Grievance of Gorruso

• Decision Date: 27 May 1988
• Docket Number: No. 86-179,86-179
• Citation: 549 A.2d 631,150 Vt. 139
• Court: Vermont Supreme Court
• Parties: GRIEVANCE OF John GORRUSO.

Page 631

549 A.2d 631

150 Vt. 139

GRIEVANCE OF John GORRUSO.

No. 86-179.

Supreme Court of Vermont.

May 27, 1988.

Reargument Denied June 24, 1988.

Therese M. Corsones of Corsones & Hansen, Rutland, for plaintiff-appellee.

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

Jeffrey L. Amestoy, Atty. Gen., and Denise R. Johnson, Asst. Atty. Gen., Montpelier, for amicus Dept. of Personnel.

Michael R. Zimmerman, Montpelier, for amicus VSEA.

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

GIBSON, Justice.

The State of Vermont appeals a decision of the Vermont Labor Relations Board (Board) reinstating grievant to his previous position. We reverse.

On January 29, 1985, grievant was dismissed from his position as a correctional officer at the Rutland Community Correctional Center for his sexual harassment of female employees at the Center. Grievant filed a grievance with the Board, which held extensive hearings on the merits of the issue. On January 23, 1986, a majority of the Board ordered grievant's reinstatement and reduced grievant's dismissal to a sixty-workday suspension without pay. One member of the Board dissented, asserting that grievant's actions constituted just cause for dismissal. In response to a motion for reconsideration filed by the State, the Board modified several of its original findings and reduced grievant's penalty from a sixty-workday suspension to a thirty-workday suspension. The State appealed, contending, among other things, that the Board exceeded its statutory and contractual authority by substituting its judgment for that of the employer in ordering the reinstatement of grievant. Since this issue is dispositive of the appeal, we will not consider the other issues raised by the State.

I.

Before we address this issue, however, we must resolve several preliminary issues raised by grievant and amicus curiae, the Vermont State Employees' Association Grievant and VSEA also claim that through this appeal the State is attempting a "back door" appeal of the Board's decision in In re Sherman, 7 VLRB 380 (1984). We agree that the State may not now appeal that decision, because the time for appealing it has long since expired. See V.R.A.P. 4. In the instant case, however, the State is not attempting to appeal Sherman, but rather is asking this Court to review the Board's application of its contractual authority in disciplinary grievances which the Board first enunciated in Sherman. This Court has not previously ruled on that issue. Our decision in the instant case does not affect the result in Sherman; it does, however, affect the applicability of the Board's legal analysis in Sherman to future disciplinary grievances.

(VSEA). Grievant and VSEA object to the State's raising on appeal the issue of the Board's alleged abuse of its authority on the ground that the State did not raise this issue before the Board. While it is true that a party may not present issues that were not previously placed before the Board for its consideration, In re McMahon, 136 Vt. 512, 514, 394 A.2d 1136, 1138 (1978), we do not find that situation to exist in the instant case. The State cannot be expected to object to the Board exceeding its authority until the Board actually does so. The issue here did not arise until the Board issued its decision and substituted its judgment for that of the employer by ordering grievant's reinstatement. Such action is properly reviewable on appeal. See Dartmouth Savings Bank v. F.O.S. Assoc., 145 Vt. 62, 66, 486 A.2d 623, 625 (1984) (fundamental nature of appellate review that misapplication of the law is subject to correction on appeal). Further, the State raised the issue before the Board in its motion for reconsideration. The issue is properly before us on appeal.

Finally, grievant objects to the State's inclusion in the instant case of excerpts from the transcript of the Board's hearings in Sherman. We agree with grievant. A transcript of a prior proceeding not introduced at trial cannot be considered by this Court on appeal. LaPlaca v. Lowery, 134 Vt. 56, 57, 349 A.2d 235, 236 (1975). Because the Sherman transcript was not part of the record before the Board in the instant case, it will not be considered in deciding this appeal.

II.

The principal issue of the instant case, however, is whether the Board exceeded its authority in substituting its judgment for that of the employer when it reinstated grievant. In fashioning its order, the Board relied in part upon its previous interpretation in Sherman of certain language added to the controlling collective bargaining agreement in 1984. The relevant language provides that:

In any case involving a suspension or dismissal, should the Vermont Labor Relations Board find just cause for discipline, but determine that the penalty was inappropriate or excessive, the Vermont Labor Relations Board shall have the authority to impose a lesser form of discipline.

