In re Hurlburt

In re Hurlburt (2001-138); 175 Vt. 40; 820 A.2d 186

2003 VT 2

[Filed 10-Jan-2003]


       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, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

                                  2003 VT 2
  	
                                No. 2001-138


  In re Grievance of Randy Hurlburt	         Supreme Court

                                                 On Appeal from
                            	                 Labor Relations Board


                                                 May Term, 2002

  Edward R. Zuccaro, Acting Chair

  Kimberly B. Cheney of Cheney, Brock & Saudek, P.C., Montpelier, for
    Plaintiff-Appellant.

  William H. Sorrell, Attorney General, and William B. Reynolds, Assistant
    Attorney General, Montpelier, for Defendant-Appellee.


  PRESENT:  Amestoy, C.J., Dooley, Morse, and Skoglund, JJ., and
            Kupersmith, D.J., Specially Assigned


       ¶ 1.  SKOGLUND, J.   Grievant Randy Hurlburt appeals from an order
  of the Vermont Labor Relations Board (VLRB or Board) dismissing his
  grievance.  Grievant claims that his employer did not have just cause to
  dismiss him.  He further claims that the Board upheld his dismissal for
  reasons different from those given by his employer when dismissing him,
  thereby violating his due process right to notice.  We find no support for
  these claims and affirm.
   
       ¶ 2.  Grievant was employed by the State (employer) for
  approximately twenty years.  From 1995 until his dismissal in February
  2000, he was employed as a supervisor in the Department of Buildings and
  General Services Microphotography Section in Middlesex.  During that
  period, his overall performance was consistently rated average or above
  average.  He was disciplined three times during his twenty year tenure with
  the state, resulting in suspension twice and one written reprimand.

       ¶ 3.  From the facts as found by the VLRB, we learn the following:
  grievant's supervisory responsibilities included overseeing the unit in
  which his girlfriend, Catherine MacDonald, worked.  As of November 1999,
  grievant and MacDonald had lived together in Waterbury for approximately
  three years.  On November 24, 1999, the day before Thanksgiving, grievant
  took the day off from work to go hunting.  After hunting, grievant drove to
  pick up MacDonald from work at the parking lot on employer's premises. 
  Upon arrival, grievant appeared intoxicated, and MacDonald suggested that
  she drive home.  A disagreement between the two ensued and resulted in
  shoving.  Grievant and MacDonald then got into the vehicle, and along with
  MacDonald's two children, left the premises.  Before arriving at their
  apartment, grievant got out of the vehicle.  MacDonald drove to the
  apartment with her children.

       ¶ 4.  Grievant arrived at the apartment soon thereafter.  He kicked
  MacDonald in the back and then shoved MacDonald into a chair, causing her
  to fall to the floor.  After several further confrontations with grievant,
  MacDonald and her children left the apartment and walked approximately four
  miles to the Vermont State Police barracks in Middlesex.  Arrangements were
  then made for MacDonald and her children to stay at a battered women's
  shelter.
   
       ¶ 5.  MacDonald and her children spent the Thanksgiving holiday at
  the battered women's shelter.  The next day, MacDonald filed a complaint
  against grievant requesting emergency relief from abuse, in which she
  detailed the events described above in an affidavit and stated that she was
  afraid of grievant.  A Temporary Relief from Abuse Order (TRO) was granted. 
  The TRO mandated that grievant "shall not telephone, write to, contact or
  otherwise communicate with the plaintiff in any way . . . this includes any
  work related contact."  It further provided that grievant "shall not place
  himself within 500 feet of plaintiff individually or . . . plaintiff's
  children and residence.  While at work Defendant shall not place himself
  within 50 feet of plaintiff." 

       ¶ 6.  On Monday, November 29, grievant informed unit supervisor John
  Yacavoni that he had been served with a TRO.  Yacavoni ordered grievant to
  abide by the TRO.  Yacavoni also warned grievant to stay away from
  MacDonald or find himself in additional trouble.

       ¶ 7.  Over the next two days, grievant, while at work, sent eight
  e-mail messages to MacDonald.  After sending these messages, grievant
  enlisted the help of the office computer system administrator to delete
  them.  Although the e-mail messages were deleted, they were not erased from
  the "wastebasket" in MacDonald's e-mail account.  These e-mail messages
  were later discovered by MacDonald and shown to the police.

