In re Vermont State Colleges Faculty Federation, AFT Local 3180

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2019 VT 50

No. 2018-372

In re Vermont State Colleges Faculty Federation, Supreme Court
AFT Local 3180
On Appeal from
Labor Relations Board

May Term, 2019

Richard W. Park, Chair

Patrick N. Bryant of Pyle Rome Ehrenberg PC, Boston, Massachusetts, for Petitioner-Appellant.

Todd W. Daloz, Associate General Counsel, Vermont State Colleges, Montpelier, for
Respondent-Appellee.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. EATON, J. The Vermont Labor Relations Board (Board) dismissed a petition for

election of a collective-bargaining representative filed by appellant-petitioner, Vermont State

Colleges Faculty Federation (Federation). The petition sought to include part-time faculty

teaching for the Vermont State Colleges (VSC) distance-learning program (DLP) in the existing

part-time faculty collective bargaining unit represented by the Federation. The Federation filed an

initial and amended petition, in response to which the Board issued three orders—an original and

two amended orders.1 In its second amended order, which is the order on appeal, the Board

1
The substance of the Federation’s initial and amended petitions and the Board’s initial
and amended orders will be discussed in detail below.
dismissed the petition for failing to propose an appropriate bargaining unit. On appeal, the

Federation asks this Court to reverse the Board’s dismissal and order the Board to reinstate the

petition and conduct an election among the proposed unit members. VSC argues that this Court

should affirm the Board’s original decision and order an election or, in the alternative, affirm the

Board’s second amended order dismissing the petition. We affirm the Board’s dismissal.

¶ 2. We begin with a brief overview of the Board’s statutory authority to determine

collective-bargaining unit configurations and a summary of the facts and procedural history

relevant to this appeal. The Vermont Legislature enacted the State Employees Labor Relations

Act (SELRA), 3 V.S.A. §§ 901-1008, in 1969 to outline the rights of “both State employees and

the State of Vermont and of Vermont State Colleges and the University of Vermont in their

relations with each other” and “to protect the rights of individual employees in their relations with

labor organizations” and “to protect the rights of the public in connection with labor disputes.” Id.

§ 901; see also 1969, No. 113, § 1. The SELRA, in relevant part, authorizes the Board to determine

appropriate collective bargaining units to represent the interests of employees. Id. §§ 921-929,

941. Three sections of the SELRA pertain to our analysis of the Board’s collective-bargaining-

unit determination in this case—3 V.S.A. §§ 902, 927, and 941.

¶ 3. Section 902 defines “collective bargaining” as “the process of negotiating terms,

tenure, or conditions of employment,” id. § 902(2), and “collective bargaining unit” as “the

employees of an employer, being either all of the employees, the members of a department or

agency, or other such unit or units as the board may determine are most appropriate to best

represent the interest of employees.” Id. § 902(3) (emphasis added.)

¶ 4. Building on those definitions, § 927 confers statutory authority on the Board to

determine which unit configurations are appropriate and to decline to recognize a proposed

bargaining unit that it deems inappropriate or that would result in over-fragmentation. The

language of § 927 is as follows:

2
 (a) The Board shall decide the unit appropriate for the purpose of
collective bargaining in each case and those employees to be
included therein, in order to assure the employees the fullest
freedom in exercising the rights guaranteed by this chapter.

(b) In determining whether a unit is appropriate under subsection
(a) of this section, the extent to which the employees have organized
is not controlling.

(c) The Board may decline recognition to any group of employees
as a collective bargaining unit if, upon investigation and hearing, it
is satisfied that the employees will not constitute an appropriate unit
for purposes of collective bargaining or if recognition will result in
over-fragmentation of state employee collective bargaining units.

(Emphases added.)

¶ 5. Section 941 enables employees or an employee organization, such as the Federation

in this case, to file a petition with the Board “alleging . . . that they wish to form a bargaining unit

and be represented for collective bargaining.” Id. § 941(c). Upon receipt of a petition under

§ 941(c), the Board must then investigate the petition and, “if it finds reasonable cause to believe

that a question of unit determination or representation exists,” schedule a hearing before the Board.

Id. § 941(d).

¶ 6. Section 941(a) reiterates that “[t]he Board shall determine issues of unit

determination, certification, and representation in accordance with [the SELRA].” Section 941(f)

outlines the criteria that the Board must consider when determining the appropriateness of a

collective-bargaining unit, although the Board may also look to other factors in deciding the

appropriateness of a unit. Section 941(f) states:

In determining the appropriateness of a collective bargaining unit
the Board shall take into consideration but not be limited to the
following criteria:

(1) The authority of governmental officials at the unit level to
take positive action on matters subject to negotiation.

(2) The similarity or divergence of the interests, needs, and
general conditions of employment of the employees to be
represented. The Board may, in its discretion, require that a separate
vote be taken among any particular class or type of employees
3
 within a proposed unit to determine specifically if the class or type
wishes to be included.

