dissenting. I agree with Justice Gibson that the Labor Relations Board correctly interpreted the notice requirements of Article 14(4) of the collective bargaining agreement. I write separately to emphasize my disagreement with the majority’s ultimate conclusion: that the existence of just cause to discipline an employee eliminates the State’s obligation to comply "with the demands of procedural due process.
The majority emphasizes what appears to be undisputed: that Gregoire was aware that her conduct violated the policies of the Department of Employment and Training (DET), and that the violation was serious enough possibly to result in dismissal. Indeed, the Board specifically found that Gregoire “had fair notice that her conduct could result in dismissal.” This finding supports the Board’s conclusion that just cause existed to discipline Gregoire. An employee may not be disciplined for certain conduct unless the employee had fair notice, express or implied, that the conduct could be grounds for discipline. See In re Towle, 164 Vt. 145, 150, 665 A.2d 55, 59 (1995) (discharge for just cause will be upheld if discharging employee for misconduct is reasonable and employee had express or implied notice that such conduct would be grounds for discharge).
This basic requirement of fairness — that employees may not be fired or otherwise punished unless they know or should know that their “behavior is prohibited and subject to discipline,” id. at 150, 665 A.2d at 60 — is separate from the procedural requirements imposed by the collective bargaining agreement. The agreement spells out the notice that must be given to an employee whose job is actually in jeopardy — that is, an employee who is accused of misconduct and may be fired as a result. I share Justice Gibson’s opinion that the agreement requires such notice to specifically inform the employee that the State is contemplating dismissal. The majority, however, rejects this straightforward rule, and instead holds that notice may “be communicated by other means.” 166 Vt. at 73, 689 A.2d at 435.
What “other means” are appropriate? The answer in this case is that, because Gregoire knew her actions violated DET policy, she *79must have known that the State was contemplating dismissal. Put another way, because Gregoire was in fact “guilty” of the alleged misconduct, she was not entitled to the procedural protections of the contract. The finding of just cause obviates the need for procedural protections; since Gregoire knew that her misconduct could be grounds for discharge, according to the majority she “could not have failed to understand,” id. at 74, 689 A.2d at 435, that the State was in fact considering firing her.
This conclusion directly conflicts with the Board’s finding that Gregoire was not aware before or during the meeting that the State was contemplating dismissal. Although the majority disregards this finding, it is supported by credible evidence and should not be disturbed on appeal. See P.F. Jurgs & Co. v. O’Brien, 160 Vt. 294, 300, 629 A.2d 325, 329 (1993) (findings of fact will be set aside only when clearly erroneous, with due regard to opportunity of trial court to judge credibility of witnesses and weight of evidence). In fact, Gregoire’s supervisor was not considering dismissal at the time he sent the memorandum, and none of the State’s representatives at the meeting mentioned that they were considering firing Gregoire.
What is much worse, however, is that the majority has constructed a double standard under the collective bargaining agreement. “Guilty” employees are no longer entitled to the procedural protections that state employees bargained for and won. Their very misconduct is now sufficient notice that the State is considering firing them. Only innocent employees, who presumably cannot be fired anyway, must be given explicit notice that dismissal is contemplated. This is little different from holding that only innocent defendants in criminal cases are entitled to constitutional protections.
I respectfully dissent. I am authorized to state that Justice Gibson joins in this dissent.