LANSING ? Gov. Jennifer Granholm and her administration deliberately committed unfair labor practices when they decided to rescind a 3 percent pay raise to nonunion state employees, an administrative law judge ruled Tuesday. But the move will not lead to a restoration of the raise, at least not yet.
The state dropped the raise for 14,000 employees to save $45 million toward the 2010-11 fiscal year budget. Judge William Hutchens singled out for criticism Sharon Bommarito, director of the Office of State Employer, who refused to testify before Hutchens despite a subpoena, saying the state knew the penalties for committing unfair labor practices by dropping an agreement with the nonunion employees for a raise were minimal.
“It is reasonable to conclude that at a minimum, Bommarito, the governor and her legal counsel concluded that the interest of saving $45 million outweighed the possibility of a negative outcome in an unfair labor practice hearing and made the decision to repudiate the consensus agreement, knowing full well that their actions may be violative of Civil Service Rules,” Hutchens wrote. “They viewed the consensus agreement and any effort to enforce it in this process as essentially toothless, with the worst-case scenario being a finding of an unfair labor practice and the possibility of the requirement of posting of a notice that the employer had committed an unfair labor practice.”
Hutchens decided, considering the state’s conduct in the hearing, to order it to pay attorney fees for the organizations representing the nonunion employees. One of the attorneys involved said that figure could approach $100,000. The state also will have to post notices admitting to unfair labor practices in state offices and on the Office of the State Employer website.
Bommarito’s decision not to testify ran afoul of past precedents, Hutchens said. He cited times when former Attorney General Frank Kelley and former Secretary of State Richard Austin testified before administrative law judges. Hutchens noted that not only were they directors of departments, a higher rank than Bommarito, but also elected officials, who typically have greater protections from testifying in civil matters.
Hutchens held that the state’s conduct amounted to coercion, interference and discrimination in violation of unfair labor practices.
“The decision-maker who decided that saving $45 million was worth the cost of a potential unfair labor practice charge ignored the fact that in the process she was destroying the better part of 30 years of trust that had been built up between the parties within this labor relations system,” he wrote. “No such trust can be expected to exist at this point.”
Hutchens also blasted the rationale for the state to rescind the raise, noting it was the state that suggested the language agreed to between it and the nonunion employees.
“When viewed in isolation, the employer’s claim of fiscal responsibility may seem logical, but in the broader context of granting and extending for an additional year a 3 percent general wage increase to 35,000 bargaining unit employees while recommending that it be denied to the membership of the charging parties, that logic fails,” he wrote. “To come into this forum and claim that it was not unable to pay, yet it would have been irresponsible for it to pay, when it had just negotiated an extension of the same increase with four other bargaining units without even asking them to discuss their 3 percent general wage increases, amounts to either a frivolous defense or something very much like it.”
Granholm spokesperson Katie Carey said the governor’s office had no comment on any aspect of the ruling other than to say the administration plans to appeal to the Employment Relations Board.
Robert Huber, an attorney representing the Association of State Employees in Management, called the decision a rare rebuke for the state.
“There has never been an action like this before in the history of state classified civil service,” he said. “If this decision holds, I doubt we’re ever going to see this type of conduct in the future.”
Huber said he and other attorneys involved with the case would be reviewing a potential appeal of Hutchens ruling against the employees’ request for damages equal to the 3 percent raise they would have received. They also will be looking at taking the matter to the courts, he said.
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