In a unionized workplace, it can be tricky when an arbitrator—while interpreting a collective-bargaining agreement with the union—second-guesses the employer’s decisions.
For example, what can you do if an arbitrator decides you didn’t have valid grounds to fire an employee, but then you discover another reason to do so? Until recently, you had to reinstate the employee and wait for another problem before trying again to fire the person.
But lately, courts have begun to limit arbitrators’ powers when it comes to reinstating discharged employees. Now, an employer can pay lost wages, then fire someone for a different valid reason, rather than allowing that person to return to work.
Recent case: Cargill Meat Solutions suspended Jose Diaz for allegedly trying to steal meat using a stolen receipt. During his suspension meeting, Diaz got into a fight with a security guard and injured him.
The union filed a grievance, and the arbitrator concluded the company shouldn’t have suspended Diaz for the attempted theft. The arbitrator ordered reinstatement with back pay, saying the fight with the security guard didn’t enter into his decision.
Instead, Cargill paid Diaz for the time off and fired him again, retroactive to the time of the fight. The 3rd Circuit ruled in the employer’s favor. By paying him for the suspension period, Cargill had complied with the arbitrator’s order. Firing him on separate grounds was then perfectly legal. (United Food & Commercial Workers Union v. Excel Corporation, No. 05-2091, 3rd Cir., 2006)
Final tip: Remember, the best policy is to treat employees equally. Filing a union grievance doesn’t give employees carte blanche to violate other rules. In fact, if you don’t punish the rule-breaker, other employees may use that against you later.
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