2009 VT 18


In
re Rosenberger (2007-378)
 
2009
VT 18
 
[Filed
13-Fed-2009]
 
NOTICE: 
This opinion is
subject to motions for reargument
under V.R.A.P. 40
as well as formal revision before publication in the Vermont
Reports.  Readers
are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street,
Montpelier, Vermont05609-0801
of any
errors in order that corrections may be made before this opinion goes
to press.

 
 

2009 VT 18


 

No. 2007-378

 

In
re Grievance of Lawrence
Rosenberger


Supreme Court


 


 


 


On Appeal from


 


Labor
Relations Board


 


 


 


May
Term, 2008


 


 


Edward R. Zuccaro, Chair


 
William
H. Sorrell, Attorney General, Bridget C. Asay
and Julio A. Thompson, Assistant
 
Attorneys General, Montpelier, for
Appellant/Cross-Appellee.
 
Abigail A. Doolittle, VermontState Employees’
Association, Montpelier,
for Appellee/
  Cross-Appellant.
 

 
PRESENT:  Reiber, C.J., Dooley,
Johnson, Skoglund and
Burgess, JJ.
 
 
¶
1.            
BURGESS, J.   The
State of Vermont
appeals the Vermont Labor Relations
Board’s decisions reinstating grievant Lawrence Rosenberger
to his position as
a game warden and awarding him back pay after he was discharged for
falsifying
a time report to obtain compensation for work not done.  One
of the main
issues for the Board to resolve at the grievance hearing in this case
was how
to remedy the employer’s violation of a collective bargaining
agreement
provision requiring state employers to inform employees of their right
to union
representation before being called to a meeting that might lead to
disciplinary
action.  The State argues that the Board erred by adopting
criminal law
doctrines—the exclusionary rule and its companion
fruit-of-the-poisonous-tree
doctrine—to exclude from the grievance hearing not only grievant’s
admissions during an initial interview without union representation,
but also
his admissions during later investigative interviews when accompanied
by a
union representative.
¶
2.            
We conclude that the Board abused its discretion by
excluding the latter
admissions in light of its own findings that, prior to the improper
questioning, the employer had sufficient reason to suspect wrongdoing
and
initiate an investigation that would have required grievant to answer
questions
concerning his suspected wrongdoing.  Because no sufficient
nexus existed
between the improper questioning and the follow-up investigation, and
because
grievant had union representation at interviews conducted during the
inevitable
follow-up investigation, there was no basis for the Board either to
exclude the
admissions grievant made during those interviews or to limit the
State’s
examination of grievant concerning those admissions at the grievance
hearing.  Accordingly, we reverse the Board’s
decision and remand the
matter for the Board to reopen the proceedings.
¶
3.            
Based on the Board’s unchallenged findings, the
facts are as
follows.  Grievant was employed as a game warden for the
Department of
Fish and Wildlife from 1987 until he was dismissed in August
2005.  The
incident that triggered the instant disciplinary action and grievance
proceedings occurred in the spring of 2005.  At that time,
off-duty
wardens who responded to reports of injured deer were entitled to four
hours of
overtime compensation.  A response of this nature is referred
to as a
“call-out,” and the compensation received is
referred to as “call-out pay.”
 Wardens were not entitled to receive call-out pay for
responding to a
report of a dead deer as opposed to an injured deer.
¶
4.            
In the late evening of March 26, 2005, the Essex Police
Department
received a telephone call about a dead deer lying on the shoulder of Susie Wilson
Road
in Essex. 
The following morning, during
his regularly scheduled shift, grievant was assigned to deal with the
dead
deer.  Grievant picked up the deer and decided to give it to a
person by
the name of Joe Gaudette,
who declined to take it but
suggested that grievant give it to his brother, Bob Gaudette. 
Grievant did so and reported completing the task at around nine
o’clock that
morning.  Dispatch records indicate that at 8:32 that evening,
the evening
of March 27, grievant called a PSAP (Public Safety Answering Point)
dispatcher
from his home and claimed to have responded to a report of an injured
deer on
the circumferential highway in Essex. 
Grievant reported the complainant to
be someone by the name of Gaudette,
although the first name was not entirely clear
from the dispatch recording.  The dispatch log
indicated that
grievant reported completing the call-out at 8:53, but the dispatcher
did not
enter that call into the log until 9:01.  On April 2, 2005,
grievant
submitted a time report for the previous two-week pay period claiming
compensation for the March 27 injured deer call-out.