(3) Whether over-fragmentation of units among State
employees will result from certification to a degree which is likely
to produce an adverse effect on effective representation of State
employees generally, or upon the efficient operation of State
government.

(Emphases added.)

¶ 7. If the Board finds substantial interest among employees in forming a bargaining

unit, then the Board must conduct a vote by secret ballot to determine the wishes of the employees

in the voting group involved regarding the formation of the unit. There must be a majority vote

cast in favor of forming the unit for it to be certified and recognized by the Board. Id. § 941(e).

¶ 8. In the “absence of substantive evidence” that an appropriate bargaining unit exists,

the Board shall dismiss the petition. Id. § 941(d); see also Vermont Labor Relations Board Rules

of Practice § 13.6, https://vlrb.vermont.gov/sites/vlrb/files/documents/Rules%20of%20

Practice/Part%201/part1.htm [https://perma.cc/A27B-4D2B] (regarding determination of

showing-of-interest requirement to support petition for election of collective-bargaining

representative, “[i]f sufficient showing of interest is not made . . . the Board will dismiss the

petition”).

¶ 9. In sum, the Board has broad statutory authority to refuse to recognize a petitioned-

for unit that it deems inappropriate or that would result in over-fragmentation of the collective

bargaining units, resulting in the petition’s dismissal.

¶ 10. With this statutory framework in mind, we examine the procedural history in more

detail. The Federation filed a petition for election of a collective-bargaining representative with

the Board in December 2017, seeking to add part-time faculty employed in the DLP at Johnson

State College (JSC) to the existing bargaining unit of part-time faculty at the campus-based

4
colleges in the VSC system.2 The existing bargaining unit is primarily comprised of part-time

faculty who teach traditional, campus-based courses. VSC contended that the proposed inclusion

of DLP faculty, some of whom also teach on-campus programs, in the existing part-time faculty

bargaining unit was inappropriate because the two groups do not share a sufficient community of

interests. VSC requested that the Board instead approve a separate, standalone unit for the part-

time DLP faculty. The Board conducted a hearing regarding the proposed unit determination in

March 2018. Following the hearing, the Board issued an initial order in May 2018.

¶ 11. In its May 2018 order, the Board listed its factual findings and, pursuant to its

authority under § 927(c), declined to recognize the Federation’s petitioned-for unit because it

determined that including part-time DLP faculty within the existing part-time faculty unit would

create an inappropriate bargaining unit. In reaching this conclusion, the Board relied on the

following factual findings.3

¶ 12. At the time of the hearing, six represented collective bargaining units existed in the

VSC, including a unit for “part-time faculty of the campus-based colleges represented by the

Federation.” The JSC provost administers the part-time faculty bargaining unit agreement for JSC

and Lyndon State College. JSC maintains a DLP comprised of an External Degree Program (EDP)

and the JSC program online (JSC online). The Board made findings of fact regarding the purpose,

student composition, administration, and hiring practices of the EDP, which was established in

2
VSC, the employer, filed a response to the petition raising questions of unit
determination, and the Federation amended its petition in February 2018. The amended petition—
which is the basis for this appeal—similarly requested the addition of part-time DLP faculty
employed by VSC and teaching at JSC to the existing part-time faculty bargaining unit. Any
differences between the Federation’s initial and amended petitions are not relevant to our analysis.
3
As explained below, the Board’s October 2018 amended order is the decision under
review on appeal. Accordingly, the facts referenced in this decision are drawn from the Board’s
October 2018 amended order. The Board’s factual findings included in its October 2018 amended
order are identical to the factual findings in its August 2018 amended order and nearly identical to
the factual findings in its initial May 2018 order. The changes in the Board’s factual findings
between its initial and amended orders, which were not substantial, do not affect our analysis.
5
1978, and the more recent JSC online, which launched in 2016. Both programs incorporate

distance-learning courses and serve distance-learning students. EDP courses are available to

campus-based students, while JSC online solely serves distance-learning students.

¶ 13. Additionally, the Board made multiple findings regarding the differences in

lifestyle, background, and opportunities available to distance-learning and on-campus students, as

well as the different classroom environments, geographic locations, professional requirements, and

hiring practices experienced by distance-learning faculty in contrast to faculty for traditional on-

campus courses. Based on these factual findings, the Board found that “[t]he experience for

distance learning students differs significantly from the experience for students for traditional on-

campus courses,” and “[t]he experience for faculty teaching in Distance Learning differs

significantly from that experienced by faculty for traditional on-campus courses.” The Board also

emphasized that “[o]nline is a growing means to deliver higher education instruction.” After

reviewing these facts, the Board concluded that part-time DLP faculty did not share a sufficient

community of interests with part-time faculty in the existing bargaining unit to constitute an

appropriate unit under § 927 and the § 941(f) criteria.

