Grievance of VSEA, Tracey Barnard et. al.

IN_RE_GRIEVANCE_OF_VSEA.94-603; 164 Vt 214; 666 A.2d 1182

[Filed 22-Sep-1995]    

  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,
  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.


                                 No. 94-603


Grievance of                                      Supreme Court
VSEA, Tracey Barnard, et al.
                                                  On Appeal from
                                                  Labor Relations Board

                                                  September Term, 1995


Charles McHugh, Chairman

       Samuel C. Palmisano, VSEA Legal Counsel, Montpelier, for
  grievants-appellants

       Jeffrey L. Amestoy, Attorney General, and David Herlihy, Assistant
  Attorney General, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       JOHNSON, J.  Food service employees of the Vermont Criminal Justice
  Training Council (VCJTC) lost their positions when the food service
  function was contracted out.  They appeal from an order of the Vermont
  Labor Relations Board (VLRB) dismissing their grievance. We affirm.

       VCJTC operates the Vermont Police Academy in Pittsford, providing
  basic and advanced training to law enforcement officers and firefighters. 
  Prior to 1993, its food service was operated by the State and staffed by
  public employees, who were hired and employed under the State Employees
  Labor Relations Act and the collective bargaining agreement (the contract)
  between the State and its employees.

       In January 1993, VCJTC's executive director, Francis Aumand, advised a
  union representative and food service employees that layoffs might result
  from the contracting out of the food service function.

       The relevant provision of the contract is  Article 2, § 3, which
  states in part:

 

          No employee will be laid off or otherwise be removed from
     employment as a result of contracting out except in circumstances
     where the work is beyond the capacity of State employees, or that
     the work or program can be performed more economically under
     an outside contract, or that an outside contractor has management
     techniques, equipment or technology which will result in better
     public service and increased productivity.  Prior to any such lay
     off or other job elimination under this paragraph the VSEA will be
     notified and given an opportunity to discuss alternatives. . . .

          When a State agency contemplates contracting out
     bargaining unit work and publishes a formal Request For Proposal,
     a concurrent notice of such publication will be sent to VSEA
     President or Executive Director and the Department of Personnel.
     Upon request, VSEA shall be permitted to inspect the RFP
     specifications.


       Meetings between management and the union regarding the proposed
  layoffs were held on March 1, 1993 and June 11, 1993.  At the first of
  these meetings, employees suggested the alternatives of laying off a law
  enforcement training coordinator and the possibility of part- or flex-time
  scheduling.  At the June 11, 1993 meeting, the union and employees offered
  seven proposals, to each of which the State responded in writing on June
  22, 1993.  The affected food service employees were laid off on June 25,
  1993.

       Based on alleged violations of Article 2, § 3 of the contract, the
  union filed a grievance on behalf of the employees who had been laid off. 
  After hearing and argument, a majority of the Board found that Article 2, §
  3 had not been violated, concluding that savings had been reasonably
  contemplated by contracting out the food service.  The Board further found
  that the union's major proposals for an alternative solution had been
  submitted at a meeting on June 11, 1993 and that these ideas were discussed
  and considered in good faith.  One member of the Board dissented.

       Central to the Board's decision was the majority's conclusion that the
  union had not set forth reasonable alternatives to contracting out.  It
  stated:

          In examining the facts of this case in light of this mutual
     obligation, we are struck by the failure of VSEA and the involved
     employees to sufficiently respond to the impending layoffs from
     the time they were aware such layoffs were possible until they
     actually occurred.

 

  The present appeal followed.

       As we said in Vermont State Colleges Faculty Fed'n v. Vermont State
  Colleges, 152 Vt. 343, 566 A.2d 955 (1989), "In reviewing the Board's
  conclusion, this Court may `only ask whether the findings of fact taken as
  a whole justify the Board's ultimate conclusion.'" Id. at 348, 566 A.2d  at
  958 (quoting In re Liquor Control Dep't Nonsupervisory Employees, 135 Vt.
  623, 625, 383 A.2d 612, 613 (1978)).  If there is factual support for the
  Board's conclusion, this Court will leave it undisturbed. Id.  Moreover, an
  interpretation of a collective bargaining agreement is within the expertise
  of the Board, and we review such interpretations with great deference to
  that expertise.  Grievance of Baldwin, 158 Vt. 644, 645, 604 A.2d 790, 791
  (1992) (mem.).

