In re Whitney

In re Whitney  (96-535); 168 Vt. 209; 719 A.2d 875

[Filed 7-Aug-1998]


       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. 96-535


In re Grievance of Warren Whitney, et al.    Supreme Court

                                             On Appeal from
                                             Labor Relations Board

                                             February Term, 1998


Catherine L. Frank, Chair

       Samuel C. Plamisano, VSEA Legal Counsel, and Mark Heyman, Assistant
  Legal Counsel, Montpelier, for Plaintiff-Appellees.

       William H. Sorrell, Attorney General, and David K. Herlihy, Assistant
  Attorney General, Montpelier, for Defendant-Appellant.


PRESENT:  Dooley, Morse, Johnson and Skoglund, JJ., and Wesley, Supr.
          J., Specially Assigned


       DOOLEY, J.  The State of Vermont (Department of Public Safety) appeals
  from a ruling of the Vermont Labor Relations Board which granted back pay
  to certain detective investigators (grievants) with the Vermont State
  Police because the State had impermissibly changed the holiday staffing
  schedule.  The back pay award provided compensation for the holidays that
  each grievant would have worked under the prior schedule minus any standby
  and call-out pay the grievants received under the new schedule.  The State
  argues that the Board's decision was erroneous because (1) the holiday
  staffing issue was not properly raised during the grievance process and
  before the Board; (2) grievants' claim is barred by the State Employee
  Labor Relations Act (SELRA); and (3) the back pay award was not tied to
  actual damages suffered by the grievants.  We affirm.

       Prior to June 1, 1995, the detective investigators' work schedules
  consisted of regular Monday through Friday shifts, with weekend coverage
  provided by one officer within each troop

 

  on a rotating basis.  The assigned detective investigator was scheduled to
  be off on Thursday and Friday and to work on Saturday and Sunday.  When a
  detective worked the weekend shift, he received a fifty-dollar premium
  pursuant to the collective bargaining agreement between the State of
  Vermont and the Vermont State Employees' Association, Inc. (VSEA).  In
  addition, a detective who worked a duty weekend also worked any holiday
  that occurred during the following week and received, per the contract,
  holiday compensation of time and one half.

       On June 1, 1995, the director of the Bureau of Criminal Investigation
  unilaterally changed the schedule.  The new schedule required all detective
  investigators to work a regular Monday through Friday week.  Rather than
  having a weekend duty officer, the new schedule provided weekend coverage
  by assigning a designated detective to carry a pager and remain on standby
  status.  The standby detective also covered holidays that occurred during
  the week following the standby weekend.  Detectives assigned to standby
  status on the weekends or holidays received one eighth of their regular pay
  for each hour of standby.  If the detective was called in to work, the
  detective received at least four hours of overtime pay.

       Certain detective investigators opposed the schedule change and,
  through VSEA, filed a grievance with the Department of Personnel (step III
  of the contracted grievance process).  The grievance was not resolved at
  the step III level, and consequently, on September 19, 1995, VSEA filed a
  grievance with the Board.  The grievants contended that the schedule change
  violated Articles 2, 20 and 21 of the collective bargaining agreement and
  deprived them of regularly scheduled days off.  Specifically, grievants
  argued that Article 21, Section 2 of the collective bargaining agreement
  defined the regular work schedule and incorporated the shift schedules
  existing on June 30, 1988.  Thus, they argued that any changes to the work
  schedule must occur through the collective bargaining process and could not
  be unilaterally imposed by management.

       On February 1, 1996, prior to any Board hearing on the grievance, the
  State agreed to return to the schedule that existed prior to June 1, 1995. 
  Nevertheless, grievants went forward

 

  with the Board hearing in an effort to obtain compensation for the days
  they would have been scheduled to work under the previous schedule.  On
  June 14, 1996, the Board issued its findings, opinion and order, holding
  that the State had improperly changed grievants' schedule without use of
  the bargaining process.  It decided that because grievants had been
  compensated for standby status, no financial remedy was appropriate for the
  change in the weekend coverage schedule during the eight months it was in
  effect.  It also decided, however, that compensation was appropriate for
  the holidays that grievants would have worked during that period.  The
  Board's compensation scheme called for dividing the total number of holiday
  hours during the period equally among the fifteen grievants, with each
  grievant being compensated at his or her overtime holiday pay rate.