¶ 14. After declining to recognize the petitioned-for unit, the Board determined that a

new bargaining unit for part-time DLP faculty, separate from the existing part-time faculty unit,

would constitute an appropriate unit based on the DLP faculty’s shared community of interests

and the advent of online-education models. The Board ordered that an election be held for

members of this Board-proposed bargaining unit (a standalone unit for all part-time DLP faculty)

instead of adding those employees to the pre-existing part-time faculty unit as requested by the

Federation’s petition. The Federation filed a motion for reconsideration, arguing that the Board

erred in concluding the petitioned-for unit was inappropriate and that the Board’s proposed unit

would result in over-fragmentation.

6
 ¶ 15. The Board granted the Federation’s motion to reconsider over VSC’s objection and

issued an amended order in August 2018—its second order responding to the amended petition.

In its August 2018 amended order, the Board reaffirmed that the Federation’s petitioned-for unit

was inappropriate. It also revised its Board-proposed unit determination from the May 2018 order,

eliminating the unit it designated in the first order and creating another, different proposed unit.

In doing so, the Board split the part-time DLP faculty into two subgroups—(1) part-time DLP

faculty who taught both online and on-campus courses, and (2) part-time DLP faculty who taught

only online courses. The Board’s August 2018 order subsumed the first subgroup (part-time DLP

faculty who taught both online and on-campus courses) into the pre-existing part-time faculty

bargaining unit, as requested by the Federation. It then created a new, standalone bargaining unit

for the second subgroup (part-time DLP faculty who only taught online courses), which was not

anticipated in the petition. In conclusion, the Board denied the Federation’s petitioned-for unit

and ordered an election be held among the relevant employees regarding the Board’s proposed

unit configurations. The Federation filed an interlocutory appeal and a motion to stay the election

ordered by the Board, pursuant to Vermont Rule of Appellate Procedure 5(b), which the VSC

opposed.

¶ 16. In response to the parties’ filings, the Board issued a second amended order in

October 2018—its third and final order in this case. In the October 2018 order, the Board

dismissed the Federation’s petition because—as the Board had concluded in all three of its

orders—the petitioned-for unit was inappropriate. Specifically, the Board dismissed the petition

because part-time DLP faculty who teach exclusively online do not share a sufficient community

of interests with faculty in the existing unit to create an appropriate unit. The Board did not

designate any unit configuration in the October 2018 order, effectively voiding its formerly

designated units and election orders from May and August. However, the Board opined in dicta

that the August 2018 unit configuration (splitting the DLP faculty into two units) was appropriate

7
and did not result in over-fragmentation, as argued by the parties. The Board suggested that,

although the Board had dismissed the petition, this Court could decide whether over-fragmentation

would occur if the Board approved such a unit configuration in the future, effectively seeking an

advisory opinion.

¶ 17. The Federation appealed the Board’s October 2018 amended order to this Court.

The Federation raises four main arguments on appeal: (1) the Board erred by applying the wrong

legal standard when evaluating the underlying petition; (2) the Board erred in determining that the

existing part-time faculty bargaining unit is not an appropriate unit for part-time DLP faculty;

(3) the Board erred in holding that the appropriate unit for part-time DLP faculty depends on

whether they also teach campus-based courses, placing them in either a standalone unit for DLP

faculty who teach exclusively online or the existing part-time faculty unit; and (4) the Board erred

in basing its decision, in part, on various erroneous factual findings and by ignoring various

undisputed facts.

¶ 18. VSC provides several arguments in opposition to the Federation’s contentions but

agrees with the Federation that the Board’s proposed unit in its August and October 2018 amended

orders results in over-fragmentation. Relevant to our analysis, VSC argues that—in each of its

three orders—the Board correctly dismissed the Federation’s underlying petition because the

Federation’s petitioned-for unit lacks a community of interest.

¶ 19. We conclude that the Board applied the correct legal standard in assessing the

Federation’s petition and that it did not err in determining that the petitioned-for bargaining unit is

an inappropriate unit. Regarding the Federation’s argument that the Board erred in basing its

decision on erroneous factual findings and ignoring undisputed facts, we find no error.

¶ 20. Notably, we affirm only the portion of the Board’s order dismissing the petition on

the basis that the petitioned-for unit was inappropriate. The Board’s final order also concludes, in

dicta, that its proposed unit configuration from the August 2018 amended order was appropriate

8
and does not result in over-fragmentation. Because this conclusion is not a necessary part of the

case’s disposition, we do not address the parties’ arguments regarding whether the Board’s unit

configuration proposed in the August and October 2018 amended orders runs afoul of the SELRA

and Board precedent. See Wood v. Wood, 135 Vt. 119, 121, 370 A.2d 191, 192 (1977) (holding

it is only appropriate for this Court to resolve questions necessary for disposition of matter).

