Vermont State Colleges Staff Federation v. Vermont State Colleges

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 89-495

                           FEBRUARY TERM, 1991


Vermont State Colleges Staff      }          APPEALED FROM:
Federation, AFL Local 4023,       }
AFL-CIO                           }
                                  }
     v.                           }          Labor Relations Board
                                  }
                                  }
Vermont State Colleges            }
                                  }          DOCKET NO. 89-14


             In the above entitled cause the Clerk will enter:

     Respondent Vermont State Colleges (VSC) appeals the order of the
Vermont Labor Relations Board (Board) sustaining the grievance of the
Vermont State Colleges Staff Federation (Federation) and ruling that VSC
violated the collective bargaining agreement (contract) between VSC and the
Federation.  The violation was that VSC allowed a Johnson State College
Library Technical Assistant (LTA II) to perform certain audio-visual duties
normally assigned to an LTA III without giving the Federation notice and an
opportunity to bargain over the change.

     VSC first argues that the Board erred in failing to dismiss the
grievance as untimely filed.  The contract requires a grievance to be filed
within 30 days after "the time at which the grievant(s) could have reason-
ably been aware of the existence of the situation created by the Colleges
which is the basis for the grievance . . . ."   Although the employee
involved knew about the situation giving rise to the grievance early in
1988, the Federation first became aware that the employee had assumed the
LTA III duties on October 6, 1988 and filed its grievance on October 28,
1988.  The Board rejected VSC's claims that an earlier letter had put the
Federation on notice that LTA III duties had been assigned and that the
knowledge of the situation by other Federation members could be imputed to
the Federation.  We must uphold the Board's findings of fact unless they are
clearly erroneous and sustain the Board's order if supported by its own
findings.  Grievance of Merrill, 151 Vt. 270, 273, 559 A.2d 651, 653 (1988).
We conclude that the Board's findings and conclusions are supported on this
issue.  Since the Federation is the grievant and the claim involves its
right to notice, the knowledge of specific employees is not determinative.
The Board could conclude that the Federation was unaware of the LTA III work
assignment until October of 1988.

     On the merits, VSC makes a series of challenges to the Board's
conclusion that it violated Article 3, { 2 of the contract, which provides
that management may "change [an employee's] job content" only after it
gives "the Federation notice and an opportunity to bargain."  First, VSC
asserts that any change in the employee's job content was insufficient to
trigger Article 3 because the added audio-visual tasks were "minimal."  The
issue comes down to an interpretation of the collective bargaining agree-
ment.  We give "substantial deference" to the Board's expertise in con-
struing the collective bargaining agreement, In re Carlson, 140 Vt. 555,
560, 442 A.2d 57, 60 (1982), and apply traditional principles of contract
law.  See Vermont State Colleges Faculty Fed. v. Vermont State Colleges, 151
Vt. 457, 461, 561 A.2d 417, 420 (1989).  Where contract language is clear,
the parties are presumed to be bound by its plain and ordinary meaning.  See
Vermont State Colleges Faculty Fed. v. Vermont State Colleges, 141 Vt. 138,
143-44, 446 A.2d 347, 349-50 (1982).  Nowhere does the contract limit the
phrase, "change job content," to mean a change comprising a majority, or
even a substantial percentage, of an employee's overall duties.  The record
supports the Board's finding that these duties were beyond the LTA II job
description and comprised 5-20% of the employee's job content.

     VSC next argues that because the employee assumed the duties
voluntarily, Article 27 of the contract, dealing with voluntary assumption
of duties, controls the case.  That Article establishes certain options when
an employee voluntarily assumes duties of a higher rated position and does
not require notice to the Federation.  In construing the contract, we must
give effect to every material part, if possible.  Id. at 143, 446 A.2d  at
349.  We can construe Articles 3 and 27 together.  When we do, we conclude
that the Article 3 obligation of management to notify the Federation of a
change in an employee's job content applies whether or not the change is
subject to the options in Article 27.  In any event, the Board could
conclude that the assumption of the LTA III duties in this case were not
entirely voluntary, in view of the staff shortage at the library and the
encouragement given by the employee's supervisor.

     We agree with the Board's conclusion that VSC's eventual compliance
with Article 27 does not resolve this grievance.  VSC failed to give the
Federation notice as required by Article 3.  As the Board concluded, the
sole effect of withdrawing the duties from the employee, an option specified
in Article 27, was to limit VSC's liability for damages.

     Finally, VSC challenges the award of damages to the employee.  The
Board has broad authority to fashion a suitable remedy, and its judgment
will be upheld absent an abuse of discretion.  See Vermont State Colleges
Faculty Fed. v. Vermont State Colleges, 149 Vt. 546, 551, 547 A.2d 1340, 1344 (1989).  Although we agree with the Board that some back pay is
warranted, we are unable to conclude that the amount awarded is supported by
the record.  First, the $1970 award was based on the difference between the
annual salaries for an LTA II and an LTA III, reduced by the number of
months during which the employee did not perform the audio-visual duties.
The Board's own findings, however, were that these duties comprised no more
than 5-20% of her job content.  A back pay award should ordinarily be
fashioned to reflect the aggrieved party's actual damages.  See Kelley v.
Day Care Center, Inc., 141 Vt. 608, 615-16, 451 A.2d 1106, 1110 (1982).  The
present award goes far beyond making the employee whole.  Further, under
the particular circumstances of this case, an award based on the full salary
differential is plainly inequitable.  The employee neglected to bring a
grievance on her own behalf or inform the Federation of the change in her
position.  While the Federation was entitled to bring this grievance to
enforce VSC's contractual duties, we agree with the concurring opinion of
one Board member: "[T]o make the employee whole for the LTA III work that
she did, she should only receive 20 percent of the salary difference between
the LTA II and LTA III positions."

     The Board's order sustaining the grievance is affirmed.  The back pay
award is reversed and remanded for a determination of an appropriate remedy
in accordance with this order.







                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


                                   Ernest W. Gibson III, Associate Justice


[ ]  Publish                       John A. Dooley, Associate Justice

[ ]  Do Not Publish
                                   James L. Morse, Associate Justice


                                   Denise R. Johnson, Associate Justice