Council of School Officers v. Vaughn , 553 A.2d 1222 ( 1989 )

ROGERS, Chief Judge:

Appellant Council of School Officers (CSO) appeals from the dismissal of its petition for review of an interest arbitration award. The trial court held that the award was not subject to judicial review where the District of Columbia’s Comprehensive Merit Personnel Act (CMPA), D.C. Code § 1-601.1 et seq. (1987 Repl. & 1988 Supp.), provided that such an award was final and binding on the parties. Id. § l-618.17(f)(3). The court also rejected CSO’s alternative contention that the award was subject to common law judicial review on the ground that CSO had not alleged that the decision on which the award was based was arbitrary, indefinite, or beyond the scope of the arbitration panel’s authority. CSO appeals contending that the award is reviewable either as agency action under the District of Columbia Administrative Procedure Act, D.C. Code § -1-1501 et seq. (1981), or under common law. We do not reach these issues because CSO failed to sue an indispensable party, Super.Ct.Civ.R. 19(a), and the D.C. Council had not yet approved the award pursuant to § 1 — 618.17(j) at the time that CSO filed its petition for review. Accordingly, we reverse and remand the case to the trial court to dismiss the complaint for want of jurisdiction because the award was not final and effective.

I.

Appellant Council of School Officers (CSO), an independent labor organization, is the exclusive bargaining representative for approximately 535 public school officers in the District’s public school system.¹ CSO and the District of Columbia Board of Education were parties to a collective bargaining agreement that was due to expire on April 6, 1985. Under the provisions of the District of Columbia Comprehensive Merit Personnel Act (CMPA), the terms of that agreement remained effective while the parties undertook collective bargaining in an attempt to reach a new agreement. D.C.Code § l-618.17(f)(4) (1988 Supp.). After efforts by the parties and by mediators proved to be unsuccessful in resolving the parties’ differences,² CSO requested, pursuant to § l-618.17(f)(3),³ binding arbitration on compensation matters.⁴ Thereafter, on January 8, 1986, PERB appointed appellee Vaughn as impartial arbitrator and permitted both CSO and the Board of Education to select one arbitrator each. Following eight days of hearings, commencing on January 21, 1986, the arbitration panel issued its opinion and award on February 14, 1986. Appellee Vaughn and George Margolies, the panel member selected by the Board of Education, subscribed to the award, while Johnnie Landon, CSO’s advocate arbitrator, dissented from the panel’s opinion and award.⁵ Vaughn then resigned his position as impartial chairman and the panel was dissolved.

Dissatisfied with the award, CSO sought review of the arbitration panel’s decision by PERB. PERB ruled that it had no power to review interest arbitration awards.⁶ On March 17, 1986, CSO filed a petition in the Superior Court to set aside the panel’s award, naming as respondents appellee Vaughn and appellee Dr. William Rumsey, chairman of PERB. The trial court granted appellees’ motions to dismiss the petition on February 24, 1987, ruling that the CMPA precluded judicial review and that CSO’s petition did not state a sufficient basis for common law judicial review. The trial court also rejected CSO’s argument that the arbitration panel’s award was a final order of PERB and therefore reviewable under § l-618.13(c).⁷

II.

The meaning of the phrase “final and binding” in § l-618.17(f)(3), see note 3, supra, is the principal dispute raised by the parties to this appeal. The issue, in essence, is whether that phrase is properly interpreted as precluding all judicial review of interest arbitration awards, and if not, what is the proper scope of judicial review. A threshold issue, however, causes us to forego resolving the issue of judicial review at this time.

It is an elementary proposition of law that a plaintiff must sue the proper party or parties as defendant. Flack v. Laster, 417 A.2d 393, 399-400 (D.C.1980) (citations omitted). Rule 19(a) of the Superior Court rules of civil procedure provides:

(a) Persons to be joined if feasible. A person who is subject to service of process and whose joinder will not deprive the Court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the Court shall order that he be made a party.

