In re Vermont State Employees' Association, Inc.
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In re Vermont State Employees' Association, Inc. (2004-140); 179 Vt. 578; 893 A.2d 338
2005 VT 135
[Filed 27-Dec-2005]
ENTRY ORDER
2005 VT 135
SUPREME COURT DOCKET NO. 2004-140
APRIL TERM, 2005
In re Grievance of Vermont State } APPEALED FROM:
Employees' Association, Inc. }
} Labor Relations Board
}
} DOCKET NO. 02-31
In the above-entitled cause, the Clerk will enter:
¶ 1. In this appeal, we are asked to decide if the Labor Relations
Board erred in dismissing a grievance filed by the Vermont State Employees'
Association, which concerned the State's investigation of employee Jules
Peteani. VSEA argues that the State denied Peteani his right to meaningful
union representation during an investigative interview and violated the
parties' collective bargaining agreement by failing to provide Peteani with
supplemental written notice of additional charges pending against him once
he had been temporarily relieved from duty. The Board rejected these
arguments. On appeal, VSEA asserts that: (1) the Board's conclusion that
Peteani was afforded his right to meaningful representation is not
supported by its findings; and (2) the Board erred in interpreting the
terms of the parties' collective bargaining agreement. We find the first
issue moot, and we find no error in the Board's interpretation of the
parties' contract.
¶ 2. Jules Peteani worked as a community correctional officer for
the Department of Corrections. In June 2001, the Department began an
investigation into Peteani's alleged violation of a work rule that
prohibited romantic or sexual relationships between employees and offenders
under Department control or supervision. The Department notified Peteani
that it was investigating his relationship with offender N.F. The
Department conducted two investigative interviews with Peteani, the second
of which VSEA challenges in this appeal. During the second interview, in
December 2001, Peteani was asked whether he had engaged in any
inappropriate conduct with offenders other than N.F. Peteani's union
representative, Lucinda Kirk, protested that she had not been informed of
any new allegations against Peteani and asked that the interview be
stopped. The State eventually allowed Kirk five minutes to consult
privately with Peteani before questioning resumed. The State also allowed
Peteani and Kirk to meet privately several times before the interview
concluded. In February 2002, Peteani resigned from state employment.
¶ 3. In June 2002, VSEA filed a grievance with the Board, alleging
that the State had violated the collective bargaining agreement in
conducting its investigation of Peteani. VSEA first argued that the State
had violated Article 14, section 7 of the contract, which gives an employee
the right to have a union representative present during any meetings with
his employer that may lead to discipline. VSEA asserted that the State had
violated this provision by refusing to allow Peteani to freely consult with
Kirk during the interview.
¶ 4. VSEA also alleged that the State had violated Article 14,
section 9 of the contract. Section 9 provides that an employer may relieve
an employee temporarily from duty with pay for up to thirty work days to
allow the employer to investigate charges and allegations against the
employee. It requires that:
Employees temporarily relieved from duty shall be notified in
writing within twenty-four (24) hours with specific reasons given
as to the nature of the investigation, charges and allegations.
Notices of temporary relief from duty with pay shall contain a
reference to the right of the employee to request representation
by VSEA, or private counsel in any interrogation connected with
the investigation or resulting hearing.
Section 9 allows the employer to extend the period of temporary relief from
duty with the concurrence of the Commissioner of Personnel. Although the
Department provided Peteani with written notice when it placed him on
temporary relief from duty, VSEA asserted that the Department was obligated
to supplement this written notice when it extended Peteani's
relief-from-duty period beyond thirty days. VSEA also asserted that,
under section 9, the State was obligated to provide Peteani with written
notification of its reasons for holding a second investigative interview.
Finally, VSEA argued that Peteani had the right to VSEA representation
under section 9 during any investigatory interrogation, and he was denied
effective representation because he had not been allowed to consult with
Kirk throughout the second interview. [FN1]
¶ 5. In its request for relief, VSEA asked the Board to determine
that the State had violated the contract and the parties' past practice;
order the State to cease and desist from engaging in such conduct; order
that any evidence obtained by the State in similar investigative meetings
under similar circumstances be rendered inadmissible for purposes of
imposing discipline and/or corrective action against the employees; and
order that any employee who suffered an adverse action as a result of any
of the State's contract violations be made whole.
¶ 6. After a hearing, the Board dismissed the grievance. The
Board first rejected VSEA's assertions that the State had violated section
9 of the contract, explaining that section 9 did not apply to VSEA's
representation of Peteani at the second investigatory interview. The Board
found that the Department had complied with the requirements of this
section when it provided Peteani written notice as to why he was being
temporarily relieved from duty and advised him of his right to
representation. This ended the provision's applicability, and its
requirements were not resurrected when the Department held a subsequent
interview while Peteani remained on temporary relief from duty. To
conclude otherwise, the Board explained, would improperly read terms into
the parties' contract that did not arise by necessary implication.
