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LABOR DEPAKTMENT
CONNECTICUT STATE BOARD OF LABOR RELATIONS
In the matter of :
:
DISTRICT 1199, NATIONAL UNION OF :
HOSPITAL AND HEALTH CARE EMPLOYEES : Case No. SUPP-5543
AND THE PUBLIC EMPLOYEES FEDERATION :
:
- and - :
:
CONNECTICUT EMPLOYEES UNION :
"INDEPENDENT", INC. :
:
In the matter of :
:
CONNECTICUT STATE EMPLOYEES ASSOCIATION : Case No. SUPP-5621
:
- and - :
: Decision No. 1951
CONNECTICIJT EMPLOYEES UNION :
"INDEP~PD~MT"
Y 1 ._) , IVV. : October 20, 1980
AP
- -P - Em A- R- AeN-C-E-S -:
Edward T. Lynch, Jr., Esq.,
for CEUI
John M. Creane, Esq.,
for District 1199
Robert J. Krzys, Esq.,
for CSEA
DECISION
and
DISMISSAL OF COiWWII\!TS
On December 17, 1979 the Connecticut Employees Union
"Independent", Inc. (CEUI) filed with the Connecticut State Board
of Labor Relations (Board) a complaint (SUPP-5543) alleging that
District 1199, National Unicn of Hospital and Health Care 'Employees,
under the title of Public EmnloyeesxFederntion (PEF), a confedera-
tion of District 1199, Service Emoloyees International Union, and
Hotel and Restaurant Emoloyees Union, began a public campaign to
oust the CEUI as exclusive bargaining agent for the NP-2 State
employee bargaining unit. The CEilI alleges violations of the
State Employee Relations Act (Act) in that PEF:
used misleading or false publications and information;
[:] k nowingly conducted a campaign during the course of
ongoing collective bargaining;
(cl conducted a campaigns during the effective period of
a bargaining agreement;
(d) engaged in a campaign prior to the recognized window
period;
interfered with the bargaining process;
i Y1 interfered with the right of CEUI to act for and on
behalf of the employees it represents;
(lx? conspired with certain stewards, agents, and a former
officer of CXJI to foment discord, and interfere
[#it!: the cc!.1 rcttve b:!?.~~i.nl.r7y: process.
On February 5, 1980, CEUI filed with the Board a complaint
SUPP-5621) against the Connecticut State Employees Association
CSEA) which was substantially identical to that outlined above.
The complaints were consolidated by the Agent of the Board, and
were brought before the Board for hearing on May 21, 1980. All
parties appeared on that date, were represented by counsel, and
were fully heard.
At the hearing, the Board requested that CEUI file an offer
of proof and that the parties file briefs on the question of
whether the facts alleged in such offer, if proven, could support
CEUI's claims that respondents had engaged in prohibited practices
under the Act. On June 19, 1983, CEUI filed its Offer of Proof
with the Board and briefs were subsequently filed by all parties.
Based upon CEUI's Offer of Proof, including proposed exhibits
(the offer of proof is reprinted below without exhibits), the
Board makes the following conclusions of law, discussion and order.
OFFER OF PROOF
CONNECTICUT EMPLOYEES UNION "INDEPENDENT"
xxx
The CEUI Inc. (CEUI) is a labor organization
withiA*the mean& of the State Employee Relations Act (Act).
2. The Connecticut State Employees Association (CSEA)
is a labor organization within the meaning of the Act.
3. District 1199, National Union of Hospital and
Health Care Employees is a labor organization within the
meaning of the Act.
4. The Public Employee Federation (PEF) is not a
labor organization within the meaning of the Act, but is
a confederation of District ?199, Service Employees Inter-
national Union and Hotel and Restaurant Employees Union.
5. On October 4, 1978, the State Board of Labor
Relations (SBLR) issued Decision No. 1686 (SE-4725) which
directed elections be held ,to determine the exclusive
representative for collective bargaining of all employees
in, inter alia, the NP-2 Unit (Maintenance and Service Unit).
