LOCAL 1714 v. PUBLIC EMP. RELATIONS BD.

• Decision Date: 22 August 1990
• Docket Number: No. 89-317,No. 89-338,89-317,89-338
• Citation: 579 A.2d 706
• Court: D.C. Court of Appeals
• Parties: TEAMSTERS LOCAL UNION 1714, et al., Appellant, v. PUBLIC EMPLOYEE RELATIONS BOARD, Appellee. DISTRICT OF COLUMBIA, Appellant, v. PUBLIC EMPLOYEE RELATIONS BOARD, Appellee.

579 A.2d 706

TEAMSTERS LOCAL UNION 1714, et al., Appellant, v. PUBLIC EMPLOYEERELATIONS BOARD, Appellee.DISTRICT OF COLUMBIA, Appellant, v. PUBLIC EMPLOYEE RELATIONS BOARD,Appellee.

Nos. 89-317, 89-338.

District of Columbia Court of Appeals.

Argued February 5, 1990.

Decided August 22, 1990.

Appeal from the Superior Court, Sylvia Bacon, J.

John R. Mooney, with whom Kathleen A. Murray and Elizabeth J. Head, Washington, D.C., were on brief, for Teamsters Local 1714.

Susan S. McDonald, Asst. Corp. Counsel, with whom Herbert O. Reid, Sr., Acting Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on brief, for District of Columbia.

Christopher A. Hart, Washington, D.C., for appellee Public Employee Relations Bd.

Before ROGERS, Chief Judge, and STEADMAN and FARRELL, Associate Judges.

STEADMAN, Associate Judge:

Both the governing statute and implementing regulations require that a decision on proposed disciplinary action against career District of Columbia employees be rendered within forty-five days of notice of such proposed action. This appeal involves the question of the effect of a failure to comply with this time provision. We remand the case for the Public Employee Relations Board to further consider and amplify its reasoning with respect to this question.

I

On March 8, 1986, Jean Harrod, a correctional officer at the District of Columbia Department of Corrections (the "Department"), failed to report to a "shakedown," or search, of inmates as requested by her supervisor. On April 8, 1986, the Acting Administrator of the Department approved a charge of insubordination against Harrod and recommended that she be given a five-day disciplinary suspension. On April 24, the Administrator sent an Advance Notice of Proposed Suspension to Harrod, which she received on May 1. The Notice informed Harrod of her right to file a reply, which Harrod did not exercise. On July 1, the Department issued its Final Decision ordering suspension, to be effective from July 22 to July 26.

On July 20, Harrod filed a grievance¹ stating, inter alia, that the Department had failed to issue its Final Decision within forty-five days of having issued its Advance Notice of Proposed Suspension, as provided in the District of Columbia Code and sections of the District of Columbia Personnel Manual, and that the disciplinary action should therefore be removed from Harrod's personnel folder. On July 23, the Department's Director responded to Harrod by letter and denied the grievance. Thereupon, Teamsters Local Union No. 1714 (the "Union"), the union representing employees of the District of Columbia Department of Corrections, including Harrod, requested arbitration of the grievance as provided for by the collective bargaining agreement.

Relying on a section of the District of Columbia Comprehensive Merit Personnel Act, D.C.Code §§ 1-601.1 to 1-637.2 (1987) (the "CMPA"), and regulations promulgated pursuant thereto in the District of Columbia Personnel Manual, the Union argued to the arbitrator that the Department was barred from ordering discipline since it failed to meet a forty-five-day deadline contained in those provisions. Section 1-617.3 of the Code provides:

(a)(1) An individual in the Career and Educational Services against whom an adverse action is recommended in accordance with this subchapter is entitled to reasons, in writing, and to the following:

(A) Notice of the action sought and of charges preferred against him or her;

(B) A copy of the charges;

(C) A reasonable time for filing a written answer to the charges, with affidavits; and

(D) A written decision on the answer within 45 calendar days of the date that charges are preferred.

D.C.Code § 1-617.3 (1987) (emphasis added). Section 1604.38 of the District of Columbia Personnel Manual provides:

The [disciplinary] decision shall be rendered no more than forty-five (45) days from the date of delivery of the notice of proposed corrective or adverse action; provided that the period may be extended when the employee does the following:

(a) Requests and is granted an extension of the time allotted for answering the notice of proposed action; or

(b) Agrees to an extension of time requested by the agency.

District of Columbia Personnel Manual § 1604.38 (1987).

