University Of Vermont And State Agricultural College

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 291 (N.L.R.B. 1989)

' '
UNIVERSITY OF VERMONT _ . 291
University of Vermont and State Agricultural Col-
lege and Vermont Labor Relations Board, Peti-
tioner, and Vermont-NEA. Case A0-267
November 21, 1989
ADVISORY OPINION
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
Pursuant to Section 102 98(b) of the Board's
Rules and Regulations, on March 1, 1989, the Ver-
mont Labor Relations Board (VLRB) filed a peti-
tion for an advisory opinion regarding whether the
Board would decline to assert jurisdiction over the
University of Vermont and State Agricultural Col-
lege (University or UVM) because it is not an em-
ployer within the jurisdiction of the National
Labor Relations Act (NLRA) 1 In pertinent part,
the petition alleges that an unfair labor practice
proceeding2 is currently pending before the VLRB
involving Vermont-NEA (the Union) and the Uni-
versity of Vermont, that the parties' rights and/or
obligations with respect to that dispute may turn at
least in part on whether the University of Vermont
is an employer within the jurisdiction of the
NLRA, and that this jurisdictional issue can be
most expeditiously resolved through the Board's
advisory opinion procedures The University of
Vermont, Vermont-NEA, and the State of Ver-
mont have submitted bnefs 3 setting forth the rele-
vant facts and arguments with respect to whether
the Board should decline to assert jurisdiction over
the University of Vermont By this petition, we are
asked to reconsider the Board's 1976 decision to
assert jurisdiction over the University of Vermont
(223 NLRB 423)
Section 102 98(b) of the Board's Rules and Regu-
lations provides that any state or territorial agency
or court may petition the Board for an advisory
opinion on whether it would decline to assert juris-
diction over parties then before the agency or
court either (1) on the basis of its current ' stand-
ards, or (2) because the employing enterprise is not
within the jurisdiction of the NLRA As the peti-
1 Because it has demonstrated a substantial interest in the outcome of
this case, we grant the State of Vermont's Motion for Intervention
2 VLRB Docket No 89-4
3 The University of Vermont's motion in opposition to request for
reply briefs is denied Although the University's motion addresses only
the reply briefs filed by the State of Vermont and Vermont-NEA, we
note that the University has also filed a reply brief Although the Board's
Rules and Regulations do not specifically provide for the filing of reply
bnefs, the Rules provide that In]o briefs shall be filed except upon spe-
cial permission of the Board" (NLRB Rules and Regulations, Sec
102 103) Thus, no party has an absolute right to file any brief At the
same time, however, the Board is free to grant permission to file any
briefs We have decided to accept the reply briefs filed by the State of
Vermont, Vermont-NEA, and the University of Vermont in the circum-
stances of this case
tion here was filed by the Vermont Labor Rela-
tions Board, a state agency, and specifically re-
quests an advisory opinion on whether the Univer-
sity of Vermont is an employer within the jurisdic-
tion of the NLRA, and as the relevant facts alleged
in the petition and the parties' briefs are essentially
undisputed, 4 we find that the petition was properly
filed and that the jurisdictional issue raised is ap-
propriately addressed through the Board's advisory
opinion procedures 5 We accordingly proceed to
do so
Section 2(2) of the NLRA provides that the term
"employer" shall include "any person acting as an
agent of an employer, directly or indirectly, but
shall not include any State or political subdivi-
sion thereof " Although the NLRA does not
define what constitutes an exempt state political
subdivision, the exemption has historically been in-
terpreted to include only those entities that are
either (1) created directly by the State, so as to
constitute departments or administrative arms of
the government, or (2) administered by individuals
who are responsible to public officials or to the
general electorate 6
The University of Vermont was created by a
special act of the Vermont General Assembly on
November 3, 1791 The Governor of the State of
Vermont chose the first 10 trustees, the Governor
and the Speaker of the House were trustees, and
public lands were assigned to support the institu-
tion In 1810, the number of trustees was increased
to 18 and provision was made for vacancies on the
board of trustees to be filled by joint ballot of both
houses of the legislature In 1865, the University of
Vermont and State Agncultural College 7 was in-
corporated as one entity by the legislature In 1955,
the legislature amended the act of incorporation
providing that the University of Vermont and Ver-
mont Agricultural College "shall be recognized
and utilized as an instrumentality of the state for
providing higher education" and that the general
4 The University of Vermont has also requested that if the Board de
termines that there are sufficient outstanding factual disputes remaining
between the parties, the Board should direct a hearing to assist it with
the resolution of any such factual disputes The parties have set forth in
their briefs the relevant facts and arguments necessary for a proper deter
=nation of this case Therefore, we deny the request for a hearing
5 The parties have not advised us, nor are we aware, of any unfair
labor practice or representation proceeding involving the same dispute
pending before the Board or its Regional Office
6 See NLRB v Natural Gas Utility District of Hawkins County, 402 U S
600 (1971)
7 With respect to the State Agricultural College, UVM has the statuto-
ry authority to formulate annual agricultural plans for the State of Ver-
mont, to prescribe rules and regulations and to administer the annual ag-
ricultural plans, and to enter into agreements with and to make payments
to agricultural producers regarding utilization of land and farm practices
UVM annually submits a report to the Governor covering the adminis-
tration and operation of the agricultural program See 16 V S A 2325
297 NLRB No 42
-
o
r,
292: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARDJ_.