In conformity with its previous interpretations of this language, beginning with Sherman, the Board held that this language gives the Board the "authority to substitute our judgment for that of the Employer." ¹

The parties agree that the disputed language was added to the collective bargaining agreement to relieve the problem of having interminable appeals and remands between the Board and the employer, until a discipline is found that is mutually acceptable to those involved, or upheld on appeal. It is the State's position that It is well established that it is the duty of judicial or quasi-judicial bodies to construe a contract so as to ascertain the true intention of the parties. See Gardner v. Gauthier, 101 Vt. 147, 150, 141 A. 682, 684 (1928). This Court has also held that the expertise of the Board in construing collective bargaining agreements is presumed, and substantial deference must be accorded the Board's constructions. In re Carlson, 140 Vt. 555, 560, 442 A.2d 57, 60 (1982). In the instant case, however, we find the Board's construction of the collective bargaining agreement to be unsupportable.

under the new language, if the Board finds that just cause for discipline exists but disagrees with the discipline, the Board may impose a lesser penalty. It may do so, however, only after giving due deference to the State's choice of discipline, as is required by this Court's decisions of In re Goddard, 142 Vt. 437, 444-45, 457 A.2d 637, 641-42 (1983), and In re Brooks, 135 Vt. 563, 568, 382 A.2d 204, 207 (1977), and only if the Board concludes that the discipline imposed was "inappropriate or excessive." ² [150 Vt. 143] ² Grievant and VSEA have a fundamentally different interpretation of the same language. They contend that after determining that just cause for discipline exists, the Board may impose a lesser form of punishment whenever it finds a penalty to be "inappropriate or excessive," and in doing so, may substitute its judgment for that of the State without according any deference to the State's choice of discipline. Thus, it is apparent that the disputed language is sufficiently ambiguous to require inquiry and a determination as to the meaning intended for it by the parties to the contract. See Trustees of Net Realty Holding Trust v. AVCO Fin. Serv. of Barre, Inc., 144 Vt. 243, 248-49, 476 A.2d 530, 533 (1984).

Where the language used in a contract will admit of more than one interpretation, we will look at the situation and motives of the parties, the subject matter of the contract, and the object sought to be attained by it. Stratton v. Cartmell, 114 Vt. 191, 194, 42 A.2d 419, 420 (1945); see also Powers v. State Highway Bd., 123 Vt. 1, 4, 178 A.2d 390, 392 (1962) (in getting at the intent of the parties to a contract, the situation of the parties and their objectives and purposes are to be considered insofar as they throw light on their apparent intentions). In construing a contract, courts must endeavor to avoid what is unequal, unreasonable, and improbable, if this can be done consistently with the words of the contract. Town of Royalton v. Royalton & Woodstock Turnpike Co., 14 Vt. 311, 322 (1842).

It is obvious that the intent of the parties to the contract was to cure a potentially debilitating series of grievance appeals. The relevant historical backdrop to the contract negotiations shows that the parties were aware of the problem of the Board's lack of authority to impose a lesser degree of discipline. Under this Court's prior interpretations of the Board's legal and contractual authority, if the Board found that "just cause" for discipline existed, but that there did not exist "just cause" for the discipline imposed, ³ the Board lacked authority to substitute its judgment for that of the employer and impose a lesser degree of discipline. See Goddard Thus, there existed the possibility (indeed the probability) of extensive litigation and long delays until a discipline was determined which the parties would accept or which would withstand appeal. See Note, The Vermont Labor Relations Board's Role in Grievance Proceedings: Let's Make This Process Work, 12 Vt.L.Rev. 429, 443-48 (1987) (practical problems for both State and grievants with delays resulting from resolving grievance proceedings). The State and VSEA were aware of this problem, and the disputed contract language was the direct result of their contractual negotiations over this issue. See Sherman, 7 VLRB at 395-405 (history of the contract negotiations and the legal background in which they occurred); Note, supra, at 443-48 (history of Board's role in grievance proceedings).

142 Vt. at 444-45, 457 A.2d at 641-42; In re Gage, 137 Vt. 16, 19, 398 A.2d 297, 299 (1979). Under such circumstances, the Board could only remand the grievance back to the employer for consideration of an alternative disciplinary measure. If grievant objected to the alternative discipline imposed, another...