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Washington Teachers' Union, American Federation of Teachers, AFL-CIO v. District of Columbia Public Schools

Court of Appeals of Columbia District

October 10, 2013

WASHINGTON TEACHERS' UNION, LOCAL # 6, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Appellant,
v.
DISTRICT OF COLUMBIA PUBLIC SCHOOLS, Appellee.

Argued Feb. 27, 2013.

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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.

I. Background

During the 2009-2010 school year, the District of Columbia implemented a new system for evaluating teachers, the IMPACT

Page 443

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,[1] 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,[2] 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. [3] WTU filed an opposition,

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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.[4]

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. [5] The trial court then found that, based on the provisions of the CBA, final ratings under IMPACT are not subject to arbitration.[6] 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

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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).[7] 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.).[8] The Revised Uniform Arbitration Act [9] 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

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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).[10] 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, and the establishment of a Public Employees Relations Board

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(" PERB" or the " Board" ). See D.C.Code §§ 1-616.52, -606.01, -617.15, -605.01, respectively. " The CMPA provides that ‘ an appeal from a removal [or other significant adverse employment action] may be made to the Office of Employee Appeals.’ " Brown v. Watts, 993 A.2d 529, 533 (D.C.2010) (alteration in original) (quoting D.C.Code § 1-616.52(b)). Such matters " that also fall within the coverage of a negotiated grievance procedure may, in the discretion of the aggrieved employee, be raised either pursuant to the [appeals procedure contained in the CMPA], or the negotiated grievance procedure, but not both." D.C.Code § 1-616.52(e).

In the instant case, the parties entered into a CBA, which will be discussed in more detail later, that included provisions regarding grievances and arbitration. PERB has the authority, inter alia, to: " [d]ecide whether unfair labor practices have been committed and issue an appropriate remedial order" ; " [c]onsider appeals from arbitration awards pursuant to a grievance procedure," which is " the exclusive method for reviewing the decision of an arbitrator concerning a matter properly subject to the jurisdiction of the Board, notwithstanding any provisions of [the Arbitration Act]" ; and to " [s]eek appropriate judicial process to enforce its orders and otherwise carry out its authority...." D.C.Code § 1-605.02. " Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain review of such order in the Superior Court of the District of Columbia by filing a request within 30 days after the final order has been issued." D.C.Code § 1-617.13(c).

C. Case Law

We have previously had occasion to address the applicability of certain provisions of the Arbitration Act to cases subject to the CMPA. In District of Columbia Metropolitan Police Department v. Fraternal Order of Police/Metropolitan Police Department Labor Committee, 997 A.2d 65, 76-77 (D.C.2010) (" FOP " ), we held that the prevailing party in a CMPA-sanctioned arbitration could seek enforcement of a grievance award only through PERB, and not through the Superior Court under the Arbitration Act. We observed that " [w]e often have recognized that the CMPA provides the exclusive remedy for many (though not all) grievances suffered by District government employees, and that the courts lack subject matter jurisdiction to award relief where the CMPA's remedies are exclusive." Id. at 77 (citations omitted). Our holding was supported by several " textual clues" from the CMPA, including " D.C.Code § 1-605.02(16), which states that the Board has the power to ‘ [s]eek appropriate judicial process to enforce its orders and otherwise carry out its authority.’ " Id. at 79. " Specifically, under the CMPA, ‘ [i]n cases of contumacy by any party or other delay or impediment of any character, the Board may seek any and all such judicial process or relief as it deems necessary to enforce and otherwise carry out its powers, duties and authority.’ " Id. (quoting D.C.Code § 1-605.02(16)). Our second textual clue, D.C.Code § 1-605.02(6), " states that the Board has the power to decide ‘ appeals from arbitration awards pursuant to a grievance procedure’ and that PERB review is ‘ the exclusive method for reviewing the decision of an arbitrator concerning a matter properly subject to the jurisdiction of the Board, notwithstanding provisions of §§ 16-4301 to 16-4319,’ that is, the provisions of the Arbitration Act." Id. We concluded that § 1-605.02(6) suggested " that the [District of Columbia] Council intended the Board, not the courts, to be the forum for proceedings after an award has been entered."

