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In re Grievance of VSEA

Supreme Court of Vermont

June 20, 2014

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

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.

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.

OPINION

Page 1026

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 notice stated that only authorized

Page 1027

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

Page 1028

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, ...


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