Employee relations’ losses in legal cases are costing D.C.

In the last four years, the District of Columbia has lost between 60 percent and 70 percent of all cases decided by the city’s employee relations board, according to a recent D.C. Council budget report.

And although the former executive director of the Public Employee Relations Board (PERB) has accused its members of harboring a pro-labor bias and of racial and ideological discrimination against its own employees, additional reasons loom for the lopsided results, which can have financial consequences for the city.

The five-member board — comprised of labor and management appointees, two community members and a chairman — has been ruling on employment-related disputes for two years despite a vacant management seat. A spokesman for Mayor Vincent C. Gray said finding qualified candidates is difficult, but he is trying to fill the seat.

Of the costs associated with losing employment disputes, the spokesman said, “Counting wins and losses, or the costs associated with them, is doing a disservice to the individual cases. Each has its own significance.”

But, according to the council report, there is cause to question whether the District’s Office of Labor Relations and Collective Bargaining should recommend that city agencies settle labor-management disputes more frequently. A February report to the council’s Committee on Government Operations, which oversees the PERB, shows that PERB issued 135 decisions and presided over settlement of just four cases in fiscal 2012.

The council report states that the director of the labor relations office, Natasha Campbell, told D.C. Council Chairman Phil Mendelson in an April 30 letter that she sees no reason to question the city’s approach. Ms. Campbell, the report says, advises city agencies to try certain cases rather than settle to establish legal precedent.

However, veteran labor attorneys say PERB is an independent, autonomous agency that rarely is overturned by the courts. In the past 20 years, courts have reversed PERB just three times. And when the city loses a labor dispute, it often is forced to pay the unions’ attorney’s fees.

George Johnson, executive director of the American Federation of State County and Municipal Employees, recently praised Ms. Campbell for her leadership, but Fraternal Order of Police Chairman Kristopher Baumann, whose union is responsible for more cases before PERB than any other, says the city has a habit of defending incompetence and violations of the law.

A litigation summary he provided to Mr. Mendelson included a handful of cases in which Ms. Campbell’s office violated labor agreements and was slapped with orders to pay $200,000 in attorney fees in disputes over back pay and overtime pay for police, and more than $1 million in health insurance reimbursements.

He cited one police case in which an arbitrator found that the District’s chief labor negotiator gave sworn testimony that was “materially inconsistent with the facts and the testimony of an assistant chief of police.”

Neither Ms. Campbell nor Mr. Mendelson responded to requests for comment.

In a case pending before the D.C. Court of Appeals, a lower court judge agreed with an arbitrator, whose ruling was upheld by PERB, that the D.C. fire department is liable to Local 36 of the International Association of Fire Fighters for $40 million in unpaid overtime pay dating back more than a decade.

Ondray T. Harris, PERB’s former executive director who resigned after accusing his board of discriminating against whites and conservatives — and of a pro-labor bias — partly agrees with Mr. Baumann. Mr. Harris, who describes himself as pro-management, said that he has found that management usually oversteps its bounds, and that PERB’s board is “hyper pro-labor” — particularly with a management seat left vacant for two years.

“I’ve often said, ’What is management thinking? They’re doing boneheaded things,’ but then there’s also no balance on the board,” he said, adding that attorneys who issue rulings feel constrained from following the law if it favors management.

Mr. Harris said the Gray administration is guilty of “either nonfeasance or malfeasance” in leaving the board’s management seat vacant for so long, and he was disturbed when his board decided not to issue dissenting opinions, a practice he described as “abusive.” He estimated the board reverses or modifies 90 percent of his former staff’s pro-management decisions.

“How do you serve the public with a slanted board?” he asked. “Taxpayers want justice and their tax dollars protected.”

Mr. Baumann disagrees that there is a pro-labor bias among the PERB’s board members, but he said if the District wants to lose fewer cases “it needs to instruct its managers to stop violating the law. Management behavior in many of these cases is egregious. You couple that with bad lawyering and you have a recipe for a lot of losses.”