In Re United Auto Workers, Local 2322 (University of Vermont, Appellant)

2025 VT 8, 331 A.3d 1143

• Court: Supreme Court of Vermont
• Decided: February 21, 2025
• Docket: 24-AP-129
• Status: Published

Opinion

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: Reporter@vtcourts.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

2025 VT 8

No. 24-AP-129

In re United Auto Workers, Local 2322 Supreme Court (University of Vermont, Appellant) On Appeal from Labor Relations Board

December Term, 2024

David Boulanger, Acting Chair

Meghan E. Siket, Assistant General Counsel, Burlington, and Nicholas DiGiovanni of Morgan, Brown & Joy, Boston, Massachusetts, for Appellant.

Catherine A. Terrell of Pyle Rome Ehrenberg PC, Brattleboro, and James A.W. Shaw and Kyle A. Berner of Segal Roitman LLP, Boston, Massachusetts, for Appellee.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Johnson, J. (Ret.), Specially Assigned

¶ 1. CARROLL, J. The University of Vermont appeals from a Vermont Labor

Relations Board decision concluding that predoctoral fellows and trainees are employees for

purposes of the State Employees Labor Relations Act (SELRA). We reverse and remand for

further consideration of the issue.

¶ 2. Petitioner, United Auto Workers, Local 2322, filed a petition with the Board

seeking to represent a bargaining unit of select graduate students at the University composed of

“[a]ll full-time and regular part-time graduate teaching assistants, graduate research assistants,

graduate assistants, pre-doctoral trainees, pre-doctoral trainees/fellows, and all other graduate

students in other titles who are employed in an academic position.” The University objected, arguing that none of the petitioned-for individuals were employees under the SELRA. On

appeal, the University only challenges the Board’s conclusion as to the employee status of

predoctoral fellows and trainees.

¶ 3. After a three-day hearing, the Board issued a final order in which it made the

following factual findings relevant to predoctoral fellows and trainees, none of which are directly

challenged on appeal.1 Approximately 1700 students are engaged in graduate studies at the

University. Approximately two-thirds of these students are pursuing a master’s degree and one-

third are pursuing a doctorate. The University contains ten schools and colleges and offers about

twenty-six Ph.D. programs and fifty-six master’s-degree programs. Although not all programs

have a teaching requirement, graduate students in Ph.D. programs have a teaching requirement.

Of the 1700 graduate students, fifty-seven individuals were predoctoral fellows and trainees in

the fall of 2023.

¶ 4. The University’s graduate college oversees the predoctoral fellows and trainees.

Graduate students are not required to hold one of the positions in the proposed bargaining unit

and most students at the University are “self-funded.” Fellowships have both external and

internal funding sources. Predoctoral fellows apply for external fellowships directly. The

fellowship award is made to the individual student, and they carry that funding with them,

although the University administers the funds. Predoctoral fellows may be required to engage in

teaching or research and may have additional requirements beyond their academic degree

requirements, such as summer enrollment and research. Students are appointed as predoctoral

trainees rather than fellows when their stipend is paid from a training grant awarded to the

1 The Board adopted the term “assistantship” when referring to the group of petitioned- for individuals collectively. At times, the Board also used the term “graduate assistantship,” and it is unclear whether these findings always include predoctoral fellows and trainees. We accordingly interpret the factual findings related to predoctoral fellows and trainees to be those in which the Board used the term “assistantship(s)” or referred to the predoctoral fellows and trainees specifically.

2 University as opposed to the individual student. Typically, trainees are required to complete a

specific training program.

¶ 5. Several students testified before the Board regarding their experiences in positions

within the proposed unit. One student was a predoctoral trainee as part of the Quantitative and

Evolutionary STEM Training (QuEST) program during his first and third year at the University.

The Board found that as part of this program, he had to complete an internship outside of

academia, participate in training, and attend professional development seminars. He had to

adhere to specific requirements of the program to receive funding. During his third year, he

interned for a federal laboratory.

¶ 6. Another student was a predoctoral trainee with the National Science Foundation

QuEST program. She was required to dedicate twenty hours per week to the traineeship. Her

requirements included undergoing training, completing an internship outside of academia,

interacting with different disciplines, and participating in professional development. She had to

adhere to specific requirements of the QuEST program to receive funding. She was supervised

by her faculty advisor and other faculty helped her comply with the program’s requirements.

