Public Employee rel. v. Fraternal Order

• Decision Date: 28 January 2010
• Docket Number: No. 07-CV-919.,07-CV-919.
• Citation: 987 A.2d 1205
• Parties: DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, Appellant, v. FRATERNAL ORDER OF POLICE/METROPOLITAN POLICE DEPARTMENT LABOR COMMITTEE, Appellee.
• Court: D.C. Court of Appeals

987 A.2d 1205

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

No. 07-CV-919.

District of Columbia Court of Appeals.

Argued December 18, 2008.

Decided January 28, 2010.

Bruce A. Fredrickson, Washington, with whom Cedar P. Carlton was on the brief, for appellant.

Marc L. Wilhite, Washington, with whom James W. Pressler was on the brief, for appellee.

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

BLACKBURNE-RIGSBY, Associate Judge:

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).¹ 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."²

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, however, MPD pointed out supposed defects in the grievance, including, "most importantly, [that] the [CBA] language you cite as having been violated by [MPD] is not currently in effect."

When MPD continued to ignore or reject the claim for liquidated damages attributable to the delayed payment, FOP sought arbitration under the terms of the CBA. It acknowledged the "technical deficiency" in the grievance's mis-citation to an inoperative (and inapplicable) provision, but argued that this did not justify MPD's refusal to compensate the officers for the delay in payment of overtime concededly earned. MPD, however, adhered to its view that it could "not be found to be in violation of a non-provision of the [CBA]," namely, Article 30, Section 2.³ In his award, the arbitrator agreed with MPD's position and he did not reach the merits of the dispute over delayed overtime compensation, ruling instead that FOP had not filed a proper grievance because it "had incorrectly cited terms that were not terms of the [CBA], nor had they been terms of the [CBA] at any time during its lifetime," and that this mis-citation to an inoperative provision "does not appear to be a mere technicality" but rather "has every appearance of a substantive reality." On FOP's request for review of this ruling by PERB, the Board found nothing in the arbitrator's decision "contrary to law and public policy," see D.C.Code § 1-605.02(6) (2001), and upheld it, saying:

FOP merely disagrees with the Arbitrator's conclusion of non-arbitrability. This is not a sufficient basis for concluding that the Arbitrator's Award is contrary to law and public policy.

II.

We agree with Judge Alprin that PERB's ruling (and the underlying decision of the arbitrator) may not stand. Although the arbitrator recognized that MPD's assertion that "there [was] no grievance to deal with" because of the miscitation might appear to be a "merely technical" argument, he nonetheless concluded—without further explanation—that the error was "substantive" and thus deprived the grievance of legal validity. That conclusion is not substantiated by the Agreement itself and, equally important, elevates form over substance contrary to the public policy favoring arbitration where the parties have agreed to it. PERB's failure likewise to let this matter proceed to arbitration despite MPD's full awareness of the nature of FOP's grievance requires us to set aside its decision.

PERB, it is true, has only "limited authority to overturn an arbitral award." Fraternal Order of Police v. District of Columbia Pub. Employee Relations Bd., 973 A.2d 174, 177 (D.C.2009). As relevant here, its authority to do so was "restricted ... to determining whether `the award on its face [was] contrary to law and public policy.'" District of Columbia Metro. Police Dep't v. District of Columbia Pub. Employee Relations Bd., 901 A.2d 784, 787 (D.C.2006) (citing D.C.Code § 1-605.02(6)) (italics omitted). And, we have emphasized that "a public policy alleged to be contravened `must be well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest.'" Id. at 789 (quoting W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983)). These limitations flow, in considerable part, from the fact that when parties have agreed to submit disputes to arbitration, they have "bargained for [the arbitrator's] construction of the contract [here the CBA]," not some other tribunal's. Id. (quoting United Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)).

MPD persuaded the arbitrator to find that no grievance was alleged because, under the CBA itself, "[o]nly an allegation that there has...