In re Grievance of Welch
| Decision Date | 14 August 2020 |
| Docket Number | No. 2019-075,2019-075 |
| Citation | 2020 VT 72 |
| Court | Vermont Supreme Court |
| Parties | In re Grievance of Michael Welch (Vermont State Employees' Association, Appellant) |
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
On Appeal from Labor Relations Board
Richard W. Park, Chair
Timothy Belcher, Vermont State Employees' Association, Montpelier, for Appellant/Cross-Appellee.
Thomas J. Donovan, Jr., Attorney General, and Laura C. Rowntree, Assistant Attorney General, Montpelier, for Appellee/Cross-Appellant State.
PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Wesley, Supr. J. (Ret.), Specially Assigned
¶ 1. Both the Vermont State Employees' Association (VSEA) and the State of Vermont appeal from a Labor Relations Board decision sustaining and dismissing in part a grievance filed by the VSEA on behalf of grievant Michael Welch, an employee of the Vermont Department of Liquor Control (DLC). The grievance alleged ongoing violations by the State of the parties' collective bargaining agreement (CBA). We affirm in part and reverse and remand in part.
¶ 2. Between 2007 and 2015, grievant worked as a state transport deputy sheriff with the Orange County Sheriff's Department (OCSD). In 2015, he was hired by the DLC as a liquor-control investigator. The State determined that while working as a transport deputy, grievant had been a county employee, and therefore he was not eligible for salary and leave benefits available under the CBA to certain prior State employees beginning another State job. The VSEA then filed the instant grievance1 alleging that the State violated the CBA by failing to pay grievant at the contractually required step and failing to calculate his leave accrual at the contractually required rate. After considering the parties' positions, the Board concluded that, for purposes of compensation and benefits, transport deputies are State employees exempt from the classified service. As a result, it found that the State violated Articles 30, 31, and 62 of the CBA in denying grievant compensation and leave benefits to which he was entitled. However, the Board determined that the State did not violate Article 45 because the promotional pay rate available thereunder applied only to those transferring between positions in the State classified service.
¶ 3. The State appeals the former conclusions, and the VSEA appeals the latter. In doing so, both challenge the Board's interpretation of the terms of a collective bargaining agreement, a matter at the heart of the Board's special expertise. In re Grievance of VSEA, 2014 VT 56, ¶ 21, 196 Vt. 557, 99 A.3d 1025 (). On appeal from such a decision, we therefore review the Board's findings and conclusions with substantial deference. In re Jewett, 2009 VT 67, ¶ 25, 186 Vt. 160, 978 A.2d 470 (). As a result, it is necessary to recount the factual findings supporting the Board's decision in some depth.
¶ 4. The Board found the following relevant facts. Each of Vermont's fourteen counties elects a state's attorney and a sheriff. See Vt. Const. ch. II, § 50 (). These elected officials may, in turn, staff their offices with nonelected officials. State's attorney's offices employ deputy state's attorneys, see 24 V.S.A. § 363, administrative secretaries, see 32 V.S.A. § 1185(a), and victim advocates, see 13 V.S.A. § 5306. Sheriff's departments employ deputy sheriffs, see 24 V.S.A. § 290(a), and transport deputy sheriffs, see id. § 290(b). Each of these positions is subject to different employment rights and oversight as defined by the applicable statutory provision, but all belong to "the so-called special groups," which may elect to participate in state health-, dental-, and life-insurance, and retirement-benefit plans. The Department of State's Attorneys and Sheriffs (DSAS) is a part of state government which provides "centralized support services" to sheriff's departments and state's attorney's offices with respect to such employees, including budgetary planning, training, and office management. 24 V.S.A. § 367(c).
¶ 5. In 2007, the OCSD hired grievant, who it had employed as a part-time deputy sheriff, as a full-time transport deputy sheriff. Transport deputies are responsible for transporting persons in the custody of the State or its agents between facilities and courts within and outside Vermont. In addition to their transport-related responsibilities, they also perform general law-enforcement duties within their respective counties as needed. Pursuant to 24 V.S.A. § 290(b), transport deputies are paid by the State. However, they work under the general supervision of the county sheriff, with little direct supervision.
