Washington Metropolitan Area Transit Authority v. Local 689, Amalgamated Transit Union , 113 F. Supp. 3d 121 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
WASHINGTON METROPOLITAN AREA )
TRANSIT AUTHORITY, )
)
Plaintiff, ) Civil No. 15-536 (RMC)
)
v. )
)
LOCAL 689, AMALGAMATED TRANSIT )
UNION, )
)
Defendant. )
)
MEMORANDUM OPINION
Washington Metropolitan Area Transit Authority (WMATA) seeks to enjoin two
grievance arbitrations initiated by Local 689, Amalgamated Transit Union (Local 689 or the Union).
WMATA notes that a putative class action lawsuit, Little v. Washington Metropolitan Area Transit
Authority, Civil Case No. 14-1289 (RMC) (D.D.C.), is already pending in this Court on similar
allegations. WMATA further contends that the grievances are not subject to arbitration because
they do not involve any WMATA employee who has been adversely affected. The Court
previously granted WMATA’s request for a temporary restraining order and will also grant its
request to preliminarily enjoin the arbitrations, for the reasons set forth below. 1
1
Local 689 has moved to dismiss WMATA’s Complaint [Dkt. 5] [Dkt 8]. The Court will deny the
motion to dismiss based on its finding herein that WMATA is likely to succeed on its claim that the
Union’s grievances are not arbitrable. Thus, WMATA clearly has set forth a claim upon which
relief can be granted. See Fed. R. Civ. P. 12(b)(6).
1
I. FACTS
A. Local 689’s Grievances
Since 2011, WMATA has used a criminal background screening policy (the Policy)
to make decisions about hiring and rehiring persons who work on WMATA properties, both
employees and contractors. On behalf of unnamed WMATA employees and former employees,
Gerry Garnett, bus operator and Second Vice President of Local 689, filed two grievances in his
role as a Union Official challenging WMATA’s Policy. The first, Grievance 9406, was filed as a
“group grievance” “on behalf of Bus Operators, maintenance workers, and clerical employees at the
Northern Division.” Grievance No. 9406 [Dkt. 1-1] at 3. 2 It alleges that WMATA’s Policy is
discriminatory because it works a disparate impact against African Americans and seeks to have
WMATA “cease[] in its application of [its] background check policy.” Id. The second grievance,
Grievance 9407, also brought by Mr. Garnett, was filed as a “group grievance on behalf of all
employees at the Northern Division and any other Division that has Bus personnel employed.”
Grievance No. 9407 [Dkt. 1-2] at 3. 3 Grievance No. 9407 alleges that WMATA’s background
check policy discriminates against “people of color” because it disallows reinstatement of former
employees who have a Probation Before Judgment (PBJ) on their criminal record. Id. 4
B. The WMATA Compact
WMATA was created by an interstate Compact approved by Congress and codified
at D.C. Code § 9-1107.01; Md. Code, Transportation, § 10-204; and Va. Code § 33.2-3100. Local
689 largely represents operators, mechanics, maintenance personnel, and clerical personnel
2
Citations within this document are to the ECF page number.
3
Citations within this document are to the ECF page number.
4
Grievance 9407 does not explicitly maintain that the background check policy works a disparate
impact but appears to state a disparate-impact type claim.
2
employed by WMATA. Am. Compl. [Dkt. 7] ¶ 4. Section 66(b) of the Compact provides that
WMATA “shall deal with and enter into written contracts with employees as defined in section 152
of title 29, United States Code, through accredited representatives of such employees or
representatives of any labor organization authorized to act for such employees concerning wages,
salaries, hours, working conditions, and pension or retirement provisions. ” D.C. Code § 9-1107.01.