       ¶ 8.  On December 3, grievant was arraigned in Barre District Court on
  the charge of domestic assault.  Among his conditions of release were that
  he "shall not purchase, possess or consume any alcoholic beverages . . .
  shall not associate with Catherine MacDonald, nor personally contact,
  harass, or cause to be harassed same," and that he "shall not be within
  fifty feet of victim . . . ."
   
       ¶ 9.  On December 6, Yacavoni observed both grievant and MacDonald
  smoking cigarettes on a loading dock, which is one of the office's two
  smoking areas.  They were less than fifty feet apart.  On the same or
  following day, a co-worker approached the interior smoking room and heard
  grievant and MacDonald arguing therein.  The co-worker overheard MacDonald
  mentioning something about "victim's assistance," and grievant talking
  about the "new friends" MacDonald was making.  Two days later, Yacavoni
  relieved grievant of any supervisory responsibilities over the unit in
  which MacDonald worked.


       ¶ 10.  On December 13, Vermont State Trooper Barney went to grievant's
  apartment to issue grievant a citation for violating the TRO as a result of
  the e-mail messages grievant sent to MacDonald.  When Trooper Barney
  arrived, she found MacDonald and grievant together in the apartment; this
  was a direct violation of greivant's court-ordered conditions of release. 
  The following day, grievant was arraigned in Barre District Court on
  charges that he violated both the TRO and his conditions of release.  The
  court imposed additional conditions of release, including the condition
  that grievant abide by the previous conditions of release imposed on
  December 3.

       ¶ 11.  On the evening of December 16, grievant violated several
  conditions of his release:  grievant drank alcohol, had contact with
  MacDonald, and did not abide by his curfew.  As a result, he was arrested. 
  Grievant was incarcerated until Monday, December 20.   During this period,
  grievant missed two days of work and did not inform Yacavoni of his
  incarceration until the day following his release.  Grievant submitted a
  time sheet claiming eight hours of sick leave for the work days he missed
  while incarcerated.  Employer denied grievant's request for sick leave and
  classified his absence while incarcerated as unauthorized.  On December 21,
  grievant entered a residential alcohol treatment program.  Yacavoni
  authorized grievant to take sick leave for this absence. 

       ¶ 12.  On December 30, Bradley Ferland, business manager for employer,
  sent a letter  warning grievant that violating his conditions of release
  would be viewed as workplace misconduct that could lead to dismissal.  The
  letter ordered grievant:

    not to have contact or communication with Catherine [MacDonald] or
    be within 50 feet of her while at work.  You are hereby ordered as
    a condition of your employment to adhere to any and all such
    conditions.  I am notifying you that any violation of these
    conditions will be treated as misconduct and work place discipline
    up to and including dismissal will follow.

       ¶ 13.  Grievant returned to work on Monday, January 3, 2000.  To
  enable grievant to abide by the court-imposed restrictions and Ferland's
  directive, Yacavoni created an arrangement requiring grievant to contact
  someone in the unit where MacDonald worked, who would then ask MacDonald to
  leave the area, when grievant had to enter that unit.  However, grievant
  and MacDonald were observed conversing in her work area contrary to the
  arrangement and in violation of his supervisors' orders.  Additionally, on
  January 4, a co-worker observed MacDonald and grievant together in
  grievant's office.  

       ¶ 14.  Employer retained an investigator to investigate grievant's
  alleged misconduct occurring from late November 1999 through early January
  2000.  During this investigation, the investigator asked grievant whether
  he had an argument in the smoking room with MacDonald on or about December
  6, 1999.  Grievant replied that he did not recall the incident.  The
  investigator considered grievant's response a lie.

       ¶ 15.  On February 11, 2000,  Deputy Commissioner Thomas Sandretto
  sent grievant a  Loudermill letter (FN1) advising him that the Department
  was contemplating a serious disciplinary charge against him, up to and
  including dismissal.  The letter listed the following reasons for the
  disciplinary action: 
   
    As a result of your behavior described below, the Department of
    Buildings and General Services is contemplating serious
    disciplinary action against you, up to and including dismissal
    from the position of Microphotography Supervisor . . . .

    The reasons serious disciplinary action is contemplated are as
    follows:

    1) On or about November 26, 1999, you assaulted Catherine
    MacDonald.  This off-duty conduct was work-related misconduct
    because Ms. MacDonald is a subordinate employee of this Department
    who works in the unit that you supervise.

    2) You were given a direct order from John Yacavoni on November
    29, 1999 to abide by a Temporary Restraining Order (TRO) that was
    issued by a Vermont Family Court Judge on November 26, 1999 . . .
    .  The TRO, and Director Yacavoni's order, prohibited you from
    telephoning, writing, contacting, or otherwise communicating with
    Ms. MacDonald in anyway [sic], and from coming within 500 feet of
    Ms. MacDonald, or fifty feet at work.  The TRO conditions were in
    effect through December 9, 1999.  On December 3, 1999, a Vermont
    District Court Judge issued an order specifying conditions on your
    release from custody of the state.  The conditions included a
    prohibition on your contacting, harassing, causing to be harassed,
    and associating with Catherine MacDonald.  Those conditions also
    prohibited you from being within fifty feet of Ms. MacDonald.  On
    December 30, 1999, Bradley Ferland [business manager for employer]
    gave you a written order to comply with all Conditions of Release
    imposed by the District Court.  On January 4, 2000, Director
    Yacavoni verbally gave you an additional direct order to stay away
    from Catherine MacDonald.  You violated the orders of Director
    Yacavoni and Bradley Ferland, as indicated, by the following acts:

           (a) On November 30, 1999, you sent three e-mail messages 
        to Ms. MacDonald using the computer assigned for your work use . . . .

           (b) On December 1, 1999, you sent five e-mail messages to Ms.
        MacDonald using the computer assigned for your work use . . . .

           (c) You came within fifty feet of Ms. MacDonald on or about
        December 5, 1999, when you were observed together smoking 
        cigarettes in the loading dock area . . . .
   
           (d) On or about December 6 or 7, 1999, you were observed in the
        smoking room at work with Ms. MacDonald and you were having a 
        heated conversation with her . . . .

           (e) On or about January 4, 2000, you were in your office with Ms.
        MacDonald . . . .

           (f) At various times between January 3, 2000 and January 10, 2000,
        you entered Ms. Macdonald's work area on several occasions.  These 
        actions violated Bradley Ferland's order and, in all instances 
        after January 4, 2000, violated Director Yacavoni's order as well.

    3) In addition to constituting violations of the orders issued by
    Yacavoni and Ferland, the acts described above in paragraph two
    are criminal acts in violation of Vermont statutes that were
    committed in the workplace and on work time.  For the period from
    December 3 to December 9, 1999, your actions described above were
    in violation of both the TRO and the Conditions of Release.

    4) You were absent from work without authorized leave on December
    17 and 20, 1999.

    5) On or about December 3, 1999, using computers belonging to the
    Department of Buildings and General Services, you attempted to
    delete from Ms. MacDonald's e-mail account the e-mail messages
    that you sent to her on November 30 and December 1.  This occurred
    in the workplace and on work time.  In attempting to delete the
    messages you were attempting to destroy evidence of your workplace
    misconduct and evidence of a crime.  Misusing departmental
    resources in that manner also constitutes violation of . . .  the
    Rules and Regulations for Personnel Administration . . . and the
    code of conduct for state employees . . . , which each prohibit
    use of State property and time for personal interests or gain.

    6) During the investigation of this matter you were asked about
    your contact with Ms. MacDonald in the smoking room on or about
    December 6 or 7.  You were observed having a heated conversation
    or argument with her.  You said that you did not honestly recall
    such contact.  I believe that your statement, effectively denying
    this significant event, was a lie.
   
    I am also considering your entire history of discipline as an
    employee of the State of Vermont.


       ¶ 16.  On February 18, a Loudermill meeting was held at the
  Department.  Grievant and his Vermont State Employees' Association
  representative were present and responded to the issues raised in the
  Loudermill letter.  During the meeting, grievant generally denied the
  charges against him and questioned the Department's motives.  Grievant
  denied assaulting MacDonald and denied that he had argued with her in the
  smoking room.     

       ¶ 17.  The decision to discharge grievant from his position with the
  state was made by Deputy Commissioner Sandretto after discussions with
  employer's managers, and with representatives from the Department of
  Personnel.  By letter dated February 23, 2000, Sandretto informed grievant
  that he was dismissed for the reasons set forth in the Loudermill letter. 
  Grievant filed a grievance with the VLRB claiming that he was improperly
  dismissed.  Grievant now appeals the Board's dismissal of his grievance to
  this Court.

