Knight v. Town of Bennington, 179-6-18 Bncv (Cohen, J., Nov. 7, 2018)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

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STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Bennington Unit Docket No. 179-6-18 Bncv

Clay Knight,

Plaintiff

v.

Town of Bennington,

Defendant

Decision on Appeal from 

Small Claims Court

This matter comes before the Court on appeal from Small Claims Court. It concerns the 

enforceability of an employment agreement between a police officer and the Bennington Police 

Department in light of a collective bargaining agreement between the Town of Bennington and a 

local union.

THE FACTS

The facts of this case are undisputed and are summarized as follows. On December 12, 

2014, Appellant Clay Knight executed an Employment Agreement with the Bennington Police 

Department in which he, upon consideration for receiving police training at the Vermont Police 

Academy, agreed to work for the Department as a police officer for 36 months following his 

February 1, 2015 date of hire. The Agreement provided that inability or refusal to comply with 

the above would bind Appellant into reimbursing “the cost paid in stipend / salary and benefits 

(employer’s social security contribution and workman’s compensation insurance) by the 

Bennington Police Department.” The reimbursement would cover expenses incurred by the

Department during the training period. Repayment would be pro-rated at 1/36 reduction per 

month of service. Appellant commenced work for the Department but resigned effective June 

30, 2017. Between July 1, 2015 and June 30, 2017, the Town of Bennington had a Collective 

Bargaining Agreement (CBA) with a local union. As a town employee, Appellant fell within the

compass of the CBA. Upon Appellant’s resignation, the Chief of Police notified him that he was 

7 months short of satisfying his 36-month obligation under the Employment Agreement, making 

him liable to the town in the amount of $3,831.15. The sum unpaid, the town filed suit in Small 

Claims Court on March 14, 2018.

PROCEEDINGS IN SMALL CLAIMS COURT

On April 18, 2018, Appellant, represented by counsel, filed an Answer and a 

Counterclaim for attorney’s fees. A merits hearing was held on May 14, 2018, during which 

Appellant advanced three arguments: 1) that the Employment Agreement was precluded by the 

CBA; 2) that the Employment Agreement was precluded by the “free and clear” provision of the 

Fair Labor Standards Act (FLSA); and 3) that even if the Employment Agreement were 
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enforceable, “there would still need to be credit back for the minimum wage, hours worked, and 

possibly overtime.” Appellant also submitted a trial memorandum, contending that the 

Employment Agreement was in conflict with, and consequently made unenforceable by, the 

CBA; that his employment obligations and salary were based exclusively on the CBA; and that 

the CBA invalidated all previous agreements. Along with this memorandum, Appellant filed a 

2005 U.S. Department of Labor opinion letter outlining employee rights to minimum wage and 

overtime pay when an employer seeks training cost recovery. The town subsequently filed a 

memorandum of its own, after which the Small Claims Court issued its Decision on the Merits 

and Judgment on June 1, 2018.

Relying on In re Aleong, 2014 VT 15, 196 Vt. 129, for the proposition that individual 

employment agreements are generally enforceable so long as they do not violate a CBA, the 

Small Claims Court held that the Employment Agreement did not conflict with the CBA and was 

thus enforceable. On the claimed violation of the FLSA, the Court held that there was no 

evidence before it to find such a violation. Appellant timely filed a Notice of Appeal, which 

brings the case before this Court under 12 V.S.A. § 5538 and V.R.S.C.P. 10. A hearing was held 

on August 2, 2018.

DISCUSSION

Appellant makes two arguments on appeal. First, that the Small Claims Court erred in 

finding that the Employment Agreement does not conflict with the CBA. Second, that the Court 

erred in holding that there was no evidence to find that the town’s recovery would violate the 

Fair Labor Standards Act if it is not reduced by minimum wage and overtime pay.

The purpose of Small Claims Court is to provide “a simple, informal and inexpensive 

procedure” for adjudicating certain civil actions where the amount in controversy is not great.

Cold Springs Farm Dev., Inc. v. Ball, 163 Vt. 466, 469 (1995); 12 V.S.A. § 5531. An appeal 

from Small Claims Court is limited to questions of law. V.R.S.C.P. 10(d). “The appeal shall be 

heard and decided, based on the record made in the small claims procedure.” 12 V.S.A. § 5538. 

Findings of fact will not be disturbed unless they are unsupported by the evidence, Brandon v. 

Richmond, 144 Vt. 496, 498 (1984), or clearly erroneous. Bartley-Cruz v. McLeod, 144 Vt. 263, 

264 (1984); Dondero v. Morrison, No. 632-7-16 CNCV, 2016 WL 7322309, at *1 (Vt. Super.

