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
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