IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
******7‘:
UNITED STEELWORKERS LOCALS 9488 & 9489 )
) CASE NO SX 15 CV 260
Petitioner, )
)
vs )
) PETITION FOR WRIT
GOVERNMENT OF THE VIRGIN ISLANDS ) OF REVIEW
DIVISION OF PERSONNEL and PUBLIC )
EMPLOYEES RELATIONS BOARD )
)
Respondents ) Cite as 2020 V 1 Super 75 U
)
MICHAEL J SANFORD Esq ZULEYMA CHAPMAN Esq
Sanford Amerling & Associates Assistant Attorney General Labor
2191 Church Street Office of Collective Bargaining
Christiansted V100820 4601 5001 Chandler s Warf Suite 10
A1101 mayfor PeIIIIOI’IeI Christiansted, V I 00820
Align“ dummy] (1 och \j 0m
HENRY C SMOCK, Esq Attorneyfor Gavel nment 0fthe Virgin Islands
SmockLaw P C
P O Box 1498 LARRY RAYMOND ROY Esq
St Thomas V I 00804 P O Box 25435
[mupclz 1': \gQfljfidH mm Christiansted, V I 00824
Attorney for Pllb/lC Employees Relations Board [11m (1 1 112L111£ng
Attorneyfor Public Employees Relations Board
CARTY RENEE GUMBS Judge
MEMORANDUM OPINION
11 1 THIS MATTER is before the Court upon the Petition for Writ of Review Petitioners filed
their brief on April 12, 2019 Respondents, the Government of the Virgin Islands and the Division
of Personnel (hereinafter Personnel or the Government ) filed their Opposition brief on May 10,
United Steelu orkers Locals 9488 & 9489 v Cite as 2020 V I Super 75 U
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Case No SX 15 CV 260
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2019, and Respondents, the Public Employees Relations Board (hereinafter PERB ), filed its
Opposition brief on May 23 2019 Petitioners filed their reply on July 24 2019
A BRIEF FACTUAL BACKGROUND
11 2 The PERB held hearings on March 10 and 11, 2014, and issued its Decision and Order on
June 29, 2015 Petitioners then instituted this writ of review on July 13, 2015 The appeal has been
timely filed within the 20 days as required by title 24, section 380 of the Virgin Islands Code The
Court being satisfied in the premises, the PERB s decision is modified in part and upheld in part The
PERB s decision is modified as it pertains to Ms Rochelle Benjamin and Ms Adonna Duggins and
they are permitted to remain in the bargaining unit However, as it pertains to Ms Kathleen Simmonds
and Ms Millicent Aubain, this Court holds that the PERB correctly excluded these employees and
enforces the PERB s decision accordingly
B LEGAL ANALYSIS
i Standard of Review for Writ of Review
11 3 Pursuant to title 24, section 380(a) of the Virgin Islands Code, any party aggrieved by any
final order of the PERB may appeal to the Superior Court of the Virgin Islands for review of such
order ‘ In addition, Wzlllams Jackson v Pub Emps Relations Ba' , 52 VI 445, 450 (V1 2009)
echoed section 380(b) by stating that the Court must review questions of fact to ascertain whether
the PERB s factual determinations were supported by substantial evidence in the records considered
as a whole 2 Substantial evidence is evidence such that a reasonable mind would accept as sufficient
‘ See also Pub Emps Relations Bd v Umted Indus Workeis Seafarers Int 1 Union, 56 V I 429, 433 34 (V l 2012) Out
VIIgm Islands Labor Union v Pub Emps Relations 8d
71 VI 515, 518 (VI Super Ct 2019) Fla e) v Police
Benevolent Ass n Local 816 2017 VI Lexis 177 at *8 9 (V I Super Ct June 7 2017)
24 V I C §380(b)
2
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to support the PERB s decision 3 The primary role of the Court in reviewing a PERB decision is to
ultimately enforce the order, modify the order and enforce it, set the order aside, or return the matter
to the PERB with instructions for further proceedings 4
ii Parties’ Arguments
{I 4 Petitioners, in their brief, argue that the issues of access to confidential information as it
pertains to Rochelle Benjamin, Financial Management Supervisor Adonna Duggins, Personnel
Records Management Supervisor; Kathleen Simmonds, Supervisor of Recruitment and
Classification and Millicent Aubain, Territorial Administrator, Recruitment and Classification do not
implicate any labor relations or collective bargaining matters They argue that the PERB incorrectly
barred them from remaining in the collective bargaining unit because of their alleged classification
as confidential employees
11 5 The Government in its Opposition, argued the following points (1 ) much like other
jurisdictions have outlined because the employees in question are Personnel employees and thus are
