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In re Grievance of Spear

Supreme Court of Vermont

June 6, 2014

In re Grievance of Christopher Spear

Page 619

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Labor Relations Board. Richard W. Park, Chair.

Abigail A. Winters, Associate General Counsel, Vermont State Employees' Association, Montpelier, for Appellant.

William H. Sorrell, Attorney General, and Lindsay N. Browning, Assistant Attorney General, Montpelier, for Appellee.

Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ, and Crawford, Supr. J., Specially Assigned.

OPINION

Page 620

ROBINSON, J.

[¶1]  At issue in this case is the pay due to a state employee pursuant to a collective bargaining agreement when the employee temporarily takes on duties at a higher level. Grievant Christopher Spear appeals a decision of the Vermont Labor Relations Board that the State, as grievant's employer, did not violate the nonmanagement unit collective bargaining agreement between the Vermont State Employees' Association (VSEA) and the employer when it provided grievant with " higher assignment pay" of a flat five percent of his regular pay rather than placing, or " slotting," him to a step in the pay grade associated with the higher assignment duties that was at least five percent higher than his regular pay. The Board found the agreement's provision governing higher-assignment pay ambiguous and concluded, based on the evidence presented, that the parties intended to calculate higher-assignment pay using a flat rate without slotting. We affirm.

I.

[¶2] An understanding of the evolution of the terms of the non-management bargaining unit collective bargaining agreement between the State as employer and the VSEA concerning pay for higher assignment work is helpful to understanding the issues in this case and the parties' arguments. Beginning with the collective bargaining agreement effective 1986 to 1988, the State adopted a Step Pay Plan to compensate non-management employees. Under the plan, positions were assigned to specific pay grades. Within the pay grades, compensation levels were broken into discrete " steps." With limited exceptions, and subject to transitional provisions, employees were " slotted" on to steps within a particular pay grade and compensated accordingly. Within a pay grade employees could advance to higher steps based on years of satisfactory service. The 1986-88 agreement also provided for " alternate rate pay" for employees required to take over a higher pay grade job due to the absence of an employee for a short period of time. Alternate rate pay was to be calculated as 108% of the employee's base rate, but could not be less than the minimum nor more than the maximum

Page 621

base rate for the position to which the employee was assigned. The agreement's provision for calculating alternate rate pay persisted essentially unchanged until the 1990-92 agreement.

[¶3] In the 1990-92 agreement, a new provision in the salary article entitled " Rate After Promotion, Upward Reallocation or Reassignment" stated that employees would receive salary increases by being slotted on to the step of the new pay grade that would reflect an increase of at least eight percent over the salary rate prior to promotion. Alternate rate pay was replaced with " higher assignment pay," applicable when an employee was assigned to perform a majority of the duties of a higher level job substantially different from the duties of the employee's previous job or when an employee was assigned to a supervisory or managerial role without a change in duties. Higher-assignment pay was to be calculated as an eight percent differential in addition to the regular hourly rate, and in no event in excess of the maximum or less than the minimum of the pay grade of the higher-level position.

[¶4] The provisions at issue in this appeal first appeared in their current form in the 1992-94 agreement. With respect to higher-assignment pay, the agreement stated: " the amount paid shall be a differential rate equal to the same rate as the 'rate on promotion' in the Salary article. In no case shall it exceed the maximum or be less than the minimum of the pay grade of the higher level position." The pertinent provision of the salary article, then Article 49, Section 10, provided:

[U]pon 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 onto 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 (i.e. five percent is the lowest amount an employee will receive, and the maximum amount would be governed according to placement on a step which might be higher than, but nearest to, the 5% minimum specified). The rate of 5% as outlined above shall be 8% if the employee is moving upwards three or more pay grades.

[¶5] Both of these provisions remained substantially unchanged in the 2010-12 agreement.

II.

[¶6] With that background, we turn to the specific issue in this case. The Board's factual findings in this case are not in dispute. Grievant is a fire fighter with the State of Vermont Military Department in a pay grade twenty position. His employment is subject to the non-management unit collective bargaining agreement between VSEA and the State, effective 2010 to 2012. Grievant was entitled to higher-assignment pay for work at pay grade twenty-two for August 5, 8, 11 and 14, 2011. The State compensated grievant with a flat five-percent increase of his normal wage for his higher assignment work. It did not " slot" grievant up to the next step in pay grade twenty-two that would result in an increase of at least five percent of his regular salary.

[¶7] In April 2012, VSEA filed a grievance with the Board alleging that the State violated the collective bargaining agreement when it failed to slot grievant on to the appropriate step on the higher pay grade for the dates on which he was entitled to higher-assignment pay. The Board concluded that the ...


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