Boocock, In re, 84-368

• Decision Date: 30 September 1988
• Docket Number: No. 84-368,84-368
• Citation: 150 Vt. 422,553 A.2d 572
• Parties: , 131 L.R.R.M. (BNA) 2526 In re Grievance of David BOOCOCK.
• Court: Vermont Supreme Court

Page 572

553 A.2d 572

150 Vt. 422, 131 L.R.R.M. (BNA) 2526

In re Grievance of David BOOCOCK.

No. 84-368.

Supreme Court of Vermont.

Sept. 30, 1988.

Michael R. Zimmerman, VSEA Staff Atty., Montpelier, for plaintiff-appellant.

Jeffrey L. Amestoy, Atty. Gen., and Michael Seibert, Asst. Atty. Gen., Montpelier, for defendant-appellee.

Before ALLEN, C.J., PECK and GIBSON, JJ., and KEYSER, J. (Ret.), Specially Assigned.

ALLEN, Chief Justice.

On June 28, 1984, the Vermont Labor Relations Board (Board) dismissed David Boocock's grievance after concluding that it lacked jurisdiction over the matter. Grievant appeals from the Board's order. We affirm.

Grievant began his career with the Department of Public Safety as a Vermont State Police Officer in December, 1980. After successfully completing his one-year probationary period, he acquired the status of a permanent classified employee.

In December of 1982, grievant underwent an annual performance evaluation covering his second year of employment with the Department. Dissatisfied with the outcome of this evaluation, he pursued his grievance through the lower steps of the grievance procedure. After receiving no relief, he appealed to the Board contending that the 1982 performance evaluation violated Article 13 of the collective bargaining agreement then in effect between the State of Vermont and the Vermont State Employees Association (VSEA). Article 13 prescribes the manner in which annual performance evaluations are to be conducted.

Grievant alleged that his supervisors failed to bring identified performance deficiencies to his attention during the rating period. Article 13 of the collective bargaining agreement then in effect provided that "[d]uring the rating year, the immediate supervisor shall call the employee's attention to work deficiencies which may adversely affect a rating, and, where appropriate, to possible areas of improvement." Grievant further alleged that those ratings and remarks included in the 1982 evaluation were incorrect.

Eight days after the grievance was filed and before any hearings were held, grievant resigned from his position. A short time later, he commenced employment with the United States government.

During the hearings the Board questioned whether it had jurisdiction over the grievance due to the earlier resignation. Both parties to the grievance were given the opportunity to and did provide the Board with memoranda on this issue.

After considering the parties' memoranda, the Board dismissed the grievance, finding that it lacked jurisdiction over the matter. The Board based its decision on a finding that the grievance failed to present an "actual controversy." The Board reasoned that "the potential harm to Grievant which may have been caused by an adverse performance evaluation ha[d] been eliminated since he [had] obtained satisfactory employment in the federal service, and there [was] no indication the evaluation at issue here affected his procuring of employment."

The issue before us on appeal is whether the Labor Relations Board erred in its determination that it lacked jurisdiction over the grievance.

As a public administrative body, the Board has only that adjudicatory authority conferred on it by statute. Boynton v. Snelling, 147 Vt. 564, 565, 522 A.2d 232, 233 (1987); In re Brooks, 135 Vt. 563, 570, 382 A.2d 204, 208 (1977). In grievance proceedings, the Board's jurisdiction is limited by both the definition of the term "grievance" in 3 V.S.A. § 902(14)), ¹ and by the requirement that there be an "actual controversy" between the parties. See In re Friel, 141 Vt. 505, 506, 450 A.2d 1111, 1112 (1982).

According to the language used in § 902(14), only an employee, group of employees or employee's collective bargaining representative may bring a "grievance" before the Labor Relations Board. One may qualify as an employee eligible to use the grievance procedure in a number of ways. Qualified employees generally include individuals "employed on a permanent or limited status basis by the state of Vermont" or "whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice...." 3 V.S.A. § 902(5).

We need not reach the issue of whether the grievant, after voluntarily terminating his employment with the state and acquiring work elsewhere, still qualifies as an employee eligible to continue a grievance proceeding, since we agree with the Board that no actual controversy between the parties exists.

"Jurisdiction is conferred on the Vermont Labor Relations Board under the collective bargaining agreement where an actual controversy between the parties exists." Friel, 141 Vt. at 506, 450 A.2d at 1112. To satisfy the actual controversy requirement, there must be injury in fact to a protected legal interest or the threat of an injury in fact. Id. Where future harm is at issue, the existence of an actual controversy "turns on whether the plaintiff is suffering the threat of actual injury to a protected legal interest, or is merely speculating about the impact of some generalized grievance." Town of Cavendish v. Vermont Public Power Supply Authority, 141 Vt. 144, 147, 446 A.2d 792, 794 (1982).

The Board's lack of jurisdiction over the grievance stems from the absence of any injury in fact or threat of injury...