¶ 6. Upon being hired as a transport deputy, grievant received a packet of materials from DSAS. Several of the materials indicated that grievant was receiving them as a State employee or an exempt State employee, and the packet included multiple personnel policies and procedures applicable to State employees, including some relating to sick and annual leave. Grievant wasissued a State identification (ID) card, State employee number, and State email address. The State identified itself to the Internal Revenue Service as grievant's employer.
¶ 7. In April 2015, grievant applied for a position as a liquor-control investigator with the DLC. Both grievant and the DLC had questions concerning the compensation and benefits that would be extended to grievant should he be hired into the position. Upon inquiry, representatives of the Labor Relations Division of the Department of Human Resources (DHR) advised grievant that a recent Board decision regarding the administrative secretaries employed by state's attorneys' offices had clarified that transport deputies are county employees, and, as a result, if grievant were hired, he would be "processed as a new hire" and would not receive the contractual benefits afforded those hired from another State position. See VSEA Petitions for Election, Nos. 14-30, 14-31, 14-32, 14-33, 14-34, 14-35, 14-48, 14-49, 33 VLRB 119, 2014 WL 5822856 (Vt. Lab. Rel. Bd. Nov. 3, 2014).
¶ 8. The DLC subsequently offered grievant the position, and he accepted. Effective June 1, 2015, he began his new employment. As a result of being processed as a new hire, grievant's pay decreased from $21.72 per hour in his prior position to $20.43 per hour in his new role. His sick- and annual-leave accrual rates fell from 4.62 to 4.27 hours per pay period. When grievant applied for prior-service credit on the basis of his employment as a transport deputy, the DHR denied his application for the same reason set forth in the earlier email: under the Board's recent decision regarding administrative secretaries, the State concluded grievant was previously employed by Orange County, not the State, and therefore did not qualify for reemployment benefits under the CBA.
¶ 9. One month later, this Court reversed the Board ruling relied on by the DHR in support of that conclusion. See In re Election Petitions, 2016 VT 7, 201 Vt. 123, 136 A.3d 213. A DHR employee emailed grievant to advise that the State read the Court's opinion to designate transport deputies as municipal employees, and, as a result, the State had not changed its positionas to grievant's reemployment rights under the CBA. The VSEA then filed this grievance, alleging an ongoing violation of the applicable CBA2 through the State's failure to recognize grievant's prior employment as State service.
¶ 10. As discussed supra, ¶ 3, we presume decisions within the scope of the Board's expertise to be "correct, valid and reasonable." Vt. State Emps. Ass'n v. State, 2009 VT 21, ¶ 19, 185 Vt. 363, 971 A.2d 641. We will uphold the Board's factual findings "so long as credible evidence fairly and reasonably supports them, even if we would not have reached the same decision," reversing only for clear error. Grievance of VSEA, 2014 VT 56, ¶ 22 . If these findings, taken as a whole, justify the Board's ultimate conclusion, we will affirm. See In re West, 165 Vt. 445, 448, 685 A.2d 1099, 1102 (1996) ().
¶ 11. Bearing in mind that this standard of review calls for "an even lighter touch than . . . a typical contract dispute," we nonetheless review the Board's interpretation of the CBA pursuant to traditional principles of contract law. In re Kelley, 2018 VT 94, ¶ 12, 208 Vt. 303, 198 A.3d 44. Accordingly, we look first to the plain language of the agreement to discern the parties' intent. West, 165 Vt. at 450, 683 A.2d at 1103. Where that language is clear and unambiguous, we are obligated to enforce it as written. Id. To address the threshold question of whether an ambiguity exists in a CBA, "limited extrinsic evidence, including the circumstances surroundingthe making of the agreement as well as the object, nature and subject matter of the writing" may be brought to bear. In re Spear, 2014 VT 57, ¶ 15, ...
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...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, ¶ 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 f......