       VSEA moved to amend the judgment because the State refused to revert
  to the pre-June, 1995 schedule for holiday coverage despite its promise to
  do so.  The State resisted this request, arguing that holiday coverage was
  never part of the grievance.  On this basis and because the remedy provided
  pay for days never worked, it also sought to amend the judgment to strike
  the back pay award for holiday coverage.  The Board sided with VSEA; it
  found that the grievance always covered holiday, as well as weekend,
  scheduling; and it ordered the State to revert to the prior schedule for
  holiday coverage.  It rejected the State s argument that a back pay award
  was improper, but modified its order so that each individual grievant was
  compensated based on holiday hours that the grievant would have worked
  under the previous schedule, less any actual pay received for stand-by and
  call-outs. This appeal followed.

       We begin by noting that the State has not appealed the merits of the
  Board's decision that the unilateral change in the holiday coverage
  schedule, without collective bargaining, violated provisions of the
  contract between VSEA and the State.  Its arguments on appeal are: (1) the
  issue of holiday coverage was not raised in the grievance appeal to the
  Board; (2) the issue of holiday coverage was not raised in earlier steps of
  the grievance process, and, thus, could not be considered by the Board; (3)
  awarding pay for days where work is not needed by the

 

  employer violates SELRA, 3 V.S.A. § 962(7); and (4) the Board cannot award
  back pay for days on which grievants did not actually work.

       The State's first argument is that the issue of holiday staffing was
  not properly raised in the appeal to the Board.  The Board disagreed,
  holding that the issue of holiday staffing was sufficiently raised in the
  grievance and in the evidence presented at the hearing.  Grievants support
  the Board s rationale, adding that if the issue of holiday coverage was not
  raised sufficiently in the grievance, it was tried by the implied consent
  of the parties.

       The Board has the power to specify grievance procedure by rule.  See 3
  V.S.A. §§ 926, 928(a).  Pursuant to this power, the Board has adopted a
  rule requiring that a notice of grievance contain a concise statement of
  the nature of the grievance, references to the specific sections of the
  collective bargaining agreement or rules and regulations alleged to have
  been violated, and a brief statement of facts concerning the grievance. 
  Vermont Labor Relations Bd., Rules of Practice § 18.3(C), (D) & (E); see
  also In re Ulrich, 157 Vt. 290, 293-94, 597 A.2d 314, 315-16 (1991)
  (relying on similar provisions of collective bargaining agreement).  Notice
  is adequate in an administrative proceeding if the parties are sufficiently
  apprised of the nature of the proceeding so that there is no unfair
  surprise.  See In re Vt. Health Service Corp., 155 Vt. 457, 460, 586 A.2d 1145, 1147 (1990).

       We treat the Board s decisions with deference, see In re Towle, 164
  Vt. 145, 148, 665 A.2d 55, 58 (1995), and presume the Board s decisions are
  correct and reasonable, see In re West, 165 Vt. 445, 449, 685 A.2d 1099,
  1102 (1996).  We agree with the Board that the grievance appeal in this
  case was adequate to raise the issue of holiday staffing.  The appeal
  provided that the State on May 15, 1995 unilaterally, and over the
  objection of VSEA, instituted a schedule change which entailed the
  conversion of regularly scheduled days off to standby duty; that the
  schedule changes violated Articles 2, 20 and 21 of the collective
  bargaining contract; and VSEA requested that the Board order that the State 
  immediately rescind the . . . schedule change posted May 15, 1995, and
  reinstate the schedule worked prior to that.   The grievance

 

  covered the entire schedule change that occurred on May 15, 1995.  It was
  not limited to the change in the weekend staffing policy.  It never
  mentioned separately either the holiday or weekend staffing policy.

