Cheney Digest Of VLRBC ases In Sup Ct

							                           ARBITRATION EXPERIENCE

My arbitration experience is stated in this resume

Much of my experience was gained as Chair of the Vermont Labor Relations Board.
The period of my chairmanship was one of major law formation for the Board.
Opinion were reported for the first time. Many issues relating to rights grievances,
construction of the State employees Collective Bargaining Contracts, unfair labor
practices and the like, were decided.. I have summarized those that were reviewed in
the Vermont Supreme Court.

The Vermont Labor Relations Board had jurisdiction over state employees rights
grievances. Both the employee and the State have the right to appeal to the Vermont
Supreme Court . Digested below are cases reported in the Vermont Supreme Court
which were appeals from decisions I participated in as chair of V.L.R.B. from 1979 to
1988. During this period the Supreme Court and the Board took different views as to
the authority of the Board to substitute its judgment for that of the employer with
regard to sanctions. The issue was settled by a new collective bargaining agreement
giving the Board that authority.

      I have not digested private sector opinions rendered as arbitrator.

1.    David Nzomo, et al v. Vermont State Colleges, 136 Vt. 97 (1978)

       The Court reversed a VLRB ruling upholding a College decision not to reappoint a
third-year faculty member. The dismissal of grievance, thus was reversed and the cause
remanded. Defined procedures for dismissal of untenured and tenured faculty of state
college are binding and must be scrupulously observed. Here, state college failed to
follow its stated rule that recommendations that teacher be terminated be discussed with
teacher before passing recommendation on to president's advisory committee and
president. College failed to show valid modification of rules based on past conduct.
Grievant had valid grievance under 3 VSA §902(14) based on the discriminatory
application of a rule or regulation. There was discrimination by the college in failing to
apply these rules to grievant in the sense that there was unequal treatment of individuals in
the same circumstances under the applicable rule.

2.    In re Southwestern Vermont Education Association and Mount Anthony Union
      High School Board of School Directors,
      136 Vt. 490 (1978) [VLRB cite: 1 VLRB 20 (1977)]

      VLRB properly found that an unfair labor practice had been committed where
school board had before it a petition for union recognition of its custodians, bitterly
opposed union organization attempts, and decided during the dispute to switch to
contractual janitorial services and to fire the union adherents among the custodians, even


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though school board had rejected contractual services idea some two years previous. The
VLRB remedy that the school board offer the fired employees employment was affirmed.

3.    In re Grievance of Donald McMahon and Vermont State Employees' Association,
      136 Vt. 512 (1978) [VLRB cite: 1 VLRB 150 (1978)]

       VLRB decision dismissing grievance of state employee who claimed his position
was not properly classified, since grievant had not been treated with discrimination,
maliciousness, unreasonableness, capriciousness, or arbitrariness by personnel department,
correct in fact and in law. Classification of state personnel is a statutory function
conferred upon the personnel board by 3 VSA §310. A request to reclassify a job grade
does not fall within the statutory definition of a grievance and, therefore, is not within the
jurisdiction of the VLRB.

4.    In re Grievance of Diana Nagely Gage, 137 Vt. 16 (1979)
      [VLRB cite: 1 VLRB 48, 178 (1978)]

       VLRB decision, reinstating discharged State employee, reversed and dismissal
reinstated. The underlying philosophy of the Board's conclusion is the reasoning that was
struck down in Brooks, that progressive discipline is an inherent element of discharge
procedures, and that failure to resort to less severe measures than discharge is, in effect, a
waiver of what might otherwise be good cause. The Board still misconstrues its function.
Its duty is to decide whether there was, in law, just cause for the action taken, not whether
it agrees or disagrees with that action. The Board is not given any authority to substitute
its judgment for that of the employer. Here, just cause for dismissal exists. Previously
placed on probationary status and warned of dismissal as a possible consequence of
continuing her habitual absences, the employee nonetheless extended her maternity leave
without securing advance approval.

5.    David Nzomo v. Vermont State Colleges, 138 Vt. 73 (1980)
      [VLRB cite: 2 VLRB 1 (1979)]

       This was an appeal from VLRB decision of case remanded to VLRB for imposition
of appropriate remedy due the grievant because of due process violations by the college in
non-reappointing him as faculty member. Nzomo, 136 Vt. 97 (1978), see #10 above. On
remand, the Board found the grievant was entitled to monetary damages, but did not
reinstate grievant or award back pay. VLRB determination that procedural shortcomings
had no significant effect on the president's decision not to reappoint grievant supported by
the record, and fully supported its denial of reinstatement, back pay and moving expenses.

6.    In re Adele Stacey, 138 Vt. 68 (1980)
      [VLRB cite: 2 VLRB 10 (1979)]

     Court reversed VLRB decision that State employee had been improperly denied an
administrative leave of absence and wrongfully terminated when she did not return to
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work after being denied the leave. The involuntary separation of an employee is an aspect
of employment and within the meaning of a grievance. However, a reading of the contract
indicates the appointing authority, CETO, had the absolute right to grant or deny the
grievant an administrative leave of absence without further agency review and remove her
from employment if she had exhausted all of her accumulated annual and sick leave and
was unable to work at the time, as was the case here.

7.    In re Grievance of the Vermont State Colleges Faculty Federation,
      AFT Local #3180, AFL-CIO, 138 Vt. 299 (1980)
      [VLRB cite: 1 VLRB 279 (1978)]

       Court affirmed VLRB decision that instructor, who taught 12 credit hours plus a
three-credit independent study course during the spring semester but did not keep office
hours, have advisees or participate in co-curricular or Faculty Assembly activities, was a
full-time, not part-time, faculty member during that semester. Membership in the
bargaining unit depends on individual's actual status, not on College's unilateral
classification of that status. In comparing the grievant's obligations with the obligations of
those recognized as full-time faculty members, the Court did not reject the VLRB's
assessment of the importance of his course assignments as balanced against the absence of
other indicators in its determination that grievant was full-time.