¶
5.            
On the morning of April 4, 2005, while reviewing time
reports to assure
that claims for call-out compensation met established criteria, grievant’s direct
supervisor, Lieutenant Lutz, noticed that
the time period indicated in the dispatcher’s log for grievant’s
March 27 call-out did not appear to leave grievant sufficient time to
respond
to, and deal with, the injured-deer call.  Lutz decided to
speak to
grievant about the reported call-out, but at that point assumed that
the
discrepancy with the time periods indicated in the log was the result
of
dispatcher data-entry error, apparently a common phenomenon.
¶
6.            
That same day, grievant came to Lutz’s office,
and Lutz asked him about
the March 27 call-out.  After approximately five minutes of
conversation,
during which he appeared nervous and emotional, grievant was unable to
provide
details of the March 27 call-out or satisfy Lutz concerning
discrepancies in
the time report.  Eventually, Lutz asked grievant directly
whether he had
really responded to a call-out on March 27, and grievant admitted that
he had
not done so.   Lutz then informed grievant that he
would not be paid
for the call-out, which would be struck from the time report, but that
he
(Lutz) would not report the incident to his superiors.
¶
7.            
Lutz had second thoughts, however, and later that same day
informed his
superior, Major Lecours,
of his conversation with
grievant.  Lecours
then spoke to his superior,
Colonel Rooks, who directed Lutz to conduct a preliminary investigation
of the
March 27 incident and to complete a misconduct complaint
form.  On April
5, Lutz conducted a preliminary investigation and completed a
misconduct
complaint form.  After reviewing dispatcher tapes and talking
to Joe and
Bob Gaudette, Lutz
concluded in his report that
grievant had fabricated the March 27 call to obtain
compensation. 
Following his review of the report on April 8, Rooks assigned another
lieutenant, Denton,
to conduct an internal investigation regarding the March 27 incident.
¶
8.            
On April 14, 2005, Denton
conducted a tape-recorded investigative interview of grievant with a
Vermont
State Employees’ Association (VSEA) representative
present.  Ten days
later, Denton
conducted a second tape-recorded interview of grievant with the same
VSEA
representative present.  Denton
issued a report of his investigation on June 8, 2005.  Based
on that
report, the Commissioner of the Department of Fish and Wildlife sent
grievant a
letter on July 20 indicating that the Department was contemplating
dismissing
him for misconduct related to the March 27 incident.  By
letter dated
August 22, 2005, after meeting with grievant to allow him to respond to
the
earlier letter, the Commissioner notified grievant that he was
dismissed
effective that date.
¶
9.            
In September 2005, grievant filed a grievance challenging
his
dismissal.  Five months later, he filed a motion to exclude
evidence
directly or indirectly obtained by the State as the result of his April
4, 2005
meeting with Lutz and the subsequent investigation stemming from that
meeting.  Following a hearing on the motion, the Board
determined in a
March 2006 decision that the employer had violated Article 14,
§ 7 of the
collective bargaining agreement between the VSEA and the State, which
provides
in pertinent part as follows:
Whenever
an
employee is required, by his or her supervisor or management, to give
oral or
written statements on an issue involving the employee, which may lead
to
discipline against the employee . . . he or she shall be notified of
his or her
right to request the presence of a VSEA representative and, upon such
request,
the VSEA representative shall have the right to accompany the employee
to any
such meeting.  The notification requirement shall not apply to
the
informal initial inquiry of the employee by his or her supervisor
without
knowledge or reason to believe that discipline of the employee was a
likely
possibility . . .
 
