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Patrick shifts position on worker unionization

In March, legal team opposed labor bid; governor now backs pared version

Governor Deval Patrick.Jim Cole/AP/File

Seven months before Governor Deval Patrick agreed to transfer 500 state workers into a public employees union, his legal team successfully blocked a similar union effort by arguing it would be contrary to law.

Documents obtained by the Globe show that Patrick’s legal team in March opposed an effort by the National Association of Government Employees to represent about 3,000 state employees hired since July 2011. Patrick’s team argued that the positions that NAGE wanted to include had not been part of the union in its 30-year history and that the transfer would deny workers the right to determine their own representation.

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Now, Patrick is arguing that extending union protection to another 500 workers is warranted.

The latest transfer, proposed in October as Patrick prepared to leave office, has been controversial because folding the workers into the union will effectively insulate them from layoffs at a time of transition. Patrick, who has called for emergency spending cuts to eliminate a budget crunch, is about to hand over the corner office to Charlie Baker, a Republican who has promised a thorough review of state government.

RELATED: 10/18: Patrick quietly transfers 500 managers to public employee union

Baker has criticized the decision to unionize so many employees, calling it an “11th-hour move to reward political supporters” and “troubling, given the complete lack of transparency regarding the decision and potential implications for agencies crucial to delivering services to the people of Massachusetts.”

Administration officials have said the move will cost about $500,000 but the cost can be absorbed through the existing budgets of various agencies.

At the same time, the governor is seeking cuts in local aid and other areas to close an estimated $329 million budget gap for the year.

Patrick administration officials have strongly defended the transfer, saying it was necessary because the employees had been “improperly classified” as managers.

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The union had been arguing for years that many state employees were misclassified as managers and should be covered under its collective bargaining agreement. Neither NAGE president David J. Holway nor a spokeswoman returned repeated phone calls for comment.

In the earlier move, records show, a Patrick administration lawyer, Michele M. Heffernan, objected to the scope of the transfer and warned that it would eliminate individual workers’ rights to decide whether they wanted to be in a union.

“Those employees have a right under the law to cast a vote as to whether they choose to be represented by NAGE or would rather not be represented,” Heffernan wrote.

Heffernan also said that increasing the union so dramatically would be unfair to the existing members whose “standing within the unit would be diluted, thus impacting their ability to be effectively represented.”

The Patrick administration prevailed when the Department of Labor Relations, an independent state agency, dismissed NAGE’s petition in March and declined to reconsider it in April.

Despite that earlier victory, the Patrick administration in October, just weeks before the election, decided to unionize 500 positions.

An administration spokeswoman said that the number was based on a careful analysis of the jobs that were misclassified.

The administration eventually provided a list of 500 positions, 60 of them vacant, that would be unionized. The jobs span agencies from the Department of Youth Services to the Department of Public Utilities and include administrative officers, program coordinators, and system programmers, whose jobs puts them at the lower levels of management, several rungs below department heads.

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The newly unionized employees will get previously negotiated raises of 3 percent in January, and 3 percent in each of the next two years, though their duties will not change, officials said. The union’s existing members had ratified their contract last summer.

Asked why Patrick reversed course, a Patrick spokeswoman said the administration had analyzed the union’s claim and decided that it had some merit. Also, the Department of Labor Relations had signaled that NAGE could prevail by pursuing a different route through organizing. The administration wanted to make sure that only appropriate managers were unionized, said spokeswoman Heather Nichols.

“In this administration, when issues arise, we get the facts and deal with them squarely,” Nichols said. “When NAGE began the process of unionizing employees last fall, we wanted to ensure that process was being done in accordance with the law,” she said. “To that end, we initiated a full review of the relevant management positions across state government and found a number of individuals improperly classified as managers. We continue to work closely with NAGE on finalizing the transfer of these employees into the union.”

An outside labor attorney who often represents employers said that such a negotiation is not uncommon in a case like this, when a union makes it clear it will continue to press its case and the employer could end up ceding more ground.

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“It was not a final victory [for the state],” said Laurence J. Donoghue, a partner at Morgan, Brown & Joy LLP, who reviewed the documents for the Globe.

“Any employer is going to use that calculus: What are my chances of winning and how big can I lose, if I lose?”


Michael Levenson can be reached at Michael.Levenson@globe.com. Stephanie Ebbert can be reached at Stephanie.Ebbert@globe.com.