       ¶ 18.  This Court affords great deference to decisions that lie within
  the Board's area of expertise.  In re Carlson, 140 Vt. 555, 560, 442 A.2d 57, 60 (1982).  We do not disturb findings made by the Board unless they
  are clearly erroneous.   In re Merrill, 151 Vt. 270, 275, 559 A.2d 651, 654
  (1989) ("[S]o long as the finding is supported by a quantity of evidence
  which is more than a mere scintilla, this Court will not reverse the
  Board's findings unless they are clearly erroneous.") (internal quotations
  omitted).  We will normally sustain the Board's order if it is supported by
  its own findings.  Carlson, 140 Vt. at 560, 442 A.2d  at 60. 
   
       ¶ 19.  On appeal, grievant disputes the Board's decision to dismiss
  his grievance on three grounds.  First, grievant claims that the Board
  erred in upholding his dismissal because there was not a sufficient nexus
  between grievant's off-duty conduct and his employment to warrant
  discipline; that is, employer lacked just cause to dismiss him.  Second,
  grievant argues that any work related incidents of misconduct were de
  minimis and could not form the basis for dismissal.  Third, grievant claims
  that the Board's rationale upholding his dismissal was not found in the
  Loudermill letter issued by employer.  Grievant's arguments fail on all
  grounds.  

       ¶ 20.  The definition of "just cause" is well established.  "Just
  cause means some substantial shortcoming detrimental to the employer's
  interests, which the law and a sound public opinion recognize as good cause
  for his dismissal."  In re Brooks, 135 Vt. 563, 568, 382 A.2d 204, 207
  (1977) (internal citation omitted).  In In re Morrissey, 149 Vt. 1, 13, 538 A.2d 678, 686 (1987), we stated that the just cause analysis should "center
  upon the nature of the employee's misconduct."  The ultimate criterion of
  just cause is "whether the employer acted reasonably in discharging the
  employee because of misconduct."  Brooks, 135 Vt. at 568, 382 A.2d  at
  207-08.  A dismissal for cause will be upheld if the court finds that: (1)
  it is reasonable to dismiss the employee because of the conduct in
  question, and (2) the employee had fair notice, express or fairly implied,
  that such conduct could result in dismissal.  Id.; Carlson, 140 Vt. at 559,
  442 A.2d  at 59.  In cases where an employer disciplines or dismisses an
  employee for off-duty conduct, there must be a nexus between off-duty
  conduct and employment to justify the employer's disciplinary action
  against an employee for that conduct.  Grievance of Ackerson, 16 V.L.R.B.
  262, 272 (1993).
   
       ¶ 21.  Grievant does not take issue with the Board's determination
  that employer established the charges supporting its termination decision. 
  Rather, grievant argues that there is no nexus between his off-duty
  conduct, including his domestic and criminal court problems, and grievant's
  job performance sufficient to justify his dismissal.  An employee's
  off-duty assault of a girlfriend  occurring away from an employer's
  premises may not, without more, provide the required nexus establishing
  just cause necessary for an employee discharge.  That is not, however, the
  situation presented in this case.  While grievant's assault on MacDonald, a
  subordinate, occurred away from employer's premises and after work hours,
  it was the precipitating event which led to directives and orders from
  grievant's superiors that grievant ultimately violated.  The orders and
  restrictions placed upon grievant by the district court merely provided the
  template for the additional restrictions imposed by employer on grievant's
  workplace behavior.  As identified in the Loudermill letter, grievant's
  failure to comply with the direct orders of his supervisors to abide by the
  court-imposed restrictions on grievant's interactions with MacDonald, his
  unauthorized absence from work, his attempted destruction of evidence
  demonstrating workplace misconduct and related misuse of departmental
  resources, and his lying to employer's investigator constituted the primary
  reasons for grievant's dismissal.  Clearly, the offending behavior that
  resulted in grievant's dismissal was work-related.