She received tuition reimbursement and health insurance. She also held an internal fellowship,

supervised by her academic advisor, for which she received compensation through the

University’s payroll system.

¶ 7. Predoctoral fellows and trainees are not permitted to engage in other compensated

efforts at the University unless they receive permission from the graduate college. Fellows and

trainees are required to pay income taxes; however, they do not receive W-2s and the University

does not withhold taxes from their stipend payments.

¶ 8. Based on these findings, the Board concluded that the predoctoral fellows and

trainees were “employees” of the University such that they were entitled to “the right to self-

3 organization” under the SELRA. 3 V.S.A. § 903(a). The Board first recognized the term

“employee” is broadly defined under the SELRA as “a State employee defined by subdivision

(5)” of § 902. Id. § 902(4). Subdivision (5) in turn defines “state employee” in relevant part as

“any individual employed on a permanent or limited-status basis by the State of Vermont, the

Vermont State Colleges, the University of Vermont, the State’s Attorney’s offices, or as a full-

time deputy sheriff paid by the State.”2 The Board, explaining that the term “employed” is not

further defined in the statute, adopted the ordinary dictionary definition of employee, which it

described as a person “who provide[s] work to someone for pay” or “any person who works for

another in return for financial or other compensation.”

¶ 9. Pursuant to this definition, the Board concluded all individuals in the proposed

bargaining unit were employees because they work for the University. The Board also

concluded predoctoral fellows and trainees should not be excluded from the bargaining unit

because they “provide a service, work, or effort, for which they are compensated or paid by the

University and are supervised [or] monitored in performance of such efforts.”3 It therefore

granted the petition and ordered a secret ballot election. See id. § 941(g).

¶ 10. The University moved for reconsideration, arguing the Board did not specifically

address the employee status of predoctoral fellows and trainees in its order. The Board denied

the motion, reiterating it had concluded that all the individuals in the proposed unit were

2 “State employee” also “includ[es] permanent part-time employees.” 3 V.S.A. § 902(5). The University argued below that graduate students are only temporary employees. The Board rejected this argument, and the University does not challenge this conclusion on appeal. The statute also excludes individuals from the definition of “State employee” who the Board determines, after a hearing, are “in a position that is so inconsistent with the spirit and intent of this chapter as to warrant exclusion.” Id. § 902(5)(J). As an alternative argument, the University argued below that this exclusion should apply as to all individuals in the bargaining unit because they are students, and the Board rejected this argument. The University does not challenge this conclusion on appeal. The statute also lists ten other exclusions from the definition of employee, none of which are relevant here. See id. § 902(5). 3 We do not address the remainder of the Board’s order not challenged on appeal.

4 employees, including predoctoral fellows and trainees, because they work for the University and

that predoctoral fellows and trainees should not be excluded from the bargaining unit. An

election was held in March 2024. The Board certified the election in April 2024. The University

appealed challenging only the Board’s conclusion that predoctoral fellows and trainees are

employees under the SELRA.

¶ 11. We first address petitioner’s argument that the University waived any challenge to

the employee status of predoctoral fellows and trainees by failing to properly raise its objection

in response to the bargaining-unit petition under 3 V.S.A. § 941(c)(2)(A)(i). That provision

states: “An employer shall, not more than seven business days after receiving a copy of the

petition, file any objections to the appropriateness of the proposed bargaining unit and raise any

other unit determination issues with the Board.” Id. In its timely filed objection, the University

primarily argued that all the individuals in the proposed bargaining unit were not employees

under the SELRA and that the petition should therefore be dismissed in its entirety.

Alternatively, the University argued that “should the Board rule that the petitioned students are

employees and entitled to unionize, the University would contend that the following should be

excluded from any unit,” and provided a list including predoctoral fellows and trainees.

Petitioner submits this latter argument related to whether the challenged individuals were

appropriately considered part of the bargaining unit’s community of interest and did not preserve

the claim the University now raises on appeal, which is that the Board erred in concluding

predoctoral fellows and trainees are employees.

¶ 12. We conclude the University’s primary argument sufficiently alerted the Board

that the University was objecting to the employee status of all individuals in the proposed

bargaining unit, including predoctoral fellows and trainees. It therefore preserved the argument

for appeal. See Pratt v. Pallito, 2017 VT 22, ¶ 16, 204 Vt. 313, 167 A.3d 320 (“[T]o properly

5 preserve an issue, a party must present the issue to the administrative agency with specificity and

clarity in a manner which gives the [agency] a fair opportunity to rule on it.” (second alteration

in original) (quotation omitted)). The fact that the University raised an alternative contingent

argument concerning the appropriateness of including predoctoral fellows and trainees in the

proposed bargaining unit does not mean that it waived its primary argument. Petitioner offers no

authority to support its claim that the University was required to specifically object to the

employee status of predoctoral fellows and trainees “as a disjunctive alternative to its general

objection to the employee status” of all members in the proposed bargaining unit.