       Here, the grievants concede that representatives of the State met
  twice with affected employees and their representatives to discuss
  alternatives to the layoffs.  The problem, according to grievants, was that
  the state representatives failed to work with them  on developing proposals
  and did not provide them with constructive feedback.

       The Board found to the contrary on this question, however, and its
  findings satisfy the standard of review set forth in Vermont State Colleges
  Faculty Fed'n.  Grievants are correct that the Board found that employee
  representatives made two proposals at the March 1, 1993 meeting, but the
  Board found that each one was properly rejected.  The Board was well within
  its discretion in noting that the suggestion of laying off one of the two
  training coordinators was not a viable option, given that training was the
  primary Council mission.  The second proposal -- creating a flex-time or
  part-time schedule for employees -- did not represent a consensus of the
  employees, according to their representative.

       Grievants next argue that the Board itself concluded that Aumand was
  not "proactive" in developing alternatives to the layoffs of food service
  employees.  Specifically, they contend that Aumand never calculated the
  amount of money that the State could have saved if it had created a
  part-time schedule for the employees and reduced their cumulative hours.

 

       The argument implies that once an idea is offered by employees or the
  union, the task of determining its feasibility is that of management.  The
  Board viewed the responsibility for developing alternatives as mutual,
  interpreting Article 2, § 3 as imposing duties on each party. It stated
  that "[t]he contractual provision that VSEA will be given an opportunity to
  discuss alternatives necessarily implies that VSEA, in seeking to avert a
  layoff, has an obligation to present concrete alternatives to the layoffs
  of employees.  There is a mutual obligation to engage in good faith
  discussions to seek to avert the layoffs of employees." (Emphasis added.)

       Grievants have not argued that the Board's reading of the contract was
  erroneous, but rather that Aumaud should have offered some constructive
  feedback to their proposal of a part-time schedule.  The State counters
  that the burden of proposing alternatives must be on the union if the
  process is to work because potential alternatives are likely to involve
  actions that are feasible if the employees voluntarily accept certain
  conditions, but not feasible if contested.

       The question on appeal, however, is not who had the burden of
  advancing or detailing a given alternative idea, but rather whether there
  is factual support for the Board's conclusion. The Board found that VSEA
  and involved employees failed to advance timely and concrete proposals. 
  The record supports that finding.  Specifically, the Board found that the
  union knew, or should have known, by January of 1993 of the seriousness of
  the situation, but nevertheless failed to advance ideas in concrete form
  until the June meeting. The Board also found that the union "failed to
  present concrete alternatives sufficient to generate substantive discussion
  on averting the layoffs of employees."

       Grievants argue that the State responded to the proposals advanced on
  June 11, 1993 only days before the layoffs actually occurred.  The Board's
  findings with respect to the union's own tardiness adequately address this
  argument.  In addition, the Board found that "[t]he employer did a
  substantial amount of work after the June 11 meeting and prior to the
  layoffs of employees, with respect to the only proposal which [the union
  representative] and the employees made which could result in significant
  cost savings."

  

       Finally, grievants contend that Council executive director Aumaud
  unduly stressed a legislative, rather than a negotiated alternative to
  contracting out, urging grievants to seek to influence budget
  deliberations.  There is no indication in the record that Aumaud
  substituted his suggestion of a legislative solution for a good-faith
  search for an alternative to contracting out. Nor have grievants explained
  why including a lobbying effort as a possible answer was improper.

       In sum, the Board properly concluded that the State met its
  obligations under the contract, and the conclusion of the majority is amply
  supported by the record.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice