United States District Court, D. Columbia.
For WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Plaintiff: Kathleen Elizabeth Kraft, LEAD ATTORNEY, Harvey A. Levin, THOMPSON COBURN, LLP, Washington, DC.
For LOCAL 689 AMALGAMATED TRANSIT UNION, Defendant: Douglas Taylor, LEAD ATTORNEY, GROMFINE, TAYLOR AND TYLER, Alexandria, VA.
ROSEMARY M. COLLYER, United States District Judge.
Washington Metropolitan Area Transit Authority (WMATA) seeks to enjoin two grievance arbitrations initiated by Local 689, Amalgamated Transit Union (Local 689 or the Union). WMATA notes that a putative class action lawsuit, Little v. Washington Metropolitan Area Transit Authority, Civil Case No. 14-1289 (RMC) (D.D.C.), is already pending in this Court on similar allegations. WMATA further contends that the grievances are not subject to arbitration because they do not involve any WMATA employee who has been adversely affected. The Court previously granted WMATA's request for a temporary restraining order and will also grant its request to preliminarily enjoin the arbitrations, for the reasons set forth below.
A. Local 689's Grievances
Since 2011, WMATA has used a criminal background screening policy (the Policy) to make decisions about hiring and rehiring persons who work on WMATA properties, both employees and contractors. On behalf of unnamed WMATA employees and former employees, Gerry Garnett, bus operator and Second Vice President of Local 689, filed two grievances in his role as a Union Official challenging WMATA's Policy. The first, Grievance 9406, was filed as a " group grievance" " on behalf of Bus Operators, maintenance workers, and clerical employees at the Northern Division." Grievance No. 9406 [Dkt. 1-1] at 3. It alleges that WMATA's Policy is discriminatory because it works a disparate impact against African Americans and seeks to have WMATA " cease in its application of [its] background check policy." Id. The second grievance, Grievance 9407, also brought by Mr. Garnett, was filed as a " group grievance on behalf of all employees at the Northern Division and any other Division that has Bus personnel employed." Grievance No. 9407 [Dkt. 1-2] at 3. Grievance No. 9407 alleges that WMATA's background check policy discriminates against " people of color" because it disallows reinstatement of former employees who have a Probation Before Judgment (PBJ) on their criminal record. Id. 
B. The WMATA Compact
WMATA was created by an interstate Compact approved by Congress and codified at D.C. Code § 9-1107.01; Md. Code, Transportation, § 10-204; and Va. Code § 33.2-3100. Local 689 largely represents operators, mechanics, maintenance personnel, and clerical personnel employed by WMATA. Am. Compl. [Dkt. 7] ¶ 4. Section 66(b) of the Compact provides that WMATA " shall deal with and enter into written contracts with employees as defined in section 152 of title 29, United States Code, through accredited representatives of such employees or representatives of any labor organization authorized to act for such employees concerning wages, salaries, hours, working conditions, and pension or retirement provisions." D.C. Code § 9-1107.01. Under Section 152, the definitional section of the National Labor Relations Act:
the term " employee" shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined.
29 U.S.C. § 152.
Section 66(c) of the Compact provides for arbitration of labor disputes between WMATA and its employees:
In case of any labor dispute involving the Authority and such employees where collective bargaining does not result in agreement, the Authority shall submit such dispute to arbitration by a board composed of three persons, one appointed by the Authority, one appointed by the labor organization representing the employees, and a third member to be agreed upon by the labor organization and the authority . . . . The determination of the majority of the board of arbitration, thus established, shall be final and binding on all matters in dispute. . . . The term " labor dispute" shall be broadly construed and shall include any controversy concerning wages, salaries, hours, working conditions, or benefits including . . . . but not limited thereto, and including any controversy concerning any differences or questions that may arise between the parties including but not limited to the making and maintaining of collective bargaining agreements, the terms to be included in such agreements, and the interpretation or application of such collective bargaining agreements and any grievance that may arise and questions concerning representation.
D.C. Code § 9-1107.01(66)(c) (emphasis added). Arbitration is, therefore, a statutory requirement and not the result ...