Burlington Area Public Employees Union, Local 1343, AFSCME, AFL-CIO v. Champlain Water Dist., AFL-CIO

• Decision Date: 24 May 1991
• Docket Number: No. 88-016,AFL-CIO,88-016
• Citation: 594 A.2d 421,156 Vt. 516
• Court: Vermont Supreme Court
• Parties: BURLINGTON AREA PUBLIC EMPLOYEES UNION, LOCAL 1343, AFSCME,v. CHAMPLAIN WATER DISTRICT.

Page 421

594 A.2d 421

156 Vt. 516

BURLINGTON AREA PUBLIC EMPLOYEES UNION, LOCAL 1343, AFSCME, AFL-CIO v. CHAMPLAIN WATER DISTRICT.

No. 88-016.

Supreme Court of Vermont.

May 24, 1991.

Blais, Cain, Keller & Fowler, Inc., Burlington, for plaintiff-appellee.

Dennis W. Wells of Downs Rachlin & Martin, Burlington, for defendant-appellant.

Before ALLEN, C.J., and PECK, ¹ GIBSON, DOOLEY and MORSE, JJ.

ALLEN, Chief Justice.

The Champlain Water District appeals from an order of the Vermont Labor Relations Board ordering it generally to refrain from conducting Step III grievance hearings without the presence of grievants and their union representatives during management's presentation, and ordering it to offer to grievant George Hedenberg and the Burlington Area Public Employees Union in the instant case the opportunity to attend a grievance meeting so conducted. We reverse and remand with direction for the Board to defer to the arbitration provided for in the collective bargaining agreement (agreement).

Grievant was dismissed from employment by the District, and the Union filed a grievance on his behalf. The matter progressed to Step III of the grievance process, which required the District's Board of Commissioners to hear the grievance at a regularly scheduled meeting. After hearing from the Union on grievant's claim that his dismissal violated the agreement, the Commissioners sought to hear management's explanation of the dismissal without grievant's presence. Section 14.7 of the agreement does not specify whether a grievant has a right to be present at the Step III hearing, either personally or through a Union representative. The provisions for the Step III hearing stand in contrast to the provisions for Steps I and II of the grievance process, which do specifically address the employee's right to be present. The Union objected to this procedure, and grievant and his Union representative left the meeting. The Board of Commissioners denied the grievance, and the Union appealed that decision to binding arbitration.

The Union did not file a separate grievance concerning the grievant's exclusion from the Step III hearing, but it filed an unfair labor practice charge with the Board, alleging that the District had violated 21 V.S.A. § 1726(a)(1) ² of the Municipal Employee Relations Act (MERA) by making it impossible for the Union to represent grievant adequately.

The District moved for summary judgment before the Board on the ground that the Union should have filed a second grievance on this issue rather than an unfair labor practice charge. The Board considered the summary judgment motion with the merits of the unfair labor practice charge.

The Board noted that § 14.1 of the agreement defines a grievance as "a dispute as to the meaning or application of a specific written provision of the Agreement" and concluded that the grievant's right to be present at the Step III hearing did not "involve the interpretation of contractual language." The Board also found that the past practice of the District had been to allow grievants and their Union representatives to be present during the management portion of Step III grievance hearings involving suspension. Even though there had not been previous Step III grievance hearings involving dismissal, the Board concluded that the exclusion of the grievant and Union representative from this Step III dismissal hearing was a unilateral change in a mandatory subject of bargaining and hence was an unfair labor practice. The Board concluded that it should not defer its decision on the unfair labor practice charge until after the conclusion of the grievance process. We disagree, and remand for deferral to the grievance process provided in the agreement.

Parties to a collective bargaining agreement are required to exhaust available contractual remedies before a statutory unfair labor practice charge will lie under 21 V.S.A. § 1726(a). See AFSCME, Local 490, Bennington Dep't of Public Works & Police Units v. Town of Bennington, 9 V.L.R.B. 195 (1986); Burlington Educ. Ass'n v. Burlington Bd. of School Comm'rs, 1 V.L.R.B. 335, 340 (1978). The Board should begin its analysis by considering if the issue contained in the complaint is subject to arbitration, irrespective of whether or not it might also be an unfair labor practice under MERA. If the issue is subject to arbitration, the contract grievance procedure should be applied, barring an overriding statute or deferral policy. As the Board said in Burlington Education Association:

