AFSCME Council 96 v. Arrowhead Regional Corrections Board
356 N.W.2d 295
Minn.
1984
Check Treatment

*1 96, for itself and on AFSCME COUNCIL Employee, its Member Carl

Behalf of

Hammerberg, Respondent,

ARROWHEAD REGIONAL CORREC BOARD, Appellant.

TIONS

No. C4-83-999.

Supreme of Minnesota. Court 12, 1984.

Oct. *2 Mitchell, O’Connell,

Alan L. Kevin Du- luth, appellant. for Bye, Duluth, Don L. respondent. for OPINION AMDAHL, Chief Justice.

This is an compel- from an order ling the Regional Arrowhead Corrections (hereafter ARC) Board arbitrate dis- charge of employee, its Career Corrections Agent Carl Hammerberg. Following an incident which occurred on October 1982, employee Hammerberg was served with notice of intent to dismiss on grounds of misconduct. On October grievance AFSCME Local 66 filed a object- ing Hammerberg’s dismissal. The em- ployer then repre- informed AFSCME sentative that was position it ARC’s Hammerberg would have to choose be- tween the Veteran’s entitled, he was process but not employ proce- could By dures. letter dated December Hammerberg requested a Veteran’s Prefer- Hearing. The St. County Louis Civil Commission, Service acting as a Veteran’s pursuant Preference Board to a contractual ARC, held the January 10, on upheld 1983. The Board Hammerberg’s dismissal, finding his mis- ARC relies on dicta General Drivers justify termination of sufficient to conduct Board, County employment. Local v. Aitkin (Minn.1982), argument N.W.2d 695 its on “for Itself and AFSCME Council obligated it is not to allow both Ham- Employee Member Carl Behalf of its hearing under the the district court for merberg,” moved *3 pursuant and arbitration to the collec Act compelling of the dismiss- arbitration order PELRA, agreement bargaining under tive al, that the ARC had a determination for §§ (1982 Supp. Minn.Stat. 179.61-179.76 & practice by re- engaged in an unfair labor 1983). deputy That court found that a who arbitrate, requir- order fusing and for an improperly was terminated was entitled to as by the labor contract ing that ARC abide of protection both the collective bar The district court denied to arbitration. practice agreement negotiated subject de- gaining for an unfair labor the motion termination, granted the other orders. but the Veteran’s Preference Act. PELRA and Respon- appeals from those orders. bargaining ARC particular Since the unfair cross-appealed from dent has not largely incorporated at issue ruling. practice labor provided by the Veteran’s Prefer Act, separate the court found that no presented are We deputy held and the could need be given is notice of a veteran who whether proceed to utilize the mechanism. employment has intent to terminate support at 701. Rather than Preference a Veteran’s a to both position, ing the ARC’S General Drivers pursuant to a col- Hearing and arbitration employ of veterans to solidifies the agreement. We con- bargaining lective court did statutory has a avenues of redress. This clude that a veteran both precluded by hearings that is not procedures say separate to both that two could not estoppel and res principles of collateral held nor did it consider whether judicata.1 granted when a Veter need be arbitration already Hearing has been Preference an’s “No Minn.Stat. Under in clear contrast to language This held. by appointment holding position a person * * holding Drivers General a second in the several counties employment * depu case, is, terminated that another removed shall be who is a veteran Preference by the Veteran’s ty not covered except employment position such PELRA proceed under both af- Act could incompetency or misconduct shown for system, but notice, civil service upon stated the sheriff’s hearing, upon due ter writing.” charges, one or the other. had to elect of man Obviously, same kind at 702. Relations Employment Labor Public have been declared datory could election (PELRA) the collective mandates that Act apply to veterans. provide compul- for bargaining agreement disputes binding to resolve sory arbitration be There are several similarities employers and their em- between Hearings and Veteran’s tween § 179.70, subd. ployees. First, re court has held arbitration. (Supp.1983). The collective for cause” standard “just that the peatedly and AFSCME ARC agreement between discharged un employee can be which Ar- accordingly provides, under Council 96 mis “incompetency or PELRA and the der VI, grievance proce- for a series ticle discharge under the standard conduct” pro- culminating in an arbitration dures