In re Grievance of Michael Welch (Vermont State Employees’ Association, Appellant)
No. 2019-075
Supreme Court of Vermont
July 31, 2020
2020 VT 72
EATON, J.
On Appeal from Labor Relations Board. December Term, 2019. Richard W. Park, Chair.
NOTICE: This opinion is subject to motions for reargument under
Timothy Belcher, Vermont State Employees’ Association, Montpelier, for Appellant/Cross-Appellee.
Thomas J. Donovan, Jr., Attorney General, and Laura C. Rowntree, Assistant Attorney General, Montpelier, for Appellee/Cross-Appellant State.
PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Wesley, Supr. J. (Ret.), Specially Assigned
¶ 1.
¶ 2. Between 2007 and 2015, grievant worked as a state transport deputy sheriff with the Orange County Sheriff‘s Department (OCSD). In 2015, he was hired by the DLC as a liquor-control investigator. The State determined that while working as a transport deputy, grievant had been a county employee, and therefore he was not eligible for salary and leave benefits available under the CBA to certain prior State employees beginning another State job. The VSEA then filed the instant grievance1 alleging that the State violated the CBA by failing to pay grievant at the contractually required step and failing to calculate his leave accrual at the contractually required rate. After considering the parties’ positions, the Board concluded that, for purposes of compensation and benefits, transport deputies are State employees exempt from the classified service. As a result, it found that the State violated Articles 30, 31, and 62 of the CBA in denying grievant compensation and leave benefits to which he was entitled. However, the Board determined that the State did not violate Article 45 because the promotional pay rate available thereunder applied only to those transferring between positions in the State classified service.
¶ 3. The State appeals the former conclusions, and the VSEA appeals the latter. In doing so, both challenge the Board‘s interpretation of the terms of a collective bargaining agreement, a matter at the heart of the Board‘s special expertise. In re Grievance of VSEA, 2014 VT 56, ¶ 21, 196 Vt. 557, 99 A.3d 1025 (applying “deferential standard of review” where Court‘s “main task [on] appeal is to review the Board‘s interpretation of terms of the collective bargaining agreements between VSEA and the State“). On appeal from such a decision, we therefore review the Board‘s findings and conclusions with substantial deference. In re Jewett, 2009 VT 67, ¶ 25, 186 Vt. 160, 978 A.2d 470 (deferring to Board‘s “construction of the collective bargaining agreement, given [its] expertise in that area“). As a result, it is necessary to recount the factual findings supporting the Board‘s decision in some depth.
¶ 4. The Board found the following relevant facts. Each of Vermont‘s fourteen
¶ 5. In 2007, the OCSD hired grievant, who it had employed as a part-time deputy sheriff, as a full-time transport deputy sheriff. Transport deputies are responsible for transporting persons in the custody of the State or its agents between facilities and courts within and outside Vermont. In addition to their transport-related responsibilities, they also perform general law-enforcement duties within their respective counties as needed. Pursuant to
¶ 6. Upon being hired as a transport deputy, grievant received a packet of materials from DSAS. Several of the materials indicated that grievant was receiving them as a State employee or an exempt State employee, and the packet included multiple personnel policies and procedures applicable to State employees, including some relating to sick and annual leave. Grievant was issued a State identification (ID) card, State employee number, and State email address. The State identified itself to the Internal Revenue Service as grievant‘s employer.
¶ 7. In April 2015, grievant applied for a position as a liquor-control investigator with the DLC. Both grievant and the DLC had questions concerning the compensation and benefits that would be extended to grievant should he be hired into the position. Upon inquiry, representatives of the Labor Relations Division of the Department of Human Resources (DHR) advised grievant that a recent Board decision regarding the administrative secretaries employed by state‘s attorneys’ offices had clarified that transport deputies are county employees, and, as a result, if grievant were hired, he would be “processed as a new hire” and would not receive the contractual benefits afforded those hired from another State position. See VSEA Petitions for Election, Nos. 14-30, 14-31, 14-32, 14-33, 14-34, 14-35, 14-48, 14-49, 33 VLRB 119, 2014 WL 5822856 (Vt. Lab. Rel. Bd. Nov. 3, 2014).
