For Publication
IN THE SUPREME COURT OF THE VIRGIN ISLANDS
UNITED STEELWORKERS LOCALS 9488 ) S. Ct. Civ. No. 2020-0106
) Re: Super. Ct. Case. No. SX-2015-CV-00260
and 9489
Appellant/Plaintiff, )
)
v. )
)
GOVERNMENT OF THE VIRGIN ISLANDS, )
DIVISION OF PERSONNEL, and PUBLIC )
EMPLOYEES RELATIONS BOARD )
Appellee/Defendant. )
________________ )
On Appeal from the Superior Court of the Virgin Islands
Division of St. Croix
Superior Court Judge: Hon. Ren~e Gumbs Carty
Argued: December 14, 2021
Filed: February 7, 2024
Cite as: 2024 VI 9
BEFORE: RHYS S. HODGE, Chief Justice; MARIAM. CABRET, Associate Justice; and
IVE ARLINGTON SW AN, Associate Justice.
APPEARANCES:
Ryan C. Stutzman, Esq.
St. Croix, U.S.V.I.
Attorney for Appellant,
Zuleyma M. Chapman, Esq.
St. Croix, U.S.V.I.
Attorney for Appellee Gov't. of the V./., Div. o
f Personnel,
Henry C. Smock, Esq.
Larry Raymond-Roy, Esq.
St. Croix, U.S. V .I.
Attorneys for Appellee PERB.
OPINION OF THE COURT
CABRET, Associate Justice
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Opinion of the Court
Page 2 of 14
,r 1 United Steelworkers Locals 9488 and 9489 ("USW") appeals from a memorandum opinion
and order of the Superior Court, where, on writ of review, the court affirmed a decision of the
Public Employees Relations Board (the "PERB"). The decision from the PERB excluded Ms.
Kathleen Simmonds ("Simmonds") and Ms. Millicent Aubain ("Aubain") from a collective
bargaining unit due to their status as confidential employees. As the PERB' s factual findings are
supported by substantial evidence, this Court affirms the Superior Court's order.
I. FACTUAL & PROCEDURAL BACKGROUND
2 On January 15, 2008, the Government of the Virgin Islands' Division of Personnel
("DOP"), through the Office of Collective Bargaining (OCB"), filed a petition for unit
1
clarification with the PERB. (JA 16). The DOP sought to clarify whether certain positions should
be excluded from a collective bargaining unit. (JA 16, 58). The PERB is responsible for hearing
unit clarification petitions pursuant to 24 V . I.C. §§ 365, 379. The USW, as the bargaining
representative for certain employees within the DOP, is party to the master collective bargaining
agreement at issue. (JA 18). The DOP's petition for unit clarification alleged that six positions
within the bargaining unit should be excluded, as the employees holding these positions handle
confidential labor matters, which could unfairly affect collective bargaining negotiations. (JA 16).
The matter remained stagnant for some unexplained time, and a hearing was finally held on March
10th and l l th , 2 0 1 4 . (JA 1 7 , 5 4 , 80).
1
The petition for unit clarification is the document that began the case before us. Appellant inexplicably failed to
include the petition in the appendix. The appellant must "prepare and file an appendix to the briefs which shall
contain... relevant portions of th e . . . parts of the record referred to in the briefs at such length as may be necessary to
preserve context." V.I. R. APP. P. 24(a). It is also "the joint responsibility of the parties to ensure that the contents of
the joint appendix are sufficient to enable review[,]" Fontaine v. People, 56 V.I. 660,665 n.2 (V.I. 2012) (emphasis
kept) and therefore the appellee(s) are just as responsible for deficiencies within the appendices. Deficient appendices
waste scarce judicial resources and delay the appellate process for litigants seeking redress in courts of the Virgin
Islands. To protect the appellate process, the failure to follow this Court's rules regarding appendices will result in
sanctions against the appellant or his counsel or appellee or its counsel. Id.
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Opinion of the Court
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'I' 3 The PERB issued a decision and order on June 29, 2 0 1 5 , (JA 16-48), holding that certain
positions within the Recruitment and Classification Unit of the DOP, specifically the "Supervisor,
Recruitment and Classification position, and the Territorial Administrator, Recruitment and
Classification position," are excluded from the bargaining unit. (JA 42-44). Simmonds as the
Supervisor, and Aubain as the Territorial Administrator, are directly affected by the PERB's
decision. They are each other's counterparts, performing substantially the same duties, with
Simmonds located on Saint Croix, and Aubain on Saint Thomas. (JA 56-58, 168) (Appellant's Br.
at 8).
