United States District Court for the District of Columbia
March 25, 2004.
JIMMIE W. HILL, et al.,
WMATA, et al
The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge
This matter is before the Court on defendants' motions to dismiss.
Plaintiffs, an individual Metro Transit Police Officer employed by the
Washington Metropolitan Transit Authority ("WMATA" or "the Authority")
and the Fraternal Order of Police/WMATA Police Labor Committee, sued
WMATA and the incumbent union for the officers, Local 639 of the
International Brotherhood of Teamsters, seeking a declaration that
plaintiffs are entitled to a representational election. In the
alternative, plaintiffs ask for a declaration that WMATA submit the
plaintiffs' request to arbitration. This Court grants defendants' motions
The following facts are taken from plaintiffs' complaint.*fn1
Until February 2003, the Metro Transit Police Officers were represented
by Teamsters Local 246. The officers were the largest unit within the
Local. The current collective
bargaining agreement, negotiated between WMATA and Local 246, was
executed on May 15, 2002, but was made effective retroactively from
October 1, 1998, through September 30, 2004.
Local 246 experienced financial difficulties, and the Teamsters imposed
a trusteeship on the Local in August 2000. Though the financial situation
of Local 246 improved somewhat under the trusteeship, in September 2002
the Teamsters proposed, and shortly thereafter the membership of the
Local voted in favor of, a merger with Local 639. The merger took effect
on February 1, 2003.
On February 7, 2003, plaintiffs submitted a petition to WMATA for a
representation election, which had the signatures of more than half the
members of the bargaining unit. WMATA nevertheless recognized Local 639
as the unit's bargaining representative on February 19, 2003. On March
25, 2003, WMATA denied plaintiffs' petition for an election. WMATA
invoked the contract-bar doctrine and argued that the election petition
was untimely, in that it was presented more than ninety days prior to the
expiry of the collective bargaining agreement. Plaintiffs filed a
complaint in this Court against WMATA and Local 639 challenging the
denial as an abuse of discretion. Plaintiffs also claim that their
dispute over whether they are entitled to a representation election is a
question "concerning representation," and as such should be submitted to
WMATA is the creature of an interstate compact, codified at D.C. Code
§§ 9-1101.01, et seq. Section 66 of the Compact, not the
Federal Labor Relations Act or the National Labor Relations Act, governs
WMATA's collective-bargaining relationship with its
employees and their representatives. See, e.g., Diven v.
Amalgamated Transit Union & Local 689, 38 F.3d 598, 601 (D.C.
Cir. 1994). Though neither the FLRA nor the NLRA is binding, the Compact
incorporates the NLRA's definition of "employee," see Compact
§ 66(b), D.C. Code § 9-1107.01 (providing that WMATA "shall deal
with and enter into written contracts with employees as defined in
section 152 of title 29, United States Code . . ."), and WMATA has
therefore consulted National Labor Relations Board precedent in
determining its responsibilities under the Compact.
It is in this context that the Court is presented with plaintiffs'
complaint and defendants' motions to dismiss, both centering on the
proper interpretation of Section 66(c) of the Compact. In relevant part,
Section 66(c) states:
In case of any labor dispute involving the
Authority and [its] employees where collective
bargaining does not result in agreement, the
Authority shall submit such dispute to
arbitration. . . . The term "labor dispute"
shall be broadly construed and shall include any
controversy concerning wages, salaries, hours,
working conditions, or benefits including health
and welfare, sick leave, insurance or pension or
retirement provisions but not limited thereto, and
including any controversy concerning any
differences or questions that may arise between
the parties including but not limited to the
making or maintaining of collective bargaining
agreements, the terms to be included in such
agreements, and the interpretation or application
of such collective bargaining agreements and any
grievance that may arise and questions concerning
representation. Each party shall pay one-half of
the expenses of such arbitration.
Compact § 66(c), D.C. Code § 9-1107.01.
