United Indus. Workers v. Government of VI, Civ. No. 90-300.
| Decision Date | 22 April 1992 |
| Docket Number | Civ. No. 90-300. |
| Parties | In the Matter of the Arbitration Between UNITED INDUSTRIAL WORKERS, SERVICE, TRANSPORTATION, PROFESSIONAL AND GOVERNMENT OF NORTH AMERICA, OF the SEAFARER'S INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC GULF, LAKES AND INLAND WATERS DISTRICT AFL-CIO, (LOCAL # 16) on Behalf of Donald M. BOUTON, Petitioner, v. GOVERNMENT OF the VIRGIN ISLANDS, V.I. Department of Justice (Formerly Department of Law), Respondents. |
| Court | U.S. District Court — Virgin Islands |
Brenda J. Hollar, St. Thomas, U.S. Virgin Islands, for petitioner.
Paul Gimenez and Allen Poppleton, Asst. Attys. Gen., Dept. of Justice, St. Thomas, U.S. Virgin Islands, for respondents.
Presently before this Court is a petition to vacate an arbitrator's award filed by petitioner Donald M. Bouton ("Bouton") and a motion to dismiss all of the said petitioner's quests for relief in this case, filed by respondent Government of the Virgin Islands ("Government"). Oral argument was heard by this Court during the March 25, 1991 Motion Day.1 The Court has considered the parties' arguments made both orally, and through papers submitted prior and subsequent to the March 25, 1991 Motion Day.2 For the following reasons, the Government's motion to dismiss, treated as a motion for summary judgment under Fed.R.Civ.P. 56 because documents other than pleadings are filed in this case, see Fed.R.Civ.P. 12(b), will be granted, and Bouton's motion to vacate will be denied.3
On March 20, 1987, Bouton was terminated from his position as Hearing Officer with the Virgin Islands Department of Justice, Division of Paternity and Child Support. That issue became the subject of arbitration pursuant to the collective bargaining agreement ("CBA") covering assistant attorneys general of that government agency. The Arbitrator determined that Bouton, at the time of his dismissal, did not occupy a position within the collective bargaining unit, and was entitled to no relief. Subsequently, in this Court, Bouton filed a petition to vacate the Arbitrator's award, and the Government filed its motion to dismiss.
Bouton was employed by the Virgin Islands Department of Law (now known as the Virgin Islands Department of Justice) in various legal positions from November 27, 1972 until March 20, 1987. On that latter date, when he was allegedly dismissed for cause, Bouton was serving as a Hearing Officer with the Government's Division of Paternity and Child Support. Bouton claims that prior to assuming his hearing officer position, he had arranged to take a "leave of absence" from his former position as an Assistant Attorney General at the Department of Justice, and that, under the CBA, he is entitled to resume that position.
During his approximately fifteen years of working with that department, Bouton served in several management positions by political appointment. Those positions were First Assistant Attorney General, Acting Attorney General and Attorney General. Bouton asserts that during the time period in which he served in each such appointed position, he took a "leave of absence" from his Assistant Attorney General position and that upon the completion of each post, he resumed his position as an Assistant Attorney General, and that he had a right again to resume that position on March 20, 1987.
On or about September 14, 1979, the Government and the United Industrial Workers of the Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Water District, AFL-CIO ("the Union") agreed upon a list of certain Department of Law (now Department of Justice) employees deemed eligible to vote in a representative election. The parties agree that Bouton was determined to be eligible to vote and that he voted in an October 2, 1979 election without challenge. After the October 2 election, the Union was certified as the exclusive bargaining representative for a recognized Bargaining Unit ("Unit") consisting of certain Department of Law employees. Under that certification, all assistant attorneys general were included within the Unit. Excluded therefrom were the attorney general, office clerical staff and guards. Bouton's name remained on the Unit seniority list through March 20, 1987.4
On or about February 28, 1983, the Union and the Government entered into a second CBA. The parties agree that CBA became retroactively effective from October 1, 1982 until September 30, 1985. That CBA was further extended by agreement of the parties through March 20, 1987 until an unspecified date in 1990. The recognition clause of that second CBA states at Article I:
In May 1986, by Act 5161, the Legislature established the Division of Paternity and Child Support within the Department of Law, creating therein a hearing officer position. That act provided that the Hearing Officer was to conduct hearings and render decisions in paternity and child support cases, and that the Hearing Officer would serve a term of four years, subject to removal by the Governor. Although the Attorney General was directed to recommend candidates for Hearing Officer, the Governor was given the power to appoint as well as to remove the Hearing Officer.
