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.
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.
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.
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.:
Arbitration Decision at 47-49 (citing City-Wide Contract).
In addition, Preeminent security officers are subject to the Preeminent Standards of Conduct Policy, which state, in relevant part:
Id. at 49-50 (citing Preeminent Protective Services, Inc. PPS-625 — Standards of Conduct Policy, Code of Conduct).
The CBA between Preeminent and SEIU provides in relevant part:
CBA at 21-22.
After Officer Moore was terminated, SEIU grieved the discharge. When the parties failed to settle the grievance, it was duly brought before an arbitrator, who ordered reinstatement and full back pay for Officer Moore and ordered Preeminent and the Union to ask D.C. jointly to allow Officer Moore to return to work. The arbitrator issued his decision on November 9, 2017. See Arbitration Decision at 43-73.
Plaintiff's counsel submitted its first pleading in this case to CaseFileXpress, an outside vendor used by the Superior Court for such filings, seeking to vacate the arbitrator's award. The date and time of the submission of Plaintiff's Motion/Complaint to Vacate Arbitration Award was Wednesday, February 7, 2018 at 1:59:54 p.m. Eastern Time. See Ex. 1, Mem. in Opp'n to Cross Mot. to Enforce Arbitration Award (Opp'n) [Dkt. 9-2]. In return, counsel received an "Acknowledgment of e-Filing" from the vendor which stated that "filing information has been received and will be transmitted to the court." Id. In fact, the Clerk's Office at the Superior Court rejected Plaintiff's Motion/Complaint because it did not comply with the Superior Court Rules of Civil Procedure.
The threshold issue in this case is whether Preeminent timely filed its motion to vacate in D.C. Superior Court. The Superior Court first introduced electronic case filing in approximately 2007 and gradually expanded its use so that all civil cases must now be filed electronically unless the plaintiff is appearing pro se. Under D.C. law, a party to arbitration must file its complaint seeking vacatur of an arbitration decision within ninety (90) days of receiving the arbitrator's opinion. D.C. Code § 16-4423(c).
At oral argument on the Union's motion to dismiss, Plaintiff's counsel submitted the first page of her first version of the Motion/Complaint, which is time stamped as filed in the Superior Court on February 7, 2018. See Hearing Ex. 2 [Dkt. 14]. That pleading is not available on any public source because the Superior Court Clerk's Office refused to accept it. It can be found by counsel only in the private data file that shows all documents her law firm has filed in Superior Court. Union counsel was not privy to the first Motion/Complaint document and argues that the corrected Motion/Complaint, accepted for filing on February 14, 2018 and placed on the public docket, was filed too late. It is stamped, nonetheless, in the upper right-hand corner, "Filed D.C. Superior Court 02/07/2018 13:59 PM Clerk of the Court." Id.
The Union cites an Administrative Order issued by the Chief Judge of the Superior Court to support its position. It notes Administrative Order 05-04 (eFiling With IJIS Implementation), E.F. Rule 6, which states, in part:
See Hearing Ex. 1 [Dkt. 13] at 15 (emphasis added).
This question has a straight-forward answer found in the Superior Court Rules of Civil Procedure and not the sources cited by the parties. Rule 5 governs Serving and Filing Pleadings and Other Papers and provides specifically, "[e]lectronic filing is complete on transmission, unless the filing party learns that the attempted transmission was undelivered or undeliverable." D.C. Super. Ct. R. Civ. P. 5(b)(5)(A) (2017). This has been the rule in the District of Columbia for some years. See Parker v. K & L Gates, LLP, 76 A.3d 859 (D.C. 2013). In a case in which he was compelled to arbitrate, Plaintiff Parker timely filed an electronic appeal and received an electronic confirmation on September 21, 2011. Id. at 863. The motion was subsequently rejected and then refiled. Id. From this history, the D.C. Court of Appeals "conclude[d] that Mr. Parker's motion is properly understood to have been filed on September 21, 2011, the date that the electronic confirmation initially showed it as having been filed." Id. In Parker, the D.C. Court of Appeals quoted the exact same language now in Rule 5(b)(5)(A): "filing by electronic means is complete upon transmission, unless the party making the transmission learns that the attempted transmission was undelivered or undeliverable." Id.
