WASHINGTON TEACHERS' UNION, LOCAL # 6, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Appellant,
DISTRICT OF COLUMBIA PUBLIC SCHOOLS, Appellee.
Argued Feb. 27, 2013.
Darryl J. Anderson, with whom Lee W. Jackson and Brenda C. Zwack, Washington, DC, were on the brief, for appellant.
Holly M. Johnson, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and KING, Senior Judge.
Blackburne-Rigsby, Associate Judge:
This case arises out of a dispute between appellant Washington Teachers' Union (" WTU" ) and the District of Columbia Public Schools (" DCPS" or the " District of Columbia" ) over whether a grievance challenging the final performance evaluation ratings of hundreds of teachers during the 2009-2010 school year is subject to arbitration. Exercising jurisdiction over the dispute under the District of Columbia Revised Uniform Arbitration Act (" Arbitration Act" ), D.C.Code §§ 16-4401 to -4432 (2012 Repl.), the Superior Court partially granted DCPS's motion to stay arbitration to the extent that WTU's grievance seeks to challenge the performance evaluation ratings. As a result, while WTU's grievance alleging that the District of Columbia failed to properly follow the evaluation process can move forward to arbitration, the arbitrator cannot, as a remedy for any violation, rescind or amend the evaluation ratings themselves, although the arbitrator is free to craft other remedies. The primary question before us in WTU's appeal of the stay is whether the Superior Court had jurisdiction over this matter pursuant to the Arbitration Act. WTU argues that the Arbitration Act is preempted by the District of Columbia Comprehensive Merit Personnel Act (" CMPA" ), D.C.Code §§ 1-601.01 to -636.03 (2011 Repl.), and therefore the Superior Court was without jurisdiction, and the District of Columbia must submit the question of whether the grievance challenging the performance evaluation ratings is subject to arbitration to the arbitrator to decide in the first instance, subject to appeal to the Public Employees Relations Board and then review by Superior Court. We conclude that the CMPA does not preempt the Arbitration Act as to the type of pre-arbitration relief sought in this case, for which the CMPA provides no alternative. Accordingly, the Superior Court did have jurisdiction to issue the stay. Alternatively, WTU argues that the Superior Court erroneously interpreted the parties' 2007-2012 collective bargaining agreement (" CBA" ) and should have denied the District of Columbia's motion to stay arbitration. We conclude that the Superior Court properly interpreted the CBA. Accordingly, we affirm.
During the 2009-2010 school year, the District of Columbia implemented a new system for evaluating teachers, the IMPACT
evaluation instrument. Under this system, approximately 94 teachers were rated " ineffective" and approximately 670 were rated " minimally effective." Almost all of the teachers rated " ineffective" were separated at the end of the school year, and the teachers rated " minimally effective" were subject to termination the following year if their ratings did not improve.
In November 2010, WTU filed a demand for arbitration with the American Arbitration Association (" AAA" ) " regarding the final annual rating of [certain named members] and all other WTU bargaining unit members who received a ‘ Minimally Effective’ or ‘ Ineffective’ IMPACT rating during the 2009-2010 School Year." WTU claimed that the challenged ratings were in violation of certain provisions of the CBA and the IMPACT performance evaluation process itself. In particular, WTU alleged, among other things, that the District of Columbia had: used " unreliable data in assessing individual performances" ; provided " unclear expectations" in the evaluation standards; employed " arbitrary and capricious" methods of scoring; and failed to consider criteria " essential for a fair and objective assessment" of the teachers' performance. WTU requested that the teachers' negative performance evaluations be rescinded, that all records of the ratings be expunged, " and that those ratings be replaced with an IMPACT rating of ‘ Effective.’ "
The District of Columbia requested that the AAA refrain from processing the grievance, arguing, inter alia, that WTU was " expressly precluded from [challenging the final annual ratings of its members] under any scenario" and therefore, the dispute was not subject to arbitration. After being informed by the AAA that the arbitration would proceed, the District of Columbia filed a motion with the Superior Court requesting a permanent stay of arbitration pursuant to the Arbitration Act, D.C.Code § 16-4407. The District of Columbia argued that the grievance was not arbitrable because under the CMPA, evaluation instruments, such as IMPACT, are not negotiable for collective bargaining purposes, and therefore " the sections of the [CBA] governing the implementation of IMPACT are not enforceable against DCPS and as such cannot be subject to an arbitration agreement between the parties." The District of Columbia also argued that, even if enforceable, the provisions of the CBA did not permit teachers to challenge their final IMPACT ratings through arbitration. Finally, the District of Columbia argued that a court, not an arbitrator, should decide the issue of arbitrability in the first instance because DCPS had not agreed to submit that question to an arbitrator.  WTU filed an opposition,
arguing that: the issue of arbitrability was one for the arbitrator to decide in the first instance; the grievance was arbitrable under the language of the CBA; and the statutory and regulatory provisions relied upon by the District of Columbia did not preclude arbitration.
After holding a hearing on the matter, the trial court granted, in part, the District of Columbia's motion to permanently stay arbitration, finding that to the extent the grievance sought to challenge final ratings obtained under the IMPACT instrument, it was non-arbitrable; but to the extent the grievance sought to challenge whether DCPS properly adhered to the evaluative process outlined in the IMPACT instrument, the trial court ordered the parties to proceed to arbitration. The trial court first found that the issue of arbitrability was one for the court, rather than the arbitrator, to decide.  The trial court then found that, based on the provisions of the CBA, final ratings under IMPACT are not subject to arbitration. The District of Columbia does not challenge the partial denial of its motion, and therefore the only issue before us is whether the trial court properly granted the motion to stay arbitration as to the final IMPACT evaluation judgments.
