O'Rourke v. Dept. of Labor ( 2022 )

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JOAN O’ROURKE v. DEPARTMENT OF LABOR ET AL.
(AC 43519)
Alvord, Prescott and DiPentima, Js.
Syllabus
The plaintiff, a former employee of the defendant Department of Children
and Families (department), appealed to this court from the judgment
of the trial court dismissing her administrative appeal from the decision
of the defendant Department of Labor, State Board of Labor Relations,
concluding that she had failed to establish that the defendant union had
breached its duty of fair representation during arbitration proceedings
with the department regarding whether the department had just cause
to terminate the plaintiff’s employment. In her position with the depart-
ment, the plaintiff investigated allegations of child abuse and neglect.
After completing an investigation of a particular case involving a moth-
er’s alleged neglect of her two children, the plaintiff submitted to her
supervisor, F, a draft investigative report, which concluded that, with
respect to one of the children, the allegation was not substantiated. F
disagreed with various parts of the draft report and made various
changes in the final draft of that report to address her concerns. On
the basis of the information included in the final report, the department
filed an application for an ex parte order of temporary custody. The
plaintiff, believing that the final report contained false and misleading
information and omitted certain exculpatory information, and without
notifying or obtaining permission from the department, sent a copy of
the draft report to the attorney who represented the mother in the
order of temporary custody proceedings. Thereafter, a human resources
specialist for the department initiated an investigation of the plaintiff
relating to her disclosure of the confidential, draft report. He determined
that she had violated various department policies, a state statute ((Supp.
2010) § 17a-28), and a state regulation (§ 5-240-1a (c)), and the depart-
ment terminated her employment. The union filed a grievance on behalf
of the plaintiff, claiming that the department had terminated her employ-
ment without just cause in violation of the applicable collective bar-
gaining agreement. C, an agent of the union, represented the plaintiff
in the proceedings related to her grievance. After a hearing officer
dismissed the grievance, the union requested review by an arbitrator.
At the conclusion of the arbitration proceedings, the arbitrator dismissed
the grievance, and the plaintiff filed a complaint with the board against
both the department and the union. The board dismissed the action, and
the plaintiff appealed to the trial court, which dismissed her appeal. Held:
1. This court declined to review the plaintiff’s unpreserved claim that the
union breached its duty of fair representation by failing to argue to the
arbitrator that the plaintiff was required to release the draft report
pursuant to (Supp. 2010) § 17a-28 (f) and (m): the plaintiff conceded
that she did not raise her argument concerning the applicability of the
statute to the board; moreover, the mere fact that the arbitrator, the
board, and the union were aware that (Supp. 2010) § 17a-28 existed
was insufficient to establish that the plaintiff distinctly or precisely
articulated to the board why the statute was applicable or how it obli-
gated the plaintiff to release the draft report.
2. The plaintiff failed to meet her burden of demonstrating that the board
had acted unreasonably, arbitrarily, illegally or in abuse of its discretion
in determining that the union had not acted arbitrarily or in bad faith
in its representation of the plaintiff by failing to argue that In re Lindsey
P. (49 Conn. Supp. 132) required the plaintiff to disclose the draft report:
it was unclear whether the directive issued by the trial court in In re
Lindsey P. applied outside of that case and to conclude that C had
acted arbitrarily or in bad faith by failing to present such a legal argument
would impose a duty on the union greater than that of fair representation;
moreover, even if the directive set forth in In re Lindsey P. did apply
outside of that case, it arguably was inapplicable to the plaintiff in the
present case, as it instructed the department, rather than individual
social workers, to include information that was exculpatory or favorable
to the parents in its application for an ex parte order of temporary
custody; furthermore, the trial court properly determined that substan-
tial evidence supported the factual finding of the board that C had
argued to the arbitrator that the draft report contained exculpatory
information, as he brought to the attention of the arbitrator the differ-
ences between the draft and final reports.
Argued December 1, 2021—officially released March 1, 2022
Procedural History
Appeal from the decision of the named defendant
dismissing the plaintiff’s complaint challenging the ter-
mination of her employment by the defendant Depart-
ment of Children and Families and alleging that the
defendant AFSCME, AFL-CIO, Council 4, Local 2663
breached its duty of fair representation, brought to the
Superior Court in the judicial district of New Britain
and tried to the court, Cordani, J.; judgment dismissing
the appeal, from which the plaintiff appealed to this
court. Affirmed.
Austin Berescik-Johns, for the appellant (plaintiff).
Frank N. Cassetta, general counsel, with whom was
J. Brian Meskill, assistant general counsel, for the
appellee (named defendant).
Richard T. Sponzo, assistant attorney general, for
the appellee (defendant Department of Children and
Families).
Anthony J. Bento, for the appellee (defendant
AFSCME, AFL-CIO, Council 4, Local 2663).
Opinion
PRESCOTT, J. In this administrative appeal, the plain-
tiff, Joan O’Rourke, appeals from the decision of the
Superior Court, affirming the dismissal of her hybrid
action1 against the defendant AFSCME, AFL-CIO, Coun-
cil 4, Local 2663 (union) and the defendant Department
of Children and Families (department) by the Depart-
ment of Labor, State Board of Labor Relations (board),
a codefendant in this case. Following the termination
of the plaintiff’s employment with the department, the
union filed a grievance on her behalf and represented
her in an arbitration proceeding. After the arbitrator
determined that the department had just cause to termi-
nate the plaintiff’s employment, the plaintiff filed a com-
plaint with the board and, ultimately, appealed the deci-
sion of the board to the Superior Court. On appeal,
the plaintiff claims that the Superior Court improperly
determined that substantial evidence supported the
findings of the board and that the board reasonably
concluded that the plaintiff had failed to establish that
the union breached its duty of fair representation. The
plaintiff specifically contends that the union breached
its duty of fair representation because it failed to make
two particular legal arguments to the arbitrator. We
affirm the decision of the Superior Court.
The following facts, which the board found, and pro-
cedural history are relevant to our resolution of the
present appeal. The union represents a bargaining unit
composed of department employees, including social
workers and social work supervisors. In 2004, the
department hired the plaintiff as a social work trainee
and, in 2006, promoted her to the position of full-time
social worker.
In 2009, the plaintiff became an investigative social
worker for the department.2 In this position, the plaintiff
investigated allegations of child abuse and neglect to
determine whether there was evidence to substantiate
the allegations. Generally, after being assigned a case,
the plaintiff would review the family’s prior history with
the department, conduct home visits, review relevant
records, and conduct interviews with individuals,
including the children, their parents, other family mem-
bers, witnesses, health care providers, counselors,
school staff, and law enforcement officials. The plaintiff
would document her investigation and her conclusions
concerning the safety of the children in a draft investiga-
tive report.3 Once she completed her investigation, the
plaintiff would submit electronically her draft investiga-
tive report to her supervisor for approval. If her supervi-
sor determined that the investigative report required
additional information, the supervisor either would add
the additional information or request that the plaintiff
make the necessary changes.
