Fraternal Order of Police Metro Transit Police Labor Committee, Inc. v. Washington Metropolitan Area Transit Authority

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1332

FRATERNAL ORDER OF POLICE METRO TRANSIT POLICE LABOR

COMMITTEE, INC.,

Plaintiff - Appellee,

v.

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Leonie M. Brinkema,

District Judge. (1:12-cv-01387-LMB-JFA)

Argued: January 29, 2015 Decided: March 10, 2015

Before TRAXLER, Chief Judge, and NIEMEYER and MOTZ, Circuit

Judges.

Reversed by published opinion. Judge Motz wrote the opinion, in

which Chief Judge Traxler and Judge Niemeyer joined.

ARGUED: Gerard J. Stief, WASHINGTON METROPOLITAN AREA TRANSIT

AUTHORITY, Washington, D.C., for Appellant. Jonathan G.

Axelrod, BEINS, AXELROD, P.C., Washington, D.C., for Appellee.

ON BRIEF: Robert G. Ames, Maggie T. Grace, VENABLE LLP,

Washington, D.C.; Kathryn Pett, General Counsel, Janice L. Cole,

Chief Counsel, Metro Transit Police, WASHINGTON METROPOLITAN

AREA TRANSIT AUTHORITY, Washington, D.C., for Appellant. Justin

P. Keating, BEINS, AXELROD, P.C., Washington, D.C., for

Appellee.

2

DIANA GRIBBON MOTZ, Circuit Judge:

This case involves a labor dispute between the Washington

Metropolitan Area Transit Authority (WMATA) and the Fraternal

Order of Police (FOP). The dispute arose after WMATA fired two

of its police officers, reinstated them pursuant to arbitration

awards, and then fired the officers a second time after Maryland

declined to recertify them as police officers in that state.

The district court granted the FOP’s motion for summary judgment

and ordered WMATA to reinstate the two officers. For the

reasons that follow, we reverse.

I.

WMATA, an interstate agency, operates the Metrorail and

Metrobus systems in Washington, D.C., Maryland, and Virginia

under a compact agreed to by those jurisdictions. The compact

authorizes WMATA to employ a police force, the Metro Transit

Police Department (MTPD), whose officers enforce the laws of the

compact jurisdictions on the Metro system. The FOP is the

bargaining agent for MTPD officers and therefore a party to the

officers’ collective bargaining agreement with WMATA. The

agreement permits WMATA to discipline officers only for “just

cause” and outlines a four-step grievance procedure for

resolving labor disputes, culminating in arbitration.

3

In 2011, WMATA fired two MTPD officers, Mark Spencer and

Sherman Benton (collectively “the Officers”). WMATA discharged

Officer Spencer for allegedly striking a passenger with his

baton and for being untruthful during the subsequent

investigation. WMATA fired Officer Benton in the wake of an

alleged physical altercation with a female companion in Atlantic

City; WMATA determined that he had made false statements during

the investigation of the incident and had engaged in conduct

that discredited himself and the MTPD.

In response to these terminations, the FOP filed grievances

on behalf of the Officers. Both cases reached arbitration, and,

in 2012, the Board of Arbitration overturned both discharges.

Although the Board found that WMATA had legitimate grounds for

disciplining the Officers, the Board concluded that lengthy

suspension, not termination, was the appropriate remedy. It

ordered WMATA 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. Under Maryland law, a police officer must

be certified in order to exercise law enforcement powers within

the state. Md. Code Regs. § 12.04.01.01(B)(4) (2015). If an

officer loses his certification, he must apply for

recertification from the Maryland Police Training Commission

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(“Maryland Commission”). Id. § 12.04.01.07(A). Moreover, the

WMATA Compact mandates that MTPD officers “shall have the same

powers . . . and shall be subject to the same limitations . . .

as a member of the duly constituted police force” of the

political subdivisions in which WMATA operates. WMATA Compact

§ 76(b) (2009). The Officers therefore needed to apply for

recertification from the Maryland Commission in order to resume

police activities for WMATA in Maryland.

Beginning in April (Officer Spencer) and May (Officer

Benton) of 2012, WMATA placed the Officers on paid

administrative leave while they sought recertification. As part

of the recertification process, Maryland law required the MTPD

to send the Maryland Commission various materials, including

“any derogatory information discovered during the investigation”

that led to the firing of the Officers. Md. Code Regs.

