Officers Can Win Termination Arbitration And Lose Certification

The Washington Metropolitan Area Transit Authority fired officers Mark Spencer and Sherman Benton. Spencer was terminated for excessive force and untruthfulness; Benton was fired for an off-duty domestic dispute and untruthfulness. The officers’ labor organization, the Fraternal Order of Police (FOP), challenged the terminations in arbitration.

A Board of Arbitration overturned both discharges, finding that although the Authority had legitimate grounds for disciplining the officers, that lengthy suspension, not termination, was the appropriate remedy. It ordered the Authority to reinstate the officers after their respective suspensions.

As a result of their initial terminations, however, the officers had lost their certifications to serve as police officers in Maryland, part of the area served by the Authority. The Authority placed the officers on paid administrative leave while they sought recertification. As part of the recertification process, Maryland law required the Authority to send the Maryland Police Standards Commission various materials, including “any derogatory information discovered during the investigation” that led to the firing of the officers.

The Authority’s Police Chief wrote letters to the Maryland Commission stating, in no uncertain terms, that the Authority did not favor recertification of the officers. The Commission denied the requests for recertification and the Authority discharged the officers for a second time.

The FOP filed a lawsuit in federal court, alleging that the Authority failed to comply with the arbitration awards. The federal Fourth Circuit Court of Appeals rejected the lawsuit and upheld the terminations.

The question for the Court was whether terminating the officers after the Maryland Commission denied recertification constituted non-compliance with the arbitration awards. The Court found that the Authority “relied on independent grounds that were never before the Arbitrators when they terminated Officers Spencer and Benton for a second time. The Maryland Commission’s denial of the officers’ request for recertification created a new and independent basis for deciding that Spencer and Benton could no longer serve as officers. Firing a police officer for a disciplinary infraction is distinct from firing an officer for failing to obtain recertification.

“We recognize that the Authority actively sought to influence the Maryland Commission by writing letters strongly discouraging recertification of the officers. But whatever the Authority’s intentions, nothing in the record permits a holding that the Authority’s actions violated the terms of the arbitration awards. The Authority was permitted – in fact, obligated – to forward to the Maryland Commission any derogatory information about the officers’ terminations. To be sure, the Chief was particularly zealous in carrying out that duty in this instance – maybe to a fault. But the decision whether to recertify the officers belonged solely to the Commission, which was no rubber stamp for the Authority’s wishes.

“Even if the Authority did provide derogatory information with the express hope or intent that the Maryland Commission would not recertify the officers, we cannot conclude that Authority exceeded the bounds of permissible behavior under the arbitration awards. The FOP has cited no authority that would permit us to reach that conclusion. At best, the FOP has provided reasons for questioning whether WMATA’s second termination of the officers was for just cause. The FOP might be right on that front. Although we hold that there were independent grounds for terminating the officers a second time, and thus that the second terminations did not violate the arbitration awards, we do not decide whether those grounds were adequate under the collective bargaining agreement. Nor could we; such a decision would be beyond our jurisdiction and is for an Arbitration Board.”

Fraternal Order of Police Metro Transit Police Labor Committee, Inc. v. Washington Metropolitan Area Transit Authority, 2015 WL 1019650 (4th Cir. 2015).