In March, 2011, Sandra Fitzpatrick, a social work
supervisor for the department, became the immediate
supervisor of the plaintiff. In the following two months,
the department received reports that alleged that a
mother of two children was neglecting them. Specifi-
cally, according to the allegations, the mother had
refused to take her son to outpatient therapy sessions
or to have her son evaluated by a psychiatrist, which
evaluation the son needed in order to attend school.
Further, the mother allegedly had prevented her daugh-
ter from attending school. Fitzpatrick assigned the
plaintiff to investigate the allegations, and, following
the completion of her investigation, the plaintiff submit-
ted to Fitzpatrick a thirty page, draft investigative
report.
In the draft report, the plaintiff concluded that the
allegation of educational neglect of the son was not
substantiated.4 According to the plaintiff, a school psy-
chologist who had examined the son determined that
‘‘ ‘[the son] [wa]s [psychotic] because he [was] hear[ing]
voices,’ ’’ but a clinician who had evaluated the son did
not observe that the son had experienced any such
auditory hallucinations. According to the plaintiff, after
the son was hospitalized in connection with concerns
about his mental health, administrators from his school
would not allow him to return to school until he under-
went a psychiatric evaluation. The plaintiff reported
that, although the son had not received a psychiatric
evaluation and, thus, had not returned to school, the
school nonetheless had excused his absences. She thus
determined that the mother and the school administra-
tors simply were ‘‘at odds’’ with respect to the needs
of the son. The plaintiff recommended that the case be
transferred to another unit within the department and
that further support be provided to the family.
Fitzpatrick reviewed the draft investigative report
and disagreed with various parts of it. For example,
Fitzpatrick contended that a clinician, not school
administrators, recommended that the son be evaluated
by a psychiatrist before returning to school. Fitzpatrick
made changes to the draft investigative report to
address her concerns, including removing a reference
to the fact that the clinician who had evaluated the son
did not observe that the child was ‘‘hear[ing] voices’’
and editing the report to reflect that the clinician, not
school administrators, had directed that the son be eval-
uated by a psychiatrist before he returned to school.
Fitzpatrick also added that the clinician had ‘‘wanted
to admit’’ the son to the hospital but that his ‘‘mother
[had] refused,’’ notwithstanding the fact that the son
was ‘‘hearing voices and . . . [expressed] at [the] hos-
pital that he wanted to kill himself . . . .’’ The final
version of the report incorporated the changes that
Fitzpatrick had made. Fitzpatrick subsequently
removed the plaintiff from investigating the case and
reassigned the case to another social worker.
In light of the information in the final investigative
report, the department filed an application for an ex
parte order of temporary custody (OTC) of both chil-
dren. When the plaintiff became aware that the depart-
ment had filed the application for an OTC, she felt
‘‘troubled . . . .’’ The plaintiff believed that the final
investigative report and the documents related to the
application, both of which she had reviewed, contained
false and misleading information that did not represent
accurately the circumstances surrounding the family.
The plaintiff submitted a complaint to Vannessa Doran-
tes, an office director for the department, in which the
plaintiff insisted that Fitzpatrick had removed ‘‘exculpa-
tory information’’ or, in her words, information ‘‘ ‘that
. . . tend[ed] to [demonstrate] the innocence of’ ’’ the
mother, which the plaintiff intentionally had included
in the draft investigative report. The plaintiff contended
that the documents that the department filed in conjunc-
tion with its application for an OTC likewise omitted
the ‘‘exculpatory’’ information that she had included in
the draft investigative report. The plaintiff maintained
that Fitzpatrick had mishandled the investigation and
had mischaracterized the facts of the case in the final
investigative report.
The plaintiff also sent a copy of her draft investigative
report to assistant attorney general Cynthia Mahon,
who represented the department in the proceedings on
the application for an OTC. Mahon compared the draft
and final investigative reports, ultimately disagreed
with the plaintiff that the final investigative report omit-
ted ‘‘ ‘salient exculpatory information’ ’’ that the plain-
tiff had included in the draft investigative report, and
concluded that the final investigative report correctly
represented the relevant facts of the case. The depart-
ment then proceeded with its filing of an application
for an ex parte OTC of the children.
On June 23, 2011, without notifying or obtaining per-
mission from the department, the plaintiff sent a copy
of the confidential,5 draft investigative report to the
attorney who represented the mother in the OTC pro-
ceedings. At a hearing concerning the application for
an OTC that same day, counsel for the mother brought
the draft investigative report to the attention of the
court, and the department agreed to withdraw the appli-
cation for an OTC of the daughter,6 so long as the mother
abided by certain conditions, including bringing her
daughter to therapy sessions. On the following day,
however, the department filed a second application for
an OTC of the daughter after the department received
allegations of sexual abuse of the daughter.
Tyrone Mellon, a principal human resources special-
ist for the department, subsequently initiated an investi-
gation of the plaintiff regarding her disclosure of the
confidential, draft investigative report. As part of his
investigation, Mellon searched the plaintiff’s work com-
puter and her e-mail communications. He uncovered
that, between March, 2006, and September, 2010, the
plaintiff had sent nine e-mails, which contained confi-
dential department information, to her then husband,
who was not an employee of the department. Addition-
ally, the department received a report that, in May, 2011,
the plaintiff had left a five year old child unattended in
a car while transporting children to foster homes on
behalf of the department. The plaintiff admitted to Mel-
lon that she had sent the draft investigative report to
counsel for the mother without authorization from the
department, e-mailed confidential information to a non-
employee on nine occasions, and left the five year old
child unattended in a car. At the conclusion of his inves-
tigation, Mellon determined that, in his opinion, the
plaintiff had violated various department policies, a
state statute, and a state regulation.7
On November 17, 2011, Dorantes notified the plaintiff
by letter that, effective November 29, 2011, her employ-
ment with the department would be terminated. Doran-
tes provided as grounds for the termination that the
plaintiff had released the confidential, draft investiga-
tive report without authorization from the commis-
sioner of the department or her designee, had sent via
e-mail confidential department information to a nonem-
ployee, and had left a child, who was in the care of the
department, unattended in a car.
The union filed a grievance on behalf of the plaintiff,
claiming that the department had terminated her
employment without just cause in violation of the appli-
cable collective bargaining agreement.8 Neal Cunning-
ham, an agent of the union, represented the plaintiff in
the proceedings related to her grievance. The state
office of labor relations convened a step two grievance
hearing, and a hearing officer dismissed the grievance,
concluding that the department had just cause to termi-
nate the plaintiff’s employment. The union requested
review by an arbitrator of the dismissal of the grievance,
and an arbitration proceeding took place over several
nonconsecutive days in May through August, 2012.
