In re Petition of New England Police Benevolent Association

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.
2016 VT 67No. 2016-027
In re Petition of New England Police Supreme Court
Benevolent Association
On Appeal from
Labor Relations Board
April Term, 2016
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.
¶ 1. EATON, J. 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
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Section 13.2 provides:
If a collective bargaining agreement is in effect which covers any
or all of the employees to be covered by the petition, a petition
shall normally be considered timely only if filed during the period
150 to 120 days prior to the date the General Assembly convenes
in regular session for the year during which the collective
bargaining agreement expires.
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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
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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
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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 Procedure, and administrative
hearings are not included within their purview.” Int’l Ass’n of Firefighters Local No. 2287 v.
City of Montpelier, 133 Vt. 175, 177, 332 A.2d 795, 796 (1975).
¶ 10. Although the Board, which is not subject to the Rules of Civil Procedure, may
choose to incorporate some, or all, of the rules—and indeed, it has done so—it has not
specifically adopted Rule 12(b)(6). See id. at 177, 332 A.2d at 796 (applying general rule that
Vermont Rules of Civil Procedure do not apply to administrative proceedings unless agency
rules specifically so provide.). Neither has it relied on Rule 12(b)(6) in considering motions to
dismiss. Rather, the Board applies the relevant statutory standard in the State Employees Labor
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Relations Act, which gives the Board broad authority to investigate petitions for the election of a
collective bargaining representative. 3 V.S.A. § 902(3). Under the Act, upon receipt of such a
petition, the Board “shall investigate the petition [for unit representation],” and “if it finds
reasonable cause to believe that a question of unit determination or representation exists,” the
Board shall schedule a hearing. 3 V.S.A. § 941(d)(1); see also V.L.R.B. Rules of Practice
§ 13.11 (“The Board shall cause any election petition to be investigated as provided by statute.
If in the course of its investigation the Board determines that a question of unit determination
exists, it shall schedule a hearing before the Board.”). In “the absence of substantive evidence”
that there exists a question of unit representation, the Board may dismiss the petition. Id.
§ 941(d)(2).
¶ 11. In considering NEPBA’s petition, the Board was thus required to consider
whether NEPBA demonstrated substantial evidence to find reasonable cause to believe that a
question of unit representation exists. See Chauffeurs, Teamsters, Warehousemen and Helpers,
Local 597 and Champlain Valley Union High Sch. Dist. No. 15 Bd. of Sch. Dirs., 7 V.L.R.B. at
3 (Jan. 19, 1984), http://vlrb.vermont.gov/sites/vlrb/files/AlchemyDecisions/
Volume%207/7%20VLRB%201.pdf [https://perma.cc/9AFK-LYZX] (dismissing petition for
unit representation without hearing after failing to find “reasonable cause to believe that a
question of unit determination exists” warranting a hearing). Having previously determined that
the proposed unit was inappropriate, the Board sought evidence to support a finding that there
was reasonable cause to believe that the relevant facts had changed as they pertained to the
proposed unit. The Board considered the appointment of Officer Davidson to the Non-
Management Unit negotiations team and found that despite this appointment, the sworn officers’
requests remained unmet. Regardless of these considerations, the Board found that the facts had
not changed enough to create a question of unit representation. Because it is within the Board’s
discretion to determine the units “most appropriate to best represent the interest of the
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employees,” 3 V.S.A. § 902(3), the Board acted within its discretion and expertise when
concluding that NEPBA had failed to demonstrate reasonable cause to believe a question of unit
determination existed.
¶ 12. We next turn to NEPBA’s claim that the Board erred in granting VSEA’s motion
to dismiss without a hearing because the petition established evidence that the relevant facts had
changed, and because dismissing the petition without a hearing violated the sworn officers’ right
to due process as well as VAPA and MERA.
