Appeal from the Superior Court of the District of Columbia (04-MPA-32) (Hon. John M. Campbell, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID and GLICKMAN, Associate Judges, and SCHWELB, Senior Judge.
Appellant, Charles E. Pitt, challenges the Superior Court's order affirming a decision by the Office of Employee Appeals ("OEA") that dismissed his appeal for lack of jurisdiction. On remand from our decision in Pitt v. District of Columbia Dep't of Corrections, 819 A.2d 955 (D.C. 2003) (Pitt I), the OEA concluded that Mr. Pitt "was prevented by the terms of the labor agreement from appealing the final Agency decision" to the OEA. Mr. Pitt claims the unrebutted and substantial evidence in the record establishes that the Fraternal Order of Police ("FOP"), the collective bargaining unit for correctional officers, and the District of Columbia Department of Corrections ("Department"or "DOC"), were not parties to the labor agreement, which precluded his appeal to the OEA. Mr. Pitt also claims that the DOC is estopped from arguing that he may not appeal his firing to the OEA, because the DOC had taken a contrary position in subsequent cases. We affirm.
We need not repeat the full factual and procedural background of this case as set forth in Pitt I. Therefore, we highlight only enough of the earlier background to state the context for this decision. Teamsters Local 246 ("Teamsters") was the exclusive bargaining representative for all employees of the Department in Mr. Pitt's personnel classification. The 1986 collective bargaining agreement between the Teamsters and the Department provided for a five-step grievance procedure as the "exclusive appeal mechanism,"*fn1 for employees who wished to contest disciplinary actions, including terminations. The agreement, which was executed in July 1986 and extended until September 30, 1987, included an option for renewal by either party for three years and "[t]herefore by its terms the agreement expired no later than 1990." Id. at 956. In 1993, the Department employees voted to oust the Teamsters in favor of the FOP, and in 1994 the Public Employee Relations Board ("PERB") certified the FOP as their new representative. See id.
Mr. Pitt was a corrections officer with the Department until March of 1997, when he was terminated following his arrest on February 11, 1997 in Prince George's County, Maryland for possession of crack cocaine. Pitt I, supra, 819 A.2d at 955. Although the charges against Mr. Pitt were eventually dismissed, the Department decided to "terminate him in reliance on a report of the arresting officer." Id. at 956. The March 1997 notice of termination informed Mr. 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." Id. Mr. Pitt appealed his termination by following the first four grievance steps outlined in the 1986 collective bargaining agreement. The first four steps of this grievance procedure took place within the Department, culminating in an appeal to the Director. If the grievance remained unresolved, the fifth step provided that the union had the option of pursuing either arbitration or mediation on Mr. Pitt's behalf. In July 1997, the Director upheld Mr. Pitt's termination. The FOP did not pursue mediation or arbitration. Mr. Pitt appealed the Director's decision to the OEA.
The Department moved to dismiss the appeal for lack of jurisdiction, arguing that Mr. Pitt's exclusive remedy under the 1986 collective bargaining agreement was to have FOP submit his grievance to arbitration or mediation. Pitt I, supra, 819 A.2d at 955-56. Mr. Pitt filed an opposition, maintaining that the collective bargaining agreement had expired; the Teamsters had been supplanted by the FOP in 1994; and the FOP disavowed the arbitration/mediation procedure and advised him to take his grievance to the OEA.*fn2 Id. at 957. On June 15, 2000, the OEA administrative law judge granted the Department's motion to dismiss, concluding that the FOP and the Department had adopted the expired 1986 collective bargaining agreement and that the "exclusive grievance procedures set forth in the agreement precluded Mr. Pitt from appealing his termination to the OEA." Id. at 957. In response to his petition for review, the Superior Court affirmed the agency decision, concluding that it was supported by substantial evidence. Mr. Pitt noted an appeal to this Court.
In Pitt I, we determined that Mr. Pitt had made a prima facie showing, which "demonstrated that the collective bargaining agreement that supposedly precluded his appeal, had expired."*fn3 Id. at 958. Acknowledging that there were "indications that the FOP, as the Teamsters' successor, and the Department of Corrections, were continuing to act as if they were performing under the 1986 agreement," we expressed concern with the "Department's representation to the PERB that after 1990 its employees had to appeal to OEA rather than arbitrate."*fn4 Id. We reasoned that the Department's disavowal of the arbitration and mediation provisions may mean that the "exclusive grievance procedure" was not in effect after 1990. Id. And during the appeal before us in Pitt I, the Department proffered, for the first time, that its representations before the PERB were erroneous, and that documentary evidence existed showing that the FOP adopted the 1986 agreement and that it was in effect until well after 1997. Id. at 959. Since Mr. Pitt never had the opportunity to confront this evidence before the OEA, we vacated the OEA's decision and remanded the case for further proceedings to determine whether the 1986 collective bargaining agreement continued in effect at the time of Mr. Pitt's appeal. Id. at 956, 959.
On remand, the OEA concluded that it did not have jurisdiction over Mr. Pitt's appeal because the evidence in the record "demonstrate[d] that the Teamsters' labor agreement from 1986 was still in effect." In support of its conclusion, the OEA relied on the following evidence:
(1) [Mr. Pitt] pursued the appeal of his termination through the five-step grievance process, (provided in the 1986 labor agreement between the Teamsters and the Department), including submission of a written request, dated July 16, 1997, to the FOP to arbitrate the case; (2) an MOU [Memorandum of Understanding] dated May 20, 1997, between the FOP and the Department, which reflects its intention, on its face ' . . . not to change the contract but rather to provide a process to manage the backlog of grievable matters under the contract;' and (3) no evidence that the requirements of said MOU were followed in order to properly file an appeal with [the] OEA if such evidence is considered dispositive of the jurisdictional issue herein.
The OEA also referenced the 1997 affidavit of the FOP's Vice Chairman, Carlton Butler, noting that "the parties were not moving forward to resolve existing grievances (in Mr. Butler's words '[T]o break this logjam . . .') and developed a procedure to do so." The OEA dismissed Mr. Pitt's appeal, and he again appealed to the Superior Court.
The Superior Court affirmed OEA's decision, concluding that it was supported by substantial evidence. The court cited "a memorandum dated May 25, 1993, from the District of Columbia Office of Labor Relations and Collective Bargaining . . . .[which stated] that the Teamsters local and the DOC were negotiating a new agreement, and that in the meantime they would continue to operate under the 1986 agreement." The court also noted a June 30, 2000 letter sent from the District of Columbia to the FOP stating that "it intended to terminate their collective bargaining agreement effective September 30, 2000." The court reasoned that although the letter "[did] not prove that the agreement being terminated had been in effect in 1997, or that it is even the same agreement" it nevertheless "suggest[ed] that the 1986 agreement (still alive in 1993) had continued to 2000." Ultimately, the court concluded that the 1997 MOU, submitted by Mr. Pitt, was "decisive" because "it demonstrated that [the grievance] procedures were still in effect and that the parties felt the need to modify, but not discard them." The court recognized that the express purpose of the MOU was "not to change the contract but rather to provide a process to manage the backlog of grievable matters under the contract." The court found that "[t]he agreed-to procedure ...