“The responsibility of perfecting the record remains with appellant and ‘cannot be shifted to . . . this court.’” (quoting Brown v. Plant, 157 A.2d 289, 291 (D.C. 1960))
How later courts described this case
- “The responsibility of perfecting the record remains with appellant and ‘cannot be shifted to . . . this court.’” (quoting Brown v. Plant, 157 A.2d 289, 291 (D.C. 1960))
- corporations must be represented by legal counsel
- noting that the Federal Arbitration Act “has been strictly interpreted by the courts to prohibit an employee who was not a party to the arbitration from appealing the results of the arbitration between the employee’s union and employer”
- rejecting the idea that a union can assign to individual employees the right to arbitrate or the right to seek judicial review of arbitration
Written by the judges who cited it.
The opinion
Notice: This opinion is subject to formal revision before publication in the Atlantic
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to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 23-CV-0044
LEROY WILLIAMS, APPELLANT,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF GENERAL SERVICES, et al., APPELLEES.
Appeal from the Superior Court
of the District of Columbia
(2021-CA-004491-P(MPA))
(Hon. Maurice Ross, Trial Judge)
(Submitted September 25, 2024 Decided November 7, 2024)
Leroy Williams, pro se. Marc L. Wilhite was on the reply brief for appellant.
Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S.
Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General,
Thais-Lyn Trayer, Deputy Solicitor General, and Alex Fumelli, Assistant Attorney
General, were on the brief for appellee District of Columbia Department of General
Services.
Bruce A. Frederickson and Geoffrey H. Simpson were on the brief for appellee
Public Employee Relations Board.
Before EASTERLY, MCLEESE, and SHANKER, Associate Judges.
EASTERLY, Associate Judge: The Public Employee Relations Board (“PERB”)
denied a request from the Fraternal Order of Police (“FOP”) to review an arbitration
2
award terminating Leroy Williams’s employment with the D.C. Department of
General Services (“DGS”). FOP sought review from the Superior Court, which
affirmed PERB’s order; Mr. Williams now seeks review from this court. Because
FOP’s collective bargaining agreement gives the union the sole authority to arbitrate
grievances, we hold that Mr. Williams lacks standing and dismiss his appeal.
I. Facts and Procedural History
Mr. Williams worked as a special police officer with the mobile patrol unit of
DGS’s Protective Services Division. In August 2019, DGS provided Mr. Williams
with a final Notice of Separation, terminating him for conduct related to two
unauthorized traffic stops the previous March. The notice presented Mr. Williams
with three options to appeal the agency’s decision: (1) personally “filing an appeal
with the Office of Employee Appeals”; (2) having his union, FOP “fil[e] a grievance
pursuant to the negotiated agreement between” DGS and FOP; or (3) personally
“filing a grievance pursuant to Chapter 16 of the DC personnel regulations.”
Mr. Williams chose the second option, and the following month FOP filed a
grievance on his behalf. When FOP and DGS were unable to settle the grievance
following the steps set forth in the collective bargaining agreement, FOP decided to
advance the grievance to arbitration, again per the terms of its collective bargaining
agreement. The arbitrator issued an award denying Mr. Williams’s grievance in full,
3
concluding that DGS had just cause to remove Mr. Williams and had followed all
applicable laws, rules, and regulations in doing so.
FOP then filed an arbitration review request with PERB, which found “no
cause to modify, set aside, or remand the [a]ward” of the arbitrator, followed by a
petition for review with the Superior Court, which affirmed PERB’s decision. After
counsel for FOP withdrew from the proceeding, Mr. Williams timely appealed the
Superior Court’s decision himself. Mr. Williams, proceeding without an attorney,
filed an opening brief; his reply brief was filed by counsel, who entered their
appearance as “counsel for the Appellant Leroy Williams.”
II. Discussion
Before we can reach the merits of this appeal, we must first address a threshold
jurisdictional question, namely, whether Mr. Williams has standing to bring this
appeal. Grayson v. AT&T Corp., 15 A.3d 219, 229 (D.C. 2011) (en banc) (“Standing
is a threshold jurisdictional question which must be addressed prior to and
independent of the merits of a party’s claims.” (quoting Bochese v. Town of Ponce
Inlet, 405 F.3d 964, 974 (11th Cir. 2005))); see also Fraternal Ord. of Police Metro.