§ 12.04.01.08(D)(2) (2015). Michael Taborn, who was then chief

of the MTPD, wrote letters to the Maryland Commission stating,

in no uncertain terms, that the MTPD did not favor

recertification of the Officers. The record suggests this is

the first time that the MTPD has lobbied against recertification

in the wake of an arbitration decision ordering an officer’s

reinstatement. The Maryland Commission denied Officer Spencer’s

request for recertification in July 2012; it denied Officer

Benton’s request in August 2012 and subsequently denied his

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appeal in October 2012. Neither officer sought review of the

Commission’s decisions in state court. WMATA then discharged

the Officers for a second time.

Following these second terminations, the FOP filed

grievances on behalf of the Officers. Officer Spencer’s

grievance was denied at each of the first three steps of the

process outlined in the collective bargaining agreement, and the

FOP did not request arbitration. Officer Benton’s grievance was

denied at the first step of the process, and the FOP did not

appeal it further. The record does not reveal why the FOP did

not continue with the grievance process on behalf of the

Officers.

At some point after the Maryland Commission’s decisions,

the FOP did raise the issue of Officer Benton’s lack of

recertification with the same Board of Arbitration panel that

had ordered his reinstatement. 1 The Board concluded that it was

“not within its jurisdiction to determine whether the Grievant

meets the requirements to return to work as a WMATA Transit

Police Officer.” At oral argument before us, the FOP

acknowledged that it did not challenge this determination.

1

The record is unclear as to when, and in what procedural

posture, the FOP raised this issue with the Board. It is

similarly unclear whether the FOP argued before the Board that

Officer Benton’s second termination was not for just cause.

6

Instead, the FOP filed this action in federal court on

behalf of each officer, alleging that WMATA failed to comply

with the 2012 arbitration awards, in violation of both the WMATA

Compact and the collective bargaining agreement. The parties

filed cross-motions for summary judgment; the district court

granted the FOP’s motion and denied WMATA’s.

Finding no defect in the arbitration awards, and no

evidence that the awards were contrary to law or public policy,

the district court concluded that WMATA “failed to carry the

heavy burden necessary to displace the presumption that arbitral

awards are to be enforced as written.” Fraternal Order of

Police Metro Transit Police Labor Comm., Inc. v. WMATA, No. 12-

1387, 2013 WL 3159839, at *10 (E.D. Va. June 20, 2013) (“Summ.

J. Op.”) (internal quotation marks and citation omitted).

Accordingly, the court held that “WMATA breached both the

collective bargaining agreement and the Compact by failing to

comply with the decisions of the Arbitration Board.” Id. at *6.

The court ordered WMATA to reinstate Benton and Spencer as Metro

Transit Police officers and awarded them back pay and benefits. 2

2

The parties agreed before the district court that WMATA

would return the Officers to pay status and assign them

administrative responsibilities during the pendency of this

appeal. Fraternal Order of Police Metro Transit Police Labor

Comm., Inc. v. WMATA, No. 12-1387, 2014 WL 1317672, at *1 (E.D.

Va. Mar. 27, 2014). At oral argument before us, WMATA informed

the court that Officer Spencer retired in September of 2014.

(Continued)

7

The court subsequently denied WMATA’s motion for

reconsideration. Fraternal Order of Police Metro Transit Police

Labor Comm., Inc. v. WMATA, No. 12-1387, 2014 WL 1317672, at *1

(E.D. Va. Mar. 27, 2014) (“Recons. Op.”). WMATA then noted this

timely appeal.

II.

WMATA advances several arguments on appeal, but its

principal contention is that the district court erred in holding

that it failed to comply with the Board of Arbitration’s awards.

WMATA maintains that it complied with the awards by placing the

Officers on paid administrative leave pending their

recertification. It further contends that, in an action seeking

to enforce the arbitration awards, the FOP cannot challenge the

Officers’ second terminations, i.e., those resulting from the

Maryland Commission’s denial of recertification. Instead, WMATA

argues, the FOP needed to use the grievance procedure outlined

in the collective bargaining agreement to contest the second

terminations. We agree.

“We review a district court’s decision to grant summary

judgment de novo,” and we view “all facts and reasonable

The claims brought on his behalf are not moot, however, because

the disposition of this case could affect the district court’s

award of back pay.

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inferences therefrom in the light most favorable to the

nonmoving party.” T–Mobile Ne. LLC v. City Council of Newport

News, 674 F.3d 380, 384–85 (4th Cir. 2012) (internal quotation

marks and citation omitted). Under the federal common law of

arbitration, which applies to labor disputes involving WMATA, a

court can decline to enforce an arbitration award only on narrow

grounds. See Office & Prof’l Emps. Int’l Union, Local 2 v.

WMATA, 724 F.2d 133, 139-40 (D.C. Cir. 1983). 3 We need not

examine any of those grounds here, however, because the question

in this case is not whether the arbitration awards are valid --

the parties do not dispute that the Board of Arbitration had the

power to order WMATA to reinstate the discharged officers and

that the awards were valid when issued. Rather, the question is

whether WMATA complied with the awards.

