# Smith v. City of Oklahoma City > Court of Civil Appeals of Oklahoma · February 15, 2013 · 303 P.3d 921 URL: https://www.frixlaw.com/law-library/cases/5158671 ## Case - **Full name:** Kevin SMITH v. CITY OF OKLAHOMA CITY - **Court:** Court of Civil Appeals of Oklahoma - **Decided:** February 15, 2013 - **Citations:** 303 P.3d 921; 2013 OK CIV APP 44; 2013 Okla. Civ. App. LEXIS 30; 2013 WL 2326415 - **Precedential status:** Published - **Opinion:** Dissent by Mitchell - **Judges:** Bell, Hetherington, Mitchell - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5158671 ## Opinion text MITCHELL, J., dissents. 19 Because the district court lacked subject matter jurisdiction to hear Smith's claim for wrongful termination, I respectfully dissent. The central issue in this case is whether Section 8.3 of the Collective Bargaining Agreement (CBA) entered into between the *927 City (Employer) and the Plaintiff's representative Union provides the exclusive procedure for settling employee grievances covered by that agreement. I believe that it does. 1 20 Section 8.3 provides: Controversy between the Employer and the Bargaining Agent or any other employee concerning the interpretation, enforcement or application of any provision of this Agreement, concerning any of the terms or conditions of employment contained in this Agreement shall be considered a contract grievance and adjusted in the following manner. The CBA then outlines the procedures to be followed should a grievance arise. The final step in the process is the optional submission of the grievance to arbitration. The majority focuses on the use of the term "may" rather than "shall" when stating that grievances "may be submitted to arbitration for adjustment," concluding that the result of this use of language is a finding that the entire grievance procedure was not intended by the parties to be the exclusive procedure available to employees. However, the use of the term "may" in Section 8.4 only establishes the discretion that exists on behalf of the Union, whom the employees, including Plaintiff, elected as their bargaining agent for purposes of entering into the CBA with Employer. The Union may determine which grievances are meritorious and should be submitted to arbitration. Section 8.3 makes clear that the grievance procedure is the only procedure intended to be used to settle disputes with Employer. Should the Union elect to submit a grievance to arbitration, it may do so pursuant to the terms of the CBA; however, it is not necessary that the CBA provide that all grievances shall be submitted to arbitration. If all grievances were required to go to arbitration it would render meaningless the several other previous steps in the grievance process. 121 In Voss v. City of Oklahoma City, 1980 OK 148 , 618 P.2d 925 , the Oklahoma Supreme Court interpreted a provision in a collective bargaining agreement nearly identical to the provision at issue in this case. 4 There, the Court found that "[the grievance provisions of the collective bargaining agreement controlled the procedure to be followed in the settlement of grievances." Id. ¶8, 618 P.2d at 928 . Although Voss is distinguishable in that it involved the Fire and Police Arbitration Act, I find the analysis in Voss equally persuasive in a case such as this, involving a voluntary agreement between parties that contains a grievance procedure intended by the parties to be an exclusive remedy. T 22 There is further support for this conclusion in City of Yukon v. Int'l Ass'n of Firefighters, Local 2055, 1990 OK 48, ¶ 8 , 792 P.2d 1176, 1179 , in which the Oklahoma Supreme Court recognized the Voss Court's adoption of the U.S. Supreme Court's opinions in the Steelworkers Trilogy cases. 5 "Onee it is established that there is a collective bargaining agreement with an arbitration clause broad enough to include the dispute the role of this Court is strictly limited to determining whether the arbitrator exceeded his authority under the collective bargaining agreement." Id. The distinguishing fact in the instant case is that the grievance was not submitted to arbitration by the Union. However, the Union's decision not to submit a dispute to arbitration does not result in an employee gaining the right to go outside the grievance procedure provided in the CBA to obtain redress, absent additional cirenmstances. 