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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 16-CV-143

                          CANDI PETERSON, APPELLANT,

                                         v.

                    WASHINGTON TEACHERS UNION, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (CAB-9629-15)

                      (Hon. Jeanette J. Clark, Motions Judge)

(Argued December 5, 2017                              Decided September 6, 2018)

      Charles E. Wagner for appellant.

      Daniel M. Rosenthal, with whom Lee W. Jackson was on the brief, for
appellee.

      Before BLACKBURNE-RIGSBY, Chief Judge, and FISHER and THOMPSON,
Associate Judges.

      Opinion for the court by Chief Judge BLACKBURNE-RIGSBY.

      Dissenting opinion by Associate Judge THOMPSON, at page 13.

      BLACKBURNE-RIGSBY, Chief Judge: Appellant Candi Peterson appeals the

trial court’s dismissal of her breach of contract claim against her former employer,
                                         2

appellee the Washington Teachers Union (“WTU”) pursuant to Super. Ct. Civ. R.

12 (b)(6). Because we find that res judicata1 bars appellant’s claim, we affirm the

trial court’s dismissal.



                                         I.



      The Washington Teachers Union (“WTU”) is a labor organization that acts

as the exclusive bargaining agent for all personnel, except supervisors, of the

District of Columbia Public Schools (“DCPS”). In December 2010, appellant was

elected General Vice President of the WTU; she took a paid leave of absence from

her DCPS position as a social worker/classroom teacher to assume this position.



      In December 2010, WTU’s newly-elected President, Nathan Saunders,

drafted a compensation agreement for appellant, and an identical contract for




      1
         “Under the doctrine of res judicata or claim preclusion, a final judgment
on the merits embodies all of a party’s rights arising out of the transaction
involved, and precludes relitigation in a subsequent proceeding of all issues arising
out of the same cause of action between the same parties or their privies, whether
or not the issues were raised in the first trial.” Molovinsky v. Monterey Co-op.,
Inc., 689 A.2d 531, 533 (D.C. 1996) (internal citation and quotation marks
omitted).
                                        3

himself. Appellant’s contract provided for a salary of $151,000 2 and included

several important provisions, most notably:

            8. Any disputes concerning compensation shall be
            arbitrable using the American Arbitration Association.

            9. WTU will promptly pay all expenses associated with
            the arbitration including legal representation by both
            parties.

            10. Any provision included herein deemed illegal shall be
            unenforceable. All other provisions shall remain in full
            affect.

            11. Any dispute shall be considered resolved in its
            entirety by payment of the disputed amount.

            12. Non-payment of compensation will accrue as a WTU
            liability and is not waived.           Non-payment of
            compensation shall create a priority wage lien due in full
            at the end of [appellant’s] term.



      On July 26, 2011, Saunders suspended the WTU’s portion of appellant’s

compensation agreement ($51,000) after both parties engaged in a heated argument

in front of field representatives over who was in charge of a matter involving




      2
         Appellant’s salary was based on (1) her $100,000 salary that she earned as
a classroom teacher, and (2) an additional amount of $51,000 for her services as
General Vice President of the WTU.
                                          4

teachers who had been discharged. 3 After this disagreement, Saunders issued a

letter informing appellant that she had been removed from office and her pay

terminated until she met with him to rectify the situation. In response, appellant

contacted The Examiner, which published a story alleging that Saunders was

pushing appellant out and had verbally abused her. Saunders, believing these

comments to be derogatory, sent appellant a letter demanding that she meet with

him.       At the subsequent meeting, Saunders gave appellant a non-negotiable

settlement agreement which demanded that appellant admit inappropriate conduct;

that she submit a written letter of apology; that she agree to a financial penalty; and

that she refrain from contacting the press about the matter. The letter also stated

that appellant’s pay, which had been withheld, would not be returned unless

appellant agreed to these demands. Appellant refused to sign the agreement, and in

response, Saunders drafted a disciplinary resolution.



       On August 4, 2011, Saunders scheduled a meeting to be held that evening to

address the disciplinary resolution; appellant was not provided any notice of this

meeting or its resolution, but learned about it indirectly.       At the August 4th

meeting, the Executive Board adopted Saunders’s resolution, suspending

       3
          This disagreement followed an earlier dispute between Saunders and
appellant pertaining to appellant’s continuation of her blog.
                                        5

appellant’s supervisory authority over field representatives for a period of six

months and terminating the additional compensation appellant received from WTU

($51,000) above the DCPS amount ($100,000). On September 6, 2011, Saunders

informed DCPS that he had rescinded appellant’s leave of absence to serve as the

WTU General Vice President; appellant was instructed to return to the classroom

as a social worker/classroom teacher.



