Horbet v. New Penn Inc

• Decision Date: 10 January 2011
• Docket Number: C.A. No. PC 09-6960
• Parties: RAYMOND HORBET, JAMES D'ABROSCA, and JOSEPH BESSETT v. NEW PENN, INC. and RHODE ISLAND DEPARTMENT OF LABOR AND TRAINING
• Court: Rhode Island Superior Court

RAYMOND HORBET, JAMES D'ABROSCA, and JOSEPH BESSETT

v.NEW PENN, INC. and RHODE ISLAND DEPARTMENT OF LABOR AND TRAINING

C.A. No. PC 09-6960

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC.

SUPERIOR COURT

FILED-January 10, 2011

DECISION

VOGEL, J. Appellants Raymond Horbet, ¹ James D'Abrosca, and Joseph Bessett² ("Appellants") brought this appeal from a decision of the Department of Labor and Training ("DLT"). In that decision, the Hearing Officer denied the Appellants' claims and found that they were not entitled to recover vacation pay from their former employer, New Penn, Inc. ("Respondent" or "New Penn"). Recently, the Court received notice that Appellants Horbet and D'Abrosca have resolved their differences with New Penn by settlement and will be withdrawingtheir appeals. Accordingly, in this decision, the Court addresses only the issues as they pertain to the appeal of Bessett. All other issues have become moot.³

This Court derives its jurisdiction over this appeal pursuant to G.L. 1956 § 42-35-15. For the reasons set forth below, the Court denies the appeal of Appellant Bessett.

IFacts and Travel

Joseph Bessett ("Bessett" or "Appellant Bessett") formerly was employed at New Penn as a driver. (Complaint of Bessett, January 27, 2009 ("Bessett Complaint.")) The terms and conditions of his employment were set forth in the collective bargaining agreement between New Penn and his union.⁴ (Admin. Hr'g Tr., July 30, 2009 ("Tr.") at 18, 42, 43-47.) Upon his date of retirement in 2009, Appellant claimed that he was owed wages for vacation time that had accrued and vested pursuant to the terms of the CBA. New Penn rejected the claims, and Bessett filed a complaint with DLT claiming non-payment of wages.⁵

On January 27, 2009, Bessett filed a complaint with DLT's Division of Labor Standards to allege non-payment of wages for vacation pay. Id at 1. Appellant Bessett began working for New Penn on April 20, 1992. (Bessett Complaint.)⁶ In his complaint with DLT, Bessettresponded to the following question: "What dates did you work for the money which you claim you are owed:" he responded: "from 1/1/2007 to 11/20/07 4 weeks." Id, When the dispute between New Penn and Appellant remained unresolved, DLT scheduled a Labor Standards hearing before a duly designated DLT hearing officer. (Tr. at 3.)

Appellants Bessett, Horbet, and D'Abrosca's complaints were consolidated for the evidentiary hearing, which hearing was conducted on July 30, 2009. Id. at 1, 3. The three Appellants testified at the hearing as did New Penn's Vice-President of Human Resources and Risk Management, Andrew J. Kerlik ("Mr. Kerlik"). In addition to witness testimony, the Hearing Officer considered the following: two memoranda authored by Horbet;⁷ a copy of the pertinent CBA provision regarding vacation pay. Over the objection of counsel for the Appellants, the Hearing Officer allowed New Penn to offer into evidence an arbitration decision and the briefs submitted by the parties in another case, not involving the same complainants. Id. at 27-29.⁸

At the hearing, the parties submitted the relevant provision, Article 50 of the CBA, as a joint exhibit. This Article, entitled "VACATIONS," provides in pertinent part:

"(a) Regular employees who have been on the Employer's payroll for one (1) year and who have worked at least one hundred thirty-five (135) days during that year, including any absence resultingfrom the performance of duties under this Agreement, shall be entitled to one (1) week's vacation with pay in each year to be taken during the vacation period provided in subsection (f) [sic] hereof. The requirement of 135 days of employment applies only to the first year of employment. In subsequent years all employees must work a minimum of twenty-five (25) days to qualify for vacation. The above provision shall be waived for employees retiring as of January 1 of any year; provided notice is given to Employer in December of previous year.

New employees hired during the previous year who are entitled to a vacation and older employees who do not work a full year shall receive vacation pay equal to the average of their earnings for the full weeks which they worked in that year, with a minimum of forty (40) hours at the current hourly rate.

All regular employees shall receive their vacation pay due them in advance on the basis of their earnings for the previous calendar year ending December 31, one fifty-second (1/52nd) of their earnings for each week of vacation, but not less than forty (40) hours pay per week at the current hourly rate. Any employee who is discharged or who quits between January 1st and May 1st shall receive the vacation allowance due him for that year. The Employer agrees he will issue separate checks for employees' vacations.