'II 4 The PERB found that Simmonds, as Supervisor, is "given wide latitude to perform her
duties and exercises independent judgment." (JA 42). Specifically, the PERB found that these
duties include evaluating applicants for positions within the DOP, developing job specifications
and rating jobs for grade and step (which affects the salary of those positions, including those
within the USW bargaining units), investigating personnel matters, and handling labor relations
issues. (JA 42). The PERB also found that Simmonds assists in all agency personnel matters, and
that she interprets and implements personnel rules/regulations, including applicable provisions of
collective bargaining agreements. (JA 42-43). The PERB concluded that Simmonds is privy to
confidential labor related information that is not already known to the union. (JA 43).
'II 5 As Simmonds' counterpart on Saint Thomas, the PERB similarly found that Aubain is also
privy to confidential labor related information not known to the union. (JA 43-44). "The Director
[of the Unit] testified that Ms. Aubain is his 'right hand' and has a broad scope in making decisions
regarding what grade a position falls in and what qualifications should be included or excluded
from a job description, and she administers promotional examinations." (JA 43). Due to these
findings, both Simmonds and Aubain were excluded from the bargaining unit. (JA 43-44).
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Opinion of the Court
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,r 6 Following the PERB's determinations, USW filed a petition for review in the Superior
Court and filed its brief on April 12, 2019. (JA 290 [part of SJA]). The Superior Court issued a
memorandum opinion and order which was entered by the clerk on August 19, 2020, agreeing with
the PERB' s finding that Simmonds and Aubain each satisfy the requirements for being
"confidential employees," due to their involvement in setting parameters for hiring, determining
eligibility for employees, and inputting data for salaries and job descriptions, which directly affect
labor relations. (JA 13). The Superior Court enforced the PERB's order.
7 USW timely filed this appeal on October 19, 2020. (Notice of Appeal: Docket Entry 1 of
3 1 ) (Appellant's Br. at I). See V.I. R. APP. P. 5(a)(I) (60-day time limit when government is a
party to the appeal).
II. JURISDICTION AND STANDARD OF REVIEW
8 Title 4, subsection 32(a) of the Virgin Islands Code states that "[t]he Supreme Court shall
have jurisdiction over all appeals arising from final judgments, final decrees or final orders of the
Superior Court, or as otherwise provided by law." A final order ends litigation on the merits,
leaving nothing else for the court to do except execute the judgment. Estate o
f Skepple v. Bank o
f
Nova Scotia, 69 V.I. 700, 7 1 4 (V.I. 2018). "Because the Superior Court's [August 13, 2020,) Order
ended the litigation on the merits, it constitutes a final judgment; therefore, this Court possesses
jurisdiction over this appeal." Pub. Emps. Rel. Bd. v. United Indus. Workers-Seafarers Int'l Union,
2
56 V.I. 429,433 (V.I. 2012).
The Superior Court derives its jurisdiction to review the order of the PERB from 24 V.I.C. § 380(a) ("Any party
aggrieved by any final order of the PERB... may appeal to the Superior Court of the Virgin Islands....") (JA 2). See
also Appellant's Br. at I). However,§ 380(d) states that "[t]he Federal District Court of the Virgin Islands shall have
appellate jurisdiction of any decision of the Superior Court made pursuant to this chapter unless otherwise prohibited
by law." The reference to the District Court in $ 380(d) was implicitly repealed by the establishment of the Supreme
Court of the Virgin Islands in 2007, and we therefore have jurisdiction. See Beachside Assocs., LLC v. Fishman, 54
V.I. 4 1 8 , 4 2 1 n.3 (V.I. 2010) ("[R]eferences to the 'district court' enacted prior to the subsequent reduction in the
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Opinion of the Court
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1[ 9 "Questions of law receive plenary review." Williams-Jackson v. Pub. Emps. Rel. Bd., 52
V.I. 445, 450 (V.I. 2009). In this case, "we review questions of fact to ascertain whether the
PERB's factual detenninations are supported by 'substantial evidence in the record considered as
a whole."" Id. (quoting 3 V.I.C. § 530a(b)). See 24 V.I.C. § 380(b). "Substantial evidence is such
'evidence that a reasonable mind would accept as adequate to support an agency's conclusion."'
Williams-Jackson, 52 V.I. at 450 (quoting Lockhart v. Matthew, 203 F. Supp. 2d 403, 412-13
(D.V.I. 2002) (quoting At/. Limousine, Inc. v. NLRB, 243 F.3d 7 1 1 , 7 1 8 (3d Cir. 2001)).