II. Legal Framework
This case requires us to address the interaction between two statutes governing arbitration and labor disputes in the District of Columbia: the Arbitration Act and the CMPA. How these statutes interact in the specific context of a pre-arbitration challenge to an arbitrator's authority to decide a labor grievance is an issue that has divided judges of the Superior Court. Compare District of Columbia Pub. Sch. v. Washington Teachers' Union, Local # 6, Am. Fed'n of Teachers, AFL-CIO, No. 2011 CA 1161 B (D.C.Super.Ct. Aug. 3, 2011) (Josey-Herring, J.) (decision on review in this case, granting, in part, DCPS's motion to stay arbitration), and Washington Teachers' Union, Local # 6 v. Michelle Rhee, No. 2009 CA 7482 B (D.C.Super.Ct. Sept. 7, 2012) (Bartnoff, J.) (enjoining arbitration to the extent that the Union attempts to challenge or seek relief from the reduction-in-force (RIF) through arbitration), with District of Columbia v. Am. Fed'n of State, Cnty., & Mun. Emps., Dist. Council 20 and Local 2921, Nos.2010 CA 4943 B, 2010 CA 4944 B, and 2010 CA 9096
B (D.C.Super.Ct. Mar. 7, 2012) (Zeldon, J.) (denying motions to stay arbitration and dismissing for lack of jurisdiction). Before addressing the issues before us, we will give an overview of the relevant statutory provisions and previous cases considering their interaction with one another.
A. The Arbitration Act
" Before 1977, common law rules regarding judicial interference in arbitration proceedings applied in the District of Columbia. In 1977, the District of Columbia adopted the Uniform Arbitration Act, which applie[d] to agreements ‘ made subsequent to its enactment.’ " Thompson v. Lee, 589 A.2d 406, 410 n. 5 (D.C.1991) (quoting D.C.Code § 16-4318 (1989)) (additional citation omitted). The D.C. Uniform Arbitration Act applied broadly to any " written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties," including " arbitration agreements between employers and employees or between their respective representatives," making such agreements " valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract." D.C.Code § 16-4301 (1997 Repl.). The Revised Uniform Arbitration Act  was adopted by the District of Columbia in 2008 and beginning on July 1, 2009, " governs an agreement to arbitrate whenever made." D.C.Code § 16-4403(e). Of particular relevance here, the Arbitration Act authorizes a party to submit a motion to stay arbitration to the Superior Court on
the basis that an arbitration proceeding has been initiated or threatened but there is no agreement to arbitrate the particular dispute. D.C.Code § 16-4407(b). In response to such a motion, " the court shall proceed summarily to decide the issue" and " [i]f the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate." Id. The question of " whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate" is for a court to decide, D.C.Code § 16-4406(b), but the arbitrator is given the authority under the Act to decide other questions, such as " whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable," D.C.Code § 16-4406(c). This division of authority between the court and the arbitrator stems from the principle that arbitrators derive their authority from the consent of the parties, as expressed through their agreement to arbitrate. Because " a party cannot be required to submit to arbitration any dispute which he [or she] has not agreed so to submit," the question of whether a particular dispute is subject to arbitration is reserved for the court to decide. Am. Fed'n of Gov't Emps., Local 3721 v. District of Columbia, 563 A.2d 361, 362 (D.C.1989) ( " AFGE, Local 3721 " ) (alteration in original) (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)).
B. The CMPA
Before the CMPA was enacted, the District of Columbia's " personnel system was ‘ in disarray’ and ‘ chaos'; it was an ‘ inefficient hodge-podge system [that] ignore[d] the rudimentary merit rules' and ‘ awkwardly meshed’ the District personnel apparatus with the federal personnel system." District of Columbia v. Thompson, 593 A.2d 621, 632 (D.C.1991) (quoting COUNCIL OF DISTRICT OF COLUMBIA, DISTRICT OF COLUMBIA COMPREHENSIVE MERIT PERSONNEL ACT OF 1978, COMM. REPORT ON BILL NO. 2-10, 26 (July 5, 1978), (" COMMITTEE REPORT" ), reprinted in HOUSE COMM. ON THE DIST. OF COLUMBIA, DISTRICT OF COLUMBIA GOVERNMENT COMPREHENSIVE MERIT PERSONNEL ACT OF 1978 AND REPORT OF THE COUNCIL OF THE DISTRICT OF COLUMBIA, 96TH CONG., 1ST SESS. 142 (Comm. Print 1979)). In enacting the CMPA in 1979, " the Council intended to create ‘ a modern, flexible, comprehensive city-wide system of public personnel administration’ that would provide ‘ for the efficient administration of the District of Columbia personnel system and establish impartial and independent administrative procedures for resolving employee grievances.’ " Id. at 633 (quoting COMMITTEE REPORT, supra, at 39, 40).
The CMPA establishes a merit personnel system that includes provisions for: disciplinary grievances and appeals, the establishment of an Office of Employee Appeals, negotiation of collective bargaining agreements, ...