FLORENTINO RODRIGUEZ v. DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS and DISTRICT OF COLUMBIA DEPARTMENT OF HUMAN RESOURCES, 145 A.3d 1005

Background

Rodriguez, an Urban Park Ranger, tested positive for marijuana on a random drug test from April 20, 2010; final results reached DHR ~May 25, 2010.
DHR served a notice of proposed adverse action on June 30, 2010; Rodriguez responded via counsel and contested the test results and offered defenses.
DHR Hearing Officer found the positive test credible but concluded the CBA (Article 24 §2.2) required notice to both the employee and the Union within 45 business days and that DHR did not appear to have notified the Union, which precluded discipline.
DHR Deciding Official overruled, asserting the employee’s receipt of notice satisfied the CBA and that Rodriguez suffered no prejudice; DHR terminated Rodriguez effective August 28, 2010.
OEA found DHR violated the CBA but applied harmless-error review and upheld removal because Rodriguez was represented and not prejudiced; Superior Court affirmed; this appeal followed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Article 24 §2.2 of the CBA — requiring written notice to both employee and Union within 45 business days and stating failure "shall preclude the discipline" — precludes termination where DHR failed to notify the Union timely	Rodriguez: The CBA is mandatory; DHR‟s failure to notify the Union within 45 business days precludes any discipline, so termination is invalid	DHR: Any notification to Rodriguez sufficed; failure-to-notify was harmless because Rodriguez had counsel and suffered no prejudice; CBA provision may be invalid or inapplicable	Held for Rodriguez: The CBA provision is mandatory; failure to give timely notice cannot be treated as harmless because the contract expressly precludes discipline upon such failure, so termination vacated and matter remanded.
Whether OEA properly applied harmless-error review to a bargained-for, mandatory CBA provision	Rodriguez: Harmless-error inapplicable where the CBA prescribes a specific consequence (preclusion) for noncompliance	DHR/OEA: Harmless-error rule applies; absence of Union notice did not affect employee's substantial rights or outcome	Held: Harmless-error review cannot nullify an explicit CBA consequence; OEA misapplied the rule where compliance would have permanently precluded discipline.
Whether the (expired-on-its-face) CBA was nonetheless applicable	Rodriguez: Parties continued to act under the CBA, so it remained in effect	DHR: Raised objections but did not press them on appeal	Held: CBA treated as still in effect because parties continued to perform under it; court assumed Article 24 §2.2 applicable.
Whether Rodriguez waived the CBA-notice argument by not raising it earlier	DHR: Rodriguez failed to preserve the Union-notice claim before the Hearing Officer	Rodriguez: Did not have notice of the CBA term; Hearing Officer raised the issue sua sponte	Held: Preservation not fatal where issue was passed upon; court addressed the claim on the merits.

Key Cases Cited

Hutchinson v. District of Columbia Office of Emp. Appeals, 710 A.2d 227 (D.C. 1998) (review standard for Court of Appeals of OEA decisions)
District of Columbia Fire & Med. Servs. Dept. v. District of Columbia Office of Emp. Appeals, 986 A.2d 419 (D.C. 2010) (OEA must provide findings supported by substantial evidence)
Dupree v. District of Columbia Office of Emp. Appeals, 36 A.3d 826 (D.C. 2011) (appellate affirmation standard: substantial evidence and law)
Teamsters Local Union 1714 v. Public Emp. Relations Bd., 579 A.2d 706 (D.C. 1990) (courts need not defer to administrative determinations that misapply law)
Pitt v. District of Columbia Dep’t of Corr., 954 A.2d 978 (D.C. 2008) (expired CBA may remain in effect if parties act under it)
Hahn v. University of the District of Columbia, 789 A.2d 1252 (D.C. 2002) (parties’ conduct can keep an expired CBA operative)
Cornelius v. Nutt, 472 U.S. 648 (1985) (agency failures to follow bargained-for procedures justify overturning discipline only if the failure might have affected the outcome)
Logan v. United States, 591 A.2d 850 (D.C. 1991) (harmless technical statutory violation analysis)
Harding v. District of Columbia Office of Emp. Appeals, 887 A.2d 33 (D.C. 2005) (OEA harmless-error regulation application)
Mitchell v. District of Columbia, 736 A.2d 228 (D.C. 1999) (remand for proceedings consistent with appellate opinion)