NO. 92. AN ACT RELATING TO COLLECTIVE BARGAINING FOR EMPLOYEES OF THE COURTS AND THE DEFENDER GENERAL'S OFFICE.
Sec. 1. 3 V.S.A. § 902(5)(A) is amended to read:
(A) Exempt or excluded from the state classified service under the provisions of section 311 of this title, except that the state police in the department of public safety; and employees of the defender general, excluding attorneys employed directly by the defender general and attorneys contracted to provide legal services are included within the meaning of "state employee,"
Sec. 2. 3 V.S.A. § 902(7) is amended to read:
(7) "Employer," means the state of Vermont, excluding the legislative and *[
judicial branches]* judiciary departments, represented by the governor or the governor's *[ duly authorized representative(s)]* designee, the office of the defender general represented by the defender general or the defender general's designee, and Vermont state colleges, represented by the chancellor or the chancellor's *[ duly authorized representative(s)]* designee and the University of Vermont, represented by the president or the president's *[ duly authorized representative(s)]* designee.
Sec. 3. 3 V.S.A. § 924(d) is amended to read:
(d) In addition to its responsibilities under this chapter, the board shall carry out the responsibilities given to it under *[
chapter 19]* chapters 19 and 22 of Title 21 and chapter 28 of Title 3 and when so doing shall exercise the powers and follow the procedures set out in that chapter. *[ The board shall also carry out the responsibilities given to it under chapter 22 of Title 21 and when so doing shall exercise the powers and follow the procedures set out in that chapter.]*
Sec. 4. 4 V.S.A. § 357(a) is amended to read:
(a) The probate judge shall appoint and remove registers of probate and clerical assistants for the probate courts, who shall be paid by the state and shall be state employees and shall be entitled to all fringe benefits and compensation accorded classified state employees who are similarly situated, as determined by the court administrator subject to any applicable statutory limits, unless otherwise covered by the provisions of acollective bargaining agreement setting forth the terms and conditions of employment, negotiated pursuant to chapter 28 of Title 3. *[
The compensation of each register and clerical assistant shall be fixed by the court administrator subject to any applicable statutory limits.]*
Sec. 5. 4 V.S.A. § 451(b) is amended to read:
(b) Employees of the family court shall be state employees who shall be appointed*[
;]* and removed *[ and compensated]* pursuant to rule of the supreme court. Employees of family court shall be entitled to all fringe benefits and compensation accorded classified state employees who are similarly situated as determined by the court administrator, unless otherwise covered by a collective bargaining agreement that sets forth the terms and conditions of employment negotiated pursuant to chapter 28 of Title 3. *[ They shall be paid by the state and entitled to all fringe benefits accorded classified employees.]* Notwithstanding section 1181 of Title 32, the court administrator may increase the compensation of county clerks who are assigned additional duties and responsibilities in the family or district courts, consistent with the pay scale of district and superior court clerks.
Sec. 6. 4 V.S.A. § 691 is amended to read:
§ 691. CLERKS AND ASSISTANTS; APPOINTMENT; COMPENSATION
The court administrator, with the advice of the district judge concerned, may appoint and remove clerks and assistant clerks for the district court*[
, and fix their compensation, with the advice of the state employees' compensation advisory board, subject to any applicable statutory limits, who, while serving,]* subject to the terms of any applicable collective bargaining agreement. The clerks and assistant clerks shall be state employees and shall be entitled to all fringe benefits and compensation accorded classified state employees who are similarly situated, subject to any applicable statutory limits, unless covered by a collective bargaining agreement that sets forth the terms and conditions of employment negotiated pursuant to the provisions of chapter 28 of Title 3.
Sec. 6a. 13 V.S.A. § 5254(b) is amended to read:
(b) Clerical and office staff in the office of the defender general and in all local officesshall be hired by *[
and shall serve at the pleasure of]* the defender general. Clerical and office staff shall be state employees paid by the state, and shall receive those benefits and compensation available to classified state employees who are similarly situated *[ but they shall be exempt from classified service. The compensation of such employees shall be determined by the commissioner of personnel with the approval of the governor, taking into account the volume of work performed and whether the services are on a full or part-time basis.]* , unless otherwise covered by the provisions of a collective bargaining agreement setting forth the terms and conditions of employment, negotiated pursuant to the provisions of chapter 27 of Title 3. Clerical and office staff employed by the office of the defender general shall not be part of the classified service as set forth in chapter 13 of Title 3.
