Appeal from the Superior Court of the District of Columbia Civil Division (No. 00-MPA-13) (Hon. Linda D. Turner, Trial Judge)
Before Schwelb and Glickman, Associate Judges, and Pryor, Senior Judge
The opinion of the court was delivered by: Glickman, Associate Judge
Charles Pitt was a corrections officer who was terminated by the Department of Corrections in 1997 following his arrest for possession of cocaine. Pitt appealed the Department's decision to the Office of Employee Appeals (OEA). The Department moved to dismiss the appeal for lack of jurisdiction, arguing that Pitt's exclusive remedy under a 1986 collective bargaining agreement with the Teamsters Union was to submit his grievance to arbitration or mediation. Pitt disagreed, claiming that the collective bargaining agreement had expired, the Teamsters had been supplanted by the Fraternal Order of Police (FOP) in 1994, and the FOP had disavowed the arbitration/mediation procedure and told him to take his grievance to the OEA. The OEA administrative law judge rejected Pitt's claim and granted the motion to dismiss on the ground that the 1986 agreement had been adopted by the FOP. The Superior Court affirmed this ruling, and Pitt has sought review in this court.
We are constrained to agree with Pitt that the OEA lacked substantial evidence to justify its finding that the FOP had adopted the 1986 collective bargaining agreement. Although the Department of Corrections has proffered documentary evidence of that fact in an appendix to its brief in this court, the Department never presented this evidence, which Pitt disputes, to the OEA. Furthermore, the Department concedes that in unrelated proceedings before the Public Employee Relations Board, it has asserted that aggrieved employees in Pitt's position were entitled to appeal to the OEA and were not bound by the arbitration and mediation provisions of the 1986 agreement. In these rather confused circumstances, we think the proper course is to vacate the OEA's decision dismissing Pitt's appeal and remand for further proceedings.
In 1986, Teamsters Local 246 was the exclusive bargaining representative for all employees of the D.C. Department of Corrections in Charles Pitt's classification. A July 1986 collective bargaining agreement between the Teamsters and the Department provided a five-step grievance procedure for employees who wished to contest disciplinary actions, including terminations. The first four steps involved intra-Departmental reviews and culminated in an appeal to the Director. The fifth step, if the grievance remained unresolved, was for the union to request arbitration or mediation. This process was made the exclusive appeal mechanism "in order to assure that discipline and discharge cases are handled in an expeditious manner."
The 1986 collective bargaining agreement extended until September 30, 1987, and included an option for renewal by either party for three years. Therefore by its terms the agreement expired no later than 1990.
In 1993, Department of Corrections employees voted to oust the Teamsters in favor of the Fraternal Order of Police, and in 1994 the Public Employee Relations Board (PERB) certified the FOP as their new representative. See In re Fraternal Order Of Police/Dep't of Corr. Labor Comm., 48 D.C. Reg. 6565, PERB Case No. 93-R-04, Opinion No. 374 (Jan. 12, 1994).
Charles Pitt was arrested for possession of crack cocaine in Prince George's County on February 11, 1997. Although the charge was dropped and Pitt claimed that he was arrested in error, the Department of Corrections decided to terminate him in reliance on the report of the arresting officer. The March 1997 notice of termination informed Pitt of his "right to appeal this decision in accordance with the Labor Management Agreement" and instructed him to direct any questions about his appeal rights to the FOP.
Pitt appealed his termination by following the first four grievance steps listed in the 1986 collective bargaining agreement. In July of 1997, the Director of the Department upheld Pitt's termination. Pitt then appealed to the OEA.
Over one year later, in September 1998, the Department of Corrections moved to dismiss Pitt's appeal to the OEA for lack of jurisdiction. The motion asserted that the FOP and the Department had "adopted in its entirety" the 1986 collective bargaining agreement with the Teamsters, which provided for arbitration or mediation in lieu of an appeal to the OEA. The Department submitted no evidence in support of this assertion, however. Instead, the Department submitted a May 25, 1993, memorandum from the Deputy Director of the District of Columbia Office of Labor Relations and Collective Bargaining to the EEO/Ethics Officer of the Department of Corrections. This memorandum stated that the Teamsters and the Department were negotiating a new collective bargaining agreement and in the interim were continuing to operate under the terms of the 1986 agreement. A copy of the 1986 agreement was attached to the memorandum. The memorandum did not mention the FOP at all - which is not surprising, since the FOP was not certified as the successor to the Teamsters until 1994.
Pitt filed an opposition to the motion to dismiss, in which he pointed out that the May 25, 1993, memorandum did not show that the FOP had agreed to adhere to the 1986 agreement, which by its terms had expired no later than 1990. The opposition asserted that the FOP had advised his counsel "in no uncertain terms that there exists no exclusive arbitration mechanism between the FOP and the Department of Corrections, and that the Employee's appeal of his removal, if any, should be properly presented to the Office of Employee Appeals, which he has done." Pitt did not, however, submit an affidavit or other evidence that might have supported this assertion.
The record was not augmented further. Nearly two years later, on June 15, 2000, the OEA administrative judge issued her decision. Stating that the entire 1986 Agreement "was adopted by the parties and has been in operation" since the PERB certified the FOP as the correctional officers' bargaining representative in 1994, the administrative judge concluded that the exclusive grievance procedures set forth in that agreement precluded Pitt from appealing his termination to the OEA. Accordingly, the administrative judge granted the Department's motion to dismiss for lack of jurisdiction. On Pitt's petition for review, the Superior Court affirmed this decision as supported by substantial evidence. The court ...