In re Grievance of VSEA

2014 VT 56, 99 A.3d 1025, 196 Vt. 557, 2014 WL 2808602, 2014 Vt. LEXIS 66, 199 L.R.R.M. (BNA) 3826
CourtSupreme Court of Vermont
DecidedJune 20, 2014
Docket2013-316
StatusPublished
Cited by5 cases

This text of 2014 VT 56 (In re Grievance of VSEA) 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
In re Grievance of VSEA, 2014 VT 56, 99 A.3d 1025, 196 Vt. 557, 2014 WL 2808602, 2014 Vt. LEXIS 66, 199 L.R.R.M. (BNA) 3826 (Vt. 2014).

Opinion

Dooley, J.

¶ 1. Vermont State Employees’ Association (VSEA) appeals a decision of the Vermont Labor Relations Board, which found that the State of Vermont was not required to give certain compensation to state employees in the weeks and months following Tropical Storm Irene. VSEA contends that the Board erred in interpreting certain terms of the emergency closing provision of the collective bargaining agreements between the State and VSEA. We affirm.

¶ 2. On Sunday, August 28, 2011, Tropical Storm Irene passed through Vermont, causing massive flooding throughout the state. The storm had a particularly devastating effect on the complex of state buildings in Waterbury. 1 The Waterbury complex housed the Agency of Human Services, the Agency of Natural Resources and the Department of Public Safety. 2 The complex lies near the Winooski River, which overflowed its banks and entered the buildings in the complex, rendering most of them unusable to this day.

¶ 3. Governor Peter Shumlin authorized the complete closure of Vermont state government on Monday, August 29. The closure *559 notice stated that only authorized critical staff persons should report for work. That total government closure was authorized for only one day.

¶ 4. In the days that followed, various work arrangements were necessary because the Waterbury complex was generally unusable. The Vermont Department of Human Resources (DHR) indicated that agencies with offices in the complex had implemented their Continuity of Operations Plans (COOP). These plans allow only specifically authorized critical staff to work in order to continue an agency’s essential functions during and immediately following an emergency situation. All other employees in the ■ complex were instructed that they “should not report to work unless specifically authorized to do so by a supervisor.”

¶ 5. Eventually, most of the state employees in the complex were assigned to new work stations as agencies moved their operations. At first, there was uncertainty about the work requirements and compensation for state employees who had worked in the complex. Over time, management reached a position on those policies. The position was unacceptable to VSEA, the union that represents the state’s classified employee workforce. VSEA charged that the State’s position was inconsistent with three collective bargaining agreements as well as a state personnel policy. When the parties could not resolve the conflict, VSEA appealed to the Vermont Labor Relations Board. Three different contracts between VSEA and the State are implicated in this case: (1) the Non-Management Unit Bargaining Contract effective July 1, 2010 to June 30, 2012; (2) the Supervisory Bargaining Unit Contract effective July 1, 2010 to June 30, 2012; and (3) the Corrections Bargaining Unit Contract effective July 1, 2010 to June 30, 2012. The three contracts share many of the same articles. Pertinent portions of these contracts relate to emergency closings, location reassignments, and various types of compensation.

¶ 6. The emergency closing article, 3 which is substantially the same in all three contracts, provides:

1. Management shall decide when, if, and to what extent State facilities shall remain open *560 or closed during emergencies, such as adverse weather conditions, acts of God, equipment breakdown, inoperable bathroom facilities, extreme office temperatures, etc.
3. In facilities that must remain operational despite emergency conditions, continued operations with a reduced work force may be authorized. In such instances, employees who are authorized to leave work early may do so without loss of pay or benefits. Employees who are required to remain at work shall receive compensatory time at straight time rates.
4. An employee who is unable to report to work due to weather or other emergency conditions shall have the absence charged against accumulated compensatory time or annual leave, in that order.
5. If management authorizes the complete closing of a State office or facility for emergency reasons, employees who leave the workplace shall receive their regular pay for time they are out óf the closed office.
6. Employees required by management to work during complete emergency closings under (5) above, shall receive hourly pay at straight time rates for the hours so worked. This payment will be in addition to the employees’ regular pay.

¶ 7. The employee workweek/work location/work shift 4 provision, Article 20 of all three contracts, indicates in part:

3. SELECTION FOR ASSIGNMENT TO A NEW SHIFT/ NEW WORKWEEK/NEW GEOGRAPHIC AREA
*561 (a) Subject to the operating needs of a Department, as determined by the appointing authority, which may require the assignment (for fifteen (15) 5 days or more) of any employee to a different or new shift, workweek, or geographic area, the State will select qualified volunteers first, after which selection shall be in reverse order of (continuous State service) seniority, i.e., the most junior employee(s) will be selected.
(c) The State will give two (2) weeks’ prior notice of any such assignment to a new shift or new workweek, or four (4) weeks prior notice in the case of an assignment to a new geographic area, 6 and will try to accommodate those persons who need extra time to make the change or move. The State will also try to give additional notice of such changes or moves if feasible.

¶ 8. A “geographic area” is defined in the contracts as “the area within a thirty-five (35) mile radius of an employee’s regular duty station.” A “duty station” is not defined. “Official notice” is defined as “written communication from the appointing authority to an employee.”

¶ 9. The annual leave 7 provision reads:

(n) Vacation scheduling is the exclusive prerogative of the appointing authority. Leave must be requested in advance by the employee and is subject to approval by the appointing authority or his or her delegated representa *562 tive. Such approval shall not be unreasonably withheld ....
(o) An employee shall not be charged annual leave for absence on a legal holiday or on an administrative holiday.

¶ 10. The State Personnel Policy Number 11.3 also provides direction regarding emergency closings as follows:

PURPOSE AND POLICY STATEMENT

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Bluebook (online)
2014 VT 56, 99 A.3d 1025, 196 Vt. 557, 2014 WL 2808602, 2014 Vt. LEXIS 66, 199 L.R.R.M. (BNA) 3826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-grievance-of-vsea-vt-2014.