HARWOOD UNION HIGH v. Harwood Educ. Ass'n, 99-173.

• Citation: 773 A.2d 277
• Decision Date: 06 April 2001
• Docket Number: No. 99-173.,99-173.
• Parties: HARWOOD UNION HIGH SCHOOL DISTRICT v. HARWOOD EDUCATION ASSOCIATION
• Court: United States State Supreme Court of Vermont

773 A.2d 277

HARWOOD UNION HIGH SCHOOL DISTRICT v. HARWOOD EDUCATION ASSOCIATION

No. 99-173.

Supreme Court of Vermont.

April 6, 2001.

Richard W. Park, Chair.

Steven F. Stitzel and Timothy M. Eustace of Stitzel, Page & Fletcher, P.C., Burlington, for Plaintiff-Appellant.

Joel D. Cook, Vermont-National Education Association, Montpelier, for Defendant-Appellee.

Present: DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ., and GIBSON, J. (Ret.), Specially Assigned.

SKOGLUND, J.

Petitioner Harwood Union High School District appeals the majority decision of the Vermont Labor Relations Board concluding that three administrative assistants working for the district are not confidential employees, as defined in 21 V.S.A. § 1722(6), and thus should be included in a bargaining unit represented by respondent Harwood Education Association. Because we conclude that the Board did not commit clear error by refusing to classify the three administrative assistants as confidential employees, we affirm its decision.

The district operates a high school and middle school in the same building in Moretown, Vermont. The association is the exclusive bargaining representative for eligible employees of the district, including secretarial staff. The district reorganized its administrative structure several times in the years leading up to the instant proceeding. In 1995, the administrative staff included a principal, an associate principal for each school, and a special education department head. The secretary to the principal was excluded from the bargaining unit, while the secretary for the two associate principals and the secretary for the special education department head were included in the bargaining unit.

During the 1995-1996 academic year, the district's administrative structure changed to include a high school principal, a middle school principal, a part-time special services coordinator, and a part-time special education department head. Pursuant to a memorandum of agreement that followed a unit clarification petition, the secretaries for both of the principals were excluded from the bargaining unit, while the secretary for the two special education positions was included in the bargaining unit. For the 1996-1997 academic year, the district consolidated the two part-time special education positions, but otherwise the administrative structure remained the same.

During the 1997-1998 academic year, the district reorganized the administrative positions again by creating a principal, a high school administrator, a middle school administrator, and a special services coordinator. One of the primary reasons for the reorganization was to place a greater emphasis on teacher development and evaluation. Each of the four administrators was made responsible for observing and evaluating approximately eighteen teachers on four occasions during each school year.

Under this administrative structure, the one in place at the time of the Board hearing, the principal oversees the entire school operation, while the other three administrators retain nearly complete authority over their areas of responsibility. The administrative assistants (formerly called secretaries) to the principal and the high school administrator were initially excluded from the bargaining unit, while the administrative assistant to the special services coordinator was included in the unit. For the 1998-1999 academic year, the district retained its administrative structure but added an administrative assistant position to support the middle school administrator.

On August 19, 1998, the district filed a unit clarification petition with the Board requesting that the administrative assistants to the high school administrator, the middle school administrator, and the special services coordinator be excluded from the association's bargaining unit as confidential employees. The parties do not dispute that the principal's administrative assistant should be excluded from the bargaining unit.¹ Following an evidentiary hearing, the Board concluded, in a two-to-one decision with the acting chair dissenting, that the three administrative assistants were not confidential employees and thus were entitled to be part of the association's bargaining unit.

The proceedings before the Board were governed by Vermont's Municipal Employee Relations Act, 21 V.S.A. §§ 1721-1735. Among the expressed purposes of the Act are to prescribe the rights of municipal employees and employers in their relations to each other, to provide procedures for preventing either group from interfering with the rights of the other, and to protect the rights of individual employees to join employee organizations and to bargain collectively. Id. § 1721. The Act excludes "confidential employees" from its definition of "municipal employee." Id. § 1722(12)(D). A "confidential employee" is defined under § 1722(6) as one "whose responsibility or knowledge or access to information relating to collective bargaining, personnel administration, or budgetary matters would make membership in or representation by an employee organization incompatible with his official duties."

Following the December 3, 1998 evidentiary hearing on the district's unit clarification petition, the Board made the following undisputed findings. Regarding matters of personnel administration, all three of the administrative assistants do routine clerical work such as answering the phone, opening and distributing mail, and typing documents for their administrator. Each of the assistants has unlimited access to teacher personnel files, which contain confidential documents, including written evaluations and any disciplinary letters. The assistants to the high school and middle school administrators type the teacher evaluations written by their administrator, distribute them to the teachers, and place a signed copy in the teacher's personnel file. Those assistants also occasionally type disciplinary letters.

In addition to routine secretarial work, the administrative assistant for the special services coordinator is responsible for maintaining staff schedules and planning the coordinator's unannounced observations of approximately thirty-six teachers and paraeducators. The coordinator types evaluations and disciplinary letters, but the assistant places them in the teacher's file. Because the assistant is extensively involved in coordinating students and staff, she knows which teachers may or may not receive a reduction-in-force (RIF) notice before those individuals themselves are notified.

Regarding matters related to the budgetary process, the Board found that the assistants to the high school and middle school administrators compile publicly available statistical information for the administrators to use in their budget proposals for their own areas of responsibility. The way the administrators use the information, however, is known only to the administrators, the assistants, and the school board. The assistant for the high school administrator also types budgetary memoranda that might include proposed staffing changes. The assistant for the special services coordinator gathers and applies information for a service plan that may result in sending RIF notices to paraeducators.

Regarding matters related to collective bargaining, the Board found that the administrative assistants for the high school and middle school administrators type reports containing the administrators' comments on provisions of the current collective bargaining agreement that they consider to be detrimental to instructional practices.

The Board also found that the district, through its administrators, regularly consulted with association representatives about personnel issues, including disciplinary and performance concerns involving bargaining unit members, before notifying the affected employee. Further, the Board found that at least one of the department heads active in the association is extensively involved in the budget process and maintains a continuing dialogue concerning the budget before a final budget plan is adopted. Moreover, the Board found that, before the most recent bargaining negotiations, the principal and a union representative discussed recommendations for changes in the collective bargaining agreements.

Based on these and other findings, the majority of the Board determined that none of the aforementioned duties warranted excluding the assistants from the bargaining unit. Regarding matters of personnel administration, the Board noted that the assistants had typed only a few disciplinary letters, and that, in any case, association members are privy to disciplinary and performance-related matters even before the affected employees are notified. The Board concluded that the district had failed to demonstrate how it is harmed or the association benefited as the result of the assistants' clerical involvement in these matters. The Board further noted that, through minor procedural changes, the special services coordinator could easily address any concerns about preventing teachers or paraeducators from learning of unannounced observations in advance.

As for budgetary matters, the Board relied on its findings that the association is significantly involved in the development of the budget before it reaches its final form, and that the statistical information used in the budget process is available to the public and the association. While acknowledging that the association may not see every draft of every memorandum concerning budgetary matters, the Board noted that the "highly consultative" process involves a "continuous dialogue" between the district and the association. The Board concluded that, given this climate, the assistants' duties pertaining to budgetary matters are not sufficiently confidential to warrant the exclusion of the employees from the bargaining unit. Concerning the special services assistant's advance knowledge of RIF notices, the Board stated...