6. On November 14, 15 and 16, 1978, an election was
conducted in Case No. SE-4725, and on November 17, 1978,
Board Agent John W. Kingston filed a Report Upon Secret
Ballot (Ex. No. 7).
7. On or about November 27, 1978, the CSEA filed a
Motion to Set Aside and Objections to Election (Ex. No. 8)
in Case No. SE-4725.
On or about December 7 1978 the CSEA withdrew its
objections to the conduct of th& Unit'NP-2 election (Ex.
No. 9).
9. On January 4, 1979, in Decision No. 1686-C, the
SBLR certified the CEUI as the exclusive representative
of all employees in the classifications composing Unit NP-2.
The designation took effect: II(l) forthwith, for the purpose
of negotiating a successor to the existing contract covering
said employees.ti (6x. No. IO).
10. On January 16, 1979, the CEUI, through its Chief
'. Negotiator, Edward T. Lynch, Jr., requested that the State
commence negotiating with the CEUI.
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11. Thereafter, negotiating sessions were held \
\
regularly until the presentation of the proposed contract
for vote on or about March 20, 1980. Negotiating sessions
were not held from approximately January 3 through February
29, 1980, while the parties were at issue before the fact-
finder (See paragraphs 16, 1'7 below).
12. On August 24, 1979, Peter Allen, Chief Negotiator
for the State, requested that the State Board of Mediation
and Arbitration initiate factfinding in accordance with
Connecticut General Statute Section 5-277(a) (Ex. No. 14).
13. On or about September 26, 1979, and October 2,
+.-- 1979, the State and the CEUI entered into an Agreement
----.--. extending the contract (Ex. No. II) in effect July 1, 1977,
through June 30, 1979, until a successor agreement was reached.
14. On November 5, 1979, Peter R. Blum was appointed
factfinder in Case No. 798O-CSFF-6 (Ex. No. 16) and on
November 26, 1979, Peter R. Blum withdrew from the position
of factfinder (Ex. No. 18).
On December 3 1979 David Weinstein was appointed
factf%er in Case No. ?980-Ch?-6.
16. Factfinding sessions were held on January 3, 4,
10, 11 and 31, 1980, and February 1, 1980, at which hearings
both parties presented evidence to factfinder Weinstein.
17. On or about February 11, 1980, the State and the
CEUI submitted briefs to the factfinder, and on February 29,
1980, the factfinder filed his report (Ex. No. 22).
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the State and the CEUI's President, Sal Perruccio, (Pro-
posed Ex. 29, 30) that the Independent is in a "shambles",
that the Independent Union is allowing the State to delay
the maintenance contract (Proposed 2:. 39) that there is
no advantage for the workers in a three year contract,
that maintenance employees rights are in danger (Proposed
Ex. 29), that the Independent should be disowned and
repudiated (Ex. 24).
24. Many of the PEF publications acknowledge in their
own text that negotiations are ongoing yet they continue to
deride CEUI efforts and to encourage discontent within the
CEUI.
25. The publications and actions outlined below
clearly, admittedly constitute an organizational campaign
aimed at the ouster of the CEUI by way of a new election
(Ex. 24, 25, Proposed Ex. 28, 32, 34, 35, 36, 37, 38, 39,
40).
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occurred a drastic increase in the number of phone calls
to the office of the CEUI in Middletown and to the rcsi-
dences of its officers and agents at all hours of the
night and during weekends and holidays. Many of the
callers asked of the truth of various 1199 and CSXA alle-
gations and suggestions that the contract would or would
not include various clauses. Specifically, there were
questions regarding the existence of an 1199 negotiating
committee, the possible loss-Q of health benefits, longevity,
increments and retroactive pay due to the extended nego-
tiations.
