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

Court-Arbitrator erred in awarding back pay to Union as penalty

A court has vacated a portion of an arbitration award ordering General Mills to pay almost three weeks of back pay, calculated at the grievant's rate, to the Union as a penalty for the Company's failure to timely provide information to the Union in a termination case.

The grievant was an employee who had been dismissed for allegedly falsely reporting her time of arrival on three occasions to cover up tardiness of from one to three minutes. The issue before the Arbitrator was whether there was just cause for that dismissal, and, if not, what the appropriate remedy would be. At the hearing the Union argued, among other points, that the Company had failed to have grievant sign Attendance Review/Reports, and had failed to timely provide certain documents to it.

Arbitrator Barbara Doering concluded that while the Company had done as the Union alleged, these actions didn't change the fact that the grievant had "knowingly and with intent to deceive" entered the wrong start time on the documents. However because she found that no one before had been fired for "falsifying" their time in, and because it was not clear that the certification language on the documents sufficiently warned the employee that failure to enter the actual start time would result in termination, the arbitrator reduced the termination to reinstatement with one week of back pay. The Arbitrator also ordered that General Mills pay to the Union three weeks of back pay:

which was the amount of time from 2/6/12 [the date of the initial meeting with the grievant] to 3/5/12 [grievant's last day of work] that the Company took to consider and investigate -for the fact that [grievant's supervisor] did not have grievant sign Attendance Reviews and the fact that the Company did not provide the Union with copies of the relevant documents at the suspension meeting.

The Company did not challenge the Arbitrator's decision on the termination, but did seek to set the award of back pay to the Union.

While noting the strong presumption against overturning awards, the Court nevertheless vacated this portion of what it described as the Arbitrator's "strange" decision. It determined that this issue was not encompassed by the stipulated issue and that there was no contractual basis for the award of back pay to the Union. The Court concluded:

The arbitrator's decision to punish the company for not providing documents by awarding the Union money in an amount calculated by the amount of wages [grievant] would have earned from the date the company first met with her to discuss the issue until the date she was discharged (even though [she] had actually been paid for the days she worked during that time period) sounds to this Court like the arbitrator's own brand of industrial justice. Because the award to the Union was outside the scope of the issue the parties agreed to arbitrate and because the award does not draw its essence from the Master CBA, the Court hereby vacates the portion of the August 10, 2013 arbitration decision that awarded money to the Union

The Court's decision in General Mills, Inc. v. BCTGM Local 316G can be found here.

Court: Arbitrator can compel employee to resign

Grievant was a police sergeant with the Trenton, OH police department. His employment was terminated for events relating to his issuing a traffic citation to the wife of a firefighter from a neighboring community. After the citation was voided by the Lieutenant, grievant sent a "clearly sarcastic" email to him and complained to the Chief. According to the Chief and Lieutenant, grievant was instructed to take no further action until a meeting among them could be scheduled. Nevertheless grievant went to the home of the individual to whom he had initially issued the ticket and reissued it. He also spoke with the firefighter-husband, telling him that the Lieutenant's action in voiding the ticket was unlawful and that he may face criminal charges. Grievant also investigated the Lieutenant's use of an impounded vehicle using a law enforcement data base and meet with the County prosecutor while on duty. After a hearing grievant was deemed to have violated the Department's Code of Conduct and his employment was terminated. The Ohio PBA filed a grievance and pursued the case to arbitration.

The arbitrator determined that grievant's reissuance of the traffic citation was insubordinate and deserving of disciplinary action. She also concluded that the conversation with the firefighter-spouse warranted "some significant disciplinary action." The arbitrator additionally noted that the circumstances leading to the discipline created distrust among the three commanding officers of a small police department. As a result, the Arbitrator concluded:

The grievance is sustained in part and denied in part. [Grievant’s] discipline shall be reduced to a thirty day unpaid suspension but he shall not be reinstated to employment. [Grievant] is awarded back pay from August 20, 2011 to the date of this Award together with benefits and any out of pocket loss as a result of the termination of benefits from the date of his termination to the date of this Award. The termination shall be removed from [grievant's] personnel file and [grievant] will be considered to have resigned from employment effective on the date of this Award.

The Union sought to vacate that portion of the award requiring grievant to involuntarily resign. The City sought to confirm the award. The Court of Common Pleas agreed with the Union, and the City appealed. The Ohio Court of Appeals has reversed and confirmed the Arbitrator's award.

Contrary to the lower court, the Court of Appeals concluded that the award drew its essence from the cba, noting that the cba defined available forms of discipline as written reprimands, suspensions without pay, and discharge. The Court observed:

The arbitrator further concluded that, because of [grievant’s] conduct in relation to his commanding officers, distrust was created within the Police Department that could not be eradicated. In addition, the arbitrator explained the advantages and disadvantages of resignation rather than termination. While the arbitrator determined [grievant’s] conduct warranted him leaving the police department, she did not want to obstruct his future employment in law enforcement. Thus, the arbitrator made one remedial determination, finding that [grievant] should serve a 30-day suspension without pay followed by resignation from employment while having the termination removed from his personnel file.

The court concluded that the arbitrator’s holding that grievant should resign fell within the essence of the cba “which permits the removal of an employee from employment.”

The dissent would have affirmed the lower court, noting "I think it inappropriate to allow an arbitrator the authority to force an employee to resign from employment when an employer does not have this type of power."

The court's opinion in Ohio Patrolmen's Benevolent Association v. City of Trenton can be found here.

Arbitrator orders halt to layoffs and issues broad make whole remedy

Arbitrator Edwin Benn has issued a decision ordering the State of Illinois to cancel pending layoffs and facility closings and to reinstate and make whole any employee laid off in what the arbitrator determined to be a violation of a cost concession agreement.  That agreement had been entered into between the State of Illinois and AFSCME Council 31, and provided, in return for concessions from the Union, “there shall be no temporary or indeterminate layoffs through the end of FY2012… nor shall the state close any facilities…”

Notwithstanding the language of the agreement, the state announced the layoff of over 1,600 employees represented by the union and the closing of seven mental health and correctional facilities.

The state did not dispute that the layoffs and closings were contrary to the language of the agreement, but argued that the Illinois Public Relations Act permitted its noncompliance with the agreement. The state also maintained that the state’s constitution supported its actions.

Rejecting both of these positions, Arbitrator noted he was bound by the undisputed language of the agreement, and that any statutory or constitutional arguments were for a court to address. The arbitrator’s award prohibited the layoff of employees represented by the union through June 30, 2010, and ordered the state to reinstate and make whole any employee laid off before that date.  

The arbitrator further held:

[I]n the event State goes forward with the  announced layoffs and facility closures which have been found by me to be in clear violation of the Cost Savings Agreements …and in the event those adversely impacted employees lose their homes or cars or are forced to move from their residences as a result of the State’s clear violation of the Cost Savings Agreements which places the employees in a position of being unable to make timely payments on those items or should those employees suffer any other related losses, then as part of the make whole remedy, those employees shall be compensated by  the State for those losses in addition to lost backpay and benefits.

A copy of Arbitrator Benn’s award can be found here.