Grievance of West

In re West  (95-564); 165 Vt 445; 685 A.2d 1099

[Opinion Filed 13-Sep-1996]


       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. 95-564


Grievance of Ronald West and                      Supreme Court
Merill Cray
                                                  On Appeal from
                                                  Labor Relations Board

                                                  April Term, 1996


Charles H. McHugh, Chairman

       Samuel C. Palmisano, VSEA Legal Counsel, and Mark Heyman, Law Clerk
  (On the Brief), Montpelier, for grievants-appellees

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


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


       GIBSON, J.   The State of Vermont appeals an order of the Vermont
  Labor Relations Board requiring the State to provide information to the
  Vermont State Employees' Association, Inc. (VSEA) for use in bringing a
  classification grievance.  We affirm.

       The facts are not in dispute.  The Office of the Secretary of State
  employs grievants West and Cray as investigators in the Office of
  Professional Regulation (OPR).  Following a 1990 classification review by
  the Department of Personnel, the position of OPR investigator was renamed
  "licensing board investigator" (LBI) and separated into three levels, LBI I
  (Pay Grade 17), LBI II (Pay Grade 18), and LBI III (Pay Grade 19);
  grievants are both classified as LBI IIIs.

       In December 1993, the Secretary of State filed a request for
  classification review (RFR) that recommended elevating all licensing board
  investigators to Pay Grade 22, which is the pay grade assigned to
  investigators employed by the Office of the Attorney General.  At an April
  1994 meeting with classification analysts from the Department, grievants
  argued that their

 

  positions were fully comparable to the Attorney General's investigators and
  should receive the same pay grade.  The analysts reached a preliminary
  conclusion that licensing board investigators, including grievants, should
  receive Pay Grade 19.

       In early 1994, the Department appointed a so-called "benchmark
  committee" to conduct, for internal purposes only, classification reviews
  of entire occupational groups or classes.  As its first project, the
  committee was instructed to review all investigator positions in state
  service. The Department hired Norman Willis, a personnel consultant, to
  train the benchmark committee to conduct the reviews.  An investigator in
  the Attorney General's Office learned of the committee's work and filed a
  grievance with the Department, which ordered the internal review suspended
  until further notice.

       The benchmark committee, however, continued its assignment as a
  training exercise and completed a classification review of all positions in
  the investigator class.  The committee recommended that the Department
  upgrade some investigator positions and downgrade others, and further
  recommended that all licensing board investigators in OPR be consolidated
  into a single class and assigned Pay Grade 19.  On June 13, 1994, the
  Department's operations director forwarded the committee's recommendations
  to the Commissioner of Personnel and to Norman Willis.  In a June 27, 1994
  letter to the operations director, Willis noted that he had reviewed the
  committee's work and reached similar conclusions.

       On August 4, 1994, the Department notified grievants that the
  classification review, conducted in response to the Secretary of State's
  RFR, had resulted in the consolidation of all licensing board investigators
  into a single class at Pay Grade 19; grievants' pay grade therefore
  remained the same.  According to the Employee Notice Forms that grievants
  received:

        The rating assigned to the Secretary of State's investigators fits well
     into the entire range of investigative classes which were reviewed.
     These ratings fall into three broad categories:

                  Positions which deal primarily with paper record reviews
               received a rating of pay grade 17.

                  Positions which must proceed beyond paperwork to the
               interviewing of witnesses and the analysis of other physical

 

               evidence were assigned to pay grade 19.

                  Positions which, in addition to investigations, are required
               to do more than the investigative nature of their job and have
               more complex roles in the respective departments.

          The Secretary of State's Investigators are most appropriately
          considered as part of the middle group (pay grade 19).


  (Emphasis added.)

       Pursuant to Article 16 § 3(d) of its 1994-96 collective bargaining
  agreement with the State (Agreement), VSEA requested an informal meeting
  with the Department's operations director to discuss the classification
  decision.  In that meeting, VSEA learned for the first time that the
  classification review and recommendations had come from the benchmark
  committee, and that Norman Willis had reviewed the committee's work and
  made the same recommendation.

       On August 21, 1994, VSEA asked the Department to provide it with all
  materials that Willis had used to review the committee's work.  The
  Department sent the VSEA copies of materials used by the benchmark
  committee and by Willis to reach their recommendations. These materials
  were redacted, however, to eliminate references to state investigator
  positions in departments other than OPR, because the Department did not
  wish the benchmark committee's internal recommendations made public until
  the Department had acted upon those recommendations.

       In November 1994, the VSEA filed a grievance with the Department,
  alleging that the Department violated the Agreement by failing to provide
  VSEA with all information used by the Commissioner during the
  classification review.(FN1)  The Department denied the grievance, and
  pursuant to Article 16 of the Agreement, VSEA filed the instant grievance
  with the Board.

       The Board held two days of hearings on April 27 and May 4, 1995.  At
  the April 27

 

  hearing, the State moved to dismiss the grievance for lack of
  subject-matter jurisdiction. Grievants moved to amend the grievance to
  allege violation of Article 6(5) of the Agreement, which provides, in
  relevant part:

     5.  The State will also provide such additional information as is
     reasonably necessary to serve the needs of the VSEA as exclusive
     bargaining agent and which is neither confidential nor privileged under
     law.  Access to such additional information shall not be unreasonably
     denied.  Failure to provide information as required under this Article
     may be grieved through the grievance procedure to the Vermont Labor
     Relations Board . . . .

  (Emphasis added.)  By order dated September 29, 1995, the Board granted
  grievants' motion to amend, and concluded that the State had violated
  Article 6(5) by failing to provide VSEA with information concerning
  investigator positions in other state agencies.  The present appeal
  followed.

       Interpretations of collective bargaining agreements are within the
  particular expertise of the Board, and we review such interpretations with
  great deference to the Board's expertise. In re Vermont State Employees'
  Ass'n, ___ Vt. ___, ___, 666 A.2d 1182, 1183 (1995).  We presume that the
  Board's actions are correct and reasonable, In re Towle, ___ Vt. ___, ___,
  665 A.2d 55, 58 (1995), and we will uphold the Board's order if the
  findings of fact, taken as a whole, justify the Board's ultimate
  conclusion.  Vermont State Employees' Ass'n, ___ Vt. at ___, 666 A.2d  at
  1183.

                                I.

       The State contends that the Board erred in concluding that Article
  6(5) of the Agreement applies to information requested in the course of an
  Article 16 classification grievance.  In the State's view, Article 6(5) is
  expressly limited to situations in which VSEA acts "as exclusive bargaining
  agent," and the duties of an exclusive bargaining agent under the State
  Employees Labor Relations Act, 3 V.S.A. §§ 901-1007, are limited to
  negotiating agreements.

       According to the State, VSEA's role "as exclusive bargaining agent" is
  defined by 3 V.S.A. § 941(h), which provides that "[a] representative
  chosen by secret ballot for the purposes of collective bargaining by a
  majority of the votes cast shall be the exclusive representative of

 

  all the employees in such unit for a minimum of one year."  (Emphasis
  added.)  The Act defines "collective bargaining" to mean "the process of
  negotiating terms, tenure or conditions of employment between the state of
  Vermont . . . and representatives of employees with the intent to arrive at
  an agreement."  3 V.S.A. § 902(2) (emphasis added).  Thus, according to the
  State, VSEA acts as exclusive bargaining agent only when it negotiates
  contracts, not when it represents employees in classification grievances.

       Our primary goal in interpreting statutes is to give effect to the
  intent of the Legislature, which we attempt to discern first by looking to
  the language of the statute.  State v. Wool, 162 Vt. 342, 348, 648 A.2d 655, 659 (1995).  In determining legislative intent, we look beyond the
  language of a particular section, standing alone, to the whole statute. 
  Lemieux v. Tri-State Lotto Comm'n, ____ Vt. ___ , ____, 666 A.2d 1170, 1173
  (1995).

       We do not believe that the Act, when read as a whole, manifests a
  legislative intent to distinguish VSEA's duty to negotiate agreements from
  its other duties, such as its duty to represent state employees in
  classification grievances.  The Act defines the word "grievance" to mean,
  in relevant part, the "collective bargaining representative's expressed
  dissatisfaction, presented in writing, with aspects of employment or
  working conditions under collective bargaining agreement."  3 V.S.A. §
  902(14).  In the Classification of State Personnel Act, 3 V.S.A. §§
  309-331, the Legislature provided that "[t]he appeal procedures for
  classification and reclassification of an employee's or employees'
  positions shall be a subject for collective bargaining and when bargained
  this aspect of employment may be included as a grievance under section
  902(14) of this title."  3 V.S.A. § 310(g).  By the plain language of the
  statute, therefore, classification grievances fall within VSEA's duties as
  exclusive bargaining agent.