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[11] Id. We were further persuaded by the fact that " FOP could have fought MPD's alleged refusal to comply with the award by filing an unfair labor practice complaint with the Board under [D.C.Code] § 1-605.02(3)." Id. at 80. Accordingly, we concluded that, as to the enforcement of arbitration awards, " the CMPA is comprehensive and, therefore, preclusive." Id. Persuaded by FOP's reasoning, in District of Columbia v. American Federation of Government Employees, Local 1403, 19 A.3d 764, 774 (D.C.2011) ( " AFGE " ), we extended our holding in FOP to interest arbitration awards and concluded that " the Superior Court lacks the subject-matter jurisdiction to grant relief for a CMPA interest arbitration award under the Arbitration Act." [12]

III. Discussion

On appeal, WTU argues that the trial court erred in exercising jurisdiction because the Arbitration Act is preempted by the CMPA and DCPS failed to exhaust its CMPA remedies. WTU also argues, in the alternative, that even if the trial court had jurisdiction, it erroneously determined that WTU's grievance was not arbitrable to the extent that the grievance challenged the final evaluations under the IMPACT instrument. We address each argument in turn.

A. Statutory Preclusion and Subject Matter Jurisdiction

We review de novo whether the District of Columbia has a right to invoke the Arbitration Act because it is a purely legal question that calls for interpretation of the CMPA and the Arbitration Act. AFGE, supra, 19 A.3d at 771 (citing FOP, supra, 997 A.2d at 77; Arthur v. District of Columbia, 857 A.2d 473, 490 (D.C.2004)).

Relying on our decisions in AFGE and FOP, WTU argues that the CMPA preempts the Arbitration Act and therefore the Superior Court was without jurisdiction to consider the District of Columbia's motion for stay of arbitration. Therefore, according to WTU, the District of Columbia should have been required to follow the procedures set forth in the CMPA as their exclusive remedy, with the result that the District would be required to present the argument that they had not agreed to arbitrate final IMPACT ratings to the arbitrator to decide in the first instance, subject to review by PERB, whose decision would then be reviewable

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by the Superior Court. However, there is an important difference between this case and those relied upon by WTU, namely that this case involves pre-arbitration relief— an attempt to avoid being forced to arbitrate a dispute that the parties have not agreed to arbitrate— rather than post-arbitration relief, e.g., enforcement of an arbitration award. In our view, that difference is dispositive, and we conclude that the CMPA does not preclude the District of Columbia from seeking a pre-arbitration stay under the Arbitration Act. Accordingly, the Superior Court properly exercised jurisdiction in this case.

First, unlike in AFGE and FOP, there are no " textual clues" in the CMPA to suggest that the Council of the District of Columbia intended the CMPA to be the exclusive means for resolving pre-arbitration disputes. WTU does not suggest otherwise. Rather, WTU argues that " [t]he fact that the CMPA makes no exception or special provision for access to the Superior Court in the circumstances of the labor dispute at bar means that the Superior Court had no jurisdiction to enjoin arbitration in this case." WTU argues that because the CMPA is broadly preemptive, the District of Columbia would have to point to a clear exception to the broad preemptive effect of the CMPA. For support, WTU points to Feaster v. Vance, 832 A.2d 1277, 1286 (D.C.2003), where we upheld a preliminary injunction against a strike by school employees issued by the Superior Court. In Feaster, we explained that " [t]he CMPA commits the responsibility to resolve allegations of unfair labor practices to the Public Employee Relations Board." 832 A.2d at 1282 (citing D.C.Code § 1-617.02(b)(2)). The CMPA, D.C.Code § 1-617.04(b)(4), " makes it one of a number of specifically prohibited unfair labor practices for District government employees to engage in a strike or for their union to condone a strike." Id. Therefore, in order to uphold the Superior Court's jurisdiction over a matter that would otherwise be committed to the primary jurisdiction of PERB,[13] we found it important " that the CMPA contains not one but two provisions prohibiting strikes by government employees, only one of which bans them as unfair labor practices." Feaster, supra, 832 A.2d at 1283. The second provision was vital in Feaster because there was another provision directing parties to PERB and " [t]he second provision, a categorical declaration that such strikes are unlawful, is outside the unfair labor practice framework and makes no reference to enforcement through the PERB." Id.

