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Washington Teachers Union v. District of Columbia Public Schools

Court of Appeals of The District of Columbia

May 16, 2019

Washington Teachers' Union, Appellant,
District of Columbia Public Schools, Appellee.

          Argued March 13, 2019

          Appeal from the Superior Court of the District of Columbia (CAB-2140-17) Hon. Florence Y. Pan, Trial Judge

          Daniel M. Rosenthal, with whom Lee W. Jackson and Alice C. Hwang were on the brief, for appellant.

          Mark J. Murphy was on the brief for Teamsters Local Union No. 639 Amicus Curiae, in support of Washington Teachers' Union, appellant.

          Holly M. Johnson, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Stacy L. Anderson, Acting Deputy Solicitor General, were on the brief, for appellee District of Columbia.

          Before Fisher and Beckwith, Associate Judges, and Ferren, Senior Judge.

          Ferren, Senior Judge

         This case tees up, for the first time, the question whether the court, or an arbitrator, has the initial responsibility to determine whether a "class action/group grievance" filed by a union against a public employer is arbitrable. In September 2015, the Washington Teachers' Union (WTU) filed such a grievance under its collective bargaining agreement (CBA) with the District of Columbia Public Schools (DCPS). In pursuing the group grievance, WTU was purporting to represent "over 180" teachers who had "received less than Effective ratings" under the "IMPACT" evaluation process. These teachers were placed on different levels of probation, and some even lost their jobs. Thus, the union - citing thirty-two examples of "unfair, arbitrary and capricious implementation and application" of IMPACT - sought arbitration from the American Arbitration Association (AAA) to rescind the "negative consequences" of those evaluations, including "restoration of all lost salaries, benefits[, ] and privileges of employment." Upon motion by DCPS, the trial court permanently stayed arbitration, concluding that: (1) CBA Article authorizes the filing of a "group grievance"; (2) the requested scope of arbitration, however, was too broad, even for a "group grievance"; (3) the union had not obtained the required "consent of the individual grievants" in the group "before proceeding on their behalf"; (4) the union, in effect, was challenging individual "evaluation judgments under the IMPACT process" which WTU 1, [1] a controlling decision of this court, forbids; and (5) WTU's challenge reflected "a lack of good faith."

         We agree with the trial court that the CBA authorizes a "group grievance" under CBA Article, [2] and that the scope of the requested arbitration was too broad for "a matter of general application" under that Article - a decision for the court, not the arbitrator, to make. Accordingly, we affirm the trial court's order staying arbitration. Our ruling, however, is without prejudice to WTU's reformulating its group grievance, consistent with this opinion, for submission to arbitration under the CBA. All other issues raised in this case would be for an arbitrator to decide, as arbitrators have broad discretion to address the merits of an issue pursuant to the parties' agreement and to craft remedies.[3]

         I. Facts and Proceedings

         The CBA covers a universe of topics, including the opportunity for teachers to seek redress for alleged grievances.[4] The grievance process is organized into three steps. Step 1[5] authorizes a teacher to file a grievance on a form developed by WTU, followed by a meeting between teacher and principal. If that meeting fails to resolve the grievance, the parties will meet with the Instructional Superintendent and, if necessary, with the DCPS Office of Labor Management and Employee Relations, followed, if desired, by mediation.

         If Step 1 fails, Step 2[6] commences with a hearing before a neutral hearing officer at which the parties have the opportunity to present evidence, including witnesses. The hearing officer's decision is binding unless a party requests arbitration - Step 3[7] - by filing a notice with the AAA. The CBA specifies the types of issues that may be submitted to arbitration, including issues with the IMPACT evaluation process.[8] According to CBA Article 15.3, "DCPS's compliance with the evaluation process, and not the evaluation judgment, shall be subject to the grievance and arbitration procedure."[9] In other words, the evaluator's particular actions, or failures to act, in rating a teacher can be challenged, but not the evaluator's rating or "judgment" at the end of that process. By analogy, the teacher's final "score" cannot be removed or adjusted by the arbitrator.

         On September 3, 2015, WTU notified DCPS with a letter to the DCPS Chancellor invoking a Step 2 "class action/group grievance"[10] on behalf of "all ET-15 and EG-09 educators who received less than Effective ratings" derived from at least thirty-two violations of the IMPACT process during the 2014-15 school year (set forth verbatim in the Appendix to this opinion). In its grievance letter, WTU also alleged, without further specificity, violations of CBA Articles 2, 7, 10, 11, 15, 23, 24, as well as due process and No Child Left Behind Act violations. As to remedy, the union "requested that the rating[11] and any subsequent termination or negative consequences be rescinded and all related documents be expunged[, ]" coupled with "restoration of all lost salaries, benefits and privileges of employment" so that union members are "made whole."

