantial evidence and that the town had failed to demonstrate any illegality, abuse of discretion, or prejudice

to its rights in the labor board’s decision.’’ (Citation

omitted; footnotes added; footnotes omitted.) Middlebury v. Fraternal Order of Police, Middlebury Lodge

No. 34, supra, 212 Conn. App. 462–64.

The town appealed from the judgment of the trial

court to the Appellate Court, claiming that the labor

board had improperly declined to follow the NLRB’s

decision in MV Transportation, Inc., and to apply the

contract coverage standard to the union’s claim that

the town’s unilateral change to the way it calculates

pension benefits violated MERA. Id., 478. The Appellate

Court disagreed, concluding that, because NLRB decisions are not binding on the labor board, the labor

board did not act unreasonably, illegally, arbitrarily, or

in abuse of its discretion in declining to adopt the contract coverage standard. Id., 485–86. The Appellate

Court further concluded that, because the labor board

is the administrative agency tasked with enforcing

MERA, its policy decision to continue applying the clear

and unmistakable waiver standard was entitled to deference. Id. On appeal, the town challenges both determinations.

‘‘We begin by articulating the applicable standard of

review in an appeal from the decision of an administrative agency. Judicial review of [an administrative

agency’s] action is governed by the [UAPA] . . . and

the scope of that review is very restricted. . . . The

court’s ultimate duty is only to decide whether, in light

of the evidence, the [agency] has acted unreasonably,
arbitrarily, illegally, or in abuse of its discretion. . . .

Conclusions of law reached by the administrative agency

must stand if the court determines that they resulted

from a correct application of the law to the facts found

and could reasonably and logically follow from such

facts.’’ (Internal quotation marks omitted.) 1st Alliance

Lending, LLC v. Dept. of Banking, 342 Conn. 273, 280,

269 A.3d 764 (2022).

We find no merit in the town’s claim that the labor

board acted unreasonably, illegally, arbitrarily, or in

abuse of its discretion when it declined to follow MV

Transportation, Inc., and to apply the contract coverage

standard in determining whether the town’s unilateral

change to its pension plan violated MERA. In support

of its claim, the town argues that MV Transportation,

Inc., demonstrates that the clear and unmistakable

waiver standard is ‘‘theoretically and practically unsupportable,’’ setting an unattainable goal for employers

to meet in defending unilateral changes to employment

conditions. The town further argues that the contract

coverage standard ‘‘give[s] effect to the thoroughly and

properly negotiated terms and conditions of collective

bargaining agreements.’’

The labor board was not required to follow the

NLRB’s decision in MV Transportation, Inc. Although

MERA was predicated on, and its phraseology was patterned after, the National Labor Relations Act (NLRA),

29 U.S.C. § 151 et seq. (2018); see Connecticut State

Labor Relations Board v. Connecticut Yankee Greyhound Racing, Inc., 175 Conn. 625, 633, 402 A.2d 777

(1978); and although this court frequently has relied on

federal labor law precedent when interpreting parallel

state legislation, including MERA; see, e.g., Danbury

v. International Assn. of Firefighters, Local 801, 221

Conn. 244, 251–52, 603 A.2d 393 (1992); the NLRA does

not apply to Connecticut municipalities. See 29 U.S.C.

§ 152 (2) (2018) (defining ‘‘employer’’ for purposes of

NLRA to exclude ‘‘any [s]tate or political subdivision

thereof’’).