If this Board hears as an unfair labor practice a complaint which is a grievance without first requiring the complainant to utilize the dispute resolution procedures agreed to in the Collective Bargaining Agreement, the collective bargaining process would be undermined.... [A]n exhaustion of contract remedies doctrine ... insures the integrity of the collective bargaining process by requiring the parties to collective bargaining agreements to follow the procedures they have negotiated to resolve contract disputes. This policy also encourages the parties to negotiate grievance procedures to resolve contract disputes which is sound labor relations policy. Labor relations stability depends on the parties working together to resolve disputes which directly affect them.

1 V.L.R.B. at 340. The NLRB stated the same proposition very clearly in National Radio Co., 198 N.L.R.B. 527, 531 (1972) (discussing Collyer Insulated Wire, 192 N.L.R.B. 837 (1971):

Here, as [in Collyer ], an asserted wrong is remediable in both a statutory and a contractual forum. Both jurisdictions exist by virtue of congressional action, and our duty to serve the objectives of Congress requires that we seek a rational accomodation within that duality. We may not abdicate our statutory duty to prevent and remedy unfair labor practices. Yet, once an exclusive agent has been chosen by employees to represent them, we are charged with a duty fully to protect the structure of collective representation and the freedom of the parties to establish and maintain an effective and productive relationship.

In this context, abstention simply cannot be equated with abdication. We are, instead, adjuring the parties to seek resolution of their dispute under the provisions of their own contract and thus fostering both the collective relationship and the Federal policy favoring voluntary arbitration and dispute settlement.

The exhaustion doctrine does not bind the parties in this case if the issue raised before the Board does not qualify as a matter of contract interpretation, if an overriding statute negates deferral, or if the Board's own deferral guidelines indicate that deferral would not serve the purposes of the statute. As none of these contingencies are present here, exhaustion is required.

I. Contract Interpretation.

The Board, distinguishing AFSCME, Local 490 and Burlington Education Association, analyzed the central issue as follows:

At issue is the procedure adopted by the Employer during a grievance meeting on an employee's dismissal of having the Union present its case on behalf of the dismissed employee to the Board of Commissioners and then the Union and involved employee being absent when management presents its case. The procedure to be used by the Board of Commissioners during grievance meetings is nowhere addressed in the Contract and the Contract limits the definition of grievance to "a dispute ... as to the meaning or application of a specific written provision of the Agreement." Thus, the contractual grievance procedure does not provide adequate redress for the alleged wrongs.

It begs the issue to state that the contract does not expressly state that employees may or may not be present at Step III hearings. Interpretation of an agreement may involve interpolating from a written text solutions not expressly spelled out in the text. Clearly, Step III hearings are creatures of contract and not required by statute. The Step III grievance process was an integral part of the agreement, and the question of what constitutes a valid, bona fide Step III hearing is an issue of contract interpretation. The issue of who may be in the room during such a proceeding is but one example of an incident or element of such a proceeding. Similar questions might conceivably arise as to the length of the proceeding, whether recording devices are allowed, and the order of presentation. The answers to all of these issues might be found by interpreting the text of the agreement or, as the Board points out, in blending textual interpretations and the "contracts implied in fact" in the form of established past practices. An arbitrator is ideally poised to consider and resolve such issues; they are issues concerning the "law of the shop" as opposed to the "law of the land," see Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 743, 101 S.Ct. 1437, 1446, 67 L.Ed.2d 641 (1981), which arbitrators, in general, are in a better position than judges to interpret.

In sum, the procedures to be used at a Step III grievance hearing must be determined by comparing the specific written provisions of Article III and § 14 of the agreement and by determining whether those provisions allow the District's Board of Commissioners to exclude the grievant from a portion of a Step III grievance hearing. This is a suitable subject for deferral to the grievance process provided in the agreement. See AFSCME, Local 490, 9 V.L.R.B. at 195; Burlington Educ. Ass'n, 1 V.L.R.B. at 340-45.

II. Established Past Practice.

The Board in the present case also reasoned that since the presence of all parties at Step III proceedings was an established past practice, exclusion of the grievant in this case was a unilateral change, comparable to the sick-leave policy at issue in Burlington Firefighters Association Local 3044, IAFF v. City...