2014 VT 56


In re Grievance of VSEA (Tropical
Storm Irene Emergency Closing) (2013-316)
 
2014 VT 56
 
[Filed 20-Jun-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as
well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions by email at:
JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections
may be made before this opinion goes to press.
 
 

2014 VT 56

 

No. 2013-316

 

In re
  Grievance of VSEA 
(Tropical Storm Irene Emergency
  Closing)


Supreme Court


 


 


 


On Appeal from


 


Labor
  Relations Board


 


 


 


January
  Term, 2014


 


 


 


 


Richard
  W. Park, Chair


 

Rebecca McBroom, Vermont State
Employees’ Association, Montpelier, and Alfred Gordon
  O’Connell
of Pyle Rome Ehrenberg PC, Boston, Massachusetts, for Appellants.
 
William H. Sorrell, Attorney
General, and Bridget C. Asay, Assistant Attorney
General, 
  Montpelier,
for Appellee.
 
 
PRESENT:   Reiber, C.J., Dooley, Skoglund
and Crawford, JJ., and Pineles,
Supr. J.,
                    
Specially Assigned
 
¶
1.            
DOOLEY, J.   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
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
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 of 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

 
(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 representative.
 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 
There
are occasions when management must decide if and to what extent
State facilities should remain open or be closed during emergencies such as
adverse weather conditions, acts of God, equipment breakdown, inoperable
bathroom facilities, extreme office temperatures, etc.  This policy
clarifies who has the authority to make such decisions, and under what
circumstances.
 
GENERAL
INFORMATION 
The
following defines the different types of emergency closing situations that may
arise and specifies who has authority to close a State office or facility. 
 
. . .
 
2.
 Complete Closing:
The
Secretary of Administration may authorize the complete closing of a State
office or facility for emergency reasons.  In these situations, State
offices are closed for business. 
 
Employees
who leave the workplace in these situations will receive their regular pay for
the time that they are out of the closed office without charging to any leave
balances. 
 
Employees
who are required by management to work during a complete
emergency closing will receive cash for all hours worked while the office
or facility is closed, in addition to the
employee’s regular pay.  This does not apply to exempt, managerial,
confidential, and temporary employees.
 
. . .
 
COMPENSATION
FOR EMPLOYEES 
Employees who are on authorized annual leave, sick leave, personal
leave, compensatory time off, or on other paid leave, will not be charged leave
time for the period of the emergency closing.  The same provisions apply
to delayed openings, early closing, or reduced work force situations.
 
