Vermont State Colleges Faculty Federation v. Vermont State Colleges, 87-224

• Decision Date: 12 May 1989
• Docket Number: No. 87-224,87-224
• Citation: 566 A.2d 955,152 Vt. 343
• Parties: , 57 Ed. Law Rep. 501 VERMONT STATE COLLEGES FACULTY FEDERATION v. VERMONT STATE COLLEGES.
• Court: Vermont Supreme Court

Page 955

566 A.2d 955

152 Vt. 343, 57 Ed. Law Rep. 501

VERMONT STATE COLLEGES FACULTY FEDERATION v. VERMONT STATE COLLEGES.

No. 87-224.

Supreme Court of Vermont.

May 12, 1989.

Motion for Reargument Denied Aug. 24, 1989.

Michael T. Schein of Hoff, Wilson, Powell & Lang, Burlington, for plaintiff-appellee.

Paul K. Sutherland of Sutherland Associates, Burlington, and Nicholas DiGiovanni, Jr. of Morgan, Brown & Joy, Boston, Mass., for defendant-appellant.

Before ALLEN, C.J., PECK and DOOLEY, JJ., and BARNEY, C.J. (Ret.) and KEYSER, J. (Ret.), Specially Assigned.

ALLEN, Chief Justice.

The Vermont State Colleges (VSC) appeal from a decision of the Vermont Labor Relations Board (Board) approving the addition of certain adjunct faculty members employed by VSC to the existing bargaining unit of full-time faculty members and ranked librarians. Although we agree with the Board's conclusion that adjunct faculty who meet certain criteria are "state employees" within the meaning of the State Employees Labor Relations Act (SELRA), 3 V.S.A. § 901 et seq., we disagree with the inclusion of such employees in the same bargaining unit with full-time faculty members. The Board's decision is therefore affirmed in part and reversed in part.

The Vermont State Colleges Faculty Federation, AFT Local 3180 (Federation) filed a Petition for Election of Collective Bargaining Representative with the Board seeking an election to decide whether specific adjunct faculty members employed by VSC desired to join the full-time faculty unit already represented by the Federation. ¹ After several hearings, the Board made the following findings, which are not contested on appeal.

Full-time faculty are hired by VSC through an appointment process involving review of applications and interviews by the dean and departmental committee of the college offering the position. Formal recommendations are then made to the president, who in turn makes the final hiring decision. Those full-time faculty hired receive a one-year contract, and their reappointment during the next three years is presumed unless written notice of nonreappointment is received by March 1 of the previous year. Before April 1 of the fourth year, faculty members receive notice either that their contract of employment will be renewed for an additional two years or that their fifth year of teaching will be their last. Consideration for tenure occurs in the sixth year of employment with a decision on eligibility for tenure being made by May 1 of that year.

Prior to reaching tenured status, a full-time faculty member undergoes a yearly evaluation in the areas of teaching effectiveness, scholarly and professional activity and service to college and community. The faculty member up for renewal, his peers and students and the administration all participate in the evaluation process. Once tenured, a faculty member is reviewed administratively only every five years.

Full-time faculty members have a variety of responsibilities including the requirement that they teach twenty-four credit hours per academic year. They are also assigned as formal advisors to students and must post and maintain reasonable office hours.

The compensation of a full-time faculty member is based upon a salary schedule and may vary depending on degrees received, extent of graduate work, academic rank and years of service. Full-time faculty members are also entitled to accidental death benefits, survivor's benefits, life insurance, long-term disability insurance, medical/dental coverage and a retirement policy.

To supplement its full-time faculty, VSC hires adjunct faculty members. These faculty members are used to teach certain specialty courses and additional sections of commonly offered courses. They are hired on a per semester basis and, on the average, teach only one or two courses a semester.

Each semester an adjunct teaches, he or she must sign a new contract of employment confirming his or her instructional assignment for the semester. Each contract provides, in effect, that employment with VSC is only temporary and does not bestow the same rights and benefits accompanying a regular faculty appointment. The college may discontinue any course along with the contract of the adjunct assigned to teach it if an insufficient number of students enroll. Unlike full-time faculty, adjuncts are not automatically rehired for the next semester when no notification to the contrary is received.

