UNITED STATES DISTRICT COURT DISTRICT OF ......DJK/33813/2/885983v10 06/30/10-HRT/DJK UNITED STATES...

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UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

CIVIL ACTION NO.

3:03-CV-221 (AVC)

JUNE 30, 2010

STATE EMPLOYEES BARGAINING AGENT

COALITION, ET AL,

Plaintiffs,

v.

M. JODI RELL, ET AL,

Defendants.

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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

Respectfully Submitted,

Daniel J. Klau (ct17957)

Bernard E. Jacques (ct12293)

McElroy, Deutsch, Mulvaney

& Carpenter/PH, LLP

Goodwin Square

225 Asylum Street

Hartford, CT 06103-4302

Tel. No. (860) 522-5175

Fax No. (860) 522-2796

Counsel for the Defendants

Case 3:03-cv-00221-AVC Document 231 Filed 06/30/10 of 41

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................ ii

INTRODUCTION ............................................................................................ 1

PROCEDURAL HISTORY AND STATUS OF CLAIMS ............................................ 4

STATEMENT OF UNDISPUTED FACTS.............................................................. 7

I. THE LEGALLY RELEVANT FACTS REFLECT A LABOR DISPUTE,

NOT A FIRST AMENDMENT VIOLATION. ................................................... 7

ARGUMENT ................................................................................................. 10

I. THE PLAINTIFFS HAVE PURPOSELY, BUT IMPROPERLY, FRAMED THEIR

COMPLAINT AS A FIRST AMENDMENT “RETALIATION” CLAIM. ................ 11

A. Pickering And Its Progeny Are Limited To Cases Involving The Managerial

Discharge Or Discipline Of A Specific Individual Based On Expressive Conduct

Unique To That Individual. ....................................................................... 12

II. EVEN IF THE AMENDED COMPLAINT IS PROPERLY FRAMED AS A

PICKERING CASE, THE DEFENDANTS ARE ENTITLED TO SUMMARY

JUDGMENT. ........................................................................................... 15

A. The First Amendment Does Not Protect The Self-Interested Economic Activities

Of A Union In The Context Of A Labor Dispute. ............................................ 17

B. The Plaintiffs‖ Rejection Of Governor Rowland‖s Concession Demands Does Not Pass

The “Public Concern” Test Under Garcetti v. Ceballos or Connick v. Myers. .......... 20

C. Even If The Plaintiffs Engaged In Constitutionally Protected Conduct, The Layoffs

Were Justified Under The Pickering Balancing Test. ........................................ 23

III. BY ENTERING INTO COLLECTIVE BARGAINING AGREEMENTS WITH THE

STATE, THE PLAINTIFFS WAIVED THEIR FIRST AMENDMENT CLAIMS. ...... 26

IV. PLAINTIFFS‖ ALTERNATIVE CONSTITUTIONAL CLAIMS ARE MERITLESS. ... 30

CONCLUSION ............................................................................................... 38


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TABLE OF AUTHORITIES

Cases

Abood v. Detroit Bd. of Educ., 431 U.S 209 (1977) ............................................. 27, 28

Arnett v. Kennedy, 416 U.S. 134 (1974)................................................................. 26

Bellefonte Re Ins. Co. v. Argonaut Ins. Co., 757 F.2d 523 (2d Cir. 1985) ........................ 3

Boals v. Gray, 775 F.2d 686 (6th Cir. 1985) ........................................................... 19

Branti v. Finkel, 445 U.S. 507 (1980) ................................................................... 16

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ......................................................... 11

City of Hartford v. Hartford Mun. Empls. Ass'n, 259 Conn. 251 (2002) .......................... 39

City of San Diego v. Roe, 543 U.S. 77 (2004) ......................................................... 18

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805-806 (1999) ............................ 11

Cobb v. Pozzi, 363 F.3d 89 (2d Cir. 2004) ................................................... 13, 17, 18

Cohen v. Cowles Media Co., 501 U.S. 663 (1991) .................................................... 31

Connecticut State Federation of Teachers, et al. v. Bd. of Educ. Members, et al.,

538 F.2d 471 (2d Cir. 1976) ...................................................................... passim

Connick v. Myers, 461 U.S. 138 (1983) .................................................. 12, 14, 25, 26

County of Sacramento v. Lewis, 523 U.S. 833 (1998) ........................................... 35, 36

D. H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972) ............................................. 32

Elrod v. Burns, 427 U.S. 347 (1976) ..................................................................... 16

Emhart Indust., Inc. v. Amalgamated Local Union 376, UAW., 190 Conn. 371 (1983) ........ 39

Estate of Barber v. Sheriff’s Dept., 161 N.C. App. 658, 589 S.E.2d 433 (2003) ............... 32


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Ezekwo v. N.Y.C. Health & Hospitals Corp., 949 F.2d 775 (2d Cir. 1991) ................. 25, 26

Fibreboard Paper Products Corporation v. N.L.R.B., 379 U.S. 203 (1964) ..................... 29

First Nat’l Maintenance Corp. v. N.L.R.B., 452 U.S. 666 (1981) .................................. 29

Garcetti v. Ceballos, 547 U.S. 410 (2006) ........................................................ passim

Gibbs v. CIGNA Corp., 440 F.3d 571 (2d Cir. 2006) ................................................ 11

Graham v. Connor, 490 U.S. 386 (1989)) .............................................................. 35

Gregorich v. Lund, 54 F.3d 410 (7th Cir. 1995) ....................................................... 19

Hanover Township Federation of Teachers v. Hanover Community School Corp.,

457 F.2d 456 (7th Cir. 1972) .............................................................. 3, 19, 20, 21

Int’l Broth. of Teamsters, et al., v. Logistics Support Group, 999 F.2d 227 (7th Cir. 1993) .. 29

Jankowski-Burczyk v. Ins, 291 F.3d 172 (2d Cir. 2002) .............................................. 37

Lake James Community Volunteer Fire Dept., Inc. v. Burke, 149 F.3d 277 (4th Cir. 1998) .. 31

Lawrence v. Texas, 539 U.S. 558 (2003) ................................................................ 36

Leonard v. Clark, 12 F.3d 885 (9th Cir. 1993) .............................................. 31, 32, 33

McEvoy v. Spencer, 124 F.3d 92 (2d Cir. 1997) ....................................................... 16

Messina v. Dept. of Job Service, 341 N.W.2d 52 (Iowa 1983) ...................................... 32

N.L.R.B. v. American National Insurance Co., 343 U.S. 395 (1952) .............................. 22

N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) ..................................... 22

Northwest Airlines, Inc. v. Air Line Pilots Assoc., Int’l, 808 F.2d 76 (D.C. Cir. 1987) ....... 38

Paragould Cablevision, Inc. v. Paragould, 930 F.2d 1310 (8th Cir. 1991) ...................... 31

Perry v. Sindermann, 408 U.S. 593 (1972) ............................................................. 15

Pickering v. Bd. of Educ., 391 U.S. 563 (1968) .............................................. 2, 12, 13


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Pierce v. St. Vrain Valley School District, 981 P.2d 600 (Colo. 1999) ............................ 31

Piscottano v. Murphy, 511 F.3d 247 (2d Cir. 2007) ............................................. 17, 27

Rankin v. McPherson, 483 U.S. 378 (1987) ............................................................ 14

Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) ........................................... 16

Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463 (1979) ....... 1, 16, 21

State Employees Bargaining Agent Coalition, et al. v. John G. Rowland, et al.,

494 F.3d 71 (2d Cir. 2007) ........................................................................... 6, 9

Trump v. Trump, 179 App. Div. 2d 201, 582 N.Y.S.2d 1008 (1992) ............................. 32

Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001) .......................................................... 36

United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960) .... 38

Verizon New England, Inc. v. Public Utilities Commission, 866 A.2d 844 (Me. 2005) ........ 32

Waters v. Churchill, 511 U.S. 661 (1994) ..................................................... 12, 14, 27

Wilkicki v. Brady, 882 F. Supp. 1227 (D.R.I. 1995) .................................................. 31

Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir. 2008).................................................... 36

Statutes

Conn. Gen. Stat. § 5-270(d) ............................................................................... 24

Conn. Gen. Stat. § 5-272 ................................................................................... 37

Rules

Fed. R. Civ. P. 56(c) ........................................................................................ 10

Constitutional Provisions

Connecticut Constitution, Art. III, Sec. 18(a) ........................................................... 1

Connecticut Constitution, Art. IV, Sec. 12. .............................................................. 1


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INTRODUCTION

“The First Amendment is not a substitute for the national labor relations laws.” Smith

v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463, 464 (1979).

