dissenting.
130 Because I conclude that plaintiff, Steve Brown, was not required to further exhaust his contractual remedies under the Collective Bargaining Agreement (CBA) before litigating his breach of contract claim against defendant, Jefferson County School District No. R-1 (the District), I respectfully dissent. Specifically, I disagree with the majority for four reasons: (1) because this case presents a question of exhaustion of contractual remedies, rather than exhaustion of administrative remedies, it was properly decided on summary judgment; (2) neither the CBA nor case law requires that the Board must issue a final order for the court to have jurisdiction; (@@) Brown should not be required to further exhaust his contractual remedies after prevailing before the hearing officer, because the District repudiated the hearing officer's decision; and (4) it is clear *984that further review under the grievance procedures of the CBA would have been futile.
I. Summary Judgment
131 Initially, I disagree with the majority and the trial court that this case should be analyzed under the doctrine of exhaustion of administrative remedies, rather than under the doctrine of exhaustion of contractual remedies. I acknowledge that Brown does not expressly rely on the doctrine of exhaustion of contractual remedies. However, he has consistently argued that the determination of the hearing officer in the step three grievance phase is binding on the District, and that he has exhausted his administrative remedies, and therefore, no further pursuit of remedies under the CBA is necessary.
1 32 Significantly, both parties cited to the trial court in their eross motions for summary judgment, Jefferson County School District R-1 v. Shorey, 826 P.2d 830 (Colo.1992), a case indisputably addressing the issue of failure to exhaust contractual remedies under a collective bargaining agreement. There, the supreme court noted that where a grievance procedure in a collective bargaining agreement is the "exclusive" remedy available to an employee, the employee must utilize and exhaust the grievance process before filing a claim for breach of contract against the employer. Id. at 844. The Sho-rey court held, however, that several exceptions apply to the requirement that claimants exhaust all remedies under the grievance procedure in a collective bargaining agreement, including when the employer's conduct amounts to a repudiation of the grievance procedure contained in the collective bargaining agreement. Id. (citing Vaca v. Sipes, 386 U.S. 171, 184, 185, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)). The term "repudiation" applies to breaches of contract. See Lake Durango Water Co., Inc. v. Public Utilities Com'n, 67 P.3d 12, 21 (Colo.2003).
$383 In arguing in the trial court that Brown failed to exhaust his administrative remedies, the District contended that "the exhaustion doctrine serves as a threshold to judicial review that requires parties in a civil action to pursue available statutory administrative remedies before filing suit in district court." Significantly, however, the District acknowledged in a footnote that the cases upon which it relied for this proposition address only situations where Colorado statutes outline an administrative review procedure, whereas in the present case, "the parties contractually agreed to be bound by an administrative grievance procedure.... In both instances the policy reasons favoring the exhaustion doctrine remain the same." Thus, even the argument advanced in the trial court by the District should have put the trial court on notice that the issue here concerned failure to exhaust administrative remedies under the grievance procedure of the CBA, a procedure different from exhaustion of administrative remedies pursuant to a statutory scheme.
34 Additionally, Brown's contention that he was not required to exhaust administrative remedies under the CBA, and both parties' citation to Shorey, which concerned exhaustion of contractual remedies, further alerted the trial court to the distinction between exhaustion of administrative and contractual remedies
1 35 Under these cireumstances, I conclude that Brown sufficiently raised an argument regarding failure to exhaust contractual remedies. See Blades v. DaFoe, 704 P.2d 317, 322, 323 (Colo.1985) (court considered plaintiffs' objections to peremptory challenges notwithstanding that they did not cite C.R.C.P. 47(b); BS & C Enterprises, LL. C. v. Barnett, 186 P.3d 128, 130 (Colo.App.2008) {court addressed defendant's argument regarding motion to set aside default judgment even though he did not cite C.R.C.P. 55(b), concluding that his argument "sufficed to focus the trial court's attention on the correct issue").
136 Accordingly, I address whether the proper analytical framework here is exhaustion of contractual remedies or exhaustion of administrative remedies, and conclude that the proper framework is the former.
137 As the trial court noted, Brown was a member of the Classified School Employees Association (CSEA) and was a third-party beneficiary of the terms and conditions of the CBA entered into between the District and CSEA.
*985138 Relying on Shorey, 826 P.2d at 844, the trial court noted that where a grievance procedure in a collective bargaining agreement is the exclusive remedy available to an employee, the employee must utilize and exhaust that grievance process before filing a claim for breach of contract against the employer. The trial court concluded that the CBA here satisfies the exclusivity rule.
139 Significantly, however, both the trial court and the parties in their briefs conflated the notions of exhaustion of administrative remedies and exhaustion of contractual remedies.
