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`DOCKET NO. HHB-CV25-6095129-S : SUPERIOR COURT
`:
`ROBERT REGAN : JUDICIAL DISTRICT OF
`: NEW BRITAIN
`v. :
`: AT NEW BRITAIN
`STATE BOARD OF LABOR RELATIONS :
`
`
`DOCKET NO. HHB-CV25-6096065-S : SUPERIOR COURT
`:
`TOWN OF CHESHIRE : JUDICIAL DISTRICT OF
`: NEW BRITAIN
`v. :
`: AT NEW BRITAIN
`CONNECTICUT STATE BOARD :
`OF LABOR RELATIONS, CHESHIRE :
`POLICE UNION, ROBERT REGAN : OCTOBER 24, 2025
`
`
`BRIEF OF DEFENDANT CONNECTICUT STATE
`BOARD OF LABOR RELATIONS
`
`I. INTRODUCTION
`
` The Town of Cheshire and Robert Regan (collectively, the Plaintiffs) filed these
`consolidated administrative appeals under § 4-183 of the Uniform Administrative Procedures Act
`(UAPA) from a decision of the Connecticut State Board of Labor Relations (the Labor Board),
`finding that the Town violated the Municipal Employee Relations Act (MERA or the Act), Conn.
`Gen. Stat. §§ 7-467 et seq., by failing to bargain with the Chesire Police Union (the Union) over
`the impacts on the Town pension plan of rehiring Regan, while he was collecting pension benefits,
`and by engaging in direct dealing with members of the Union.1
`II. PROCEDURAL HISTORY
`
`1 Copies of administrative decisions and unreported cases cited herein have been attached in an appendix at the rear of
`this brief.
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`2
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`On April 6, 2023, the Union filed a complaint with the Labor Board, amended on August
`21, 2023, alleging that the Town violated MERA by rehiring Regan. Specifically, the Union
`alleged that rehiring a full-time police officer, Reagan, who had retired and was collecting
`retirement benefits, called the legitimacy of Regan’s retirement2 into question and jeopardized the
`legal status of the pension plan. The Union also alleged that the police chief attempted to privately
`discuss those issues with individual bargaining unit members. The Union asserted that the Town’s
`actions constituted bad faith bargaining, contract repudiation, and direct dealing within the
`meaning of MERA. (ROR A, Ex. 1A).
`The Town and the Union appeared for a formal hearing before the Labor Board on
`September 6, 2023, which hearing was continued to October 31, 2023 at Regan’s request. (ROR A,
`Ex. 13).
`On September 11, 2023, Regan filed a motion to intervene as a party, which was granted
`during the hearing on October 31, 2023. The hearing was thereafter continued to January 31, 2024.
`No testimony was taken. (ROR A, Ex. 15).
`A. REGAN’S MOTION TO DISMISS THE COMPLAINT
`On January 24, 2024, Regan filed a Motion to Dismiss Complaint for lack of subject matter
`jurisdiction, stating, in relevant part, the claim that his rehire could jeopardize the legal status of
`the Union's pension is not ripe:
`No adjudicative authority with proper jurisdiction ... has ever rendered a decision
`on the speculative claim of “sham retirement” and the status of the pension plan
`remains ... in good standing. Because the sum and substance of the complaint by
`the Union relied upon a speculative harm that has never occurred, the complaint ...
`is not ripe and thus not justiciable.
`
`***
`
`2 The Union specifically referenced the so-called “sham retirement rule” under IRS regulations. The term “sham
`retirement” refers to rehiring an employee who has retired under a qualifying pension plan, while they continue to
`receive pension benefits, in violation of the terms of the Internal Revenue Code sections governing such plans.
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`3
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` (ROR A, Ex. 22, p. 2).
`On January 26, 2024, the Union filed an Objection to Motion to Dismiss, reiterating that
`rehiring Regan while he continues to receive his pension violates the terms of the IRS Code
`governing such plans, and stating, in relevant part:
`The Town unilaterally implemented an illegal subject of bargaining ... If, arguendo,
`the rehiring was not an illegal subject of bargaining, then the Town has the duty to
`bargain over impacts of the hiring.
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`***
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`[T]he rehiring of Mr. Regan without bargaining ... [has] already occurred, and so
`the case is ripe for consideration by this Board.
`
`(ROR A, Ex. 24, pp. 3-4, 7).