¶ 13. Having concluded the University’s argument was properly raised before the

Board, we now address whether the Board erred in concluding predoctoral fellows and trainees

are employees under the SELRA. 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.” In re N.E. Police Benevolent

Ass’n, 2016 VT 67, ¶ 8, 202 Vt. 318, 148 A.3d 1002 (quotation omitted). We will affirm if the

findings, “taken as a whole, justify the Board’s ultimate conclusion.” In re Welch, 2020 VT 72,

¶ 10, 213 Vt. 92, 239 A.3d 235.

¶ 14. On appeal, the University is not challenging the Board’s interpretation of the term

“employee” under the SELRA or the Board’s specific factual findings. The University argues

the Board erred in concluding that predoctoral fellows and trainees are employees under the

SELRA. Our review is thus limited to whether the Board’s factual findings support the Board’s

conclusion that predoctoral fellows and trainees work for the University in return for

compensation. Assuming without deciding that the Board’s interpretation of the term employee

under the SELRA is correct, the Board unreasonably applied this definition to the employee

6 status of predoctoral fellows and trainees in this case, and thus we must reverse and remand for

further proceedings.

¶ 15. The Board summarily concluded predoctoral fellows and trainees are employees.

However, the Board made no findings to support its conclusion that predoctoral fellows and

trainees work for the University. While the Board found some predoctoral fellows and trainees

had to adhere to the requirements of their specific programs in order to receive funding, it did not

find any of these requirements involved work for the University. Rather, its findings indicate

that any requirements predoctoral fellows and trainees may have, at least those beyond academic

requirements, are those related to professional development and training and internships outside

of the University or other academic institutions.

¶ 16. Petitioner suggests that even though the work of predoctoral fellows and trainees

takes place outside of academia, the University still benefits from the services of predoctoral

fellows and trainees, citing to the dean of the graduate college’s testimony that the University

receives grant money. Yet the Board neither made findings to this effect nor based its decision

on this ground. See LaFountain v. Dep’t of Labor, 2018 VT 31, ¶ 9 n.1, 207 Vt. 120, 186 A.3d

613 (rejecting argument because Employment Security Board “did not make any findings to

th[at] effect, and it did not base its decision on [that] ground”).

¶ 17. Petitioner also argues the “right to control” test supports the Board’s conclusion

that predoctoral fellows and trainees are employees under the SELRA. “In the context of tort

cases, we have relied upon the common law ‘right to control’ test to determine whether a worker

is an employee or an independent contractor.” Kuligoski v. Rapoza, 2018 VT 14, ¶ 14, 207 Vt.

43, 183 A.3d 1145. “Under that test, a worker is an employee if the party for whom work is

being done may prescribe not only what the result shall be, but also may direct the means and

methods by which the other shall do the work.” Id. ¶ 15 (alteration and quotation omitted). We

7 also look to factors set forth in § 220 of the Restatement (Second) of Agency “to help analyze the

nature of the employment relationship” when the right to control test “does not clearly answer

the question.” Id. ¶ 16 (quotation omitted). These factors, “in addition to the extent of control”

include:

whether the worker is engaged in a distinct occupation, whether the kind of occupation engaged in is usually done under the direction of an employer, the skill required, whether the worker supplies the tools for the work, the length of time the worker is employed, whether payment is by time or by the job, whether the work is part of the regular business of the principal, whether the parties believe they are creating an employer-employee relationship, and whether the principal is or is not in business.

Id. (quotation omitted). However, the Board neither applied this test nor based its decision on

these grounds. See Favreau v. Dep’t of Emp. & Training, 156 Vt. 572, 575 n.*, 594 A.2d 440,

442 n.* (1991) (“As the [Employment Security] Board did not base its decision on th[e] ground

[advanced by the appeals referee], the issue is not before us.”). The Board concluded that

predoctoral fellows and trainees are supervised and monitored in performance of their efforts but

made no findings as to the levels of supervision or whether the University has control over how

and when the predoctoral fellows and trainees achieve compliance with their programs.

