In re Vermont State Colleges Faculty Federation, AFT Local 3180
Appeal from Labor Relations Board Richard W. Park, Chair.
Patrick N. Bryant of Pyle Rome Ehrenberg PC, Boston,
Massachusetts, for Petitioner-Appellant.
W. Daloz, Associate General Counsel, Vermont State Colleges,
Montpelier, for Respondent-Appellee.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
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. 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
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 on effective
representation of State employees generally, or upon the
efficient operation of State government.
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,
(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 ...