Who is a proper party defendant, or respondent, in an appeal from an interest arbitration award is a question of first impression in this court and turns on the statutory scheme created for impasse arbitration in the CMPA.⁸

A.

The CMPA was enacted to create a modem, flexible, and comprehensive system of public personnel administration in the District of Columbia government. House Comm, on the District of Columbia, 96th Cong., 1st Sess., Report of the Council of the District of Columbia on the District of Columbia Government Comprehensive Merit Personnel Act of 1978 at 153 (Comm.Print 1979). The statute sought to foster “a positive policy of labor-management relations including collective bargaining between the District of Columbia government and its employees.... D.C.Code § l-601.2(a)(6). The CMPA established PERB and invested that body with a number of functions, among which is the resolution of bargaining impasses through final and binding arbitration. Id. §§ 1-605.1, -605.2(4), -618.2(c). Under the statute, PERB may not itself perform arbitration and is limited to the selection of arbitrators from a list consisting of persons agreed upon by labor and management. Id. § 1-605.2(4). PERB is empowered only to consider appeals from arbitration awards rendered pursuant to a grievance procedure, id. § 1-605.2(6), and its decisions are subject to review in the Superior Court. Id. § 1-605.2(12).

The CMPA sets forth a specific procedure for compensation bargaining, based on negotiations between government employers and the unit representatives of government employees for the purpose of producing agreements on matters such as salary, wages, health benefits, and hours. Id. § l-618.17(b). Prior to the expiration of an existing collective bargaining agreement, management must begin a thorough study of the compensation being paid to comparable groups of government employees in the Washington, D.C. area. Id. § l-618.17(c). Not later than ninety days before the expiration of any existing collective bargaining agreement, the results of the study are to be made public and available to the parties to the negotiations. Id. § l-618.17(e)(l). Negotiations between the parties to an existing collective bargaining agreement must begin no later than ninety days prior to the expiration of that agreement. Id. § l-618.17(f)(l). Section 1-618.-17(f) provides for resolution of bargaining impasses through the use of mediation and binding interest arbitration. Arbitration may be invoked at any stage of the negotiations by either party in the event the impasse cannot be resolved through mediation, id. § l-618.17(f)(l), (2), (3), and the decision of the arbitration panel “shall be final and binding on the parties to the dispute.” Id. § 1 — 618.17(f)(3), supra note 3.

Furthermore, once the arbitration panel issues its decision and award, the D.C. Council can accept or reject the award. Id. § l-618.17(j). If the Council disapproves the award, then further collective bargaining is to occur; otherwise the award goes into effect. Id. See note 12, infra. The Mayor is required to support the arbitration panel award, and the District government is required to include the award in its budget requests to the Congress. Id. §§ 1-618.17(i) & (k).

B.

Appellees’ motions to dismiss CSO’s petition for review contended in relevant part that they were not the proper respondents. Vaughn pointed to his limited role, having nothing to do with implementation or enforcement of the award, and maintained further that he was immune from suit. PERB pointed out that there was no final order by it from which CSO could appeal and that the CMPA expressly restricted PERB’s role in interest arbitration to selection of the arbitration panel. PERB also raised a procedural objection, contending that CSO had failed to comply with PERB’s Rule 1 because CSO had failed properly to serve the District government as required by Rules 4 «fe 5. CSO responded that it had served the Corporation Counsel with a copy of its original complaint.⁹ Neither appel-lee, however, cast its dismissal argument in terms of the absence of an indispensable party nor referred to Super.Ct.Civ.R. 19(a), and the trial court made no reference to Rule 19(a) in its opinion.

As noted, the provisions for collective bargaining through impasse arbitration are designed to obtain a decision for parties who are otherwise unable to agree. By express language of the CMPA, the award is final and binding on the parties. See note 3, supra. Consequently, for CSO to obtain relief from an interest arbitration award, the CMPA requires that it first look to the D.C. Council to disapprove the award, and thereby obtain the right to new collective bargaining. If, however, the award goes into effect, then CSO either will be without a further remedy or will have to sue the District government, now bound to implement the award, in which event the issues relating to subject matter jurisdiction would arise.