Cunningham, in his capacity as a union agent, repre-
sented the plaintiff during the arbitration proceeding.
Cunningham called witnesses, including the plaintiff, to
testify on her behalf and cross-examined the witnesses
called by the department. Following the conclusion of
the arbitration hearing, Cunningham submitted a brief
to the arbitrator on behalf of the plaintiff, in which
he argued that the department lacked just cause to
terminate her employment.
The arbitrator dismissed the grievance. The arbitrator
determined that the department had just cause to termi-
nate the plaintiff’s employment based solely on her
unauthorized disclosure of the confidential, draft
investigative report to counsel for the mother.9 The
arbitrator acknowledged that the plaintiff believed that
the only way she could remediate what she understood
to be ‘‘false’’ representations in the final investigative
report ‘‘was to [release] confidential [department]
records’’ to counsel for the mother without first
obtaining permission from the department. The arbitra-
tor, however, disagreed with the plaintiff that she had
the right to release the draft investigative report under
the circumstances. The arbitrator stated that the plain-
tiff could have addressed her concerns in a way that
would not have violated various confidentiality rules,
such as testifying about the case in court.10
Following the issuance of the arbitration award, the
plaintiff filed a complaint with the board against the
union and the department. The plaintiff alleged in her
complaint to the board a hybrid claim that the union
violated the Collective Bargaining for State Employees
Act (act), General Statutes § 5-270 et seq., by breaching
its duty of fair representation during the arbitration
proceeding and that the department violated the act by
terminating her employment without just cause. The
plaintiff argued, inter alia, that the union had breached
its duty of fair representation by failing to emphasize
certain arguments to the arbitrator—namely, that Fitz-
patrick had ‘‘lied’’ in the final investigative report and
had ‘‘targeted’’ the plaintiff—and by mischaracterizing
or omitting facts and arguments in the postarbitration
brief it filed on her behalf. The plaintiff contended that
the department had terminated her employment with-
out just cause and that, had the union fairly represented
her during the arbitration proceeding, she would have
been reinstated to her position of employment with
the department. The board held a series of hearings
between April, 2014, and February, 2018, and, following
the conclusion of the hearings, received posthearing
briefs from the parties.
In a memorandum of decision dated September 6,
2018, the board dismissed the hybrid action. The board
rejected each of the arguments that the plaintiff raised
and concluded that the plaintiff had failed to establish
that the union breached its duty of fair representation.
The board noted that, because the plaintiff admitted
that she had committed each instance of conduct for
which she was terminated, the union reasonably
focused its argument to the arbitrator on attacking
whether the department had just cause to terminate
her in light of her undisputed conduct or, instead,
should have imposed some other form of lesser disci-
pline. The board acknowledged that the union specifi-
cally emphasized to the arbitrator that the final investi-
gative report contained ‘‘ ‘inaccuracies’ ’’ and omitted
information that the plaintiff believed to be ‘‘ ‘exculpa-
tory,’ ’’ which, in the view of the plaintiff, triggered her
right or duty to release the draft investigative report.
The board found that the union had stressed to the
arbitrator that the plaintiff had raised her concerns to
the department and Mahon and, when the department
and Mahon took no action to address them, that the
plaintiff felt that she had no choice but to release the
draft investigative report. Although the board acknowl-
edged that the union did not ‘‘highlight every’’ difference
between the draft and final investigative reports to the
arbitrator, it determined that the union had underscored
to the arbitrator the changes that the plaintiff believed
to be significant.
The board determined that the plaintiff did not meet
her burden of establishing that the union breached its
duty of fair representation. Although the board noted
that the plaintiff was ‘‘dissatisf[ied] with the union’s
strategy and tactics,’’ the board concluded that Cun-
ningham ‘‘made legitimate tactical and strategic choices
as expected of a union advocate’’ and that the union
did not, as the plaintiff contended, act arbitrarily, dis-
criminatorily, or in bad faith in its representation of her.
The plaintiff appealed the decision of the board to
the Superior Court, and the court ultimately dismissed
her appeal. The court determined that substantial evi-
dence supported the findings of the board. The court
determined that the board reasonably concluded that
the plaintiff had failed to establish that the union
breached its duty of fair representation. This appeal
followed. Additional procedural history will be set forth
as necessary.
On appeal to this court, the plaintiff claims that the
Superior Court improperly determined that substantial
evidence supported the findings of the board and that
the board reasonably concluded that the plaintiff had
failed to establish that the union breached its duty of
fair representation. In connection with her sole claim on
appeal,11 the plaintiff advances two related arguments.
First, she argues that the union acted arbitrarily, dis-
criminatorily, or in bad faith by failing to argue to the
arbitrator that she was required by statute to release
the draft investigative report to counsel for the mother.
Second, she asserts that the union acted arbitrarily or
in bad faith by failing to argue to the arbitrator that,
under In re Lindsey P., 49 Conn. Supp. 132, 864 A.2d
888 (2004) (Lindsey P.), she was required to release
the draft investigative report to counsel for the mother
because Fitzpatrick removed from the final investiga-
tive report ‘‘exculpatory’’ information that the plaintiff
had included in the draft investigative report.
We begin our analysis by setting forth the well estab-
lished standard governing our review of this claim.
‘‘[J]udicial review of an administrative agency’s action
is governed by the Uniform Administrative Procedure
Act (UAPA), General Statutes § 4-166 et seq., and the
scope of that review is limited. . . . When reviewing
the trial court’s decision, we seek to determine whether
it comports with the [UAPA]. . . . [R]eview of an
administrative agency decision requires a court to deter-
mine whether there is substantial evidence in the admin-
istrative record to support the agency’s findings of basic
fact and whether the conclusions drawn from those
facts are reasonable. . . . Neither this court nor the
trial court may retry the case or substitute its own
judgment for that of the administrative agency on the
weight of the evidence or questions of fact. . . . Con-
clusions of law reached by the administrative agency
must stand if . . . they resulted from a correct applica-
tion of the law to the facts found and could reasonably
and logically follow from such facts. . . . The court’s
ultimate duty is only to decide whether, in light of the
evidence, the [agency] has acted unreasonably, arbi-
trarily, illegally, or in abuse of [its] discretion.’’ (Internal
quotation marks omitted.) AFSCME, AFL-CIO, Council
4, Local 2405 v. Norwalk, 156 Conn. App. 79, 85–86,
113 A.3d 430 (2015).
Before we turn to the law that governs the plaintiff’s
claim, we emphasize that, pursuant to statute, records,
defined as ‘‘information created or obtained in connec-
tion with the department’s child protection activities
or activities related to a child while in the care or cus-
tody of the department’’; General Statutes (Supp. 2010)
§ 17a-28 (a) (5); that are maintained by the department
are ‘‘confidential’’ and generally ‘‘shall not be disclosed’’
in the absence of ‘‘written consent’’ from the individual
about which the record is written, his parent, or his
authorized representative.12 General Statutes (Supp.
