In re Grievance of VSEA

• Decision Date: 20 June 2014
• Docket Number: No. 13–316.,13–316.
• Citation: 99 A.3d 1025,2014 VT 56
• Court: Vermont Supreme Court
• Parties: In re GRIEVANCE OF VSEA (Tropical Storm Irene Emergency Closing).

99 A.3d 1025

2014 VT 56

In re GRIEVANCE OF VSEA (Tropical Storm Irene Emergency Closing).

No. 13–316.

Supreme Court of Vermont.

June 20, 2014.

Rebecca McBroom, Vermont State Employees' Association, Montpelier, and Alfred Gordon O'Connell of Pyle Rome Ehrenberg PC, Boston, Massachusetts, for Appellants.

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

Present: REIBER, C.J., DOOLEY, SKOGLUND and CRAWFORD, JJ., and PINELES, Supr. J. (Ret.), Specially Assigned.

Opinion

DOOLEY, J.

¶ 1. Vermont State Employees' Association (VSEA) appeals a decision of the Vermont Labor Relations Board, which found that the State of Vermont was not required to give certain compensation to state employees in the weeks and months following Tropical Storm Irene. VSEA contends that the Board erred in interpreting certain terms of the emergency closing provision of the collective bargaining agreements between the State and VSEA. We affirm.

¶ 2. On Sunday, August 28, 2011, Tropical Storm Irene passed through Vermont, causing massive flooding throughout the state. The storm had a particularly devastating effect on the complex of state buildings in Waterbury.¹ The Waterbury complex housed the Agency of Human Services, the Agency of Natural Resources and the Department of Public Safety.² The complex lies near the Winooski River, which overflowed its banks and entered the buildings in the complex, rendering most of them unusable to this day.

¶ 3. Governor Peter Shumlin authorized the complete closure of Vermont state government on Monday, August 29. The closure

notice stated that only authorized critical staff persons should report for work. That total government closure was authorized for only one day.

¶ 4. In the days that followed, various work arrangements were necessary because the Waterbury complex was generally unusable. The Vermont Department of Human Resources (DHR) indicated that agencies with offices in the complex had implemented their Continuity of Operations Plans (COOP). These plans allow only specifically authorized critical staff to work in order to continue an agency's essential functions during and immediately following an emergency situation. All other employees in the complex were instructed that they “should not report to work unless specifically authorized to do so by a supervisor.”

¶ 5. Eventually, most of the state employees in the complex were assigned to new work stations as agencies moved their operations. At first, there was uncertainty about the work requirements and compensation for state employees who had worked in the complex. Over time, management reached a position on those policies. The position was unacceptable to VSEA, the union that represents the state's classified employee workforce. VSEA charged that the State's position was inconsistent with three collective bargaining agreements as well as a state personnel policy. When the parties could not resolve the conflict, VSEA appealed to the Vermont Labor Relations Board. Three different contracts between VSEA and the State are implicated in this case: (1) the Non–Management Unit Bargaining Contract effective July 1, 2010 to June 30, 2012; (2) the Supervisory Bargaining Unit Contract effective July 1, 2010 to June 30, 2012; and (3) the Corrections Bargaining Unit Contract effective July 1, 2010 to June 30, 2012. The three contracts share many of the same articles. Pertinent portions of these contracts relate to emergency closings, location reassignments, and various types of compensation.

¶ 6. The emergency closing article,³ which is substantially the same in all three contracts, provides:

1. Management shall decide when, if, and to what extent State facilities shall remain open or closed during emergencies, such as adverse weather conditions, acts of God, equipment breakdown, inoperable bathroom facilities, extreme office temperatures, etc.

....

3. In facilities that must remain operational despite emergency conditions, continued operations with a reduced work force may be authorized. In such instances, employees who are authorized to leave work early may do so without loss of pay or benefits. Employees who are required to remain at work shall receive compensatory time at straight time rates.

4. An employee who is unable to report to work due to weather or other emergency conditions shall have the absence charged against accumulated compensatory time or annual leave, in that order.

5. If management authorizes the complete closing of a State office or facility for emergency reasons, employees who leave the workplace shall receive their regular pay for time they are out of the closed office.