40 While recognizing the applicability of Shorey, the trial court nevertheless applied cases dealing with administrative remedies, and conclude that failure to exhaust administrative remedies "will strip a court of subject matter jurisdiction." See State v. Golden's Concrete Co., 962 P.2d 919, 923 (Colo.1998).
1 41 However, the doctrine of exhaustion of administrative remedies differs significantly from the doctrine of exhaustion of contractual remedies, although the two concepts are somewhat similar.11 The doctrine of exhaustion of administrative remedies is predicated on the establishment of an administrative review process by statute, regulations, or both. See Horrell v. Dep't of Admin., 861 P.2d 1194, 1197 (Colo.1993) (where administrative remedies are provided by statute, the statutory procedure must be followed when the matter complained of is within the jurisdiction of the administrative authority). The doctrine of exhaustion of contractual remedies, in contrast, is based on the specific provisions of a contract,12 such as the CBA here. Both doctrines share the general principle that exhaustion of remedies should be followed, subject to specified exceptions.
142 In New Design Construction Co. v. Hamon Contractors, Inc., 215 P.3d 1172, 1178 (Colo.App.2008), a division of this court observed that the doctrine of. administrative remedies "applies typically in a controversy between a private party and a governmental agency, which has its own administrative review process, often involving a hearing before a hearing officer or administrative law judge and possibly involving several tiers of administrative review." In contrast, the division noted, in that case, the dispute involved parties to a subcontract containing a form of alternative dispute resolution, a kind of arguably mandatory arbitration, in which they agreed to follow and incorporate a state administrative review procedure. This analysis makes clear that the doctrine of exhaustion of administrative remedies and the doctrine of exhaustion of contractual remedies are different.
T43 Although the dispute here between Brown and the District is between a private party and a governmental entity, it does not implicate the doctrine of exhaustion of administrative remedies. Rather, the doctrine of exhaustion of contractual remedies applies because the administrative framework here arises under the CBA, a contract between the District and the CSEA.
"I 44 The significant difference between the two doctrines is that, as noted, failure to *986exhaust administrative remedies, in the absence of an applicable exception, deprives a court of subject matter jurisdiction. In contrast, an employee's failure to pursue contractual remedies may provide a contractual defense to an employer, but such failure does not deprive a court of subject matter jurisdiction. See id. at 1179 (failure to exhaust remedies provided by contract does not result in lack of subject matter jurisdiction); see also Vaca, 386 U.S. at 184, 87 S.Ct. 903.
145 Because a court is not deprived of subject matter jurisdiction when an employee fails to exhaust contractual remedies, a summary judgment motion is the appropriate method to decide a dispute as to exhaustion, and not a C.R.C.P. 12(b)(1) motion, which concerns subject matter jurisdiction. Thus, I disagree with the majority in this regard.
II. Finality of Decisions by the Board of Education
1 46 The majority concludes in the absence of a final order from the Board, the trial court lacked jurisdiction to review Brown's claims. In my view, this conclusion is incorrect because it is inconsistent with the very notion of a multi-step grievance process and further, it is not supported by case law.
Section 6-3 of the CBA's grievance procedure states that the procedure is to provide a "fair, formal, and expeditious manner of resolving differences" regarding matters involved in the agreement. As one treatise has noted, when a settlement is reached under a prearbitration grievance process under a collective bargaining agreement, the parties are bound by it. 3 James A. Rapp, Education Law § 7.08[2](a) (2011). Because the CBA provides a four-step grievance procedure, resolving disputes at the initial stages encourages their expeditious resolution. To conclude otherwise would mean that every dispute would have to be pursued through all four steps of the grievance procedure, and then be decided by the Board. Presumably, the multi-step grievance procedure was established so that many disputes would be resolved at one of the four steps of the grievance procedure, without the necessity of a final decision by the Board.
48 As noted, the grievance procedure in the CBA is the exclusive remedy available to an employee, but nothing in the CBA requires that all grievances must be decided by the Board after the four-step grievance procedure has been utilized. To the contrary, section 15-1-1 of the CBA provides that the District shall have the right to discharge employees for just cause; the specific involvement of the Board is not required. Similarly, section 2-9 of the CBA provides, as relevant here, that the Board's authority to discharge employees is not in any manner impaired by or through the execution and performance of the CBA. Nevertheless, this provision does not require that the Board act on every termination or other disciplinary decision.
149 In a similar case involving the discharge of a school custodian, a division of this court held that an arbitrator's nonbinding decision that was part of a three-tier grievance procedure between the CSEA and the District did not preclude the custodian from filing a lawsuit against the District The division also rejected the District's contention that the custodian's claim was barred by administrative collateral estoppel, concluding that, notwithstanding the three-tier grievance procedure, "this case involves no administrative proceeding." Hoffsetz v. Jefferson County School Dist. No. R-1, 757 P.2d 155, 157 (Colo.App.1988).
