1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, ) ) ) Plaintiff, ) ) Civil Case No. 18-1370 (RMC) v. ) ) LOCAL 689, AMALGAMATED TRANSIT UNION, ) ) ) Defendant. ) )
MEMORANDUM OPINION Washington Metropolitan Area Tran sit Authority (WMATA) seeks a temporary restraining order and preliminar y injunction against the arbitr ation of four grieva nces, initiated by Local 689, Amalgamated Transit U nion (Local 689 or the Union). The Union’s angst is caused by policies under which WMATA check s the criminal histories of app licants and, on occasion, employees. WMATA notes that this Court has already entered a p ermanent injunction with respect to the first two grievances, a nd that the third is covered by a n agreement between the parties to postpone any arbitration pending fin al resolution of the lawsui t, Little v. Washi ngton Metropolitan Area Transit Authority , Civil Case No. 14-1289 (D.D.C.) , which is now on appeal. WMA TA contends that the fourth griev ance is not subject to arbitratio n because no WMATA employee has been adversely affected by the policy under attack. The Court will grant the motion in part and deny it in part for the rea sons set forth below.2 I. FACTS
A. WMATA’s Background Check Policies In 2012, WMATA adopted WMATA P olicy 7.2.3 (2012 Policy), which set forth the criminal background screening polic y and procedure to be follow ed by WMATA and its contractors when screening candidates or e mployees. Compl. [Dkt. 1] ¶ 26. Effective July 10, 2017, WMATA adopted a new criminal backgr ound check policy (2017 Policy) an d the 2012 Policy was discontinued. Id . ¶¶ 26-27. Certain aspects of the 2017 Policy that affect cur rent employees were announced in 2017 but are not sched uled to go into effect until July 1, 2018.
B. The WMATA Compact WMATA was created by an interst ate Compact approved by Congress and codified at D.C. Code § 9-1107.01; Md. C ode, Transportation § 10-204; an d Va. Code § 33.2-3100. Compl. ¶ 6. Local 689 largely represent s operators, mechanics, mainte nance personnel, and clerical personnel employed by WMATA. Id . ¶ 7. Section 66(b) of the Comp act provides that WMATA “shall deal with and enter into w ritten contracts with employee s as defined in section 152 of title 29, United States Code, through accred ited representatives of such employees or representatives of any labor organization authorized to a ct for such employees concern ing wages, salaries, hours, working conditions, and pension or retire ment provisions.” D.C. Code § 9-1107.01. Under Section 152, the definitional section of the Na tional Labor Relations Act: the term “employee” shall include any employee, and shall not b e limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, a nd shall include any individual w hose work has ceased as a consequence of, or in connection with, any curr ent labor dispute or because of any unfai r labor practice, and who has no t obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any famil y or person at his home, or any in dividual employed by his parent or spouse, or any individual having the status of an independent contractor, or a ny individual employed as a supe rvisor, or any individual employed by an e mployer subject to the Railwa y3 Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined. 29 U.S.C. § 152(3). Section 66(c) of the Compact prov ides for arbitration of labor disputes between WMATA and its employees: In case of any labor dispute involv ing the Authority and such employees where collective bargaining does not re sult in agreement, the Authority shall submit such dispute to arbitration by a board composed of three persons, one appointed by the Authority, one appointed by the l abor organization representing the employees, and a third member to be agreed upon by the labor organization and the Authority . . . . The determination of the majority of the board of arbitration, thus established shall be final a nd binding on all matters in disput e. . . . The term “labor dispute” shall be broadly construed and shall inclu de any controversy concerning wages, salaries, hours, working conditio ns, or benefits . . . , and including any controversy concerning any d ifferences or questions that may arise be tween the partie s including but n ot limited to the making or maintaining of c ollective bargaining agreement s, the terms to be included in such agreements, and the interpretation or application of such collective bargaining agreements and any gr ievance that may arise and questions c oncerning representation. D.C. Code § 1107.01(66)(c) (emphasi s added). Arbitration is, t herefore, a statutory requirement and not the result of bargai ning by these pa rties.