Ct. Oct. 19, 2016). Where possible, the Small Claims Court’s findings must be construed to 

support the judgment. Kopelman v. Schwag, 145 Vt. 212, 213–14 (1984). The relative 

procedural informality of Small Claims Court does not authorize an appellate court to make its 

own substantive findings. Id. at 214; Majestic Car Rental Group v. Cioffi, No. 403-6-09RDCV, 

2009 WL 6849859 (Vt. Super. Ct. Sep. 14, 2009). 

The first issue is whether the Employment Agreement conflicts with the CBA. Two 

cases guide this Court’s analysis of the subject. In United Academics v. Univ. of Vermont, 2005 

VT 96, 179 Vt. 60, a university professor negotiated an individual employment contract with 

management before the execution of a CBA. Id. ¶¶ 6–7. The professor then argued that upon 

ratification, the terms of the CBA superseded those of her individual contract. Id. ¶ 9. The Court 

observed:
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While we have recognized that the very purpose of a collective bargaining 

agreement is to supersede individual contracts with terms which reflect the strength 

and bargaining power and serve the welfare of the group, we have not yet precluded 

an individual employee from negotiating an individual contract that provides 

benefits above and beyond the terms of a collective bargaining agreement. 

Id. ¶ 11 (internal quotations, alterations, and citations omitted). The Court held that the CBA did 

not affect the terms of the professor’s individual contract because the individual agreement 

conferred upon her a special benefit to which she was not entitled under the CBA. Id. ¶ 12.

In In re Aleong, 2014 VT 15, 196 Vt. 129, the issue concerned whether a memorandum 

of understanding (MOU) between a university and a faculty union formed part of the CBA or the 

independent settlement of a dispute. Id. ¶ 31. The Court held that a side agreement that conflicts 

with a CBA is unenforceable. Id. ¶ 32. It also clarified that “there are issues which arise in 

individual cases that may be resolved through a side agreement with an individual employee” 

and “[s]o long as these do not violate the terms of the CBA, they are generally enforceable even 

though they create individual contract rights outside of the CBA.” Id. Additionally, the Court 

categorically rejected “the more general argument that any side agreement between the union 

and the University must be subject to the CBA just because the CBA governs most issues 

between these parties.” Id. ¶ 36.

As an additional consideration, federal law is in accord that a CBA can coexist with a 

separate agreement. See. e.g., J.I. Case Co. v. N.L.R.B., 321 U.S. 332, 339 (1944) (“We know of 

nothing to prevent the employee’s, because he is an employee, making any contract provided it is 

not inconsistent with a collective agreement or does not amount to or result from or is not part of 

an unfair labor practice.”); Price v. Unite Here Local 25, 883 F. Supp. 2d 146, 152 (D.D.C. 

2012), aff’d sub nom. Price v. Union Local 25, No. 12-7089, 2013 WL 1267137 (D.C. Cir. 2013) 

(“Side letters mutually agreed to by the parties in a collective bargaining relationship may 

supplement the original collective bargaining agreement.”).

Appellant first argues that his Employment Agreement conflicts with the CBA because 

the former “directly touches” on the express salary provisions of the latter. Article XVII of the 

CBA establishes a multiple-step salary schedule for town employees. It also specifically 

provides: “Police hired without full-time certification shall be placed at Step I. Upon Academy 

Certification, an officer shall move to Step II. At the end of the probationary (trial) period, the 

officer shall be placed at Step III.” Appellant submits that “[i]n effect, the Appellee is trying to 

add an entire extra term into the CBA—that trainee officers must refund a portion of their wages 

if they leave the [police department] within a certain time frame.” 

The argument is without merit. The test established in Aleong is not “directly touches;” it 

is conflict. See In re Aleong, 2014 VT 15, ¶ 32, 196 Vt. 129, 139 (holding that “[a] side 

agreement which conflicts with the CBA is unenforceable” and that side agreements are 

enforceable “[s]o long as these do not violate the terms of the CBA.”). Nothing in Aleong

suggests that a CBA displaces all other agreements that “directly touch” a matter covered by the 

CBA. Indeed, it would be illogical to read “conflict” so broadly given than all individual 

employment agreements are likely to “directly touch” some issue in an applicable CBA, such as 
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vacation, sick leave, benefits, or, as here, training and salary. Such a reading would also be 

inconsistent with the holding of United Academics—a case cited approvingly by the Aleong

Court—that an employee may negotiate an “individual contract that provides benefits above and 

beyond the terms of a collective bargaining agreement.” United Academics v. Univ. of Vermont, 

2005 VT 96, ¶ 11, 179 Vt. 60, 64. Such an expansive reading, moreover, would make Vermont 

law inconsistent with federal law, which also allows for separate agreements beyond, but not 

inconsistent with, collective bargaining agreements. See, e.g., J.I. Case Co. v. N.L.R.B., 321 

U.S. 332, 339 (1944).

