Sunday, March 22, 2015

Fired, reinstated then fired again - court rejects effort to enforce Arbitrator's award

Two police officers employed by the Washington Metropolitan Area Transit Authority were dismissed for separate incidents One was alleged to have stricken a passenger with a baton and to have been untruthful during an investigation of the incident. The second was alleged to have had a physical altercation with a companion and with having made making false statements about it. The FOP grieved and arbitrated both cases, and the Board of Arbitration reinstated both officers with a lengthy suspension rather than termination. Pursuant to the provisions of Maryland law, both individuals were required to be recertified by the Maryland Police Training Commission. Both officers were placed on paid administrative leave while their request for recertification was pending. The Chief of the Metro Transit PD wrote the Commission, expressing his position "in no uncertain terms" that he did not favor recertification. The Commission subsequently refused to recertify the two officers and their employment was again terminated, this time because they were unsuccessful in recertification.

The Union grieved the terminations but did not pursue the disputes to arbitration. Instead, it brought an action seeking to enforce the Board of Arbitration awards, claiming that the Department had failed to comply with them. The US District Court, in opinions here and here, granted the Union's request and confirmed the awards. The Court concluded that the Chief's letters "sought the very condition, lack of certification, that forms the basis for its argument that it cannot comply with the arbitral awards and reinstate the two officers." The Court also noted that the Chief's repeated references in the letters to the termination of the two officers for just cause "sharply conflict with the conclusions of the Board, which found that neither ... had been terminated for just cause."

The Fourth Circuit has now reversed. Relying in part on decisions of the Seventh and Third Circuits, the Court concluded:

Like the employers in Chrysler Motors and United Food, WMATA relied on independent grounds that were never before the arbitrators when they terminated [the] Officers ... for a second time. The Maryland Commission's denial of the Officers' request for recertification created a new and independent basis for deciding that [they] could no longer serve as MTPD officers. Firing a police officer for a disciplinary infraction is distinct from firing an officer for failing to obtain recertification. And as in Chrysler Motors and United Food, the basis for the second termination was never before the arbitrators. Nothing in the record suggests that the Board of Arbitration considered, or was even aware of the possibility, that the Maryland Commission would deny recertification. We therefore hold that WMATA's decision to terminate the Officers for a second time, following the Maryland Commission's denial of recertification, did not violate the earlier arbitration awards

The Court noted that it was not concluding that the second terminations were for just cause. That decision, it noted, was properly one for an arbitrator to make. It held only that the evidence failed to establish that WMATA's actions "exceeded the bounds of permissible behavior under the arbitration awards."

The opinion of the Fourth Circuit can be found here.

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