2010) § 17a-28 (a) (1) and (b). Accordingly, the draft
investigative reports prepared by the plaintiff were
‘‘confidential’’ records. General Statutes (Supp. 2010)
§ 17a-28 (b). Only the ‘‘commissioner or the commis-
sioner’s designee . . . [was authorized by statute to]
provide copies of [these confidential] records, without
. . . consent . . . to . . . (9) a party in a custody pro-
ceeding under section 17a-112 or 46b-129, in the Supe-
rior Court where such records concern[ed] a child who
[wa]s the subject of the proceeding or the parent of
such child . . . .’’ General Statutes (Supp. 2010) § 17a-
28 (f).
We next turn to the applicable law that governs a
claim of breach of the duty of fair representation by a
union. General Statutes § 5-271 (d) provides in relevant
part: ‘‘When an employee organization has been desig-
nated . . . as the exclusive representative of employ-
ees in an appropriate unit, it shall have a duty of fair
representation to the members of that unit.’’ ‘‘This duty
of fair representation derives from the union’s status
as the sole bargaining representative for its members.
As such, the union has the exclusive right and obligation
to act for its members and to represent their interests.’’
Labbe v. Pension Commission, 239 Conn. 168, 193,
682 A.2d 490 (1996). ‘‘The duty of fair representation
requires the union to serve the interests of all members
without hostility or discrimination toward any, to exer-
cise its discretion in complete good faith and honesty,
and to avoid arbitrary conduct.’’ (Internal quotation
marks omitted.) Piteau v. Board of Education, 300
Conn. 667, 674 n.7, 15 A.3d 1067 (2011). ‘‘Employee
organizations or their agents are prohibited from . . .
(4) breaching their duty of fair representation . . . .’’
General Statutes § 5-272 (b). Consequently, ‘‘[a] union
must represent its members in good faith.’’ (Internal
quotation marks omitted.) Piteau v. Board of Educa-
tion, supra, 674 n.7.
We note that neither our jurisprudence nor the appli-
cable statutory scheme imposes on agents of a union,
in the representation of bargaining unit members, a
duty beyond the duty of fair representation. See id., 674
n.7, 677 n.12; see also General Statutes § 5-271. It is
therefore axiomatic that union agents, in the represen-
tation of bargaining unit members, are not obligated
to, for example, exercise the same degree of skill as
lawyers in their representation of clients. See, e.g.,
Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn.
613, 649, 850 A.2d 145 (2004) (discussing legal malprac-
tice and requiring lawyers to ‘‘exercise that degree of
skill and learning commonly applied under all the cir-
cumstances in the community by the average prudent
reputable member of the [legal] profession’’ (internal
quotation marks omitted)). Put differently, and as the
United States Court of Appeals for the Sixth Circuit has
explained, ‘‘union agents are not lawyers,13 and as a
general proposition, cannot be held to the same stan-
dard as that of licensed professionals.’’ (Footnote
added.) Garrison v. Cassens Transport Co., 334 F.3d
528, 539 (6th Cir. 2003), cert. denied, 540 U.S. 1179, 124
S. Ct. 1413, 158 L. Ed. 2d 80 (2004).
‘‘The standard for a claim of breach of duty of fair
representation is well established.’’ Council 4,
AFSCME, AFL-CIO v. State Board of Labor Relations,
111 Conn. App. 666, 673, 961 A.2d 451 (2008), cert.
denied, 291 Conn. 901, 967 A.2d 112 (2009). ‘‘A union
breaches th[e] duty [of fair representation] if it acts
arbitrarily, discriminatorily or in bad faith.’’ (Internal
quotation marks omitted.) Piteau v. Board of Educa-
tion, supra, 300 Conn. 674 n.7. The plaintiff has ‘‘the
burden of demonstrating breach of [the] duty [of fair
representation] by the [u]nion.’’ (Internal quotation
marks omitted.) Id., 677 n.12.
‘‘[A] union’s actions are arbitrary only if, in light of
the factual and legal landscape at the time of the union’s
actions, the union’s behavior is so far outside a wide
range of reasonableness . . . as to be irrational.’’
(Internal quotation marks omitted.) Labbe v. Pension
Commission, supra, 239 Conn. 195. For example, ‘‘[a]
union may not arbitrarily ignore a meritorious grievance
or process it in a perfunctory fashion . . . .’’ (Internal
quotation marks omitted.) Tedesco v. Stamford, 222
Conn. 233, 248, 610 A.2d 574 (1992); see also Vaca v.
Sipes, 386 U.S. 171, 191, 87 S. Ct. 903, 17 L. Ed. 2d 842(1967). Our Supreme Court has explained that, although
a union does not ‘‘have unfettered discretion when
deciding whether to take [an employee’s meritorious]
grievance to arbitration’’; (emphasis added) Tedesco v.
Stamford, supra, 247; it properly may exercise, in good
faith, its ‘‘discretion . . . to [determine] which griev-
ances [are meritorious and thus should be] submit[ted]
to arbitration’’ on behalf of the employee. (Emphasis
added.) Id., 248.
‘‘[A] union’s actions are in bad faith if the union acts
fraudulently or deceitfully . . . or does not act to fur-
ther the best interests of its members.’’ (Citation omit-
ted.) Labbe v. Pension Commission, supra, 239 Conn.
195. For example, our Supreme Court has observed
that, when a union ‘‘deliberately misrepresent[ed] to
employees . . . [that the] rights [that were] guaranteed
[to them] under [a] collective bargaining agreement
[had changed, the union had] violat[ed] [its] duty of
fair representation . . . .’’ (Emphasis added; internal
quotation marks omitted.) Id., 197; see also Lewis v.
Tuscan Dairy Farms, Inc., 25 F.3d 1138, 1143 (2d Cir.
1994). By contrast, if there is no evidence that the
union acted fraudulently or intentionally to deceive an
employee, it cannot be said that the union acted in bad
faith. See Labbe v. Pension Commission, supra, 196–97.
For instance, ‘‘[a] breach [by a union agent] of the
[union] bylaws alone, unaccompanied by proof of mali-
cious intent, hostility, discrimination, dishonesty or
fraud is insufficient to prove bad faith.’’ Id., 198 n.17.