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`In an email dated January 30, 2024, the Labor Board’s general counsel informed the parties
`that the motion to dismiss had been denied and that a written order would follow. At a hearing the
`next day, prior to the first witness in this case being called, the City requested time to decide
`whether to file its own brief in favor of the motion to dismiss. The Board chair stated that the
`motion was denied. However, the Board stated that the parties could raise the same arguments in
`their post-hearing briefs. (ROR A, Tr. 01/31/24, pp. 15-18, 47; Ex. 27).
`On February 4, 2024, the Labor Board issued a written order, stating, in relevant part,
`“viewing the facts alleged in the complaint in the appropriate light, we agree that the controversy
`before us is ripe for adjudication for the reason set forth in the Union’s objection. Without deciding
`the merits of the case, we find that the Union has alleged sufficient facts to survive the motion to
`dismiss.” (ROR A, Ex. 34, p. 4).
`B. THE UNION’S MOTION FOR ORDER
`On January 26, 2024, the Union filed a Motion for Order, seeking to confirm a putative
`settlement agreement between the parties to the complaint. A signed copy of that agreement was
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`4
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`attached to the motion. (ROR A, Ex. 25). The agreement was the product of independent
`negotiations between the parties. The Labor Board played no part.
`On March 5 and March 8, 2025, respectively, Regan and the Town filed objections to the
`Motion for Order, arguing, among other things, that the settlement was not approved by the Town
`Council and Union membership. In addition, citing the Code of Judicial Conduct, the Town
`asserted that the Board members were disqualified from hearing the merits of the complaint
`because they had knowledge of the proposed settlement terms. On March 19, 2024, the Union
`replied to the objections to its Motion for Order. (ROR A, Exs. 35, 36, 37).
`In an email dated April 2, 2024, the Labor Board’s General Counsel informed the parties
`that the Motion for Order was denied and that a written order would follow. Another hearing was
`held on April 4, 2024. On April 8, 2024, the Labor Board issued an order denying the Union’s
`Motion for Order and declining to recuse itself, stating that the Town did not satisfy the standard
`for disqualifying an administrative board. (ROR A, Exs. 38, 39).
`The Labor Board held further hearings on April 15, May 22, June 12, and June 18, 2024.
`(ROR A). All parties filed post-hearing briefs on September 16, 2024, and the Town and Regan
`again challenged the Labor Board’s jurisdiction. The Union and the Town submitted reply briefs
`on October 7, 2024. (ROR A, B, C, D, E, F).
`C. LABOR BOARD DECISION NO. 5347
`On January 24, 2025, the Labor Board issued Decision No. 5347. The Labor Board denied
`the jurisdictional arguments reasserted by the Plaintiffs, stating, in relevant part, “whether the
`Union had a statutory right to bargain over the decision to rehire Regan as a police officer, or the
`impacts of that decision, ... [are] ... questions ... squarely within our purview.3 The Labor Board
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`3 The Labor Board disagreed with the assertion that it must conclusively determine whether Regan’s retirement is a
`sham within the meaning of the Internal Revenue Code. As such, the Board did not decide that issue. (ROR H, p. 9).
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`5
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`also stated that “the record before us contains not one, but three legal/expert opinions ... [W]e think
`that those opinions support a finding that the potential impacts on the pension plan exceed the sort
`of “abstract disagreement” over administrative policy which we declined to hear...” (ROR H, pp. 9-
`10).
`Regarding the merits, the Labor Board concluded, for the same reasons, that the risk of plan
`disqualification is a substantial secondary impact which required bargaining before the Town
`reappointed Regan as a police officer. The Board dismissed the Plaintiffs’ waiver and laches
`defenses, found that the Town’s police chief had engaged in direct dealing, and dismissed Union’s
`repudiation claim. (Id., pp. 11-14). As a remedy, the Labor Board ordered, in relevant part, that the
`Town “[b]argain immediately upon demand with the Union concerning the impacts of the decision
`to rehire Robert Regan as a Cheshire police officer on the relevant retirement plan(s).” (Id., p. 15).
`On February 7, 2025, the Town and Regan filed motions for reconsideration, which
`motions were denied by the Labor Board on February 24, 2025. (ROR, I, J, L). On April 4 and
`April 7, 2025, respectively, Regan and the Town filed the instant appeals which were consolidated
`by order of the Superior Court on May 21, 2025.