Here, on the other hand, the CMPA is simply silent as to pre-arbitration remedies. This is in contrast to post-arbitration relief, such as that at issue in FOP and AFGE, where the CMPA states that PERB has the power to decide " appeals from arbitration awards pursuant to a grievance procedure," and that such review is " the exclusive method for reviewing the decision of an arbitrator concerning a matter properly subject to the jurisdiction of the Board, notwithstanding any provisions of Chapter 44 of Title 16," that is, the Arbitration Act.[14]D.C.Code § 1-605.02(6). The

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fact that the CMPA contains such explicit language undercuts WTU's argument about the CMPA's broad preemptive effect. If the CMPA preempted all relief available under the Arbitration Act, as WTU seems to suggest, the exclusivity provision in § 1-605.02(6) would be " mere surplusage." See Feaster, supra, 832 A.2d at 1283 (" We are loath to construe the second provision as mere surplusage. Rather, we must be especially mindful, in interpreting the CMPA as a whole, that each provision of the statute should be construed so as to give effect to all of the statute's provisions, not rendering any provision superfluous." (citations, internal quotation marks, and brackets omitted)). Moreover, § 1-605.02(6) demonstrates that the Council of the District of Columbia knew how to clarify whether certain provisions of the Arbitration Act are available in the public employment context and that, had it intended to preclude other forms of relief under the Arbitration Act, the Council would have done so explicitly.[15] The CMPA does not explicitly preempt pre-arbitration relief under the Arbitration Act.

Second, and also in contrast to FOP and AFGE, the CMPA does not implicitly preempt the Arbitration Act by providing a remedy that is comparable to the Arbitration Act's provision for a motion to stay arbitration. " When a statute creating new rights and remedies does not expressly exclude [existing] remedies or declare new remedies exclusive, we decide whether such remedies remain available by looking initially at ‘ the purpose of [the statute], the entirety of its text, and the structure of review that it establishes.’ " Thompson, supra, 593 A.2d at 632 (alteration in original) (quoting United States v. Fausto, 484 U.S. 439, 444, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) (Civil Service Reform Act of 1978 precludes employee's suit under Back Pay Act)). Applying this test, in determining whether the CMPA preempts an existing remedy, we note that our case law has given great consideration to whether the CMPA offers an existing remedy, which in certain instances may be considered more " substantial" than what would otherwise be provided outside the administrative scheme. See Thompson, supra, 593 A.2d at 635 (noting that " [t]he remedies available under CMPA are substantial and may, in some respects, afford more complete relief than damage remedies available at common law" ). For example, " the CMPA implicitly preempts a common law action only if the employee claims wrongful treatment and injury cognizable as a ‘ personnel issue’ under the [CMPA's] provisions." King v. Kidd, 640 A.2d 656, 663 (D.C.1993) (citations omitted) (concluding that the Superior Court had " jurisdiction to hear intentional infliction of emotional

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distress claims arising out of allegations of government workplace sexual harassment and subsequent retaliation" because such claims were not cognizable as personnel issues).[16] While it is true that our decisions in AFGE and FOP acknowledged the CMPA's " broad preemptive sweep," [17] our conclusion that the CMPA provided the parties with a remedy was essential to the holdings in those cases. See AFGE, supra, 19 A.3d at 773-74 & n. 8 (recognizing " two possible avenues for recourse under the CMPA: petitioning the Board to enforce its order ... and filing an unfair labor practice complaint" (citing FOP, supra, 997 A.2d at 80)).

