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
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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