End The “Deemed Approval” Of Union Contracts

The State of Connecticut is in dire economic straits. It has not fully recovered from the Great Recession and it is clear that revenue growth will continue to be anemic for the foreseeable future.

State employee salaries and benefits account for approximately 38% of the state budget. State employees provide valuable, often essential, services to the citizens of the state. They are not responsible for the state’s revenue situation. But they cannot help but be part of the solution. The size and cost of our state government, including personnel costs, must adjust to the new economic “normal.”

As part of that adjustment process, the General Assembly, the governor, and the public at large should take a close look at certain provisions of the State Employees Relations Act (“SERA”), which, commencing in 1977, established collective bargaining with state employee unions as the means for determining wages, hours and other terms and conditions of state employment. See Public Act 75-566; Conn. Gen. Stat. § 5-270 et seq.

A key component of SERA is General Statutes § 5-278(b), which provides that a collective bargaining agreement [hereinafter “CBA”] “shall be deemed approved if the General Assembly fails to vote to approve or reject [it] within thirty days after [it is filed with the General Assembly].” This provision also applies to binding arbitration awards entered following an impasse in negotiations (“Awards”).[1]

By creating a statutory scheme in which CBAs and Awards are “deemed approved” if the General Assembly fails to reject them, SERA has turned longstanding constitutional requirements for lawmaking on their head and has allowed our elected representatives to avoid taking direct responsibility for the approval of CBAs and Awards. That must change if we are to put the state on a new course towards long-term fiscal responsibility and stability.

This post presents a brief overview of the history of collective bargaining. It then explains how SERA fundamentally altered the way important policy decisions concerning state employee wages and benefits become law in our constitutional system. The post concludes by arguing that SERA should be amended to repeal the “deemed approved” provision and, instead, to require a majority of both houses of the General Assembly to affirmatively vote to approve or reject all CBAs and Awards.

I.  A Very Brief History of Collective Bargaining.

Although public employees have a First Amendment right to organize and advocate as unions, the First Amendment (nor any other provision of the federal or state constitutions) does not impose any obligation on a state to recognize a union or agree to collective bargaining. As the United State Supreme Court explained in Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463 (1979):

The First Amendment right to associate and to advocate “provides no guarantee that a speech will persuade or that advocacy will be effective.” The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.

Id. at 464-465 (emphasis supplied) (internal citations omitted). In short, collective bargaining is neither a constitutional right nor a constitutional obligation. A state’s decision to acknowledge a public employee union for collective bargaining purposes is not cast in stone. It is a policy decision, one that officials and the public are free to revisit at any time—subject, of course, to the political costs and benefits of doing so.

Public sector collective bargaining did not begin in most states until the latter half of the twentieth century. Indeed, throughout the early to mid-twentieth century, collective bargaining in the public sector was frowned upon, both as a policy matter and, in some jurisdictions, as a legal matter.

In the 1930s, New York Mayor Fiorello LaGuardia warned against collective bargaining with state employees as a limitation on democratic freedoms that threatened the government’s ability to represent the public. Similarly, in a 1937 letter to Luther C. Steward, then president of the National Federal of Federal Employees, President Franklin Delano Roosevelt wrote:

The desire of Government employees for fair and adequate pay, reasonable hours of work, safe and suitable working conditions, development of opportunities for advancement, facilities for fair and impartial consideration and review of grievances, and other objectives of a proper employee relations policy, is basically no different from that of employees in private industry. Organization on their part to present their views on such matters is both natural and logical, but meticulous attention should be paid to the special relationships and obligations of public servants to the public itself and to the Government.

All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.

Letter from FDR to L. Steward dated Aug. 16, 1937 (emphasis supplied).

Significantly, FDR and Fiorello LaGuardia were not alone in arguing that collective bargaining had no role to play in the public sector; even organized labor hewed to that position. “It is impossible to bargain collectively with the government,” stated George Meany, the former president of the A.F.L.-C.I.O, in 1955.

Across the country, many courts also held that collective bargaining by government workers was constitutionally impermissible, citing the “sovereign immunity” and “unconstitutional delegation of government powers” doctrines. For example, in 1943, a New York Supreme Court judge wrote:

To tolerate or recognize any combination of civil service employees of the government as a labor organization or union is not only incompatible with the spirit of democracy, but inconsistent with every principle upon which our government is founded. Nothing is more dangerous to public welfare than to admit that hired servants of the State can dictate to the government the hours, the wages and conditions under which they will carry on essential services vital to the welfare, safety, and security of the citizen. To admit as true that government employees have power to halt or check the functions of government unless their demands are satisfied, is to transfer to them all legislative, executive and judicial power. Nothing would be more ridiculous.

