In re Grievance of Bushey

455 A.2d 818, 142 Vt. 290, 1982 Vt. LEXIS 650
CourtSupreme Court of Vermont
DecidedDecember 1, 1982
DocketNo. 471-81
StatusPublished
Cited by3 cases

This text of 455 A.2d 818 (In re Grievance of Bushey) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Grievance of Bushey, 455 A.2d 818, 142 Vt. 290, 1982 Vt. LEXIS 650 (Vt. 1982).

Opinion

Barney, C.J.

The Labor Relations Board found that grievant’s separation from state service in the Department of Corrections amounted to an unjustified dismissal. To reach that result the Board ruled that the grievant’s act of resignation by letter was improperly induced and, in effect, involuntary. The Board found that there were deliberate acts by senior Department officials putting pressures on the grievant intended to produce that act of resignation. Determining that the facts of this case do not support the concept of involuntary resignation, we reverse.

It should be kept in mind that only by converting the resignation into a discharge can this controversy come before the Labor Relations Board. Further, only by then proving, in addition, that this conceptual discharge is wrongful, that is to say, “without just cause,” can the Board require remedial action. Moreover, only those grievances resting on a claim of wrongful discharge may dispense with the usual four step procedure required to bring the matter before the Board. None of the matters set forth by the grievant as conduct wrongfully designed to induce his discharge were even pursued beyond the first, informal step so as to give jurisdictional support to review by the Board of any of these matters. The result is that review here is confined to the issue of whether, taking everything into account, this is a case of a discharge without just cause or a resignation.

Since a discharge is the essential underlying ingredient for this proceeding, and since it is unquestioned that the employment was terminated by resignation, the case record is largely concerned with the issue of “constructive discharge.” This is the shorthand expression that refers to a discharge that was improperly procured or induced to the point that, conceptually, the resigned employee should be taken to have been discharged, and his rights evaluated accordingly.

The law is certainly no stranger to the notion that an action, binding if voluntary, is released from its conclusiveness [292]*292if, in the eyes of the law, it is not validly voluntary. Examples abound involving instruments such as confessions, contracts, releases, deeds, mortgages, and receipts. The notion that certain documents, such as those under seal, will be conclusive in their operation no matter whether their execution was obtained by fraud or force has long since been rejected, first in equity and now in law.

That is the philosophical source of the position advanced here by this grievant. In essence, he is claiming that there were improper actions by his employer so threatening and coercive that his resignation should be viewed as compelled rather than as his voluntary act, thus justifying review and remedy under the law applicable to discharge without cause. See, e.g., 3A A. Corbin, Contracts § 683, at 223 (1960).

As might be expected, there are cases dealing with this kind of situation. The more sensitive rules deal with “discharges” related to union activities, see, e.g., Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir. 1975); J. P. Stevens & Co. v. NLRB, 461 F.2d 490 (4th Cir. 1972), or to sensitive areas such as age, sex, race, or religion. See, e.g., Clark v. Marsh, 665 F.2d 1168 (D.C. Cir. 1981); Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61 (5th Cir. 1980); Young v. Southwestern Savings & Loan Association, 509 F.2d 140 (5th Cir. 1975). Since this allegation has not previously been before us, no standards have been set out with respect to constructive discharge claims. It behooves us, then, to first examine this case carefully to see if its facts justify exploration, for Vermont, of this area of the law.

Mr. Bushey was employed by the Department of Corrections from June, 1975, until his controverted resignation in January of 1981. By August of 1979, Bushey occupied the number two slot at the Woodstock Community Correctional Center [hereinafter Woodstock]: Assistant Superintendent “A”, pay grade 15. It appears that significant problems had been developing at the Woodstock facility, evidenced not least by the high employee turnover rate. This rate was found by VLRB to be 122% in 1979 and 96% in 1980, “much higher than existed at any other correctional facility.” Various other indicia of discontent were apparent at the facility, and were in fact chronicled in a grievance signed by twenty-four employees (excluding appellee) and presented to the superin[293]*293tendent of Woodstock. After an unsympathetic reception, some of the employees pursued their grievance with the Commissioner of Corrections during a meeting in Waterbury. The Vermont State Employees’ Association [VSEA], representing the dissatisfied workers, filed and later withdrew an unfair labor practice complaint as a result of events occurring at the Waterbury meeting. Ultimately, a protest “sick-out” was staged by eight or nine Woodstock employees. Subsequently, two of the protesters were fired.

As a consequence of these and other disruptions, the Department of Corrections began to observe more closely and finally to participate actively in the day-to-day operations of Woodstock. Richard Bashaw, Director of Adult Facilities and number three man in the Department of Corrections, was sent with an assessment team to identify and make recommendations for correcting the problems at the facility. Bashaw eventually implemented new work schedules over the superintendent’s objection. He then took full control of Woodstock by demanding and receiving the superintendent's resignation on Sunday, December 14,1980.

One of Bashaw’s first acts was to change grievant’s work schedule so that he was working part of the time on the night shift as shift supervisor, and the rest of the time on his regular shift as assistant superintendent. Bashaw justified this as necessary in order to provide an experienced supervisor for each shift. Although Bashaw’s motives may appear suspect in view of the callous way he implemented the change, it was true that two of the three supervisors at Woodstock had been dismissed in connection with the November sick-out and other employees had resigned. The facility was being run in part by personnel borrowed from other locations within the correctional system. It was alleged that shift supervisors were needed who were familiar with the physical peculiarities of the Woodstock building. Grievant, however, viewed the change as a de facto demotion in that it required the performance of pay scale 10 duties and, of necessity, prevented the performance of “normal” assistant superintendent duties. The grievant knew that a schedule change under nonemergency circumstances was grievable under Article XVII of the collective bargaining agreement, yet he never filed a grievance.

[294]*294Bashaw also ordered grievant Bushey to move out of his office and into another one in a distant corner of the facility. Bashaw told Bushey that his office was needed so that Bashaw’s secretary could be close at hand.

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455 A.2d 818, 142 Vt. 290, 1982 Vt. LEXIS 650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-grievance-of-bushey-vt-1982.