Board of Trustees, University of the District of Columbia v. Myers

for the reverse and remand trial court appellant’s complaint.

order reinstatement

So ordered. TRUSTEES,

BOARD OF UNIVERSITY COLUMBIA,

OF THE OF DISTRICT

Appellant, Appellee.

Ernest R. MYERS,

No. 90-CV-802. Appeals.

District of Columbia Court

Argued Dec.

Decided Jan. actions, eventually by Super.Ct.Civ.R. 4(j). points Such out that service was accom- stay pursu would violated a plished Appellant have entered on William Carroll. concedes 362(a)(1), supra ant 9. See U.S.C. note complaint that she did not amend her substi- Calendar, (Bankr.D.C. In re 89 B.R. July tute first name until Carroll's correct 1988); DePoy, 29 In the Matter B.R. that this could not be a she (Bankr.N.D.Ind.1983). Such violations would basis dismissal of her case because Rule 41-1 exposed appellant have tempt, for con sanctions only requires comply failure to dismissal for possible liability in addition to for actual law, "any requisite prosecu- to the Rule or order and, potentially, punitive damages. ninety days tion claim” for from the time [her] 362(h); Crysen/Montenay Ener U.S.C. see In re case, and, action be taken in this she did not (2d Cir.1990). gy law, comply fail to with the rule or order in such an action not have been failing complaint amend her substitute Car- by existing law” and thus would "warranted Appellant roll's correct first name. also correct- contrary requirement been faith 15(a) ly Super.Ct.Civ.R. points out that under she 11, exposing Super.Ct.Civ.R. appellant complaint any allowed to amend her time attorney her under that rule. to sanctions responsive pleading before is served. In this judge also found that William motions case, Greyhound responsive had not filed a party appel- Carroll was not a to the suit because pleading judge's of the motions the date or- complaint instead a Doe” lant’s named "John appellant Consequently, der. still had time to Appellant replies Carroll. the time she (which July she did amend her complaint, filed she was not defen- her aware of 1993), name, and, therefore, was not in violation rule in she dant that she Carroll's failing to Appellant Doe.” do so. used the name "John Jr., Counsel, McKay, Corp.

James C. Asst. Payton, Corp. whom John Counsel filed, the time the brief was L. Charles Reischel, Counsel, Deputy Corp. Washington, DC, brief, appellant. were on the MeConville, Annandale, VA, ap- James pellee. FERREN, SCHWELB,

Before FARRELL, Judges. Associate Opinion Judge for the court Associate FERREN. 13,1983, concurring faculty concurring June received

Opinion On judgment by Judge saying Associate June notice dated p. SCHWELB promoted professor. full tes- been signed at trial that he had and returned tified FERREN, Judge: Associate 16, 1983, day.3 the this notice next On June University of The Board of Trustees of the rescinding the mailgram pro- received a Board) (the appeals the District of Columbia faculty Subsequently, a notice motion. dated jury judgment, a a trial court based on from 18,1983, as reaffirmed his status associ- June verdict, ap- awarding university professor, a professor.4 ate $36,000 pellee Myers, damages for Ernest in the contract. conclude that breach of We complaint filed a in Court authority to Superior Court did not have 6, May alleging UDC on six because, Myers’ claim a-union entertain as two of contract theories and tort breach member, Myers had exhausted his ad- complaint He later amended his claims. collective ministrative remedies under the as the the Board for UDC defen- substitute bargaining agreement the Board. We with or, Board to dismiss in dant. The moved and dismissal of therefore reverse alternative, summary judgment, for on five Myers’ complaint. including alleged grounds, Myers’ failure to remedies exhaust his administrative I. Agreement union. UDC’s teaching Appellee Myers, who in had been Agreement’s Contending that the Master Department of Human Resource Devel- procedure fourth-level for resolution of opment pro- since became an associate grievances was the “sole method District of University fessor at the of the complaints for the of all used resolution (UDC) a in 1976. He has been out grievances,” Board Faculty associa- member of UDC level, Myers had failed to exhaust the fourth union). (the 1983, Myers ap- tion/NEA namely, of an ar- the union’s commencement plied profes- promotion to rank of full for proceeding behalf. The bitration on bargaining agree- sor. the collective Under accordingly Supe- Board maintained at the the union ment effect time between (the jurisdiction. lacked mini- rior Court Agreement), and UDC eligibility requirements promotion for mum court, juris- rejecting The trial the Board’s (1) professor years to full three dismissal, argument, ordered dictional degree” professor and “terminal associate summary judgment, Board all granted the alternative, (2) or, special act except Myers’ breach of contract counts 1976, Myers completed a Board.1 years claims for academic 1983-84 1985- Community Psychology degree doctoral jury respectively.5 A returned verdict School, Springs, from Union Graduate Yellow $36,000 Myers, awarding damages. him for Ohio, a non-accredited institution n.o.v., judgment Board moved for a time.2 Moreover, Zachariah, George pres- Agreement 1. The Master amended in 1985 was provide professor that an associate 1978 to testified at ident of from if, eligible promotion professor in lieu for to full thought Myers eligible pro- trial that was for degree, graduate of the terminal she had 36 he or in 1976. motion beyond degree years and 10 credits masters professor. service as an associate Myers acknowledged, that the letter 3. 2. There dispute accepting promotion post- sent was was some as to whether he had requirement degree satisfied the terminal marked June 1983. the Master at the time. The in effect degree was contended that a terminal eventually promoted profes- to full degree understood to be a from an accredited year. sor for 1987-88 academic institution, but, faculty according evalua- profile year, tion Myers' used academic for apply promotion did not degree in- doctoral an unaccredited from degree. recognized year stitution was academic as a terminal 1984-85. it, remittitur, proceed or a overcome new but the trial court be able to and thus showing “griev motion. appeal. denied the either that the are procedures

ance unreasonable” or hostility of the union makes “the officials II. (citing impossible.” hearing fair Id. union, faculty NLRB Union Marine As a member of v. Industrial Workers, Shipbuilding was bound U.S. exclusive estab L.Ed.2d 706 UAW, Agree Union, lished Article IX of the Clayton v. International Generally, employee, ment. a District sub 101 S.Ct. ject (1981)). Comprehensive to the D.C. Government em Act, 1-601.1, §§ Merit Personnel D.C.Code ployee may bypass able to administrative (1992 Repl.) (CMPA), seq. et a CMPA- or to agree bargaining a collective remedies under bargaining agreement, collective sanctioned showing by ment of reme these may maintain a action in not common law futile. See St. dies would be Grover v. grievance the court to em Ry. Francisco 393 Louis-San cognizable CMPA, ployer under or under 89 21 L.Ed.2d 519 agreement, employee such an unless has the (1969); v. Winters Local Int’l Bhd. of pro the procedures exhausted Teamsters, 315, 318, U.S.App.D.C. 569 186 agreement. in that vided v. Dis Wilson (1977). (D.C.1992) trict 161 A.2d of (contract claim); District v. of present ease, Myers In (D.C.) (tort claim), Thompson, 593 A.2d 621 dispute that the under (D.C.1990), modifying 570 A.2d 277 cert. de to be “intended