8.    Firefighters of Brattleboro Local #2628 v. Brattleboro Fire Department, 138 Vt. 347
      (1980) [VLRB cite: 1 VLRB 248 (1978)]

       Court affirmed VLRB's determination that captains were non-supervisory municipal
employees included within the bargaining unit. Board's findings are supported by the
record. If any one of the acts enumerated in the statute as supervisory is present, the
captains would come within the definition of supervisor. An employee does not acquire a
supervisor's status by reason of temporarily taking over the supervisor's duties in his
absence or by exercising rare and infrequent supervisory acts. Here, captains have
extremely limited authority to discipline employees and only act as a supervisor when they
are the superior officer at a fire or when designated as acting fire chief. Further, captains'
role in assignment of duties is routine, not requiring the use of independent judgment, and
the evidence indicates the captains cannot effectively recommend any one of the
enumerated supervisory duties.

9.    In re Grievance of Michael Yashko, 138 Vt. 364 (1980)
      [VLRB cite: 2 VLRB 54 (1979)]

      VLRB decision that state employee was discharged for just cause reversed and
employee is reinstated. First, serious doubts exist as to whether Board found facts
constituting just cause. Findings are primarily a recital of reasons given by grievant's
supervisor for her decision to discharge him. Element of misconduct has scant justifica-
tion on the record. Court decision, however, is not rested on that ground. The just cause
requirement of fair notice was not met. Because of a Board error in its first order on this
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case [1 VLRB 119 (1977)] placing grievant in a three-month probationary period, grievant
and his supervisor went through the period thinking at its termination he could be
dismissed without cause. Thus, prior to actual termination, grievant's only notice, which
was in error, was that he could be terminated without cause, not that any specified conduct
would be grounds for dismissal.

10.   Vermont State Colleges Faculty Federation v. Vermont State Colleges, 138 Vt. 451
      (1980) [VLRB cite: 2 VLRB 121 (1979)]

       Court reversed VLRB decision dismissing unfair labor practice charge, which
charge alleged the colleges refused to bargain in good faith by not negotiating on the issue
of faculty governance. The Federation proposed that their membership retain a right to be
consulted through each college's assembly before the administration makes major
academic policy decisions. The VLRB adoption of the distinction between mandatory and
permissive subjects of bargaining made in federal case law was not appropriate as the
provisions of the applicable statutes differ relative to subjects of bargaining. Rather, the
proper issue before the Board was whether faculty governance is a matter relating to the
relationship between the employer and employees and, if so, whether it is prescribed or
controlled by statute. Here, the statutory grant to trustees of the authority to prescribe the
terms of admission, courses of instruction, and educational standards of the college is not
inconsistent with the idea of bargaining about whether and by what process the faculty will
be given an opportunity to advise the trustees of its views on these issues.

11.   In re Grievance of the Vermont State Employees' Association on behalf of certain
      "Phase Down" Employees, 139 Vt. 63 (1980)
      [VLRB cite: 2 VLRB 61 (1979)]

      Court reversed VLRB decision that benefits conferred by the contract provision,
providing holidays would be considered as time actually worked for the purposes of
computing eligibility for overtime compensation for employees whose hours were
gradually being "phased down" to 40 hours, terminated when lump sum payments they
were receiving to lessen the effect of the loss of income terminated on July 1, 1978.
Construing the contract, the Court determined the overtime benefits did not terminate until
the entire agreement came to an end on July 1, 1979.

12.   In re Personnel Designations of Managerial, Confidential and Supervisory
      Employees, 139 Vt. 91 (1980)
      [VLRB cite: 2 VLRB 129 (1979)]

       Court affirmed VLRB determination that each of the local employment services
office managers of the State Department of Employment Security were managerial
employees and thus excluded from membership in a bargaining unit. The statutory
definition of "supervisor" and "manager" is not mutually exclusive; it is simply that some
supervisors justify and some do not justify managerial designations. The findings of the
Board with respect to the local managers' duties as directors of district operations
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adequately justify the designation and are within the statutory framework. The Court did
not determine if the VLRB designation meant a manager could be discharged without just
cause since, in the context of the case, no one had been discharged.


13.   Vermont State Colleges' Faculty Federation and Michael Peck v. Vermont State
      Colleges, 139 Vt. 329 (1981)
      [VLRB cite: 1 VLRB 329 (1978)]

       Court reversed VLRB decision that state college did not violate collective
bargaining agreement in the process of not reappointing a faculty member. Grievant's
contention that the colleges did not notify him of the non-reappointment decision within
the time frame of the agreement was not timely raised since it was not raised until Step II
of the grievance procedure. However, the Board finding that the Agreement did not require
written evaluation material to be placed in a faculty member's personnel file before notice
of non-reappointment was in error; the Agreement clearly requires such written evaluation.
 The college violated the Agreement by failing to comply with the evaluation requirement
and the case is remanded to the Board to determine the proper remedy. If the Board finds
the breach caused the president to exercise his discretion not to rehire grievant, a back pay
award may be appropriate. The Board is not, however, limited to that result. On remand,
the issue of whether the college failed to establish and publish criteria for evaluating
faculty for reappointment should also be addressed.

14.   Normand J. Dube v. Chauffeurs, Teamsters and Warehousemen,
      Local No. 597 and Chittenden County Transportation Authority,
      139 Vt. 394 (1981) [VLRB cite: 3 VLRB 70 (1980)]

      Court affirmed VLRB decision that employer had legitimate business purpose in
barring transit authority employee from terminal duty, and that the employee had failed to
support a claim for damages. Terminal duty involves the unsupervised handling of money
from the fare boxes, and the employee previously, when he had terminal duty, was
involved in and disciplined for an incident with respect to a missing fare box. The
employee's argument that the employer did not notify or involve the union in the fare box
incident is without merit since he never requested union representation and the grievance
procedure of the contract was avoided by the employee's own deliberate selection of the
route of resignation rather than dismissal. Moreover, these allegations were not raised in
proceedings before the Board.

