American Federation of State, County, and Municipal Employees, District Council 20, Local 2087, AFL-CIO, Appellant,
University of the District of Columbia, Appellee.
February 14, 2017
from the Superior Court of the District of Columbia
(CAP-8393-12) (Hon. Anthony C. Epstein, Trial Judge)
C. Zwack, with whom Lisa M. Manson was on the brief, for
Abrams, with whom Gary L. Lieber was on the brief, for
Blackburne-Rigsby, Chief Judge, [*] and Washington  and Ferren, Senior Judges.
Blackburne-Rigsby, Chief Judge.
critical dispute before the court is whether the arbitrator
in this case exceeded his authority or contravened public
policy by awarding attorney's fees, where the
parties' Collective Bargaining Agreement
("CBA") is silent on the issue of attorney's
fees. Appellant American Federation of State, County, and
Municipal Employees, District Council 20, Local 2087, AFL-CIO
("AFSCME") seeks review of an order of the Superior
Court vacating and remanding a decision by the District of
Columbia Public Employee Relations Board ("PERB" or
"Board") that affirmed an arbitration award of
attorney's fees to AFSCME, to be paid by appellee
University of the District of Columbia ("UDC" or
"University"). The PERB concluded that the arbitrator
was authorized to award attorney's fees under the
arbitrator's inherent equitable powers. Judge Anthony C.
Epstein, however, vacated the award because the arbitrator
did not explicitly indicate whether the arbitration award was
based on the CBA. We conclude that the arbitrator did not
exceed his authority by granting attorney's fees under
his inherent equitable powers and that the award does not
contravene public policy. Accordingly, we reverse the
Superior Court's decision to remand and reinstate the
PERB's decision affirming the arbitration award.
See D.C. Code § 1-605.02 (6) (2012 Repl).
Factual and Procedural Background
filed a grievance against UDC on behalf of two union
employees under the parties' CBA, after the employees
were terminated by UDC for misuse of University funds. The
parties went to arbitration before Arbitrator Michael Wolf,
who found in favor of AFSCME, in part. He determined that the
two union employees should have been given thirty-day
suspensions, instead of being terminated. In a supplemental
award, Mr. Wolf also awarded AFSCME reimbursement of
reasonable attorney's fees that it incurred representing
the two employees in the arbitration process. Although the
CBA is silent on the issue of reimbursement of attorney's
fees, Mr. Wolf concluded that AFSCME was entitled to
reimbursement of reasonable attorney's fees under the
authority of the federal Back Pay Act ("BPA").
See 5 U.S.C. § 5596 (b)(1)(A)(ii)
"[t]he Council of the District of Columbia itself has
never promulgated regulations to implement the Back Pay Act,
which is a vestige of the patchwork system in effect prior to
the passage of Home Rule in 1973[, ]" this court has
held "that the Back Pay Act continues to apply to
District employees under the broader [Comprehensive Merit
Personnel Act ("CMPA")] policies of maintaining all
'concrete personnel entitlements or benefits' or
their equivalents for employees hired before the CMPA . . .
and maintaining the pre-CMPA 'compensation system'
for all employees whenever hired until a new one is enacted
to replace it." Am. Fed'n of Gov't Emps. v.
District of Columbia Water and Sewer Auth., 942 A.2d
1108, 1112-13 (D.C. 2007) (citations omitted)
("AFGE"); see also White v. District
of Columbia Water and Sewer Auth., 962 A.2d 258, 259
(D.C. 2008) (per curiam). In White, we explained,
however, that government entities statutorily eligible for
CMPA exemption,  such as then-Water and Sewer Authority
("WASA"),  that adopt a new, comprehensive personnel
and compensation system for its employees are exempt from
"the CMPA-and with it, the counsel fees provisions
[under the BPA] included in its compensation system."
962 A.2d at 259.
conducting a thorough analysis of the CMPA provisions
governing UDC employees, our decision in White, and
the BPA, Mr. Wolf concluded that the BPA's provision for
the reimbursement of attorney's fees could be, and should
be, applied to this case. Specifically, he concluded that AFSCME
is entitled to reimbursement of attorney's fees from UDC
because UDC, as a governmental entity under the CMPA, had not
adopted or implemented a comprehensive personnel and
compensation system for its "Career Service"
employees, to which the two aggrieved employees
belonged. Mr. Wolf found that "major
aspects" of UDC's Career Service employee system
were still governed by the CMPA - for example, he noted that
"negotiations with the University's Career Service
employees has for many years been undertaken by the
Mayor's Office of Labor Relations and Collective
Bargaining on behalf of numerous D.C. agencies." Yet,
while Mr. Wolf provided extensive analysis on why the BPA
could be applied to the facts here, Mr. Wolf did not explain
which provision within the parties' CBA authorized him to
award reasonable attorney's fees to AFSCME. See,
e.g., Howard Univ. v. Metro. Campus Police
Officer's Union, 519 F.Supp.2d 27, 32-33 (D.D.C.
2007) ("The genesis of arbitral authority is the
contract, and arbitrators are permitted to decide only those
issues that lie within the contractual mandate.")
(citation and brackets omitted).
Mr. Wolfs decision, UDC filed an arbitration review request
with PERB, arguing that the arbitrator exceeded his authority
by granting the award, and that the award was also contrary
to law and public policy. See D.C. Code §§
1-605.01 to -605.04 (2012 Repl.) (establishing and
identifying the powers of the Public Employee Relations
Board). In its Decision and Order, the PERB affirmed the
arbitration award. The PERB concluded that the award was not
contrary to law and public policy based on Mr. Wolfs analysis
and application of the White decision to UDC's
Career Service employees. The PERB further concluded that Mr.
Wolf did not exceed his authority by looking to the BPA and
granting AFSCME attorney's fees under the BPA because
PERB "has long held that an arbitrator does not exceed
his authority by exercising his equitable power, unless it is
expressly restricted by the parties' collective
bargaining agreement." See District of Columbia
Metro. Police Dep 't v. Fraternal Order of Police/Metro.
Police Dep't Labor Comm., PERB Case No. 06-A-05, at
*4 (Aug. 27, 2012).
then filed a petition for review of PERB's decision with
Superior Court. See Super. Ct. Civ. Agency Rev. R. 1
(g) (stating that the Superior Court "shall base its
decision . . . upon the administrative record and shall not
set aside the action of the agency if supported by
substantial evidence in the record as a whole and not clearly
erroneous as a matter of law"); see also Nunnally v.
District of Columbia Metro. Police Dep't, 80 A.3d
1004, 1006-07 (D.C. 2013) (holding that certain agency
decisions should first be reviewed by the Superior Court).
Judge Epstein vacated the award and remanded the case to the
PERB, concluding that the arbitrator failed to explain his
authority for granting attorney's fees. Judge Epstein
determined that the arbitrator granted attorney's fees
based on his interpretation of the BPA, but that the BPA was
never explicitly mentioned in the parties' CBA, and that
the arbitrator "did not purport to construe or apply the
CBA when he decided to award attorney['s] fees under the
[BPA]." Thus, in the judge's view, "[b]ecause
the record [provided] no basis for PERB or the [c]ourt to
conclude that the [a]rbitrator's award of
attorney['s] fees was arguably based on an interpretation
of the CBA, the [a]rbitrator exceeded his
authority." AFSCME now appeals Judge Epstein's
decision to remand the arbitration award and asks this court
to reinstate the PERB's decision.