confidential personnel, this alone should be sufficient to exclude them from the bargaining unit,5 (2 )
inclusion in the collective bargaining unit is a fundamental conflict of interest because these Personnel
employees are subject matter experts on issues that implicate labor relations and collective bargaining
proceedings and their dual role as government employees and union participants disadvantages the
govemment when it comes to union issues 6 and (3 ) their job duties render them as confidential
3 Williams Jacksonv Pub Emps Relations 8d 52 VI 445 450 (VI 2009) (citing Lockhaltv Matthew 250F Supp 2d
403 41213(DVI 2002)
424 v I C 380(c)
5 Government 5 Brief pp 4 & 5 (citing statutory provisions from other julisdictions that explicitly exclude PERSONNEL
employees from bargaining unit These jurisdictions include Delaware, D C Iowa Montana Ohio, and Pennsylvania)
6 See genelally Government 5 Brief pp 6 8 Elab01ating that DOP personnel oversee collective bargaining issues such
as terminations suspensions demotions reprimands promotions job classifications, employee certifications, employee
3
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Memorandum Opinion
employees and based on prior PERB cases, these employees cannot be placed in these bargaining
units due to their continued exposure to confidential personnel information 7 In similar fashion,
Respondent PERB also filed an opposition brief, reiterating that in accordance with its own precedent,
the confidential nature of these employees jobs necessitated exclusion from the bargaining unit 8
iii The first question for this Court is whether the employees are confidential
employees
11 6 In NLRB v Hendizcks Cry Rural Elec Mblshp Corp 454 U S 170 (1981) the U S Supreme
Court held that the labor nexus test is the appropriate test in determining the eligibility of
confidential employees to participate in collective bargaining units under the National Labor
Relations Act (hereinafter NLRA ) In particular, the labor nexus test looks at whether the
confidential employee ‘formulates, determines, or effectuates management policies in the field of
labor relations 9 An employee 5 status as a confidential employee is a question of fact that is
reviewed using the standard of substantial evidence NLRB v Meencm 011 CO L P 139 F 3d 311,
317 (2d Cir 1998) In order to be classified as a confidential employee, it is insufficient that the
employee is exposed to confidential, sensitive information; a confidential employee classification
requires more that (1 ) the confidential information is information that the Union has no advance
knowledge of or access to, and (2 ) directly implicates grievance proceedings, collective bargaining
issues, contractual negotiations and other labor relations functions 10 Many courts have narrowly
construed the definition of confidential employees and have continuously cautioned against a broader
testing, desk audits working out of classification determinations salary adjustments step increases job descriptions
eligibility certification trainings and interpretation of the personnel rules and regulations )
7 Government 3 Biief, pp 9 10
8 See genemlly PERB s 3116f
°1’VLRB v Hendricks Cty Rural Elec Mbishp C011) 454U S 170 194 95 (1981)
‘0 Meenan 011 CO L P at 317 18 (citing cases that clearly identify the areas that are covered undei the umbrella of labor
relations)
4
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scope in order to prevent the unnecessary exclusion of employees from the protections of the
bargaining unit; thus, even if an employee may have access to confidential information if it concerns
internal, routine, and administrative business operations, proximity to such confidential information
does not render that employee as confidential Westmghouse Elec Corp v NLRB 398 F 2d 669, 670
71 (6th Cir 1968) The rationale behind exclusion was well iterated in Hendricks management
should not be required to handle labor relations matters through employees who are represented by
the union with which the [company] is required to deal and who in the normal performance of their
duties may obtain advance information of the [company 5] position with regard to contract
negotiations, the disposition of grievances, and other labor relations matters ” Hendricks 454 U S at
179 See also Westinghouse Elec Corp
398 F 2d at 670 Therefore for this Court, the record must
