In re New Eng. Police Benevolent Ass'n

• Decision Date: 27 March 2015
• Docket Number: No. 14–146.,14–146.
• Citation: 2015 VT 51,121 A.3d 669
• Parties: In re NEW ENGLAND POLICE BENEVOLENT ASSOCIATION PETITION FOR ELECTION OF COLLECTIVE BARGAINING REPRESENTATIVE.
• Court: Vermont Supreme Court

121 A.3d 669
2015 VT 51

In re NEW ENGLAND POLICE BENEVOLENT ASSOCIATION PETITION FOR ELECTION OF COLLECTIVE BARGAINING REPRESENTATIVE.

No. 14–146.

Supreme Court of Vermont.

March 27, 2015.

121 A.3d 670

Stefan Ricci of Ricci Law, PLC, Windsor, for Appellant.

William H. Sorrell, Attorney General, and Naomi Sheffield, Assistant Attorney General, Montpelier, for Appellee State.

Alfred Gordon O'Connell of Pyle Rome Ehrenberg PC, Boston, Massachusetts, for Appellee Vermont State Employees' Association.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

Opinion

DOOLEY, J.

¶ 1. 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

121 A.3d 671

that the majority of employees in the VSEA unit have interests different from those of the sworn law enforcement officers and that 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 Officers 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 490, 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...