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September 27, 1993


Appeals from the Superior Court of the District of Columbia; (Honorable Evelyn C. Queen, Trial Judge in Case No. 90-CV-417), (Honorable Rufus G. King, III, Trial Judge in Case Nos. 92-CV-217 and 92-CV-319)

Before Schwelb, King and Sullivan, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: These consolidated cases require us to explore the specialized and somewhat arcane world of public employee labor relations and to resolve three largely unrelated controversies between the District of Columbia Public Schools (the School Board) and two local public employee unions (collectively the Union). In No. 90-CV-417 (Case No. 1), the Union contends that the Superior Court (Judge Evelyn C. Queen) erroneously declined to enforce certain disputed portions of what the Unions describe as a final arbitration award relating to the proposed 1987-90 collective bargaining agreement. In No. 92-CV-217 (Case No. 2), the Union appeals from an order by the Superior Court (Judge Rufus G. King, III) dismissing for lack of jurisdiction, as untimely, the Union's petition for review of certain rulings by the Public Employee Relations Board (the PERB) regarding negotiations towards a 1990-93 collective bargaining agreement and, in the alternative, upholding the PERB's rulings on the merits. Finally, in No. 92-CV-319 (Case No. 3), the Union appeals from an order by Judge King in which he sustained a decision by the PERB holding that certain issues raised by the Union during negotiations for the 1990-93 agreement were within the prerogatives of management and therefore not a mandatory subject of negotiation.

In Case No. 1, we vacate the judgment and remand the case to the trial court for further proceedings. In Case No. 2, we hold that the Superior Court had jurisdiction to consider the Union's petition for review, but affirm on the merits. In Case No. 3, we affirm.



A. Legislative and Regulatory Background.

In order to place the controversy in Case. No. 1 in context, it is necessary to summarize the legislative scheme and the applicable regulations.

Labor-management relations between the District of Columbia government and its employees are governed by the Comprehensive Merit Personnel Act (CMPA), D.C. Code § 1-601 et seq. (1992). The CMPA created the PERB, which administers the system of collective bargaining between agencies of the District government and the Unions which represent public employees. Id. §§ 1-605.1, 1-605.2, 1-618.2 (a). The PERB is authorized, inter alia, to "resolve bargaining impasses through fact-finding, final and binding arbitration, or other methods . . . [and to] make a determination in disputed cases as to whether a matter is within the scope of collective bargaining." Id., §§ 1-605.2 (4), 1-605.2 (5). The PERB is also empowered to issue appropriate regulations. Id. § 1-605.2 (11).

Although the scope of collective bargaining under the CMPA is comparatively broad, the Council has designated certain "management rights" as to which the District and its agencies are not required to negotiate. See id, § 1-618.8 (a). *fn1 Adopting the three-category approach articulated by the Supreme Court in NLRB v. Borg-Warner Corp., 356 U.S. 342, 349, 2 L. Ed. 2d 823, 78 S. Ct. 718 (1958), the PERB has held that there are "mandatory subjects over which the parties must bargain; permissive subjects over which the parties may bargain; and illegal subjects over which the parties may not legally bargain." PERB Opinion No. 43, at 2 (1982) (emphasis added).

If the parties, during negotiations, reach an impasse on any issue, they are required to notify the PERB, which selects an impartial person to serve as mediator. D.C. Code §§ 1-618.2 (d); 1-618.17 (f)(3). If the mediator is unable within thirty days to resolve the impasse, the issues are referred to arbitration. Id. The arbitration panel is required to select the last best offer of each of the parties as the basis for impasse resolution and to issue an appropriate award. Id.

If, at the times relevant to this appeal, an issue arose as to whether a particular matter was appropriate for collective bargaining, the party which proposed the matter was authorized, under procedures promulgated by the PERB, to file a "negotiability appeal" with the PERB. PERB Interim Rule § 106.1. Further

negotiability appeal shall not be accepted by [the PERB] if it is filed more than forty-five days (45) after a party rejects a proposal as being not negotiable.