Sec. 7. 12 V.S.A. § 5653(a) is amended to read:
(a) This chapter applies to all arbitration agreements to the extent not inconsistent with the laws of the United States. However, this chapter does not apply to labor interest arbitration, nor to arbitration agreements contained in a contract of insurance, nor to grievance arbitration under chapter 28 of Title 3. "Labor interest arbitration" means the method of concluding labor negotiations by having a disinterested person determine what will be the terms of an agreement.
Sec. 8. 13 V.S.A. § 5254(b) is amended to read:
(b) Clerical and office staff in the office of the defender general and in all local offices shall be hired by *[
and shall serve at the pleasure of]* the defender general. Clerical and office staff shall be state employees paid by the state, and shall receive those benefits and compensation available to classified state employees who are similarly situated *[ but they shall be exempt from classified service. The compensation of such employees shall be determined by the commissioner of personnel with the approval of the governor, taking into account the volume of work performed and whether the services are on a full or part-time basis.]* , unless otherwise covered by the provisions of a collective bargaining agreement setting forth the terms and conditions of employment, negotiated pursuant to chapter 27 of Title 3. Clerical and office staff employed by the office of the defendergeneral shall not be part of the classified service under chapter 13 of Title 3.
Sec. 9. 3 V.S.A. chapter 28 is added to read:
CHAPTER 28. JUDICIARY EMPLOYEES LABOR RELATIONS ACT
Subchapter 1. General Provisions
§ 1010. PURPOSE
It is the purpose and policy of this chapter to recognize the right of employees of the judiciary department to join a labor organization of their own choosing and to be represented by that organization in collective bargaining for terms and conditions of their employment.
§ 1011. DEFINITIONS
For the purposes of this chapter:
(1) "Agreement" means a written agreement resulting from collective bargaining negotiation and covers the terms, tenure, and conditions of employment.
(2) "Board," means the state labor relations board established pursuant to section 921 of this title.
(3) "Collective bargaining," means the process of negotiating terms, tenure or conditions of employment between the judiciary department and representatives of the employees with the intent to arrive at a written agreement.
(4) "Collective bargaining service fee," means a fee deducted by an employer from the salary or wages of an employee who is not a member of an employee organization, and that fee is paid to the employee organization that is the exclusive bargaining agent for the bargaining unit of the employee. A collective bargaining service fee shall not exceed 85 percent of the amount payable as dues by members of the employee organization; shall be deducted in the same manner as dues are deducted from the salary or wages of members of the employee organization; and shall be used to defray the costs incurred by the employee organization in fulfilling its duty to represent the employees in their employment relations with the employer.
(5) "Collective bargaining unit," means the employees of an employer and may be either all the employees or a unit or units determined by the board to be appropriate torepresent the interests of employees.
(6) "Complaint," means an informal expression made by the employees or a group of employees to the immediate supervisor about dissatisfaction with any aspect of employment or working conditions under a collective bargaining agreement.
(7) "Confidential employee," means an employee, as determined by the board, who has responsibility, knowledge or access to information relating to collective bargaining, personnel administration or budgetary matters that is incompatible with that employee's membership in or representation by an employee organization.
(8) "Employee," means any individual employed and compensated on a permanent or limited status basis by the judiciary department, including permanent part-time employees and any individual whose employment has ceased as a consequence of, or in connection with, any current labor dispute or because of an unfair labor practice. "Employee" does not include any of the following:
(A) A justice, judge, assistant judge, magistrate or hearing officer.
(B) The court administrator.
(C) A managerial, supervisory or confidential employee.
(D) A law clerk, attorney or administrative assistant or private secretary to a judge, justice or court administrator.
(E) An individual employed on a temporary, contractual, seasonal or on-call basis, including an intern.
(F) An employee during the initial or extended probationary period.
(G) The head of a department or division.
(H) A register of probate.
(I) An attorney for the supreme court, for the court administrator or for any board or commission created by the supreme court.
(J) A county clerk who is compensated pursuant to 32 V.S.A. § 1181.
(K) An employee who, after hearing by the board upon petition of any individual, the employer or a collective bargaining unit, is determined to be in a position that is sufficiently inconsistent with the spirit and intent of this chapter to warrantexclusion.
