MILTON EDUC. ASS'N v. BD. OF SCH. TRUSTEES

• Decision Date: 14 July 2000
• Docket Number: No. 97-218.,97-218.
• Citation: 759 A.2d 479
• Parties: MILTON EDUCATION AND SUPPORT ASSOCIATION v. MILTON BOARD OF SCHOOL TRUSTEES.
• Court: Vermont Supreme Court

759 A.2d 479

MILTON EDUCATION AND SUPPORT ASSOCIATION v. MILTON BOARD OF SCHOOL TRUSTEES.

No. 97-218.

Supreme Court of Vermont.

July 14, 2000.

Joel D. Cook, Montpelier, for Plaintiff-Appellee.

Christopher D. Roy and Dennis W. Wells of Downs Rachlin & Martin PLLC, Burlington, for Defendant-Appellant.

PRESENT: AMESTOY, C.J., MORSE, JOHNSON and SKOGLUND, JJ.

SKOGLUND, J.

This case involves the obligation of parties to a collective-bargaining agreement to exhaust available contractual remedies before a statutory unfair-labor-practice charge will lie under the Vermont Municipal Relations Act. The Milton Board of School Trustees (school board) appeals from a decision of the Vermont Labor Relations Board (Labor Board), which held that the school board violated 21 V.S.A. § 1726(a)(5) by failing to bargain in good faith with the Milton Education and Support Association (association) over the decision to lay off bargaining-unit employees and to subcontract for custodial services. On appeal, the school board claims that, because the scope of its management rights under the collective-bargaining agreement is a question of contract interpretation, the Labor Board erred by refusing to defer to the arbitration process provided for in the collective-bargaining agreement. Further, the school board claims that the Labor Board erred in concluding that the association did not waive its right to bargain over the subcontracting decision. We agree with the school board's first argument; however, we disagree with its second argument. Therefore, we affirm in part, reverse in part and remand for the Labor Board to reconsider its decision in light of the result of the parties' arbitration.

I.

The association is the exclusive bargaining representative for the teachers and support personnel, including custodial staff, employed in the Milton Town School District. The parties, pursuant to 21 V.S.A. § 1725, have engaged in collective bargaining periodically over the years and have entered into several successive collective-bargaining agreements for nonteacher employees. A brief review of the parties' negotiation history and prior bargained agreements is helpful to this discussion.

Article III of the parties' 1992-94 collective-bargaining agreement contained the following language enumerating management rights:

It is herein agreed that except as specifically and directly modified by the express language in a specific provision of this Agreement, the Board retains all rights and powers that it has, or may hereafter be granted by law, and may exercise such powers at its discretion.

The parties continued to be governed by the 1992-94 agreement into 1995 while they negotiated a successor agreement.

In the spring of 1995, the school board openly considered, and decided against, subcontracting the school district's custodial and maintenance services to a nonbargaining-unit provider. Consequently, the association was aware of the school board's consideration of subcontracting at the time it commenced negotiations for a successor agreement.

During negotiations for the 1994-96 agreement, the association acceded to a change in Article III of the agreement, replacing the more general language with a provision offered by the school board listing "management rights" in greater detail. Article III then read in pertinent part as follows:

3.1 Management rights shall include, but not be limited to the right

a. to hire, discharge, discipline, lay off, recall, transfer, promote and demote employees,

b. to assign work and require overtime,

c. to organize, enlarge, reduce or discontinue a function, position or department,

d. to introduce new technology, tools, equipment or labor-saving devices,

e. to establish new jobs,

f. to classify and reclassify employees,

g. to determine or change shifts, starting and quitting times and the number of hours and days worked,

h. to evaluate employees,

i. to promulgate rules and regulations which do not otherwise contravene the terms of this Agreement,

j. to determine the manner, means and methods by which all operations and all educational missions and goals of the School District will be carried out,

k. to take such other action as it deems necessary to maintain the efficiency of the District's operations.

The association and the school board executed the 1994-96 agreement on August 31, 1995.