¶
11.        
Although this dispute has many facets, as discussed below, the emergency
closing articles in the three contracts are at its center.  For employees
at the Waterbury complex and the Rutland DMV office, VSEA argues that sections
5 and 6 of the emergency closing article applied not just on August 29, the day
that the Governor closed state government, but for each day thereafter until
the employee’s work location was changed pursuant to Article 20.  Thus,
VSEA argues that management authorized “the complete closing of [the Waterbury
complex and Rutland DMV office] for emergency reasons.” (Emphasis
added.)  As a result, VSEA argues that all workers were entitled to
receive regular pay during that period and those who were required to work
during the closing were entitled to double pay, irrespective of where they
worked.  The State responds primarily that the closing occurred because of
an emergency on August 29, but thereafter the office closings were not the
result of an “emergency” as the term is used in the contracts.  Thus, it
argues sections 5 and 6 of the emergency closing articles do not give VSEA the
relief it seeks. 
¶
12.        
Between August 30 and September 7, 2011 the State and VSEA unsuccessfully
attempted to reach an agreement regarding payment for Waterbury complex
employees who worked at alternate worksites.  On April 16, 2012, VSEA
filed its grievance with the Board.  VSEA argued that the State had
violated several provisions of the collective bargaining agreements as well as
Personnel Policy 11.3.  Specifically, it alleged in relevant part that the
State (1) violated the emergency closing article, sections 5 and 6, and
Personnel Policy 11.3(2), by failing to pay compensation in addition to regular
pay to employees who were required to work during the emergency closing, even
though employees who were not required to work received their regular pay for
this time; and (2) violated the sick leave and annual leave articles and
applied Personnel Policy 11.3 in a discriminatory manner by requiring certain
employees to use accrued leave while their worksites were closed as a result of
damage from Tropical Storm Irene, while not requiring other employees to use
their accrued time even though those employees were not required to work and
were receiving regular pay.[8] 
The State responded on May 14, 2012, denying that it had violated any
provisions of the agreements or misapplied Personnel Policy 11.3.  
¶
13.        
The Board granted the parties’ joint request to bifurcate the
hearings.  In the initial hearings, the Board would consider whether the
alleged violations of the agreements occurred.  If the Board found that
violations had occurred, it would hold remedy hearings to determine the amount
owed to each grievant.  The Board held the initial hearings and each party
submitted post-hearing briefs.  The Board issued its opinion on July 8,
2013.  On all issues relevant to this appeal, the Board found that the
State had not violated the agreements or misapplied Policy 11.3.
¶
14.        
The Board determined that state employees received their regular pay if
they were required to work at alternate locations due to damage caused by
Tropical Storm Irene and that the State compensated employees for mileage,
lodging, and travel time incurred by working at alternate locations prior to a
change of their official duty station.  It determined that employees also
received regular pay if their assigned duty station was the Waterbury complex,
and they were not required to work following the storm.  The Board added
that in order to receive their regular pay, these employees were expected to
remain available to report to work in case they were needed.  It stated that
the State assigns all its employees to an official duty station and that the
State could change this assignment by informing the employee.  The Board
concluded that requiring an employee to work at an alternate location for a
temporary period does not change the employee’s official duty station.  
¶
15.        
Looking at the language of the emergency closing article, the Board
stated that “[a]n emergency typically would be of relatively short duration,
and it would be an unfair and unreasonable interpretation of the Contract to
conclude that the parties intended that the State would be obligated to pay
employees double pay for any work performed pursuant to the Emergency Closing
article for several weeks absent explicit wording in the Contract so
providing.”  It added:  “There is no indication in the language of
the Contracts, bargaining history or past practice that the parties intended a
link between the Emergency Closing article and the Work Location article of the
Contracts.  We are not inclined under these circumstances to interpret the
Contracts to provide such a link.”[9] 