WMATA and Local 639 moved to dismiss plaintiffs' complaint for lack of
standing.*fn2 In the view of defendants, Section 66(c) provides for an
arbitration process between only two parties: WMATA and the incumbent
union. In support of this argument, defendants point out that the
provision designating each party to pay half of the expenses of
arbitration implies that there will be only two parties to an
arbitration. Defendants are correct that the Compact contemplates a
two-party arbitration process, but the Court is at a loss to see why the
incumbent union should always be one of the parties in other
words, why an individual employee would be forbidden from invoking the
grievance process. In fact, Section 66(c) might be thought to contemplate
the involvement of individual employees, by providing for arbitration of
disputes "involving the Authority and [its] employees."
To be sure, there are signs pointing in the opposite direction. The
Compact directs that in choosing the arbitration panel the "labor
organization" shall play a key role, and it is clear that most disputes
will see the organization as the representative of the employees.
See Compact § 66(b), D.C. Code § 9-1107.01. Here,
however, the interests of the individual employee plaintiff are at odds
with those of the incumbent union, Local 639, and defendants would
interpret the Compact to leave plaintiff with no avenue for his
grievance. Certainly there
is no clear expression in the Compact that would preclude an
individual employee from making a grievance. For these reasons, and in
light of the fact that individual employees often have access to
arbitration in grievance processes pursuant to collective bargaining
agreements, this Court holds that plaintiff Hill has standing.
Each of the plaintiffs raises identical claims in this action; indeed,
each has filed the same documents in opposition to the motion to dismiss.
It therefore is unnecessary to decide whether plaintiff Fraternal Order
of Police has standing. See, e.g., Watt v. Energy Action Educ.
Found., 454 U.S. 151, 160 (1981); UAW-Labor Empl. &
Training Corp. v. Chao, 325 F.3d 360, 362 (D.C. Cir. 2003);
Mountain States Legal Found, v. Glickman, 92 F.3d 1228, 1232
(D.C. Cir. 1996).
B. Do Plaintiffs Have a Right to a Representation
WMATA denied plaintiffs' petition for an election, citing the
contract-bar doctrine, which is well established in NLRB adjudications
though it appears nowhere in statute and is not the result of judicial
mandate. See generally LEE MODJESKA & ABIGAIL COOLEY
MODJESKA, FEDERAL LABOR LAW: NLRB PRACTICE § 8:03 (2003); 2 THEODORE
KHEEL, LABOR LAW § 7A.03 (2001). According to the doctrine, a
collective bargaining agreement will bar the bargaining unit from
petitioning for a representation election during the life of the
contract, except for the thirty-day period beginning ninety days before
the contract's expiration.*fn3
challenge WMATA's denial of their petition on this basis as an
abuse of discretion, see Compl. ¶ 21, but point to no
provision in the Compact that gives them the right to a representation
By mandating continuity in representation during the initial three
years of a collective bargaining agreement (but for exceptional
circumstances not present here, as discussed infra), the
contract-bar doctrine provides stability between employees, employers,
and unions, while still allowing employees reasonable opportunity to
change their representatives. See People's Gas System, Inc. v.
NLRB, 629 F.2d 35, 38 n.4 (D.C. Cir. 1980); In re: Gen'l Cable
Corp., 139 NLRB 1123 (1962). The doctrine applies even where, as is
apparently the case here, the union has lost majority support. See
El Torito-La Fiesta Restaurants, Inc. v. NLRB, 929 F.2d 490, 492
(9th Cir. 1991) (quoting Pioneer Inn Assocs. v. NLRB,
578 F.2d 835, 838 (9th Cir. 1978)). From WMATA's perspective, stability in
employee representation is invaluable, particularly in light of its duty
to "deal with" a labor organization that is authorized to act for the
employees. Compact § 66(b), D.C. Code § 9-1107.01. A contract-bar
rule that is easily applied allows WMATA to know which labor organization
has been authorized without consuming excessive time or resources.
The Court appreciates plaintiffs' frustration at WMATA's relative
independence in its ability to decide to follow NLRB precedent or not.