Under Section 152, the definitional section of the National Labor Relations Act:
the term “employee” shall include any employee, and shall not be
limited to the employees of a particular employer, unless this subchapter
explicitly states otherwise, and shall include any individual whose work
has ceased as a consequence of, or in connection with, any current labor
dispute or because of any unfair labor practice, and who has not obtained
any other regular and substantially equivalent employment, but shall not
include any individual employed as an agricultural laborer, or in the
domestic service of any family or person at his home, or any individual
employed by his parent or spouse, or any individual having the status of
an independent contractor, or any individual employed as a supervisor,
or any individual employed by an employer subject to the Railway
Labor Act, as amended from time to time, or by any other person who
is not an employer as herein defined.
29 U.S.C. § 152.
Section 66(c) of the Compact provides for arbitration of labor disputes between
WMATA and its employees:
In case of any labor dispute involving the Authority and such employees
where collective bargaining does not result in agreement, the Authority
shall submit such dispute to arbitration by a board composed of three
persons, one appointed by the Authority, one appointed by the labor
organization representing the employees, and a third member to be
agreed upon by the labor organization and the authority . . . . The
determination of the majority of the board of arbitration, thus
established, shall be final and binding on all matters in dispute. . . . The
term “labor dispute” shall be broadly construed and shall include any
controversy concerning wages, salaries, hours, working conditions, or
benefits including . . . . but not limited thereto, and including any
controversy concerning any differences or questions that may arise
between the parties including but not limited to the making and
maintaining of collective bargaining agreements, the terms to be
included in such agreements, and the interpretation or application of
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such collective bargaining agreements and any grievance that may arise
and questions concerning representation.
D.C. Code § 1107.66(c) (emphasis added). Arbitration is, therefore, a statutory requirement and not
the result of bargaining by these parties.
C. The Collective Bargaining Agreement
Pursuant to the Compact, WMATA and Local 689 entered into a Collective
Bargaining Agreement (CBA) effective from July 1, 2012 to June 30, 2015. Selected Sections of
CBA [Dkt. 5-5], Attach. 4 to Local 689 Mot. to Dismiss at 2. 5 In Section 102(a) of the CBA,
WMATA recognizes Local 689 as the exclusive bargaining representative for a broad range of
employees. Id. at 12. In Section 102(b), both parties recognize that their “legal rights, obligations
and responsibilities . . . with regard to collective bargaining and resort to binding interest arbitration
are specified in the WMATA Compact.” Id. Also in Section 102(b), the Union explicitly
“acknowledges that all matters pertaining to the management of operations, including . . . the hiring
and establishment of standards for selection and qualification of employees . . . , and the
development and enforcement of reasonable rules and regulations regarding employment are the
prerogatives of the Authority . . . .” Id. at 13.
D. This Lawsuit
On April 10, 2015, WMATA filed a Complaint against Local 689, alleging that the
claims asserted in Grievances 9406 and 9407 were not arbitrable and arguing that the arbitrations of
those Grievances were superseded by a class action lawsuit, Little v. WMATA, which involves the
same claims raised in the grievances, among others related to the Policy. Compl. [Dkt. 1].
WMATA seeks to enjoin the imminent arbitrations and any future arbitrations in which employee
grievants seek to make disparate impact claims based on WMATA’s criminal background screening
5
Citations within this document are to the ECF page number.
4
policies and practices; WMATA also seeks a declaratory judgment that the claims asserted by Local
689 in the grievances, and disparate-impact claims in general, are not arbitrable. Id.; see also Am.
Compl. Shortly after filing its Complaint, WMATA filed a Motion for a Temporary Restraining
Order and Preliminary Injunction [Dkt. 4] on April 22, 2015. On April 24, 2015, Local 689 filed a
motion to dismiss the Complaint [Dkt. 5]. WMATA filed an Amended Complaint on May 1, 2015;
Local 689 renewed its motion to dismiss on May 4, 2015 [Dkt. 8]; and WMATA renewed its
motion for a temporary restraining order and preliminary injunction on May 11, 2011 (WMATA
Second Mem.) [Dkt. 10]. The Court granted WMATA’s motion for a temporary restraining order.