      On December 2, 2011, appellant filed a demand for arbitration, asking for

lost wages and to be reinstated in her position as WTU’s General Vice President

with all powers and compensation restored; she claimed that the WTU’s action

violated the WTU’s Constitution and By-Laws and the District of Columbia’s

Comprehensive Merit Personnel Act (“CMPA”), D.C. Code § 1-617.03 (a)(1)

(2012 Repl.).



      On March 5, 2012, Arbitrator Stanley Mazaroff (“Arbitrator”) issued a

decision addressing jurisdiction and the arbitrability of appellant’s claims. The

Arbitrator noted that the compensation agreement expressly stated that, “[a]ny

disputes concerning compensation shall be arbitrable using the American

Arbitration Association,” and that his jurisdiction was specifically limited to
                                         6

“disputes concerning compensation.” Accordingly, appellant’s claim for relief

seeking reinstatement was outside the permissible scope of arbitration.



      At a status hearing before the Arbitrator on March 14, 2012, appellant

redefined her claim, alleging that the WTU breached her compensation contract.

On August 24 and 30, 2012, the parties appeared for an evidentiary hearing on the

merits of appellant’s claim. On September 24, 2012, the Arbitrator issued his

decision, concluding that appellant and the WTU “entered into a legally

enforceable agreement pertaining to [appellant’s] compensation and her right ‘to

arbitrate any disputes concerning compensation.’”



      Ultimately, the Arbitrator found that Saunders and the WTU Executive

Board did not have the authority to suspend appellant’s compensation under her

contract.     Similarly,   removal     under    the   WTU’s     Constitution   and

By-Laws mandated a recall petition, which was never filed, and a vote by the

WTU’s membership. On the breach of contract claim, the Arbitrator awarded

appellant $71,065.82, the amount she had been denied in compensation and

benefits from the date of her removal to the date of the arbitration hearing. The

Arbitrator’s September 24, 2012, award noted that “[t]his award resolves all claims

and counterclaims submitted by [appellant] and the WTU to arbitration except for
                                         7

[appellant’s] pending claim for attorney’s fees and costs. All such claims . . . not

expressly granted herein are hereby denied.” The Arbitrator’s award also noted

that appellant’s claim that the WTU violated her rights under the CMPA involved

statutory issues, and thus, fell outside the scope of the arbitration provision.

Accordingly, the CMPA claim was dismissed without prejudice. On December 6,

2012, the Arbitrator also awarded appellant $51,739 in attorney fees, and

$1,937.25 in costs. Appellant subsequently sought to have her arbitration award

confirmed. 4 On October 10, 2013, Judge John M. Mott confirmed the arbitration

award.



      On December 14, 2015, appellant filed a complaint for breach of contract,

seeking compensation to cover the period between August 24, 2012 (the date of the

arbitration trial) and July 31, 2013 (the date appellant’s term expired). WTU

responded by filing a motion to dismiss, claiming that appellant was seeking

additional damages that she could have sought in arbitration but that she did not do

so, and that her complaint was barred by res judicata. On February 4, 2016, the

trial court issued an order granting WTU’s motion, finding that appellant’s claim


      4
         Pursuant to Super. Ct. Civ. R. 70-I (Confirming, Vacating, or Modifying
Arbitration Award Under the Arbitration Amendments Act of 2007) and D.C.
Code §§16-4405 (2012 Repl.) (Application for Judicial Relief) and -4422
(Confirmation of Award).
                                          8

was barred under res judicata.      On February 11, 2016, the trial court denied

appellant’s motion for reconsideration. On February 12, 2016, appellant filed the

instant appeal, arguing that res judicata does not bar her claim.



                                          II.



      We review de novo an order granting a motion to dismiss a complaint

pursuant to Super. Ct. Civ. R. 12 (b)(6). Solers, Inc. v. Doe, 977 A.2d 941, 947

(D.C. 2009).    We accept all factual allegations in the complaint as true, and

“construe all facts and inferences in favor of the plaintiff.” Id. (internal quotation

marks omitted).



      To determine whether res judicata bars a subsequent action, we examine

             (1) whether the claim was adjudicated finally in the first
             action; (2) whether the present claim is the same as the
             claim which was raised or which might have been raised
             in the prior proceeding; and (3) whether the party against
             whom the plea is asserted was a party or in privity with a
             party in the prior case.

