Vermont State Employees' Ass'n on Behalf of Brady, In re, No. 54-80

Docket NºNo. 54-80
Citation431 A.2d 474, 139 Vt. 501
Case DateApril 24, 1981
CourtUnited States State Supreme Court of Vermont

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.

[139 Vt. 502] Michael R. Zimmerman, Montpelier, for petitioners.

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

Before [139 Vt. 501] BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.

[139 Vt. 502]

Page 475

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 [139 Vt. 503] 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,[139 Vt. 504] 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...

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2 practice notes
  • Grievance of Towle, In re, No. 94-207
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 25 Agosto 1995
    ...to defend himself prior to his termination. II. We treat the Board's decisions with deference. See In re Vermont State Employees Ass'n, 139 Vt. 501, 506, 431 A.2d 474, 477 (1981). We presume that the Board's actions are correct and reasonable, see International Ass'n of Firefighters Local 2......
  • Carlson, In re, No. 268-80
    • United States
    • 2 Febrero 1982
    ...of fact will be reversed only if they are clearly erroneous. In re Grievance of Vermont State Employee's Association (Hugh Brady), 139 Vt. 501, 506, 431 A.2d 474, 477 (1981). The Board's expertise in construing collective bargaining agreements is presumed, and substantial deference is accor......
2 cases
  • Grievance of Towle, In re, No. 94-207
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 25 Agosto 1995
    ...to defend himself prior to his termination. II. We treat the Board's decisions with deference. See In re Vermont State Employees Ass'n, 139 Vt. 501, 506, 431 A.2d 474, 477 (1981). We presume that the Board's actions are correct and reasonable, see International Ass'n of Firefighters Local 2......
  • Carlson, In re, No. 268-80
    • United States
    • 2 Febrero 1982
    ...of fact will be reversed only if they are clearly erroneous. In re Grievance of Vermont State Employee's Association (Hugh Brady), 139 Vt. 501, 506, 431 A.2d 474, 477 (1981). The Board's expertise in construing collective bargaining agreements is presumed, and substantial deference is accor......

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