Back pay - Arbitrator rejects assumption of increased child care responsibilities as mitigation of back pay damages

 The New Hampshire Union Leader reports on the termination of a Manchester NH police officer and the subsequent arbitration of that discipline. City ordered to rehire 'proven racist' cop; status uncertain

The officer was dismissed for sending racially insensitive text messages to his wife on a Department issued cell phone. The newspaper links to voluminous documents related to the case, including the arbitrator's award on the merits as well as a subsequent award on back pay issues. 

Arbitrator Gary Altman overturned the termination, finding the penalty too severe. He converted the discipline to a thirty day suspension and ordered grievant's reinstatement. He further ordered that:

... grievant shall not be awarded back pay for the period of this thirty day suspension. Under this award the grievant is to be made whole for lost compensation until he returns to work pursuant to this Award, minus thirty days’ pay for the period of the suspension. In addition, his back pay shall be offset by any compensation that the grievant received during this time period. 

The Department refused to reinstate the grievant, and also claimed that grievant had failed to mitigate his damages by failing to make reasonable efforts to find seek employment after his termination. It was undisputed that grievant had failed to seek alternative employment during the period he was no longer working for the City of Manchester. Grievant noted that following this termination he assumed primary caregiver responsibility for his two sons, providing the opportunity for his wife to increase her hours and, presumably her income. According to grievant:

“My wife adjusted her work hours and schedule following termination, no longer being able to serve as primary caregiver for them”, and that his wife now “works as a nurse practitioner and adjunct professor of nursing. Those employment responsibilities combined, having been adjusted post termination, have her now working 7 days a week.”

The  dispute between the Department and the Union concerning the appropriate calculation of back pay due grievant was submitted to the arbitrator for resolution. Manchester Police Patrolman's Association and City of Manchester.

Arbitrator Altman separated the back pay period into three district time periods. Initially he noted that at the time of grievant's termination the Department also sought to have the County Attorney pursue criminal charges against grievant.  The County Attorney ultimately did not pursue those charges. For this initial period, Arbitrator Altman concluded that the pendency of potential criminal charges seriously limited grievant's ability to find employment in a substantially equivalent position. He observed:  

Considering the totality of circumstances, including the position held by the grievant, and the fact that he was under criminal investigation, Mr. Brown was not required to have sought employment during the time period he was under criminal investigation. In other words, it was reasonable for Mr. Brown to have waited until the criminal investigation was concluded for him to make any attempt to look for substantially similar employment.2 

___
2 The obligation to seek employment is not for any and all positions. Rather, an employee’s obligation is to seek employment in a position suitable to his background and experience, and one that provides comparable pay and benefits.

The second time period encompassed the period between the time the County Attorney's office advised that it would not pursue criminal charges and the date of the Arbitrator's award. For this period, Arbitrator Altman concluded that grievant had failed to mitigate, and denied back pay:

Circumstances changed after it was clear that the County Attorney decided not to pursue criminal charges. Undoubtedly, it would have been difficult for Mr. Brown to find work in the field of law enforcement after his discharge, but the difficulty of finding such position does not excuse him from making at least some effort, to look for work. It is the general rule in back pay cases that an employee must make at least reasonable efforts to find new employment, which is substantially equivalent to the position lost and is suitable to a person of his or her background and experience.
It is not as if Mr. Brown had to actually find employment but he must, at least, have made an effort to search for employment. It would be inappropriate to allow an employee to collect back pay during a period when the employee made no effort to mitigate damages by seeking employment and essentially dropped out of the labor market.

Arbitrator Altman rejected the claim that grievant's assumption of increased child care responsibilities provided a basis for his failure to seek other employment. He noted:

The fact that Mr. Brown stayed home with his minor children while his wife worked additional hours does not satisfy the duty to mitigate. By this decision, Mr. Brown totally removed himself from the workforce. I know of no cases in which a discharged employee is excused from attempting to search for work because he decides to stay home with his children.

Finally, the Arbitrator found grievant was eligible for back pay for the period following the merits award ordering his reinstatement until the City actually returned him to employment:

The City has the right to challenge the Arbitrator’s Decision directing the reinstatement of Mr. Brown, as it deems appropriate. If the City complied with the Award, however, Mr. Brown would have been reinstated and would have begun to be paid the wages and benefits due to him under the parties’ Collective Bargaining Agreement. I know of no cases in which an employee’s obligation to mitigate continues after an award of reinstatement.  

