II. REPRESENTATION ELECTIONS

A. Timing of Election Petitions

The issue that the VLRB has been asked to decide most often concerning union representation elections concerns the timing of petitions to replace an existing exclusive bargaining representative with another union, or to decertify the existing representative where the petitioner is not seeking the election of another employee organization as bargaining representative. The Board has adopted as a policy, under the Municipal Employee Relations Act, that an existing collective bargaining contract bars a petition for decertification of the existing collective bargaining representative for most of the term of the contract. A petition normally will be considered timely only if filed during the period 90 to 60 days prior to a contract's expiration date, or after the expiration thereof if a successor agreement has not become effective. Section 33.2, Board Rules of Practice. Petition for Election of Collective Bargaining Representative (Re: Burlington Airport Employees), 28 VLRB 87, 95-96 (2005). Decertification Petition of Montpelier Public Works Employees, 23 VLRB 162 (2000). St. Albans Police Officers Association and Local 1343, AFSCME, AFL-CIO and City of St. Albans, 8 VLRB 46, 52 (1985). The objective of the contract bar policy was stated by the Board in St. Albans, 8 VLRB at 52-53:

The objective of this contract bar doctrine is to achieve a reasonable balance between the competing interests of stabilizing the employer-union relationship and free employee choice of a representative. The "open" period of ninety (90) to sixty (60) days prior to a contract expiration date provides employees with an opportunity for a free choice of bargaining representatives at reasonable intervals. The barring of a petition for the remainder of a contract term provides a settled work environment and stabilization of the employer-union relationship necessary for productive labor relations.

The rationale behind barring the filing of petitions in the 60 days prior to the expiration of the agreement is to allow the parties to negotiate free from the threat of a challenge to the majority status of the employee representative. Vermont State Housing Authority, 4 VLRB 257 (1981). The contract bar policy will not necessarily be one that the Board will apply in all situations. It is a policy that the Board may apply or waive as the facts of a given case may demand in the interest of stability and fairness in collective bargaining agreements. St. Albans, supra. The burden is on the petitioner to present sufficient justification for waiving the normal time period. Montpelier, 23 VLRB at 163.

Where a party asserts that a contract is a bar to an election, the party must show that the contract was fully executed, signed and dated prior to the filing of the decertification petition. Town of Castleton and AFSCME, AFL-CIO, 13 VLRB 127, 136 (1990). Contracts of definite duration for terms up to three years normally will bar a petition for their entire period except for the period 90 to 60 days prior to the contract expiration date, and contracts having longer fixed terms operate as a bar to petitions for only the first three years. Enosburg Falls Water and Light Department, 11 VLRB 77 (1988).

Under the State Labor Relations Act, the VLRB has adopted the identical 90 to 60 day contract bar rule developed under the Municipal Act. Section 23.2, VLRB Rules of Practice. The VLRB also has adopted a contract bar rule under the State Employees Labor Relations Act and the Judiciary Employees Labor Relations Act, but the open time period for filing petitions differs. A petition normally will 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, or if filed after the expiration date of the agreement, if a successor agreement has not become effective. Section 13.2 and 53.2, VLRB Rules of Practice.

Another contract bar issue is whether an election petition filed by an employee organization to replace the incumbent bargaining representative is timely in situations where the petition is filed after the expiration date of the contract and a successor agreement is not effective. The Board has concluded that such petitions are timely. The Board has interpreted Board Rules of Practice to provide an opportunity for a petition to be filed after the contractually provided date of expiration of a contact even when the contract remains in effect, as long as a successor agreement has not become effective. Village of Essex Junction Employees' Association and Local 1343, AFSCME, AFL-CIO and Village of Essex Junction, 14 VLRB 157 (1991). Petition for Election of Collective Bargaining Representative (Re: Burlington Airport Employees), 28 VLRB 87, 95-96 (2005).

Another issue concerns whether an existing collective bargaining contract bars a petition to add employees to the existing bargaining unit. Under the Municipal Act, the VLRB has determined that the contract bar rule does not apply to an incumbent union seeking to add employees previously not represented by a union, and not covered by a contract. Local 1369, AFSCME, AFL-CIO and Town of Barre, 12 VLRB 7, 19 (1989). However, if those employees vote to be represented by the union, the terms of the existing contract are not extended to them. Id. The parties only are required to negotiate in good faith with respect to wages, hours and conditions of employment of the employees. Id. Also, in cases where a union is seeking to add employees to an existing bargaining unit, the Board uniformly conducts an election among just the employees the union is seeking to add to the bargaining unit to determine whether they wish to be represented by the union; employees in the existing bargaining unit do not vote. Washington County Employees Association and Washington County, 19 VLRB 261 (1996).