¶ 21. Our review of the Board’s order on appeal “is highly deferential and is limited to

evaluating whether the evidence supports the Board’s factual findings, and whether those findings,

taken as a whole, justify the conclusions of law.” In re New Eng. Police Benevolent Ass’n, 2015

VT 51, ¶ 6, 199 Vt. 96, 121 A.3d 669 (quotation omitted). We accord substantial deference to

decisions within the Board’s expertise, such as the matter at hand. Vt. State Emps.’ Ass’n v. State,

151 Vt. 492, 493, 562 A.2d 1054, 1055 (1989). The question of unit determination is squarely

within the Board’s area of expertise; as such, the Board’s decisions “are presumed to be correct,

valid, and reasonable, with a clear and convincing showing required to overcome the

presumption.” Petition of the VSEA, Inc., 143 Vt. 636, 642, 471 A.2d 230, 234 (1983) (quotation

omitted). This Court “should only ask whether the findings of fact taken as a whole justify the

Board’s ultimate conclusion.” Chauffeurs, Teamsters, Warehousemen, Helpers Union Local 597

v. Univ. of Vt., 167 Vt. 564, 565, 702 A.2d 75, 76 (1997) (mem.) (quotation omitted). If there is

factual support for the Board’s conclusion, then this Court “will leave it undisturbed.” Vt. State

Colls. Faculty Fed’n v. Vt. State Colls., 152 Vt. 343, 348, 566 A.2d 955, 958 (1983).

¶ 22. The Federation first argues that the Board erred in failing to apply the correct legal

standard when assessing the Federation’s petition. To support its argument, the Federation points

to 3 V.S.A. § 927(c), which permits the Board to decline recognition to a petitioned-for unit that

is not an appropriate unit or will result in over-fragmentation. The Federation contends that,

despite the language of § 927(c) and Board precedent prioritizing employee freedom in selecting

collective-bargaining units, the Board declined to recognize the petitioned-for unit because it

9
believed separating part-time DLP faculty who exclusively teach online into a standalone unit

would create a more appropriate unit. According to the Federation, the test the Board must apply

is merely whether a petitioned-for unit is an appropriate unit, not the most appropriate unit, and

the Board failed to apply that test here.

¶ 23. We agree with the Federation regarding the standard the Board applies when

reviewing petitions for unit authorization but conclude that the Board did not err in applying that

standard here.

¶ 24. The plain language of § 927(c) states that “[t]he Board may decline recognition to

any group of employees as a collective bargaining unit if, upon investigation and hearing, it is

satisfied that the employees will not constitute an appropriate unit for purposes of collective

bargaining or if recognition will result in over-fragmentation of state employee collective

bargaining units.” 3 V.S.A. § 927(c) (emphasis added). Based on this language, the Board must

as a preliminary matter determine whether the petitioned-for unit is an appropriate unit. The statute

does not require that the petitioned-for unit be the most appropriate unit.

¶ 25. The Board correctly applied this standard here. Upon investigation and a hearing,

the Board determined, based upon thorough findings of fact as discussed below, that the petitioned-

for unit was not appropriate because the DLP faculty at issue did not share an adequate community

of interests with the existing part-time faculty bargaining unit. As such, the Board was within its

statutory authority to decline to recognize the proposed unit under § 927(c) and the Federation’s

claims of error are unfounded.

¶ 26. Contrary to the Federation’s assertions, the fact that the Board (in its initial May

2018 and amended August 2018 orders) authorized the formation of units it deemed appropriate

that differed from the one proposed by the Federation does not undermine the Board’s application

of the § 927(c) standard. As we recognized in In re VSEA, Inc., 143 Vt. at 641, 471 A.2d at 233:

10
 If, after hearing, the Board determines the unit as proposed is
inappropriate, it may order the formation of a unit that is an
appropriate one under the criteria set forth in 3 V.S.A. § 941(f). It
may do this even though the unit deemed appropriate may not
correspond precisely to the unit configuration proposed in the
petition.

In that case, we found no error when the Board considered a petition and issued an order

authorizing a unit different from the one proposed. Id.

¶ 27. Such is the case here. The Board first determined that the petitioned-for unit was

inappropriate and declined recognition under § 927(c); having rejected the proposed unit as

inappropriate, it then determined an appropriate unit and ordered its formation. The Board was

not comparing the two potential unit configurations to determine which was more appropriate—

rather, it rejected the petitioned-for unit and then exercised its broad discretion under the SELRA

to authorize an appropriate unit. See 3 V.S.A. § 902(3) (defining collective bargaining unit to

include all employees of employer or other units “as the Board may determine are most

appropriate”); id. § 927(a) (“The Board shall decide the unit appropriate for the purpose of

collective bargaining in each case and those employees to be included therein . . . .”). We find no

error.

