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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CV-699
PARAGON SYSTEMS, INC., APPELLANT,
V.
TOMIKA WILLIAMS, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CAB-2638-19)
(Hon. Heidi M. Pasichow, Trial Judge)
(Submitted April 15, 2021 Decided June 23, 2022)
Maurice Baskin and S. Libby Henninger were on the brief for appellant.
Tomika Williams, pro se. (Not an Attorney)
Before GLICKMAN, EASTERLY, and MCLEESE, Associate Judges.
Opinion of the court by Associate Judge EASTERLY.
Dissenting opinion by Associate Judge GLICKMAN at page 7.
EASTERLY, Associate Judge: Paragon System appeals from the denial of its
motion to compel arbitration of Tomika Williams’ claim for back wages. See D.C.
Code § 16-4427(a)(1) (2012 Repl.) (authorizing an appeal to be taken from an order
2
denying or granting a motion to compel arbitration). Ms. Williams was a former
Paragon employee. After she filed suit against Paragon in Superior Court, Paragon
sought to compel arbitration based on the grievance procedure contained in the
collective bargaining agreement it had with Ms. Williams’ union, the National
Association of Special Police and Security Officers (NASPSO). The trial court
denied Paragon’s motion to compel arbitration, concluding that Paragon had failed
to carry its burden to prove that Ms. Williams had “clearly and unmistakably waive[d
her] right[] to a judicial forum.” The trial court reasoned that the “general and vague
grievance procedure” contained in the CBA “does not clearly and unmistakably
compel [Paragon’s] employees to arbitrate matters arising from violations of the
D.C. Payment and Collection of Wages Act or the D.C. Minimum Wage Act” 1 and
that the language in the CBA referring to arbitration was merely permissive.
Reviewing the trial court’s ruling de novo, Bank of Am., N.A. v. District of Columbia,
80 A.3d 650, 667 (D.C. 2013), we reach the same conclusion.
Article 12, Section 2 of the CBA between NASPSO and Paragon sets out a
1
D.C. Code § 32-1301 et seq. (2019 Repl.) and D.C. Code § 32-1001 et seq.
(2019 Repl.).
3
four-step “grievance procedure”: (1) an employee with a grievance2 “shall promptly
discuss it with the Captain and submit a formal grievance” within a certain
timeframe; (2) if there is no satisfactory settlement, the grievant or a union
representative “may . . . submit” the grievance to the program manager; (3) if there
is still no satisfactory settlement, the grievant or a union representative “may . . .
submit” the grievance to the Labor Relations representative; and (4) “[i]f a
satisfactory settlement is not effected in Step 3, either party may refer the matter to
arbitration.” Article 12, Section 3 provides in relevant part that “[a]ny grievance
involving . . . back pay liability shall be commenced at Step 3 of [the] procedure”
and that an unsettled grievance “may be processed by the Union to arbitration.”
Similarly, Article 12, Section 4 provides that “[t]he Union . . . may invoke
arbitration” within a certain timeframe if a grievance is rejected “by the Company’s
Designated Representative.” Lastly, Article 12, Section 5 directs that “[a]ny
grievance not processed in accordance with the time limits and/or steps of the
grievance procedure prescribed above shall be deemed waived.”
2
A grievance is defined in Article 12, Section 1 as “any disagreement between
the parties concerning any matters relating to wages, rates of pay, hours of
employment or other conditions of employment, or any application or interpretation
of the Employer’s policies, applicable laws, or the provisions of this Agreement.”
We assume that Ms. Williams’ statutory claim for back wages may be the proper
subject of a grievance, but as we explain, we do not understand the CBA to clearly
and unmistakably compel arbitration of any grievance, and certainly not of Ms.
Williams’ back wages claim.
4
“A gateway dispute about whether the parties are bound by a given arbitration
clause raises a ‘question of arbitrability’ for a court to decide.” Howsam v. Dean
Witter Reynolds, Inc., 537 U.S. 79, 84 (2002). As the trial court correctly
recognized, because the arbitration provision was part of a CBA, not an individual
contractual agreement, the burden lay with Paragon to establish that Ms. Williams’
obligation to arbitrate under the CBA was “particularly clear,” and correspondingly
that her waiver of her right to litigate a statutory claim was “clear and unmistakable.”
Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 79–80 (1998) (internal quotation
marks omitted) (explaining that there is no presumption that matters beyond the
interpretation and application of contract terms are subject to arbitration and that the
“clear and unmistakable” standard applies to “a union-negotiated waiver of
employees’ statutory right to a judicial forum” for such claims); 14 Penn Plaza LLC
v. Pyett, 556 U.S. 247, 260 (2009) (concluding that the CBA, which partly provided
that “[a]ll such claims [of discrimination] shall be subject to the grievance and
arbitration procedure . . . as the sole and exclusive remedy for violations” clearly and
unmistakably required employees to arbitrate (emphasis added)); see also Byrd v.
