In re Cole

Decision Date02 May 2008
Docket NumberNo. 06-472.,06-472.
Citation2008 VT 58,954 A.2d 1307
CourtVermont Supreme Court
PartiesIn re Grievance of Mary Ellen COLE and Charles Cross.

Jes Kraus, Associate General Counsel, Vermont State Employees' Association, Montpelier, for Appellants.

William H. Sorrell, Attorney General, and Bridget C. Asay, Assistant Attorney General, Montpelier, for Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. BURGESS, J.

Grievants Mary Ellen Cole and Charles Cross appeal a decision of the Vermont Labor Relations Board dismissing their grievance over the Department of Corrections' application of the State's conflict-of-interest personnel policy to the parties. The policy prohibits Cole from working on the same shift as her partner, Cross, who would be supervising Cole if they were so assigned. The Board concluded that the personnel policy was a past practice embedded in grievants' collective-bargaining agreement, and that it did not conflict with language in the agreement governing the distribution of overtime and shift-bidding. As such, the policy applied to grievants and restricted the shifts that grievant Cole could work. We affirm.

¶ 2. Grievants, domestic partners since 2001, both work at Northwest State Correctional Facility (NWSCF). Cross works as a correctional facility shift supervisor (CFSS), a position he has held since 1999. In this capacity, he is "responsible for security operations" in the prison and "addresses security and staff performance concerns that may arise during the shift." Cross directly supervises employees designated as correctional officer II (COI II); COI IIs in turn supervise employees designated correctional officer I (COI I). Both COI Is and COI IIs are "subject to direction and supervision" from the CFSS on duty, and may receive performance feedback from the CFSS. Cole began work as a COI I at NWSCF in June 2000.

¶ 3. Both grievants are employed pursuant to a collective-bargaining agreement (the contract). Article 2 of the contract governs "Management Rights":

subject to terms set forth in this Agreement, nothing in this Agreement shall be construed to interfere with the right of the Employer to carry out the statutory mandate and goals of the agency, to restrict the State in its reserved and retained lawful and customary management rights, powers, and prerogatives, including the right to utilize personnel, methods and means in the most appropriate manner possible.

Article 20 provides that "[COI Is] with more than three (3) years seniority ... shall receive shift assignments based on seniority." Article 28 governs the distribution of overtime, and states that "[a]ppointing authorities shall make a reasonable effort to distribute overtime as equitably as possible among classified employees."

¶ 4. Also relevant to this dispute are the State personnel policies and procedures governing conflicts of interest. The State has had a conflict-of-interest policy since 1966. In its current form that policy is embodied in personnel policy Number 5.2. Number 5.2 sets forth "the general policy of the State that no one will be employed in the same department, institution, or organizational unit that employs a relative." For purposes of the policy, the term "relative" includes spouses, civil union partners, and domestic partners. Employees may request a waiver so they may be employed in the same department as a relative. Waivers are submitted to the Department of Human Resources, which evaluates each waiver based on a number of factors, including the type of relationship, size of the department, "reporting relationships within the organization," and location of the employer. When a conflict of interest arises during employment, "the employer must take all reasonable and practicable measures, including, but not limited to, changes in supervision, work location, and/or work shift, to avoid to the greatest extent possible the conflict or the appearance thereof."

¶ 5. Under Article 20 of Cole's contract, she became eligible to bid for shifts in the summer of 2003. At that time, she had been working on the third shift, while Cross was assigned to first shift. Cole put in a request to work on the first shift, and it was denied due to the conflicts policy. She then filed a grievance, but withdrew it before it was heard by the Board.

¶ 6. Cole then attempted to obtain a waiver from the Department of Human Resources so she and Cross would be allowed to work the same shift. In 2005, a waiver was issued, which allowed their continued employment at NWSCF, but mandated that there be "no work contact between the employees," that they work "separate shifts at all times," and that the two have "entirely separate reporting relationships." Grievants acknowledged this waiver, but maintained that it did not apply to them. At the next shift-bidding cycle, Cole again attempted to bid for work on the first shift and was again denied her request.

