Government of the Virgin Islands, Department of Education v. St. Thomas/ST. John Educational Administrators' Association and Public Employees Relations Board

• Court: Superior Court of The Virgin Islands
• Decided: December 18, 2023
• Docket: SX-2009-CV-110
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS APPELLATE DIVISION GOVERNMENT OF THE VIRGIN ISLANDS ) DEPARTMENT OF EDUCATION ) ) Pemme’ ; CIVIL N0 sx 2009 CV 00110 V ) PETITION FOR WRIT OF REVIEW ST THOMAS/ST JOHN EDUCATIONAL ) ADMINISTRATORS ASSOCIATION and ) PUBLIC EMPLOYEES RELATIONS BOARD ; VI SUPER 79U Respondents )

MEMORANDUM OPINION and ORDER

111 By Order entered June 18, 2010 (“Order Granting Writ”), the Court granted Petitioner Government ofthe Virgin Islands, Department of Education’s (“Government” or “DOE’ ) Petition for Writ of Review (“Petition ’), filed February 27, 2009, following Petitioner’s September 28 2009 Motion to Grant Writ of Review and to Issue Briefing Schedule ' The Petition sought relief from Respondent Public Employees Relations Board’s (“PERB”) Decision and Order dated February 18, 2009 Therein, in deciding Respondent Education Administrators’ Association’s (“BAA”) grievance alleging due process violations regarding the termination of DOE employee Anya Sebastien, PERB found that DOE had not committed an unfair labor practice, but nonetheless ordered the parties to arbitration PERB filed its Notice to the Court of Request to Remand Case to PERB (“Remand Request”) on August 25, 2010, objected to by Petitioner’s Objection, filed September 9, 2010 Pursuant to the briefing schedule established by the Court’s Order Granting Writ, Petitioner filed its Brief in Support of Petition for Writ of Review (“Petitioner’s Brief”) on July 22, 2010, and filed its Motion to Rule on the Pleadings on June 14, 2022 Neither Respondent BAA nor Respondent PERB filed a brief For the reasons that follow, the Court will grant Petitioner’s request to vacate PERB’s

‘ The Petition was granted on June 2, 2010 by an Order virtually identical to the Order Granting Writ entered June 18 2010, the only difference being that the earlier Order did not require a responsive brief from Respondent St Thomas/St John Education Administrators Association (“BAA”) while the subsequent Order Granting Writ ‘Ordered that Respondents PERB and St Thomas/St John Educational Administrators’ Association shall serve and file their response briefs within thirty (30) days after service of Petitioner’s brief Gov (ofthe V 1 Dept ofEduc v St ThomaS/St John Educ Admm Assoc and PERB SX 2009 CV 00] 10 Memorandum Opinion and Order Page 2 of 8 v1 SUPER 7911

Decision and Order dated February 18, 2009, but will remand the case to PERB for further proceedings consistent with this Order

FACTUAL AND PROCEDURAL BACKGROUND

112 On February 27, 2009, Petitioner filed its Petition, asking the Court to review and vacate PERB 3 February I8 2009 Decision and Order in STTISTJ EAA v DOE (PERB ULPC 08 7ST) 2 The record shows that on August 29, 2005, Anya Sebastien was appointed to the position of Assistant Commissioner of DOE, the second highest ranking position within DOE, and a position within the exempt service On August 25, 2007, the Department temporarily assigned Anya Sebastien to the position of Acting Principal at the Jane E Tuitt Elementary School on St Thomas As Acting Principal, Sebastien was placed on the same pay plan as the classified position of school principal Sebastien was charged with performing all of the responsibilities and functions of a school principal in accordance with the Collective Bargaining Agreement (“CBA”) between DOB and BAA, in force at all times relevant herein BAA considered Sebastien a member of its bargaining unit

