Delaware legislative union effort sparks anger, confusion

DOVER — On Jan. 14, the first day of session for the General Assembly this year, some legislative staffers dropped a bombshell on the rest of the building: They intended to unionize.

Organizers, who did not identify themselves by name in a news release announcing the unionization effort, said they had support from “a majority of the Democratic, Republican and nonpartisan staff of the Delaware House of Representatives and state Senate” and planned to establish “the first fully inclusive union that cuts across partisan lines in the history of the United States.”

The news came as a shock not just to lawmakers of both parties but to Republican aides as well.

Organizers later said they intended the release to reflect they had support from a slight majority of the 45 or so full-time staffers who they believe would be covered under the union, but many read it as indicating a majority of Republican aides were onboard — or at least some were.

In a separate statement last week, Senate Republican staffers said they were stunned by the news.

“Two days after the release was issued, our caucus staff were assured that a follow-up statement correcting the record about our involvement would be distributed, however, at the time of this writing, a correction has not been issued. … We feel it is necessary to set the record straight,” they said.

“We are honored to serve in the capacity that we do, assisting the workload of the elected officials and the needs of the people of Delaware. Some of our staffers are very active members of their communities and their reputations have been tarnished in the eyes of some community members because of a lie.”

The first-day announcement also blindsided top Democratic staffers, who said they were not informed of the efforts ahead of time, and came as an unwelcome surprise to many legislators, even union-friendly Democrats.

Organizers sought to keep the formation process within the rank and file, but there is some disagreement about who exactly would receive the benefits of a union. In a mid-January email, organizers said individuals with hiring and firing power are excluded, which rules out caucus chiefs of staff and a few more positions above legislative aide. Others in the building, however, dispute that, describing ultimate personnel authority as resting solely with the Senate president pro tempore and House speaker.

While lawmakers have declined to comment, citing personnel laws and policies, some have privately griped about the decision.

Sam Barry, a House Democratic digital media staffer and an organizing committee member, tweeted last week, “Most of the electeds in Leg Hall were very vocal about union support until approximately 3 weeks ago and now they will not talk about it at all.”

(Mr. Barry identified himself in an interview about the union with The American Prospect. Also identified as an organizing committee member in the article was Dylan McDowell, a Senate Democratic communications staffer.)

Organizers declined to comment on the record for this story but did indicate they hope to work through the issues with Senate Republicans and aim to meet with House Republican aides soon.

The situation has created a tricky position for Democratic leadership, which is trying to balance public union support with serious concerns about the process and legality of this effort.

If a legislative union is formed as organizers envision, about 45 employees would join the 8,000 or so people covered under the American Federation of State, County and Municipal Employees Council 81. Employees in some of the other entities that fall under the legislature, such as the Controller General’s Office and the Division of Research, would not be included.

Mike Begatto, executive director of AFSCME 81, declined to comment on the unionization plan last week.

In order to hold a vote on forming or joining a union, a petition must first be filed with the state. From there, the Public Employment Relations Board verifies whether the effort is supported by the requisite 30 percent of affected workers. If there is at least that level of support, a vote on unionizing is scheduled.

Both in their statement and on Twitter, organizers have described their effort not as stemming from unhappiness with current conditions but out of a desire to codify their benefits both for themselves and for future legislative employees.

“In all four caucuses, our staffers work tirelessly to make Delaware’s legislature one of the best in the nation. From constituent service to legislative research, communications, drafting and more, our group spends every day working full-time, nights and weekends for the people of the First State,” organizers said in a statement when they first announced the effort on Jan. 14.

“But even in a state led by elected officials friendly to the labor movement, partisan and nonpartisan staff alike continue to be employed at-will in non-merit positions. Moving forward, we know that a union will help us do a better job of retaining talent, providing basic worker protections and delivering results for the people of Delaware.

“We are lucky to have House and Senate leadership — some of them union members themselves — who already understand this and we look forward to their voluntary recognition of this organizing effort and an amicable start to contract negotiations with their hard-working staff.”

They are confident the law is on their side, but others in and out of the building have doubts. At issue are several subjects, chiefly whether workers in the legislative branch are considered “public employees” as defined by Delaware Code and whether they fall under the jurisdiction of the Public Employee Relations Board (PERB).

Executive branch employees are covered by the PERB, but in 2009, the Delaware Supreme Court ruled court bailiffs who wanted to organize would not fit that category.

“The Chief Justice has exercised the authority to supervise judicial branch employees’ labor relations by promulgating Judicial Branch Personnel Rules. Those Rules recognize the right to organize, but do not cede responsibility to the executive branch to decide labor relations issues,” reads the decision in part.

“Accordingly, we hold that the PERB does not have jurisdiction over the Union’s petition to represent bailiffs.”

It’s not entirely clear whether legislative staffers are public employees and, even if they are, whether the PERB would include the legislature, which is of course a separate branch of government.

Such a decision would likely have to be made through the courts, which could entail a lengthy case.

Should it be determined the PERB has no jurisdiction over General Assembly employees, the legislature would have to develop its own process and administrative authority for collective bargaining.

Even in the event legislative staffers are found to be public employees who fall under the PERB’s authority, there’s another issue: The constitution reserves the right to appropriate funds to the General Assembly. By letting aides negotiate with the PERB, lawmakers would effectively be subordinating the legislature to the executive branch.

The initial statement that appeared to indicate Republicans were on board could possibly be grounds for a lawsuit for defamation or a similar claim, although, like the other issues, it’s not totally clear at this point.

Senate Republican staffers in their Jan. 29 statement said they “are considering all actions to take to remedy the damage done to some of our staff members’ reputations, and to ensure that the process is done fairly and legally.”