In re Vermont State Employees' Association, Inc.

In re Vermont State Employees' Association, Inc. (2004-141); 179 Vt. 228;
893 A.2d 333

2005 VT 129

[Filed 23-Dec-2005]


       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.


                                 2005 VT 129

                                No. 2004-141


  In re Grievance of Vermont State Employees'	 Supreme Court
  Association, Inc. and Diane Dargie
                                                 On Appeal from
                                                 Labor Relations Board

                                                 April Term, 2005	


  Richard W. Park, Chair

  Beth Robinson and Lisa B. Shelkrot of Langrock Sperry & Wool, LLP,
    Middlebury, for Plaintiffs-Appellants.

  William H. Sorrell, Attorney General, and Bridget C. Asay and 
    Kevin O Leske, Assistant Attorneys General, Montpelier, 
    for Defendant-Appellee.


  PRESENT:  Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and  
            Allen, C.J. (Ret.),  Specially Assigned 
                      
        
       ¶  1.  SKOGLUND, J.   This appeal concerns the right of a State of
  Vermont employee to request and receive union representation during a
  meeting with management where no disciplinary action against the employee
  is contemplated.  The Vermont Labor Relations Board held that Article 14, §
  7 of the collective bargaining agreement between the State of Vermont and
  the Vermont State Employees Association (VSEA) did not entitle the employee
  in this case, Diane Dargie, to insist on the presence of a union
  representative under the facts presented.  VSEA appeals, claiming that the
  Board's decision eviscerates the contract right of union representation in
  situations where the employee believes she may be subject to discipline. 
  Because we find no error in the Board's decision, we affirm.

       ¶  2.  The Board's unchallenged factual findings establish the
  following series of events.  On January 27, 2003, grievant Diane Dargie, a
  District Seven bridge mechanic for the Agency of Transportation (AOT), was
  asked by her immediate supervisor to attend a meeting with him and the
  District Seven foreman after the lunch break.  Grievant asked whether she
  needed a VSEA representative with her at the meeting, and the supervisor
  told her to ask the foreman.  When grievant met the foreman in the office
  after lunch, she asked him why he wanted to meet with her and whether she
  should have a union representative with her.  The foreman did not answer
  the questions and escorted grievant to her supervisor's office.

       ¶  3.  Once  in the office, grievant's supervisor and the foreman
  addressed grievant's work absences.  The previous week, grievant had taken
  a day off without getting advance approval from her supervisor.  The
  foreman told grievant that she must get permission twenty-four hours in
  advance to take time off from work.  The exchange between the foreman and
  grievant became heated.  At one point, grievant picked up the telephone and
  tried to call Gary Hoadley, her VSEA representative.  The foreman
  instructed grievant to put the telephone down.  When he told her to hang up
  a second time, the foreman also warned that grievant would be charged with
  insubordination if she remained on the telephone.  Grievant finally
  complied and left the office. 
   
       ¶  4.  Three days later, on January 30, the foreman asked to meet
  with grievant again.  Like the last time, the foreman did not tell her the
  purpose of the meeting.  Grievant called Hoadley and asked him to attend
  the meeting with her.  When Hoadley and grievant arrived at the District
  Seven office, the foreman told Hoadley that he had no right to attend the
  meeting with grievant.  The foreman and grievant then met alone for less
  than one minute.  The foreman handed grievant a performance feedback form,
  which noted grievant's unauthorized absences from work.  The document
  advised grievant to comply with the provisions in the collective bargaining
  agreement regarding notice and approval of planned time off from work.  The
  feedback form also described grievant's "completely uncooperative" and
  disruptive behavior during the January 27 meeting.  Grievant was advised
  that further incidents of "uncooperative, disruptive or insubordinate
  behavior will be addressed through progressive discipline, as described in
  Article 14 of the Contract."  Grievant left the meeting with a copy of the
  document in hand.  Although grievant was not disciplined for her
  unauthorized work absences or her uncooperative behavior on January 27, she
  filed a grievance against AOT on May 16, 2003. (FN1)
   