1l3 Subsequently, on January 10, 2008, Governor John Delongh terminated Sebastien from the position of Acting Principal, effective January 11, 2008 On January 31, 2008 BAA filed a grievance on behalf of Sebastien under the CBA alleging that the Department violated the CBA by dismissing Sebastien without due process and seeking the relief of Sebastien’s immediate reinstatement or placement in a comparable position with comparable pay On February 1, 2008, the Department responded and informed BAA that it was not entitled to the relief requested and that there was no violation of the CBA

1[4 On February 12, 2008, BAA wrote to the Office of Collective Bargaining, demanding arbitration pursuant to Article V, Section 5, of the parties’ CBA On February 20, 2008, DOE infomed BAA that it was rejecting the demand for arbitration because Sebastien was in a temporary position and had not been appointed to the position in accordance with the Personnel Merit System13, thus, she was not entitled to the same rights and protections as permanent employees under the CBA

2 With the Petition, DOE filed its Emergency Motion for Stay of PERB’s Order dated February 18, 2009 granted by Order entered March 2 2009 3 Title 3 V I C {5 45] codifies the Virgin Islands Personnel Merit System and “divides all positions in the government service into two categories the ‘career service’ and the ‘exempt service’ ” Richardson v Gov (ofthe V I Dept ofEduc v S! Thomas St John Educ Admm Assoc and PERB 8X 2009 CV 00! IO Memorandum Opinion and Order Page 3 of 8 Vi SUPER 79U

15 The proceedings before PBRB began with BAA s May 6, 2008 filing of a charge of unfair labor practices on behalf of Sebastien, against DOB, alleging violations of 24 V I C §§ 378(a) (1) (2) (3) (4) (7) and (8) of the Virgin Islands Public Employees Labor Relations Act( PBRLA or “the Act”), and Article V, Section 5, Steps 3, 4, and 6 of the parties’ CBA

fil6 Specifically, BAA argued that Sebastien, as school principal, performed all of the required functions and responsibilities of a principal, thus, she was a member of its bargaining unit and entitled to due process in accordance with the grievance procedure of the CBA, Sebastien was duly placed in the position of acting school principal and was piaced on the same pay plan as other school principals, Sebastien was terminated illegally without due process, BAA has a legal right to represent all school principals under the provisions of the CBA, with respect to Sebastien, DOE breached the CBA by partially providing due process, but then willfully refusing to comply with the remainder of the due process requirements, and that PBRB should order the parties to arbitration

117 On May 8 2008 DOE filed an Answer and General Denial On July 9 2008 DOE filed a Motion to Dismiss DOE argued that the matter is not arbitrable because Sebastien was placed in an acting position due to staffing shortages, which is an inherent right of management to ensure efficient running of management operations, BAA does not have a representation certificat e to represent temporary empioyees, or acting principals, thus, BAA does not have standing to represent the position or Sebastien and the matter should be, therefore, dismissed

$8 The matter came before PERB at its January 23, 2009 meeting Afier reviewing the evidence presented and the arguments raised by the parties, PERB entered its Decision and Order on February 18, 2009, dismissing EAA’s charge of unfair labor practice against DOE, finding that there

Felix 856 F 2d 505 508 (3d Cir 1988) (emphasis added) (citing 3 V I C § 451a) The DOE is in the Executive Branch of the government, 3 V IC § 91 (1995), and section 451a(c) provides that “[21]" positions in the Executive Branch of the United States Virgin Islands Government not exempted under subsection (b) of this section shall be in the career service ” Id § 451a Furthermore section 45l defines “regular employee” as “an employee who has been appointed to a position in the {career} service in accordance with [chapter 25 of title 3] after completing his working test period ” 3 V l C § 45! Section 451 uses the term “classified service,” which is synonymous with the term “career service ” See 3 V IC § 4Sla(d) Thus for Sebastien to be considered a regular employee entitled to the same rights and protections as permanent employees under the CBA she must show (i) that she was appointed to a position in the classified service 2) that her appointme nt was in accordance with chapter 25 of title 3, and (3) that she completed her working test period Since DOE did not believe Sebastien met the foregoing requirements to be deemed a permanent employee DOE did not consider Sebastien a member of the BAA bargaining unit and a party to the CBA Gov tofthe VI Dept ofEduc v S! Thomas St John Educ Admm Assoc and PERB 8X 2009 CV 00] IO Memorandum Opinion and Order Page 4 of 8 VI SUPER 79U

