Brooks, In re, No. 149-77

Docket NºNo. 149-77
Citation382 A.2d 204, 135 Vt. 563
Case DateDecember 06, 1977
CourtUnited States State Supreme Court of Vermont

Page 204

382 A.2d 204
135 Vt. 563, 97 L.R.R.M. (BNA) 2432
In re Grievance of Albert BROOKS.
No. 149-77.
Supreme Court of Vermont.
Dec. 6, 1977.

Page 205

[135 Vt. 564] Alan S. Rome, Vermont State Employees' Association, Montpelier, for plaintiff.

M. Jerome Diamond, Atty. Gen., and Louis P. Peck, Chief Asst. Atty. Gen., Montpelier, for defendant.

Before [135 Vt. 563] BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

[135 Vt. 564] BILLINGS, Justice.

This is an appeal by the State of Vermont pursuant to 3 V.S.A. § 1003 from an order of the Vermont Labor Relations Board, rendered in a grievance proceeding under 3 V.S.A. § 926. The Board made findings of fact and conclusions of law and ordered inter alia reinstatement of the grievant, a state employee who had been discharged because of repeated altercations with fellow employees. Pursuant to V.R.A.P. 13(d), four questions have been certified for review. 1

Albert Brooks, the grievant, had been an employee of the State Military Department for a period of six years prior to his dismissal. In his capacity as a building custodian at Camp Johnson in Winooski, he earned a reputation as a good worker who took great

Page 206

pride in his work. His relations with fellow employees, however, were marked by several severe arguments. In the six months prior to his dismissal, grievant had serious disagreements with fellow workers on at least two occasions, one of which involved the use of physical force [135 Vt. 565] against a female co-worker. These facets of grievant's work performance were reflected in a written performance evaluation for the year ending June 30, 1976, in which grievant's overall performance was rated satisfactory, while his relationship with co-workers was rated less than satisfactory. Grievant's supervisors had numerous conferences with grievant concerning his problems with his co-workers and finally changed his work hours to lessen his contacts with other employees.

The altercation precipitating grievant's dismissal occurred during the evening of August 11, 1976, and involved a second female employee, who was on duty that evening. Although no physical violence occurred, grievant became very angry and directed abusive language at the employee, after which she left work. After an investigation by grievant's superiors, grievant was dismissed by a letter dated August 20, 1976. The letter stated as reason for the dismissal grievant's repeated conflicts with co-workers "to the point where some degree of violence has occurred and which (act) to the detriment of the proper functioning of this department."

Thereafter, the Vermont State Employees' Association, Inc. filed a grievance with the Board on behalf of the grievant. After a hearing, the Board ordered that grievant be reinstated effective October 22, 1976, with back pay, less any sums of money earned since that date, and recommended that he be transferred from Camp Johnson. The Board based this order on the State's failure to follow "generally accepted principles of orderly, progressive discipline," which it found to be the procedure normally called for by State employee regulations. The Board further ordered that the grievant be offered counselling under the State Employees' Assistance Program along with whatever additional professional counselling the State deemed necessary.

The Vermont Labor Relations Board is an administrative body created by the Legislature to perform various designated duties. 3 V.S.A. §§ 901, et seq., Among these duties, the Board has the delegated power to hear and determine grievances. 3 V.S.A. § 926. In grievance proceedings, the Board acts as a quasi-judicial body, determining questions of law and fact as an [135 Vt. 566] incident to the performance of its administrative duties. Trybulski v. Bellows Falls Hydro-Electric Corp., 112 Vt. 1, 8, 20 A.2d 117, 120 (1941).

In a grievance proceeding, the Board's jurisdiction is dictated by 3 V.S.A. § 902(14), which defines grievance as follows:

"Grievance," means an employee's, group of employees', or the employee's collective bargaining representative's expressed dissatisfaction, presented in writing, with aspects of employment or working conditions under collective bargaining agreement or the discriminatory application of a rule or regulation, which has not been resolved to a satisfactory result through informal discussion with immediate supervisors.

In the instant case, the Board's grievance jurisdiction was predicated on grievant's expressed dissatisfaction with aspects of employment, i. e. his dismissal, under the collective bargaining agreement, 2 which provided that the employer could "dismiss an employee for just cause with two weeks notice or two weeks pay (in) lieu of notice." 3 The notice of dismissal in the case

Page 207

at bar is not challenged here. Thus, the issue for the Board was whether grievant was dismissed for just cause.