Notwithstanding the Supreme Court‖s admonition, the Plaintiffs—13 State employee unions and

a bargaining coalition (“SEBAC”) that represents them collectively in certain matters—seek to

transform a labor dispute with the State of Connecticut (the “State”) into a First Amendment

“retaliation” case. The labor dispute arose amidst a major budget crisis in 2002-2003, when

the State sought concessions from the Plaintiffs. When the Plaintiffs refused to agree to the

State‖s demands, the State laid off approximately 2,800 state employees.

On three occasions during the past twenty years—in 1991, 2002-2003 and 2009-2010—

massive budget deficits have forced the State‖s governors to make extraordinarily difficult

decisions about the size and cost of the State work force as part of their constitutional

obligation to “take care that the laws be faithfully executed,” including the State‖s

constitutional obligation to balance the budget. See Connecticut Constitution, Art. III, Sec.

18(a); Art. IV, Sec. 12. In 1991 and 2009, layoffs were avoided, in part, because the unions

agreed to concessions. In 2002-2003, however, layoffs ensued when the unions refused to

grant concessions.

The Second Circuit‖s astute observation in Connecticut State Federation of Teachers, et

al. v. Bd. of Educ. Members, et al., 538 F.2d 471 (2d Cir. 1976) could not be more apt here:

This case presents the all-too-familiar situation in which a dispute, commonplace

in the private sector, becomes constitutional litigation by virtue of the fact that

public employers . . . are involved, rather than private entities, and the

plaintiffs are, therefore, able to turn a problem of labor relations into a

constitutional issue.


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Id. at 478. Moreover, by framing their labor dispute as a First Amendment retaliation case

the Plaintiffs put the Court in the untenable position of second-guessing the subjective motives

of then Governor John G. Rowland‖s decision to reduce the size of the State work force.

For at least five reasons, the Court should reject the Plaintiffs‖ attempt to

“constitutionalize” their labor dispute with the State. First, the Plaintiffs have improperly

framed their complaint as a First Amendment retaliation case, a legal paradigm that has no

relevance to this case. The United States Supreme Court‖s retaliation cases all involve a

supervisor or manager who discharges or disciplines a particular subordinate employee because

that particular employee engaged in speech or conduct that the First Amendment protected.

See Pickering v. Bd. of Educ., 391 U.S. 563 (1968) (“Pickering”) and its progeny. The

Pickering cases could not be more inapposite.

Second, even if the Court agrees with the Plaintiffs that the “retaliation” paradigm

controls this suit, the Plaintiffs cannot establish an essential predicate of a retaliation claim:

that they engaged in constitutionally protected conduct. The undisputed facts show that the

only conduct in which the Plaintiffs engaged was an economic battle with Governor Rowland

over the terms of and conditions of their employment. Indeed, the Plaintiffs expressly allege in

their Amended Complaint that Governor Rowland and Marc Ryan, then Secretary of the Office

of Policy and Management (“OPM”), acted in furtherance of their official responsibilities as

“high-ranking Executive Branch officers,” including, in particular, their responsibility to

manage the State‖s work force and negotiate the terms of collective bargaining agreements with

state employees and balance the State‖s budget. See Amended Complaint (dated May 27,


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2003) (“Am Comp.”) at p. 11-12, ¶ 37.1 See also Joint Local Rule 56(a)(1) and (2) Statements

(“JLR 56 Statement”) at ¶ 35.2 The law is clear that “the economic activities of a group of

persons (whether representing labor or management) who associate together to achieve a

common purpose are not protected by the First Amendment.” Connecticut State Federation of

Teachers, 538 F.2d at 478 (emphasis supplied) (citing Hanover Township Federation of

Teachers v. Hanover Community School Corp., 457 F.2d 456, 461 (7th Cir. 1972) [hereinafter

“Hanover Township”]).

Third, as the United States Supreme Court explained in Garcetti v. Ceballos, 547 U.S.

410 (2006), expressive conduct that occurs pursuant to the performance of one‖s professional

responsibilities does not enjoy First Amendment protection. In rejecting the State‖s concession

proposals, the Plaintiffs acted in their capacities as organizations whose primary responsibility

under the law is to advocate for the economic benefit of their members. See Conn. Gen. Stat.

§ 5-270(d) (defining “employee organization” as “any lawful association, labor organization,

federation or council having as a primary purpose the improvement of wages, hours and other

conditions of employment among state employees”) (emphasis supplied). That is, the Plaintiffs

1 “A party's assertion of fact in a pleading is a judicial admission by which it normally is

bound throughout the course of the proceeding.” Bellefonte Re Ins. Co. v. Argonaut Ins. Co.,

757 F.2d 523, 528 (2d Cir. 1985). Moreover, the Defendants admit this allegation. See

Answer to Amended Complaint (“Answer”) at p.5, ¶ 37.)

2 Paragraph 35 states in full: (“The Connecticut Governor and Secretary of OPM [the

“Secretary‖] are (and were, at all times relevant to this action) members of the Executive

Branch of Connecticut‖s state government who were acting in furtherance of their functions as

high-ranking Executive Branch officials. The Governor and Secretary had, at all times

mentioned herein and to the present time, responsibility for the management of the state‖s work

force and the negotiation of the terms of collective bargaining agreements with state employees

in furtherance of their Executive Branch functions.”


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were performing their professional responsibilities. The First Amendment does not immunize

labor unions from layoffs simply because they are unions, and it certainly does not protect

unions from layoffs simply because they performed their job-related advocacy responsibilities

to protect their members‖ wages and benefits.

Fourth, the States‖ interest as an employer in controlling the size and cost of its work

force and balancing its budget outweigh the Plaintiffs‖ associational interests. The so-called

“Pickering balance test” plainly favors the State.

Fifth, by entering into collective bargaining agreements with the State, which expressly

reserve the inherent right of management (e.g., the State) to control the size of the work force,

the Plaintiffs have waived any First Amendment claim based solely on their status as unions or

their economic activities as such.

PROCEDURAL HISTORY AND STATUS OF CLAIMS

Although a detailed procedural history of the case is not necessary to resolve the

parties‖ respective motions for summary judgments, a brief recitation of relevant portions of

the case background may assist the Court in that task.

On May 27, 2003, the Plaintiffs filed their ten-count Amended Complaint. Counts one

through four assert money damage claims against Governor Rowland and Marc Ryan, in their

individual capacities, based on alleged violations of the First Amendment. Counts five through

eight assert the same First Amendment claims against the Defendants, in their official

capacities, but sought declaratory and injunctive relief. The ninth and tenth counts assert

substantive due process and equal protection violations, as well as violations of the Fifth

Amendment and the Contract Clause.


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The Defendants moved to dismiss the Amended Complaint under Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure. They argued, inter alia, that legislative

immunity and Eleventh Amendment immunity barred the Plaintiffs‖ claims. By ruling dated

January 18, 2006, the Court: (1) dismissed the “individual capacity” money damage claims

(counts one through four) on Eleventh Amendment grounds; (2) concluded that further

discovery was required to determine whether the Defendants were entitled to absolute

legislative immunity; and (3) held that sovereign immunity did not bar the Plaintiffs‖ claims for

injunctive relief.

The Defendants filed an interlocutory appeal, which the Second Circuit dismissed in

part for lack of appellate jurisdiction with respect to the Court‖s denial of legislative immunity

to the Defendants “with respect to the plaintiffs‖ claims seeking reinstatement to their previous

positions.” State Employees Bargaining Agent Coalition, et al. v. John G. Rowland, et al.,

494 F.3d 71, 98-99 (2d Cir. 2007). The Second Circuit affirmed, however, “insofar as [this

Court] denied legislative immunity with respect to plaintiffs‖ claims seeking placement into

other, existing positions, and insofar as it held that plaintiffs‖ claims for injunctive relief were

not barred by the Eleventh Amendment.” Id.3 Accordingly, the court of appeals remanded the

case and directed this Court to consider the Plaintiffs‖ First Amendment claims seeking

reinstatement to existing positions “without regard to defendants‖ asserted legislative immunity

defense.” Id. at 94.