 
¶
10.        
The
Board concluded that because Lutz reasonably did not suspect grievant
of
misconduct at the beginning of their first meeting on April 4, but
assumed that
the discrepancy on grievant’s
time report was the
result of dispatcher error, Lutz had no obligation under the above
provision to
inform grievant of his right to have a VSEA representative
present.  But
the Board also concluded that Lutz should have informed grievant of
that right
before asking him directly whether his reported March 27 call-out was
legitimate.  The Board reasoned that Lutz suspected misconduct
at that
point and should have realized that grievant’s
answer
to his question could lead to disciplinary action against
grievant. 
Accordingly, the Board precluded the State from relying on grievant’s
admission following Lutz’s direct inquiry as to the suspected
wrongdoing.
¶
11.        
The
Board further determined, however, that any admissions grievant made
during the
later Denton
interviews in the presence of the union representative could not be
considered
independent of his admission at the April 4 meeting and thus would also
have to
be excluded.  According to the Board, the significance of the
right to
union representation would be eviscerated if an employer could obtain
incriminating information from an unrepresented employee and then
procure the
same information at a later interview in which the employee had
representation.  The Board reserved judgment at that time as
to whether
the State could rely on other evidence obtained in the follow-up
investigation.
¶
12.        
In
a later decision, following another hearing, the Board rejected grievant’s position
that all evidence obtained by the
employer following Lutz’s improper question at the first
meeting must be
excluded.  The Board noted that such a position disregarded
its previous
conclusions that Lutz reasonably suspected grievant of misconduct
before he
asked the improper question, and that, because of those reasonable
suspicions,
the employer would have further  investigated the suspected
wrongdoing
even without grievant’s
response to the improper
question.  According to the Board, excluding all evidence
obtained in the
investigation following the first meeting would put the employer in a
worse position
than it would have been had it not asked the improper
question—an outcome that
would be contrary to its longstanding position of putting the employer
and
employee in the same position as they would have been absent the
offending
conduct.
¶
13.        
Nevertheless,
the Board reiterated that it would not be appropriate for the State to
rely on
any admissions grievant made, not only during the first meeting in
response to
Lutz’s improper question, but also at the follow-up Denton
interviews when
grievant had VSEA representation.  Thus, the State was
precluded from
relying on any comments acknowledging misconduct made by grievant’s
representative at the meeting with the Commissioner after grievant had
been
informed that the employer was contemplating dismissal—at
least to the extent
that any such comments were inextricably intertwined with the admission
wrongfully procured at the first meeting on April 4.  Further,
the State
was precluded from asking any questions of grievant at the grievance
hearing
aimed at obtaining admissions concerning the March 27
incident.  In the
Board’s view, such questions would be seeking to obtain
evidence tainted by the
employer’s wrongful questioning of grievant at the initial
meeting.
¶
14.        
Considering
only the limited evidence allowed by these rulings, the Board held
three days
of hearings on the merits of the grievance in the late summer and early
fall of
2006.  In March 2007, the Board issued a decision concluding
that the
State failed to present sufficient evidence to prove the charged
misconduct.  Accordingly, the Board sustained the grievance,
reinstated
grievant to his position as game warden, and ordered back pay with
interest
effective from the date of his dismissal.  In an August 2007
decision, following
another hearing, the Board resolved disputes concerning back pay and
other
benefits.
¶
15.        
On
appeal, the State argues that (1) neither the exclusionary rule nor the
related
fruit-of-the-poisonous-tree doctrine is relevant to the admissibility
of evidence
in this civil grievance proceeding; and (2) the Board’s
remedy for a contract
violation was unsupported by both the collective bargaining agreement
and the
Board’s longstanding precedents.  Grievant
cross-appeals, arguing that the
Board erred by failing to exclude all evidence obtained by the employer
through
its investigation following the April 4 meeting.  Grievant
also disputes
some of the Board’s rulings with respect to back pay.
¶
16.        
We
begin with the principal issue in this case—whether the Board
erred by
excluding evidence of statements and admissions that grievant made in
the Denton
interviews
following the first meeting between himself and Lutz.  Before
beginning,
however, we note that grievant is not challenging the Board’s
admission of
evidence procured before Lutz’s improper question. 
Nor is the State
challenging the Board’s determination that the evidence
presented at the merits
hearing was insufficient to support the misconduct charges.
¶
17.        
For
the most part, the State frames the main issue in this appeal as
whether the
exclusionary rule and its related fruit-of-the-poisonous-tree doctrine
are
relevant in civil grievance proceedings.  In simplistic terms,
the
exclusionary rule is a criminal-law doctrine precluding the admission