Under the CMPA, there is no pre-arbitration remedy available to a party who claims that arbitration has been initiated or threatened by the opposing party concerning a dispute that the parties did not agree to arbitrate. Rather, under the CMPA, and as WTU concedes, such a party would be required to submit the question of arbitrability to the arbitrator to decide in the first instance, subject to review by PERB, and then appeal to the Superior Court. [18] As discussed in detail

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below, requiring a party to submit the question of arbitrability to an arbitrator to decide in the first instance, when it is the very authority of the arbitrator to hear the dispute that is at issue, is not comparable to a pre-arbitration decision by a judge, as provided for in the Arbitration Act. Therefore, for the reasons that follow, the CMPA does not preempt the provision of the Arbitration Act providing for a pre-arbitration stay.

When, as here, the parties have entered into a CBA that includes an arbitration clause, their obligation to submit to arbitration derives from and is defined by the CBA. As we have previously observed, " arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he [or she] has not agreed so to submit." AFGE, Local 3721, supra, 563 A.2d at 362 (alteration in original) (quoting Warrior & Gulf Navigation Co., supra, 363 U.S. at 582, 80 S.Ct. 1347). " This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration." AT & T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 648-49, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (citation omitted). Accordingly, " the question of arbitrability— whether a collective-bargaining agreement creates a duty for the parties to arbitrate the particular grievance— is undeniably an issue for judicial determination." Id. at 649, 106 S.Ct. 1415. This is the recognized rule in the District of Columbia, both under our case law and as preserved in the Arbitration Act. See, e.g., D.C.Code § 16-4406(b) (" The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate." ); AFGE, Local 3721, supra, 563 A.2d at 362 (" Under District of Columbia law, when deciding whether to order arbitration, the trial court must determine as a matter of law whether the parties agreed to arbitrate the particular dispute at issue." (citations omitted)). " [W]here a party challenges the arbitrability of a dispute, it is the very authority of the arbitrator to decide that is at issue, and the presumption is that the court must first settle the basic contractual question, unless the parties ‘ clearly and unmistakably provide otherwise.’ " Woodland Ltd. P'ship v. Wulff, 868 A.2d 860, 864 (D.C.2005) (quoting AT & T Techs., supra, 475 U.S. at 649, 106 S.Ct. 1415) (citing Grad v. Wetherholt Galleries, 660 A.2d 903, 908 (D.C.1995)).[19] Here, the parties made no such provision in the CBA. Therefore, unless the CMPA implicitly preempts the pre-arbitration relief afforded by the Arbitration Act, i.e., a motion to stay arbitration,

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the Superior Court was the appropriate venue for the District of Columbia's challenge to the arbitrability of WTU's grievance.

The relief available under the CMPA— submitting the question of arbitratibility to the arbitrator subject to later review by PERB and the Superior Court— is not comparable to the pre-arbitration relief provided in the Arbitration Act. If forced to proceed with arbitration of a non-arbitrable matter, the District of Columbia, like any party in its situation, would be required to expend resources on those proceedings.[20] The Arbitration Act recognizes the importance of both pre- and post-arbitration remedies by providing for both. See D.C.Code § 16-4407(b) & (c) (providing for a motion to stay arbitration where it is alleged that " an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate" ); D.C.Code § 16-4423(a) (providing for a motion to vacate an award where, among other reasons, " [a]n arbitrator exceeded the arbitrator's powers" or " [t]here was no agreement to arbitrate" ).[21] Had the Council of the District of Columbia intended post-arbitration appeal, as provided in the CMPA, to be the sole remedy available notwithstanding the Arbitration Act and the agreement-oriented justification for arbitration, it would have made such intent clear. See Nat'l Org. for Women v. Mut. of Omaha Ins. Co., 531 A.2d 274, 276 (D.C.1987) (" If the Council had intended to effect such a dramatic change ..., it is reasonable to assume that there would have been at least some specific reference to it in the language of the Act or, at least, within its legislative history." (citations omitted)).[22] Furthermore, the question at issue in a motion to stay arbitration— whether an agreement to arbitrate exists and encompasses the dispute at hand— is a matter of contract interpretation that courts are well-equipped to handle, rather than a matter of labor relations that would benefit from the unique expertise of an arbitrator and PERB.  