`III. FINDINGS OF FACT
`The Town is an employer within the meaning of the Act. The Union is an employee
`organization within the meaning of the Act and at all relevant times has been the exclusive
`representative of all full-time investigatory and uniformed members of the Cheshire Police
`Department (CPD), with authority to exercise police powers, up to and including the rank of
`lieutenant. (ROR A, Exs. 6, 12).
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`6
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`The Town and the Union were parties to a collective bargaining agreement ("CBA"),
`effective July 1, 2020 through July 30, 2024,which stated, in relevant part:
`ARTICLE XVI
`PENSION AND RETIREMENT PLAN
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`16.1 Pension benefits shall be awarded to all eligible members of the
`Department in accordance with the provisions of the Town … Police Retirement
`Ordinance, Nos. 2-133 (1), which ordinance is incorporated in and made part of this
`Agreement.
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`16.2 …
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`2) Effective July 1, 2005, a member who has completed twenty-five
`(25) or more years of credited service shall be allowed a retirement benefit
`calculated to allow two and five eighths percent (2 5/8%) of his/her annual average
`compensation for each year of credited service.
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`***
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`16.14 Employees hired after January 1, 2014, shall be enrolled in the Town's
`401(a) plan [Defined Contribution Plan]…
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`***
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`(ROR, Ex. 6). The Retirement Plan for Employees of the Town (Defined Benefit Plan) states, in
`relevant part:
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`Effective July 1, 2013 ... , the Town hereby amends and restates the[Defined
`Benefit] plan as follows to comply with all applicable statutes, including certain
`provisions of the Internal Revenue Code [IRC] of 1986, as amended, and all
`applicable rulings and regulations issued thereunder that are applicable to pension
`plans sponsored by governmental employers
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`***
`
`(Id.)
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`7
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`Since 2011, at least five police officers retired from the CPD, began collecting benefits
`under the Defined Benefit Plan, and accepted other employment with the Town. (ROR A, R.
`Regan testimony, Tr. 04/04/24, pp. 13-17, 23; L. Zullo testimony, Tr. 05/22/24, p. 66).
`Sometime prior to February 9, 2021, the Cheshire Board of Education asked Town Finance
`Director James Jaskot a question concerning “sham” retirements under the IRC related to rehiring a
`retired cafeteria worker. That question prompted Jaskot to seek advice regarding the Town’s
`policies from its pension attorney, Erek Sharp. In accordance with advice from Sharp, the Town
`began drafting an amendment to Section 7-12 of the Town’s Personnel Rules & Regulations
`(Personnel Rules). (ROR A, L. Zullo testimony, Tr. 05/22/24, pp. 20, 22-25, 66; Exs. 31-32).
`In an email to Jaskot and town manager Louis Zullo, dated February 9, 2021, Sharp
`described the factors that would be considered in determining whether a separation from service,
`plan distribution, and subsequent rehire might be a “sham” retirement/termination. According to
`Sharp, those factors included the amount of time between the retirement and rehire, similarity of
`job duties before and after retirement, reemployment in the same department or division, and
`whether a return to work was discussed prior to retirement. (ROR A, Ex. 32).
`In an email to Zullo dated February 18, 2021, Sharp described the potential consequences
`of the IRS determining that an employee’s retirement was a “sham,” including plan
`disqualification. Sharp stated, in relevant part:
`Plan disqualification has severe tax consequences. The plan’s trust loses its tax -
`exempt status. Among other things, this would affect the ability to deduct
`contributions, trust earnings would be subject to income tax, and contributions
`would become subject to FICA, FUTA, etc. If the operational failure under the plan
`was discovered by the IRS on audit, they could require repayment of the improper
`redistributions and impose taxes and penalties even if they agreed not to disqualify
`the plan itself.
`***
`(ROR A, Ex. 32).
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`8
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`From 1999 until his retirement on November 27, 2021, Robert Regan was a police officer
`with the CPD and participated in the Defined Benefit Plan. On July 14, 2021, Regan applied for a
`position as a full-time maintainer with the Town Department of Public Works (DPW). (ROR A,
`Exs. 12, 29).
`In a November 9, 2021 email to Sharp, Jaskot inquired whether there is a potential sham
`termination concern if a police officer who is currently employed by the Town was to terminate
`such employment, begin receiving his pension under the Defined Benefit Plan and immediately
`become re-employed by the Town in a non-police municipal position. (ROR A, Ex. 32).
