In re Gobin

 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.


                                 No. 91-094


 In re Grievance of Robert Gobin              Supreme Court

                                              On Appeal from
                                              Labor Relations Board

                                              February Term, 1992


 Charles H. McHugh, Chair

 James S. Suskin, Vermont-NEA, Montpelier, for plaintiff-appellant

 Lee B. Liggett, Burlington, and Arthur P. Menard, Chelsea, Massachusetts,
   for defendant-appellee


 PRESENT:  Allen, C.J. (FN1), Gibson, Dooley, Morse and Johnson, JJ.


      GIBSON, J.   Grievant Robert Gobin appeals from an order of the Vermont
 Labor Relations Board (VLRB or Board) dismissing his grievance.  The Board
 ruled that grievant had not presented a claim over which it had jurisdiction
 because he had not established a prima facie case that the University of
 Vermont (UVM) had applied a rule or regulation against him in a discrimina-
 tory manner.  We reverse.
      Grievant has taught health and physical education for UVM's College of
 Education and Social Services (CESS) since 1965.  UVM initially hired
 grievant as an assistant professor, at a salary approximately $1,200 higher
 than the mean salary for UVM assistant professors.  He was promoted to full
 professor by the 1972-1973 academic year.  In 1988-1989, his salary was
 $6,000 lower than the mean salary for full professors at the University.
      In 1988, grievant initiated an internal appeal relative to his 1988-
 1989 salary.  He claimed that his salary had been "compressed" -- i.e.,
 diminished over time in relation to the salaries of his peers -- because of
 factors unrelated to professional performance.  He sought the "standards and
 criteria" used to assess salary compression, and asked that his salary be
 adjusted upward.  During the appeal, grievant sought salary data for indivi-
 dual UVM faculty members in order to substantiate his claim.  UVM denied
 this request, claiming that individual salaries were confidential.
      In 1989, grievant filed a formal grievance with the faculty grievance
 committee.  Grievant again requested individual salary data from UVM, which
 again declined to provide the information.  The committee rejected
 grievant's substantive claims, but expressed dissatisfaction that UVM had
 not provided him with more information on his peers' compensation.
      On January 29, 1990, grievant appealed to the VLRB.  In 1988, the
 Legislature gave the Board jurisdiction to hear grievances brought by
 employees of the University of Vermont.  See 3 V.S.A. {{ 901, 926.  After
 hearing four days of testimony by grievant, the Board, by a two-to-one vote,
 granted UVM's motion to dismiss the grievance.  The Board found that griev-
 ant had failed to establish that UVM had salary decompression standards
 that it applied discriminatorily against grievant, and dismissed the
 grievance for lack of jurisdiction.
                                     I.
      The central issue is the propriety of the Board's dismissal of the
 grievance at the completion of the grievant's case.  A motion to dismiss
 under such circumstances is equivalent to a motion for directed verdict, and
 in deciding such a motion, the Board must view the evidence in the light
 most favorable to the nonmoving party, excluding all modifying evidence.
 See State of Vermont Environmental Board v. Chickering, 155 Vt. 308, 311,
 583 A.2d 607, 609 (1990).  The Board must not grant the motion if there is
 any evidence fairly and reasonably tending to justify a decision in favor of
 the nonmoving party.  Id. at 312, 583 A.2d  at 609.
      Here, the Board erred in finding that grievant had not identified a
 rule or regulation that may have been applied against him discriminatorily.
 Title 3 V.S.A. { 902(14) defines "grievance" as follows:
         'Grievance,' means an employee's, group of employees',
         or the employee's collective bargaining representative's
         expressed dissatisfaction, presented in writing, with
         aspects of employment or working conditions under
         collective bargaining agreement or the discriminatory
         application of a rule or regulation, which has not been
         resolved to a satisfactory result through informal
         discussion with immediate supervisors.
 Because there is no collective bargaining agreement between the parties,
 grievant must allege and prove the discriminatory application of a rule or
 regulation.  Failure of an employer to follow a binding rule constitutes an