C. The Collective Bargaining Agreement Pursuant to the Compact, WMATA and Local 689 entered into a Col lective Bargaining Agreement (CBA), the most recent of which was effect ive from July 1, 2012 to June 30,
2016. 1 Attach. 8, Local 689 Opp’n to Mot . for TRO and PI, Selected S ections of CBA (CBA) [Dkt.

1 The parties explained at oral a rgument that bargaining for a n ew collective bargaining agreement reached impasse and is in the proc ess of interest arbitration, whereby a panel of three arbitrators (one from each party and a neutral) will set the terms for the new contract. As a result, the terms of the 2012-2016 CBA continue in e ffect. The Union chose not to b argain about the 2017 Policy during the collective bargaini ng for a new contract. It hopes to bargain a side agreement.4 9-8] at 2. 2 In Section 102(a) of the CBA, WMATA recognizes Local 689 as t he exclusive bargaining representative for a broad range of employees. Id. at 3. In Section 102(b), both parties recognize that their “legal ri ghts, obligations and responsibil ities . . . with regard to collective bargaining and resort to binding i nterest arbitration are speci fied in the WMATA Compact.” Id. Also in Section 102(b), the Union “ reserves the right to bargai n and where necessary to seek interest arbitration concerni ng all issues relating to wages, hours and working conditions” but explicitly “acknowledges that all matters pert aining to the management of operations, including . . . the hiring and establishment of standards for selection and qualification of employees . . . , and the development and enforcement of r easonable rules and regulations regarding employment are the prerogatives of the Authority . . . .” Id. at 3-4. Section 104(c) also ac knowledges that the Union may initiate Question Grievances for “Questions arising under t he Agreement,” id . at 7; and Section 105 describes the process for ar bitrating “Questions and Grieva nces.” Id . at 9.
D. Local 689’s Grievances Local 689 seeks to arbitrate four grievances, falling into thre e categories. First, the two 2014 Grievances, which claim t hat the 2012 Policy had a dis parate impact on African Americans. This Court entered a permanent injunction against a rbitration of bot h 2014 Grievances in 2015, which was affirmed on appeal. See WMATA v. Local 689, Amalgamated Transit Union , 113 F. Supp. 3d 121 (D.D.C. 2015), aff’d 638 Fed. App’x. 3 (D.C. Cir . 2016). Second, Local 689 moves to reopen a 2016 Grievance a bout the same allegedly discr iminatory effect of the 2012 Policy. In 2016, this Court began to hear argument on the 2016 Grievance, but the parties entered into a written agreement to pos tpone consideration of that grie vance until the Little v. WMATA litigation concluded. See Ex. 5, Compl., 2016 Agreement [Dkt. 1-5] at 2-3. This Court’s approval

2 Citations within this document are to the ECF page number.5 of the class action set tlement agreement in Little v. WMATA is currently on appeal at the D.C. Circuit. See Little v. WMATA , Civil Case No. 14-1289, Dkt. 255, No tice of Appeal. Therefor e, the
Little v. WMATA litigation has not concluded an d the parties’ agreement to pos tpone the 2016 Grievance is still in effect. Finally, Local 689 brings a Questio n Grievance concerning the 2 017 Policy. It initially argued that WMATA was required to negotiate with the Union before adopting the 2017 Policy but then conceded that WMATA is bound by the Court’s ord er on the Settlement in Little v.
