March 2, 1995
GLENDALE C. HOGGARD, APPELLANT,
DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, APPELLEE.
Appeal from the Superior Court of the District of Columbia. (Hon. Henry F. Greene, Trial Judge).
Before Wagner, Chief Judge, and Steadman and Farrell, Associate Judges.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: Appellant, a former bus driver for the District of Columbia Public Schools (DCPS), appeals from an order of the Superior Court denying his petition for review of two decisions of the District of Columbia Public Employee Relations Board (PERB). Those decisions rejected appellant's claims that the DCPS and the American Federation of State, County and Municipal Employees (AFSCME) had each committed unfair labor practices, D.C. Code § 1-618.4 (1992), the former by allegedly firing appellant for his activities on behalf of his labor organization (AFSCME), *fn1 the latter by breaching its duty of fair representation in failing properly to challenge appellant's termination. See, e.g., District of Columbia v. Thompson, 593 A.2d 621, 626-27 (D.C. 1991), modifying, 570 A.2d 277 (D.C. 1990), cert. denied, 112 S. Ct. 380 (1991). *fn2
On appeal, PERB and the District of Columbia both raise the threshold question whether the Superior Court had jurisdiction to consider appellant's claim as to DCPS because appellant's petition for review appeared limited to challenging PERB's separate order rejecting appellant's claim as to AFSCME. *fn3 Although the petition for review is not crystalline, we conclude that it sufficiently apprised the Superior Court that appellant was challenging PERB's rejection of his claims of unfair labor practices by both DCPS and AFSCME. *fn4 We therefore turn to PERB's decisions. We review them de novo as if the appeal had been heard by this court rather than the Superior Court. Public Employee Relations Bd. v. Washington Teachers' Union Local 6, 556 A.2d 206, 207 (D.C. 1989). We uphold PERB's decision with regard to both DCPS and AFSCME.
Appellant was employed by DCPS under temporary annual appointments from 1984 through the school year 1992. In July 1992 DCPS sent him three successive letters informing him of his "non-reappointment" for the school year 1993. All three letters cited as one ground for termination "the employee's performance evaluation." The first and second letters (the second was an "updated copy" of the first) also cited as a reason the "availability of work in the employee's job classification," and the second added the ground, "the employee passing the required physical examination." The final letter, dated July 31, 1992, was a "corrected copy" of the second. It deleted the "availability" ground, retained the "physical examination" ground for termination, and added the third ground of "the employee's ability to receive the appropriate license." All three notices stated that appellant's "last day of employment with the D.C. Public Schools Transportation Branch is September 30, 1992."
In his complaint to PERB, appellant challenged all three grounds for the non-reappointment as pretexts for his engaging in union activity. PERB, however, did not reach the merits of the complaint because it dismissed it as untimely filed. PERB found that, despite the partial variation in the grounds cited, appellant had received "unequivocal notice of DCPS' decision" not to renew his appointment in the form of the July letters which he conceded he had received. But appellant had not filed his complaint with PERB until February 1, 1993. PERB therefore dismissed the complaint under PERB Rule 520.4, 37 D.C. Reg. 5288 (1990), which requires "unfair labor practice complaints" to be "filed in accordance with the following requirements: . . . (b) If by an individual(s), not later than 120 days after the date the alleged violations occurred. . . ."
PERB's rule concerning the time for filing exemplifies the principle that "the time limits for filing appeals with administrative adjudicative agencies . . . are mandatory and jurisdictional." District of Columbia Public Employee Relations Bd. v. District of Columbia Metro. Police Dep't, 593 A.2d 641, 643 (D.C. 1991). PERB concluded that the July notices communicating DCPS' decision to end appellant's employment triggered his obligation to file a complaint within 120 days of the alleged unfair labor practice. Alternatively, it concluded that his own admissions established that he learned of his termination when he reported to work on October 1, 1992, *fn5 and that he still exceeded the 120-day period for filing a complaint (though in that event only by one day). This court defers to PERB's reasonable interpretation of its regulatory authority. e.g., Washington Teachers' Union Local 6, 556 A.2d at 210; Hawkins v. Hall, 537 A.2d 571, 575 (D.C. 1988). Cf. Abia-Okon v. District of Columbia Contract Appeals Bd., 647 A.2d 79, 82 (D.C. 1994) ("This court must uphold an agency's application of its own rules and regulations unless that application is clearly erroneous or inconsistent with the rules themselves.")
Decisions in analogous situations arising under the National Labor Relations Act (NLRA) support PERB's view that the time for filing a complaint begins when the employee is informed of the termination decision. *fn6 Section 10 (b) of the NLRA sets forth a similar limitations period for filing complaints of unfair labor practices with the NLRB. In NLRB v. California School of Professional Psychology, 583 F.2d 1099 (9th Cir. 1978), a teacher had been notified on July 23, 1975, that his faculty contract would expire on August 31, 1975, and that he would not be rehired. Rejecting a contrary determination by the NLRB that the limitations period was not triggered until the contract actually expired, the court concluded:
The School's letter of July 23 was an unequivocal statement that [the teacher] would not be rehired. Because he could have first filed his unfair labor practice charge at that point, the six-month period of § 10 (b) began running upon receipt of that letter.