See Order [Dkt. 11].
At the preliminary injunction hearing on May 14, 2015, the Court inquired about the
estimated number of employees that had been affected by WMATA’s Policy. See Hearing Tr. [Dkt.
13] at 14, 38. Counsel for Local 689 stated that he had not been able to obtain that information
despite requesting it from WMATA, id. at 38-39, and when asked by the Court how the case would
proceed if he learned that no individuals had suffered under the Policy, he stated he would
“withdraw such a case.” Id. at 41-42. The Court then directed WMATA to provide to Local 689
“[t]he number of employees in the bargaining unit who have been tested pursuant to [ ] Section 2 of
the [background check] policy” and “the number of employees who failed those tests.” Id. at 52.
On June 1, 2015, WMATA filed a supplemental memorandum in support of its
motion for a preliminary injunction stating that it had “furnished Local 689 statistics, statistical
breakdowns, and narrative information showing . . . that there was no employee . . . that was or
could be a grievant within Local 689’s Grievance No. 9406 or Grievance No. 9407 and that could
be the subject of or eligible for relief in the pending arbitrations.” WMATA Supplemental Mem. in
Support of TRO/PI (WMATA Third Mem.) [Dkt. 14] at 1. Specifically, WMATA explained that:
(1) it had not terminated or otherwise disciplined any employee on the basis of prior convictions or
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PBJs that would be disqualifying under the Policy; (2) no WMATA employee subject to screening
under the Policy, whether based on reasonable suspicion or a request to return to duty or transfer,
had failed the screening; (3) WMATA declined to reinstate five persons who had previously worked
for WMATA based on the results of their background checks, but none of those persons was a
WMATA employee or represented by the Union; and (4) WMATA terminated two persons based
on their failure to disclose all prior criminal convictions as part of their employment applications,
not because of those individuals’ convictions or because of the Policy. Id. at 2-3. With respect to
five individuals about whom Local 689 inquired: two were terminated based on a failure to disclose;
one was terminated because he assaulted a patron and displayed a firearm; and one failed the
screening but was reinstated nonetheless. Id. at 4. The fifth individual was terminated
for continuing to receive unemployment benefits for 12 weeks after
returning to work. WMATA agreed to reinstate subject to
background screening, then denied reinstatement when the
background screening revealed a felony conviction for a
disqualifying offense. Local 689 filed a grievance under and went
to arbitration based on the agreement to reinstate that preceded the
background screening. The arbitration upheld WMATA's decision
not to reinstate, finding that passing the screening was an explicit
condition of reinstatement in the agreement, that Local 689 knew of
and accepted this explicit condition of reinstatement, and that the
former employee had failed to satisfy this explicit, agreed condition.
The basis for the termination was failure to meet the terms and
conditions of the settlement agreement.
Id. 6
6
Local 689 takes issue with the fact that WMATA only describes the information provided to Local
689, instead of actually submitting it to the Court. See Local 689 Supplemental Mem. [Dkt. 15] at 2
n.1. Local 689 suggests that WMATA mischaracterizes the information, but maintain that it would
be “unwise and unnecessary” to dispute these mischaracterizations at this stage “as they do not
pertain to arbitrability.” Id. However, Local 689 does not point to any employees that have been
affected by the Policy.
6
Local 689 declined to withdraw or modify the grievances and filed a supplementary
motion opposing WMATA’s request for a preliminary injunction. See Joint Status Report [Dkt.
17]; Local 689 Supplemental Mem. [Dkt. 15].
II. LEGAL STANDARDS
A. Jurisdiction
The WMATA Compact confers jurisdiction upon this Court. Section 9-1107.01 of
the D.C. Code states that “[t]he United States district courts shall have original jurisdiction . . . of all
actions brought by or against [WMATA].” D.C. Code § 9-1107.01; see also Barksdale v.