This interpretation of the statutory scheme is in accordance with the specified procedure for compensation bargaining and the differentiation between grievance and interest arbitration. It also is consistent with the concept of a limited delegation of legislative authority by the D.C. Council over the determination of compensation levels.¹⁰ Furthermore, it offers an avenue of relief to a disappointed party through the mechanism of D.C. Council disapproval of the award, and, in the event that proves unsuccessful and this court holds that judicial review is not completely precluded, the prospect of meaningful judicial relief.

As CSO has framed its current lawsuit, neither Vaughn nor Rumsey, the chairman of PERB, can afford the relief sought. Vaughn, the neutral arbitrator, cannot act alone and neither the neutral arbitrator nor the arbitration panel is made a suable entity under the statute. Rumsey cannot prevent, much less nullify, the Council’s approval of an interest arbitration award or the District government’s payment of compensation in accordance with the award. Nor is a final order of PERB involved since PERB has not adopted the arbitration award as its own and has no such role under the statute. Hence, since there is “no demonstration that [their presence] in th[e] litigation is necessary to enable the court to afford all of the requested relief,” Equal Employment Opportunity Comm’n v. Levi Strauss & Co., 515 F.Supp. 640, 642 (N.D. 111.1981), Vaughn and Rumsey should be dismissed as defendants.¹¹

In addition, at the time CSO filed its lawsuit, the Superior Court was without jurisdiction to determine whether interest arbitration awards rendered pursuant to D.C.Code § 1-618.17 were subject to judicial review. CSO filed its petition for review of the award on March 17, 1986. However, the award was not final and effective because the D.C. Council had not reviewed the award for either approval or rejection pursuant to § l-618.17(j). Cf. District of Columbia v. Eck, 476 A.2d 687, 689 (D.C.1984) (an order of a Superior Court commissioner is not final where the trial judge has not approved or rejected it as contemplated by statute). Indeed, the award was not even final and effective at the time the court issued its judgment on February 24, 1987. The D.C. Council did not approve the award until March 3, 1987.¹²

It is well-established that this court will only review final judgments and orders, whether from the trial court, Hagner Management Corp. v. Lawson, 534 A.2d 343, 344 (D.C.1987); Crown Oil and Wax Co. v. Safeco Ins. Co. of America, 429 A.2d 1376, 1379 (D.C.1981); Whitman v. Noel, 53 A.2d 280, 281 (D.C.Mun.1947); D.C.Code § ll-721(a)(l), or an administrative agency. George Washington Univ. Medical Center v. District of Columbia Bd. of Appeals and Review, 530 A.2d 227, 230 (D.C.1987); Office of People’s Counsel v. Public Serv. Comm’n, 477 A.2d 1079, 1082 (D.C.1984); Auger v. District of Columbia Bd. of Appeals and Review, 477 A.2d 196, 213 (D.C.1984). The lack of finality removes the issue from the subject matter jurisdiction of this court. Jenkins v. United States, 548 A.2d 102, 109 (D.C. 1988); Southland Indus., Inc. v. FCC, 69 App.D.C. 82, 99 F.2d 117 (1938). Similarly, we hold that the Superior Court could only have had jurisdiction if CSO had filed its petition for review after the D.C. Council had in fact acted upon the award as required by statute. Cf. Richardson v. District of Columbia Redev. Land Agency, 453 A.2d 118, 124-25 (D.C.1982) (issue not fit for judicial review in Superior Court in absence of final agency action).¹³

The effect of lack of jurisdiction in the trial court is to deprive this court of jurisdiction of the appeal. 1425 F. Street Corp. v. Jardin, 53 A.2d 278, 279-80 (D.C. Mun.1947); Wallace v. Degree, 38 App.D.C. 145, 148-49 (1912). Accordingly, we remand the case to the trial court with instructions to vacate its judgment as void and to dismiss the complaint for want of jurisdiction. District of Columbia Employees’ Compensation Appeals Bd. v. Henry, 516 A.2d 941, 944 (D.C.1986); McCray v. McGee, 504 A.2d 1128, 1131 (D.C.1986); In re An Inquiry into Allegations of Misconduct Against Juveniles Detained at Cedar Knoll Inst., 430 A.2d 1087, 1093 (D.C.1981); Hubbell v. United States, 289 A.2d 879, 881 (D.C.1972); 1425 F Street Corp., supra, 53 A.2d at 280.¹⁴

REVERSED AND REMANDED.