of
evidence directly obtained as the result of unconstitutional police
conduct,
and the fruit-of-the-poisonous-tree doctrine extends the exclusionary
rule to
preclude the admission of “tainted” evidence
derived from the constitutional
violation.  See 6 W. LaFave,
Search and Seizure
§ 11.4, at 255-56 (4th ed. 2004).  According to the
State, these doctrines
are not relevant in civil proceedings, and particularly here, because
this case
does not concern unconstitutional intrusions, the main evil that the
doctrines
are designed to deter.  See Townes v. City of New
York, 176 F.3d
138, 145 (2d Cir. 1999) (noting that fruit-of-the-poisonous-tree
doctrine, like
exclusionary rule, is designed to safeguard Fourth Amendment rights
through
deterrent effects); People v. McGrath, 385 N.E.2d
541, 543 (N.Y. 1978)
(“[T]he exclusionary rule functions as a judicially created
tool for the
effectuation of constitutionally guaranteed rights.”); cf.
 State v. Lussier,
171 Vt. 19, 30, 33, 757 A.2d 1017, 1025,
1026-27 (2000) (noting that focus of any analysis addressing scope of
exclusionary rule should be on protecting individual constitutional
rights at
stake, and concluding that applying exclusionary rule to civil license
suspension proceedings is appropriate because it will protect
constitutional
privacy rights and deter unlawful police conduct).
¶
18.        
This
appeal, however, only tangentially concerns the scope of the
exclusionary rule
and its related doctrines.  At its heart, this case is about
the State’s
violation of the collective bargaining agreement, a contract, and
specifically,
the appropriateness of the remedy imposed by the Board in response to
that
violation.  The salient issue is whether the Board abused its
discretion
in remedying the violation by precluding the State from relying on
certain
evidence, including statements made by grievant in the Denton
interviews after, and separate and
apart from, the inappropriate question at the first meeting.
¶
19.        
Here,
the Board did not adopt the exclusionary rule or the
fruit-of-the-poisonous-tree doctrine, but rather analogized to those
principles
in considering the appropriate remedy in this case, taking into account
the
nature of the violation and the policy concerns underlying the violated
provision.  In so doing, the Board did not act beyond the
scope of its
authority.  3 V.S.A. § 982(g)
(“The board is authorized to enforce
compliance with all provisions of a collective bargaining agreement
upon
complaint of either party.”).  Indeed, the State
acknowledges that the
Board acted appropriately by excluding evidence obtained directly as
the result
of questioning that violated the collective bargaining
agreement’s notice
provision.  The Board has long imposed such a remedy under
similar
circumstances in previous grievance proceedings.  See, e.g., In
re Tatro, 10
V.L.R.B. 78, 85 (1987) (excluding statements
made by grievant at meeting in which employer contemplated discipline
but did
not inform grievant of his right to VSEA representation, and noting
that
employer should not benefit from fruits of tainted interview); In
re Dustin,
9 V.L.R.B. 296, 302 (1986) (sustaining grievance where sole basis for grievant’s dismissal
was evidence obtained at contractually
prohibited interview in which employer did not inform grievant of his
right to
VSEA representation); In re Boucher, 9 V.L.R.B. 50,
59 (1986) (finding
that employer’s failure to inform grievant of right to VSEA
representation did
not affect dismissal decision because grievant made no harmful
statements
during the interview, but noting that any harmful statements at
improper
interview would have been excluded).  Therefore, we need not
engage in the
parties’ secondary debate about the relevance of National
Labor Relations Board
cases construing a federal statute containing language that is
distinguishable
from Vermont
law.
¶
20.        
The
real question, then, is whether the Board abused its discretion in
applying the
remedy that it did in this particular case.  In the past, we
have
emphasized that “the Board has broad authority to fashion a
suitable remedy,
and its judgment will be upheld absent an abuse of
discretion.”  In re
Whitney, 168 Vt. 209, 216, 719 A.2d 875, 880 (1998); see In
re VSEA,
2005 VT 129, ¶ 7, 179 Vt. 228, 893 A.2d 333 (noting that
Supreme Court reviews
Board’s construction of Article 14, § 7
“with substantial deference”); see also
Duryea Borough Police Dep’t, 862 A.2d 122,
127 (Pa. Commw.
Ct.
2004)
(noting that labor board has broad administrative discretion to fashion
remedies in response to violations of employees’ right to
union
representation).  This does not mean, however, that any remedy
is
acceptable without regard to whether it is reasonable or tied to actual
harm.  See Whitney, 168 Vt.
at 216, 719 A.2d at 880 (recognizing that remedies normally should
reflect
actual harm); Commonwealth v. Pa. Labor Relations Bd.,
768 A.2d 1201,
1206 (Pa. Commw. Ct.
2001) (stating that court will
not interfere with board’s remedy “so long as the
remedy is reasonable, is
within the Board’s powers and is consistent with prior court
decisions”).
¶
21.        
Reviewing
the Board’s decisions with these standards in mind, we first
note that nothing
in the collective bargaining agreement provides a specific remedy for
violations
of the provision requiring state employers to inform employees of their
right
to VSEA representation before discipline is contemplated.  As
suggested
above, however, excluding evidence obtained directly as the result of a