Railway Mail Ass’n v. Murphy, 180 Misc. 868 (N.Y. Misc. 1943).

In the late 1950’s, however, the tide began to change. Wisconsin began collective bargaining with state employees in 1959. In 1962, President John F. Kennedy signed an executive order that allowed bargaining, but only over working conditions. (Federal unions still cannot bargain over pay and benefits.) In the next twenty years, many states began allowing—or requiring—collective bargaining with public sector labor unions. As noted, Connecticut allowed collective bargaining in 1977 with the passage of SERA.

II.  How a Bill Becomes a Law.

Before taking a closer look at SERA and explaining how it fundamentally altered the way law is made in the State of Connecticut with respect to public employees’ wages and benefits, it is first necessary to outline the law making process according to the state constitution.

Under the state constitution, both the General Assembly and the governor play essential roles in the making of a law. Article Fourth states in relevant part:

Each bill which shall have passed both houses of the general assembly shall be presented to the governor. . . . If the governor shall approve a bill, he shall sign and transmit it to the secretary of the state. . . .

Article Fourth, § 15.[2] Unless the constitution states otherwise, a bill “passes” a house by a majority vote of (a quorum) of its members. See Attorney General’s Opinion 2015-05 (dated Nov. 17, 2015) (“AG Op. 2015-05”) (“under our state constitution and democratic system of government, absent a specific constitutional provision to the contrary, the power to pass legislation is exercised by a simple majority vote.”).[3] Absent a majority vote of both houses of the General Assembly and the signature of the governor (or a veto override), a bill or other form of proposed legislation has no legal force or effect.[4]

In short, the Connecticut Constitution establishes the requirements that must be satisfied for a bill to become a law. The General Assembly cannot vary or modify those requirements by a mere statute; only a constitutional amendment can change them. A legislative attempt, by mere statute, to modify the constitutional requirements for passing legislation is unconstitutional.

Consider the following hypothetical: In 2018, the General Assembly passes a law creating a new program to provide funding for victims of domestic violence for a period of ten years. The new statute includes a provision stating that the statute cannot be modified or repealed by a future legislature except by a 2/3 votes of both houses of the General Assembly. Is such a provision constitutional? No. As the Attorney General recently stated, “[t]he Supreme Court has long held that “[o]ne [legislature cannot control the exercise of the powers of a succeeding [legislature.]” AG Op. 2015-05 at p. 7 (citing Patterson v. Dempsey, 152 Conn. 431, 439 (1965); Preveslin v. Derby & Ansonia Developing Co., 112 Conn. 129, 140 (1930); see also State v. Staub, 61 Conn. 553, 564-565 (1892)). Because the constitution provides that a bill “passes” a house of the General Assembly by majority vote, a legislature cannot, via a mere statute, impose a higher voting burden on a future legislature.

Significantly, because a legislature cannot lawfully enact a statute that imposes a higher voting burden on a subsequent legislature than is constitutionally required to pass a bill into law, it logically follows that a legislature should not be able to enact a statute that relieves a future legislature (or governor) of having to meet the minimum constitutional requirements for passing a bill into law. Yet, that is exactly what General Statutes § 5-278(b) does.

III.  SERA and The “Deemed Approval” of Collective Bargaining Agreements and Arbitration Awards. 

     A.  General Statutes § 5-278(b)

Before 1977, wages, hours, benefits and other terms and conditions of public employment in the State of Connecticut were established by the legislature through statutes passed in accordance with the constitutional procedures described in Part II. SERA changed things dramatically.

Under SERA, the Office of Labor Relations generally serves as the governor’s designated representative, through the Secretary of the Office of Policy and Management, for collective bargaining matters for state employees in the executive branch, other than the constituent units of Higher Education, the State Board of Education and the Division of Criminal Justice.

