IN RE VERMONT STATE EMPLOYEES, 04-140.
| Decision Date | 27 December 2005 |
| Docket Number | No. 04-140.,04-140. |
| Citation | 893 A.2d 338,2005 VT 135 |
| Court | Vermont Supreme Court |
| Parties | In re GRIEVANCE OF VERMONT STATE EMPLOYEES' ASSOCIATION, INC. |
Present: REIBER, C.J, DOOLEY, JOHNSON, and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.
¶ 1. In this appeal, we are asked to decide if the Labor Relations Board erred in dismissing a grievance filed by the Vermont State Employees' Association, which concerned the State's investigation of employee Jules Peteani. VSEA argues that the State denied Peteani his right to meaningful union representation during an investigative interview and violated the parties' collective bargaining agreement by failing to provide Peteani with supplemental written notice of additional charges pending against him once he had been temporarily relieved from duty. The Board rejected these arguments. On appeal, VSEA asserts that: (1) the Board's conclusion that Peteani was afforded his right to meaningful representation is not supported by its findings; and (2) the Board erred in interpreting the terms of the parties' collective bargaining agreement. We find the first issue moot, and we find no error in the Board's interpretation of the parties' contract.
¶ 2. Jules Peteani worked as a community correctional officer for the Department of Corrections. In June 2001, the Department began an investigation into Peteani's alleged violation of a work rule that prohibited romantic or sexual relationships between employees and offenders under Department control or supervision. The Department notified Peteani that it was investigating his relationship with offender N.F. The Department conducted two investigative interviews with Peteani, the second of which VSEA challenges in this appeal. During the second interview, in December 2001, Peteani was asked whether he had engaged in any inappropriate conduct with offenders other than N.F. Peteani's union representative, Lucinda Kirk, protested that she had not been informed of any new allegations against Peteani and asked that the interview be stopped. The State eventually allowed Kirk five minutes to consult privately with Peteani before questioning resumed. The State also allowed Peteani and Kirk to meet privately several times before the interview concluded. In February 2002, Peteani resigned from state employment.
¶ 3. In June 2002, VSEA filed a grievance with the Board, alleging that the State had violated the collective bargaining agreement in conducting its investigation of Peteani. VSEA first argued that the State had violated Article 14, section 7 of the contract, which gives an employee the right to have a union representative present during any meetings with his employer that may lead to discipline. VSEA asserted that the State had violated this provision by refusing to allow Peteani to freely consult with Kirk during the interview.
¶ 4. VSEA also alleged that the State had violated Article 14, section 9 of the contract. Section 9 provides that an employer may relieve an employee temporarily from duty with pay for up to thirty work days to allow the employer to investigate charges and allegations against the employee. It requires that:
Employees temporarily relieved from duty shall be notified in writing within twenty-four (24) hours with specific reasons given as to the nature of the investigation, charges and allegations. Notices of temporary relief from duty with pay shall contain a reference to the right of the employee to request representation by VSEA, or private counsel in any interrogation connected with the investigation or resulting hearing.
Section 9 allows the employer to extend the period of temporary relief from duty with the concurrence of the Commissioner of Personnel. Although the Department provided Peteani with written notice when it placed him on temporary relief from duty, VSEA asserted that the Department was obligated to supplement this written notice when it extended Peteani's relief-from-duty period beyond thirty days. VSEA also asserted that, under section 9, the State was obligated to provide Peteani with written notification of its reasons for holding a second investigative interview. Finally, VSEA argued that Peteani had the right to VSEA representation under section 9 during any investigatory interrogation, and he was denied effective representation because he had not been allowed to consult with Kirk throughout the second interview.*
¶ 5. In its request for relief, VSEA asked the Board to determine that the State had violated the contract and the parties' past practice; order the State to cease and desist from engaging in such conduct; order that any evidence obtained by the State in similar investigative meetings under similar circumstances be rendered inadmissible for purposes of imposing discipline and/or corrective action against the employees; and order that any employee who suffered an adverse action as a result of any of the State's contract violations be made whole.
¶ 6. After a hearing, the Board dismissed the grievance. The Board first rejected VSEA's assertions that the State had violated section 9 of the contract, explaining that section 9 did not apply to VSEA's representation of Peteani at the second investigatory interview. The Board found that the Department had complied with the requirements of this section when it provided Peteani written notice as to why he was being temporarily relieved from duty and advised him of his right to representation. This ended the provision's applicability, and its requirements were not resurrected when the Department held a subsequent interview while Peteani remained on temporary relief from duty. To conclude otherwise, the Board explained, would improperly read terms into the parties' contract that did not arise by necessary implication.
¶ 7. Turning to the central issue raised by the grievance, the Board considered whether Peteani had been denied his right to meaningful and effective representation in violation of Article 14, section 7. As noted above, under section 7, an employee has the right, at his request, to have a union representative accompany him to any meeting with his employer where he will be required to give oral or written statements on an issue that involves him and which may lead to discipline against him. The Board discussed the limits of this right, finding that it included the employee's right to consult with his union representative prior to an investigative interview. To effectuate this right, the Board explained that an employee and his representatives were entitled to have some indication of the subject matter of an investigation, although the employer need not reveal its case or even the specifics of the misconduct to be discussed. Instead, the employer need only provide a "general statement as to the subject matter of the interview, which identifies to the employee and his representative the misconduct for which discipline may be imposed." Pac. Tel. & Tel. Co., 262 N.L.R.B. 1048, 1049 (1982), aff'd, Pac. Tel. & Tel. Co. v. NLRB, 711 F.2d 134 (9th Cir.1983). The Board also discussed the role of a union representative during an investigative interview.
¶ 8. The Board found that in November 2001 the Department had informed Peteani that it was "continuing its investigation" into his apparent violation of workplace rules, and that Christine Boraker had been assigned to conduct an investigative interview with him. It explained that this notice did not indicate whether the interview would involve a continued examination of Peteani's relationship with N.F., or whether the investigation would be expanded to discuss other matters. The Board found that a miscommunication then occurred between Kirk and Boraker over the nature of any new allegations against Peteani. As a result, Kirk did not know that Peteani would be asked about other female offenders under his supervision, and she was unable to meaningfully consult with Peteani on this subject before the interview began. Thus, the Board explained, when this topic arose during the interview, Boraker had no reasonable basis to deny Kirk's request for a break. The Board concluded, however, that this temporary harm was remedied when Boraker stopped the interview to discuss the matter with Department of Personnel General Counsel David Herlihy. As a result of that discussion, Peteani had been allowed to consult with Kirk for five minutes before he was asked to answer any questions about other female offenders. The Board found that VSEA had not presented sufficient evidence to support a conclusion that this consultation had been insufficient to allow Kirk to effectively represent Peteani during the interview. The Board found its conclusion bolstered by Boraker's decision, at the conclusion of her questioning, to allow Peteani and Kirk to meet privately and present additional information. It therefore concluded that the State had...
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