The FOP recognizes that WMATA initially complied with the

arbitration awards. For, at oral argument before us and before

the district court, the FOP acknowledged that placing the

Officers on paid administrative leave constituted at least

temporary reinstatement. The question, then, is whether

3

Those grounds include that the award was “arbitrary and

capricious” or not “sufficiently definite to allow enforcement.”

Office & Prof’l Emps. Int’l Union, 724 F.2d at 140. A court may

also decline to enforce an arbitration award if “the arbitrator

exceeded the scope of his jurisdiction” or if the award “is

contrary to law or explicit public policy.” Id. (internal

quotation marks and citation omitted).

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terminating the Officers after the Maryland Commission denied

recertification constitutes non-compliance with the arbitration

awards.

Neither the parties nor the district court cite any legal

authority that speaks directly to this question. Two of our

sister circuits, however, have decided cases with similar

procedural histories -- i.e., where an employee has been

terminated, ordered reinstated by an arbitrator, and then

terminated again for an independent reason. The court in each

case held that the employee cannot challenge the second

termination through an action seeking enforcement of the

arbitration award.

In Chrysler Motors Corp. v. International Union, Allied

Industrial Workers, 2 F.3d 760 (7th Cir. 1993), the Seventh

Circuit upheld Chrysler’s decision to fire an employee shortly

after he had been reinstated pursuant to an arbitration award.

The employee had initially been discharged for a single act of

sexual harassment. Id. at 761. The arbitrator, however,

determined that the incident warranted only a suspension and

ordered Chrysler to reinstate the employee. Id. at 761-62.

During its investigation of the incident, however, Chrysler

learned that the employee had engaged in additional prior acts

of sexual harassment. Id. at 761. But the arbitrator did not

consider any of those prior acts in reaching his decision to

10

order reinstatement. Id. Chrysler therefore reinstated the

employee for one day and then terminated him again, citing the

additional acts of sexual harassment. Id. at 762.

In holding that Chrysler’s action did not violate the

arbitration award, the Seventh Circuit emphasized that

arbitration awards do not prevent an employer from taking future

disciplinary action when confronted with new facts. Id. at 763.

The court explained that if an arbitrator’s decision “does not

consider evidence against the employee discovered by the

employer after the discharge,” then the employer “is not

‘forever foreclose[d] . . . from using [the] evidence [acquired

after the discharge] as the basis for a [subsequent]

discharge.’” Id. (quoting United Paperworkers Int’l Union v.

Misco, 484 U.S. 29, 41 (1987)) (alterations in original).

Relying on the Seventh Circuit’s decision in Chrysler

Motors, the Third Circuit has also held that an employer can

discharge an employee, after reinstatement, based on facts not

considered by the arbitrator. United Food & Commercial Workers

Union Local 1776 v. Excel Corp., 470 F.3d 143, 146-49 (3d Cir.

2006). In United Food, two employees, Jose and Sandra Diaz, had

been suspended pending an investigation into allegations that

they attempted to steal from their employer. Id. at 144. A day

later, the employees were fired. Id. When the employees were

11

told they were being discharged, Jose Diaz allegedly attacked a

security guard. Id.

The employees proceeded to challenge their terminations in

arbitration, and the arbitrator overturned the employer’s

decision and ordered reinstatement and back pay. Id. at 144-45.

The arbitrator made clear, however, that he had not considered

the allegations surrounding Jose Diaz’s attack on the security

guard in reaching his decision. Id. at 145. The employer

therefore reinstated Sandra Diaz, but informed Jose Diaz that he

was (again) terminated, effective from the date of his alleged

assault. Id. The Third Circuit held that the employer’s

actions did not violate the arbitration award. Id. at 144. The

court explained that, in light of Jose Diaz’s violent conduct,

the employer was “free to terminate the employee a second time

based on independent grounds, pending a second arbitration.”

Id. 4

4

In United Food, the court distinguished United

Steelworkers, District 36, Local 8249 v. Adbill Management

Corp., 754 F.2d 138, 140 (3d Cir. 1985)), where although a hotel

purported to comply with an arbitrator’s award to reinstate nine

maids, it immediately placed the maids on indefinite layoffs

because of “low occupancy.” Adbill held that the hotel’s action

conflicted with the language of the arbitration award, which

“clearly require[d]” returning the maids to actual duty. Id. at

142. United Food distinguished Adbill on the ground that there,

the employer’s “decision to reduce its workforce was made after

the issuance of the arbitral award,” while in the case before it

the basis for the “second termination occurred before the

arbitral decision.” United Food, 470 F.3d at 149 (emphasis in

(Continued)

12

Like the employers in Chrysler Motors and United Food,

WMATA 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 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. 5

original). To the extent the holding in United Food rested on

this temporal distinction, we decline to adopt it. In our view,

truly independent grounds for terminating an employee can arise

before or after an arbitrator has heard the employee’s case.