Washington Metro. Area Transit Auth., 512 F.3d 712, 714 (D.C. Cir. 2008) (quoting D.C. Code).
Here, the parties agree that that this Court, and not a panel of arbitrators, has jurisdiction to interpret
the language of WMATA’s Compact. See Am. Compl. ¶ 9B (“[I]nterpretation of the terms and
conditions of the Compact is, therefore, governed by federal law.”) (quoting Pievsky v. Ridge, 98
F.3d 730, 733 (3d Cir. 1996)); Local 689 Renewed Mot. to Dismiss [Dkt. 8] at 4 (“WMATA’s first
basis for jurisdiction, namely the responsibility of the Court to interpret WMATA’s Compact, is
well-plead.”).
B. Preliminary Injunction
To demonstrate entitlement to a preliminary injunction, a litigant must show: (1) a
substantial likelihood of success on the merits; (2) that it would suffer irreparable injury if the
injunction is not granted; (3) that the balance of equities tips in its favor; and (4) that the public
interest would be furthered by the injunction. Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). “[T]he
movant has the burden to show that all four factors . . . weigh in favor of the injunction.” Davis v.
Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009); see also Sherley v. Sebelius,
644 F.3d 388, 393 (D.C. Cir. 2011) (“[W]e read Winter at least to suggest if not to hold that a
likelihood of success is an independent, free-standing requirement for a preliminary injunction.”)
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(internal quotations omitted). A preliminary injunction is “an extraordinary remedy that should be
granted only when the party seeking the relief, by a clear showing, carries the burden of
persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004).
III. ANALYSIS
A. Likelihood of Success on the Merits
The crux of the parties’ dispute here is whether Grievances 9406 and 9407 are
arbitrable under the Compact. 7 The Compact directs arbitration of labor disputes “involving the
Authority and [its] employees.” D.C. Code § 1107.66(c). The Grievances here were filed by a
Union officer without identification of a single employee affected by the allegedly discriminatory
policy. On its face, the Compact appears to necessitate a disputing employee to require WMATA to
submit to arbitration.
According to WMATA, it cannot be compelled to arbitrate because the fact that no
employee has been harmed means there is no real dispute or grievance. WMATA Second Mem. at
9. 8 Local 689 argues that because an employee—Gerry Garnett, a full-time Bus Operator—has a
grievance about a “labor dispute,” arbitration is required under the Compact. Local 689
Supplemental Mem. at 3. It asserts that even assuming that Mr. Garnett was not affected by
WMATA’s background check policy and “merely desired that WMATA cease application of a
policy which he believes to be discriminatory to others . . . that circumstance would not diminish
7
WMATA also argued in its motion for injunctive relief that disparate-impact based grievance
claims are not arbitrable because such claims are statutory creations of Title VII, and the CBA does
not identify Title VII as a statute under which a grievant could seek relief. See WMATA Mem. in
Supp. of TRO/PI [Dkt. 4-2] at 11, 14-15; Am. Compl. ¶¶ 33-43; WMATA Second Mem. [Dkt. 10]
at 2-3. Given the Court’s finding that WMATA has shown a likelihood of success on the merits
that the grievances are not arbitrable because there is no affected employee, the Court need not
address whether grievances alleging disparate impact are “labor disputes” that would fall under the
Compact’s mandatory arbitration provision.
8
Citations to this document are to the ECF page number.
8
the arbitrability of his grievances as ‘labor disputes.’” Id. at 3-4. Such grievances are arbitrable,
according to Local 689, because under the Compact “labor dispute” is broadly defined to include
any controversy between WMATA, its employees, and the Union, including questions of bargaining
obligation and relationship issues. See D.C. Code § 1107.66(c) (“The term ‘labor dispute’ shall be
broadly construed and shall include any controversy concerning wages, salaries, hours, working
conditions, or benefits including . . . . but not limited thereto, and including any controversy
concerning any differences or questions that may arise between the parties . . . .”). Local 689 cites
to past practices involving “group grievances” demonstrating that WMATA and the Union routinely
arbitrate questions which indirectly affect employees. Local 689 Renewed Mem. in Opp. to
TRO/PI [Dkt. 12] at 2; Local 689 Supplemental Mem. at 4; Ex. in Supp. of Local 689 Renewed
Mem. [Dkts. 12-1—12-24].