The hiring process is less formal for adjuncts than full-time faculty members. It may involve only a phone call from the academic dean or department chair of the college filling the vacancy without any involved interview or screening.

Adjuncts are compensated according to a "system-wide trustee policy" allowing each college to pay somewhere in the range of $400 to $500 per credit hour taught. They receive no benefits other than this compensation for their services. Adjuncts are not eligible for promotion or tenure and receive no increased job security based on seniority.

Though adjuncts are required to confer with students regarding the subject matter which they teach, they are not required to keep office hours. Nor are they required "to publish, engage in research or perform any scholarly activity as a condition of employment." Also, there is no requirement that adjuncts assist with course registrations. Most adjuncts retain jobs in addition to their teaching positions. Some are even employed by VSC in full-time positions unrelated to teaching.

After several hearings, the Board determined that adjuncts who meet certain prerequisites qualify as "state employees" under 3 V.S.A. § 902(5) and are therefore subject to SELRA. The Board also determined that adjuncts and full-time faculty members share a sufficient community of interest to be included within the same bargaining unit. VSC challenges these determinations on appeal.

I.

VSC contends that it was error for the Board to conclude that those adjuncts with " 'a reasonable expectation of continued employment' " are limited status employees within the meaning of 3 V.S.A. § 902(5) and those with no such expectation are temporary and not subject to the provisions of SELRA. ² According to VSC, the Legislature, while broadening the definition of state employee contained in 3 V.S.A. § 902(5) to include individuals employed on a "limited status" basis, did not intend to bring all part-time employees within the definition. ³ VSC argues that by adding the words "or limited" to the definition while "leaving the phrase 'permanent part-time employee' intact, the Legislature must have intended to restrict the limited status addition to full-time employment only." VSC offers as an explanation for the amendment that "limited status" refers only to nontenured full-time faculty members.

The language of 3 V.S.A. § 902(5), however, suggests otherwise. Reading the statute as a whole, the words "including permanent part-time employees" intimate that such employees are only a part of a larger group of employees that may qualify as "state employees" within the meaning of the statute. The result would be different had the statute been amended to define "state employees" as "individuals employed on a permanent or limited status basis including only those part-time employees employed on a permanent basis." Section 902(5), as reasonably construed, does not preclude the characterization of part-time workers employed on a less than permanent basis as "state employees." See In re A.C., 144 Vt. 37, 42, 470 A.2d 1191, 1194 (1984) (statutes are entitled to a reasonable construction).

VSC next challenges the Board's conclusion that adjuncts "who have a reasonable expectation of continued employment for at least a limited time period and have more than just a tenuous employment relationship" are employed on a limited status basis within the meaning of § 902(5). ⁴ According to VSC, the Board's conclusion is unsupported by the findings. VSC argues that the findings instead support the conclusion that adjuncts are and remain temporary employees throughout their employment with the colleges.

In reviewing the Board's conclusion, this Court may "only ask whether the findings of fact taken as a whole justify the Board's ultimate conclusion." In re Liquor Control Department Non-supervisory Employees, 135 Vt. 623, 625, 383 A.2d 612, 613 (1978). If there is factual support for the Board's conclusion, we will leave it undisturbed.

Here, the Board found that there is much variance among adjuncts in the frequency of their employment. The Board also found that some "adjuncts teach one or more courses during one or both semesters of each academic year" and "[o]thers teach during one or more semesters for an academic year or years, do not teach for a year or years, [and] then resume teaching at some subsequent point." Although it is true that adjuncts are not presumed rehired for each subsequent semester they teach, as are full-time faculty, and that they receive a new contract for each semester of teaching, the Board, based on these findings, could infer that some adjuncts have a reasonable expectation of continued employment, whereas others are temporary. ⁵ Accordingly, the Board's conclusion will remain undisturbed.

VSC's reliance on Keene State College Education Association, NHEA/NEA v. State, 119 N.H. 1, 396 A.2d 1099 (1979), is misplaced. The definition of "public employee" contained in New Hampshire's Public Employee Labor Relations Act (PELRA), NHRSA 273-A:1 et seq., expressly excludes "[p]ersons in a probationary or temporary status, or employed seasonally, irregularly or on call." NHRSA 273-A:1(IX)(d). The fact that full-time lecturers at Keene...