assembly of the State of Vermont shall "appropn-
ate such sums as it deems necessary for the support
and maintenance of said corporation "8
Prior to 1955, control of the corporation was
vested in a board of trustees composed of 18 mem-
bers plus 2 ex officio members (the Governor and
the university president) Of these, 9 of the 18
trustees were elected by the University and 9 by
the legislature, making an even division of control
The 1955 Act increased the number of trustees to
21, plus the same 2 ex officio members The Gov-
ernor was granted appointment power regarding
the three additional members and hence the State,
by legislative election and gubernatorial appoint-
ment, was given a majority on the board of trust-
ees As indicated above, the 1955 Act also added
language to the previous act of incorporation pro-
viding that the UVM "shall be recognized and uti-
lized as an instrumentality of the state for provid-
ing higher education" and that the general assem-
bly shall "appropriate such sums as it deems neces-
sary for the support and maintenance of said cor-
poration "9
In 1977 the act was further amended to provide
for two student members on the board of trustees
and prohibited amendment of the selection proce-
dure for student trustees without prior consent of
the General Assembly At present, the University
is run by a board of trustees that consists of the
Governor ex officio, the University's president ex
officio, three members appointed by the Governor,
nine members elected by the legislature, nine self-
perpetuating members, and two students Disre-
garding the 2 ex officio members, 12 trustees are
selected by the State and 11 independently
The 1955 amendments provided that the board
of trustees has the right to use, control, sell, or dis-
pose of all the real estate and personal property be-
longing to UVM The amendments also exempted
from taxation UVM's real and personal property
held for educational purposes Additionally, it ap-
pears from two legal opinions rendered by counsel
for the UVM in 1984 and 1988 that the interest on
student fee refunding bonds issued by the UVM is
exempt from Federal and state taxation 10
The board of trustees operates in an autonomous
fashion and has independent authority to establish
all personnel policies, wages, and benefits and to
enter into collective-bargaining agreements and to
9 Sec 1, No 66, Act of 1955
9 No 66, Act of 1955
10 The parties filed additional documentation and briefs related to the
Federal Income tax status of the University We find that the information
is inconclusive with respect to whether the University claims to be and
whether It constitutes a political subdivision of the State for income tax
and bonding purposes We therefore have not relied on this information
in reaching our decision in this case
ratify such agreements without the approval of the
legislature The pay and benefits of the University
administrators are set independently of the legisla-
ture and the state employment system The Univer-
sity's finances are under the supervision of the
auditor of accounts, state treasurer and legislature
Under state law, UVM's books and accounts must
be audited by the state auditor, treasurer, and legis-
lative appropriations committees
The legislature, in creating the University, re-
served the power to amend its relationship with
UVM From 1959-1975 the legislature passed laws
mandating tuition and domicile requirements for
Vermont students The legislature maintains con-
trol of the tuition of Vermont students With the
exception of the University's college of medicine,
"the amount of tuition for eligible Vermont resi-
dents for attendance during each academic year
shall be not more than 40 percent of the tuition
charged to nonresident students " 11 However, the
out-of-state tuition is not controlled by the State,
and is set by the UVM Twenty-five percent of
UVM's operating budget comes from state appro-
priations UVM receives more state funds than the
entire state college system
The state buildings division contnbutes to the
construction of buildings at the University, and re-
cently invested $1 5 million into the renovation of
the UVM's Votey Hall Although the University is
free to construct buildings and hold any real estate
it chooses, it has no power of eminent domain
In 1959, the Vermont Attorney General issued
an opinion in response to a request from counsel
for UVM concerning the applicability to the Uni-
versity of a Vermont statute, 12 which prohibited
an educational corporation from acquiring or hold-
ing property of the value of more than $10 million
In its request for an opinion, UVM noted that No
66 of the Public Acts of 1955 left little doubt that
the University is to be considered as a public,
rather than a private corporation The Attorney
General interpreted the statute as affecting only
private corporations, and concluded that the Uni-
versity as a public corporation was not affected
In 1960, Congress considered legislation author-
izing the United States Attorney General to con-
sent, over the objection of the Library of Congress
trust fund board, to a modification that would
remove a limitation imposed on the University pur-
suant to the terms of a trust instrument executed by
James B Wilbur The trust instrument had provid-
