A recent award, and the reaction to it, highlight the sometimes conflicting expectations involved in arbitration proceedings. While conflicting expectations may not be uncommon, they take on greater significance in matters of police discipline.
Arbitrator William Serda issued an award (here) overturning the termination of Ft. Pierce police Sergeant Brian MacNaught. Sergeant MacNaught had been dismissed following his involvement in the fatal shooting of Demarcus Semer.
Semer was involved in a police stop. During the course of the stop Sergeant McNaught approached the vehicle, which was till running, to open the passenger side door. At some point Semer put the car in gear. While the facts are not clear from the arbitration award, Sergeant McNaught was able to get in to the vehicle. The other officer involved in the stop began shooting at the vehicle. Sergeant McNaught believed the shots were coming from the driver. In an ensuing foot chase, Sergeant McNaught fatally shot Semer. According to McNaught he believed Semer had a weapon and was preparing to use it. In fact, Semer did not have a weapon but was found with a cell phone. (This description comes from a report of the Department's Internal Investigation summarized in an article on TCPalm.com Fort Pierce Police Department internal investigation reveals more details)
The shooting generated significant publicity, and a grand jury was empaneled to investigate. The grand jury returned a no bill, finding the officers' actions objectively reasonable. (here)
Ultimately the Department's internal investigation recommended that Sergeant MacNaught's employment be terminated, a recommendation the City adopted.
The termination did not involve the shooting directly. However, the City did claim that there was a "procedural issue" regarding the actions of the grievant during the traffic stop, and that, separately, the City had discovered during its investigation that he had retained a Department issued body camera despite orders that all body cams be returned to storage until a policy for their use could be developed.
The termination was grieved and submitted to Arbitrator Serda for decision. According to the award:
The Parties agreed in general, and the Arbitrator articulates the issue before us as:
Did the City, Ft. Pierce, FL., have just cause to terminate/discharge Grievant MacNaught on May 8, 2016, for the "body camera incident of April 23/24 2016?"
If not, what shall be the remedy
Notwithstanding this limited issue, the City did argue that:
The totality of the events, the shooting and the body cameras, cumulatively create clear just cause for termination and meet the requirements of the commonly used "seven management tests for just cause."
It acknowledged that there was no policy or methodology violated by grievant, but asserted that "an experienced officer, applying common sense, should never have created and placed himself in, such a situation." It argued that the Sergeant's entering the vehicle while it was still running created a vulnerable situation should the driver move the car.
Arbitrator Serda rejected the City's reliance on "common sense" concerning the actions surrounding the stop, and concluded that grievant's failure to return the body cam to storage was not an intentional effort to disobey an order but was based on the mistaken belief that his use of the camera for demonstration in his meetings with the public on behalf of the department was exempt from the order.
Arbitrator Serda overturned the dismissal, ordering grievant's reinstatement subject to a one day suspension for his lapse in judgment concerning the return of the body cam.
The reaction of Ft. Pierce City Commissioner Sessions to the award indicates what was perhaps an erroneous expectation by him, and possibly by members of the public, concerning the issue before the arbitrator. A report in TCPalm.com (Fort Pierce commissioner wants police to buy out officer reinstated after death of Demarcus Semer) quotes Sessions as saying:
I was really devastated because based on the information that I received, that I was privy to, that it was a slam dunk to have him terminated," Sessions said. "Looking at the arbitrator's ruling, I think what happened was the ball was dropped with regard to what the real issues were. The real issue was this young man being killed where there was not a gun.
Commissioner Sessions called for the City to attempt to buy out Sergeant MacNaught in lieu of reinstatement, expressing concern about his safety should he return to patrol.
The family of Demarcus Semer has also questioned the fairness of the result, and expressed their lack faith in the system, and the family's attorney indicated that they were pursuing a civil action relating to the shooting. Fort Pierce police officer fired after fatal shooting of unarmed man ordered to be reinstated
Update: Arbitrator Sergio Delgado has issued an award in connection with the termination of the other officer involved in this incident. Officer Robert Hughes was dismissed, not for the shooting itself, but for certain claimed policy violations in the manner in which the traffic stop was conducted, as well as claims that he improperly had a private long gun/rifle in the trunk of his patrol vehicle, and that he had been insubordinate in failing to follow an order to have the vehicles dash cam inspected to make sure it was properly functioning. Arbitrator Delgado sustained the grievance in part and ordered grievant’s reinstatement without back pay. In addition to questions about the severity of the claimed policy violations, the Arbitrator found a denial of due process in the untimely furnishing of information to Union counsel in connection with grievant’s Pre-Determination Hearing. Noting that the grievant was medically unable to return to patrol duties, he “directed that [grievant] be put on paid administrative leave until his application for disability retirement benefits is approved.” Arbitrator Delgado’s award can be found here.
