Vermont State Employees' Ass'n on Behalf of Brady, In re, 54-80

• Decision Date: 24 April 1981
• Docket Number: No. 54-80,54-80
• Citation: 431 A.2d 474,139 Vt. 501
• Court: Vermont Supreme Court
• Parties: , 25 Wage & Hour Cas. (BNA) 905 In re Grievance of VERMONT STATE EMPLOYEE'S ASSOCIATION on behalf of Hugh Brady, et al.

Page 474

431 A.2d 474

139 Vt. 501, 25 Wage & Hour Cas. (BNA) 905

In re Grievance of VERMONT STATE EMPLOYEE'S ASSOCIATION on

behalf of Hugh Brady, et al.

No. 54-80.

Supreme Court of Vermont.

April 24, 1981.

Michael R. Zimmerman, Montpelier, for petitioners.

M. Jerome Diamond, Atty. Gen., and Bennett Evans Greene, Asst. Atty. Gen., Montpelier, for defendant.

Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ. UNDERWOOD, Justice.

The grievants, Hugh Brady and others similarly situated, are all permanent status, full time employees of the State of Vermont, as social workers in the Department of Social and Rehabilitation Services (the Department). One of the responsibilities of the Department is to provide around the clock protective services in relation to child abuse, child neglect, unmanageables and delinquents.

Prior to 1979 each district office handled off-duty coverage of these responsibilities in its own way. The Department had no stated policy. In general, the solution to the problem of off-duty coverage was to use a commercial answering service for each district office. The answering service would be given a random list of all workers connected to that district office. It would then call, one at a time, each worker whose name appeared on the list until some worker was reached at his home who would agree to assume the responsibility of the incoming call.

In 1979 all workers were governed by the terms and conditions of employment set forth in the agreement between the State of Vermont and the Vermont State Employee's Association (VSEA), the bargaining representative for the workers. Article XXI of that agreement provides:

(a) "On call" is defined as a requirement that an employee remain on or so close to either the employer's or employee's premises that he cannot use the time effectively for his own purposes.

(b) An employee who is merely required to leave word at his home or with the appointing authority where he may be reached is not on call; however, appointing authorities in cooperation with the Department of Personnel are urged to work out alternative compensation methods, such as compensatory time off, for employees who are required to leave word where they may be reached and must be within any specific distance or time of their employer's premises.

Paragraph (b) does not mention the term "availability" when referring to an employee who is not "on call."

The Department of Personnel, working in cooperation with the Department of Social and Rehabilitation Services, first used the term "availability" when referring to the need for employees' services during off-duty hours. Unfortunately, the policy statement promulgated by the Department in April 1979 in a written document entitled "Draft Policy," while using the term "availability," did not clearly define the employees' responsibilities with respect to emergency call matters, or the conditions of expected employee availability to deal with these emergencies during off-duty hours, or the distinction between being "available" and being "on call."

The district supervisors who had to make the appointments of workers to cover off-duty hour emergencies, and the workers themselves, were confused by the policy statement. The Draft Policy did indicate that each district supervisor, with the approval of the commissioner, would designate which employee would be available each week to take the emergency calls and/or provide service responses during off-duty hours. The employee so appointed would perform those services for one full week, in addition to his regular job, "in a manner and in a time-frame considered appropriate for services rendered during duty hours." An employee so designated would not be paid in cash for time during which he was available, but would receive one compensatory day off for each full week of availability. For any hours that the available employee actually worked in responding to or performing emergency duties he would be compensated at overtime rates as established pursuant to the agreement between the State and VSEA.

The Department tried to further clarify its concept of "availability" by issuing interoffice memos and directives. In one such directive it indicated that being "available" differs from being "on call" in that the employee need only be reachable, or available, to be consulted within a reasonable period of time. He need not remain at the employer's place of business or at the employee's usual duty station, and is free to use the time for his private purposes. The only limitation imposed on the employee during his period of "availability" is that a person attempting to reach him should be able to do so in a reasonable period of time. A person "on call," however, whether at the employer's place of business, his own duty station or at home, had to remain at that designated location so as to respond immediately to work requirements.

The grievants sought overtime compensation for times when they were designated to be "available" during off-duty hours on the ground that they were in fact "on call." Their requests were denied. The VSEA appealed on their behalf to the Vermont Labor Relations Board (the Board) who dismissed the appeal. The VSEA then appealed that decision to this Court.

The question presented is whether the appellants, under the provisions of the agreement between the State and the VSEA, who were also subject to the Department's Draft Policy on "availability," were in fact "on call" and entitled to overtime compensation. In short, were the employees waiting to be engaged or engaged to wait?

The Board found that one of the grievants, who worked out of the Burlington district office, which used "beepers" instead of telephones to contact workers within a 35 mile radius of Burlington, felt it necessary to remain at her home when she was assigned duty as an "available" worker.

Another grievant, who worked out of the Rutland district office which used the telephone to contact "available" workers, felt that this duty limited his personal time. Although he was able to attend church and go to the store for groceries, he felt that he was unable to sleep in a room away from a telephone, take a trip out of state, or go fishing on a...