1 . In its response filed August 5, 1988, to a rule to show cause issued by this court on June 9, 1988, why the appeal should not be dismissed for failure to join the District of Columbia as an indispensable party, the District of Columbia, as amicus curiae, advised that, as the result of a new union representative election, CSO no longer represents the public school officers. Appel-lee Rumsey has similarly advised the court on September 22, 1988. We need not reach this issue in view of our disposition.

2 . The record indicates that the parties conducted virtually no bargaining until late September 1985, just prior to the end of the District’s 1985 fiscal year. On September 16, 1985, CSO filed a notice of impasse with the District of Columbia Public Employee Relations Board (PERB) regarding compensation issues. See D.C.Code § 1 — 618.17(f)(3). Subsequently, the Board of Education also filed a notice of impasse with PERB. After meeting on September 28, 1985, the parties reached a tentative agreement, which was later rejected by CSO’s membership. CSO then gave notice of a new impasse on September 30, 1985.

After receiving notice of the impasse, PERB's Executive Director asked the Federal Mediation and Conciliation Service to provide a mediator to assist in the resolution of the dispute. Id. § l-618.17(f)(3). See note 3, infra. There followed two sessions with the federal mediator at which the parties did not discuss the issues face to face. There was disagreement about whether the respective positions of the parties were communicated and understood, and the mediator eventually recessed negotiations, declaring that any further attempts to resolve the dispute would be futile.

3 . D.C.Code § l-618.17(f)(3) provides:

If the parties reach an impasse on any issues in negotiations before the declared automatic impasse date, any party shall promptly notify the Executive Director of the Public Employee Relations Board in writing. The Executive Director shall assist in the resolution of this impasse by selecting an impartial person experienced in public sector disputes to serve as a mediator. If the mediator does not resolve the impasse within 30 days, or any shorter period designated by the mediator, or before the automatic impasse date, the Executive Director, upon the request of any party, shall appoint an impartial Board of Arbitration to investigate the labor-management issues involved in the dispute, conduct whatever hearing it deems necessary and issue a written award to the parties with the object of achieving a prompt and fair settlement of the dispute. The last best offer of each party shall be the basis for this impasse arbitration. The award shall contain findings of fact and a statement of reasons. The award shall be final and binding upon the parties to the dispute.

Id. (emphasis added.)

4 . When the parties were unable to agree whether both compensation and noncompensation issues should be submitted to arbitration at once, CSO sought a temporary restraining order to compel the appointment of an arbitrator to resolve compensation issues. On January 3, 1986, the Executive Director of PERB entered into a consent order with CSO agreeing to appoint an arbitrator. Neither the action for the temporary restraining order nor the consent order is at issue in this appeal.

5 . Johnnie Landon is also counsel in the instant appeal.

6 . “Interest arbitration”

refers to the arbitration of disputes arising from negotiations for new contract terms. In contrast, "grievance” disputes arise from the interpretation or application of an existing agreement. “Binding” interest arbitration is arbitration that results in a legally binding contract award.

Grodin, Political Aspects of Public Sector Interest Arbitration, 64 CalifJLRev. 678, 678 n. 1 (1976) (emphasis added). See Winston-Salem Printing Pressmen and Assistants’ Union No. 318 v. Piedmont Publishing Co., 393 F.2d 221, 224 n. 3 (4th Cir.1968). This form of arbitration is also referred to as "prospective” or “quasi-legislative” or "new contract” arbitration. Id. at 223-24; see also NLRB v. Columbus Printing Pressmen & Assistants’ Union No. 252, 543 F.2d 1161, 1163 n. 4 (5th Cir.1976); Note, Quasi-Legislative Arbitration Agreements, 64 ColumJL.Rev. 109, 110-11 (1964).