       ¶  5.  Grievant claimed, among other things, that the State violated
  her rights under Article 14, § 7 of the State employees' collective
  bargaining agreement by preventing her from consulting with Hoadley during
  the January 27 meeting and by refusing Hoadley admittance to the January 30
  meeting with grievant and her foreman.  The Board rejected both
  contentions.  The Board construed Article 14, § 7 to mean that an employee
  has the right to request and receive union representation (1) whenever the
  employee is asked by management to provide information about an issue that
  could result in discipline against the employee, and (2) whenever the
  employer calls a meeting with the employee for the purpose of imposing
  discipline.  The Board found that neither circumstance was present in this
  case.  The January 27 meeting was called to discuss grievant's unauthorized
  absences from work, but was neither investigatory nor disciplinary in
  nature.  Similarly, the brief meeting on January 30 was neither
  investigatory nor disciplinary; its purpose was to give grievant feedback
  on her work performance.  Accordingly, the Board dismissed the grievance,
  and VSEA appealed. (FN2) 

       ¶  6.  The central issue on appeal concerns the scope of an employee's
  rights under Article 14, § 7 of the collective bargaining agreement, which
  states in relevant part:

    Whenever an employee is required, by his or her supervisor or
    management, to give oral or written statements on an issue
    involving the employee, which may lead to discipline against the
    employee, or whenever an employee is called to a meeting with
    management where discipline is to be imposed on the employee, he
    or she shall be notified of his or her right to request the
    presence of a VSEA representative and, upon such request, the VSEA
    representative shall have the right to accompany the employee to
    any such meeting.  The notification requirement shall not apply to
    the informal initial inquiry of the employee by his or her
    supervisor without knowledge or reason to believe that discipline
    of the employee was a likely possibility. 

  VSEA argues that Article 14, § 7 expands upon the right of union
  representation that the Supreme Court upheld in National Labor Relations
  Board v. J. Weingarten, Inc., 420 U.S. 251 (1975).  Under Weingarten, VSEA
  explains, an employee's right to union representation during a meeting with
  management arises whenever the employee reasonably believes that the
  employer is contemplating discipline.  VSEA's contract with the State of
  Vermont goes beyond the limits of Weingarten by requiring the State to
  provide notice to the employee of her rights to union representation.  VSEA
  argues that the notice requirement in Article 14, § 7 was not intended to
  replace the employee-focused nature of the right to representation.  Thus,
  according to VSEA's interpretation of the agreement, an employee may insist
  upon union representation during a meeting with management whenever the
  employee believes discipline is a possibility-whether or not the employer
  is, in fact, contemplating discipline and whether or not the notice
  required by Article 14, § 7 has been provided. 

       ¶  7.  The Board rejected VSEA's construction of Article 14, § 7, and
  we review that decision with substantial deference.  In re Gregoire, 166
  Vt. 66, 72, 689 A.2d 431, 435 (1996).  To better understand the Board's
  conclusion and VSEA's claims, we turn to the United States Supreme Court's
  decision in Weingarten.

       ¶  8.  Weingarten concerned the right of employees, under § 7 of the
  National Labor Relations Act (NLRA), 29 U.S.C. § 157, to act together for
  their mutual aid and protection in the context of an employer's
  investigation into employee misconduct.  When an employee is confronted by
  her employer about a matter that could result in discipline, § 7 of the
  NLRA allows the employee to seek assistance from a union representative. 
  The Supreme Court explained that in those circumstances, the union
  representative can safeguard both the employee's interests and the
  interests of other union members "by exercising vigilance to make certain
  that the employer does not initiate or continue a practice of imposing
  punishment unjustly."  Weingarten, 420 U.S.  at 260-61.  Therefore, the
  Court held, an employer commits an unfair labor practice when it denies an
  employee's request for union representation during an investigative
  interview that the employee reasonably believes might result in discipline. 
  Id. at 260.  
   