       ¶ 22.  The Board's determination that the charges proven against
  grievant established the just cause required for dismissal was based upon
  the factors articulated in Grievance of Colleran and Britt, 6 V.L.R.B. 235,
  268 (1983).  The Board stated that the factors relevant to a just cause
  determination in this case were:
   
    1) the nature and seriousness of the offenses and their relation
    to Grievant's duties and position, 2) Grievant's job level,
    including supervisory role, 3) the effect of the offense upon
    supervisors' confidence in Grievant's ability to perform assigned
    duties, 4) the clarity with which Grievant was on notice [of] any
    rules that were violated in committing the offenses, 5) the
    consistency of the penalty with those imposed upon other employees
    for same or similar offenses, 6) Grievant's past disciplinary
    record, 7) Grievant's past work record 8) the potential for
    Grievant's rehabilitation, 9) mitigating circumstances surrounding
    the offenses and 10) the adequacy and effectiveness of alternative
    sanctions to deter such conduct in the future.  
   
       ¶ 23.  In applying the Colleran-Britt factors to the facts of the
  present case, we agree with the Board's finding of just cause for
  dismissal.  Grievant was employed in a supervisory role.  He was charged
  with assaulting a subordinate, fellow employee, which is a serious and an
  egregious offense.  Grievant was ordered by a court to stay away from the
  subordinate both at and outside work.  Grievant had been warned, both
  orally and in writing, by his superiors that he must abide by the court's
  order while in the workplace.  Grievant disobeyed these directives by
  sending e-mail to MacDonald, by being in the same smoking area as her, by
  being in his office with her, and by being in MacDonald's work area while
  she was present.  Grievant's actions violated express management directives
  and thus constituted insubordination.  Insubordination is a serious offense
  because it weakens the confidence management has in an employee's
  reliability in carrying out directives from management.  Cf. In re Towle,
  164 Vt. 145, 149, 665 A.2d 55, 59 (1995) (grievant's sexual misconduct
  destroyed superior's trust in ability to perform assigned duties). 
  Insubordination is grounds for dismissal.  See Morrissey, 149 Vt. at 13,
  538 A.2d  at 686  (undermining employer's established policy and superior's
  authority detrimental to employer's interests). 
   
       ¶ 24.  The Board also found that, in light of the assault,
  grievant's position as MacDonald's supervisor brought personal problems
  into the workplace, which had a negative impact on his employment.  As
  noted by the Board, "[m]anagement should be able to rely on supervisors
  interacting with their subordinates without the atmosphere being poisoned
  by past violent conduct."  The Board looked at the effect of these offenses
  on grievant's ability to perform his job at a satisfactory level and its
  effect upon the confidence of his supervisors in grievant's ability to
  perform assigned duties.  The Board concluded grievant "irreparably
  damaged" his supervisors' trust through repeated violations of the TRO and
  employer's directive to abide by that order.  Accordingly, the conclusion
  that employer had just cause to terminate grievant is supported by the
  Board's findings.  Generally, we will not overrule the Board's
  determination on this matter as it is "of the very nature which lie[s]
  particularly within the expertise of the Board . . . ."  In re Merrill, 151
  Vt. 270, 274, 559 A.2d 651, 653 (1988).

       ¶ 25.  However, grievant claims he lacked notice that violating his
  supervisor's order to  comply with the TRO would be grounds for dismissal,
  arguing that not every violation of a supervisory order would provide just
  cause for dismissal.   The ultimate question on the issue of whether an
  employee had fair notice is whether the conduct was or should have been
  known to the employee to be prohibited by the employer.  In re Graves, 147
  Vt. 519, 524, 520 A.2d 999, 1002 (1986).  This is an objective standard. 
  Towle, 164 Vt. at 150, 665 A.2d  at 60.  Grievant was expressly told by his
  supervisor to obey the trial court's order while at work.  Therefore,
  grievant was aware that any violation of the TRO would be in defiance of a
  direct order from his supervisor.  "Knowledge that certain behavior is
  prohibited and subject to discipline is notice of the possibility of
  dismissal."  Id.  Accordingly, grievant had fair notice that he risked
  dismissal by violating the orders of Ferland and Yacavoni.  Cf. Morrissey,
  149 Vt. at 10-11, 538 A.2d  at 684 (dismissal letter in combination with
  oral notification extended notice of adequate specificity to grievant).
   