VOCA Corp. of Washington, D.C., 962 A.2d 927, 940 (D.C. 2008). But the language
of the CBA does not render the arbitration requirement for employees clear or the
waiver of their right to go to court unmistakable. The text of the CBA is expressly
permissive, providing in Section 2, Step 4 that “either party may refer the matter to
5
arbitration”; in Section 3 that an unsettled grievance relating to back pay “may be
processed by the Union to arbitration”; and in Section 4 that “[t]he Union . . . may
invoke arbitration” within a certain timeframe. 3 (emphasis added). Cf. In re J.D.C.,
594 A.2d 70, 75 (D.C. 1991) (“[T]he word ‘may,’ . . . is quintessentially
permissive.”); King Carpentry, Inc. v. 1345 K Street SE, LLC, 262 A.3d 1105, 1110
(D.C. 2021) (explaining that “specific language of exclusion,” such as “only,”
“solely,” or “exclusively,” is required for mandatory forum selection).
Paragon argues that the “mandatory language appearing throughout the
grievance procedure of which the arbitration clause is the final step . . . makes clear
that failure to invoke the final arbitration step causes a grievance to be ‘waived.’”
But we are not persuaded. Although there is some mandatory language in the CBA,
it does not pertain specifically to arbitration. Rather, as noted, all language referring
to arbitration is permissive. Paragon also asserts that the arbitration agreement in
this case is just like that in Skrynnikov v. Fed. Nat. Morg. Ass’n, 943 F. Supp. 2d
172, 180 (D.D.C. 2013), where a federal trial court granted the employer’s motion
3
Paragon suggests that it was somehow improper for the trial court to consider
the nature of the language in the CBA because that was not the focus of Ms.
Williams’ opposition. Given that Paragon has the burden of proof to show that Ms.
Williams had clearly and unmistakably agreed to arbitrate her statutory claim under
the CBA, see supra, we cannot agree.
6
to compel arbitration. But Skrynnikov analyzed an arbitration agreement in an
individual’s employment contract, and the terms of the contract broadly required the
employee to arbitrate “all claims against Fannie Mae involving a legally protected
right, that directly or indirectly relate to his or her employment . . . .” Id. at 175
(ellipses omitted). Skrynnikov is not contrary authority for the interpretation of the
arbitration clause at issue in the case, which was part of a CBA4 and used permissive
language.
Our colleague in dissent argues that it is “beside the point” that the CBA “did
not clearly or unmistakably require either Ms. Williams or Paragon to refer her
unsettled grievance to arbitration” because, once Paragon opted to do so, “[n]othing
in the CBA can be construed to give Ms. Williams a right to refuse to arbitrate her
grievance.” Post at 10. Paragon did not make this argument in its brief to this court,
focusing instead on Ms. Williams’s obligation to pursue arbitration. In any event,
any silence or ambiguity in the CBA works against the party with the burden of
proof, here Paragon, and we disagree that the provisions discussed above “clearly
4
In fact, Skrynnikov expressly noted that the employee in that case “did not
accept the Dispute Resolution Policy as part of a collective bargaining agreement,
and therefore, the stricter standard applicable in collective bargaining cases [to a
union’s waiver of its members’ rights] is not applicable in this case.” 943 F. Supp.
2d at 177.
7
and unmistakably” strip Ms. Williams of her right to decline to arbitrate and instead
to pursue her claims in court. 5 Wright, 525 U.S. at 80. For the reasons stated above,
we affirm.
So Ordered.
GLICKMAN, Associate Judge, dissenting: I respectfully dissent. In my view,
Paragon demonstrated that the grievance procedure specified in the CBA “clearly
and unmistakably” 6 required Ms. Williams to arbitrate her statutory claims for back
wages at Paragon’s option. It is undisputed that the CBA is binding on Ms.
Williams. In Section 1 of Article 12, the CBA defines a “grievance” to include both
“any disagreement between the parties concerning any matters relating to wages,”
and “any disagreement between the parties concerning . . . any application or
5
Our colleague asserts that the D.C. Circuit enforced a similar provision to
arbitrate a grievance in Washington Hosp. Ctr. v. Serv. Employees Int'l Union Local
722, AFL-CIO, 746 F.2d 1503, 1506 n.1, 1508 (D.C. Cir. 1984). As the
hospital/employer was the appellant in that case and did not “contend[] that it never
agreed to arbitrate” the grievances at issue, the court did not address whether the
CBA in that case clearly and unmistakably compelled the employees to engage in
arbitration. Id. at 1506.
6
14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 274 (2009) (holding that a
collective-bargaining agreement that “clearly and unmistakably” requires union
members to arbitrate ADEA claims is enforceable as a matter of federal law).
8
interpretation of . . . applicable laws.” This definition of “grievance” is unambiguous
and clearly encompasses Ms. Williams’s claims that Paragon violated the District’s
wage laws. Her claims relate to wages and are premised on the applicability and
interpretation of the wage laws.