was no reasonable basis to believe that DOE had viotated the Act However, PERB did not deny and dismiss the grievance, but, rather, referred the alleged contractual violation to arbitration, ordering the parties to 1) select an arbitrator within thirty (30) calendar days of the entry of the Decision and Order, 2) commence arbitration within sixty (60) days of selecting an arbitrator, and 3) submit a written report to PERB of the steps taken to comply, and to submit a report every thirty (30) days thereafter

1I9 In reaching its conclusion that there were no violations of PERLA, PERB cited the language of the Act stating, in pertinent part, “that no employee may avail himself of more than one grievance procedure for the resolution of a particular grievance and/or dispute ” 24 V I C § 374(d) PERB reasoned that since BAA had already utilized the grievance process contained in the parties’ CBA by filing a grievance with DOE, a ruling on the merits by PERB would amount to multiple rulings on the matter, effectivety permitting BAA to forum shop, in contravention of the clear language of the Act Citing Local 1825 v DOE PERB ULPC 98 61 Decision and Order dated August 27, 1999, and a line of other PERB cases, PERB reaffirmed the principle that where the parties to a charge have agreed upon a method for resolving disputes arising in the workplace, that method should be deferred to whenever the subject matter of the charge is capable of final resotution thereunder Concluding that the two issues raised regarding the CBA by the parties were ones of contract interpretation whether BAA had standing to arbitrate on behalf of Sebastien, and whether the CBA was violated when Sebastien was terminated PERB held that these questions should be resolved by an arbitrator to interpret the relevant provisions of the CBA

$10 In its Petition, DOE asked the Court to vacate PERB’s Decision and Order dated February 18, 2009 On June 2 2010, the Court entered its Order Granting Writ, ordering the parties to submit briefs pursuant to a briefing schedule set forth Afier PERB’s submission of the administrative record, on July 22, 2010, DOE filed its Petitioner’s Brief, arguing that the Court should vacate PERB’s February 18 2009 Decision and Order for the following reasons (1) PERB erred in ordering the parties to arbitration after finding that there was no violation of PERLA, (2) PERB erred in ruling that the underlying matter was arbitrable, and (3) PERB erred by not precluding BAA from arguing that Sebastien was entitled to due process Gov I ofthe V I Dept ofEduc v St Thomas 45‘! John Educ Adm": Assoc and PERB 8X 2009 CV 00] IO Memorandum Opinion and Order Page 5 of 8 VI SUPER 79U

111 Ignoring the directive of the Order Granting Writ, Respondent BAA did not file a response brief following service of Petitioner’s Brief Respondent PERB also filed no brief but filed its Remand Request on August 25, 2010 In its Remand Request, PERB admitted that it did not consider DOE’s appointment procedures for professional employees, a prerequisite to the determination of whether 21 DOB employee was a member of the BAA bargaining unit with due process rights under the CBA, and asked the Court to remand the case to PERB for further proceedings

112 Petitioner’s Objection to PERB’s Remand Request argues that there is no need to remand the case to PERB as this Court has enough information on the record to vacate PERB’s Decision and Order Petitioner argues that since the only issue for PERB to decide was whether the Government violated the Act when it refused to arbitrate, and because PERB made a finding that the Government did not violate the Act, there is no need to remand the case to determine whether Sebastien was appointed in accordance with DOE procedures

