Appellate Court Says Employee Can Be Fired After Reinstatement

December 12, 2006 ( - The 3rd US Circuit Court of Appeals ruled that a company can fire an employee for a second time even after it is ordered to reinstate the worker, if the firing is the result of an earlier incident that had not been resolved.

The appeals court upheld the district court decision, which held a company was permitted to fire an employee a second time for his alleged abusive and violent behavior that an arbitrator in the dispute refused to consider.

After Excel Corporation – now Cargill Meat Solutions Corp. – fired workers Jose Diaz and Sandra Diaz in November 2002 for attempting to steal meat from the company the month before by using a stolen receipt, Jose Diaz allegedly attacked a security guard at the company, breaking two of his ribs, according to court documents.

An arbitrator settled the dispute between Excel and the United Food and Commercial Workers union representing the two workers. The arbitrator ruled that the “company did not establish just cause to support termination” and ordered that both workers should be reinstated to their positions with back pay.

According to the opinion, the arbitrator refused to consider the company’s contention that actions of Jose Diaz after he was fired warranted his termination and focused only on whether Excel had just cause to fire the two workers in the first place.

The company then reinstated Sandra Diaz in June 2004, but sent a letter to Jose Diaz saying that because his post-termination conduct did not play a part in the arbitrator’s deliberation, Excel was terminating his employment based on those grounds. The company said that Jose Diaz would receive back pay from the time that he was suspended pending investigation of the attempted theft through the date of his termination in November 1, 2002.

The move by Excel prompted the union to file a suit under the Labor Management Relations Act, to enforce the award by the arbitrator and also challenged the company’s later termination of Jose Diaz.

The union argued that the company evaded the “arbitrator’s award by failing to reinstate Jose and terminating him a second time for allegedly attacking the security guard.”

However, the appeals court said in its opinion that there is “no reason why the Company should not have been required to allow Jose to appear at the work site in order to effect a reinstatement,” and that it would have been an “exercise in futility” to do so.

For the full opinion of the appeals court go  here .