True, WMATA made its decision to deny the election petition in this case
"unfettered by published rules and regulations." Compl. ¶ 22. This
freedom is nevertheless insufficient to make WMATA's decision to
follow NLRB precedent in this case an abuse of discretion. In
essence, plaintiffs claim that though WMATA concededly has discretion in
interpreting the Compact, and though the Compact does not speak directly
to an employee's right to a representation election, it was an abuse of
that discretion to adopt an interpretation of the labor relations
provisions of that Compact in accordance with the forty-year-long
practice of the National Labor Relations Board since the 1962
General Cable decision. The Court rejects plaintiffs' claim.
Plaintiffs argue that even if this Court is not able to declare that
plaintiffs are entitled to an election, the Court should nonetheless rule
that plaintiffs are entitled to have an arbitrator decide the question.
Plaintiffs' argument for arbitration is based on the Compact's
declaration that "any labor dispute" shall be arbitrated and that the
term "`labor dispute' shall be broadly construed and shall
include . . . questions concerning representation." Compact § 66(c),
D.C. Code § 9-1107.01.
Defendants offer two primary arguments against arbitration. The first
argument is structural, based on the conception of labor disputes being
between the employees, represented by a union, and WMATA. Defendants
argue that Section 66(c)'s discussion of disputes that have not resulted
after "collective bargaining," the procedure for giving the "labor
organization" a role
in selecting arbitrators, and the provision that "[e]ach party
shall pay one-half of the expenses of  arbitration" imply that only the
union and WMATA shall be permitted to invoke arbitration. Defendants'
second argument directly confronts plaintiffs' reading of the statute and
maintains that the current dispute is not a "question concerning
To the uninitiated, plaintiffs' claims unquestionably raise questions
"concerning representation." They claim, after all, the right to hold an
election to determine the identity of their representatives. But alas,
language in interstate compacts does not always reflect the meanings
ordinary readers would give it. "Questions concerning representation" is
something of a term of art in the labor law field, and its presence in
the labor-relations section of the Compact indicates that the labor-law
meaning of the term was intended.
In brief, an issue that relates to union representation is not
a "question concerning representation" unless there is substantial,
reasonable doubt about whether the incumbent union should be the
recognized collective-bargaining agent of the employees. See, e.g.,
NLRB v. Financial Institution Employees of Am., Local 1182,
475 U.S. 192, 198-200 (1986); Human Dev. Org. v. NLRB, 937 F.2d 657, 666
(D.C. Cir. 1991); but cf. Allentown Mack Sales and Serv., Inc. v.
NLRB, 522 U.S. 359 (1998) (holding that the NLRB standard of
"reasonable doubt" concerning union support must mean uncertainty,
contrary to the Board's interpretation that the employer must be certain
the union lacks support). A party has raised a question concerning
representation if it demonstrates that the union is not entitled to
represent the employees or if there is reasonable doubt about the union's
status. For example, and contrary to the facts of this case, if the union
had undergone a change "so dramatic that the post-affiliation union lacks
substantial continuity with the preaffiliation union," Syscon Sys.
Int'l, Inc. v. Int'l Bhd. of Elec.
Workers, Local 1392, 322 NLRB 539, 544 (1996); see
also In re Avante at Boca Raton, Inc., 334 NLRB 381 (2001); In
re Hershey Chocolate Corp., 121 NLRB 901 (1958), or if the union no
longer was willing or able to represent the employees, there would be a
"question concerning representation." See MODJESKA &
MODJESKA, FEDERAL LABOR LAW: NLRB PRACTICE § 8:03 at 12 (citing
In re Kent Corp., 272 NLRB 735 (1984), and In re Hershey
Chocolate Corp., 121 NLRB 901).
Here there is no such doubt. The contract-bar doctrine is relatively
mechanical in its application even, as here, where the recognized Local
is not the same Local that represented the collective bargaining unit at
the execution of the collective bargaining agreement. WMATA was well
within its rights even required, under NLRB precedent to
recognize Local 639 as the successor to Local 246 because of the obvious
continuity between the Locals, which are, after all, both affiliated with
the Teamsters. See Syscon Sys. Int'l, Inc. v. Int'l Bhd. of Elec.