Calomiris v. Calomiris, 3 A.3d 1186, 1190 (D.C. 2012).



      In this case, the compensation claim stemming from the employer’s breach

of contract was adjudicated finally in the first action—appellant confirmed the
                                          9

Arbitrator’s award in a Superior Court proceeding before Judge Mott, which has a

preclusive effect on future litigation stemming from the same claim and involving

the same parties. See Apparel Art Int’l, Inc. v. Amertex Enter. Ltd., 48 F.3d 576,

585 (1st Cir. 1995) (“An arbitration award generally has res judicata effect as to all

claims heard by the arbitrators.”). As “a final judgment on the merits embodies all

of a party’s rights arising out of the transaction involved,” appellant cannot

relitigate the breach of contract claim previously adjudicated by the Arbitrator.

Faulkner v. Gov’t Emps. Ins. Co., 618 A.2d 181, 183 (D.C. 1992) (internal

quotation marks omitted).



      Second, appellant could have raised her present claim, related to unpaid

compensation, before the Arbitrator.      See id. at 183 (stating that res judicata

“precludes relitigation . . . of all issues arising out of the same cause of action

between the same parties or their privies, whether or not the issues were raised in

the first trial”). In determining if two cases stem from the same cause of action, we

“have considered the nature of the two actions and the facts sought to be proved in

each one.” Amos v. Shelton, 497 A.2d 1082, 1085 (D.C. 1985). In appellant’s

opposition to the motion to dismiss, she stated that the arbitration focused on the

issues of “whether the Compensation Agreement amounted to a legally binding

contract . . . and . . . [whether] the WTU breach[ed] this agreement.”            The
                                         10

complaint before the trial court also sought damages based on this same breach of

contract, and thus, “the essence of the second action was exactly the same as that

of the first.” Id. (internal brackets and quotation marks omitted).



      Appellant contends that the Arbitrator lacked the jurisdiction to award her

front pay, and that he had no equitable powers. This contention is incorrect.

Arbitration “is a matter of contract” and is “governed by normal principles of

contract law.” 2200 M St. LLC v. Mackell, 940 A.2d 143, 150 (D.C. 2007)

(internal quotation marks omitted). The parties’ agreement constituted an explicit

consent to arbitrate “any and all disputes relating to or concerning compensation

. . . .”   As the Arbitrator had jurisdiction over any and all issues related to

compensation, a request for front pay would clearly fall within his purview, despite

appellant’s assertion that the parties “did not agree to arbitrate any issue involving

prospective wages.” Moreover, nothing prevented appellant from seeking both

past and future damages in the arbitration proceeding, despite her contention that a

claim for prospective damages would have been unripe at the time of arbitration. 5


      5
         In Keller v. Marvins Credit, Inc., an employee was terminated three years
into his five-year contract. 147 A.2d 872, 873 (D.C. 1959). The employee then
filed a breach of contract complaint seeking compensation owed to him as of the
date he filed suit. Id. He subsequently filed a second breach of contract suit
seeking compensation owed to him for the time between the first and second
complaint. Id. In the Keller holding, we stated that “[t]he general rule is that an
                                                                   (continued . . .)
                                         11

      Similarly, appellant contends that the Arbitrator did not have any equitable

powers because he found that he did not have the jurisdiction to order the WTU to

reinstate appellant as Vice President. The Arbitrator lacked this jurisdiction to

order reinstatement, however, because the request for reinstatement was not an

issue involving compensation. Moreover, there is nothing in the D.C. Uniform

Arbitration Act that would have barred the Arbitrator from issuing an equitable

remedy, so long as that remedy concerned compensation, and appellant had

requested it.6




(. . . continued)
employee who is discharged in violation of his contract of employment may sue
only once and at that time recover all present and prospective damages.” Id.
(internal quotation marks omitted). See also District of Columbia v. Jones, 442
A.2d 512, 524 (D.C. 1982) (“The measure of damages in an employee’s action
against his employer for breach of the employment contract is generally the
compensation that would have been due to the employee during the unexpired
period of employment with appropriate reduction to present worth.”) (internal
quotation marks omitted).
      6
          D.C. Code § 16-4421 (c) (2012 Repl.) states that

              (c) . . . an arbitrator may order such remedies as the
              arbitrator considers just and appropriate under the
              circumstances of the arbitration proceeding. The fact that
              such a remedy could not or would not be granted by the
              court is not a ground for refusing to confirm an award
              under § 16-4422 or for vacating an award under
              § 16-4423.
                                          12

