IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
*******
UNITED STEELWORKERS LOCALS 8248 & 8249 )
)
Petitioner ) CASE NO ST 13 CV 668
)
vs ) PETITION FOR WRIT
) OF REVIEW
GOVERNMENT OF THE VIRGIN ISLANDS )
DIVISION OF PERSONNEL and PUBLIC EMPLOYEES)
RELATIONS BOARD )
) Cite as 2021 VI Super 12
Respondents )
)
MICHAEL J SANFORD Esq ZULEYMA CHAPMAN Esq
Sanford Amerling & Associates Assistant Attorney General Labor
2191 Church Street Office of Collective Bargaining
Christiansted V1 00820 4601 5001 Chandler s Warf Suite 10
Attorneyfor Petztzoner Christiansted V I 00820
zuleyma chapman@ocb Vi gov
HENRY C SMOCK, Esq Attorneyfo; Gavel nment offhe Virgin Islands
SmockLaw, P C
P O Box 1498 LARRY RAYMOND ROY Esq
St Thomas V I 00804 P O Box 25435
hsmock@smvilaw com Christiansted, V1 00824
Attorneyfor Public Employees Relations Board lrroy@viperb org
Attorneyfor Publzc Employees Relatzons Board
CARTY RENEE GUMBS Judge
MEMORANDUM OPINION
11 1 THIS MATTER is before the Court on a Petition for Writ of Review of the Public Employees
Relations Board 3 ( PERB ) Decision and Order in PERB UC 08 07 Petitioner, United
Steelworkers Locals 8248 & 8249 ( the Union ) filed its brief on September 2, 2014 Respondents,
the Government of the Virgin Islands, Division of Personnel ( DOP ) filed its opposition brief on
November 24, 2014, and Respondent PERB filed its opposition brief on November 21, 2014
Untied Steelworkers Locals 8248 & 8249 v GVI D1v1310n ofPeIsormel et a]
Case No ST 13 CV 668 Cite as 2021 VI Super 12
Petitionels filed a reply on December 22, 2014 For the reasons below, the Court finds that PERB
exceeded its authority and vacates its November 6, 2013 Decision and Order
I Factual Background
1] 2 In 2008, the Government petitioned PERB for bargaining unit clarification, proposing that
certain positions within the BOP be excluded from the non supervisory unit as confidential
employees ’ PERB held hearings in 2008 and 2009 and issued its Decision and Order on N0vembe1
6, 2013 PERB excluded the positions of (1 ) Training Comdinator (2 ) Purchasing/Payroll Officer;
(3 ) Personnel Audit Technician III; (4 ) Human Resource Specialist; (5 ) & (6 ) Personnel Analysts
H & III, and (7) & (8 ) Personnel Representatives I & II The Union now appeals that decision,
arguing that these eight positions are not confidential and should be allowed to remain in the unit
II Jurisdiction and Standard of Review
11 3 This Court has jurisdiction pursuant to 3 V I C § 530a(a) and 5 V I C §§ 1421 23 Title 3
section 530a provides that [a]ny party aggrieved by any final order of the PERB issued under section
530 or 531 of this chaptel may appeal to the Superior Court of the Virgin Islands 3 V I C § 530a(a)
A writ of review is available when an “officer, board, commission, authority or tribunal appears
to have exercised [its] functions erroneously, or to have exceeded [its] jurisdiction, to the injury of
some substantial right of the plaintiff ’ 5 V I C § 1422 The reviewing cou1t may enforce the order,
modify and enforce it, set it aside, or return the matter to the PERB with instructions for further
proceedings 3 V I C § 530a(c) see also 5 V I C § 1423
‘11 4 On appeal from PERB, the Superior Court functions as an appellate court V.I Narcotzcs
Strzke Force v Gov fofthe VI Pub Emples Rel Bd
60 VI 204 218 (V1 2013) (citing 3 V I C
§ 530a(a) (c)) [A]11 questions of fact determined by the PERB shall be conclusive if supported by
2
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substantial evidence in the record considered as a whole 3 V I C § 530a(b) Substantial evidence is
that which a reasonable mind might accept as adequate to support a conclusion ” Hansen v VI
Water & Powei Auth 56 V I 25 35 (V I Super Ct 2012) The Court applies a plenary standard of
review with respect to pure questions of law Bryan v Fawkes, 61 V I 201, 223 (V I 2014) Virgin
Islands courts need not defer to agency interpretations of law Id at 224 n 16 (rej ecting Chew on and
Skidmor e deference)
III Discussion
11 5 PERB is a creature of statute established by the Legislature 24 V I C § 364 ( There is hereby
created as a separate independent board of the Government of the Virgin Islands, a Public Employees
Relations Board ) As such its authority is derived from and confined to the words of the statute;
it lacks authority to take any action the Legislature has not sanctioned VF Jeansweai LP v EEOC,
140 S Ct 1202 1204 (2020) ( This fundamental principle applies not only to substantive areas
regulated by an agency but also to the agency 3 underlying jurisdiction ) Any PERB practice or
precedent that does not strictly conform to its statutory mandate is ultra wres and void, no matter how
well established or long running City ofAIlmgton v FCC 569 U S 290 297 (2013) (Agencies