3 The Court‖s decision dismissing the individual capacity claims against Governor Rowland and

Marc Ryan was not challenged on appeal due to the lack of a final judgment. Id. at 99, n.2.


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The Second Circuit‖s decision made clear that, even if the Defendants established on

remand that they were entitled to legislative immunity on certain claims, the Plaintiffs would

still be entitled to a hearing on the merits of their First Amendment claims insofar as they

sought reinstatement to existing positions. Accordingly, in an effort to minimize the costs of

discovery and to expedite judicial resolution of those latter claims—which the Defendants

believe are meritless—the parties negotiated an agreement pursuant to which the State agreed to

admit certain facts solely with respect to the Plaintiffs‖ “official capacity” claims. See JLR 56

statement at p.1 (“The defendants‖ acknowledgement in their official capacities of the

following undisputed facts does not constitute the admission by John G. Rowland or Marc S.

Ryan individually of any fact herein.”) In exchange, the Plaintiffs agreed to forgo any and all

further discovery on liability and to withdraw counts six and eight of their Amended

Complaint.

The agreed-on undisputed facts upon which the parties now cross-move for summary

judgment are set forth in the parties‖ Joint Local Rule 56(a)(1) and (2) Statements.

Additionally, the Defendants rely upon a single judicially noticeable fact: the State of

Connecticut faced a budget crisis in fiscal year 2003. The Defendants do not admit any facts,

including any inferential facts, beyond those expressly admitted. Moreover, the Defendants

expressly reserve all objections to the legal relevance of any admitted fact. JLR 56 Statement

at p.1. Likewise, the Plaintiffs have agreed that their cross-motion for summary judgment

shall be based solely on the facts expressly admitted and judicially noted and they, too, have

reserved objections to the legal relevance of any admitted fact. Id.


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In short, the parties have presented the case to the Court on what is, for all intents and

purposes, a stipulated factual record. On that record, the Defendants are entitled to judgment

as a matter of law on the Plaintiffs‖ claim that the State violated their First Amendment right to

associate as a union when, faced with the Plaintiffs‖ refusal to grant concessions, Governor

Rowland ordered the layoffs of approximately 2,800 state employees.

STATEMENT OF UNDISPUTED FACTS

I. THE LEGALLY RELEVANT FACTS REFLECT A LABOR DISPUTE, NOT A

FIRST AMENDMENT VIOLATION.

In support of their motion for summary judgment, the Defendants submit that the

following undisputed facts, viewed in light of the applicable constitutional precedents, show

that the Defendants are entitled to judgment as a matter of law on the Plaintiffs‖ remaining

claims:

1. When the events giving rise to this lawsuit transpired in 2002-2003, John G.

Rowland was the governor of the State of Connecticut and Marc Ryan was the Secretary of

OPM. At all relevant times they acted in furtherance of their functions as high-ranking

Executive Branch officers. In particular, their official responsibilities included management of

the State‖s work force and negotiation of the terms of collective bargaining agreements with

State employees. JLR 56 Statement at ¶ 35. See also Am Comp. at pp. 11-12, ¶ 37); Answer

to Amended Complaint (“Answer”) at p. 5, ¶ 37.

2. Plaintiff State Employees Bargaining Agent Coalition (“SEBAC”) is a coalition

of 13 State employee unions, all of which are also plaintiffs herein. JLR 56 Statement at ¶ 1.

See also Am. Comp. at p. 3, ¶ 3.


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3. At all relevant times, the State of Connecticut‖s work force consisted of

unionized and non-unionized employees. Non-unionized employees occupy management and

non-management positions, as well as temporary positions. In November 2002, there were

approximately 50,000 state employees, of which approximately 75% were union members.

JLR 56 Statement at ¶ 40.

4. At all relevant times, the Plaintiffs have been parties to collective bargaining

agreements negotiated and entered into with the State of Connecticut. JLR 56 Statement at

¶ 29. See also Am. Comp. at p. 11, ¶ 36.

5. Every collective bargaining agreement includes a “Management Rights”

provision. The typical clause provides:

Except as otherwise limited by an express provision of this Agreement, the

State reserves and retains, whether exercised or not, all the lawful and

customary rights, powers and prerogatives of public management. Such rights

include but are not limited to . . . the suspension, demotion, discharge or any

other appropriate action against its employees; the relief from duty of its

employees because of lack of work or for other legitimate reasons; the

establishment of reasonable work rules; and the taking of all necessary actions

to carry out its mission in emergencies.

JLR 56 Statement at ¶ 32. Many of the agreements further provide that “[t]hose inherent

management rights not restricted by a specific provision of this Agreement are not in any way,

directly or indirectly, subject to the grievance procedure.” Id.

6. Every collective bargaining agreement includes a “Layoff” provision, which

typically defines a layoff as the “involuntary, non-disciplinary separation of an employee from

State service because of lack of work or other economic necessity.” Id.


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7. Each collective bargaining agreement in effect during the period relevant to this

suit was approved by the General Assembly pursuant to Conn. Gen. Stat. § 5-278(b). JLR 56

Statement at ¶ 30.

8. In fiscal year 2003 (which commenced on July 1, 2002), Connecticut faced a

budget crisis. See State Emples. Bargaining Agent Coalition v. Rowland, 494 F.3d at 78

(taking judicial notice of state‖s budget crisis).

9. In November 2002, Governor Rowland sought changes to the Plaintiffs‖

collective bargaining agreements. Specifically, he initially sought approximately $450 million

in long-term (i.e., extending for the life of the agreements) concessions to the vested benefits

conferred under the agreements. JLR 56 Statement at ¶¶ 37-39.

10. Governor Rowland advised the Plaintiffs that if they did not agree to grant the

requested concessions, he would terminate the employment of approximately 3,000 union

employees. JLR 56 Statement at ¶ 41.

11. The Plaintiffs refused to agree to all of the requested concessions. JLR 56

Statement at ¶ 46.

12. In response to the Governor Rowland‖s concession demands, the Plaintiffs

offered their own counter-proposals, which were unacceptable. JLR 56 Statement at ¶¶ 45-46.

13. In December 2002, faced with the Plaintiffs‖ refusal to grant concessions,

Governor Rowland directed OPM to instruct the heads of state agencies to reduce agency

staffing based on specified reductions in the number of employees in each bargaining unit of

the unions that refused to grant concessions. JLR 56 Statement at ¶ 54.


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14. Governor Rowland instructed OPM to order the elimination of positions in each

bargaining unit for the purpose of trying to persuade the Plaintiffs to agree to the concessions

he had requested. JLR 56 Statement at ¶¶ 48-49.

15. Governor Rowland‖s attempt to persuade the unions to agree to the requested

concessions was unsuccessful. Accordingly, he directed the elimination of union positions,

which resulted in the termination of approximately 2,800 employees. JLR 56 Statement at

¶ 46.

ARGUMENT

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall

be rendered “if the pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

The Plaintiffs bear the heavy burden of proving their constitutional claims. As such, it

is their burden to establish a factual basis for each and every element essential to their claims.

If they cannot meet that burden on the existing record of stipulated and judicially noticed

facts,4 summary judgment must enter for the Defendants. Cleveland v. Policy Mgmt. Sys.

Corp., 526 U.S. 795, 805-806 (1999) (“Summary judgment for a defendant is appropriate

when the plaintiff fails to make a showing sufficient to establish the existence of an element

4 See Gibbs v. CIGNA Corp., 440 F.3d 571, 578 (2d Cir. 2006) ("Having agreed on a set of

facts, the parties [who adopted the stipulation], and this Court, must be bound by them; we are

not free to pick and choose at will.")


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essential to [her] case, and on which [she] will bear the burden of proof at trial.”) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)) (internal quotations omitted).

I. THE PLAINTIFFS HAVE PURPOSELY, BUT IMPROPERLY, FRAMED

THEIR COMPLAINT AS A FIRST AMENDMENT “RETALIATION” CLAIM.