 actionable grievance.  Nzomo v. Vermont State Colleges, 136 Vt. 97, 102, 385 A.2d 1099, 1102 (1978).
      Grievant cites provisions of the UVM Officers' Handbook, the CESS By-
 Laws and an April 1988 memorandum by the University Provost setting out
 "Guidelines for the Distribution of Salary Adjustments" as rules governing
 salary adjustments.  Although the Officers' Handbook enumerates only general
 principles concerning salary adjustment, both the CESS By-Laws and the
 Provost's Guidelines provide more detailed procedures.  The By-Laws deal
 specifically with the instant grievance.  In particular, they mandate that
 "the salary figure being recommended [be considered] in a historic context
 in relation to peers with like rank, years of experience, etc."  The
 Provost's Guidelines require that "[i]n assigning salary increases, unit
 administrators and deans and directors must take into account historical
 patterns that may have compressed or widened salary differences inappro-
 priately among individual faculty members."
      The Board found that the Officers' Handbook and the CESS By-Laws were
 formally adopted as rules governing, respectively, the administration of UVM
 and a college within UVM.  The Board also found, however, that the Provost's
 Guidelines were not binding rules, a finding that governed the outcome of
 its opinion.  The Board reasoned that the Guidelines were issued auton-
 omously by the Provost, without formal review, and were intended to "guide,"
 not govern, the administration of the University.  Thus, the Board con-
 cluded, grievant could not make out a claim under { 902(14) because he
 could not point to a rule concerning "specific salary decompression
 standards" that may have been applied to him unfairly.
      In support of the Board's decision, the University elevates form over
 substance.  It argues that the label "guideline" means that the Provost's
 memorandum established only "an indication or outline of future policy or
 conduct,"  Webster's Third New International Dictionary 1009 (1976), as
 opposed to a "rule," which is "a regulation or bylaw governing procedure in
 a public or private body."  Id. at 1986.  But, the Provost's Guidelines
 mandate that administrators "must take into account historical patterns that
 may have compressed or widened salary differences inappropriately"; they are
 virtual mirror images of the CESS By-Laws governing the procedure to be
 followed and do not merely indicate or outline future policy or conduct.
 The definitions provided by UVM thus support the conclusion that the
 Guidelines are binding rules within the meaning of 12 V.S.A. { 902(14).
 Together with the evidence that grievant's salary is $6,000 lower than the
 mean salary for full professors at UVM, grievant has established a prima
 facie case under { 902(14).  We reach this conclusion bearing in mind the
 standard of review set forth in Chickering, 155 Vt. at 311-12, 583 A.2d  at
 609, and that "[a]ll pleadings shall be liberally construed."  VLRB Rules of
 Practice 12.10.  We express no opinion on the merits of grievant's claim.
                                      II.
      The Board also held that grievant had not established a grievance
 concerning the salary information he had requested because he failed to
 allege discriminatory treatment, i.e., that similarly situated faculty
 members had received dissimilar treatment.  The Board's approach is
 misguided, however, in that grievant's request was based only on his salary
 grievance.  Presumably, he has no independent interest in learning how much
 his colleagues were paid.  Although we are concerned that grievant did not
 pursue this information through discovery before the Board, see VLRB Rule
 12.1 (adopting V.R.C.P. 26), we conclude that the Board should not bar
 grievant from pursuing such information from the University as is properly
 available through the discovery process.  See 1 V.S.A. { 317(b) (individual
 salaries are a matter of public record); Sprague v. University of Vermont,
 661 F. Supp. 1132, 1140 (D. Vt. 1987) (Public Records Law, 1 V.S.A. {{ 315-
 320, held applicable to UVM).   Grievant requested the data so that he could
 attempt to show that he was treated differently from other faculty members.
 He should not be required to prove discrimination when he has not had access
 to evidence material to the underlying issue.
      Reversed and remanded.



                                    FOR THE COURT:



                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice






 FN1.  Chief Justice Allen was present at oral argument but did not
 participate in the decision.