PERB Interim Rule § 106.2. The obligation of the proposing party to file a negotiability appeal was thus triggered by the opposing party's rejection of the proposal as non-negotiable. In the event of a timely negotiability appeal, the PERB issued a written opinion in which it identified any negotiable issues; the parties could then resume negotiations as to those issues.

B. The Course of the Collective Bargaining -- Negotiation, Mediation, Arbitration.

On June 24, 1986, the two locals to which we refer as the Union were jointly certified by the PERB as the exclusive bargaining agent for public school employees in five bargaining units. *fn2 The School Board and the Union agreed to binding interest arbitration of all unresolved items.

From June 1987 to February 1988, the parties engaged in extensive negotiation sessions, but were unable to resolve their differences. On March 2, 1988, at the Union's request, the PERB initiated its impasse resolution procedures and appointed a mediator. The mediator, however, was unable to settle the dispute. The Union then requested arbitration, and an arbitral panel was designated to resolve the impasse and render an award. The panel included an impartial Chairman, a Management-appointed member, and a Union-appointed member. On June 21, 1988, the parties submitted a list of open issues to the arbitral panel for resolution.

The School Board claims that, during the course of the arbitration, its representatives declared that nine of the Union's contract proposals would infringe on rights reserved to management and therefore were not proper subjects of collective bargaining. *fn3 The Union contends, on the other hand, that the School Board made no sufficient objection to the negotiability of these issues and, in fact, bargained as to each of them.

On September 30, 1988, the arbitral panel entered an award disposing of all issues, including those as to which the School Board now claims to have made a sufficient timely objection. This award was signed by all three members of the panel. On October 14, 1988, the impartial Chairman issued a "draft" opinion to which he attached a list of the contested items, and in which he stated that the award would be implemented only if the PERB determined that these items were negotiable. On November 7, 1988, however, the Chairman issued a "final" opinion in which he omitted the reference to the PERB or to the award being partly conditional, and stated only that

several of the Union's proposals were declared by Management to be non-negotiable. The Union disagreed with Management's determinations.

In light of these developments, the parties were unable to determine whether the panel viewed its entire award as final, or whether the contested provisions would be enforceable only if they were subsequently determined by the PERB to fall within the proper scope of collective bargaining. Accordingly, in July 1989, the School Board and the Union jointly sought an explanation of the opinion from the Chairman. The parties inquired whether and under what circumstances the items as to which the School Board was now contesting negotiability were to be implemented. The Chairman responded by letter dated August 4, 1989, as follows:

During the deliberations of the Board of Arbitration, I expressed the view that the Union should proceed to the D.C. Public Employee Relations Board to challenge Management's declaration of non-negotiability. The Union member of the Board of Arbitration disputed my view that the Union had the burden of going forward. As I have stated to the Board members and to the parties, my arbitral role does not extend to ordering the procedures through which these negotiability determinations may be considered. Therefore, any clarification beyond these comments would exceed my arbitral authority in this dispute.

C. The Trial Court's Decision.

On November 9, 1989, the Union filed a motion in the Superior Court requesting enforcement of the entire arbitration award including the contested items. On March 9, 1990, Judge Queen held a hearing on the motion. Ten days later, the Judge entered an order in which she denied enforcement as to the contested items. Quoting the Chairman's draft opinion of October 14, 1988 (but without identifying it as a draft or mentioning the final opinion issued on November 7, 1988), the Judge concluded that as to the contested items, the award was conditioned on a finding of negotiability by the PERB. The Judge further concluded that "the PERB has the exclusive authority to interpret negotiability of public labor contracts and D.C. Code § 1-6.18.[8]." The Judge noted the Union's claim that the School Board had "effected a waiver of the non-negotiability of these items," but made no findings of fact pertinent to this issue, concluding simply that "the Board could not give authority to the Panel to act contrary to D.C. Code § 1-6.18, to commit an illegal act," and that "the court cannot restrain itself in the face of illegal actions." (Emphasis added.)

Accordingly, without explaining her cryptic allusions to illegality, the Judge stated that the award would be enforced with the exception of the nine contested items. As noted in the italicized language, her decision was obviously premised on her perception that it would have been unlawful for the School Board to negotiate with the Union ...

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