Volume 162 — Vermont Reports

<bold>1. Labor — Termination of Employment — Grounds</bold> Labor Relations Board properly construed state's dismissal letter as terminating grievant for all misconduct itemized, not just grievant's conduct at audit hearing, where letter specifically stated that dismissal was imposed as a result of combined effect of grievant's actions.<page_number>Page 482</page_number> <bold>2. Labor — Termination of Employment — Grounds</bold> Labor Relations Board properly concluded that state could not rely on reference to unspecified misconduct in decision to terminate employee because reference was too vague to allow grievant to defend against charges. <bold>3. Labor — Termination of Employment — Grounds</bold> <italic>Mt. Healthy City Board of Education v. Doyle,</italic> <cross_reference>429 U.S. 274</cross_reference> (1977), was an appropriate model for the Labor Relations Board to use since it faced same problem of allocating burdens of persuasion and production where employer's motives, in terminating employee, may be mixed. <bold>4. Labor — Termination of Employment — Grounds</bold> Distinction between substantial factor and motivating factor in context of employer's decision to terminate employee was a quibble; there was no suggestion that Labor Relations Board though that state's response to grievance was insubstantial factor in disciplinary actions and grievant's dismissal. <bold>5. Labor — Termination of Employment — Retaliatory Discharge</bold> In context of retaliatory dismissal cases, Vermont supreme court would use United States Supreme Court decisions as responses to analogous circumstances and not as governing precedents. <bold>6. Labor — Termination of Employment — Retaliatory Discharge</bold> Circumstantial evidence may be used to show that one of employer's motives in terminating employee was improper in mixed-motive cases. <bold>7. Labor — Termination of Employment — Retaliatory Discharge</bold> Absent specific direct evidence that Agency of Transportation was motivated by retaliation for grievant's grievance activities, Labor Relations Board may look to number of indicia of improper motivation that Supreme Court has developed in unfair labor practice decisions involving claims of anti-union activity, including, but not limited to, whether employer knew of employee's protected activity, whether there was climate of coercion, and whether timing of discharge was suspect. <bold>8. Labor — Termination of Employment — Retaliatory Discharge</bold> Labor Relations Board could conclude that supervisor's actions were motivated in part by retaliation against grievant for his grievance activity where one-day suspension of grievant was imposed after he announced his intention to appeal to Board and, although he was being punished for not returning files to supervisor's office, supervisor acted inconsistently in giving grievant opportunity to contact counsel before returning files but disciplining him for being thirty minutes late in returning files after he attempted unsuccessfully to reach counsel. <bold>9. Labor — Termination of Employment — Retaliatory Discharge</bold> Labor Relations Board's decision that grievance retaliation motivated employer's actions, at least in part, was supported where five-day suspension of grievant for failing to follow supervisor's order to stop using state computer for grievance drafting occurred on day after grievant actually appealed his grievance to Board, there was no reasonable basis by which to conclude that grievant had refused to obey direct order by supervisor, and grievant was not allowed to tell his side of story before discipline was imposed. <bold>10. Labor — Termination of Employment — Retaliatory Discharge</bold> Labor Relations Board's decision that state's termination of employee was motivated, at least in part, by retaliation for employee's grievance activities was<page_number>Page 483</page_number> upheld where state relied in part on employee's misuse of computer equipment when discipline for that action had been expunged, severe nature of discipline cast substantial doubt that dismissal was properly motivated, and memo from personnel officer, who signed grievant's letter of termination, criticized grievance decision favorable to grievant as very bad decision. <bold>11. Labor — Termination of Employment — Grounds</bold> Labor Relations Board failed to properly evaluate state's explanation for its reprimand of employee and its finding, that supervisor solicited complaint in order to penalize employee, was clearly erroneous where supervisor testified that complaint came to light from unsolicited comment of employee of company which state had been auditing. <bold>12. Labor — Termination of Employment — Retaliatory Discharge</bold> Labor Relations Board properly concluded that state's ultimate reason for termination of employee stated in letter was unsupported by evidence where letter stated that employee's actions had convinced state that employee could not be trusted to conduct objective and unbiased audits on its behalf but Board found no evidence that bias in conducting audits was issue or that such concern supported dismissal.