ed for a large monetary benefit to UVM, but that
the corpus of the trust would be paid over to the
11 75 V S A Par 2282(b)
12 11 V S A Par 132 (since repealed)
UNIVERSITY OF VERMONT 293
Library of Congress trust fund "[u]nless the Legis-
lature of Vermont pass a law limiting the number
of students attending the University of Vermont in
any one year to one thousand, and no students
from outside the State to be admitted until after
native born Vermont students " In support of
the proposed legislation, UVM submitted a 1960
memorandum, arguing that it "is an agency of the
State, and a public trust for education of its
• youth" Congress determined that the UVM should
maintain control over the Wilbur trust fund
In Molesworth v University of Vermont, 13 the
Vermont Supreme Court determined that Vermont
Rule of Civil Procedure 75 regarding appeals of
government action applies to UVM 14 In Moles-
worth, UVM argued successfully that its appellate
residency officer made quasi-judicial determinations
and that appellate review was available only for
substantial questions of law affecting the merits of a
case If the UVM had been considered a private
university, no such appellate review would be pos-
sible The procedure outlined in VRCP 75 is
only applicable to action of an "agency of the state
or a political subdivision thereof " 1 5
In Sprague v University of Vermont," the Feder-
al district court found that UVM was subject to
the Vermont Open Meetings Law and to the Ver-
mont Public Records Law Although the court
stated in its decision that UVM is primarily pri-
vately financed and has many powers independent
of the State, the court concluded that UVM was an
"instrumentality and agency of the state" In so
finding, the Sprague court recognized that the Ver-
mont Supreme Court in Molesworth found that
UVM's quasi-judicial determinations regarding re-
duced tuition "clearly identified internal action by
UVM as governmental action" Also in Sprague,
the court found that the University is not subject
to the Vermont Administrative Procedures Act
As an "officer" or "agency" of the State of Ver-
mont, the University is exempt from the security
requirement of V RCP 65(c), which provides for
the giving of security by an applicant for a re-
straining order or preliminary injunction 17 Until
recently, lobbyists representing UVM before the
State legislature have never registered pursuant to
state law requiring private lobbyists to register
"508 A 2d 722 (Vt Sup Ct 1986)
14 The court found that the legislature delegated authority to the Uni-
versity's trustees to distinguish between in-state and out-of-state residency
for tuition purposes Pursuant to this authority, a residency officer con-
siders all requests for in-state status and an appellate residency officer
hears all appeals of the residency officer s denials of in-state status 508
A 2d at 723
"VRCP 74(a)
le 661 F Supp 1132 (D Vt 1987)
17 V RC p 65 provides that Enlo such security shall be required of
the State of Vermont or an officer or agency thereof
with the secretary of state 18 Lee B Liggett, the
Vermont secretary of state, attested in an affidavit
that Nicholas Marro, a lobbyist on behalf of the
University with the state legislature, registered as a
lobbyist for the first time on January 10, 1989 Lig-
gett states in his affidavit that "we have never in-
sisted that they [University employees] register be-
cause of the statutory exemption for public em-
ployees"
In addition, the UVM retirement systems are
created by state statute The University is author-
ized to reserve from funds appropriated by the
state for resident teaching, research, and related
services in the UVM amounts designated as em-
ployer contributions "to be made to a retirement
system established by the board of trustees" of the
UVM and "to deposit such amounts to the credit
of such retirement system for subsequent disburse-
ment in accordance with the terms thereof "19
When the Vermont State Employee Labor Rela-
tions Act was passed in 1969, all state employees
and employees of the Vermont state colleges were
included in the act but employees of the University
of Vermont were specifically excluded In 1974,
the Vermont legislature defeated an amendment to
the State Labor Relations Act that would have
brought UVM's employees under the act In a 1976
case involving UVM and the American Federation
of Teachers (AFT), the NLRB agreed with the
parties' stipulation and found on the "uncontrovert-
ed facts" before it then that the University was not
a "political subdivision of the State "28 About Jan-
uary. 1989, the Vermont general assembly enacted a
bill (H 328), effective on July 1, 1989, which in-
cluded UVM's employees within the coverage of
the Vermont State Employee Labor Relations
Law
The State of Vermont and Vermont-NEA con-
tend that the Board should reverse its 1976 deci-
sion and decline to assert jurisdiction over the Uni-
versity of Vermont because the University is a "po-
litical subdivision" of the State of Vermont They
contend that the "uncontroverted facts" relied on
by the Board in its 1976 determination were incom-
plete and insufficient for a full analysis under the
Hawkins test Because there was no state labor rela-
tions law covering the UVM employees in 1976, it
