In re Abbey
| Decision Date | 17 February 2023 |
| Docket Number | 22-AP-137 |
| Citation | 2023 VT 9 |
| Parties | In re Grievance of Marc Abbey et al. (State of Vermont, Appellant) |
| Court | Vermont Supreme Court |
On Appeal from Labor Relations Board
Kelly Everhart, Vermont State Employees' Association Montpelier, for Plaintiff-Appellee.
Susanne R. Young, Attorney General, and Alison L.T. Powers Assistant Attorney General, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.
¶ 1. The State of Vermont appeals from a decision of the Vermont Labor Relations Board sustaining a grievance filed by the Vermont State Employees' Association (VSEA) on behalf of several classified employees. The Board determined that the State violated the employees' collective bargaining agreement (CBA) when it appointed another employee to a vacant position before the application deadline for that position had expired. We conclude that the Board correctly interpreted the CBA and therefore affirm.
¶ 2. In May 2020, VSEA filed a grievance with the Board on behalf of fourteen correctional officers, alleging that the officers' employer, the Vermont Department of Corrections (DOC), had violated their CBA by appointing a correctional officer from a different facility into a vacant position that was posted to be filled using competitive procedures. After a hearing in April 2021, the Board issued a written decision containing the following findings, which are not in dispute.
¶ 3. In February 2020, grievants were employed by DOC as correctional officers at Northern State Correctional Facility (NCSF) and were members of the Corrections Bargaining Unit. Article 19(1) of the Corrections Bargaining Unit's CBA with the State, entitled "Vacancies/Promotion," provides:
When management decides to fill a permanent, vacant bargaining unit position through competitive procedures notice shall be posted for ten (10) workdays prior to the application deadline, statewide in the case of a state promotional or open competitive procedure, agency-wide when only an agency promotional procedure is being utilized. If a change is made in the minimum qualifications after the announcement is posted, the new vacancy notice shall be posted for a period of five (5) workdays.
The rest of Article 19 provides how a competitive position is to be filled after it is posted. Employees on "RIF status"[1] get first priority, followed by lateral transfer applicants who meet certain criteria. If the position is not filled by an employee in one of the first two categories, DOC must consider "all certified applicants."
¶ 4. On February 7, 2020, DOC posted a Corrections Services Specialist I (CSSI) position at the Northern State Correctional Facility (NSCF) for competitive recruitment. The deadline to apply for the position was February 23, 2020. CSSI positions offer regular work schedules and do not require as much overtime as correctional officer positions. For these reasons, they are desirable positions within a correctional facility.
¶ 5. Grievants all applied or intended to apply for the CSSI position prior to the application deadline. Another employee, Stephanie Moly, also applied for the position through the competitive process when it was posted.
¶ 6. Moly worked as a correctional officer at the Northeast Correctional Complex (NECC). In early February 2020, Moly's partner Benjamin Mallery was promoted to a supervisor position at NECC. This meant that he was in a supervisory position over Moly, which violated a nepotism waiver that Mallery and Moly had previously executed with DOC. On February 10, the superintendent of NECC contacted the Department of Human Resources to ask if Moly could "RIF" into the available CSSI position at NSCF. On February 13, a human resources administrator emailed a DOC facilities executive advising him of the nepotism waiver for Moly and Mallery that required DOC to attempt to create a separation between them. The administrator informed the facilities executive that the NSCF CSSI position satisfied the requirements of a comparable pay grade and position for Moly, that Moly was qualified for and had applied for the CSSI position, and that DOC could request an administrative appointment provided that Moly's existing corrections officer position at NECC was left vacant to be filled when she moved.
¶ 7. It is undisputed that Moly's correctional officer position at NECC was not subject to a layoff pursuant to Article 65, "Reduction in Force," of the CBA. Neither Moly nor VSEA ever received an official notice of layoff of her position.
¶ 8. On February 13, 2020, DOC and the Department of Human Resources approved Moly's administrative appointment into the CSSI position at NSCF. On February 14, the job posting was canceled. No competitive interviews were conducted for the position.
