UNFAIR LABOR PRACTICES

Bargaining the obvious

In a sharply divided decision, the Vermont Supreme Court recently held that the Vermont Department of Corrections (DOC) committed an unfair labor practice (ULP) when it published a guide interpreting its work rules before consulting with the union. While the decision is obviously applicable only to unionized employers, it shines a light on (1) the constraints affecting management when a workforce becomes unionized and (2) the apparent division among members of the current court on issues pertaining to workplace management.

Facts

DOC employees are also members of the Vermont State Employees Association (VSEA), a labor organization of state workers. The relationship between the DOC and the VSEA is governed by the State Labor Relations Act, and the specific terms and conditions of employment are determined by a negotiated collective bargaining agreement (CBA).

The CBA between the DOC and the VSEA specifies the applicable disciplinary processes and lays out the steps the employer must follow when imposing discipline. The agreement, like many progressive discipline policies, has an "escape clause," which states that "the parties agree that there are appropriate cases that may warrant the [DOC] ... bypassing progressive discipline." It doesn't spell out, however, exactly what offenses might warrant bypassing the process.

The only enumeration of offenses is contained in the notice provision, which states that a terminated employee is entitled to two weeks' notice or two weeks' pay in lieu of notice. However, the provision also makes clear that notice or pay in lieu of notice isn't required in cases of "gross neglect of duty, gross misconduct, refusal to obey lawful orders given by supervisors, conviction of a felony, and conduct that jeopardizes the life or health of a coworker or person under the employee's care."

The CBA also gives the DOC the authority to issue written "work rules," provided the rules don't conflict with existing contract provisions. Before the events leading to this case occurred, the DOC had issued work rules prohibiting employees from engaging in various kinds of conduct, including harassing or demeaning behavior, transacting business with inmates, or engaging in sexual relationships with inmates. Additionally, employees were required to be honest with the DOC in their description of events and to cooperate fully in any DOC inquiry or investigation.

The DOC had some concerns, however, that its expectations regarding conduct were expressed in terms that were too general to be widely understood, and discipline might have been imposed inconsistently. To resolve the issue, it set up a task force to investigate. The goal was to create a memo for employees setting out the DOC's expectations more explicitly, with concrete examples that would be easily understood. The VSEA wasn't invited to participate in drafting the memo and was purposely left out of discussions about it.

Months later, the DOC memo that led to this litigation was issued, and employees were asked to read and sign it. After general introductory language about the impetus for the memo and its intended purpose, the memo listed "examples of misconduct, which in the Department's view will likely lead to severe discipline up to and including immediate dismissal," including, among other things:

• providing contraband to an inmate (regardless of whether compensation is received);
• physically or mentally abusing anyone under the supervision of the DOC;
• failing to perform required checks of inmates;
• conviction of a violent crime; and
• failure to fully and truthfully report events in the workplace.

Court's decision

Seems reasonable, doesn't it? But the Vermont Labor Relations Board, and later the Vermont Supreme Court, concluded that the DOC committed a ULP by failing to negotiate with the union over the terms of the memo and the requirement that employees sign it. The board's reasoning was that some of the listed offenses, such as failing to report events fully and truthfully, could have shades of gray ― telling half the truth, for example ― and therefore shouldn't be described as likely to "lead to severe discipline."

Three members of the Vermont Supreme Court, Justices John A. Dooley, Denise R. Johnson, and Marilyn S. Skoglund, upheld the board's ruling. In so doing, the court first indicated that it gives considerable deference to the board's rulings and then flatly declared that "matters pertaining to employee discipline clearly concern the employer-employee relationship and therefore must be bargained."

The court went on to say that the memo expanded the substantive disciplinary requirements, for example, by requiring that employees "protect inmates from abuse." Previously, employees just had to refrain from abusing inmates themselves. Moreover, the court ruled that the DOC wasn't authorized to make a unilateral determination of which offenses would likely result in severe discipline because the CBA simply stated that severe discipline must be based on "just cause."

The court's majority opinion asserts that it is firmly grounded in decisions rendered by the National Labor Relations Board, which has consistently held that an employer with a unionized workforce may not change the terms or conditions of employment without first bargaining with the union. Despite the DOC's strong protests that it wasn't changing anything but was simply clarifying preexisting work rules and providing some context for what constitutes "gross misconduct," the court stuck to its guns.

Dissent

In several noteworthy quotes from a fairly stinging partial dissent, Justice Brian L. Burgess, joined by Chief Justice Paul L. Reiber, noted the following:

Until today, it should have come as no surprise that corrections officers could be summarily fired for smuggling narcotics to inmates, having sex with inmates, failing to protect inmates from attack, being convicted of a felony, being incarcerated, or ignoring orders to check on inmates at risk for suicide. Such misconduct so obviously violates an officer's fundamental duty, and is so inherently contradictory to the Department's mission, that it requires no negotiation with VSEA either to be forbidden or to warrant instant termination of employment. Yet the Board held that the Department can never immediately fire its employees for inexcusably serious, and even criminal, misconduct, unless the union first agrees. ... Declaring that the Department's unilateral direction that its officers protect prisoners from assault is impermissible, the majority supposes that the Legislature intended to abandon Vermont's prison population to the "law of the fang" unless otherwise agreed by the VSEA.

Bottom line

All right. By now, most of you are probably thinking, "This is entertaining reading, but how does it relate to my business? I don't have inmates, prison guards, or a union, so I don't really need to worry about bargaining over their use of contraband or their sexual relations with one another."

We included a discussion of this case for two reasons. First, it gives a fairly vivid portrayal of just how constraining the rules can be when a workforce is unionized. Very little about labor law is intuitive. When we talk about "labor law," we're referring to the rules, regulations, and case law pertaining to labor- management relations in a unionized environment (as opposed to the more general "employment law").

In the context of a nonunionized environment, it's hard to imagine, for example, that any employer would think its employees had to be consulted about whether incarceration or conviction of a felony or other violent crime could result in immediate termination. With a CBA in place, however, very detailed rules and close supervision by the governing labor relations board ― state or federal ― are the norm. Managers must adhere to the terms of the CBA literally and may not innovate or become creative with workplace rules without first consulting with the union.

Second, the opinion in this case is a reflection of the current makeup of the Vermont Supreme Court. It's no surprise to most of our readers that the court tends to give employees the benefit of the doubt, but this opinion perhaps goes further than most in supporting employee rights. It reflects a fairly sharp division within court, with Justices Burgess and Reiber appearing more ready than the others to take a step back and look at the commonsense implications of how the court's rulings will affect the day-to-day management of businesses.

You can continue to expect, however, with the present composition of the court, that you won't be given wide latitude in interpreting policies, manuals, contracts, and other written protocols that have been provided to employees.

Copyright 2009 M. Lee Smith Publishers LLC

VERMONT EMPLOYMENT LAW LETTER does not attempt to offer solutions to specific problems, but rather to provide information about current developments in Vermont and federal employment law. Inquiries about specific problems should be addressed to the labor or employment law attorney of your choice. Vermont does not certify lawyers as specialists in labor and employment law or other areas of concentration.