Sunday, April 29, 2018
Sunday, April 22, 2018
Interest arbitration and the need for candor
Arbitrator Richard Miller reopened and reconsidered an interest arbitration between Hennepin County, MN and Law Enforcement Labor Services, Inc., Local No. 393, concluding that the County had "purposely withheld" information that had been requested by the Union.
In the initial proceeding, Arbitrator Miller rejected the Union's requested wage increase for a unit of Licensed Supervisors, finding:
The Union is not a victim of disparate treatment. All County employees were treated the same. The County’s philosophy on collective bargaining was to offer uniform pay increases and benefit improvements across all bargaining units unless compelled by good evidence to do otherwise. ... More importantly, the Employer never deviated from the internal wage pattern unless specific evidence - meeting defined criteria - justified doing so.
Only in those limited cases where attraction or retention problems warranted greater pay did the County voluntarily adjust wages outside the pattern.
Labor relations is built on trust and honesty between the Parties and not on omission or failure to provide relevant information, which occurred in this case. Unfortunately, this trust was breached by the County. This is very disappointing. While it is true that Mr. Olness and others in his department may not have participated in the decision to grant the 7.5% market adjustments to the Chief Deputy and Majors (as it appears this was done solely by the Sheriff), they knew at the time of the interest arbitration hearing with the Licensed Supervisors that the Chief Deputy and Majors were going to receive this market increase for 2016 with no retention problem. ... Yet, the County made a purposeful decision to delay implementing the market adjustment, and not just until after the July 7, 2017 interest arbitration hearing, but until after the arbitration award was issued.
In the initial proceeding, Arbitrator Miller rejected the Union's requested wage increase for a unit of Licensed Supervisors, finding:
The Union is not a victim of disparate treatment. All County employees were treated the same. The County’s philosophy on collective bargaining was to offer uniform pay increases and benefit improvements across all bargaining units unless compelled by good evidence to do otherwise. ... More importantly, the Employer never deviated from the internal wage pattern unless specific evidence - meeting defined criteria - justified doing so.
Only in those limited cases where attraction or retention problems warranted greater pay did the County voluntarily adjust wages outside the pattern.
Arbitrator Miller's original award, dated August 1, 2017, can be found here.
The Arbitrator's conclusion was based in part on the assertions of the County that it had a "strict" practice of rejecting above pattern increases absent a voluntary turnover rate at least twice the County average. The County argued that it "never broke its internal pattern unless specific evidence - meeting defined criteria - justified doing so. No supervisory job class in the county met those criteria"
In preparation for the interest arbitration, the Union had requested information concerning wage increases for other employees. The County responded to the request except that it failed to produce information about above-pattern increases for several non-organized job classes.
The Union subsequently heard about a 7.5% increase, provided to the "non-organized classes of Chief Deputy and Sheriff's Majors," a group with no apparent attraction or retention problems, about a month after the Arbitrator had rendered his initial decision. In light of the new information, the County agreed to the Unions request to have the Arbitrator once again review the Union's request for market adjustments for the Licensed Supervisors.
In his award, Arbitrator Miller noted:
In light of the new evidence that there in fact was not a "uniform policy" regarding market adjustments Arbitrator Miller concluded that the Licensed Supervisors should be treated the same as the Majors and Chief Deputy in terms of comparing their compensation to the external market and awarded a market adjustment he had previously rejected.
Update The issue of claimed misrepresentations during collective bargaining in the private sector is discussed in an NLRB Advice Memo Haier U.S Appliance Solutions, Inc.