(9) "Employee organization" means an organization of any kind in which employees participate and that exists for the purpose of representing its members, if certified by the board as an exclusive representative for the purposes of collective bargaining.
(10) "Employer," means the judiciary department, represented by the supreme court or the supreme court's designee.
(11) "Grievance," means a written notice from an employee or a group of employees covered by an agreement or the employee's representative about dissatisfaction with any aspect of employment or working conditions covered by a collective bargaining agreement or about the discriminatory application of a rule or regulation, and the dissatisfaction has not been satisfactorily resolved after informal discussion with immediate supervisors.
(12) "Labor dispute," means any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of individuals in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants are employer and employee.
(13) "Managerial employee," means an individual, as determined by the board, who functions as the head of a department, institution, district operation or a major program or division or section.
(14) "Person," means an individual, the state of Vermont, an employee organization, partnership, corporation, a legal representative, trustee or any other natural or legal entity whatsoever.
(15) "Representative" means an individual or employee organization certified by the board to represent employees in collective bargaining or grievance proceedings.
(16) "Strike," means any concerted work stoppage by employees, including concerted slowdowns, interference or interruption of operations or services. "Strike" also includes boycotts, refusal to use any products or services, or refusal to work or cooperate with any person by employees in the course of employment when properly directed to do so by the employer or supervisor or superior.
(17) "Supervisory employee," means an employee, as determined by the board, who has authority from the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees or who has the responsibility for directing employees or adjusting employee grievances or effectively recommending such action, provided the exercise of authority is not merely routine or clerical, but requires independent judgment.
§ 1012. EMPLOYEES' RIGHTS AND DUTIES; PROHIBITED ACTS
(a) Employees shall have the right to self-organization; to form, join or assist employee organizations; to bargain collectively through their chosen representatives; to engage in concerted activities of collective bargaining or other mutual aid or protection; to refrain from any or all those activities, except as provided in subsection (b) of this section; and to appeal grievances as provided in this chapter.
(b) No employee may strike or recognize a picket line of an employee organization while performing the employee's official duties.
(c) The employer and employees and the employee's representative shall exert every reasonable effort to make and maintain agreements concerning matters allowable under section 1013 of this title and to settle all disputes, whether arising out of the application of those agreements or growing out of any dispute between the employer and the employees.
§ 1013. SUBJECTS FOR BARGAINING
All matters relating to the relationship between the employer and employees are subject to collective bargaining, to the extent those matters are not prescribed or controlled by law, including:
(1) Wages, salaries, benefits and reimbursement practices relating to necessary expenses and the limits of reimbursable expenses.
(2) Minimum hours per week.
(3) Working conditions.
(4) Overtime compensation and related matters.
(5) Leave compensation and related matters.
(6) Reduction-in-force procedures.
(7) Grievance procedures.
(8) Terms of coverage and amount of employee financial participation in insurance programs.
(9) Rules for personnel administration of employees provided the rules are not discriminatory in regard to an applicant's race, color, creed, sex, sexual orientation, age, national origin, religion or disability.
(10) A collective bargaining service fee.
§ 1014. MANAGEMENT RIGHTS
(a) The employer shall be responsible for insuring consistency of the terms and conditions in various agreements throughout the judiciary department and shall not agree to any terms or conditions for which adequate funds are not available.
(b) Subject to rights guaranteed by this chapter and other applicable laws, nothing in this chapter shall be construed to interfere with the right of the employer to:
(1) Carry out its statutory mandate and goals and to utilize personnel, methods and means in the most appropriate manner.
(2) Take necessary action to carry out its mission in an emergency situation.
(c) The employer shall take any action necessary to implement and administer the provisions of a legally binding agreement between the employer and an employee organization.
(d) The agency of administration shall provide to the supreme court, on request, any information that it possesses or can reasonably produce that it uses to prepare for or conduct collective bargaining negotiations. The agency shall also provide any services it provides to executive and legislative agencies or departments related to the processing of the state's payroll and the administration of benefits. In the event the bargaining agreement contains provisions that require the agency of administration or the judiciary department to expend more than what is typically budgeted for administration and maintenance of the payroll or benefit administration system, the court administrator shall request the funding at the time the agreement is submitted to the general assembly for approval under subsection (c) of section 1036 of this title.