demonstrate that (1 ) these four individuals have access to or possess advance knowledge of
confidential data and (2 ) the confidential information must be related to labor disputes or collective
bargaining issues A finding of both criteria then favors exclusion from the collective bargaining unit
iv The second question for this Court concerns whether these employees
possess supervisory status
According to title 29 U S C §152(11)", a supervisor is
any individual having authority, in the interest of the employer to hire, transfer,
suspend, layoff recall, promote, discharge, assign, reward, or discipline other
employees, or responsibility to direct them or to adjust their grievances, or effectively
to recommend such action, if, in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but requires the use of
independent judgment
11 7 Further the U S Supreme Court in NLRB v Health Care & Ret Corp ofAm 511 U S 571
573 74 (1994) elucidated that when determining an employee 3 supervisory status, the employee in
” See also 24 V I C §362 (p)
5
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question must first possess the authority to engage in any of the 12 indicia of supervisory functions,
then their exercise of such authority must not be merely routine or clerical in nature, but must require
the use of independent judgment, and lastly, that authority must be exercised in the interest of the
employer Moreover, many jurisdictions, including the Virgin Islands, have repeatedly recognized
that the employee must qualify as a supervisor based on actual duties and responsibilities rather than
job descriptions and formal titles, but the employee need only perform one of the statutory
supervisory functions to qualify as a supervisor See e g NLRB v Kentucky szer Cmty Cal e Inc ,
532 U S 706 713 (2001)‘ Warner\ Kmart C011) 2009 U S Dist Lexis 44502 at *66 67 (D VI
May 27 2009) Fraser 1 Kmart Corp 2009U S Dist Lexis 35253 at *31 32 (D VI Apr 23 2009)‘
Charles 1 CB] Acqulsmons LLC 2016 VI Lexis 62 at *21 22 (VI Super Ct May 9 2016)‘
Webster 1 CB] Acquzsmons LLC 2012 V I Lexis 9 at 7 9 (V I Super Ct Mar 5 2012)
Accordingly, the existence of supervisory status favors exclusion from a collective bargaining unit
C APPLICATION TO THE FOUR (4) EMPLOYEES
i Rochelle Benjamin Financial Management Supervisor
1] 8 The Court 5 analysis is as follows Concerning whether Ms Benjamin is a confidential
employee, this Court is in agreement with Petitioners In applying the labor nexus test, Respondents
have failed to show that Ms Benjamin is privy to labor relation matters as instructed by Hendrzcks
Ms Benjamin does have access to confidential financial data as the Government described that Ms
Benjamin (1 ) is the primary fiscal officer for the agency (2 ) presents and formulates the budget (3 )
prepares data in relation to costs and services performed, (4 ) provides recommendations on fiscal
and spending matters, and (5 ) computes and determines financial scenarios in the event of a potential
6
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layoff, among other responsibilities ‘2 However, what is lacking to this Court is the nexus with labor
relations As previously mentioned in Hendricks and reinforced in the numerous cases cited in
Respondents briefs, labor relations matters are typically evident in labor disputes such as mediation,
arbitration and other negotiations hearings, the disposition of grievances including disciplinary
hearings, discharges, layoffs, salary negotiations, and othei contractual matters involving collective
bargaining '3 Here, the testimony provided demonstrates that Ms Benj amin has never been involved
in these labor relations matters in the actual performance of her duties It is abundantly clear that Ms
Benjamin has no input or any prior knowledge of the outcome of grievances, layoff determinations,
or contractual negotiations and she offers no assistance in the determination nor implementation of
who is laid off; instead she merely computes the costs of any attempted or undertaken action Ms
Benjamin primarily operates in an advisory capacity with respect to specific issues dealing with use
of the Division 5 internal finances Altogether, although Ms Benjamin may be exposed to sensitive,
confidential financial information in the course of her normal job duties the Court finds that she is