equivalent. Act are final and ceeding decision “shall be which Hope, 292 Village New Ekstedt v. See upon parties.” binding ing, separate to the dis- that a argued we note parties in their briefs 1. While the and we on that issue process afforded trict due was the issue of whether to address it. decline Veteran’s Preference Hear- at his (Minn.1972).2 expressed support 193 N.W.2d 821 eourt has also such Minn. the Veteran’s Preference Hear- Secondly, by holding that General Drivers the Veter ing power has the same to fashion Act, PELRA, Board op an’s Preference (i.e., progressive remedies alternative disci- system tional sheriff’s civil all take service In pline) Leininger arbitrator does. precedence gives over section City Bloomington, N.W.2d 723 county power sheriffs and boards (Minn.1980), emp the court held that neither the appoint remove deputies other Bloomington’s Charter, City of Home Rule loyees.3 320 N.W.2d at 700. anything contemplate nor in section 197.46 practical the Veteran’s Preference There well as as statu merely body that tory public policy Board serve as a reviews allowing reasons for findings approves disapproves rec- employ a veteran avenues of re ommendations, but that its function is also requests prefer dress. The veteran who *4 penalty, any, to decide for itself what if hearing must suspended ence either be justified. 299 N.W.2d at 729. pay be allowed continue in em ployment hearing.4 until after the The ar Despite equivalence the of the process provides bitration such no umbrel hearing procedures, when two both are generally represent la. Unions will conducted, strong properly there are employees at Veteran’s Preference policies allowing which dictate a veteran to Hearing appeal.5 employee or on The who hearings. legislature elect The has preference hearing at may loses clearly that manifested its intent veterans may able to counsel and afford so wish to in enjoy security public employment, pro representation have union at the “the ravages insecurity tected from and of hearings The who first. loses at political spoils system.” a Johnson v. Vil the Veteran’s Preference and Cohasset, 425, 435, lage 263 Minn. 116 of impartial 692, may thinks the board was not (1962). 699 N.W.2d That the statute thought wish to that on a penalty test neutral contains a of a misdemeanor for prior taking appeal. of arbitrator wilful violation the Veteran’s The legislative again may Act is further indication of this who loses conclude § support. (1982). just Minn.Stat. employer This has cause for termination specifically relationship. 2. "The cause must be one which dential § Minn.Stat. relates to and affects the Mangni, administration of the Sawyer ex rel. v. State 231 office, something must be 464, 775, restricted to (1950). Minn. 779 directly affecting nature substantial Moreover, that has held the PELRA public. interests cause must be "employer" governing body definition of touching qualifications one of the officer or having budgetary approval authority, final duties, performance showing of its that he is 179.63, 4, "operates subd. § make proper person not a fit hold the office.” county employer board the sole for the Minn, 292 at at 828. purpose negotiating of [collective ** agreements] under PELRA General attorneys general 3. Numerous Minnesota Drivers, 320 N.W.2d at 700. The same reason- expressed opinion probation that officers ing applies probation pur- for the officers protections excluded of the Veter- poses Hearings. of Veteran’s Preference 104-B-8, Op.Atty.Gen. an’s Act. See July following language 1969. The is con- dispositive: "Nothing sidered in section 197.455 4. The law dictates that a veteran who is sus apply or this section shall be construed to pended discharge proceedings must be any person holding strictly confidential rela- kept payroll pending on the his Veteran’s Prefer appointing tion to the officer." Minn.Stat. Hearing. City Apple Valley, v. 290 Kurtz (1982). They probation that reason (Minn.1980). Mitlyng N.W.2d 173 See also appointed by judges officers are with whom (Minn. 1984). Wolff, N.W.2d 120 There is they relationships. hold then confidential no evidence in the record as to whether Ham- probation appointed by While some officers are merberg paid salary up was or was not to the judges, see Minn.Stat. subd. hearing. time of the bar, not. In others are the case at the exclusion apply Hammerberg does not because is em- Respondent’s brief at 3. rate, ployed by any appointing the ARC. At establishing officer has the burden of a confi- goals