[135 Vt. 567] Appellant's primary objection to the Board's decision is the failure of the Board to address the fundamental issue before it, the existence or nonexistence of just cause to dismiss the grievant. The Board made no express finding as to just cause in its order. Instead, the Board ordered reinstatement of the grievant on the grounds that the State had failed to use step or progressive discipline, which the Board found to be the procedure normally required by the State employee regulations. Unless this finding by the Board is equivalent to a determination that no just cause existed for dismissal of the grievant, the Board's order is fatally defective for failure to address the fundamental issue before it.

The appellant objects to the Board's finding...

To continue reading

Request your trial
45 practice notes
  • Cox v. STATE EX REL. OKLAHOMA DHS, No. 96,899.
    • United States
    • Supreme Court of Oklahoma
    • March 9, 2004
    ...School Dist. v. Pennsylvania Labor Relations Bd., 682 A.2d 439, 443 (Pa.Cmwlth.1996) [Failure to follow could show animus.]; In re Brooks, 135 Vt. 563, 569, 382 A.2d 204 (1977) [Can contract for progressive disciplinary policy.]; Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 707 (Minn......
  • In re Grievance of Brown, No. 2002-460.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 22, 2004
    ...to the employer's interests, which the law and a sound public opinion recognize as a good cause for his dismissal." In re Brooks, 135 Vt. 563, 568, 382 A.2d 204, 207 (1977) (citations omitted). The burden of proof to establish just cause existed is on the employer, and that burden must be m......
  • Richardson v. Nw. Christian Univ., No. 6:15–cv–01886–AA
    • United States
    • U.S. District Court — District of Oregon
    • March 16, 2017
    ...conduct would be ground for discharge." Simpson v. W. Graphics Corp. , 53 Or.App. 205, 631 P.2d 805, 807 (1981) (quoting In re Brooks , 135 Vt. 563, 382 A.2d 204 (1977) ). There is no question of material fact that plaintiff was fired on at least one illegal ground (marital status), and ill......
  • In re Brown, 2004 VT 109 (VT 10/22/2004), No. 2002-460, September Term, 2003
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 22, 2004
    ...to the employer's interests, which the law and a sound public opinion recognize as good cause for his dismissal." In re Brooks, 135 Vt. 563, 568, 382 A.2d 204, 207 (1977) (citations omitted). The burden of proof to establish just cause existed is on the employer, and that burden must be met......
  • Request a trial to view additional results
45 cases
  • Cox v. STATE EX REL. OKLAHOMA DHS, No. 96,899.
    • United States
    • Supreme Court of Oklahoma
    • March 9, 2004
    ...School Dist. v. Pennsylvania Labor Relations Bd., 682 A.2d 439, 443 (Pa.Cmwlth.1996) [Failure to follow could show animus.]; In re Brooks, 135 Vt. 563, 569, 382 A.2d 204 (1977) [Can contract for progressive disciplinary policy.]; Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 707 (Minn......
  • In re Grievance of Brown, No. 2002-460.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 22, 2004
    ...to the employer's interests, which the law and a sound public opinion recognize as a good cause for his dismissal." In re Brooks, 135 Vt. 563, 568, 382 A.2d 204, 207 (1977) (citations omitted). The burden of proof to establish just cause existed is on the employer, and that burden must be m......
  • Richardson v. Nw. Christian Univ., No. 6:15–cv–01886–AA
    • United States
    • U.S. District Court — District of Oregon
    • March 16, 2017
    ...conduct would be ground for discharge." Simpson v. W. Graphics Corp. , 53 Or.App. 205, 631 P.2d 805, 807 (1981) (quoting In re Brooks , 135 Vt. 563, 382 A.2d 204 (1977) ). There is no question of material fact that plaintiff was fired on at least one illegal ground (marital status), and ill......
  • In re Brown, 2004 VT 109 (VT 10/22/2004), No. 2002-460, September Term, 2003
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 22, 2004
    ...to the employer's interests, which the law and a sound public opinion recognize as good cause for his dismissal." In re Brooks, 135 Vt. 563, 568, 382 A.2d 204, 207 (1977) (citations omitted). The burden of proof to establish just cause existed is on the employer, and that burden must be met......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT