In re Vt. State Colls. Faculty Fed'n, AFL Local 3180, 18-372

• Decision Date: 02 August 2019
• Docket Number: No. 18-372,18-372
• Citation: 216 A.3d 1259
• Parties: IN RE VERMONT STATE COLLEGES FACULTY FEDERATION, AFT LOCAL 3180
• Court: Vermont Supreme Court

216 A.3d 1259

IN RE VERMONT STATE COLLEGES FACULTY FEDERATION, AFT LOCAL 3180

No. 18-372

Supreme Court of Vermont.

May Term, 2019

August 2, 2019

Patrick N. Bryant of Pyle Rome Ehrenberg PC, Boston, Massachusetts, for Petitioner-Appellant.

Todd W. Daloz, Associate General Counsel, Vermont State Colleges, Montpelier, for Respondent-Appellee.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

EATON, J.

¶ 1. The Vermont Labor Relations Board (Board) dismissed a petition for election of a collective-bargaining representative filed by appellant-petitioner, Vermont State Colleges Faculty Federation (Federation). The petition sought to include part-time faculty teaching for the Vermont State Colleges (VSC) distance-learning program (DLP) in the existing part-time faculty collective bargaining unit represented by the Federation. The Federation filed an initial and amended petition, in response to which the Board issued three orders—an original and two amended orders.¹ In its second amended order, which is the order on appeal, the Board dismissed the petition for failing to propose an appropriate bargaining unit. On appeal, the Federation asks this Court to reverse the Board's dismissal and order the Board to reinstate the petition and conduct an election among the proposed unit members. VSC argues that this Court should affirm the Board's original decision and order an election or, in the alternative, affirm the Board's second amended order dismissing the petition. We affirm the Board's dismissal.

¶ 2. We begin with a brief overview of the Board's statutory authority to determine collective-bargaining unit configurations and a summary of the facts and procedural history relevant to this appeal. The Vermont Legislature enacted the State Employees Labor Relations Act (SELRA), 3 V.S.A. §§ 901 - 1008, in 1969 to outline the rights of "both State employees and the State of Vermont and of Vermont State Colleges and the University of Vermont in their relations with each other" and "to protect the rights of individual employees in their relations with labor organizations" and "to protect the rights of the public in connection with labor disputes." Id. § 901 ; see also 1969, No. 113, § 1. The SELRA, in relevant part, authorizes the Board to determine appropriate collective bargaining units to represent the interests of employees. Id. §§ 921-929, 941. Three sections of the SELRA pertain to our analysis of the Board's collective-bargaining-unit determination in this case— 3 V.S.A. §§ 902, 927, and 941.

¶ 3. Section 902 defines "collective bargaining" as "the process of negotiating terms, tenure, or conditions of employment," id. § 902(2), and "collective bargaining unit" as "the employees of an employer, being either all of the employees, the members of a department or agency, or other such unit or units as the Board may determine are most appropriate to best represent the interest of employees." Id. § 902(3) (emphasis added).

¶ 4. Building on those definitions, § 927 confers statutory authority on the Board to determine which unit configurations are appropriate and to decline to recognize a proposed bargaining unit that it deems inappropriate or that would result in over-fragmentation. The language of § 927 is as follows:

(a) The Board shall decide the unit appropriate for the purpose of collective bargaining in each case and those employees to be included therein, in order to assure the employees the fullest freedom in exercising the rights guaranteed by this chapter.

(b) In determining whether a unit is appropriate under subsection (a) of this section, the extent to which the employees have organized is not controlling.

(c) The Board may decline recognition to any group of employees as a collective bargaining unit if, upon investigation and hearing, it is satisfied that the employees will not constitute an appropriate unit for purposes of collective bargaining or if recognition will result in over-fragmentation of state employee collective bargaining units....

(Emphases added.)

¶ 5. Section 941 enables employees or an employee organization, such as the Federation in this case, to file a petition with the Board "alleging ... that they wish to form a bargaining unit and be represented for collective bargaining." Id. § 941(c). Upon receipt of a petition under § 941(c), the Board must then investigate the petition and, "if it finds reasonable cause to believe that a question of unit determination or representation exists," schedule a hearing before the Board. Id. § 941(d).