¶ 28. Next, the Federation argues that the Board erred in determining that the petitioned-

for unit, which would combine part-time DLP faculty into the existing part-time faculty bargaining

unit, was inappropriate.

¶ 29. As explained above, the SELRA delegates broad authority to the Board to

determine appropriate collective bargaining units, and we defer to the Board’s expertise in this

area. Vt. State Emps.’ Ass’n,151 Vt. at 493, 562 A.2d at 1055. We will only overturn the Board’s

determination that a unit is inappropriate when the Board’s conclusion is clearly erroneous; if there

is factual support for the Board’s conclusion, then this court “will leave it undisturbed.” Vt. State

Colls. Faculty Fed’n, 152 Vt. at 348, 566 A.2d at 958.

11
 ¶ 30. When determining whether a proposed unit is appropriate, the Board considers

whether the proposed unit members share a “community of interests.” Vt. State Emps.’ Ass’n (Re:

Sworn Law Enf’t Officers), 32 V.L.R.B. 1, 15 (Jan. 20, 2012), https://vlrb.vermont.gov/

decisions/download; see also 3 V.S.A. § 902(3) (defining collective bargaining unit to include

“unit or units as the Board may determine are most appropriate to best represent the interest of

employees” (emphasis added)); id. § 941(f)(2) (mandating that, in determining appropriateness of

proposed unit, Board must consider “similarity or divergence of the interests, needs, and general

conditions of employment of the employees to be represented” (emphasis added)).

¶ 31. The definition of a community of interests “is not susceptible to precise definition

or mechanical application.” Am. Fed’n of State, Cty. & Mun. Emps., AFL-CIO v. Town of

Middlebury, 6 V.L.R.B. 227, 232 (Sept. 15, 1983), https://vlrb.vermont.gov/decisions/download.

However, the Board consistently looks to the following factors to determine whether such a

community of interests exists: “differences and similarities in method of compensation, hours of

work, employment benefits, supervision, qualifications, training, job functions, and job sites.” Vt.

State Emps.’ Ass’n, 32 V.L.R.B. at 15; see also Am. Fed’n of State, Cty. & Mun. Emps., AFL-

CIO, 6 V.L.R.B. at 232 (explaining that Board applies factors listed above, derived from National

Labor Relations Board, when considering whether community of interest exists). It will also

consider “whether employees have frequent contact with each other and have an integration of

work functions.” Vt. State Emps.’ Ass’n, 32 V.L.R.B. at 15. A group of employees must be “a

readily identifiable and homogenous group apart from other employees to support a determination

that a community of interests exists among them.” Id.

¶ 32. The Board applied these factors here and—in all three of its orders—determined

that the petitioned-for unit was inappropriate because the proposed unit members (part-time DLP

faculty and part-time faculty for traditional on-campus courses) did not share a sufficient

community of interests. The Board specifically determined that DLP faculty who solely teach

12
online courses do not share a community of interests with the existing members of the part-time

faculty bargaining unit.

¶ 33. The Board based this determination on the following factual findings. First, the

Board found that “the students served by [DLP faculty who teach exclusively online] are

substantially different than those taught by part-time faculty bargaining unit members” because

the DLP students: participated in online courses from various “spread out” locations; were

substantially part-time (seventy percent part-time students); were generally older and employed;

and, in the case of EDP students, must have already completed “approximately half of a

baccalaureate program before admittance and participation.” In contrast, the Board found that the

existing members of the part-time faculty unit primarily taught classes to traditional campus-based

students, of whom the “vast majority” (ninety-one percent) are full-time students who are “in the

classroom and just beginning their higher education experience.” Due to the different work

locations, the Board also found that there was “no evident interaction” between exclusively online

DLP and campus-based faculty. Based on these facts, the Board concluded that exclusively online

DLP faculty and part-time faculty in the existing unit had “fundamentally different job sites and

job demands” and a “set of learners with very different experiences and needs.”

¶ 34. Second, the Board concluded that the courses taught by DLP faculty who teach

online courses exclusively are designed and presented in a “substantially different manner” than

campus-based courses taught by the members of the part-time faculty bargaining unit because

these DLP faculty must use an online platform called Moodle and because online interactions are

“substantially different” than face-to-face interactions. The Board’s findings that DLP faculty “are

required to obtain the technical skills necessary” to design and implement online courses and are

specifically offered a tech training course, while on-campus faculty are not, further evidences the

differences in online and on-campus teaching platforms.

13
 ¶ 35. Additionally, the Board determined that DLP faculty teaching exclusively online

are hired and supervised differently than traditional part-time faculty. The Board based this

conclusion on its factual findings that the Associate Dean of Distance Education Programs, Bobbi

Jo Carter, makes selection, retention, supervision, and evaluation determinations for DLP faculty

while campus-based part-time faculty are hired and supervised by their respective academic

departments under the direction of the provost’s office.

