In re Aleong

• Decision Date: 21 March 2014
• Docket Number: No. 13–213.,13–213.
• Citation: 94 A.3d 1150,2014 VT 15
• Court: Vermont Supreme Court
• Parties: In re Grievance of John ALEONG.

94 A.3d 1150

2014 VT 15

In re Grievance of John ALEONG.

No. 13–213.

Supreme Court of Vermont.

March 21, 2014.

Pietro J. Lynn, Robin A. Freeman, Jr. and Scarlett S. MacIlwaine of Lynn, Lynn & Blackman, P.C., Burlington, for Plaintiff–Appellant.

Jeffrey J. Nolan and Sophie E. Zdatny of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendant–Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and CRAWFORD, JJ.

CRAWFORD, J.

¶ 1. Grievant appeals from a decision of the Vermont Labor Relations Board holding that his grievance of the termination of one portion of his teaching position at the University of Vermont falls outside the Board's jurisdiction. We affirm.

¶ 2. In 1994, the University's Department of Plant and Soil Science hired grievantas a tenured professor on a 0.8 full-time-equivalent (FTE) basis. The department forms part of the College of Agriculture and Life Sciences (CALS) within the University. At the same time, grievant received a supplemental salary for teaching one course per semester at the University's College of Engineering and Mathematical Sciences (CEMS). The appointment at CEMS was a 0.2 FTE position.

¶ 3. Together, grievant's two positions added up to full-time employment. Grievant's initial engagement letter sent to him in March 1994 addressed both teaching assignments. It identified the 0.8 FTE position at CALS as a tenured position. The 0.2 FTE position at CEMS was different. The letter stated that the supplemental position at CEMS “will be provided by that College as long as your teaching is deemed satisfactory by normal University standards.” Since 1994, grievant has taught statistics and related courses at both CALS and CEMS on the 0.8/0.2 basis described in his engagement letter. He has also taught summer school and adult learning courses in addition to his full-time workload.

¶ 4. The University first sought to terminate grievant's 0.2 FTE position in March 2005 when the chair of the Department of Mathematics and Statistics within CEMS informed grievant that the 0.2 FTE position would be discontinued due to poor student evaluations, cancelling classes, tardiness in submitting grades, lack of availability outside class, and unresponsiveness to students and supervisors. United Academics, the faculty union, filed a grievance on grievant's behalf.

¶ 5. The grievance was settled in October 2005 before it could reach the Board. The parties signed a memorandum of understanding (2005 MOU) to memorialize their agreement that the University would continue to offer grievant the 0.2 FTE supplemental teaching assignment at CEMS “until a review has determined that his teaching is not satisfactory by normal University standards.” The grievance was withdrawn. A review of grievant's teaching performance conducted in the spring semester of 2006 was favorable.

¶ 6. In January 2012, the quality of grievant's instruction became an issue for a second time. The director of the statistics program within CEMS, Professor Jeffrey Buzas, received student evaluations from four sections of the statistics class taught by grievant during the fall 2011 semester. Once again, the evaluations were poor. The students criticized grievant for a lack of organization and for failing to respond to students' questions. Students also complained that grievant kept trying to reschedule Friday classes despite student conflicts with the alternative times he proposed.

¶ 7. In response to these complaints, the deans of CEMS and CALS opened a joint investigation. It included a review of the student evaluations by two other professors and interviews of grievant and some of his students from the fall 2011 semester.

¶ 8. In April 2012, the two deans sent grievant a letter summarizing the results of their investigation. The letter was critical of grievant's teaching during the fall 2011 semester and of what the deans described as a deflection of personal responsibility and a lack of candor about the issue of holding class on Fridays.

¶ 9. Following the deans' letter, the director of statistics and the chair of the Department of Mathematics and Statistics sent a letter to grievant that terminated his 0.2 FTE teaching appointment at CEMS. In May 2012, the deans of CEMS and CALS also sent a letter of discipline to grievant reprimanding him for the shortcomingsrevealed by their investigation. The letter expressly imposed “the following discipline: you will be ineligible for assignments yielding supplemental or additional compensation until the end of the spring 2015 semester.”