may drop appeal. ute.” Id. at 128-29. apply We decline to orderly, speedy, inexpensive dispute judicata res to either preference veteran’s attained. resolution will thus be hearing determinations or arbitration deci- “just sions on the cause” for hearings ARC contends that dual will public employee termination of a who is a principles estoppel of collateral violate the veteran. judicata. Hammerberg correctly and res points multiple out that recourse mecha Although legislature we hold that nisms are common in the administrative has entitled veterans to have dismissal ac- context, especially law sector la tions heard both a Veteran’s Preference matters. One author has characterized bor arbitrator, Board and an we are mindful this as an “overabundance forums problems may duplica- arise from such rights may be asserted.” Public tive efforts. The Veteran’s Preference Procedures, Sector Grievance Due Pro Hearing may produce and arbitration con- cess, Duty Representa Fair results, flicting apparently happened as tion, (1976)(citing 89 Harv.L.Rev. when was terminated once Winter, Wellington H. & R. The Unions and suggest following before. We Cities, (1970)for extreme exam 158-59 procedures may help to reduce the confu- multiple hearings ples of administrative may sion which arise. issue). just over the same cause dismissal possible, If Veteran’s Preference Hear recognize we the need to streamline While ings place prior should take to arbitration. *5 procedures, dismissal we cannot do so in appeal anWhen from the Veteran’s Prefer statutorily granted rights. face of the filed, Hearing has been the district judicata We have said that res may stay appeal pending wish to the applies spirit agency “in at an least” where the outcome of arbitration.6 Then the two judicial quasi judicial capacity. acts in a or proceedings could be consolidated under Sales, Inc., Hopkins See Souden v. Motor Rule 42.01 of the Rules of CivilProcedure.7 138, 146, 668, 289 Minn. 182 N.W.2d 672 arises, complication A the whether Ramsey, County and McKee sepa proceedings are consolidated or heard 192, 1, 310 Minn. 194 n. rately, from the fact that the standards of (1976). However, “[njeither 462 n. 1 collat review differ the review of a deci between estoppel judicata rigidly eral nor res Board and sion of the Veteran’s Preference applied. qualified reject Both rules are appeal award. In an from arbitrator’s application ed their an when would contravene former, the the standard is whether the overriding public policy Tipler *.” arbitrary capricious decision was Co., v. E.I. 443 duPont deNemours and support in (6th Cir.1971). Furthermore, the record without substantial F.2d latter, consideration, in “[ajbsent while the an award will be vacat a determi only upon proof of one or more of the arising solely nation under one statute ed § grounds in Minn.Stat. automatically binding should not be when a stated (1982),8 question arises under another stat- and not because the court disa similar actions; may may appeal veteran from the decision of the matters in issue in the it order 6. “The consolidated; charges upon may the board to the district court all the actions and it make causing appeal, stating by concerning proceedings written notice of such orders therein as thereof, grounds upon govern- to be served may unnecessary delay." tend to avoid costs or making mental subdivision or officer Minn.R.Civ.P. 42.01. charges days after notice of the deci- within 15 by filing original appeal notice of sion and (1982) provides part: in 8.Minn.Stat. proof in of service thereof the office of the Upon application par- Subdivision 1. days clerk of the district court within ten after ty, the court shall vacate an award where: (1982). service thereof." Minn.Stat. (1) procured by corruption, The award was means; fraud or other undue involving "When actions a common (2) court, partiality There was evident an arbi- law fact are before the it corruption any any may joint hearing trator as a neutral in order a or trial of or all grees with the decision on the merits. Veteran’s Preference should con- Hospital, Inc. v. Children’s Minnesota any right stitute a waiver of to arbitration Association, Nurses because the union also has some (Minn.1978). here. application If the for a motion to con- bargaining grants contract firm, correct, modify, or vacate the arbitra- right steps to invoke the griev of the appeal tion award and the from the Veter- procedure ance-arbitration respon consolidated, an’s Preference dent Presumably, union. the