Quick hits - Union dues, self defense, and clearing a grievant's name

Arbitrator rejects City's claim the Janus supersedes dues deduction withdrawal window of cba

Arbitrator William Heekin rejected the position of a School District that the Supreme Court's decision in Janus effectively superseded a ten day "window" for withdrawal of union dues deduction authorization. Fairfield City School District Board of Education and OAPSE/AFSCME Local 4 AFL-CIO Local 205.  Grievant had signed a membership application as well as a dues deduction authorization  on August 12, 2018. That application, and the parties cba, provided for revocation of a dues deduction agreement only during a specified ten day period annually. Grievant resigned his membership, and sought to revoke his dues deduction authorization outside the contractual window.  The School Board honored that request. The Union grieved the Board's action action, disagreeing with the Board's assertion that allowing that revocation was compelled by the Supreme Court's decision.

In upholding the Union's grievance, Arbitrator Heekin concluded:

Janus does not supersede or interfere with the Article 38, contractual mandate of when and how authorization for a union membership dues payroll deduction is to be revoked.

Arbitrator Heekin noted that grievant had previously signed both a membership application and a dues deduction authorization. This, he found,  distinguished the case from the circumstances involved in Janus:

Simply put, Janus deals with the Constitutionality of a public sector employee who, unlike Clifford Heckler, chose to not become a union member and had not authorized the payroll deduction of an agency fee, which in accordance with his collective bargaining agreement and/or state law would be remitted to the union that represented him in collective bargaining. In other words, Janus is determined to have not addressed the subject of a public sector employee such as Clifford Heckler who, unlike Mark  Janus, voluntarily chose to become a union member and voluntarily authorized his public sector employer to deduct union membership dues from his employee paycheck. This follows where the Supreme Court in setting out its nearly fifty-page majority opinion in Janus did not once refer to the subject of a union membership dues, payroll deduction or the relationship between an employee who voluntarily becomes a union member and his/her union. Accordingly, in finding that Janus does not apply, it is held that what controls is the Article 38, contractually mandated “ten (10) day” window period and other requirements as to when and how union membership dues payroll deduction authorization can be revoked. 

Accordingly, he ordered the School Board, as requested by the Union, to "[m]ake OAPSE whole $ for [grievant's] Authorization of Dues, and begin deductions again."

Bus driver's physical altercation with passenger driven in part by self defense, termination too severe 

Arbitrator Colman Lalka was presented with a dispute arising from an incident between a bus driver and passenger. The dispute began as a verbal exchange and escalated into a physical altercation. Arbitrator Lalka largely sustained the grievance, overturning grievant's termination but agreeing there was just cause for discipline "according to [the Company's] Progressive Discipline Program." Greater Cleveland Regional Transit Authority and Amalgamated Transit Union, Local 268.

In making his determination, Arbitrator Lalka looked to the standards used to resolve claims of excessive force by police officers. Applying those standards, the Arbitrator concluded

The bus operator's primary function is to drive the bus, while providing courteous service to the Authority's patrons. In situations of irate and difficult passengers, the Authority's de-escalation protocol can be expected to be used. However, an Operator must have some leeway to exercise judgment and reasonably respond to clearly out-of-control passengers who provide the driver with a reasonable belief of bodily harm.

While rejecting the RTA's assertion that grievant's conduct warranted termination, Arbitrator Lalka concluded:

While the Grievant's actions did not rise to the level of a terminable offense, the Grievant's act of yelling to the female passenger to "shut up," nevertheless constituted a violation of the Employee Performance Code. That act was also in contravention of the Grievant's de-escalation training in dealing with difficult passengers. Just Cause exists for discipline lesser than termination and may be administered pursuant to the Authority's Positive Discipline Program.

 Arbitrator sustains grievance of Sheriff's deputy, "encourages" joint public announcement clearing grievant's name

Arbitrator Doyle O'Connor sustained the grievance of a Kalamazoo Sheriff's Deputy whose employment had been terminated for alleged neglect related to the death in custody of a jail inmate. Kalamazoo Sheriff & County and Kalamazoo County Sheriff's Deputies Association

The incident in issue arose in June, 2015. An inmate who had smuggled drugs into the jail died from an overdose while in custody. Following that death, an investigation was conducted which cleared grievant, and other employees, of any wrongdoing or negligence. In 2019, in the course of discovery in connection with a lawsuit filed by the family of the deceased inmate, an audio recording, previously believed not to have not been retained, was uncovered.  After review of the audio, the Department decided to reopen the investigation into grievant's actions. 

