Judge Wax-Krell: "The plaintiffs were unfortunately let down by everyone who they trusted to get them the raises they were promised." A state judge threw out a lawsuit filed by two retired city workers on the grounds that the Board of Alders dropped the ball when trying to provide those unionized employees with a pay bump — outside of the collective bargaining process.State Superior Court Judge Matthew Wax-Krell handed down that 11-page decision Tuesday in the state court case Michael Abeshouse et al v. City of New Haven c/o City Clerk.Click here to read the decision in full. The now-dismissed case marked the latest legal entanglement between the legislative and executive branches of city government, raising questions about who has the power to provide money to which city workers, and why.As the judge made clear in this instance, unionized city worker pay can be determined only through the collective bargaining process — and alders cannot grant raises to such employees without having them ratified in a union contract.The case dates back to 2022, when Abeshouse and Michael Mercier, two long-serving and now-retired Office of Legislative Services senior employees, sued the city for not paying them and three of their colleagues a combined total of $60,000 they believed was their due. They accused the city of breach of contract and statutory theft.As Abehouse, Mercier, and their lawyer, John Williams, argued during an August bench trial in a fifth-floor courtroom at 235 Church St. — which saw Mayor Justin Elicker, City Clerk Michael Smart, and city Director of Labor Relations Wendella Ault Battey called to the witness stand — they were entitled to those pay-bump funds thanks to the so-called Brackeen Amendment. That was a $60,000 budget transfer unanimously approved by the Board of Alders and signed by then-Mayor Toni Harp in 2017. The amendment was designed to recognize the hard work across decades by five senior Board of Alders employees, and was authored by then-Upper Westville Alder Darryl Brackeen, Jr. As Wax-Krell summarized, an explanation accompanying that amendment ​“further provided that it would take effect once a contract between the plaintiffs’ union and the City was presented.”The one key problem, however, was that these raises were never included in any collective bargaining agreement (CBA) between the city and the municipal union that represented these Board of Alders staffers, Local 3144. ​“The Board of Alders circumvented the CBA process and simply allocated these funds on its own,” Wax-Krell wrote.In 2020, after Abehouse and his colleagues found out that they would not be receiving these funds promised in the 2017 Brackeen Amendment after all, their union, Local 3144, filed a grievance with the city. The city’s public safety human resources manager, Scott Nable, denied that grievance on the grounds that it had been filed too late and because wages and reclassification for unionized employees had to be negotiated through collective bargaining.“As Nable noted, the Board of Alders may suggest salary corrections and can accept or reject each CBA submitted for the approval, but it did not have the authority to legislate salary increases for individual employees,” the judge wrote. These employees and their union could have tried to get these same pay bumps included in the union’s next contract, which was ratified in June 2018, but they never did.Per the terms of the Local 3144 contract, the next step for these employees to try to secure the funds promised in the Brackeen Amendment would have been by having their union file a grievance/appeal to the State Board of Mediation and Arbitration (SBMA).As Abeshouse testified during the early August trial, he thought the union did just that. He said that then-Local 3144 President Harold Brooks told him the union had filed for arbitration. Mayor Elicker was called to the witness stand to explain a January 2022 email exchange he had with Brooks in which Brooks said that the matter was already in arbitration, and Elicker agreed. (Elicker said during the trial that he had responded as such because he assumed that Brooks ​“would not be lying” about the matter already being in arbitration. He later learned that Brooks was wrong, and that the matter was not in arbitration. The mayor also said he does not closely monitor the details of every single labor dispute, and, regardless, did urge Brooks at the time to let the matter take its course through the proper process.)As Wax-Krell wrote in his decision, ​“No record exists of any request for arbitration ever having been filed, and there is no record of any arbitration being filed or any arbitration decision.”So, according to the evidence presented, the union never did appeal the denial of Abeshouse’s grievance — thereby allowing the city’s decision to stand, and ensuring Abeshouse and his colleagues wouldn’t be paid the budgeted funds promised by the Brackeen Amendment.All of this led the judge to agree with the Elicker administration’s argument that Abeshouse’s lawsuit should be dismissed because the plaintiffs ​“failed to exhaust their administrative remedies” — that is, they never actually took this matter to arbitration, per the terms of their union contract. (Wax-Krell recognized that his decision granting the motion to dismiss overturns a previous judge’s denial of the city’s motion to dismiss in this same case. That’s because the previous judge did not have the full Local 3144 contracts submitted as evidence before them, Wax-Krell wrote, while he did.)“The court is sympathetic to the plaintiffs. They apparently worked hard, and the Board of Alders appreciated their hard work and wanted to reward them,” Wax-Krell concluded in his decision to dismiss the lawsuit.“The Board, however, did not take the appropriate steps to do so properly. Seemingly no one involved here did what was required to ensure that the plaintiffs (and three others) received the raises that were intended. The Board of Alders intended to pay these raises to the plaintiffs but failed to take the appropriate steps to do so pursuant to the CBA. The Union told the plaintiffs that it had filed an appeal to the SBMA, but it had failed to do so.“The plaintiffs were unfortunately let down by everyone who they trusted to get them the raises they were promised under the Brackeen Amendment. The Board of Alders should have known that such raises could not be given outside of the CBA process. The Union should have filed the appeal to the SBMA. But none of those things occurred.”And so, Wax-Krell wrote, the city’s motion to dismiss is granted ​“due to the plaintiffs’ failure to exhaust administrative remedies.”Michael Abeshouse; "This case involved a very small sum of money but no settlement offer was ever made to us by the city." In an email comment provided to the Independent Wednesday, Abeshouse and Mercier expressed disappointment in the judge’s decision — even as they accepted the result and said they ​“bear no ill will as it was a great honor for us both to serve the Board of Alders and the people of New Haven for so many years.’They recognized that the judge ​“expressed sympathy for our situation,” and understood that the alders intended to provide them with a raise, even if they failed to find a way to do so. , but failed to find a way to, provide them with well-earned raises. Abeshouse and Mercier also lamented that the city ​“fought bitterly in court over some 27 months to stop implementation of legislation they suddenly claimed to have passed unlawfully. Let’s be clear. This case involved a very small sum of money but no settlement offer was ever made to us by the city. Corporation Counsel and then an outside legal firm was employed at presumably considerable expense to try to block this measure at every turn over the past 27 months.”Though they didn’t win, Abeshouse and Mercier wrote, they are grateful their case made it as far as it did — past a motion to strike, a motion to dismiss, and a motion for summary judgment, and all the way to trial.In a separate comment provided to the Independent Wednesday, city Corporation Counsel Patricia King praised the ​“4,400 hard-working and committed employees who work every day to make our city a better place to live, work, visit, learn and raise a family.”She continued: ​“All salary increases for union employees occur through the collective bargaining process, and the City of New Haven engages in good faith with our local unions to compensate municipal employees appropriately with good wages and benefits in return for their service.“The City’s defense was based on its position that any process to achieve a salary increase other than through the collective bargaining process would be inappropriate and a violation of our collective bargaining agreements. We are pleased the court has recognized the validity of our defense and dismissed this case. The court decision affirms the importance of the plaintiffs following the appropriate collective bargaining processes regarding employee compensation.”