       ¶  9.  An employee's Weingarten right to union representation is not
  without limits.  The right is "limited to situations where the employee
  reasonably believes the investigation will result in disciplinary action,"
  and where the employee asks for union representation.  Id. at 257.  Thus,
  only investigatory interviews leading to disciplinary action or meetings
  where discipline will be imposed are subject to Weingarten.  The Supreme
  Court further explained that an employee's exercise of Weingarten rights
  may not "interfere with legitimate employer prerogatives," and that during
  the investigatory interview, the employer is under no obligation to bargain
  with the union representative.  Id. at 258.

       ¶  10.  In this case, the Board determined that VSEA presented
  insufficient evidence that the meetings of January 27 and 30 were
  "investigative interviews concerning whether Dargie should be disciplined." 
  VSEA does not challenge that finding.  Rather, VSEA contends that the
  critical factor here is grievant's "objectively reasonable" belief that the
  meetings to which she was summoned would address whether discipline should
  be imposed for her unauthorized work absences.  Accordingly, VSEA argues,
  grievant's AOT supervisor and the District Seven foreman should have
  permitted her to speak or meet with Hoadley.  We disagree.  

       ¶  11.  The Board determined that Article 14, § 7 of the collective
  bargaining agreement embodied the representation rights established by
  Weingarten.  The Board also concluded, however, that the notice provision
  in Article 14, § 7 modified the circumstances that trigger the right to
  union representation during an employer/employee confrontation.  The
  parties' contract identifies the trigger as notice from the employer, not
  the employee's belief about what might result from a meeting with a
  supervisor.  We note that Board precedent prohibits the imposition of
  discipline if the State fails to give notice of an employee's Weingarten
  rights when the circumstances require it in accordance with Article 14, §
  7.  VSEA has not demonstrated error in the Board's interpretation of the
  parties' agreement.
   
       ¶  12.  When considered in light of Weingarten's reasonableness
  standard, the soundness of the Board's decision is also apparent. 
  Weingarten applies when the employee holds a reasonable belief that
  discipline may be imposed following an investigatory interview.  See id. at
  257 ("[T]he employee's right to request representation as a condition of
  participation in an interview is limited to situations where the employee
  reasonably believes the investigation will result in disciplinary
  action.").  VSEA argues that grievant reasonably believed that she might be
  disciplined and therefore was entitled to Hoadley's assistance at both the
  January 27 and January 30 meetings.  But grievant's belief was legally
  unreasonable in light of the notice provision in Article 14, § 7 and the
  Board's policy to vacate any punishment imposed in the absence of such
  notice.  Stated differently, because the Weingarten right to union
  representation arises only when discipline is a possibility, and because
  the State must notify an employee of the right to representation when those
  circumstances exist, or forgo discipline altogether, it is unreasonable for
  an employee to believe that discipline is under consideration in the
  absence of the Article 14, § 7 notice.  In this case, grievant had no basis
  to believe she was going to be disciplined when called to the January 27
  and 30 meetings because AOT had not provided her with notice of her
  Weingarten rights in accordance with the parties' contract. 

       ¶  13.  VSEA argues that the Board's interpretation of the parties'
  agreement guts the protections Weingarten affords to union members in their
  interactions with management.  In our view, the Board's interpretation has
  the opposite effect.  In contrast to Article 14, § 7, Weingarten stopped
  short of imposing on management the burden to notify an employee of his or
  her right to union representation.  Article 14, § 7 thus goes beyond
  Weingarten by placing an affirmative responsibility on the employer to
  ensure that the employee knows about, and can therefore exercise, her
  Weingarten rights.  Moreover, the notice provision affords a measure of
  certainty, otherwise lacking under Weingarten, about what an employee's
  rights are when called by management to a meeting.  In this case, when
  grievant was summoned to the January 27 meeting, she could have confidence
  that no discipline was forthcoming because she was not given notice of her
  right to union representation as required by Article 14, § 7.  Indeed,
  discipline never resulted from the meetings that gave rise to this dispute. 
  We agree with the Board that Article 14, § 7 gives covered employees more,
  not less, protection than Weingarten alone affords.
   
