Monday, September 24, 2012

Reinstatement with Conditions - Last Chance Awards

Arbitrator Thomas Gallagher has issued an award in a dispute between the Teamsters and Associated Milk Producers. The case involved the termination of an employee for excessive absenteeism. While finding that the employee's record of poor attendance would ordinarily be sufficient  to justify his termination, the Arbitrator concluded that the employee's long service and his difficulty adjusting to a change from night shift to day shift merited a reduction in the discipline. Accordingly he ordered the grievant reinstated, but imposed certain conditions on that reinstatement:

   If the grievant fails to attend in accord with the conditions stated in the award, his reinstatement will end without the opportunity to grieve just cause issues. By force of this award, the parties will not be required to re-litigate just cause issues if grievant does not abide by the conditions of his reinstatement.
 The award provided that grievant's reinstatement would end if he exceeded a listed number of tardies/lateness in the two years following his reinstatement. During the third year after his reinstatement the conditional nature of the reinstatement will end and grievant "will be subject to the same progressive-discipline standard the Employer follows for other employees..."

While reinstatement with conditions is not uncommon, especially in attendance cases or cases involving substance abuse, Arbitrator Anthony Sinicropi, in a presentation to the National Academy of Arbitrators in 1981, entered a note of caution:

It is important to stress that a conditional reinstatement may, in the abstract, be a suitable way of dealing with an industrial problem. In the final analysis, however, the parties must implement the award and, in the process, it is not uncommon that the conditions imposed by the arbitrator will cause another round of litigation in the arbitral forum, which in turn, may create continued antagonism between the parties. The arbitrator, rather than acting as the parties' contract reader, instead becomes a "legislator" and an important and sometimes unwanted fixture in the grievance process.

Negotiated last chance agreements have also, on occasion, generated their own disputes. Arbitrator Donald Ryce sets forth some of those issues in  Arbitrating A Last Chance Agreement (LCA).

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