was imperative for the AFT representative to
agree to facts under which the Board would assert
jurisdiction Thus, the facts provided to the Board
were "friendly" in nature and should not be deter-
minative of this issue
18 2 VSA Par 252
18 75 V S A Par 2323
28 223 NLRB 423 (1976)
294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It is the position of the State of Vermont and
Vermont-NEA that the University is a political
subdivision under either prong of the Hawkins test
They contend that the University is a creation of
the Vermont legislature and exists as an "instru-
mentality" of the state, that UVM's board of trust-
ees is administered by a majority of individuals re-
sponsible to public officials of the State of Ver-
mont, and that as officers of the State, all members
of the board are subject to removal by the State of
Vermont The State also maintains that even if the
Board finds that the University is not a political
subdivision, pursuant to the rationale contained in
the Board's decision in Temple University, 2 ' the
Board still should not assert junsdiction over the
University because of the substantial nexus that
exists between the University and the State
It is the position of the University of Vermont
that it is not a political subdivision within the
meaning of Section 2(2) and that the Board was
correct in its original determination to assert juris-
diction over the University In support, the Univer-
sity argues that the status of the University as a
public or private entity is anything but free from
doubt, and that its private characteristics are (1) it
has no power of eminent domain, (2) it is not en-
tirely exempt from state and municipal taxation, (3)
there is no evidence that trustee members are either
state officers or subject to removal by public offi-
cials or the general electorate, (4) the University
does not recognize that its records are "public
records" and open for inspection, and (5) the Uni-
versity has not been declared immune from suit
under the 1 1 th amendment which prohibits actions
against the State by nonresidents
The University points out that the University's
board of trustees may act either as an entire body,
through its executive committee or through its var-
ious other committees, either with no involvement
of officials elected by the legislature or gubernato-
rial appointees or with very limited involvement of
these members, and in fact has done so on a con-
sistent basis The University also contends that
since it is Federal and not state law that governs
the consideration of what constitutes a political
subdivision under the NLRA, the State and NEA
citations to opinions of state courts are of little rel-
21 194 NLRB 1160 (1972) In Temple University, the Board exercised its
discretionary power to decline jurisdiction over Temple, based on the
unique relationship between Temple and the Commonwealth of Pennsyl-
vania The Board stated that although Temple was in form a private,
nonprofit institution, It was apparent that the state statute established "the
University as a quasi-public higher educational institution to provide low
cost higher education for Commonwealth residents" Id at 116
Because we find that ft e University is a political subdivision of the
State of Vermont, we need not reach the Issue whether the Board should
decline to assert jurisdiction under the standards set forth in Temple Uni-
versity
evance The University argues that the University's
autonomy and independence from the State, two
factors which the Board has traditionally examined
in determining whether to assert jurisdiction, is es-
tablished through its independent control of per-
sonnel policy making over its nonunion employees,
and also through its 10-year history of collective
bargaining with the IBEW
The question presented is whether the Board
should reconsider its prior decision to assert juris-
diction over the University of Vermont On careful
examination of the relevant facts and circumstances
presented by the parties, we have reconsidered our
prior decision in this case and, for the reasons dis-
cussed below, based on a more extensive record
than that earlier before us, we now find that the
University of Vermont is not an employer within
the meaning of the NLRA
In Hawkins County, supra, the Supreme Court
concluded that the gas utility district involved
therein was a political subdivision because the com-
missioners administering the district were appoint-
ed by an elected county judge and were subject to
removal under the State's General Ouster Law,
thereby bringing the district squarely within the
second of the Board's tests for political subdivision
status The Court also considered numerous other
factors indicating whether the district was a politi-
cal subdivision the state statute establishing the
distnct granted it all of the powers that the legisla-
ture could delegate that were necessary to accom-
plish its purpose, the district possessed the power
of eminent domain that could be exercised even
against other governmental entities, income from
the district's bonds was exempt from Federal
income tax, social security benefits for district em-
ployees were voluntary, the district's records were
public records, all users have the automatic right to