¶ 7. Turning to the central issue raised by the grievance, the
Board considered whether Peteani had been denied his right to meaningful
and effective representation in violation of Article 14, section 7. As
noted above, under section 7, an employee has the right, at his request, to
have a union representative accompany him to any meeting with his employer
where he will be required to give oral or written statements on an issue
that involves him and which may lead to discipline against him. The Board
discussed the limits of this right, finding that it included the employee's
right to consult with his union representative prior to an investigative
interview. To effectuate this right, the Board explained that an employee
and his representatives were entitled to have some indication of the
subject matter of an investigation, although the employer need not reveal
its case or even the specifics of the misconduct to be discussed. Instead,
the employer need only provide a "general statement as to the subject
matter of the interview, which identifies to the employee and his
representative the misconduct for which discipline may be imposed." Pac.
Tel. & Tel. Co., 262 N.L.R.B. 1048, 1049 (1982), aff'd, Pac. Tel. & Tel.
Co. v. N.L.R.B., 711 F.2d 134 (9th Cir. 1983). The Board also discussed
the role of a union representative during an investigative interview.
¶ 8. The Board found that in November 2001, the Department had
informed Peteani that it was "continuing its investigation" into his
apparent violation of workplace rules, and that Christine Boraker had been
assigned to conduct an investigative interview with him. It explained that
this notice did not indicate whether the interview would involve a
continued examination of Peteani's relationship with N.F., or whether the
investigation would be expanded to discuss other matters. The Board found
that a miscommunication then occurred between Kirk and Boraker over the
nature of any new allegations against Peteani. As a result, Kirk did not
know that Peteani would be asked about other female offenders under his
supervision, and she was unable to meaningfully consult with Peteani on
this subject before the interview began. Thus, the Board explained, when
this topic arose during the interview, Boraker had no reasonable basis to
deny Kirk's request for a break. The Board concluded, however, that this
temporary harm was remedied when Boraker stopped the interview to discuss
the matter with Department of Personnel General Counsel David Herlihy. As
a result of that discussion, Peteani had been allowed to consult with Kirk
for five minutes before he was asked to answer any questions about other
female offenders. The Board found that VSEA had not presented sufficient
evidence to support a conclusion that this consultation had been
insufficient to allow Kirk to effectively represent Peteani during the
interview. The Board found its conclusion bolstered by Boraker's decision,
at the conclusion of her questioning, to allow Peteani and Kirk to meet
privately and present additional information. It therefore concluded that
the State had not violated section 7 of the contract. VSEA appealed.
¶ 9. We begin by addressing the issue of mootness, an argument
raised by the State below but apparently not pursued. As noted above,
Peteani resigned from state employment in February 2002, and VSEA, not
Peteani, is the grievant in this case. While VSEA is plainly entitled to
file a grievance expressing its dissatisfaction with aspects of employment
or working conditions under the collective bargaining agreement, it must
establish an "injury in fact to a protected legal interest or the threat of
an injury in fact." In re Boocock, 150 Vt. 422, 424, 553 A.2d 572, 574
(1988). While VSEA's legal interests were implicated in certain claims
contained in its grievance, it has not pursued all of these claims on
appeal.
¶ 10. We conclude that the first issue raised by VSEA in this
appeal is moot. Generally, "a case becomes moot when the issues presented
are no longer live or the parties lack a legally cognizable interest in the
outcome." In re Moriarty, 156 Vt. 160, 163, 588 A.2d 1063, 1064 (1991)
(quotations omitted). There is no question that Peteani was entitled to
meaningful union representation under section 7, nor do the parties
seriously dispute the scope of this right on appeal. Indeed, the Board
recognized, as VSEA argues, that under section 7, the State must provide
employees with sufficient information about the nature of an investigative
interview to allow for meaningful consultation. The Board found that the
error here stemmed largely from a miscommunication between the parties, and
it found the error harmless in light of corrective action taken by the
State. While we agree that a five-minute hallway consultation might be
insufficient to allow for meaningful and effective union representation
during an investigative interview, we need not decide whether the Board
erred in employing a harmless error analysis. Even if we were to find that
the Board erred, there is no effective relief that this Court can provide
VSEA under the circumstances. Id. ("A case is moot if the reviewing court
can no longer grant effective relief.") (quotation omitted).