       The State argues that the grievance was inadequate because the term 
  schedule  does not cover holiday staffing and grievants never alleged a
  violation of Article 22, the article that specifically covers holidays.  In
  its decision on the merits, the Board rejected these points.  That is, the
  Board held that the change in holiday staffing policy affected the workers 
  schedule and violated Article 21 which required that shift schedules be
  maintained as those in effect on June 30, 1988 unless modified after
  further bargaining.  The Board necessarily held that the theory of the case
  presented in the grievance covered holiday staffing.

       Even if the grievance were inadequate to present the issue of holiday
  staffing, the issue was tried by the implied consent of the parties.  In a
  civil case, if an unpled issue is raised at trial, and the opposing party
  had an ample opportunity to object and failed to do so, the issue is
  treated as having been raised by the pleadings.  See V.R.C.P. 15(b) (unpled
  issues tried by express or implied consent  are treated  in all respects as
  if they had been raised in the pleadings"); Silva v. Stevens, 156 Vt. 94,
  106, 589 A.2d 852, 859 (1991) (where defendant failed to object to
  introduction of evidence bearing on unpled issue and failed to object to
  issue being charged to jury, defendant impliedly consented to trial of
  issue);  Concra Corp. v. Andrus, 141 Vt. 169, 172, 446 A.2d 363, 364 (1982)
  ("Because the partnership issue was tried without objection [at trial], it
  is treated as having been raised by the pleadings.").  The Board has
  applied the doctrine of trial by consent in unfair labor practices cases. 
  See Vermont State Employees  Ass n v. State, 7 V.L.R.B. 115, 117 (1984). 
  It is generally applicable to administrative hearings.  See Yellow Freight
  System, Inc. v. Martin, 954 F.2d 353, 358 (6th Cir. 1992).

       Grievants raised the issue of holiday staffing numerous times during
  the Board hearing. They raised it in their opening statement to the Board,
  during the direct examination of two

 

  witnesses and in a colloquy with counsel for the State at the end of the
  hearing.  They addressed it in their proposed findings and conclusions of
  law and requested relief for lost holiday wages. The State never objected
  to the arguments of grievants  counsel or the evidence on the issue, nor
  did it state that the issue was not in the case.  We are unpersuaded by the
  State s argument that discussion of holiday staffing during the
  presentation of the case did not put it on notice that the holiday staffing
  issue was in the case because weekend staffing and holiday staffing were
  intertwined.  Nor are we persuaded that the State could not object to the
  grievants  inclusion of holiday staffing in their proposed findings and
  conclusions because the Board required both parties to submit proposed
  findings and conclusions on the same date.  If the State wanted to exclude
  consideration of holiday staffing from the Board proceeding, it had to
  object to at least one of the numerous ways it was presented to the Board
  by grievants.  In the absence of an objection, the issue was tried by
  implied consent.

       In a related argument, the State argues that grievants failed to
  present the issue of holiday staffing at the prior step of the grievance
  process and, as a result, were foreclosed from raising it before the Board. 
  The Board never ruled on this argument because the State has presented it
  for the first time on appeal.

       We will not consider issues raised for the first time in this Court. 
  See In re Moriarty, 156 Vt. 160, 165, 588 A.2d 1063, 1065 (1991).  The
  State argues, nevertheless, that we must because this is a jurisdictional
  defect that cannot be waived.

       We agree that if the State had properly objected, a grievant is
  precluded from raising an issue before the Board if it has not been raised
  at earlier steps in the grievance process.  See Ulrich, 157 Vt. at 294, 597 A.2d  at 316; D Aleo v. Vermont State Colleges, 141 Vt. 534, 540, 450 A.2d 1127, 1131 (1982).  We also agree that the Board has only such jurisdiction
  as it is given by the Legislature by statute.  See In re Brooks, 135 Vt.
  563, 570, 382 A.2d 204, 208-09 (1977).

       In general, however, we require preservation of an issue in an
  administrative forum even

 

  if it can be called jurisdictional.  See In re Denio, 158 Vt. 230, 234, 608 A.2d 1166, 1168-69 (1992).  We look to three factors: extent of injury from
  pursuing the administrative remedy, the degree of clarity about
  administrative jurisdiction and the involvement of specialized
  understanding of the administrative board.  See id. at 234-35, 608 A.2d  at
  1169.  In this case, there was no reason why the State did not raise the
  issue before the Board and no barrier to its doing so.  We hold that the
  State is foreclosed from arguing that the Board could not consider the
  holiday staffing issue because it was not raised at step III.

