The Metropolitan Police Department of Washington, D.C. and the Fraternal Order of Police negotiated a contract spanning October 1, 2020, through September 30, 2023. That contract included (1) new disciplinary policies; (2) annual wage increases; (3) base retention differentials, which functioned much like a longevity bonus; and (4) changes to the calculation of overtime payments, removing any mention of the Fair Labor Standards Act from the CBA. The CBA was ratified by Union membership on July 27, 2022, and sent to the D.C. Council on October 31, 2022, for approval. It was set to be approved automatically on November 27, 2022, if the Council took no action by then.
The CBA went into effect at midnight on November 27, 2022, at which point the Department immediately implemented the new disciplinary policies. However, the Department failed to implement the wage increases. The FOP requested updates from the Department regarding the implementation of the pay enhancements and retroactivity but received nothing in return. It filed a class action grievance on January 9, 2023, alleging that the Department had violated several provisions of the CBA relating to these wage enhancements. The grievance proceeded to arbitration, where it was sustained by the Arbitrator who found the Department acted in bad faith by not taking steps to prepare for the implementation of the new pay enhancements while waiting for the Council to approve the CBA. The Arbitrator declined to award the FOP liquidated damages, finding that the CBA did not specifically permit such damages, and the parties specifically removed any mention of the FLSA from the CBA, under which liquidated damages might be permissible.
Both parties petitioned the Washington D.C. Public Employee Relations Board (PERB) to modify the arbitration award, arguing that it ran contrary to law and public policy. First, the Department argued that the award would violate the federal and D.C. Anti-Deficiency Acts, because the Arbitrator’s finding that it acted in bad faith conflicted with those laws’ requirement that it wait for Council approval before taking any action to implement the CBA. PERB rejected this argument, noting that the Arbitrator did not find that the Department acted in bad faith for failing to implement the CBA, but rather for failing to prepare for the implementation of the CBA: “Even if the Department has correctly asserted that it could take no action to implement these increases prior to the Council’s approval of the CBA, that does not account for the delays and incongruent explanations of the delays after November 28, 2022.” PERB also noted that the Department was able to immediately implement the new disciplinary policies upon the ratification of the CBA, further undermining its argument.
PERB also rejected the FOP’s argument that the Arbitrator should have awarded liquidated damages, reasoning that “the FOP correctly asserts that arbitrators have broad discretion and authority to fashion appropriate remedies. However, that discretion applies equally to an arbitrator’s determination of the limit of their authority in a particular case or to an arbitrator’s decision to decline to award a requested remedy.” PERB noted that it would not reverse an arbitrator’s decision, even if incorrect, so long as the arbitrator “has arguably construed or applied the contract in resolving legal and factual disputes.”
Here, the Arbitrator noted that the CBA did not specifically authorize or require him to award liquidated damages, and the parties’ removal of the FLSA language suggested that liquidated damages under that statute were unavailable. This, PERB reasoned, was enough to justify upholding the Arbitrator’s decision in this regard.
District of Columbia, Metropolitan Police Department, PERB Case No. 23-A-05 23-A-061 (D.C. Pub. Emp. Rel. Bd., 2023).