Cop out

Suppose you happen to be among the 12.3 percent of Americans who belong to a labor union. You enjoy the benefits of being in a union, but at the same time feel the bargaining unit doesn’t have your best interests at heart. When the union’s contract expires, you take advantage of the opportunity provided by state law to reduce your dues, and then set out to form your own union. Except before you have the chance, the old union boots you out and you’re forced to take them to court.

That, in a nutshell, is the situation that Chris Lewis and Scott Edelen found themselves in when they sought to resign from the powerful California Statewide Law Enforcement Association, a public-employees union 7,000 members strong. The CSLEA serves a wide membership that includes state hospital police, Department of Justice special agents, Department of Fish and Game wardens, Department of Insurance fraud investigators, Department of Alcohol and Beverage Control agents and state park rangers. It also represents the interests of about 2,800 sworn peace officers.

The latter group includes Lewis and Edelen, sworn officers who work as special investigators for the Department of Corporations, the state counterpart to the federal Securities and Exchange Commission. They feel that a union consisting of only sworn officers would better represent them.

“I’m sorry, but as sworn peace officers, we just don’t have a lot in common with DMV driving instructors,” said Lewis, noting that the CSLEA covers them, too.

In June 2008, CSLEA’s collective bargaining agreement with the state expired. State law allows public employees to resign from their unions and pay “fair share” dues during a specific window of time when they’re not covered by a contract. In November 2008, Lewis and Edelen submitted a severance petition to CSLEA which would have dropped their dues from about $80 per month to about $32 per month. Instead of allowing the pair to resign, CSLEA kicked them out of the union instead—an action that Lewis says was done purely out of spite because he and Edelen wanted to start a new union.

The union officially kicked out both men in January 2009. Between February and April, briefs were filed and hearings held at the Public Employment Relations Board. Lewis and Edelen contended that CSLEA violated state law—specifically the Ralph C. Dills Act—in not letting them to pay fair-share dues and resign from the union.

Despite being contacted by SN&R numerous times, CSLEA declined to comment for this story. In its closing brief filed with PERB, the association argued that it was within its rights to deny Lewis and Edelen the opportunity to reduce their dues. It also insisted that it had not retaliated against the pair, despite the fact that it booted both of them out of the union. “Although Edelen and Lewis were subsequently expelled from CSLEA membership, there is no evidence the motive to deny the requests was in retaliation for protected activity.”

However, PERB chief administrative law judge Bernard McMonigle didn’t see it that way, finding that “CSLEA unlawfully interfered with employee rights when it refused to honor valid requests to withdraw from membership in violation of the Dills Act.” McMonigle also concluded that CSLEA’s action did constitute a form of retaliation.

“CSLEA also argues that Edelen and Lewis cannot prevail here because they have not established an unlawful intent to interfere with their rights under the Dills Act,” the judge noted. “However, the test of whether a respondent has interfered with the rights of employees under the Dills Act does not require that unlawful motive be established, only that at least slight harm to employee rights result from the conduct.”

Not surprisingly, Lewis agrees.

“Usually, when you resign from a union, you go to fair share—the least amount of money—because they’re still the recognized bargaining unit that negotiates contracts and enforces contract provisions, and the law has provided that they’re entitled to some of your money,” Lewis said. “This is not about being ‘anti-union.’ It’s about them wanting to take as much money as they could from us by denying us that right to resign. If they were truly interested in not having me involved in their union, they would have let me resign. Instead, they took disciplinary action against me and kicked me out. So, yes, it was retaliatory. Absolutely.”

The Public Employees Relations Board concurs. In June 2009, it ruled in favor of Lewis and Edelen, but the CSLEA appealed. On December 31, 2009, an administrative law judge for PERB denied CSLEA’s appeal and upheld the first court’s ruling that CSLEA was in violation of the Dills Act for not allowing Lewis and Edelen out of their union, continuing to charge them full dues and retaliating against them by kicking them out of the union after they had asked to resign.

Because of the ruling, Lewis and others who had applied for fair-share dues will be issued refund checks in the near future, according to PERB officials. Lewis said he didn’t know how much his would amount to, but that he was expecting word in the coming week.

Just as importantly, the ruling paves the way for Lewis and Edelen to start their own union, tentatively called Peace Officers of California. They’ve already gained support from more than 50 percent of the 2,800 sworn officers in CSLEA—an action that helped spur retaliation from the union, Lewis said. He contends that a new union will grant sworn officers more bargaining clout with the state.

“We brought in testimony that showed that two previous governors wanted to give raises to the peace officers, but not to the nonsworn,” Lewis said, explaining why he thinks the CSLEA does not adequately represent peace officers. “The union turned both of those offers down because there were no raises to be given to the nonsworn.”

According to Lewis, the inability to negotiate wages separately for sworn officers is creating vacancies at the state level because the pay is not on par with sworn officers at the county and city levels.

“When you can’t compete with pay, you’re not going to be able to compete, so we had recruitment and retention issues,” Lewis said. For example, in 2008, Department of Fish and Game wardens were at 1970 staffing levels. (Fish and Game wardens are sworn officers, at the same level as California Highway Patrol officers, which have their own union.)

For its part, CSLEA isn’t talking. Repeated attempts over a two-day period to elicit a response for this article went unacknowledged by CSLEA chief legal counsel Kasey Clark.

But it’s safe to assume that the union isn’t happy at the prospect of losing nearly 3,000 of its cop members, thus making a nice dent in the $6.72 million annually in dues it takes in from its 7,000 members.

Meanwhile, other sworn officers in the CSLEA are following Lewis and Edelen’s lead.

“I’m looking forward to moving to the new union,” said Todd Hern, a detective with the state Department of Insurance. “I’m absolutely pleased with the ruling; I don’t think the union has been doing us any favors. I tried to resign in January 2009, and was told I couldn’t and that I needed to have done it in June 2008—but I was deployed with the military at that time, so I couldn’t even do that. They said I’d have to wait another three years to resign—June 2011—even though we don’t have a new contract in place. This new ruling nulls and voids that.”

“I truly believe that the CSLEA has been doing us a disservice and that everyone—law enforcement—will switch,” Hern concluded.