The Plaintiffs‖ Amended Complaint improperly frames their case as a First Amendment

“retaliation” claim, a type of claim reflected in a series of United States Supreme Court

decisions beginning with Pickering and including Connick v. Myers, 461 U.S. 138 (1983) and,

most recently, Garcetti v. Ceballos, 547 U.S. 410 (2006). As described below, Pickering and

its progeny do not apply to this case. The Plaintiffs‖ effort to frame their case as a Pickering

claim is a classic example of trying to force a round peg into a square hole.

The Supreme Court recognized in Pickering that the State‖s interests in regulating

speech as an employer differ significantly from its interest in regulating the speech of private

citizens in general. Pickering, 391 U.S. at 568. The State as an employer “must have wide

discretion and control over the management of its personnel and internal affairs. This includes

the prerogative to remove employees whose conduct hinders efficient operation and to do so

with dispatch.” Connick, 461 U.S. at 151. This is because “the government as employer

indeed has far broader powers than does the government as sovereign.” Waters v. Churchill,

511 U.S. 661, 671 (1994).

The subjective motive of the state actor responsible for adverse employment action

against an employee plays a central role in establishing the employee‖s First Amendment

retaliation claim under the Pickering cases. The employee is required to prove that the State


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actor—typically a manager or supervisor—retaliated against him because the employee engaged

in expressive conduct protected under the First Amendment, not for another legitimate reason.

Significantly, an employee who meets his burden of showing that he was disciplined

because he engaged in expressive conduct on a matter of public concern does not automatically

prevail on his First Amendment retaliation claim. The Supreme Court has also established a

balancing test that allows the state to demonstrate that its interest in promoting the “efficiency

of the public services it performs through its employees” outweighs the employee‖s interests in

“commenting on matters of public concern.” Pickering, 391 U.S. at 568. This is generally

referred to as “Pickering balancing.” This balancing test “represents a question of law for the

court to decide.” Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir. 2004).

By framing their case as a Pickering claim, the Plaintiffs invite the Court to “Monday

morning quarterback” the difficult decisions the State made during the 2002-2003 budget crisis

and to second-guess Governor Rowland‖s motives when he ordered layoffs. The Court should

reject that invitation. The legal paradigm reflected in the Supreme Court‖s Pickering

jurisprudence is simply inapposite to these proceedings.

A. Pickering And Its Progeny Are Limited To Cases Involving The Managerial

Discharge Or Discipline Of A Specific Individual Based On Expressive

Conduct Unique To That Individual.

The quintessential Pickering case involves an individual employee who files a lawsuit

complaining that his manager/supervisor terminated him in retaliation for speech that the

employee contends warrants First Amendment protection. This is not such a case.

For example, in Pickering a public school teacher complained that the local board of

education violated her First Amendment rights when it dismissed her because of a letter she


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wrote and published in a newspaper, which criticized the board. The Supreme Court held that

her speech commented on matters of “public concern” and, therefore, enjoyed First

Amendment protection. Consequently, the board could not terminate her employment because

of that speech. Pickering, 391 U.S. at 574.

The Supreme Court‖s subsequent cases considering Pickering claims all fit within this

paradigm. E.g., Garcetti v. Ceballos, 547 U.S. 410 (2006) (district attorney claimed his

supervisors violated First Amendment when they allegedly retaliated against him for writing a

memorandum recommending dismissal of charges against a criminal defendant because of

serious misrepresentations in the affidavit a police officer used to obtain a critical search

warrant); Waters v. Churchill, 511 U.S. 661 (1994) (nurse claimed violation of First

Amendment rights when public hospital fired her from her nursing job, allegedly because of

statements she made to a co-worker); Rankin v. McPherson, 483 U.S. 378 (1987) (clerical

employee in sheriff‖s office claimed First Amendment violation when she was fired after

commenting that she hoped President Reagan was assassinated); Connick v. Myers, 461 U.S.

138 (1983) (district attorney claimed First Amendment violation when her supervisor

terminated her after she distributed a questionnaire concerning internal office matters); Perry

v. Sindermann, 408 U.S. 593 (1972) (college professor claimed Board of Regents violated the

First Amendment when it refused to renew his contract because he had publicly criticized the

college administration and its policies).

Thus, commencing with Pickering and continuing up through Garcetti, the United

States Supreme Court‖s “First Amendment retaliation” cases all involve discrete instances of

managerial discipline of identified individuals. The body of law that the Supreme Court has


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developed in those cases simply does not pertain to the situation this case presents, i.e., a

governor‖s exercise of discretionary, policymaking authority implicating the budgetary

priorities of his state and applied to a broad class of people without consideration of their

individualized conduct.

Significantly, the Plaintiffs correctly alleged that Governor Rowland was responsible

for managing the size of the state work force. See Am. Comp., at pp. 11-12, ¶ 37. His

decision, which applied broadly to over 2,500 employees, cannot reasonably be compared to

the action of a manager or supervisor of a state agency who terminates an employee because of

that particular employee‖s expressive conduct. The Plaintiffs brought this case as a class

action and have alleged that the “Defendants have acted on grounds generally applicable to the

class.” Am. Comp. at p.9, ¶ 26.5 The only thing that all of the Plaintiffs (the named unions,

their members, and the named individual plaintiffs) have in common, and thus justifies treating

this case as a class action, is that they are unions or members of unions. Pickering and its

successor cases do not speak to the situation described in the Amended Complaint and set forth

in the undisputed facts. Because those facts do not support a Pickering claim, the Defendants

are entitled to summary judgment on counts five and seven of the Amended Complaint, which

assert such a claim.6

5 Pursuant to the parties‖ agreement, the Defendants consented to class certification in this

case. Accordingly, the Defendants do not dispute the allegation that they (former Governor

Rowland and Marc Ryan) acted on grounds generally applicable to the class.

6 As previously noted, the Plaintiffs have withdrawn counts six and eight, which alleged a

different factual theory of liability, namely, that Governor Rowland ordered the terminations at

issue in retaliation for the unions‖ supporting his political opponent during his reelection

campaign in 2002. In a memorandum filed earlier in this case, the Plaintiffs argued that the


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II. EVEN IF THE AMENDED COMPLAINT IS PROPERLY FRAMED AS A

PICKERING CASE, THE DEFENDANTS ARE ENTITLED TO SUMMARY

JUDGMENT.

If the Court decides that the Plaintiffs have properly framed this case as a Pickering

claim, their First Amendment “retaliation” claims are nonetheless without merit and should be

rejected as a matter of law.

Initially, it bears noting that the Plaintiffs‖ claims are not based on speech; they are

based on the First Amendment right of association, including the right to associate as a union

and to participate in union activities. See, e.g., Am. Comp. at p. 22, ¶¶ 53-54, p. 24, ¶¶ 54-

55. Although Pickering and its successor cases in the United States Supreme Court involved

employee speech, the Second Circuit and other circuit courts have interpreted those cases to

permit an employee to assert a retaliation claim arising from certain associational activities

protected under the First Amendment. E.g., Piscottano v. Murphy, 511 F.3d 247, 273 (2d

Cir. 2007); Cobb v. Pozzi, 363 F.3d at 102.

claims asserted in the withdrawn counts were governed by a different set of United State

Supreme Court cases, including Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445

U.S. 507 (1980), and Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). See

Plaintiffs‖ Memorandum of Law in Opposition to Defendants‖ Motion to Dismiss (dated Apr.

3, 2003) at pp. 41-44. Those cases hold that the federal and state governments can not base

employment decisions on political affiliation and beliefs and, therefore, that patronage

practices are unconstitutional except in limited circumstances. By contrast, the Plaintiffs based

their freedom of association claims—which are the only claims alleged in the remaining counts

of the Amended Complaint—on Smith v. Arkansas State Highway Employees, Local 1315, 441

U.S. 463, which expressly relies on Pickering. See Smith, 441 U.S. at 465. Plaintiffs‖

Memorandum of Law in Opposition to Defendants‖ Motion to Dismiss at pp. 44-46. The

Second Circuit has explained the distinction between the Elrod and Pickering lines of cases.

See McEvoy v. Spencer, 124 F.3d 92, 97-103 (2d Cir. 1997).