‘ power to act and how they are to act are authoritatively prescribed by Congress, so that when they
act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires ’)
116 In this matter, the Court is asked to decide whether PERB acted in accordance with its
statutory mandate when excluding DOP employees from the non supervisory bargaining unit
Classified government employees have the right of self organization to form, join or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual aid or protection, free
3
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from interference, restraint, or coercion by employers ’ 24 VIC § 64 PERB is tasked with
“determin[ing] an appropriate bargaining unit of public employees by identifying the specific class
or classes of employees or identifying positions the employees of which shall be members of a unit[ ] ’
24 V I C § 370 PERB may classify employees for a certain bargaining unit but cannot eliminate
govemment employees 1‘1ght of self 01 ganization altogether
fl7 Here, and in the related case, United Steelworkers Locals 9488 & 9489 v Gov 1‘ 0f the VI ,
No SX 15 CV 260 PERB removed various DOP employees from their bargaining units, claiming
they are confidential employees ’ Confidential employees are ‘ only those persons who assist and
act in a confidential capacity to persons who formulate determine, and effectuate management
policies in the field of labor relations 24 V I C § 362 Title 24 does not require confidential
employees to be placed in a separate bargaining unit; in fact, the term does not appear anywhere
outside the definitions section PERB s View that confidential employees must be excluded from
bargaining units with non confidential employees is not mandated by statute
1] 8 Rather, PERB s authority to exclude confidential employees from a bargaining unit is derived
from its general power to determine appropriate bargaining units” and “make, amend and rescind,
after notice and appropriate public hearings, rules, regulations and procedures as may be necessary to
carry out the provisions of this chapter[ ] 24 V I C §§ 365, 370 Acting on this directive, PERB
established a legulation providing that no bargaining unit shall contain confidential employees
together with non confidential employees 24 V I RR 24 372 2(0) As the term confidential
employee ’ is defined by statute, PERB s interpretation and use of that term must comport with the
definition Neither PERB s interpretation of the statutory definition, nor the factors it considers, are
entitled to deference by the Court Bryan v Fawkes 61 V I at 224 n 16 The Court looks to PERB s
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past decisions only to the extent it finds them persuasive or helpful in applying the statutory definition
of confidential employee
1] 9 Confidential employees are limited to ‘ only those persons who assist and act in a confidential
capacity to persons who formulate, determine, and effectuate management policies in the field of
labor relations 24 V I C § 362 (emphasis added) This definition requires discerning the scope
of “the field of lab01 relations Chapter 3 of title 24, is entitled Labor Relations, and while not
defined, it is clean labor relations refers to the practice and procedure of collective bargaining ’
24 V I C §§ 61, 62 Section 62 bolsters this conclusion It defines employee, ‘ employer, labor
organization, ‘representative unfair labor practice and labor dispute These terms make up
both the subject mattei and the parties involved in collective bargaining Other chapters in title 24
govern labor practices and standards personnel management unemployment, workers
compensation, and additional labor topics Chapter 14, at issue heie, speaks to labor ielations for
public or government employees
1] 10 The words relations” and ‘field’ are not defined in title 24, so they take their ordinary
meanings See Sand1fer v United 9tates Steel Corp , 571 U S 220, 227 (2014) Relations are “social,
political, or personal connections or dealings between or among individuals groups, nations, etc[ ]
Relatzons, https //www dictionary com/browse/relations (last visited Jan 22, 2021) Field, in this
context, means within a given profession[ ]’ Field, https //www dictionary com/browse/field?s t
(last visited Jan 22, 2021) Taken together, the field of labor relations is the interactions between
labor organizations and employers involving labor disputes and the resulting bargaining agreements
This is also known as collective bargaining
5
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1] 11 The Virgin Islands Government, as an employer, engages in collective bargaining with labor
organizations (unions) through the Office of Collective Bargaining 24 V I C § 377 ( The Office of
the Collective Bargaining is established within the Office of the Governor, but shall function under
