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Legal Memorandum: Private-Sector Employee's Termination Reversal

Issue: What arbitration decisions reverse the termination of a private-sector employee for participation in a strike or slowdown?

Area of Law: Alternative Dispute Resolution, Employee Law
Keywords: Termination of a private-sector employee; Reversal; Strike or slowdown
Jurisdiction: Federal
Cited Cases: None
Cited Statutes: None
Date: 11/01/2004

In 16 arbitration decisions, the arbitrator reduced or overturned the employee’s discharge for involvement in a work stoppage or slowdown.

In Dunlop Tire Corp. and United Rubber Workers of Am., AFL-CIO-CLC, Local 915, 91‑2 Lab. Arb. Awards (CCH) ¶ 8532 (1991), for example, the arbitrator awarded reinstatement of the grievant, but without back pay, for his involvement in a work slowdown.  The evidence showed that although he had in fact engaged in a work slowdown, he did not encourage others to do so.  Id. at 5615.  Further, it appeared that others had engaged in a slowdown at the same time.  Id. at 5616.  And the grievant’s stellar 18-year tenure with the company mitigated in his favor.  Id.  Reducing the penalty from discharge to reinstatement but without back pay, the arbitrator reasoned that the parties’ CBA allowed suspension or discharge for participation in a work slowdown.  Id.

The employer has the burden of proving that the grievant’s termination was for just cause or is otherwise sustainable under the contract, and when it fails in this burden of proof, the arbitrator will not uphold termination.  See Champlain Cable Corp. and Teamsters Local Union No. 597, 108 Lab. Arb. Rep. (BNA) 449, 97-2 Lab. Arb. Awards (CCH) ¶ 3239, at 4422 (1997) (deciding that because “[t]he discharge of an employee cannot rest upon mere suspicion” of encouraging other employees to walk of the job, the grievant was to be reinstated and made whole); Pepsi-Cola Bottling Co. and Int’l Bhd. of Teamsters, Local 848, 97‑1 […]

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