Police Dep’t Lab. Comm. v. District of Columbia, 290 A.3d 29, 36-37 (D.C. 2023)
(explaining that this court “generally adhere[s] to the case and controversy
requirement of Article III as well as prudential principles of standing”). Because we
4
conclude that Mr. Williams does not have standing to pursue this appeal, we must
dismiss this case without reaching his merits arguments.
DGS argues that Mr. Williams lacks standing because, inter alia, “[o]nly the
Union had standing to seek, or obtain review of, an arbitration award.” We agree.
As a general matter, “an individual employee lacks direct control over a union’s
actions taken on his behalf.” Chauffeurs, Teamsters & Helpers, Loc. No. 391 v.
Terry, 494 U.S. 558, 567 (1990). And in the context of workplace disputes, “the
union typically has broad discretion in its decision whether and how to pursue an
employee’s grievance against an employer.” Id. at 567-68; see, e.g., Pitt v. D.C.
Dep’t of Corrs., 954 A.2d 978, 985 (D.C. 2008) (“[I]f a union is unwilling to take
an employee’s grievance to arbitration, the employee’s only remedy at that point is
a complaint against the union filed with [PERB], requesting an order compelling the
union to arbitrate.” (alterations omitted) (quoting Bd. of Trs., Univ. of D.C. v. Myers,
652 A.2d 642, 646 (D.C. 1995))). Vesting control of the grievance process in the
union serves the interests of both unions and employers. “Such activity [prosecuting
employees’ grievances] complements the union’s status as exclusive bargaining
representative by permitting it to participate actively in the continuing administration
of the contract. . . . Employer interests, for their part, are served by limiting the
choice of remedies available to aggrieved employees.” Republic Steel Corp. v.
Maddox, 379 U.S. 650, 653 (1965). Here the collective bargaining agreement
5
expressly provides that “[o]nly the [u]nion may advance a grievance to arbitration,”
and it follows that only the union was empowered to appeal an adverse arbitration
ruling to this court.
This court has not previously had opportunity to address whether an individual
employee has standing to appeal an arbitration award when the collective bargaining
agreement grants the union, not the employee, the exclusive right to advance a
grievance to arbitration. A review of other jurisdictions, however, shows a uniform
line of decisions disallowing individual appeals unless the collective bargaining
agreement expressly authorizes individual employees to arbitrate or the union is
found to have breached its duty of fair representation. See, e.g., Anderson v. Norfolk
& W. Ry., 773 F.2d 880, 882 (7th Cir. 1985) (compiling federal court cases holding
that “individual employees have no standing to challenge an arbitration proceeding
to which the Union and the employer were the sole parties”); Miles v. FOP Lodge
#5, 217 A.3d 892, 898 (Pa. 2019) (“As a general principle, a union, not its individual
members, controls the appeal of an arbitration award.”); Leon v. Boardman Twp.,
800 N.E.2d 12, 16 (Ohio 2003) (“[W]hen an employee’s discharge or grievance is
arbitrated between an employer and a union under the terms of a collective
bargaining agreement, the aggrieved employee does not have standing to petition a
court to vacate the award . . . unless the collective bargaining agreement expressly
gives the employee an independent right to submit disputes to arbitration.”);
6
Stahulak v. City of Chicago, 703 N.E.2d 44, 48 (Ill. 1998) (“[I]ndividual employees
represented by a union should only be allowed to seek judicial review of an
arbitration award if they can show that their union breached its duty of fair
representation.”); Eisen v. Dep’t of Pub. Welfare, 352 N.W.2d 731, 736 (Minn.
1984) (“[U]nless the collective bargaining agreement provides otherwise, an
individual employee may not appeal an unfavorable award where the union
expressly determines not to appeal.”); cf. Bacashihua v. U.S. Postal Serv., 859 F.2d
402, 405 (6th Cir. 1988) (noting that the Federal Arbitration Act “has been strictly
interpreted by the courts to prohibit an employee who was not a party to the
arbitration from appealing the results of the arbitration between the employee’s
union and employer”).
We now similarly conclude that in this jurisdiction, where a collective
bargaining agreement grants only the union the authority to advance a grievance to
arbitration, only the union has the corresponding standing to appeal an adverse
decision (unless the union breached its duty of fair representation). Having chosen
to challenge his termination by “filing a grievance pursuant to the negotiated
agreement between” DGS and FOP, Mr. Williams gave FOP “broad discretion in its
7
decision whether and how to pursue [his] grievance against [DGS].” 1 See Terry, 494
U.S. at 567-68.