Once the state and a particular collective bargaining unit have successfully concluded negotiations over a new CBA, or have gone to arbitration following an impasse in negotiations and an Award has issued, the CBA or the Award must be submitted to the General Assembly for “approval” in accordance with the provisions of § 5-278(b). That section states in full:

Any agreement reached by the negotiators shall be reduced to writing. The agreement, together with a request for funds necessary to fully implement such agreement and for approval of any provisions of the agreement which are in conflict with any statute or any regulation of any state agency, and any arbitration award, issued in accordance with section 5-276a, together with a statement setting forth the amount of funds necessary to implement such award, shall be filed by the bargaining representative of the employer with the clerks of the House of Representatives and the Senate within ten days after the date on which such agreement is reached or such award is distributed. The General Assembly may approve any such agreement as a whole by a majority vote of each house or may reject such agreement as a whole by a majority vote of either house. The General Assembly may reject any such award as a whole by a two-thirds vote of either house if it determines that there are insufficient funds for full implementation of the award. If rejected, the matter shall be returned to the parties for further bargaining. Once approved by the General Assembly, any provision of an agreement or award need not be resubmitted by the parties to such agreement or award as part of a future contract approval process unless changes in the language of such provision are negotiated by such parties. Any supplemental understanding reached between such parties containing provisions which would supersede any provision of the general statutes or any regulation of any state agency or would require additional state funding shall be submitted to the General Assembly for approval in the same manner as agreements and awards. If the General Assembly is in session, it shall vote to approve or reject such agreement or award within thirty days after the date of filing. If the General Assembly is not in session when such agreement or award is filed, it shall be submitted to the General Assembly within ten days of the first day of the next regular session or special session called for such purpose. The agreement or award shall be deemed approved if the General Assembly fails to vote to approve or reject such agreement or award within thirty days after such filing or submission. The thirty-day period shall not begin or expire unless the General Assembly is in regular session. For the purpose of this subsection, any agreement or award filed with the clerks within thirty days before the commencement of a regular session of the General Assembly shall be deemed to be filed on the first day of such session.

Thus, under § 5-278(b), a CBA can be approved in two ways: (1) a majority of both houses of the General Assembly may vote to approve it; or (2) the General Assembly may do nothing for thirty days, in which case the CBA is “deemed approved.” Similarly, an Award reached after an impasse in negotiations may be “deemed approved” the same way, i.e., by the failure of the General Assembly to take any action within thirty days. And if the General Assembly wants to reject an Award, it must do so by a 2/3s vote of either house, which vote must be based on a determination that there are “insufficient funds for full implementation of the award. See also Conn. Gen. Stat. § 5-276a(e)(6) (arbitrator’s award “shall be final and binding upon the employer . . . unless rejected by the legislature as provided in section 5-278. . . .” (Of course, given the taxing power of the state, it is no surprise that state employees rarely, if ever, accept the argument that there are insufficient funds to implement an Award.)

Historically, when the two houses of the General Assembly have acted to express their “approval” (or lack thereof) of a CBA or an Award, they have done so through House and Senate resolutions. For example, in 2015 the state police union and the state successfully concluded negotiations over a new CBA. On April 2, 2015, the new CBA was submitted to the clerks of the House of Representatives and the Senate for approval pursuant to § 5-278(b). As drafted, House Resolution No. 29 and Senate Resolution No. 32 each proposed approval of the CBA. The House and Senate joint committee on Appropriations voted to approve the CBA, but neither the full House nor Senate voted on their respective resolutions. Yet, the CBA was “deemed approved” under § 5-278(b) because the General Assembly did not reject the agreement.

Similarly, the University of Connecticut recently concluded negotiations with one of its employee unions. The new CBA was submitted to the General Assembly on February 8, 2016. House Resolution No. 3 and Senate Resolution No. 4 propose approval of the new agreement. On consideration by the joint House and Senate committee on Appropriations, the Senate resolution failed (on a 6-6 vote), while the House resolution passed (on a vote of 24-19). (Given the state’s fiscal situation, not to mention the political situation at the Capitol, UConn has withdrawn the submission of the CBA and apparently will try to renegotiate it, rather than face possible rejection.)

     B.  “Deemed Approval” of CBAs and Awards is inconsistent with the lawmaking process set forth in the state constitution. 

Hopefully, it is clear to the reader how SERA turns the constitutional lawmaking process on its head. Before SERA, the terms and conditions of state employment were set by statutes, which began as bills and then became laws through the constitutional process described earlier. Under SERA, however, the executive branch, through the governor’s designee, negotiates with state employee unions to reach an agreement, which becomes binding on the state if the General Assembly does nothing. Although the General Assembly has the option of affirmatively voting to approve or reject a CBA or an Award, it generally follows the “deemed approved” route, which means that members of the General Assembly rarely have to explain to their constituents why they voted to approve a particular CBA or Award.