¶
16.        
As an alternative rationale, the Board reasoned that a “complete closing
of a State office or facility” in section 5 of the emergency closing article
means the complete closing of “the operations of a state department or agency”
because any other interpretation would hinder state agencies from carrying out
their mission “without an excessive drain on State funds.”[10]  
¶
17.        
The Board determined that a complete closing for emergency reasons did
not continue after August 29.  It found “operations of state agencies and
departments partially resumed on August 30 and there was a movement that day
and the days immediately following towards a resumption of normal
operations.  State operations were open for business to resume the
carrying out of the missions of affected agencies and departments.”  
¶
18.        
In response to VSEA’s claim that paying employees who continued working
the same, regular pay as those who were not required to work was unfair, the
Board noted that those employees who would receive double pay for working under
VSEA’s view of the agreements would in some cases be working alongside employees
who would not be receiving double pay, causing different equity concerns. 
It also noted that thousands of state employees—those not working in the
Waterbury complex—would receive regular pay.
¶
19.        
The Board further rejected VSEA’s claim that the State violated the sick
and annual leave articles because that claim also rested on a determination
that there was an emergency closure after August 29, 2011.  
¶
20.        
On appeal, VSEA contends that the State (1) should have paid employees
who worked during the emergency closing double pay and (2) should not have
required some employees to use leave while they were not working, while others
were not required to use leave.  
¶
21.        
Our main task in this appeal is to review the Board’s interpretation of
terms of the collective bargaining agreements between VSEA and the State. 
We do so under a deferential standard of review.  In
re Rosenberg, 2010 VT 76, ¶ 12, 188 Vt. 598, 11 A.3d 651 (mem.) (“We accord substantial deference to the
Board’s construction of collective bargaining agreements.” (quotation
omitted)); Vt. State Emps. Ass’n
v. State, 2009 VT 21, ¶ 19, 185 Vt. 363, 971 A.2d 641 (“We give
substantial deference to the Board in decisions that lie within its area of
expertise, and presume its decisions are correct, valid and reasonable. This
deference extends to the Board’s interpretation of employment contracts . . . .” (citations
omitted)).  
¶
22.        
We also review the factual findings of the Board.  “We will uphold
the Board’s findings so long as credible evidence fairly and reasonably
supports them, even if we would not have reached the same decision.  Such
findings will stand even if there exists substantial
evidence contrary to the challenged findings.”  In re
Lilly, 173 Vt. 591, 592, 795 A.2d 1163, 1167 (2002) (mem.)
(citations omitted).  We reverse only if the
Board’s findings of fact are clearly erroneous.  In
re Jewett, 2009 VT 67, ¶ 25, 186 Vt. 160, 978 A.2d 470.
¶
23.        
Traditional principles of contract law govern the construction of
collective bargaining agreements.  In re West,
165 Vt. 445, 450, 685 A.2d 1099, 1103 (1996).  Our goal in
construing a contract is to determine the intention of the parties and
implement it.  Grievance of Gorruso, 150
Vt. 139, 143, 549 A.2d 631, 634 (1988); see also In re Barney, 172 Vt.
530, 533, 772 A.2d 1074, 1077 (2001) (recognizing that our task is to determine
the intent of the parties from the language expressed).  We interpret a
contract in its entirety.  In re West, 165 Vt. at 450, 685 A.2d at
1103.  
¶
24.        
In this case, the parties have sparred on our law with respect to
whether the agreements are ambiguous and if so, the effect of that ambiguity.
 See Towslee v. Callanan,
2011 VT 106, ¶ 5, 190 Vt. 622, 55 A.3d 240 (stating that a contract term
is ambiguous if reasonable people could differ as to its interpretation, and
that the court should look beyond the plain language to discern the parties’
intent only if the contract is ambiguous).  This distinction makes little
difference in this case because neither party offered extrinsic evidence
helpful in determining the intent of the parties with respect to the
contractual issues before us.  Thus, we must rely on the language of the
agreements to determine the intent of the parties.
¶
25.        
We note at the outset that there is no dispute that an emergency
situation occurred when flood waters of the Winooski River entered the
Waterbury complex buildings on August 28, 2011.  The difficulty that
divides the parties is when the controlling consequences of that emergency
situation or the emergency itself ended.  They have taken two
fundamentally different positions with respect to that issue and, in the
process, divided it into two related questions, as we discuss below.  
¶
26.        
The first question is whether the State’s compensation obligations under
section 6 of the emergency closing article ended when the emergency was
over.  On this question, the Board described the VSEA position: 
[E]mployees in these offices were required to be paid double
time for any work they performed from August 29 until these employees’ offices
were no longer closed.  Grievants assert that
their offices were no longer closed under the Emergency Closing article when
the State issued relocation notices to them assigning them to a new duty
station.[11] 