union insisted the district court can determine the issues right on this only contract because it by applying appropriate review stan- represents employee rep but because it dard to each administrative determination.9 and, resents entire unit Affirmed. exclusive agent, has an interest negotiat how labor contract it WAHL, Justice, concurring. ed is administered. Bowen v. United Cf. opinion I concur in the of the Chief Jus- Service, States Postal 459 U.S. pro- tice not of the wisdom because S.Ct. 74 L.Ed.2d 402 Eisen v. legisla- cedure but because it is what the State, (Minn.1984)(a 352 N.W.2d 731 permits. ture employee has right appeal no an unfa vorable arbitration award in discharge SIMONETT, (concurring special- case where the union has decided not to ly)- court). the award to district In public employee-veteran has a words, other the union has a kind of dual hearing. to a Veteran’s Preference He interest, why brings which is it this lawsuit also has a under the collective bar- “for Itself and on Behalf of Its Member gaining contract to have union contest Employee Carl Hammerberg.” Hammer- proposed discharge arbitra- not, berg might noted, it be a named reason, however, tion. There is no why the party proceeding. to this pursue should *6 Consequently, though even weigh both remedies. He can the tactical requested has and received his advantages disadvantages of each fo- hearing, rum and then it seems to procedure pre- choose the he me that the not, however, fers. precluded We need union is not pursuing decide its employee's choosing case whether the grievance-arbitration.1 of a contract prejudicing arbitrators or goes misconduct appeals to the court of any party; under the Administrative Procedure Act. See (3) powers; The arbitrators exceeded their Minn.Stat. 481, Minn.Stat. § 197.- (4) postpone The arbitrators refused to (Supp.1983); subd. 6 hearing upon being sufficient cause shown (Supp.1983). therefor or refused hear evidence material legislature may placing The want to consider controversy to the or otherwise so conducted appeals from decisions of the Veteran’s Prefer- hearing, contrary provisions to the of sec- ence Board under the umbrella of the Adminis- 572.12, prejudice substantially tion rights as to process trative Procedure Act so that the due party; or requirements applicable of the Act are and so (5) There was no arbitration appeals proceed directly that those adversely the issue was not determined in appeals. proceedings par- under section ty participate did not in the arbitration hear- employee, 1. In case of a civil service PELRA ing raising objection; without expressly option states such has an But the fact that the relief was such that it grievance procedure either the or a civil service granted by could not or would not be a court appeal procedure provides that "once a ground equity vacating of law or is not appeal written properly has been refusing to confirm the award. by filed or submitted on employee’s 9. We note that while an from a Veteran’s behalf with employ- his consent the court, Hearing goes pursue Preference appeal to the district ee’s redress in the alternative from the denial of a to a Veteran's manner is terminated.” Minn.Stat. § Hammerberg gets two is that The result apple. Minnesota, Respondent,

bites STATE result, me, is wasteful it seems to confusing. There no need to have DeBAERE, Appellant. John J. independent discharge pro- separate, two No. C7-83-544. involved, regard- ceedings. The basic issue held, hearing is whether of which less Supreme Court Minnesota. employer just has cause to dis- Oct. employer charge employee. required prove its case

should says, respondent in its brief Even

twice. and unions no more anx-

“employees procedures go through repeated

ious to possible employers.” It should be

than are legislative solution

to devise employee’s right to choose

preserves the seeking remedy for reinstatement interest,

recognizes the union’s without procedures. But under

having duplicative wording of this reads, and as the law now it seems

contract respondent me is entitled to an arbitra- and, therefore, in the I concur

tion majority opinion. reached

result

PETERSON, (concurring special- Justice

ty)- special

I in the of Jus- join concurrence

tice Simonett.

KELLEY, (concurring specially). of Jus- join

I concurrence

tice Simonett.

COYNE, (concurring specially). of Jus- join

I in the concurrence

tice Simonett. instance, legis- employee’s option, (Supp.1983). In

subd. 1 require the union to abide lature seems