Grievance of Muzzy, In re

• Decision Date: 15 July 1982
• Docket Number: No. 364-80,364-80
• Citation: 141 Vt. 463,449 A.2d 970
• Parties: In re GRIEVANCE OF Ruth MUZZY.
• Court: Vermont Supreme Court

Page 970

449 A.2d 970

141 Vt. 463

In re GRIEVANCE OF Ruth MUZZY.

No. 364-80.

Supreme Court of Vermont.

July 15, 1982.

Michael R. Zimmerman, Montpelier, for plaintiff; Putter & Unger, Montpelier, on the brief.

John J. Easton, Jr., Atty. Gen., John Scott Cameron, Asst. Atty. Gen., and Marilyn Skoglund, Sp. Asst. Atty. Gen., Montpelier, for defendant.

Before BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.

UNDERWOOD, Justice.

The grievant appeals an order of the Vermont Labor Relations Board which found that she was dismissed for just cause from her job as a typist in the Secretary of State's office. The Board's order relies on two novel principles of uncertain origin to produce its result. Because the principles used are legally erroneous, we reverse and remand.

The grievant was hired as a Typist B in the office of the Secretary of State in December of 1970. Nine years later, she received two consecutive unsatisfactory performance evaluations, the first she had ever received. She attributes this drop in performance to two factors. First, she claims that the quantity of the work she had to perform increased over the years. Of even greater consequence, she says, was a qualitative change in the nature of her responsibilities.

According to the job description, the work of a Typist B is characterized "by the general emphasis on clerical rather than secretarial or supervisory duties and the absence of any appreciable administrative duties." The grievant maintains that when a new Secretary of State took office in January of 1977, her duties were increased beyond the scope of a Typist B and she was required to assume sole responsibility for functions previously performed by an assistant secretary of state. Those duties included making decisions about trade name and corporate name availability, and processing applications therefor, in addition to handling corporate registrations and dissolutions, processing writs, and answering mail and telephone inquiries.

Apparently unable to adapt to the increased scope and volume of work, the claimant was told that she "inconsistently meets job requirements" in a performance evaluation covering the period from July 1978 to July 1979. When her next performance evaluation, covering the period from August 1979 through December 1979, reached the same result, she was placed in a three-month warning period which was to run from January through March 31, 1980. She was warned that if her performance during that period did not rise to the level of "consistently meets job requirements," she would be dismissed.

Her supervisor "was of the opinion" that the unsatisfactory performance was continuing, according to the Board's findings, and the record contains memoranda written by the supervisor during the warning period chronicling the grievant's errors. Almost all of the specific errors cited in the various memoranda, however, predate the warning period. Also during the warning period, the grievant began experiencing unusual physical symptoms. Hospitalization during the last days of her warning period resulted in the discovery that she was a diabetic. Even though the warning period had not run, a decision was taken to dismiss her. On the advice of the Personnel Department, notice of that decision was mailed to the grievant at her hospital bed on March 28, 1980.

The Board sustained the grievant's dismissal, and used the occasion to announce two new principles of law which we have not encountered elsewhere. These principles both rest on a purported distinction between a dismissal for misconduct, and a dismissal for nonperformance. The Board's first innovation was to adopt an appellate standard of review for dismissals for nonperformance, and declare that the State's action would be upheld if it could show "substantial evidence" of just cause to dismiss, while hewing to the customary "preponderance of the evidence" standard for dismissals for misconduct. Secondly, in ruling that the progressive discipline provisions of the collective bargaining agreement between the State and its employees do not apply to dismissals for nonperformance, the Board ignored the plain meaning of a contract negotiated by the State and its employees, and turned instead to the Rules and Regulations for Personnel Administration, which were unilaterally promulgated by the State and predate the collective bargaining agreement, to limit and interpret the contract.

The grievant appeals from the Board's order, attacking both the legal innovations it contains, and certain deficiencies in its findings. Those deficiencies include (a) the Board's mere recitation of the supervisor's opinion that the grievant had performed unsatisfactorily during the warning period; and (b) the absence of any independent finding by the Board, after a sifting of the conflicting evidence, that the deficiencies continued. She seeks reinstatement, back pay and other benefits.

