VSEA appeals labor board’s “misinterpretation” of state employee contract to Vermont Supreme Court

The Waterbury State Office Complex, two months after Tropical Storm Irene flooded the facility. Photo by Josh Larkin

The Waterbury State Office Complex, two months after Tropical Storm Irene flooded the facility. Photo by Josh Larkin

Nearly two years after Tropical Storm Irene damaged the nerve center of state government — the Waterbury State Office Complex — and displaced 1,500 workers, a group of state employees is pressing on with litigation over emergency pay.

The Vermont State Employees Association is appealing its so-called “double-time” pay case to the state’s highest court. The Vermont Labor Relations Board rejected the union’s grievance on July 8.

The VSEA is appealing what it calls a “misinterpretation” of the emergency closure clause in its contract with the state. The appeal does not address employee compensation, which must be taken up by the VLRB should the court rule in favor of the union. The union filed the appeal with the Vermont Supreme Court on Friday.

The 66 workers who are suing were employed in the immediate aftermath of Tropical Storm Irene. Hundreds of the their counterparts, meanwhile, were paid to stay at home. The litigants say the Shumlin administration barred them from collecting emergency double pay by changing the definition of “state offices and facilities.” The “misinterpretation” of the contract cost the workers thousands of dollars in emergency pay.

Mark Mitchell, executive director of VSEA, said union officials made the decision to appeal after an independent legal review of the Vermont Labor Relations Board decision. The 63 grievants, all of whom eventually lost their jobs, believe the contract needs to be enforced, Mitchell said in a statement.

“We have a very real fear that, left unchecked, this decision invites management to misapply the plain language of our union contracts and thus deny state workers the benefit of their bargain,” Mitchell said. “I say that because we believe the decision overlooks the plain meaning of existing contract language by ignoring that Waterbury State offices were ‘completely closed’ after August 29, 2011, and creating a new definition of the terms ‘State offices and facilities’ out of whole cloth.”

All of the affected state workers received double time pay for one day after the emergency and a large proportion of employees were told they could stay home and receive their regular pay until the state was able to find temporary office space. For some, this limbo went on for several months.

A small minority, however, never stopped working. Staff members of the Vermont State Hospital were obliged to follow their patients to local hospitals, a prison and temporary care facilities scattered all over the state. These workers, who were obliged to work long hours for a number of weeks in emergency mode, say it’s unfair for them not to receive double pay because they were working while other employees stayed at home.

The one day emergency pay for all of the affected workers cost the state about $400,000; the cost to pay double time to the workers who are suing would be about $2.7 million, according to Kate Duffy.

Duffy could not be immediately reached for a comment regarding the appeal.

In an interview last month Duffy said, “The administration felt a lot of employees were doing incredible work, and as matter of fairness” and one group shouldn’t get more than another.

“I would like to highlight that I don’t want this to overshadow the fine work of the state employees participating during Irene,” Duffy said.

The Vermont State Hospital workers who signed on to the lawsuit were laid off by the state in the spring of 2012 when Gov. Peter Shumlin decided to downsize Vermont State Hospital staff. Lawmakers and the governor opted to created a decentralized, regional system of care for patients with severe mental illness. The state’s new psychiatric facility, now under construction in Berlin, will provide care for 26 patients at any given time; the old state hospital could serve about 50. Some of the laid off workers have been rehired in other positions; state officials have said other former state hospital workers will be rehired when the new facility opens.

The remaining grievants are state workers with the Department of Children and Families and the Department of Disabilities, Aging and Independent Living who voluntarily left state government, according to Duffy.

On Friday, Duffy released updated numbers. Of the 66 workers who signed onto the grievance, 13 were laid off; nine took other jobs in state government, one person’s position was bumped by a higher pay grade employee, five resigned and four retired. The remaining 32 employees are in the state workforce.

Mitchell says resolving the grievance has been especially difficult for VSEA since so many of the workers were laid off in March 2012 after they filed the complaint in October 2011.

Workers who left voluntarily were “geographically” RIF’d, Mitchell says. Many workers who had to travel long distances to new offices couldn’t meet family obligations because of the additional commute.

CORRECTION: The original story stated that the Shumlin administration laid off all of the state employees who are listed as grievants. Only the employees who worked for the Vermont State Hospital were subject to a reduction in force. This story was updated with the latest numbers from Duffy.

Anne Galloway

Comments

  1. fred woogmaster :

    ‘All of the workers who signed on to the law suit were laid off…’?
    Strange! Or not so strange? Curious, anyhow.

  2. Pam Ladds :

    So let me see if I got this straight. This group of 63 worked throughout the disaster, even while others sat home waiting to be reassigned? And the same 63 got laid off? Or “Down-Sized” or whatever pc term is used? And they are being denied fair pay (as per Union agreement)? Damn right they deserve to get that pay!!

  3. David Bresett :

    What this really doesn’t tell Vermont citizens is that Shumlin appointed the VLRB and they did what he wished and through out their gievance. Even though Shumlin should have kept his nose, pun intended, out of the picture. He didn’t, but no one will find that anywhere because the media in this state doesn’t cover such things. It’s just not PC enough.

  4. Eric Robichaud :

    These people definitely deserve double pay for working normal hours! They should go on strike and march on the Capitol!

    Huh? Wha?

  5. Dan Carver :

    As a taxpayer, I have more concern of the mis-management of having 1,437 emoployees (1,500 less 63) get paid to stay at home, in some cases for several months and get emergency pay on top of it.
    Had they not paid folks to stay home, this would not be an issue, in part, becaue if folks were not getting paid there would have been a greater focus,and clamor, on finding alternative offices for them to work and provide the services they are paid to perform versus being in paid-limbo for several months.
    And before the hankies come out, I belvie many of the 1,437 would have used personal time,or unemployment compensation to fill some of the income gap while the Governor created future office plans.
    Thanks, Shummy!

  6. Dave Bellini :

    As a bargaining unit chair, I was telephoned at the very beginning of the flood and told the Governor wants to meet with the unit chairs to sign a “side letter” that would strike the double time clause. I and other unit chairs travelled to Montpelier immediately. One other unit chair was called away from visiting a family member who was in the hospital. We waited. And we waited. And we waited. No one from the Administration showed up. The VSEA was willing to work things out. We were then told that no one was coming from the Administration. To this day, I have had no explanation from the Administration as to why they never showed up, after calling people off our jobs. Then, the union is vilified for reading clear and unambiguous language for what it is. I believe that the Administration thought it over and wanted to get some political mileage out of having a fight with the union. I was there. The Administration no showed a meeting they called. This all could have been avoided.

  7. kevin lawrence :

    AG writes, “The ‘misinterpretation’ of the contract cost the workers thousands of dollars in emergency pay.”

    No, the people who faced the cost in Irene lost homes, businesses, access to roads leading to employment. To say that a person who was paid to work endured the cost is itself misinterpretation. Maybe they didn’t get their bonus benefit of double pay, but they got their pay.
    Don’t be surprised when the next go-round of negotiations includes a harder line from the State point of view. Getting double pay may be legal in this case, but what’s the cost in public perception when so many lost so much??

  8. Virginia Simmon :

    Two questions: Who is Kate Duffy? and What does RIF’d mean?

  9. Susan Gallagher :

    I am confused. Is it 66 or 63 who are suing? Did all of those get laid off, or was it the number in the last paragraph?

    • 66 are suing. I posted a correction in the story citing new numbers from Duffy. Thanks for asking. Anne Galloway, editor, VTDigger.org

  10. Dick Williamson :

    It’s called greed!

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