`In an email to Jaskot, Zullo, and others dated November 12, 2021, Sharp opined that “there
`is … a concern the IRS could deem this situation to be a ‘sham’ retirement ...” and stated, in
`relevant part:
`• Of primary concern is the fact that the Town and the employee have
`discussed, and effectively agreed upon, the proposed termination/pension
`distribution/re-employment situation in advance... In my judgment, this is a
`significant red flag for the IRS.... an d the result could be plan
`disqualification if pursued by the IRS.
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`• In addition … IRS guidance... is clear that a simple change in employment
`status - for example, from full time to part-time status or a change in duties
`with the employer following the retirement is not enough to eliminate the
`risk...
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`• As we have discussed, there are steps that an employer, such as the Town,
`can take to help minimize “sham” retirements, but they are not perfect
`solutions and may still be subject to IRS scrutiny. For example, adopting a
`minimum period of separation into their employment policies ... The Town
`has chosen to adopt such an administrative approach in its soon -to-be-
`adopted “sham” termination policy. Again, this could still be scrutinized by
`the IRS... Moreover, a change in employment status (as noted above) would
`not, by itself, alter the fact that a putative retiree has resumed employment,
`and this can make judgment calls both difficult to eliminate and difficult to
`make when it comes to, for example, a long service employee who wants to
`start drawing retiremen t benefits from the plan but also wants or needs to
`keep working, even if in a different capacity.
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`9
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`***
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`(ROR A, Ex. 32).
`On November 27, 2021, Regan retired from the CPD and began receiving pension benefits
`pursuant to the collective bargaining agreement and the Town Defined Benefit Plan. On November
`29, 2021, Regan began work as a maintainer in the Town’s DPW and became a participant in one
`of the Town's defined contribution plans (the 457 Plan). (ROR A, Exs. 12, 29).
`On February 8, 2022, the Town amended its Personnel Rules to state, in relevant part:
`7.12 Retirement
`… because of certain concerns and considerations regarding the qualified status of
`the [Defined Benefit Plan] … and employees enrolled in the 457 or 401(a) plans, an
`employee … who experiences a bona fide termination of his or her employment
`with the Town … and who has begun to receive a distribution of his or her accrued
`benefit ... may not continue to perform services as an employee of the Town or
`apply for employment with the Town unless such individual: (i) has been terminated
`from employment with the Town for a period of at least six (6) months… ; and (ii)
`will not be performing full -time service as an employee of the Town in the same
`position from which he or she terminated empl oyment with the Town.
`Notwithstanding the above general guidelines, the Town shall, prior to rehire as
`contemplated in this policy, also consider other applicable criteria which are
`intended to determine whether such rehire would potentially constitute a “ sham”
`termination/retirement based upon [IRS] guidance...
`
`***
`
`(ROR A, Ex. 9).
`In March 2022, the Union’s attorney, Stephen McEleney, asked Zullo for the legal
`authority upon which the Town based its changes to Personnel Rule 7-12. Zullo contacted pension
`attorney Melanie Aska, who had succeeded Sharp. On April 6, 2022, Aska emailed guidance to
`Zullo, stating, in relevant part:
`Here is a list of the published IRS guidance on bona fide retirement/termination of
`employment versus “sham” retirement termination of employment ... In addition,
`here are a number of articles written by practitioners in other law firms about the
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`10
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`IRS's position on “sham” retirements and the adverse consequences for tax qualified
`Internal Revenue Code Section 401(a) retirement plans, including governmental
`plans, that permit sham retirements.
`
`***
`(ROR A, Ex. 11). The attached materials included references that illegitimate or “sham”
`retirements could result in disqualification of the plan. Zullo forwarded the information to
`McEleney. (ROR A, Ex. 11).
`Regan decided that he wished to be a Town police officer again. In October 2022, Regan
`applied for a police officer position in the CPD. In an email to Zullo dated October 27, 2022,
`police chief Neil Dryfe requested a legal opinion on Regan’s prospective reemployment as a police
`officer. Dryfe alternately referred to the move as a transfer and a rehire. On November 15, 2022,
`the Town gave Regan a conditional offer of probationary employment as a Town police officer.
`Sometime prior to November 28, 2022, in an email to Zullo, McEleney requested to
`bargain over Regan’s rehire. (ROR A, Ex. 46). In an email to McEleney dated November 28, 2022,
`Zullo quoted an opinion by Aska, which stated, in relevant part:
`[Regan] will simply experience a transfer of employment, not a retirement or other
`termination from employment, when he switches from the Town's public works
`department to the police department...