Mr. Williams does not dispute that, per the terms of the collective bargaining
agreement, “[o]nly the Union may advance a grievance to arbitration.” Instead, he
suggests that he has standing because he had the union’s backing. He asserts that
“[a]fter the Superior Court affirmed PERB’s order below, . . . Ms. Ann-Kathryn So
[FOP’s counsel] 2 advised him of his rights to appeal the matter, and provided
warning of the timeline to file a notice of appeal.” He further states that, because he
“did not intend to miss the deadline to timely file his appeal, he filed the Opening
Brief on behalf of the Union until further counsel could be obtained”; FOP then
“sought representation for Officer Williams on reply,” thus “indicat[ing] its express
authorization of this appeal.”
To begin with, there is nothing in the record indicating what former counsel
for FOP said to Mr. Williams prior to withdrawing from the case, or whether FOP
1
Mr. Williams had other choices. He could have forgone the backing of the
union and retained personal control over the challenge to DGS’s decision to fire him
by opting to “fil[e] an appeal with the Office of Employee Appeals” or to “fil[e] a
grievance pursuant to Chapter 16 of the DC personnel regulations.”
2
In his brief, Mr. Williams describes the attorney, Ms. So, as
“Officer Williams’ counsel,” but the record reflects that she was in fact counsel “for”
FOP “on behalf of” Mr. Williams.
8
indeed gave its “express authorization of this appeal.” “Appellate review is limited
to matters appearing in the record before us, and we cannot base our review . . . upon
statements of counsel which are unsupported by that record.” Van Durr v. Kator &
Scott, Chartered, 788 A.2d 579, 581 (D.C. 2002) (citation omitted); see also Cobb
v. Standard Drug Co., 453 A.2d 110, 111 (D.C. 1982) (“The responsibility of
perfecting the record remains with appellant and ‘cannot be shifted to . . . this
court.’” (quoting Brown v. Plant, 157 A.2d 289, 291 (D.C. 1960))); D.C. App.
R. 16(b) (allowing parties to supplement the record “at any time” by stipulation).
But even if the record did support these factual assertions, Mr. Williams
points to no authority that would allow him to “file[] the Opening Brief on behalf of
the Union.” Instead, the weight of authority indicates that the union must be
represented by its counsel. See Exec. Sandwich Shoppe, Inc. v. Carr Realty Corp.,
749 A.2d 724, 731 (D.C. 2000) (“[S]tanding doctrine embraces several judicially
self-imposed limits on the exercise . . . of jurisdiction, such as the general prohibition
on a litigant’s raising another person’s legal rights . . . .” (quoting Allen v. Wright,
468 U.S. 737, 751 (1984))); Shamey v. Hickey, 433 A.2d 1111, 1113 (D.C. 1981)
(corporations must be represented by legal counsel); Rowland v. California Men’s
Colony, 506 U.S. 194, 201-02 (1993) (requirement of representation “applies equally
to all artificial entities,” including “corporations, partnerships, or associations”); see
also J.H. Marshall & Associates, Inc. v. Burleson, 313 A.2d 587, 595 (D.C. 1973)
9
(courts “will not permit laymen to appear in court in a representative capacity”). Nor
are we persuaded by Mr. Williams’s argument that he has standing because he and
the union “operate[d] in lock-step,” as evidenced by the union “help[ing]
Officer Williams secure counsel at every stage of review.” Whether or not FOP
helped Mr. Williams obtain counsel after he filed his opening brief without the
assistance of an attorney has no bearing on whether he had the legal right to appeal
in the first place. See Dillman v. Town of Hooksett, 898 A.2d 505, 508-09 (N.H.
2006) (rejecting the idea that a union can assign to individual employees the right to
arbitrate or the right to seek judicial review of arbitration); Ruiz v. N. Las Vegas, 255
P.3d 216, 221 (Nev. 2011) (same). 3
For the foregoing reasons, we dismiss Mr. Williams’s appeal for lack of
standing.
So ordered.
3
Mr. Williams does not argue that the withdrawal of FOP’s attorney prior to
filing a notice of appeal with this court constituted a breach of the union’s duty of
fair representation, and we take no position on that question.