The Union's interpretation of the Administrative Order is logical but inapplicable given the language of Rule 5 and the authoritative interpretation of the District of Columbia Court of Appeals. The Court concludes that Preeminent timely filed its Motion/Complaint, and that motion is now ripe for review.
Since Congress enacted the National Labor Relations Act of 1935 (NLRA), 29 U.S.C. § 151 et seq., courts have interpreted and enforced the federal common law applicable to collective bargaining agreements. See, e.g., Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 456, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957) ("[T]he substantive law to apply ... is federal law, which the courts must fashion from the policy of our national labor laws.").
The linchpin of U.S. labor relations is the process of binding arbitration before a neutral arbitrator, which enables the resolution of economic disputes without coercive means (strike or lockout) during the term of a collective bargaining agreement.
In keeping with the central role of private arbitration in labor law, judicial review of labor arbitral awards is "extremely limited," Kurke v. Oscar Gruss & Son, Inc., 454 F.3d 350, 354 (D.C. Cir. 2006) (citation omitted), and labor arbitration awards are awarded great deference. See Madison Hotel v. Hotel & Rest. Emps., Local 25, 144. F.3d 855, 855-59 (D.C. Cir. 1998) (en banc) (citation omitted). Because Preeminent and SEIU agreed to grievance arbitration, and therefore agreed to bind themselves to an arbitrator's interpretation of their collective bargaining agreement, the Court may conduct only a narrow review of the arbitration award. See Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. at 596, 80 S.Ct. 1358 ("The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the award."). However, an arbitrator's award "is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award." Id. at 596-97, 80 S.Ct. 1358; see also Madison Hotel v. Hotel & Restaurant Emps., Local 25, 144 F.3d at 858-59 ("An arbitrator cannot, for instance ... ignore the contract and dispense his own brand of industrial justice.") (citation omitted). This is the case where an arbitrator's words reveal that he has gone beyond interpreting and applying the parties' agreement. See Hay Adams Hotel LLC v. Hotel & Rest. Emps., Local 25, Unite Here Int'l Union, No. 06-968, 2007 WL 1378490, at *5 (D.D.C. May 9, 2007).
The facts that the Arbitrator found critical to his conclusions were that Preeminent had just succeeded to the physical security contract at St. E's and: (1) "before the Employer strictly can enforce the Post Orders — which had been in place under the predecessor security contractor, BRSS, but had not been enforced strictly — the Employer properly must make it known to the Security Officers ... that, from that point on, strict enforcement of the Post Orders ... will be the new rule," Arbitration Decision at 69-70; (2) "the Employer failed to take into proper account the Grievant's attempts to secure relief through Lead Officer Price before he left to obtain appropriate medical treatment
The Arbitrator further concluded that only Preeminent, not D.C., was responsible for Officer Moore's termination because only Preeminent was his employer. Id. at 69-70. In this respect, the Arbitrator essentially distinguished between D.C.'s right to demand that an employee be removed from its contract and site and Preeminent's contractual obligation to fire an employee only for just cause. Id. Certainly the Arbitrator's decision that Preeminent did not have just cause to fire Officer Moore was well within his authority and will be fully respected by this Court.
The question lies, however, with the remedy the Arbitrator ordered and the express contract language the parties agreed will govern in the event that D.C. orders an employee off its site but there is not just cause for his discharge. In beginning this analysis, the Court notes that the collective bargaining agreement in question is the 2016 Washington D.C. Public Sectors 1 and 3 Security Agreement. See CBA at 15-42. Neither the collective bargaining agreement nor the parties explain with whom Local 32BJ negotiates this multiemployer contract; Preeminent became a signatory when it became a security contractor to D.C. in Public Sector 1 or 3. The point of this digression is that Preeminent did not negotiate the terms of the agreement to which it is signatory and any arbitral victory may be cited by the Union, or any signatory employer, as relevant to a future arbitration. Nonetheless, the Union cited no prior decisions that support the remedy imposed in the Moore Arbitration.