42. As a result of the confusion and discontent
fomented by the CSEA, PEF and 1199, the CEUI was forced
to hire new staff members and to divert existing staff
from other duties to rebut and counter all charges. Pro-
tracted negotiations were thereby further prolonged to
the disadvantage of CEUI. Additionally, it was necessary
for the CEUI to install a new and more sophisticated system
to accommodate the drastic increase in calls. Furthermore,
the confusion and discontent caused by the actions of the
CSEA and 1199 required the CXJI to draft, print and dis-
tribute its own pamphlet s and other literature to correct
any misconceptions due to the misleading and false state-
ments of CSEA, 1199 and PEF. The additional cost to the
CEUI ranged between 820,OCO.OO and $30,000.00.
43. As a further result of the campaigns of CSEA and
PEF and the disruption and harassment caused thereby, the
CEUI bargaining stance and credibility were significantly
weakened and the intense, good faith efforts of many months
of negotiating were jeopardized.
xxx
Conclusions of Law
1. The conducting of an organizational campaign by PEF for
the NP-2 bargaining unit, while C.WI was conducting collective
bargaining negotiations, did not constitute a violation of the Act.
2. The statements made by PEF in its organizational campaign
did not violate tie Act, unless the statements were false and were
made with either knowledge of their falsity or with reckless dis-
regard for their truth or falsity.
3. Since no allegation has been made in CZUI's Offer of Proof
that PEF's statements were made with either knowledge of falsity or
with reckless disregard for their tru-th or falsity, there is no
violation of the Act.
Discussion
The following paragraph from CEUI's brief states the essence
of its claim in this case.
In a nutshell, the CEUI claims that the respondents
have publicly campaigned, during the course of ongoing
negotiations, to decertify the CEUI and have thereby
interfered with the barnainins urocess. the statutorv
duty of the CEUI to barGain -e~%?I.usivel$,
- - and the sta'tu-
tory right of the membera of th- W-2 unit to have the
CEUI bargain interference-free. The CEUI, by virtue of
its election (Offer, i/G) and certification (Offer, $9)
has the ri ht, C.G.S. Sec. 5-271(c), and the duty, C.G.S.
sec. 271(e F to bargain as t:e exclusive representative.
The resuond&ts, by their utlnri.iT~i~e~ssault on the
CEUI, have effectively interx*red with the Section
5-271(a) rights of W-2 members. C.C.S. Sec. 5-272(b)(l).
CEUI makes much of the fact that PEF's organizational campaign
did not occur at a tine when it was clearly timely to file a decer-
tification and representation petition. This, according to CEIJI,
demonstrates an intent by PEE' to cast C%UI in a negative light in
the eyes of the employees whom CEUI represents and to disrupt CEXJI
bargaining.
As an initial point of departure, we do not believe organiza-
tional campaigning should be restricted only to the time frames
immediately preceding and during those periods when it is clearly
timely to file a petition. Although it is true that we rarely \\
entertain petitions at times other than those specified in our
regulations, exceptions are permitted, and it would not be proper
to choke off organizational campaigns simply because a resulting
petition may ultimately be found untimely. Indeed it is common
place for out-unions to maintain a continual organizational campaign
of limited intensity throughout tne term of another union's incum-
bency as exclusive bargaining agent, No doubt, as CEUI.argues,
organizational campaigns may affect the attitude of bargaining unit
employees toward the incumbent unions and necessitate the expense
of mounting a defense campaign. CZJI makes an accurate point in
arguing that intense campai&3-s, such as PEF's, may have some effect
on stability in labor relations; but despite these harms to the
incumbent union and potential threat to stability of the employer-
union relationship, other labor relations principles are served by
continuing open discussion and debate concerning the essentially
political question of what labor organization, if any, should repre-
sent the bargaining unit. CiGJI's Offer of Proof and exhibits do
not demonstrate an attcmot by P%? to bargain with the State con-
cerning the NP-2 bargaining uni-i;. Such attempts would constitute
illegal interference with CZUi's status as exclusive bargaini:lg
agent for the Pip-2 unit. Vhat is demonstrated is political speech
which we believe is protected by the first amendment of the federal
constitution. By its organizatiocal campaign, PEF sought to per-
suade employees in t!lc i;P-2 bargaini?.g unit to exercise their
franchise as employee-electors in favor oi" PEF and against CEUI.