WMATA to keep that policy in effect for a year. After discussion of the Order implementing the
Little v. WMATA Settlement Agreement, the Union changed its argument to demand that WMATA engage in effects bargaining over the 2017 Policy, i.e. , bargaining as to how the 2017 Policy might affect current members of th e bargaining unit represented by th e Union. As modified, the 2017 Grievance is the only grievance the Union now seeks to arbitrat e. E. This Lawsuit On June 8, 2018, WMATA filed a Compl aint against Local 689, all eging that the claims asserted in the grievan ces were not arbitrable and argui ng that the arbitrati ons of three of the four Grievances were either precl uded by this Court’s prior per manent injunction or the 2016 agreement of the parties. See Compl. WMATA seeks to enjoin t he imminent arbitrations and an y future arbitrations in which emp loyee grievants seek to make di sparate impact claims based on WMATA’s criminal background scr eening policies and procedures; WMATA also seeks a declaratory judgment that the claims asserted by Local 689 in t he grievances are not arbitrable. Id. at 41-42. Shortly after filing its Complaint, WMATA filed a Mo tion for a Temporary Restraining Order and Preliminary Inj unction on June 13, 2018. WMATA’s Mot . for TRO and PI (Mot.) [Dkt. 5]; see also Mem. in Supp. of WMATA’s Mot. for TRO and PI (Mem.) [Dkt. 5-1 ]. Local 6896 opposed the motion on June 14, 2018, Local 689 Opp’n to Pl.’s E mergency Mot. for TRO and PI (Opp’n) [Dkt. 9], and the Court h eard argument and discussion o n June 18, 2018. As described above, the arguments and discussion at the June 18 hearing clarified that the Union seeks to arbitrate the question of whether WMATA violated the Agreement by refusing to bargain with the U nion over the effects of the 2017 Policy on bargaining unit employees and, if so, what the remedy would be.
II. LEGAL STANDARDS
A. Jurisdiction The Compact confers jurisdic tion upon this Court. Section 9-11 07.01 of the D.C. Code states that “[t]he United Sta tes District Courts shall hav e original jurisdict ion . . . of all actions brought by or against [WMATA ].” D.C. Code § 9-1107.01(81); see also Barksdale v. WMATA , 512 F.3d 712, 714 (D.C. Cir. 2008) (quoting D.C. Code).
B. Temporary Restraining Order To demonstrate entitlement to a temporary restraining order or preliminary injunction, a litigant must show : (1) a substantial likelihood of success on the merits; (2) that it would suffer irreparable injur y if the injunction were not gran ted; (3) that the balance of equities tips in its favor; and (4) that the public interest would be fu rthered by an injunction. Winter v.
NRDC , Inc. , 555 U.S. 7, 20 (2008). “[T]he mova nt has the burden to show that all four factors . . . weigh in favor of the injunction.” Davis v. Pension Benefit Guar. Corp. , 571 F.3d 1288, 1292 (D.C. Cir. 2009); see also Sherley v. Sebelius , 644 F.3d 388, 393 (D.C. Cir. 2011) (“[W]e read Winter at least to suggest if not to hold that a likelihood of success is an independent, free-standing requirement for a preliminary i njunction.”) (internal quotation s omitted). A preliminary injunction is “an extraordinary remedy t hat should be granted only when th e party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton , 391 F.3d 251, 258 (D.C. Cir. 2004).7 III. ANALYSIS
A. Likelihood of Success on the Merits The crux of the parties’ dispute he re is whether the Question G rievance that asks whether WMATA was required to ne gotiate with the Union over the effects of the 2017 Policy is arbitrable. The Compact direct s arbitration of labor disputes “involving the Authority and [its] employees.” D.C. Code § 1107.01(66)(c). WMATA and the Union h ave separately entered into a CBA, which lays out the relations hip between the parties. Sect ion 102(b) of the CBA states that the Union “reserves the right to ba rgain and where necessary to see k interest arbitra tion concerning all issues relating to wages, hours and working conditions .” CBA at 3-4. It also describes WMATA’s exclusive prerogative to determ ine “all matters pertaining to t he management of operations, including . . . the hiring and estab lishment of standards for s election and qualifica tion of employees . . . , and the development and enforcement of reasonable rules and regulations regarding employment . . . .” Id. Finally, Section 104(c) acknowle dges that the Union may initi ate Question Grievances for “[q]uestions arising under the Agreement.” Id . at 7. The Union argues that the only r emaining Grievance is a permiss ible Question Grievance which seeks to determine: (i) if WMATA was required to negotiate with the Union about the effects of the 2017 Policy because it is a “working c ondition” or (ii) if the Policy is a management prerogative