the Division of Personnel for budgetary purposes only ) The ChiefNegotiator, ‘ experienced in labor
relations, supervises and directs its strategy for bargaining with labor unions Id The Office of
Collective Bargaining exclusively represent[s] the executive branch of government and its
departments and divisions and negotiate[s] on its behalf in all collective bargaining proceedings[ ] ’
Id It also assists the Governor in formulating labor policies for collective bargaining; planning
strategies for such bargaining coordinating the government s position in all mediation and arbitration
cases and labor disputes and conducting systematic studies of collective bargaining agreements for
the purpose of contract negotiations Id It is the Office of Collective Bargaining, along with the
Governor, that ‘ formulate[s] determine[s], and effectuate[s] management policies in the field of labor
relations, on behalf of the Government
1] 12 The rationale for excluding confidential employees from a bargaining unit is that those
employees may provide the union with sensitive information that would give it a tactical advantage
in the collective bargaining process The exclusion also prevents employers from having to negotiate
with unions through employees that are themselves members of the union Title 24’s definition of
confidential employee appears drawn from National Labor Relations Board precedent See e g ,
NLRBV Hendncks C132 Rural Elec Mbrshp Corp 454U S 170 189 (1981) However the Virgin
Islands Legislature did not codify the broader version of the NLRB definition, which includes
employees who regularly have access to confidential information concerning anticipated changes
which may result from collective bargaining negotiations NLRB v Meenan 011 CO L P , 139 F 3d
6
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311, 317 (2d Cir 1998) Consequently, the Virgin Islands definition is much narrower It is also
strictly construed so employees who have access to confidential business information are not for that
reason excludable from collective bargaining units Id; see also PERB UC 90 11 With this
definition in mind, the Court turns to the exclusions at issue
11 13 The pioblem arises from PERB s conflation of labor relations and personnel
management ” Labor relations, as discussed above refers to collective bargaining and the relationship
between labor organizations (unions) and employers Here, it is the relationship between the
Government, as the employei, and the Union Personnel management refers to a relationship between
the employer and its employees It involves tasks such as hiring, setting pay grades, and other
administrative tasks Personnel management may be the subject of labor relations discussions or
governed by the terms of a collective bargaining agreement however, the terms are not synonymous
‘11 14 DOP is an executive branch agency separate from the Office of Collective Bargaining that
deals not with labor relations, but with the government employee 3 personnel merit system and
personnel management 3 V 1 C §§ 5, 452 DOP employees conduct tasks like recruiting government
employees, writing job descriptions, performing job evaluations, setting salary grades, handling
terminations, and training employees These are personnel management tasks that fall generally
within the field of labor, but not the field of labor relations DOP employees may have access to
or work with confidential information but that alone does not make them confidential employees
See Nzles Twp Hzgh Sch Dist 219 v 111 Educ Labor Rels Ba’ 900N E2d 336 348 (111 Ct App
2008) ( [L]abor relations does not include hiring, performance or promotion or ‘mere access to
personnel or statistical information,’ even if that information is confidential ”)
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1] 15 Confidential employees are only those employees who work in a confidential capacity with
someone who formulates management policies for collective bargaining, meaning someone within
the Office of Collective Bargaining or the Governor That of course cannot include many DOP
employees, the majority of whom do not appear to interact with the Office of Collective Bargaining,
much less in a confidential capacity PERB s findings are based on the mistaken View that employees
who conduct staff trainings, write job descriptions, and implement personnel regulations work in the
field of labor relations They do not; they work in the field of personnel management Moreover,
under the statutory definition, merely working in the field of labor relations does not suffice for
confidential status 24 V I C § 362 see also Hendl zcks 454 U S at 189
fl 16 From this mischaracterization, PERB extends confidential status to many mid to lower level
employees In doing so, it overlooks the basic requirements of confidential employee status First,