Thus, ‘‘[although] the interpretation of provisions of

the [NLRA] may be extremely helpful . . . neither the

state [labor] board nor our courts are compelled to

slavishly follow policies [that] have been adopted by

the NLRB for the purpose of ensuring administrative

efficiency at the federal level.’’ Connecticut State Labor

Relations Board v. Connecticut Yankee Greyhound

Racing, Inc., supra, 175 Conn. 633–34; see id., 638–39

(when applying MERA, state labor board is not bound

to follow NLRB evidentiary rules); see also id., 638

(‘‘[t]he [state] labor board, like the NLRB, has broad

discretion in administering the state labor laws’’); In

re Winsted Memorial Hospital, Conn. Board of Labor

Relations Decision No. 1172-A (August 14, 1973) p. 2

(‘‘[a]lthough NLRB precedents are indeed persuasive,

they are not binding [on] us and we have departed from
them when we have found that local conditions and

policies require a different result’’). Because the labor

board is not bound by NLRB precedent, the town cannot

prevail on its claim that the labor board acted unreasonably, illegally, arbitrarily, or in abuse of its discretion

in declining to follow MV Transportation, Inc.

We note, moreover, that, even if we agreed with the

town that the labor board should have followed MV

Transportation, Inc., and adopted the contract coverage standard, it does not appear that the outcome of

this case would change because it is undisputed that the

parties’ collective bargaining agreement expired before

the town unilaterally changed its past practice of including extra duty pay in the calculation of pension benefits.

In MV Transportation, Inc., the employer made the

challenged unilateral change during the term of the

collective bargaining agreement. MV Transportation,

Inc., supra, 368 N.L.R.B. No. 66, slip op., p. 3. The NLRB

expressly stated that its decision did not ‘‘[speak] to

the status of contract provisions authorizing unilateral

employer action after the contract containing the provisions has expired’’; id., p. 15 n.36; thereby limiting its

holding to cases involving an employer’s unilateral

changes made during the duration of the contract and

leaving open the question of whether the new standard

would apply to postexpiration unilateral changes.

As the Appellate Court observed, less than one year

after MV Transportation, Inc., was decided, the NLRB

clarified that ‘‘provisions in an expired [collective bargaining] agreement do not cover postexpiration unilateral changes [to employment conditions] unless the

agreement contained language explicitly providing that

the relevant provision would survive contract expiration.’’ (Emphasis added; internal quotation marks omitted.) Middlebury v. Fraternal Order of Police,

Middlebury Lodge No. 34, supra, 212 Conn. App. 486

n.8, quoting Nexstar Broadcasting, Inc., 369 N.L.R.B.

No. 61, slip op., p. 2 (April 21, 2020); see National Labor

Relations Board v. Nexstar Broadcasting, Inc., 4 F.4th

801, 811 (9th Cir. 2021) (granting NLRB’s petition for

enforcement of its decision in Nexstar Broadcasting,

Inc.). The NLRB explained that, as a general matter,

contractual obligations cease ‘‘upon termination of the

bargaining agreement. . . . Thus, an expired contract

has by its own terms released all its parties from their

respective contractual obligations, except obligations

already fixed under the contract but as yet unsatisfied.’’

(Citation omitted; internal quotation marks omitted.)

Nexstar Broadcasting, Inc., supra, 369 N.L.R.B. No.

61, slip op., p. 3. Upon the expiration of a collective

bargaining agreement, ‘‘an employer has a duty to maintain the status quo. Although the status quo is ascertained by looking to the substantive terms of the expired

contract . . . the obligation to maintain the status quo

arises out of the [NLRA], not the parties’ contract. After

a contract expires, terms and conditions continue in
effect by operation of the NLRA. They are no longer

[agreed on] terms; they are terms imposed by law.’’

(Citation omitted; emphasis omitted; internal quotation

marks omitted.) Id.; see also National Labor Relations

Board v. Nexstar Broadcasting, Inc., supra, 4 F.4th 809

(‘‘an employer may not excuse itself from its obligation

to maintain status quo working conditions after the

[collective bargaining agreement’s] expiration by simple reference to the broad compass or scope of expired

contractual terms’’ (emphasis in original)); PG Publishing Co., 371 N.L.R.B. No. 141, slip op., pp. 5–6 (September 21, 2022) (employer’s unilateral change to conditions

of employment after expiration of collective bargaining

agreement violated NLRA when expired agreement did

not clearly and unmistakably waive union’s statutory

right to require employer to maintain status quo); Northstar Memorial Group, LLC, 369 N.L.R.B. No. 145, slip

