The PERB Board meeting will be held on February 18 at 11 am.
Agenda
- Call to Order
- Roll Call
- Approval of the Minutes for January 21, 2016, Regular Board Meeting
- New Business
A. Executive Director’s Report
B. Public Forum
C. Summary of Cases:
- 09-U-37: Fraternal Order of Police/Metropolitan Police Department Labor Committee v. District of Columbia Metropolitan Police Department
On February 10, 2009, a bargaining unit employee appeared for an Internal Affairs Division (“IAD) interview. FOP’s Chief Shop Steward for the Special Operations Division (“Chief Shop Steward”) represented the employee (“Employee”). At the beginning of the interview, the Chief Shop Steward requested more information about the allegations against the Employee. The interviewing agent responded that the allegation regarded “sexual harassment.” When the Chief Shop Steward asked for additional information about the allegation, the interviewing agent terminated the interview. As the interview ended, the interviewing agent told the Employee “to get another union steward” and replace the Chief Shop Steward as his representative.
On February 11, 2009, the Chief Shop Steward requested the tape recording of the February 10, 2009 interview and other documents related to the “good cause” for the removal of the Chief Shop Steward as the Employee’s representative. MPD denied FOP’s information request.
On February 24, 2009, the Chief Shop Steward sent another information request for a February 6, 2009 taped interview. The information request “stated documents were being requested pursuant to both D.C. Code § 1-617.04(a)(5) (CMPA) and Article 10 of the parties’ collective bargaining agreement” and that the information was necessary for administration of the CBA. MPD denied the request.
On June 9, 2010, the Fraternal Order of Police/Metropolitan Police Department Labor Committee (“Complainant” or “FOP”) filed an Unfair Labor Practice Complaint (“Complaint”) against the Metropolitan Police Department (“MPD”), alleging that MPD violated D.C. Official Code § 1-617.04(a)(1) and (5) by refusing to provide information requested by a union representative surrounding an internal investigatory interview of a Union member.
Through its Answer, MPD requested the Board dismiss the Complaint; because (1) “Respondent has not committed an unfair labor practice, and (2) “there is no evidence of the commission of an unfair labor practice….” In Opinion No. 1116, the Board denied MPD’s request to dismiss the Complaint, finding that material issues of fact existed concerning whether MPD committed an unfair labor practice. The Board referred the matter to an unfair labor practice hearing.
MPD filed a Motion for Reconsideration (“MFR”), which was opposed by FOP. An unfair labor practice hearing was scheduled without resolution of the MFR. Prior to the hearing, MPD filed an Amended Answer. A hearing was conducted and a Hearing Examiner’s Report and Recommendation (“HERR”) was submitted to the Board. The MFR, HERR, and MPD’s Exceptions to the HERR are before the Board for disposition.
- 10-S-04: Gerald G. Neill, Jr. v. Fraternal Order of Police/Metropolitan Police Department Labor Committee
This matter is before the Board on remand from the D.C. Superior Court. The court has remanded to the Board the above-captioned matter to determine the timeliness of a standards of conduct complaint (“Complaint”) and the merits, if so warranted.
On October 1, 2000, Complainant was elected as Chairman for FOP. At some point thereafter, the then General Counsel of FOP Ted Williams was removed as General Counsel. On April 16, 2001, Williams filed suit in D.C. Superior Court against Complainant and the replacement General Counsel claiming breach of contract, tortuous interference with contractual relations, and intentional infliction of emotional distress. In his lawsuit, Williams named FOP as a co-plaintiff against Complainant.
On May 23, 2001, the Superior Court dismissed Williams’ suit for failing to exhaust contractually required prerequisite remedies. Williams appealed the Superior Court’s decision to the D.C. Court of Appeals. On March 4, 2008, the Court of Appeals affirmed “the dismissal of the breach of contract claim, reversing and remanding the dismissal of Mr. Williams’ intentional tort claims, and dismissing the [FOP] Labor Committee’s appeal as moot.”
On November 18, 2008, Complainant sent a letter to FOP, requesting FOP cover his legal fees for defending the lawsuit against him. On December 10, 2008, FOP informed Complainant:
If Mr. Williams is successful, then Mr. Neill necessarily would not be shielded from personal liability based on his status as Chairman of the Labor Committee, nor would he be entitled to legal protection by the Labor Committee.
Accordingly, at this time, Mr. Neill does not have a viable claim that the Labor Committee should pay his legal expenses, or that he is otherwise entitled to legal representation from the Labor Committee.
On November 13, 2009, the Superior Court entered a judgment in favor of the Complainant, which was not appealed by Williams. On January 20, 2010, Complainant sent a demand to FOP for attorney’s fees for his legal defense. On March 15, 2010, Complainant filed his Complaint with the Board.
- 15-A-09: American Federation of Government Employees, Local 872 v. District of Columbia Water and Sewer Authority
Grievant was hired by District of Columbia Water and Sewer Authority (“DC Water” or “Respondent”) on or about March 26, 2007, into the Customer Service Department as a Customer Care Associate. He was terminated on August 8, 2014 for “Inexcusable Neglect of Duty”. The termination came after poor performance evaluations in 2012, 2013 and 2014. He also was put on three unsuccessful Performance Improvement Plans in 2012 & 2013 and had other disciplinary issues. Petitioner American Federation of Government Employees, Local 872 (“AFGE” or “Petitioner”) requested a Disinterested Director’s Hearing per the Collective Bargaining Agreement (“CBA”). On September 16, 2014 the Director issued a written decision supporting the decision to terminate. AFGE filed a request for arbitration on September 29, 2014.
In a Decision and Award, dated March 19, 2015, an arbitrator found there were no procedural violations in how DC Water handled the Grievant’s termination and that DC Water met its burden of proving that the Grievant’s poor performance was the cause of his termination. On April 7, 2015, American Federation of Government Employees, Local 872 filed an Arbitration Review Request of the Decision and Award.
- 15-U-40: Kenneth W. Johnson v. District of Columbia Government and DC Metropolitan Police Department
Complainant was employed as a police officer by the District of Columbia Metropolitan Police Department (“MPD”) from November 20, 1989 until November 6, 1996. No details were provided about when or under what circumstances he was terminated. Reference was made in the Complaint to a May 20, 2008 Washington Post article that mentioned 217 police officers who were ordered to be reinstated after having been terminated for misconduct. According to the article, D.C. Superior Court judges or arbitrators ruling on PERB cases ordered the reinstatements after MPD exceeded the 55 day limit to notify officers who were under investigation of the charges against them. It was not until May 18, 2015 that Complainant asked MPD for a “trial board hearing for reinstatement.” That request was denied on May 27, 2015, because it was “not supported by any facts, circumstances, or other evidence” to support an Adverse Action Hearing by MPD.
On a Motion for Reconsideration (“Motion”), Complainant appeals to the Board an Executive Director’s Administrative Dismissal (“Administrative Dismissal”) of an unfair labor practice complaint (“Complaint”), pursuant to Board Rule 500.4. By a letter dated October 9, 2015, the Executive Director dismissed the Complaint for untimeliness and failure to state a violation under the CMPA. The Complainant filed the Motion on the grounds that the Executive Director erred in finding that the Complaint was untimely and that he was not reinstated for discriminatory reasons.
D. Deliberations – This portion of the meeting will be closed to the public for deliberations in accordance with D.C. Official Code § 2-575(b)(13).
E. Open Portion Resumes
F. Final Votes on Cases
G. Public Comments
- Adjournment