III. DISCUSSION
1[ 10 On appeal, USW argues that the Superior Court erred in enforcing the PERB's order, which
excluded Simmonds and Aubain from the bargaining unit. (Appellant's Br. at 1-2). USW asserts
that Simmonds and Aubain do not have the independence and discretion that the PERB found them
to have. USW specifically asserts that Simmonds and Aubain are not as involved in decision
making, developing job specifications, and rating jobs or employee eligibility as the PERB found,
and that they never handle labor related issues. For these reasons, USW maintains that Simmonds
and Aubain are not confidential employees and should not be excluded from the bargaining unit.
(Appellant's Br. At 6-10). This Court disagrees.
A. Applicable Law
$11 In 1980, "[t)he Virgin Islands legislature enacted PELRA [the Public Employee Labor
Relations Act] to 'provide for orderly and constructive relationships between public employers
and their employees.' PELRA sets out the rights of public employees regarding labor
District Court's jurisdiction over purely local matters ha[ve] been implicitly repealed.") (citing Parrott v. Gov't o
f the
V./., 230 F.3d 6 1 5 (3d Cir. 2000)). See also Der Weer v. Hess Oil Virgin Islands Corp., 64 VJ. 160, 168 (VJ. Super.
Ct. 2016) ("[The Legislature never comprehensively revised the Virgin Islands Code to remove the remaining (and
sometimes inconsistent) references to the District Court of the Virgin Islands.").
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organizations." Gomez v. Gov't of the V. l , 882 F.2d 733, 736-37 (3d Cir. 1989) (citing 24 V.I.C.
§ § 3 6 1 , 363 ). PEL RA also "provides for the creation of the ... PERB, and gives PERB the power
to certify and decertify representatives of appropriate bargaining units, establish rules, conduct
hearings, and carry out other duties, similar to those performed by the NLRB [(National Labor
Relations Board)]." Id. at 737 (citing 24 V.1.C. $$ 364-366, 370-373). See 24 V.1.C. § 364 (creating
the PERB on June 2, 1980). Pursuant to title 24, chapter 14 of the Virgin Islands Code, the
Government declares that in order "to provide for orderly and constructive relationships between
public employers and their employees" it "fully accept[s] the principle and procedure of collective
bargaining" for public employees. 24 V.I.C. § 361. Chapter 14 further provides that "[s]ubject to
the provisions of this chapter, public employees shall have and do have the right to . . . be
represented by labor organizations and to engage in collective bargaining with the Government in
the determination of the wages, hours, or other terms and conditions of employment and the
administration of grievances arising thereunder." 24 V.1.C. § 363(b). The chapter defines the
phrases "employee" and "public employee" as
any person holding a position by appointment or employment in the service of a
public employer, but does not include:
( 1) persons holding elective office;
(2) political appointees exempt from the classified service by paragraph
(8). subsection (b), section 4 5 1 a of Title 3 of this Code:
(3) employees of the Legislature;
(4) judges in the judicial branch;
(5) Radiologists, anesthesiologists, psychiatrists, pulmonologists,
gastroenterologists, internists, neurologists, urologists, hospitalists, cardiologists,
nephrologists, and critical care physicians in the Governor Juan F. Luis Hospital
and Medical Center and the Roy Lester Schneider Hospital and Community Health
Care Center.
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3
24 V.I.C. § 362(g) (emphasis added). In tum, title 3, section 451a(b)(8) provides that an exempt
political employee is "an officer or employee in a position of a policy-determining nature when
the position is so designated by the Governor and submitted to the Legislature; and an employee
who is a special assistant, or who is on special assignment to, or whose position requires a
confidential relationship with a policy-making official when the position is so designated by the
Governor and submitted to the Legislature."
,r 12 In its June 29, 2 0 1 5 order, the PERB relied entirely on these Virgin Islands statutes to arrive
at its decision excluding Simmonds and Aubain from the bargaining unit. Specifically, the PERB
determined in its June 29, 2 0 1 5 order that Simmonds and Aubain are not appropriate for inclusion
in the bargaining unit because their positions "require[] a confidential relationship with a policy
making official" within the meaning of title 3, section 451a(b)(8), and that they were therefore not
"public employees" due to the exclusion found in section 363(b)(2) of title 24.