Sunday, April 15, 2018
Two public policy reversals, last chance agreements, and call out pay
Minn. court overturns award reinstating police officer accused of failing to report use of force
The Minnesota Court of Appeals has refused to uphold an arbitrator's award reinstating a police officer who was dismissed for alleged use of excessive force and for failure to properly report the use of force. City of Richfield, v. Law Enforcement Labor Services, Inc.. The officer had responded to a report of a number of people driving erratically. During the course of his investigation grievant pushed one of the individuals he was speaking with and hit him in the back of his head. He did not file an incident report concerning his use of force. After a video of the incident appeared on Twitter, the department began an investigation and ultimately dismissed the officer both for his use of force and his failure to report that use of force. The matter was submitted to Arbitrator Charlotte Neigh who issued an award finding that force grievant used was not excessive, but that he had failed to properly report his use of force. She found that the failure was not intended to conceal the incident,which would have been misconduct, but was a lapse of judgement which was a performance issue. She ordered grievant's reinstatement subject to a three day suspension for the unacceptable performance. The City sought to vacate the award. It did not challenge the Arbitrator's finding on the excessive force issue, but argued that "an arbitration award reinstating an officer who failed to report his use of force—after he had been trained, retrained, counseled, and disciplined on this topic—violates public policy." The district court denied the City's request, but the Court of Appeals reversed. It found:
Reinstating [grievant]—an officer who admittedly failed to report his use of force when he should have and has had prior offenses and warnings regarding the same duty to report—interferes with the RPD's legal obligation to establish and enforce minimum standards of conduct for its police officers. Specifically, it interferes with the clear public policy in favor of police officers demonstrating self-regulation by being transparent and properly reporting their use of force. Further, the arbitration award interferes with the public policy against police officers using excessive force because the only way a city and police department can successfully uphold that public policy is if they are given the opportunity to review occasions involving the use of force.
The Court noted that this was only the second time it has vacated an arbitration award reinstating a police officer as contrary to public policy but determined that:
To do otherwise would violate a well-defined and dominant public policy by jeopardizing public safety and undermining public trust in law enforcement.
NY Appellate Division rejects "irrational," "unsustainable" award reinstating employee dismissed for sexual harassment
Reversing the lower court decision confirming the award, New York's Appellate Division has refuse to enforce an arbitrator's award reinstating an individual who had been dismissed for alleged sexual harassment, finding the award contrary to public policy. Matter of New York City Transit Auth. v. Phillips. Concluding that the award effectively prevented the employer from complying with its legal obligation to protect against sexual harassment in the workplace the Court found:
... the arbitrator's decision is irrational as it purports to adopt the findings of the EEO in all respects, and yet arrives at the unsustainable conclusion that [grievant] did not violate the workplace sexual harassment policy. Among the express findings of the EEO — with which the arbitrator was "compelled to agree" — were that [grievant] offered to act as Melendez's "sugar daddy"; that [grievant] stated, in the presence of others, that he would "stay in bed all day" if he had a woman like Melendez and would "oil her down"; and that [grievant] placed his wallet on the ledge and stated in the presence of others, "I would give all of this" for Melendez.
Given such findings, it is unfathomable that the arbitrator could find that [grievant's] conduct did not violate the workplace policy against sexual harassment, which expressly defines sexual harassment to include behavior which "has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile or offensive working environment." This disjunction between the arbitrator's findings and his summary conclusion that [Grievant's] behavior nonetheless did[sic] "did not rise to the level" of sexual harassment is fundamentally irrational ...
Viewing the award as a whole, the Arbitrator based his decision on the language in Section 11.B. He did not add new words to the CBA; he interpreted it. So long as his interpretation is rationally derived from the CBA, it must be upheld. Here, we must conclude it is. The Arbitrator explained that, in his view, Section 11.B applied when an employee is "called out to work on a holiday." (Arbitrator Decision at 4.) This mirrors the language found in the second sentence of Section 11.B. While the City's interpretation is equally persuasive, as stated above, our standard of review is limited to determining whether the Arbitrator's interpretation is rationally derived from the CBA. "It is not necessary that this Court agree with an arbitrator's interpretation of a CBA for it to be sustained." ...
