Labor Board Recommends Dismissal of Prosecutor’s SEBAC Complaint
by Hugh McQuaid | Dec 22, 2011 6:30am
(15) Comments | Commenting has expired
Posted to: Labor, Legal, State Capitol
Veteran state prosecutor Lisa Herskowitz hoped to champion the cause this year of state employees unhappy with the concession package negotiated by union leaders and the governor. Herskowitz took their complaints to the state Board of Labor Relations, but the board shot down her arguments this week.
On Dec. 16 the board found no merit in various allegations she made against the State Employees Bargaining Agent Coalition, the Connecticut Association of Prosecutors, the Department of Criminal Justice, and the governor.
Herskowitz’s complaint rested on the claim that SEBAC negotiated union employee wage concessions with representatives of Malloy’s office when it is only statutorily authorized to negotiate changes to health care and pension benefits. Changes to wages are up to the individual bargaining units to negotiate.
“They have effectively but illegally and intentionally sucked 45,000 state employees into one monster bargaining unit by usurping our bargaining agents and subjecting all state employees to their illegal rule,” she wrote.
However, the board found nothing that precludes SEBAC from negotiating other benefits, if both it and the state agree.
“Coalition bargaining is permissible for other subjects other than pension and health benefits by agreement of the parties,” the labor board wrote.
Another claim contended that SEBAC violated its own bylaws when it waived a provision requiring it to give members 30-days notice before it amends its bylaws. The coalition waived the notice in July so it could make the requirements to ratify a second agreement vote less stringent.
“Waiving it violated the duty of fair representation. I believe the members should have been allowed to vote on the bylaws change. At the very least, they should have been given adequate notice and an opportunity to protest it,” Herskowitz wrote.
But the board found the reasons the coalition gave for the waiver were “understandable” and “not intentionally dishonest or misleading.” The unions were facing thousands layoffs and an August deadline established by Malloy.
“SEBAC contends that even if this action did violate Section 9 of its bylaws, there was no negative impact to its decision to waive the 30 day notice requirement,” the recommendation said.
Herskowitz also made a number of claims alleging that her union, CAP, had violated its own bylaws. During the first vote on the agreement, the union did not allow a separate vote on the SEBAC agreement and the unit agreement, she said. The board agreed.
“Her assertion is correct that this did not give her the option to reject by itself, the wage and other provisions in the CAP unit agreement,” the recommendation said.
However, it said it is “an uncontested fact” that the second vote featured two separate questions, one for each agreement. Even if the union did violate its bylaws, the breach alone is not enough to say it had not provided fair representation, the board said.
Besides, the board “summarily dismissed” allegations of CAP violating its bylaws because the union didn’t actually have operational bylaws.
The board also recommended dismissing Herskowitz’s claims that Malloy and the Criminal Justice Department coerced state employees into voting for the agreement.
Herskowitz’s complaint said Malloy bullied and coerced union members to vote yes. He repeatedly threatened layoffs and increased the number of projected layoffs from 4,500 to 7,500 in an attempt to scare union members into voting yes, she said.
“This was extremely coercive,” she wrote. “He and the union leaders had already made it clear many times that if the agreement was rejected, there would be layoffs. The governor’s repeated threats were not intended to furnish information; they were intended to coerce people into voting ‘yes.’”
The board said that the state must be able to decide to lay off employees and eliminate positions.
“Such decisions are based by and large on budgetary conditions and there is no question that the state of Connecticut was facing a significant budget deficit before and during the entire SEBAC discussions,” it said.
Herskowitz did not show that Malloy’s public statements were designed to undermine state employees or their unions, the board said.
Another complaint alleged that the governor was trying to coerce prosecutors when he appeared briefly at one of their mandatory training sessions, which took place on the same day they were voting on the SEBAC agreement.
Malloy, who was coincidentally in the same building for another event, spoke for about 10 minutes about his days as a prosecutor, not about the SEBAC agreement, the board said.
“It did not constitute a meeting that could be described as so coercive as to interfere with employees’ statutory rights and/or interfere with the administration of the union,” the recommendation said.
Herskowitz has 14 days to file an appeal of the recommendation. If she does the board will schedule a formal hearing to decide on the case. If not the complaint will be dismissed.
