Skip to content

Municipal Employers: CT Supreme Court Says Unilateral Action Must Be Clear and Unmistakable

By: Christopher R. Henderson, Esq.

Co-authored by Jordan A. Vazzano

The Connecticut Supreme Court issued a decision on October 19 with considerable implications for municipalities and labor relations. Importantly, it clarified the role of the State Labor Board, the influence of the National Labor Relations Act which governs private sector labor law on the national scale, and examined the authority of a municipal employer to act unilaterally in the face of union resistance.

In Town of Middlebury v. Fraternal Order of Police, Middlebury Lodge No. 34, the central issue in this case revolves around the application of collective bargaining rights and waiver standards within the context of public employment. The Supreme Court determined whether the labor board acted appropriately in applying the “clear and unmistakable waiver” standard instead of the “contract coverage” standard and whether the trial court’s review was conducted under the correct standard.


In January 2018, the Fraternal Order of Police (FOP) Lodge No. 34 filed a complaint with the State Board of Labor Relations (SBLR) against the Town of Middlebury. The FOP alleged that the town had violated the Municipal Employee Relations Act (MERA) by unilaterally eliminating extra duty pay from the pension calculation. The SBLR sided with the FOP, finding that the town had a consistent past practice of including extra duty pay and that the collective bargaining agreement did not contain a clear and unmistakable waiver of the union’s right to negotiate over this employment condition.

Appeals and Standards

The town appealed the SBLR’s decision to the Superior Court. During the appeal process, the National Labor Relations Board (NLRB) issued a decision in MV Transportation, Inc., abandoning the clear and unmistakable waiver standard in favor of the “contract coverage” standard.

The Superior Court remanded the case back to the SBLR to consider whether to adopt the new federal standard. However, the SBLR declined to do so, choosing to stick with the clear and unmistakable waiver standard. The trial court, applying the clear and unmistakable waiver standard, upheld the SBLR’s decision, and the town further appealed to the Appellate Court.

Appellate Court Review

The Appellate Court rejected the town’s claim that the SBLR erred by not adopting the contract coverage standard. The court emphasized that the NLRB’s precedent was nonbinding and deferred to the SBLR’s decision. The Appellate Court found that the labor board’s determination was supported by substantial evidence and, therefore, affirmed the judgment.

Supreme Court Review                                     

At the Connecticut Supreme Court level, the court determined that the Appellate court had 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 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.

The Court added that although the MERA  was based on, and its phraseology was patterned after, the National Labor Relations Act, and although the CT Supreme 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.

Additionally, the CT Supreme Court found 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. 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 standard when determining whether a union has waived its statutory right to bargain is collectively entitled to deference.

Implications and Importance

The outcome of this case will have broad implications for labor law and collective bargaining in the public sector. The choice between the clear and unmistakable waiver standard and the contract coverage standard has significant consequences for both employers and unions.

Under the “clear and unmistakable waiver” standard, the Board would find that an employer’s unilateral change violated the Act unless a contractual provision unequivocally and specifically referred to the type of employer action at issue. Such a standard in application resulted in a finding of a waiver of the union’s right to bargain in only the rarest cases. As such, many viewed this standard to be “unattainable.”

On the other hand, under the “contract coverage” standard, the Board examines 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. If it was, the Board will honor the plain terms of the agreement, and the employer will not be in violation of the Act for making the change without bargaining. Conversely, if the agreement does not cover the employer’s disputed action, the employer will have violated the Act unless it shows that the union waived its right to bargain over the change or was somehow privileged to act unilaterally.

For employers, the contract coverage standard was a welcome reprieve from the more stringent “clear and unmistakable” standard. Relaxing the standard for lawful unilateral action enables employers to retain more flexibility and eradicates the employer’s need to bargain for management rights clauses with great specificity. The SBLR and the courts, however, declined to grant management a reprieve from the more stringent standard. Despite this, employers can continue to have some certainty in what standard applies and bargain strategically to incorporate explicit waivers of union rights.