Editorâs note: This piece from the SCOV Law Blog is by Andrew Delaney.Â
In re New England Police Benevolent Association Petition, 2015 VT 51Â
[A]inât no party with a late-filed petition âcause a late-filed petition donât pop. Unfortunately (and apologies to Coolio).
The New England Police Benevolent Association (NEPBA) petitioned for election of a collective-bargaining representative. The Vermont Labor Relations Board dismissed the petition as untimely.
Hereâs what happened. NEPBA filed a petition with the Vermont Labor Relations Board (VLRB) for election of a collective bargaining representative for certain Vermont sworn law-enforcement officers (Fish & Wildlife, Liquor Control, and the DMV) on Jan. 30, 2014. These officers are part of the non-management bargaining unit âwhich is covered by a collective-bargaining agreement between the Vermont State Employees Association (VSEA) and the State of Vermont.â A vote was already scheduled for the next day on ratification of a successor agreement. This is starting to sound really complicated, so letâs simplify it. Basically, there was a group of officers who wanted somebody else to represent their interests in the collective-bargaining process so they filed a petition, but not during the correct timeframe.
The board contacted NEPBA the next day and said, more or less, âThereâs a rule that says you had a one-month window last year to file this thing and you didnât, so why should we consider it?â NEPBA responded with something like, âUh, âcause the officers want different stuff and stuff? Also, the pending ratification is going to be bad âcause itâll prevent us from being able to pick a collective-bargaining rep.â Naturally, there were a bunch of lawyerly sounding things tossed in there to make the competing messages sound dignified and right-right and proper.
A couple months later, the board issued its decision, concluding that NEPBA provided no justification for its late petition and that allowing it to proceed would be unfair to the VSEA and the State, who negotiated a contract after the open period â expecting that there wouldnât be a latecomer to the party with sumpinâ new.
So NEPBA appeals, arguing that the board didnât actually consider its justification, which was totally wrong. NEPBA also argues that potential ratification of the successor agreement, which in turn would foreclose the officersâ opportunity to select a collective-bargaining representative, is a damned fine reason to waive the timely filing requirement. Spoiler alert: the SCOV disagrees on the first point.
The standard of review here is âhighly deferentialâ and the SCOV is just going to look at whether the factual findings are supported by the evidence and whether the findings justify the conclusions of law. This standard would be explained in the sawmill I worked at during college as the âsomebody-had-to-mess-somethinâ-up-right-goodâ standard of review.
The SCOV notes that âthis case involves the boardâs implementation of the contract-bar doctrine.â Now, if you remember first-year contracts, you might be really confused right now thinking this has something to do with a contract signed while drinking, like the Lucy case. But itâs not. Apparently the âcontract-barâ doctrineâs purpose is to lend some certainty to the collective-bargaining process, so if some entity wants a new rep in the collective-bargaining process, thereâs a time and a place to do that. One canât just file willy-nilly petitions unless thereâs a good reason for it. The board has discretion to determine whether there was a good reason. And unless there was some abuse of discretion, the SCOV ainât gonna fiddle with the boardâs decision.
NEPBAâs argument boils down to there being a second âopen periodâ (besides that one-month window) âupon expiration of an agreement if no new successor agreement is in place.â NEPBAâs petition was filed five months before the expiration of the current collective-bargaining agreement, so it was really early, not late.
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NEPBAâs argument boils down to there being a second âopen periodâ (besides that one-month window) âupon expiration of an agreement if no new successor agreement is in place.â NEPBAâs petition was filed five months before the expiration of the current collective-bargaining agreement, so it was really early, not late. NEPBA further argues that the ratification vote would eliminate the second âopen periodâ â because thereâs no break between the expiration of the prior contract and the successor contract â and that justifies waiver of the contract-bar doctrine. The SCOV says, âThe logic of this argument escapes us.â The SCOV really does say that â Iâm not making it up. The SCOV explains: âIt is likely in every case that the representative is attempting to negotiate a new contract with the employer so that there is no gap between the end of one contract and the start of another. Under NEBAâs theory, the contract-bar doctrine virtually never would apply.â
The SCOV affirms the boardâs determination that there was a one-month window in which NEPBA shouldâve filed if it wanted to file and that NEPBA had to justify why it should be allowed to file outside the ânormal time period.â
NEPBA keeps trying â arguing that the board always considers the merits of a petition, even when a petition doesnât explain the failure to file within the open period. NEPBA cites several board decisions, the bulk of which the SCOV dismisses with a footnote (ânone of which we find applicableâ). Of the remaining two cases that find their way into the opinion, the SCOV quickly distinguishes one and finds the other on point.
That would seem good for NEPBA, right? Wrong. The case the SCOV finds applicable involved application of the contract-bar doctrine and a finding that the employees failed to offer âsufficientâ justification. The semantic difference between âsufficientâ and ânoneâ doesnât get the SCOV excited and NEPBA strikes out.
The problem is that NEPBA offered a number of reasons why they need a new bargaining rep, but no reasons why it wasn’t able to file during the required timeframe. The board wanted a time-related justification and NEPBA never gave one. The SCOV reasons that the board was within its discretion to dismiss the petition. Additionally, the SCOV notes that the board explained its reasons for applying the contract-bar doctrine and how, in this case, that furthered the objective of balancing employeesâ free choice of representative with the partiesâ interests in negotiating free of the threat of challenges to the majority status of the employee representative.
The SCOV puts it thusly: âHere, NEPBA is attempting to upset the existing bargaining relationship on the eve of ratification of a new contract. It would be difficult to find a case where the failure to file a petition for a representation change could be more untimely.â
Accordingly, because the SCOV concludes that the board was correct in determining that NEPBA failed to offer any justification for its untimely finding, the SCOV affirms without getting into the merits of NEPBAâs justification.
âSlide, slide, but thatâs the past …â