 
This
position is based on the language of section 5 and the fact that there was a
complete closing of all offices and facilities in the Waterbury complex on
August 29, that employees left their workplace, and that these employees were
“out of the closed office” at least until they were assigned to a new work
location.  Under this construction, it is irrelevant when the emergency
situation ended as long as there was one in the beginning—that is, as long as
an employee is working and is out of an assigned office because of the
flooding, the employee is entitled to double pay.  We might call this a
“causation” construction of section 5.
¶
27.        
VSEA’s construction of the language requires a particular view of the
intent of the drafters.  In VSEA’s view, the intent was to ensure that
employees who performed work for the state during the period they were out of
their regular offices receive compensation for that work above and beyond what
they would have received had they performed no work.  Thus, since many
employees were paid their normal compensation without performing work for the
state because there was no space available for them, VSEA argues that the
employees who did work must be doubly compensated even if they did exactly the
same work as they did before the storm.
¶
28.        
The State, on the other hand, reads section 5 as applicable only during
a period of emergency and not thereafter even if employees cannot return to
their normal place of work because of the damage caused during the
emergency.  Thus, the State argues that there was no “closing of a State
office or facility for emergency reasons” after August 29 and therefore section
5 does not apply after August 29.  Contrary to VSEA’s position, the State
views the day on which the emergency ended as not only relevant but
determinative.
¶
29.        
Consistent with its construction, the State sees a very different intent
behind the language.  It asserts that employees who work during an
emergency are generally doing different work during the emergency than normal
and that the work may be strenuous and even dangerous because of the presence
of the emergency situation.  In those circumstances, the State asserts
that the policy of the emergency closing article is to provide the employees
who work during the emergency extra compensation for that unusual work. 
Once the employees return to their normal work, however, the State asserts they
are no longer entitled to extra compensation.
¶
30.        
We conclude that both constructions of the language of the article are
plausible, but that the State has the better argument on the intent of the
article.  There are three aspects of VSEA’s argument we find
troubling.  First, it is based on the logic that a windfall for some
workers—those who do not have to work to be compensated—must result in a
windfall to others—those who do work.  This is particularly troubling
where the work performed is the same as that done by others—those who never
worked in the Waterbury complex and do not receive the windfall.  Second,
VSEA’s argument is based on correcting a form of discrimination—between those
who work and those who do not—that is arguably true here but may not be true in
other circumstances.  Thus, if everyone in an office in the Waterbury
complex had been called to work in a temporary location, the VSEA position
would require that they all receive double pay even though no one in the office
was receiving regular pay while not working.  Finally, as emphasized by
the State, the result of VSEA’s argument is that employees who do work
automatically receive two or four weeks of double compensation under the work
location article because they are entitled to that much notice to be moved to a
new permanent work location.
¶
31.        
We do not see similarly troubling aspects in the State’s position on the
drafters’ intent.  While the time at which the employees’ entitlement to
double compensation ends under the State’s position is more arguable, it is
nonetheless still ascertainable.
¶
32.        
The Board accepted the State’s position on the first question—whether
the State’s compensation obligations under section 6 of the emergency closing
article end when the emergency is over.  We give the Board’s construction
substantial deference.  We therefore hold that the employees’ right to
double compensation under the emergency closing article ended when the
emergency ended.
¶
33.        
The second question is when did the emergency end,
such that the office closing was no longer a result of emergency
conditions.  The State claimed that the emergency ended after August 29,
2011, the day on which the Governor closed all state offices.  As of
August 30, the State argued that state employees were doing their normal work,
albeit it out of temporary locations and under challenging conditions. 
Ample evidence supported the State’s position.  For example, the regional
director of the Vermont Department of Buildings and General Services testified
that there were no immediate hazards in any of the Waterbury complex buildings
on August 30.  The Deputy Secretary of the Vermont Agency of Natural
Resources testified that August 30 was a bright sunny day, that staff of the
department had a meeting inside the department offices in the complex, and that
nothing in the building created an imminent risk of harm.  
¶
34.        
In Grievance of Roessner, 12 VLRB 266,
272 (1989), the Board adopted a definition of “emergency” from the American
Heritage Dictionary (New College ed. 1979): a “ ‘situation
or occurrence of a serious nature, developing suddenly and unexpectedly, and
demanding immediate attention.’ ”  The Board
adopted this definition again in the instant case.  VSEA has not contested
this definition.  We adopt it for this decision with the understanding
that the “immediate attention” contained in the definition relates to the
emergency reasons for closing referenced in section 5 of the emergency closing
article.
¶
35.        
The Board found that there was no emergency closing as of August 30,
2011.[12] 
We take that finding to mean that there was neither an emergency nor a closing
as of that date.  We affirm that there was no emergency and do not have to
reach whether there was a closing.[13] 
The finding that there was no emergency on August 30 was not clearly
erroneous.  The evidence supported that the state agencies from Waterbury
were proceeding with business at temporary locations and no immediate response
to conditions in the Waterbury complex was needed.  Because there was no
emergency on August 30, state employees from the Waterbury complex who were
working were not entitled to double compensation on that day or
thereafter.  
¶
36.     
VSEA’s second argument is that the Board erred in not holding that the
State violated the articles on leave time and applied Personnel Policy 11.3 in
a discriminatory fashion because some employees who were not working were
required to take leave time.  As the Board held, this argument is based on
the application and effect of the emergency closing article as VSEA interprets
it.  Because VSEA has not prevailed on its construction of the emergency
closing article, it cannot prevail on its claim with respect to leave
time.  Because we affirm on that basis, we do not reach VSEA’s argument
that the Board erred in also ruling that VSEA offered inadequate evidence to
prove its allegations with respect to leave time.
Affirmed.