§ 1015. DESIGNATION OF MANAGERIAL, SUPERVISORY AND
The employer shall determine the designation of employees as managerial, supervisory or confidential. Any disputes arising from this determination shall be resolved by the board.
§ 1016. OBLIGATION TO BARGAIN
The employer and representative of the employees shall bargain collectively, which for the purposes of this chapter means performing the mutual obligation to meet at reasonable times and confer in good faith with respect to all matters bargainable under the provisions of this chapter. The failure or refusal of either party to agree to a proposal; to change or withdraw a lawful proposal; or to make a concession shall not constitute, or be direct or indirect evidence of, a breach of this obligation.
§ 1017. GRIEVANCE PROCEDURES; BINDING ARBITRATION
(a) The employer and the representative of the employees shall negotiate a procedure for resolving complaints and grievances. Unless otherwise agreed to by the parties, the board shall hear and make final determination on a grievance. A grievance hearing shall be conducted in accordance to the rules of the board.
(b) A collective bargaining agreement may provide for binding arbitration as the final step of a grievance procedure. An agreement that includes a binding arbitration provision shall also include the procedure for conducting the grievance arbitration proceedings and the following provisions:
(1) The parties shall mutually agree on an arbitrator from a list of arbitrators provided by the American Arbitration Association. An arbitrator chosen or appointed under this section shall have no authority to add to, subtract from, or modify the collective bargaining agreement.
(2) An acknowledgment of arbitration that provides substantially the following:
ACKNOWLEDGMENT OF ARBITRATION.
(The parties) understand that this agreement contains an agreement that the final step of the grievance process shall be binding arbitration. After the effective date of thisagreement no grievance may be brought to the Vermont Labor Relations Board and no lawsuit concerning any grievance may be brought, unless it involves a question of constitutional or civil rights.
(c) This section shall not apply to labor interest arbitration, which for the purposes of this chapter means the method of concluding labor negotiations by means of a disinterested person to determine the terms of a labor agreement.
(d) A party may apply to the arbitrator for a modification of an award if the application is made within 30 days after delivery of a copy of an award to the applicant. An arbitrator may modify an award only if the arbitrator finds any one of the following:
(1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award.
(2) The award was based on a matter not submitted to the arbitrator, and the award may be corrected without affecting the merits of the decision on the issues submitted.
(3) The award is imperfect in form and the award may be corrected without affecting the merits of the controversy.
(e) A party may apply to the superior court for review of the award provided the application is made within 30 days after delivery of a copy of the award to the applicant or, in case of a claim of corruption, fraud or other undue means, the application is made within 30 days after those grounds are known or should have been known. The superior court shall vacate an arbitration award based on any of the following:
(1) The award was procured by corruption, fraud or other undue means.
(2) There was partiality or prejudicial misconduct by the arbitrator.
(3) The arbitrator exceeded his or her power or rendered an award requiring a person to commit an act or engage in conduct prohibited by law.
(4) There is an absence of substantial evidence on the record as a whole to support the award.
§ 1018. MEDIATION; FACT-FINDING; LAST BEST OFFER
(a) If after a reasonable period of negotiation, the representative of a collective bargaining unit and the employer reach an impasse, the board, upon petition of eitherparty, may authorize the parties to submit their differences to mediation. Within five days after receipt of the petition, the board shall appoint a mediator who shall communicate with the parties and attempt to mediate an amicable settlement. A mediator shall be of high standing and in no way actively connected with labor or management.
(b) If, after a minimum of 15 days after the appointment of a mediator the impasse is not resolved, the mediator shall certify to the board that the impasse continues.
(c) Upon the request of either party the board shall appoint a fact finder who has been mutually agreed upon by the parties. If the parties fail to agree on a fact finder within five days, the board shall appoint a fact finder who shall be a person of high standing and not actively connected with labor or management. A member of the board or any individual who has actively participated in mediation proceedings for which fact-finding has been called, shall not be eligible to serve as a factfinder under this section, unless agreed upon by the parties.
(d) The fact finder shall conduct hearings, pursuant to rules of the board. Upon request of either party or of the fact finder, the board may issue subpoenas of persons and documents for the hearings and the fact finder may require that testimony be given under oath and may administer oaths.
(e) Nothing in this section shall prohibit the fact finder from mediating the dispute at any time prior to issuing recommendations.