¶ 6. Section 941(a) reiterates that "[t]he Board shall determine issues of unit determination, certification, and representation in accordance with [the SELRA]." Section 941(f) outlines the criteria that the Board must consider when determining the appropriateness of a collective-bargaining unit, although the Board may also look to other factors in deciding the appropriateness of a unit. Section 941(f) states:

In determining the appropriateness of a collective bargaining unit, the Board shall take into consideration but not be limited to the following criteria:

(1) The authority of governmental officials at the unit level to take positive action on matters subject to negotiation.

(2) The similarity or divergence of the interests, needs, and general conditions of employment of the employees to be represented. The Board may, in its discretion, require that a separate vote be taken among any particular class or type of employees within a proposed unit to determine specifically if the class or type wishes to be included.

(3) Whether over-fragmentation of units among State employees will result from certification to a degree which is likely to produce an adverse effect either on effective representation of State employees generally, or upon the efficient operation of State government.

(Emphases added.)

¶ 7. If the Board finds substantial interest among employees in forming a bargaining unit, then the Board must conduct a vote by secret ballot to determine the wishes of the employees in the voting group involved regarding the formation of the unit. There must be a majority vote cast in favor of forming the unit for it to be certified and recognized by the Board. Id. § 941(e).

¶ 8. In the "absence of substantive evidence" that an appropriate bargaining unit exists, the Board shall dismiss the petition. Id. § 941(d); see also Vermont Labor Relations Board Rules of Practice § 13.6, https://vlrb.vermont.gov/sites/vlrb/files/documents/Rules% 20of% 20Practice/Part% 201/part1.htm [https://perma.cc/A27B-4D2B] (regarding determination of showing-of-interest requirement to support petition for election of collective-bargaining representative, "[i]f sufficient showing of interest is not made ... the Board will dismiss the petition").

¶ 9. In sum, the Board has broad statutory authority to refuse to recognize a petitioned-for unit that it deems inappropriate or that would result in over-fragmentation of the collective bargaining units, resulting in the petition's dismissal.

¶ 10. With this statutory framework in mind, we examine the procedural history in more detail. The Federation filed a petition for election of a collective-bargaining representative with the Board in December 2017, seeking to add part-time faculty employed in the DLP at Johnson State College (JSC) to the existing bargaining unit of part-time faculty at the campus-based colleges in the VSC system.² The existing bargaining unit is primarily comprised of part-time faculty who teach traditional, campus-based courses. VSC contended that the proposed inclusion of DLP faculty, some of whom also teach on-campus programs, in the existing part-time faculty bargaining unit was inappropriate because the two groups do not share a sufficient community of interests. VSC requested that the Board instead approve a separate, standalone unit for the part-time DLP faculty. The Board conducted a hearing regarding the proposed unit determination in March 2018. Following the hearing, the Board issued an initial order in May 2018.

¶ 11. In its May 2018 order, the Board listed its factual findings and, pursuant to its authority under § 927(c), declined to recognize the Federation's petitioned-for unit because it determined that including part-time DLP faculty within the existing part-time faculty unit would create an inappropriate bargaining unit. In reaching this conclusion, the Board relied on the following factual findings.³

¶ 12. At the time of the hearing, six represented collective bargaining units existed in the VSC, including a unit for "part-time faculty of the campus-based colleges represented by the Federation." The JSC provost administers the part-time faculty bargaining unit agreement for JSC and Lyndon State College. JSC maintains a DLP comprised of an External Degree Program (EDP) and the JSC program online (JSC online). The Board made findings of fact regarding the purpose, student composition, administration, and hiring practices of the EDP, which was established in 1978, and the more recent JSC online, which launched in 2016. Both programs incorporate distance-learning courses and serve distance-learning students. EDP courses are available to campus-based students, while JSC online solely serves distance-learning students.

¶ 13. Additionally, the Board made multiple findings regarding the differences in lifestyle, background, and opportunities available to distance-learning and on-campus students, as well as the different classroom environments, geographic locations, professional requirements, and hiring practices experienced by distance-learning faculty in contrast to faculty for traditional on-campus courses. Based on these factual findings, the Board found that "[t]he experience for distance learning students differs significantly from the experience for students for traditional on-campus courses," and "[t]he experience for faculty teaching in Distance Learning differs significantly from that experienced by faculty...