I
The plaintiff first contends that the court improperly
determined that the board reasonably concluded that
the union did not breach its duty of fair representation
because the union acted arbitrarily, discriminatorily, or
in bad faith by failing to argue to the arbitrator that she
was required to release the draft investigative report
by General Statutes (Supp. 2010) § 17a-28 (f) (9) and
(m).14 Although the plaintiff did not raise this argument
before the board, as she acknowledged during oral argu-
ment to this court, or before the Superior Court, the
plaintiff maintains that this court nonetheless may con-
sider the merits of the argument. Specifically, the plain-
tiff contends that, because the department cited Gen-
eral Statutes (Supp. 2010) § 17a-28 as a basis for the
termination of her employment, the arbitrator refer-
enced the statute in its award, and the union submitted
the statute to the board as an exhibit, her argument is
preserved. We are not persuaded.
‘‘Our appellate courts, as a general practice, will not
review claims made for the first time on appeal.’’ White
v. Mazda Motor of America, Inc., 313 Conn. 610, 619,
99 A.3d 1079 (2014). ‘‘This rule applies to appeals from
administrative proceedings . . . .’’ Ferraro v. Ridge-
field European Motors, Inc., 313 Conn. 735, 759, 99 A.3d
1114 (2014). ‘‘A party to an administrative proceeding
cannot be allowed to participate fully at hearings and
then, on appeal, raise claims that were not asserted
before the board.’’ Dragan v. Connecticut Medical
Examining Board, 223 Conn. 618, 632, 613 A.2d 739(1992). Thus, ‘‘[t]he failure to raise [a] claim . . . at
the time of the [administrative] hearing precludes [a
party] from raising the issue on appeal.’’ Berka v. Mid-
dletown, 205 Conn. App. 213, 218, 257 A.3d 384, cert.
denied, 337 Conn. 910, 253 A.3d 44 (2021), cert. denied,
U.S. , 142 S. Ct. 351, 211 L. Ed. 2d 186 (2021).
Our Supreme Court has explained that, within the
context of administrative appeals, appellate courts
‘‘shall not be bound to consider a claim unless it was
distinctly raised at the [administrative hearing] or arose
subsequent to the [hearing]. . . . Indeed, it is the appel-
lant’s responsibility to present such a claim clearly to
the [administrative board] so that the [board] may con-
sider it and, if it is meritorious, take appropriate action.’’
(Emphasis added; internal quotation marks omitted.)
Ferraro v. Ridgefield European Motors, Inc., supra, 313
Conn. 758–59. ‘‘The requirement that [a] claim be raised
distinctly means that it must be so stated as to bring
to the attention of the court the precise matter on which
its decision is being asked.’’ (Emphasis in original; inter-
nal quotation marks omitted.) White v. Mazda Motor
of America, Inc., supra, 313 Conn. 620; see also Com-
missioner of Mental Health & Addiction Services v.
Saeedi, 143 Conn. App. 839, 855–56, 71 A.3d 619 (2013)
(setting forth same principle in administrative appeal
and applying it to claim that was not distinctly raised
before administrative board).
In the present case, a review of the transcripts from
the board hearings and the posthearing briefs that the
plaintiff submitted to the board reveal, and the plaintiff
has conceded, that she did not raise before the board
that the union breached its duty of fair representation by
failing to argue to the arbitrator that she was required
to release the draft investigative report by General Stat-
utes (Supp. 2010) § 17a-28 (f) (9) and (m). Because the
record demonstrates that the plaintiff neither distinctly
nor precisely articulated her argument concerning the
applicability of the statute to the board; see White v.
Mazda Motor of America, Inc., supra, 313 Conn. 620;
see also Commissioner of Mental Health & Addiction
Services v. Saeedi, supra, 143 Conn. App. 855–56; her
reliance on the arbitrator’s, the board’s, and the union’s
general awareness of General Statutes (Supp. 2010)
§ 17a-28 is misplaced. The mere fact that the arbitrator,
the board, and the union were aware that the statute
existed is insufficient to establish that the plaintiff dis-
tinctly or precisely articulated to the board why the
statute was applicable in the present case or how the
statute obligated the plaintiff to release the draft invest-
igative report. Accordingly, we conclude that the issue
was not preserved adequately for appellate review, and
we decline to review it.15
II
The plaintiff next argues that the court improperly
determined that the board reasonably concluded that
the union did not breach its duty of fair representation
because the union acted arbitrarily or in bad faith by
failing to argue to the arbitrator that, in accordance
with In re Lindsey P., supra, 49 Conn. Supp. 132, the
plaintiff was required to release the draft investigative
report to the court and counsel for the mother because
the final investigative report improperly omitted infor-
mation that was exculpatory and favorable to the
mother.16 The plaintiff specifically asserts that the union
should have argued to the arbitrator that the Superior
Court in Lindsey P. mandated the department to
include in any application for an ex parte OTC all infor-
mation that is exculpatory or favorable to the respon-
dents. The plaintiff also argues that the decision in
Lindsey P. obligated the plaintiff to turn over the draft
investigative report because the court in that case had
admonished a social worker for omitting from an affida-
vit certain information that was favorable to the respon-
dent and directed the department to turn over informa-
tion that was exculpatory or favorable to the respondent.
In connection with this argument, the plaintiff also con-
tends that the union did not emphasize sufficiently to
the arbitrator that the draft investigative report con-
tained exculpatory information that Fitzpatrick omitted
from the final investigative report, such that, under
Lindsey P., she was obligated to turn over the draft
investigative report.
We begin our analysis with a brief overview of the
decision of the Superior Court in Lindsey P. In that
case, the department filed an ex parte OTC application,
based on the alleged physical abuse of a child by her
father. Id., 132–33. In conjunction with its application
for the ex parte order, the department submitted an
affidavit from a social worker. Id., 133. The affidavit
averred that the child had sustained a fractured clavicle
as a result of the physical abuse inflicted on her by her
father and, in light of her injuries and prior, unrelated
instances of abuse of the other children of the father,
the child was in immediate physical danger. Id. The
social worker also represented in the affidavit that the
child had been physically examined by a specific doctor
in connection with her injuries. Id. The department and
the father later presented to the court, Lopez, J., an
agreement under which, inter alia, the father would
enter a plea of nolo contendere to the underlying neglect
petition and the court would enter a dispositional order
of protective supervision for a limited time period.
Id., 132–33.
Before it accepted the agreement, the court requested
that the doctor who the social worker had identified in
the affidavit testify concerning the extent of the child’s
injuries. Id., 133. The doctor testified, contrary to the
representations that the social worker had made in the
affidavit, that he had not physically examined the child;
he merely had reviewed the medical reports that the
department had provided to him. Id., 134. The doctor
also testified, consistent with the report he had pre-
pared, that the injuries could have been inflicted on the
child ‘‘ ‘accidental[ly]’ ’’ and that he recommended that
the father be enrolled in parenting classes. Id., 133–34.