op., p. 2 (July 30, 2020) (applying clear and unmistakable

waiver standard in determining that union had not

waived right to bargain over conditions of employment

that employer had unilaterally changed after expiration

of collective bargaining agreement).7 The NLRB’s limitation on the application of the contract coverage standard to unexpired collective bargaining agreements

provides further support for our conclusion that the

labor board did not act unreasonably, illegally, arbitrarily, or in abuse of its discretion when it declined to

apply that standard to the town’s unilateral change to

its pension plan after the expiration of the parties’ collective bargaining agreement.

Finally, we find no merit in the town’s claim that

the Appellate Court improperly deferred to the labor

board’s decision to continue applying the clear and

unmistakable waiver standard. The town contends that

whether to adopt the contract coverage standard presented a ‘‘novel’’ question, and, therefore, the labor

board’s decision to apply the clear and unmistakable

waiver standard, unsupported by any analysis, was entitled to no deference.

There is nothing novel about the labor board’s application of the clear and unmistakable waiver standard.

As the Appellate Court explained, the labor board has

applied that standard for approximately five decades.

See Middlebury v. Fraternal Order of Police, Middlebury Lodge No. 34, supra, 212 Conn. App. 485; see

also, e.g., In re Waterbury Board of Education, Conn.

Board of Labor Relations Decision No. 4337 (September

8, 2008) p. 8; In re New Haven, Conn. Board of Labor

Relations Decision No. 1342 (October 31, 1975) p. 7.

This court has approved of the labor board’s application

of the clear and unmistakable waiver standard for

nearly as long. See, e.g., Greater Bridgeport Transit

District v. State Board of Labor Relations, 232 Conn.

57, 64, 653 A.2d 151 (1995) (adopting decision of trial

court in Greater Bridgeport Transit District v. State

Board of Labor Relations, 43 Conn. Supp. 340, 358, 653
A.2d 229 (1993), which upheld labor board’s decision

that employer’s unilateral change violated MERA and

observed that, ‘‘[b]ecause waiver of statutory rights by

unions is disfavored, the purported waiver must be clear

and unmistakable’’ (internal quotation marks omitted)).

Prior to MV Transportation, Inc., the United States

Supreme Court twice endorsed the NLRB’s application

of the clear and unmistakable waiver standard to claims

that an employer’s unilateral change to employment

conditions constituted a refusal to bargain collectively.

See Metropolitan Edison Co. v. National Labor Relations Board, 460 U.S. 693, 708, 103 S. Ct. 1467, 75 L.

Ed. 2d 387 (1983) (In interpreting collective bargaining

agreements, ‘‘[the United States Supreme Court] will

not infer from a general contractual provision that the

parties [intend] to waive a statutorily protected right

unless the undertaking is ‘explicitly stated.’ More succinctly, the waiver must be clear and unmistakable.’’);

National Labor Relations Board v. C & C Plywood

Corp., 385 U.S. 421, 428, 87 S. Ct. 559, 17 L. Ed. 2d

486 (1967) (in applying clear and unmistakable waiver

standard, NLRB ‘‘has done no more than merely enforce

a statutory right [that] Congress considered necessary

to allow labor and management to get on with the process of reaching fair terms and conditions of employment’’).

As the administrative agency authorized and vested

with broad powers to enforce collective bargaining

rights in this state, the labor board’s policy decision to

retain the long-standing and judicially approved clear

and unmistakable waiver standard when determining

whether a union has waived its statutory right to bargain

collectively is entitled to deference. See, e.g., Lieberman v. State Board of Labor Relations, 216 Conn. 253,

262, 579 A.2d 505 (1990) (‘‘an agency’s factual and discretionary determinations are to be accorded considerable weight by the courts’’); Connecticut State Labor

Relations Board v. Connecticut Yankee Greyhound

Racing, Inc., supra, 175 Conn. 640 (‘‘[b]ecause the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the

allowable area of the [labor] [b]oard’s discretion and

must guard against the danger of sliding unconsciously

from the narrow confines of law into the more spacious

domain of policy’’ (internal quotation marks omitted)).

