Saturday, April 4, 2015

Timeliness Troubles

In re New England Police Benevolent Association Petition, 2015 VT 51

By Andrew Delaney

Ain’t no party with a late-filed petition ‘cause a late-filed petition don’t 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.

Here’s 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 January 30, 2014. These officers are part of the non-management bargaining unit “which is covered by a collective-bargaining agreement between the Vermont State Employees Association (VSEA) and the State of Vermont.” A vote was already scheduled for the next day on ratification of a successor agreement. This is starting to sound really complicated, so let’s 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, “There’s a rule that says you had a one-month window last year to file this thing and you didn’t, so why should we consider it?” NEPBA responded with something like, “Uh, ‘cause the officers want different stuff and stuff? Also, the pending ratification is going to be bad ‘cause it’ll prevent us from being able to pick a collective-bargaining rep.” 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—expecting that there wouldn’t be a latecomer to the party with sumpin’ new.

So NEPBA appeals, arguing that the Board didn’t actually consider its justification, which was totally wrong. NEPBA also argues that potential ratification of the successor agreement, which in turn would foreclose the officers’ 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 “highly deferential” 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 “somebody-had-to-f***-somethin’-up-right-good” standard of review.

The SCOV notes that “this case involves the Board’s implementation of the contract-bar doctrine.” 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 it’s not. Apparently the “contract-bar” doctrine’s purpose is to lend some certainty to the collective-bargaining process, so if some entity wants a new rep in the collective-bargaining process, there’s a time and a place to do that. One can’t just file willy-nilly petitions unless there’s 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 ain’t gonna fiddle with the Board’s decision.

NEPBA’s argument boils down to there being a second “open period” (besides that one-month window) “upon expiration of an agreement if no new successor agreement is in place.” NEPBA’s 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 “open period”—because there’s no break between the expiration of the prior contract and the successor contract—and that justifies waiver of the contract-bar doctrine. The SCOV says, “The logic of this argument escapes us.” The SCOV really does say that—I’m not making it up. The SCOV explains: “It 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 NEBA’s theory, the contract-bar doctrine virtually never would apply.”

The SCOV affirms the Board’s determination that there was a one-month window in which NEPBA should’ve filed if it wanted to file and that NEPBA had to justify why it should be allowed to file outside the “normal time period.”

NEPBA keeps trying—arguing that the Board always considers the merits of a petition, even when a petition doesn’t explain the failure to file within the open period. NEPBA cites several Board decisions, the bulk of which the SCOV dismisses with a footnote (“none of which we find applicable”). 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 “sufficient” justification. The semantic difference between “sufficient” and “none” doesn’t 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 employees’ free choice of representative with the parties’ interests in negotiating free of the threat of challenges to the majority status of the employee representative.

The SCOV puts it thusly: “Here, 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.”

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 NEPBA’s justification.

“Slide, slide, but that’s the past . . .”

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