¶ 8. The DLC subsequently offered grievant the position, and he accepted. Effective June 1, 2015, he began his new employment. As a result of being processed as a new hire, grievant‘s pay decreased from $21.72 per hour in his prior position to $20.43 per hour in his new role. His sick- and annual-leave accrual rates fell from 4.62 to 4.27 hours per pay period. When grievant applied for prior-service credit on the basis of his employment as a transport deputy, the DHR denied his application
¶ 9. One month later, this Court reversed the Board ruling relied on by the DHR in support of that conclusion. See In re Election Petitions, 2016 VT 7, 201 Vt. 123, 136 A.3d 213. A DHR employee emailed grievant to advise that the State read the Court‘s opinion to designate transport deputies as municipal employees, and, as a result, the State had not changed its position as to grievant‘s reemployment rights under the CBA. The VSEA then filed this grievance, alleging an ongoing violation of the applicable CBA2 through the State‘s failure to recognize grievant‘s prior employment as State service.
¶ 10. As discussed supra, ¶ 3, we presume decisions within the scope of the Board‘s expertise to be “correct, valid and reasonable.” Vt. State Emps. Ass‘n v. State, 2009 VT 21, ¶ 19, 185 Vt. 363, 971 A.2d 641. We will uphold the Board‘s factual findings “so long as credible evidence fairly and reasonably supports them, even if we would not have reached the same decision,” reversing only for clear error. Grievance of VSEA, 2014 VT 56, ¶ 22 (“Such findings will stand even if there exists substantial evidence contrary to the challenged findings.” (quotation omitted)). If these findings, taken as a whole, justify the Board‘s ultimate conclusion, we will affirm. See In re West, 165 Vt. 445, 448, 685 A.2d 1099, 1102 (1996) (“Interpretations of collective bargaining agreements are within the particular expertise of the Board, and we review such interpretations with great deference to the Board‘s expertise.“).
¶ 11. Bearing in mind that this standard of review calls for “an even lighter touch than . . . a typical contract dispute,” we nonetheless review the Board‘s interpretation of the CBA pursuant to traditional principles of contract law. In re Kelley, 2018 VT 94, ¶ 12, 208 Vt. 303, 198 A.3d 44. Accordingly, we look first to the plain language of the agreement to discern the parties’ intent. West, 165 Vt. at 450, 683 A.2d at 1103. Where that language is clear and unambiguous, we are obligated to enforce it as written. Id. To address the threshold question of whether an ambiguity exists in a CBA, “limited extrinsic evidence, including the circumstances surrounding the making of the agreement as well as the object, nature and subject matter of the writing” may be brought to bear. In re Spear, 2014 VT 57, ¶ 15, 196 Vt. 517, 99 A.3d 618 (quotation omitted). If the language is thereafter found ambiguous as a matter of law, the question of the parties’ intent must be put to the trier of fact. Kelley, 2018 VT 94, ¶ 11.
I. Articles 30, 31, and 62
¶ 12. We turn first to the State‘s cross-appeal. Article 62 of the CBA is entitled “Reemployment.” It provides that a State employee who, following termination or transfer of prior employment “as a permanent status employee (i.e., having successfully
¶ 13. Before the Board, the State argued that transport deputies are county employees, while the VSEA maintained that they are either exempt State employees or jointly employed by the State and the relevant county sheriff‘s department. To determine whether transport deputies are “permanent status” or “exempt” employees under Article 62, the Board first looked to
¶ 14. The Board held that
¶ 15. Because the VSEA alleged, in the alternative, that grievant was jointly employed
¶ 16. First, it noted that while the State and the OCSD were distinct entities operating separately for many purposes, some aspects of the employer relationship with transport deputies were handled by the sheriff, and others by the State. Significantly for purposes of the reemployment rights at issue, the Board found that the State controlled “[m]ajor components of compensation and benefits for State Transport Deputy Sheriffs.” It observed that, upon being hired in 2007, grievant received a packet of materials from DSAS, a part of the State government; some of the materials indicated that grievant was receiving them as a State employee or exempt State employee. The packet included a document entitled “State of Vermont Personnel Policies and Procedures.” These policies and procedures, some of which related to sick and annual leave, applied to State employees. The Board also observed that grievant had been assigned a State employee number and State email address, as well as being issued a State ID card. Further, the State had reported to the Internal Revenue Service that it was grievant‘s employer. On this basis, the Board concluded that the State and the OCSD jointly employed grievant while he was a transport deputy, and that those portions of the employment relationship involving compensation and benefits were controlled by the State. Specifically, the Board concluded that “grievant was an exempt state employee with respect to compensation and benefits when he was employed as [a] state transport deputy sheriff.”
