1N THE SUPERIOR COURT
OF THE VIRGIN ISLANDS

FILED

Gecember 20, 2023 09:31 AM
5X-2009-Cv-00110
TAMARA CHARLES
CLERK OF THE COURT

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
APPELLATE DIVISION

GOVERNMENT OF THE VIRGIN ISLANDS, _)
DEPARTMENT OF EDUCATION,

Petitioner, CIVIL NO. SX-2009-CV-00110

‘ PETITION FOR WRIT OF REVIEW
ST. THOMAS/ST. JOHN EDUCATIONAL
ADMINISTRATORS’ ASSOCIATION and

PUBLIC EMPLOYEES RELATIONS BOARD, VI SUPER 79U

Meme Nema” Nonast” Seager” eat” eget” Snape See!” Mae

Respondents.

MEMORANDUM OPINION and ORDER

qt By Order entered June 18, 2010 (“Order Granting Writ”), the Court granted Petitioner
Government of the 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 (“EAA”) 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 EAA 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 (“EAA”), 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't of the V.1, Dept of Educ. v. St. Thomas/St. John Educ. Admin. Assoc. and PERB, SX-2009-CV-001 10
Memorandum Opinion and Order

Page 2 of 8 VI SUPER 79U

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

q2 On February 27, 2009, Petitioner filed its Petition, asking the Court to review and
vacate PERB’s February 18, 2009 Decision and Order in STT/STJ EAA v. DOE (PERB-ULPC-08-
75T).? 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 DOE and EAA, in force

at all times relevant herein. EAA considered Sebastien a member of its bargaining unit.

B Subsequently, on January 10, 2008, Governor John DeJongh terminated Sebastien
from the position of Acting Principal, effective January 11, 2008. On January 31, 2008, EAA 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 EAA that it was not entitled to the relief requested and that there
was no violation of the CBA,

44 On February 12, 2008, EAA wrote to the Office of Collective Bargaining, demanding
arbitration pursuant to Article V, Section 5, of the parties’ CBA. On February 20, 2008, DOE
informed EAA 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 System’,

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.LC. § 451 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't of the V.1., Dept of Educ. y. St. Thomas/St. John Educ. Admin. Assoc. and PERB, $X-2009-CV-001 10
Memorandum Opinion and Order

Page 3 of 8 VI SUPER 79U

15 The proceedings before PERB began with EAA’s May 6, 2008 filing of a charge of
unfair labor practices on behalf of Sebastien, against DOE, 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 (“PERLA”
or “the Act”), and Article V, Section 5, Steps 3, 4, and 6 of the parties’ CBA.

{6 Specifically, EAA 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 placed on the same pay plan as other
school principals; Sebastien was terminated illegally without due process; EAA 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 PERB should order the parties to arbitration.

77 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; EAA does not have a representation certificate to
represent temporary employees, or acting principals, thus, EAA does not have standing to represent

the position or Sebastien and the matter should be, therefore, dismissed.

48 The matter came before PERB at its January 23, 2009 meeting. After 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, 

, 508 (3d Cir .1988) (emphasis added) (citing 3 V.L.C. § 451a). The DOE is in the Executive
Branch of the government, 3 V.LC. § 91 (1995), and section 451a(c) provides that “fa]ll 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.” Jd. § 451a. Furthermore, section 451 defines “regular employee” as “an
emptoyee 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.LC. § 451. Section 451 uses the term “classified service,”
which is synonymous with the term “career service.” See 3 V.I.C. § 45la(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: (1) that she was appointed to a position in the classified service; 2) that her appointment
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 EAA bargaining unit and a party to the CBA.
Gov't of the V.I, Dept af Educ. v. St. Thomas/St. John Educ, Admin. Assoc. and PERB, SX-2009-CV-00t 10
Memorandum Opinion and Order

Page 4 of 8 VI SUPER 79U

was no reasonable basis to believe that DOE had violated 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.

99 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 EAA 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, effectively permitting EAA to forum shop, in contravention of the clear
language of the Act. Citing Local 1/825 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 resolution
thereunder. Concluding that the two issues raised regarding the CBA by the parties were ones of
contract interpretation whether EAA 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.

410 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. After 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 EAA from

arguing that Sebastien was entitled to due process.
Gov't of the V.1., Dept of Educ. v. St. Thomas/St. John Educ. Admin. Assoc. and PERB, SX-2009-CV-001 10
Memorandum Opinion and Order

Page 5 of 8 VI SUPER 79U

fil Ignoring the directive of the Order Granting Writ, Respondent EAA 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 a DOE employee was a member of the EAA bargaining unit with due
process rights under the CBA, and asked the Court to remand the case to PERB for further
proceedings.

fiz _—_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

§i3 | 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.LC. § 530a(a); V-I. R. Civ. P. 91(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 V.I-C. §
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 PERB's February 18, 2009 Decision and Order.

