VERMONT LABOR RELATIONS BOARD
BURLINGTON EDUCATION
ASSOCIATION
v.
BURLINGTON BOARD OF SCHOOL
COMMISSIONERS

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DOCKET NO. 18-08

MEMORANDUM AND ORDER
The issue in this unfair labor practice case is whether to defer to an arbitration decision.
On February 16, 2018, the Burlington Education Association (“Association”) filed an unfair
labor practice charge against the Burlington Board of School Commissioners (“Employer”). The
Association alleges that the Employer refused to bargain in good faith and interfered with
employee rights, in violation of 21 V.S.A. § 1726(a)(1) and (5), by docking teachers four days of
pay subsequent to their strike and failing to bargain with the Association over the effect of the
docking of pay.
Specifically, the Association contended in its charge that on the last day of the teachers’
strike on September 19, 2017, the parties agreed to a 2.5% salary increase for the 2017-2018
school year, and made no changes to the work year. The Association alleged that the docking of
pay for the four days the teachers were on strike is not in keeping with the parties’ collective
bargaining agreement as teachers would not receive the benefit of a 2.5% salary increase for a
full work year due to the docking of pay. The Association asserted that even if the docking of
four days pay was legally permissible, the Employer was obligated to bargain over the effect of
the loss of four days of pay with the Association. The Association further contended that the
docking of four days pay constituted retaliation in response to the employees’ concerted activity

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 of engaging in a strike. The Association requested as a remedy that the Employer make
employees whole for their loss of four days’ pay.
In addition to filing the unfair labor practice charge, the Association filed a grievance
under the parties’ collective bargaining agreement at the arbitration level on January 26, 2018.
The “Statement of Grievance” provided:
The . . . Employer unilaterally reduced the work year for teachers by four days, and
thereby unilaterally reduced teachers’ salaries in violation of the 2017-2019 . . . Agreement
and the parties’ September 19, 2017 tentative agreement. The Employer’s contractual
violations include, but are not limited to:
• Article 1: The Employer violated Article 1 of the Agreement by failing to negotiate
with the . . . Union in good faith, and for unilaterally changing the work year; an item
that was not in dispute upon entering factfinding or upon reaching the tentative
agreement on September 19, 2017.
• Article III: The Employer violated Article III of the Agreement by failing to
negotiate with the Union in good faith, and for failing to submit proposals related to a
change in work year by the contractual deadlines.
• Article IV: The Employer violated Article IV of the Agreement by discriminating
against teachers for engaging in legal union activity, i.e. striking.
• Article V: The Employer violated Article V by disciplining teachers and reducing
their compensation without just cause.
• Article XVII: The Employer violated Article XVII of the Agreement by unilaterally
changing the teacher work year from 187 to 183 days and changing the new teacher
work year from 188 to 184 days.
• Article XVIII: The Employer violated Article XVIII of the Agreement by failing to
pay teachers their agreed upon salaries.
• Article XIX: The Employer violated Article XIX of the Agreement by failing to pay
teachers for their number of designated days of employment between the first day of
school and the following June 30.
The Association requested as a remedy in the grievance that the Employer reimburse
teachers for four days of pay. Among the provisions of the collective bargaining agreement
between the Association and the Employer, effective September 2017 through August 2019,
cited by the Association in its grievance are:
...

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 ARTICLE III
PROCEDURE FOR NEGOTIATON OF SUCCESSOR AGREEMENT
...
3.7 Upon tentative agreement between the parties, all items of agreement shall be
reduced to writing and submitted to the Board and the Association for ratification.
3.8 Upon ratification by the parties, a mutually acceptable written agreement shall be
signed by the Chairman of the Board and the President of the Association and by both
negotiating teams. Said agreement shall then be binding upon the parties for its duration.
ARTICLE IV
RESPONSIBILITIES OF THE PARTIES

