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Cooper v. AFSCME

April 6, 1995


Appeal from the Superior Court of the District of Columbia. (Hon. A. Franklin Burgess, Jr., Trial Judge).

Before Ferren and King, Associate Judges, and Mack, Senior Judge.

The opinion of the court was delivered by: King

KING, Associate Judge: Appellant Ryan B. Cooper ("Cooper" or "employee") seeks reversal of the trial court's dismissal, on jurisdictional grounds, of his single count complaint, captioned Breach of Duty of Fair Representation, against appellee American Federation of State, County and Municipal Employees, Local 1033 ("AFSCME" or "union"), and reversal of the trial court's grant of Super. Ct. Civ. R. 11 ("Rule 11") sanctions in favor of AFSCME. Cooper contends the trial court erred in dismissing the complaint because the court had jurisdiction to hear his claim, and the complaint was neither completely frivolous nor without merit, and thus, did not warrant Rule 11 sanctions. AFSCME requests an award of sanctions against Cooper for filing a frivolous appeal pursuant to D.C. App. R. 38 ("Rule 38").

We hold that the trial court did not have jurisdiction to hear the claim asserted and, accordingly, we affirm the dismissal of Cooper's complaint. However, we reverse the award of sanctions imposed pursuant to Rule 11. We also deny appellee's request for sanctions pursuant to Rule 38.


In July 1990, Cooper sought assistance from a representative of his union, AFSCME, in filing an administrative appeal to contest his termination from his position as a phlebotomist at D.C. General Hospital as of July 4, 1990. According to his complaint, Cooper gave his union representative "a handwritten appeal from his discharge and was given to understand that the union would take care of his appeal." Cooper alleges that between July and September 1990 he had several meetings with an attorney referred to him by the union, during which time he "assumed that the union was pursuing his appeal to the Director of the Hospital." In October of 1990, however, Cooper claims that the attorney informed him that his records had been returned to the union, and in November of 1990, a union representative told him "the union could do nothing further for him." Cooper maintains that he was given no other explanation from the union regarding "the status of his appeal . . . nor was he furnished with any documentation or records regarding the appeal, when or where it was filed, or its outcome." Finally, the complaint, filed on September 3, 1993, alleges that the union's failure to take any subsequent action regarding his appeal constitutes both a breach of "its duty of fair representation to plaintiff in violation of its collective bargaining agreement" and a breach of "contract with plaintiff whereby, through its agents, it specifically undertook to represent plaintiff and handle his appeal ...."

In an Order dated November 26, 1993, Judge Burgess granted AFSCME's motion to dismiss Cooper's complaint and granted AFSCME's request for sanctions pursuant to Rule 11. The trial court ruled that under well-established District caselaw, the Public Employee Relations Board ("PERB" or "Board") has exclusive, original jurisdiction over claims that a union has breached its duty of fair representation. The trial court also held that Cooper could not defeat PERB's jurisdiction over the claim by alleging that the same union conduct constituted a breach of contract under the common law. The trial Judge further held that "a reasonable pre-filing inquiry would have disclosed that the complaint was not warranted by existing law," and therefore AFSCME was entitled to sanctions against Cooper's counsel pursuant to Rule 11. This appeal followed.


Cooper maintained in the trial court and in his brief in this court, that the trial court had jurisdiction to hear his claim regarding AFSCME's alleged breach of the duty of fair representation because Cooper sought representation from the union pursuant to the Comprehensive Merit Personnel Act's ("CMPA"; D.C. Code §§ 1-601.1 et seq.) provisions regarding administrative appeals, rather than pursuant to the CMPA's provisions regarding grievances under a collective bargaining agreement. *fn1 That distinction provides no support for Cooper's position, however, because it is well settled that whether a union-represented employee challenges his firing via CMPA procedures or through a CMPA-sanctioned collective bargaining agreement, PERB retains exclusive, original jurisdiction to determine "whether a particular breach (or alleged breach) of the duty of fair representation is also an unfair labor practice ...." Hawkins v. Hall, 537 A.2d 571, 575 n.8 (D.C. 1988); see also Teamsters Local Union 1714 v. PERB, 579 A.2d 706, 710 (D.C. 1990). Therefore, as Cooper's counsel eventually conceded at oral argument, the trial court had no jurisdiction to hear Cooper's breach of fair representation claim.

Nonetheless, Cooper maintains that "regardless of . . . any duty to represent plaintiff under the collective bargaining contract and the laws administered by PERB," by expressly "assur[ing Cooper] that it would represent him and take care of his appeal . . . the union had a common law contract ... to follow through on the ... appeal." Therefore, Cooper argues, the trial court had jurisdiction to consider any claim alleging a breach of that duty because the CMPA provides no remedy once a union undertakes a contractual obligation outside of the collective bargaining agreement.

The union, on the other hand, maintains that the complaint filed by Cooper includes no allegations that the union agreed to represent Cooper on any basis other than that required by the collective bargaining agreement. In response, Cooper points to some ambiguous language in the complaint which he contends sufficiently alleges facts raising the point. *fn2 We do not need to resolve that ambiguity, however, because, even if the complaint unmistakably alleged that the union agreed to undertake representation of Cooper outside of the collective bargaining agreement, the trial court would be without jurisdiction because: the union is bound to maintain certain standards of conduct under D.C. Code § 1-618.3 (1992); violations of an agreement to represent Cooper outside the collective bargaining agreement would be a violation of a § 1-618.3 standard of conduct; and, "the Board has jurisdiction to consider . . . standards of conduct complaints." Fraternal Order of Police v. PERB, 516 A.2d 501, 505 (D.C. 1986) ("F.O.P."). *fn3

In F.O.P., a union member brought an unfair labor practice claim before PERB, alleging the union withdrew its authorization for the member to retain independent counsel in a criminal proceeding and its agreement to pay up to $100 per hour towards that representation. Id. at 502-04. Because, indisputably, the union was not obligated to provide such services under the existing union contract, the union contended on appeal that its actions were an "internal union matter," and that PERB did not have jurisdiction to hear the claim. Id. at 504. In holding that PERB did have jurisdiction over the claim, we examined D.C. Code § 1-618.3, the Standards of Conduct for Labor Organizations ("Standards"), *fn4 and 27 D.C. Reg. 484 (1980), the rules adopted by the Board concerning a union's failure to comply with the Standards, and held that:

The statute and the rules adopted by the Board express a clear intent that alleged violations of the standards of conduct be promptly brought to the Board's attention. The statute directs that "any complaint of a violation . . . shall be filed with the Board." D.C. Code § 1-618.3(c) (emphasis added). Similarly, the rules direct that any person aggrieved by the failure of a labor organization to comply with the statute "shall communicate" the violation to the Board for "investigation and appropriate action." 27 D.C. Reg 494 (1980).

Id. at 505. In the instant case, AFSCME argues that "if PERB had jurisdiction over a claim that a union rescinded an agreement regarding representation in a criminal proceeding [as in F.O.P.], it has jurisdiction here over allegations ...

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