¶ 17. The Board then turned to the State‘s rejoinder: that transport deputies could not be exempt State employees as argued by the VSEA because they were not listed among the categories specifically exempted from the State classified service in
¶ 18. Because the Board found that grievant was an exempt State employee for purpose of wages and benefits, it held that under Article 62 he was entitled to reemployment credit upon his successful completion of his probationary period with the DLC, and the State therefore erred when it declined to grant him prior-service credit for purposes of annual- and sick-leave accrual as set forth in Articles 30 and 31. It concluded that the appropriate remedy for the State‘s violation of these provisions of the CBA was retroactive adjustment of his annual- and sick-leave balances from the time he completed his probationary period as a liquor-control investigator.
¶ 19. On appeal, the State argues that the Board‘s conclusion was in error because the Board inappropriately grafted a joint-employer analysis into
¶ 20. Before addressing the State‘s argument as to
¶ 21. The State begins its argument by pointing out that the purpose of
¶ 22. Because the transport-deputy position is created by statute, it was well within the Board‘s discretion to look to the language of that statute in determining whether the drafters of the CBA intended that those in grievant‘s position be designated
¶ 23. The State also argues that the Board erred in applying the joint-employer analysis here, arguing that in In re Election Petitions, 2016 VT 7, this Court confined the scope of such reliance. In that case, the question was whether the administrative secretaries employed by state‘s attorney‘s offices pursuant to
¶ 24. Although we did not thereby “purport to expand the scope of the ‘single employer’ or ‘joint employer’ theories,” neither did we purport to confine them. Id. ¶ 27. Rather, we found the principles underlying the theories a helpful aid in analyzing the complex labor relations among the State and a municipal officer where the rights and responsibilities of an employer were shared between the two entities and a joint-employer relationship was alleged. Id. In this case, the Board was charged with determining whether grievant was correct in alleging that state transport deputies are jointly employed by the State with respect to wages and benefits. The Board again acted well within its broad discretion in determining that the principles underlying the joint-employer analysis—found instructive in In re Election Petitions—had similar utility in the analogous situation presented here. See Kelley, 2018 VT 94, ¶ 12. In re Election Petitions thus supports, rather than undermines, the mode of analysis applied by the Board here.
¶ 25. Having determined that the joint-employer analysis was appropriately applied, we turn to the State‘s alternative argument that the Board erred in how it applied that analysis here. The State first contends that the Board incorrectly relied on various facts—including the packet of materials sent to grievant upon his employment as a transport deputy in 2007 and the fact that the State represented that it was grievant‘s employer for federal taxation purposes—to support the conclusion that he was employed by the State, observing that these documents were created pursuant to self-limiting statutes regarding retirement, benefits, and federal tax law, which did not create employment relationships. However, this argument ignores the reality that “[t]he Board‘s findings will withstand appellate review if they are supported by more than a mere scintilla of evidence and are not clearly erroneous.” Rosenberg v. Vt. State Colls., 2004 VT 42, ¶ 9, 176 Vt. 641, 852 A.2d 599 (mem.). As set forth supra, ¶ 16, the Board considered multiple facts with respect to its joint-employer analysis, including that the State issued grievant a State employee number, email address, and ID card. The State does not challenge these findings, which are neither a “mere scintilla of evidence” nor “clearly erroneous.” Rosenberg, 2004 VT 42, ¶ 9; see also Grievance of VSEA, 2014 VT 56, ¶ 22 (observing that unless clearly erroneous, Board‘s “findings will stand even if there exists substantial evidence contrary to the challenged findings“). As a result, we need not reach the merits of the State‘s argument that the Board should not have relied on the other facts it considered.
¶ 26. The State also alleges that the outcome of In re Election Petitions, 2016 VT 7, ¶ 34, militates in favor of a different result with respect to the joint-employer analysis, since we explained there that compensation was not a dispositive factor. The State further noted that of all of the positions within the county offices, transport deputies and secretaries are the most similar, because both are paid by the State and designated by statute as not county employees for all purposes, leading to a conclusion that transport deputies should also be classified municipal employees under In re Election Petitions. This argument fails for two reasons. First, regardless of the similarities between administrative secretaries and transport deputies, “[t]he issue of who is the employer is a case-by-case determination.” Election Petitions, 2016 VT 7, ¶ 26 (holding municipal entity was employer for purposes of MERA). Second, a close reading of the Board‘s decision does not support the conclusion that it treated the fact that transport deputies are paid by the State as dispositive with respect to the joint-employer analysis. We held in In re Election Petitions that although the statute “requires that secretaries be paid as state employees, it also recognizes that they will be hired and work for a county employer, which makes them a municipal employee under MERA.” Id. ¶ 35. Similarly, the Board recognized here that although State Transport Deputies work for a county employer, they are paid as State employees. In re Election Petitions does not foreclose the result reached by the Board here.