(f) The fact finder shall consider, if applicable to the issues the following factors in making a recommendation:
(1) Wage and salary schedules and employee benefits to the extent they are inconsistent with prevailing rates, both within state government as a whole and for comparable work in commerce or industry within the state.
(2) Work schedules relating to assigned hours and days of the week as they relate to the employee's needs and the general public's requirement for continual service.
(3) General working conditions as those conditions compare with generally accepted safety standards and conditions prevailing in commerce and industry within the state and within state government.
(g) Upon completion of the hearings, the fact finder shall file written findings and recommendations with both parties.
(h) The costs of witnesses and other expenses incurred by either party in fact-finding proceedings shall be paid directly by the parties incurring them, and the costs and expenses of the fact finder shall be paid equally by the parties. The fact finder shall be paid a rate mutually agreed upon by the parties for each day or any part of a day while performing fact-finding duties and shall be reimbursed for all reasonable and necessary expenses incurred in the performance of his or her duties. A statement of fact-finding per diem and expenses shall be certified by the fact finder and submitted to the board for approval. The board shall provide a copy of approved fact-finding costs to each party with its order apportioning half of the total to each party for payment. Each party shall pay its half of the total within 15 days after receipt of the order. Approval by the board of fact-finding and the fact finder's costs and expenses and its order for payment shall be final as to the parties.
(i) If the dispute remains unresolved 15 days after transmittal of findings and recommendations, each party shall submit to the board its last best offer on all disputed issues as a single package. Each party's last best offer shall be certified to the board by the fact finder. The board may hold hearings and consider the recommendations of the fact finder. Within 30 days of the certifications the board shall select between the last best offers of the parties, considered in their entirety without amendment and shall determine its cost. The board shall not issue an order under this subsection that is in conflict with any law or rule or that relates to an issue that is not bargainable. The decision of the board shall be final and binding on the parties.
§ 1019. MEDIATION-ARBITRATION
(a) Notwithstanding section 1018 of this title or any other law, the parties may agree in advance to a mediation and arbitration procedure.
(b) The parties may jointly select a mediator. If they are unable to agree, either party may petition the board to appoint a mediator who shall be a person of high standing and in no way actively connected with labor or management. The mediator may not be a personwho has served as a mediator at an earlier stage of the same proceedings.
(c) The mediator shall encourage the parties to reach a voluntary settlement of the dispute, but may, after a reasonable period of mediation, as determined by the mediator, certify to the board that the impasse continues and end mediation efforts.
(d) If the impasse remains unresolved for 15 days after the mediator's certification to the board, either party may petition the board to appoint an arbitrator who has been mutually agreed upon by the parties. If the parties fail to agree on an arbitrator within five days, the board shall appoint an arbitrator who shall be a person of high standing and not actively connected with labor or management.
(e) A hearing before an arbitrator shall be informal and the rules of evidence for judicial proceedings shall not be binding. The arbitrator may consider any relevant evidence. The arbitrator may administer oaths and may issue subpoenas to persons and documents and other evidence relating to the issues presented.
(f) In reaching a decision, the arbitrator shall consider the factors in subsection 1018(f) of this title.
(g) The arbitrator shall submit a report, including its costs, to the parties and to the board no later than 30 days after the termination of the hearing, unless the time is extended by agreement of both parties. The determination by the arbitrator on all issues shall be final and binding on the parties and shall not be appealable to the board or to any other judicial or administrative quasi-judicial challenge, except as follows:
(1) A party may request the arbitrator to modify an award if the request is made within 30 days after delivery of the award to the applicant. An arbitrator may modify an award if the arbitrator finds one of the following:
(A) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award.
(B) The award was based on a matter not submitted and the award may be corrected without affecting the merits of the decision upon the issues submitted.
(C) The award is imperfect in a matter of form that does not affect the merits of the controversy.
(2) Notwithstanding any law to the contrary, upon application of a party, a superior court shall vacate an arbitration award based on one of the following:
(A) The award was procured by corruption, fraud or other undue means.
(B) There was evident partiality or prejudicial misconduct by the arbitrator.
(C) The arbitrator exceeded his or her power or rendered an award requiring a person to commit an act or engage in conduct prohibited by law.
(D) There is insufficient evidence on the record to support the award.