those employees must be either forming policy or assisting, in a confidential capacity, an employee
who does PERB argues that some of the employees at issue form policies in the field of labor
relations However, as explained above, that is the exclusive task of the Office of Collective
Bargaining and the Governox So, the only way a DOP employee could be deemed confidential is by
assisting someone, in a confidential capacity, that forms labor relations policy That could be an
employee at the Office of Collective Bargaining the Governor and possibly other members of the
Governor’s cabinet PERB did not make that finding for any of the employees or positions at issue in
this appeal and merely working under the Director of Personnel does not suffice
1] 17 An examination of each position exposes PERB 3 errors First, PERB found that DOP 5
Human Resources Specialist was confidential because he ‘interpret[s] and implement[s] personnel
rules and regulations as well as the applicable provisions of a collective bargaining agreement
8
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PERB UC 08 07 at 42 That of course is not formulat[ing], determin[ing], and effectuat[ing]
management policies in the field of labor relations § 362 (emphasis added) It is merely
implementing a collective bargaining agreement and bears no relationship to strategizing or
negotiating with labor unions PERB made the same finding for the Training Coordinator and the
Purchasing/Payroll Coordinator The Training Coordinator s main duties are to design and implement
staff trainings, something wholly unrelated to collective bargaining Likewise, the Purchasing/Payroll
Comdinator handles payroll attendance, and reconciling petty cash amounts, ’ not formng
confidentialpolicy PERB Br 22
11 18 The same flawed reasoning underlies PERB s findings for the other five positions For the
Personnel Audit Technician III, PERB found that implementing the collective bargaining agreement
was the same as forming management policy It is not The Peisonnel Audit Technician is an auditor
whose work consists of verifying information on Notice of Personnel Action ( NOPA ) forms She
PERB UC 08 07 at 17 18 PERB also found that the Personnel Analyst II & 111 positions were
confidential because they had access to information not already known to the Union Standing alone,
access to confidential information is not enough for confidential status McCandless v Merl! Sys
Plot Bd
996 F 2d 1193 1200 (Fed Cir 1993)( Mere access to personnel information is insufficient
to establish confidential status ) Moreover, there is no evidence in the record that they are involved
in any way with collective bargaining These positions mostly involve hiring and promotions PERB
UC 08 07 at 11 The same is true of the Personnel Representatives 1 & 11 They evaluate candidate
eligibility and ensure employee information such as addresses and phone numbers are accurate Id at
10 Their duties have nothing to do with collective bargaining PERB appears to have excluded these
9
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two positions because they exercise independentjudgment Id at 44 Almost every job requires the
exercise ofjudgment, however it has no bearing on confidential employee status under section 362
‘fl 19 Personnel management is distinct from labor relations and implementing policy is distinct
from forming policy None of the positions at issue work in the field of labor relations, nor do they
form management policy DOP employees might have access to some confidential ‘labor related
information, but that term is not found within the definition of confidential employee The term used
is ‘ management policies in the field of labor relanons, which as explained, refers to collective
bargaining Further, there is no evidence in the record that the employees work in a confidential
capacity with anyone forming collective bargaining policy That task belongs to the Office of
Collective Bargaining While certain high level officials in DOP may work in a confidential capacity
with the Office of Collective Bargaining or the Governor, their confidential status would not extend
downward to their subordinates The limits in the definition of confidential employee and the related
case law seek to prevent the over extension of confidential status that has occurred here
1] 20 PERB’s findings are based on an incorrect interpretation of law and are not supported by
substantial evidence Its Decision and Order will therefore be vacated, and the affected positions will
be placed back in the non supervisory employees bargaining unit An order of even date follows
Dated February A 2021
/ l
Renee mbs Car
ATTEST Judge of the uperior Co
Ta ara Charles of the Virgin Islands
Cler f the ( ourt
Do a D D0110 «an a a
Court ClerK SuperVisor / fig
10