(b) Employees with two (2) years or more of service shall be entitled to two (2) weeks' vacation with pay in each year.

(c) Employees whose eighth (8th) anniversary date falls on or after April 1, 1991 shall be entitled to three (3) weeks of vacation with pay in each year.

(d) Employees with fifteen (15) years or more service shall be entitled to four (4) weeks' vacation with pay in each year.

(e) Employees with twenty (20) years or more of service shall be entitled to five (5) weeks' vacation with pay in each year.

(f) Employees with thirty (30) years or more of service shall be entitled to six (6) weeks' vacation pay in each year effective January 1, 2004.

...." (Joint Ex. 1, Collective Bargaining Agreement, Article 50.)

Appellant Bessett testified that he began his employment with New Penn on April 20, 1992. Id. at 23. He stated that in 2007, he worked twenty-eight weeks before leaving work due to a work-related injury. During the remainder of 2007, Bessett received Workers' Compensation benefits. Id. at 23-24. He testified that employees were paid for unused vacation time in arrears, and that he never used the vacation time he accrued as a result of working twenty-eight weeks in 2007. Id. at 23. Bessett claims that he earned and was entitled to four weeks of paid vacation for that year. Id. at 23, 30-31.

Due to his injury from 2007, Appellant Bessett continued to receive Workers' Compensation benefits and did not work in 2008. Id. at 23-24, 30. While on Workers' Compensation in 2008, Appellant Bessett decided that once he stopped receiving benefits, he would retire from New Penn. Id. at 24, 26. Bessett explained that he did not retire prior to that time because he was not permitted to retire while collecting Workers' Compensation. Id. at 25.

Bessett testified that in anticipation of his retirement, he had a conversation with the terminal manager, Bart Wagner ("Wagner") in December 2008 to inform him of his retirement plans, but did not discuss vacation pay during the conversation. Id. at 24. Rather, Bessett assumed that he was entitled to four weeks of vacation pay for working in 2007, the previous year. Id. at 24. Appellant Bessett retired from New Penn in January 2009, once his Workers' Compensation benefits ended. Id. at 25-26. He testified that he did not work in 2009. Id. at 2627.

At the hearing, Bessett, through counsel, asserted that he was entitled to eight weeks of vacation pay from New Penn. Id. at 31-32. The first four weeks stem from 2007, when he worked twenty-eight weeks. Id. The second four weeks purportedly include the vacation pay from 2008, when Appellant Bessett was on Workers' Compensation. Id.

Horbet testified that since he started working at New Penn, the applicable vacation policy provided that an employee would accrue vacation time one year and receive vacation pay for that accrued time in the following year. (Tr. at 6.) He explained: "You earn it the previous year. You earn—it's paid like in arrears. I would earn my '08 vacation in '07.... I would earn my '09 vacation in '08."Id.. at 7.

New Penn presented testimony from one witness, Andrew Kerlik, Vice President of Human Resources and Risk Management.Id. at 43. Mr. Kerlik testified that he was familiar with the Appellants, as well as the Providence Terminal Manager, Wagner. Id.

During the hearing, Mr. Kerlik was asked to provide his interpretation of Article 50 of the CBA and to articulate New Penn's policy regarding vacation eligibility pursuant to the provision. Id. at 44. According to Mr. Kerlik, New Penn's vacation policy under Article 50 of the CBA is as follows:

"For continuing employees, they need to work at least 25 days in the current calendar year—in the next year to get vacation for the previous year. And for retired employees, they need to work until the end of the year. If they do that, the 25 days is waived." Id.

Based on his interpretation of New Penn's vacation policy, Mr. Kerlik stated that Bessett was not eligible for vacation pay. Id. at 44-45. Specifically, he testified that Appellant Bessett's failure to work twenty-five days in 2008 precluded him from obtaining vacation for that year.Id.. at 45. During the course of the hearing, an issue arose regarding whether Appellant Bessett had already received the vacation pay that he was seeking at the hearing. Id. at 32. Respondent requested the opportunity to review its records and inform the Hearing Officer of its findings on

the issue. Id. The Hearing Officer acquiesced to the Respondent's request and instructed counsel to "check your records to verify that." Id. at 32-33. However, he did not continue the hearing to receive additional evidence and concluded the proceeding without addressing thepossibility of re-opening the matter to receive any additional evidence that New Penn might locate on the subject.

Instead, he permitted the parties to submit post-hearing briefs within thirty days after receiving the hearing transcript.Id.. at 50. He requested that parties address a number of issues in their respective briefs, inviting them to comment on the evidence and to address the impact, if any, of the alleged facts to the applicable provisions of the CBA. Id. at...