Here, the Employment Agreement does not conflict with the CBA because—as Appellant 

himself recognized at the trial hearing and in his trial memorandum—the CBA is “silent as to 

any kind of salary claw back as to the training.” Appellee is correct in recognizing that 

Appellant contracted for an additional benefit beyond the CBA—training and certification from 

the Vermont Police Academy. The consideration for that benefit was service for 36 months or a 

prorated refund of salary and benefits for the training period. Nothing about this agreement 

conflicts with the terse salary provisions of the CBA, which simply place employees on salary 

“steps.” The mere fact that the Employment Agreement “directly touches” a matter covered by 

the CBA (salary) does not alone put it in conflict with the CBA. 

Appellant next argues that conflict exists because the CBA contains an “entire 

agreement” clause in Article XXVI, which provides, in pertinent part: 

This Agreement constitutes the complete and entire Agreement between the parties, 

and concludes collective bargaining between the parties for its term. This 

agreement supersedes and cancels all prior agreements whether written or oral, 

unless expressly stated in this Agreement.

Appellant seems to argue that this provision invalidates not only all other agreements between 

the town and the union, but also those between the town and individual employees. The 

argument is singularly unpersuasive. Merger clauses are ubiquitous in contract law and do not 

operate in the way Appellant suggests. They are “designed to avoid the confusion created when 

parties may have several agreements or contracts between them prior to completing a written 

agreement.” Hoeker v. Dep’t of Soc. & Rehab. Servs., 171 Vt. 620, 621 (2000); see also 

Restatement (Second) of Contracts § 210 (1981) (“A completely integrated agreement is an 

integrated agreement adopted by the parties as a complete and exclusive statement of the terms 

of the agreement.”). The parties to the CBA are the town and the union. Thus, the merger clause 

operates to supersede and cancel all prior agreements between the town and the union. It says 

nothing about agreements between the town and individual employees. Moreover, the Aleong

Court considered the presence of an analogous merger clause in the CBA at issue there and 

nevertheless held that the MOU was valid and separate from the CBA. See In re Aleong, 2014 

VT 15, ¶ 40, 196 Vt. 129, 142. To accept Appellant’s argument would be to hold that a merger 

clause in a CBA invalidates all prior individual agreements in harmony with the CBA or those 

that confer benefits beyond the CBA. As discussed, Vermont and federal law are to the contrary. 

For the preceding reasons, the Small Claims Court correctly held that Appellant’s 

Employment Agreement does not conflict with the CBA and is thus enforceable. 
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The second issue on appeal is whether the Small Claims Court erred in holding that there 

was no evidence to find that the town’s recovery would violate the Fair Labor Standards Act if it 

is not reduced by minimum wage and overtime pay. During the small claim proceedings, 

Appellant relied exclusively on a 2005 U.S. Department of Labor opinion letter, which provides 

that under the facts that gave rise to the letter, a reimbursement paid by the officer that would 

result in payment of less than minimum wage or overtime requirements would violate the FLSA. 

However, by the letter’s own terms, that conclusion is limited to the facts that gave rise to the 

letter. The letter provides: 

This opinion is based exclusively on the facts and circumstances described in your 

request and is given on the basis of your representation, express or implied, that 

you have provided a full and fair description of all the facts and circumstances that 

would be pertinent to our consideration of the question presented. Existence of any 

other factual or historical background not contained in your request might require 

a different conclusion than the one expressed herein.

Notably, that officer’s reimbursement obligation arose from an Oklahoma statute, not an 

Employment Agreement. Other pertinent facts are unknown. Appellant simply relied on this 

document and made no attempt to explain how his specific circumstances compelled a similar 

result. Appellant submitted no evidence, then or now, of how his wages would be reduced below 

minimum wage or overtime pay. Put simply, Appellant did not prove a violation of the FLSA if 

the town’s recovery is not reduced.

Because many small-claim litigants appear pro se, “the proceedings are to be as simple 

and untechnical as possible.” Ferris-Prabhu v. Dave & Son, Inc., 142 Vt. 479, 480 (1983). 

However, this does not excuse a party—especially one, as here, represented by counsel—from 

making complete legal arguments and introducing necessary evidence. It is not the trial court’s 

responsibility to ask the questions litigants neglect to ask or to adduce facts to support litigants’ 

legal theories. Olde & Co. v. Boudreau, 150 Vt. 321, 322 (1988). The record reveals that the 

proceedings were fair, and that Appellant was given a full opportunity to present his evidence.

He neglected to do so. Accordingly, the Small Claims Court did not err in holding that there was 

no evidence to find a violation of the FLSA.

ORDER

The Small Claims Court’s Decision on the Merits and Judgment are AFFIRMED.

Dated at Bennington, Vermont this 7th day of November 2018.

_______________________

William Cohen

Superior Court Judge