15.   In re Robert P. D'Orazio, 139 Vt. 423 (1981)
      [VLRB cite: 2 VLRB 73 (1979)]

      Court reversed VLRB decision that a State employee was entitled to a back pay
award because he was denied his legal right to a timely resolution of a dispute between his
department and Personnel Department concerning whether the job description prepared by
his department for an available position within the department which he applied for was
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accurate and whether he was qualified for the position. The responsibility for creating job
descriptions clearly is given to department heads by statute, and the Personnel Department
is not granted authority to reject, edit or dispute those job descriptions. The descriptions
are valid when a department head transmits them to the Personnel Department. Here, they
were submitted five days before grievant's job expired, and he was properly denied
employment. Further, there being no evidence grievant suffered any legal damage from
the ensuing dispute between his department and Personnel, the grievance is dismissed.

16.   In re Grievance of Vermont State Employees' Association on behalf
      of Hugh Brady, et al., 139 Vt. 501 (1981)
      [VLRB cite: 3 VLRB 22 (1980)]

       Court affirmed VLRB decision dismissing grievance of State social workers who
sought overtime compensation on the ground they were "on call" for times they were to be
"available" during off-duty hours. Grievants were able to spend their time largely as they
chose so long as they could be reached by telephone at a location where they could
respond to or service the call within a reasonable period of time. Their activities were
necessarily limited, but employees' leisure time was not so restricted that it was spent
primarily for the benefit of the employer. Grievants were waiting to be engaged, rather
than engaged to wait; and, thus, were not "on call" nor entitled to overtime compensation
for being "available".

17.   In re Grievance of Selma Guttman, 139 Vt. 574 (1981)
      [VLRB cite: 3 VLRB 57 (1980)]

       Court reversed VLRB decision dismissing grievance of state college faculty member
who contended she should have been retired at age 70, not age 65. The Board's exercise of
jurisdiction in this case was proper, as it was based on its interpretation of the collective
bargaining agreement. The court disagreed with the Board decision that since grievant had
transferred to a new retirement plan, her mandatory retirement age was 65. Among the
rights guaranteed to the faculty transferred to the Vermont State Colleges when VSC was
established in 1961 was the right to a retirement age of 70 guaranteed by VSA §1937.
Since there is no evidence grievant had knowledge she would lose the right to retire at age
70 by joining the new retirement plan, she did not waive this right.

18.   In re Grievance of Daniel Swainbank, 140 Vt. 33 (1981)
      [VLRB cite: 3 VLRB 34 (1980)]

       Court overturned VLRB decision reversing the five-day suspension of State correc-
tional officer. The Board holding that grievance had not disobeyed a supervisor's order
requiring grievant to place leg irons on a prisoner at the hospital because the order was
impossible to carry out is not supported by the evidence. Grievant could have placed the
leg irons on the prisoner, but did not. The Board conclusion that grievant was not
negligent in failing to place the leg irons on the prisoner, after apprehending him in the
meadow when the prisoner tried to escape, is supportable. However, because the Board's
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conclusion that the supervisor's order was impossible to carry out is not supportable, the
Board's allowance of the grievance is overturned, and the case is remanded to determine
the issue of severity of discipline.


19.   Hackel, Esiason, Whelan, Vize and Butterfield v.
      Vermont State Colleges, 140 Vt. 446 (1981)
      [VLRB cite: 3 VLRB 175 (1980)]

       Court affirmed VLRB decision that the collective bargaining agreement empowered
the presidents of each of the state colleges to make the final decision as to tenure or
promotion for faculty members, that such authority was not vested in the VSC Board of
Trustees, and that consequently the five grievants should be granted tenure or promotion.
Tenure and promotion are bargainable subjects as they relate to the employer-employee
relationship and are not prescribed or controlled by statute where the statute provides the
trustees "may" appoint professors and prescribe their duties, salaries, and terms of office.
Though the Board was incorrect in holding that the grant of authority to the presidents to
make final tenure and promotion decisions was a derogation of management rights, it
reached the right result. Through a reading of the contract, it is readily apparent a final
decision by a president is an undiluted management decision by the colleges.

20.   In re Grievance of Peter Carlson, 140 Vt. 555 (1982)
      [VLRB cite: 3 VLRB 303 (1980)]

       Court reversed VLRB decision reducing dismissal of State employee to a suspension
and demotion. The State proved six incidents where the grievant acted dishonestly:
improper billing of a garage door panel to the State, failure to forward proceeds of sale of
State equipment to State in two instances, authorizing employees to paint a private vehicle
on State time, authorizing employees to use a State refrigerator for personal use and
installing a State-made wood stove in his home. A discharge is for just cause if it is
reasonable and the employee had fair notice such conduct would be grounds for discharge.
Dismissal was reasonable here; if any case if appropriate for progressive discipline, it is
this one. Grievant had fair notice since he should have known dishonest conduct was
prohibited.

21.   In re Dennis J. Murphy, 140 Vt. 561 (1982)
      [VLRB cite: 3 VLRB 265 (1980)]

      VLRB decision affirming dismissal of State Hospital employee reversed and
remanded for further proceedings consistent with this opinion. The grievant suffered a
disabling knee injury, resulting in a permanent partial disability that left him unable to do
his job on the ward. When he was directed to resume work at his job on the ward, he
refused, and was dismissed. The letter of dismissal stated he was dismissed for gross
neglect of duty, refusal to obey a lawful and reasonable order given by a supervisor, and
gross misconduct. In affirming the dismissal, the VLRB did not reference any of the
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stated reasons for dismissal, but stated the grievant was physically unable to do his job.
This left the dismissal without supporting just cause. The grievant was seeking to contest
his dismissal for disciplinary reasons. This was the issue the VLRB was duty bound to
address.