       ¶ 26.  Grievant's second claim on appeal is that the violations of
  his conditions of release were de minimis and cannot support just cause for
  dismissal.  Something is de minimis when it is so "insignificant that a
  court may overlook it in deciding an issue or case."  Black's Law
  Dictionary 443 (7th ed. 1999).  Grievant characterizes his violations as
  "accidentally meeting MacDonald on the smoking dock, deliberately meeting
  her in the smoking room, sending her e-mails and then deleting them,
  walking through MacDonald's work space and talking with her, and talking
  with MacDonald in his office."  Here, grievant was dismissed for serious
  acts of insubordination, lying during an investigation, attempting to
  destroy evidence of workplace misconduct, and violating court orders, both
  at work and off duty.   Grievant's repeated prohibited acts compounded the
  seriousness of his misconduct and the Board found that these act justified
  his dismissal.  See Towle, 164 Vt. at 150, 665 A.2d  at 59 ("Repetition of
  acts grievant knew to be forbidden justified State's judgment that grievant
  was not a good candidate for rehabilitation . . . and justified his
  discharge.").  Just cause determinations are soundly within the expertise
  of the Board and we accord the Board's determination its due deference. 
  Merrill, 151 Vt. at 274, 559 A.2d  at 653.

       ¶ 27.  Grievant also makes the related claim that his two-day absence
  from work was not valid cause for dismissal.   He asserts that employer
  made a moral judgment, and that because he was in jail as opposed to an
  alcohol treatment center, employer considered grievant absent from work
  without authorized leave.  We find it reasonable for employer to conclude
  that missing work due to incarceration is equivalent to unauthorized leave. 
   
       ¶ 28.  Finally, grievant claims that the Board's rationale upholding
  his dismissal was not found in the Loudermill letter given to him by
  employer and, as a result, his due process right of notice was violated. 
  Specifically, grievant challenges the Board's holding that, "as a result of
  grievant's assault of MacDonald, employer lost a week of MacDonald's
  services because she spent a week at a battered women's shelter" and that
  the restraining order caused a disruption in the workplace by limiting
  contact between grievant and MacDonald.  Grievant suggests that  the reason
  MacDonald missed work was because she was sick with pneumonia. 

       ¶ 29.  The purpose of a Loudermill letter is to put an employee on
  notice of the charges against him and to act as a check for mistaken
  accusations.  See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546
  (1985); Rich v. Montpelier Supervisory Dist., 167 Vt. 415, 420, 709 A.2d 501, 504 (1998) (public employees with property interest in position
  entitled to oral or written notice of charges against them, and an
  explanation of employer's evidence); Grievance of Johnson, 9 V.L.R.B. 94,
  108 (1986).  In reviewing a disciplinary action, the Board does not look
  beyond the reasons given by the employer in the disciplinary letter for the
  action taken.  Grievance of Swainbank, 3 V.L.R.B. 34, 48 (1980), rev'd on
  other grounds, In re Swainbank, 140 Vt. 33, 433 A.2d 313 (1981).  Notice
  under Loudermill requires no more than notice of the charges, an
  explanation of the evidence and an opportunity for the employee to present
  evidence.  In re Gregoire, 166 Vt. 66, 71-72, 689 A.2d 431, 434 (1996).

       ¶ 30.  MacDonald testified that, indeed, she was ill with "walking
  pneumonia" during the period she was absent from work.  However, when she
  called Yacavoni on Monday, November 29, 1999,  to inform him of what had
  occurred between grievant and herself, MacDonald indicated that she was in
  a battered women's shelter and would be out of work that week.  During this
  phone conversation, she asked Yacavoni whether, given the circumstances, 
  she should quit or transfer from her job.  This finding supports the
  Board's conclusion that MacDonald's absence was due primarily to grievant's
  assault and not to any illness she might be suffering.  The fact that the
  loss of MacDonald's services was not cited as a reason for discipline in
  the Loudermill letter is of no moment.
   
       ¶ 31.  Grievant was terminated for the reasons stated in the 
  Loudermill letter: grievant assaulted a subordinate employee; he violated a
  supervisor's direct order to abide by the TRO on six separate occasions and
  those violations constituted criminal acts committed in the workplace and
  on work time; grievant had two days of unauthorized absence from work; he
  attempted to destroy evidence of workplace misconduct and of a crime; and
  grievant apparently lied to his employer's investigator.  The Board found
  that employer had proved by a preponderance of the evidence all the
  misconduct stated in the Loudermill letter and concluded that there was
  just cause for dismissal.  We agree with the Board's conclusions and find
  no error.
           
       Affirmed.


                                                                           
                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).