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