Tags: herskowitz, board of labor relations, sebac agreement, malloy, collective bargaining, Hugh McQuaid
(15) Comments
posted by: perturbed | December 22, 2011 7:47am
Wesleyan University associate professor Jonathan Cutler had it exactly correct in his Hartford Courant piece dated July 31, 2011:
Coalition Grabbed Power From State Unions When It Changed Bylaws
“The change in the bylaws may represent a defining moment for state labor unions. Traditionally, each individual union retained control of its own wage negotiations, and coalition bargaining was limited to retirement and health benefits. As is clear from a wage-freeze provision in the proposed concession agreement, SEBAC has now extended its reach into the domain of wage bargaining.
Moreover, SEBAC is not a voluntary coalition. It is a statutory entity, created by the state and designated by the state as the exclusive representative of all public sector unions, each of which is required by law to belong to and bargain through SEBAC. The state, in essence, controls the agent with which it bargains.
The top-secret negotiations between a handful of SEBAC people and Malloy’s representatives concerning wages certainly deserve to be legally challenged. Individual bargaining unit leaders were strictly excluded from the process, even though it is within their authority alone—not SEBAC’s—to negotiate wages on behalf of their members.
Idle speculation? Not at all. First P-4 stepped forward:
“Because the legally-specified procedures were not followed, and the legally-authorized representatives of the P-4 Council were not involved in the re-negotiation of the 2009 P-4 Agreement, there can be no valid vote on any alleged agreement which purports to replace the lawful existing 2009 P-4 Agreement in effect through June 30, 2012.”
And then from Moises Padilla, vice president of local 387 of the American Federation of State, County and Municipal Employees, an NP-4 Corrections Bargaining Unit:
“Unfortunately, during this entire period we were not consulted with regarding any of the issues that were later released to the public by the “Gang of 15”, otherwise known as SEBAC, who have failed to recognize that they serve at the pleasure of its membership and that their salaries and generous benefits are paid for through union dues derived from the hard work, sweat, blood and tears of the men and women who walk one of Connecticut’s toughest beats, at least as it pertains to our organization, AFSCME Council 4.”
These two groups were most certainly just the tip of the iceberg.
At least the Labor Board acknowledged this simple fact:
“12. All meetings and discussions over these concessions were conducted in secret…”
Lisa, please appeal this recommendation!
—perturbed
posted by: perturbed | December 22, 2011 8:12am
Jonathan Cutler wrote:
“The governor has certainly done his best to make sure the current fiscal crisis doesn’t go to waste. He may well get his way and make headlines across Connecticut and beyond. But in the long term, when the dust settles and the smoke clears, the real story is the encroachment of compulsory coalition bargaining into all areas of collective bargaining and the concentration of power in the hands of SEBAC — an organization that was not created by union members and is now less accountable to them than ever before.”
Coalition Grabbed Power From State Unions When It Changed Bylaws
Now the SEBAC/Malloy team is even attempting to limit our very ability to chose our own unions:
State Workers Rally For Union Choice
The very same Robert J. Krzys who represented CAP in the Herskowitz complaint is dual-representing SEIU and SEBAC in opposing union members’ right to choose their own unions.
If only state employees could organize against this sort of abuse of power…
—perturbed
posted by: Mr.Kruger | December 22, 2011 8:33am
File that appeal Lisa, we need to elevate this issue out of the State’s corrupt jurisdiction where you will actually get a fair day in court. Keep up the fight, we are all behind you. The face of SEBAC will change very soon as the disenfranchised leave their current “in-bed-with-Malloy” unions for the new pitbull union called UPSEU. Let’s keep the battle going on all fronts and one of us is bound to break through and bring the SEBAC house of cards down.
posted by: mmal231294 | December 22, 2011 10:51am
I hope the time she is wasting is her own. The people of the State of CT ought not have to pay for her sour grapes.
posted by: Not that Michael Brown | December 22, 2011 11:32am
Lisa Herskowitz is a registered Republican in Hebron who’s main goals are discrediting the Governor and destruction of the union.
posted by: Raoul Duke | December 22, 2011 12:00pm
4 years of job security, defined benefit pensions, 9% raise over 5 years, amazing health care for active employees, and essentially free health care for retirees. Yeah, those state employees are really oppressed.
posted by: NOW What? | December 22, 2011 1:26pm
There was no formal merit to her complaint to the labor board, any “appeal” will fail as well, and UPSEU’s for the birds.