¶ 11. First, Peteani has resigned, he is not a party to this case,
and the disciplinary investigation has concluded. See id. at 162-64, 588 A.2d at 1064-65 (dismissing appeal as moot when grievant had resigned from
state employment during pendency of appeal and Court would be unable to
grant any effective relief). While VSEA may argue that it has suffered a
legal injury due to the State's alleged violation of the collective
bargaining agreement, we cannot discern any meaningful relief that this
Court could provide VSEA as the result of such a violation. The facts
presented in this case are highly unusual, and it is improbable that they
would recur. We cannot find that an actual live controversy exists merely
because VSEA seeks to prevent the State from engaging in similar behavior
in the future. "Where future harm is at issue, the existence of an actual
controversy turns on whether the plaintiff is suffering the threat of
actual injury to a protected legal interest, or is merely speculating about
the impact of some generalized grievance." Id. at 163, 588 A.2d at 1064
(quotations omitted). There is no indication that the State regularly
engages in such behavior or that it is likely to do so in the future.
Indeed, the problem here stemmed from a miscommunication. VSEA is
speculating about potential future harm.
¶ 12. We are not persuaded that any of the exceptions to the
mootness doctrine apply. The underlying situation is not one that is
capable of repetition yet evading review. "This exception applies only
if: '(1) the challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there was a
reasonable expectation that the same complaining party would be subjected
to the same action again.' " In re P.S., 167 Vt. 63, 67-68, 702 A.2d 98,
101 (1997) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). The
first criterion is not satisfied, and as noted above, given the unusual
facts involved in this case, there can be no reasonable expectation that
VSEA will be subjected to the same action again. See In re Green Mountain
Power Corp., 148 Vt. 333, 335, 532 A.2d 582, 584 (1987) (explaining that a
"reasonable expectation" of being subjected to the same action again
"requires more than just a theoretical possibility of the same event
happening in the future"; party must show a "demonstrated probability that
it [will] become embroiled again in the same controversy"). We will not
address a moot case merely because "others will find themselves in a
similar position." See In re Moriarty, 156 Vt. at 164, 588 A.2d at 1065
(explaining that Vermont had not adopted a "general public-interest
exception to the mootness doctrine"). If an actual controversy arises, the
parties will have the opportunity to litigate it. Therefore, because we
conclude that the question of whether Peteani was denied his right to
meaningful representation is moot, we dismiss this portion of the appeal.
¶ 13. We reach a different conclusion with respect to the Board's
interpretation of section 9 of the contract. VSEA appears to have a
legally cognizable interest in the resolution of this issue, and it appears
likely to arise again. We therefore address the issue on the merits. VSEA
argues that the plain language of section 9 requires the State to provide
supplemental written disclosures to an employee who has been temporarily
relieved from duty when it expands its investigation to include new
allegations. We disagree.
¶ 14. As previously noted, section 9 states that "[e]mployees
temporarily relieved from duty shall be notified in writing within
twenty-four (24) hours with specific reasons given as to the nature of the
investigation, charges and allegations." The Board found that this
provision did not impose an obligation upon the State to provide
supplemental written disclosures to an employee who had been temporarily
relieved from duty. We accord substantial deference to the Board's
construction of the parties' collective bargaining agreement, In re
Gregoire, 166 Vt. 66, 72, 689 A.2d 431, 435 (1996), and we find no error
here. Where, as here, the language of a contract is clear, the parties are
presumed to be bound by the plain and ordinary meaning of the language
used. See id. at 73, 689 A.2d at 435. As the Board explained, the
Department complied with section 9 when it provided Peteani with written
notice that it was contemplating dismissal due to Peteani's inappropriate
relationship with a female offender, he had a right to representation
during proceedings connected with the Department's action, and he was
temporarily relieved from duty without pay. The additional obligation
suggested by VSEA is not found in the plain language of section 9, nor does
it arise by necessary implication. See In re Stacey, 138 Vt. 68, 71, 411 A.2d 1359, 1361 (1980) (stating that "the Court will not read terms into a
contract, unless they arise by necessary implication"). The Board did not
err in its interpretation of this provision.
Affirmed in part and dismissed in part as moot.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Frederic W. Allen, Chief Justice (Ret.),
Specially Assigned
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Footnotes
FN1. VSEA also asserted that the State had violated Article 1 and Article 3
of the contract by refusing to recognize VSEA as Peteani's representative
at the investigative interview, and it asserted that the State's refusal to
allow Kirk to consult with Peteani also violated the parties' past
practice. The Board rejected these claims, and VSEA has not pursued them
on appeal. VSEA also filed an unfair labor practice charge against the
State, which the Board dismissed in February 2004.
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