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The courts of appeal are split on the question whether a plaintiff who alleges that he

was punished for his associational conduct must establish that such conduct involved a matter

of “public concern.” The Second Circuit has squarely aligned itself with those courts holding

that a “public employee bringing a First Amendment freedom of association claim must

persuade the court that the associational conduct at issue touches on a matter of public

concern.” Cobb v. Pozzi, 363 F.3d at 102. The Second Circuit has not decided, however,

whether “union membership alone touches on a matter of public concern and therefore

provides a proper basis for a First Amendment retaliation claim.” Id. at 107 (emphasis

supplied).

Whether a state employee‖s speech or associational conduct involved a matter of public

concern is a threshold inquiry that a court must resolve in the employee‖s favor before

considering: 1) the employer‖s motive for taking the challenged employment action, and 2)

whether the Pickering balance favors the employee. City of San Diego v. Roe, 543 U.S. 77,

84 (2004). In other words, if the employee‖s associational conduct cannot be fairly

characterized as a matter of public concern, the employee simply has no First Amendment

claim based on his or her employer‖s reaction to the conduct. Garcetti v. Ceballos, 547 U.S.

at 418. As the Second Circuit has explained, “the mere invocation of the words ―speech‖ and

―association‖ in a complaint does not put the [state] to this test. Rather, before [plaintiffs] can

put the defendant to this burden of justification, [plaintiffs] must show that its members‖ First

Amendment rights have in fact been infringed by the [defendants‖] policies.” Connecticut

State Federation of Teachers, 538 F.2d at 479.


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The Plaintiffs cannot meet this threshold burden. For several reasons, the conduct

alleged in the Amended Complaint and confirmed by the parties‖ admitted facts does not enjoy

First Amendment protection.7

A. The First Amendment Does Not Protect The Self-Interested Economic Activities Of

A Union In The Context Of A Labor Dispute.

The undisputed facts show that the Plaintiffs and the State of Connecticut were engaged

in an economic battle over the terms and conditions of the Plaintiffs‖ members‖ employment.

Yet, as previously stated, “the economic activities of a group of persons (whether representing

labor or management) who associate together to achieve a common purpose are not protected

by the First Amendment.” Connecticut State Federation of Teachers, 538 F.2d at 478

(emphasis supplied) (citing Hanover Township, 457 F.2d at 461).

The Defendants do not dispute that the Plaintiffs‖ individual members have a

constitutional right to join a union. “It does not follow, however, that all activities of a union

or its members are constitutionally protected.” Hanover Township, 457 F.2d at 460;

Gregorich v. Lund, 54 F.3d 410, 415 (7th Cir. 1995) (the fact that an employee's expression is

union-related “does not automatically render his expression protected”); Boals v. Gray, 775

F.2d 686, 693 (6th Cir. 1985). The Seventh Circuit‖s decision in Hanover Township—which

7 The following analysis applies to all of the plaintiffs, including the named individual plaintiffs

serving as class representatives. The Amended Complaint does not allege, nor do the

undisputed facts show, that the State acted against any of the named plaintiffs because of

speech or conduct unique to them. Rather, their claims are based solely on their membership

in the named unions. As previously noted, in bringing this case as a class action the Plaintiffs

have alleged, and the Defendants have admitted, that the State acted on grounds generally

applicable to the class.


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the Second Circuit has cited with approval8—illustrates why there is no merit to the Plaintiffs‖

claim that their mere status as unions (or union members) that rejected concession demands

enjoys First Amendment protection.

In Hanover Township, the plaintiff (a teachers union) was unsuccessful in its efforts to

bargain collectively with the teachers‖ municipal employer. Rather than engage in bargaining,

the employer terminated members of the negotiating committee. The employer then

reconsidered and offered individual contracts to the members of the negotiating team, who

rejected the contracts and continued to insist on their right to bargain collectively. The

plaintiff then filed a lawsuit alleging that the employer‖s refusal to bargain in good faith and its

refusal to continue to employ the union members in the absence of a signed individual contract

violated its First Amendment right of association. The trial court accepted the plaintiff‖s

argument.

On appeal, the Seventh Circuit reversed. It acknowledged that “protected ―union

activities‖ included advocacy and persuasion in organizing the union and enlarging its

membership and also in the expression of its views to employees and to the public.” Hanover

Township, 457 F.2d at 460. But, “the economic activities of a group of persons (whether

representing labor or management) who associate together to achieve a common purpose are

not protected by the First Amendment.” Id. at 461. Although the employer‖s use of economic

weapons to dismiss, and then to offer individual contracts to, union members may have

breached its obligation to bargain in good faith, it was not a violation of the affected union

8 See Connecticut State Federation of Teachers, 538 F.2d at 478.


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members‖ First Amendment rights to associate as a union. This was so even though the

employer‖s decision not to bargain collectively unquestionably impeded the union‖s efforts and

frustrated its purposes.

Notably, in Smith v. Arkansas, the United States Supreme Court expressly endorsed the

Seventh Circuit‖s reasoning in Hanover Township:

The First Amendment is not a substitute for the national labor relations laws. As

the Court of Appeals for the Seventh Circuit recognized in Hanover Township

Federation of Teachers v. Hanover Community School Corp., 457 F.2d 456

(1972), the fact that procedures followed by a public employer in bypassing the

union and dealing directly with its members might well be unfair labor practices

were federal statutory law applicable hardly establishes that such procedures

violate the Constitution. The First Amendment right to associate and to

advocate "provides no guarantee that a speech will persuade or that advocacy

will be effective." Id., at 461. 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. See Pickering v. Board of Education, 391 U.S.

563, 574-575 (1968); Shelton v. Tucker, 364 U.S. 479 (1960). 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.

Smith, 441 U.S. at 464-465.

Smith and Hanover Township teach that, although a public employee may have a right

to join a union and to engage in speech or other expressive activity on behalf of the union, the

union‖s failure to persuade is not protected conduct under the First Amendment. The lessons

of those cases apply with no less force here. In deciding whether to reduce the cost and/or size

of its work force, particularly during an economic crisis, the State of Connecticut was no more

obliged to listen to and take direction from the Plaintiffs—whose members comprise


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approximately 75% of the work force—than it was obliged to listen to and take direction from

any other organized group.9

B. The Plaintiffs’ Rejection Of Governor Rowland’s Concession Demands Does

Not Pass The “Public Concern” Test Under Garcetti v. Ceballos or Connick

v. Myers.

The Plaintiffs cannot meet their threshold burden under the Pickering cases for a second

reason: even if Governor Rowland‖s subjective motives for ordering a reduction in the size of

the State work force are legally relevant—and they are not—the undisputed facts show that he

ordered the layoff of state employees because the Plaintiffs, in their capacity as labor unions,10

refused to accept his demands for concessions under their collective bargaining agreements.11

9 Notably, it is doubtful whether the State‖s conduct even constituted an unfair labor practice,

much less a constitutional violation. “The duty to bargain in good faith is not a duty to agree

to the union‖s demands and if the parties reach impasse in their bargaining, the employer is

free “to use the economic weapons at [its] disposal to secure [its] respective aims.” N.L.R.B.

v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); N.L.R.B. v. American National Insurance

Co., 343 U.S. 395 (1952). Even if the State had a duty to bargain over the basic policy

decision to reduce the size of the state work force, the Plaintiffs and Defendants herein reached

an impasse in their bargaining in 2002, leaving the State free to use the economic weapon of

layoffs to secure its objectives.

10 As noted, in addition to the unions themselves, this class action also includes the individual

members of the unions who were laid off in 2002-2003. Based on the undisputed facts, none

of the individual union members, whether expressly named in the complaint or in their

capacities as members of the class, engaged in allegedly protected conduct beyond mere

membership in a labor union that rejected the State‖s demand for concessions.

11 The admissions regarding Governor Rowland‖s motives were reached only after extensive

negotiations—literally months of discussions—concerning the precise language of the requests

to admit. The relevant admissions are reflected in JLR 56 Statement at ¶¶ 47-48 and ¶ 51:

(¶ 47: “Governor Rowland instructed Secretary Ryan to order the elimination of union

positions and the terminations of union employees because the unions did not agree to the

collective bargaining agreement concessions demanded by Rowland.” ¶ 48: “Rowland ordered

the elimination of union positions and the terminations of union employees to try to compel the

plaintiffs to agree to the demanded concessions.” ¶ 51: “Rowland directed Ryan to target

unions workers (i.e., to order the elimination of union positions and termination of union


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Under the legal standard set forth in the United States Supreme Court‖s recent decision in

Garcetti v. Ceballos, the Plaintiffs‖ conduct in rejecting the State‖s concession demands does

not constitute a matter of public concern.