In light of the foregoing, we disagree with the town

that it was improper for the Appellate Court to defer

to the labor board’s decision to apply the clear and

unmistakable waiver standard rather than the contract

coverage standard in determining whether the union

had waived its statutory right to bargain collectively

with respect to the manner in which the town calculates

its members’ pension benefits.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

1 Under the clear and unmistakable waiver standard, a waiver of the
statutory right to bargain over a condition of employment ‘‘may be established by either an express provision in the collective bargaining agreement,

or by the conduct of the parties, including past practices and bargaining

history. . . . An employer relying on a claim of waiver of a duty to bargain

bears the burden of demonstrating it clearly and unmistakably.’’ (Citation

omitted; internal quotation marks omitted.) Greater Bridgeport Transit

District v. State Board of Labor Relations, 43 Conn. Supp. 340, 358, 653

A.2d 229 (1993), aff’d, 232 Conn. 57, 653 A.2d 151 (1995). ‘‘This standard

. . . requires bargaining partners to unequivocally and specifically express

their mutual intention to permit unilateral employer action with respect to

a particular employment term, notwithstanding the statutory duty to bargain

that would otherwise apply.’’ (Internal quotation marks omitted.) MV Transportation, Inc., Case No. 28-CA-173726, 368 N.L.R.B. No. 66, slip op., p. 4

(September 10, 2019).

2

In adopting the contract coverage standard, the NLRB overruled seventy

years of precedent applying the clear and unmistakable waiver standard

to claims that an employer unilaterally changed a term or condition of

employment. See MV Transportation, Inc., supra, 368 N.L.R.B. No. 66, slip

op., p. 1. ‘‘Under [the] contract coverage [standard], the [NLRB] will examine

the plain language of the [collective bargaining] agreement to determine

whether action taken by an employer was within the compass or scope of

contractual language granting the employer the right to act unilaterally.’’

Id., p. 2. When ‘‘the agreement does not cover the employer’s disputed act,

and that act has materially, substantially and significantly changed a term

or condition of employment constituting a mandatory subject of bargaining,

the employer will have violated [the National Labor Relations Act, 29 U.S.C.

§ 151 et seq.] unless it demonstrates that the union clearly and unmistakably

waived its right to bargain over the change or that its unilateral action

was privileged for some other reason. Thus, under the contract coverage

[standard] . . . the [NLRB] will first review the plain language of the parties’

[collective bargaining] agreement, applying ordinary principles of contract

interpretation, and then, if it is determined that the disputed act does not

come within the compass or scope of a contract provision that grants the

employer the right to act unilaterally, the analysis is one of waiver.’’ (Emphasis omitted; footnotes omitted.) Id.

3 General Statutes § 7-470 (a) provides in relevant part: ‘‘Municipal employers or their representatives or agents are prohibited from . . . (4) refusing

to bargain collectively in good faith with an employee organization which

has been designated in accordance with the provisions of said sections as

the exclusive representative of employees in an appropriate unit . . . .’’

4 The town created the retirement plan committee to administer the town’s

retirement plan. See Middlebury v. Fraternal Order of Police, Middlebury

Lodge No. 34, supra, 212 Conn. App. 458, 467.

5 See footnote 1 of this opinion.

6 See footnote 2 of this opinion.

7 The parties have not addressed in their briefs to this court what effect,

if any, Nexstar Broadcasting, Inc., has on the town’s claim that the labor

board improperly declined to apply the contract coverage standard to the

union’s prohibited practice claim. Because we conclude that the labor board

did not act unreasonably, illegally, arbitrarily, or in abuse of its discretion

in declining to adopt the contract coverage standard, we need not resolve

definitively whether that standard ultimately would have applied to the

town’s waiver defense.