The Minnesota Court of Appeals has refused to uphold an arbitrator's award reinstating a police officer who was dismissed for alleged use of excessive force and for failure to properly report the use of force. City of Richfield, v. Law Enforcement Labor Services, Inc.. The officer had responded to a report of a number of people driving erratically. During the course of his investigation grievant pushed one of the individuals he was speaking with and hit him in the back of his head. He did not file an incident report concerning his use of force. After a video of the incident appeared on Twitter, the department began an investigation and ultimately dismissed the officer both for his use of force and his failure to report that use of force. The matter was submitted to Arbitrator Charlotte Neigh who issued an award finding that force grievant used was not excessive, but that he had failed to properly report his use of force. She found that the failure was not intended to conceal the incident,which would have been misconduct, but was a lapse of judgement which was a performance issue. She ordered grievant's reinstatement subject to a three day suspension for the unacceptable performance. The City sought to vacate the award. It did not challenge the Arbitrator's finding on the excessive force issue, but argued that "an arbitration award reinstating an officer who failed to report his use of force—after he had been trained, retrained, counseled, and disciplined on this topic—violates public policy." The district court denied the City's request, but the Court of Appeals reversed. It found:
Reinstating [grievant]—an officer who admittedly failed to report his use of force when he should have and has had prior offenses and warnings regarding the same duty to report—interferes with the RPD's legal obligation to establish and enforce minimum standards of conduct for its police officers. Specifically, it interferes with the clear public policy in favor of police officers demonstrating self-regulation by being transparent and properly reporting their use of force. Further, the arbitration award interferes with the public policy against police officers using excessive force because the only way a city and police department can successfully uphold that public policy is if they are given the opportunity to review occasions involving the use of force.
The Court noted that this was only the second time it has vacated an arbitration award reinstating a police officer as contrary to public policy but determined that:
To do otherwise would violate a well-defined and dominant public policy by jeopardizing public safety and undermining public trust in law enforcement.
NY Appellate Division rejects "irrational," "unsustainable" award reinstating employee dismissed for sexual harassment
Reversing the lower court decision confirming the award, New York's Appellate Division has refuse to enforce an arbitrator's award reinstating an individual who had been dismissed for alleged sexual harassment, finding the award contrary to public policy. Matter of New York City Transit Auth. v. Phillips. Concluding that the award effectively prevented the employer from complying with its legal obligation to protect against sexual harassment in the workplace the Court found:
... the arbitrator's decision is irrational as it purports to adopt the findings of the EEO in all respects, and yet arrives at the unsustainable conclusion that [grievant] did not violate the workplace sexual harassment policy. Among the express findings of the EEO — with which the arbitrator was "compelled to agree" — were that [grievant] offered to act as Melendez's "sugar daddy"; that [grievant] stated, in the presence of others, that he would "stay in bed all day" if he had a woman like Melendez and would "oil her down"; and that [grievant] placed his wallet on the ledge and stated in the presence of others, "I would give all of this" for Melendez.
Given such findings, it is unfathomable that the arbitrator could find that [grievant's] conduct did not violate the workplace policy against sexual harassment, which expressly defines sexual harassment to include behavior which "has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile or offensive working environment." This disjunction between the arbitrator's findings and his summary conclusion that [Grievant's] behavior nonetheless did[sic] "did not rise to the level" of sexual harassment is fundamentally irrational ...
The Court found that the arbitrator's modification of the termination to a "meager 10-day suspension" was contrary to the well recognized policy of the State and "cannot stand." It remanded the case "to a different arbitrator to enter a finding that respondent Aiken subjected Melendez to inappropriate and unwelcome comments of a sexual nature in violation of petitioners' sexual and other discriminatory harassment policy, and to pass upon the appropriateness of the penalty of termination."
The Court had earlier found erroneous the arbitrator's finding that the Union's action's of placing grievant on Union leave effectively precluded discipline Arbitrator's award that cba precludes discipline of employee on union leave found contrary to public policy
Last Chance Agreement makes dispute not subject to arbitration
An earlier post (Last Chance Agreements- Arbitrability of triggering event) discussed a decision of the Western District of Pennsylvania concluding that, in the absence of specific language rebutting the presumption of arbitrability, a Last Chance Agreement didn't preclude the arbitration of the factual question of whether the grievant committed the act alleged to be in violation of the agreement. An Illinois Appellate Court has now reached a different conclusion on arguably similar facts. The Court's unpublished decision can be found here. The Court concluded:
...the LCA explicitly stated that, were [grievant] to violate department rules again, he could not invoke the CBA’s procedure, including its final grievance-resolution step of arbitration, to fight the matter. Rather, any violation–any “non compliance”–would result in termination of his employment, leaving no room for debate. The LCA repeated this again two more times when it clarified that the “non-compliance” may be related to any directive, standard or protocol issued by [grievant's] supervisor, deputy chief or any administrator, and when it ordered him, “in the presence of” the Union and Employer, to acknowledge his understanding of this. And, most evident here is the paragraph of the LCA appearing immediately above its signature lines, which stated:
"As a condition of your acceptance of these conditions relative to this 'last chance agreement' and your acknowledgement [sic] of your agreement to waive all rights to grieve this corrective action, please sign this document along with your union representative."