violation of that provision would certainly be a reasonable remedy in
many
situations.  When there is a direct connection, or nexus,
between the
violation and the discovery of the challenged evidence, the evidence is
not
independent of the violation and is therefore
“tainted.”  Cf. State v.
Bryant, 2008 VT 39, ¶ 58, ___ Vt. ___, 950 A.2d 467
(Dooley, J., concurring
in part and dissenting in part) (exclusion remedy may be invoked only
if there
is causal connection between unlawful police action and discovery of
evidence).
¶
22.        
On
the other hand, if there is no nexus, and the evidence is obtained
independently from the violation, exclusion of the evidence generally
is not
appropriate.  Cf. State v. Phillips, 140
Vt. 210, 218, 436 A.2d
746, 751 (1981) (noting “fundamental principle”
that connection between illegal
action and discovery of challenged evidence may be sufficiently
attenuated so
as to make evidence independent of illegality and therefore
admissible). 
The appropriate remedy is less certain when there is a connection
between the
violation and the challenged evidence, but that connection is
attenuated and
indirect.  Cf. Bryant, 2008 VT 39,
¶ 58 (Dooley, J.,
concurring in part and dissenting in part) (noting that exclusionary
rule
prohibits derivative evidence indirectly obtained as result of unlawful
search
up to point at which connection becomes so attenuated as to dissipate
taint).  The Board recognized these principles in analogizing
to the
exclusionary rule’s independent-source exception, which, in
criminal cases,
allows the admission of evidence when the causal connection between the
constitutional violation and the discovery of evidence is so attenuated
as to
dissipate any taint.  Cf. id. (discussing
independent-source doctrine)
¶
23.        
The
problem here, however, is that, even if we assume that the Board could
disallow
“tainted” evidence indirectly tied to a contract
violation, the Board in this
case failed to examine the evidence or make critical findings
supporting its
conclusion that grievant’s
later statements were
tainted.  Nowhere does the Board explain its conclusion that grievant’s admissions
with VSEA representation were the
fruit of, and thus not independent of, the employer’s
wrongful questioning at
the first meeting.  Cf. 6 W. LaFave,
supra
§ 11.4(a), at 259 (noting that question of whether causal
connection is too
attenuated to support exclusion of evidence is matter of degree and
thus
dependent upon examination of particular facts of each case). 
Nor did the
Board offer any explanation to support its conclusions that allowing
the later
admissions would eviscerate the significance of the right to union
representation and would put the State in a better position than if the
improper questioning had not occurred.
¶
24.        
Indeed,
not only are these conclusions unsupported, but the record and the
Board’s own
findings unequivocally demonstrate that, before the improper question,
the
employer already had developed suspicions of
defendant’s wrongdoing, and
thus surely would have investigated the matter further and required
grievant to
respond to questions concerning the suspicious March 27 call-out
claim. 
Moreover, the record and the Board’s findings show that, by
excluding all
evidence of grievant’s
admissions, including those
obtained when grievant had VSEA representation, the Board put the
employer in a
far worse position than it would have been had there been no improper
questioning.  Cf. Bryant, 2008 VT 39,
¶ 58 (Dooley, J, concurring
in part and dissenting in part) (noting that independent-source
exception “is
designed to prevent too much evidence from being excluded” so
as not to put
police in worse position than they would have been absent
constitutional
violation).
¶
25.        
The
Board found that, at the beginning of the first meeting on April 4,
Lutz
reasonably assumed that the discrepancies in grievant’s
time reports were the result of dispatcher error.  The Board
also
acknowledged, however, Lutz’s deposition testimony that when,
at that first
meeting, he asked grievant about his request for compensation for the
reported
March 27 call-out, grievant became very nervous, emotional, defensive,
and
evasive, causing Lutz to suspect wrongdoing.  As Lutz conceded
in his
deposition testimony, by the time he asked grievant whether the March
27 call-out
was legitimate, he suspected misconduct and knew that discipline was a
likely
result of such misconduct.  Thus, the Board found that
although it was
reasonable for Lutz, at the beginning of the April 4 meeting, not to
suspect
grievant of wrongdoing, grievant’s
reaction to Lutz’s
questioning caused Lutz to reasonably suspect grievant of wrongdoing
before
Lutz directly asked grievant if he had actually gone out on the March
27
call-out.  The Board further found that, given
Lutz’s reasonable
suspicions, “it does not follow that the
Employer would not have
further investigated Grievant but for Lutz’s improper
questioning of
him.”  (Emphasis added.)
¶
26.        
In
short, as the record demonstrates, and as grievant acknowledges in his
brief,
the Board assumed that the employer would have commenced an
investigation into
the March 27 call-out even if Lutz had not asked the improper question.[1] 
Hence, we reject grievant’s
contention that the Board improperly imposed
upon him the burden of demonstrating a causal connection between the
contract
violation and his subsequent admissions.  Plainly, at the
point Lutz asked
the improper question, he suspected serious
misconduct—falsifying a time
report—which undoubtedly would have led to a follow-up