After executing the 1994-96 agreement, due to expire June 30, 1996, the parties began negotiations for a successor agreement. In its first proposal for contract changes, the association requested a "protective clause re subcontracting of various services." At the request of the school board for more specific language, the association submitted two proposals that would have prohibited the school board from subcontracting any bargaining-unit work. One proposal provided: "The duties of any bargaining unit member or the responsibilities of any position in the bargaining unit shall not be altered, increased, or transferred to persons not covered by this Agreement." The other proposal provided: "The Board shall not employ persons or services to perform work regularly and customarily performed by bargaining unit personnel except for major projects and emergencies." The school board rejected both provisions. In December 1995, the parties ratified an agreement covering the period July 1, 1996, to June 30, 1999, and the agreement was signed by the parties on April 4, 1996. The provisions of Article III of the 1994-96 agreement were carried forward unchanged to the 1996-99 agreement. On February 19, 1996, the school district superintendent sent the president of the association a memorandum stating that the school district business manager was considering contracting out custodial services for July 1, 1996, to June 30, 1997, to save costs and improve services. The president of the association wrote to the school board on March 28, 1996, requesting "to negotiate over the impact of the implementation of the sub-contracting for custodial services." The school board agreed to negotiate over the impact, and the parties met on April 17. As no decision to subcontract had yet been made, the issue was discussed only in general terms.

On May 2, 1996, the school board voted to authorize the business manager to execute a contract with a maintenance company for custodial services from July 1, 1996, to June 30, 1997. On May 9, 1996, the association filed a grievance alleging that the school board violated the collective-bargaining agreement by contracting out the custodial work. This grievance proceeded to arbitration under the agreement.¹ On June 12, 1996, the association president wrote the superintendent and, for the first time, requested negotiation over the decision to subcontract itself, not just the impact thereof. This letter was followed by one, dated June 27, 1996, from the Vermont-NEA UniServ District # 1 Director, informing the superintendent of the association's intention to file an unfair-labor-practice charge as a result of the subcontracting decision. On July 1, 1996, the subcontracted services began. In a letter dated July 12, 1996, the superintendent responded to the association's representative that the school board would not rescind its decision to subcontract and remained ready to further negotiate the impact of the decision to subcontract.

On July 19, 1996, the association filed a charge of unfair labor practices with the Labor Board, alleging that the school board unilaterally decided to contract out custodial services during the term of a collective-bargaining agreement under which custodial services is bargaining-unit work, in violation of 21 V.S.A. § 1726(a)(5). The school board moved for summary judgment before the Labor Board, arguing that the Labor Board should defer to the grievance procedure of the agreement, and that the association's delay of several months before requesting decisional bargaining constituted a waiver of any such bargaining right in light of the prior request for impact bargaining only. The association did not file an opposition to the motion.² In a decision issued June 6, 1997, the Labor Board denied the school board's summary judgment motion and further ruled that it would not defer the dispute to the arbitration procedure because: (1) the issue of subcontracting is central to the association's ability to protect the bargaining-unit employees; (2) 21 V.S.A. § 1726(a)(5) mandates good-faith bargaining prior to subcontracting work that is done by bargaining-unit employees; and (3) the agreement does not explicitly grant the school board the right to subcontract work without negotiating with the association, and absent such an explicit provision, deferral of the dispute to arbitration is not appropriate. The Labor Board also held that the association did not waive its right to bargain over the subcontracting decision by failing to request bargaining until four months after it was notified that the school board was considering the issue. The Labor Board concluded that the school board committed an unfair practice by unilaterally subcontracting bargaining-unit work during a period when it had a legal duty to bargain in good faith. The school board appeals.

Our review of decisions of the Labor Board is limited. See In re Butler, 166 Vt. 423, 425, 697 A.2d 659, 661 (1997). We give substantial deference to the Labor Board, see id., and presume its actions are correct and reasonable. See In re Towle, 164 Vt. 145, 148, 665 A.2d 55, 58 (1995). We will uphold the Labor Board's order if the findings, taken as a whole, justify its ultimate conclusion, see In re West, 165 Vt. 445, 449, 685 A.2d 1099, 1102 (1996), even if we would not have reached the same decision. See Butler, 166 Vt. at 425, 697 A.2d at 661. Nevertheless, this Court will reverse Labor Board decisions if they are not supported by the evidence, see Vermont State Colleges Faculty Fed'n v. Vermont State Colleges, 152 Vt. 343, 348, 566...