That is, the independent grounds are genuinely outside the scope

of what was before the arbitrator.

5

Given the facts here, we need not decide precisely how

independent the reason for a second termination must be in order

to fall outside the scope of an action seeking to enforce an

(Continued)

13

We recognize that WMATA actively sought to influence the

Maryland Commission by writing letters strongly discouraging

recertification of the Officers. The district court noted that

in reviewing ten years of disciplinary actions, it found no

other case where the MTPD had employed “the type of strong,

negative rhetoric used by Chief Taborn in his letters to the

Maryland Commission concerning Benton and Spencer.” Recons.

Op., 2014 WL 1317672, at *4. The court determined that this

amounted to “strong evidence of WMATA’s intention to not comply

with the arbitration awards by creating a condition that it

could then use to justify not reinstating these officers.” Id.

(emphasis added). And for this reason the court held that WMATA

had not complied with the arbitration awards.

WMATA’s involvement in the recertification process does add

an element to this case not present in either Chrysler Motors or

United Food. But whatever WMATA’s intentions, nothing in the

record permits a holding that WMATA’s actions violated the terms

of the arbitration awards. WMATA was permitted -- in fact,

obligated -- to forward to the Maryland Commission “any

arbitration award that orders reinstatement. Moreover, the FOP

has not claimed that WMATA’s reliance on the Maryland

Commission’s denial of reinstatement was pretextual.

Accordingly, we need not determine under what circumstances a

court could find that an allegedly independent reason was

actually pretextual.

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derogatory information” about the Officers’ terminations. Md.

Code Regs. § 12.04.01.08(D)(2). To be sure, Chief Taborn 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 WMATA’s wishes. To the contrary, the transcripts of

the Commission’s hearings indicate that the Commission exercised

independent and considered judgment in evaluating the

information WMATA supplied. In fact, two commissioners in

Officer Spencer’s case voted in favor of recertification.

Even if WMATA did provide “derogatory information” with the

express hope or intent that the Maryland Commission would not

recertify the Officers, we cannot conclude that WMATA exceeded

the bounds of permissible behavior under the arbitration awards.

The FOP has cited no authority that would permit us to reach

that conclusion. Instead, the FOP begins from the premise that

the arbitration awards prohibited WMATA’s conduct toward the

Officers and then proceeds to explain why the awards are valid.

But again, no party disputes that the awards were valid when

issued. By defending the validity of the arbitration awards at

great length, but failing to address the applicability of the

awards to the actions WMATA took after they were issued, the FOP

assumes away the central question in this case.

15

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.

The WMATA Compact is clear that arbitration is the appropriate

method for resolving “any labor dispute,” including “the

interpretation or application of . . . collective bargaining

agreements and any grievance that may arise.” WMATA Compact

§ 66(c) (2009). Interpreting the “just cause” language of the

collective bargaining agreement falls squarely within this

provision.

Accordingly, the Officers’ grievances belong before the

Board of Arbitration, not a federal court. 6

6

Because we hold that the FOP cannot challenge WMATA’s

second termination of the Officers in this action seeking

enforcement of the arbitration awards, we decline to reach

WMATA’s alternate bases for reversal, except to note, as the

district court held, that WMATA does not have immunity from suit

here. See Summ. J. Op., 2013 WL 3159839, at *7-8. The FOP has

alleged a breach of its collective bargaining agreement with

WMATA, and WMATA enjoys no immunity from such suits. See Beebe

v. WMATA, 129 F.3d 1283, 1289 (D.C. Cir. 1997) (“Section 80 of

the Compact waives WMATA’s sovereign immunity for contractual

disputes.”).

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III.

Our conclusion that WMATA did not violate the arbitration

awards does not mean we necessarily embrace WMATA’s behavior.

Like the district court, we are troubled by evidence that WMATA

handled these cases in a markedly different fashion from

previous employment disputes. See Recons. Op., 2014 WL 1317672,

at *4. Of course, there may be legitimate reasons for this

difference. In any event, our view of WMATA’s tactics does not

alter our conclusion that we lack authority to decide whether

these actions by WMATA breached the collective bargaining

agreement. The grievance procedure outlined in that agreement

provides the only proper forum for resolving the Officers’

claims.

For the foregoing reasons, the judgment of the district

court is

REVERSED.

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