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See 2200 M Street LLC v. Mackell, 940 A.2d 143, 152 (D.C.2007) (" Determining the scope of an agreement to arbitrate, like other issues of contract interpretation, is one that this court undertakes de novo. " (citations omitted)); Feaster, supra, 832 A.2d at 1284 (" [T]he issue before the Superior Court in an action for injunctive relief is comparatively narrow— the court is not called upon in such an action to intrude on the Board's area of labor relations expertise...." (citation omitted)).[23] Because the CMPA neither expresses an intent to preclude a motion to stay arbitration under D.C.Code § 16-4407 nor provides a comparable remedy, we conclude that this portion of the Arbitration Act is not preempted by the CMPA and the Superior Court had jurisdiction to grant the relief sought by the District of Columbia.[24] It bears repeating that we are only called upon to determine the default position where the parties' CBA is silent as to who should decide issues of arbitrability.[25] Like other contracting parties, District of Columbia employees and management are free to provide that issues of arbitrability are to be decided by the arbitrator in the first instance, but they must express such intent clearly and unmistakably in their collective bargaining agreement. E.g., Woodland Ltd. P'ship, supra, 868 A.2d at 864.

Finally, we are unpersuaded by WTU's argument that a holding permitting parties to seek pre-arbitration relief in Superior Court, pursuant to the Arbitration Act, " would create conflicting alternative forums where in the Superior Court, an agency might obtain an order enjoining arbitration while, before PERB, a union representing that agency's employees might obtain an unfair labor practice ruling and order to arbitrate." For support, WTU points to our observation in FOP that PERB has repeatedly held that " ‘ when a party simply refuses or fails to implement an award or negotiated agreement where no dispute exists over its terms, such conduct constitutes a failure to bargain in good faith and, thereby, an unfair labor practice under the CMPA.’ " FOP, supra, 997 A.2d at 79-80 (emphasis added by WTU) (quoting Int'l Bhd. of Police Officers, Local 446, Nat'l Ass'n of Gov't Emps. v. District of Columbia, 47 D.C.Reg. 7184, 7187, Slip Op. No. 622, PERB Case No. 99-U-30 (2000) ( " International Brotherhood " )). WTU overlooks that PERB has held that it is an unfair labor practice to fail to implement a negotiated agreement only where no dispute

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exists over its terms. Where, as here, one party has filed an arbitration demand covering a matter that the other party contends is not arbitrable, there is clearly a dispute over the meaning of the parties' agreement,[26] and the question is who should resolve that dispute— a court or an arbitrator.[27] We have now resolved that any initial dispute over whether a demand for arbitration is encompassed by the parties' arbitration agreement should be answered by the Superior Court if a party seeks to stay arbitration and the parties' agreement does not clearly direct that dispute to the arbitrator. In the event of simultaneous proceedings before the Superior Court, in a motion to stay arbitration, and PERB, in an unfair labor complaint alleging a failure to submit to arbitration, parties can easily avoid any conflicting results by keeping PERB informed of proceedings in Superior Court.[28] Therefore, our holding does not, as WTU contends, create the " alternative forum" that we rejected in AFGE and FOP. [29] Rather, consistent

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with the Arbitration Act, the Superior Court's role is limited to preventing a party from being forced to arbitrate a controversy that is clearly not encompassed by the parties' arbitration agreement. See D.C.Code §§ 16-4406(b), -4407.[30]