In a decision of September 1, 1987 (the "award"), the arbitrator concluded that the Department's failure to meet the 45-day deadline did "not require an automatic forfeiture of the Agency's right to proceed with the discipline" (emphasis in original). "[I]n the absence of explicit statutory or regulatory intent," the arbitrator wrote,

the Arbitrator properly cannot infer that it was intended either by the statute or by the regulation which implemented the statute that the drastic result of forfeiture of the Agency's right to discipline was to be automatic solely because the agency had failed to act within the 45-day period, wholly without regard to any of the attendant circumstances.

The arbitrator went on to state that "the employee has the burden of demonstrating actual or, at least, potential harm in terms of whether, had there been no procedural error, the Agency would not have decided to proceed with the discipline." Because the employee "has not asserted that any actual harm was caused by the procedural error," the arbitrator rejected the Union's "procedural argument" and rendered a decision against Harrod on the merits.

On September 28, 1987, the Union filed an Arbitration Review Request with the Public Employee Relations Board (the "PERB" or the "Board"), the agency entrusted with review of arbitration decisions affecting public employees of the District of Columbia. In a decision of November 2, 1988, the Board affirmed that part of the award that held that the Department's failure to meet the forty-five-day deadline did not "automatically forfeit the Agency's right to implement a decision," that is, that the forty-five-day rule was directory rather than mandatory. The Board reversed that part of the award, however, that placed on the employee or the Union the "burden of establishing that the [employer] was substantially prejudiced" by the Department's untimely action. In particular, the Board relied on Vann v. District of Columbia Board of Funeral Directors & Embalmers, 441 A.2d 246, 248 (D.C. 1982), for the proposition that where an agency has failed to meet a statutory deadline "the agency bears the burden of demonstrating that its delay did not substantially prejudice the complaining party." The Board therefore concluded that the arbitrator's allocation of the burden to the employee was "contrary to law."²

Both the Union and the District of Columbia petitioned the Superior Court of the District of Columbia for review of the PERB decision, as provided for in D.C.Code section 1-618.13(c) (1987). The Superior Court dismissed the petitions, stating that, "for reasons stated on the record," the PERB decision was "in accord with applicable law, and is therefore not arbitrary and capricious, not an abuse of discretion, and not clearly erroneous as a matter of law." Both parties renewed their appeals to us.

II

"[A]lthough this is an appeal from a review of agency action by the Superior Court rather than a direct appeal to us, we review the administrative decision as if the appeal had been heard initially in this court." Public Employee Relations Bd. v. Washington Teachers' Union Local 6, 556 A.2d 206, 207 (D.C. 1989). As provided for by the CMPA, the Superior Court reviews the PERB's factual findings to "determine if [they are] supported by substantial evidence and [are] not clearly erroneous as a matter of law." D.C.Code § 1-605.2(12) (1987).³ This standard applies to us as well. Washington Teachers' Union Local 6, supra, 556 A.2d at 207 n. 2. As to the PERB's legal conclusions, we defer to the PERB's interpretation of the CMPA and will not reverse unless the interpretation is unreasonable in light of the prevailing law or inconsistent with the statute. Id. at 207; District of Columbia Dep't of Corrections v. Teamsters Union Local No. 246, 554 A.2d 319, 323 (D.C. 1989). However, "we are not obliged to stand aside and affirm an administrative determination which reflects a misconception of the relevant law or a faulty application of the law." Thomas v. District of Columbia Dep't of Labor, 409 A.2d 164, 169 (D.C. 1979). See Phillips Petroleum Co. v. FERC, 253 U.S.App.D.C. 211, 218, 792 F.2d 1165, 1172 (1986) ("[w]here . . . an agency construction is not based on the agency's own judgment, but rather on an erroneous view of the law, the construction cannot be sustained"). Similarly, we cannot affirm an agency decision if "we cannot confidently ascertain either the precise legal principles on which the agency relied or its underlying factual determinations." Long v. District of Columbia Dep't of Employment Servs., 570 A.2d 301, 305 (D.C. 1990). Nor may we affirm on a ground not relied on by the agency or substitute our judgment for that of the agency. Jones v. District of Columbia Dep't of Employment Servs., 519 A.2d 704, 709 (D.C. 1987); SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943) (Chenery I).

A. The Agency's Conclusion That the Forty-five-day Rule Is Directory Rather Than Mandatory.

The entirety of the PERB's ruling on whether the forty-five-day rule is directory or mandatory was as follows:

It has been established in the District of Columbia that a "statute specifying a time within which a public official is to perform an official act regarding the rights and duties of others is directory unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation of the power of the officer." JBG Properties, Inc. v. D.C. Office of Human Rights, 364 A.2d 1183, 1185 (D.C. 1976); Accord, WisconsinAvenue Nursing Home v. D.C. Commission on Human Rights, 527...