6 *928 T 23 "Generally, when a collective bargaining agreement establishes a mandatory, binding grievance procedure and gives the Union the exclusive right to pursue claims on behalf of aggrieved employees, the results obtained by the union are normally conclusive of the employee's rights under the agreement." Elstner v. Southwestern Bell Tel. Co., 659 F.Supp. 1328, 1337 (S.D.Tex.1987) (citing Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 , 96 S.Ct. 1048 , 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171 , 87 S.Ct. 903 , 17 L.Ed.2d 842 (1967)). "The policy behind this doctrine is that when a dispute arises within the seope of the collective bargaining agreement, the parties are relegated to the remedies which they provided in their agreement." Id. (citing Republic Steel Corp. v. Maddox, 379 U.S. 650 , 85 S.Ct. 614 , 13 L.Ed.2d 580 (1965). I find nothing in our jurisprudence to suggest that Oklahoma law would require a different result in this case. In Voss, the Oklahoma Supreme Court found that a collective bargaining agreement limits employees "to the rights and remedies specified therein." 1980 OK 148, ¶8 , 618 P.2d at 928 . An employee who selects the union as his bargaining representative empowers the Union to act as agent on the employee's behalf when entering into negotiations with employer. See Humphrey v. Moore, 375 U.S. 335, 342 , 84 S.Ct. 363, 368 , 11 L.Ed.2d 370 (1964). "Unless some improper discrimination against the individual is inherent in the system or is likely to be brought to bear against him in the particular case by the employer or the union through control of the procedure, the grievance procedure delineated in a collective bargaining agreement should be regarded as the exclusive method of adjusting grievances." Voss, 1980 OK 148, ¶ 9 , 618 P.2d at 929 . "A contrary rule which would permit an individual employee to completely sidestep available grievance procedures" would subvert the parties' interests in entering into a collective bargaining agreement, and "would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances," and "would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements." Republic Steel Corp. v. Maddox, 379 U.S. 650, 653 , 85 S.Ct. 614, 616-17 , 13 L.Ed.2d 580 (1965). See generally, United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580-81 , 80 S.Ct. 1347, 1351-52 , 4 L.Ed.2d 1409 (1960). 1 24 I am persuaded that this authority is in accordance with the law in Oklahoma, and that a proper construction of the language in the CBA in this case renders the district court without jurisdiction to hear Plaintiff's claim, absent extenuating cireumstances which Plaintiff did not allege. 7 See infro note 3. Based on the foregoing reasons, I respectfully dissent. . The collective bargaining agreement in Voss provided: "Any controversy between the Employer and the Union or any employee concerning the interpretation, enforcement or application of any provision of this Agreement, concerning any terms or conditions of employment contained in this Agreement, shall be adjusted in the following manner." 1980 OK 148, n. 1 , 618 P.2d 925 . . United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 , 80 S.Ct. 1347 , 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Mfg. Co., 363 U.S. 564 , 80 S.Ct. 1343 , 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Enter. Wheel & Car Corp., 363 U.S. 593 , 80 S.Ct. 1358 , 4 L.Ed.2d 1424 (1960). . An employee who contends that his/her rights pursuant to a collective bargaining agreement have been compromised may have available alternative remedies, although not yet recognized in Oklahoma. Wilcoxson v. Tackett, 2002 OK *928 CIV APP 24, 113 , 41 P.3d 1024, 1028 . "Such alternative remedies include an action against the employer for breach of contract, if the employee can demonstrate that the union acted unfairly, or based on a third-party beneficiary theory of recovery, if the grievance is not resolved by first resorting to the arbitration procedure set forth in the collective bargaining agreement," or "an action against the bargaining representative for breach of the duty of fair representation." Id. . The majority's reliance on Shaffer v. Jeffery, 1996 OK 47 , 915 P.2d 910 , and City of Muskogee v. Martin, 1990 OK 70 , 796 P.2d 337 , for the contention that the district court had jurisdiction to hear Plaintiff's claim, is also misplaced. Both cases supported the proposition that the district court has jurisdiction only for the limited purpose of determining whether a dispute is arbitra-ble. See Shaffer, 1996 OK 47, ¶7 , 915 P.2d at 913 ; City of Muskogee, 1990 OK 70, ¶¶17, 22 , 796 P.2d at 343-44 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5158671. Public record. Not legal advice.