Local 1201, AFSCME, Rutland Dept. of Public Works, In re, 82-379
| Decision Date | 01 November 1983 |
| Docket Number | No. 82-379,82-379 |
| Citation | 143 Vt. 512,469 A.2d 1176 |
| Parties | , 118 L.R.R.M. (BNA) 2105 In re LOCAL 1201, AFSCME, RUTLAND DEPARTMENT OF PUBLIC WORKS. |
| Court | Vermont Supreme Court |
Robert Reis and Alan P. Biederman of Biederman, Rakow & Medor, P.C., Rutland, for plaintiff-appellant.
William J. Bloomer, City Atty., Rutland, for defendant-appellee.
Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.
Local 1201, AFSCME (hereinafter referred to as Union) is the exclusive bargaining agent for employees of the City of Rutland's Department of Public Works. 21 V.S.A. § 1722(3). As such it petitioned the Vermont Labor Relations Board (VLRB) to add the position of dispatcher to the Department of Public Works (DPW) bargaining unit. The City opposed the inclusion of the dispatcher in that bargaining unit on the ground that the dispatcher is a confidential employee as that term is defined under 21 V.S.A. § 1722(6).
The VLRB, after hearing evidence presented by both sides, dismissed the Union's petition, concluding that the position of dispatcher in the DPW is that of a confidential employee, as defined in 21 V.S.A. § 1722(6). The Union appeals from this decision pursuant to 3 V.S.A. § 1003. The single issue presented to us for review is whether the VLRB erred in classifying the dispatcher in the DPW as a confidential employee under 21 V.S.A. § 1722(6).
The basic facts are not substantially in contention, and neither party objected to the findings of the VLRB. The Union insists, however, that the conclusions reached by the VLRB are unsupported by its findings and, therefore, clearly erroneous as a matter of law. Taking the evidence in the light most favorable to the appellee, City of Rutland, discloses that the position of dispatcher existed with the DPW for seven years and until February 11, 1982, was always represented by the Union. At no time did the City petition to remove that job from the Union on the grounds that it was a confidential position. Prior to February 11, 1982, the Public Works dispatcher's position was included within the Clerical and Technical Employees Unit of the Union. By agreement between the Union and the City that entire unit was decertified on February 11, 1982. Thereafter the Union petitioned to include the decertified dispatcher's position within the DPW unit. For the first time the City objected to it being classified as a Union position on the grounds that the position is confidential.
As nearly as can be determined from the record, the job classification has not materially changed since its inception seven years ago. Only two people have held the position of DPW dispatcher: the first for five years and the present one for two years. The dispatcher works under the direct supervision of the assistant superintendent. The assistant superintendent directs the work of the Street Department and he, in turn, is accountable directly to the Commissioner of Public Works.
The dispatcher shares office space with the assistant superintendent in an office located at the DPW's garage. This office is physically separated from the garage, but it has a door, generally left open, that permits access to and from the garage. A memo to all employees stated: The Commissioner of Public Works has an office in City Hall, about one-half mile from the assistant superintendent's office at the garage. The dispatcher shares a common telephone line to which he and the assistant superintendent each have an extension. He has a key to his supervisor's file which contains confidential matters such as written communications between the Commissioner and the assistant superintendent concerning union-related matters. However, there is no finding of any confidential relationship between the dispatcher and the assistant superintendent or that the dispatcher needs access to the confidential file in order to carry out any of his duties.
The dispatcher's duties include maintaining radio contact with work crews, answering the telephone and relaying messages and complaints, maintaining a communications log, as well as keeping time sheets on employees, and records on mileage of vehicles, fuel consumed, repairs to equipment, etc. The dispatcher keeps his own record of each employee's work time and vacation time as well as his unproductive time and must notify the assistant superintendent if any time sheet submitted by an employee does not reconcile with the dispatcher's records. He has no authority, however, to discipline any employee or even to recommend disciplinary action. He exercises no discretion. Rather he routinely turns over his daily records and reports to his supervisor. Even his supervisor, the assistant superintendent, is powerless to discipline an employee should there be a discrepancy in his time sheet and the one maintained by the dispatcher. There is no finding either that one of the duties of the assistant superintendent is to recommend disciplinary action to his superior, the Commissioner of Public Works. Only the Commissioner has the power to discipline.
The assistant superintendent and the Commissioner do discuss confidential labor relation matters, but these discussions usually occur at the Commissioner's office at City Hall. Occasionally the Commissioner has need to discuss these matters over the telephone, but in such instances the assistant superintendent asks the dispatcher to leave the office. Whenever the dispatcher has been absent from work his supervisor has always chosen a Union employee as a temporary replacement even though he has the discretion to select a non-Union employee.
Although our Court has never been called upon before to construe the term "confidential employee" as used in our Vermont Municipal Labor Relations Act, we do not have to proceed without rudder or aileron. The federal counterpart, the Labor Management Relations Act, as set forth in 29 U.S.C. § 152(3), makes no explicit reference to "confidential employees," but over the past forty years...
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