¶ 10. In response to the two letters, grievant wrote to the chair of the Department of Mathematics and Statistics at CEMS seeking review of the termination of the 0.2 FTE teaching appointment. He complained about the conduct of the investigation, the absence of “just cause” to support termination of the part-time position, procedural mistakes, and the “untimely basis” of the discipline. He sought reinstatement of the 0.2 FTE position. This letter initiated the grievance process.¹

¶ 11. The grievance made its way through review by University administrators who uniformly denied the grievance. In August 2012, grievant filed his first grievance with the Vermont Labor Relations Board. In this grievance, he alleged that the May 2012 letter of discipline was not supported by “just cause”; was not expressly identified as a letter of reprimand; and was untimely administered, all in violation of the CBA between the University and the faculty union.

¶ 12. In September 2012, grievant filed a second, supplemental grievance. His second grievance claimed that the termination of the 0.2 FTE position was unsupported by just cause, was untimely administered, and violated termination procedures under the CBA, and that any shortcomings in teaching performance were due to the University's failure to provide “adequate professional resources.” Finally, he claimed that the University failed to follow the terms of the parties' 2005 MOU regarding termination.

¶ 13. The Board conducted a consolidated grievance hearing over the course of two days in January and February 2013. In April 2013, it issued detailed findings of fact and conclusions of law. In the first grievance, the Board ruled in favor of grievant on most issues. This grievance concerned the discipline imposed with respect to the 0.8 FTE teaching position in CALS. The Board determined that although there was evidence that grievant “demonstrated poor to unsatisfactory overall teaching performance during the fall 2011 semester,” the University failed to prove that grievant acted with sufficient intent to support its claims against him. The Board found that the evidence offered by the University to support the claim that grievant was untruthful in the course of the investigation was “mixed and too weak” to support the claim. The Board ordered the University to rescind the disciplinary action and award back pay and benefits lost by grievant. The Board denied grievant's claim that the University had failed to provide appropriate support to him as untimely. This decision was not appealed by either party.

¶ 14. In the second grievance, the Board reached a different conclusion. This grievance concerned only the April 2012 termination of grievant's 0.2 FTE teaching position within CEMS. The Board concluded that it lacked jurisdiction over the termination of the part-time position. It reasoned that the termination of the position was neither the discharge of a faculty member prior to the term of his employment nor the disciplinary termination of a tenured professor as these terms are defined in the CBA. The Board concluded that the termination of the 0.2 FTE position was “the end of a semester to semester assignment at the conclusion of a semester based on a determination that [grievant's] teaching was not satisfactory by normal teaching standards.” It was not the “disciplinary termination” of a tenured professor because grievant lacked tenure for the 0.2 FTE appointment. Finally, the Board concluded that grievant's claim that the University had failed to follow procedures set out in the 2005 MOU lay beyond its jurisdiction because the MOU stands outside of the CBA as the settlement of a single dispute with no application to future actions by the University.

¶ 15. Grievant appeals from this decision. He renews his arguments that the termination of the 0.2 FTE position was “discipline” within the meaning of the CBA and that the 2005 MOU is a side-letter agreement between the union and the University which is subject to the provisions of the CBA. If correct, either of these claims would confer jurisdiction on the Board and give rise to a potential remedy for grievant under the CBA.

¶ 16. In interpreting the provisions of the CBA, we give “substantial deference” to the expertise of the Board in construing collective bargaining agreements. In re Rosenberg, 2010 VT 76, ¶ 12, 188 Vt. 598, 11 A.3d 651 (mem.). In reviewing the Board's decision, we evaluate “whether the evidence supports the Board's factual findings, and whether those findings, taken as a whole, justify the conclusions of law.” United Academics v. Univ. of Vt., 2005 VT 96, ¶ 9, 179 Vt. 60, 889 A.2d 722.

¶ 17. This appeal raises a single issue: whether the Board was correct in its ruling that it lacked jurisdiction over the University's termination of the 0.2 FTE position. The Board's jurisdiction is conferred by statute. Among its responsibilities is the duty to conduct hearings concerning grievances filed by state employees, including most University faculty members, or their unions. 3 V.S.A. §§ 902(5), 926(a). A grievance is defined as a dispute concerning “aspects of employment or working conditions under collective bargaining agreement or the discriminatory application of a rule or regulation.” 3 V.S.A. § 902(14). Issues or disputes that fall outside of this definition are not subject to the jurisdiction of the Board.

¶ 18. Grievant makes two...