The Board has jurisdiction to "hear and make final determination" of employee grievances. 3 V.S.A. § 926. "The extent of its jurisdiction in grievance proceedings is limited by the definition of the term 'grievance' in 3 V.S.A. § 902(14)," but does extend to an employee's complaint that her dismissal violated the collective bargaining agreement between the State and its workers. In re Stacey, 138 Vt. 68, 70, 411 A.2d 1359, 1360 (1980). See also, In re Harrison, 141 Vt. 215, ---, 446 A.2d 366, 368 (1982). The employee here claims that her dismissal violated the collective bargaining agreement in two respects. First, it was without just cause. Secondly, she was dismissed without prior resort to the less onerous sanctions contained in the progressive discipline provisions of the contract.

The Board's function in addressing both issues is identical. "In grievance proceedings, the Board acts as a quasi-judicial body, determining questions of law and fact ...." In re Brooks, 135 Vt. 563, 565, 382 A.2d 204, 206 (1977). Our review of the Board's performance with respect to both issues convinces us that it has used fallacious legal principles to avoid its duty to find the facts.

We turn first to the issue of "just cause."

I.

"The objective of a 'just cause' clause in a collective bargaining agreement is to remove from the employer the right to fire employees arbitrarily." In re Harrison, supra, 141 Vt. at ---, 446 A.2d at 368. As the Board's opinion acknowledges, "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." In re Gage, 137 Vt. 16, 18, 398 A.2d 297, 298 (1979).

[A] discharge may be upheld as one for "cause" only if it meets two criteria of reasonableness: one that it is reasonable to discharge employees because of certain conduct, and the other, that the employee had fair notice, express or fairly implied, that such conduct would be ground for discharge.

In re Brooks, supra, 135 Vt. at 568, 382 A.2d at 207-08.

The Board found both criteria met in the present case: "Not only did Grievant's continuing performance deficiencies constitute a substantial shortcoming detrimental to the State's interests, but Grievant was given ample notice of the types of performance deficiencies which could result in her dismissal." The Board's opinion, however, is defective as to both issues.

A.

The Board's conclusion that the grievant's shortcomings constituted conduct for which it would be reasonable to dismiss her depends on an erroneous standard of evidence. The Board stated:

Where no due process violations are evident, we will, in examining the merits of a dismissal for performance reasons, give considerable deference to the evaluator(s). The answer to the essential question of whether an employee's actions or inactions constitute a "substantial shortcoming detrimental to the employer's interests" is predicated on the State's ability to establish that fact not by a preponderance of the evidence (as would be required in a case of dismissal for misconduct, cf. Grievance of Robert DeForge, 3 VLRB 204 (1980) and Grievance of Peter Carlson, 3 VLRB 303 (1980)), but by substantial evidence. It is then necessary for the grievant to rebut the facts and reasons given by the State to a degree sufficient to discredit and diminish the State's case to one without substantial evidence of cause.

This misstatement of the appropriate standard of evidence in a de novo hearing indicates the Board's continuing inability to comprehend its proper role. See, e.g., In re Harrison, supra, 141 Vt. at ---, 446 A.2d at 367; In re Carlson, 140 Vt. 555, 560, 442 A.2d 57, 60 (1982); In re Gage, supra, 137 Vt. at 19, 398 A.2d at 299; In re Brooks, supra, 135 Vt. at 570-71, 382 A.2d at 209. The Board has strayed from its statutory function and from the contract it is supposed to construe by applying an appellate standard of review to resolve the issues before it.

The evidentiary standard adopted by the Board is not for a finder of fact, but for appellate review of facts found by an administrative body.

The substantial evidence rule (which with very few exceptions is the standard for the review of administrative fact finding when the review is on a hearing record) is analogous to appellate review of judgments predicated on jury verdicts.... In essence, the substantial evidence rule sanctions rejection of administrative findings only if, considering the record as a whole, a reasonable mind would necessarily come to a different conclusion. The rule does not permit the rejection of agency findings simply because a reasonable mind might have arrived at a contrary conclusion. The purpose of the rule is the protection of the integrity and autonomy of the administrative process as well as deference to the agency's expertise and experience.

5 B. Mezines, J. Stein & J. Gruff, Administrative Law § 51.01, at 51-17 et seq. (1982); see also 4 K....