United Steel Workers, Local 9488 & 9489 v. Government of the Virgin Islands, Division of Personnel, and Public Employees Relations Board

Superior Court of The Virgin Islands·Decided August 13, 2022·No. SX-15-CV-260·Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

******7‘:

UNITED STEELWORKERS LOCALS 9488 & 9489 )

) CASE NO SX 15 CV 260 Petitioner, )

)

vs )

) PETITION FOR WRIT

GOVERNMENT OF THE VIRGIN ISLANDS ) OF REVIEW DIVISION OF PERSONNEL and PUBLIC ) EMPLOYEES RELATIONS BOARD )

)

Respondents ) Cite as 2020 V 1 Super 75 U )

MICHAEL J SANFORD Esq ZULEYMA CHAPMAN Esq Sanford Amerling & Associates Assistant Attorney General Labor 2191 Church Street Office of Collective Bargaining Christiansted V100820 4601 5001 Chandler s Warf Suite 10 A1101 mayfor PeIIIIOI’IeI Christiansted, V I 00820 Align“ dummy] (1 och \j 0m HENRY C SMOCK, Esq Attorneyfor Gavel nment 0fthe Virgin Islands SmockLaw P C P O Box 1498 LARRY RAYMOND ROY Esq St Thomas V I 00804 P O Box 25435 [mupclz 1': \gQfljfidH mm Christiansted, V I 00824 Attorney for Pllb/lC Employees Relations Board [11m (1 1 112L111£ng Attorneyfor Public Employees Relations Board

CARTY RENEE GUMBS Judge

MEMORANDUM OPINION

11 1 THIS MATTER is before the Court upon the Petition for Writ of Review Petitioners filed their brief on April 12, 2019 Respondents, the Government of the Virgin Islands and the Division of Personnel (hereinafter Personnel or the Government ) filed their Opposition brief on May 10,

United Steelu orkers Locals 9488 & 9489 v Cite as 2020 V I Super 75 U G VI Dzvzszon ofPersonnel et a] Case No SX 15 CV 260 Memorandum Opinion

2019, and Respondents, the Public Employees Relations Board (hereinafter PERB ), filed its Opposition brief on May 23 2019 Petitioners filed their reply on July 24 2019

A BRIEF FACTUAL BACKGROUND 11 2 The PERB held hearings on March 10 and 11, 2014, and issued its Decision and Order on June 29, 2015 Petitioners then instituted this writ of review on July 13, 2015 The appeal has been timely filed within the 20 days as required by title 24, section 380 of the Virgin Islands Code The Court being satisfied in the premises, the PERB s decision is modified in part and upheld in part The PERB s decision is modified as it pertains to Ms Rochelle Benjamin and Ms Adonna Duggins and they are permitted to remain in the bargaining unit However, as it pertains to Ms Kathleen Simmonds and Ms Millicent Aubain, this Court holds that the PERB correctly excluded these employees and enforces the PERB s decision accordingly B LEGAL ANALYSIS i Standard of Review for Writ of Review 11 3 Pursuant to title 24, section 380(a) of the Virgin Islands Code, any party aggrieved by any final order of the PERB may appeal to the Superior Court of the Virgin Islands for review of such order ‘ In addition, Wzlllams Jackson v Pub Emps Relations Ba' , 52 VI 445, 450 (V1 2009) echoed section 380(b) by stating that the Court must review questions of fact to ascertain whether the PERB s factual determinations were supported by substantial evidence in the records considered as a whole 2 Substantial evidence is evidence such that a reasonable mind would accept as sufficient

‘ See also Pub Emps Relations Bd v Umted Indus Workeis Seafarers Int 1 Union, 56 V I 429, 433 34 (V l 2012) Out VIIgm Islands Labor Union v Pub Emps Relations 8d 71 VI 515, 518 (VI Super Ct 2019) Fla e) v Police Benevolent Ass n Local 816 2017 VI Lexis 177 at *8 9 (V I Super Ct June 7 2017) 24 V I C §380(b)