not a confidential employee as defined by the NLRA because she does not possess any advance
knowledge of or involvement in matters relating to the field of labor relations In sum, Respondents
have failed to show how Ms Benjamin 5 position impacts the field of labor relations as instructed by
the Hench tcks case
11 9 To Ms Benjamin s classification as a supervisor, the Court finds no evidence of Ms Benjamin
exercising independent judgment Ms Benj amin 5 case to this Court is reminiscent of Ms Logan, the
’7 Govemment 5 Brief, pp 11 12 PERB s Biief pp 15 16 See also Petitionei 5 Brief, pp 16 18 (noting that Ms
Benjamin testified that she advises on the Division of Personnel 5 budgetaiy capabilities and constraints regarding an
intended cou1se of action by mathematically computing scenarios, then she reports hei findings to the Director and also
appioves payroll by crosschecking the numbers before sending it for approval to Department of Finance)
‘3 See Government 3 Brief pp 11 12
7
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Director of Operations in St Croix, where the PERB found that she was not to be excluded from the
bargaining unit ‘4 Although Ms Benjamin operates in the financial aspect, their duties have echoes
of similarity computing and approving payroll, complling, coordinating and collating data In
reference to the budget and Personnel 5 fiscal capability, Ms Benjamin prepares statistical
information as requested by the Director, provides estimates for budgetary review, creates financial
reports, even as far as advising the Director on whether there are adequate funds within the budget
for an attempted course of action All of these duties ultimately read as routine and clerical in nature,
there is nothing in the job descriptions enumeiated above that demonstrates that Ms Benjamin
employed the use of independent judgment This Court is satisfied that even though her position
confers the title of supervisor, ’ it is clear that there is nothing in the scope of her actual job duties
that lends itself to utilizing independent judgment Thus, drawing on all available inferences, this
Court finds that she is a supervisor in name not in duties and simply [holds] a higher position on
the employee totem pole '5 Her job duties render her as a ‘conduit for information and [she]
exercises no judgment in passing along any information she possesses to management’ ‘6 In sum,
her titular designation is insufficient to exclude her from the collective bargaining unit on the basis
of supervisory status Therefore this Court holds that Ms Rochelle Benjamin should be included in
the bargaining unit
W (highlighting that both women seem to possess similai job responsibilities but in
alternate fields, yet Ms Logan was allowed to remain in the bargaining unit while Ms Benjamin was excluded)
'3 F1 use] v Kmart C01}; 2009U S Dist Lexis 35253 at *34 (DVI Apr 23 2009)
‘6 NLRB v Meenan 011 CO L P 139 F 3d 311 322 (2d Cir 1998)
8
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ii Adonna Duggins Personnel Records Management Supervisor
11 10 The Court holds the same for Ms Duggins The evidence presented in the record is
insufficient to favor exclusion from the bargaining unit on the basis that she is a confidential
employee Petitioners contend that, much in line with the reasoning from Hendricks, Ms Duggins
job duties bear no impact on the field of labor relations '7 It is undisputed that Ms Duggins is exposed
to confidential information Vis a Vis the Notice of Personnel Action forms (hereinafter NOPA );
however, access to such confidential information is insufficient to confer confidential employee status
and subsequent exclusion from the collective bargaining unit ‘8 Respondents PERB and the
Government merely allude, without any supportive evidence, to the fact that her knowledge of
NOPAs exposes her to information that is not already known to the union ‘9 In addition they claim
that she is regularly consulted for information and guidance pertaining to grievance and arbitration
hearings but, again, as seen above, the testimony provided in fact shows the opposite; although she
is primarily regarded as a NOPA expert, the record shows that she has never been involved or
consulted in any grievance proceedings and she is not privy to any other contractual proceedings
implicating the field of labor relations 20 Instead, her scope of knowledge and wealth of expertise is
