Employees of Vermont state's attorneys could unionize


BRATTLEBORO >> An effort to unionize the attorneys and staffers of the Vermont state's attorney's offices was sent back by the Vermont Supreme Court to the Labor Relations Board for further consideration.

The Vermont Labor Relations Board had rejected petitions submitted by the Vermont State Employees Association on the grounds that the state's attorney's staff members were not state employees eligible to join the union. However, the Supreme Court concluded the board had ruled incorrectly and reversed the decision.

The petition specified deputy state's attorneys, victim advocates and secretaries. Windham County State's Attorney Tracy Shriver, and state's attorneys in Franklin, Orange, Windsor and Addison opposed the petitions. Shriver told the Reformer she had no comment at this time on the Supreme Court's decision.

"(T)he petitioned-for employees do not fall neatly within any of the state's labor relations acts; as a result, they have not previously been part of a collective bargaining unit," noted Justice Marilyn Skoglund, writing for the court. The question for the court, and therefore the Labor Relations Board, was whether the employees were subject to the Municipal Employees Relations Act, wrote Skoglund.

"More specifically, the issue is whether either the individual state's attorneys or the legislatively created Vermont Department of State's Attorneys and Sheriffs, or some combination thereof, are municipal employers. Only municipal employers and their employees may bargain collectively under MERA."

In the original petition, which was filed in 2013, transport deputies in the state's county sheriff offices were included. But Keith Clark, Windham County Sheriff and president of the Vermont Sheriff's Association, said the deputies were withdrawn from the petition because their funding sources are commingled with state and county funds.

The state's attorneys contended their employees were not covered by MERA and that they "serve at the pleasure of an elected official and thus are employees of the individual state's attorney for whom they work rather than of any 'political subdivision' under MERA. They further argued that the SAO secretaries are state employees not covered by MERA"

But the VSEA argued that the employees either worked for the state as one unit — or political subdivision — or worked for each of the state's attorneys, but in each case, they should be classified as state employees eligible for unionizing under MERA. The Labor Relations Board concluded in the first case that the department is not a political subdivision of the state.

"As to the individual-SAO theory," wrote Skoglund, "although the Board found that certain mandatory bargaining subjects under MERA — namely, wages and benefits — are not within the control of individual state's attorneys, it rejected the position of some of the state's attorneys that the petitioned-for employees cannot be covered by MERA because they serve at the pleasure of an elected official. The Board reasoned that the conditions of employment over which the state's attorneys do have control are insufficient to make the state's attorneys municipal employers. The Board thus dismissed VSEA's petitions, concluding that the labor relations within the SAOs constitute hybrid situations that do not come within the purview of any of the Vermont labor relations statutes."

Following a review of MERA, wrote Skoglund, the court determined that "each individual state's attorney that employs five or more employees is a municipal employer for purposes of MERA." But first, the court had to determine whether state's attorney's offices "employ" the petitioned-for employees; and if so, whether such employers "may be considered political subdivisions of the state for purposes of MERA."

"(T)he SAOs have never had collective bargaining representation. The SAOs, their various types of employees, and the Department defy simple classification for purposes of labor relations. Yet, untangling the web of constitutional mandates, statutory provisions, and actual practices that define their labor relationships is essential to deciding this appeal."

Because the state's attorneys are elected by county voters, wrote Skoglund, each has "the sole authority to hire deputy state's attorneys, victim advocates, and secretaries, all of whom serve at the pleasure of the state's attorney ... (E)ach state's attorney is the person statutorily authorized to hire and fire the petitioned-for employees in his or her office, and further, is specifically authorized to hire as many deputy state's attorneys "'as necessary for the proper and efficient performance of his or her office. ... (A)lthough the Department pays for and organizes annual job training for all of the SAO employees across the state, the individual state's attorneys alone supervise the day-to-day activities of the petitioned-for employees working in their respective offices. In short ... the individual state's attorneys are the sole employer with respect to the day-to-day operations of their offices."

In conclusion, noted Skoglund, the individual state's attorneys are municipal employers, therefore those who work at their discretion are subject to MERA and should be allowed to unionize.

"Plainly, the Legislature has endeavored to act comprehensively in covering government employees, including those working for local government entities such as the SAOs. Among the stated purposes of MERA are 'to protect the right of individual employees to self-organization' and 'to allow individuals to form, join or assist employee organizations and to bargain collectively.' As employees of municipal employers, the petitioned-for employees fall under the protection of this statute."

Because of the Supreme Court's reversal, the matter was returned to the Labor Relations Board to determine which of the SAOs employ more than five employees and to proceed with certification allowing them to unionize.

Bob Audette can be contacted at 802-254-2311, ext. 160.


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