The plaintiff in Garcetti, an attorney employed in a state prosecutor‖s office, became

convinced that an affidavit a police officer had submitted to the court in support of a search

warrant was false. The attorney contacted the officer, spoke to his supervisors about the

perceived misrepresentations, wrote a memo describing his conclusions, and testified in court

regarding the affidavit. He then claimed that, in response to his conduct, he was subjected to a

series of retaliatory employment actions, which he asserted violated the First Amendment.

Garcetti, 547 U.S. at 414-15. The Supreme Court rejected his claim:

[The Plaintiff] did not act as a citizen when he went about conducting his daily

professional activities, such as supervising attorneys, investigating charges, and

preparing filings. In the same way, he did not speak as a citizen by writing a

memo that addressed the proper disposition of a pending criminal case. When he

went to work and performed the tasks he was paid to perform, [plaintiff] acted

as a government employee. The fact that his duties sometimes required him to

speak or write does not mean his supervisors were prohibited from evaluating

his performance.

Id. at 422 (emphasis supplied). The Supreme Court held that when a public employee engages

in expressive conduct pursuant to his professional responsibilities as an employee, his conduct

is not entitled to First Amendment protection. Id. at 421. The Supreme Court so held

employees) because the Unions did not agree to the long-term concessions in their vested

collective bargaining agreements that Rowland had demand. Ryan complied with Rowland‖s

instructions.”) (Emphasis supplied.) Under the parties‖ agreement, and assuming inquiry into

Governor Rowland‖s subjective intent is even legally relevant (which the Defendants dispute),

the Plaintiffs may not assert that Governor Rowland acted pursuant to a motive other than the

one to which the Defendants have expressly stipulated.


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because, “[w]hen a public employee speaks pursuant to employment responsibilities . . . there

is no relevant analogue to speech by citizens who are not government employees.” Id. at 424.

The First Amendment only protects a public employee‖s right to speak as a citizen addressing

matters of public concern. Id. at 417. Significantly, the Supreme Court explained that,

“[u]nderlying our cases has been the premise that while the First Amendment invests public

employees with certain rights, it does not empower them to ―constitutionalize the employee

grievance.‖” Id. at 420.

Here, as in Garcetti, the Plaintiffs did not engage in conduct as citizens when they

refused to accept the State‖s concession demands. Rather, they acted in their capacities as

labor organizations whose primary responsibility under the law is to advocate for the economic

benefit of their members. The legislation authorizing collective bargaining for state employees

defines an “employee organization” as “any lawful association, labor organization, federation

or council having as a primary purpose the improvement of wages, hours and other conditions

of employment among state employees.” Conn. Gen. Stat. § 5-270(d) (emphasis supplied). In

rejecting the State‖s demands, the Plaintiffs acted to protect the “wages, hours and other

conditions of employment among state employees.” Under Garcetti, their conduct did not

enjoy First Amendment protection. Accordingly, there is no merit to the Plaintiffs‖ claim that

the State violated their First Amendment rights when Governor Rowland ordered layoffs

because the Plaintiffs would not grant concessions.

For similar reasons, the Plaintiffs‖ retaliation claims also fail under the Supreme

Court‖s decision in Connick v. Myers, wherein the Court offered the following cautionary

statement:


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To presume that all matters which transpire within a government office are of

public concern would mean that virtually every remark and certainly every

criticism directed at a public official – would plant the seed of a constitutional

case. . . [T]he First Amendment does not require a public office to be run as a

roundtable for employee complaints over internal office affairs.

Connick, 461 U.S. at 149 (emphasis supplied).

Notably, the Plaintiffs propose far more than that the State should “run a roundtable” at

which public employee unions must be free to criticize the State‖s decision concerning the size

and scope of the work force. Rather, the position they advocate is that public sector labor

unions have a constitutional right under the First Amendment to require a judge or a jury to

second-guess a sitting governor‖s motives for reducing the size of the work force and to

overrule his/her decision if the fact-finder believes that the reduction in force was not

economically necessary. If accepted, their audacious argument would transform grievances

over pay and other conditions of employment into constitutional issues, contrary to the

teachings of Connick and Garcetti. See also Ezekwo v. N.Y.C. Health & Hospitals Corp., 949

F.2d 775 (2d Cir. 1991).12

C. Even If The Plaintiffs Engaged In Constitutionally Protected Conduct, The

Layoffs Were Justified Under The Pickering Balancing Test.

12 The plaintiff in Ezekwo, a medical doctor and a union member working as a resident at a

public hospital, claimed that the defendant denied her a position as chief resident because she

had voiced complaints that she had been the victim of discrimination. The Second Circuit

stated that “[h]er complaints were personal in nature and generally related to her own situation

within the [] residency program.” Ezekwo, 940 F.2d at 781. She “was not on a mission to

protect the public welfare. Rather, her primary aim was to protect her own reputation and

individual development as a doctor.” Id. Given that plaintiff was advancing her own personal

economic interests, the Second Circuit held that her statements “did not relate to matters of

public concern,” even though some of those “comments could be construed broadly to

implicate matters of public concern.” Id. The focus, the Second Circuit held, is on the

“general nature of her statements.”


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Beyond their inability to satisfy their threshold burden under Pickering of

demonstrating that they engaged in First Amendment-protected conduct, the Plaintiffs‖ First

Amendment claims also fail because the State‖s interests in balancing its budget and controlling

the size and cost of its work force outweigh any protected associational interests the Plaintiffs

may have.

“The Pickering balance requires full consideration of the government's interest in the

effective and efficient fulfillment of its responsibilities to the public.” Connick v. Myers, 461

U.S. at 150. “To this end, the Government, as an employer, must have wide discretion and

control over the management of its personnel and internal affairs.” Id. at 151 (citing Arnett v.

Kennedy, 416 U.S. 134, 168 (1974) (Powell, J., concurring in part in opinion and result)).

The State‖s justifications for adverse employment action may include, but are not limited to,

“such considerations as maintaining efficiency, discipline, and integrity, preventing disruption

of operations, and avoiding having the judgment and professionalism of the agency brought

into serious disrepute.” Piscottano v. Murphy, 511 F.3d at 271 (citing Waters v. Churchill,

511 U.S. at 675)). As previously noted, the Pickering balancing test constitutes an issue of

law for the Court.

The size and scope of the State‖s work force is a core managerial decision that is left

exclusively to the State‖s elected policymakers, i.e., the governor and the legislature, who

share a constitutional responsibility to balance the State‖s budget.13 Indeed, the inclusion of

13 As the Supreme Court explained in Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977):


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“Management Rights” and “Layoff” provisions in every collective bargaining agreement

reflects and underscores the undeniable truth of this fundamental proposition. Thus, while the

Plaintiffs are always free to advocate against layoffs, the government‖s interest in controlling

the size and cost of its work force plainly outweighs the Plaintiffs‖ countervailing interests in

union membership.

To hold otherwise would erroneously place public employee unions on a higher plane

than private employee unions, who have no right under the law to dictate to their private

employer the size of its work force. The United States Supreme Court held in Abood v.

Detroit Bd. of Educ., 431 U.S 209 (1977) that “[t]here can be no quarrel with the truism that

because public employee unions attempt to influence governmental policymaking, their

activities – and the views of members . . . – may properly be deemed political. But that

characterization does not raise the ideas and beliefs of public employees onto a higher plane

[D]ecisionmaking by a public employer is above all a political process. The

officials who represent the public employer are ultimately responsible to the

electorate, which for this purpose can be viewed as comprising three

overlapping classes of voters - taxpayers, users of particular government

services, and government employees. Through exercise of their political

influence as part of the electorate, the employees have the opportunity to affect

the decisions of government representatives who sit on the other side of the

bargaining table. Whether these representatives accede to a union's demands

will depend upon a blend of political ingredients, including community

sentiment about unionism generally and the involved union in particular, the

degree of taxpayer resistance, and the views of voters as to the importance of

the service involved and the relation between the demands and the quality of

service.