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`***
`
`(ROR A, Ex. 44).
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`On December 12, 2022, McEleney, Zullo, Jaskot, and Union vice president Vincent Nastri
`had a conference call with Aska in which she took the position that Regan’s return to the CPD was
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`11
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`merely a transfer and that any potential consequences related to the sham retirement rule were
`inconsequential.4 In an email to Zullo on the same date, McEleney stated, in relevant part:
`The Union is unwilling to sanction the Town's conduct in jeopardizing the tax status
`of our defined benefit pension plan. If you go ahead with your plan to return Mr.
`Regan to CPD we will file [a prohibited practice complaint] over … your …
`refusing to neg otiate with us over all of the terms and conditions of a retiree
`returning to employment with CPD or the Town before any such an event occurs.
`
`
`***
`(ROR, Ex. A41).
`On or about February 24, 2023, in light of the sham retirement issue, the Union
`membership voted that Regan should not be permitted to return to work for the CPD. (ROR A, V.
`Nastri testimony, Tr. 04/4/24, pp. 71-72).
`On or about March 13, 2023, Regan separated from the DPW and was sworn in as a CPD
`police officer. (ROR A, Exs. 29, 30). In an email to all bargaining unit members that same day,
`Dryfe stated, in relevant part:
`I understand that [Regan’s] rehire was an issue of some concern raised at a recent
`Union meeting. I remind you that I have an open door policy and I am available to
`discuss any concerns with anyone. Please stop in at your convenience.
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`(ROR A, Exs. 29, 33).
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`IV. STANDARD OF REVIEW
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`A. UNIFORM ADMINISTRATIVE PROCEDURES ACT
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`Judicial review of administrative agency decisions is governed by § 4-183(j) of the UAPA.
`Under that section, the reviewing court’s role is limited to determining “whether there is
`substantial evidence in the administrative record to support the agency's findings of basic fact and
`whether the conclusions drawn from those facts are reasonable....” Daly v. Dep't of Children &
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`4 Aska declined to testify before the Labr Board and there is no record documenting the substance of that conversation.
`Zullo and Union vice president Vincent Nastri testified about their recollection of Aska’s position.
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`12
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`Families, 231 Conn. App. 381, 391–92 (2025) (Internal citations omitted). “Substantial evidence
`exists if the administrative record affords a substantial basis of fact from which the fact in issue can
`be reasonably inferred. ...” Hartford Police Dep't v. Comm'n on Human Rights & Opportunities,
`347 Conn. 241, 247 (2023). “In determining whether an administrative finding is supported by
`substantial evidence, the reviewing court must defer to the agency's assessment of the credibility of
`witnesses. ...” Id.; see also Aquarion Water Co. of Connecticut v. Pub. Utilities Regulatory Auth.,
`352 Conn. 381, 406 (2025).
`“Even for conclusions of law, [t]he 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. ...” O’ Reggio v. Comm'n on Human Rights & Opportunities, 350 Conn. 182, 189
`(2024). “[Thus] [c]onclusions 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.) Drumm v.
`Freedom of Information Commission, 348 Conn. 565, 580 (2024).
`B. LOPER BRIGHT ENTERPRISES IS NOT APPLICABLE
`
`On June 28, 2024, the U.S. Supreme Court issued Loper Bright Enterprises v. Raimondo,
`603 U.S. 369, overturning Chevron USA, Inc., v. Natural Resources Defense Council, Inc., 467
`U.S. 837 (1984). In Loper Bright, the Court ruled that a reviewing court is no longer required to
`give deference to a federal agency’s permissible construction of a statute that is silent or
`ambiguous regarding a particular issue. However, Loper Bright pertains to appeals brought under
`the federal Administrative Procedure Act, 5 U.S.C. 551 et seq., and does not govern this appeal.
`Nor should it be applied unless and until it is adopted by our own Supreme Court. West Farms
`Associates v. Sofro Fabrics, Inc., Superior Court, judicial district of Hartford at New Britain, No.
`SPH-8501-26555, *5 (1986, Goldstein, J), 1986 WL 296347 (“the trial court ... is bound to follow
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`13
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`the precedents of the Connecticut Supreme Court until they are overruled or modified”) (citing
`Fitzgerald v. Fitzgerald, 190 Conn. 26, 31-32 (1983)). Accordingly, the Labor Board submits that
`it remains entitled to deference under the circumstances set forth in Chevron USA and its progeny.