LEGAL STANDARD

1113 The Appellate Division of the Superior Court of the Virgin Islands has jurisdiction over all appeals from “[a]ny party aggrieved by any final order of the PERB issued under section 530 or 531 of title 3 of the Virgin Islands Code 3 V I C § 530a(a)' VI R Civ P 9l(a) ( A writ of review may be granted by the court upon the petition of any party to any proceeding before, or aggrieved by, the decision or determination of an officer, board, commission, authority or other tribunal established by statute Such petition shall be filed with the Appellate Division ”) “An application for review must be filed within 30 days after the date of the Final Order ”3 VIC § 530a(a) In the instant case, PERB issued its Decision and Order on February 18, 2009 The Government timely filed a petition for review on February 27, 2009 Therefore, the Superior Court has jurisdiction over PBRB's February 18, 2009 Decision and Order

1114 “When hearing an appeal from the PERB, the Superior Court functions as an appellate court V I Narcotzcs Strzke Force v Govt ofthe V I Pub Emples Rel Bd 60 VI 204 218 (V1 2013) (citing 3 V I C §§ 530a(a) (0)) [AH] questions of fact determined by the PERB shall be conclusive, if supported by substantial evidence in the record considered as a whole ” 3 V I C § 530a(b) “The rules of procedure of the Superior Court regarding a writ of Review shall govern the Gov toflhe VI Dept ofEduc v S! Thomas/S’t John Educ Adi"!!! Assoc and PERB SX 2009 CV 00] IO Memorandum Opinion and Order Page 6 of 8 VI SUPER 79U

appeal proceeding ” Id § 530a(a) However, “[n]o objection not made before the PERB shalt be considered in a review by the Superior Court, unless the failure to make the objection is excused by the court because of extraordinary circumstances ” Id § 530a(b) “In reviewing a final order of the PERB, the [Superior Clourt may enforce the order, modify the order and enforce it, set the order aside, or return the matter to the PBRB with instructions for fiirther proceeding[s] ” Id § 5303(c)

DISCUSSION

115 In this matter, the Court is asked to decide whether PERB erred in ordering the parties to arbitration after finding that there was no violation of the Public Employees Labor Relations Act

116 PERB’s decision to defer the alleged contractual violation to arbitration is unsupportable based on the administrative record The United States Supreme Court has recognized that “arbitration is a matter of contract and a party cannot be required to submit to arbitrati on any diSpute which he has not agreed so to submit ” United Steelworkers ofAm v Warnor & GutYNav Co 363 U S 574, 582 (1960) This principle recognizes the reality that “arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration ”AT& T Techs Inc v Commun Workers ofAm 475 U S 643, 648 (1986) Therefore, “the question of arbitrability whether a collective bargaining agreement creates a duty for the parties to arbitrate the particular grievance is undeniably an issue for judicial deteimination Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator ” 1d at 649

1117 It is evident from the record that there was a disagreement between the parties as to whether they were subject to the CBA’s arbitration clause in the first instance DOE did not regard Sebastien a party to the CBA on the premise that Sebastien was in a temporary position and was not appointed to the position in accordance with the Personnel Merit System BAA, on the other hand, argued that Sebastien, as a school principal who performed the required functions and responsibilities of a principal, was a member of its bargaining unit

1118 In John Wiley & Sons Inc v Livingston, the U S Supreme Court held that whether or not a party was required to arbitrate, “‘as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties ’ The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial Gov (ofthe V1 Dept ofEduc v St Thomas 6'! John Educ Admin Assoc and PERB SX 2009 CV 00! IO Memorandum Opinion and Order Page 7 of 8 VI SUPER 79D

determination that the collective bargaining agreement does in fact create such a duty ” John Wiley & Sons Inc v Livingston 376 U S 543, 546 47 (1964) Therefore, because there was a genuine question as to the arbitrability of the diSpute, PERB should have determined that question, and should not have referred the matter case to arbitration