      Appellant also contends that ⁋ 12 in her contract permitted the splitting of

claims for any compensation that had not been previously sought from the

Arbitrator, that such unpaid compensation accrued as a WTU liability and was not

waived, and that non-payment would create a priority wage lien due in full at the

end of her term. See Gilles v. Ware, 615 A.2d 533, 543 (D.C. 1992) (citation and

internal quotation marks omitted) (“Under the Restatement, res judicata does not

apply to extinguish a claim if [t]he parties have agreed in terms or in effect that the

plaintiff may split his [or her] claim, or the defendant has acquiesced therein.”).

The language in appellant’s contract does not constitute acquiescence to

claim-splitting and the filing of multiple actions; rather, it contains language about

the permissible timing of an action for unpaid compensation, allowing her to defer

an action until the end of her term. Under the contract language, appellant could

have waited until the end of her term to seek all compensation owed for WTU’s

breach of contract, which would have precluded WTU from asserting res judicata.

Appellant, however, opted to pursue a claim in the middle of her term; in seeking a

mid-term award, she obtained a final judgment addressing the rights and liabilities

of both parties arising from WTU’s contract breach.

      Finally, there is no dispute that the parties to the arbitration are the same

parties to the present action, and thus, this issue merits no discussion.
                                          13

                                         III.



      For the foregoing reasons, the judgment of the Superior Court is



                                                     Affirmed.




      THOMPSON, Associate Judge, dissenting: As the majority opinion recounts,

after the Washington Teachers Union President (“WTU”) and Executive Board

decided to terminate the additional compensation to which appellant Peterson was

entitled by virtue of her election as WTU Vice-President ($50,000 per year during

a three-year term, supplementing the salary she earned as a classroom teacher),

appellant filed a demand for arbitration, seeking to recover her withheld

compensation. The arbitrator awarded her $71,065.82, the amount she had been

denied in additional compensation through the date of the evidentiary arbitration

hearing. Peterson thereafter initiated the instant litigation to recover the additional

compensation she claimed was due to her from that point until the end-date of her

three-year term. The trial court dismissed her claim on the basis of the res judicata

effect of the confirmed arbitration award.         Agreeing with the trial court’s

application of the doctrine of res judicata, my colleagues in the majority reason
                                         14

that “the compensation claim stemming from [WTU’s] breach of contract was

adjudicated finally in the [action confirming the arbitration], . . . which has a

preclusive effect on future litigation stemming from the same claim and involving

the same parties.” Ante, at 9. I disagree and therefore respectfully dissent.



      To help explain why I am unable to agree with my colleagues’ resolution of

this appeal, I think it will be helpful to quote at some length from the arbitrator’s

decision:

             This brings us to the central issue in this case: whether
             the revocation of Peterson’s compensation by Saunders
             and the Executive Board violated the Compensation
             Agreement. As noted, the Compensation Agreement
             states that Peterson’s compensation should continue
             during Peterson’s three[-]year term as General Vice
             President.     The key words in the Compensation
             Agreement are that Peterson’s salary and the other terms
             of her compensation “shall remain in full affect.”
             Significantly, the Compensation Agreement vests no
             authority in the WTU’s President or its Executive Board
             to cease paying this compensation. The Compensation
             Agreement likewise provides no grounds for revoking,
             terminating or refusing to pay Peterson’s salary. It
             appears from the terms in the Compensation Agreement
             that the WTU’s obligation to pay Peterson her
             compensation for service as the General Vice President
             was unconditional.

             The Compensation Agreement, however, must be read
             and understood in the context of the WTU’s Constitution
             and By-Laws [which the Compensation Agreement
             incorporates by reference].
                            15

...

The only means set forth in the Constitution and By-
Laws for removing Peterson from her elected position as
General Vice President and ending her compensation was
through Recall. Peterson was placed in office by the vote
of the WTU’s membership, and any decision to terminate
her was in the words of the Constitution “the right” of the
members. The WTU did not follow this path. It is
undisputed that no Recall petition was ever filed against
Peterson by the Executive Board, or by [WTU President]
Saunders or by any other union member.