¶ 13. NEPBA contends that the Board’s decision in Teamsters entitles a petitioner to a
hearing where they have submitted substantive evidence that facts have changed. We note,
however, that the Board’s decision in Teamsters did not guarantee a hearing where petitioners
merely submitted substantive evidence. Rather, the Board required “substantive evidence facts
[had] changed . . . for [the Board] to find reasonable cause to believe that a question of unit
determination or representation exists warranting a hearing before the Board to reconsider the
appropriateness of the unit.” Teamsters, 7 V.L.R.B. at 3 (quotation marks omitted). This
standard can also be found in the Labor Relations Act and the Board’s Rules of Practice. See 3
V.S.A. § 941(d)(1) (requiring the Board to investigate petition and schedule hearing “if it finds
reasonable cause to believe that a question of unit determination or representation exists”);
V.L.R.B. Rules of Practice § 13.11 (“The Board shall cause any election petition to be
investigated as provided by statute. If in the course of its investigation the Board determines that
a question of unit determination or representation exists, it shall schedule a hearing”). Because
the Board found that the proposed unit was inappropriate in 2012, the NEPBA was required to
submit evidence that facts had changed sufficient for the Board to find reasonable cause to
believe a question of unit representation existed warranting a hearing before the Board.
¶ 14. Considering the findings of fact, taken as a whole, we find that the Board’s
conclusion is justified. In its petition, NEPBA asserts four major changes in the intervening
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years. First, one of their members was appointed as a representative in the Non-Management
Unit negotiations team to advocate for their interests, and several of his proposals were rejected
or modified. Second, members of the Non-Management Unit entered into a side letter agreement
excluding some of the sworn officers from contractual provisions governing call-in, on call,
standby, available status, and holidays. Third, the VSEA rejected a request to establish a labor
management committee to address specific issues related to the sworn officers’ common needs.
Fourth, the Vermont House of Representatives passed a bill that would have created a law
enforcement study committee to consider whether to consolidate law enforcement operations
throughout the State.
¶ 15. Accepting NEPBA’s assertions as true, the Board ultimately determined “NEPA
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.” The Board dismissed NEPBA’s petition without a hearing. Our review of the Board’s
own regulations and the statutes is deferential and will be upheld absent “compelling indications
of error.” In re NEPBA, 2015 VT 51, ¶ 6. We find no such error here.
¶ 16. NEPBA also argues that the Board deprived the sworn officers’ of procedural due
process by dismissing the petition without a hearing. 42 U.S.C. § 1983 creates a cause of action
for any person injured by a deprivation of rights secured by federal law. To establish a claim for
a violation of procedural due process rights, a party must first show that he or she was deprived
of a constitutionally protected interest. See Hegarty v. Addison Cnty. Humane Soc’y, 2004 VT
33, ¶ 15, 176 Vt. 405, 848 A.2d 1139. We look only to the nature of the interest at stake, not its
weight or importance to the plaintiff, in determining whether “the interest is within the
Fourteenth Amendment’s protection of liberty and property.” Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 570-71 (1972). The threshold question is whether the sworn officers have a
constitutionally protected interest at stake. See In re Great Waters of Am., Inc., 140 Vt. 105,
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108, 435 A.2d 956, 958 (1981) (“Analysis of a claim of deprivation of property without due
process of law commences with a determination of whether any right requiring constitutional
protection in fact is involved.”). To assert a valid claim of deprivation of due process, NEPBA
“must show that they were deprived of a liberty or property interest within the protection of the
Fourteenth Amendment.” Ahern v. Mackey, 2007 VT 27, ¶ 11, 181 Vt. 599, 925 A.2d 1011(mem.).
¶ 17. NEPBA bases its procedural due process claims on the deprivations of the sworn
officers’ right to representation by the bargaining representation that represents their specific
needs and concerns, a right they argue is guaranteed by statute under the Labor Relations Act, 3
V.S.A. § 901 et seq. The Labor Relations Act grants employees the “right to self-organization;
to form, join, or assist employee organizations; to bargain collectively through representation of
their own choice, and to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection,” as well as “the right to refrain from such activities.” 3 V.S.A.