...
4.12 As a duly elected body exercising governmental power within the laws of the State
of Vermont, the Board hereby agrees that every teacher shall have the right to freely
organize, join and support the Association for the purpose of engaging in collective
negotiations. The Board shall not discriminate against any teacher with respect to hours,
wages, or any terms or conditions of employment by reason of his/her membership in the
Association and its affiliates, his/her participation in any activities of the Association,
collective negotiations with the Board, or his/her institution of any grievance, complaint
or proceeding under this Agreement.
...
ARTICLE XVII
WORK YEAR
17.1 . . . (b) Commencing with the 2014-2015 school year, the calendar work year for
teachers shall not exceed one hundred eighty-seven (187) days. Teachers in their first
year of service to the district shall work a calendar year that shall not exceed one hundred
eighty-eight (188) school days. . .
17.2 The school calendar will be as set forth in Appendix F which is attached hereto and
made a part hereof. The Board agrees to attempt to establish by mutual agreement a
school calendar for each school year. Suggestions by the Association for the calendar
shall be submitted to the Board not later than November 1. If the parties are not able to
reach agreement, the calendar shall be established in accordance with the process
established in 16 VSA § 1071, and such action shall not be subject to the Grievance and
Arbitration procedure of this Agreement.
...
ARTICLE XVIII
SALARY
...
18.2 a) The basic salaries of teachers covered by this Agreement shall be determined by
the Salary Schedule set forth in Appendices A-1 and A-2, which is attached to and
incorporated in this Agreement. For 2017-2018, the Salary Schedule shall reflect a two
and one-half (2.5%) percent increase, with the allocation thereof to be as depicted in

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 Appendix A-1. For 2018-2019, the Salary Schedule shall reflect a two and three-quarters
(2.75%) percent increase, with the allocation thereof to be depicted as in Appendix A-2.
...
ARTICLE XX
GRIEVANCE PROCEDURE
20.1 a) A claim by the Association or a teacher that there has been a violation,
misinterpretation, or misapplication of the terms of this Agreement . . . shall be a
grievance.
...
20.6 Level 3 – Arbitration – If the Association is not satisfied with the disposition of the
grievance at the Superintendent’s level, . . . then the Association may submit the
grievance to final and binding arbitration . . .
...
20.7 The arbitrator shall have no power to alter the terms of this Agreement. However, it
is agreed that the arbitrator is empowered to include in any award such financial
reimbursements or other remedies as is judged to be proper.
...
In a November 9, 2018, decision, the Board deferred the matter to the grievance
procedure and did not rule on the unfair labor practice charge. 34 VLRB 389. The Board
decision stated in part:
A grievance is defined under the parties’ collective bargaining agreement as a
“claim . . . that there has been a violation, misinterpretation, or misapplication of the
terms” of the agreement. Such disputes are resolved through a grievance procedure
culminating in final and binding arbitration. Article XVII of the agreement addresses the
length of the teachers’ work year. Article XVIII, including the incorporation of Appendix
A, of the agreement sets forth the basic salaries of teachers for the years of the agreement.
Article IV protects teachers from discrimination based on Association membership and
activities. Given these provisions, it is evident that the Association and the teachers have
an adequate redress through arbitration to resolve their claims that the Employer should
not have unilaterally docked teachers pay for four days and that the teachers were
retaliated against due to their strike activities.
. . . Such deferral does not necessarily bar the Board’s later consideration of this
matter. The Board retains jurisdiction for the purpose of entertaining a motion that
grievance arbitration of the underlying issue in this matter has failed to meet the
following criteria necessary for the Board to defer to an arbitrator's award: 1) fair and
regular arbitration proceedings; 2) agreement by all parties to be bound; 3) the decision is
not repugnant to the purpose and policies of the Municipal Employee Relations Act; 4)
the arbitrator clearly decided the unfair labor practice issue; and 5) the arbitrator decided
issues within his or her competency. Id. at 395-96.
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 Subsequent to the Board decision, the parties participated in an arbitration hearing before
Arbitrator Gary Altman on November 13, 2018, on the grievance filed by the Association. The
issue in the arbitration as stated by Arbitrator Altman was “whether the School District violated
the parties’ Agreement when it did not make up four teacher workdays that were lost as a result
of a legal strike in the 2017-2018 school year, and if so what shall be the remedy?”
Arbitrator Altman issued an Award on March 29, 2019, denying the grievance. His
decision states in pertinent part:
...