`However, if Loper Bright is applied in this appeal, which the Labor Board contends it should not
`be, judicial review of administrative fact finding remains deferential. Loper Bright Enterprises,
`supra, 603 U.S. at 391.
`IV. ARGUMENT
`
`A. THE LABOR BOARD CORRECTLY DETERMINED THAT THIS
`CONTROVERSY WAS RIPE FOR ADJUDICATION
`
`The Plaintiffs argue that the Labor Board committed an error of law by denying Regan’s
`motion to dismiss. In deciding a pretrial motion to dismiss, “[a] court must take the facts to be
`those alleged in the complaint, including those facts necessarily implied from the allegations,
`construing them in a manner most favorable to the pleader.” Godbout v. Attanasio, 199 Conn. App.
`88, 96 (2020). A case may be dismissed if it is not ripe. A case is not ripe if it “presents a
`hypothetical injury or a claim that is contingent on the happening of some event that has not yet
`and, indeed, may never transpire.” Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 87 (2008).
`As discussed in greater detail in the next section, MERA imposes a duty on municipal
`employers to bargain before taking an action which materially effects conditions of employment,
`as well as actions which themselves may be taken unilaterally, but which have a substantial impact
`on working conditions. Town of Ridgefield, Decision No. 1204 p. 3 (1974) (citing West Hartford
`Ed. Ass'n v. DeCourcy, 162 Conn. 566 (1972)). Employee pension benefits are a mandatory subject
`of bargaining. Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157
`(1971).
`In its amended complaint, the Union alleged the following relevant facts:
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`14
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`3) In March 2022... [a]s a result of the information supplied by the Town the
`Union learned the rehiring of a full-time police officer who had retired and
`was receiving retirement benefits could jeopardize the legal status of the
`Union's pension plan.
`
`4) Union Counsel expressed concern to Town Representatives over rehiring of
`a retired member of the department as a police officer given the so -called
`“sham retirement” rule of the IRS.
`
`5) On November 30, 2022 the Union again demanded negotiations, this time
`over the Town's intention to rehire police retiree Regan as a full-time police
`officer.
`
`6) On December 12, 2022, a virtual meeting was held between the Town and
`Union Representatives, Union Counsel and the Town's “Pension Expert”
`over the legal issues involved concerning a “sham retirement”. This was not
`a negotiation....
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`7) Following the meeting on December 12, 2022 the Union again demanded
`negotiations over the hiring of Mr. Reagan.
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`8) Despite the Union's objections ... and a demand to bargain, the Town
`nonetheless ... rehired Reagan as a police officer on March 13, 2023, while
`Reagan was still collecting a police pension.
`
`
`***
`
`(ROR A, Ex. 1A, pp. 1-2).
`
`Viewed in their most favorable light, the facts alleged by the Union support its claim that
`rehiring Regan was illegal, jeopardized the legal status of its pension plan, and as a result, the
`injury occurred as soon as the Town rehired Regan without bargaining. (ROR A, Ex. 24, p. 7). On
`that basis, the Labor Board correctly concluded that the controversy was ripe for adjudication.
`(ROR A, p. 4). Where a union “is entitled to negotiate prior to implementation [of employer
`action], its claims are not hypothetical and the case is ripe.” City of Hartford, Decision No. 4673,
`p. 8 (2013).
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`15
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`Finally, the Plaintiffs also allege that the Labor Board went beyond the factual allegations
`in the complaint to decide jurisdiction. However, that is incorrect. A jurisdictional question raised
`by a pretrial motion to dismiss must be decided on the facts alleged in the complaint, Speer v
`Nationstar Mortgage, LLC, 235 Conn. App. 278, 287 (2025), and the Labor Board denied Regan’s
`pretrial motion on that basis. (ROR A, Ex, 24, p. 4).
`B. THE LABOR BOARD’S FINDING OF SUBSTANTIAL SECONDARY IMPACT
`IS SUPPORTED BY SUBSTANTIAL EVIDENCE, INCLUDING THE TOWN’S
`OWN PENSION ATTORNEYS
`
`A municipal employer's unilateral change to an employment condition constitutes a refusal
`to bargain collectively in good faith in violation of MERA, unless the employer proves an adequate
`defense. Town of Middlebury v. Fraternal Order of Police, Middlebury Lodge No. 34, 348 Conn.
