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

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