The same section of the CBA states that “[a]ny such grievance shall be
processed as set forth below,” i.e., in the ensuing sections of Article 12 (emphasis
added). Section 5 of that Article states that “[a]ny grievance not processed in
accordance with the steps of the grievance procedure described above shall be
deemed waived” (emphasis added). Thus, the CBA expressly required Ms. Williams
to comply with the grievance procedure in pursuing her statutory wage claims
against Paragon.
Section 2 of Article 12 sets forth a four-step grievance procedure, but Section
3 provides that “[a]ny grievance involving . . . potential accumulating back pay
liability shall be commenced at Step 3.” Thus, only the third and fourth steps of the
grievance procedure applied to Ms. Williams’s claims. The third step is submission
of the grievance to Paragon’s Labor Relations representative. Section 3 specifies
9
that the grievance “must be presented to the Labor Relations representative” within
a specified period of time. 7
Step 4 of the grievance procedure is the critical step for present purposes. Step
4 reads, in its entirety, as follows: “If a satisfactory settlement is not effected in Step
3, either party may refer the matter to arbitration.” Art. 12, Sec. 2 (emphasis added).
The “parties” to a grievance are the aggrieved employee and the employer – in the
present case, Ms. Williams and Paragon.8
7
It is not clear whether Ms. Williams complied with Step 3, but that is a matter
for an arbitrator to consider, not the court. See e.g., Howsam v. Dean Witter
Reynolds, Inc., 537 U.S. 79, 84 (2002) (holding that procedural questions which
grow out of the dispute and bear on its final disposition are presumptively not for
the judge, but for an arbitrator, to decide) (quotation marks omitted); Univ. of the
D.C. Fac. Ass’n / Nat’l Educ. Ass’n v. Bd. of Trustees of Univ. of the D.C., 257 A.3d
1026, 1032 (D.C. 2021) (same); Washington Hosp. Ctr., 746 F.2d at 1508
(concluding that where a party failed to comply with procedural requirements in the
agreement, “[i]t is well-settled that the effect of such failures is for an arbitrator to
decide”); Dist. No. 1, Pac. Coast Dist., Marine Engineers’ Beneficial Ass’n AFL-
CIO v. Liberty Mar. Corp., 330 F. Supp. 3d 451, 458 (D.D.C. 2018) (“[C]ourts
presume that the parties intend arbitrators, not courts, to decide disputes about the
meaning and application of particular procedural preconditions for the use of
arbitration.” (quoting BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 34
(2014)). See also D.C. Code § 16-4406 (“An arbitrator shall decide whether a
condition precedent to arbitrability has been fulfilled and whether a contract
containing a valid agreement to arbitrate is enforceable.”).
8
Although Sections 3 and 4 of Article 12 provide that the union also “may”
invoke arbitration of an unsettled grievance that is within the coverage of Section 3,
10
The word “may” is permissive, so it can be said that the CBA did not clearly
and unmistakably require either Ms. Williams or Paragon to refer her unsettled
grievance to arbitration. But that is entirely beside the point, for the CBA clearly
and unmistakably did entitle Paragon to refer the grievance to arbitration. Paragon
has chosen to exercise that right. Nothing in the CBA can be construed to give Ms.
Williams a right to refuse to arbitrate her grievance after Paragon has invoked its
contractual right to demand arbitration of it.9 The CBA makes it clear and
unmistakable that Ms. Williams is obligated to cooperate with Paragon’s assertion
of that right; it does so by stating explicitly that grievances “shall” be processed as
set forth in the steps of the grievance procedure and that any grievance not processed
in accordance with those steps is “waived.” I do not see, and the majority opinion
does not explain, how the CBA can be read any other way. 10
the union has not done so in this case, nor has it otherwise participated in pursuing
Ms. Williams’s grievance.
9
Other courts, including the D.C. Circuit, have enforced provisions to
arbitrate in grievance procedures with language substantially similar to the one at
issue. See Washington Hosp. Ctr. v. Serv. Emps. Int’l Union Loc. 722, AFL-CIO,
746 F.2d 1503, 1505 n.1, 1508 (D.C. Cir. 1984) (holding that the employer was
required to arbitrate the grievances at issue despite its claim that the union had failed
to comply with grievance procedures specified in the collective bargaining
agreement).
10
I disagree with the majority’s assertion that “Paragon did not make this
argument in its brief to this court.” Ante at 6. In its brief on appeal, Paragon relies
on its right under Section 4 to refer its dispute with Ms. Williams to arbitration, and
11
In short, it is irrelevant that the CBA may not have required Ms. Williams or
Paragon to refer their dispute to arbitration. Since Paragon has asserted its
contractual right to call for arbitration, Ms. Williams is obliged to arbitrate. For that
reason, I would reverse the judgment of the Superior Court.
on the provisions in Sections 1 and 5 requiring her to comply with the steps set forth
in the grievance procedure.