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Preeminent Protective Services, Inc. v. Service Employees International Union

United States District Court, District of Columbia

September 10, 2018

PREEMINENT PROTECTIVE SERVICES, INC., Plaintiff,
v.
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 32BJ, Defendant.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE

         Preeminent Protective Services, Inc. provides physical security services at St. Elizabeth's Hospital, a public psychiatric facility in the District of Columbia. Preeminent complained in the District of Columbia Superior Court that an arbitration award, after grievance arbitration, exceeded the arbitrator's powers and must be vacated. The Union removed the case to federal court and defends the award. Such an apparently traditional dispute presents a host of uncertain legal puzzles: whether Preeminent timely filed its complaint; whether the D.C. Arbitration Act or federal labor law provides the statute of limitations; and whether the arbitrator exceeded his authority when he crafted a remedy different from the one written into the collective bargaining agreement.

         This Court concludes that the formal rules of the Superior Court govern filing; the time limits in the D.C. Arbitration Act apply, so that Preeminent's complaint was timely filed; and the Arbitrator exceeded his powers by ordering a remedy that is contrary to the express terms of the collective bargaining agreement by which the parties agreed to be bound.

         I. FACTS

         A. Background

         Preeminent is a small minority business enterprise that provides physical security services to commercial customers. Ex. A, Notice of Removal, Arbitration Decision [Dkt. 1-1] at 50.[1] It moved into the public sector when it was awarded a subcontract to provide physical security services at St. Elizabeth's Hospital (St. E's). Due to the business collapse of its predecessor, Preeminent took over the contract five days early, at midnight on February 10, 2017. Id. As is common, it inherited its predecessor's employees and signed a preexisting collective bargaining agreement with the Service Employees International Union, Local 32BJ (Union or SEIU): the 2016 Washington D.C. Public Sectors 1 and 3 Security Agreement (the CBA). Id. at 51.

         Officer Larry Moore, a Preeminent security officer who is represented by SEIU, was suspended pending investigation on February 20, 2017, and terminated, effective February 23, 2017. Id. Officer Moore was then discharged for abandoning his post and other alleged infractions related to his failure to remain on post, mid-shift, until a replacement could be found. Id. Officer Moore had told his supervisor, Lead Security Officer Annie Price, at the 8:00 a.m. start of his shift-when he was coughing and she inquired-that his asthma was bothering him but that he could work because he had taken his child's medication. Id. at 53-54. His supervisor questioned him about his ability to work more than once but he insisted that he could work and that he needed to earn his paycheck. Id.

         However, Officer Moore sent a text message to Lead Officer Price at about 11:38 a.m. telling her that he needed to leave at noon; she responded at about 11:50 a.m. and told him to wait until she could get a replacement. Id. at 54. Officer Moore texted Lead Officer Price again at about 12:08 p.m., telling her that he could not wait longer and was leaving. Id. Upon reading his text message, she immediately called Gate 6 at St. E's to learn if he had driven out yet and was advised that Officer Moore had left already through Gate 5. Id. Lead Officer Price replaced Officer Moore herself for the remainder of his 8 a.m. to 4 p.m. shift. Id. at 57. When Officer Moore called after 2:00 p.m. to ask if he should return to work, she told him that his shift was covered and not to return. Id. That was the last day Officer Moore worked for Preeminent at St. E's.

         B. Terms of City-Wide Security Services Regulation

         A City-Wide Security Services Contract, DCAM-12-0031 (City-Wide Contract), covers all physical security services provided to the District of Columbia and its facilities. Its relevant terms govern Preeminent's work as a subcontractor to a direct contractor to D.C.:

STAFFING AND POST ASSIGNMENTS
* * *
C.6.3 The Contractor's employees['] duties shall include, but are not limited to, serving at a fixed post, making rounds on foot or by motor vehicle, escorting persons on government-owned and leased property, screening persons, packages, and other items both electronically and physically, if necessary, and helping visitors and government clients by answering questions and providing directions. The duties for each assigned post will include Post Orders that include the performance requirements of the duty station. The Contractor shall ensure Post Orders are adhered to at all time [sic]. Any deviation from the Post Orders requires a written confirmation of permission from the COTR [contracting officer's technical representative].
* * *
C.6.4.4 If during a site inspection, it is determined a Contractor employee assigned to a post does not meet the requirements, as outlined in District of Columbia Municipal Regulations, Title 6A, paragraphs C.3.8.7 of this contract, or the Post Orders, or if a post is otherwise not covered or vacant, the post will be considered unmanned (vacant). The COTR will issue a written notification to the Contractor and liquidated damages will be assessed in accordance with Section H.15.
[ . . . . ]
C.9.6 The Contractor shall distribute and abide by the approved orders. Except for emergencies, no deviations from post orders shall be made. The post order shall define the basic work to be performed at each post including the exact hours of duty, the time and location of movements of roving patrol posts, and detailed specific responsibilities for each fixed post.
* * *
REMOVAL OF CONTRACTOR'S EMPLOYEE FROM A POST
C.19.1 The Contractor acknowledges that it is responsible for ensuring that all employees comply with all directives issued by the COTR. In addition, the Contractor agrees to maintain satisfactory standards of employee competency, conduct, appearance, and integrity, and shall be responsible for taking such disciplinary action as is deemed necessary with respect to its employees.
C.19.2 The Contractor shall not allow continued work by, or assignment to work of, employees deemed physically or mentally unfit, incompetent, careless, insubordinate, or whose continued employment under the contract is deemed by the COTR to be contract to the public interest, or inconsistent with the best interests of the Government of the District of Columbia. In situations deemed appropriate by the COTR, the COTR, in his or her sole discretion, may summarily direct the Contractor to remove its employee from a facility and the Contractor shall remove such employee immediately and supply a replacement with no lapse in coverage.
[ . . . . ]
C.19.4 The Contractor shall be required to dismiss such employees [specified in C.19.3-C.19.3.6] within a timeframe ranging from “immediately” to “within a week, ” as specified by the COTR. Any employee so dismissed ...

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