Time to GROW UP already, folks. As State employees you’re not “entitled” to ANYTHING, and your unionization and collective bargaining is granted by the wishes of the state LEGISLATURE - *not* any deity or government constitution. So stop whining, get a grip, toughen up, and prepare for tougher battles ahead because what lays ahead will make your last SEBAC negotiations look like kids playing in a daycare center.
posted by: rankandfile | December 22, 2011 2:15pm
Hey Now what, you seem confused. “your unionization and collective bargaining is granted by the wishes of the state LEGISLATURE”? It is not granted, it is mandated. We are forced to pay dues whther we choose to or not.
posted by: rankandfile | December 22, 2011 2:22pm
Raoul Duke, which union do you work for, SEIU? AFSCME? You’re quoting their propoganda word for word. It’s 6% raises over 4 years, less 3% for health care and higher premiums. The 5th year is not guaranteed (anymore than this year’s raise was “guaranteed”). Pensions and health care were already locked in until 2017, so we gained nothing there, and in fact sacrificed some of what we had. And 94% of us already had job security (it’s called seniority and rehire rights) and the other 3,000 would have been back in short order (like the State Police)
posted by: newview | December 22, 2011 6:49pm
Don’t worry Lisa…the Union has your back OK?? 
(that was a joke)
Wait now, the retribution, if it hasn’t started already, is on the way. But wait there’s more.
The forum for the threat of retaliatory actions by State personnel, or threat of adverse personnel actions is right there to back you up…right? WRONG! CHRO has essentially been shut down by this Administration. There are no hearings scheduled, and that would be despite the Guv’s insisting…hey..state employees ..come hither with your whistleblower claims… we got your back! Yeah ..right! (that was another joke)
So, you are basically on your own Lisa, good thing you are an attorney. It didn’t do you much good at the SBLR, but perhaps at some point, and maybe not in this lifetime (who knows if you continue to work for the State) when attempting to brush against the grain, the idea of being in the legal field may be of some realized benefit.
In the meantime, filing prohibited practices, contract repudiations, violations of protected union rights without the support of your Union ...is really nothing the Labor Board wishes to stick their neck over the chopping block with. It’s an exercise in frustration, because the parties co-exist in protecting their own and co-operative interests. It really is an inside relationship, and the Labor Board usually rules accordingly; look at the history of decisions. It is painfully rare that pro se parties walk away with anything that resembles the slightest notion of satisfaction.
By all means, appeal, but I can tell you now…your claims will be unsubstantiated.
All the more reason to bring forward a dynamic shift in representation issues, labor agreements, and the function of the Labor Board at the appropriate time and place. I think you’re just the person, Lisa, collectively with your peers, to lead such change.
posted by: and 1 | December 22, 2011 7:15pm
Lisa- speaking as one who has stood up 1and continues to fight I hope you will appeal because as long as people like you and I give up they win. Of course the board ruled against you they are all either union or management
posted by: lkulmann | December 23, 2011 12:23pm
Very Scary…all of this State stuff is scary to watch. State workers seem so unhappy, ALWAYS UNHAPPY and VOLATILE. Isn’t there a Federal government Department of Labor hostile environment law or something to protect you? I know that there is fear of retaliation by the State, but by the looks of it you really need an alternate plan.
posted by: Commuter | December 24, 2011 4:52pm
Ironically, this individual in one legal action demonstrates why people hold unionized workers, and lawyers, in low regard. Her argument is technical, rather than substantive. She doesn’t like the outcome, so she sues. She is unable to persuade, so she attempts to use the rules to coerce. This is the sort of entitled, petulant behavior that those without protected jobs and legal licenses despise. Of course, maybe her position is full of merit, in which case she’s just an incompetent attorney, unable to argue her case effectively? Either way, this is a waste of taxpayer dollars.