 


 


FOR THE
  COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 







[1] 
The storm also resulted in the closing of the Department of Motor Vehicles
office in Rutland, and the compensation rights of employees working at that
office are also involved in this case.  The evidence and the Board’s
findings with respect to these workers were limited.  As a result, we have
not discussed them in the text.  Our holding with respect to employees
that worked in the Waterbury complex applies equally to these DMV workers.
 


[2] 
The Department of Public Safety was ultimately able to return to the Waterbury
complex but the other agencies were not.


[3] 
The emergency closing provision is found at Article 44 of the Non-Management
Unit Contract, Article 48 of the Supervisory Unit Contract, and Article 49 of
the Corrections Unit Contract.
 


[4] 
The language of the article is the same in each contract unless otherwise
noted.  The slight variations in Article 20 among the three contracts do
not affect our decision.
 


[5] 
The Supervisory Unit Contract and the Corrections Unit Contract provide for
“thirty (30) days” here instead of “fifteen (15) days.”
 


[6] 
The language reading “to a new shift or new workweek, or four (4) weeks prior
notice in the case of an assignment to a new geographic area,” only appears in
the Non-Management Unit Contract.
 


[7]
 The annual leave provision is found in Article 30 of the Non-Management
Unit Contract, Article 34 of the Supervisory Unit Contract, and Article 34 of
the Corrections Unit Contract.  The language of the article is
substantially the same in each contract.


[8] 
VSEA also alleged that the State violated the work location article by
retroactively relocating employees’ assigned worksites.  VSEA has not
raised the Board’s resolution of this here, and we have not considered this
claim.
 
VSEA also claimed that the State violated Article 6 by
failing to provide requested information to VSEA in a timely manner.  The
Board agreed with VSEA on this issue, and the State has not appealed.


[9] 
The Board also noted that VSEA made no argument under section 3 of the
emergency closing article and, therefore, did not consider that section. 
VSEA has also made no argument based on section 3 here.
 


[10]
 The Board rejected another alternative rationale argued by the State—that
the State has unreviewable discretion under the agreements to determine when
there is a complete closing and when employees are entitled to additional
compensation.  The State has also argued that position here, but we do not
reach it.


[11] 
VSEA’s brief is long on negative rhetoric to describe the Board’s motives for
its decision and short on stating precisely VSEA’s position for this
appeal.  For that reason, we have used the Board’s description of VSEA’s
position.  It is consistent with our reading of the record.  As a
general observation, we found VSEA’s rhetoric not to be helpful.


[12]
 VSEA challenges what it reads as the Board’s conclusion that emergencies
are of short duration.  While we accept VSEA’s argument that emergencies
can be of long duration, and we note the Board’s decision does contain the
language VSEA challenges, the Board’s conclusion was based on the ample
evidence produced by the State on when the emergency ended.  Thus, to the
extent we would find error in the Board’s discussion of an emergency’s
duration, it is harmless.
 


[13]
 As discussed above, we view the Board’s definition of a state office or
facility to be an additional ground for its decision.  We do not reach
whether we would affirm its decision based on that ground.