There is no dispute that for a number of years Burlington teachers have had a
work year of up to 187 days. There also is no dispute that teachers went on strike for four
days in September 2017. Teachers were not paid for these four strike days. The
Superintendent then revised the school calendar that then provided for teachers to work
183 workdays in the 2017-2018 school year. In other words, the District did not make up
the four teacher workdays lost as a result of the strike. The Association argues that the
District was contractually required to make up the four days. . .
A review of the contract provisions of the 2017-2019 Collective Bargaining
Agreement shows no explicit language that addresses what will happen to the school
calendar and the teachers’ work year if there is a work stoppage in the District, and
teachers decide to strike and withhold their services from the District. This is not
surprising as the testimony reveals that there has not been a strike in the District for more
than thirty years. Thus, the fact that proposals were not made early during the parties’
negotiations to modify the school calendar does not foreclose the issue from being
addressed at a later point in time. It is crucial to review what occurred during the
bargaining that led up to the Tentative Agreement that was reached during the strike, and
the discussions that occurred after the strike was resolved, to determine whether there
was any agreement as to what would occur as a result of the lost school days.
Much of the testimony at the hearing dealt with the negotiations that occurred at
the September 19, 2017, mediation session, in which the parties reached a Tentative
Agreement. On this date teachers were still on strike. There can be no question that the
issue of making up the days lost to strike was definitely on the minds of the teacher
negotiators. (Dan) Hagan’s notes indicate “payment for strike days?”. Mr. Hagan testified
that the teacher negotiators asked (Vermont-NEA Uniserv Director David) Boulanger
whether the dates would be made up later in the year, and he responded, “we expect to
work it out”. There is no evidence that the School District shared the Association’s
assumptions or belief that the four strike days would be made up. Moreover, there is no