(3) An application to the superior court for review pursuant to subdivision (2) of this subsection shall be made within 30 days after delivery of a copy of the award to the applicant, except that in case of a claim of corruption, fraud or other undue means, in which case the petition shall be made within 30 days after such grounds are known or should have been known.
§ 1020. REPORTS ARBITRATION; COSTS
(a) The results of all arbitration proceedings, recommendations and awards conducted under this chapter shall be filed with the board simultaneously with submission of the decisions to the parties.
(b) The costs of any mediation, fact-finding or arbitration conducted pursuant to this chapter, including per diem expenses and actual and necessary costs for travel, subsistence or hiring premises in which proceedings were conducted shall be shared equally by the parties. All other costs shall be paid by the party incurring them.
§ 1021. UNIT DETERMINATION; CERTIFICATION
(a) The board shall determine issues of unit determination, certification and representation in accordance with this chapter and the provisions of section 941 of this title. The board shall decide the appropriate unit for collective bargaining in each case and the employees to be included in that unit to assure the employees the fullest freedom in exercising the rights guaranteed by this chapter.
(b) In determining whether a unit is appropriate, the extent to which the employees have organized is not controlling. The board shall not recognize a unit if, after investigation and hearing, the board determines that the employees do not constitute a unitappropriate for collective bargaining or if recognition of that unit will result in over-fragmentation of collective bargaining units.
(c) If an interested person files with the board a charge alleging that employees eligible to vote in an election under this chapter were coerced or restrained in the exercise of that right, the board shall investigate and conduct hearings into the validity of the charge. If the board concludes that employees were coerced or restrained, the board may set aside the election and order another election pursuant to this chapter.
Subchapter 2. Unfair Labor Practices
§ 1026. EMPLOYERS
It shall be an unfair labor practice for an employer:
(1) To interfere with, restrain or coerce employees in the exercise of rights guaranteed by section 1012 of this title or by any other law.
(2) To dominate or interfere with the formation or administration of an employee organization or contribute financial or other support to it. However, an employer may confer with employees during working hours without loss of time or pay.
(3) To discriminate in hiring or tenure of employment or in regard to any term or condition of employment to encourage or discourage membership in any employee organization.
(4) To discharge or otherwise discriminate against an employee because the employee filed a charge or complaint or gave testimony under this chapter.
(5) To refuse to bargain collectively with a representative of its employees.
(6) To discriminate against an employee on account of race, color, creed, sex, sexual orientation, national origin, age, religion or disability.
(7) To request or require an applicant, prospective employee or employee to have an HIV-related blood test as a condition of employment.
(8) To discriminate against an applicant, prospective employee or employee on the basis of a person's having a positive test result from an HIV-related blood test.
§ 1027. EMPLOYEES
It shall be an unfair labor practice for an employee organization or its agents:
(1) To restrain or coerce employees in the exercise of the rights guaranteed to them by law. This subdivision shall not limit the right of an employee organization to prescribe its own rules with respect to the acquisition or retention of membership, provided the rules are not discriminatory.
(2) To restrain or coerce an employer in the selection of a representative for the purpose of collective bargaining or adjustments of grievances.
(3) To cause or attempt to cause an employer to discriminate against an employee in violation of section 1026 of this title or to discriminate against an employee whose membership in the employee organization has been denied or terminated on a ground other than the employee's failure to pay dues or the initiation fees required for membership.
(4) To refuse to bargain collectively with an employer, provided it is the exclusive bargaining representative of the employees.
(5) To engage in, induce or encourage any individual employed by any person to engage in, a strike or a refusal in the course of employment to use, transport or otherwise handle or work on any goods, articles, materials or commodities or to perform an authorized function.
(6) To threaten, coerce or restrain any person by:
(A) Forcing or requiring any employee to join an employee organization or to enter into an agreement that is prohibited under this chapter.
(B) Forcing or requiring any employer or employee to cease using, handling, transporting, or otherwise dealing in the products of a producer, processor or manufacturer, or to cease doing business with any other person, in the course of
regular state business, or forcing, or requiring the employer to recognize or bargain with an employee organization as the representative of the employees unless the employee organization has been certified as the representative of the employees under this chapter.
(C) Forcing or requiring the employer to recognize or bargain with an employee organization as the representative of the employees if another employee organization has been certified as the representative of the employees under this chapter.
