October 31, 2013
DISTRICT OF COLUMBIA, Appellant,
AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, DISTRICT COUNCIL 20 and Local 2921, Appellees.
Argued Feb. 27, 2013.
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 appellant.
Brenda C. Zwack, Washington, DC, for appellees.
Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and KING, Senior Judge.
BLACKBURNE-RIGSBY, Associate Judge.
The District of Columbia appeals from a Superior Court Order denying three motions  brought under the Revised Uniform
Arbitration Act (" Arbitration Act" ) to stay arbitration of public-sector labor grievances.  The trial court ruled that because the Comprehensive Merit Personnel Act (" CMPA" )  preempts the Arbitration Act, the court lacked jurisdiction to grant the requested stays. Because the trial court found that it did not have jurisdiction to grant the relief requested, it did not address the merits of the District of Columbia's motion, i.e., whether the grievances are arbitrable. On appeal, the District of Columbia argues, inter alia, that the Superior Court has jurisdiction over its motions to stay arbitration because the CMPA does not preempt the provision of the Arbitration Act that provides for a pre-arbitration motion to stay. We agree. As we recently held in Washington Teachers' Union, Local # 6, American Federation of Teachers, AFL-CIO v. District of Columbia Public Schools (" Washington Teachers' Union " ), 77 A.3d 441 (D.C.2013), the CMPA provides no comparable relief to a pre-arbitration motion to stay  and therefore
does not preempt that provision of the Arbitration Act.  Accordingly, the trial court had jurisdiction to stay arbitration, and we remand the remaining cases for further proceedings.
AFSCME is the recognized bargaining representative of certain DCPS employees. In September and October of 2009, AFSCME filed two grievances alleging that actions taken by DCPS in connection with a reduction-in-force (" RIF" ) violated the parties' collective bargaining agreement (" CBA" ). The parties were unable to resolve their dispute, and AFSCME sought arbitration. The District of Columbia, acting on behalf of DCPS, filed motions to stay the arbitrations under the Arbitration Act. The trial court denied the motions, and the District of Columbia appealed. The District of Columbia filed a motion with this court for an injunction staying arbitration of the underlying disputes pending appeal. This court denied the motion, and arbitration of the grievances has moved forward. See supra note 8.
The primary question before us— whether the CMPA preempts the Arbitration Act's motion-to-stay provision thus depriving the Superior Court of jurisdiction— was recently answered by this court in Washington Teachers' Union. Thus, the only remaining question in this case is how best to proceed on the merits of the parties' disagreement over whether the grievances are arbitrable.
Although the trial court did not reach the question of whether the grievances were arbitrable because it concluded that it lacked jurisdiction, the District of Columbia nonetheless urges us to resolve this issue without remanding the matter to the Superior Court, arguing that remand would be futile as only one disposition is possible as a matter of law. We will " eschew a remand as unnecessary ... if ...
the record before us [is] conclusive [,]" such that only one disposition is possible as a matter of law, and " we [can] state with complete assurance that further development of the record could not conceivably alter [the] result." Andrews v. Dist. of Columbia Police and Firefighters Ret. and Relief Bd., 991 A.2d 763, 776 (D.C.2010) (Schwelb, J., concurring) (citing In re Melton, 597 A.2d 892, 908 (D.C.1991) (en banc)). Nonetheless, there is no rule that compels this court to forgo remand and decide an issue for the first time on appeal. D.C.Code § 17-306 (2012 Repl.). For the reasons that follow, we conclude that the better course in this case is to remand.
First, we cannot ignore that the passage of time while this appeal has been pending may have altered the parties' circumstances. As noted earlier, an arbitrator has already determined that the CFSA grievance was not arbitrable, a decision that the union did not appeal, and hence that case is moot. See supra note 8. Counsel informed us during oral argument that the remaining two cases had been consolidated before an arbitrator for the purpose of determining arbitrability. However, we are unaware of the current status of that proceeding. Remanding to the Superior Court to determine whether arbitration of the grievances should be stayed, pursuant to the Arbitration Act, will better allow the parties to keep the court apprised of developments in the arbitration proceedings. Furthermore, AFSCME's failure to brief the merits of the arbitrability question has placed us in the somewhat unusual circumstance of deciding whether to remand, wait for supplemental briefing, or decide the question without the benefit of arguments on both sides. We are reluctant to forge ahead without offering AFSCME some avenue to express its views, but are also loathe to wait for supplemental briefing, particularly while the circumstances continue to change as the arbitration moves forward. Therefore, we feel the better course is to allow the parties to direct their arguments over the arbitrability of the grievances to the Superior Court in the first instance.
For the foregoing reasons, the order on appeal is hereby reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.
KING, Senior Judge, dissenting:
For the reasons I stated in my dissent in Washington Teachers' Union, Local # 6, American Federation of Teachers, AFL-CIO v. District of Columbia Public Schools, 77 A.3d 441, 459-60 (D.C.2013) (King, J., dissenting ), I respectfully dissent from the reversal of Judge Zeldon's ruling that she lacked jurisdiction to stay arbitration. However, I agree with the majority that, having reversed this decision, we should remand the case to the trial court rather than deciding the underlying issues ourselves.