United Steelit 01kers Locals 9488 & 9489 v Cite as 2020 V I Super 75 U G VI Dzvzszon ofPersormel et a] Case No SX 15 CV 260 Memorandum Opinion

to support the PERB s decision 3 The primary role of the Court in reviewing a PERB decision is to ultimately enforce the order, modify the order and enforce it, set the order aside, or return the matter to the PERB with instructions for further proceedings 4 ii Parties’ Arguments {I 4 Petitioners, in their brief, argue that the issues of access to confidential information as it pertains to Rochelle Benjamin, Financial Management Supervisor Adonna Duggins, Personnel Records Management Supervisor; Kathleen Simmonds, Supervisor of Recruitment and Classification and Millicent Aubain, Territorial Administrator, Recruitment and Classification do not implicate any labor relations or collective bargaining matters They argue that the PERB incorrectly barred them from remaining in the collective bargaining unit because of their alleged classification as confidential employees 11 5 The Government in its Opposition, argued the following points (1 ) much like other jurisdictions have outlined because the employees in question are Personnel employees and thus are confidential personnel, this alone should be sufficient to exclude them from the bargaining unit,5 (2 ) inclusion in the collective bargaining unit is a fundamental conflict of interest because these Personnel employees are subject matter experts on issues that implicate labor relations and collective bargaining proceedings and their dual role as government employees and union participants disadvantages the govemment when it comes to union issues 6 and (3 ) their job duties render them as confidential

3 Williams Jacksonv Pub Emps Relations 8d 52 VI 445 450 (VI 2009) (citing Lockhaltv Matthew 250F Supp 2d 403 41213(DVI 2002) 424 v I C 380(c) 5 Government 5 Brief pp 4 & 5 (citing statutory provisions from other julisdictions that explicitly exclude PERSONNEL employees from bargaining unit These jurisdictions include Delaware, D C Iowa Montana Ohio, and Pennsylvania) 6 See genelally Government 5 Brief pp 6 8 Elab01ating that DOP personnel oversee collective bargaining issues such as terminations suspensions demotions reprimands promotions job classifications, employee certifications, employee

United Steelu orkets Locals 9488 & 9489 v Cite as 2020 V I Super 75 U G V] DIVISION ofPersonnel et a] Case No SX 15 CV 260 Memorandum Opinion

employees and based on prior PERB cases, these employees cannot be placed in these bargaining units due to their continued exposure to confidential personnel information 7 In similar fashion, Respondent PERB also filed an opposition brief, reiterating that in accordance with its own precedent, the confidential nature of these employees jobs necessitated exclusion from the bargaining unit 8

iii The first question for this Court is whether the employees are confidential employees

11 6 In NLRB v Hendizcks Cry Rural Elec Mblshp Corp 454 U S 170 (1981) the U S Supreme

Court held that the labor nexus test is the appropriate test in determining the eligibility of confidential employees to participate in collective bargaining units under the National Labor Relations Act (hereinafter NLRA ) In particular, the labor nexus test looks at whether the confidential employee ‘formulates, determines, or effectuates management policies in the field of labor relations 9 An employee 5 status as a confidential employee is a question of fact that is reviewed using the standard of substantial evidence NLRB v Meencm 011 CO L P 139 F 3d 311, 317 (2d Cir 1998) In order to be classified as a confidential employee, it is insufficient that the employee is exposed to confidential, sensitive information; a confidential employee classification requires more that (1 ) the confidential information is information that the Union has no advance knowledge of or access to, and (2 ) directly implicates grievance proceedings, collective bargaining issues, contractual negotiations and other labor relations functions 10 Many courts have narrowly construed the definition of confidential employees and have continuously cautioned against a broader

testing, desk audits working out of classification determinations salary adjustments step increases job descriptions eligibility certification trainings and interpretation of the personnel rules and regulations ) 7 Government 3 Biief, pp 9 10 8 See genemlly PERB s 3116f °1’VLRB v Hendricks Cty Rural Elec Mbishp C011) 454U S 170 194 95 (1981) ‘0 Meenan 011 CO L P at 317 18 (citing cases that clearly identify the areas that are covered undei the umbrella of labor relations)

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United Steel Workers, Local 9488 & 9489 v. Government of the Virgin Islands, Division of Personnel, and Public Employees Relations Board (United Steel Workers, Local 9488 & 9489 v. Government of the Virgin Islands, Division of Personnel, and Public Employees Relations Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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