investigation to
determine whether those reasonable suspicions were accurate. 
Upon
unexpectedly realizing that grievant had most likely falsified his time
report,
Lutz asked grievant directly if he had actually gone out on the March
27 call-out. 
If Lutz had realized that he could not ask such a question directly
without
giving grievant notice of a right to VSEA representation, the
questioning would
have ceased at that time.  But further investigation and more
direct
questioning of grievant—this time with a VSEA representative
present—was
inevitable.  Indeed, Lutz testified as to his duty to report
suspicions of
such conduct and of his awareness that disciplinary action was the
likely
result of such misconduct.
¶
27.        
Further,
at any follow-up interview, grievant would have been obligated to
respond to
inquiries concerning the March 27 incident, or otherwise face the risk
of being
fired for refusing to respond.  See In re Adams,
22 V.L.R.B. 271,
282-83 (1999) (allowing employer to discipline employee for failing to
cooperate fully with investigation).  Thus, even if the
improper question
had not been asked at the first meeting, there is no basis to assume
that
grievant ultimately could have avoided the question.  Indeed,
given his supervisor’s
clear suspicion arising from the allowable portion of the first
interview,
grievant had limited options at the inevitable follow-up
interview.  He
could admit guilt or refuse to answer, resulting in dismissal; or he
could deny
wrongdoing or offer explanations for the discrepancies in the reports
concerning the March 27 incident, resulting in the implausible
explanations set
forth in the record before us.  In short, there is nothing in
the record
indicating that the State gained any advantage from grievant’s
single admission at the April 4 meeting.  Therefore, any taint
stemming
from the employer’s improper question at that meeting is far
too attenuated for
the Board to preclude the employer from thereafter questioning grievant
about
its legitimate and reasonable suspicions that preceded the improper
question.
¶
28.        
We
find unconvincing grievant’s
contention that the
record and the Board’s findings demonstrate that the Denton
interviews were not independent of his
April 4 admission.  Grievant emphasizes that the Commissioner
decided to
conduct an internal investigation of the March 27 incident based solely
on
information obtained through Lutz.  That fact is not helpful
to grievant, however,
given the Board’s finding that Lutz had
reasonable suspicion of wrongdoing independent of grievant’s
admission.  Grievant relies heavily on his claim that the
Commissioner
conceded at his deposition “that it would be ‘pure
speculation’ to say that an
investigation would have been done if Lutz had not told him about [grievant’s] admissions
on April 4.”  (Emphasis
supplied).  This argument misstates the
Commissioner’s testimony. 
What the Commissioner characterized as “pure
speculation” was whether there
would have been an investigation had Lutz “never discussed
with you or anyone
else his April 4th, 2005 conversation with
[grievant].” (Emphasis
added).  There was no concession that an investigation would
not have
occurred but for grievant’s
admission.  The
Commissioner merely acknowledged an investigation may not have taken
place if
Lutz had never reported anything to anybody concerning the April 4
meeting.  The Commissioner did not concede, nor does the
evidence suggest,
that an investigation would not have been prompted by what the Board
found to
be the supervising lieutenant’s reasonable suspicions of
misconduct based on
the portion of the April 4 conversation preceding grievant’s
admission in response to the improper question.
¶
29.        
 Hence,
notwithstanding the Board’s conclusion to the contrary, we
conclude that the
Board’s far-reaching exclusion of evidence placed the State
in a far worse
position than if Lutz had never asked the improper question. 
Cf. Nix
v. Williams, 467 U.S. 431, 443-44 (1984) (explaining that
analytically
similar inevitable-discovery and independent-source doctrines are both
intended
to ensure that suppression of evidence does not outrun deterrence
objective by
putting prosecution in worse position than it would have been absent
police
error or misconduct).  Neither the terms of the collective
bargaining
agreement itself, nor general policy concerns supporting such
employer-employee
agreements, suggest that Article 14, Section 7 was intended to insulate
state
employees from disciplinary action for misconduct anytime the notice
provision
was violated, irrespective of whether the contract violation prejudiced
the
disciplined employee.  Cf. Robinson v. U.S. Postal
Serv., 28
M.S.P.R. 681, 687 (1985) (stating that purpose of violated collective
bargaining agreement provision was not “to shield employees
from the
consequences of their improper acts”).  Indeed, in
determining the
appropriate remedy, the Board has consistently examined whether
procedural
contract violations have prejudiced the aggrieved employee. 
E.g., Dustin,
9 V.L.R.B. at 301 (citing Nzomo
v. Vt.
State Colls.,
138 Vt. 73, 75-76, 411 A.2d 1366,
1367-68 (1980) for proposition that reversal of employment decision is
not
warranted when “procedural shortcomings do not affect the
ultimate decision to
dismiss,” but nevertheless sustaining grievance because grievant’s
statements from improper interview were sole basis for disciplining
him); see Robinson,
28 M.S.P.R. at 687 (concluding that “agency violations of
collective bargaining