1 50 In addition, Littleton Education Ass'n v. Arapahoe County School District No. 6, 191 Colo. 411, 553 P.2d 793 (1976), relied on by the majority, does not hold that a board of education must always be involved in individual employment decisions. Rather, in holding that collective bargaining agreements in the public sector are not per se invalid, the supreme court held that voluntary negotiations between an employer and an employee organization do not require the employer to agree with the employees' proposals, because ultimate decisions regarding employment "terms and conditions remain exclusively with the board." Id. at 415, 553 P.2d at 797. Thus, the supreme court did not hold that a board of education must decide every dispute using a grievance procedure in a collective bargaining agreement.
{51 Further, the cases relied on by the majority are distinguishable. Adams County School District No. 50 v. Heimer, 919 P.2d *987786, 789 (Colo.1996), involved the propriety of the dismissal of a teacher under the Teacher Employment, Compensation, and Dismissal Act of 1990, sections 22-63-101 to -403, C.R.S.2011. Under that statutory scheme, a board of education must review a hearing officer's findings of fact and recommendations and enter a written order. That is not the case here.
1 52 In Greeley Police Union v. City Council of Greeley, 191 Colo. 419, 422, 553 P.2d 790, 792 (1976), the principal issue was the validity of a Greeley City Charter amendment providing for collective bargaining and compulsory, binding arbitration of all unresolved municipal-police union labor disputes arising from collective bargaining. The supreme court concluded that binding arbitration of public sector labor disputes was not constitutionally permissible. However, that holding has no application here, because step four of the administrative review process involves nonbinding arbitration and, in any event, the applicability of the arbitration phase of the grievance procedure is not at issue.
58 Accordingly, I conclude that there is no requirement under the CBA or case law to have the five elected Board members review the District's compliance with the grievance process.
III. Repudiation as an Exception to Requirement of Exhausting Contractual Remedies
{54 As noted above, an employee must ordinarily exhaust grievance procedures set forth in the CBA when the grievance procedure is the exclusive remedy available to the employee, as is the case here. Nevertheless, courts have noted three exceptions to the requirement of exhausting contractual remedies, one of which, as relevant here, is conduct of an employer that amounts to a repudiation of contractual procedures. Although the trial court here did not note this exception or the other exceptions, the Shorey court stated:
One such exception [to the requirement that an employee exhaust his or her contractual remedies] involves the situation where "the conduct of the employer amounts to a repudiation" of the grievance[ ] procedure contained in the collective[l ] bargaining agreement. Vaca, 886 U.S. at 185 [87 S.Ct. 908].... In that situation "the employer is estopped by [its] own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee's cause of action." Id. The employee, therefore, when confronted with the employer's repudiation of the grievance process, is not limited to the grievance procedure of the collective[] bargaining agreement and may sue the employer for breach of contract. Id.
826 P.2d at 844 (footnote omitted).13
155 "Repudiation" is a statement by a contractual party that he or she will not or cannot perform or a voluntary act that renders him or her unable to perform without a breach. Restatement (Second) of Contracts § 250 (1981). In Colorado, repudiation of a contract "must consist of a present, positive, unequivocal refusal to perform the contract, not a mere threat to abandon [the party's] obligations under the contract." Lake Durango Water Co., 67 P.3d at 21.
156 Here, the hearing officer concluded that the district and CSEA needed "to come to an agreement on the terms of reinstating Mr. Brown without giving him full back pay because of the seriousness of his actions."
157 In support of its summary judgment motion, the District presented the affidavit of Robert Archibold, executive director of employee relations for the District. Archibold averred that he had attended Brown's step-three administrative hearing, and, "[Alfter reviewing the hearing officer's decision where she recommended that the school district reinstate Steve Brown, I spoke to Bob Brown, the plaintiff's union representative, and told him that the school district was not going to accept the step three hearing offi*988cer's step three recommendation." The affidavit added, "I advised Bob Brown that if CSEA disagreed with the school district's decision, the CSEA could file a request for a step four advisory arbitration." In my view, this statement by Archibold constituted a repudiation of the grievance procedure contained in the CBA.
158 Section 15-1-1 of the CBA provides that the District shall have the right to discharge employees "for just cause as defined in section 1-10." That section, in turn, defines just cause as requiring the exercise of good faith. Specifically, section 1-10 defines just cause as "fair and adequate cause, which is based on reasonable grounds and governed by the exercise of good faith."
159 "Good faith" connotes "faithfulness to one's duties or obligations." Black's Law Dictionary 762 (Oth ed.2009). In the context of contract performance, the term "emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party." Restatement (Second) of Contracts § 205 emt. a (1981).
