Am. Fed'n of State, Cnty., & Mun. Emps., Dist. Council 20, Local 2087, AFL–CIO v. Univ. of the D.C.

• Decision Date: 17 August 2017
• Docket Number: No. 13–CV–1024,13–CV–1024
• Parties: AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, DISTRICT COUNCIL 20, LOCAL 2087, AFL–CIO, Appellant, v. UNIVERSITY OF THE DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

166 A.3d 967

AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, DISTRICT COUNCIL 20, LOCAL 2087, AFL–CIO, Appellant,

v.UNIVERSITY OF THE DISTRICT OF COLUMBIA, Appellee.

No. 13–CV–1024

District of Columbia Court of Appeals.

Argued February 14, 2017

Decided August 17, 2017

Brenda C. Zwack, with whom Lisa M. Manson was on the brief, for appellant.

Anessa Abrams, with whom Gary L. Lieber was on the brief, for appellee.

Before Blackburne–Rigsby, Chief Judge,^* and Washington^† and Ferren, Senior Judges.

Blackburne–Rigsby, Chief Judge:

The critical dispute before the court is whether the arbitrator in this case exceeded his authority or contravened public policy by awarding attorney's fees, where the parties' Collective Bargaining Agreement ("CBA") is silent on the issue of attorney's fees. Appellant American Federation of State, County, and Municipal Employees, District Council 20, Local 2087, AFL–CIO ("AFSCME") seeks review of an order of the Superior Court vacating and remanding a decision by the District of Columbia Public Employee Relations Board ("PERB" or "Board") that affirmed an arbitration award of attorney's fees to AFSCME, to be paid by appellee University of the District of Columbia ("UDC" or "University").¹ The PERB concluded that the arbitrator was authorized to award attorney's fees under the arbitrator's inherent equitable powers. Judge Anthony C. Epstein, however, vacated the award because the arbitrator did not explicitly indicate whether the arbitration award was based on the CBA. We conclude that the arbitrator did not exceed his authority by granting attorney's fees under his inherent equitable powers and that the award does not contravene public policy. Accordingly, we reverse the Superior Court's decision to remand and reinstate the PERB's decision affirming the arbitration award. See D.C. Code § 1–605.02 (6) (2012 Repl.).

I. Factual and Procedural Background

AFSCME filed a grievance against UDC on behalf of two union employees under the parties' CBA, after the employees were terminated by UDC for misuse of University funds. The parties went to arbitration before Arbitrator Michael Wolf, who found in favor of AFSCME, in part. He determined that the two union employees should have been given thirty-day suspensions, instead of being terminated. In a supplemental award, Mr. Wolf also awarded AFSCME reimbursement of reasonable attorney's fees that it incurred representing the two employees in the arbitration process. Although the CBA is silent on the issue of reimbursement of attorney's fees, Mr. Wolf concluded that AFSCME was entitled to reimbursement of reasonable attorney's fees under the authority of the federal Back Pay Act ("BPA"). See 5 U.S.C. § 5596 (b)(1)(A)(ii) (2014).²

Although "[t]he Council of the District of Columbia itself has never promulgated regulations to implement the Back Pay Act, which is a vestige of the patchwork system in effect prior to the passage of Home Rule in 1973 [,]" this court has held "that the Back Pay Act continues to apply to District employees under the broader [Comprehensive Merit Personnel Act ("CMPA") ] policies of maintaining all ‘concrete personnel entitlements or benefits' or their equivalents for employees hired before the CMPA ... and maintaining the pre-CMPA ‘compensation system’ for all employees whenever hired until a new one is enacted to replace it." Am. Fed'n of Gov't Emps. v. District of Columbia Water and Sewer Auth. , 942 A.2d 1108, 1112–13 (D.C. 2007) (citations omitted) (" AFGE " ); see also White v. District of Columbia Water and Sewer Auth. , 962 A.2d 258, 259 (D.C. 2008) (per curiam). In White , we explained, however, that government entities statutorily eligible for CMPA exemption,³ such as then-Water and Sewer Authority ("WASA"),⁴ that adopt a new, comprehensive personnel and compensation system for its employees are exempt from "the CMPA-and with it, the counsel fees provisions [under the BPA] included in its compensation system." 962 A.2d at 259.⁵

After conducting a thorough analysis of the CMPA provisions governing UDC employees, our decision in White , and the BPA, Mr. Wolf concluded that the BPA's provision for the reimbursement of attorney's fees could be, and should be, applied to this case.⁶ Specifically, he concluded that AFSCME is entitled to reimbursement of attorney's fees from UDC because UDC, as a governmental entity under the CMPA, had not adopted or implemented a comprehensive personnel and compensation system for its "Career Service" employees, to which the two aggrieved employees belonged.⁷ Mr. Wolf found that "major aspects" of UDC's Career Service employee system were still governed by the CMPA—for example, he noted that "negotiations with the University's Career Service employees has for many years been undertaken by the Mayor's Office of Labor Relations and Collective Bargaining on behalf of numerous D.C. agencies." Yet, while Mr. Wolf provided extensive analysis on why the BPA could be applied to the facts here, Mr. Wolf did not explain which provision within the parties' CBA authorized him to award reasonable attorney's fees to AFSCME. See, e.g. , Howard Univ. v. Metro. Campus Police Officer's Union , 519 F.Supp.2d 27, 32–33 (D.D.C. 2007) ("The genesis of arbitral authority is the contract, and arbitrators are permitted to decide only those issues that lie within the contractual mandate.") (citation and brackets omitted).