$13 The Superior Court, however, did not apply these Virgin Islands statutes in reaching its
decision. Rather, it exclusively applied federal case law interpreting the federal National Labor
Relations Act. The Superior Court adopted the "labor nexus test" adopted by the Supreme Court
of the United States in NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170
( 1 9 8 1 ) for purposes of determining whether a confidential employee is entitled to participate in
collective bargaining under the NLRA. It further adopted a decision of a federal appellate court
that endorsed a narrow construction of what it means to be a confidential employee for purposes
of the NLRA, so that a confidential employee may participate in collective bargaining under the
3
The phrase "confidential employee" is also defined in section 362(q) as "those persons who assist and act in a
confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor
relations, as determined by the Public Employees Relations Board pursuant to section 370 of this chapter." However,
neither the phrase "confidential employee"-nor even the word "confidential" appears anywhere else in chapter 14
of title 24.
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NLRA if the confidential information the employee accesses is internal, routine, or administrative
in nature. See Westinghouse Elec. Corp. v. NLRB, 398 F.2d 669 (6th Cir. 1968). The Superior
Court then adopted the federal definition of "supervisor" found in the NLRA, which defines that
term as encompassing
any individual having authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but requires the use of
independent judgment.
29 U.S.C. § 1 5 2 ( 11 ) . The Superior Court then proceeded to determine whether Simmonds and
Aubain were confidential employees and supervisors pursuant to the above-referenced federal case
law and federal statutes.
,i 14 The Superior Court erred by failing to apply Virgin Islands law to this case. The August
19, 2020 opinion provides no explanation as why the Superior Court believed that these federal
authorities provided the exclusive rule of decision in this case. However, it is likely that the
Superior Court believed that it was required to apply the federal NLRA in lieu of the relevant
Virgin Islands statutes because the Revised Organic Act of 1954 precludes the Virgin Islands
Legislature from adopting legislation which is "inconsistent w i t h . . . the laws of the United States
made applicable to the Virgin Islands." 48 U.S.C. § 1574(a). But if this were the case, the Superior
Court overlooked the fact that the federal NLRA expressly and unambiguously excludes public
sector employers from the definition of "employer." See 29 U.S.C. § 15202)("The term 'employer'
. . . shall not include the United States or any wholly owned Government corporation, or any
4
Federal Reserve Bank, or any State or political subdivision thereof . . . . ").
4
Although section I 52(2) uses the word "State," the National Labor Relations Board-the federal administrative
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15 Because public employers are entirely exempt from its provisions, "the [NLRA] leaves
States free to regulate their labor relationships with their public employees" however they see fit.
Davenport v. Wash. Educ. Ass 'n, 5 5 1 U.S. 177, 1 8 1 (2007). That is precisely whatthe Legislature
did in enacting title 24, chapter 14 of the Virgin Islands Code, by permitting some-but not all
public employees to be represented by a labor organization in collective bargaining with the
Government. Consequently, the Superior Court erred when it used non-applicable federal law to
review the June 29, 2015 PERB order to the exclusion of governing Virgin Islands statutory law.
,r 1 6 But while the Superior Court analyzed the USW's claims under inapplicable federal law,
we conclude that it ultimately arrived at the correct result in affirming the PERB's decision to
exclude Simmonds and Aubain from the bargaining unit. The PERB determined in its June 29,
2015 order that Simmonds and Aubain are not appropriate for inclusion in the bargaining unit
because their positions "require[] a confidential relationship with a policy-making official" within
the meaning of title 3, section 451a(b)(8), and that they were therefore not "public employees" due
to the exclusion found in section 363(b )(2) of title 24. While determining what a particular
individual's job duties entail is a question of fact, and this Court must defer to the PERB' s
resolution of that question ifit is supported by substantial evidence, Williams-Jackson, 52 V.I. at
450, whether those duties, as found by the PERB, satisfy the legal definition of an exempt political
appointee as set forth in section 451a(b)(8) is a question oflaw for this Court to determine. Accord,
agency charged with enforcing the NLRA has adopted a regulation clarifying that "[t]he term State includes the
District of Columbia and all States, territories, and possessions of the United States." 29 C.F.R. § 102.l(g). Even if
this were not the case, courts have interpreted statutes with similar exclusionary language to exclude the Virgin Islands
on grounds that it is an instrumentality of the United States. See also Smith v. V.I. Port Auth., 457 Fed. App'x. 183
(3d Cir. 2012); Smith v. V.l. Port Auth., 46 V.I. 466,482 (D.V.I. 2005); see also Balboni v. Ranger Am. o
f the V.I.,
Inc., 70 V.I. I 048, 1083 (V.I. 2019) ("[E]ach act of the Virgin Islands Government-and the three branches thereof
is effectively an act of the federal government."); Gov't o
f the V.l. v. Christensen, 673 F.2d 713, 7 1 6 (3d Cir. 1982)
(holding that the Government of the Virgin Islands acts as "an arm of the federal government").
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One Equal Voice • Illinois Educ. Labor Relations Bd., 777 N.E.2d 6 4 8 , 6 5 3 (Ill. Ct. App. 2002).
17 Applying these standards, we cannot conclude that the PERB erred in characterizing
Simmonds and Aubain as political appointees. The PERB found that Simmonds holds a position
titled "Supervisor, Recruitment and Classification" and determined that the duties of this position
are as follows:
• Supervises and coordinates the activities of the Recruitment and Classification
Section. Assigns and reviews the work of subordinates for accuracy and
completeness. Prepares probation and annual evaluation report[s] of subordinates.
Prepares budget estimates of the activities of the section when required.
• Researches and investigates personnel matters, concerns, issues and recommends
appropriate solutions in writing to the Director or Assistant Director.
• Serves as consultant in providing assistance to department[ s]/agencies in
resolving management problems.
• Manages, edits, and maintains the Human Resources Information System for
maintenance of system integrity and confidentiality.
• Conducts job analysis sessions, in order to determine appropriate job titles and
obtain pertinent information necessary for the construction of job related test[ s].
• Responds to numerous public inquiries, via telephone, personal contact, or
correspondence in regards to recruitment, certification and classification matters.
• Performs other duties as required or assigned by the Director of Personnel.
(JA 24). The PERB also credited Simmonds's own testimony that she "has made recommendations
for certain job descriptions, and participates in the rating of a job spec which affects the grade and
salary of the position." (Id.). The PERB found the testimony of the Director of Personnel
persuasive. The PERB likewise found that Simmonds exercises independent judgment in
providing recommendations on financial matters and funding to the Director of Personnel,
providing analysis for the purpose of laying off employees, as well as in developing and rating
positions for grade and step, thereby affecting the salary associated with the positions, and
potentially influencing labor negotiations due to her knowledge and discretion regarding
employee's positions and compensation. (JA 42, 67-68, 83-84, 88-89).
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1 18 With respect to Aubain, the PERB determined that she held a position titled "Territorial
Administrator, Recruitment and Classification" and that the duties of that position were as follows:
• Makes recommendation[s] on classification matters such as approval/disapproval
on waiver request[ s] for the Director of Personnel signature.
• Manages activities of the Recruitment and Classification Section. Assigns and
reviews the work of subordinates for accuracy and completeness. Prepares
probation and annual evaluation reports for subordinates. Prepares budget estimates
of the activities of the section when required.
• Serves as consultant in providing assistance to department[ s]/agencies in
resolving management problems.
• Manages, edits, and maintains the Human Resource Information System for
maintenance of system integrity and confidentiality.
• Consult[s) with Agency heads on Labor Relations inclusive of [a) salary
assignment that results in a position reallocation.
• Manages and maintains the Classification Plan, which consists of over 1200
classified position titles and edits the date in the system to ensure accuracy.
Prepares class allocations to delete or create position titles. Prepare[ s] cost analysis
relative to allocation of positions, when necessary.
• Review all draft job descriptions for conformity with Personnel Rules and
Regulations.
• Establishes and implements policies and procedures for the effective operation of
the Recruitment and Classification Section.
• Responds to numerous public inquiries, via telephone, personnel contact, or
correspondence in regards to recruitment, certification and classification matters.
(JA 25). The PERB likewise relied on Aubain's own testimony to find that "she views her staff
work for conformity with the Personnel Rules and Regulations," "gives suggestions or
recommendations for any language for any policies that would affect her unit," and "attends policy
meetings and provides her input when necessary." (Id.). It also relied on testimony from the
Director of Personnel that Aubain was like his "right hand," and that she had a wide scope of
independent judgment and decision-making authority, in addition to administering promotion
examinations, as well as other indicia of confidentiality, which includes exercising judgment over
applicants' eligibility for positions, rating different positions, and assisting in creating a recall
policy for laid-off employees. (JA 43 , 146-147, 155).