160 Archibold's affidavit demonstrated that the District was not acting in good faith and had repudiated the grievance procedure contained in the CBA. Under its duty of good faith, the District had an obligation to negotiate with Brown concerning the terms of his reinstatement. However, the record is devoid of any evidence that the District made any effort to do so. Instead, it expressly refused to accept the step-three hearing officer's recommendation.
161 This action constituted a repudiation of the grievance procedure contained in the CBA. See Shorey, 826 P.2d at 845 (school district repudiated level-three advisory arbitration, thereby exeusing employee from exhausting contractual remedies). Had the District engaged in negotiations with Brown in an attempt to reach mutually agreeable terms for his reinstatement, but was unable to do so, it would have satisfied its obligation to negotiate in good faith and would not have repudiated the grievance procedures of the CBA.
* 62 However, by refusing to negotiate with Brown, the District attempted to turn the doctrine of exhaustion of contractual remedies on its head by requiring a prevailing party to continue to pursue his remedies under the grievance procedure contained in the CBA. The District has cited no case law, and I am aware of none, holding that a prevailing party is required to pursue contractual remedies (or administrative remedies, for that matter) simply because the loging party declines to follow an administrative hearing officer's decision.
163 Consequently, I would conclude Brown was not required to exhaust his contractual remedies on the basis of repudiation by the District.
IV. Futility as a Basis for Not Exhausting Contractual Remedies
1 64 A second exception to the requirement to exhaust contractual remedies occurs when an employee can show it would be futile to follow a grievance process. Vaca, 386 U.S. at 186-87, 87 S.Ct. 903; see also Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 330, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969). In my view, this exception also applies to the circumstances here.
T65 Contrary to the majority's opinion, I believe it would have been futile for Brown to pursue his contractual remedies by seeking an arbitration hearing. (Given Archibold's statement that "the school district was not going to accept the step three hearing officer's recommendation," there is no reason to believe that the District would have concluded otherwise following an arbitration hearing.
T 66 In other words, the District set up a grievance process review procedure under which only it could prevail. Whether Brown prevailed before the hearing officer or before an arbitrator, the result in all probability would be that the District would decline to follow any recommendation in favor of Brown. Under such cireamstances, requiring Brown to participate in the step-four arbitration process would be the very definition of futility. Under the doctrine of exhaustion of contractual remedies, as distinguished from the doctrine of exhaustion of administrative remedies, Brown need not show that it would be futile beyond a reasonable doubt, see Golden's Concrete Co., 962 P.2d at 923, to have exhausted his contractu*989al remedies. However, even if that standard were to apply here, I would conclude that it is clear beyond a reasonable doubt that it would have been futile for Brown to exhaust his contractual remedies.
11 67 Accordingly, I would reverse the judgment of the district court and remand for further proceedings on the merits.
. See Marcelus v. Corrections Corp., 540 F.Supp.2d 231, 236 (D.D.C.2008) (in case involving exhaustion of administrative remedies and exhaustion of contractual remedies, court noted that an employee must similarly exhaust any grievance and arbitration procedures provided by collective bargaining agreement); Cone v. Union Oil Co., 129 Cal.App.2d 558, 564, 277 P.2d 464, 468 (1954) (rule requiring exhaustion of grievance in arbitration procedures under collective bargaining agreement is analogous to the rule requiring exhaustion of administrative remedies as a condition precedent to resorting to the courts).
. The general rule regarding exhaustion of contractual procedures was set forth in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), in which the Supreme Court determined that an employee must first attempt to utilize his or her grievance procedures before proceeding under section 301 of the Labor Management Relations Act. Binkley v. Loughran, 714 F.Supp. 776, 779-80 (M.D.N.C.1989). Courts addressing the rule regarding the exhaustion of contractual remedies have used various terms to describe it. See, e.g., Sanders v. Youthcraft Coats & Suits, Inc., 700 F.2d 1226 (8th Cir.1983) (employee must exhaust her contractual remedies under the collective bargaining agreement); Coe v. United Rubber Workers, 571 F.2d 1349 (5th Cir.1978) (employee must exhaust grievance procedures); City of Miami v. Fraternal Order of Police, 378 So.2d 20 (Fla.Dist.Ct.App.1979) (discharged probationary police officers must exhaust their extrajudicial or administrative remedies).
. While the majority correctly notes that the Shorey court affirmed a stay of Shorey's breach of contract claim pending completion of level-three arbitration, which the school district had repudiated, Shorey is distinguishable. There, Shorey and the employee association sought as one form of relief an order requiring the school district to engage in arbitration. See Shorey, 826 P.2d at 835. That is not the case here.