¶ 18. The Board’s sparse findings and conclusion regarding predoctoral fellows and

trainees stand in sharp contrast to its extensive findings about graduate assistants. In addition to

the findings recited above, the Board found the graduate college oversees graduate assistant

positions. Graduate assistants are “on contract” and are expected to answer business-related

emails and be available for business-related events. The graduate college approves contracts

between the University and graduate assistants ensuring the assistants receive healthcare,

training, and the minimum stipend amount. Graduate teaching and research assistants received a

minimum stipend of $32,000 for a twelve-month appointment in 2024. The stipend is awarded

8 through the University’s payroll system on a semi-monthly basis and the University reports these

wages on W-2s.

¶ 19. The University sends an appointment letter to graduate assistants which

distinguishes between academic work and graduate assistant work. The appointment letters

indicate the stipend amount, expected weekly hour requirement, job duties, and other terms of

employment. Supervisors assign work to the graduate assistants. Graduate assistants may be

disciplined or terminated if they fail to meet performance expectations. This discipline is

separate from any academic discipline. The University also labels graduate assistants as

employees throughout various documents and student handbooks.

¶ 20. Students who were graduate teaching assistants were required to spend twenty

hours per week teaching classes and lab sections, grading exams, maintaining office hours, and

supporting the class instructor, who supervised them in their efforts. Research assistants perform

research assignments at the direction of their supervisor. They were not permitted to use this

research towards their individual studies; the research furthered the goals of the principal

investigator and the University. Graduate assistants may also be required to engage in other

University events.

¶ 21. The Board concluded that graduate assistants are employees because they work

for the University in exchange for compensation. The Board’s decision was based on its findings

that graduate teaching assistants are expected to engage in twenty hours of effort per week

including grading papers, teaching classes and leading lab sections at the University, and

supporting the class instructor. They are required to hold office hours and review sessions.

Research assistants also must work twenty hours per week and produce deliverables for their

supervisors in the University’s laboratories on research that is not directly related to their

individual academic interests. The tasks required of graduate assistants serve the University and

9 undergraduate students and “contribute to the success of those students.” The Board also noted

that one graduate teaching assistant must “confer with his course coordinator about the direction

of the mathematics classes he teaches.” In exchange for and contingent upon these efforts, the

University compensates graduate assistants in the form of a paycheck through the University’s

payroll system. Finally, the University had declared in its own documents that graduate teaching

and research assistants are University employees.

¶ 22. The Board made no such findings with regard to predoctoral fellows and trainees,

and its conclusory statement that these individuals work for the University begs the question. It

does not necessarily follow that predoctoral fellows and trainees fit the Board’s definition of

employee under the same reasoning as graduate assistants just because they were all included in

the same proposed bargaining unit. The Board’s decision fails to address its own findings that

predoctoral fellows and trainees apparently have no obligations to the University beyond

academic requirements, do not receive W-2s, or that the funding for predoctoral fellows is tied to

the individual student. It also fails to address the lack of findings that the University internally

labels predoctoral fellows and trainees as employees, that the required tasks of predoctoral

fellows and trainees serve or benefit the University or students at the University, or that

predoctoral fellows and trainees may be disciplined by the University for failure to comply with

program requirements.

¶ 23. It is not clear that predoctoral fellows and trainees fall under the Board’s

definition of employee based on the record and findings available to us in this appeal. Without

such findings or more detailed reasoning supplied by the Board as to why these differences

between graduate assistants and predoctoral fellows and trainees are immaterial to the outcome,

we can only “speculate” as to how the Board reached its decision. Page v. Smith-Gates Corp,

143 Vt. 280, 283, 465 A.2d 1102, 1104 (1983) (quotation omitted) (“Nor is it clear how the final

10 decision . . . was reached.”); Roy v. Town of Barnet, 147 Vt. 551, 552, 522 A.2d 525, 526 (1986)

(“Although we may be able to determine what was decided, we are unable to conclude how the

[State Board of Appraisers] arrived at its decision.”). That we will not do. See Saufroy v. Town

of Danville, 148 Vt. 624, 626, 538 A.2d 168, 169 (1987). We thus must remand to the Board to

consider these issues in the first instance. Accordingly, the Board’s order with respect to the

employee status of predoctoral fellows and trainees is reversed and the matter is remanded to the

Board for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings consistent with this opinion.

FOR THE COURT:

Associate Justice