Grievance of Merrill, In re, No. 86-391

Docket NºNo. 86-391
Citation559 A.2d 651, 151 Vt. 270
Case DateDecember 16, 1988
CourtUnited States State Supreme Court of Vermont

Page 651

559 A.2d 651
151 Vt. 270
In re GRIEVANCE OF Darwin MERRILL.
No. 86-391.
Supreme Court of Vermont.
Dec. 16, 1988.
Motion for Reargument Denied March 24, 1989.

Page 652

[151 Vt. 271] Blais, Cain, Keller & Fowler, Inc., Burlington, for plaintiff-appellee.

Jeffrey L. Amestoy, Atty. Gen., and George Brooks, Sp. Asst. Atty. Gen., Montpelier, for defendant-appellant.

Before [151 Vt. 270] ALLEN, C.J., PECK, GIBSON and MAHADY, JJ., and KEYSER, J. (Ret.), Specially Assigned.

[151 Vt. 271] GIBSON, Justice.

The State appeals from a decision of the Vermont Labor Relations Board (Board) holding that the State acted without just cause in dismissing Darwin Merrill (grievant), who was employed by the Office of Alcohol and Drug Abuse Programs (OADAP) as the director of a project for Countermeasures Related to Alcohol and Safety on the Highways (CRASH). We affirm.

I.

Grievant was employed by OADAP as the director of Project CRASH from 1970 until his dismissal on October 5, 1984. The State seems to have had no significant difficulties with grievant's work until a new supervisor became grievant's immediate superior in June of 1981. Whereas previous supervisors engaged in minimal supervision of grievant's work, the new supervisor engaged in a much more direct scrutiny of grievant's activities.

On November 23, 1983, the supervisor issued grievant a written reprimand for: (1) mishandling funds and giving conflicting accounts of the facts thereof in connection with a Chittenden County Bar Association drinking demonstration; (2) retaining a double reimbursement of expenses in connection with a business trip to Detroit; and (3) storing alcohol belonging to the State of Vermont in his own home without an accounting or record of such storage. On April 23, 1984, grievant was placed in a six-[151 Vt. 272] month probationary period due to his continued poor job evaluations. Grievant was specifically put on notice that failure to bring his performance up to a fully satisfactory level during the warning period could result in his dismissal. Grievant's problems persisted, however, throughout the probationary period, and on October 5, 1984, grievant was dismissed for his performance shortcomings. 1

Grievant appealed his dismissal to the Board. The Board concluded that the deficiencies cited in dismissing grievant did not constitute a substantial shortcoming detrimental to the State's interests, and that the State had abused its discretion by dismissing him. The Board ordered grievant's reinstatement to his position as CRASH program chief with back pay and interest. The State appealed the decision to this Court alleging that: (1) the Board employed an erroneous legal test in determining just cause; (2) the Board erred in determining that grievant's failure to accept supervision was unintentional; (3) the Board substituted its judgment for that of the employer; and (4) the State was prejudiced by the Board's exclusion of certain evidence.

II.

As a general rule, this Court accords deference to the Board in determinations

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that lie within the area of its expertise. See In re VSEA, Inc., 143 Vt. 636, 642, 471 A.2d 230, 234 (1983); In re Carlson, 140 Vt. 555, 560, 442 A.2d 57, 60 (1982). The issues in [151 Vt. 273] this case all involve questions within its area of expertise; thus, we will not lightly overrule the Board's determinations on these matters. Specifically, we will not disturb findings made by the Board unless those findings are clearly erroneous, In re Muzzy, 141 Vt. 463, 470, 449 A.2d 970, 973 (1982), and we will normally sustain the Board's order if it is supported by its own findings. In re Carlson, 140 Vt. at 560, 442 A.2d at 60.

In reviewing disciplinary actions against state employees, the Board is required to employ a "just cause" standard in determining the appropriateness of the employee's termination. In re Muzzy, 141 Vt. at 468-69, 449 A.2d at 972. "Just cause means some substantial shortcoming detrimental 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). We have recently stated that just-cause analysis should "center upon the nature of the employee's misconduct." In re Morrissey, 149 Vt. 1, 13, 538 A.2d 678, 686 (1987). "The ultimate criterion of just cause is whether the employer acted reasonably in discharging the employee because of misconduct." In re Brooks, 135 Vt. at 568, 382 A.2d at 207-08.

The primary issue before this Court is whether the Board fashioned an insupportable new test in determining "substantial shortcoming detrimental to the employer's interests." The Board stated that "in looking at substantiality in the context of this case, the proven charges must either indicate deficiencies significantly affecting the operation of the CRASH program or indicate Grievant was unwilling to accept [his superior's] supervisory authority over him." The State alleges that this statement initiates a new legal test of just cause which cannot be upheld on any basis. We disagree.

