For over a year, a rival union has argued that the presence of the controversial “Attachment H” within the 2011 state worker concession package should not prevent state employees from decertifying their current union and electing a new one. On Halloween, a Superior Court judge put that argument to rest.
“The court is not persuaded,” Judge Robert F. Vacchelli wrote of the United Public Service Employees Union’s last ditch effort to pry open the 2011 bargaining agreement and hold a union election.
The judge’s ruling comes as the end of the line to more than a year of drawn out litigation.
UPSEU tried to convince four different state bargaining groups to leave their current union and join its union. Even though enough employees signed petition cards calling for an election to be held, a Labor Board ruled in July that the window to have an election had closed.
The case had its roots in state employee discontent over the process that lead to the ratification of the 2011 State Employee Bargaining Agent Coalition. Workers shot down the $1.6 billion concession package in their first vote, leading Gov. Dannel P. Malloy to move forward with massive layoff plans.
Union leadership responded by hastily arranging a second vote, some say violating their own bylaws in the process. Though state workers overwhelmingly approved the deal in a second vote, the way in which that came about left some workers with a sour taste in their mouth.
So when United Public Service Employees Union began circulating literature encouraging a handful of bargaining units to decertify their representation, many signed on. That’s when “Attachment H” came into play. The clause, which wasn’t physically in the SEBAC deal when workers voted on it, was used to block the union election because it closed the window for decertification.
SEBAC called the attachment boilerplate legal language, which did nothing to alter the agreement. Lawyers for UPSEU called it a “smokescreen” and filed a complaint with the state Labor Relations Board.
After months of legal briefs and sometimes contentious hearings, the board in a 2-1 decision sided with the state and the incumbent unions. They had argued that when state employees approved the SEBAC deal, and by extension Attachment H, they entered into a new contract, closing the window during which they could have decertified their representation.
UPSEU appealed to the courts, arguing that the labor board’s decision conflicted with state law and that the board had overstepped its authority.
In his appeal, UPSEU lawyer John M. Walsh laid out a complicated legal argument alleging that because certain applicable statutes and regulations weren’t included in the SEBAC deal’s appendix when it was presented to the legislature, “Attachment H” could not legally supercede them.
“The failure to list the conflicting statute and regulation on the Appendix is fatal to Attachment H’s supersedence; and, most importantly [state law] prohibits the Board from giving the language of Attachment H preferential treatment,” Walsh wrote.
Statute, therefore prohibits the labor board from enforcing that language, he concluded.
Judge Vacchelli disagreed, saying the attachment did not conflict with the statute or regulation.
“The facts changed when the Revised SEBAC Agreement was approved. Attachment H merely referenced the new reality. The facts changed, not the law,” Vacchelli wrote.
Therefore UPSEU’s petition for an election was too late under the contract bar rule, not because the law was changed or broken, but because the situation had changed: state employees had a new contract.