Unionized government employees have won a dramatic reversal in the 2003 class action against former Republican Governor John G. Rowland and his budget director, Marc Ryan, with the U.S. Court of Appeals for the Second Circuit concluding that limiting layoffs to unionized employees violates their constitutional right of association.

The three-judge panel reversed the 2011 summary judgment in favor of Rowland and against the union employees, and ordered "appropriate equitable relief." The judges plowed new ground. They had never before fashioned a formula for determining when and how a government’s employment decisions violated union members’ constitutional right to associate. The court concluded that when union members are singled out to be the only ones fired, something’s clearly wrong.

The state was represented by the Attorney General’s Office and Daniel J. Klau, of McElroy, Deutsch, Mulvaney & Carpenter in Hartford. Klau declined to comment for this article. The 2,800 union members who were laid off were represented by David Golub of Silver, Golub & Teitell in Stamford. Both sides submitted stipulated facts, which the Second Circuit interpreted.

In 2002, after failing to force the unions to give up $450 million worth of concessions under threat of widespread layoffs, the Rowland administration let the ax fall. The Second Circuit found this was not a "narrowly tailored" approach.

"[I]mportantly, defendants have not shown why the State’s fiscal health required firing only union members, rather than implementing membership-neutral layoffs," Judge Gerard E. Lynch wrote for the court.

Both union and non-union state workers receive the same health and pension benefits, according to the stipulations. The Rowland administration, according to the written decision, "chose to accomplish whatever cost savings were achieved by firing only employees who were union members, as opposed to targeting the least valuable or most expensive workers."

David Golub, representing the plaintiff class of state employees, was pleased by the appellate ruling.

"It’s a terrific decision in terms of vindicating freedom of association, not just for unions," Golub said. "To the extent that anyone had any doubt there was a constitutional right to belong to a union, and that the state couldn’t penalize someone for being a member of a union, this decision is about as resounding a victory on that point as there could be. It’s important, because the Rowland administration took the position that it could punish people for being members of a union, that it could retaliate, simply based on union membership."

‘Fundamental Right’

Labor and employment lawyer Gary Phelan, of Cohen and Wolf in Bridgeport, called it, "a profound decision that reinforces the vital role that unions play in the workplace."

Phelan, who had not direct involvement in the case, added that the "court is essentially saying that this is a fundamental right, and that union activities are a fundamental right, a First Amendment right, that will be subjected to strict scrutiny."

In addition, said Phelan, the Second Circuit panel "took apart every argument that the defendants made here to try to justify it. When you are in the midst of an economic crisis, and 25 percent of the workforce is non-union, and none of them get terminated, it’s kind of clear-cut what was going on here."

Luke Bronin, counsel to current Governor Dannel P. Malloy, said his office is studying the decision with an eye to its potential cost to the state. Golub is the plaintiff’s lawyer in a companion lawsuit that seeks damages from the state for violating the workers’ First Amendment rights, under a statute that specifically make the state potentially liable.

Malloy told the Law Tribune he was glad he negotiated with state unions for cost savings and avoided harsh and confrontational tactics. "I’m not surprised" by the Second Circuit decision, Malloy said. "I did this on a negotiated basis, and that’s how you’re supposed to do these things."

Malloy said that because the decision has just been released, "We haven’t fully figured out what the exposure of the state is." However, "it’s even clearer that to do this kind of thing by negotiation is the right way. To do something out of anger or to act precipitously can have long-term consequences, so I feel good about the way we’ve handled it."