February 1999 Legal Update

LEGAL UPDATE
By: Louis D. Stober, Jr., Esq.
CSEA REGIONAL ATTORNEY

WHEN IS A TERMINATION NOT A TERMINATION?

Under Section 10 of the Collective Bargaining Agreement, the County has the right to discipline employees for misconduct or incompetency. The penalties that can be imposed range from a reprimand to termination. In the past, the County has engaged in a practice of suspending an employee who has been arrested and then, once the criminal matter is over, either terminating the employee or reinstating the employee, depending on the outcome of the criminal matter.

Recently, I handled a case of an employee who was suspended indefinitely pending the outcome of his criminal case. It took over three years for the criminal matter to be resolved and during this time, the County refused to arbitrate the suspension. When the criminal charges against the employee were dropped by the District Attorney, the County terminated the employee rather than returning the employee to work. CSEA took the case to arbitration and a full hearing was held on the alleged "criminal conduct" of the employee.

At the arbitration, I proved the County's witnesses were unreliable and that their testimony was incredible. As a result, the Arbitrator held the County had not established the majority of the charges (including all of the "criminal charges") against the employee. The employee was ordered reinstated to his prior position and awarded three years of back pay plus the overtime he would have earned but for the suspension and termination.

The arbitrator was particularly critical of the County's delay in taking this case to arbitration and in leaving the employee in a void for this extended period, especially after the District Attorney had dropped the charges against the employee.

The lesson to be learned is that if you are in the right, and even if it seems that it will take years to resolve the case, your Union will stand by you. When criminal charges are involved in the discipline expect delays in getting to arbitration, however, once the arbitration is held, you will be made whole if the County cannot prove you engaged in misconduct or incompetency.

So, if you find yourself served with an indefinite suspension, make every effort to get your evidence together immediately because it will take time to go to arbitration.