6. Employees required by management to work during complete emergency closings under (5) above, shall receive hourly pay at straight time rates for the hours so worked. This payment will be in addition to the employees' regular pay.

¶ 7. The employee workweek/work location/work shift⁴ provision, Article 20 of all three contracts, indicates in part:

3. SELECTION FOR ASSIGNMENT TO A NEW SHIFT/NEW WORKWEEK/NEW GEOGRAPHIC AREA

(a) Subject to the operating needs of a Department, as determined by the appointing authority, which may require the assignment (for fifteen (15)⁵ days or more) of any employee to a different or new shift, workweek, or geographic area, the State will select qualified volunteers first, after which selection shall be in reverse order of (continuous State service) seniority, i.e., the most junior employee(s) will be selected.

....

(c) The State will give two (2) weeks' prior notice of any such assignment to a new shift or new workweek, or four (4) weeks prior notice in the case of an assignment to a new geographic area,⁶ and will try to accommodate those persons who need extra time to make the change or move. The State will also try to give additional notice of such changes or moves if feasible.

¶ 8. A “geographic area” is defined in the contracts as “the area within a thirty-five (35) mile radius of an employee's regular duty station.” A “duty station” is not defined. “Official notice” is defined as “written communication from the appointing authority to an employee.”

¶ 9. The annual leave⁷ provision reads:

(n) Vacation scheduling is the exclusive prerogative of the appointing authority. Leave must be requested in advance by the employee and is subject to approval by the appointing authority or his or her delegated representative. Such approval shall not be unreasonably withheld ....

(o ) An employee shall not be charged annual leave for absence on a legal holiday or on an administrative holiday.

¶ 10. The State Personnel Policy Number 11.3 also provides direction regarding emergency closings as follows:

PURPOSE AND POLICY STATEMENT

There are occasions when management must decide if and to what extent State facilities should remain open or be closed during emergencies such as adverse weather conditions, acts of God, equipment breakdown, inoperable bathroom facilities, extreme office temperatures, etc. This policy clarifies who has the authority to make such decisions, and under what circumstances.

GENERAL INFORMATION

The following defines the different types of emergency closing situations that may arise and specifies who has authority to close a State office or facility.

....

2. Complete Closing:

The Secretary of Administration may authorize the complete closing of a State office or facility for emergency reasons. In these situations, State offices are closed for business.

Employees who leave the workplace in these situations will receive their regular pay for the time that they are out of the closed office without charging to any leave balances.

Employees who are required by management to work during a complete emergency closing will receive cash for all hours worked while the office or facility is closed, in addition to the employee's regular pay. This does not apply to exempt, managerial, confidential, and temporary employees.

....

COMPENSATION FOR EMPLOYEES

Employees who are on authorized annual leave, sick leave, personal leave, compensatory time off, or on other paid leave, will not be charged leave time for the period of the emergency closing. The same provisions apply to delayed openings, early closing, or reduced work force situations.

¶ 11. Although this dispute has many facets, as discussed below, the emergency closing articles in the three contracts are at its center. For employees at the Waterbury complex and the Rutland DMV office, VSEA argues that sections 5 and 6 of the emergency closing article applied not just on August 29, the day that the Governor closed state government, but for each day thereafter until the employee's work location was changed pursuant to Article 20. Thus, VSEA argues that management authorized “the complete closing of [the Waterbury complex and Rutland DMV office] for emergency reasons. ” (Emphasis added.) As a result, VSEA argues that all workers were entitled to receive regular pay during that period and those who were required to work during the closing were entitled to double pay, irrespective of where they worked. The State responds primarily that the closing occurred because of an emergency on August 29, but thereafter the office closings were not the result of an “emergency” as the term is used in the contracts. Thus, it argues sections 5 and 6 of the emergency closing articles do not give VSEA the relief it seeks.

¶ 12. Between August 30 and September 7, 2011 the State and VSEA unsuccessfully attempted to reach an agreement regarding payment for Waterbury complex employees who worked at alternate worksites. On April 16, 2012, VSEA filed its grievance with the Board. VSEA argued that the State had violated several provisions of the collective bargaining agreements as well as Personnel Policy 11.3. Specifically, it alleged in relevant part that the State (1) violated the emergency closing article, sections 5 and 6, and Personnel Policy 11.3(2), by failing to pay compensation in...