limited to handling NOPAs She merely applies already established policy to address NOPA specific
issues preparing piocessing, correcting, reviewing advising, and verifying 2‘ Altogether, although
‘7 See genelally Petitioner 5 Brief pp 20 23
‘8 Meemm 011, 139 F 3d at 317 (stating that employees who have access to confidential business inf01mation ale not
excludible fiom collective baigaining units because determining confidential employee is nanow in scope to access to
confidential information that is labor ielated)
‘9 Government 5 Brief pp 12 13
7" Government 5 Brief p 13 Petitioner s Biief pp 20 22 (emphasizing that Ms Duggins responded in the negative when
asked about whether she has been consulted to piovide historical data about negotiations, whether she ‘provided any
data to assist in negotiations, and whether she ‘is involved in any grievance proceedings )
7‘ See PERB 5 Brief, p 16 Petitionei 5 Brief, pp 21 22 (detailing the standardized process that Ms Duggins undergoes
in her work with NOPAS)
9
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Ms Duggins has access to confidential information, knowledge of such confidential information does
not in itself render her a confidential employee because there is no evidence demonstrating that her
access to other employees confidential information contained in the NOPA is unknown to the union
or that her access to the NOPAs gives her prior knowledge of any advance information of the
company 5 position with regards to contract negotiations, the disposition of grievances, and other
labor relations matters Therefore, this Court finds that the PERB incorrectly excluded Ms Adonna
Duggins from the collective bargaining unit on the incorrect premise that she is a confidential
employee and modifies the PERB s decision
fl 11 To the determination of whether Ms Duggins position confers supervisory status, again, the
Court is satisfied based on the evidence presented that Ms Duggins is not sufficiently categorized as
a supervisory employee Unlike Ms Benjamin, what is missing for the Court is evidence that satisfies
one of the 12 indicia of supervisory functions as outlined by the statute The record is absolutely bare
of any evidence or information that depicts Ms Duggins acting in any of the enumerated supervisory
capacities As such, the Court is not in a position to reasonably infer that she is a supervisor
Accordingly, the Court modifies the PERB’s Decision and Order and holds that Ms Adonna Duggins
does not meet the criteria for supervisory status and should be properly included in the collective
bargaining unit
iii Kathleen Simmonds (Supervisor, Recruitment and Classification) and
Millicent Aubain (Territorial Administrator, Recruitment and Classification)
11 12 As it pertains to Ms Simmonds and Ms Aubain both parties repeatedly emphasized that their
jobs are essentially similar as such, this Court rules that their analysis is one and the same The
evidence presented is sufficient to render them as confidential employees First, much like Ms
Benjamin and Ms Duggins, both employees here have access to confidential data Second, but unlike
10
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Ms Benjamin and Ms Duggins, both employees are involved in matters of labor relations Ms
Simmonds testified that her job involved determining whether individuals are qualified for vacant
positions 22 But Respondents counteied that in addition to those duties, she also rates jobs specifics
and establishes grades which directly impact salaries, she formulates the Certification of Eligibility,
and often signs for the Director ’ 73 These matters eligibility standards, job descriptions, grade and
salary designations that these employees oversee directly impact collective bargaining and labor
relations matters As such, the PERB correctly ruled that they are confidential employees to be
excluded from the collective bargaining unit
$1 13 In regard to their classification as supervisory employees Petitioners arguments also fail In
Petitioners brief the parties argued that nothing in the course of Ms Simmonds’ or Ms Aubain s
duties require the exercise of independent judgment The Court need not even go that far They
oversee a host of peISonnel operations because they supervise personnel records clerks, personnel
representatives and all series of personnel analysts and are oftentimes involved in high level human