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 reference in the tentative agreement about making up the four days lost as a result of the
strike.
As of September 19, 2017, the date that the Tentative Agreement was reached, it
cannot be concluded that there was any agreement that the four days lost as a result of the
strike would be made up. . . Even at the ratification, Mr. Hagan testified that membership
was told that we “expect to work that out”. Thus, even as of the date of the ratification
meeting, there was still no certainty or any agreement as to making up the four days lost
as a result of the strike.
After reaching a Tentative Agreement and the ratification vote, discussions still
continued between the parties on various language items, and implementing a new salary
schedule. On October 25, the Superintendent informed Burlington teachers of the revised
school calendar for the remainder of the 2017-2018 school year, which makes up the lost
student days caused by the strike . . . but it did not provide for an additional four work
days for teachers.
...
The evidence demonstrates that at the time the Superintendent announced this
revised calendar and the time that the new calendar was added to the parties’ Agreement,
there was no attempt by the Board to reach a mutual agreement on the school calendar.
The facts show that the Association sought to discuss the issue of the calendar after the
strike, but the School District had no interest, and adopted a calendar that did not make
up for the four lost workdays. Instead, the District scheduled student days to be on days
that originally had not been scheduled to be student days. . .
Even assuming that the Superintendent adopting the revised calendar was done
without agreement of the parties, the terms of Section 17.2 nonetheless permit the District
to implement a school calendar so long as it is in accordance with 16 VSA § 1071.
Further, Section 17.2 of the Agreement specifically provides that the Employer’s action
in adopting a school calendar “shall not be subject to the Grievance and Arbitration
Procedure of this Agreement.” Thus, this Arbitrator has no authority over the issue of this
revised school calendar.
The Association further argues that the parties’ Agreement mandates the District
to establish a school calendar that provides for 187 workdays for teachers. Section
17.1(b) cannot be read so as to establish a contractual guarantee for 187 teacher
workdays, as the specific language states that “the calendar year for teachers shall not
exceed one-hundred and eighty-seven days.” (Underscoring added). I would agree that
the norm for Burlington teachers is that they will work 187 work days in a school year,
but the norm was not the case for the 2017-2018 school year as teachers exercised their
statutory right to engage in a work stoppage, and went on strike for four days. Thus,
because of the strike, I cannot read Article XVII as requiring the District to establish a
calendar that provides for 187 workdays for teachers in the 2017-2018 school year.
It must also be stated that the Association knew at the time that the final . .
Agreement was executed on January 10, 2018, that the School District had adopted a
school calendar that did not call for teachers to make up the four days lost as a result of
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 the work stoppage, and this calendar was added to the parties’ Agreement as Appendix F.
. . The Association sent a letter protesting this Agreement, While the Association has the
right to pursue this grievance with respect to the content and meaning of this new
Agreement, this Arbitrator cannot now conclude that the District violated the Agreement
by not adopting a school calendar that provided for teachers to make up the four days that
were lost as a result of the four day strike.
On May 6, 2019, the Association filed a Motion that Grievance Arbitration Failed to
Meet Applicable Deferral Criteria. The Association contends that the Board should not defer to
the arbitration decision because the arbitrator did not clearly decide the unfair labor practice
dispute, and the decision was repugnant to the purpose and policies of the Municipal Employee
Relations Act.
The Association asserts that the arbitrator has not decided the unfair labor practice issue
because he specifically stated that the Employer’s actions were neither covered not permitted by
the collective bargaining agreement when he stated: “A review of the contract provisions of the
2017-2019 Collective Bargaining Agreement shows no explicit language that addresses what
will happen to the school calendar and the teachers’ work year if there is a work stoppage in the
District, and teachers decide to strike and withhold their services from the District.”
The Association also supports its position that the arbitrator did not decide the unfair
labor practice issue because he never addressed the question of whether the Employer was
permitted to unilaterally dock teachers four days of pay, and failed to determine whether the
Employer discriminated against the teachers for engaging in a legal strike.
The Association further contends that the arbitration decision is repugnant to the
Municipal Act because it did not address whether the Employer failed to bargain in good faith
with respect to paying teachers for the strike days and making up the four work days lost during
the strike, and because it did not address the issue central to the Municipal Act of discriminating
against teachers for engaging in the protected activity of striking.
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 The School Board filed a memorandum in opposition to the motion on May 13, 2019.
The Employer contends that the Board should defer to the arbitrator’s decision. The Employer
asserts that the arbitrator clearly decided the unfair labor practice issue because the contractual
issue that the arbitrator decided in the Employer’s favor is factually parallel to the Association’s
unfair labor practice issues and the arbitrator was presented generally with the facts relevant to
resolving both. The Employer also contends that there is nothing clearly repugnant about the
arbitrator’s award resulting in the teachers not getting paid for four days in which they performed
no work, and when the Association waived any claim for back pay with strategic silence and
delayed request.
The Board has decided in post-arbitration deferral cases whether arbitrators have clearly
decided unfair labor practice issues. The Board has decided that an unfair labor practice issue
effectively was decided once an arbitrator determined that an action by an employer is
specifically covered and permitted by the contract. Once this determination was made, the Board
reasoned that same action could not be determined to be an improper unilateral action in
violation of unfair labor practice provisions of the Act. AFSCME Local 1201, Castleton
Employees v. Town of Castleton, 25 VLRB 140, 141-42 (2002). BED IBEW, Local 300, Unit
Six v. Burlington Electric Department, 23 VLRB 245, 250 (2000). However, where the contract
did not specifically cover the action taken by the employer, the Board concluded that the
arbitrator had not decided the unfair labor practice issue. Milton Education and Support
Association v. Milton Board of School Trustees, 23 VLRB 301, 306 (2000); Affirmed, 175 Vt.
531 (2003).
In considering whether an arbitrator has clearly decided the unfair labor practice issue,
the Board in Burlington Electric Department, 23 VLRB at 249, adopted the following standard