¶ 36. In determining that exclusively online and part-time on-campus faculty did not

share an adequate community of interests, the Board also “look[ed] at the broad picture of what is

happening in higher education.” The Board explained that the DLP and the faculty teaching in

that program “are part of a development that is in large part either disrupting or displacing the

current campus-based model.” The Board stated that because of this shift in the educational

landscape, “[m]any of the competitors of the [DLP] have no affiliation with campus-based

services” and the “interests of the part-time campus-based faculty and the distance learning faculty

exclusively teaching online courses differ.” As such, placing both groups in the same bargaining

unit would make it difficult for either to be represented effectively or negotiate as a single entity.

As evidence of this, the Board highlighted the different compensation considerations between the

DLP and campus-based groups, explaining that “data suggest[] that distance learning will grow

and that soon the majority of faculty will be non-Vermont based.” The Board noted:

Although Vermont-based distance learning faculty are paid at the
same credit rate as the members of the part-time faculty unit, the
increasing number of distance faculty living out of state results in
geographic pay differentials being an issue with respect to [DLP]
faculty but not for members of the part-time faculty unit.

Therefore, separate bargaining units would be beneficial when negotiating compensation concerns,

due to the competing interests involved.

¶ 37. In sum, the Board determined that these two groups did not share a community of

interests because “there are student differences, courses designed and implemented in a

14
substantially different manner, separate hiring and supervision, different compensation

considerations, and no evident interaction among the distance learning faculty exclusively teaching

online courses and the members of the part-time faculty unit.”

¶ 38. The factors considered by the Board align with—and supplement—the community-

of-interests factors required by § 941(f) and Board precedent.4 Here, the Board’s numerous factual

findings illustrating the differences between the two faculty groups amply support the Board’s

conclusion that part-time DLP faculty and part-time on-campus faculty in the existing bargaining

group do not share an adequate community of interests. Applying the highly deferential standard

of review afforded to decisions within the Board’s expertise, such as this one, we affirm the

Board’s conclusion that including these two groups in the same bargaining unit would not

constitute an appropriate unit. Accordingly, we affirm the Board’s dismissal of the Federation’s

petition.

¶ 39. The Federation contends that certain factual findings made by the Board were

erroneous, and therefore do not provide a basis for the Board’s conclusion and dismissal of the

petition. The Federation specifically challenges the Board’s findings: (1) that students who take

online courses differ from students taking on-campus courses and that any difference in student

population is relevant to the Board’s community-of-interests analysis; and (2) that the teaching

experience for DLP and on-campus faculty is meaningfully different. We disagree.

¶ 40. The Board’s undisputed factual findings reflect data and statistics from the

testimony and exhibits before the Board at the hearing. This data demonstrates that DLP and

traditional on-campus faculty teach courses with different student compositions; host classes from

4
Section 941(f)(2) requires that the Board consider the “similarity or divergence of the
interests, needs, and general conditions of employment” of the part-time DLP and campus-based
faculty; Board precedent requires the Board to consider the “differences and similarities in method
of compensation, hours of work, employment benefits, supervision, qualifications, training, job
functions, and job sites.” See supra, ¶ 30 (outlining what Board must and may consider in
determining whether community of interests exists).
15
different locations; go through a different hiring process directed by Associate Dean Carter;

receive different training, evaluations, and compensation packages; and generally utilize different

teaching platforms, among other findings. These findings support the Board’s statements that the

students who enroll in DLP courses often differ in age, background, and the type of educational

experience they seek (on-campus or online) from the traditional on-campus students, and that

online faculty have a different teaching experience. Because the Board’s findings (that students

and faculty in the DLP program have a “significantly different experience” than students and

faculty in the traditional on-campus program) are supported by the evidence, we find no error.

¶ 41. The Federation asserts that “customer base” (student population) is not a relevant

factor in the Board’s community-of-interests analysis because any difference in student population

is immaterial to the experience and employment conditions of the faculty. While the Board is not

required to look at student population in making its decision, the language of § 941(f) is

permissive—it list factors that the Board must look to when determining whether a community of

interests exists, but it does not prohibit the Board from considering other unlisted factors.

Additionally, the factors generally considered by the Board broadly look to “differences and

similarities in job functions” to determine whether a community of interests exists. See supra,

¶ 30. Nothing prevents the Board from considering student population in that analysis.