The reader with (or without) a legal background may rightly ask, “How is this possible? How can a CBA have the force of law if it hasn’t been approved in accordance with constitutional requirements for making laws?” This is an important question. The short answer is that courts have held that legislatures may “delegate” their lawmaking powers under certain circumstances. See, e.g., Norwalk Teachers Ass’n v. Board of Education of City of Norwalk, 138 Conn. 269 (1951); Office of Legislative Research Report 94-R-0596 (dated June 23, 1994).

The so-called “nondelegation doctrine” is controversial, and a discussion of the doctrine is beyond the scope of this post. Whether SERA is constitutional, however, is not the issue that this post addresses. Rather, the question is whether SERA’s “deemed approved” provision is good public policy. With the benefit of nearly 40 years of SERA history in Connecticut, the General Assembly should revisit that question.

IV.  CONCLUSION

Our democratic system of government only works if elected representatives are held accountable for their votes. If the voting public generally approves of a particular elected official’s voting record, the official is reelected. If the voting public generally disapproves of an official’s voting record, the official needs to find a new job.

This system breaks down, however, if major policy decisions—like determining state employee salaries, benefits and other costs amounting to nearly 38% of the state budget[5]—can be made without any member of the General Assembly having to vote on the wisdom of the policy decisions.

In the current fiscal crisis facing the State of Connecticut, it is not enough for the General Assembly and the governor to raise questions about the costs associated with particular CBAs or Awards that come before them this session. The General Assembly and the governor should repeal the “deemed approved” provision in § 5-278(b).

[FOOTNOTES]

[1] There are many different types of arbitration awards in the context of collective bargaining and union employment. For example, if a state employee has a particular grievance with the agency that employs her, the dispute may be resolved through arbitration. For the purpose of this paper, however, the term “Award” refers solely to arbitration awards entered after an impasse in collective bargaining negotiations.

[2] Article Fourth, § 15 provides in full: “Each bill which shall have passed both houses of the general assembly shall be presented to the governor. Bills may be presented to the governor after the adjournment of the general assembly, and the general assembly may prescribe the time and method of performing all ministerial acts necessary or incidental to the administration of this section. If the governor shall approve a bill, he shall sign and transmit it to the secretary of the state, but if he shall disapprove, he shall transmit it to the secretary with his objections, and the secretary shall thereupon return the bill with the governor’s objections to the house in which it originated. After the objections shall have been entered on its journal, such house shall proceed to reconsider the bill. If, after such reconsideration, that house shall again pass it, but by the approval of at least two-thirds of its members, it shall be sent with the objections to the other house, which shall also reconsider it. If approved by at least two-thirds of the members of the second house, it shall be a law and be transmitted to the secretary; but in such case the votes of each house shall be determined by yeas and nays and the names of the members voting for and against the bill shall be entered on the journal of each house respectively. In case the governor shall not transmit the bill to the secretary, either with his approval or with his objections, within five calendar days, Sundays and legal holidays excepted, after the same shall have been presented to him, it shall be a law at the expiration of that period; except that, if the general assembly shall then have adjourned any regular or special session, the bill shall be a law unless the governor shall, within fifteen calendar days after the same has been presented to him, transmit it to the secretary with his objections, in which case it shall not be a law unless such bill is reconsidered and repassed by the general assembly by at least a two-thirds vote of the members of each house of the general assembly at the time of its reconvening.”

[3] Examples of state constitutional provisions that require more than a majority vote include: Article Third, § 6(a) (2/3 vote required for plan of redistricting); Article Third, § 13 (2/3 vote required to expel member of House or Senate); Article Fourth, § 15 (2/3 vote required to override governor’s veto); Article Fifth, § 2 (2/3 vote required for judicial impeachment); Article IX, § 2 (2/3 vote required for impeachments); Article Twelfth, § 2 (3/4 vote required to proposed amendments to constitution).

[4] The federal constitution establishes a comparable procedure for the enactment of legislation. See United States Constitution, Article I, sec. 7, cl. 2 (“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approves he shall sign.”).

[5] See, e.g., Dearborn Fire Fighters v. City of Dearborn, 394 Mich. 229 (1975) (questions of public policy concerning the conditions of public employment, the levels and standards of public services, and the allocation of public revenues” are legislative and political questions).