`251, 253 (2023). Decisions to hire ordinarily fall within the area of management prerogative.
`Connecticut State University Board of Trustees, Decision No. 2713 (1989). However, “the
`employer remains under an obligation to bargain substantial secondary impacts on conditions of
`employment of its managerial decisions before such decisions may be implemented,” City of
`Middletown, Decision No. 3271 p. 5 (1995), to afford the Union “a fair opportunity to negotiate the
`impacts ... on a level playing field.” City of Shelton, Decision No. 5132 p. 9 (2020).
`The secondary impact at issue must be substantial, University of Connecticut, Decision No.
`5322 (2024) (Citing Local 1186, AFSCME v. State Board of Labor Relations, 224 Conn. 666, 672
`(1993)), and the union bears the burden of identifying the secondary impacts through the
`production of competent evidence. State of Connecticut, Department of Correction, Decision No.
`3229 (1994). The union must produce “at least some evidence of an impact or probable impact
`resulting from management’s actions.” City of Derby, Decision No. 4612 p. 5 (2012); see also City
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`of Torrington, Decision No. 3345 (1995);Torrington Bd. of Educ., Decision No. 2827 (1990); City
`of Hartford, Decision No. 2462 (1986); Town of Hamden, Decision No. 2145 (1982).
`Employee pension plans are a mandatory subject of bargaining. Allied Chemical & Alkali
`Workers v. Pittsburgh Plate Glass Co., supra, 404 U.S. at 159; see also Greater Bridgeport Transit
`Dist. v. State Bd. of Labor Relations, 43 Conn. Supp. 340, 356 (Super. Ct. 1993), aff'd, 232 Conn.
`57 (1995). In this case, the Union produced evidence from the Town’s legal advisors which
`supports the finding that hiring Regan had a bargainable impact on the Town’s pension plan.
`Specifically, attorney Sharp advised, and attorney Aska confirmed, that permitting an employee
`who is drawing benefits from the plan to continue working may be considered a “sham retirement”
`under IRS regulations, which could result in a plan disqualification. In fact, Sharp described the
`scenario as “a significant red flag” for the IRS and warned that plan disqualification has severe tax
`consequences. Specifically:
`The plan’s trust loses its tax -exempt status. Among other things, this would affect
`the ability to deduct contributions, trust earnings would be subject to income tax,
`and contributions would become subject to FICA, FUTA, etc. If the operational
`failure un der the plan was discovered by the IRS on audit, they could require
`repayment of the improper redistributions and impose taxes and penalties even if
`they agreed not to disqualify the plan itself.
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`(ROR A, Ex. 32). In her subsequent email to Zullo, Aska reiterated that sham retirements “could
`jeopardize the Town’ retirement plan’s qualified status under he [IRS] Code” and provided
`published IRS guidance and other authority on the adverse tax consequences for qualified plans,
`including governmental plans, that permit sham retirements. (ROR A, Ex. 11).
`The Plaintiffs argue that the risk of plan disqualification is not a substantial impact unless
`the IRS determines that Regan’s retirement was a sham, and asserts that it “ha[s] not come to
`fruition after more than a decade” of the Town hiring retired police officers. (Town’s brief, pp. 23-
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`24) (Regan’s brief, p. 26). However, the Labor Board recognizes substantial secondary effects
`which “may be reliably inferred from the facts of the case.” City of Hartford, Decision No. 2462 p.
`10 (1986); see also City of Hartford, Decision No. 4677 p. 5 (2013) (bargainable impact on safety
`where “potential for substantial harm existed”). The evidence supplied by Sharp and Aska,
`combined with the fact that the Town amended its personnel rules to prohibit similar hiring
`practices, undermines the Plaintiffs’ contention that risk of plan disqualification cannot be reliably
`inferred as a real threat, and their reliance on lack of IRS intervention to date is unavailing without
`evidence that that agency was made aware of the situation.
`The Plaintiffs further cite City of New London, Decision No. 4186 (2008) for the
`proposition that no bargainable impact can exist until the IRS takes action. In City of New London,
`the City informed employees who used City-owned vehicles to commute to and from work that it
`would begin adding the IRS-determined value of that benefit, $3.00 per day, to their paychecks as
`taxable income, to bring the city into compliance with IRS regulations. The Union filed a
`complaint alleging that the city failed to bargain the impact of that decision. Specifically, the union
`wanted to bargain over who would any penalties whi