Id. at 1101. In other words, the unfair labor practice in question was the decision not to rehire. Id. at 1102. In Teamsters Local Union No. 42 v. NLRB, 825 F.2d 608 (1st Cir. 1987), the court similarly concluded that the limitations period begins to run when "a final adverse employment decision is made and communicated to an employee." Id. at 614 (internal quotations and citation omitted). See also NLRB v. Drywall, 974 F.2d 1000, 1004 (8th Cir. 1992). Cf. Delaware State College v. Ricks, 449 U.S. 250, 258, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980) (under Title VII of Civil Rights Act of 1964, limitations period for filing discrimination complaint commenced "at the time the tenure decision was made and communicated to Ricks").
We hold, in keeping with PERB's decision, that appellant had notice of his non-reappointment by July 31, 1992, which required him to file his complaint against DCPS within 120 days of that date. In opposing this Conclusion, appellant concedes that he received the three notices of termination in July, but argues that the filing period should not be held to have begun until he received his "official personnel form" on November 3, 1992, reflecting the fact of his termination and nonrenewal. PERB rejected this argument, as do we. The Personnel Action form appellant cites specifically states September 30, 1992, as the expiration date of his temporary appointment. The form thus merely confirms the action that had long since been communicated to him. Appellant further points to a collateral determination by an appeals examiner of the District of Columbia Department of Employment Services (DOES) that appellant received written notice from DCPS to take a physical examination on September 4, 1992, and to return to work (following summer vacation) on September 14. From this the appeals examiner inferred (in denying appellant unemployment compensation) that appellant had "reasonable assurance" that his employment would continue during the 1992-93 school year. Appellant's reliance on this determination is mistaken, for we agree with PERB that a collateral DOES determination of "reasonable assurance" of renewed employment *fn7 cannot control PERB's determination of when a non-renewal decision was made and communicated to the employee so as to trigger the time for filing an unfair labor practice complaint.
Finally, appellant argues that, at a minimum, the case should be remanded for a hearing on the timeliness issue, citing PERB's own rule that "if the investigation [of the complaint] reveals that the pleadings present an issue of fact warranting a hearing, the Board shall issue a Notice of Hearing and serve it upon the parties." *fn8 We agree with PERB, however, that appellant presented no facts sufficient to call in question its finding that he had unequivocal notice of his termination by the end of July. Beyond the notices on which DOES relied, discussed above, *fn9 the sole evidence appellant presented to PERB that DCPS had rescinded its termination decision, or at least induced him to believe it had done so, was documents supporting his claim that he had "corrected" the deficiencies for which DCPS had terminated him -- specifically, proof he had passed a physical examination in August 1992 and obtained a bus operator's license for the school year 1993. Although he did not argue this point to PERB, appellant's contention was apparently that DCPS had accepted, or implied to him that it accepted, these actions as sufficient to remove the grounds for termination, and thus led him to believe through September 30 that it would renew his appointment.
The problem for appellant is that (although represented by counsel at the time) he presented PERB with no such evidence of DCPS's change of heart. *fn10 In particular, he offered no evidence whatsoever that DCPS found these "corrections" sufficient to address the single ground for termination cited in all three July notices: "The employee's performance evaluation." On the strength only of appellant's asserted cure of two deficiencies, PERB was not required to speculate (and on that basis convene a hearing) that DCPS had encouraged these actions in a manner tantamount to revocation of its prior decision.
PERB rejected appellant's claim of breach of the duty of representation by AFSCME because "the complaint fails to state a basis for a claim under the CMPA for which relief can be granted." PERB based this determination on the clear language of the collective bargaining agreement between AFSCME and DCPS which (at the times relevant here) permitted AFSCME to "grieve all discipline and discharge" "within ten (10) work days of receipt of . . . notice" of the employer's decision, and further provided that "no matter shall be entertained as a grievance hereunder unless it is raised with the other party within fifteen (15) work days after the occurrence of the event giving rise to the alleged grievance" (emphasis added). PERB found in appellant's complaint and the record "no assertion that Complainant sought AFSCME's representation during this period." Given the "incontrovertible circumstances" that appellant had not asked AFSCME to grieve on his behalf during the period set forth in the collective bargaining agreement, PERB concluded that "AFSCME's alleged violative conduct does not amount to a nonfeasance proscribed under the CMPA."
We find no error in this determination. Appellant does not contend that he sought AFSCME's representation in formally challenging the termination before October 7, 1992. *fn11 PERB, however, construed the collective bargaining agreement to mean that "any representation that AFSCME could have afforded had to be undertaken no later than 10 work days after AFSCME received DCPS's July 31, 1992 notice of its decision not to reappoint Complainant." *fn12 In thus defining the time when any breach of AFSCME's duty to represent would have to have occurred, PERB again exercised its "special competence to deal with such questions," Hawkins, 537 A.2d at 575, and we accordingly must defer to its reasonable interpretation of the agreement. The agreement here reasonably admits of PERB's reading which required AFSCME to have invoked the grievance procedures within ten (or, at the outside, fifteen) work days of the final notice of DCPS's decision to terminate. It follows that appellant's failure to seek representation during that time defeats his claim of AFSCME's violation of its duty to represent him. *fn13