AFSCME Council 96 v. Arrowhead Regional Corrections Bd.

• Decision Date: 12 October 1984
• Docket Number: No. C4-83-999,C4-83-999
• Citation: 356 N.W.2d 295
• Parties: 120 L.R.R.M. (BNA) 2903 AFSCME COUNCIL 96, for itself and on Behalf of its Member Employee, Carl Hammerberg, Respondent, v. ARROWHEAD REGIONAL CORRECTIONS BOARD, Appellant.
• Court: Minnesota Supreme Court

Page 295

356 N.W.2d 295

120 L.R.R.M. (BNA) 2903

AFSCME COUNCIL 96, for itself and on Behalf of its Member Employee, Carl Hammerberg, Respondent, v. ARROWHEAD REGIONAL CORRECTIONS BOARD, Appellant.

No. C4-83-999.

Supreme Court of Minnesota.

Oct. 12, 1984.

Syllabus by the Court

1. Veteran in public employment who has received notice of intent to terminate employment has the right to both a Veteran's Preference Hearing under Minn.Stat. § 197.46 (1982) and to arbitration of the dismissal under the terms of the collective bargaining agreement negotiated pursuant to PELRA.

2. Principles of res judicata and collateral estoppel do not apply to either arbitration or veteran's preference hearings on the question of "just cause" for termination of veteran who is a public employee.

Alan L. Mitchell, Kevin O'Connell, Duluth, for appellant.

Don L. Bye, Duluth, for respondent.

Considered and decided by the court en banc without oral argument.

OPINION

AMDAHL, Chief Justice.

This is an appeal from an order compelling the Arrowhead Regional Corrections Board (hereafter ARC) to arbitrate the discharge of its employee, Career Corrections Agent Carl Hammerberg. Following an incident which occurred on October 15, 1982, employee Hammerberg was served with a notice of intent to dismiss on grounds of misconduct. On October 25, AFSCME Local 66 filed a grievance objecting to Hammerberg's dismissal. The employer then informed the AFSCME representative that it was ARC's position that Hammerberg would have to choose between the Veteran's Preference Hearing to which he was entitled, and the grievance process but could not employ both procedures. By letter dated December 8, 1982, Hammerberg requested a Veteran's Preference Hearing. The St. Louis County Civil Service Commission, acting as a Veteran's Preference Board pursuant to a contractual agreement with the ARC, held the hearing on January 10, 1983. The Board upheld Hammerberg's dismissal, finding his misconduct sufficient to justify termination of employment.

AFSCME Council 96, "for Itself and on Behalf of its Member Employee Carl Hammerberg," moved the district court for an order compelling arbitration of the dismissal, for a determination that the ARC had engaged in an unfair labor practice by refusing to arbitrate, and for an order requiring that ARC abide by the labor contract as to arbitration. The district court denied the motion for an unfair labor practice determination, but granted the other orders. ARC appeals from those orders. Respondent has not cross-appealed from the unfair labor practice ruling.

We are presented with the question of whether a veteran who is given notice of intent to terminate public employment has a right to both a Veteran's Preference Hearing and arbitration pursuant to a collective bargaining agreement. We conclude that a veteran has a statutory right to both procedures that is not precluded by the principles of collateral estoppel and res judicata. ¹

Under Minn.Stat. § 197.46 (1982), "No person holding a position by appointment or employment in the several counties * * * who is a veteran * * * shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, in writing."

The Public Employment Labor Relations Act (PELRA) mandates that the collective bargaining agreement provide for compulsory binding arbitration to resolve disputes between public employers and their employees. Minn.Stat. § 179.70, subd. 1 (Supp.1983). The collective bargaining agreement between ARC and AFSCME Council 96 accordingly provides, under Article VI, for a series of grievance procedures culminating in an arbitration proceeding which decision "shall be final and binding upon the parties."

ARC relies on dicta in General Drivers Local 346 v. Aitkin County Board, 320 N.W.2d 695 (Minn.1982) for its argument that it is not obligated to allow both a hearing under the Veteran's Preference Act and arbitration pursuant to the collective bargaining agreement under PELRA, Minn.Stat. §§ 179.61-179.76 (1982 & Supp.1983). That court found that a deputy who was improperly terminated was entitled to the protection of both the collective bargaining agreement negotiated subject to PELRA and the Veteran's Preference Act. Since the particular collective bargaining agreement at issue largely incorporated the rights provided by the Veteran's Preference Act, the court found that no separate hearing need be held and the deputy could proceed to utilize the grievance mechanism. 320 N.W.2d at 701. Rather than supporting the ARC's position, General Drivers solidifies the right of veterans to employ both avenues of redress. This court did not say that two separate hearings could not be held nor did it consider whether arbitration need be granted when a Veteran's Preference Hearing has already been held. This language is in clear contrast to a second holding of the General Drivers case, that is, that another terminated deputy not covered by the Veteran's Preference Act could not proceed under both PELRA and the sheriff's civil service system, but had to elect one or the other. 320 N.W.2d at 702. Obviously, the same kind of mandatory election could have been declared to apply to veterans.