agreements must be harmful to constitute reversible error); M. Moberly
& A.
Lisenbee, Honing
our Kraft?: Reconciling
Variations in the Remedial Treatment of Weingarten Violations,
21 Hofstra Lab.
& Emp. L.J. 523, 550 (2004) (citing
National Labor Relations Board cases holding that violations of right
to union
representation ordinarily must prejudice employee before disciplinary
actions
are overturned).
¶
30.        
Notably,
there is no evidence in this case that the employer intentionally
violated the
notice provision so as to place itself in a better position with
respect to an
investigation of grievant.  Nor is there evidence of a recent
pattern of
similar violations, which might suggest such an intention. 
Cf. Boucher,
9 V.L.R.B. at 60 (noting that grievant had not demonstrated any
prejudice
resulting from State’s violation of VSEA notice provision,
but nonetheless
awarding grievant severance pay for violation because of
State’s recent
violation of same provision).
¶
31.        
The
principles of protecting individual employees’ rights and
deterring employers
from engaging in unreasonable discipline are adequately addressed by
assuring
that employers do not exploit contract violations to obtain unfair
advantages
over employees.  As the United States Supreme Court stated in
its seminal
case holding that an employer engages in an unfair labor practice by
refusing
to allow an employee union representation at a meeting in which
discipline of
the employee is contemplated, the presence of a union representative
safeguards
both the interest of the individual employee and the interests of all
of the
unit employees by assuring “that the employer does not
initiate or continue a
practice of imposing punishment unjustly.”  Nat’l
Labor Relations Bd. v. J. Weingarten, Inc., 420 U.S.
251, 260-61 (1975). 
The Court reasoned that an employee “confronted by an
employer investigating
whether certain conduct deserves discipline may be too fearful or
inarticulate
to relate accurately the incident being investigated, or too ignorant
to raise
extenuating factors,” but a “union representative
could assist the employer by
eliciting favorable facts, and save the employer production time by
getting to
the bottom of the incident occasioning the
interview.”  Id.
at 262-63; see In re VSEA,
2005 VT 129, ¶ 8 (acknowledging analysis underlying Weingarten
holding).
¶
32.        
Article
14, § 7 “embodie[s]
the representation rights
established by Weingarten” and further
places “an affirmative
responsibility on the employer to ensure that the employee knows about,
and can
therefore exercise, her Weingarten
rights.”  In re VSEA,
2005 VT 129, ¶¶ 11, 13.  Those
rights may be entirely vindicated,
even following a violation of Article 14, § 7, during a
subsequent
investigation with union representation, particularly when the
subsequent
investigation is sufficiently independent of, and thus not tainted by,
the
earlier contract violation.  That is what occurred
here.  Duly
accompanied by his union representative during the subsequent
investigative
interviews and his meeting with the Commissioner, grievant was
presumably
insulated from employer overreaching and intimidation, and afforded the
fair
opportunity to articulate a counseled response as contemplated by Weingarten
and the collective bargaining agreement.
¶
33.        
Grievant’s
position—essentially advocating that,
notwithstanding lack of prejudice, an employee must be exempt from
further
questioning once a violation occurs—is unreasonable and not
required under the
law.  Such immunity from inquiry is unnecessary to uphold the Weingarten
principles or to vindicate the employee’s protection under
Article 14, §
7.  Instead, the less draconian, but effective, device of
simply depriving
the State of any direct or derivative use of the improperly obtained
admission
maintains the equilibrium of the parties before and after the breach of
contract.
¶
34.        
Here,
absent any direct or derivative use of improperly obtained admissions,
the
presence of the union representative at subsequent interrogations
guaranteed
the employee’s procedural rights.  Hence, grievant
received the full
benefit of the union assistance bargained for, while the employer
obtained no
advantage from any contractual noncompliance.  
¶
35.        
In
sum, under the circumstances of this case, wherein the record
demonstrates an insufficient
nexus between the conceded contract violation and the subsequent
admissions
grievant made when he had VSEA or legal representation, the Board
abused its
discretion by excluding statements and admissions grievant made at the
Denton
interviews concerning the March 27 incident, and by not allowing the
State to
examine grievant at the grievance hearing concerning those statements
and
admissions, or even the incident itself.  The Board did not
abuse its
discretion, however, by disallowing evidence of admissions made by grievant’s union
representative at the meeting before the
Commissioner, in light of the Board’s concern for promoting
frank discussion
and a mutually satisfactory resolution of grievances. 
Finally, given our
resolution of the previous issues and our reversal of the
Board’s decisions, we
necessarily reject grievant’s
argument that the Board
erred by allowing any evidence resulting from the State’s
investigation
following the April 4 meeting, and we need not address issues
concerning the Board’s
back-pay award.
The
Board’s March 30, 2006,
June 16, 2006, March 13, 2007, and August 23, 2007 orders are reversed,
and the
matter is remanded for further proceedings consistent with this opinion.
 