ql4 “When hearing an appeal from the PERB, the Superior Court functions as an appellate
court.” V.E. Narcotics Strike Force v. Gov't of the V.1. Pub, Emples. Rel. Bd., 60 V.1. 204, 218 (VI.
2013) (citing 3 V.LC. §§ 530a(a)-(c)). “[A]Il questions of fact determined by the PERB shall be
conclusive, if supported by substantial evidence in the record considered as a whole,” 3 V.ILC. §
530a(b). “The rules of procedure of the Superior Court regarding a writ of Review shall govern the
Gov't af the VL, Dept of Educ. v. St. Thomas/St. John Educ. Admin. Assoc. and PERB, SX-2009-CV-06110
Memorandum Opinion and Order

Page 6 of 8 VI SUPER 79U

appeal proceeding.” fd. § 530a(a). However, “[nJo objection not made before the PERB shall be
considered in a review by the Superior Court, untess the failure to make the objection is excused by
the court because of extraordinary circumstances.” /d. § 530a(b). “In reviewing a final order of the
PERB, the [Superior Cjourt may enforce the order, modify the order and enforce it, set the order
aside, or return the matter to the PERB with instructions for further proceeding{s} ....” Jd. § 530a(c).

DISCUSSION

{15 ‘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.

416 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 arbitration any
dispute which he has not agreed so to submit.” United Steelworkers of Am. v. Warrior & Gulf Nav.
Co., 

 (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 of Am., 

 (1986).
Therefore, “the question of arbitrability—whether a collective-bargaining agreement creates a duty
for the parties to arbitrate the particutar grievance-—is undeniably an issue for judicial determination.
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.” fd, at 649.

{17 ‘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. EAA, 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.

418 In John Wiley & Sons, inc. v. Livingston, the U. §. Supreme Court held that whether
or not @ 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't of the V.1, Dept of Educ. v. St. Thomas/St. John Educ. Admin, Assoc, and PERB, SX-2009-CV-00110
Memorandum Opinion and Order

Page 7 of 8 VI SUPER 79U

determination that the collective bargaining agreement does in fact create such a duty.” John Wiley
& Sons, Inc. v. Livingston, 

 (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.

919 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 judicial 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.

420 ~=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 EAA was arbitrable, were never considered during the administrative proceedings. These
are questions which go the heart of PERB’s jurisdictional determination, and, as such, the Legislature
has entrusted their resolution to PERB’s expertise in the first instance. See generally 24 V.1.C. § 379
(PERB review of alleged violations); 3 V.ILC. § 530(a) (limiting PERB jurisdiction to complaints
filed by regular employees); see also See 3 V.I. CODE R. § 530-I(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 Legislature} 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.

INS. v. Orlando Ventura, 

 (2002) (citations and quotation marks omitted, ellipsis in
original).

421 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't of the V.1., Dept of Educ. v. St. Thomas/St. John Educ. Admin, Assoc. and PERB, SX-2009-CV-00H0
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
EAA bargaining unit and a party to the CBA. That is, PERB never correctly determined whether the
dispute was arbitrable.

22‘ For the foregoing reasons, the Petitioner’s two remaining contentions, that PERB
erred in ruling that the underlying matter was arbitrable, and that PERB erred in not ruling that EAA
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 STT-ST/
EAA v DOE (PERB-ULPC-08-75T) 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 EAA bargaining unit; and the case is Remanded to PERB 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 / o , 2023. Ste i 7, A
DOUGLAS A. BRADY, JUDGE

ATTEST:

TAMARA CHARLES
Clerk of the Gourt

By: eee pulhe_

Coyft Clerk Supervig6r
ON THE SUPERIOR COURT
OF THE VIRGEN ISLANDS

FILED

December 20, 2023 04:47 PM
5X-2009-CV-00110

TAMARA CHARLES
cree ae ane COURT IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

APPELLATE DIVISION

GOVERNMENT OF THE VIRGIN ISLANDS, )

DE
re CIVIL NO. SX-2009-CV-00110

Petitioner,

v.

ST. THOMAS/ST. JOHN EDUCATIONAL
ADMINISTRATORS’ ASSOCIATION and

PUBLIC EMPLOYEES RELATIONS BOARD,

)

)

)

)

) PETITION FOR WRIT OF REVIEW
)

)

2023 VI SUPER 79U

)

Respondents.

ERRATA ORDER

THIS MATTER is before the Court sua sponte to correct an error in the Memorandum
Opinion and Order entered on December 18, 2023, in the instant case. It is hereby

ORDERED that the citation number for the Memorandum Opinion and Order is amended

to 2023 VI SUPER 79U.
Finally, it is

ORDERED that a copy of this Errata Order be served upon the Parties, FORTHWITH.

DATED: December 2” , 2023. 42, OA

DOUGLAS A. BRADY, JUDGE

ATTEST:
TAMARA CHARLES

Clerk of tine fo—~
By: Z jgT

Court Clerk Sufervisor