An issue with respect to the timeliness of a decertification petition can arise under circumstances where the employer has voluntarily recognized a union and then employees subsequently file a decertification petition before the employer and union have negotiated an initial collective bargaining contract. In such situations, the Board has determined that an employer and union are entitled to a reasonable time to bargain and to execute the contracts resulting from such bargaining before a decertification petition is timely. Teamsters Local 597 v. Green Mountain Transit Agency, Green Mountain Transit Agency v. Teamsters Local 597, 27 VLRB 128, 148 (2004). What constitutes a “reasonable time” is not measured by the number of days or months spent in bargaining, but by what transpired and what was accomplished in the bargaining sessions. Id. In determining whether a reasonable time has passed, the Board examines the factual circumstances unique to the parties’ recognition and bargaining to determine whether, under the circumstances, the parties have had sufficient time to reach agreement. Id. In so doing, the Board looks to the degree of progress made in negotiations, whether or not the parties were at an impasse, and whether the parties were negotiating for an initial contract. Id.

B. Election Campaigns

Once the appropriate bargaining unit has been agreed upon by the parties or determined by the VLRB, the VLRB has had to make few decisions concerning the conduct of elections resulting from petitions filed by unions to represent employees not represented by a union. The VLRB has established what it has termed a "just and workable standard of review for evaluating representation election propaganda". IUOE Local 98 and Town of Springfield, 3 VLRB 221, 225-226 (1990). The task is to balance the right of the parties to wage free and vigorous election campaigns against the right of employees to make an untrammeled choice of their bargaining representative. Id.

The VLRB adopted the rule established by the National Labor Relations Board in Shopping Kart Food Market, 228 NLRB No. 190 (1977), which assumes that employees are mature individuals, capable of recognizing and discounting campaign propaganda for what it is. Id. The VLRB will not engage in extensive analysis of campaign communications to ascertain a particular statement's truth or falsity. Id. The VLRB will only intervene if the method of misrepresentation renders employees unable to recognize campaign material for what it is. An example is misuse of Board processes or documents. Id.

In one case, the Board concluded that statements by management officials that employees and the employer would have better relations in the absence of a union, that the presence of an “outside” union in the workplace would result in more adversarial relations, and that procedures already in place to discuss conditions of employment should be attempted before employees opted to be represented by a union, fell within the prescribed limits of employer speech. United Paperworkers International Union v. Town of Wilmington, 20 VLRB 1, 3-4 (1997). The Board noted that the statements contained no threats of reprisal if employees opted to form a union and no improper promises of enhancements in wages, hours and other conditions of employment to stifle the union organizing campaign and disrupt employees’ free choice for or against unionization. Id. at 4. Employees maintained the ability to adequately assess the credence to give employer views, and exercise free choice on union representation. Id.

In Chittenden South Supervisory Teachers’ Association v. Chittenden South Supervisory School District, 5 VLRB 332 (1982), the Board concluded that a request by a personnel director to meet with teachers during a union organizing campaign and attempt to dissuade them from voting for the union constituted protected speech under the “freedom of speech” provision of the Municipal Act. Also, the Board concluded in another union organizing case that employer communications with employees consisted “mainly of qualified predictions and some pedantic puffery within the prescribed limits on employer speech”. International Union of Operating Engineers #98 and Town of Springfield, 3 VLRB 221, 225 (1980).

C. Conduct of Elections

In ruling on objections to the conduct of an election, the VLRB will not set aside an election unless improper conduct may have had an effect on the results of the election. IUOE Local 98, AFL-CIO and Windham Solid Waste Management District, 17 VLRB 80, 83-84 (1994). Chauffeurs, Teamsters, Warehousemen and Helpers, Local 597 and Chittenden County Transportation Authority, 13 VLRB 112, 117-118 (1990). Failure of an employer to bring a problem to the Board's attention prior to an election, and failure of an employer to have an observer present at an election, played a part in a Board decision denying an employer's objection to an election, where such notice to the Board and presence of an observer could have assisted in preventing problems. Windham, 17 VLRB at 83-85.