Following Mr. Wolf's decision, UDC filed an arbitration review request with PERB, arguing that the arbitrator exceeded his authority by granting the award, and that the award was also contrary to law and public policy. See D.C. Code §§ 1–605.01 to – 605.04 (2012 Repl.) (establishing and identifying the powers of the Public Employee Relations Board). In its Decision and Order, the PERB affirmed the arbitration award. The PERB concluded that the award was not contrary to law and public policy based on Mr. Wolf's analysis and application of the White decision to UDC's Career Service employees. The PERB further concluded that Mr. Wolf did not exceed his authority by looking to the BPA and granting AFSCME attorney's fees under the BPA because PERB "has long held that an arbitrator does not exceed his authority by exercising his equitable power, unless it is expressly restricted by the parties' collective bargaining agreement."See District of Columbia Metro. Police Dep't v. Fraternal Order of Police/Metro. Police Dep't Labor Comm. , PERB Case No. 06–A–05, at *4 (Aug. 27, 2012).

UDC then filed a petition for review of PERB's decision with Superior Court. See Super. Ct. Civ. Agency Rev. R. 1 (g) (stating that the Superior Court "shall base its decision ... upon the administrative record and shall not set aside the action of the agency if supported by substantial evidence in the record as a whole and not clearly erroneous as a matter of law"); see also Nunnally v. District of Columbia Metro. Police Dep't , 80 A.3d 1004, 1006–07 (D.C. 2013) (holding that certain agency decisions should first be reviewed by the Superior Court). Judge Epstein vacated the award and remanded the case to the PERB, concluding that the arbitrator failed to explain his authority for granting attorney's fees. Judge Epstein determined that the arbitrator granted attorney's fees based on his interpretation of the BPA, but that the BPA was never explicitly mentioned in the parties' CBA, and that the arbitrator "did not purport to construe or apply the CBA when he decided to award attorney['s] fees under the [BPA]." Thus, in the judge's view, "[b]ecause the record [provided] no basis for PERB or the [c]ourt to conclude that the [a]rbitrator's award of attorney['s] fees was arguably based on an interpretation of the CBA, the [a]rbitrator exceeded his authority."⁸ AFSCME now appeals Judge Epstein's decision to remand the arbitration award and asks this court to reinstate the PERB's decision.⁹

II. Discussion

It is important to note that "[a]lthough this is an appeal from a review of agency action by the Superior Court rather than a direct appeal to this court, we review the PERB decision as if the matter had been heard initially in this court." Gibson v. District of Columbia Pub. Emp. Relations Bd. , 785 A.2d 1238, 1241 (D.C. 2001). Accordingly, while we respect the trial court's decision, we are not required to accord legal deference to its ruling. Moreover, our review of the PERB is limited; we "must sustain the Board's decision if it is supported by substantial evidence in the record as a whole and not clearly erroneous as a matter of law." Id. (citations and internal quotation marks omitted). Accordingly, "[u]nless ‘rationally indefensible,’ a PERB decision must stand." Fraternal Order of Police/Dep't of Corrections Labor Comm. v. District of Columbia Pub. Emp. Relations Bd. , 973 A.2d 174, 176 (D.C. 2009).

Further, PERB's review of an appeal of an arbitration award is, likewise, limited. District of Columbia Pub. Emp. Relations Bd. v. Fraternal Order of Police/Metro. Police Dep't Labor Comm. , 987 A.2d 1205, 1208 (D.C. 2010). PERB may only modify, set aside, or remand an arbitrator's decision "if the arbitrator [1] was without, or exceeded, his or her jurisdiction; [2] the award on its face is contrary to law and public policy; or [3] [the award] was procured by fraud, collusion, or other similar and unlawful means ...." D.C. Code § 1–605.02 (6).

To resolve the issue of whether the arbitrator's decision to grant AFSCME attorneys' fees under the BPA exceeded his authority or was contrary to law and public policy, we first examine UDC's argument that the arbitration award of reasonable attorney's fees to AFSCME based on the BPA was "contrary to law and public policy." UDC claims that, contrary to Mr. Wolf's and the PERB's decisions, UDC had established its own comprehensive personnel and compensation system based on the criteria we set forth in White . UDC further claims that the DPM had superseded the BPA. Essentially, UDC...