Workers, Local 1392, 322 NLRB at 544. In fact, the legality of
WMATA's conduct in recognizing Local 639 is so clear that even plaintiffs
do not contest it. Plaintiffs demand a representation election, but
nowhere in the complaint do they offer the slightest criticism of WMATA
for recognizing Local 639 as Local 246's successor. The substance of the
complaint WMATA's refusal to hold a representation election
is not a "question concerning representation."
To be sure, that conclusion does not end the case. Not only "questions
concerning representation," but any "labor dispute involving the
Authority and [its] employees where collective bargaining does not result
in agreement" is arbitrable. Compact, § 66(c), D.C. Code §
9-1107.01. The Compact is quite explicit that "[t]he term `labor dispute'
shall be broadly construed and shall include" any of several types of
disputes, the last of which is "questions
concerning representation." Id. Plaintiffs focus on this
last category, however, in recognition that the others clearly do not
apply. This dispute quite obviously is not one "concerning wages,
salaries, hours, working conditions," and so forth. Applying the
fundamental canon of ejusdem generis ("of the same sort"), the
Court holds that "labor dispute" refers to disagreements over matters
that may customarily be resolved in collective bargaining agreements.
Where parties seek to include in the collective bargaining agreement the
hourly wages to be paid workers, for example, but cannot agree on a
figure, the disagreement is to be submitted to arbitration.*fn4 It is
quite a different matter, however, to arbitrate the question of holding a
representation election a matter wholly outside the standard
collective bargaining process. Collective bargaining, by the very nature
of being "collective," requires representatives to be chosen by a
separate process. Cf. Int'l Ladies' Garment Workers v. NLRB
(Bernhard-Altmann Texas Corp.), 366 U.S. 731 (1961) (holding that
the employer violated Section 8(a)(2) of the NLRA by recognizing a union
that had falsely claimed to represent a majority of workers); see
generally 29 U.S.C. § 159 (NLRA provision regulating
representation elections). Representation-election quarrels, therefore,
are not "labor disputes," and employees have no right under the Compact
to arbitrate them.
Furthermore, and for similar reasons, it is not clear to the Court that
this matter "involves the Authority" as required for arbitrable disputes.
WMATA will surely be affected in
some way by the entity chosen to bargain on behalf of its
employees, and it was WMATA that denied plaintiffs' request for the
election. But the choice of representative, unlike issues of wages,
hours, and benefits, is not something over which an employer "bargains."
WMATA must bargain with whomever is the duly elected representative of
the employees, and accordingly the Authority does not have a dog in this
fight. Cf. Bloedel Donovan Lumber Mills v. Int'l Woodworkers of
Am., 102 P.2d 270, 273-74 (Wash. 1940) (holding that no labor
dispute can exist between an employer and a minority union); but see
Fitzgerald v. Haynes, 146 F. Supp. 735, 738 (M.D. Pa. 1956) (quoting
Duris v. Phelps Dodge Copper Prods. Corp., 87 F. Supp. 229, 232
(D.N.J. 1949)), aff'd on other grounds 241 F.2d 417 (3d Cir.
1957). As an alternative basis for this decision, therefore, the Court
would hold that the matter to be resolved does not "involv[e] the
Authority" within the meaning of Section 66(c) of the Compact. Plaintiffs
have no right to arbitrate this dispute.
For the foregoing reasons, defendants' motions to dismiss are granted.
An Order consistent with this Opinion will be issued this same day.
ORDER AND JUDGMENT
For the reasons stated by separate Opinion issued this same day, it is
ORDERED that Defendant Washington Metropolitan Area Transit Authority's
Motion to Dismiss  is GRANTED; it is
FURTHER ORDERED that the Motion to Dismiss on Behalf of Teamsters Local
639  is GRANTED; it is
FURTHER ORDERED that JUDGMENT is entered for the Washington
Metropolitan Area Transit Authority and Drivers, Chauffeurs and Helpers
Local Union No. 639; it is
FURTHER ORDERED that this Order and Judgment shall constitute a FINAL
JUDGMENT in this case. This is a final appealable order. See
FED. R. APP. P. 4(a).