Arbitrator O'Connor rejected the Union's challenge to the reopening. He found that the recently discovered audio constituted new and substantive information and supported the reopening of the investigation despite the long delay. However, he found nothing in the new audio to alter the original conclusion that grievant had engaged in no misconduct or negligence. Responding to the Union's claim that the decision to terminate was driven by political consideration arising from the lawsuit, the Arbitrator noted that the evidence did not "compel" that conclusion but that "to the extent that such pressure had any impact on the Employer's decision making in this case, it would be inappropriate." While he found that there was no evidence that grievant had neglected his duties, the Arbitrator noted that there was evidence that another Deputy had neglected his duties regarding the inmate, had attempted to conceal that fact, but was not disciplined. 

Finding that the Department had failed to establish just cause for the termination he directed  grievant be offered reinstatement "immediately" and be made whole in all respects. He further noted:

Given the high public profile this case has already had, and the damage unfortunately caused to [grievant's] otherwise good reputation where in these especially fraught times he has been charged with culpability in the death of an inmate in police custody, the Parties are encouraged to endeavor to agree upon a joint public pronouncement regarding the outcome; failing at that, the Parties regardless remain free to address the matter publicly as they see fit.

Arbitrator upholds termination of Sheriff's Deputy for off duty use of force

This case comes at a time one report notes " "[t]he issue of arbitration has come to the forefront of a national discussion on accountability in law enforcement."  Deputy fired after allegedly punching man in H-E-B parking lot loses fight to be returned to force 

In an Award involving a dispute between a terminated employee and the Bexar County, TX Sheriff's Office, Arbitrator Louise Wolitz has upheld the termination of a Sergeant in the Sheriff's Office who had been dismissed for his off duty use of what the Sheriff's Office asserted, and the Arbitrator found, was excessive use of force. 

The dispute involved a claim that the employee of the Sheriff's office struck another driver who he believed had backed into his truck and attempted to leave the scene while both were in a parking lot. The grievant maneuvered his vehicle into a position to block the other driver from leaving. When the other driver rolled down his window the parties engaged in a brief exchange, and grievant reached in a struck the other driver. During the investigation of the incident grievant maintained that he was attempting to stop the other driver from fleeing the scene and may accidentally have touched him while he was trying to grab the steering wheel. At the hearing, grievant acknowledged that he had struck the other driver.

Arbitrator Wolitz concluded that the Sheriff's Office was confronted "with a clear case of excessive use of force." 

On the propriety of termination, the Arbitrator noted:

The question of the punishment was for the Sheriff and the command officers to decide. After an investigation, they were unanimous in the decision to discharge Mr. Anderson. ... There was video evidence that [the other driver] was subject to an unjustified use of force by a law enforcement officer. This was clearly conduct unbecoming a law enforcement officer and, if it became public, would bring discredit on the Bexar County Sheriff’s Office. There was no reason to believe it would not become public. The records were subject to public release. The conduct would be detrimental and have an adverse affect on the Sheriff’s office if it were discussed in the media. ... Moreover, the fact that Mr. Anderson did not acknowledge his conduct and came up with an unconvincing story that he was simply trying to stop the car, called into question his honesty in other actions in the department and destroyed his credibility as a witness in court. His story was easily determined not credible by the available video evidence, especially when there were other ways to attempt to get [the other driver's] identification without using physical force. The disciplinary decision was for the command officers and the Bexar County Sheriff to make. There is no evidence in this record which requires the arbitrator to change their unanimous judgment.

Two arbitrators address the issue of the COVID pandemic as a force majuere event

Two recent awards involve questions concerning the existence or impact of the Corona virus as a force majeure event, potentially excusing claimed violation of the parties' agreements.

In American Association of University Professors - University of Akron Chapter, Arbitrator Jack Buettner concluded that the force majuere clause privileged the University's actions when it implemented a "retrenchment." 

