Editor’s note: This piece from the SCOV Law Blog is by SCOV Law editor Andrew Delaney.
In re Petition of New England Police Benevolent Association, 2016 VT 67
[A]s best I can tell, a group of law-enforcement officers want some representation from their ranks at the collective-bargaining table and this ain’t the first time they’ve gone for it and been shot down.
The New England Police Benevolent Association (NEPBA) filed a petition for election of reps from among a group of law enforcement officers (Fish & Wildlife, Department of Motor Vehicles and Department of Liquor Control), currently represented by the Vermont State Employees’ Association (VSEA) and the Non-Management Unit (NMU). Excuse me — I’ve got a sudden hankering to go eat a bowl of alphabet soup.
The first petition was filed by VSEA in 2011 to the Labor Relations Board. The idea was to remove the officers from the non-management bargaining unit and put them in their own independent bargaining unit. After two days of hearings, the Board tossed the petition. The reasoning was that the new unit could result in over-fragmentation, which would make effective representation more difficult. The Board also found the officers hadn’t pursued many of the issues they wanted addressed, and that the proposed unit would unduly complicate regular negotiations. VSEA didn’t appeal.
The NEPBA filed a second petition in 2015, with the same goal. VSEA moved to dismiss and the State agreed, sending a letter to the Board saying that the proposed bargaining unit wouldn’t be appropriate. Story of my life — wouldn’t be appropriate.
Anywho, NEPBA urged the Board to apply the standard governing motions to dismiss under the Vermont Rules of Civil Procedure (12(b)(6) if you’re curious). NEPBA asserted that the facts were different than last time because a law enforcement officer rep had been appointed after the first dismissal, but the officers’ issues and proposals were largely ignored because those issues weren’t as important to the NMU generally — pay steps, highway injury disability pay, personal leave time benefits. The NMU didn’t accept any of these proposals. There was also a request to establish a labor-management committee specific to the officers’ issues and this hadn’t happened.
The Board issued a decision. It noted that it hasn’t adopted Rule 12(b)(6) and that its decision on a motion to dismiss is based on whether there’s reasonable cause for a hearing. Reasonable cause requires, in this case, that NEPBA provide evidence that the facts have changed since the last go-‘round. The Board concluded that NEPBA had not met that standard and tossed the petition without a hearing. NEPBA moved to reconsider. The Board denied the motion.
NEPBA appeals. It argues that the Board’s without-a-hearing denial was reversible error. Its two primary arguments are that (1) the Board should’ve applied the 12(b)(6) standard to the motion to dismiss and that the Board’s decision establishes a burden inconsistent with its prior rulings, and (2) there should’ve been a hearing because NEPBA’s petition established evidence that the facts had changed, denying the petition without a hearing violates the officers’ due-process rights, and the Board’s decision violates the Vermont Administrative Procedure Act (VAPA) and the Municipal Employee Relations Act (MERA).
The SCOV notes that its review of Board decisions is “highly deferential” and that the SCOV’s role in this sort of appeal is to give the factual findings a quick once-over and see whether the findings, as a whole, justify the conclusions of law.
Things are not looking so hot for NEPBA.
The SCOV opines that there’s a difference between a legitimate claim of entitlement to a governmental benefit and a unilateral expectation of such a right.
The SCOV begins with NEPBA’s the-Board-should’ve-applied-12(b)(6) pitch. If you’re not familiar with the 12(b)(6) standard, courts are required to take all factual allegations made in a complaint as true and can grant a motion to dismiss only if it appears beyond a doubt that there are no facts or circumstances that would entitle the plaintiff to relief. It’s a pretty high bar. But the Rules of Civil Procedure don’t necessarily extend to administrative proceedings.
The Board can adopt — and has adopted — some of the rules but it has not specifically adopted Rule 12(b)(6). The relevant statute here provides the standard the Board used — if “reasonable cause” exists, the Board is supposed to have a hearing.
The Board considered everything that NEPBA brought to it — including the appointment of the law enforcement officer rep — and concluded that reasonable cause to have a hearing didn’t exist. So, the SCOV reasons that the Board was within its rights in concluding that reasonable cause was lacking.
The SCOV then turns to the other claims. First, it reasons that because the Board had denied the petition in 2012, NEPBA had to show evidence that the facts had changed. On the whole, the SCOV concludes that the Board was justified in finding that the facts hadn’t changed enough to warrant a hearing. The SCOV notes the various developments — appointment of the rep, the proposed management committee, legislative changes, and so on — and reasons that none of these changes individually or as a whole warranted a new hearing. The SCOV concludes that there are no “compelling indications of error” here.
On the procedural due-process claim, the SCOV notes that NEPBA has to show deprivation of a liberty or property interest within the protection of the 14th Amendment. NEPBA argues that the dismissal without hearing violates the officers’ due process rights to representation specific to their needs and concerns. NEPBA argues that this is guaranteed under the Vermont Labor Relations Act. The SCOV is not so convinced. Though the act gives the officers the right to seek representation, and the Board the ability to give a hearing (with reasonable cause), the act doesn’t give the officers a right to a hearing. The SCOV opines that there’s a difference between a legitimate claim of entitlement to a governmental benefit and a unilateral expectation of such a right. The officers’ expectation of a hearing falls into the latter category. The SCOV reasons that the officers got the due process they were entitled to — due process, in this instance, doesn’t include a hearing.
Finally, the SCOV deals with the VAPA-MERA-violations arguments. First, the SCOV notes that the VAPA isn’t generally applicable Labor Relations Board proceedings. And the SCOV does not conclude that MERA was violated either. The Board just has to investigate a petition and hold a hearing if reasonable cause exists. And it did that.
So we’re done. The Board’s dismissal of NEPBA’s petition is affirmed. I’m sure there’s a Rolling Stones “You Can’t Always Get What You Want” joke here to be had here, but I’m too tired today. Feel free to finish that thought in the comments.