¶ 9. Grievants argued to the Board that the State's appointment of Moly and cancellation of the vacancy posting before ten workdays had elapsed violated Article 19 of the CBA. They asked the Board to order DOC to post and fill the NSCF CSSI position pursuant to Article 19. The State responded that it had the right to administratively appoint Moly to a competitive posting pursuant to Article 66(1)(b) of the CBA.
¶ 10. Article 66(1), entitled "Mandatory Reemployment Rights," begins by stating that "[a]n employee with permanent status who has received an official notice of layoff, and who is about to be laid off under the Reduction in Force Article, shall have . . . mandatory reemployment rights to any vacant classified bargaining unit position when management intends to fill it, provided" that the position is at the same or lower pay grade, the employee meets the minimum qualifications, and the employee has expressed a willingness to take the position. Subsection (b) of Article 66(1) contains an exception to this rule:
Notwithstanding subsection (a), above, management shall have the right to first fill vacant classified bargaining unit positions by promotion, demotion, or lateral transfer of classified employees from within the Department, so long as such actions produce a different vacant bargaining unit position which management intends to fill.
The State asserted that Article 66(1)(b) permitted it to fill a vacancy posted using competitive procedures by administrative appointment and to cancel the posting before ten workdays had elapsed.
¶ 11. The Board agreed with grievants that the State had breached Article 19 of the CBA. The Board concluded that because the State had decided to fill the vacant CSSI position through competitive procedures, it was required to adhere to the requirements of Article 19 and post the position for ten workdays. The Board disagreed with the State's argument that Article 66(1)(b) permitted the State to make an administrative appointment after choosing to use competitive procedures and posting the position under Article 19. The Board reasoned that Article 66 governed the reemployment rights of employees who had been laid off under the reduction-in-force provision of the CBA, and did not apply here because Moly was not subject to a layoff or reduction in force. The Board therefore ordered the State to comply with Article 19 and repost the CSSI position for ten workdays. The State appealed.
¶ 12. When reviewing a decision of the Vermont Labor Relations Board, "we defer to the Board's construction of the collective bargaining agreement, given the Board's expertise in that area." In re Jewett, 2009 VT 67, ¶ 25, 186 Vt. 160, 978 A.2d 470. Although our review is deferential, it is guided by traditional principles of contract law. In re Welch, 2020 VT 72, ¶ 11, 213 Vt. 92, 239 A.3d 235. The agreement "must be construed, if possible, so as to give effect to every part, and from the parts to form a harmonious whole." In re Vermont State Emps.' Ass'n. Inc., 139 Vt. 63, 65, 421 A.2d 1311, 1312 (1980) (quotation omitted). If the language of the agreement is clear and unambiguous, its plain meaning will control. In re West, 165 Vt. 445, 450, 685 A.2d 1099, 1103 (1996). We will uphold the Board's conclusions if they are supported by the findings and will affirm its findings unless they are clearly erroneous. Jewett, 2009 VT 67, ¶ 25.
¶ 13. Applying these principles, we conclude that the Board's interpretation of the CBA was reasonable and correct. When, as here, the State decides to fill a vacant bargaining unit position using competitive procedures, Article 19 unambiguously requires the State to post the position for ten workdays. The only exception is if the minimum qualifications of the positions change, in which case the State is required to post the vacancy for five workdays. After the position is posted, if there is no employee on "RIF status"-i.e., who has mandatory reemployment rights under Article 66(1)-who is eligible for the position, then the State is required to select the most senior qualified lateral transfer applicant.[2] Otherwise, the State must consider all certified applicants. The State failed to adhere to this procedure when it appointed an employee who did not have mandatory reemployment rights to the NSCF CSSI position before ten workdays had elapsed and canceled the competitive posting.
¶ 14. The State asserts that it had the right to change its mind about using competitive procedures and to fill the competitive vacancy by administrative appointment. It argues that Article 66(1)(b) permits it to make an administrative appointment to a competitive posting at any point in the process.
¶ 15. As the Board correctly concluded, however, the language of Article 66 does not support the State's position. The first sentence of Article 66(1) makes clear that its provisions apply only when a permanent employee is being laid off....
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