When on July 26, 2011, Saunders summarily removed
Peterson from the WTU payroll “for failure to perform
the duties association with [her] position,” he acted as
though he had the czar-like power to do this. He did not.
The Constitution and By-Laws vested no authority in the
President to remove the elected General Vice President
from the WTU payroll and to stop her from performing
the duties that were assigned to her by the Union’s
Constitution and By-[L]aws. Although the President, as
indicated in Article VIII of the By-Laws, had the
authority to supervise the WTU’s “employees,” that
authority did not authorize the President to cancel the pay
and truncate the authority and responsibility of another
elected official. Significantly, the action taken by
Saunders against Peterson was not based on Peterson’s
status as an employee but as the elected General Vice
President. It was Peterson’s authority and salary as the
second highest ranking, elected union officer that was
under direct attack, not her status as an employee.

...

Assuming arguendo that the Executive Board had the
authority to cease paying Peterson’s salary and to
terminate her supervisory authority, the manner in which
the Executive Board exercised such authority abridged
both the letter and the spirit of the WTU Constitution and
                                           16

             By-Laws. . . . Saunders and the Executive Board rushed
             to judgment without hearing a word from Peterson,
             acting as if its primary goal was to cut her pay, cut her
             authority and as a practical matter railroad her out of
             office. . . . Peterson was entitled to a hearing and the
             other elements of due process contemplated by the
             WTU’s Constitution and By-Laws.

             ...

             Saunders was [earlier] on record as subscribing to the
             belief that, “the only remedy available to deal with
             situations when the General Vice President is not
             performing his duties is to go through the recall process
             set forth in the WTU Constitution and By-Laws.”

             ...

             In summary, neither the letter nor the spirit of the WTU’s
             Constitution and By-Laws permitted Saunders or the
             WTU’s Executive Board to summarily revoke, without a
             hearing or due process, the compensation that Peterson
             was entitled to receive under the terms of the
             Compensation Agreement. Peterson was not a rank and
             file employee who served at the will or pleasure of union
             officials. She was an elected official who, under the
             terms of the Constitution, had a fixed, three-year term of
             office and who was entitled to compensation for her
             service throughout her term.

The arbitrator also wrote this footnote:

             The undersigned arbitrator offers no opinion regarding
             the merits of the allegations made against Peterson by
             Saunders in his letter dated July 26, 2011[,] or regarding
             the merits of the charges made against Peterson by the
             Executive Board in its Resolution dated August 4, 2011.
             Nor does the arbitrator express any opinion regarding
             whether Peterson was satisfactorily performing her duties
             as General Vice President or whether she could or should
             have been recalled under the terms of the Constitution
                                         17

             and By-Laws. This Opinion and Award is addressed to
             and resolves the basic issue in this arbitration of whether
             the WTU’s President and its Executive Board, acting on
             behalf of the WTU, breached the contractual terms of the
             Compensation Agreement by terminating Peterson’s
             compensation.



      As can be discerned from the arbitrator’s decision, the agreement between

appellant and WTU was neither at-will employment at the pleasure of the WTU

Executive Board and President, nor the run-of-the-mill employment contract which

the employer was free to rescind for cause based solely on her or his own business

judgment. As the arbitrator recognized, appellant’s entitlement to continue to

serve as WTU Vice-President and to receive the additional compensation in issue

were the fruits of a vote of the WTU membership and could be terminated only

through a membership recall election. So, when the arbitrator concluded that

appellant was entitled to $71,065.82 in additional compensation through the close-

of-evidence date at the arbitration hearing, he had as a basis for the award the fact

that the membership had not petitioned or voted to recall appellant as Vice-

President7 (and, as the arbitrator observed in his “[a]ssuming arguendo” paragraph,

the additional fact that appellant had not been afforded the due process that the

      7
       The arbitrator noted that “[e]lected officers, like Peterson, . . . can only be
removed or in other words recalled by a petition signed by thirty percent of the
membership” and that it “is undisputed that no Recall petition was ever filed.”
                                         18

WTU Constitution and By-Laws required before she could be constructively

discharged form her position).



      Not knowing whether a recall election would be held (or a due-process

hearing afforded) before the end of appellant’s term, the arbitrator had no basis for

determining that appellant was entitled to additional compensation through the end

of the three-year term to which she was elected.8 The situation was quite different

from cases in which the fact and amount of front-pay damages can reasonably be

ascertained because it is clear (or can be fairly inferred) that the employer, who is

the sole decision-maker, has no intention of allowing the employee to return.9

Indeed, in light of the arbitrator’s finding that the WTU President and Executive

Board had no authority to suspend appellant’s compensation, a reasonable observer

would likely have expected that appellant would be reinstated and paid the

additional compensation attendant to her office as until such time as a recall

election was held.

