Appeal from Labor Relations Board Gary F. Karnedy, Chair
J. Donovan, Jr., Attorney General, and Melanie Kehne,
Assistant Attorney General, Montpelier, for Appellant.
Timothy Belcher, Vermont State Employees' Association,
Montpelier, for Appellee. PRESENT: Reiber, C.J., Skoglund,
Robinson, Eaton and Carroll, JJ.
1. The State appeals a decision of the Vermont Labor
Relations Board interpreting a collective bargaining
agreement between the State and the Vermont State
Employees' Association (VSEA). The question at issue is
whether a change made to the agreement's family-leave
provisions in 1999 limited an employee's right to use
more than six weeks of accrued, paid sick leave while on
family leave because of the employee's own serious
illness. The Board found that, although the agreement itself
was ambiguous, extrinsic evidence showed that the parties did
not intend to limit the use of sick leave. The State argues
on appeal that the contract is not ambiguous and that the
limitation on use of sick leave applies. We affirm. I.
2. Grievant, Kobe Kelley, worked for thirteen years as a
surveyor for the Vermont Agency of Transportation and is now
retired. About a year before his retirement, he fractured his
knee while on vacation. As a result, he took a seven-week
leave from work. At the beginning of this period, Kelley was
placed on unpaid family leave by his supervisor, under
Article 35 of the collective bargaining agreement negotiated
between the State and VSEA for the Non-Management Unit. For
the first six weeks of this family leave, Kelley was allowed
to make use of his accrued sick leave in order to continue to
receive pay, but for the last week he was required to use
paid annual leave that he had accrued instead. This was
pursuant to the State's interpretation of the provisions
of Article 35. VSEA filed a grievance on behalf of Kelley,
arguing that under a different provision of the collective
bargaining agreement, Article 31, Kelley had the right to use
his sick leave during this final week in addition to the
initial six weeks.
3. The classification of paid leave in these circumstances
matters to both employees and the State because while
employees are not compensated for their accrued sick leave
when they leave their jobs or retire, they do receive
compensation at that point for other forms of accrued
leave-including the annual leave that Kelley was forced to
use. The requirement to use annual leave rather than sick
leave during the final week of Kelley's seven weeks away
from work therefore reduced both an accrued liability for the
State and future accrued benefits for Kelley. Counsel for
VSEA stated at oral argument before this Court that there are
currently between fifty and one hundred other state employees
with grievances turning on this question.
4. The correct classification of paid leave in this situation
depends on the relationship between the relevant two articles
of the collective bargaining agreement: Article 31, entitled
"Sick Leave," and Article 35, entitled
"Parental Leave/Family Leave." Article 31 provides
that a classified employee "who cannot work due to
illness or injury" may use "earned sick leave
credits." Such a provision has been part of the
collective bargaining agreements between the State and VSEA
since 1976. The Article does not contain any limitation on
how or when credits may be used.
5. Article 35 is more complex. The core provision is found in
Article 35(5)(a), which provides that family leave shall be
granted "[i]n the case of serious illness of an employee
or of a member of the employee's immediate family."
Article 35(5)(b) then lays out an exception to the general
rule that family leave is unpaid. While on family leave, an
employee may choose to simultaneously "use up to six (6)
weeks of any accrued paid leave, including, but not limited
to, sick leave, annual leave and personal leave." After
six weeks, however, "employees may use only the
following accrued paid leaves in the following order:
compensatory time, personal time, and annual leave."
This latter provision is referred to as "the
cascade." Once the twelve weeks of family leave are
exhausted, all types of remaining accrued leave may again be
6. Article 35 was added to the agreement in response to
Vermont's 1989 Parental and Family Leave Act, 21 V.S.A.
§§ 470-474, and its 1994 federal counterpart, the
Family Medical Leave Act, 29 U.S.C. §§ 2601-2654.
Both statutes guarantee qualifying employees twelve weeks of
unpaid leave for family or parental care within a
twelve-month period, with conditions. Notably, the Vermont
statute gives employees the right to use accrued paid leave
during family leave, but only for a period "not to
exceed six weeks." 21 V.S.A. § 472(b). Both
statutes also contain explicit statements that they do not
diminish any more generous rights guaranteed under collective
bargaining agreements. 12 V.S.A. § 472(g); 29 U.S.C.
§ 2652(a). Article 35(1) of the collective bargaining
agreement likewise includes the following non-waiver
provision: "The following provisions integrate the basic
requirements of the statutes and this collective bargaining
agreement . . . but do not create a waiver by the State or by
the employees of other rights and/or obligations under this
7. At the Board's hearing, VSEA argued that the State
could not force Kelley to use annual leave, given that he
enjoyed an unrestricted right to use accrued sick leave under
Article 31. The State argued in reply that the language of
the contract was clear and unambiguous: the
"cascade" provision of Article 35(5)(b) applied
whenever an employee requested leave for a serious injury or
illness, including his or her own, with this limitation of
the use of sick leave in a specific circumstance superseding
the general guarantee in Article 31.
8. The Board decided that the contract itself was ambiguous
and therefore turned to extrinsic evidence to interpret it.
It concluded that the parties to the 1999 negotiations did
not intend the addition of Article 35 to diminish the rights
of employees to use accrued sick leave for their own serious
illness. It also found that, although the State's
Department of Human Resources had advised state agencies to
apply the "cascade" provision to employees taking
off time for their own serious illness after the 1999
negotiations, the provision was not known to have been
applied to employees in that situation until 2014. The
State's own past practice thus did not suggest that it
had seen itself as winning a concession in the 1999
negotiation. On these bases, the Board sided with VSEA's
interpretation and sustained Kelley's grievance.
9. On appeal, the State again contends that the contract is
not ambiguous: the "cascade" provision of Article
35 contains no exemptions and therefore governs whenever an
employee is off work because of a "serious
illness," whether their own or that of a family member.
The State asserts there is no conflict between Articles 31
and 35 because the "cascade" provision
"provides a framework" for implementing the general
guarantee of sick leave in Article 31 in cases specifically
involving "serious" illness. The State also argues
that, even if the agreement is ambiguous, the evidence of
bargaining history does not suggest that the
"cascade" provision includes an implied exemption
for when an employee is on family leave for their own serious
illness. Nor, they contend, can past practice alter the
meaning of the contract.
10. In response, VSEA argues that the Board's finding in
favor of Kelley is in fact supported by the "clear and
unambiguous language of the agreement," because the
non-waiver provision in Article 35(1) protects an
unrestricted right to sick leave guaranteed by Article 31.
VSEA claims employees taking leave for their own serious
illness may choose whether or not to invoke their family
leave rights under Article 35. If they do so, then their use
of sick leave is capped by the "cascade." If they
do not invoke their Article 35 rights, then they remain
solely under Article 31 and their use of accrued sick leave
is unrestricted, although any time taken off will still count
against the twelve-week limit on family leave if they choose
to invoke their family leave rights at a later point.
Although VSEA denies that the contract is ambiguous, it
agrees with the Board's conclusion that extrinsic
evidence shows that Article 35 was not intended to diminish
employees' ability to use sick leave. VSEA thus agrees
with the Board's ...