We believe that the Board's formulation of substantiality is within the letter and spirit of our previous determinations of what constitutes just cause. See, e.g., In re Gage, 137 Vt. 16, 20, 398 A.2d 297, 299 (1979) (where state employee previously placed on probation and warned of dismissal as a possible consequence of continuing her habitual absences from work then extended her maternity leave without securing approval from her employer, the casual manner in which she did so was alone just cause for her dismissal). Furthermore, this formulation appears to be in accord with just cause determinations in other states. See, e.g., AFSCME Council [151 Vt. 274] 96 v. Arrowhead Regional Corrections Bd., 356 N.W.2d 295, 297 (Minn.1984) (just cause specifically relates to and affects administration of office, and must be restricted to something of a substantial nature directly affecting rights and interests of the public; just cause must be one touching qualifications of the officer or his performance of his duties, showing that he is not a fit or proper person to hold office). Finally, these types of formulations are of the very nature which lie peculiarly within the expertise of the Board, and, therefore, we must accord the Board's formulation its due deference. See In re VSEA, 143 Vt. at 642, 471 A.2d at 234. See also 3 V.S.A. § 926 (Board has authority to promulgate rules and regulations for the conduct of grievance hearings).

The State argues that the first prong of the Board's substantiality test, job performance deficiencies significantly affecting the operation of the program which is managed by the grievant, requires that a grievant's performance shortcomings be ruled insubstantial as a matter of law unless the State can show that the grievant's program has already been compromised by his actions. 2 The State misconstrues the Board's analysis. The Board's formulation of substantiality was

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preceded by a discussion of the so-called "Colleran-Britt " factors. See Grievance of Colleran and Britt, 6 V.L.R.B. 235, 236 (1983). The Board...

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22 practice notes
  • In re Grievance of Brown, No. 2002-460.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 22, 2004
    ...to establish just cause existed is on the employer, and that burden must be met by a preponderance of the evidence. See In re Merrill, 151 Vt. 270, 276, 559 A.2d 651, 654 (1988). The Board has routinely used the factors articulated in In re Colleran, 6 V.L.R.B. 235, 268-69 (1983), to determ......
  • 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 establish just cause existed is on the employer, and that burden must be met by a preponderance of the evidence. See In re Merrill, 151 Vt. 270, 276, 559 A.2d 651, 654 (1988). The Board has routinely used the factors articulated in In re Colleran, 6 V.L.R.B. 235, 268-69 (1983) to determi......
  • McCort, In re, No. 93-237
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 2, 1994
    ...Board acted properly in evaluating only the grounds specified in the termination letter, and the termination meeting. See In re Merrill, 151 Vt. 270, 276, 559 A.2d 651, 655 The Board also concluded that the State could not rely on the reference to other Page 509 unspecified misconduct becau......
  • Hallsmith v. City of Montpelier, No. 14–346.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 19, 2015
    ...case that the burden of proving "justifiable cause" to support the City's termination of Hallsmith fell to the City. Cf. In re Merrill, 151 Vt. 270, 276, 559 A.2d 651, 654 (1988) ("The burden rests upon the State, as the employer, to justify the dismissal of an employee by a preponderance o......
  • Request a trial to view additional results
22 cases
  • In re Grievance of Brown, No. 2002-460.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 22, 2004
    ...to establish just cause existed is on the employer, and that burden must be met by a preponderance of the evidence. See In re Merrill, 151 Vt. 270, 276, 559 A.2d 651, 654 (1988). The Board has routinely used the factors articulated in In re Colleran, 6 V.L.R.B. 235, 268-69 (1983), to determ......
  • 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 establish just cause existed is on the employer, and that burden must be met by a preponderance of the evidence. See In re Merrill, 151 Vt. 270, 276, 559 A.2d 651, 654 (1988). The Board has routinely used the factors articulated in In re Colleran, 6 V.L.R.B. 235, 268-69 (1983) to determi......
  • McCort, In re, No. 93-237
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 2, 1994
    ...Board acted properly in evaluating only the grounds specified in the termination letter, and the termination meeting. See In re Merrill, 151 Vt. 270, 276, 559 A.2d 651, 655 The Board also concluded that the State could not rely on the reference to other Page 509 unspecified misconduct becau......
  • Hallsmith v. City of Montpelier, No. 14–346.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 19, 2015
    ...case that the burden of proving "justifiable cause" to support the City's termination of Hallsmith fell to the City. Cf. In re Merrill, 151 Vt. 270, 276, 559 A.2d 651, 654 (1988) ("The burden rests upon the State, as the employer, to justify the dismissal of an employee by a preponderance o......
  • Request a trial to view additional results

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