Local 689’s evidence does not go far enough. Even when the Union previously
challenged WMATA policies in grievances filed by a Union Officer, it is clear that there were
actual affected employees. In other cases when Union Officers grieved specific policies, those
policies had to do with the rights of the Union itself. Here, the Grievances allege that WMATA’s
background check policy is discriminatory, but there are no employees who have suffered an
adverse impact as a direct result of the policy. The Grievances also do not voice general objections
to WMATA’s policy or challenge any specific employee’s discharge, nor could they as they would
not be timely under Section 104 of the CBA, which sets forth Discipline and Grievance procedures.
See Selected Sections of CBA [Dkt. 5-5] at 14-18. Finally, while Local 689 is correct that “labor
dispute” is broadly construed, the Compact still requires a dispute “involving” some employee and
here the Union can point to no employee who has suffered an adverse consequence from the Policy
that is “disputed.” Accordingly, the Court reads the Compact language in its plain form and finds
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that WMATA has shown a likelihood of success on the merits of its claim that the Grievances,
which fail to name any affected employee, are not subject to arbitration.
In addition, WMATA also has demonstrated a likelihood of success on the merits of
its prayer to enjoin the arbitration of Grievance 9407. Grievance 9407 complains that WMATA’s
criminal background screening policy prevents rehiring former employees who have criminal
records. The Compact defines covered WMATA employees by adopting the definition of the
National Labor Relations Act:
The term “employee” shall include any employee, and . . . shall include any
individual whose work has ceased as a consequence of, or in connection
with, any current labor dispute or because of any unfair labor practice, and
who has not obtained any other regular and substantially equivalent
employment . . . .
29 U.S.C. § 152. Thus, an individual whose work has ceased is no longer a covered employee
unless the cessation was prompted by a labor dispute or unfair labor practice and the individual has
not obtained other employment. Id. In other words, the Union does not represent persons who are
not “employees” as defined. Of course, an employee facing discharge is still an “employee” and
represented but once discharge is final, in most circumstances, the individual becomes a former
employee who is no longer a member of the represented bargaining unit.
The Compact only requires WMATA to arbitrate disputes concerning “employees”
as the NLRA defines the word. Persons who are discharged by WMATA (without a successful
grievance and order of reinstatement) and who apply for reemployment, as reflected in Grievance
9407, are not “employees” within the meaning of the Compact and thus their Grievance is not
arbitrable.
For these reasons, the Court finds that WMATA has established a likelihood of
success on the merits and this factor weighs in favor of preliminarily enjoining the arbitrations of
Grievances 9406 and 9407.
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B. Irreparable Harm
WMATA argues that it will suffer “per se” irreparable harm if it must arbitrate a
dispute that it has not agreed to submit to arbitration. See Mount Ararat Cemetery v. Cemetery
Workers and Greens Attendants Union, Local 365, SEIU, 975 F. Supp. 445, 446-47 (E.D.N.Y.
1997) (party “may be presumed to suffer irreparable harm if forced to arbitrate a dispute it did not
intend to be subject to arbitration after its contract expired”). However, WMATA’s obligation to
arbitrate arises from the Compact and not from the collectively-bargained agreement; thus, the
question is whether WMATA must submit to arbitration under the Compact, not whether WMATA
“agreed” to arbitrate under the CBA. The Compact does not require WMATA to arbitrate the
grievances of individuals who do not qualify as statutory “employees” as defined in the NLRA.
