IN THE IOWA DISTRICT COURT FOR POLK COUNTY
POLK COUNTY SECONDARY ROADS,
and
POLK COUNTY BOARD OF SUPERVISORS,
Petitioner,
VS.
IOWA CIVIL RIGHTS COMMISSION,
Respondents.
AFSCME LOCAL 1868, at al.,
Petitioner,
VS.
IOWA CIVIL RIGHTS COMMISSION,
Respondent.
No. AA 1072
RULING ON PETITION FOR
JUDICIAL REVIEW
The attorneys for the parties appeared and hearing was held. The Court, having reviewed the record and having heard arguments from counsel, finds as follows:
FINDINGS OF FACT
1. Polk County fired Kenneth
Hill Jr., on March 29,1984, for taking county property and misusing
county time and equipment. Hill's grievance was denied by Polk
County. His union, AFSCME, voted to pursue binding arbitration.
An arbitration hearing was held.
2. Prior to the arbitration
hearing Hill filed a Civil Rights Complaint against Polk County
alleging he was discharged on racial discrimination. While awaiting
the arbitration decision, the county asserted that since Hill
pursued the claim with the Civil Rights Commission that it was
no longer an arbitrable grievance under the election of remedies
clause Section 1, Article XVIII of the union contract. The arbitrator
agreed.
3. Hill then filed a second
complaint with the Civil Rights Commission -- the one at issue
here -- alleging that the loss of his arbitration remedy was discriminatory
retaliation under section 601 A. 11 of the Code.
Hearing was held and the
record was kept open to receive a Public Employment Relations
Board (PERB) declaratory ruling. PERB's ruling found the "election
of remedies" clause, Section 1, Article XVIII, of the union
contract to be a permissive subject of bargaining and not illegal.
4. The hearing officer held
that the cessation of grievance procedures upon the filing of
a civil rights complaint was retaliatory. She disagreed with PERB's
ruling and felt the clause was an exhaustion of remedies clause.
Citing Section 601 A.61 she stated: "If a complaint is one
of discrimination, there is no option to file a complaint as a
grievance. It must be filed with the Commission; therefore, there
is no election of remedies."
5. The hearing officer also found Hill had been "disadvantaged by denial of his arbitration hearing." The order directed the parties to delete portions of an antidiscrimination clause from their contract to ensure that Hill's grievance for discharge "without cause" could go forward to arbitration, without interference from the election of remedies clause. The order also directed Polk County and the union to proceed to arbitrate the discharge.
CONCLUSIONS OF LAW
Iowa Code Section 601 A.1 1 states in part:
"it shall be unlawful or discriminatory practice for: ... (2) Any person to discriminate against another person . . . because such person has lawfully opposed any practice forbidden under this chapter, obeys the provisions of this chapter, or has filed a complaint, testified or assisted in any proceeding under this chapter . . .'
[Emphasis added]
The Iowa Supreme Court has
held that where the essence of the claim is discriminatory practice,
Section 601 A provides exclusive recourse for the claimant. See
Chauffeurs, Teamsters, and Helpers Local Union No. 238 v. Iowa
Civil Rights Commission, 394 N.W.2d 375, 378 (Iowa 1986).
The Civil Rights Commission
had primary jurisdiction. PERB did manage to complete its proceedings
and make an order before the Commisssion issued its decision.
But since the commission has primary jurisdiction, the decision
of PERB is not important. PERB's declaratory ruling does not have
the weight of law. The ruling is not binding on the Civil Rights
Commission.
Ken Hill was not injured
by application of the discriminatory policy until August 16, 1987.
His complaint concerning the injury was filed on October 3, 1984.
The complaint was timely filed.
A term in a collective bargaining
contract that forfeits an employee's rights of arbitration because
he files a charge of discrimination is direct evidence of a retaliatory
motivation to either punish or chill the exercise of rights protected
under Chapter 601 A. The then union president testifies that he
advised Ken Hill that if he filed a civil rights complaint, he
would lose his right to arbitration. The AFSCME council representative
who represented Ken Hill's case for the arbitrator told Mr. Hill
the same thing. There is substantial evidence in the record to
support the decision of the Commission.
The election of remedies'
argument propounded by the petitioners is of particular interest
to the Court especially since the petitioners state that the election
of remedies clause is important in order to avoid inconsistent
results from more than one forum and avoid duplication of
efforts. This begs the question, however, of whether arbitration
can be revoked because the grievant filed a complaint under the
Iowa Civil Rights Commission. The Court finds that the answer
to that question is no.
The Iowa Civil Rights Commission did not violate any constitutional or statutory provision, act in excess of its authority, or take any action unsupported by substantial evidence when it denied the special appearance of AFSCME International. Also this is not a moot issue that the Court should ignore.
RULING
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the final agency action of the Iowa Civil Rights Commission is AFFIRMED. The petitioners shall pay the costs of this action.
Dated this 12th day of September, 1989.
JUDGE, FIFTH JUDICIAL DISTRICT OF IOWA
COPIES TO:
Mary W. Vavroch
Assistant Polk County Attorney
372 Polk County Office Building
2nd & Court
Des Moines, Iowa 50309
Mike Hansen
AFSCME
2525 E. Euclid
Des Moines, Iowa 50317
Sue Bolte
PERB
507 10th Street
Des Moines, Iowa 50309
Teresa Baustian
Assistant Attorney General
Grimes State Office Building
Des Moines, Iowa 50319