Carlson, In re
| Decision Date | 02 February 1982 |
| Docket Number | No. 268-80,268-80 |
| Citation | 442 A.2d 57,140 Vt. 555 |
| Parties | , 114 L.R.R.M. (BNA) 2089 In re Grievance of Peter R. CARLSON. |
| Court | Vermont Supreme Court |
Valsangiacomo & Detora, P. C., Barre, for petitioner.
Young & Monte, Northfield, for amicus curiae Vermont Labor Relations Board.
John J. Easton, Jr., Atty. Gen., and Bennett Evans Greene and J. Scott Cameron, Asst. Attys. Gen., Montpelier, for defendant.
Before BILLINGS, HILL and UNDERWOOD, JJ., and DALEY and LARROW, JJ. (Ret.), Specially Assigned.
This case concerns the dismissal of the grievant, Peter Carlson, from his position as a regional supervisor with the Vermont Department of Forest, Parks and Recreation. In December of 1979, the State dismissed the grievant for "gross neglect of duty and gross misconduct." Mr. Carlson then filed a grievance with the Vermont Labor Relations Board contesting his dismissal. See 3 V.S.A. § 926. The Board ordered the grievant reinstated to an unspecified position that would represent a demotion. Both the State and the grievant appeal the Board's decision, and the Board has certified seven questions of law pursuant to V.R.A.P. 13(d). We need only address certified question number one, as it is dispositive of this appeal: (1) Did the Board err in failing to conclude that the grievant was dismissed for just cause?
We answer the certified question in the affirmative, and reverse the Board's decision.
The bulk of the State's charges against the grievant were found to be true. Specifically, the Board found that the State had proven six incidents where the grievant acted improperly. First, the grievant participated in the improper billing of a garage door panel to the State, although the panel had been installed at his supervisor's home. Second, the grievant traded state equipment to an employee for similar merchandise, and sold a state-owned saw to an employee. The proceeds of the sale were placed in an office "coffee" fund, and were never forwarded to the State. Third, the grievant authorized state employees under his supervision to paint another state employee's vehicle on state time, with state materials. Fourth, the grievant authorized a state employee to use a state refrigerator for personal use. Fifth, the grievant installed a wood stove in his home, which he knew had been made by a state employee during working hours, with state equipment and materials. Sixth, the grievant took money intended to reimburse the State for a similar stove, and placed the funds in the "coffee" fund. Again, the money has never been turned over to the State. See Peter R. Carlson, 3 Vt.Lab.Rel.Bd.Op. 303, 317 (July 16, 1980).
Despite finding these repeated instances of dishonesty on the part of the grievant, the Board reinstated him. The Board relied Our initial task is to examine the governing contractual agreement. See In re Grievance of the Vermont State Employees' Association ("Phase Down" Employees), 139 Vt. 63, 65, 421 A.2d 1311, 1312 (1980). The relevant provision on discipline is contained in Article XV of the collective bargaining agreement:
upon "mitigating circumstances," which included the limited personal gain obtained by the grievant, an alleged pattern of abuse in the Parks Department, and a concomitant absence of fair notice as to the wrongfulness of his conduct. These mitigating factors caused the Board to conclude that under the progressive discipline provision in the state employee's contract the most severe discipline, dismissal, was unwarranted.
1. The parties jointly recognize the deterrent value of disciplinary action. Accordingly, the State will:
(a) act promptly to impose discipline within a reasonable time of the offense;
(b) apply discipline with a view toward uniformity and consistency; and
(c) impose a procedure of progressive discipline, in increasing order of severity:
1. oral reprimand;
2. written reprimand;
3. suspension without pay;
4. demotion;
5. dismissal.
The parties agree that there are appropriate cases that may warrant the State bypassing progressive discipline or applying discipline in differing degrees so long as it is imposing discipline for just cause.
Article XV, sec. 1. Agreements between the State of Vermont and the Vermont State Employees' Ass'n, Inc. (July 1, 1979 to June 30, 1981).
This case turns on whether the Board was correct in holding that the grievant's conduct did not give the State "just cause" sufficient to warrant dismissal, and bypassing the lower levels of discipline. The contract is silent on this question. Nevertheless, we believe that the Board's decision in this case is erroneous as a matter of law.
Previously, we have construed the meaning of "just cause." A discharge is for "just cause" if, (1) it is reasonable and, (2) the employee had fair notice, express or fairly implied, that such conduct would be ground for discharge. In re Grievance of Brooks, 135 Vt. 563, 568, 382 A.2d 204, 207-08 (1977). See In re Grievance of Yashko, 138 Vt. 364, 365-66, 415 A.2d 1322, 1322-24 (1980). Application of the Brooks standard to this case requires us to reverse the Board.
First, the grievant's dishonesty, indulged in time and again at public expense, justifies dismissal as a reasonable discipline. Surely, if any case is "appropriate" for "bypassing progressive discipline," it is this one. The gravity of the grievant's conduct cannot be minimized. "Short of physical violence, it is hard to imagine a more serious offense by an employee against an employer." Wilson v. State Personnel Board, 58 Cal.App.3d 865, 882, 130 Cal.Rptr. 292, 303 (1976). The Board's finding of mitigating circumstances is simply not credible. Even if we accept the Board's conclusions that the grievant obtained minimal personal profit, he certainly defrauded substantial...
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In re Grievance of Brown
...¶ 16. In reaching this conclusion, we are unpersuaded by VAT's argument that the issue is controlled by our decisions in In re Carlson, 140 Vt. 555, 442 A.2d 57 (1982), and In re Graves, 147 Vt. 519, 520 A.2d 999 (1986). In In re Carlson, we overturned a Board decision reinstating an employ......
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...¶ 16. In reaching this conclusion, we are unpersuaded by VAT's argument that the issue is controlled by our decisions in In re Carlson, 140 Vt. 555, 442 A.2d 57 (1982), and In re Graves, 147 Vt. 519, 520 A.2d 999 (1986). In In re Carlson, we overturned a Board decision reinstating an employ......
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