       The State argues, however, that interpreting Article 6(5) to cover
  classification, as well as bargaining, grievances renders other provisions
  of the Agreement meaningless.  Specifically,

 

  the State points to Article 11(3) and Article 17 § 2(b)(FN2) as being
  rendered superfluous under an expansive reading of Article 6(5).  We
  disagree.

       Traditional principles of contract law govern the construction of
  collective bargaining agreements.  Vermont State Colleges Faculty Fed'n v.
  Vermont State Colleges, 151 Vt. 457, 461, 561 A.2d 417, 420 (1989).  When
  an agreement is clear and unambiguous, the plain meaning of the agreement
  governs its interpretation.  Workman v. Agency of Transp., ___ Vt. ___,
  ___, 657 A.2d 174, 176 (1994) (mem.).  We assume that parties included
  contract provisions for a reason, and we will not embrace a construction of
  a contract that would render a provision meaningless.  See Blodgett Supply
  Co. v. P.F. Jurgs & Co., 159 Vt. 222, 232, 617 A.2d 123, 128 (1992)
  (rejecting construction of first clause that would render second clause
  meaningless).  Rather, we are obligated to enforce a contract as it is
  written, and to read the agreement in its entirety, so that the parts form
  a harmonious whole.  Hill v. City of Burlington, 157 Vt. 241, 247, 597 A.2d 792, 795 (1991).

       We see no conflict between the Board's interpretation of Article 6(5)
  and the provisions of Article 11(3) or Article 17 § 2(b).  The obligation
  created in Article 11(3) is to the employee, not to VSEA; the obligation
  created in Article 17 § 2(b) is one of notification, not document
  production.  The State's argument is therefore unavailing.

       The State also contends that the Board's interpretation creates an
  unfair distinction between employees represented by VSEA and those not
  represented by VSEA.  In the Board's view, an employee represented by VSEA
  in a grievance hearing is entitled to documents under both Article 6(5) and
  Article 11(3), while an employee not represented by VSEA is entitled to
  documents only under Article 11(3).  We disagree.

 


       Article 6(5) obligates the State to provide information to VSEA, not
  to the employee. The Agreement further provides, in Article 15 § 5, that
  "the VSEA (whether or not it is representing the aggrieved employee) . . .
  shall have the right to be present, [and] to participate . . . as a party
  in interest" in any grievance proceeding.  (Emphasis added.)  Thus, any
  distinction between represented and unrepresented employees in grievance
  proceedings arises by choice of the employee rather than by operation of
  the Agreement.

       Given our great deference to the Board's interpretations of the
  Agreement, we see no reason to disturb the Board's conclusion.

                                II.

       The State also contends that the Board improperly adjudicated a matter
  over which it lacked jurisdiction.  According to the State, the Board
  exercised its authority over grievances, as set forth in Article 15 of the
  Agreement, to adjudicate a classification grievance that arose under
  Article 16.

       The State's argument is fully addressed by our earlier determination
  that Article 6 gives VSEA the right to obtain information without regard to
  the type of proceeding in which VSEA participates.  Once VSEA requests such
  information and the State denies the request, Article 6(5) expressly
  provides that the State's "[f]ailure to provide information as required
  under this Article may be grieved through the grievance procedure to the
  Vermont Labor Relations Board."  The Agreement comports with the Board's
  statutory jurisdiction.  See 3 V.S.A. § 926 ("The board shall hear and make
  final determination on the grievances of all employees who are eligible to
  appeal grievances to the board.").  The State's contention is therefore
  without merit.

       Affirmed.


                              FOR THE COURT:



                              _____________________________________________
                              Associate Justice




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                                  Footnotes

FN1.  VSEA also alleged that the Department acted arbitrarily and
  capriciously in denying a request to tape-record informal meetings in the
  classification-grievance process.  The Board subsequently affirmed the
  Department's denial, and VSEA has not pursued this claim on appeal.


FN2.  Under Article 11(3), "Any material, document, note, or other
  tangible item which is to be entered or used by the employer in any
  grievance hearing held in accordance with the Grievance Procedure Article,
  of this Agreement, or hearing before the Vermont Labor Relations Board, is
  to be provided to the employee on a one-time basis, at no cost to him/her."

       Under Article 17 § 2(b), "The State shall provide written notification
  to the VSEA of all new rules and changes to existing rules concurrent with
  the notice to employees."