Gage, In re, 133-78

• Decision Date: 06 February 1979
• Docket Number: No. 133-78,133-78
• Parties: , 100 L.R.R.M. (BNA) 2827 In re Grievance of Dianna Nagley GAGE.
• Court: Vermont Supreme Court

Page 297

398 A.2d 297

137 Vt. 16, 100 L.R.R.M. (BNA) 2827

In re Grievance of Dianna Nagley GAGE.

No. 133-78.

Supreme Court of Vermont.

Feb. 6, 1979.

Alan S. Rome, Vermont State Employees' Association, Inc., Montpelier, for plaintiff.

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

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

LARROW, Justice.

The State of Vermont, as employer, appeals from an amended order of the Vermont Labor Relations Board, setting aside the discharge from state employment of claimant Gage and ordering back pay. Four questions were certified, all involving the meaning of the concept of "just cause" for discharge. Essentially this was the subject matter of our recent opinion in In re Grievance of Brooks, 135 Vt. 563, 382 A.2d 204 (1977). Our disposition of the instant case renders full recital of these questions unnecessary; a fortuitous result in that they were certified by a chairman of the Board whose predecessor, rather than himself, presided over the hearing and issued the findings and conclusions. In our view, compliance with V.R.A.P. 13(d) requires such certification by the "presiding officer" who in fact presided.

The parties concede that the principles which we enunciated in Brooks are controlling here. The grievant seeks to distinguish the cases on their facts. The Board also recognized the applicability of our holding in Brooks. In an attempt to conform to that opinion, the Board amended its previously issued order, in effect changing the bulk of its orders to recommendations and suggestions. These included provisions that the State offer counselling, impose an additional 120 day probationary period, require medical justification for sick leave, and require that requests for annual leave be in writing and be made well in advance. The claimant contends that these revisions save the decision below from reversal under Brooks. She argues that the Board conclusion of no just cause for termination is supported by the evidence, particularly since the notice of termination specifies Only failure to timely return from maternity leave. The State contends that, despite revisions of form, the Board's conclusions are based upon its position, repudiated in Brooks, that "step discipline" and counselling are mandatory. It says that, as in Brooks, the whole record compels a finding that, as a matter of law, just cause for termination existed. We agree with the State, and reverse.

As Mr. Justice Billings clearly pointed out in Brooks, jurisdiction of the Board in grievance proceedings is governed by the definition of the term grievance in 3 V.S.A. § 902(14). In these circumstances, that jurisdiction is limited to determining whether there was just cause for the dismissal of the grievant under the collective bargaining agreement. Brooks, supra, 135 Vt. at 570, 382 A.2d at 208-09. The just cause clause in a bargaining agreement extinguishes the right to fire an employee arbitrarily. Just cause means some substantial shortcoming detrimental to the employer's interests which the law and sound public opinion recognize as a good cause for dismissal. Instances of repeated conduct insufficient in themselves may accumulate so as to provide just cause for dismissal. Id. at 568, 382 A.2d at 207. The changes which the Board made in its findings and conclusions, after receiving our opinion in Brooks, did remove some objectionable aspects of its original order, and did expressly state that it found no just cause to have existed for discharging the grievant. But they left unchanged in one essential the...