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Fraternal Order of Police/Dep't of Corrections Labor Committee v. District of Columbia Public Employee Relations Board

June 11, 2009


Appeal from the Superior Court of the District of Columbia (CA 5284-06) (Hon. Mary A. Gooden-Terrell, Trial Judge).

The opinion of the court was delivered by: Thompson, Associate Judge

Argued December 16, 2008

Before REID, GLICKMAN and THOMPSON, Associate Judges.

Appellant, the Fraternal Order of Police/Department of Corrections Labor Committee ("FOP"), acting on behalf of three of its members (the "aggrieved correctional officers" or "the officers"), seeks review of an order of the Superior Court upholding a decision of the District of Columbia Public Employee Relations Board (the "PERB" or the "Board"). In the decision at issue, the PERB modified an arbitrator's award of backpay to the aggrieved officers. Because we conclude that the PERB decision is supported by substantial evidence in the record and reflects an interpretation of the District of Columbia Comprehensive Merit Personnel Act (the "CMPA") that is not plainly erroneous, we affirm.


In August 2000, the District of Columbia Department of Corrections ("DOC") terminated the employment of the aggrieved correctional officers, finding that they had assaulted an inmate. Pursuant to a Memorandum of Agreement, FOP and DOC submitted their dispute over these removals to arbitration. Arbitrator Jerome Barrett held a hearing and issued a written decision dated October 16, 2004, in which he found that the removals were unwarranted and that the officers were entitled to reinstatement. Arbitrator Barrett ordered that the officers "shall receive back pay, with interest, for the period for which each was separated [from his employment], in accordance with the [federal] Back Pay Act."*fn1 The arbitrator further stated in his order that "in the absence of any citation to authority to allow offset of interim earnings against back pay due," he would not "direct such offset."*fn2 DOC sought review by the PERB.

The PERB upheld the arbitrator's award in all other respects, but modified the award to correct the arbitrator's refusal to "disallow[] offset for interim earnings." The PERB found that this aspect of the arbitral award was "contrary to law because it violates . . . the Back Pay Act." The PERB further explained its ruling as follows:

[W]e are not saying that an arbitrator cannot use his/her equitable power to deny a deduction for an offset of earnings; however, where an arbitrator expressly states (as he has in the present case) that he relied on a specific statute for awarding back pay and that statute expressly requires offset of earnings, the arbitrator must follow the statutory mandate.

After the Superior Court affirmed the PERB's decision, FOP timely appealed to this court. We review a decision of the PERB "as if the [appeal from the PERB decision] had been heard initially in this court" rather than in the Superior Court. Gibson v. District of Columbia Pub. Employee Relations Bd., 785 A.2d 1238, 1241 (D.C. 2001). The issue before us is whether the PERB committed reversible error in overturning the part of the arbitration decision that prevented the DOC from deducting the aggrieved officers' interim earnings from their back pay award.


This court will not easily disturb a decision of the PERB. Rather, we must defer to the Board's factual findings if they are supported by "substantial evidence," and we defer to the Board's interpretation of the CMPA unless the interpretation is "unreasonable in light of the prevailing law or inconsistent with the statute" or is "plainly erroneous." Doctors Council of the Dist. of Columbia Gen. Hosp. v. District of Columbia Pub. Employee Relations Bd., 914 A.2d 682, 695 (D.C. 2007) (citation omitted); Public Employee Relations Bd. v. Washington Teachers Union Local 6, AFT, 556 A.2d 206, 207 (D.C. 1989). Unless "rationally indefensible," a PERB decision must stand. Drivers, Chauffeurs, & Helpers Local Union No. 639 v. District of Columbia, 631 A.2d 1205, 1216 (D.C. 1993).

The PERB itself has limited authority to overturn an arbitral award. Pursuant to the CMPA, the PERB may modify, set aside, or remand an arbitration award only under circumstances specified in the statute, including where "the award on its face is contrary to law and public policy." D.C. Code § 1-605.02 (6) (2001). "Absent a clear violation of law -- one evident on the face" of the arbitrator's award, the PERB lacks "authority to substitute its judgment for the arbitrator's." MPD, supra note 2, 901 A.2d at 789 (internal quotation marks omitted).*fn3


FOP contends that the PERB's decision -- specifically, the Board's conclusion that the arbitrator's back-pay-without-offset award is "contrary to law" -- is "rationally indefensible." The premise of FOP's argument is that "[a]t the time of this award, the relevant and applicable D.C. law did not require arbitrators to offset interim earnings in a back pay award for wrongfully terminated city employees."*fn4 The PERB did not disagree with FOP's premise about the requirements of District of Columbia law, and, in fact, pointedly ...

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