Opinion
C.A. No. 08M-02-078-JEB.
Submitted: August 5, 2008.
Decided: September 24, 2008.
AFSCME's Petition for a Writ of Mandamus. Granted. State's Petition for a Writ of Certiorari. Moot. State's Motion for a Stay of Proceedings. Denied.
Perry F. Goldlust, Esquire and Saagar Shah, Esquire, Wilmington, Delaware. Attorney for Plaintiff AFSCME.
Ilona M. Kirshon, Esquire, Deputy Attorney General, Wilmington, Delaware. Attorney for Defendant State of Delaware.
Laura L. Gerard, Esquire, Deputy Attorney General, Wilmington, Delaware. Attorney for Public Employment Relations Board.
OPINION
In this case, three parties are dealing with the implementation of a relatively new statute which is part of the Public Employment Relations Act ("PERA"). The Plaintiff is the American Federation of State, County and Municipal Employees, Council 81 ("AFSCME"), a union. The Defendants are the State of Delaware, Office of Management and Budget ("the State") and the Public Employment Relations Board ("PERB" or "the Board"). The controversy pertains to 19 Del. C. § 1311A, a statute which authorizes for the first time collective bargaining for State merit employees. AFSCME has filed with the Court a petition for a writ of mandamus seeking an order compelling the PERB to grant AFSCME's motion to dismiss an appeal filed by the State on grounds of untimeliness and also to enforce the Executive Director's decision that bargaining unit 11, one of 12 statutory bargaining units, is ready to begin collective bargaining. The State has filed a petition for a writ of certiorari asking this Court to reverse the Board's decision and a motion to stay the collective bargaining process. .
This section became effective August 2, 2007, when the Governor signed 76 Del. Laws, c. 178.
The Court heard oral argument which centered upon whether a letter decision of the Executive Director, dated November 9, 2007, was a final order. That letter plainly stated that all Unit 11 positions were exclusively represented by AFSCME and that Unit 11 was eligible to begin collective bargaining. The Court found that this letter was a final, appealable order and that under the Board's five-day rule for appeals, the State's November 26, 2007, appeal to the Board was untimely. The Court ordered the parties to submit memoranda on the question of whether a writ of mandamus should issue and, if so, what the appropriate remedy is.
The Board 's regulations resolve the timeliness dispute. Regulation 7.4 provides that review of an Executive Director's decision must be filed with the Board within five days of the date upon which the party is served with the decision. (Exh. 3 Bd. Memorandum on Mandamus). Board Regulation 1.9 provides that the Board rules are to be liberally construed, but Regulation 1.10 states that "[n]otwithstanding the provisions of Regulation 1.9. . . the Board shall strictly construe all time limitations contained in the Act or in these Regulations." In other words, the State had precisely five days from receiving the Director's decision to file an appeal with the Board. The Court concludes that the appeal was untimely and that the Board must vacate its decision, leaving intact the decision of the Executive Director. A writ of mandamus is appropriate where, as here, the plaintiff has a clear right to the performance of a non-discretionary duty and there is no legal remedy available. The petition for a writ of mandamus is granted and the matter is remanded to the Board with instructions to vacate its Opinion and reinstate the Executive Director's decision that the parties did not need to carry out the provisions for voluntary recognition and that Unit 11 was ready to begin collective bargaining. The petition for a writ of certiorari is moot, and the motion to stay is denied. The matter is remanded to the Board for further proceedings consistent with this Opinion.
Darby v. New Castle Gunning Bedford Education Assoc., 336 A.2d A.2d 209, 210 (Del. 1975) (citing 2 Woolley on Delaware Practice 1126, § 1655).
FACTS
In August 2007, § 1311A of the PERA was enacted into law. Section 1311A permits collective bargaining for merit employees but conditions that right on employees being represented within one of twelve bargaining units. The controversy in this case centers on Unit 11, which consists of correctional supervisors and similar occupations. In August 2007, AFSCME filed a petition for determination of its position as exclusive bargaining representative for Unit 11. The petition was forwarded to the State, and ample correspondence followed. The result was that the parties stipulated to the composition of Unit 11 and to AFSCME being the exclusive representative for Unit 11.On November 9, the Deputy Director issued a letter which reflected the parties' stipulation and which stated that Unit 11 was eligible to commence compensation bargaining consistent with § 1311A(g). In response, the State sent the Deputy Director a detailed e-mail setting forth its opinion that the parties had not completed the statutory process for voluntary recognition of AFSCME as the exclusive bargaining representative for Unit 11, and that Unit 11 was therefore not eligible to begin collective bargaining pursuant to § 1311A(e). In a letter of November 19, the Deputy Director reiterated its decision that because all Unit 11 employees were undisputably represented by AFSCME, the statutory requirements for voluntary recognition did not apply.
The Deputy Director renders certain decisions, while appeals of those decisions are heard by the full PERB. The Deputy Director is a member of the PERB.