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 articulated by the National Labor Relations Board in Olin Corporation and Local 8-77, Oil,
Chemical and Atomic Workers International Union, AFL-CIO, 268 N.L.R.B. 573, 574 (1984:
We would find that an arbitrator adequately considered the unfair labor practice if (1) the
factual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator
was presented generally with the facts relevant to resolving the unfair labor practice. In
this respect, differences, if any, between the contractual and statutory standards of review
should be weighed by the Board as part of its determination under the Spielberg standards
whether an award is “clearly repugnant” to the Act.
The Board stated in one case that “a logical extension of the arbitrator’s ruling” can be
found to “effectively decide the unfair labor practice issue”. AFSCME Local 1201, Castleton
Employees v. Town of Castleton, 25 VLRB 140, 143-44 (2002).
The Board also has considered in post-arbitration deferral cases whether an arbitration
decision is repugnant to the purposes and policies of the labor relations act. An award is
repugnant to the act if it is “palpably wrong”; that it is not susceptible to an interpretation
consistent with the act. Burlington Electric Department, 23 VLRB at 249. Milton, 23 VLRB at
311.
In applying these standards to this case, we first consider whether the arbitrator has
clearly decided the unfair labor practice issue. In the unfair labor practice charge, the Association
contended that the Employer committed an unfair labor practice by docking teachers four days of
pay subsequent to their strike and failing to bargain with the Association over the effect of the
docking of pay. The question of docking teachers four days of pay would seem to imply that the
Association sought that teachers be paid directly for the four days they were on strike. However,
as addressed by the arbitrator, the Employer made it clear both before the strike and following
the strike that teachers would not receive pay for the time spent on strike, and the Association did
not propose such direct payment in discussions with the Employer prior the reaching of a
tentative agreement or prior to executing the final agreement. Instead, the issue that the
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 Association focused on, both internally and, after the tentative agreement was reached, with the
Employer was making up the four days following the strike (See Award of Arbitrator, pages 5 to
12).
Given this clarification, we conclude that the factual issue before the arbitrator is
factually parallel to the unfair labor practice issue. The factual issue before the arbitrator was the
Employer not making up the four teacher workdays that were lost as a result of the teachers
strike. This is factually parallel to the unfair labor practice issue. Our review of the arbitration
decision indicates that the arbitrator was presented generally with the facts relating to this issue,
from the negotiations leading to the tentative agreement through events occurring until the
agreement was executed, that were relevant to resolving the unfair labor practice case. In sum,
the same facts examined by the arbitrator to decide the contractual issue are sufficient to
determine the unfair labor practice issue of whether there was an improper action of the
Employer in violation of the Municipal Act.
The Association assertion that the arbitrator has not decided the unfair labor practice
issue, because he specifically stated that the employer’s actions were neither covered nor
permitted by the collective bargaining agreement, is unfounded. The one sentence in the
arbitration decision cited by the Association to support this position does not demonstrate that
the arbitrator made any such statement. Instead, the sentence was preliminary to the arbitrator
stating later in the same paragraph that it was crucial to review what occurred during the
bargaining that led up to the tentative agreement that was reached to end the strike, and the
discussions that occurred after the strike, to determine whether there was any agreement as to
what would occur as a result of the lost school days.