7 . D.C.Code § l-618.13(c) provides for appeals from PERB orders by any person aggrieved thereby.

8 . See In re Estate of Burton, 541 A.2d 599 (D.C. 1988) (statutory construction); Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751 (D.C.1983) (same); Floyd E. Davis Mortgage Corp. v. District of Columbia, 455 A.2d 910, 911 (D.C.1983) (construe statute in the context of the entire legislative scheme).

9 . Although (apparently) served, the District government made no effort to enter the case.

10 . In view of our disposition, we do not reach the question of whether this delegation is impermissible, as CSO contends.

11 . See also Greenhouse v. Greco, 617 F.2d 408, 413-14 (5th Cir.1980) (Catholic bishop and other diocesan individuals should be dismissed as defendants in class action for desegregation of parochial schools since they would be unable to effectuate relief where schools controlled by individual churches); Gary Energy Corp. v. Department of Energy, 89 F.R.D. 675, 676-77 (D.Colo.1981) (individual agency officers should be dismissed as defendants where relief does not depend on their presence); cf. Chancery Clerk v. Wallace, 646 F.2d 151, 160 (5th Cir. 1981) (chancery judges and clerks had to be dismissed as defendants from class action challenging mental commitment procedures since they did not have necessary personal stake in outcome of controversy to assure case or controversy); Mendez v. Heller, 530 F.2d 457 (2d Cir.1976) (state judges and clerks lack requisite interest to be joined as defendants in suit challenging state residency requirement for divorce); System Fed'n No. 30 v. Braidwood, 284 F.Supp. 607, 610-11 (N.D.Ill.1968) (role of arbitrator analogous to that of trial judge in appellate proceedings); Fong v. American Airlines, Inc., 431 F.Supp. 1340, 1343-44 (N.D.Cal.1977).

12 . D.C. Council Resolution 7-22, Compensation Award for Employees of the District of Columbia Board of Education in Compensation Units 6 and 17 Approval Resolution of 1987, 34 D.C. Reg. 1737 (March 13, 1987). Prior to March 25, 1987, § l-618.17(j) did not provide a time period within which management must transmit the settlement to the Council. The Council amended the CMPA to require management to transmit the arbitration award to the Council within sixty days. See D.C. Act 7-11, District of Columbia Government Comprehensive Merit Personnel Act of 1978 Collective Bargaining Amendment Emergency Act of 1987, 34 D.C.Reg. 2326 (April 10, 1987); D.C. Act 7-16, District of Columbia Government Comprehensive Merit Personnel Act of 1978 Collective Bargaining Amendment Temporary Amendment Act of 1987, 34 D.C.Reg. 2637 (April 24,1987); D.C. Act 7-30, District of Columbia Government Comprehensive Merit Personnel Act of 1978 Collective Bargaining Amendment Act of 1987, 34 D.C.Reg. 3799 (June 12, 1987).

After management transmits the award the Council can accept or reject the award by resolution within sixty days or allow the award to become effective without formal action by allowing the sixty-day period to ran. D.C.Code § 1-618.17Q).

13 .One of the principle rationales of the finality requirement is to avoid resolution of issues on review which may become moot once the original decision-making process contemplated by statute is completed. George Washington Univ. Medical Center, supra, 530 A.2d at 230; Richardson, supra, 453 A.2d at 124; Crown Oil, supra, 429 A.2d at 1379. At the time CSO filed its petition for review neither it nor the Superior Court could determine whether the D.C. Council would approve or reject the award. If the D.C. Council rejected the award and ordered further negotiations, then CSO would have obtained the relief it was seeking from the Superior Court.

14 . Upon remand, the trial court also should address Vaughn’s and Rumsey’s requests for attorneys’ fees.