ST. CROIX — A union representing employees of the Virgin Islands Water and Power Authority has petitioned the Superior Court to review a decision and order of the Public Employees Relations Board, prohibit WAPA from seizing a $500 penalty from union members who do not make annual wellness visits with a physician, and direct the Authority to immediately return any wellness penalties seized to date, according to a court document.
The Virgin Islands Water and Power Authority Employees Association Union, Local 602 (WEA) has petitioned the Superior Court, Division of St. Thomas and St. John to review a decision and order the PERB entered on December 20, 2024 in a case between the WEA v. WAPA, according to the petition filed on January 9.
The union claims in its petition that the $500 wellness penalty WAPA implemented in the beginning of 2021 violates the Public Employee Labor Relations Act and its collective bargaining agreement with the Authority that expired June 30, 2021 and continues on a day-to-day basis. The union filed a charge of unfair labor practice on November 22, 2021, seeking redress from the PERB for the alleged violations and an injunction.
The Public Employees Relations Board, in its decision and order, dismissed with prejudice the union’s charge of unfair labor practice. The PERB found that because there is a dispute between the parties, the union’s exclusive remedy is to file a grievance concerning WAPA’s failure to bargain. The PERB found the union’s charge of unfair labor practice was premature and WAPA’s failure to bargain the wellness assessment and penalty alteration of the CBA does not violate the Public Employee Labor Relations Act.
The Public Employees Relations Board did not address the issue of the urgent need for injunctive relief prior to entry of its final decision and order. The union claims WAPA has continued to “unlawfully” conscript wellness penalties from the union’s members for years.
WAPA unilaterally implemented a wellness assessment requirement in 2021 that requires all employees to visit a doctor annually and input their medical information into Cigna’s health portal, according to the union’s petition. Since then, the Authority has unilaterally declared that any employee who does not comply with the wellness requirements will incur a $500 wellness penalty. The union’s position is that WAPA imposed this “harsh” penalty without regard to the Public Employee Labor Relations Act or the CBA, without regard for those employees not regularly followed by a doctor or who otherwise do not normally participate in the formal health care system, and without regard for those employees who lack the tools to comply with the wellness mandate because they either do not regularly work with computers, are not computer proficient, or do not regularly use email.
Shanell Petersen, WAPA spokesperson, wrote in an email response to WTJX that the Authority introduced a health checkup program in 2021 that includes a $500 fee for employees who do not complete an annual physical. She wrote that the program encourages proactive health management, promoting early detection of health issues to save lives and reduce health care costs for employees and WAPA. Since the program’s launch, she noted WAPA has been able to stave off what would have been a “crippling” premium increase of almost 20% and maintain stable insurance costs unlike many other organizations facing rising premiums eventually passed on to employees. She pointed out the program offers WEA union employees 100% free medical benefits, with the requirement of an annual physical.
“This is a reasonable request, as early detection of medical conditions often leads to more effective, less costly treatment,” Petersen wrote. “Before the program was introduced, only a small fraction of employees were regularly seeing doctors, leading to late detection and high catastrophic care claims.”
The implementation of this program was a proactive and fiscally responsible measure to mitigate the rising costs of insurance, according to Petersen. In fact, when faced with the prospect of that massive increase in November 2019, she noted that WEA union leadership actively participated in the decision-making process and proposed the idea of implementing this fee.
The union argued in its petition that the PERB’s decision and order must be reversed and remanded because it is inconsistent with the Public Employee Labor Relations Act and the CBA, noting PELRA requires public employers to bargain with exclusive representatives. The union noted the collective bargaining agreement explicitly covers insurance for its membership, but WAPA unilaterally altered the terms of the existing insurance coverage without bargaining, and the PERB upheld the Authority’s “rogue” actions. The union argued that the Public Employees Relations Board’s decision and order must be set aside and returned to the PERB for action consistent with PELRA and the CBA.
In its petition for writ of review and action for an injunction and declaratory judgment, the union indicated that the Superior Court has jurisdiction pursuant to the Virgin Islands Code and Rule 91 of the Virgin Islands Rules of Civil Procedure. The VI Code states that a writ of review shall be allowed in all cases where there is no appeal or other plain, speedy, and adequate remedy, and where the officer, board, commission, authority, or tribunal in the exercise of his or its functions appears to have exercised such functions erroneously, or to have exceeded his or its jurisdiction, to the injury of some substantial right of the plaintiff.
The union requested the Superior Court enter an order granting its petition for review of the PERB’s decision and order, granting a preliminary and permanent injunction prohibiting the PERB from enforcing its decision and order and prohibiting WAPA from enforcing the wellness program and wellness penalty, and directing WAPA to immediately return to all union members any wellness penalties seized to date. The union requested the court enter an order declaring the PERB’s decision and order unconstitutional and invalid, declaring that WAPA has violated PELRA by seizing wellness penalties, and prohibiting the PERB from interfering in its negotiations with WAPA on the terms of the CBA, except as permitted by law. The union requested the court enter an order providing restitution to the union and its members, with prejudgment and post-judgment interest on all sums improperly seized, awarding the union reasonable attorney’s fees and costs and prejudgment and post-judgment interest at the statutory rate on all sums awarded, and granting such other relief as the court deems just and proper.
The Public Employees Relations Board’s legal counsel, attorney Gwendolyn Stroud, declined to comment. A message left for the union’s attorney, Namosha Boykin, was not returned as of publication time.
