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Labor Analysis: Pandemic Is Over, but the Litigation Persists

The Connecticut State Labor Board recently issued a ruling favoring the police union in a case involving the Town of Windham/Willimantic Service District. Windham’s vaccine mandate stood as one of the strictest in the state and nation, even as other towns abandoned their mandates.

What’s noteworthy is that Windham’s policy was even more stringent than the regime set forth in Governor Lamont’s Executive Order (which allowed a testing option until the vaccine mandate expired and faces a legal challenge in federal court from several state educators). Although Windham did not offer any testing option, it did allow for a mechanism to request a religious exemption. In this case, however, the officer’s request for exemption was denied.

Now, the town is trying to uphold the termination of a police officer for failing to be vaccinated. This may prove costly for taxpayers in terms of back pay and reinstatement.

All first responders, including this police officer, started working before vaccines were available. These officers have rigorous physical standards and must pass physicals, making them unlikely to be in an at-risk population for serious complications. Most of them contracted COVID through work or community spread, enhancing their immunity.

The town argues that the removal from employment was a non-disciplinary separation. This would prevent the union from arbitrating the matter on its merits and avoid the “just cause” standard for discipline.1 Windham’s effort to avoid arbitration was rejected by the labor board, however, which cited the U.S Supreme Court’s ruling in Steelworkers v. Warrior & Gulf Co., and other rulings by the Connecticut Supreme Court.

Now that the case can proceed on its merits, Windham’s policy will have to be evaluated against the just cause standard. But the union finds itself in a precarious position while advocating for this police officer, because it earlier failed either to object to the policy or demand to bargain the impact of the policy.

Nor was this an isolated incident. Across the country, union leaders betrayed their dues-paying members and sacrificed due process and bargaining rights. In the Windham case, the police union did distinguish itself from other unions by attempting to negotiate a settlement when discipline was administered and filing the case to arbitration at the state labor board. Although the union failed to object to the policy itself, it is working to get the police officer’s job back.

This is important, because union officials have a fiduciary responsibility to represent their members, even when they disagree with them. It is their job to protect the process and rights of the members. When the union fails to do so, members have legal recourse and the right to resign from union membership.

Management’s position in a case like this one is even more precarious. Although they are not technically bound by the ruling, most arbitrators defer to a 1966 arbitration case that outlined the elements of the “just cause” standard for discipline including termination. Every manager should understand these elements to ensure all disciplinary actions comply. Meeting these elements allows for good governance, reduces unnecessary and costly litigation, and minimizes administrative burdens.

Elements of Just Cause:

· Are the rules, policies, or regulations reasonably related to the safe and efficient operation of the employer? (Review these regularly)

· Did the employee know the rules and the possible consequences of breaking them?

· Was a thorough investigation conducted before issuing discipline?

· Was that investigation fair and impartial?

· Did the investigation provide proof or evidence that the employee broke the rule or rules?

· Have the rules and penalties been applied consistently to similarly situated employees without discrimination? (Maintain a record of similar situations)

· Was the discipline reasonably related to the seriousness of the offense?

The Town of Windham is unlikely to meet several elements of this standard. The mandates in Connecticut were based on good-faith reliance on available data suggesting that vaccinated individuals would be a dead end for further transmission. Preventing the spread of a potentially deadly virus during a pandemic could be a compelling government interest. However, the town’s failure to adjust the policy based on new scientific data, including the fact that the vaccinated can contract and spread the virus, is likely to expose it to liability.

Further issues for the town arise from the fact that state police and other jurisdictions responding to Windham are not subject to the mandate, undermining the justification for imposing it on town police.2 The town will have to defend the reasonableness of a rule promulgated under a faulty premise and then explain why it wasn’t adjusted as new facts emerged.

Managers and policymakers must be trained not to attach ego or ideology to personnel policies. This makes it easier for them to develop the flexibility and the willingness to adjust positions with the potential to cost taxpayers in terms of litigation, time and back pay — and to maintain their credibility. Emotion should never cloud judgment.

Managers should view discipline as a search for the truth, rather than as a contest of winning or losing. The public should know that when the union prevails in a discipline case at the labor board or in court, it is often because management failed to follow its own rules or violated the just cause standard. Either can be prevented through education and training.

Too often, policymakers and managers escape accountability for their actions or inaction, which casts doubt on their competence and commitment to transparency and accountability.

When was the last time you heard that a manager or lawyer had been terminated or suspended for giving poor advice, in the wake of a union prevailing in a case that proved costly for taxpayers? When there’s no penalty for poor legal advice, mismanagement and incompetence, perhaps it’s no surprise that there’s so much of it.

We will provide an update when the Windham case reaches its final disposition.


  1. This claim is also being litigated in federal court, where about 70 firefighters from Seattle were fired, forced out, or — as the city asserts — separated for non-disciplinary reasons resulting from their non-compliance with the COVID mandate. Although the vaccine mandate is no longer in force in Seattle, the firefighters have not been brought back to work.
  2. The same kind of logical inconsistency also featured in the Seattle case, where fired firefighters were hired by adjoining departments and still responded to emergency calls within the city.



Frank Ricci

Frank was the lead plaintiff in the landmark Supreme Court case Ricci v. DeStefano and has testified before Congress. He has lectured at the Reagan Library and has been a lead consultant on several studies for the Yale School of Medicine. Frank has appeared on Hannity, Lou Dobbs, Cavuto Live, Hardball, NBC Nightly News, Fox & Friends, and other notable news shows. He is a contributing author to several books and a contributor to the Daily Caller. Frank retired as a Battalion Chief & Union President for New Haven Fire Fighters and has been awarded numerous commendations including the medal of valor. He serves on the advisory board for Fire Engineering Magazine. Frank lives with his wife in Wallingford, CT.

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