(D) Forcing or requiring the employer to assign particular work to employees ina particular position, class or employee organization rather than to employees in another position, class or employee organization unless the employer is not conforming to an order of certification of the board determining the bargaining representative for employees performing that work.
(7) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value for services that are not performed or not to be performed or that are not needed or required by the employer.
(8) To picket or cause to be picketed, or threaten to picket or cause to be picketed, the employer in order to force or require the employer to recognize or bargain with an employee organization as the representative of its employees, or to force or require the employees of an employer to accept or select the employee organization as their collective bargaining representative.
(9) To engage in activities unlawful under section 1012 of this title.
(10) To charge a negotiated collective bargaining fee unless the employee organization has established and maintained a procedure to provide nonmembers with all the following:
(A) An audited financial statement that identifies the major categories of expenses and divides them into chargeable and nonchargeable expenses.
(B) An opportunity to object to the amount of the fee requested and to place in escrow any amount reasonably in dispute.
(C) Prompt arbitration by the board to resolve any objection over the amount of the collective bargaining fee.
§ 1028. MEMBERSHIP; EMPLOYEE RIGHTS
An employee organization entering into an agreement shall not:
(1) Discriminate against a member or applicant for membership on account of race, color, creed, sex, sexual orientation, national origin, age, religion or disability.
(2) Penalize a member for exercising a right guaranteed by the Constitution or laws of the United States or the state of Vermont.
§ 1029. BUSINESS AND PRODUCTS OF OTHER EMPLOYERS
It shall be an unfair labor practice for any employee organization and any employer to enter into any contract or agreement, express or implied, whereby the employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in the products of any other person, or to cease doing business with any other person, and any contract or agreement entered into before or after enactment of this chapter containing such an agreement shall be to that extent unenforceable and void.
§ 1030. PREVENTION OF UNFAIR PRACTICES
(a) The board may prevent any person from engaging in any unfair labor practice prohibited under this chapter. Whenever a charge is made that any person has engaged in or is engaging in any unfair labor practice, the board may issue and cause to be served upon that person a complaint stating the charges and containing a notice of hearing before the board at a place and time that is at least seven days after the complaint is served. No complaint shall issue based on any unfair labor practice occurring more than six months prior to the filing of the charge with the board and service of a copy on the person against whom the charge is made, unless the person aggrieved was prevented from filing the charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of discharge.
(b) The person complained against may file an answer to the complaint and appear and present evidence. The board may permit any other person to intervene and present evidence in the matter. A proceeding under this section shall, so far as practicable, be conducted in accordance with rules of evidence. The board shall make a transcript of the hearing in the event the decision of the board is appealed.
(c) The board may administer oaths, take testimony, subpoena witnesses and demand production of documents. Officers who serve subpoenas issued by the board and witnesses attending hearings shall be paid fees and compensation on vouchers of the board at the same rates as officers and witnesses in causes before a district court.
(d) If the board finds, based on a preponderance of the evidence, that any person named in the complaint has engaged in or is engaging in any unfair labor practice, theboard shall issue an order and findings of fact, and cause to be served on that person an order requiring the person to cease and desist from the unfair labor practice and the board shall take such affirmative action necessary to carry out the policies of this chapter. If the board does not find that the person has engaged in any unfair labor practice, the board shall issue written findings of fact and dismiss the complaint.
(e) In determining whether a complaint shall issue alleging a violation of subdivision 1026(l) or (2) of this title, and in deciding those cases, the same rules of the board shall apply whether or not an employee organization is affiliated with a national or international employee organization.
(f) The board shall not order reinstatement of any individual who has been suspended or discharged or award any back pay, if the individual was suspended or discharged for cause.
§ 1031. FREEDOM OF EXPRESSION
The expression of any views, argument or opinion, or the dissemination of such an expression, in any form, shall not constitute or be evidence of an unfair labor practice under this chapter, provided the expression contains no threat of reprisal or force or promise of benefit.
Subchapter 3. Agreements; Generally
§ 1036. AGREEMENTS; LIMITATIONS, RENEGOTIATION AND RENEWAL
(a) A collective bargaining agreement shall be for a maximum term of two years. The agreement may not be canceled, supplemented or renegotiated during the term of the agreement, unless both parties consent in writing and file the written consent with the board.