The effects of the COVID pandemic are certainly unforeseen and surely out of anyone’s control. The number of cases fluctuates from day to day, week to week, and location to location sending counties in Ohio from a Level 2, Orange, to a Level 3, Red, while hopefully avoiding the Level 4 designation which signifies severe exposure and spread and could result in another state of emergency. Cases of COVID on college campuses have been cited as one of the factors that have pushed counties into the Red zone. [Bamforth, E. (2020, September 4) Plain Dealer, p. A5.] The pandemic is affecting colleges in general as cited in Kiplinger’s Personal Finance. (5 Ways College is Changing. 9/2020, p. 44) There is lower enrollment as families struggle through the recession, tighter budgets as student revenue decreases, federal and state funding cuts, and declining government budgets. In an effort to balance college budgets, smaller staffs are being seen as faculty is laid off or furloughed. Circumstances remain in flux as the state grapples with the disease and its spread. COVID is, indeed, a catastrophic event, and it’s resulting impacts are unforeseeable and beyond the University’s control.

Having established that a force majeure did, indeed, exist, the University needed to satisfy the requirements in Section 1(A)  ...

Arbitrator Buettner concluded further that the pandemic did not relieve the University from complying with certain other obligations of the contract "which are feasible and possible to implement since there is no immediate financial impact  or time frame."

In Alaska Airlines, Inc. and Aircraft Maintenance Fraternal Association, Local 32 a panel chaired by Arbitrator Frederic Horowitz addressed a dispute that "arose as the product of economic disruption caused by the global COVID pandemic plaguing the travel industry." The parties disagreed about the scope of certain job security language in their agreement. 

Rejecting the position of the Company, the panel concluded that the applicable provisions "confirms the plain language of the parties' Agreement [and] supports the position of the Union."

    The parties are seeking expedited resolution from the System Board of good faith yet irreconcilable differences about the application of force majeure provisions in Paragraph 2. of LOA #9 to the job security provisions in Paragraph 4. of that LOA as well as to the impact if any of those protections on the seniority provisions in Article 9 K.2. of the Agreement. When negotiating the Transition Agreement in 2019, neither party anticipated the massive economic disruptions caused by the global pandemic in 2020. The System Board in these circumstances cannot attempt to presume or conjure what the bargaining parties would have done had the subject been raised in negotiations. Rather, the Board can only interpret and apply the existing contract provisions in a manner consistent with accepted standards of contract construction in light of the unique facts presented.

    In Issue No. 1., the evidence supports a finding the job security provisions in Paragraph 4. of LOA #9 are not subject to the force majeure provisions in Paragraph 2. based on the plain language of those provisions and the absence of a mutual intent manifested otherwise during bargaining.

Last chance agreement, double jeopardy and just cause - Court confirms award reinstating employee notwithstanding Last Chance Agreement

 An earlier post, Arbitrator concludes that the principle of double jeopardy prevails over a Last Chance Agreement,  noted a complaint filed by Dana Corp seeking to set aside an award of Arbitrator Daniel Kininmonth.  That award involved the termination of an individual who was subject to a last chance agreement (LCA). 

The LCA provided:

In the event that you violate the terms of this last chance agreement your employment is terminated, you will not have access to the grievance procedure unless there is a question regarding the legitimacy of the termination. 

Full compliance with the requirements of this agreement constitutes your conditions of continued employment. Failure to comply with all of the terms and conditions will result in discharge.

The Arbitrator found that grievant had engaged in the conduct he was accused of, and that this conduct was in violation of the LCA. However, observing that "An employee who signs a last chance agreement only gives up the rights him or her expressly agrees to give up" the Arbitrator found that the LCA in this case did not expressly exclude the principle of "just cause."

 Arbitrator Kininmonth found that grievant had been subjected to double jeopardy — he had  been issued a "written warning" for an offense he was subsequently terminated for.

The Arbitrator rejected the Company's claim that he was without authority to consider the question of Double Jeopardy in the presence of a Last Chance Agreement:

The Company argues that "There is No Double Jeopardy in the Context of a Last Chance Agreement." "The claim of 'double jeopardy' is not an issue within the authority of the Arbitrator when called upon to interpret the terms of the 'Last Chance Agreement.' This contention is another of those 'mitigating factors' that have been removed from the consideration of the Arbitrator via last chance agreement." Glatfelter, 126 LA 1774, 1779, 09-2 ARB ¶4694 (Allen, 2009) (Company Brief, p. 12).This arbitrator disagrees with this quotation from the Glatfelter decision. Double jeopardy is not a "mitigating factor" which cannot be considered by the Arbitrator in reducing the penalty under the last chance agreement. Double jeopardy is an "affirmative defense," not a "mitigating factor." The arbitrator can consider "affirmative defenses." ... Thus, the arbitrator can overturn discipline which subjects the employee to double jeopardy under a last chance agreement.