On November 26, the State filed a formal appeal, and on November 29 AFSCME filed a motion to dismiss on grounds of untimeliness because the PERB's rule requires that an appellant file an appeal within five days of being served with the Deputy Director's decision. At that time, both parties acknowledged that the final determination being appealed was the November 9th letter, not the November 19th letter. AFSCME also filed a motion to dismiss on the merits. The PERB asked the parties to provide written memoranda in response to both motions. After each member of the PERB received a complete copy of the record, a public hearing was conducted and a written decision issued shortly thereafter.
THE PERB DECISION
As to the timeliness of the State's appeal, the PERB stated in its decision that the November 9th letter was the first formal notification to the parties of the PERB's interpretation and application of the provisions of § 1311A. The PERB deemed the State's November 13th e-mail to be analogous to a motion for reargument. The PERB also found that the State could not make a fully informed decision about whether to appeal the decision that Unit 11 was eligible to begin collective bargaining until the November 19th letter was issued. Because the parties were faced with interpreting and implementing a new statute, the Board accepted the State's November 26th appeal as a necessary request for more information based on the PERB's November 19th letter, and deemed the appeal to be timely filed. AFSCME now seeks enforcement of the five-day rule based on the November 9th letter being the appealable order.
STANDARD OF REVIEW
Mandamus is an extraordinary writ that is appropriate only when a plaintiff shows a clear legal right to the performance of a non-discretionary duty. Where the legal issue is doubtful, the writ will not, in general, be allowed. The plaintiff must also show that no legal remedy is available. A writ of mandamus issues only in the exercise of sound judicial discretion and is to some extent to be governed by equitable principles of relief.
Darby v. New Castle Gunning Bedford Education Assoc., 336 A.2d 209, 210 (Del. 1975) (citing 2 Woolley on Delaware Practice 1126, § 1655).
Id. (citing McCoy v. State, 36 A. 81 (Ct. of Error and Appeals 1897).
Ingersoll v. Rollins Broadcasting of Delaware, 272 A.2d 336, 338 (Del. 1970) (citing Armour and Co. v. Gulf Sulpur Corp., 231 A.2d 470 (Del. 1967)).
DISCUSSION
The PERB is authorized by statute to adopt and publish its own rules and regulations. In denying the motion to dismiss, the PERB acknowledged its obligation under its rules to process appeals in a timely manner, but found that leeway was required in this case because of the parties' questions about the provisions for voluntary recognition under the new statute. The substantive issue presented to the Board pertained to whether Unit 11 was ready to begin the collective bargaining process and therefore was highly significant to both parties, as well as to the PERB. The PERB found the November 9th letter was the first formal notification of the PERB's interpretation of the voluntary recognition provisions and viewed the State's November 13th letter as being analogous to a motion for reargument. Thus the Deputy Director's November 13th letter was a fully informative statement of the PERB's position and constituted an appealable order.The following chronology fairly summarizes the events leading to AFSCME's petition to this Court:
November 9 — The Deputy Director issued a final determination that Unit 11 was eligible to begin collective bargaining.
November 13 — The State wrote a detailed e-mail disputing Unit 11's eligibility, which the PERB treated as a motion for reargument. While the record does not indicate that the PERB has a rule governing reargument, the Superior Court does, and it allows five days. Super. Ct. Civ. R. 59(e).
November 19 — The Deputy Director responded in detail to the State's request for reargument.
November 26 — The State filed a formal appeal. PERB Regulation 7.4 permits five days for the filing of an appeal of a decision of the Deputy Director. In this case, two of the days were State holidays, November 22 and 23, and the next two days were week-end days. Thus the appeal was timely.
On these facts, it cannot be said that the PERB acted unreasonably in exercising its discretion to consider the appeal and to give the parties the opportunity to fully present their positions. Judicial discretion is usually given to an administrative agency's construction of its own rules in recognition of its expertise in a given field. This deference is reflected in an appellate court's standard of review that an administrative agency's interpretation of its own rules will not be reversed unless it is "clearly wrong." The PERB's application of the five-day rule to the letters and documents submitted by the parties was not clearly wrong and warrants deference from this Court, especially in light of the fact that a new statute was under consideration. The Court finds that AFSCME has not established that it had a clear right to have its motion to dismiss granted. While the parties have not focused on whether AFSCME has any other legal remedy, the Court need not reach that question because AFSCME has not shown that it has a clear right to have its motion to dismiss granted.
Division of Social Services of the Dep't. of Health and Social Services v. Burns, 438 A.2d 1227, 1229 (Del. 1981).
Id.
CONCLUSION
Because AFSCME has not shown that it had a clear legal right to having its motion to dismiss granted by the PERB and because the PERB reasonably exercised its discretion in hearing the State's appeal, this Court finds that a writ of mandamus issued to the PERB is not appropriate. AFSCME's petition for a writ of mandamus is Denied. It Is So ORDERED.