In re V.S.E.A.

IN_RE_VSEA.93-024; 162 Vt. 277; 648 A.2d 394

[Opinion Filed July 1, 1994]


 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. 93-024


 Grievance of V.S.E.A.                        Supreme Court
 (Standby Pay)
                                              On Appeal from
                                              Labor Relations Board

                                              May Term, 1994



 Charles H. McHugh, Chair

 Jeffrey L. Amestoy, Attorney General, and Michael Seibert, Assistant
    Attorney General, Montpelier, for appellant State of Vermont

 Jonathan Sokolow, Montpelier, for appellee Vermont State Employees'
 Association


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



      GIBSON, J.   The State appeals a decision of the Vermont Labor
 Relations Board in favor of the Vermont State Employees' Association, Inc.
 (VSEA).  The Board held that social workers in the Bennington and St.
 Johnsbury offices of the Department of Social and Rehabilitation Services
 (SRS) had been led to believe they had to be reachable and able to respond
 to emergency "call-outs" while on "available" status during off-duty hours.
 The Board ordered SRS to pay the affected workers at a "standby" rate for
 all hours they had spent on available status since the inception of a new
 off-hours policy in July of 1990.  We affirm.

 

      SRS social workers may be required to provide emergency services during
 off-hours.  The off-hours status categories are defined in the Non-Management
 Unit and Supervisory Unit collective bargaining agreement (Contract) between
 the State and VSEA.  According to the Contract, workers on "standby" status
 must be reachable by telephone or beeper so they can respond to a call within
 one hour and report for duty within one hour of being reached.  Workers on
 "available" status must leave word where they can be reached, but the
 Contract imposes no travel or response-time restrictions.  "Standby" workers
 are paid one-fifth their normal salary while on standby status; "available"
 workers are uncompensated.  If a worker is called out while on either status,
 the worker is paid a minimum of four-hours' overtime for providing emergency
 services.
      In July 1990, SRS initiated a cost-cutting program under which district
 offices could split workers' standby hours into standby and available
 categories, thereby saving on standby compensation.  Division of Social
 Services Director Stephen Dale sent a memorandum to district directors to
 clarify the meaning of available status and the Division's expectations
 regarding it:

           Availability is not stand-by, so there is no specific
           response time, and the employee does not need to be able
           to guarantee accessibility to a phone, and there are no
           specific restrictions on employee travel or behavior.
           When you reach a worker, you can expect a timely
           response appropriate to the nature of the emergency and
           the employee's individual situation.  Our expectations
           must be "reasonable."
      VSEA filed a grievance with the Board, see 3 V.S.A. { 926, alleging
 that due to restrictions imposed or implied by district directors, workers on
 available status under the new policy were essentially still on standby
 status without compensation.  The Board held hearings in October 1991 and

 

 concluded that the policy as promulgated in the Dale memorandum was
 consistent with Contract provisions regarding the expectations for available
 status, but that district directors in Bennington and St. Johnsbury violated
 the Contract in their implementation of the policy.
      The Board found that in explaining the policy, the Bennington District
 Director, Charles Gingo, told workers that if they were on available status
 but could not respond when reached for a call-out, he would consider disci-
 plining them.  Gingo thereafter received further guidance from Stephen Dale
 concerning available status, in which there was no mention of authority to
 discipline, but Gingo never retracted his statement to the Bennington social
 workers.  The Board found that as of the date of its first hearing on the
 VSEA grievance, Gingo still believed discipline would be an option where
 workers on available status failed to respond.
      The Board found that workers in the St. Johnsbury office also believed
 they were not free to travel while on available status.  St. Johnsbury
 District Director Harry Adamek asked workers to cooperate with a police
 request for immediate response in emergency off-hours situations, and when
 questioned how available status fit with this, told workers that response-
 time expectations for workers on standby and available status were the same.
 Adamek indicated he might have to impose discipline on workers who could not
 be reached or were unable to respond to a call-out while on available status.
      Based on its findings, the Board concluded that workers in the two
 offices reasonably believed that while on available status they were "not
 free to travel where they [could] not be reached and would not be able to
 quickly respond to a call out."  The Board held that such a requirement
 violated the Contract, and awarded standby compensation plus interest for

 

 sixteen workers who had been placed on available status since the inception
 of the cost-cutting policy in July 1990.(FN1)
      In making factual findings, the Board must employ a "preponderance of
 the evidence" standard.  In re Muzzy, 141 Vt. 463, 472, 449 A.2d 970, 974
 (1982).  We will not disturb the Board's findings so long as credible
 evidence fairly and reasonably supports them.  Id. at 470-71, 449 A.2d  at
 973.  The assessment of a witness's credibility is a matter for the special
 expertise of the Board.  See Ohland v. Dubay, 133 Vt. 300, 303, 336 A.2d 203, 205 (1975).
      At the hearing, the Board heard testimony from Division Director
 Stephen Dale, District Director Gingo, two social workers from Bennington,
 two from the St. Johnsbury office, and other witnesses.  The State's
 contention on appeal is that the Board's findings were clearly erroneous
 because the employees' testimony was not credible.  There was ample credible
 testimony to support the Board's findings, however.  With respect to the
 Bennington office, District Director Gingo himself testified that he
 believed he had the right, under the Contract terms, to discipline a worker
 on available status who was unable to respond to a situation requiring
 immediate response.  With respect to the St. Johnsbury office, social worker
 Julie Ainsworth Boardman testified that District Director Adamek conveyed to
 staff the expectation that they should be reachable by telephone when on

 

 available status and able to respond to a call-out so that he would not have
 to consider disciplinary measures.  The State policy is clear, however, that
 a worker on available status need not be reachable by telephone and would
 thus not be subject to discipline under such circumstances.  The Board's
 findings were not clearly erroneous, and its conclusion is supported by the
 findings.
      The State also contends there was insufficient evidence to support a
 finding that nontestifying workers believed their freedom of travel was
 restricted.  The issue was not raised by the State during the hearing, or in
 the State's motion for reconsideration following issuance of the Board's
 decision, or at the hearing on the reconsideration motion.  As a result, the
 Board declined to address the issue in its opinion following the hearing on
 reconsideration.  In effect, the Board treated the issue as not having been
 preserved by the State, and we are inclined to agree.  In any event, the
 Board allowed testimony from the witnesses as to their own understanding of
 the meaning of "available" status, and that testimony supports the finding as
 to the understanding of the other workers in their respective offices.  The
 witnesses testified about office meetings and discussions that had taken
 place, and that all of the workers had conformed their conduct to the general
 understanding.  The evidence supports the Board's decision, and the State's
 argument is therefore meritless.
      Affirmed.

                                    FOR THE COURT:



                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice


------------------------------------------------------------------------------
                             Footnotes

FN1.      The Board held a hearing on the State's motion to reconsider, and
 thereafter revised its order for payment to the Bennington and St. Johnsbury
 social workers.  The Board found that a memorandum from Stephen Dale dated
 October 25, 1991, just after the last Board hearing, clearly permitted
 unrestricted travel to those on available status.  The Board therefore
 ordered back pay to be computed from the date of the policy inception in July
 1990 to the date at which the Dale memorandum came to the workers' attention
 in each of the two offices.