On September 18, 1986, effective as of August 5, 1986, Bouton was appointed to a Hearing Officer position with the Division of Paternity and Child Support, and occupied that position until he was terminated in March 1987. At the time that he was so appointed, Bouton was working as an Assistant Attorney General.
Bouton claims that he commenced his Hearing Officer position after negotiating a leave of absence from his then current position as Assistant Attorney General. Bouton asserts that his leave of absence was negotiated with then Attorney General Leroy Mercer ("Mercer") and that that leave of absence arrangement was later acknowledged in writing by Mercer's successor, Attorney General Godfrey de Castro.
In reference to that arrangement, the Government states that Bouton sent a September 17, 1986 letter to Mercer in which Bouton set forth his alleged understanding of the terms of acceptance of his hearing officer position and of his rights later to resume his spot as an Assistant Attorney General. According to the Government, Bouton indicated that he understood that (1) his position as Assistant Attorney General would be filled; (2) he would be on a leave of absence from that position; and (3) upon conclusion of his service as Hearing Officer, Mercer would welcome Bouton to return to his position as an Assistant Attorney General, if such a position was vacant. Motion to Dismiss at 3. Mercer's signature and the word "agreed" appear at the bottom of that September 17, 1986 letter. The Government claims that both Mercer and Bouton knew that the agreement, in any event, was "personal" because Mercer had no authority to bind either the then Governor or any future Governors or any future Attorneys General. Id.
On January 7, 1987, Attorney Godfrey de Castro ("de Castro") assumed the position of Attorney General. Thereafter, Bouton was terminated for refusing to comply with a directive from de Castro requiring all male professional Department of Law employees to wear a coat and tie while on duty.
Prior to being terminated, the Government asserts that Bouton was warned several times concerning his failure to comply with this directive. Bouton filed a grievance under the CBA regarding de Castro's directive. A grievance hearing was held on February 22, 1987. That said grievance was denied on the grounds that Bouton was a Hearing Officer, was not covered by the CBA, and that even if he was covered by the CBA, de Castro's directive was appropriately issued pursuant to authority reserved to the employer by the CBA and Bouton had not complied therewith.
Bouton then filed, under the CBA, a demand for arbitration. In response, the Government refused to arbitrate, claiming that Bouton was not a member of the Unit. The Government also refused at that time to appoint Bouton to one of three vacant Assistant Attorney General positions, and rejected Bouton's claim pursuant to his interpretation, and his understanding, of his leave-of-absence arrangement. Bouton acknowledges that his particular position as Hearing Officer within the Division of Paternity and Child Support was created by statute in 1986. See V.I.Code Ann. tit. 16 § 354 (1991). However, Bouton asserts that other similar hearing officer positions existed prior to the creation of the Division of Paternity and Child Support Hearing Officer, and that the CBA in existence at the time of his dismissal did not exclude hearing officers.
Following the Government's refusal to arbitrate, Bouton filed a motion for a temporary restraining order in the Territorial Court of the Virgin Islands to compel arbitration. After that quest for relief was denied, Bouton amended his complaint to seek specific performance of the CBA. On April 8, 1987, the Territorial Court denied a motion to dismiss filed by the Government and granted relief to Bouton by referring five specific issues for arbitration. Those issues were the following:
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