That may not be as unusual as it sounds inasmuch as the parties specifically agreed what to do in the case of such an eventuality as presented by the Moore Arbitration:
CBA at 22.
The remedy ordered by the Arbitrator directly contradicts these terms of the collective bargaining agreement. First, the Arbitrator found the absence of traditional just cause and then ordered a traditional remedy, directing "the Employer to rescind the termination of the Grievant and reinstate him to his former position and make him whole." Arbitration Decision at 65. He then appeared to recognize Preeminent's "claim that, because of the terms of the City-wide contract between the Employer and the D.C. Government," D.C. had directed Preeminent to remove Officer Moore from St. E's and any other location covered by the City-Wide Contract. Id. What he did not do was to address the parties' own bargain: by reference, interpretation, or otherwise.
In point of fact, as quoted above, the collective bargaining agreement demonstrates that the negotiating parties recognized D.C.'s authority — with or without cause — to order a Preeminent employee off its contract, site, and all other locations
The negotiating parties foresaw just this predicament. First, the Court recognizes that the Arbitrator's decision that there was not just cause for Officer Moore's termination was completely within his authority. Preeminent and other signatories are now advised that they must instruct their security officers on more strict enforcement of pre-existing or new Post Orders before discharge might be enforceable and that discipline short of discharge might be considered.
Second, the Arbitrator mistakenly thought it relevant that "there is no evidence presented that the D.C. Government conducted its own independent investigation of the facts involved in the Grievant's decision to vacate his post in order to seek treatment for his asthma condition before it ordered the Employer to remove him...." Arbitration Decision at 71. Nothing in the CBA between Preeminent and the SEIU imposes such an obligation on the District and it had no role in the arbitration. The collective bargaining agreement expressly states that Preeminent may comply "[i]f a customer or tenant demands that the Employer remove an Employee from further employment at an account or location." CBA at 22. No prior involvement of the customer, much less an investigation into its subcontractor's labor relations, is stated or contemplated by the express negotiated language.
Third, the Arbitrator devised his own remedy which parted in material ways from the parties' carefully negotiated balance of rights. It must be acknowledged that the Arbitrator's remedy is logical: pay backpay and ask D.C. if it will take Officer Moore back. But such a remedy contradicts the parties' expressly bargained-for terms regarding how to resolve the situation. Every collective bargaining relationship is built on compromise. Given the requirements of the City-Wide Contract, by which D.C. retained the right to order the removal of a worker from its site and its contract, the Union agreed to mitigating steps to assist an affected employee. Accordingly, Preeminent was required to place Officer Moore at another location covered by the same terms and conditions, or if such a location were not available, to offer Officer Moore a position in a lower wage category or with lesser benefits. CBA at 22. The Arbitrator did not address
Arbitration is a creature of contract. A collective bargaining agreement is a special kind of contract and grievance arbitration is its heart. Nonetheless, an arbitrator cannot go beyond the terms of the contract. "An arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice." Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. at 597, 80 S.Ct. 1358. Because the Arbitrator here ignored the parties' carefully negotiated remedy and fashioned his own, his award must be rejected in part.
The Motion to Vacate will be granted in part and denied in part. The Cross Motion to Enforce Arbitration Award will be granted in part and denied in part. The arbitrator's finding that Preeminent did not have just cause to fire Officer Moore was within his authority and will be upheld. However, the arbitrator's award of backpay and a request that D.C. take back Officer Moore exceeded the bounds of his authority and runs counter to the parties' express bargain; it will be vacated. The matter will be remanded to the arbitrator for reconsideration in light of the Court's Memorandum Opinion.