         On October 8, 2015, DCPS denied WTU's grievance. The principal reasons for denying what DCPS referred to as a "kitchen sink approach" were: (1) WTU's failure "to allege a single fact applicable to the entire group of over 180 named grievants";[12] (2) WTU's failure "to obtain each named individual's consent before filing the instant grievance";[13] and (3) WTU's inclusion of claims that "were not subject to the grievance or arbitration process," in particular its effort to "challenge evaluator judgments[, ] which are not subject to the grievance procedure."[14]

         On June 13, 2016, following DCPS's denial of its grievance, WTU submitted its demand for arbitration to the AAA. For relief, WTU sought to reverse "all negative employment consequences" for the employees affected, [15]without rescission of teacher "ratings" or "evaluation judgments."[16]

         On October 31, 2016, DCPS demanded that WTU withdraw its demand for arbitration. Because AAA rules require arbitration to proceed absent a court order staying the arbitration, DCPS filed a motion in Superior Court on March 29, 2017, for a permanent stay. It argued, first, that the CBA does not permit arbitration regarding "IMPACT evaluation judgments."[17] DCPS emphasized this court's ruling in WTU 1 that CBA "Section 15.3 plainly states that the 'evaluation judgment' is not 'subject to arbitration," although an arbitrator may address grievances challenging the "evaluation process." Second, DCPS asserted that DCPS and WTU had not agreed to submit this dispute to arbitration. It stressed that, contrary to CBA Article limiting a group grievance to "a matter of general application, "[18] WTU had "failed to allege a single fact applicable to the entire group of over 180 named grievants."

         On April 28, 2017, WTU filed its Opposition to the stay motion. WTU averred that its grievance focused exclusively on the IMPACT process and thus was subject to arbitration. In seeking to eliminate negative consequences associated with IMPACT ratings, WTU argued that it was not attempting to arbitrate the ratings themselves. WTU also asserted, more fundamentally, that the arbitrator, not the court, should decide whether any of the grievance issues was "inarbitrable.'' WTU explained that it viewed compliance with the CBA grievance process as entirely a "procedural issue, "[19] and thus that the arbitrator was entitled to address it.

         The trial court held a hearing on July 5, 2017, to address the DCPS stay motion. At the hearing, the court said:

[I]t seems to me that everybody agrees in principle that if these are process violations those are arbitrable. But why is the union allowed to [] do a "kitchen sink" grievance and force the [c]ourt and the arbitrator to try to pick and choose what is arbitrable and what is not? Why wouldn't the proper remedy be to stay the whole thing and you've got to file a grievance that complies with the collective bargaining agreement?

         In elaborating on this "kitchen sink" concern, the court added, "I don't see that the [] District of Columbia Public Schools agreed that class matters that don't have a common thread can go to the arbitrator." WTU then reiterated that it thought "there's been . . . process violations for all of them and that's why we're grieving them together." In response, the court explained: "[I]t just doesn't make any sense to bring it as a group grievance if there's no matter of general application. Then it's like 180 individual grievances, some of which might have a couple things in common, but it doesn't really make a lot of sense to force an arbitrator to look at that."

         In its order issued on September 5, 2017, the trial court granted DCPS's motion to permanently stay the arbitration. The court was "persuaded that the group grievance filed by the Union is not arbitrable because DCPS did not consent to submitting this type of 'kitchen-sink' grievance to arbitration. To the extent that the Union is challenging procedures under the IMPACT process, it is not doing so in a way that the CBA contemplates." Even though the remedy that WTU was seeking was not phrased as a challenge to the evaluation judgments themselves, the court concluded that WTU's "carefully worded" phrasing was nonetheless "aimed" at challenging such judgments, as forbidden by WTU 1: "The remedies sought by the Union in its demand for arbitration include reinstating fired teachers, restoring all compensation and benefits, and purging any references to the evaluation judgments from employment records.[20] These remedies, taken together, are tantamount to eliminating or rescinding the ratings themselves."[21]

         WTU filed its notice of appeal[22] on October 5, 2017.

         II. The Issues

         The fundamental question presented is the extent to which this court may lawfully determine whether the "class/group grievance" at issue here is arbitrable. To answer, we must address the following issues:

1. As a matter of law, does the court or an arbitrator determine whether an alleged "class/group grievance" is arbitrable under the CBA?
2. If the appropriate authority determines that a "class/group grievance" is arbitrable under the CBA, does the same authority define its proper scope?
3.Once the appropriate authority has determined the proper scope of a "class/group grievance" under the CBA, which authority, court or arbitrator, lawfully determines whether the "class/group grievance" is arbitrable in this case?[23]

         III. Analysis

         A. As a matter of law, does the court or an arbitrator determine whether a "class/group grievance" is arbitrable under the CBA?

         As to the first issue, D.C. Code § 16-4406(b) (2012 Repl.) provides: "The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate."[24] We conclude, accordingly, that the court, not an arbitrator, must determine whether WTU may pursue arbitration of a "class/group grievance" against DCPS under the CBA. Pursuant to this authority, we further conclude, as did the trial court - contrary to WTU's lead argument[25] - that CBA Article[26] is the only CBA source authorizing arbitration of a "class/group grievance."[27] The parties are at odds, however, as to what a grievance based on a "matter of general application" means - a substantive[28] delimitation in Article not further defined in the CBA.

