In re New England Police Benevolent Ass'n

199 Vt. 96, 2015 Vt. 51
CourtSupreme Court of Vermont
DecidedMarch 27, 2015
DocketNo. 14-146
StatusPublished
Cited by3 cases

This text of 199 Vt. 96 (In re New England Police Benevolent Ass'n) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re New England Police Benevolent Ass'n, 199 Vt. 96, 2015 Vt. 51 (Vt. 2015).

Opinion

¶ 1.

Dooley, J.

The New England Police Benevolent Association (NEPBA) appeals the Vermont Labor Relations Board’s dismissal of NEPBA’s petition for election of a collective-bargaining representative for NEPBA’s failure to provide justification for its untimely filing. We affirm.

¶ 2. On January 30, 2014, NEPBA filed a petition for the election of a collective-bargaining representative to represent the sworn law enforcement officers of the Vermont Department of Fish and Wildlife, Vermont Department of Liquor Control, and Vermont Department of Motor Vehicles (collectively “the officers”). The officers seeking new representation are among those in the Non-Management Bargaining Unit, which is covered by a collective-bargaining agreement between the Vermont State Employees Association (VSEA) and the State of Vermont. The existing collective-bargaining agreement was set to expire on June 30, 2014, and the Non-Management Bargaining Unit was scheduled to conduct a ratification vote on a successor agreement on January 31, 2014, the day after the petition was filed.

¶ 3. On January 31, 2014, the day after NEPBA’s filing, the Board contacted NEPBA requesting justification for why the normal time period for filing a petition should be waived. According to § 13.2 of the Board Rules of Practice, which governs timely filing of petitions for election of a collective-bargaining representative and imposes the “contract-bar” rule, the filing window was August 9, 2013, through September 8, 2013. NEPBA responded that the majority of employees in the VSEA unit have interests different from those of the sworn law enforcement officers and [98]*98that ratification of the agreement to extend the contract would foreclose the officers’ opportunity to freely elect a new representative to represent their interests.

¶ 4. On March 28, 2014, the Board issued its decision. The Board found that NEPBA provided no justification for why the normal time period should be waived but rather “incorrectly assert[ed] that the petition was filed prior to the normal time period in which to file petitions.” The Board concluded that considering the timeliness of the petition in the absence of justification “would be unfair to incumbent representative VSEA and the State who negotiated the contract at a time following the open period in which they were entitled to negotiate free from the threat of challenge to the majority status of the employee representative.” Consequently, the Board dismissed the petition. This appeal followed.

¶ 5. On appeal, NEPBA argues that the Board failed to consider its proffered justification and instead improperly concluded that NEPBA provided no justification. Moreover, NEPBA asserts that the Board failed to conduct any analysis in support of its position, explain its findings, or define the applicable legal standard. NEPBA also argues that its proffered justification — that the pending ratification of the successor agreement would foreclose the officers’ opportunity to select a collective-bargaining representative — is sufficient to waive the normal period for timely filing. We disagree with NEPBA on the first issue and hold that the Board did not err in dismissing the petition for NEPBA’s failure to provide a justification for the untimely filing.

¶ 6. Our review of the Board’s decision is highly deferential and “is limited to evaluating whether the evidence supports the Board’s factual findings, and whether those findings, taken as a whole, justify the conclusions of law.” United Academics v. Univ. of Vt., 2005 VT 96, ¶ 9, 179 Vt. 60, 889 A.2d 722. We will uphold an agency’s interpretation of its own regulation absent compelling indication of error. See In re Rusty Nail Acquisition, Inc., 2009 VT 68, ¶ 12, 186 Vt. 195, 980 A.2d 758.

¶ 7. As explained in more detail below, this case involves the Board’s implementation of the contract-bar doctrine. The Board has the discretion to “ ‘apply or waive [the doctrine] as the facts of a given case may demand in the interest of stability and fairness in collective bargaining agreements.’ ” St. Albans Police [99]*99Officers Ass’n, 8 V.L.R.B. 46, 54 (1985) (quoting Local 1545, United Bhd. of Carpenters v. Vincent, 286 F.2d 127, 131 (2d Cir. 1960)). Consistent with this discretion, we review the Board’s dismissal of an untimely petition for abuse of discretion, In re Rosenberger, 2009 VT 18, ¶ 20, 185 Vt. 343, 970 A.2d 1257, and will affirm unless the dismissal is clearly erroneous. In re AFSCME, Local m, 153 Vt. 318, 321, 571 A.2d 63, 65 (1989). Petitioners bear the burden of “present[ing] sufficient justification for waiving the normal time period.” Town & Vill. of Ludlow Emps., 32 V.L.R.B. 48, 51 (2012).

¶ 8. The contract-bar doctrine defines the open period for filing election petitions by prospective collective-bargaining representatives. Section 13.2 of the Board Rules of Practice1 states the contract-bar rule under the State Employees Labor Relations Act:

If a collective bargaining agreement is in effect which covers any or all of the employees to be covered by the petition, a petition shall normally be considered timely only if filed during the period 150 to 120 days prior to the date the General Assembly convenes in regular session for the year during which the collective bargaining agreement expires or if filed after the expiration date of the agreement if a successor agreement has not become effective. A petitioner filing a petition at any other time shall justify why the normal time period should be waived.

The objective of the contract-bar doctrine “is to achieve a reasonable balance between the competing interests of stabilizing the employer-union relationship and free employee choice of representative.” St. Albans Police Officers Ass’n, 8 V.L.R.B. at 52. Barring petitions during the remainder of the term of a preexisting contract “provides a settled work environment and stabilization of the employer-union relationship necessary for productive labor relations.” Id. at 53. Absent justification, the Board generally will not entertain petitions during the “insulated period” between the open period and the expiration of the existing agreement. See Town & Vill. of Ludlow Emps., 32 V.L.R.B. at 54; Deluxe Metal Furniture Co., 121 N.L.R.B. 995, 1001 (1958) (emphasizing importance of insulated period in “preventing] the threat of overhang[100]*100ing rivalry and uncertainty during the bargaining period, and . . . eliminat[ing] the possibility for employees to wait and see how bargaining is proceeding and use another union as a threat to force their current representative into unreasonable demands”), abrogated on other grounds by Leonard Wholesale Meats, Inc., 136 N.L.R.B. 1000 (1962).

¶ 9. With this background and our limited scope of review in mind, we consider NEPBA’s argument that the Board erred in concluding that NEPBA offered no justification for its untimely filing. NEPBA stated in its motion for waiver of the normal time period:

The entire Non-Management unit of the VSEA held a ratification vote prior to the “open” period in which a petition for election would have been considered timely filed in accordance with the contract-bar doctrine and section 13.2 of the Board Rules of Practice.

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