B. Arbitrability

Having concluded that the Superior Court properly exercised jurisdiction in this case, we now address WTU's argument that the trial judge erred by granting DCPS's motion to stay arbitration to the extent that WTU's grievance challenged the final evaluations under the IMPACT instrument. " Arbitrability— whether there was an agreement to arbitrate a particular dispute— is a question of law that we review de novo ." Giron v. Dodds, 35 A.3d 433, 437 (D.C.2012) (citation omitted). " Where there is an arbitration clause in a contract, there is a presumption of arbitrability concerning the dispute at issue, [and] any ambiguity as to whether the arbitration provision covers a dispute is resolved in favor of arbitration." AFGE, Local 3721, supra, 563 A.2d at 362 (citations and internal quotation marks omitted). " On the other hand, if the court has ‘ positive assurance’ that the parties did not intend the dispute sub judice to be resolved through arbitration, then the court may not compel arbitration, because to do so would be contrary to the parties' agreement." 2200 M St. LLC, supra, 940 A.2d at 152 (citations omitted). Therefore, the presumption in favor of arbitration becomes operative only where the court must interpret an ambiguous clause in the

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agreement. Id. Additionally, even where the arbitration clause itself is broad, an " express provision excluding a particular grievance from arbitration" can render application of the presumption in favor of arbitration unnecessary. See Warrior & Gulf Navigation Co., supra, 363 U.S. at 584-85, 80 S.Ct. 1347.

Several provisions of the parties' CBA are relevant here. Article 6 sets forth the grievance procedure, which proceeds in three steps. The first step provides for a three-stage mediation procedure. If the matter is not resolved at step one, the grievance advances to step two, which involves a meeting between the Chancellor and WTU representatives. Finally, step three provides for arbitration. Article 6 specifies that the arbitrator " shall have no power to delete or modify in any way any of the provisions of [the CBA]" and that " [n]o provision of [the CBA], which is a matter of policy, shall be subject to arbitration." Article 15 addresses teacher evaluation and provides:

15.3 DCPS's compliance with the evaluation process, and not the evaluation judgment, shall be subject to the grievance and arbitration procedure.
15.4 The standard for separation under the evaluation process shall be " just cause," which shall be defined as adherence to the evaluation process only.
15.5 Employees maintain their rights to appeal below average or unsatisfactory performance evaluations pursuant to Title 5 of the DCMR, Sections 1306.8-1306.13.
15.6 If a Teacher decides to challenge an alleged violation of the evaluation process, s/he has the option to request mediation at Step 1 or to commence a grievance at Step 2. If the alleged violation occurs in connection with an evaluation that results in termination, the hearing at Step 2 shall receive priority over all other pending grievances except those related to termination.

The trial court first determined that the parties had an enforceable agreement to arbitrate, which DCPS did not contest. Next, the trial court examined whether the underlying dispute fell within the scope of the arbitration agreement. The court concluded that the " judgment," i.e. the " actual rating," is not arbitrable because § 15.3 " clearly indicates" that " DCPS's compliance with the evaluation process, and not the evaluation judgment, shall be subject to the grievance and arbitration procedure." However, the trial court concluded that " whether the process was complied with" is arbitrable. Finally, the court ruled that a party wishing to challenge the final evaluation judgment should follow the process for appeal to the Superintendent and the Office of Employee Appeals set out in Title 5 of the District of Columbia Municipal Regulations, as referenced in § 15.5 of the CBA.