resources meetings 24 Based on the testimony, it is also clear that they are explicitly involved, to
some degree, in hiring and promoting other employees or even at minimum, recommending a course
of action with respect to hiring or promoting an employee thereby satisfying the first prong in
determining supervisory status Secondly, this Court is well satisfied that they exercise independent
judgment in the proper execution of their duties With respect to Ms Kathleen Simmonds and Ms
Millicent Aubain this Court holds that the PERB ruled correctly in deciding that they are both
7’ Petitioner 5 Brief pp 24 26
’3 Government 5 Brief pp 10 ll
’4 See Government 5 Brief p I l
ll
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confidential employees and supervisors, thus warranting exclusion from the collective bargaining
unit
D CONCLUSION
{I 14 Based on the evidence presented and applying the appropriate standard of review, nothing
presented to this Court shows how Ms Rochelle Benjamin and Ms Adonna Duggins satisfy the
second prong of the labor nexus test, that they formulate, determine, or effectuate management
policies in the field of labor relations ’ It is clear that both employees have access to private,
confidential, and sensitive information such as salaries Personnel 5 finances, employee personal
information, among other information However, the Court derived no further inference that they are
involved in the field of labor relations there was no evidence proffered that they participate in
collective bargaining negotiations that they were involved in grievance and disciplinary proceedings,
or that they were active participants in contractual negotiations or union hearings As such a failure
to satisfy both parameters necessary to sustain a finding of a confidential employee leads this Court
to modify the PERB 5 Decision, and permit Ms Rochelle Benjamin and Ms Adonna Duggins to
participate in the collective bargaining unit Moreover, both employees also do not meet the
requirements for supervisory status Although it can be garnered that they possibly direct some other
employees in the execution of their duties, the authority to direct those employees seems, to this
Court, to be rather routine and clerical in nature and not warranting the exercise of any independent
judgment Consequently, this Court also modifies the PERB 8 Decision with regards to Ms Rochelle
Benjamin and Ms Adonna Duggins as non supervisory employees thus, granting them the ability to
participate in the collective bargaining unit
12
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11 15 On the other hand, Ms Kathleen Simmonds and Ms Millicent Aubain both satisfy the criteria
for confidential employees and supervisors They are involved, to a substantial degree in the
parameters for hiring, determining eligibility for employees, as well as inputting data for salaries and
job descriptions, all of which directly affect labor relations Furthermore, they are high level
employees and clearly supervisors in their duties and not only in name Therefore, this Court enforces
the PERB s decision to exclude them from the collective balgaining unit
An Order consistent with this Memorandum Opinion will be issued on even date
W
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2 f 7 j I
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Dated; gustg 2020 6/6 [a a
Rene bs Carty
ATT S Judge of the perior Court /
Tam ta harles of the V in Islands
I 0 6 Court
By MW! 4’ 4.;
v lo na D Donov n E
Court Clelk Su wiser / Z a7 &@0
l3
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
****x‘k*
UNITED STEELWORKERS LOCALS 9488 & 9489 )
) CASE NO SX 15 CV 260
Petitioner, )
)
vs )
) PETITION FOR WRIT
GOVERNMENT OF THE VIRGIN ISLANDS ) OF REVIEW
DIVISION OF PERSONNEL and PUBLIC )
EMPLOYEES RELATIONS BOARD )
) Cite as 2020 V I Super 75 U
Respondents )
)
ORDER
AND NOW, for the reasons stated in the accompanying Memorandum Opinion, it is hereby
ORDERED that the PERB 5 Decision and Order dated June 29 2015 is hereby
AFFIRMED in part and REVERSED in part and it is further
ORDERED that a copy of this Order shall be served on Michael J Sanford, Esquire, Henry
C Smock, Esquire, Zuleyma Chapman Esquire and Larry Raymond Roy, Esquire
1 } 1"
Date Augustfl, 2020 /
Renee bs Carty
Judge of the S p rior Court /
of the Virgi slands
A I ST
T m ra Charles
L: r 0 the Court ‘ Ii
/ ‘4 7 I
y)m 04 I ’
Donna D Dono n
‘ curt Clerk Sulsor 8 /fl/ $0.92)