nied, 502 U.S. resolving employer-employee exclusive for (1991). Washing Jordan v. Jordan, grievances.” 548 A.2d at 796. Auth., ton Area Medro. Transit 548 A.2d Moreover, everyone agrees Myers satis (D.C.1988), we stressed that procedural steps required fied the three if collective bargaining agreement es- (1) agreement: brought he infor procedures tablishes which are intended complaint to appropriate mal the lowest man for resolving employer-em- be exclusive (2) agement level, grievance sent a written ployee grievances employee ... if and Affairs, Vice President Academic suit brings before (3) appeal filed a with the written President procedures grievance those been ex- Myers, ostensibly failed UDC. hausted, employer on the defend satisfy fourth and last administrative ground that the has not exhaust- requirement: the union’s commencement ed the exclusive under remedies available proceeding against of an arbitration UDC.6 the contract. procedure, fourth level As to this (citations omitted). and footnotes decision whether to strictly Such an is not a matter of the union’s exhaustion defense arbitration is discretion,7 necessarily foolproof, however; unfettered that because pursued that he adminis- within a collective To demonstrate had been included provisions subchapter bringing agreement grievance before trative remedies his chapter [§§ XVIII of 1-618.1 notes that he to the took the case -618.17], (OEA) subject provisions not be to the Employee Appeals shall dis- Office of which Employ- subchapter” governing the Office of jurisdiction. lack of missed for Because Appeals.). ee subject bargaining agreement a collective (unlike agreement agreements, because some 7) Thompson Agreement provides: griev- see A.2d at 626 & nn. 5 7. The "if the appeal provide option OEAas an at Level Three ... Asso- ance is not resolved procedure, Myers' appeal may, twenty days grievance was within [union] OEA ciation Three, made and thus D.C.Code at Level commence misdirected irrelevant. See determination 606.2(b) proceeding ("Any by serving other § ... which has ... arbitration 1— PERB, decision, representation may appeal to union’s did not have control over that to have must be said exhausted judicial then seek review trative remedies when he satisfied third- Court, alleging they if basis for im have a procedure filing a with the level conduct.”) omitted); (citations proper Haw University support President. (D.C.1988) Hall, A.2d kins Zachariah, George (Board who employees claimed Education president from 1978 testified unlawfully and union withheld union although the union been aware of required wages from their to exhaust dues received grievance from time he had which had administrative remedies revoking promotion, mailgram offer of take union had not it feasible to jurisdiction found whether cer primary decide was the case to practice conduct unfair tain constituted only faculty member affected UDC’s in- 1-605.2(3)); Fraternal cf. degree” meaning terpretation of “terminal Employee Police v. Public Relations Order of degree from an accredited institution. Za- (D.C.1986) ., 501, 504 516 A.2d Bd taking a chariah added that the cost of mat- (PERB authority statutory high to arbitration because UDC ter “[mjake 1-605.2(9) decisions D.C.Code appealed request. always subscribe, adopt, charges ... of failure to short, Zachariah, according to comply with or national to or the internal labor support could not afford arbitration. conduct of organization standards for labor added). position organizations”) (emphasis