To this end, PEF accumulateci intent cards whic!x it intended to file
with the Dvard to effect a representation election. These cards
were never filed, zntl althou6h we do not on the present record
know for certain wh:: -they were not, the most li!!ely explanation
is that PEF's camDalgn was not successr^ul in obtaining the requisite
percentage of cards. In any event, PEF's statements, broth oral and
written during the course of the campaign, were clearly within ti:e
realm of political sneocn and suck speech is "at the heart of first
amendment protection." i3uckley v. Valco, 424 U.S. 1, 4 (1976).
Rights of free speech en,joy a soecial protection under law
and this has been reneatedly affirm& by the United States Supreme
<I .'.310
Court. I.!arch \rV ,'7,::,r.-?a,
id 326 U.S. 5Ol;~Thornhi_!.l v. Al;;bona,
U.S. 88;-Tie~ York j:.:.:?s Co. v. SuK+i~~,~~' U.S. 254. ikrrow
exception~--'---~-~
ncve oeaii loc::d CO the 11rs'c amendment's protections
of freedom of speech, but these are iiniited, e.g., no protection
for speech or writing used as an integral part of conduct in vio-
lation of criminal statute, Ci.b:~mc:r v. Einnire Stornqe & Ice Co.,
336 U.S. 430; publication in-"m?Axo.t' n:~~i.oi~nl war effort,
Near v. iJlnncsoi;a 253 U.S. 657; defamatory statements made with
knowledge of'>!ity or with reckless disregard for the truth,
New York yALP9
Tjnes v C:~illi.van _-L) suer:'* s;lecifically not excluded from
3irst amcncll,ient protection arc eqloyee statements made az a public
meeting to a public e.nployer coi~cerning sub,jects of bargaining then
under consider*ation between the c111plsyer arid the employee's exclu-
sive bargaining re;>resenxtive, Cit_llof !sIadisnn v. Wisconsin
B~plovmant Relc\t.ion:r Col;,.nisr,ioil
w-9 T23 U.S.167.
Consistent with these first amendment decisions, the U. S.
Supreme Court has found that Section 7 of the National Labor Rela-
tions Act (29 U.S.C. Snc. 157), which guarantees to employees the
right "to form, join, or assist" labor organizations, affords
protection for uniun ireu Sj'jr:CI;1!. lLiA3 3. Lil'~iv~:l~ti Local ij9,
362 U.S. 274. In more recent cases, the Court has expanded upon
-7-
and emphasized the broad scope of this protection.
Basic to the right guaranteed to employees in Section 7
to form, join or ass ist labor organizations, is the
right to engage in concerted activities to persuade
other employees to join for their mutual aid and pro-
tection. Indeed, even before the Norris-LaGuardia Act
and the Wagner Act, this Court recognized the right in
unions to 'use all lawful propaganda to enlarge their
membership', Letter Carriers v. Austin, 418 US 264,
278.
X x x
s/ !lenneth A, Stroble
Kenneth t;. Stroble
\\
s/ Patricia V.
Low
Patricia V. Low
TO:
Jerome Brown, Vice President
District 1133 CERTIFIED (RRR)
-‘---A-- _ 150 Temple Street
... Ner! Haven, Connecticut 06510
John M. Creane, Esq.
Coughlin, Creane, Malone & Milne
92 Cherry Street
Milford, Connecticut 06460
Salvatorc J. Perruccio, President
Conn. Employees Union t'Independent'l, Inc.
72 Court Street CERTIFIED (WQ)
Middletown, Connecticut 06457
Edward T. Lynch, Jr., Eso.
33 Lexington Street
P. 0. Box 1598
New Britain, Connecticut 06050
v!illiam Hickey, Executive Director
Connecticut *State Enployees Associatin CERTIFIED (RRR)
760 Capitol Avenue
Hartford, Conr,ecticut 06106
Robert J. Krzys, Esq.
C.S.E.A.
760 Capitol Avenue
Hartford, Connecticut 06106
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