22.   Vermont State Colleges Faculty Federation, VFT, AFT, Local 3180,
      AFL-CIO v. Vermont State Colleges, 141 Vt. 138 (1982)
      [VLRB cite: 4 VLRB 1 (1981)]

      Court affirmed VLRB decision that Colleges were required to bargain promotion
and tenure. The Court disagreed with the Colleges' position that since its promotion and
tenure policy was properly issued pursuant to the management rights article contained in
the predecessor agreement, and since the negotiated article for the new agreement was
similar, the obligation to bargain management rights had been fulfilled. The new
agreement being negotiated cannot be controlled by the dead hand of its predecessor. The
provisions of the promotion and tenure policy, while properly instituted under the
predecessor contract, are subject to bargaining at the request of the union. The new
management rights article under examination here does not prevent such bargaining.

23.   In re Grievance of Richard Harrison, 141 Vt. 215 (1982)
      [VLRB cite: 2 VLRB 304 (1979)]

       VLRB decision that black State correctional guard was discharged because of racial
discrimination and entitled to back pay reversed and remanded for findings consistent with
this opinion. The stated grounds for dismissal were failure to report for duty and absence
without leave. The Board strayed from its statutory role to determine whether there was
just cause for dismissal. In order to excuse absenteeism which would otherwise constitute
just cause for dismissal, the grievant must meet four criteria developed by the Court in
DeGrace v. Rumsfield, 614 F2d 796 (1st Cir. 1980). Since the Board analysis is not
structured in accordance with these criteria, the case is remanded.

24.   In re Esther Swett and the Vermont State Colleges Faculty
      Federation, AFL-CIO Local 3180 v. Vermont State Colleges,
      141 Vt. 275 (1982) [VLRB cite: 4 VLRB 98 (1981)]

       Court affirmed VLRB decision upholding reappointment of state college instructor.
Under the plain language of the contract, the presumption of renewal for faculty with less
than three years is terminated upon proper written notification. As long as notice is
properly given, the college has total discretion. Here, because notice was properly given,
the college did not violate the contract in not reappointing the grievant. The college did
not violate the contract by failing to accord teaching effectiveness appreciable weight. The
contract requires that teacher evaluations be used to aid in the reappointment decision; it
does not require that the decision be based in whole or in part on the evaluations.


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25.    Diane Fairchild and the Vermont State Colleges Faculty Federation
       Local 3180, AFT, VFT, AFL-CIO v. Vermont State Colleges,
       141 Vt. 362 (1982) [VLRB cite: 4 VLRB 164 (1981)]

      Court affirmed VLRB decision upholding denial of tenure to state college faculty
member. The College's decision that the grievant failed to satisfy the criteria of
"significant professional, artistic or scholarly accomplishment" to substitute for lack of a
terminal degree was neither arbitrary nor discriminatory. The College's determination that
outstanding coaching or teaching were not in themselves adequate to meet this criterion
was not arbitrary. The College did not apply the criteria in a discriminatory manner to the
grievant in determining that another faculty member, who also did not have a terminal
degree, met the criteria of "significant...accomplishment"; since the two faculty members
were not "individuals in the same circumstances". Also, the Board did not commit
reversible error when it excluded evidence relating to a tenure award to another professor;
the evidence not being introduced in a timely fashion.

26.    In re Grievance of Ruth Muzzy, 141 Vt. 463 (1982)
       [VLRB cite: 3 VLRB 387 (1980)]

      VLRB decision finding State typist was dismissed for just cause reversed and
remanded for further proceedings. The Board's decision relied on two legal principles that
are legally erroneous. First, the Board adopted an appellate standard of review for
dismissal for nonperformance in declaring the State's action would be upheld if it could
show "substantial evidence" of just cause to dismiss. By doing this the Board abandoned
neutrality and tilted toward the State. The Board should have hewed to the customary
"preponderance of the evidence" standard. Second, the Board erred in holding that the
progressive discipline provisions of the contract do not apply to a dismissal for inability to
perform, but are limited to dismissal for misconduct. A dismissal, for whatever reason, is
a dismissal, and is plainly denominated a form of discipline. The Board is to determine
whether the State properly bypassed progressive discipline, a determination to be based on
the preponderance of the evidence.

27.    In re Grievance of Richard Friel, 141 Vt. 505 (1982)
       [VLRB cite: 4 VLRB 80 (1981)]

      Court affirmed by a 3-2 opinion a VLRB decision that inclusion of material relating
to two prior grievances filed by a State employee in that employee's personnel file violated
the contract. The majority opinion held that while past or present discrimination was not
claimed by the grievant, the contract language was preventive, and the contract would be
unenforceable and valueless in its preventive aspects if enforcement must await damages.
The minority opinion held the Board was without jurisdiction to hear the case; that the
Board has no jurisdiction in the absence of an allegation of injury, which is a necessary
element of any grievance, and this grievance did not contain such an allegation.

28..   Joseph S. D'Aleo and the Vermont State Colleges Faculty Feder-
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      ation, Local 3180, AFT, VFT, AFL-CIO v. Vermont State Colleges,
      141 Vt. 534 (1982) [VLRB cite: 4 VLRB 192 (1981)]

       VLRB decision upholding denial of tenure to State College professor is affirmed.
The grievant, who did not have a terminal degree, was on notice that his prospects for
tenure were in jeopardy unless he acquired a terminal degree. The college decision was
not arbitrary, and in granting tenure to another professor who also lacked a terminal
degree, the college did not apply the tenure criteria to grievant in a discriminatory manner
by distinguishing the accomplishments of the two on their respective publication records.
Finally, the Board did not err when it excluded evidence on the issues of age and sex
discrimination since the contract bars the Board from considering issues not raised at Step
I of the grievance procedure, and the Step I grievance letter mentioned neither age nor sex
discrimination.

29    In re Grievance of VSEA, Inc. on Behalf of the Meat Inspectors,
      Department of Agriculture, 141 Vt. 616 (1982)
      [VLRB cite: 4 VLRB 144 (1981)]

       Court affirmed VLRB decision denying meat inspectors overtime pay for travel time
between their homes and assignments. The contract explicitly prohibits overtime pay for
travel from home to other work sites.