WTU argues that the CBA is susceptible of an interpretation that covers the entire dispute and therefore the trial court, in accordance with the presumption in favor of arbitrability, should have denied DCPS's motion to stay. Specifically, WTU argues that reading §§ 15.3 through 15.6 together, " the correct reading is that, when an evaluation is issued without following the IMPACT procedures correctly, that evaluation may be challenged through the grievance-arbitration procedure," and " [a]s a remedy, the evaluation obtained in violation of the IMPACT process should be rescinded." WTU argues that " [t]his is not a challenge to the reviewing official's ‘ evaluation judgment’ within the meaning of [§ ] 15.3 because the correctness of that

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judgment is impossible to determine given the failure to follow the process correctly." [31] WTU also disagrees with the trial court's interpretation of § 15.5 and argues that the purpose of that section " is that in those cases where the evaluation process was followed correctly, employees may nevertheless challenge the judgment of the evaluating official by appealing to OEA." [32] The District of Columbia argues that § 15.3 of the CBA is unambiguous and renders IMPACT ratings non-arbitrable.

WTU is correct that alleged violations of the IMPACT process are an appropriate subject for grievance and arbitration as indicated by §§ 6.5.15, 15.3, and 15.6 of the CBA. However, we are not convinced by WTU's argument that the CBA authorizes an arbitrator to rescind or amend an evaluation judgment as a remedy for DCPS's violation of the evaluation process. Rather, we agree with the trial court and the District of Columbia that while an arbitrator can consider whether DCPS complied with the IMPACT process and, if a violation is found, can craft a remedy, the arbitrator cannot rescind or amend a final evaluation, i.e., an " evaluation judgment." To allow an arbitrator to rescind or amend the evaluation, as WTU requested in its grievance, would result in the evaluation judgment being " subject to" the grievance and arbitration procedure in contravention of § 15.3. As Article 6 makes clear, while the arbitrator is authorized to " make appropriate awards," the arbitrator " shall have no power to delete or modify in any way any of the provisions of [the CBA]."

In excluding evaluation judgments from the arbitration agreement, the CBA does not distinguish between the grounds for arbitration and the remedies available. Section 15.3 plainly states that the " evaluation judgment" is not " subject to" arbitration, leaving no room for rescission or amendment of the evaluation judgment on any grounds. Likewise, § 15.5 fails to make a distinction between the ground for the challenge to the evaluation and the remedies available. Rather, it allows employees to appeal " below average or unsatisfactory performance evaluations" to OEA, regardless of the ground for the appeal. Thus, the unambiguous exclusion in § 15.3 precludes the application of the presumption favoring arbitrability, and the trial court correctly granted the District of Columbia's motion to the extent that WTU's grievance sought to challenge final evaluations obtained under the IMPACT instrument. See Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 130 S.Ct. 2847, 2859-60, 177 L.Ed.2d 567 (2010) (" We have applied the presumption favoring arbitration, in [Federal Arbitration Act] and in labor cases, only where it reflects, and derives its legitimacy from, a judicial conclusion that arbitration of a particular dispute is what the parties intended because their express agreement to arbitrate ... [is] best construed to encompass the dispute." ).[33]

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In sum, while the CBA contains an enforceable arbitration provision, it also contains an express provision, § 15.3, excluding evaluation judgments from the grievance and arbitration procedure. This provision is unambiguous, and therefore the presumption in favor of arbitration does not apply. See 2200 M St. LLC, supra, 940 A.2d at 152. Thus, as the trial court concluded, it can be said with " positive assurance" that the parties did not intend challenges to the evaluation judgments to be resolved through arbitration. Id. Therefore, the trial court properly granted the motion to stay to the extent that WTU's grievance sought to challenge the final evaluation judgments.

IV. Conclusion

For the foregoing reasons, we hold that the CMPA does not preempt the provision of the Arbitration Act that provides for a motion to stay arbitration. Because we agree with the trial judge that the parties did not agree to submit evaluation judgments to arbitration, we affirm the order granting, in part, the District of Columbia's motion to stay arbitration.

So ordered.

Opinion for the court by Associate Judge BLACKBURNE-RIGSBY.

Dissenting opinion by Senior Judge KING.