Undeniably, Jordan and the Union, along with Employer here, signed this LCA and waived all rights to arbitration in any regard with respect to the issue of his employment and, likewise, its termination. The presumption of arbitration has been overcome.
Minimum hours guarantee applies "per call-out"
The Pennsylvania Commonwealth Court has refused to vacate an arbitrator’s award finding that grievants were entitled to two minimum call out guarantees when they were called out twice on a holiday. City of Pittsburgh v. Teamsters Local Union No. 249 The cba provided that employees called out on a holiday were to be paid three times their hourly rate for all hours worked, and were guaranteed a minimum of eight hours at the triple time rate. Grievants, snow plow operators, were called out at 10 pm and worked through 10 am the following day (Presidents' Day). They received 12 hours pay at the triple time rate. They were again called out at 6 p.m. and worked for four hours. They were paid an additional four hours at the triple time rate. They grieved, claiming that they should have received an eight hour minimum for the second call out. The issue was presented to Arbitrator Christopher Miles who upheld the grievance. Rejecting the position of the City that the employees were entitled to one eight hour minimum per holiday, Arbitrator Miles concluded that nothing in the language of the contract specifying that the minimum guarantee was limited to one call out per holiday. Finding the language applies "per call-out" he sustained the grievance. The Common Pleas Court confirmed the award, and the Commonwealth Court has now affirmed that decision. The Commonwealth Court held:
Last Chance Agreement makes dispute not subject to arbitration
An earlier post (Last Chance Agreements- Arbitrability of triggering event) discussed a decision of the Western District of Pennsylvania concluding that, in the absence of specific language rebutting the presumption of arbitrability, a Last Chance Agreement didn't preclude the arbitration of the factual question of whether the grievant committed the act alleged to be in violation of the agreement. An Illinois Appellate Court has now reached a different conclusion on arguably similar facts. The Court's unpublished decision can be found here. The Court concluded:
...the LCA explicitly stated that, were [grievant] to violate department rules again, he could not invoke the CBA’s procedure, including its final grievance-resolution step of arbitration, to fight the matter. Rather, any violation–any “non compliance”–would result in termination of his employment, leaving no room for debate. The LCA repeated this again two more times when it clarified that the “non-compliance” may be related to any directive, standard or protocol issued by [grievant's] supervisor, deputy chief or any administrator, and when it ordered him, “in the presence of” the Union and Employer, to acknowledge his understanding of this. And, most evident here is the paragraph of the LCA appearing immediately above its signature lines, which stated:
"As a condition of your acceptance of these conditions relative to this 'last chance agreement' and your acknowledgement [sic] of your agreement to waive all rights to grieve this corrective action, please sign this document along with your union representative."
Undeniably, Jordan and the Union, along with Employer here, signed this LCA and waived all rights to arbitration in any regard with respect to the issue of his employment and, likewise, its termination. The presumption of arbitration has been overcome.
Minimum hours guarantee applies "per call-out"
The Pennsylvania Commonwealth Court has refused to vacate an arbitrator’s award finding that grievants were entitled to two minimum call out guarantees when they were called out twice on a holiday. City of Pittsburgh v. Teamsters Local Union No. 249 The cba provided that employees called out on a holiday were to be paid three times their hourly rate for all hours worked, and were guaranteed a minimum of eight hours at the triple time rate. Grievants, snow plow operators, were called out at 10 pm and worked through 10 am the following day (Presidents' Day). They received 12 hours pay at the triple time rate. They were again called out at 6 p.m. and worked for four hours. They were paid an additional four hours at the triple time rate. They grieved, claiming that they should have received an eight hour minimum for the second call out. The issue was presented to Arbitrator Christopher Miles who upheld the grievance. Rejecting the position of the City that the employees were entitled to one eight hour minimum per holiday, Arbitrator Miles concluded that nothing in the language of the contract specifying that the minimum guarantee was limited to one call out per holiday. Finding the language applies "per call-out" he sustained the grievance. The Common Pleas Court confirmed the award, and the Commonwealth Court has now affirmed that decision. The Commonwealth Court held:
Arbitrator Miles' Award can be found here.
