More About the Litigation Unit
Most of our CBAs (including Comp 1 & 2) provide for binding grievance arbitration. While there is an individual grievance right under the law in DC for public employees, the right to binding arbitration of grievances is solely contractual and exists only through agreement between a union and the government. The attorneys' union is a notable exception. The Legal Services Act prohibits binding arbitration, so decisions from arbitrations in that unit are advisory in nature.
Binding arbitration of negotiation impasses, is a statutory right under the Comprehensive Merit Personnel Act (CMPA). The CMPA replaces traditional tools of labor conflict (strikes, lockouts, etc.) with binding arbitration to resolve bargaining impasse. This right is statutory for a duly certified bargaining agent and exists whether or not the parties have an earlier agreement.
The OLRCB litigates appeals of PERB decisions in Superior Court. The office also represents the Mayor in labor arbitration matters. Litigation alone comprises approximately 50 percent of the workload of the professional staff.
OLRCB represents the various agencies under the personnel authority of the Mayor in impasse proceedings arising out of negotiations stalled due to a failure to reach terms on compensation or non-compensation items within 180 days after commencement of bargaining. The items that cannot be agreed upon are declared to be at impasse and notice of such is given to the PERB. The PERB attempts mediation between the parties and, if the parties are unable to resolve all or some of the items at impasse, the matter is set for interest arbitration on all or the outstanding issues. The determination of the interest arbitrator is binding on the parties. During FY 2011 there were no impasse proceedings on non-compensation items. During FY 2012 there was one such proceeding. In FY 2013 to date OLRCB was asked by DCPS to assume responsibility for an impasse on compensation issues relating to the Council of School Officers which represents principals, assistant principals and a variety of related service providers. This latter proceeding is still pending resolution.
Unfair Labor Practice:
A significant segment of the litigation activity carried on by the OLRCB litigation unit relates to allegations of unfair labor practice complaints against various agencies whereby the union alleges that its ability to effectively represent its membership is impaired by actions of the offending agency. The vast majority of these complaints in FY 2012 were primarily centered on allegations that an agency failed to produce bargaining information requested by the affected union, even when coupled with other allegations. This continued a trend seen in FY 2011. The decrease is consistent with management’s more moderate approach to producing appropriate information when requested. However, in FY 2012 there was a marked uptick in the number of arbitrations. The net effect was that, while there was an overall downward trend in litigation activity in other categories generally, there was an actual spike in arbitrations leading to an increase in cases handled overall. In part, this was due to a more assertive posture on behalf of management across a range of agencies and primarily relating to discipline such as suspensions or terminations.
Superior Court Litigation:
OLRCB was again engaged in a moderate amount of litigation activity in DC Superior Court. It was involved in six (6) cases in Superior Court in FY 2012 as compared with eight (8) in FY 2011 The majority of these cases related to ongoing disputes regarding the appropriateness of Motions to Stay arbitration where issues of substantive arbitrability were in question. The District has taken an assertive stance regarding the impropriety of arbitrating disputes relating to reductions in force and other matters expressly excluded by statute from bargaining so far with mixed results. However, the most recent trend has been encouraging as in one recent arbitration decision involving a RIF at the Child & Family Services Agency (CFSA), the arbitrator agreed with management and dismissed arbitration as improper as it was an attempt to litigate a substantively inarbitrable matter. There are related pending proceedings before an arbitrator relating to two similar RIFs conducted by DC Public Schools (DCPS) and management is guardedly optimistic that the arbitrator will hold in its favor and likewise find the matter inarbitrable. Related proceedings in DC Court of Appeals were argued by the Office of the Solicitor General in February 2013 and some additional clarity on these issues should be forthcoming from the Court later in FY 2013.
OLRCB Advice & Counsel:
OLRCB attorneys provide advice and counseling to agencies and help agencies adheres to the collective bargaining agreements, labor law and District policies. Attorneys also negotiate transfers of new bargaining units from non-union to union pay schedules and are the point of contact for the unions on a variety of issues. Often, when an agency labor liaison and a union representative can no longer communicate, it is the OLRCB attorney who defuses the situation and finds solutions acceptable to both parties.
Research, Training and Citywide Initiatives Unit:
The Research, Training and City-wide Initiatives Unit is responsible for conducting research and analysis necessary to support management’s position during negotiations, whether for compensation, terms and conditions of employment, or during impact and effects bargaining; providing training to agencies regarding the labor relations program and the statutory and contractual obligations which emanate from DC law and the collective bargaining agreements; developing, implementing and administering citywide Labor-Management Initiatives such as the Joint Labor-Management Classification and Compensation Reform Taskforce, the Negotiated Employee Assistance Home Purchase Program, the Commuter Benefit Program and Retirement Reform efforts.
Administrative and Program Support Unit:
The Administrative and Program Support Unit is responsible for program support to the Negotiation and Litigation Units and human resources, contracting and procurement, and other related customer and operational services for OLRCB personnel and the office.