¶ 7. Cole, joined by Cross, grieved this denial to the Board. They challenged the denial of Cole's request to work on the first shift and the refusal to allow them to work overtime on the same shift, claiming the contract provisions on shift-bidding preempted the conflicts policy. The Board held a hearing and issued a decision dismissing the grievance. The Board found that, because the contract did not specifically address conflicts of interest, the State's conflict-of-interest policy was not superseded by the contract terms. Moreover, because the parties bargained with knowledge of this conflict-of-interest policy, it was a "past practice implicitly embedded in the contract."

¶ 8. Grievants appeal the Board's decision to dismiss their grievance, raising four contentions on appeal: (1) the Board erred in concluding that there was no conflict between the provisions of the collective-bargaining agreement and the personnel policy; (2) the Board erred when it found that the personnel rules are implicitly embedded in the contract; (3) the Board's decision contradicts the plain language of the contract; and (4) the Board's conclusion imposes an "insurmountable burden" on collective bargaining in Vermont.

I.

¶ 9. We first address grievants' claim that the Board erred in concluding that no conflict existed between the terms of the contract and the State personnel policy governing conflicts of interest. "Interpretations of collective bargaining agreements are within the particular expertise of the Board, and we review such interpretations with great deference to the Board's expertise." In re West, 165 Vt. 445, 448, 685 A.2d 1099, 1102 (1996); see also In re Vt. State Employees Ass'n, 2005 VT 129, ¶ 7, 179 Vt. 228, 893 A.2d 333; In re Gregoire, 166 Vt. 66, 72, 689 A.2d 431, 435 (1996) ("Substantial deference must be accorded the Board's construction of collective bargaining agreements.").

¶ 10. Grievants cite In re Muzzy, 141 Vt. 463, 449 A.2d 970 (1982), in support of their claims. In Muzzy, a State employee challenged her dismissal, arguing that the State failed to follow proper dismissal procedures when it fired her after several unsatisfactory performance reviews. The collective-bargaining agreement provided that progressive disciplinary steps would be used before an employee was dismissed. The State, relying partly on its internal rules and regulations for personnel administration, dismissed the employee without progressive discipline, arguing that a dismissal for "inability to perform" was not covered by the contract terms. Id. at 474-76, 449 A.2d at 975-76. We rejected this argument, holding that because the contract provision governing "dismissal" did not specify that it applied only to certain types of dismissal, it applied to all dismissals. Because the language of the collective-bargaining agreement "clearly and unambiguously" addressed dismissal procedures, its terms trumped the language of the State's rules regarding dismissals, and the State was required to follow the bargained-for provisions. Id. at 476, 449 A.2d at 976.

¶ 11. We reached a similar result in In re Graves, 147 Vt. 519, 520 A.2d 999 (1986). In Graves, an employee was dismissed after he submitted fourteen false claims for reimbursement for lunch expenses. The employee argued that this dismissal was improper because the State had an obligation to discipline him by suspending his reimbursement privileges before it could dismiss him, and it had not done so here. He pointed to a provision in the State's Standard Operating Procedures that stated that the employer "shall revoke midday meal reimbursement privileges where there is continuing indication of abuse." Id. at 521, 520 A.2d at 1000. The employee's collective-bargaining agreement, however, contained a provision addressing the same issue, stating that the employer "may revoke midday meal reimbursement privileges where there is continuing indication of abuse." Id. at 522, 520 A.2d at 1001. Invoking the rule established in Muzzy, we held that "where the language of a collective bargaining agreement is clear and unambiguous, employment rules and regulations promulgated unilaterally by the employer-state which conflict with the contract terms are superseded by the contract." Id. As both the contract and the Operating Procedures addressed the same issue, the contract language controlled; because the contract did not mandate that the employer suspend expense privileges before dismissal, the State could properly dismiss the employee without first disciplining him.

¶ 12. Both Muzzy and Graves focused on the language of the contract, concluding that when a collective-bargaining agreement and an employer's personnel rules address the same topic, the bargained-for language of the contract controls over the employer's unilaterally promulgated rules. This rule provides no support to grievants' argument here because there is no conflict between the language of the contract and the State's conflict-of-interest policy. The contract provisions...

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