Sunday, April 8, 2018
Just cause for termination but grievant denied due process - Arbitrator awards back pay but no reinstatement
Grievant was employed as a corrections officer with the Trumball County Ohio Sheriff's Office. On August 24, 2017 an incident in the jail led to an investigation by the Sheriff's Office. Grievant (and several other officer) were involved in the movement of an inmate who was returning to the jail from treatment following a suicide attempt. During the course of the transfer, the inmate became belligerent and was dragged and carried to his cell. An investigation of this incident ensued during which grievant was interviewed and his incident report was reviewed. Other officers were also interviewed and one of the other officers interviewed stated that grievant had struck the prisoner with his knee in the ribs/kidney and then struck him three times in the same area with a closed fist. These events were not included in grievant's Incident Report. After further investigation grievant was again interviewed. He then acknowledged for the first that he had administered two strikes to the prisoner in an effort to control him but had not included this in his incident report because he had "simply overlooked it." After an additional interview with another officer the investigating Lieutenant prepared a report charging grievant with violation of policy. Grievant was then called to a meeting with the Chief Deputy where he was given a Notice of Discipline indicating he was being discharged.
The Union (Ohio Patrolmen's Benevolent Association) grieved the dismissal and the case was presented to Arbitrator Nels Nelson. The Union claimed that Grievant had been denied the due process called for by both the cba and the Constitution, and that the termination was without just cause.
Arbitrator Nelson agreed with the Union's due process position. He rejected the position of the Sheriff's Office that the Internal Affairs investigation satisfied the right to a pre-termination hearing and its claim that grievant had waived a pre-termination hearing. However he did conclude that there was just cause for discipline . He found that grievant had used excessive force against the inmate and rejected grievant's claim that his failure to mention his use of force in his incident report and his first interview was caused by a "lapse of memory."
Turning to the question of remedy, Arbitrator Nelson observed the this question was more difficult than in most cases. He noted:
In the instant case, the seriousness of the grievant's offenses makes it inappropriate to return him to work, which eliminates two of the usual remedies for due process shortcomings, i.e., reinstating the grievant with no back pay or reduced back pay.
Page 217 of The Common Law of the Workplace recognizes that there is a third option where there is just cause for discharge but the employer failed to provide procedural due process. In this situation, some Arbitrators award back pay without reinstatement. This alternative prevents the reinstatement of an employee who has committed a serious offense and at the same time, recognizes the employer's denial of due process. (footnote omitted)
Arbitrator Nelson's selected the third option. He declined to reinstate grievant. However, he awarded back pay from the date of termination until the final day of the arbitration hearing. By that day, the Arbitrator determined, "grievant had received all of the rights a pre-termination hearing would have provided."
Arbitrator Nelson's award can be found here.
Update: The propiety of this type of remedy is also addressed in Quick Hits - Back pay but no reinstatement, Arbitrator's reliance on external law, and Social media, law enforcement officers and the First Amendment
The Union (Ohio Patrolmen's Benevolent Association) grieved the dismissal and the case was presented to Arbitrator Nels Nelson. The Union claimed that Grievant had been denied the due process called for by both the cba and the Constitution, and that the termination was without just cause.
Arbitrator Nelson agreed with the Union's due process position. He rejected the position of the Sheriff's Office that the Internal Affairs investigation satisfied the right to a pre-termination hearing and its claim that grievant had waived a pre-termination hearing. However he did conclude that there was just cause for discipline . He found that grievant had used excessive force against the inmate and rejected grievant's claim that his failure to mention his use of force in his incident report and his first interview was caused by a "lapse of memory."
Turning to the question of remedy, Arbitrator Nelson observed the this question was more difficult than in most cases. He noted:
In the instant case, the seriousness of the grievant's offenses makes it inappropriate to return him to work, which eliminates two of the usual remedies for due process shortcomings, i.e., reinstating the grievant with no back pay or reduced back pay.
Page 217 of The Common Law of the Workplace recognizes that there is a third option where there is just cause for discharge but the employer failed to provide procedural due process. In this situation, some Arbitrators award back pay without reinstatement. This alternative prevents the reinstatement of an employee who has committed a serious offense and at the same time, recognizes the employer's denial of due process. (footnote omitted)
Arbitrator Nelson's selected the third option. He declined to reinstate grievant. However, he awarded back pay from the date of termination until the final day of the arbitration hearing. By that day, the Arbitrator determined, "grievant had received all of the rights a pre-termination hearing would have provided."
Arbitrator Nelson's award can be found here.
Update: The propiety of this type of remedy is also addressed in Quick Hits - Back pay but no reinstatement, Arbitrator's reliance on external law, and Social media, law enforcement officers and the First Amendment
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