By Andrew Delaney
Nobody likes not getting paid.
When Tropical Storm Irene hit, the Waterbury state office complex got hit particularly hard. Many of the buildings still can’t be used. There was a one-day government shutdown, and then in the immediate aftermath, various work arrangements had to be made because the Waterbury complex was generally unusable.
It was a trimmed-down scenario while things slowly returned to somewhat normal. Generally, the complex employees were told not to come in unless their supervisor called them in. “Eventually, most of the state employees in the complex were assigned to new work stations as agencies moved their operations.”
Initially, compensation and work requirements for complex-based employees were uncertain. Management eventually figured out what it thought about those policies, but the Vermont State Employees’ Association (VSEA)—the union—disagreed. When the union and management couldn’t work it out, VSEA went to the Vermont Labor Relations Board and argued that management’s position was contrary to applicable collective bargaining agreements (CBAs) and a state personnel policy. That didn’t work out so well for VSEA, and so it appealed to the SCOV.
The opinion’s background lead-in begins with a smorgasbord of contractual provisions.
First there are the CBA provisions. The bottom line is that there are circumstances in which an employee would be paid his or her regular rate during an “emergency” closing without dipping into leave time, and there are circumstances in which a closing would not be classified an emergency and payment, if any, would come out of any accumulated leave coffers. The personnel policy—which gets its own paragraph later on in the opinion—essentially says the same thing.
There’s also a provision regarding new shifts, new workweeks, and new geographic assignments. This deals mostly with order of selection (disruptions get tossed at the new kids first) and notice (two weeks for a new shift; four weeks for a new location).
The SCOV notes that “this dispute has many facets.” But what it all really boils down to is whether the closings were emergencies or not under the terms of the applicable contracts. VSEA’s argument is that the emergency-closing provision of the CBAs and the policy—applies to the entire time that the complex and the DMV office in Rutland were closed. Ergo, the reasoning is that all the employees should have received regular pay while the offices were closed, and anyone that went to another location should’ve gotten double pay. The State disagrees. It reasons that the only emergency closing was the day the governor actually shut the state offices down, and after that, there was no “emergency” closing.
The parties tried to work it out for about a week. VSEA later filed a grievance with the Board.
“VSEA argued that the State had violated several provisions of the collective bargaining agreements” and the personnel policy. First there was the not-paying-double-pay-for-employees-that-had-to-come-in issue; second, there was a making-some-employees-use-paid-time-off-allotments issue. The State basically said, “nuh-uh.”
The hearings were bifurcated—a fancy-lawyer word for "split." In the first set of hearings, the Board would determine whether there were violations. Next, if it found violations, it would hold remedy hearings. Spoiler alert: the second set of hearings weren’t held.
The Board sided with the State. The reasoning, grossly oversimplified, is that the Board wasn’t about to link changes with work locations with emergencies. Emergencies are necessarily short in duration. Employees that had to work in new locations were paid, and expenses provided for; other employees—who didn’t have to come into work due to the closings—were paid their regular pay. As far as the Board was concerned, that was enough to comply with the applicable contractual provisions.
Alternatively, the Board reasoned that a complete shutdown—required to trigger those emergency provisions—meant a “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.’”
VSEA didn’t agree, and so it appealed. VSEA argues 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.”
The SCOV’s primary purpose here is to review the Board’s interpretation of the CBA’s terms. Because the Board has some experience in these matters, the review is deferential—the SCOV kind of expects that the Board knows what it’s doing. Factual findings are also reviewed deferentially. “Such findings will stand even if there exists substantial evidence contrary to the challenged findings.” Word.
The SCOV notes that “the parties have sparred on our law with respect to whether the agreements are ambiguous and if so, the effect of that ambiguity.” I just like that the SCOV used the word ‘sparred’ here. The SCOV notes that neither party offered extrinsic evidence to explain contractual terms, so it all goes back to the contractual language.
The parties aren’t sparring about whether the day after the storm was an emergency. It’s after that initial emergency that the parties’ positions fundamentally diverge. The SCOV calls VSEA’s position a “causation” position—that is, once the initial emergency happened, VSEA’s position is that all the time after that fell within the emergency-pay provisions. VSEA’s position is that because other employees got paid their regular rate when they didn’t have to work (when the offices were closed), the intention of the CBAs is that the employees who did have to work would get paid extra.
The State’s position is that the double-pay provision only applies during the “emergency” and can’t apply once the “emergency” ends. Accordingly, the State sees intent much differently. In its view, the intent of the CBAs is to reward employees who work during the throes of emergencies—when the work is harder and they’re performing double-duty and such—that’s what justifies the double pay in the State’s view.
The SCOV diplomatically notes that both sides present plausible constructions. But the State’s argument is a little better because, as the SCOV explains, VSEA’s argument is that a windfall begets a windfall. Just because some employees got paid for not working, doesn’t necessarily mean that it follows that the employees who did work should get paid extra. Or at least that’s the way the SCOV seems to see it. So when one of the employees went to work at another office temporarily, they’d be getting double-pay and the other employees (in that office) would be getting their regular pay, not double pay. That would create tension probably—unless everyone kept their mouths shut, which I doubt would happen given most of my workplace experiences.
The SCOV doesn’t see those problems with the State’s argument. So the SCOV affirms the Board on that point.
Next, the SCOV considers when the emergency ended. The State argues it ended the second day after the storm; VSEA argues it was as long as the offices were closed. There’s a dictionary definition of emergency (“situation or occurrence of a serious nature, developing suddenly and unexpectedly, and demanding immediate attention’”) that the Board adopted. VSEA hasn’t challenged that definition, the Board sided with the State, and the SCOV affirms.
There’s a little more housekeeping, but that about does it for this one.