         B. If the appropriate authority determines that a "group grievance" is arbitrable under the CBA, does the same authority define its proper scope?

         This brings us to the second issue: does the court or an arbitrator define "matter of general application"? Put more specifically, once the court has concluded that a group grievance is arbitrable under CBA Article, which decision-maker determines the permitted scope of that arbitration - its outside limit on the arbitrator's authority to decide the case? Is that authority inherent in the court's threshold (commonly called a "gateway" or "substantive") determination of arbitrability, or is it a distinct "procedural" decision traditionally left to the arbitrator?[29]

         The U.S. Court of Appeals for the Fourth Circuit has applied a contractual analysis to justify the court's - not an arbitrator's - authority to define the scope of an arbitration agreement. In a case considering whether the agreement had delegated to the arbitrator the authority to determine whether the matter at issue was arbitrable, the court concluded that "the parties did not intend to commit the very issue of the scope of arbitrability itself to arbitration."[30] A few years later, the Fourth Circuit reconfirmed that ruling.[31]

         There is no obvious reason, however, why an arbitrator, confronted by a group grievance permitted by a collective bargaining agreement, would be ill equipped to define the scope of that grievance provision. On the other hand, the very existence and application of a provision permitting arbitration of a group grievance under a collective bargaining agreement depend on the definition of that provision. Moreover, its definition cannot vary from case to case; it must be defined by the same organizing principle. A consistent, unchallengeable definition of the scope of arbitration is necessarily inherent in the court's decision whether a matter is arbitrable. Otherwise, based on arbitrators' varying ideas about what a "matter of general application" should mean, there would be enhanced risk of disturbingly inconsistent arbitrations affecting large numbers of teachers[32] or imposing excessive costs on the school system.[33] Accordingly, we conclude that, of necessity, the court must define what a "matter of general application means" when determining whether a matter, depending on that language, is arbitrable. Contrary to WTU's assertion, this is not merely a "procedural" determination.

         To avoid fundamentally incompatible results, this court must therefore answer a second question: at what level of generality should "matter of general application" be defined, given no elaboration of its meaning in the CBA? To say simply that the "matter" covers all complaints of employees who are "similarly situated," for example, or all grievances that have a "common thread," as the trial court found wanting here, would seem far too general.

         As expressed at oral argument, WTU contends that a group grievance alleging a "matter of general application" embraces a "commonality" defined merely as an IMPACT "process violation." This definition thus includes all thirty- two alleged violations, reflecting a substantial variety of alleged evaluation lapses, to the detriment of "over 180 teachers," including an indefinite number not identified in the pleadings.[34] DCPS, to the contrary, would limit the definition to a "common injury" to each individual grievant in the alleged group, meaning an injury caused by the same kind of alleged IMPACT violation. DCPS added that "WTU failed to allege a single fact applicable to the entire group of over 180 named grievants," thereby implying that even if WTU's alleged group of grievants could be divided into subgroups characterized by common injuries, WTU would have to begin anew by allocating individual grievants to a very large number of subgroups for separate arbitrations.

         In addressing the chasm between these two definitions, we note first that CBA Article 6.3.1[35] provides that "[a]ny grievance raised by the WTU on behalf of an employee must identify the employee." Thus, contrary to WTU's assertion, [36]the "class" or "group" authorized to proceed is limited to teachers named in the pleadings.

         Second, we cannot agree with WTU that sufficient commonality for "a matter of general application" can be achieved by bundling together a variety of injuries caused by multiple violations of the IMPACT process. That would permit arbitration of a single claim that not even our class action rules, if applicable, would permit.[37] We agree with DCPS that a grievant's "injury" is the essential commonality required for a group arbitration (without further limitation by reference to the evaluator who may have caused it). Moreover, by "injury" we mean the specific process violation itself - the evaluator's alleged lapse - not the particular consequences of that evaluation (e.g., probation, demotion, termination, loss of salary). Those consequences will vary among persons who may have been injured by a common lapse, but who will ask for varying remedies crafted by the arbitrator, [38] depending on their individual situations. Our decision in WTU I essentially prescribed this "process" commonality for defining "injury" when we stated that "alleged violations of the IMPACT process are an appropriate subject for grievance and arbitration."[39]

         Third, according to CBA Article, "[t]he arbitrator may hear and decide only one grievance in each case," meaning that a group reflecting one type of injury cannot be joined with arbitration of another type of injury.

         In sum, a "matter of general application," as applied here, is a "group grievance" defined by reference to injuries that the individual grievants have in common. Otherwise, we can discern no limiting principle that could justify a collective definition short of all "process violations," as proposed by WTU - a definition that would permit an agglomeration of instances far too unwieldy for compliance with CBA Article, which limits ...

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