 

 


 


FOR
THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 
 
 
¶
36.        
DOOLEY,
J., dissenting. 
While there is much in the
majority decision I agree with, I cannot agree with its conclusion,
which is
based on appellate fact-finding contrary to that of the
Board.  At best,
the Court’s opinion justifies a remand for additional
fact-finding by the
Board.  I would, however, find that the Board’s
fact-finding was adequate
and affirm.
¶
37.        
In
summary, the Board imposed on the State the obligation to prove that it
would
have disciplined grievant but for the admission that occurred in
response to a
question that the supervisor asked in violation of Article 14,
§ 7 of the
collective bargaining agreement.  That obligation is stated in
Commonwealth
v. Pa. Labor Relations Bd., 768 A.2d 1201, 1206 (Pa. Commw.
Ct.
2001), a
case cited favorably by the majority, as follows:
[O]nce a Weingarten
violation has been established, the
burden shifts to the employer to establish that it did not impose the
discipline based upon information that it obtained at the unlawful
interview.  If the employer fails to carry that burden, then a
conventional make-whole order will be issued.
 
The
Pennsylvania case is based, in
turn, on Kraft Foods, 251 N.L.R.B. 598, 598 (1980)
(once employee shows
the violation, “the [employer] . . . must demonstrate that
its decision to
discipline the employee in question was not based on information
obtained at
the unlawful interview”).[2]
Although it reached its standard by a different route,[3]
the Board in substance adopted the
standard of Kraft Foods.  
¶
38.        
Here,
the State showed that the supervisor reasonably suspected that
misconduct occurred,
but did not demonstrate that he would have pursued that suspicion to
the point
of a disciplinary investigation against grievant.  In fact,
the supervisor
told grievant, even after grievant had admitted the misconduct,
that he would deny the overtime compensation request but
would not
report grievant for discipline.  While he changed course in
light of grievant’s
clear admission of misconduct, there is no
evidence of what he would have done if there had been no
admission.  The
Board appropriately found that the State failed to meet its
burden.  I
would affirm that decision.
¶
39.        
The
majority has two responses to my position, neither of which is
supportable.  The first is that the Board made a finding,
directly
contrary to its conclusion, that a disciplinary investigation would
have been
commenced in any event and grievant would have been required to make a
statement, with or without union representation present.  See ante,
¶ 26 n.1.  The “finding” on which
the majority relies is a double-negative
sentence in the Board’s opinion section, and not in the
separate findings of
fact section, of its June decision.  It says: “since
Lutz had reasonable
suspicions, it does not follow that the Employer would not have further
investigated Grievant but for Lutz’s improper questioning of
him.”  The
majority turns the double negative into a Board finding that employer
would
have further investigated grievant.
¶
40.        
It
is clear from the Board’s discussion that the sentence is not
a misplaced
finding at all; it is instead a discussion of the weakness of a legal
argument.  In the two paragraphs that include that sentence,
the Board is
discussing an argument made by grievant that the Board should
“exclude all
evidence obtained by the Employer after the improper questioning of
grievant by
Lutz.”  Grievant made this argument because there
was no suspicion of
wrongdoing before Lutz questioned grievant, and management initiated
its
investigation solely because of Lutz’s report.  The
Board labeled this
argument as “too simplistic” because the Board had
earlier concluded that Lutz
reasonably suspected that there might be misconduct from the interview
prior to
the damning admission, and it therefore did not follow that the
employer would
not have investigated grievant.  In this context, the Board
made no
finding that such an investigation would have occurred; it simply
expressed
that grievant’s
argument was wrong because of the
possibility of such a finding.  Apart from the obvious
observation that a
double negative is not equivalent to a positive finding, the majority
is
erroneous because the sentence does not contain any finding of fact. 
¶
41.        
The
majority’s second rationale—that the Board did not
“explain its conclusion that
grievant’s
admissions with VSEA representation were
the fruit of, and thus not independent of, the employer’s
wrongful questioning
at the first meeting”—is more persuasive as far as
it goes.  Ante,
¶ 23.  If that is the error in the
Board’s
decision, however, the remedy is to remand for the Board to make the
missing
findings.  The majority refuses to adopt this appropriate
remedy, and
instead engages in appellate fact-finding:  finding that
employer “surely
would have investigated the matter further and required grievant to
respond to
questions concerning the suspicious March 27 call-out
claim.”  Ante,
¶ 24.
¶
42.        
The
use of the word “surely” is a give-away here, a red
flag for appellate
fact-finding.  The least sure thing about this case is what
the supervisor
would have done if the conversation had stopped before grievant made
the
admission.  Since no one testified specifically on that
question, the fact
can be determined only by inference.  If the majority believes
the Board
was not specific enough on what inference it drew, it can remand for
that
purpose.  But only the fact-finder can draw the inference in
either
direction.  By drawing it adversely to grievant, the majority
has
impermissibly made itself the fact-finder.  I respectfully
dissent.
 
 

 


 


 


 


 


Associate
Justice

 







[1] 
We do not engage in appellate fact-finding, as the dissent contends,
but rather
reiterate only what the Board itself
found and
concluded.  The Board stated that in light of grievant’s
statements to Lutz prior to the improper question, “it was
reasonable for Lutz
to suspect that Grievant had committed misconduct” in falsely
claiming call-out
compensation for March 27.  Lutz may have initially told
grievant
following the interview that he intended to deny the overtime
compensation
without reporting the violation, but he understandably had second
thoughts in
light of his responsibility to report such violations.  For
this reason,
the Board expressly rejected grievant’s
position that
the employer “would not have further investigated Grievant
but for Lutz’s
improper questioning of him.”  In essence, grievant
wants this Court to
accept the Board’s finding that Lutz suspected wrongdoing
prior to asking the
improper question, but reject the Board’s finding that an
investigation would
have ensued regardless of the question because of that suspected
wrongdoing.  Grievant cannot have it both ways.


[2] 
The make-whole remedy of Kraft
was overruled in Taracorp
Indus., 273
N.L.R.B. 221, 222 (1984), because the Board found that § 10(c)
of the National
Labor Relations Act prohibited that remedy.  Taracorp
did not affect the burden-shifting analysis of Kraft.  
Vermont
has no statute
similar to that relied upon by the Board in Taracorp.


[3] 
The Board’s decision used the “fruit of the
poisonous tree” rule and its
“inevitable discovery doctrine” exception, which
permits the admission of evidence
if the proponent can show by a preponderance of the evidence that it
would
ultimately or inevitably have been discovered.



