Yashko, In re

• Citation: 415 A.2d 1322,138 Vt. 364
• Decision Date: 03 June 1980
• Docket Number: No. 102-79,102-79
• Parties: In re Grievance of Michael YASHKO.
• Court: United States State Supreme Court of Vermont

Page 1322

415 A.2d 1322

138 Vt. 364

In re Grievance of Michael YASHKO.

No. 102-79.

Supreme Court of Vermont.

June 3, 1980.

Donald C. Arbitblit and Peter F. Langrock of Langrock, Sperry, Parker & Stahl, Middlebury, for plaintiff.

M. Jerome Diamond, Atty. Gen., and Bennett E. Greene, Asst. Atty. Gen., Montpelier, for defendant.

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

LARROW, Justice.

Appellant Yashko has appealed an order of the State Labor Relations Board sustaining his discharge from employment as a sanitarian in the Health Department and dismissing his grievance filed as a result of this discharge. Although questioning the wisdom of the discharge under all the circumstances, the Board concluded that it was unable to find it "legally unsupportable" and affirmed the state's dismissal. We disagree, for the reasons hereinafter set out, and order appellant's reinstatement with pay.

The circumstances under which this case arises are due in large part to a substantial error in the first order which the Board entered in connection with this matter, an appeal from which was dismissed by this Court for lack of jurisdiction. Re Grievance of Michael Yashko, 136 Vt. 630, 388 A.2d 34 (1978) (mem.). In that order, the Board directed that Yashko, who had been dismissed be reinstated for a three-month "probationary" period. The parties in effect agree, and there can be little doubt, that this was a misnomer. A probationary period under the collective bargaining agreement between the Vermont State Employees' Association and the State, as the Board found in its second order, applies only to the status of a new employee. At the termination of this period, the employee may be dischared without cause. Subsequent to the probation period, however, an employee in permanent status (appellant here was a ten-year employee) may be given a "warning period" and thereafter discharged only for just cause. The existence vel non of just cause is therefore the focal point of this appeal.

We have had occasion to delineate the requirements of "just cause."

The ultimate criterion of just cause is whether the employer acted reasonably in discharging the employee because of misconduct. We hold that 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. (Citations omitted).

In re Grievance of Albert Brooks, 135 Vt. 563, 568, 382 A.2d 204, 207-08 (1977).

From the record, serious doubts exist as to whether or not the Board specifically found facts constituting just cause. There is such a conclusion, but the factual findings are primarily a recital of the reasons given by the appellant's supervisor for her decision to discharge him. Under the familiar rule of Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653 (1967), such recitals are not findings.

Moreover, the Board characterized the supervisor's reports as "occasionally picayune and trivial and perhaps difficult for an employee to adjust to." A review of them certainly justifies that conclusion, and demonstrates inconsistencies within the reports themselves. The element of misconduct required as a basis for just cause has, indeed, scant justification in this record.

We do not, however, rest our decision upon that ground. We need not do so because the element of...