Thus, to the extent that Local 689 seeks to force arbitration for non-employees, it disregards the
limitations of the Compact, and WMATA would suffer irreparable harm if forced to arbitrate
Grievance 9407. Moreover, given the Court’s finding above that WMATA is likely to succeed on
its argument that Grievance 9406 is not arbitrable, compelling arbitration for that Grievance would
irreparably injure WMATA as well.
WMATA also maintains that the challenges raised in the Grievances already are
being litigated in federal court in Little v. WMATA. In Little, Plaintiffs have brought a putative class
action lawsuit under Title VII, 42 U.S.C. § 2000e, proposing a class that would include job
applicants, current employees, and any former employees to whom WMATA’s Policy was
detrimentally applied in the relevant period. Inasmuch as Local 689 does not, and cannot, represent
all persons who might be class members in Little, WMATA might well face an immediate
arbitration of the Policy and federal litigation on the same subject. As a public agency with
financial difficulties, part of the harm to WMATA could be the financial repercussions of dual
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litigations on the same subject. Furthermore, there is also the possibility that WMATA could be
subject to inconsistent determinations or to the doctrines of res judicata and collateral estoppel.
For these reasons, the Court finds that the Court finds that WMATA has
demonstrated irreparable harm if it were required to arbitrate beyond the scope of the Compact. 9
C. Balance of Equities
In evaluating whether a preliminary injunction should issue, courts “must balance the
competing claims of injury and must consider the effect on each party of the granting or
withholding of the requested relief.” Winter, 555 U.S. at 24 (citation and quotation marks omitted).
Here, the balance of equities weighs in favor of WMATA, as Local 689 and those it represents will
not be harmed by a preliminary injunction because the Union has no right to arbitrate Grievance
9407 on behalf of former employees and there are no current employees affected by the “dispute”
raised in Grievance 9406. Moreover, as noted above, former employees are covered by the class
action in Little v. WMATA. 10 Accordingly, this factor weighs in favor of granting a preliminary
injunction.
D. Public Interest
WMATA argues that “leaving the subject matter of the grievances to arbitration
harms the public interest” because “these policies and practices are too important . . . to be left to a
decision in a forum where there are no defined rights, there are no protections, and there is no
governing law.” WMATA Mem. in Support of TRO/PI [Dkt. 4-2] at 19. These are generalized
objections to the arbitration process; labor arbitrators routinely decide matters of great importance.
9
WMATA also that it will suffer irreparable harm if it is required to arbitrate due to the absence of
formal procedures, protections, and legal considerations available in federal court. However, these
complaints would be irrelevant if the grievances fell under the Compact.
10
Local 689 contends that the grievances are not limited to claims of disparate impact because the
Policy may also adversely affect white employees. However, the Union has not named any
employee, current or former, affected by the Policy.
12
Even so, the Court is persuaded that the public interest is affected by WMATA’s criminal
background screening policy, through which WMATA seeks to avoid hiring individuals who have
committed serious crimes, including sexual assaults generally and assaults on children. On the
other hand, it is also contrary to the public interest if WMATA’s Policy has a disparate impact on
African Americans. On balance, therefore, the Court finds that consideration of the public interest
neither favors nor disfavors an injunction.
IV. CONCLUSION
Finding that the factors weigh in favor of granting a preliminary injunction, the
Court will grant WMATA’s motion for a preliminary injunction [Dkt. 4] [Dkt. 10], deny Local
689’s motion to dismiss [Dkt. 5] [Dkt. 8], and will enjoin Local 689 and all persons acting on behalf
of or in concert with Local 689 from proceeding with and in the arbitrations of Grievances 9406 and
9407. The parties will be directed to meet, confer, and file a joint proposed schedule for subsequent
proceedings in this case. A memorializing Order accompanies this Opinion.
Date: June 29, 2015 /s/
ROSEMARY M. COLLYER
United States District Judge
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