30.   Kathleen Kelly v. Day Care Center, Inc., 141 Vt. 608 (1982)
      [VLRB cite: 1 VLRB 347 (1978)]

       VLRB decision that the Day Care Center committed an unfair labor practice by
firing a teacher for activist role in leading the Center's staff in a labor dispute, and ordering
the Center to reinstate her with back pay, affirmed except as to computation of back pay
award. The Board had jurisdiction here because the Center, as a non-profit corporation,
met the definition of employer under the State Labor Relations Act. The board was
correct in concluding an unfair labor practice occurred here because the discharge took
place in a climate of coercion. The Board's two-year delay in deciding this case, while
deplorable, does not mean the Board's ruling should be vacated, since reversal and remand
would only aggravate the plaintiff's injuries. The Board did err by refusing to include in
its computations of back pay the raises the plaintiff would have received had she not been
discharged, and is remanded for recomputation of back pay.

31.   In re Grievance of Royal Bushey, 142 Vt. 290 (1982)
      [VLRB cite: 4 VLRB 285 (1981)]

       Court reversed VLRB decision that correctional facility assistant superintendent
should be reinstated because his resignation was improperly induced and involuntary. The
facts of this case do not support the concept of involuntary resignation. The grievant's
main complaints - changes in his shift, duties and office location - appear to be grievable
issues under the employment agreement which he did not attempt to resolve through the
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grievance procedure. In-house resolution of problems should first be attempted.
Involuntariness must be the product of purposeful actions by management directed at
obtaining the resignation; and that is not present here.

32..   Burlington Firefighters Association v. City of Burlington,
       141 Vt. 434 (1983) [VLRB cite: 4 VLRB 379 (1981)]

       Court partially affirmed VLRB decision that City did not commit unfair labor
practice when it unilaterally adopted rules and regulations for the City's Fire Department
during the course of contract negotiations with the Fire Fighters' Association. The City
unilaterally revised the rules and regulations while the parties were still engaged in media-
tion in the contract negotiations. The unilateral imposition of terms of employment during
the time the employer is under a legal duty to bargain in good faith is the very antithesis of
bargaining and is a per se violation of the duty to bargain. The Board correctly found that
various sections of the revised rules and regulations were simply republications of
previous rules and regulations and did not result in any changes in conditions of
employment, but erred when it concluded the revised regulations did not change
conditions of employment with regard to wearing of uniforms. Since the change was
unilaterally imposed by the City when it was engaged in contract negotiations, the City
violated 21 VSA §1726(a)(5) and committed an unfair labor practice.

33.    In re Grievance of Edward Lynn Goddard, 142 Vt. 437 (1983)
       [VLRB cite: 4 VLRB 107 (1981)]

       Court reversed VLRB decision reducing dismissal of State correctional supervisor
for use of force against an inmate to suspension and demotion. The essence of the Board's
order is that it disagreed with the action taken by the employer. By substituting its own
judgment for that of the employer, the Board misconstrued its function. The Board's duty
is to decide whether there was, in law, just cause for the action. It has the power to police
the exercise of discretion by the employer and to keep such actions within legal limits.
Viewed in this light, the Board's conclusions concerning the lack of just cause for
dismissal are erroneous, and are unsupported by its own findings. These findings show an
incident where a supervisor of a correctional facility ignored all established procedure for
dealing with an inmate, violated the rules governing force, attempted to conceal the
incident from his supervisors by not reporting it, and subjected an inmate in his care and
custody to four separate assaults on his person. There was just cause to support a
dismissal and the State was amply justified in bypassing the progressive discipline system.

34.    Jan Lewandoski and the Vermont State Colleges Faculty Federation,
       AFT Local 3180, AFL-CIO v. Vermont State Colleges,
       142 Vt. 444 (1983) [VLRB cite: 4 VLRB 347 (1981)]

      Court affirmed VLRB decision upholding denial of tenure to Vermont State Colleg-
es Faculty member. The Board did not lack subject matter jurisdiction nor was the faculty
member denied due process even though none of the three member Board attended more
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than two of three evidentiary hearings, since at each of the hearings a quorum of the Board
was present and after the hearing each Board member reviewed the entire record. With
regard to the substance of the tenure decision, the faculty member was not arbitrarily
denied tenure by application of new criteria rather than prior tenure criteria. The faculty
member was denied tenure because he did not have a terminal degree or an acceptable
substitute and the policy of a terminal degree requirement did not change under the new
criteria and he was given notice of the necessity of completing his Ph.D. in order to
receive tenure. Further, the president's interpretation of the criteria and application to the
grievant were careful and considered and certainly not arbitrary.

35    In re Grievance of Troyse, et al., 142 Vt. 616 (1983)
      [VLRB cite: 4 VLRB 11 (1981)]

       VLRB decision denying claims of two employees for an office allowance pursuant
to the collective bargaining agreement between the State and Vermont State Employees'
Association affirmed as to one employee and reversed as to the other employee. Having
found that one employee was neither actually nor constructively required to set up office
space at home, the Board correctly denied him an office allowance. However, in denying
the other employee an office allowance, the Board concluded that the portion of his time
spent working at home did not rise to the level of inconvenience contemplated as
compensable under the contract, and in so doing introduced a new criteria - a "degree of
inconvenience test" - for which no support appears either in the contract or the Board's
prior decisions. The cause was remanded for proper adjudication based solely upon the
contractual criteria.

36.   In re Local 1201, AFSCME, Rutland Department of Public Works,
      143 Vt. 512 (1983) [VLRB cite: 5 VLRB 296 (1982)]

       Court reversed VLRB decision dismissing the Union's petition to add the position of
dispatcher to Public Works bargaining unit. The Board had concluded the position was
that of a confidential employee ineligible to belong to a bargaining unit. The VLRB made
no finding that the dispatcher assisted or acted in a confidential capacity to persons who
exercise a managerial function in the field of labor relations which is a necessary element
under the labor nexus rule, adopted from Federal courts, if the dispatcher is to be classified
as a confidential employee. There is nothing either in the City's job classification for
dispatcher or in the manner in which his job is carried out that makes it incompatible for
such employee also to be a member of the union.