The affidavit accompanying the OTC application did
not include the opinion of the doctor that the injuries
could have been accidental or his recommendation that
the father be enrolled in parenting classes. Id., 134. The
social worker also failed to include in her affidavit the
conclusion of the child’s pediatrician that the injuries
to the child did not necessarily result from physical
force but, instead, could have resulted from the child
falling out of her bed. Id., 134–35, 145.
The court held a series of hearings to determine
whether it would hold the department in contempt for
failing to provide accurate information to the court
when it initially had filed its application for the ex
parte OTC of the child. Id., 134–35. The court ultimately
decided not to hold the department in contempt. Id.,
149. The court, however, stated that the social worker
had included in the sworn affidavit ‘‘misleading and
inaccurate statements,’’ which she knew to be ‘‘[un]true
and [in]accurate,’’ in order to ‘‘mislead the court into
believing that [the child] was in immediate physical
danger’’ in the custody of her father. Id., 146, 148–49.
The court ‘‘[found] the conduct of the department, or
its employees, to be . . . outrageous and insensitive’’;
id., 149; and, in turn, stated that it would employ its
‘‘inherent supervisory authority . . . [to] deter similar
conduct by the department in the future.’’ Id., 152. The
court thus stated: ‘‘The department is therefore
directed, when presenting an application for an ex parte
order of temporary custody, to include in its materials
all information which is exculpatory or favorable to the
parents or guardians.’’ (Emphasis added.) Id., 153. The
court additionally ordered the supervisors and adminis-
trators of the unit of the department in which the social
worker worked to appear before the court and address
the steps that the unit had taken to prevent similar
misrepresentations from being made to the court in the
future. Id.In assessing whether the union breached its duty of
fair representation by failing to argue to the arbitrator
that Lindsey P. required the plaintiff to disclose the
draft report, we emphasize that it is entirely unclear,
as a matter of law, whether the directive set forth in
Lindsey P. applies outside of that case.17 Indeed, a split
of authority among the Superior Courts exists as to
whether the directive issued in Lindsey P. binds the
department in all cases that it brings.18 At least one
other Superior Court has determined that the directive
set forth in Lindsey P. does not apply outside of that
case. See In re Heather F., Superior Court, judicial
district of Middlesex, Docket No. L-15-CP-08008515-A
(November 12, 2008). In In re Heather F., a father filed
a motion for contempt against the department, alleging
that, when the department filed an affidavit from a
social worker in conjunction with an application for an
ex parte OTC of his child, the department had failed
to comply with the directive set forth in Lindsey P. Id.Specifically, the father alleged that the social worker
excluded from the affidavit information that was excul-
patory or favorable to him. See id.The court, Bear, J., determined that the father had
failed to establish that the directive set forth by Judge
Lopez applied in cases outside of Lindsey P. See id.Judge Bear specifically noted that ‘‘the court in Lindsey
P. seem[ed] to have give[n] authoritative instructions
to [the department].’’ (Internal quotation marks omit-
ted.) Id. Because the court in Lindsey P., however, had
‘‘used the word ‘directed’ instead of the word ‘ordered’ ’’
in its instruction to the department to turn over the
exculpatory or favorable information; id.; Judge Bear
presumed that Judge Lopez did not order the depart-
ment to include, under penalty of contempt, all exculpa-
tory or favorable information to the parents or guard-
ians in its future applications for ex parte orders of
temporary custody. See id. The court in In re Heather
F. additionally stated that, if a social worker failed to
include in an application for an ex parte OTC ‘‘any,
some or all . . . relevant exculpatory or favorable
material’’ to the parents, that information ‘‘[could] and
mostly like [would] be raised at a contested hearing’’
concerning the application and would inform the ruling
of the court on the application. Id.In the present case, the plaintiff contends that the
union breached its duty of fair representation because
it failed to argue to the arbitrator that the directive in
Lindsey P. required her to disclose the draft investiga-
tive report in the manner that she did. As we have
emphasized, whether the directive applies outside of
Lindsey P. is subject to serious debate. The plaintiff
does not point us to any authority to support the propo-
sition that the failure of a union to argue that a directive
set forth in a Superior Court case, which neither our
appellate courts nor, uniformly, our Superior Courts
have adopted, required her to act in the present case
constitutes arbitrary action or action in bad faith. As
we have explained, union agents are not lawyers. Cun-
ningham, in his capacity as a union agent, was not
obligated to exercise the degree of skill that a lawyer
must exercise when representing a client, so long as
he did not act arbitrarily, discriminatorily, or in bad
faith. See Piteau v. Board of Education, supra, 300
Conn. 674 n.7. To conclude that Cunningham acted arbi-
trarily or in bad faith because he failed to present to
the arbitrator this legal argument would be to impose
on the union a duty greater than its duty of fair represen-
tation.
Additionally, although the plaintiff appears to argue
that the court’s directive in Lindsey P. obligated social
workers, such as herself, to turn over to the court and
the parents any information that is ‘‘ ‘exculpatory’ ’’ or
favorable to the parents, the plaintiff fails to identify
any such directive. We acknowledge that the court in
Lindsey P. admonished the social worker for excluding
from a ‘‘ ‘subscribed and sworn’ ’’ affidavit; In re Lind-
sey P., supra, 49 Conn. Supp. 139, 146; clearly relevant
and favorable information to the father. See id., 148–49.
The court, however, did not indicate that the social
worker, personally, had an obligation to turn over to
the court and the father any information that was excul-
patory and favorable to the father. See id., 153. Rather,
the court directed that the department must ensure
that its initial application for an ex parte OTC includes
the exculpatory and favorable information. Id. The
court additionally required the supervisors of the social
worker—not the social worker, personally—to appear
before the court to address the remedial efforts that the
unit had implemented to assure that misrepresentations
would not be made to the court in the future. Id.Because the court in Lindsey P. instructed the
department to include in its application information
that was exculpatory and favorable to the father; see
id.; the court’s directive arguably was inapplicable to
the plaintiff, personally, and did not require or authorize
her to send the draft investigative report to counsel
for the mother. The plaintiff does not point us to any
authority to support the proposition that the failure of
a union to formulate a legal argument that misconstrues
the case on which it relies constitutes arbitrary action
or action in bad faith. Accordingly, we cannot conclude
that the board acted unreasonably, arbitrarily, illegally,
or in abuse of its discretion by concluding that the
union did not breach its duty of fair representation
because it failed to argue to the arbitrator that the
directive in Lindsey P. obligated her to release the
confidential, draft investigative report. See AFSCME,
AFL-CIO, Council 4, Local 2405 v. Norwalk, supra, 156
Conn. App. 86.
