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Nibbs v. Felix

January 31, 1984

EURICE NIBBS, APPELLANT
v.
OTIS FELIX, COMMISSIONER OF PUBLIC SAFETY, GOVERNMENT OF THE VIRGIN ISLANDS



Appeal from the District Court of the Virgin Islands Division of St. Thomas

Author: Rosenn

Before HUNTER, WEISS, and ROSENN, Circuit Judges

Opinion OF THE COURT

ROSENN, Circuit Judge

This case requires us to decide whether a policewoman must prove her claim to promotion under the grievance and arbitration procedures of an expired collective bargaining agreement or may pursue statutory relief before the Government Employees Service Commission (GESC). GESC concluded that the grievance and arbitration procedures under the contract survived the expiration of the contract term and by order dated August 27, 1982 directed the parties to proceed, if the appellant so desired, to final and binding arbitration. The appellant, Eurice Nibbs, however, petitioned the District Court of the Virgin Islands for review. The district court denied the petition for review. Nibbs timely appealed to this court. We affirm.

I.

In June 1982, the police department in the Virgin Islands promoted some of its employees to the position of sergeant. Eurice Nibbs was not promoted; she claims that others who stood lower on the eligibility list (based on a promotion examination) were advanced. Nibbs consulted a lawyer who advised her that even though she wished to pursue independently a grievance with the Government Employees Services Commission, she might be required to proceed under the grievance procedures of a 1978 written collective bargaining agreement between the Department of Public Safety and the Police Benevolent Association, Service Employees International Union, and Local 816 (PBA). Nibbs preferred to pursue her statutory remedies rather than arbitrate. She timely filed a letter of appeal with GESC pursuant to the Virgin Islands statutory procedures. To preserve her rights, she also requested her union representative to initiate grievance proceedings on her behalf within the three days allotted under the collective bargaining agreement.

The collective bargaining agreement between the Department of Public Safety and the Police Benevolent Association expired a year before Nibbs brought her grievance. Nibbs argues that employees were therefore not required to pursue the grievance procedures of the expired contract.

Nibbs emphasizes that prior to the implementation of the collective bargaining agreement, employees with grievances could bring them before GESC under subchapter IV of the personnel merit system, V.I. Code Ann. tit. 3, §§ 521-533 (1967 & Supp. 1982). Act 4251 of the Virgin Islands legislature, however, implemented the collective bargaining agreement and provided:

Notwithstanding any provision of law to the contrary, the conditions of employment of all . . . police . . . shall be governed through June 30, 1981, by the terms of the Agreement. . . .

1978 V.I. Acts 4251.

The law suspended the GESC procedures for remedying grievances in favor of the exclusive grievance procedures established in the agreement. Nibbs maintains that the personnel merit system resumed its effectiveness as of July 1, 1981, and that it provided Nibbs with a statutory remedy and grievance procedure independent of the contract.

Act 4440 was enacted in 1980, during the term of the collective bargaining agreement. It provides in pertinent part: "The benefits and privileges conferred upon public employees by Title 3, chapter 25 of this Code [personnel merit system] shall be applicable to public employees covered by a negotiated bargaining agreement only to the extent such benefits and privileges are specifically provided in such agreement." V.I. Code Ann. tit. 24, § 374(e) (Supp. 1982). This law repeals any statutory avenue of relief to which an employee covered by a collective bargaining agreement might have been entitled under the old personnel merit system. The legislature, having granted the employees grievance procedures under the personnel merit system, was free to rescind them with the new law, especially as they had already been superseded by the operative collective bargaining agreement. Contrary to Nibb's argument, the date listed in Act 4251 implementing ...


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