Myers takes the that this decision union him burden relieved to further un- pursue administrative remedies that PERB There can be no doubt parties der the 1-605.2(3),8 power, has the any obligation agree that satisfied union pursue to an to order may have had to ask for arbitration under employer employee’s against claim if thus, Agreement; of the level four the union’s refusal to PERB concludes that claim, parties agree at that prac an unfair labor arbitrate amounted to union’s point, was committed to the discre- here. possibility tice. That existed Al But, contrary Myers’ position, tion. to necessarily may appear simply though Agreement mean based the Master to pursue arbi- unwillingness on the union’s to to give the union discretion decide unfettered tration, bring Myers was to his cause free arbitration, to take whether a claim against the to court. duty is the union’s discretion limited contends, agree, employees fairly all in the enforce represent The Board and we Agree that under CMPA and the Master agreement. ment of the collective prevailing case law—a ment —and Sipes, U.S. S.Ct. See Vaca against employee’s only union recourse UDC (1967). 909-10, 17 L.Ed.2d 842 arbitration, if is and that Board the UDC an not have an absolute while unwilling to take the case to arbitra union is grievance right to have the union take the tion, remedy at employee’s only arbitration, arbitrarily “union point against filed process ignore grievance it meritorious Employee Relations with the Public perfunctory fashion.” Id. (PERB), compelling requesting an Rather, “duty representa of fair Thompson, 593 A.2d union to arbitrate. See imposes obligation tion for a union to (“Employees with their at 626 dissatisfied power to do The Board shall have the party with a written notice of intention arbi- following: added.) (Emphasis trate.” practices whether Decide unfair 1-605.2(3) provides: 8. D.C.Code appropriate been committed and issue re- medial order. investigate grievance to arbitration violat faith.” Lan refusal take his claim is, duty ed this if believed that dry Cooper/T. Stevedoring v. The Smith —that arbitrary, union’s conduct “was discriminato Cir.1989) (citation faith, ry, or in bad that it undermined the so omitted). Accordingly, though even grievance integrity fairness or the of the remedy fourth-level administrative 852; process,” Landry, F.2d at see also decision whether to —the Inc., Freight, Hines v. Anchor Motor arbitrate —is committed to the union’s sound discretion, this does not mean that an em right L.Ed.2d 231 had to file a —he ployee’s remedy is limited to against subject the union Agreement; three levels under that judicial instance in review fourth-level, of the has a re Thompson, Court. See 593 A.2d at sponsibility to file a claim a union sum, only remedy.10 626.9 In that was Thompson, refuses to arbitrate. By declining file a claim 593 A.2d at 628-29. the union that could with PERB lead to grievance of his Contrary Myers’ interpreta Board, Myers advantage failed to take therefore, tion of the Master procedural final the Master union did not have absolute discretion in Agreement’s procedures. He deciding whether to arbitration of his therefore failed to exhaust administrative claim; representa within of “fair the limits remedies. not shown that tion,” duty had enforceable ground failure was excusable on If required grievance procedure arbitrate. believed that the union’s was unreason- CMPA, Management adopting Under the federal Labor Rela District of Act, (1988), employee jurisdiction tions 29 U.S.C. 185 an revealed no to share similar intent bring complaint faced with a union's refusal to between PERB and local courts. We our con- against employer may primary jurisdiction to arbitration file a so- cluded that PERB had to "hybrid” against called practice action the union and the resolve unfair labor claims under 1-605.2(3). employer together in federal court. See Thomas D.C.Code See id. at 575. Serv., 909, (7th v. United Parcel F.2d 890 914 Cir.1989); 850-51; Landry, Myers' at interpretation 880 F.2d Cox v. Under of Inc., Sons, 138, scheme, C.H. (5th Cir.1974). easily ig- Masland & 607 F.2d 143 trative nored, could arbitration Vaca, 386 U.S. at employees 87 allowed to take their court, Supreme by S.Ct. at simply arbitrary— Court concluded: claims to a union's including pursue collusive—determination wrongfully discharged employee may [T]he the level four in the Master bring employer an action in the interpretation This could lead to upon face of a defense failure based to exhaust invoked, rarely becoming arbitration’s if not remedies, provided contractual that the em- useless, process. step fourth in the administrative ployee prove bargaining can that the union as Thompson, at we observed that 593 A.2d agent representation duty breached of fair its handling grievance. having employee’s employer’s in its to antici- of burdens of an two, (footnote omitted). pate substantially Id. and deal often and citations This conclu- with different, (one finding systems pro- sion was based of them on a NLRB did remedial litigation) jurisdiction interpreta- not have at the election of exclusive over tracted available likely chilling scope "duty representa- tion of the of fair each are have of tion," bargained personnel id. at 87 effect on mandated and that courts jurisdiction accordingly procedures' could debilitate effect that "traditional curb —an arbitrary very personnel system. employee’s conduct the individual foundation of the merit Furthermore, statutory Myers’ argument representative.” that he is entitled Id. at 87 S.Ct. at court, bring against the a claim Board in contrast, Hawkins, union, proceeding against 537 A.2d without cannot be in jurisdiction supported court concurrent even federal law that allows an out that the only upheld of the NLRB and to take an to court in a the federal courts action, i.e., joined Congress’s give "hybrid” Vaca was the desire to when with result of duty repre- organizations, employees seeking as the union for breach fair as well 851; supra organizations, Landry, F.2d at relief both an sentation. See 880 these admin- remedy. istrative court note 9. has never asserted basis for and a federal We noted, contrast, proceeding against the union. Council of the ment, might proved it is have able11 that union officials were hostile.12 conceivable wrong. Nor union His failure to make the has he demonstrated attempt full re- range of administrative remedies would a failure exhaust his reflects fact that quired have been futile. The a union remedies.13 employee’s grievance pursue decline to an Because failed to exhaust adminis- futility exhausting does not in itself reflect Agree- trative remedies remedies; noted, as we failure ex- ment and cannot be because role, discretionary consistent has doctrine, legal prevailing cused duty representation, with fair its to decide authority did not have Court (subject whether to arbitrate Accordingly, claims. we entertain review). union, The there eventually entry must and remand reverse fore, futility argument through can moot dismissing complaint. legitimate right, exercising its under the col So ordered. agreement, lective to address “No”; say properly the union can merits and SCHWELB, concurring Judge, Associate funds to refuse to use its finance arbitration judgment: concurring faith, investigating it after believes in claim, employee’s slim my Time not altered view District Cox v. C.H. Masland chance of success. See Thompson, 593 A.2d (5th Sons, Inc., Cir. (D.C.), denied, 942, 112 cert. 502 U.S. 1979); Tony Lama Encina v. Boot II), (Thompson Cir.1971) curiam). (per incorrectly id. decided. See at 636-40 (Schwelb, J., dissenting). Thompson II and question a union violate whether will A.2d duty representation by refusing its now Wilson v. District of fair curiam) (D.C.1992) us, employee, being irrespec- (per arbitration for claim, my colleagues’ fault view simply tive of the merits of a I cannot (followed likely appeals) would under the Master skip simply in this Level Four. The expensive be too is an issue inherent cannot us, case; presented “may” com Myers has not it to states that but proceeding, since faulted his union for fail- mence he has never arbitrate, arbitrarily ure far as the shows. mean that it can refuse record represent with a meritorious supra note 12. Had raised this a member complaint. contrary, process issue with PERB On ing grievance, a Agree- trative remedies under So, what we the Board hos- the association made believe is contends that itself was (and particular correct not to arbitrate this unreasonably) appeal- decision typically tile that it exercise that case. Because it’s a futile brought every request the ed testimony. that, was his as a time-to-time. He from added.) (Emphasis in his brief on behavior, the Board should result of this acknowledge appeal, Myers continues to Agree- repudiated the Master deemed to have single union's to arbitrate for em- reluctance not document that the Board ment. does ployee "could be understandable.” unreasonably appealed arbitrations to say repu- point a court could Board had that 13.Myers possible maintains that the admin- also event, Agreement. diated the remedy istrative of a claim argument imply grievance pro- have been futile before PERB would cedures themselves unreasonable. power give PERB not have the him the damages remedy sought: breach of earlier, however, contract As out claim. argument contrary, closing To power, PERB 1- has the jury: told the counsel 605.2(3), Myers' the union to take claim to order problem Za- Professor—Dr. it PERB concludes that the un- to arbitration if said, Faculty did not Association chariah constituted an unfair labor ion’s refusal to do so ability or the to arbitrate practice. have the funds PERB an action before would be resolution, arbitration, university appeals everything. step That the you toward just keep going Myers' damages on. on and Board—his nonetheless, only damages up remedy, every single arbitration it ends in court they couldn't do that. not, not, [t]he union necessarily need sacri- have been futile. Given rights fice the Thompson individual what it II and the Master deems to be in the right expect interests of the union as UDC had it could whole, during as it often litigating must do con- arbitrate with the union instead of negotiations. tract as an individual. Service, Inc.,

Thomas United Parcel (7th Cir.1989) (emphasis add

ed); Richmond, see also Dement v. Freder

icksburg R. Potomac Cir.1988). attempt by

An compel

the union to arbitrate his

Case Details

Case Name: Board of Trustees, University of the District of Columbia v. Myers

Court Name: District of Columbia Court of Appeals

Date Published: Jan 19, 1995

Citation: 652 A.2d 642

Docket Number: 90-CV-802

Court Abbreviation: D.C.