To the extent that the plaintiff contends that the union
failed to emphasize sufficiently to the arbitrator that
the draft investigative report contained exculpatory
information, we conclude that substantial evidence
exists in the record to support the board’s contrary
finding that the union did argue that the draft investiga-
tive report contained ‘‘ ‘exculpatory’ ’’ information. The
arbitrator delineated in the arbitration award the differ-
ences between the draft and final investigative reports
that, according to the arbitrator, the plaintiff thought
to be ‘‘significant’’ and that, according to the arbitrator,
the plaintiff believed to demonstrate that Fitzpatrick
had removed ‘‘ ‘exculpatory’ ’’ information from the
final investigative report. As the board noted in its deci-
sion, the fact that the arbitrator recognized the differ-
ences between the draft and final investigative reports
that the plaintiff found to be significant reflects that
Cunningham brought these differences to the attention
of the arbitrator.
Further, in the plaintiff’s postarbitration brief, Cun-
ningham emphasized to the arbitrator that the plaintiff
sent the draft investigative report to counsel for the
mother because she believed that the final investigative
report presented the facts of the family’s case in a
‘‘false’’ light and that the information Fitzpatrick had
removed was ‘‘salient’’ and ‘‘exculpatory . . . .’’19 We
conclude, therefore, that the court properly determined
that substantial evidence supported the factual finding
of the board that Cunningham argued to the arbitrator
that the draft investigative report contained exculpatory
information. To the extent that this factual finding
informed the conclusion of the board that the union
did not act arbitrarily or in bad faith in its representation
of the plaintiff, we agree with the court that the plaintiff
has not met her burden of demonstrating that the board
acted unreasonably, arbitrarily, illegally, or in abuse of
its discretion by so concluding. See AFSCME, AFL-CIO,
Council 4, Local 2405 v. Norwalk, supra, 156 Conn.
App. 86.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘[An] employee may seek judicial enforcement of his contractual rights
[under a collective bargaining agreement when] . . . the union has sole
power under the [agreement] to invoke the higher stages of the grievance
procedure . . . and . . . the [employee] has been prevented from
exhausting his contractual remedies by the union’s wrongful refusal to
process the grievance. . . . [In such a case, an employee may file a hybrid
action, which] comprises two causes of action. The [action] against the
employer rests on . . . a breach of the collective-bargaining agreement.
The [action] against the union is one for breach of the union’s duty of fair
representation . . . . [T]he two claims are inextricably interdependent. To
prevail against either the [employer] or the [u]nion . . . [the employee]
must [show] not only . . . that [her] discharge was contrary to the [agree-
ment] but must also carry the burden of demonstrating breach of [the]
duty [of fair representation] by the [u]nion. . . . The [action] is thus not a
straightforward breach-of-contract [action] . . . but a hybrid [breach of
contract]/fair representation claim, amounting to a direct challenge to the
private settlement of disputes under [the collective bargaining agreement].’’
(Citation omitted; internal quotation marks omitted.) Piteau v. Board of
Education, 300 Conn. 667, 676–77 n.12, 15 A.3d 1067 (2011).
2
During all relevant times of her employment with the department, the
plaintiff was a member of the bargaining unit that the union represented.
3
The department and its employees refer to the investigative reports
as ‘‘protocols.’’ For the purpose of clarity, we refer to these reports as
‘‘investigative reports’’ throughout this opinion.
4
The plaintiff, however, concluded that evidence substantiated the allega-
tion of educational neglect of the daughter.
5
As we explain in greater detail later in this opinion, the draft investigative
report constituted a ‘‘confidential’’ report pursuant to statute. See General
Statutes (Supp. 2010) § 17a-28.
6
The department did not withdraw the application for an OTC of the son,
who was hospitalized at the time.
7
Specifically, Mellon determined that the plaintiff had violated the follow-
ing department policies: Policy 7-4-3.1, Employee Conduct, Neglect of Duty;
Policy 7-4-3.10, Employee Conduct, Confidentiality; Policy 31-8-5, Case
Related Issues, Confidentiality; and Policy 31-10-3, Office of Legal Affairs,
Confidentiality. Mellon also concluded that, in his opinion, the plaintiff had
violated General Statutes § 17a-28 and § 5-240-1a (c) (8), (11), and (13) of
the Regulations of Connecticut State Agencies.
8
Article sixteen of the collective bargaining agreement provides in relevant
part: ‘‘No permanent employee . . . shall be . . . dismissed except for just
cause.’’ (Emphasis added.)
Section 5-240-1a (c) of the Regulations of Connecticut State Agencies
defines ‘‘ ‘[j]ust cause’ ’’ to mean ‘‘any conduct for which an employee may
be suspended, demoted or dismissed and includes, but is not limited to . . .
[d]eliberate violation of any law, state regulation or agency rule . . .
[n]eglect of duty, or other employment related misconduct . . . [or] [e]ngag-
ing in any activity which is detrimental to the best interests of the agency
or of the state.’’
Article sixteen of the collective bargaining agreement also provides: ‘‘Just
cause may include but is not necessarily restricted to incompetency, ineffi-
ciency, neglect of duty, misconduct or insubordination.’’
9
Because the arbitrator determined that the decision of the plaintiff to
release the draft investigative report without authorization from the commis-
sioner or her designee provided the department sufficient just cause to
terminate her employment, the arbitrator did not reach the question of
whether her release of the confidential information in the e-mails or her
decision to leave the child in the car unattended also constituted just cause
to terminate her employment.
10
The arbitrator also rejected the plaintiff’s argument that Fitzpatrick
improperly had targeted the plaintiff and improperly influenced the decision
of the department to terminate her employment.
11
To the extent that the plaintiff claims in her principal appellate brief
that the department violated the collective bargaining agreement by termi-
nating her without just cause, we find it unnecessary to reach this claim.
In connection with her hybrid action, the plaintiff not only was obligated
to establish ‘‘that [her] discharge was contrary to the [collective bargaining
agreement] but . . . [she] also [was required to] . . . demonstrat[e] [a]
breach of [the] duty [of fair representation] by the [u]nion.’’ (Emphasis
added; internal quotation marks omitted.) Piteau v. Board of Education,
300 Conn. 667, 677 n.12, 15 A.3d 1067 (2011). The board determined that
the plaintiff failed to establish that the union had breached its duty of fair
representation and, thus, did not reach the merits of whether she was
terminated for just cause.
12
Although the plaintiff disclosed the confidential, draft investigative
report to counsel for the parent of the child about which the report was
created; see General Statutes (Supp. 2010) § 17a-28 (a) and (b); the plaintiff
did not argue to the board, to the Superior Court, or to this court that the
mother had provided her ‘‘ ‘[c]onsent,’ ’’ defined as ‘‘permission given in
writing by a person, his attorney or his authorized representative to disclose
specified information, within a limited time period, regarding the person to
specifically identified individuals’’; General Statutes (Supp. 2010) § 17a-28
(a) (4); to disclose the confidential record.