37.   Petition of VSEA, Inc. (Correctional Center Employees)
      143 Vt. 636 (1983) [VLRB cite: 5 VLRB 82 (1982)]

       VLRB decision approving a separate bargaining unit of employees of the State's six
correctional centers affirmed except for that portion of the order that included correctional
facility shift supervisors in the proposed unit. The Board did not err when it considered
the petition which included employees who are inappropriate as a matter of law and issued
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an order authorizing a unit different from the one proposed by VSEA. If the Board
determines the unit as proposed is inappropriate, it may order the formation of a unit that
is appropriate. The portion of the Board order which included shift supervisors in the
bargaining unit is reversed because those employees were designated supervisors and must
be placed in the Supervisory Unit by statute. The Board determination that non-line
correctional center employees did not share a greater community of interest with other
employees of the Non-Management Unit than with on-line correctional center employees,
and placement of non-line and on-line employees in the same separate bargaining unit, is
supportable. Further, the Board decision that the separate unit would not result in over-
fragmentation of units adversely affecting State operations or representation of State
employees because it would not substantially raise negotiating costs, grievance and
litigation costs, or cause any whipsaw effect or negotiating stalemate, is valid.

38.   Grievance of Harold Janes, 144 Vt. 648 (1984)
      [VLRB cite: 4 VLRB 319 (1981)]

       Where a correctional supervisor was dismissed when he did not return to duty after
exhausting his leave because of a medical condition, VLRB had determined employee was
not dismissed for just cause because he was not guilty of misconduct or performance
deficiencies but that the employee should have been removed due to his medical condition.
 The Court affirmed the VLRB's finding that no just cause existed for dismissal, but
reversed that portion of the decision ordering the dismissal letter be replaced with a letter
of removal. The Court concluded the VLRB exceeded its authority in imposing this
remedy and substituted its own judgment for that of the employer. The Court remanded to
the VLRB for further action.

39.   In re Grievance of Daniel Sweetland,
      (Unpublished, S. Ct. #84-016, October 17, 1985)
      [VLRB cite: 6 VLRB 396 (1983)]

       Court affirmed VLRB decision that the Vermont State Colleges did not violate the
contract between the Colleges and the Vermont State Colleges Faculty Federation by not
reviewing a sixth year faculty member for tenure. The Court approved the VLRB
interpretation of the contract that a sixth year faculty member will be reviewed for tenure
unless the faculty member had been previously notified in a timely manner their sixth year
was terminal. The VLRB determined the faculty member had been so notified.

40.   International Association of Fire Fighters and Town of Hartford
      Fire Department, 146 Vt. 371 (1985)
      [VLRB cite: 6 VLRB 337 (1983)]

      Court affirmed VLRB decision that the Deputy Chief of a town fire department was
not a supervisor and was properly included in a bargaining unit of fire department
employees.


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41.   Grievance of Dennis Murphy,
      (Unpublished, S. Ct. #82-372, December 30, 1985)
      [VLRB cite: 5 VLRB 263 (1982)]

      Where an employee was dismissed when he was physically unable to do his job
because of an injury, VLRB determined he was not dismissed for just cause because stated
reasons for dismissal of gross neglect of duty, refusal to obey a lawful and reasonable
order given by a supervisor and gross misconduct could not be supported but that the
employee should have been removed due to his medical condition. The Court affirmed the
VLRB's finding that no just cause existed for dismissal but reversed that portion of the
decision ordering the dismissal letter be replaced with a letter of removal. The Court
concluded the VLRB exceeded its authority in imposing this remedy and substituted its
own judgment for that of the employer. The Court remanded to the State for further
action.

42.. Grievance of Byrne, et al, 147 Vt. 265 (1986)
     [VLRB cite: 6 VLRB 1 (1983)]

       Court affirmed VLRB grievance decision upholding the State's method of
calculating pay raises for five employees of the St. Albans Correctional Facility. Upon
being promoted, each employee received a pay raise and was placed in a promotional
probationary period. Prior to the expiration of the probation, the employees were again
promoted. At issue was the method of calculating the pay raise due upon the second
promotion. The State added the incremental increase in pay to the rate of pay employees
were receiving in the last position at which they completed a probationary period, not to
the rate of pay received immediately before that promotion took place. In interpreting the
Contract, the Board concluded the State's action was proper. The Court stated it was
persuaded by the Board's logic and would defer to its judgment.

43.   Chittenden South Education Association, Hinesburg Unit v.
      Hinesburg School Board, 147 Vt. 286 (1986)
      [VLRB cite: 8 VLRB 219 (1985)]

      Court affirmed VLRB decision that an unfair labor practice by the Hinesburg School
Board converted a lawful strike by Hinesburg Elementary School teachers into an unfair
labor practice strike and warranted the reinstatement of the striking teachers upon their
unconditional offer to return to work. The VLRB concluded the School Board acted
improperly when it implemented a teacher employment policy on the first day of the strike
without a grievance arbitration provision and an article on Association rights, which
provisions had been part of the School Board's final offer to the Association. The Court
agreed the statute prohibited matters not in dispute from being unilaterally deleted or
added by the School Board and concluded credible evidence supported the Board's
conclusion the deletion of binding arbitration contributed to the continuation of the strike.
The Court concluded the reinstatement remedy was appropriate.


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44.   Grievance of Bishop, 147 Vt. 280 (1986)
      [VLRB cite: 5 VLRB 347 (1982)]

      Court affirmed VLRB decision upholding the dismissal of a Brandon Training
School aide on the grounds the employee had abused a Brandon resident by striking him
on the foot with the resident's bootbrace, thereby fracturing his foot. The Court concluded
the evidence reasonably supported the Board's findings and affirmed its decision.

