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District of Columbia Public Employee Relations Board v. Fraternal Order of Police/ Metropolitan Police Department Labor Committee

January 28, 2010

DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD APPELLANT,
v.
FRATERNAL ORDER OF POLICE/ METROPOLITAN POLICE DEPARTMENT LABOR COMMITTEE APPELLEE.



Appeal from the Superior Court of the District of Columbia (CAP7-04) (Hon. Geoffrey M. Alprin, Trial Judge).

The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge

Argued December 18, 2008

Before RUIZ, FISHER, and BLACKBURNE-RIGSBY, Associate Judges.

The District of Columbia Public Employee

Relations Board (PERB) appeals from an order of the Superior Court vacating an arbitrator's ruling (which PERB had affirmed) and remanding for arbitration to proceed on the merits of a grievance filed by members of the Fraternal Order of Police (FOP) against the Metropolitan Police Department (MPD).*fn1 The arbitrator had ruled (and PERB agreed) that FOP failed to file an arbitrable grievance because the provision of the Collective Bargaining Agreement (CBA or Agreement) that it alleged had been violated was concededly not in effect during the relevant time. Judge Alprin concluded, by contrast, that FOP's mistake in citing an inapplicable provision in the grievance - when MPD had no misapprehension from the grievance about what the claimed violation actually concerned (and the claimed violation was covered by another CBA provision that was in effect) - was no grounds to refuse arbitration of the dispute, and that such refusal would contravene the strong public policy favoring agreed-to arbitration. We affirm the Superior Court's judgment.

I.

The genesis of this matter is MPD's delay in paying overtime to police officers who worked a detail providing security and escort services during the clean-up and detoxification of a World War I era hazardous waste site in the Spring Valley section of the city. In May 2002, the affected police officers filed a grievance with MPD alleging that the CBA had been violated as follows:

The Employer established an on-going overtime detail and solicited Officer Blue [The named grievant] and other members of the Bargaining Unit to volunteer to work overtime for cash payments. Since a period beginning on or about March 24, 2002, overtime hours, which were worked by the grievants for this detail, have not been paid.

The Fair Labor Standards Act [FLSA] requires timely payments of compensation earned by covered employees. Officer Blue and the other grievants. . . are covered by the [FLSA, which] is enforceable through the [CBA].

As remedies, the police officers sought the overtime payments due, "plus liquidated damages for all hours worked which [were] not compensated within two pay periods of the performance of work [for] which overtime payments are due."*fn2

At the same time, though, under a heading entitled "Provision(s) of the Agreement violated, misapplied or misinterpreted," the grievance cited:

Article 30, Section 2 [of the CBA], which provides, To the extent that the Employer's present policies, procedures and practices equal or exceed the requirements of the [FLSA], those policies, procedures and practices shall remain in effect, except as otherwise provided herein.

FOP later conceded that this provision did not govern its grievance - indeed, that the provision was not in effect during the time of the events in dispute - and that the provision that should have been cited was Article 30, Section 1, namely that (as relevant here) "[c]ompensatory time and overtime shall be governed strictly by the [FLSA] for the term of this Agreement."

In response to the written grievance, the Executive Assistant Chief of Police wrote to the Chairman of FOP on May 29, 2002, "agree[ing] that members [of MPD] who volunteer to work overtime for cash payments shall be compensated in a timely manner and in accordance with the [FLSA]," and pointing out that the non-payment in this case was the result of an administrative mishap but that steps were being taken "to compensate [the affected officers] properly." And on June 7, 2002, FOP wrote to Chief Ramsey demanding arbitration under the CBA, again explaining that its "Group Grievance demanded timely payment for overtime hours worked, plus liquidated damages, in accordance with the Fair Labor Standards Act."In succeeding correspondence, ...


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