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 Once the arbitrator engaged in this review, and analyzed the terms of the collective
bargaining agreement, the arbitrator concluded that the Employer action of adopting a calendar
that did not make up for the four lost workdays was specifically covered and permitted by the
collective bargaining agreement. Once the arbitrator made this determination, the unfair labor
practice issue effectively was decided. This is because, as discussed above, once an arbitrator
determines that an action by an employer is specifically covered and permitted by the contract,
that same action cannot be determined to be an improper unilateral action in violation of unfair
labor practice provisions of the Act. A logical extension of the arbitrator’s ruling effectively
decided the unfair labor practice issue.
We further disagree with the Association’s argument that the arbitrator’s decision was
clearly repugnant to the Municipal Employee Relations Act because the arbitrator did not
address whether the Employer failed to bargain in good faith with respect to paying teachers for
the strike days and making up the four work days lost during the strike, and because he did not
address the issue central to the Municipal Act of discriminating against teachers for engaging in
the protected activity of striking The arbitrator performed his proper function of interpreting the
terms of a collective bargaining agreement. In so doing, he expressly stated that the Association
knew at the time the final collective bargaining agreement was executed in January 2018 that the
Employer had adopted a school calendar that did not call for teachers to make up the four work
days lost as a result of the strike, and this calendar was added to the parties’ agreement as
Appendix F.
Given the execution of the collective bargaining agreement by the Association with this
knowledge, it would be inappropriate to issue an unfair labor practice complaint on whether the
Employer failed to bargain in good faith in violation of the Municipal Act on the specific issue

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 addressed in the collective bargaining agreement of the failure to make up the four work days
lost during the strike. A party to a collective bargaining contract may waive a right to bargain on
an issue based on the terms of the contract. VSCFF v. Vermont State Colleges, 149 Vt. 546, 549
(1988). Burlington Firefighters Association, Local 3044, IAFF v. City of Burlington, 10 VLRB
53, 59 (1987). Mt. Abraham Education Association v. Mt. Abraham Union High School Board, 4
VLRB 224, 231-232 (1981). In determining whether a party has waived its bargaining rights, the
Board has required that it be demonstrated a party consciously and explicitly waived its rights.
AFSCME Council 93, Local 1201, AFL-CIO v. Town of Castleton, 32 VLRB 98, 115 (2012).
Local 98, IUOE, AFL-CIO v. Town of Rockingham, 7 VLRB 363 (1984). VSEA v. State of
Vermont, 5 VLRB at 326. Mt. Abraham, 4 VLRB at 231. In such matters, the Board is further
guided by the Vermont Supreme Court, which defines a waiver as the "intentional
relinquishment of a known right". In re Grievance of Guttman, 139 Vt. 574, 578 (1981).
The Association consciously and explicitly waived its right to bargain over the issue of
the 2017-2018 school calendar by executing a collective bargaining agreement that specifically
included a school calendar that did not provide for teachers to make up the four work days lost as
a result of the strike. This waiver is made clear by two other provisions of the collective
bargaining agreement. Article 3.8 provides: “Upon ratification by the parties, a mutually
acceptable written agreement shall be signed by the Chairman of the Board and the President of
the Association and by both negotiating teams. Said agreement shall then be binding upon the
parties for its duration.” Article 24.1 states: “This Agreement represents the final resolution of all
matters in dispute between the parties , and shall not be changed or altered unless the change or
alteration has been agreed to and evidenced in writing by the parties hereto.”
We recognize that the Association sent a letter indicating it was signing the agreement

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 under protest, particularly over “the issue of the (Employer) having unilaterally removed four
work days from the Agreement, thereby docking teachers four paid days”. As recognized by the
arbitrator, the Association had the right to pursue a grievance “with respect to the content and
meaning of this new Agreement”. Nonetheless, once the Association did not prevail in the
grievance, the unfair labor practice route provides no remedy in light of the Association signing
the collective bargaining agreement specifically addressing the matter at issue in the unfair labor
practice case of an alleged refusal to bargain in good faith. For the same reason of the
Association signing the collective bargaining agreement addressing the matter of the school
calendar at issue in the unfair labor practice case, it would be inappropriate to issue a complaint
on whether teachers were discriminated against for engaging in the protected activity of striking.
Based on the foregoing reasons, we defer to the arbitrator’s decision, and it is ordered
that the unfair labor practice charge filed in this matter is dismissed.
Dated this 9th day of July 2019, at Montpelier, Vermont.
VERMONT LABOR RELATIONS BOARD
/s/ Richard W. Park
____________________________________
Richard W. Park, Chairperson
/s/ Alan Willard
____________________________________
Alan Willard
/s/ Roger P. Donegan
____________________________________
Roger P. Donegan

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