¶ 42. The Federation also claims that certain Board findings are unsupported by the

evidence. Specifically, the Federation contends that: (1) there is no evidence to support the

Board’s claim that DLP courses are designed and presented in a substantially different manner

than campus-based courses; (2) the record does not support the Board’s finding that there are

significant differences between faculty experiences based on the use of Moodle; (3) there is no

evidence in the record that DLP and campus-based faculty have different practices regarding

response times to emails and assignments; and (4) the Board’s finding that DLP faculty are hired

directly by Associate Dean Carter is “incorrect” or “misleading.” The Federation argues that

16
without these factual findings, the Board’s determination that DLP and on-campus faculty have a

significantly different faculty experience is unsupported. We disagree with the Federation because

the testimony and evidence before the Board support its findings.

¶ 43. Regarding the creation and structure of DLP courses compared to on-campus

courses and the faculty’s use of Moodle, the Board heard testimony from Associate Dean Carter,

Dean of Administration Sharron Scott, and VSC faculty member (teaching online and on-campus

courses) and VSC Faculty Federation President Lisa Cline, clarifying that DLP and on-campus

courses are designed and implemented differently and that the prevalence of Moodle use differs

between the faculty populations. Although the content may be the same between some online and

on-campus courses, Associate Dean Carter directly testified that DLP courses are “designed

differently,” with “very specific guidelines regarding the course structure and navigation.” For

example, DLP faculty are required to use Moodle for online instruction and to “facilitate” the

written student discussions on the Moodle platform. On-campus faculty may utilize the Moodle

platform, but they are not required to do so. Ms. Cline, who teaches both on-campus and online

courses, testified that “[a]synchronous discussions,” held online over the course of a span of time,

“are different from in-class discussions.” Though she felt the difference was insignificant when

the course content was the same, she agreed with VSC’s counsel that facilitating an online dialogue

differs from facilitating an in-person, on-campus dialogue because “it feels different when you’re

sitting in the room with [the students]; you can read [their] facial expressions.” Associate Dean

Carter estimated that “under fifty percent” of classroom-based courses utilized Moodle; even when

they did, it might only be for grading or detecting plagiarism, rather than for full course

administration as DLP instructors are required to do.

¶ 44. The Board also heard testimony regarding and reviewed a copy of the DLP Policies

and Procedures Handbook, which was designed by Associate Dean Carter. As Associate Dean

Carter explained, “[d]istance learning, all of the courses and all of the instructors[,] fall under one

17
umbrella.” She specifically created the DLP Programs and Policies Handbook for DLP

administrators and faculty so that there were “written policies” regarding “how the distance

learning programs [are] designed and what the expectations [are] for faculty members,” which are

separate from the guidelines for on-campus faculty. In addition to the handbook and the use of

Moodle, DLP faculty are required to use a specific template when designing their individual

courses. While on-campus faculty may utilize a similar template, Associate Dean Carter explained

that “it isn’t [the template used by DLP faculty].” Contrary to the Federation’s assertions, this

evidence supports the Board’s factual findings that DLP courses are designed and presented in a

substantially different manner than campus-based courses and that Moodle is used differently by

DLP and on-campus faculty, resulting in significant differences between faculty experiences.

¶ 45. Similarly, we disagree with the Federation’s contention that the Board lacked

evidence to find that DLP and campus-based faculty have different experiences based on

expectations regarding response times to emails and assignments. As with Moodle, Associate

Dean Carter testified that DLP faculty are required to respond to emails within forty-eight hours

and to assignment submissions within one week; she did not know what the on-campus faculty

requirements were. Ms. Cline confirmed that on-campus faculty do not have set requirements for

their response times, but on-campus teachers adhere to similar expectations for professionalism in

communications. In sum, DLP faculty are required to practice responsiveness in a certain way,

while on-campus faculty generally maintain a similar practice by choice. Although the result may

look similar (teachers responding to students in a timely fashion), the Board’s findings that the

program requirements differ and that that difference affects the faculty experience is supported by

the record.

¶ 46. Finally, the Federation challenges the Board’s finding that Dean Carter directly

hires DLP faculty, arguing that it is “incorrect” or “misleading” and not supported by the evidence.

We disagree. Associate Dean Carter described her position and the DLP’s hiring structure during

18
her testimony. Notably, when asked about the DLP faculty who she hires, Associate Dean Carter

explained that:

I have a pool of instructors from whom I have collected credentials
and verified that they have the credentials necessary to teach . . . in
specific course areas. Then when I go through and identify the
courses that are going to be taught in a specific semester[,] I also
identify the instructors who either have taught the course before or,
if it’s a brand-new course for which we’ve never had an instructor,
the people who have credentials in that area and may be able to teach
that. If the individual who’s taught the course before . . . received
good evaluations and they have the credentials and everything, they
get priority. If, on the other hand, it’s a brand-new course that no
one has ever taught before or that the previous instructor no longer
wants to teach . . . , I send the credentials to the campus department
chair and request feedback regarding who of the individuals is
qualified to teach the course.