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19 Based on the above, this Court concludes that the Superior Court did not err in finding that
substantial evidence exists to support the PERB' s determination. Aubain assists the Director of
Personnel and makes decisions and recommendations that create or affect the DOP's policies in
the field oflabor relations. (JA 43, 144, 146-147, 155). Likewise, Simmonds assists in developing
job specifications, provides financial analysis regarding positions with the DOP, and makes
recommendations to the Director that directly influence the DOP's policies in the field of labor
relations. (JA 42, 67-68, 83-84, 88-89). Therefore, both the Recruitment and Classification
Supervisor and Territorial Administrator positions meet the statutory definition of a political
appointee under § 362(g)(2), as they assist and act in a confidential capacity to persons who
formulate, determine, and effectuate management policies in the field of labor relations as provided
for in title 4, section 451a(b)(8) of the Virgin Islands Code. Accordingly, this Court affirms the
Superior Court's order enforcing the PERB's order.
B. Cross Appeal: Supervisory Employees
120 The DOP also filed a cross appeal in this case, asserting that the Superior Court erred when
it sua sponte determined that Adonna Duggins (Personnel Records Management Supervisor) and
Rochelle Benjamin (Financial Management Supervisor) are "non-supervisory employees."
$21 Duggins and Benjamin are both employees whom the PERB found to be confidential and
excluded from the bargaining unit. (JA 41-42). The Superior Court reversed the determination of
the PERB regarding these employees, concluding that they are not confidential employees, and
reinstated their positions within the bargaining unit. (JA 12). The DOP argues that the Superior
Court erred in ruling on the supervisory status of these positions, and by determining that Duggins
and Benjamin are non-supervisory employees because the issue of supervisory status was never
raised before the Superior Court. (Appellee DOP's Br. at 15).
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22 The PERB in its decision, and USW in its petition for writ of review to the Superior Court,
state several times that all the positions at issue are supervisory. (JA 1 7 - 1 9 , SJA 260, 262-63). See
JA 1 9 ("Petitioner states that the supervisors of these units [of the DOP] should be deemed as
confidential employees and not unionized employees. And, the petitioner is asking the PERB to
review each supervisory position to determine whether they should be excluded from USW's
supervisory bargaining unit."). USW never claimed in its petition that any of the employees were
non-supervisory, nor did it argue that the PERB erred in referring to the positions as supervisory.
This issue was not before the PERB (Appellee PERB's Br. At 5), nor was it properly before the
Superior Court.
$23 It is only "in rare, exceptional cases a court of review can sua sponte address an issue not
raised on appeal." Francis ». People, 57 V.I. 201, 253 (V.I. 2012) (citing United States v.
Bendolph, 409 F.3d 1 5 5 , 161 (3d Cir. 2005)). Cf 24 V.I.C. $ 380(b) ("No objection not urged
before the PERB shall be considered in a review by the Superior Court unless the failure to urge
the objection is excused by the court because of extraordinary circumstances."). This is not one of
those rare, exceptional cases. The parties did not argue, nor did they ask the PERB to determine,
whether employees were supervisory or non-supervisory. Whether Duggins' and Benjamin's
positions are classified as supervisory, or not, does not go to the ultimate issue, which, according
to USW's petition for unit clarification, is whether the employees in this case are considered
"confidential" for the purposes of joining the bargaining unit. Because the issue of supervisory
status is not relevant to deciding the issue of confidentiality and because the parties did not raise
the issue of supervisory status before the Superior Court, this Court vacates the portion of the
Superior Court's opinion and order finding that Duggins and Benjamin are non-supervisory
employees.
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IV. CONCLUSION
,r 24 The Superior Court erred by relying on federal case law and the labor-nexus test rather than
24 V.1.C. §362(q) in determining which employees are "confidential." However, this error was
harmless, as the PERB correctly excluded Simmonds and Aubain from the bargaining unit because
they were political appointees who possessed confidential relationships with policy-making
officials. The Superior Court did not err in finding that substantial evidence supports the PERB's
decision. Therefore, we affirm the Superior Court's order enforcing the underlying order of the
PERB.
25 Regarding the DOP's cross-appeal, the Superior Court erred when it sua sponte found that
Duggins and Benjamin are non-supervisory employees. Supervisory classification is neither
relevant to the issues in this case, nor was it raised before the Superior Court by the parties.
Accordingly, this Court will vacate the portion of the Superior Court's opinion and order finding
that Duggins and Benjamin are non-supervisory employees.
Dated this 7th day of February, 2024.
BY THE COURT:
ATTEST:
Associate Justi°
VERONICA J. HANDY, ESQ.
Clerk of the Court
By: Isl Jahkyda Coakley
Deputy Clerk II
Dated:
February 7, 2024 _