45.   In re Grievance of Warren, (Unpublished Decision, 1986)
      [VLRB cite: 6 VLRB 305 (1983)]

       Court reversed a VLRB decision upholding the dismissal of a Woodstock
Community Correctional Center correctional officer. The employee had been dismissed
by letter of October 27, 1982, accusing him of engaging in gross misconduct and conduct
jeopardizing others' health by carrying mace into the medium security area. On November
9, 1982, the employee was given an addendum to the dismissal letter, which enumerated
various regulations he had violated in the mace incident and accusing him of "poor
judgment." The Court concluded that, having given the reasons for the employee's
dismissal in one letter, the State may not change and add to reasons in a subsequent letter;
that to permit such ad hoc amendment would alter the Vermont State Employees'
Association-State Contract. Since the Board found the employee's actions did not
constitute gross misconduct or conduct jeopardizing anyone's life or health which were the
reasons outlined in the first letter of dismissal, the Court concluded the Board's affirmance
of the dismissal based on negligence and poor judgment could not stand.

46.   Grievance of Roy, 147 Vt. 403 (1986)

       The majority of the Court concluded the VLRB acted reasonably in dismissing a
grievance as untimely filed where the grievance was filed on a Monday, thirty-one days
after receipt of notice of the employer's final decision, and Board Rules provide grievances
must be filed within 30 days after receipt of the employer's final decision.

47.   Grievance of Graves, 147 Vt. 519 (1986)
      [VLRB cite: 7 VLRB 193 (1984)]

     The Court affirmed a VLRB decision that a tax field examiner with the Vermont
Department of Taxes was dismissed for just cause for intentionally and dishonestly
submitting excessive false claims for lunch reimbursement for 10 days.

48.   Hinesburg School District v. Vermont-NEA, et al,
      147 Vt. 558 (1986) [VLRB cite: 8 VLRB 254 (1985)]

      The Court concluded the VLRB did not abuse its discretion when it declined to
issue an unfair labor practice complaint and dismissed charges filed by the Hinesburg
School Board in a case stemming from a strike by the Hinesburg teachers. The Board
                                           A-15
concluded the best way to handle allegations of strike misconduct brought by the School
Board primarily against striking teachers was through compliance proceedings arising
from its earlier decision ordering the striking teachers reinstated. The Court approved of
this method of resolution since it would provide a forum to litigate whether certain
teachers engaged in conduct warranting denial of reinstatement or other appropriate action.
The Court also concluded the board did not err in finding that the Association representing
the striking teachers was not obligated to represent strike replacements.


49..   Grievance of Cronin, (Unpublished Decision, 1987)
       [VLRB Cite: 6 VLRB 37 (1983)]

       The Court affirmed a VLRB decision that the dismissal of a state employee for
persistent tardiness was appropriate and concluded the VLRB correctly applied the test in
Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1976). The VLRB first
determined the employee was engaged in the protected activity of whistleblowing and
filing grievances and adequately demonstrated that his protected conduct was a motivating
factor in the dismissal. The VLRB appropriately shifted the burden to the State to show by
a preponderance of the evidence that it would have reached the same decision even in the
absence of the protected conduct. The Court determined the record provided ample
support for the conclusion that the decision to dismiss the employee would have been
reached even in the absence of the protected conduct.

50.    IBEW, Local 300 v. Enosburg Falls Water and Light Department,
       148 Vt. 26 (1987) [VLRB Cite: 8 VLRB 193 (1985)]

       The Court affirmed a VLRB decision that failure to bargain in good faith,
discharging striking employees and conditioning employee reinstatement on resignation
from the union by the employer made a lawful strike by the employees an unfair labor
practice strike. The Court determined the VLRB was warranted in ordering the
reinstatement of the striking employees with back pay dating back to the date of their
discharge and ordering the employer to bargain in good faith with the employees' union.

51.    Grievance of Britt, (Unpublished Decision, 1987)
       [VLRB Cite: 6 VLRB 235 (1983)]

      The Court affirmed a VLRB decision upholding the demotion and suspension of a
correctional supervisor for the use of inappropriate force in restraining an elderly female
detainee and for failing to file a required use of force report concerning the incident. The
Court concluded the penalty imposed was within the allowable range of penalties and was
not disproportionate to the offense.


52.. Grievance of Morrissey, 149 Vt. 1 (1987)
     [VLRB cite: 7 VLRB 129 (1984)]
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       The Court affirmed a VLRB decision upholding the dismissal of the editor of
Vermont Life magazine. Issues addressed by the Court included fair notice, just cause and
constitutional free speech rights. The Court concluded that the employee had ample
warning that his conduct could result in dismissal and that his notice of dismissal was
sufficiently specific to allow adequate preparation for his defense. The Court further held
that the charges against grievant of insubordination and lack of cooperation were
supported by the evidence and justified the Board's conclusion that the dismissal was for
just cause. Finally, the Court concluded that, while the employee's speech conduct
warranted constitutional free speech protection, his dismissal was nonetheless justified;
that the employee's interest in the exercise of free speech rights was outweighed by the
State's interest in the efficiency of Vermont Life magazine.

53.. Vermont State Colleges Faculty Federation v. Vermont State
     Colleges, 149 Vt. 546 (1988)
   [VLRB cite: 8 VLRB 310 (1985)]

       The Court affirmed a VLRB decision that the Vermont State Colleges committed an
unfair labor practice in violation of 3 VSA §961(5) by unilaterally issuing workload
guidelines at Vermont Technical College. The Court determined that the Colleges had
failed to demonstrate that the VLRB was clearly erroneous when it concluded that the
contract between the Colleges and the Faculty Federation was ambiguous because it
provided for two different standards for determining workload practice, both college-wide
and department-wide.
       The Court also determined that there was ample support for the VLRB conclusion
that the workload guidelines gave the academic dean more authority with respect to
workload than did the contract. The Court further concluded that it was well within the
VLRB's discretion to order the Colleges to rescind the workload guidelines and negotiate
any proposed changes regarding faculty workload with the Federation. Finally, addressing
an issue raised by the Federation on cross-appeal, the Court concluded that the VLRB did
not abuse its power to fashion a suitable remedy for an unfair labor practice by failing to
award back pay.