After Associate Dean Carter identifies someone who may be a potential instructor for a course,

she sends that person’s credentials to the campus-based office to determine whether the potential

hire, in fact, has the appropriate credentials. However, “that’s the only involvement with the hiring

the campus has.” This process is reaffirmed by the DLP Policies and Procedures Handbook, which

states: “[DLP] instructors . . . are hired on an adjunct basis per semester to teach specific courses

as assigned. The hiring process begins with the creation of a faculty profile that is provided to the

appropriate Department Chair . . . to be approved for teaching specific courses.” While the

campus office and Department Chair verify credentials and give final hiring approval, Associate

Dean Carter identifies, screens, and selects faculty for the DLP. Based on this evidence, the Board

did not err in finding that Associate Dean Carter directly hires DLP faculty because “the ultimate

decision to select an individual to teach a particular distance learning course is made by Associate

Dean Carter.”

¶ 47. On appeal, it is not our role to reweigh the evidence. Lichtenberg v. Office of Prof’l

Regulation, 2009 VT 105, ¶ 10, 186 Vt. 641, 987 A.2d 322 (mem.). If the Board’s findings are

19
supported by the evidence, then we will uphold them. New Eng. Police Benevolent Ass’n, 2015

VT 51, ¶ 6. Such is the case here.

¶ 48. In addition to its challenges to specific Board findings, the Federation points to the

similarities in content and hiring practices—that were undisputed and which the Board allegedly

overlooked—to demonstrate that part-time DLP and on-campus faculty have overlapping

concerns. The crux of the Federation’s challenge is that because some evidence before the Board

demonstrates overlap between these two faculty groups, the Board must determine that combining

these groups creates an appropriate bargaining unit. However, the test to determine whether a

community of interests exists is not whether any similarities exist between the two faculty

populations. Rather, the question before us is whether the findings of fact support the Board’s

conclusion that these two groups do not share adequate similarities to create a community of

interest. Whether the Federation would have interpreted the facts differently than the Board is

irrelevant.

¶ 49. Here, the Board’s factual findings demonstrate that DLP faculty and on-campus

faculty have different student populations, geographic locations, faculty experiences and teaching

platforms, administration and hiring practices, and compensation considerations. Additionally,

the Board found that the two groups have minimal interactions, that—due to the increase in

distance learning—they are inherent competitors, and that new issues for online educators not

shared by traditional faculty will arise in the near future. All of these findings support the Board’s

conclusion that there are sufficient differences in the interests between these two groups that

combining them would result in an inappropriate collective-bargaining unit.

¶ 50. In addition to concluding that the petitioned-for unit would be inappropriate for the

reasons listed above, in its October 2018 amended order the Board analyzed whether adding DLP

faculty “who teach both online courses and campus-based courses” to the existing part-time faculty

bargaining unit would be appropriate. The Board concluded—in dicta—that “a separate unit of

20
distance learning faculty exclusively teaching online is an appropriate unit, and an appropriate unit

also results if part-time faculty teaching both on-line and on campus based courses are added to

the existing part-time faculty unit,” but it did not order an election for such a unit. The parties both

contend this conclusion by the Board is in error and would result in over-fragmentation.

¶ 51. In light of the Board’s dismissal of the petition, the issue of whether the subgroup

of DLP faculty highlighted by the Board—those who teach both online and campus-based

courses—share an adequate community of interests with the existing part-time faculty group is not

properly before us. It would be advisory in nature for this Court to speculate whether dividing

DLP faculty into two subgroups and different bargaining units would result in an appropriate unit

when the Board’s dismissal is not based on this reasoning and this question is not a “necessary

part of the final disposition of the case.” Wood, 135 Vt. at 121, 370 A.2d at 192 (explaining that

for Court to reach issue, “[t]he question submitted must not be premature, in that it must be a

necessary part of the final disposition of the case to which it pertains”). The Board’s musings

regarding what might constitute an appropriate unit has no bearing on its conclusion that the

petitioned-for unit was inappropriate. Accordingly, we decline to address this issue.

¶ 52. As recognized by the Board in its final order, the Federation may file a new petition

with the Board seeking to form a collective-bargaining unit. 3 V.S.A. § 941(c)(1). In response to

the parties’ briefing, we note that the Board’s initial order from May 2018, to which VSC advocates

a return, is not before us on appeal. In that order, the Board determined that the petitioned-for unit

was inappropriate and responded to the Federation’s petition by creating a new, standalone

bargaining unit for all part-time DLP faculty. We affirm the Board’s dismissal in its October 2018

amended order based on the Board’s conclusion that the Federation’s petitioned-for unit was

inappropriate. This is not to suggest that a petition for a standalone DLP unit, such as the one

outlined in the Board’s initial order, might not be successful. Similarly, we do not address whether

21
a split unit such as the one outlined in the Board’s August and October 2018 amended orders, to

which both parties objected, would survive over-fragmentation concerns.

Affirmed.

FOR THE COURT:

Associate Justice

22