June 11, 2009
FRATERNAL ORDER OF POLICE/DEPARTMENT OF CORRECTIONS LABOR COMMITTEE, APPELLANT,
DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, APPELLEE.
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 explained that it was "not saying that an arbitrator cannot use his/her equitable power to deny a deduction for an offset of earnings."*fn5
It does not follow, however, that the PERB's characterization of the arbitrator's decision as "contrary to law" was rationally indefensible or plainly erroneous.
As we read the PERB decision, it reflects the Board's interpretation that one circumstance in which an arbitrator's award "on its face is contrary to law and public policy" within the meaning of the CMPA (specifically, D.C. Code § 1-605.02 (6)) is where, in arriving at the award, the arbitrator looks to an external law for guidance and purports to apply that law, but overlooks or ignores the law's express provisions. This appears to be the interpretation that underlies the Board's statement that "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."
In our view, section 1-605.02 (6) does not compel the foregoing interpretation. The statutory phrase "award on its face is contrary to law and public policy" could reasonably be interpreted to mean something else; for example, the phrase could mean what FOP urges, i.e., that an arbitral "award on its face is contrary to law and public policy" only if the award actually is prohibited by relevant and applicable law. However, we are obligated to defer to the PERB's interpretation of the CMPA language unless the interpretation is plainly erroneous, a conclusion we are unable to reach here.*fn6 As we ourselves have previously reasoned, the statutory reference to an award that "on its face is contrary to law and public policy" may include an award that was premised on "a misinterpretation of law by the arbitrator that was apparent 'on its face.'" MPD, supra note 2, 901 A.2d at 787-88 (italics omitted). That is precisely what the PERB found to exist here.
Substantial evidence supports the PERB's finding that the arbitrator "relied on the Back Pay Act" as the basis for awarding relief to the aggrieved officers. In the remedy portion of his decision, Arbitrator Barrett ordered "back pay, with interest, for the period for which each [aggrieved officer] was separated [from his employment], in accordance with the Back Pay Act" (emphasis added). And, in describing DOC's termination of the officers as an "unwarranted personnel action," Arbitrator Barrett used a term of art set forth in the Back Pay Act. See 5 U.S.C. § 5596 (b)(1) (2006).*fn7
The Back Pay Act permits the award of "all or any part of the pay, allowances or differentials, as applicable which the employee normally would have earned or received during the period if the [unlawful] personnel action had not occurred [i.e., "back pay"], less any amounts earned by the employee through other employment during that period." 5 U.S.C. § 5596 (b)(1)(A)(i) (emphasis added). This language is "clear on its face," Doctors Council, supra, 914 A.2d at 697; as FOP admits, it unambiguously requires that back pay awarded to a wrongfully-terminated employee be reduced by the individual's interim earnings. No interpretation and no "comprehensive analysis" by the arbitrator or by the PERB were necessary to discern that, by its terms and "on its face," the Back Pay Act requires an offset of interim earnings. MPD, supra note 2, 901 A.2d at 788.Arbitrator Barrett, however, overlooked this provision of the very law that he relied upon in fashioning the arbitration award. Given this obvious incongruity, the PERB was not unreasonable in concluding that the award of back pay without offset was "contrary to law."
FOP further contends that the CMPA authorizes PERB to reverse an arbitral award only if the award is contrary to both "law and public policy" (italics and bold font in appellant's brief). By raising this argument for the first time in its brief to this court, FOP invites us to contravene D.C. Code § 1-617.13 (b) (2001), which states that "[n]o . . . objection to an order of the Board shall be considered . . . , unless such . . . objection was first urged before the Board."*fn8 Even if we were to consider FOP's argument drawing a distinction between law and public policy, it would likely be unavailing, since our decisions interpreting section 1-605.02 (6) establish that an award that is contrary to a specific law ipso facto may be said to be contrary to the public policy that the law embodies. MPD, supra note 2, 901 A.2d at 789 ("a public policy alleged to be contravened . . . is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests") (quoting W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766 (1983)).*fn9
In sum, because the PERB's decision was based on "substantial evidence" and reflects a reasonable interpretation of the CMPA, we must uphold it. Drivers, Chauffeurs, & Helpers Local Union No. 639, supra, 631 A.2d at 1215-16.