Grievance of Darwin Merrill

596 A.2d 345, 157 Vt. 150, 1991 Vt. LEXIS 155
CourtSupreme Court of Vermont
DecidedJuly 5, 1991
Docket89-603
StatusPublished
Cited by9 cases

This text of 596 A.2d 345 (Grievance of Darwin Merrill) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grievance of Darwin Merrill, 596 A.2d 345, 157 Vt. 150, 1991 Vt. LEXIS 155 (Vt. 1991).

Opinion

Johnson, J.

The State of Vermont appeals from an order of the Vermont Labor Relations Board awarding grievant back pay, following the Board’s 1985 decision reinstating him to his position as chief of the CRASH program and this Court’s affirmance of that decision in In re Merrill, 151 Vt. 270, 559 A.2d 651 (1988). We affirm in part and reverse in part and remand the matter for further consideration in light of this opinion.

Grievant was fired from his job on October 5, 1984, and on October 3,1985, the Board ruled that he had been unjustly fired and reinstated him to his former position. The State appealed that decision to this Court and successfully opposed grievant’s superior court motion for reinstatement pending appeal.

*152 While awaiting the outcome of his appeal, grievant first worked for more than two years as a truck driver. In 1987 he and a partner began a business selling breathalizer devices. Grievant loaned the venture $21,000. The partnership agreement provided that grievant’s partner would receive a salary of $12,000 per year, and that grievant would receive no salary. Grievant began by working nights and weekends for the business, while his partner worked full-time. Grievant devoted full-time to the partnership, however, from May 1988 to April 1989, when this Court affirmed the Board’s decision upholding his grievance and he resumed his position. The partnership grossed $75,000 during 1988, and, after deduction of the $12,000 salary for grievant’s partner, showed a net loss of $3,820 for that year. During the life of the partnership, there were no funds to repay the loan or to pay grievant any salary.

Upon reinstatement, grievant sold his interest in the business to his partner. The sale agreement provided that grievant would recover his initial investment of $21,000 and receive another $14,000, which the Board found was “in recognition of the value of the partnership.” A note, secured by a second mortgage on the partner’s house, called for interest payments only for the first twelve months, and payments of principal and interest thereafter. Grievant received no other return from his investment in the partnership.

The Board conducted a hearing on back pay on July 20,1989, and issued a preliminary order on October 5, 1989, which rejected the State’s argument that the $14,000 excess return over grievant’s loan to the partnership should be considered earnings in computing the mitigation of damages. A final order was issued on November 2, 1989, after the parties stipulated to an interest calculation based on net pay during the period, rather than gross pay, which would have favored grievant.

The State appealed to this Court, but later moved for a partial remand to correct the amount arrived at by stipulation, after it discovered a mathematical error that dramatically increased the total interest on the accumulated back pay. Grievant opposed the remand, but this Court ordered the Board to consider the claim of mistake, and the Board conducted a hearing on March 22, 1990. On May 31, 1990, the Board permitted correction of the error, but also amended the prior order to al *153 low computation of interest on the basis of gross, rather than net, pay, in accordance with an argument raised by grievant at the hearing on the State’s motion.

Adding to its original appeal, which had been retained by this Court, the State took exception to that part of the Board’s order on remand recomputing interest on the basis of gross pay. The State argued that the Board went beyond the terms of the limited remand in considering the question.

The State argues on appeal that the Board should have restricted its reopened proceedings to the issue raised by the State, namely the mathematical error. We do not agree. It is true that this Court granted the State’s “motion for an order remanding the instant matter to the Vermont Labor Relations Board in order to rule on [the State’s] motion to reopen.” (Emphasis added.) Upon remand, the Board decided to reopen its November 2,1989 order and to correct “the obvious error made by the State in calculating interest due on back pay.” It was careful to point out that in reopening the order, it was exercising its discretion, based on V.R.C.P. 60(b)(6), * which allows for relief from a final order for “any other reason justifying relief from the operation of the judgment.” The central theme of this provision is the prevention of hardship or injustice. Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 149 Vt. 365, 368, 543 A.2d 1320, 1322 (1988). A grant of relief from judgment under Rule 60(b) “is not subject to appellate review unless it clearly and affirmatively appears from the record that such discretion was withheld or otherwise abused.” R. Brown & Sons, Inc. v. International Harvester Corp., 142 Vt. 140, 143, 453 A.2d 83, 85 (1982).

In the present case, the Board’s November 2, 1989 order was based on a stipulation that included a concession by grievant to calculation of interest on the basis of net pay. But that concession was made in the context of an aggregate amount of back pay that was satisfactory to grievant, albeit based on a mistaken calculation. The State is asking the Board and this Court to alter a mutual agreement in the State’s favor *154 without allowing grievant to withdraw a concession that was based on that agreement. To the extent the stipulation constituted a waiver of the claim to interest on gross back pay, the waiver was conditional and was discharged by the State’s own motion to reopen. In light of the Board’s duty under Rule 60(b)(6) to prevent injustice in reopening, it did not err in considering issues of equity raised by both parties.

On the merits, this Court will not disturb the Board’s findings unless they are clearly erroneous. In re Muzzy, 141 Vt. 463, 470, 449 A.2d 970, 973 (1982). The practice of awarding interest on back pay awards under the National Labor Relations Act (FELA) dates back to at least 1962. See Isis Plumbing & Heating Co., 138 N.L.R.B. 716 passim (1962), enforcement denied on other grounds, 322 F.2d 913 (9th Cir. 1963). It has been the practice of the National Labor Relations Board (hereinafter NLRB) to consider the entire amount of back pay as the basis for interest awards. See, e.g., Florida Steel Corp., 231 N.L.R.B. 651, 652 (1977)(“interest to accrue ... on the total amount then due and owing”). We are aware of only one case under the FELA that has considered the question of whether interest on back pay should apply to net or gross pay, Inta-Roto, Inc., 267 N.L.R.B. 1026 (1983).

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Bluebook (online)
596 A.2d 345, 157 Vt. 150, 1991 Vt. LEXIS 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grievance-of-darwin-merrill-vt-1991.