The District Court for the Eastern District of Kentucky has now confirmed the award, rejecting the Company's claim that the Arbitrator  acted outside the scope of his authority and did not carry out his role of interpreting the LCA  but instead utilized his own notions of "just cause." Dana Incorporated v. International Union, United Automobile, Aerospace and Agricultural Implement Workers 

The Court concludes:

Dana argues that arbitrators may not examine just cause under last-chance agreements, pursuant to the Sixth Circuit rulings in Ohio Edison Co. v. Ohio Edison Joint Council, 947 F.2d 786, 787 (6th Cir. 1991) and Bakers Union Factory No. 326 v. ITT Cont'l Baking Co., 749 F.2d 350, 351 (6th Cir. 1984). ... But the Arbitrator distinguished those cases as involving instances where the arbitrator failed to follow the terms of the last chance agreement at issue by mitigating the employee's termination (when the agreement clearly called for termination). Instead, the Arbitrator advised that, he "had not ignored the LCA," ... and that the LCA "does not exclude the principle of `just cause.'"... Although the LCA here called for termination, the Arbitrator, after finding "just cause" and related procedural protections remained, found a procedural double jeopardy violation (which he deemed an affirmative defense, not a mitigating factor) when the Company punished Akerman twice for the same conduct. ... This Court need not decide whether that distinction is too fleeting to matter. Perhaps the jump from "defense" to "affirmative defense" was a mistake. Indeed, this Court may have reached a different conclusion, but this Court's "task is not to choose the best interpretation." ...

Finally, Dana argues that the Arbitrator went outside of his authority in considering affirmative defenses because the LCA did not allow for an affirmative defense.... True, but the LCA did not expressly disallow affirmative defenses either. The Company drafted the LCA and could have easily defined the term "legitimacy" to avoid this dispute and foreclose any procedural due process arguments. See Zeon Chemicals, 949 F.3d at 985 ("Had the company clarified two features of this agreement, we do not see how the arbitrator could have plausibly contradicted them.") Given the inartful language, the Court will "leave the parties to what they bargained for." Zeon Chemicals, 949 F.3d at 982. Here, they tasked the Arbitrator with determining the legitimacy of Akerman's discharge. This is precisely what he did. He applied the terms of the LCA (including its "legitimacy" provision) to the facts of Ackerman's discharge. Whether he reached the right outcome is neither here nor there. The parties "bargained for an arbitrator's interpretation of the contract, not a federal judge's." Econ. Linen, 917 F.3d at 513. With all of Dana's arguments met, the Court finds that the Arbitrator did not act outside the scope of his authority and that he was, at a minimum, "arguably construing or applying the contract." Zeon Chemicals, 949 F.3d at 983 (quoting Misco, Inc.,484 U.S. at 38). Given the deferential standard, the Court will not disturb his decision.

Arbitrator Kininmonth's award contains a detailed review of cases discussing the impact of a LCA on an Arbitrator's authority. 

Arbitrator finds Federal Bureau of Prisons failed to establish a BFOQ defense for refusing to assign female staff in an all male prison to ""Dry Cell" and suicide watch duty.

 In his award in  U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Memphis Tennessee  and American Federation of Government Employees, Local 3731, Arbitrator Daniel Kininmonth addresses the balance between the rights of male inmates to bodily privacy and the rights of female staff to be assigned to guard them.

FCI Memphis is an all male, medium security facility. The grievance in issue involved the Bureau of Prisons' decision to exclude female correctional officers (or supplemental staff) from Dry Cell or Suicide Watch. Where an inmate has ingested contraband or concealed contraband in a body cavity, he may be placed in a cell with no toilet, faucet or shower (a dry cell). The inmate is then closely observed "until the inmate has voided the contraband or until sufficient time has elapsed to preclude the possibility that the inmate is concealing contraband ..." In Suicide Watch, the correctional officer continuously watches the inmate to prevent him from harming himself. The grievance arose when female correctional officers were denied the opportunity to handle these assignments. 

