Appeal from Labor Relations Board. Richard W. Park, Chair.
Gordon O'Connell of Pyle Rome Ehrenberg PC, Boston,
Massachusetts, and Timothy Belcher and Justin St. James,
Vermont State Employees' Association, Montpelier, for
A. Farnham and Andrew Bolduc of McNeil, Leddy & Sheahan,
P.C., Burlington, for Appellees State's Attorneys of
Franklin, Orange, Windsor, Addison and Windham Counties.
L. Franco, Jr., Burlington, for Appellee Chittenden County
State's Attorney's Office.
Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
[¶1] The Vermont State Employees'
Association (VSEA) filed eight petitions with the Vermont
Labor Relations Board to elect collective bargaining
representatives under the Vermont Municipal Employee
Relations Act (MERA). VSEA thereby sought to represent the
employees within the State's Attorney's Offices
(SAOs) -- including deputy state's attorneys, victim
advocates, and secretaries -- in the counties of Chittenden,
Essex, Franklin, Orange, Rutland, Windsor, Addison, and
Windham. The Board ultimately denied all eight petitions. We
reverse the Board's decision, and remand the matter for
the Board to proceed with the certification process.
[¶2] Some historical background is helpful
in understanding how these petitions arose. As more fully
explained below, the petitioned-for employees do not fall
neatly within any of the state's labor relations acts; as
a result, they have not previously been part of a collective
bargaining unit. See 21 V.S.A. § 1724(a) (setting forth
procedure for filing petition to form bargaining unit).
[¶3] The question on appeal is whether the
employees covered by VSEA's eight petitions fall under
MERA. More specifically, the issue is whether either the
individual state's attorneys or the legislatively created
Vermont Department of State's Attorneys and Sheriffs, or
some combination thereof, are municipal employers.
[¶4] Only municipal employers and their
employees may bargain collectively under MERA. See 21 V.S.A.
§ 1721 (stating, in relevant part, that MERA's
purpose is " to prescribe the legitimate rights of both
municipal employees and municipal employers in their
relations with each other" ); see also id.
§ 1725 (outlining collective bargaining procedure). MERA
defines " [m]unicipal employee" as " any
employee of a municipal employer, including a professional
employee" with exceptions not relevant here.
Id. § 1722(12). " 'Municipal
employer' means a city, town, village, fire district,
lighting district, consolidated water district, housing
authority, union municipal district, or any of the political
subdivisions of the State of Vermont which employs five or
more employees as defined in this section." Id.
§ 1722(13). Because neither the state's attorneys
nor the Department are enumerated, they must qualify as
political subdivisions of the state for MERA to apply. The
term " political subdivision" is not defined
anywhere in MERA.
[¶5] Thus, an analysis of the definition of
" municipal employer" raises two distinct
sub-issues: (1) whether the individual state's attorneys,
the Department, or a combination of the two, "
employ" the petitioned-for employees; and (2) if so,
whether such employers may be considered political
subdivisions of the state for purposes of MERA. For the
reasons explained below, we conclude that each individual
state's attorney that employs five or more employees is a
municipal employer for purposes of MERA.
[¶6] As noted, the employees within the SAOs
have never had collective bargaining representation. The
SAOs, their various types of employees, and the Department
defy simple classification for purposes of labor relations.
Yet, untangling the web of constitutional mandates, statutory
provisions, and actual practices that define their labor
relationships is essential to deciding this appeal.
[¶7] The voters of each county in Vermont
elect a single state's attorney, as required by Chapter
II, Section 50 of the Vermont Constitution. Each state's
attorney, in turn, has the sole authority to hire deputy
state's attorneys, victim advocates, and
secretaries, all of whom serve at the pleasure of
the state's attorney. See 13 V.S.A. § 5306 (victim
advocates); 24 V.S.A. § 363 (deputies); 32 V.S.A. §
1185(b) (secretaries). Each type of SAO employee has
different rights and oversight, as defined by various
statutory provisions, which we discuss below.
[¶8] The Department, established under 24
V.S.A. § 367(a), consists of the fourteen state's
attorneys and fourteen county sheriffs. The statute requires
the state's attorneys to elect an Executive Committee
composed of five of the state's attorneys. That
committee, along with the Executive Committee of the Vermont
Sheriff's Association, appoints an Executive Director --
an exempt employee who serves at the pleasure of the
committees. Id. § 367(a)-(b). As described
below, the Executive Director is tasked with, among other
things, preparing and submitting " all budgetary and
financial materials ... with respect to all State funds
appropriated for all of the Vermont State's Attorneys and
sheriffs." Id. § 367(c).
[¶9] State's attorneys may consult with
the Executive Director regarding potential dismissals of
employees within their offices, but they retain the ultimate
authority whether to discharge employees. Further,
state's attorneys may change the caseloads, assignments,
and other working conditions of deputy state's attorneys
working in their office. Although 24 V.S.A. § 363
permits state's attorneys to " fix the[ ] pay"
of their deputy state's attorneys " with the
approval of the Governor," in practice, the Executive
Committee's adoption of the State of Vermont Attorney Pay
Plan currently establishes the pay. The attorneys, as well as
the victim advocates and secretaries in the SAOs, are
eligible to receive health insurance benefits through the
State of Vermont health plans. They also receive retirement
benefits from the state through the defined benefit or the
defined contribution plans.
[¶10] Secretaries provide administrative
support to the state's attorneys, 32 V.S.A. §
1185(a), who have authority to adjust the secretaries'
hours and other conditions of employment. The state's
attorneys do not establish the secretaries' wages or
benefits, however. Secretaries are categorized expressly by
statute as state employees whose salaries are determined by
the Commissioner of Human Resources and who receive the same
benefits as state-classified employees, but who are not
subject to the state classification system. Id.
[¶11] Victim advocates are supervised by the
state's attorney of the office to which they are
assigned. They are paid ...