§ 903(a). It also grants the Board the broad authority to “determine issues of unit determination,
certification and representation,” and to investigate petitions for a new bargaining unit. Id.
§ 941(a), (d). Included in that authority, the Act expressly grants the Board discretion to
investigate and dismiss a petition in the absence of substantive evidence of reasonable cause to
believe that a question of unit determination or representation exists. Id. The Act does not,
however, include the right to a hearing.
¶ 18. Under the Labor Relations Act, the sworn officers are entitled to seek
representation by an alternate bargaining unit, and they are entitled to an investigation into that
petition; they are not, however, entitled to a hearing unless the Board found reasonable cause to
believe a question of representation existed. This Court has recognized a protected interest
where a party has a “legitimate claim of entitlement to a governmental benefit,” but not where
they have “a unilateral expectation” of such a right. In re New Cingular Wireless PCS, LLC,
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2012 VT 46, ¶ 13, 192 Vt. 20, 54 A.3d 141 (quotation omitted); cf. LaFlamme v. Essex Junction
Sch. Dist., 170 Vt. 475, 484, 750 A.2d 993, 1000 (2000) (stating that mere unilateral hope of
becoming elected village trustee does not rise to level of entitlement). The Board investigated
NEPBA’s petition and dismissed it under the framework established by the Labor Relations Act,
specifically 3 V.S.A. § 941(d). NEPBA received the procedural due process to which it was
entitled under the Act. Because NEPBA was not entitled to a hearing unless the Board found
reasonable cause to believe a question of representation existed, NEPBA has failed to
demonstrate how the Board’s decision affected the sworn officers’ procedural due process rights.
¶ 19. Finally, we turn to NEPBA’s argument that the Board’s decision violates VAPA,
3 V.S.A. § 809(a), and MERA. NEPBA mistakenly relies on these provisions, neither of which
applies to the petition at issue in this appeal, which was filed under the Labor Relations Act.
¶ 20. The VAPA is not applicable to proceedings before the Labor Relations Board,
except as provided in the statutes governing the Labor Relations Board. 3 V.S.A. § 1005 (“Laws
of this State relating to administrative procedure including chapter 25 of this title are not
applicable to the Labor Relations Board except as set forth in this chapter.”). The VAPA is not
referenced in 3 V.S.A. § 941(d).
¶ 21. We likewise find that the Board did not violate MERA by failing to perform an
investigation.2 The Labor Relations Act provides that the Board “shall investigate the petition,”
and will conduct a hearing “if it finds reasonable cause to believe that a question of unit
determination or representation exists,” or dismiss “based upon the absence of substantive
evidence.” 3 V.S.A. § 941(d). Although the Labor Relations Act does not specify exactly what
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NEPBA argues that because the Board cited Teamsters, 7 V.L.R.B. 1 in its decision
granting the motion to dismiss, and because the Board in Teamsters stated that “[i]n determining
whether the grant the [motion to dismiss] we look to the provisions of the Municipal Employee
Relations Act,” the Board must now apply MERA in determining whether to grant VSEA’s
motion to dismiss. We recognize that MERA does not apply to this petition, and consider that
Act solely to respond to NEPBA’s argument.
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the Board must do as part of its investigation, the issue of unit representation falls within the
Board’s field of expertise and its practice is thus afforded substantial deference. See Chauffeurs,
Teamsters, Warehousemen, Helpers Union Local 597 v. Univ. of Vt., 167 Vt. 564, 565, 702
A.2d 75, 77 (1997). It is not for this Court to dictate the procedure for the Board’s investigations
unless the Board has “abrogate[d] its responsibility,” in which case we will compel it to act.
Newport News Shipbuilding and Dry Dock Co. v. N.L.R.B., 633 F.2d 1079, 1082 (4th Cir.
1980). Because it is clear that the Board conducted an investigation, we will not disturb its
findings.
Affirmed.
FOR THE COURT:
Associate Justice
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