¶ 27. The Board acted within its discretion when it concluded that grievant‘s prior employment as a transport deputy was State service, and that the State had violated Articles 30, 31, and 62 of the CBA in failing to afford grievant benefits and compensation
II. Article 45
¶ 28. We turn now to the VSEA‘s appeal from the Board‘s determination that only members of the classified service entering another position in the classified service of a higher pay grade are eligible for promotion pursuant to Article 45 of the CBA.
¶ 29. Under Article 45,
upon promotion, upward reallocation or reassignment of a position to a higher pay grade, an employee covered by this Agreement shall receive a salary increase by being slotted into that step of the new pay grade which would reflect an increase of at least five percent (5%) over the salary rate prior to promotion.
To interpret this provision, the Board looked to the agreement‘s appendix, which defines “promotion” as “a change of an employee from a position of one class to a different position of another class assigned to a higher pay grade.” The Board then found “pertinent” the definition of “classified position,” which, as used in the CBA, means “a position in the State classified service which is assigned to a class and appointment to which is made in accordance with merit principles.” On this basis, the Board held that Article 45 only applies to employees “mov[ing] from one position in the classified service to another position in the classified service of a higher pay grade.” Therefore, it concluded that the State did not violate the provision because it had determined that grievant was “an exempt state employee with respect to compensation and benefits when he was employed as [a] state transport deputy sheriff.”
¶ 30. The VSEA argues that the Board‘s conclusion is incorrect because, rather than the definition of “classified position,” it should have looked to the CBA‘s definition of “position“: “a group of current duties and responsibilities normally requiring the full-time or part-time employment of only one (1) person.” We agree. The CBA is unambiguous. See Isbrandtsen v. N. Branch Corp., 150 Vt. 575, 577, 556 A.2d 81, 83 (1988) (“A provision in a contract is ambiguous only to the extent that reasonable people could differ as to its interpretation.“). The definition of “classified position” was not implicated by the definition of “promotion.” To shed light on the phrase “position of one class,” the Board should have looked to the separate definitions of “position” and “class” rather than the definition of “classified position.” The CBA defined “class” as “one (1) or more positions sufficiently similar as to the duties performed, degree of supervision exercised or received, minimum requirements of training, experience, or skill, and such other characteristics that the same title, the same test of fitness, and the same pay grade may be applied to each position.” Because the CBA is not limited to classified employees, and Article 45 refers only to “an employee covered by this agreement,” resort to the correct definitions leads to the conclusion that a position may be assigned to a class for purposes of determining pay grade without being part of the classified service. Thus, despite our deferential review, we must reverse as unsupportable the Board‘s determination that grievant was not covered by Article 45 of the CBA. See Grievance of Gorruso, 150 Vt. at 143, 549 A.2d at 634 (noting substantial deference but nonetheless reversing where “we find the Board‘s construction of the [CBA] to be unsupportable“). Accordingly, the matter is remanded for calculation of the amount that grievant is owed under Article 45 of the CBA.
Affirmed as to Articles 30, 31, and 62, reversed as to Article 45, and remanded
FOR THE COURT:
Associate Justice
Notes
(a) A sheriff‘s department is established in each county. It shall consist of the elected sheriff in each county, and such deputy sheriffs and supporting staff as may be appointed by the sheriff. Full-time employees of the sheriff‘s department, paid by the county, shall be county employees for all purposes but shall be eligible to join the State Employees Retirement System, provided the county shall pay the employer‘s share. . . .
(b) Full-time deputy sheriffs whose primary responsibility is transportation of prisoners and persons with a mental condition or psychiatric disability shall be paid by the State of Vermont. The appointment of such deputies and their salary shall be approved by the Governor or his or her designee. The Executive Committee of the Vermont Sheriffs Association and the Executive Director of the Department of State‘s Attorneys and Sheriffs shall jointly have authority for the assignment of position locations in the counties of State-paid deputy sheriffs and shall review the county location assignments periodically for efficient use of resources.