       The State also contends that the holiday pay issue is barred by SELRA,
  3 V.S.A. § 962(7), which makes it an unfair labor practice:

     (7) To cause or attempt to cause an employer to pay or deliver or
     agree to pay or deliver any money or other thing of value in the
     nature of an exaction, for services which are not performed or not
     to be performed or which are not needed or required by the
     employer.

  The State argues that grievants are trying to cause the State to pay for
  services  which are not needed or required.   Again, this issue was not
  addressed by the Board because the State failed to raise it in that forum. 
  Accordingly, it is foreclosed from raising it here.  See Moriarty, 156 Vt.
  at 165, 588 A.2d  at 1065.

       Even if the issue had been properly preserved, we would not find that
  the State would prevail. Although its language is broader, § 962(7) is
  based on § 8(b)(6) of the National Labor Relations Act, and the federal law
  provides us with useful guidance in interpreting the state statute. 
  Section 8(b)(6) was enacted to protect against "feather-bedding" or the
  practice of forcing an employer to pay for services that were not or will
  not be performed, see International Union of Op. Eng'rs., #139 v. Carl A.
  Morse, Inc., 387 F. Supp 153, 161 (D. Wis. 1974), aff d, 529 F.2d 574 (7th
  Cir. 1976), and has been interpreted very narrowly by the courts, see NLRB
  v. Longshoremen, 473 U.S. 61, 82-83 n.22 (1985) ("this provision is a
  `narrow prohibition,' that does not prohibit payment for work actually done
  or offered, even if that work might be viewed as unnecessary or
  inefficient" (quoting Scofield v. NLRB, 394 U.S. 423, 434

 

  (1969)).  The issue here is not whether holiday work is necessary.  The
  State requires such work, but wants to limit how much it pays for such work
  through the standby system.  Grievants object to the standby system because
  they believe that the restrictions on their activities are so great that
  they should be paid full salary for this time.  We do not believe that  §
  962(7) covers this dispute.

       Finally, the State argues that grievants did not suffer any actual
  harm, and, as a result, the Board abused its discretion by providing
  compensation to grievants.  Specifically, the State contends that because
  grievants never actually worked on the holidays, the remedy provided by the
  Board constitutes punitive damages and not compensation.

       We emphasize that 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 Staff Fed'n v. Vermont State Colleges, 157 Vt. 645,
  647, 596 A.2d 355, 357 (1991) (mem.).  We recognize, nevertheless, that
  awards should "ordinarily be fashioned to reflect the aggrieved party's
  actual damages."  Id.

       The normal remedy for loss of opportunity to work is back pay.  See
  Brooks, 135 Vt. at 570, 382 A.2d  at 209.  The purpose of back pay is to
  make the grievant whole and place the grievant in the position he or she
  would have been absent a violation.  See In re Butler, 17 V.L.R.B. 247,
  345-46 (1994) (grievant who was improperly dismissed from her job in
  violation collective bargaining agreement was entitled to full back pay for
  period of work missed); In re VSEA, 15 V.L.R.B. 71, 91 (1992) (because
  employer required employees to be reachable on weekend, employees were
  entitled to back pay commensurate with "standby" duty and not "available"
  duty); see generally Angle v. N.L.R.B., 683 F.2d 1296, 1301 (10th Cir.
  1982) ("purpose of a back pay order is to . . . mak[e] an employee whole
  for any losses suffered because of an employer's unfair labor practice").

       The remedy the Board provided was back pay for the holidays grievants
  would have worked under the prior schedule, less the amount they received
  for standby duty and for work

 

  when they were called in.   It was no more punitive than any other back pay
  award.  It provided grievants compensation for days they did not work
  because the State denied them the opportunity to work and placed them on
  standby.  As amended, it offset amounts grievants actually worked for
  holiday coverage.  See In re Merrill, 157 Vt. 150, 155, 596 A.2d 345,
  348-49 (1991).

       Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice