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D.C. Fire & Emergency Medical Services Department v. District of Columbia Public Employee Relations Board

Court of Appeals of Columbia District

December 11, 2014

DISTRICT OF COLUMBIA FIRE & EMERGENCY MEDICAL SERVICES DEPARTMENT, APPELLANT,
v.
DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, APPELLEE, AND LOCAL 36, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, INTERVENOR-APPELLEE

Argued: November 13, 2013.

Appeals from the Superior Court of the District of Columbia. (CAP-7110-11). (Hon. Peter A. Krauthamer, Trial Judge).

Affirmed.

Todd S. Kim, Solicitor General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellant.

Geoffrey H. Simpson, with whom Bruce A. Fredrickson and Cedar P. Carlton were on the brief, for appellee.

Jeremiah A. Collins, with whom Devki K. Virk and Jacob Karabell were on the brief, for intervenor-appellee.

Before WASHINGTON, Chief Judge, BECKWITH, Associate Judge, and NEBEKER, Senior Judge.

OPINION

Page 993

Beckwith, Associate Judge.

This case involves a dispute between the District of Columbia Fire and Emergency Medical Services Department (FEMS) and the intervenor here, Local 36, International Association of Fire Fighters (Local 36), over the question whether Congress intended to permanently or only temporarily restrict local firefighters. bargained-for overtime pay in a law passed in response to a fiscal crisis in the late 1990s. FEMS appeals from a Superior Court order affirming a decision by the District of Columbia Public Employees Relations Board (PERB), which in turn sustained an arbitration award granted in favor of Local 36. Taking note of the presumption against permanence that typically applies to provisions in appropriations bills, the Superior Court ruled that § 156 of the 2001 District of Columbia Appropriations Act was a temporary measure that expired at the end of the 2001 fiscal year. Pub. L. No. 106-522, 114 Stat. 2440, 2477 (2000). For the reasons explained below, we affirm the judgment of the Superior Court.

I.

The roots of this dispute are found in a piece of legislation Congress passed nearly twenty years ago called the District of Columbia Financial Responsibility and Management Assistance Act of 1995 (FRMAA). Pub. L. No. 104-8, 109 Stat. 97 (1995) (codified as D.C. Code § § 47-391.01 to -395 (2012 Repl.)). Determining that " [a] combination of accumulated operating deficits, cash shortages, management inefficiencies, and deficit spending in the current fiscal year [had] created a fiscal emergency in the District of Columbia," 109 Stat. 97 at § 2 (a)(1), Congress created a board--the Financial Responsibility and Management Assistance Authority (Control Board)--to assist the District's government in " restructuring its organization

Page 994

and workforce," " modernizing its budget," and ensuring long-term economic vitality by reviewing the financial impact of important government activities prior to their implementation. Id. at § 2 (b)(4)-(8).

In the Omnibus Consolidated Appropriations Act of 1997, Congress expanded the Control Board's authority, granting it the power to issue orders, rules, and regulations " as it consider[ed] appropriate to carry out [its] purposes." Pub. L. No. 104-208, 110 Stat. 3009 § 5203 (f) (1996) (codified as D.C. Code § 47-392.7 (2012 Repl.)). Pursuant to that authority, the Control Board issued an order on December 27, 1996, overriding provisions in collective bargaining agreements (CBAs) that required the District to compensate public employees more generously than required by the Fair Labor Standards Act (FLSA), 29 U.S.C. § § 201 et seq. While District firefighters had previously negotiated time-and-a-half wages for any hours worked exceeding an average of forty-two hours per week over a four-week period, the FLSA requires only that firefighters be compensated at a time-and-a-half rate for hours worked exceeding an average of fifty-three hours per week over a four-week span. 29 U.S.C. § 207 (k); see also 29 C.F.R. § 553.230.

Within a few months of the Control Board's order, individuals and unions affiliated with the American Federation of Government Employees (AFGE) filed a lawsuit in United States District Court to challenge the Control Board's authority to abrogate previously agreed-upon collective bargaining agreements. American Fed'n of Gov't Emps. v. District of Columbia Fin. Responsibility & Mgmt. Assistance Auth., No. 97-807, Complaint and Amended Complaint (D.D.C. filed Apr. 22 and May 5, 1997). While that case was pending, the United States Court of Appeals for the District of Columbia Circuit issued an opinion in a case in which a local university's faculty union challenged a different Control Board order on similar grounds. In University of District of Columbia Faculty Ass'n v. District of Columbia Fin. Responsibility & Mgmt. Assistance Auth., the D.C. Circuit held that Congress had not intended to delegate to the Control Board authority to abrogate existing CBAs. 163 F.3d 616, 618 (D.C. Cir. 1998). Relying on that opinion, the district court granted AFGE's motion for summary judgment and enjoined implementation of the order in question.

Shortly thereafter, Congress passed the 2001 District of Columbia Appropriations Act, in which Congress made clear that the D.C. Circuit had misunderstood the intent behind the Omnibus Consolidated Appropriations Act of 1997. Pub. L. No. 106-522, 114 Stat. 2440, 2477 (2000). Section 156 (a) of the 2001 Act replicated the Control Board's order (making only immaterial changes), and § 156 (b) provided that " [s]ubsection (a) of this section shall be effective December 27, 1996" and that " [t]he Resolution and Order of the [Control Board], dated December 27, 1996, is hereby ratified and approved and shall be given full force and effect." Id. In light of Congress's clear statement, the district court reversed course and issued a new opinion, ruling that " [i]t is apparent that Congress intended to bind all employees of the District to the rules regarding compensation for overtime work found in the [FLSA]." American Fed'n of Gov't Emps. v. District of Columbia Fin. Responsibility & Mgmt. Assistance Auth., 133 F.Supp.2d 75, 78-79 (D.D.C. 2001).

The Control Board, concluding that it had fulfilled all of its duties and responsibilities as specified in the FRMAA, suspended its activities on September 30, 2001. While most of the Control Board's actions were temporary measures taken in

Page 995

response to a temporary fiscal crisis, the Board had the authority to take actions that would continue even after it suspended its activities, and it did enact many permanent laws during its brief life. The central question of this case is whether Congress intended § 156--the section ratifying and " giv[ing] full force and effect" to the Control Board's 1996 Order that prohibited overtime compensation exceeding the FLSA minimum--to lapse at the end of fiscal year 2001, or whether it intended that provision to remain as permanent law for the District of Columbia.

FEMS, believing that § 156 enacted permanent law, eschewed the more generous overtime arrangement negotiated between the District and several of its largest bargaining units in favor of § 156's lower rate. On October 12, 2007, Local 36--the union representing approximately 1,700 District firefighters and emergency medical responders--filed a grievance against FEMS through the office of the fire department chief. The union sought prospective and retroactive compliance with the obligations of the collective bargaining agreement, beginning after the alleged lapse of § 156 at the end of fiscal year 2001. The union claimed to have recently discovered a 2004 arbitration award sustaining a grievance granted in favor of the Fraternal Order of Police against the Metropolitan Police Department. The arbitrator in that case determined that § 156 had indeed lapsed and that the officers were entitled to recover all overtime due under the reactivated collective bargaining agreement, beginning at the end of fiscal year 2001. That arbitration award was, in turn, upheld by PERB in March of 2005. Metropolitan Police Dep't & Fraternal Order of Police/Metropolitan Police Dep't Labor Comm., PERB Case No. 04-A-13, Opinion No. 784 (March 31, 2005), 52 D.C. Reg. 5181.

In this case, however, Fire Chief Dennis Rubin denied Local 36's grievance on November 13, 2007, and the union sought arbitration the next day. The arbitrator, Andree McKissick, disagreed with the fire chief, sustaining the union's grievance and finding that the " evidence presented reveals that it was the Congressional intent for ยง 156 to be of a one (1) year duration because of the absence of words to express future effectuation of this Act." In the arbitrator's view, then, " it would logically follow that at the expiration of this Act that Article 18 [of the CBA], the overtime provision, would be reactivated and ...


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