KING, Senior Judge, dissenting:

In earlier decisions, we have held that the CMPA is " comprehensive and therefore preclusive." District of Columbia Metro. Police Dep't v. Fraternal Order of Police/Metro. Police Dep't Labor Comm. (" FOP " ), 997 A.2d 65, 80 (D.C.2010). Because it " governs all disputes involving DC municipal employees," it " forecloses applicability of the [RUAA] to collective bargaining agreements between the District and municipal employees." District of Columbia v. Am. Fed'n of Gov't Emps., Local 1403 (" AFGE, Local 1403 " ), 19 A.3d 764, 765 & 770 (D.C.2011). Here, the court cabins these decisions, holding that CMPA's preemption of the RUAA is only partial. Thus while the majority holds that the CMPA precludes parties from going to court to confirm or enforce grievance arbitration awards, FOP at 76-77, and interest arbitration awards, AFGE, Local 1403 at 774, it does not deprive the Superior Court of jurisdiction to decide motions to stay arbitrations sought under collective bargaining agreements between public employee unions and the District.

This decision undercuts one of the Council's intentions in enacting the CMPA, which was to create a " comprehensive, city-wide system of public personnel administration," FOP at 78, and threatens to revive the " disjointed, decentralized personnel system" that the CMPA was " designed to replace." Id. at 80. The majority's decision will now require trial courts to draw subtle distinctions between what the parties did and did not agree to arbitrate. Here, for instance, the trial court had to determine exactly which aspects of the union's dispute over the IMPACT teacher evaluation system were covered under the collective bargaining agreement. It ruled that the union's challenge to the procedures DCPS followed to evaluate teachers under IMPACT could proceed to arbitration, but its challenge to the final ratings DCPS reached using these procedures could not. This decision allows parties to split complex disputes between two forums if the Superior Court is empowered to stay arbitration on some aspects of the dispute but not others. As Judge Zeldon

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noted in her decision in District of Columbia v. Am. Fed'n of State, County, & Mun. Emps., Local 2921 (" AFSCME" ),[34]

As a matter of policy, it makes sense to require the District and the union to attempt to resolve their differences about the scope of collective bargaining and the validity of a contract provision on [reductions in force] within the framework of the CMPA. The parties seem to be disputing where the line can and should be drawn between the District's rights to identify positions for abolishment and the Union's collective bargaining rights, if any, once the District decides to exercise its power to select employees for a reduction in force. Such attempted line drawing is best left to arbitrators picked by both parties and by PERB, which has expertise in this complex area of labor law, rather than to various trial judges managing busy dockets. AFSCME, No. 2010 CA 004943 B, slip op. at 8 (D.C.Super.Ct. March 7, 2012).

As PERB has long recognized, " arbitrability is an initial question of the arbitrator to decide," and leaving that question to the arbitrator promotes the most consistent results. If the District disagrees with the arbitrator's conclusion, it may appeal to PERB and seek judicial review of PERB's decision in the courts. See, e.g., District of Columbia Pub. Emp. Relations Bd. v. Fraternal Order of Police/Metro. Police Dep't Labor Comm., 987 A.2d 1205 (D.C.2010).

Finally, even though our statutes make the District's evaluation process and instruments of evaluation of DCPS employees " non-negotiable for collective bargaining purposes," D.C.Code § 1-617.18, PERB has ruled that similar statutory provisions giving the District non-negotiable rights to identify positions for abolishment " do not limit the rights of employees and/or unions to arbitrate issues, which may arise during a [reduction in force]" AFGE, Local 631, PERB Case No. 09-U-57, Op. No. 1264, at 8 (D.C.P.E.R.B. Feb. 23, 2012). According to PERB, " the [RIF] statute did not expressly exclude matters, covered by a[CBA], from the grievance and arbitration provisions of a binding [CBA]." Id. If every dispute arising out a RIF is excluded from the grievance and arbitration provisions of a binding CBA, much of the CBA would be rendered ineffective.

For these reasons, I respectfully dissent.


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