       ¶  14.  VSEA argues that this Court should find Article 14, § 7
  ambiguous  and examine its language in light of its history.  The Board
  found no factual support for VSEA's claims, but VSEA nevertheless asks us
  to review the issue anew.  Ultimately, we conclude that VSEA's argument is
  unavailing because, like the Board, we find no ambiguity in Article 14, §
  7's language.

       ¶  15.  Ambiguity exists where the disputed language will allow more
  than one reasonable interpretation.  Isbrandtsen v. N. Branch Corp., 150
  Vt. 575, 577-78, 556 A.2d 81, 83-84 (1988).  In such cases, this Court will
  examine the background leading to the agreement to ascertain the parties'
  true intent.  Id.; see also In re Gorruso, 150 Vt. 139, 143, 549 A.2d 631,
  634 (1988) (explaining how the Court ascertains contracting parties' intent
  when a contract's language "will admit more than one interpretation").  The
  plain language used in Article 14, § 7 has only one reasonable meaning. 
  The provision effectuates the right to union representation outlined in
  Weingarten by directing the employer to explicitly advise employees of the
  right when circumstances give rise to it.  Delving into the history of the
  State's collective bargaining agreement with VSEA is, therefore,
  unnecessary here. 

       ¶  16.  VSEA next argues that the Board has interpreted the Vermont
  State Labor Relations Act, 21 V.S.A., chapter 19, to incorporate the
  Weingarten right to union representation.  See 21 V.S.A. § 1503 (providing
  that State employees have the right to engage in concerted activities for
  their mutual aid and protection).  Because this argument is based on a
  premise we reject-that the Board's interpretation of Article 14, § 7
  affords less protection than Weingarten-we need not address it.  We note
  again, however, that the parties negotiated a contract that modifies the
  circumstances giving rise to the Weingarten right to union representation
  in a manner that is more protective of the employee's interest. 
   
       ¶  17.  Finally, we reject VSEA's contention that the Board
  erroneously interpreted Article 14, § 7 to somehow eliminate the need for
  the employee to request union representation in order to receive it.  As we
  explained earlier, the United States Supreme Court's holding in Weingarten
  requires the employee to ask for union representation.  The Board's
  decision is not inconsistent with that holding.  Article 14, § 7 still
  directs the employee to make the request for representation:

    Whenever an employee is required, by his or her supervisor or
    management, to give oral or written statements on an issue
    involving the employee, which may lead to discipline against the
    employee, . . . he or she shall be notified of his or her right to
    request the presence of a VSEA representative and, upon such
    request, the VSEA representative shall have the right to accompany
    the employee to any such meeting.  

  (Emphasis added.)  The only difference between the contract right at issue
  here and the right established by Weingarten is the contract also gives the
  employee the right to notice that assistance of a union representative is
  permitted.  The Board did not err in its interpretation of Article 14, § 7. 

       Affirmed.


                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  The May 16 grievance was the second of two filed by grievant in 2003. 
  The first grievance, filed in March 2003, dealt with an unrelated
  investigation of wrongdoing at the District Seven office.

FN2.  The Board's order addresses other claims raised by grievant and the
  union.  For example, during the course of investigating employee misconduct
  at the District Seven office, a paralegal with the Department of Personnel
  warned grievant not to discuss the investigation with any coworker unless
  the coworker is the union steward.  The Board determined that the
  restriction was overly broad because it prohibited grievant from discussing
  the investigation with a non-steward union representative who was also a
  State employee.  That ruling is not part of this appeal.