to determin e “standards for selection an d qualification of employees.” The Union relies in part on a January 2017 decision of a Board of Arbitration in the Paper Suspension Policy Question Griev ance, which held that disciplin ary policies affect working conditions and, therefore, shoul d have been negotiated under th e Compact and CBA between WMATA and Local 689. See Ex. 9, Opp’n, Opinion and Award in Paper Suspension Policy Grievance [Dkt. 9-9] at 23-25. WMATA argues that it cannot be compelled to arbitrate because no employee has been harmed and beca use the 2017 Policy is clearly management prerogative, which8 is not negotiable. WMATA cites th is Court’s earl ier decision c oncerning these parties and issues, in which the Court interpreted the C ompact to require, in those ci rcumstances, that the Union name an employee grievant affected by the policy under attack. WMATA v. Local 689 , 113 F. Supp. 3d at
127. The current circumstances are m aterially different. The Union asks the Board of Arbitration to determine if WMA TA must engage in effects bargai ning; in that posture, the Union is raising a matter concerning the scope of its own right to barga in, for which a specific affected employee is not necessary. The question must be answered withi n the confines of the collectivelybargained contract language set ting forth management rights and union rights; it is no t a question to be determined by reference to the Compact. A Board of Arbitrat ion is the entity to interpret contract language. For these reasons, the Court finds that WMATA has not met its b urden of establishing a likelihood of success on the merits to justify a temporary restraining order or preliminary injunction in this matter.
B. Irreparable Harm WMATA argues that it will suffer “per se” irreparable harm if i t must arbitrate a dispute that it ha s not agreed to submit to arbitration. See Mount Ararat Ceme tery v. Cemetery Workers and Greens Attendants Union, Local 365 , 975 F. Supp. 445, 446-47 (E.D.N.Y. 1997) (finding that party “may be presum ed to suffer irreparable harm if forced to arbitrate a dispute it did not intend to be subject to arbit ration after its contract expi red”). However, as described above, the Union’s Question Grievance concer ns the scope of the parties’ r ights under the CBA, which is the bread and butter of labor arbitra tion to which WMATA has agreed

. WMATA also argues that if it is required to negotiate concernin g implementation of the 2017 Policy, it will upset the Settlement in Little v. WMATA , which requires WMATA not to9 alter the 2017 Policy for one year after the Settlement’s appro val, all of which is reflected in a formal Court Order. The Court a ddressed this issue during the motion hearing and noted that the Arbitrator could fashion a rem edy, if s/he decided in favor of the Union, that woul d not disrupt the Settlement’s first year. For these reasons, the Court finds that WMATA has not demonstra ted irreparable harm.
C. Balance of Equities In evaluating whether a preli minary injunction should issue, co urts “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the re quested relief.” Winter , 555 U.S. at 24 (citation and quotation marks omitted). Here, the balance of equities weighs in favor of Local 689 beca use it raised a Question Grievance subject to arbitration under the CBA, which can be resolved wit hout injury to WMATA’s adherence to the Settlement. Accordingly, this factor wei ghs in favor of denying the motion for a temporary restraining order and pre liminary injunction.
D. Public Interest WMATA argues that “[l]eaving the subject matter of the grievanc es to arbitration harms the public interest” becau se “[t]hese policies and practi ces are too important . . . to be left to decision in a forum where there are no defined rights, no prote ctions, no governing law, and an exceedingly limited right of review by the courts.” Mem. at 30 -31. Under the circumstances now pertaining, in which the Union acknowledges the binding nature of the Court’s Order on the Settlement and seeks only to negot iate the effects of the 2017 Policy on bargaining unit employees, these generalized objections do not persuade. On balance, the Court finds that the public interest favors labor arbitration a nd disfavors an injunction.10 IV. CONCLUSION As explained above, the Court will grant in part and deny in pa rt WMATA’s motion for a temporary restraining orde r and preliminary injunction [D kt. 5]. The Court will grant WMATA’s motion as it pertains to the 2014 and 2016 Grievances a nd deny WMATA’s motion as it pertains to the 2017 Question Gri evance on the effects of the 2 017 Policy. A memorializing Order accompanies this Memorandum Opinion.

Date: June 20, 2018 /s/ ROSEMARY M. COLLYER United States District Judge