Id. at 228 (emphasis supplied). The courts, both state and federal, should be extremely

reluctant to allow themselves to be drawn into this political process by allowing unions to

“constitutionalize” its outcome and thereby force the court to evaluate the wisdom of a public

employer‖s decision to reduce the size of its work force.


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than the ideas and beliefs of private employees.” Id. at 231-32. “The differences between

public and private-sector collective bargaining simply do not translate into differences in First

Amendment rights.” Id. at 232.

III. BY ENTERING INTO COLLECTIVE BARGAINING AGREEMENTS WITH

THE STATE, THE PLAINTIFFS WAIVED THEIR FIRST AMENDMENT

CLAIMS.

The Court should also hold that, by entering into collective bargaining agreements with

the State, the Plaintiffs waived their right to assert a claim that a mass layoff violates their First

Amendment right to associate as a union.

The “Management Rights” provision of each of the Plaintiffs‖ collective bargaining

agreements gives the State unfettered discretion to reduce the size of its work force through

layoffs, subject only to the State‖s obligation to conduct the layoffs in accord with the seniority

and other specific provisions of the agreements. In other words, the basic policy decision to

reduce the size of the State work force is an inherent management right, one which is not

subject to mandatory collective bargaining. E.g., Fibreboard Paper Products Corporation v.

N.L.R.B., 379 U.S. 203, 222-23 (1964) (no duty to bargain collectively regarding managerial

decisions which lie at the core of entrepreneurial control); First Nat’l Maintenance Corp. v.

N.L.R.B., 452 U.S. 666, 678-79 (1981) (employer not required to bargain over its decision to

close a portion of its business with resulting loss of union members‖ jobs, even though such a

decision would unquestionably have an impact of union members‖ employment.

“[M]anagement must be free from the constraints of the bargaining process to the extent

essential for the running of a profitable business.”). Nor is the basic policy decision to reduce

the size of the state work force grievable or arbitrable. E.g., Int’l Broth. of Teamsters, et al.,


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v. Logistics Support Group, 999 F.2d 227, 230 (7th Cir. 1993) (“If the parties have agreed that

management has the authority to conduct certain aspects of its business free from any union

interference, a conflict arising in this domain is arbitrable only if management is alleged to

have violated some specific check on its discretion.”)14

The inevitable consequence of allowing the Plaintiffs to invoke the First Amendment as

grounds for second-guessing the motives behind the State‖s decision to reduce the size of the

work force is clear. Anytime the State exercises its inherent right to reduce the size of its

work force through a mass layoff, the effects of that decision will be borne predominantly by

the members of the Plaintiff unions, who comprise approximately 75% of the work force. If

the unions and/or their members are permitted to challenge a governor‖s basic policy decision

to order layoffs merely by alleging in a complaint that he based his decision, not on legitimate

economic grounds, but on grounds that purportedly violate their First Amendment

“associational rights” as unions, then the Management Rights provision of every collective

bargaining agreement will become meaningless verbiage.

14 The grievance provisions of each of the Plaintiffs‖ collective bargaining agreements

expressly restrict the availability of the grievance procedure to alleged violations of “specific

provisions” of the agreements. Thus, the exercise of a management right is not grievable

unless it violates an express provision of the agreement other than the management right‖s

provision. Any other interpretation would render the management right‖s provision

meaningless. Indeed, as previously noted, many of the agreements with the Executive Branch

expressly provide that “[t]hose inherent management rights not restricted by a specific

provision of this Agreement are not in any way, directly or indirectly, subject to the grievance

procedure.” See, e.g., JLR 56 Statement at ¶ 32. This is not to say that a grievance can never

be filed in connection with a layoff decision. For example, if a layoff violates the seniority

provision of a collective bargaining agreement, the union can file a grievance alleging a

violation of that particular provision.


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Plainly, the parties cannot have intended such an absurd result. Accordingly, the Court

should conclude that the Plaintiffs waived any First Amendment claim inconsistent with the

State‖s exercise of inherent rights reflected in the Management Rights provisions of their

legislatively-approved collectively bargaining agreements.

The proposition that a party may contractually waive First Amendment rights is well

established. E.g., Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991); see also Lake

James Community Volunteer Fire Dept., Inc. v. Burke, 149 F.3d 277, 278 (4th Cir. 1998)

(finding valid contractual waiver of first amendment rights); Leonard v. Clark, 12 F.3d 885,

889–90 (9th Cir. 1993) (same); Paragould Cablevision, Inc. v. Paragould, 930 F.2d 1310,

1315 (8th Cir. 1991) (same); Forbes v. Milwaukee, United States District Court, Docket No.

05-C-591 (E.D. Wis. January 4, 2007) (same); Kovacs v. Jim, United States District Court,

Docket No. 4:03-CV-33 (W.D. Mich. July 31, 2003) (same); Wilkicki v. Brady, 882 F. Supp.

1227, 1233–34 (D.R.I. 1995) (same); Pierce v. St. Vrain Valley School District, 981 P.2d

600, 603–604 (Colo. 1999) (same); Messina v. Dept. of Job Service, 341 N.W.2d 52, 61

(Iowa 1983) (same); Verizon New England, Inc. v. Public Utilities Commission, 866 A.2d 844,

849 (Me. 2005) (same); Trump v. Trump, 179 App. Div. 2d 201, 205–206, 582 N.Y.S.2d

1008 (1992) (same); Estate of Barber v. Sheriff’s Dept., 161 N.C. App. 658, 664–65, 589

S.E.2d 433 (2003) (same); cf. D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 184–87

(1972) (party may waive by agreement due process right to notice and hearing in advance of

judgment).

In Leonard v. Clark, supra, the Ninth Circuit Court of Appeals affirmed a district

court‖s finding and judgment that a union, by voluntarily entering into a collective bargaining


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agreement, had waived its right to challenge the enforcement of a provision of the agreement

as violative of the First Amendment. The provision at issue stated:

During the life of the agreement, legislative issues specifically endorsed or

sponsored by the Portland Fire Fighters Association that result in action by the

state legislature and which result in any new economic or benefit improvement

causing increased payroll costs to the City beyond those stipulated at the time of

mutual contract ratification, such costs shall be charged against applicable salary

agreement whenever the changes become effective.

Leonard v. Clark, 12 F.3d at 886. The plaintiffs argued that the provision was an

unconstitutional restriction on their First amendment right to petition the government.

Assuming, without deciding, that the provision actually implicated the First Amendment, the

district court found that the union, by signing the collective bargaining agreement, waived its

right to challenge the provision on First Amendment grounds. Id. at 889.

On appeal, the Ninth Circuit affirmed. As the court of appeals stated, “[i]f the Union

felt that the First Amendment rights were burdened by Article V, it should not have bargained

them away and signed the agreement. Article V . . . is a contractual term that resulted from

the give-and-take of negotiations between parties of relatively equal bargaining strength.” Id.

at 890. Further, the court held that public policy favored enforcement of the union‖s waiver,

in particular, the public interest in the “stability and finality of collective bargaining

agreements.” Id. at 891.

Although not directly on point, the reasoning of Leonard v. Clark is instructive.

Although the Plaintiffs do not directly challenge the Management Rights provisions of their

collective bargaining agreements as infringing on their First Amendment rights, judicial

acceptance of their First Amendment claims would eviscerate the inherent management rights


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expressly reserved therein. Instead of having discretion to control the size of its work force,

every time the State makes a policy decision to order layoffs it will expose itself to a

constitutional claim in which the Plaintiffs can assert, as they have here, that layoffs are not

economically necessary and were ordered instead to penalize the Plaintiffs for exercising their

First Amendment right to associate as unions.

In sum, the Court should conclude that the Plaintiffs, by voluntarily executing

collective bargaining agreements that reserved to the State the fundamental, inherent right to

control the size of its workforce, waived their right to challenge mass layoffs as a First

Amendment violation of their right of association.

IV. PLAINTIFFS’ ALTERNATIVE CONSTITUTIONAL CLAIMS ARE

MERITLESS.

There can be no doubt that the First Amendment “retaliation” claims alleged in counts

one through eight of the Amended Complaint are the gravamen of this case. The Plaintiffs,

however, are unwilling to go “all in” on those claims. Instead, they engage in the

time-honored tactic of throwing stuff against the wall and hoping something sticks. The

“stuff” the Plaintiffs hope will “stick” is the hodgepodge of claims described in counts nine

and ten. These claims include alleged substantive due process, equal protection and Contract

Clause violations.