      8
         As Peterson puts it in her brief, the arbitrator “had no way of knowing
whether the WTU would later allow Peterson to resume her duties with pay, after
he had rendered his decision.” And as the arbitrator himself put it, he could not
say whether Peterson “could or should have been recalled under the terms of the
[WTU] Constitution and By-Laws.”
      9
         Keller v. Marvins Credit, Inc., 147 A.2d 872 (D.C. 1959), discussed in the
majority opinion, appears to be such a case. Keller was told by the employer that
“his services were no longer desired.” Id. at 873.
                                        19



      Given all the foregoing, I believe that the doctrine of res judicata does not

apply so as to bar appellant’s claim. “Under the doctrine of res judicata . . . a

judgment estops not only as to every ground of recovery or defense actually

presented in the action, but also as to every ground which might have been

presented[.]” Henderson v. Snider Bros., 439 A.2d 481, 485 (D.C. 1981) (internal

quotation marks omitted) (en banc). The doctrine applies “[w]hen the parties are

the same, and the essence of the claim and the evidence necessary to establish it

are the same.” Id. at 484. “In determining whether res judicata applies, we

consider (1) whether the claim was adjudicated finally in the first action; (2)

whether the present claim is the same as the claim which was raised or which

might have been raised in the prior proceeding; and (3) whether the party against

whom the plea is asserted was a party or in privity with a party in the prior case.”

Calomiris v. Calomiris, 3 A.3d 1186, 1190 (D.C. 2010) (internal quotation marks

and alterations omitted).



      Here, “the evidence necessary to establish [appellant’s claim]” is not the

same as it was with respect to the claim that was before the arbitrator. Henderson,

439 A.2d at 484.     In the arbitration proceeding, for appellant to prevail, the

evidence had to show (as it did) that no recall election had happened as of the date
                                         20

the record closed, i.e., August 30, 2012. In the instant case, for appellant to

prevail, the evidence must establish that she also was not recalled at any time after

that date and before the end of her term (apparently, November 30, 2013). Further,

because appellant’s entitlement to continue as WTU Vice-President and to earn

additional compensation through November 30, 2013, depended on what the WTU

membership did after the arbitration hearing, appellant’s claim could not have been

and “was [not] adjudicated finally in the first action.” Calomiris, 3 A.3d at 1190.

A claim that appellant was owed additional compensation for the period from

August 30, 2012, through November 30, 2013, because no recall election occurred

before the latter date was not a “ground which might have been presented” during

the arbitration proceeding. Henderson, 439 A.2d at 485 (internal quotation marks

omitted).   Rather, this is a case in which “additional facts emerged after the

conclusion of the [arbitration] which gave rise to additional claims.”          Utah

Republican Party v. Cox, 177 F. Supp. 3d 1343, 1361 (D. Utah 2016).



      For all the foregoing reasons, I would hold that appellant’s claim is not

barred by res judicata. 10



      10
           I also think the majority opinion gives short shrift to the contract
provision that appellant argues allowed her to split her claims. See Gilles v. Ware,
615 A.2d 533, 550-51 (D.C. 1992) (recognizing that an acquiescence to claim-
                                                                     (continued . . .)
                                          21




(. . . continued)
splitting can overcome a res judicata defense). The relevant provision is ¶12 of
appellant’s Compensation Agreement with the WTU, which provided:

             Non-payment of compensation will accrue as a WTU
             liability and is not waived.           Non-payment of
             compensation shall create a priority wage lien due in full
             at the end of [appellant’s] term.

My colleagues read this language as merely allowing appellant “to defer an action
until the end of her term,” ante, at 12, i.e., to wait until the end of her elected term
before initiating any action to recover the compensation owed. But the second
sentence refers to creation of a lien at the end of appellant’s term. Generally
speaking, “[a] lien affords a supplemental and additional remedy.” Landis
Machine Co. v. Omaha Merchs. Transfer Co., 9 N.W.2d 198, 203 (Neb. 1943)
(observing also that “a lien is regarded as remedial and must be so construed as to
give full force and effect to the remedy”); see also, e.g., 53 Am. Jur. 2d
Mechanics’ Liens § 322 (“[T]he remedy upon a construction lien and the remedy
upon the debt are distinct and concurrent and may be pursued at the same time or
in succession.”). I am inclined to read ¶12 as affording appellant a supplemental
opportunity, after the end of her elected term, to recover the compensation due to
her, notwithstanding the arbitration award she obtained mid-term.