There are several similarities between Veteran's Preference Hearings and arbitration. First, this court has held repeatedly that the "just cause" standard for which an employee can be discharged under PELRA and the "incompetency or misconduct" standard for discharge under the Veteran's Preference Act are equivalent. See Ekstedt v. Village of New Hope, 292 Minn. 152, 193 N.W.2d 821 (Minn.1972). ² Secondly, the Veteran's Preference Hearing Board has the same power to fashion alternative remedies (i.e., progressive discipline) as the arbitrator does. In Leininger v. City of Bloomington, 299 N.W.2d 723 (Minn.1980), the court held that neither the City of Bloomington's Home Rule Charter, nor anything in section 197.46 contemplate that the Veteran's Preference Hearing Board serve merely as a body that reviews findings and approves or disapproves recommendations, but that its function is also to decide for itself what penalty, if any, is justified. 299 N.W.2d at 729.

Despite the equivalence of the two hearing procedures, when both are properly conducted, there are strong public policies which dictate allowing a veteran to elect both hearings. The legislature has clearly manifested its intent that veterans enjoy security in public employment, protected from "the ravages and insecurity of a political spoils system." Johnson v. Village of Cohasset, 263 Minn. 425, 435, 116 N.W.2d 692, 699 (1962). That the statute contains a penalty of a misdemeanor for wilful violation of the Veteran's Preference Act is further indication of this legislative support. Minn.Stat. § 197.46 (1982). This court has also expressed such support in General Drivers by holding that the Veteran's Preference Act, PELRA and the optional sheriff's civil service system all take precedence over section 387.14, which gives sheriffs and county boards the power to appoint and remove deputies and other employees. ³ 320 N.W.2d at 700.

There are practical as well as statutory and public policy reasons for allowing a veteran to employ both avenues of redress. The veteran who requests a preference hearing must either be suspended with pay or be allowed to continue in employment until after the hearing. ⁴ The arbitration process provides no such umbrella. Unions generally will not represent employees at the Veteran's Preference Hearing or on appeal. ⁵ The employee who loses at the preference hearing may not be able to afford counsel and so may wish to have union representation at the grievance hearings first. The employee who loses at the Veteran's Preference Hearing and thinks the board was not impartial may wish to test that thought on a neutral arbitrator prior to taking an appeal. The employee who again loses may conclude the employer has just cause for termination and may drop the appeal. The goals of orderly, speedy and inexpensive dispute resolution will thus be attained.

ARC contends that dual hearings will violate the principles of collateral estoppel and res judicata. Hammerberg correctly points out that multiple recourse mechanisms are common in the administrative law context, especially in public sector labor matters. One author has characterized this as an "overabundance of forums in which rights may be asserted." Public Sector Grievance Procedures, Due Process, and the Duty of Fair Representation, 89 Harv.L.Rev. 752, 753 (1976) (citing H. Wellington & R. Winter, The Unions and the Cities, 158-59 (1970) for extreme examples of multiple administrative hearings over the same just cause dismissal issue). While we recognize the need to streamline dismissal procedures, we cannot do so in the face of statutorily granted rights.

We have said that res judicata applies "in spirit at least" where an agency acts in a judicial or quasi judicial capacity. See Souden v. Hopkins Motor Sales, Inc., 289 Minn. 138, 146, 182 N.W.2d 668, 672 (1971) and McKee v. County of Ramsey, 310 Minn. 192, 194 n. 1, 245 N.W.2d 460, 462 n. 1 (1976). However, "[n]either collateral estoppel nor res judicata is rigidly applied. Both rules are qualified or rejected when their application would contravene an overriding public policy * * *." Tipler v. E.I. duPont deNemours and Co., 443 F.2d 125, 128 (6th Cir.1971). Furthermore, "[a]bsent a special consideration, a determination arising solely under one statute should not automatically be binding when a similar question arises under another statute." Id. at 128-29. We decline to apply res judicata to either veteran's preference hearing determinations or arbitration decisions on the question of "just cause" for termination of a public employee who is a veteran.

Although we hold that the legislature has entitled veterans to have dismissal actions...