a public hearing and written decision by the com-
missioners, and the fact that commissioners had
subpoena power and served for only nominal com-
pensation
Based on the factors the Court found relevant to
its determination in Hawkins County, many of
which are present here, we conclude that the Uni-
versity of Vermont is a political subdivision of the
State of Vermont and not an employer within the
meaning of the Act We base our conclusion on
both prongs of the Hawkins test and find that the
University of Vermont was created directly by the
State, so as to constitute a department or adminis-
trative arm of the government, and that the Uni-
versity is administered by individuals who are re-
sponsible to public officials or to the general elec-
torate
i ,
UNIVERSITY OF VERMONT 295
Because 12 of the 21 trustees 22 are selected by
the State, either by legislative election or by guber-
natorial appointment, we find that the State clearly
exercises control over the University's board of
trustees Thus, we conclude that the University is
administered by individuals who are responsible to
public officials or to the general electorate 23
For the following reasons, we also find that the
University was created by the State so as to consti-
tute a department or administrative arm of the gov-
ernment the University of Vermont was created
directly by the State of Vermont by a special act of
the Vermont General Assembly in 1791 (and subse-
quently substantially modified in 1865 by the legis-
lature when it merged the University with the
State Agricultural College), and subsequent amend-
ments have been passed by the legislature regulat-
ing the powers of the University, and the 1955
amendments provided that the University "shall be
recognized as an instrumentality of the state" (em-
22 As stated above, there are also two ex officio members (the Gover-
nor and the university president) on the board of trustees, making a total
of 23 members on the board
23 With regard to the removal of the trustees elected by the legislature
and appointed by the Governor, the State of Vermont and Vermont-
NEA assert that the trustees are officers of the state and subject to re-
moval by Impeachment However, It appears that there has not been any
decision by the Vermont Supreme Court concerning the applicability of
the Impeachment procedures to the State-appointed trustees, and no evi-
dence was introduced to establish that impeachment proceedings had
ever been brought against any member of the board of trustees In light
of all the factors discussed herein, we consider the lack of evidence re-
garding the State's ability to remove trustees insufficient to alter our con-
clusion that the University is administered by individuals who are respon
sible to public officials or to the general electorate See Salt River Project,
231 NLRB 11 (1977), in which the Board found a political subdivision
when, as here, the record evidence was inconclusive with respect to re-
moval or recall authority Cf Prairie Home Cemetery, 266 NLRB 678
(1983), Community Health and Home Care, 251 NLRB 509 (1980), North-
ern Community Mental Health Center, 241 NLRB 323 (1979), and City of
Austell Natural Gas System, 186 NLRB 280 (1970) In these cases, the
Board found political subdivision status based on the second prong of the
Hawkins test in the absence of any evidence concerning removal author-
ity
phasis added) and the Vermont legislature reserved
the power to amend its relationship with the Urn-
versity We also note that other factors indicating
that the University is a political subdivision include
the University's real and personal property used for
educational purposes is exempt from taxation, the
University's finances are under the supervision of
the State, and under state law, the University's
books and accounts must be audited by the state
auditor, treasurer, and legislative appropriations
committees, from 1959-1975 the Vermont legisla-
ture passed laws mandating tuition and domicile re-
quirements for Vermont students, 25 percent of the
University's operating budget comes from state ap-
propriations, and the University receives more state
funds than the entire state college system, the Uni-
versity is subject to the Vermont Open Meetings
Law and the Vermont Public Records Law, 24 and
the University is also exempt from the security re-
quirement imposed by state law that provides for
the giving of security by an applicant for a re-
straining order or preliminary injunction Finally,
while not controlling, we also rely on the fact that
the Vermont General Assembly recently enacted a
bill that includes UVM's employees within the cov-
erage of the Vermont State Employee Labor Rela-
tions Law
The University of Vermont as a political subdivi-
sion of the State of Vermont is not an employer
within the meaning of Section 2(2) of the Act Ac-
cordingly, the parties are advised that the Board
would not assert jurisdiction over the University of
Vermont and State Agricultural College
24 Sprague v University of Vermont, 661 F Supp 1132 (D Vt 1987)
Although the University contends that it not subject to the Vermont
Open Meetings Law and to the Vermont Public Records Law, It offers
no support for its contention, and did not appeal the Federal district
court's decision in Sprague 11