This article originally appeared in a previous issue of “Public Safety Labor News” and is reprinted courtesy of Labor Relations Information System.

July 8th, 2013 The State Employees Bargaining Agent Coalition is a group of thirteen state public employee unions representing approximately 40,000 Connecticut state employees. The Coalition has been designated by Connecticut’s Board of Labor Relations as the exclusive bargaining agent for its constituent unions for the purpose of negotiating and entering into a collective bargaining agreement. In 1997, the Coalition entered into a long-term contract with Connecticut covering all of its constituent unions. The constituent unions also had separate, union-specific contracts that covered other terms of employment. All of those contracts were in effect in November–December 2002 and were scheduled to be in effect for a period of years thereafter.

In November 2002, the State met with the Coalition and sought approximately $450 million in long-term concessions. At that time, the State employed approximately 50,000 individuals. Approximately 37,500 (75%) of these employees were members of the Coalition constituent unions, and approximately 12,500 (25%) were not union members. The State told the Coalition that unless it agreed to these concessions, the State would fire approximately 3,000 unionized state employees.

The Coalition did not agree to all of the proposed concessions, but instead offered alternative concessions. In December 2002, Governor John Rowland ordered the firing of approximately 2,800 unionized state employees. These firings were effectuated in 2003 and were limited to unionized state employees. No non-union workers were fired.
The Coalition sued Rowland and the State, contending that the firings violated the First Amendment. In a wide-ranging opinion, the federal Second Circuit Court of Appeals agreed with the Coalition.

The Court started with the proposition that the freedom of association “is a right closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society. Included in this right to free association is the right of employees to associate in unions. It cannot be questioned that the First Amendment’s protection of speech and associational rights extends to labor union activities.

“Conditioning public employment on union membership, no less than on political association, inhibits protected association and interferes with government employees’ freedom to associate. The State argues that in terms of their impact on core political beliefs and association, layoffs based on union membership are not even remotely comparable to layoffs and hiring decisions based on political party affiliation. But the First Amendment does not protect speech and assembly only to the extent it can be characterized as political, and the Supreme Court’s First Amendment jurisprudence has not distinguished between political parties and other associations. Labor unions are well within this protection.”

The Court then turned to the heart of the issue: “The State argues that it needed to reduce the cost of its work force, and that since the Coalition refused the proposed CBA concessions the State was forced to lay off union workers to do so. But the stipulated facts make clear that the 2003 firings were not tailored to reduce the cost of the State’s work force. To the contrary, the 2003 firings had minimal effect on the State’s expenses, and the savings realized from the 2003 firings did not correlate to the concessions requested from the unions. Indeed, the 2003 firings were not included in Rowland’s ‘Balanced Budget Plan,’ which was issued at the same time that the layoffs were ordered, with the purpose of eliminating the State’s budget deficit.

“More importantly, the State has not shown why the State’s fiscal health required firing only union members, rather than implementing membership-neutral layoffs. All state employees, whether or not they belong to unions, receive the same health care and pension benefits. There is no support for an argument that union members cost more, provided fewer services, or were distinguishable from their non-union coworkers in any way other than their membership itself. The State chose to accomplish whatever cost savings were achieved by firing only employees who were union members, as opposed to targeting the least valuable or most expensive workers. Thus, layoffs predicated on union membership could not deferentially affect the savings to be achieved, or the efficiency of the state’s work force.

“The State’s best argument is that the 2003 firings were meant to compel the unions to agree to concessions, which in turn would reduce the long-term costs of state government, arguably a vital government interest. But for a state to fi re union members – and union members alone – in the hope of ultimately achieving economic concessions is little different from refusing to hire union members in the first place. Unquestionably, layoffs applied generally without discriminating against union members would also have brought dramatic pressure on the Coalition, by terminating the employment of workers on whose behalf the unions were negotiating; this is particularly so in that 75% of such layoffs could be expected to fall on union members, who made up that proportion of the work force. But such layoffs, in contrast to the ones here challenged, would not have penalized employees because of their union membership.”
The Court returned the case to the trial court with instructions to craft an appropriate remedy.

State Emp. Bargaining Agent Coalition v. Rowland, 2013 WL 2361041 (2d Cir. 2013)