Generally, under the Municipal Employee Relations Act and the State Labor Relations Act, employees voting in an election have voted only on the question of representation; whether they wish to be represented by a particular union or no union. Under those Acts, employees generally do not vote on the composition of the bargaining unit. The exception is professional employees; under both Acts professional employees may not be included in a bargaining unit with non-professional employees unless a majority of professional employees vote for inclusion in the unit. 21 V.S.A. §1543; 21 V.S.A. §1724(c)(1). Professional employees are given two votes in an election; one to determine whether they wish to be included in the unit with non-professional employees, and the other whether they wish to be represented by the union or no union. Local 1201, AFSCME and Rutland Free Library Association, 13 VLRB 247 (1990).

However, under the State Employees Labor Relations Act and the Judiciary Employees Labor Relations Act, employees voting in an election generally vote on two questions: whether they wish to be included in a particular bargaining unit and whether they desire to be represented by a particular union or no union. 3 V.S.A. §941(e) and (g). 3 V.S.A. §1021. In re Liquor Control Department Non-Supervisory Employees, 135 Vt. 623, 625-626 (1978).

D. Affiliation of Union

If an independent union is serving as existing bargaining representative, there may be issues as to the affiliation of that independent union with another union, and the effect of such affiliation on the certification of the union as bargaining representative by the Board. The Board has indicated that it will find appropriate an amendment for certification, recognizing the affiliation, if the following requirements are met: 1) there is a guarantee of continuity of representation, 2) sufficient democratic standards were met to determine whether support existed among employees for affiliation, and 3) the originally certified organization does not remain a presently functioning, viable entity after the affiliation. Petition of AFSCME Local 1369, Council 93 (Re: Stowe Police Department Employees), 16 VLRB 145 (1993).

In examining whether sufficient democratic standards were met to determine whether support existed among employees for affiliation, the Board has determined that such standards have been met if there was adequate advance notice of the election to all employees, ample opportunity for employees to discuss possible affiliation and the election, and reasonable precautions to maintain ballot secrecy. In examining affiliation elections, the Board does not require the same degree of formality as exists in the union representation elections which the Board conducts. A secret ballot affiliation vote is the preferred method to ensure sufficient democratic standards are met, but there are instances where these standards can be satisfied without a secret ballot election if there is sufficient evidence demonstrating that employees wish to affiliate. Petition of AFSCME Council 93, Local 1343, AFL-CIO, 28 VLRB 111, 114-115 (2006). Petition of Barre Town Association of Emergency Medical Technicians, 19 VLRB 273, 277-278 (1996).

E. Employee Choice of Bargaining Representative

The Board and the Supreme Court have addressed the issue of whether the same union can represent employees of the same employer in separate bargaining units. Both the Board and the Court concluded that the same union could represent both full-time and adjunct faculty of the Vermont State Colleges. Vermont State Colleges Faculty Federation, Local 3180, AFT, AFL-CIO and Vermont State Colleges, 14 VLRB 52 (1991). Affirmed, 159 Vt. 619 (1992).

The principle that employees have the right to freely choose their bargaining representative is firmly rooted in labor law and is recognized under the State Employees Labor Relations Act. Id. While a conflict of interest that makes "good faith bargaining impractical" may disqualify a bargaining representative, the employer has the burden of showing a "clear and present danger" to the collective bargaining process. Id. Conflicts among union members are inevitable, and the existence of such conflicts does not disqualify a bargaining representative. Id. In the event that employees experience difficulty with the union's representation, they can at an appropriate time vote to decertify the union Id.

F. Jurisdictional Questions

Under the State Labor Relations Act, in a case involving whether the VLRB or the National Labor Relations Board (“NLRB”) had jurisdiction, the VLRB asserted jurisdiction over a representation election petition to represent employees of a private non-profit library whose gross annual revenues were less than $1 million. Local 1369, AFSCME, AFL-CIO and Kellogg-Hubbard Library, 15 VLRB 60 (1992). The VLRB concluded that the NLRB had declined to assert jurisdiction over the class and category of employees to which the library belonged because, in a previous advisory opinion, the NLRB had declined to assert jurisdiction over a private non-profit library whose gross annual revenues were less than $1 million. Id.

The Library subsequently appealed the VLRB decision to Superior Court. The Superior Court refused to assert jurisdiction over the case on the grounds that the Library could have appealed the VLRB decision directly to the Vermont Supreme Court. The Supreme Court agreed that statutory law provided for direct appeal to the Supreme Court of unit determination and union certification orders of the VLRB under the State Labor Relations Act, and affirmed the Superior Court decision. The VLRB decision thus remained in effect. Kellogg-Hubbard Library v. Labor Relations Board, 162 Vt. 571 (1994).