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In re Petition of New England Police Benevolent Association

Supreme Court of Vermont

June 10, 2016

In re Petition of New England Police Benevolent Association

         On Appeal from Labor Relations Board Gary F. Karnedy, Chair

          Susan Edwards, West Pawlet, for Plaintiff-Appellant.

          William H. Sorrell, Attorney General, and Benjamin D. Battles, Assistant Attorney General, Montpelier, for Defendant-Appellee State.

          Alfred Gordon O'Connell of Pyle Rome Ehrenberg PC, Burlington, for Defendant-Appellee Vermont State Employees' Association.

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

          EATON, J.

         ¶ 1. This appeal involves the most recent of two petitions filed on behalf of sixty-nine sworn law enforcement officers of the Vermont Department of Fish & Wildlife, Vermont Department of Liquor Control, and Vermont Department of Motor Vehicles. Here, the New England Police Benevolent Association (NEPBA) filed a petition on August 14, 2015, seeking an election of collective bargaining representatives among the sworn officers, currently represented by the Vermont State Employees' Association (VSEA) as part of the Non-Management Bargaining Unit. NEPBA appeals an order of the Vermont Labor Relations Board dismissing the petition. We affirm.

         ¶ 2. The first petition filed on behalf of the sworn officers was filed by VSEA in 2011 pursuant to § 13.2 of the Labor Relations Board, Rules of Practice.[1] Vermont Labor Relations Board Rules of Practice § 13.2, http://vlrb.vermont.gov/rules_of_practice [https://perma.cc/4ZDN-T7YZ] [hereinafter V.L.R.B. Rules of Practice]. At the time of the 2011 petition, the sixty-seven sworn officers in the proposed unit were among the more than 4700 employees in the entire Non-Management Unit. By their petition, VSEA sought to remove the sworn officers from the existing Non-Management Unit and organize them into an independent bargaining unit.

         ¶ 3. In early 2012, following two days of hearings, the Board dismissed VSEA's petition. The Board concluded that allowing the proposed bargaining unit was likely to result in over-fragmentation, which could adversely impact the effective representation of other employees and the efficient operation of the state government. See In re Sworn Law Enforcement Officers, 32 V.L.R.B. at 16-18 (Jan. 20, 2012), http://vlrb.vermont.gov/sites/vlrb/files/Volume32/32VLRB1.pdf [https://perma.cc/R96C-T8AU]. The Board based its decision on three factors. First, the Board reasoned that because the proposed unit represented one percent of the state employees eligible to be represented in collective bargaining, it would establish precedent that "would create the potential of setting into motion a significant expansion of bargaining units in state government and resulting complications of dealing with a multiplicity of units." Id. at 17. Second, the Board noted that the sworn officers had failed to pursue many of the issues they wanted addressed in negotiations, and, regardless, complete satisfaction "is hardly to be expected in the give and take of the negotiation process." Id. at 19. Third, and finally, the Board concluded that because the sworn officers in the proposed unit were employed across three separate divisions, and because the creation of a new bargaining unit would require division directors to compete with other division directors to gain support from their department commissioners, the proposed unit would unduly complicate the negotiation process. Id. at 19-20. The VSEA did not appeal the Board's decision.

         ¶ 4. The second petition filed on behalf of the sworn officers, which is the subject of this appeal, was filed by NEPBA in 2015. Like the VSEA's petition, NEPBA sought to represent sworn officers of the Vermont Department of Fish & Wildlife, Vermont Department of Liquor Control, and Vermont Department of Motor Vehicles in a new bargaining unit. By 2014, the number of sworn officers seeking representation had risen from sixty-seven to sixty-nine.

         ¶ 5. On September 2, 2015, VSEA moved to dismiss the petition. The State agreed, and notified the Board by letter that the proposed bargaining unit would not be an appropriate unit. NEPBA opposed the motion, urging the Board to apply the standard governing motions filed under Rule 12(b)(6) of the Vermont Rules of Civil Procedure. In support of its position, NEPBA asserted that the facts had changed with respect to the situation involving the sworn officers since the Board's 2012 decision. Specifically, NEPBA noted that although the sworn officers did not have a representative on the Non-Management Unit negotiations team advocating for their interests in 2012, Officer Michael Davidson of the Department of Liquor Control was appointed to the negotiations team following the Board's dismissal. Despite this change, NEPBA argued that many of the issues and proposals important to the sworn officers were ignored because they were inapplicable to the majority of the employees represented by the Non-Management Unit. This included Officer Davidson's proposals for percentage pay steps to be shortened so that law enforcement personnel could reach their top pay scale under the collective bargaining agreement, extra disability protection for injuries that occur on the highway, and enhancement of the personal leave time benefit for sworn law enforcement officers. None of these proposals were accepted by the Non-Management Unit. This also included a request that VSEA establish a labor management committee to address specific issues related to the sworn officers' common needs, which has not been established.

         ¶ 6. In its decision, dated October 16, 2015, the Board stated that it has not adopted Rule 12(b)(6) and does not rely on it in ruling on motions to dismiss, and instead considers whether there is reasonable cause to believe that a question of unit determination or representation exists that warrants a hearing to reconsider the appropriateness of the proposed bargaining unit. The Board explained that a showing of reasonable cause requires evidence from NEPBA that facts have changed since the Board's prior decision on the matter with respect to the sworn officers. Relying on this standard, the Board dismissed NEPBA's petition without a hearing, concluding that "NEPBA ha[d] not presented evidence that facts have changed providing reasonable cause to warrant holding a hearing before the Board to reconsider the appropriateness of the proposed bargaining unit." NEPBA moved to reconsider and the Board denied the motion. NEPBA appealed.

         ¶ 7. On appeal, NEPBA argues that the Board committed reversible error in dismissing its petition without a hearing. NEPBA raises two main arguments: First, NEPBA asserts that the Board erred in refusing to consider the motion to dismiss under the standard in Rule 12(b)(6) and established a burden inconsistent with its prior rulings. Second, NEPBA contends that the Board should have granted a hearing for three reasons: (1) the petition established evidence that facts had changed with respect to the proposed bargaining unit and thus warranted a hearing; (2) the Board's decision dismissing the petition without a hearing violated the sworn officers' right to due process; and (3) the Board's decision violates the Vermont Administrative Procedure Act (VAPA), 3 V.S.A. § 809(a), and the Municipal Employee Relations Act (MERA) of Title 21, Chapter 22.

         ¶ 8. This Court's "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." See In re NEPBA, 2015 VT 51, ¶ 6, ___ Vt. ___, 121 A.3d 669 (quotation omitted). We will uphold the Board's interpretation of its own regulations and the statutes it is charged with executing absent "compelling indication[s] of error." Id.

         ¶ 9. We begin with NEPBA's assertion that the Board should have considered the motion to dismiss under the standard in Rule 12(b)(6). In determining whether a complaint can survive a motion to dismiss under Rule 12(b)(6), courts must take all factual allegations in the complaint as true and consider whether "it appears beyond a doubt that there exists no facts or circumstances that would entitle the plaintiff to relief." Colby v. Umbrella, Inc., 2008 VT 20, ¶ 5, 184 Vt. 1, 955 A.2d 1082 (quotation omitted). By their own terms, however, the Vermont Rules of Civil Procedure "govern the procedure in the Civil and Criminal Divisions of the Superior Court and in the Judicial Bureau in all suits of a civil nature." V.R.C.P. 1. We have held that "[Rule 1] outlines the scope of the Rules of Civil ...


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