1H9 Furthermore, the Legislature has assigned to PERB the responsibility to “determine an appropriate bargaining unit of public employees by identifying the specific class or classes of employees or identifying positions the employees of which shall be members of a unit[ ]” 24 V I C § 370 Therefore, in the context of determining the appropriate bargaining unit of public employees and, consequently, deciding whether an employee is a party to a CBA, the Legislature has delegated to PERB what is otherwise a judiciai determination Here, the question of whether Sebastien was a party to the CBA was predicated on her employee classification, a determination which PERB was statutorily required to make in lieu of referring its legal responsibility to arbitration

1120 As the record indicates, and as PERB in its Remand Request admits, the salient questions of whether Sebastien was party to the CBA, and consequently, whether the matter between DOE and BAA was arbitrable, were never considered during the administrative proceedings These are questions which go the heart of PERB’sjurisdictional determination, and, as such, the Legislature has entrusted their resolution to PERB’s expertise in the first instance See generally 24 V I C § 379 (PERB review of alieged violations), 3 V I C § 530(a) (limiting PERB jurisdiction to complaints flied by regular employees) see also See 3 V I CODE R § 530 1(a) (s) (Weil 1999) (providing for PERB jurisdictional review)

in such circumstances a judicial judgment cannot be made to do service for an administrative judgment Nor can an appellate court intrude upon the domain which [the Legisiature] has exclusively entrusted to an administrative agency A court of appeals is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry Rather, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation I N S v Orlando Ventuia, 537 U S 12, 16 (2002) (citations and quotation marks omitted, ellipsis in original)

1[21 Therefore, the Court concludes that vacating PERB’s Decision and Order and remanding the case back to PERB is the apprOpriate course of action in this instance PERB has not Gov Iofthe VJ Dept ofEduc v St Thomas St John Educ Admin Assoc and PERB SX 2009 CV 00| [0 Memorandum Opinion and Order Page 8 of 8 VI SUPER 79U

yet determined Sebastien’s employee classification and, as a result, whether she was a member of the BAA bargaining unit and a party to the CBA That is, PERB never correctly determined whether the dispute was arbitrable

1122 For the foregoing reasons, the Petitioner’s two remaining contentions, that PERB erred in miing that the underlying matter was arbitrable, and that PERB erred in not ruling that BAA should be precluded from arguing that Sebastien was entitled to due process, are subsumed under this finding and Order

In light of the foregoing, it is hereby

ORDERED that Petitioner’s Petition is granted, in part The Decision and Order in 377‘ STJ EAA v DOE (PERB ULPC 08 7ST) is vacated It is further

ORDERED that the Petition is denied in its prayer that this Court determine that Anya Sebastien was not a member of the BAA bargaining unit, and the case is Remanded to PBRB to make such determination and for further proceedings consistent with this Opinion and Order It is further

ORDERED that Respondent’s Notice to the Court of Request to Remand Case to PERB is denied as moot It is further

ORDERED that this case is CLOSED

DATED December / (Z 2023 42];5, 7' / DO GLAS A BRAD JUDGE

ATTEST TAMARA CHARLES Clerk of the Court

By C0 Clerk Supervi r 441% IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix

GOVERNMENT OF THE VIRGIN Case Number: SX-2009-CV-00110 ISLANDS DEPARTMENT OF Action: Writ of Review EDUCATION, Petitioner, v.

ST.THOMAS/ST.JOHN EDUCATIONAL ADMINISTRATORS' ASSOCIATION AND PUBLIC EMPLOYEES RELATIONS BOARD, Respondents.

NOTICE of ENTRY of Order To Zuleyma M. Chapman, Esq. Ryan C. Stutzman, Esq. : Larry Raymond Roy, Esq.

Please take notice that on December 20, 2023 a(n) Memorandum Opinion and Order dated December 18, 2023 was/were entered by the Clerk in the above-titled matter.

Dated December 20, 2023 Tamara Charles : Clerk of the Court By:

Sharisse Bascombe Court Clerk Supervisor