(b) Nothing in this chapter shall be construed to require either party during collective bargaining to accede to any proposal or proposals of the other party.
(c) An agreement between the employer and the employees' exclusive bargaining representative, after ratification or an agreement imposed on the parties pursuant to section 1018 or 1019 of this title shall be submitted to the court administrator who shall request sufficient funds from the general assembly to implement the agreement. If thegeneral assembly appropriates sufficient funds, the agreement shall become effective at the beginning of the next fiscal year. If the general assembly appropriates a different amount of funds, the terms of the agreement affected by that appropriation shall be renegotiated based on the amount of funds actually appropriated by the general assembly, and the agreement with the negotiated changes shall become effective at the beginning of the next fiscal year.
(d) No portion of any agreement shall become effective separately except with mutual consent of both parties.
(e) An agreement shall terminate at the expiration of its specified term. Upon request of either party, negotiations for a new agreement to take effect upon the expiration of the preceding agreement shall be commenced at any time during the year preceding the expiration date of the agreement. Negotiation may be commenced at any time before that time with the consent of both parties.
(f) In the event the employer and the employees' exclusive bargaining representative are unable to arrive at an agreement and there is no existing agreement in effect, the court administrator, with the approval of the supreme court may make temporary rules necessary to ensure the uninterrupted and efficient conduct of judicial business. The rules shall terminate and have no further force and effect after an agreement is reached, except for rights that arose under those rules.
Subchapter 4. Miscellaneous Provisions
§ 1041. GRIEVANCES; APPLICANTS AND EXCLUDED PERSONNEL
(a) An applicant for employment in a position included in the bargaining unit and employees who are in the initial or extended probationary period may appeal to the board if they believe they were discriminated against on account of race, color, creed, sex, sexual orientation, age, national origin, religion or disability.
(b) Grievance rights and personnel rules for permanent employees who are not included in bargaining units shall be established and governed by the judiciary department personnel policies as adopted under Administrative Order No. 3 of the supreme court.
(c) Any dispute concerning the amount of a collective bargaining service fee may begrieved to the board in accordance with the rules of the board.
§ 1042. ENFORCEMENT
(a) Orders of the board issued under this chapter may be enforced by any party or by the board by filing a petition with the Washington superior court or the superior court in the county in which the action before the board originated. The petition shall be served on the adverse party pursuant to the Vermont Rules of Civil Procedure. If, after hearing, the court determines that the board had jurisdiction over the matter and that a timely appeal was not filed, or that an appeal was timely filed and a stay of the board order or any part of it was not granted, or that a board order was affirmed on appeal in pertinent part by the supreme court, the court shall incorporate the order of the board as a judgment of the court. There is no appeal from that judgment except that a judgment reversing a board decision on jurisdictional grounds may be appealed to the supreme court.
(b) Upon filing of a petition by a party or the board, the court may grant temporary relief that the court deems proper pending formal hearing.
(c) Orders and decisions of the board shall apply only to the particular case under appeal, but appeals presenting similar issues may be consolidated for hearing with the consent of the board. All employees who are aggrieved by the same action of the employer may join in an appeal with the consent of the board. The board shall not modify, add to, or detract from a collective bargaining agreement by any order or decision.
(d) An arbitration award issued pursuant to this chapter, including grievance arbitration and labor interest arbitration awards, may be enforced by any party by filing a petition with the Washington superior court or the superior court in the county in which the action originated. The petition shall be served on the adverse party pursuant to the Vermont Rules of Civil Procedure. If, after hearing, the court determines that the arbitrator had jurisdiction over the matter and that an application for modification or petition to vacate an award was not filed, the court shall incorporate the order of the board as a judgment of the court. There is no appeal from that judgment except that a judgment reversing an arbitration award on jurisdictional grounds may be appealed to the supreme court.
§ 1043. JUDICIAL REVIEW; STAY PENDING APPEAL
(a) Any person aggrieved by an order or decision of the board issued under this chapter, except a decision and order made pursuant to subsection 1018(i) of this title, may appeal questions of law to the supreme court.
(b) An order of the board shall not automatically be stayed pending appeal. Upon request, the board may stay the order or any part of it. If the board denies a stay, a stay may be requested from the supreme court. The supreme court or a single justice may stay the order or any part of it and may order additional interim relief.
Dated: April 15, 1998