January 14, 2019

Sticking by unions: Despite incentive to quit, state workers’ membership rate climbs

The U.S. Supreme Court's decision in June that public employee unions can no longer collect mandatory "agency fees" from nonmembers gave public employees all over the country an immediate financial incentive to drop out of unions.

The average Connecticut state employee can now save more than $685 a year by refusing to join a union.

Yet the average membership rate of Connecticut's state employee unions has gone up — rather than down — since the June decision.

As of the Sept. 28 paycheck, 88.5 percent of Connecticut state employees who were eligible for union membership were members, according to figures from state Comptroller Kevin Lembo's office. That was up from 87.8 percent at the June 22 paycheck and 86 percent at the April 27 check.

A likely reason for the increase is that many state employee unions mounted membership drives before and after the widely anticipated Supreme Court decision, officials say.

But despite the increase in membership rates, the total revenues of Connecticut's state employee unions declined about 7 percent, from about $1.31 million for the two-week pay period covered by April 27 paychecks to about $1.22 million for Oct. 12 checks. That decline occurred even though the total number of employees in state bargaining units increased 1.5 percent from April 27 to Sept. 28 and continued to grow in October.

The obvious reason for the revenue decline is that the agency fees collected from nonmembers dropped from some $145,000 in the April 27 pay period to zero after the Supreme Court decision took effect.

One union that had a big membership increase during 2018 was AFSCME Council 4, which represents Correction Department employees. Its membership in the correctional bargaining unit climbed 27 percent, from 3,081 in the April 27 pay period to 3,907 in the Oct. 12 period, according to the comptroller's figures.

Fixing a mistake

Jody Barr, executive director of Council 4, said a big reason for that change was that the union took steps to counter an administrative error the Correction Department had been making. When an employee transferred from one correctional facility or local union to another, the department would often mark the employee as an agency-fee payer rather than a union member, Barr said.

Correction Department spokesman Andrius Banevicius confirmed that there was "some administrative error," adding that the department is confident it has been corrected.

Barr said it has taken a "one-on-one conversation" with each affected employee to sign them back up as union members but added that those conversations have been "overwhelmingly productive." He said many employees are also agreeing to support the union's "political wing," authorizing deduction of additional money from their paychecks for that purpose.

Jan Hochadel, president of the AFT Connecticut, which represents education professionals, said the June Supreme Court decision has had "very, very little impact" on her union. She called the decision "a blessing in disguise," adding, "We've spent three years talking to them about the importance of the union. … We had very little push-back at all."

Robert Beamon, a correctional officer and member of the Enfield-based AFSCME Local 391, cited safety as a key reason for his support for the union. The people who make decisions aren't in the prisons, he said, arguing that the union is needed to inform management of employees' safety concerns.

He also cited benefits and rules governing issues such as overtime as major issues.

"In the South, where unions are less prominent, their benefits pale in comparison," he said. "I've worked in places without a union, and I know the difference."

Kelli Stamm, a correctional counselor and trustee of Local 391, cited job security as a major reason for her support of the union. She also cited fringe benefits such as maternity leave.

Beamon said union members are aware of the moves by former Wisconsin Gov. Scott Walker and that state's Republican-controlled legislature to dramatically weaken public employee unions there. "I do feel like union members — and us being union members — are under attack," he said.

Group offers free lawyers

Lawyers from the Virginia-based National Right to Work Legal Defense and Education Foundation represented Mark Janus and two other Illinois state employees in the suit that led to the June U.S. Supreme Court decision.

The foundation has supplied lawyers, free of charge, to public employees in a number of similar suits around the country — at least two filed by Connecticut state employees.

Those suits have continued to be litigated in Connecticut's federal courts even after the state stopped collection of agency fees as a result of the Janus decision.

One of the suits — filed by state Department of Energy and Environmental Protection employees Kiernan J. Wholean and James A. Grillo — seeks repayment of up to three years of agency fees to all non-union employees represented by the Connecticut State Employees Association,

The three-year period is dictated by Connecticut's statute of limitations for such claims, according to Alex van Duijn, a spokesman for the right-to-work foundation.

If successful, that suit could represent a significant financial hit to the CSEA, also known as Local 2001 of the Service Employees International Union, which represents several state employee bargaining units. But the suit still has major hurdles to clear, including winning certification as a class action by a federal judge.

The CSEA and the state are seeking dismissal of the suit. CSEA lawyers cited a federal judge's Nov. 28 decision in a similar case in Washington state, which held that "the good faith defense" prevents employees from recouping agency fees that were legal when they were collected.

But the right-to-work foundation's lawyers have argued in another Connecticut case that a 1993 U.S. Supreme Court decision held that the court's decisions interpreting federal law, including the Constitution, apply retroactively.

Some unions choose to pay

Some unions have chosen to repay individual plaintiffs their past agency fees, with interest, rather than risk a suit becoming a class action, with much larger potential costs. That is what the Connecticut State Police Union did in a lawsuit filed by two active troopers and two now-retired troopers, paying them a total of more than $10,500.

In an Oct. 14 ruling, Judge Victor A. Bolden agreed with the state and the State Police Union that the suit is moot. But the judge, who sits in U.S. District Court in Bridgeport, added that he would permit renewal of the suit if there is any attempt to re-introduce agency fees or if the plaintiffs haven't been adequately reimbursed for their agency-fee payments.

The judge also said he would permit the plaintiffs to seek payment of their legal fees by the state and the union on grounds that they may be considered the "prevailing parties" under federal civil right law.

The Journal Inquirer has sought to communicate with all six plaintiffs in the two Connecticut suits, routing most requests through the right-to-work foundation. Although foundation officials have expressed willingness to have the plaintiffs interviewed, no plaintiff has agreed to do so.

The troopers' complaint says the four plaintiffs — Marc Lamberty, Joseph Mercer, Carson Konow, and Collin Konow — disagree with the union making political endorsements. It also says Mercer and the Konows disagree with some union negotiating positions, including "union business leave, which allows the union to use public funds to further its business and political causes" and "the union's involvement regarding the training fund for state troopers."

Publicly available copies of the right-to-work foundation's annual financial reports to the Internal Revenue Service don't show its funding sources, information that most non-profit organizations are allowed to withhold from the public. The reports do show that the foundation's annual spending has generally run around $6 million in recent years.

Van Duijn hasn't responded to a Journal Inquirer request for more information on the foundation's funding sources.

One option Connecticut public employee unions don't have is refusing to represent employees who refuse to join the union. State law requires unions to be the "exclusive representative" for their bargaining units, meaning that they are legally obligated to represent all bargaining unit members, regardless of union membership.

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