54.. Grievance of John Gorruso, 150 Vt. 139 (1988)
     [VLRB cite: 9 VLRB 14, 9 VLRB 135 (1986)]

       The Court reversed a VLRB decision reducing the dismissal of a State correctional
officer for sexual harassment to a 30-day suspension. The Court rejected preliminary
issues raised by grievant and the Vermont State Employees Association concerning the
State raising issues before the Court which were not raised before the VLRB and the State
filing a "back-door" appeal of an earlier decision, and agreed with grievant that excepts
from a transcript of an earlier case before the VLRB, which was not before the VLRB in
this case, could not be considered in deciding this appeal. The principal issue in the case
was whether the VLRB exceeded its authority in substituting its judgment for that of the
employer when it reinstated the correctional officer. The Court concluded that, although
                                          A-17
the VSEA and the State had negotiated new contract language providing that the VLRB
had the authority to impose a lesser form of discipline if it determined that the penalty
imposed by the employer was inappropriate or excessive, the VLRB may not arbitrarily
substitute its judgment for that of the State in determining what is "inappropriate or
excessive" discipline; that the Board may only alter the penalty selected by the employer if
the employer imposes a penalty so severe, given the facts, that its choice amounts to an
abuse of discretion. In applying this test to the instant case, the Court concluded that just
cause for the correctional officer's dismissal existed as a matter of law; that the employee's
repeated sexual harassment clearly constituted a substantial shortcoming detrimental to the
State's interests and that he was on fair notice that his conduct could lead to dismissal.

56.   Grievance of Harold Colleran, (Unpublished Decision, 1988)
      [VLRB cite: 6 VLRB 235(1983)]

       The Court reversed a VLRB decision reducing the five-day suspension of a State
correctional officer to a written reprimand. The VLRB found that the State proved only
one of the two offenses against grievant, and concluded that a written reprimand was the
appropriate penalty for the proven offense. The Court concluded that the VLRB
improperly substituted its judgment for the employer's in ordering the State to substitute
the suspension with a written reprimand, and reversed and remanded for a redetermination
of the proper penalty by the employer.

57.   Grievance of David Boocock, 150 Vt. 422 (1988)
      [VLRB cite: 7 VLRB 265 (1984)]

      The Court affirmed a VLRB decision dismissing, for lack of jurisdiction, a resigned
State police officer's grievance contesting his last performance evaluation. The VLRB
based its decision on a finding that the grievance failed to present an "actual controversy",
reasoning that the potential harm to the employee which may have been caused by an
adverse performance evaluation had been eliminated since he had obtained satisfactory
employment in the Federal service. The Court agreed with the VLRB that no actual
controversy between the parties existed, concluding that grievant's hire by the Federal
government meant there was an absence of any injury in fact or threat of injury to
grievant's legal interests.




71.   Vermont State Employees' Association v. State of Vermont,
      151 Vt. 492 (1989) [VLRB Cite: 7 VLRB 298 (1984)]

     In a decision concerning the State's obligation to bargain collectively on conditions
of employment for probationary employees, the Vermont Supreme Court reversed the
                                            A-18
VLRB. While negotiating for the 1984-86 Contract, the Vermont State Employees
Association sought to bargain over a proposal concerning classified employees serving
initial probationary periods. When the State refused to discuss this proposal, VSEA filed
an unfair labor practice charge. In a September 1984 decision, the Board held that,
according to 3 VSA §904(a)(9), the State was not required to bargain collectively on
conditions of employment for probationary employees. However, the Supreme Court
reversed the Board and held that the State's refusal to bargain about conditions of
employment for probationary employees did constitute an unfair labor practice.

3.    Grievance of Cronan, et al., 151 Vt. 576 (1989)
      [VLRB Cite: 6 VLRB 347 (1983)]

       The Supreme Court reversed a Board decision concerning compensation for State
Police officers who are required to make court appearances on off-duty time. The Board
had concluded that the officers were not entitled to "call in" pay for those court
appearances for which they had received advance notice. On appeal, the Supreme Court
held that the Board overlooked the contract language which provided that "call in" pay
applied to an employee called in to work "at any time other than continuously into his
normally scheduled shift". The Court noted that the State and VSEA entered into the
contract in the context of their particular use and application of the "call in" provision
under the previous agreement, and that following the execution of the contract, the
practical construction placed upon it by the parties applied the "call in" provision to any
off-duty court appearance. Given this, the Court concluded that the parties clearly
intended the "call in" clause to apply to court appearances during off-duty hours even if the
officer had advance notice.

74.   Grievance of Gadreault, 152 Vt. 119 (1989)
      [VLRB Cite: 8 VLRB 87, 171 (1985)]

       The Supreme Court affirmed a VLRB decision which upheld the dismissal of a
correctional officer at the St. Johnsbury Community Correctional Center. In its decision,
the Board concluded that most of the numerous charges made against the employee had
been established by the employer. The Board determined that even though many of the
employee's derelictions were relatively minor, they had accumulated to the point where he
became an undependable employee who was unable to sustain effective working
relationships with peers and supervisors. The Board determined the dismissal to be for
just cause, and not inappropriate or excessive under the circumstances. The Supreme
Court affirmed this conclusion. The Court first concluded that the employee had fair
notice that his conduct would be grounds for dismissal; that the conduct was or should
have been known to the employee to be prohibited by the employer. The Court next
concluded that even though the employee had been put on a six-month warning period, his
employer was under no obligation to guarantee his employment for those six months. The
employer was free to terminate him at any point when just cause to do so could be
established. Finally, the Court affirmed the Board's reliance on a pattern of disruptive
behavior to establish "just cause" for dismissal, recognizing that instances of repeated
                                           A-19
conduct insufficient in themselves may accumulate so as to provide just cause for
dismissal. The Court also noted that the employer, while not imposing every step in the
progressive "ladder" of disciplinary action, did at various times implement several levels
of disciplinary action and the employee received ample warning that he was subject to
termination.




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