On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 04-cv-01514) District Judge: Honorable Edwin M. Kosik.
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Submitted Under Third Circuit LAR 34.1(a) November 7, 2006
Before: SLOVITER, CHAGARES, and NYGAARD, Circuit Judges.
The issue on appeal is whether an employer has satisfied an arbitrator's award when it pays the employee back wages and simultaneously terminates the employee a second time for conduct independent of the first termination.*fn1 This is a novel issue for this court.
The District Court held that the employee must be reinstated pursuant to the initial arbitral award but that the employer was free to terminate the employee a second time. The employee appeals through his Union. The employer cross appeals. We hold that, given the circumstances of this case, the employer's payment of back pay acted as an effective reinstatement and the employer was free to terminate the employee a second time based on independent grounds, pending a second arbitration.
The material facts of this case are not in dispute. On October 31, 2002, the employer, Excel Corporation, suspended Jose Diaz and Sandra Diaz pending an investigation into the charge that they had attempted to steal meat from Excel by use of a stolen receipt.*fn2 On November 1, 2002, Excel discharged both Jose and Sandra for "attempting to steal Excel Company meat on the night of October 29th." App. at 63-64. When informed of his termination, Jose allegedly reacted violently by attacking an Excel security guard, breaking two of his ribs.
The employees' Union, United Food and Commercial Workers, Local 1776 (the "Union"), grieved the terminations by letter dated November 4, 2002. Shawn Mott, Excel's Human Resources Manager, responded to the grievance on November 30, 2002 as follows:
[Jose and Sandra] were terminated for their attempted unauthorized removal of Excel meat on the night of October 29th. Our security guard, Bill Rotwa [sic], identified [Jose and Sandra] as the two individuals who attempted to use a stolen receipt to claim meat that was not theirs.
As well, [Jose and Sandra's] behavior on November 1 when meeting with me to discuss this matter were [sic] unacceptable with [Jose] hitting a security guard in my office resulting in two cracked ribs.
The parties selected an arbitrator to hear the dispute. At the conclusion of the arbitration proceeding, the arbitrator issued his award on May 20, 2004. The arbitrator ruled:
The grievance filed on behalf of Jose Diaz and Sandra Diaz is sustained. Based upon the testimony and evidence presented in this case, it is found that the Company did not establish just cause to support termination of the Grievants for "attempting to steal Excel company meat on the night of October 29th." Consequently, the Grievants shall be reinstated to ...