The parties raised a variety of issues in support of their respective positions, but one of the issues was the BOP's assertion that its policy of excluding women from these assignments justified by "business necessity" and that the applicable agreement recognized its right to assign work. The union claimed that the exclusion was discriminatory on its face and could only be justified if gender was a Bona Fide Occupational Qualification (BFOQ) for the assignment.  While recognizing that inmates had a legitimate privacy interest, the Union argued: 

Privacy protection directly affects the essence or central mission of prisons.  ...  The Sixth Circuit has uniformly held that "privacy" relates to the essence of prison business. Million v. Warren Cty., Ohio, 2020 U.S. Dist. LEXIS 28000 (S.D. Ohio 2020). Yet, an inmate's right to privacy must be balanced against the legitimate objective of providing equal job opportunities without regard to sex pursuant to Title VII. Griffin v. Michigan Dep't of Corrections, 654 F. Supp. 690, 701 (E.D. Mich. 1982). The courts balance both privacy rights and Title VII. The degree of the balancing depends on the inmate's gender. Occasional and inadvertent observation of unclothed inmates by cross-gender guards is usually tolerated by the courts. This is particularly true of female guard's observing male inmates

After  an extensive review of the case law and legal commentary on this question, Arbitrator Kininmonth concludes that the BOP failed to establish that its position was consistent with a BFOQ defense:

In this case, (1) FCI Memphis has not asserted a factual basis that assigning female staff to "Dry Cell" or "Suicide Watch" would undermine the prison's operation. (2) Admittedly, an inmate's privacy at FCI Memphis is entitled to some protection under the law. However, the inmates in "Dry Cell" and "Suicide Watch" are clothed. Therefore, there is no privacy violation. (3) There are reasonable alternatives to protect the inmate's privacy. If the inmate has the urge to urinate or have a bowel movement in the "Dry Cell," the female staff member can summon a male colleague and temporarily withdraw. The inmate in "Suicide Watch" who needs to urinate or defecate can be provided a towel, blanket or privacy screen in his cell to protect his privacy. FCI Memphis cannot prove the three (3) factors necessary to sustain a "Privacy BFOQ Defense." 

The Arbitrator also considered and rejected the BOP's claims that the grievance was insufficiently specific and untimely.

Update: The Federal Labor Relations Authority denied the Agency's exceptions and upheld Arbitrator Kininmonth's award. 73 FLRA No. 5 (May 26, 2022). The opinion can be found here.

 

Another case rejecting termination of an officer because of prosecutor's unsupported decision not to use them as a witness

A recent post (State Attorney's refusal to use police offer because of Brady concerns found insufficient, without more, to support termination of officer) addressed the issue of a City's termination of a police officer after the prosecuting attorney's office announced it would not use the officer as a witness in any proceeding.

In a case raising a similar issue, the Commonwealth Court of Pennsylvania has affirmed a decision refusing to vacate an arbitrator's award that reinstated a police officer dismissed because the District Attorney's office would not prosecute cases based on the uncorroborated testimony of the officer. Borough of Gettysburg v. International Brotherhood of Teamsters Local 776, Police Labor Organization.  

The City's action took place after it received a letter from the District Attorney's Office confirming its position but requesting that the City not "disseminate this letter or the information contained therein to any other non-law enforcement entity."  At a Loudermill hearing, the officer was advised of the contents of the letter but a copy of the letter was not produced. The officer's employment was subsequently terminated. The matter was grieved and the Arbitrator found no just cause for the termination.

Seeking to vacate the award, the City claimed that it improperly ordered it to reinstate an officer who could not perform the essential duties of his position. Rejecting this position the Commonwealth Court noted:

Here, unlike in SCI-Forest, the Arbitrator did not find Grievant committed misconduct and place restrictions on Grievant as a result thereof. Rather, the Arbitrator opined: “I am unable to address the substantive merits of the Borough’s termination decision in this case, since I find that the Borough failed to provide [] Grievant adequate procedural due process prior to terminating his employment.” ...  In sum, the Arbitrator determined that, since Grievant was not given any basis for his discharge, and therefore no ability to defend himself at the required Loudermill hearing, the Borough “did not have just cause to fire him.”

The Court also rejected the City's claim that it was denied due process because the Arbitrator concluded that it had an obligation under Loudermill to inform the grievant why the DA's Office no longer intended to prosecute cases involving the Grievant. The Court concluded:

Here, the Borough is essentially asking this Court to find that the Borough’s denial of Grievant’s due process rights in not providing the reasons for his dismissal is justified because the Borough could not obtain said information, and for the Arbitrator to base his award on the Borough’s failure to provide said information denied the Borough its due process rights. This Court cannot draw such a conclusion. The Borough chose to discharge Grievant due to a letter for which the underlying basis was unknown. Thus, the Borough put it itself in a situation wherein it could not provide the required information, not the Arbitrator. Accordingly, the Borough’s due process rights were not violated.