13
During oral argument to this court, the plaintiff conceded that the union
agent that represented her at the arbitration was not a lawyer.
14
General Statutes (Supp. 2010) § 17a-28 (f) provides in relevant part:
‘‘The commissioner or the commissioner’s designee shall, upon request,
promptly provide copies of records, without the consent of a person, to
. . . (9) a party in a custody proceeding under section 17a-112 or 46b-129,
in the Superior Court where such records concern a child who is the subject
of the proceeding or the parent of such child . . . .’’ (Emphasis added.)
General Statutes (Supp. 2010) § 17a-28 (m) provides in relevant part:
‘‘[A]ny person, regardless of age, his authorized representative or attorney
shall have the right of access to any records made, maintained or kept on
file by the department, whether or not such records are required by any
law or by any rule or regulation, when those records pertain to or contain
information or materials concerning the person seeking access thereto,
including but not limited to records concerning investigations [or] reports
. . . of the person seeking access thereto . . . .’’
15
Alternatively, the plaintiff argues that she should prevail on this claim
pursuant to the plain error doctrine. ‘‘[The plain error] doctrine . . . is an
extraordinary remedy used by appellate courts to rectify errors committed
at trial that, although unpreserved, are of such monumental proportion that
they threaten to erode our system of justice and work a serious and manifest
injustice on the aggrieved party. . . . It is a rule of reversibility . . . that
this court invokes in order to rectify a trial court ruling that, although either
not properly preserved or never raised at all in the trial court, nonetheless
requires reversal of the trial court’s judgment, for reasons of policy.’’ (Inter-
nal quotation marks omitted.) Reville v. Reville, 312 Conn. 428, 467–68, 93
A.3d 1076 (2014). ‘‘An appellate court addressing a claim of plain error first
must determine if the error is indeed plain in the sense that it is patent [or]
readily discernable on the face of a factually adequate record, [and] also
. . . obvious in the sense of not debatable.’’ (Internal quotation marks omit-
ted.) Board of Education v. State Board of Labor Relations, 166 Conn. App.
287, 297, 142 A.3d 304 (2016). After a thorough review of the record, we
are unpersuaded that the board committed the type of obvious and readily
discernible error that would meet this extraordinarily high standard and
warrant reversal.
16
The plaintiff properly preserved this claim for review by raising it to
the board. See Ferraro v. Ridgefield European Motors, Inc., supra, 313
Conn. 758–59.
17
It is also entirely unclear whether the court had the authority to order
the department to engage in a specific procedure when it files OTC applica-
tions in the future. The court, sua sponte and apparently without providing
the parties with notice or an opportunity to be heard on the directive, stated
that, ‘‘under its inherent supervisory authority, [it could] deter similar
conduct by the department in the future’’ by directing the department to
follow a specific procedure when it files future OTC applications. (Emphasis
added.) In re Lindsey P., supra, 49 Conn. Supp. 152–53.
In In re Darlene C., 247 Conn. 1, 2, 717 A.2d 1242 (1998), our Supreme
Court reviewed a trial court’s sua sponte decision to permanently enjoin
the commissioner of the department from filing petitions for the termination
of parental rights that had been prepared, signed, and filed by individuals
who were not admitted to the practice of law. Our Supreme Court ultimately
determined that the relevant statutory scheme explicitly permitted individu-
als who were not admitted to the practice of law to draft and sign such
petitions. Id., 9–14. Our Supreme Court further noted, however, that it ‘‘disap-
prov[ed] of the procedure employed by the trial court in rendering an injunc-
tion, sua sponte, without first affording the parties notice and an opportunity
to be heard.’’ Id., 9 n.22. Our Supreme Court specifically stated that it ‘‘[did]
not doubt that the action of the trial court, in issuing an injunction against
the commissioner, was well intentioned. As [the Supreme Court had] noted
previously . . . however, [b]asic principles of courtesy and fairness govern
the conduct of courts as well as that of litigants and their counsel. The trial
court’s conduct did not comport with these principles.’’ (Internal quotation
marks omitted.) Id.Likewise, the court in Lindsey P., in its ruling concerning whether it
would hold the department in contempt, sua sponte issued a directive that
obligated the department to comply with certain procedures when it files
future OTC applications. In re Lindsey P., supra, 49 Conn. Supp. 152–53.
Although the court instructed the department to ‘‘show cause’’ concerning
why it should not be held in contempt, a thorough reading of its decision
does not indicate that it provided the parties with notice or the opportunity
to be heard concerning the directive before it set forth the directive. See
id., 134. Further, neither the court in Lindsey P. nor the plaintiff in the
present case has identified a statutory, constitutional, or common-law basis
that granted the court the authority to impose on an agency an order that
bound the department in its future applications. Although we need not reach
whether the court in Lindsey P. had the authority to issue such a directive,
we emphasize that Cunningham was not obligated to raise to the arbitrator
this particular legal question in order to satisfy his duty of fair representation,
so long as he did not act arbitrarily, discriminatorily, or in bad faith in his
representation.
18
The plaintiff requests that this court mandate the department to turn
over all information that is potentially exculpatory to the opposing party
whenever it files an OTC application. We decline to do so. At issue in this
case is not whether the department must provide to an opposing party in
an OTC proceeding all information that is potentially exculpatory. As we
have explained, at issue in this case is whether the court improperly deter-
mined that substantial evidence supported the findings of the board and
whether the board reasonably concluded that the union did not breach its
duty of fair representation.
19
The plaintiff emphasizes in her principal appellate brief that Cunningham
acted improperly by using the word ‘‘ ‘believed,’ ’’ when he stated in the
postarbitration brief that the plaintiff ‘‘ ‘believed’ ’’ that the omitted informa-
tion was exculpatory. She specifically argues that, by stating that she
‘‘ ‘believed’ ’’ that the information was exculpatory instead of stating that
the information ‘‘was’’ exculpatory, Cunningham cast doubt on whether the
omitted information was, in fact, exculpatory.
We are not persuaded. The fact that a union agent used one word over
another in the postarbitration brief that he filed on behalf of the plaintiff
does not constitute action that is ‘‘so far outside a wide range of reasonable-
ness . . . as to be irrational,’’ that is fraudulent or deceitful, or that hinders
‘‘the best interests of its members.’’ (Internal quotation marks omitted.)
Labbe v. Pension Commission, supra, 239 Conn. 195. Further, the adminis-
trative record reflects that the arbitrator considered, and ultimately rejected,
the position of the plaintiff that, because the information was exculpatory,
she was required to release the draft investigative report. Accordingly, we
conclude that the contentions that the plaintiff has raised concerning the
specific words used by the union are not sufficient to undermine the board’s
determination that the union did not breach its duty of fair representation.