It is difficult to know exactly how to address claims so unrelated to the gravamen of a

case and which appear to have been included in the Amended Complaint as an afterthought.

Accordingly, the reasons why the Court should grant the Defendants summary judgment on

those claims will be set forth more clearly and succinctly once the Defendants have had the


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opportunity to consider the Plaintiffs‖ arguments in support thereof. That is, the Defendants

reserve the right to amplify their arguments opposing those claims in their reply brief, after

reading the Plaintiffs‖ memorandum of law in support of their own motion for summary

judgment.

Even without the benefit of the Plaintiffs‖ arguments, however, the claims appear

fatally flawed. First, “if a constitutional claim is covered by a specific constitutional

provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the

standard appropriate to that specific provision, not under the rubric of substantive due

process.” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (citing the “more-

specific-provision” rule of Graham v. Connor, 490 U.S. 386, 395 (1989)). That rule applies a

fortiori to this case. Because the Plaintiffs‖ plainly believe the First Amendment covers this

case, the Court need not address, much less resolve, the Plaintiffs‖ substantive due process

claim.

Second, even if the Court considers the latter claim on its merits, the claim should be

rejected. When a party challenges the conduct of an executive branch official on substantive

due process grounds, the Supreme Court has held that the executive‖s actions must “shock the

conscience”:

We have emphasized time and again that "the touchstone of due process is

protection of the individual against arbitrary action of government.”

. . .

Our cases dealing with abusive executive action have repeatedly emphasized that

only the most egregious official conduct can be said to be "arbitrary in the

constitutional sense," thereby recognizing the point made in different

circumstances by Chief Justice Marshall, "'that it is a constitution we are


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expounding,'" Thus, in Collins v. Harker Heights, for example, we said that the

Due Process Clause was intended to prevent government officials "'from

abusing [their] power, or employing it as an instrument of oppression.'"

To this end, for half a century now we have spoken of the cognizable level of

executive abuse of power as that which shocks the conscience.

County of Sacramento v. Lewis, 523 U.S. at 847 (emphasis supplied). For the Plaintiffs even

to attempt to argue that the undisputed facts satisfy this extraordinary burden would be futile.

Third, the Plaintiffs‖ claim also fails if the Court applies the substantive due process

standard applicable to traditional socio-economic legislation. Formal legislation (as well as

executive branch conduct that is functionally legislative) is not arbitrary or irrational if it has a

“rational basis.” Moreover, rational basis review is an objective, not a subjective, inquiry. It

is “constitutionally irrelevant [what] reasoning in fact underlay the legislative decision." Tuan

Anh Nguyen v. INS, 533 U.S. 53, 75-76 (2001). Inarguably, Governor Rowland had a rational

basis for his challenged decision. In the midst of a major budget crisis, faced with unions that

refused to meet his concession demands, he ordered layoffs. That is the epitome of rationality.

Fourth, the Plaintiffs cannot prevail on their equal protection claim. “The Equal

Protection Clause of the Fourteenth Amendment ―is essentially a direction that all persons

similarly situated should be treated alike.‖” Lawrence v. Texas, 539 U.S. 558, 579 (2003).

Indeed, “to successfully assert an equal protection challenge, petitioners must first establish

that the two classes at issue are similarly situated. The government can treat persons

differently if they are not similarly situated.” Yuen Jin v. Mukasey, 538 F.3d 143, 158 (2d

Cir. 2008) (internal quotations omitted) (emphasis supplied). Accord Jankowski-Burczyk v.

Ins, 291 F.3d 172, 176 (2d Cir. 2002) ("Of course, the government can treat persons


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differently if they are not 'similarly situated.'"). Here, however, the Plaintiffs‖ own pleadings

eviscerate any argument that they were treated differently from similarly situated persons.

The discrimination about which the Plaintiffs complain is the State‖s different treatment

of union and non-union employees. See Am. Comp. at p.13, ¶¶ 43-44 (alleging that, although

the State work force is comprised of union and non-union members, the State singled out union

members for termination). The difference between these two categories of employees could

not be clearer: Union members have collective bargaining agreements with the State; non-

union, managerial employees do not. The State has the right unilaterally to alter the terms and

conditions of employment of non-union, managerial employees; it does not have that right with

respect to parties to a collective bargaining agreement. Consequently, when the Plaintiffs

refused to grant the concessions the State demanded in late 2002, the State‖s recourse was to

lay off union members. By contrast, the State did not have to lay off non-union employees

because it could impose wage and benefit freezes and/or cuts unilaterally.

In short, the two classes of State employees—union and non-union—are not similarly

situated. Therefore, the Plaintiffs‖ equal protection claim is dead on arrival.

CONCLUSION

To the extent that the Plaintiffs believed the State violated their contract rights, they

were free to pursue any available grievance and arbitration remedies under their collective

bargaining agreements. To the extent that the Plaintiffs believed the State‖s actions constituted

an unfair labor practice, they were free to pursue their statutory remedies under Conn. Gen.


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Stat. § 5-272.15 This Court should not allow the Plaintiffs to do a “constitutional end-run”

around those remedies.

A collective bargaining agreement represents the delicate balance of economic power

between labor and management. “It is not the role of the courts to alter the labor-management

balance struck in the collective bargaining agreement.” Northwest Airlines, Inc. v. Air Line

Pilots Assoc., Int’l, 808 F.2d 76, 83 (D.C. Cir. 1987). Moreover, it has long been the policy

of the federal and state courts to promote labor peace through the collective bargaining

process. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574,

578 (1960) (“The present federal policy is to promote industrial stabilization through the

collective bargaining agreement.”); accord City of Hartford v. Hartford Mun. Empls. Ass'n,

259 Conn. 251, 266 (2002) (citing United Steelworkers). See also Emhart Indust., Inc. v.

Amalgamated Local Union 376, UAW., 190 Conn. 371, 402 n.16 (1983) (“It should be the

policy of our courts to encourage all reasonable efforts in ensuring labor peace.”)

15 Conn. Gen. Stat. § 5-272 provides in relevant part: “Prohibited acts of employers and

employee organizations. (a) Employers or their representatives or agents are prohibited from:

(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed

in section 5-271 including a lockout; (2) dominating or interfering with the formation,

existence or administration of any employee organization; (3) discharging or otherwise

discriminating against an employee because he has signed or filed any affidavit, petition or

complaint or given any information or testimony under sections 5-270 to 5-280, inclusive; (4)

refusing to bargain collectively in good faith with an employee organization which has been

designated in accordance with the provisions of said sections as the exclusive representative of

employees in an appropriate unit; including but not limited to refusing to discuss grievances

with such exclusive representative; (5) discriminating in regard to hiring or tenure of

employment or any term or condition of employment to encourage or discourage membership

in any employee organization; (6) refusing to reduce a collective bargaining agreement to

writing and to sign such agreement; (7) violating any of the rules and regulations established

by the board regulating the conduct of representation elections.” Conn. Gen. Stat. § 5-272.


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Nothing in the text, history or legal precedents interpreting the First Amendment

support the Plaintiffs‖ attempt to use the amendment as a sword to challenge, or as a shield to

resist, the State‖s decision to reduce the cost or size of its work force. Judicially approving the

use of the First Amendment for such a purpose will fundamentally alter the delicate balance of

economic power that the State struck with the Plaintiff unions after lengthy and difficult

collective bargaining negotiations.

For all of the foregoing reasons, the Court should grant summary judgment to the

Defendants.

DEFENDANTS:

By____/s/__(Daniel J. Klau___

Daniel J. Klau (ct17957)

Bernard E. Jacques (ct12293)

Pepe & Hazard LLP

Their Attorney

Goodwin Square

225 Asylum Street

Hartford, CT 06103-4302

Tel. No. (860) 522-5175

Fax No. (860) 522-2796

[email protected]

[email protected]


mailto:[email protected]

mailto:[email protected]

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CERTIFICATION

I hereby certify that on June 30, 2010, a copy of the foregoing document was filed

electronically. Notice of this filing will be sent by e-mail to all counsel of record by operation

of the Court‖s electronic filing system. Parties may access this filing through the Court‖s

system.

________/s/____________________

Daniel Klau


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