DOUBLE JEOPARDY IN LABOR ARBITRATIONS

Sometimes labor arbitration borrows concepts from criminal jurisprudence. One example is the doctrine of “double jeopardy.”  In discipline cases, arbitrators generally hold that, once an employer has imposed a particular punishment for an offence, the employer cannot thereafter increase the penalty or impose another penalty for the same offense without subjecting the employee to double jeopardy.  United Int’l Investigative Serv., 114 LA 620, 626 (Maxwell, 2000).  The rule is based, not on the Constitution, but on “fundamental fairness,.”  Id.  Similarly, an employer cannot impose more than one punishment and thus treat as two offenses what amounts to the same act.  See Crown Cork & Seal Co., 111 LA 83, 87 (Harris, 1998) (the employer relied on essentially the same evidence to prove the employee’s use of sabotage when its first attempt to discharge the employee for a verbal altercation with another employee was overturned..)[1]  While arbitral double jeopardy appears straightforward enough as a general rule, the outcome of a double jeopardy defense often depends on the particular facts of the case as well as the proclivities of the arbitrator deciding the case.

One issue than often arises is whether the initial penalty was intended to be the final one, and was perceived by the employee as such. [2] The result may depend on whether the employer had made it sufficiently clear that the first action was not the final decision on discipline. Thus, when a transit authority first issued a warning and afterwards discharged a bus driver for engaging in an altercation with a passenger, the arbitrator found that the warning was final action, based in part on the way the employer’s representative had marked the interview sheet, and found that the discharge constituted double jeopardy.  Chicago Transit Authority, 112 LA 713 (Goldstein, 1999).  See also, Gadsden County Board of County Commissioners, 38 LAIS 105, 110 LRP 50875 (Hoffman, 2010) (When the employer stated in a dismissal letter that “You were issued a written reprimand on December 10, 2008” in referring to one of the three incidents on which the employer relied for its discharge decision, the arbitrator found that double jeopardy applied as to the referenced offense).

On the other hand, a suspension with or without pay pending the outcome of an investigation into an event is not seen as final discipline preventing a subsequent discharge following the completion of the investigation.  See City of Coweta, 119 LA 42, 46 (Moore, 2003).

Unquestionably double jeopardy can be a potent defense in a variety of contexts, and should always be raised if there is some evidence to support its application in any given case.

 


[1] Some arbitrators invoke the double jeopardy doctrine when the employer delays too long in imposing discipline. In the author’s opinion, although a form of arbitral due process, this version of the doctrine is more closely related to the “speedy trial” rule than to double jeopardy.

[2] Occasionally the controversy is over whether the initial decision maker had the authority to make a final determination on the penalty.  Compare PPG Industries, Inc.,16 LAIS 3045, 88-2 ARB 8477 (Ruben, 1988) (Management members who initially counseled the grievant had no authority to decide appropriate discipline and thus subsequent written reprimand by authorized decision-maker was not double jeopardy) with Pennwalt Corp., Sharples-Stokes Division, 16 LAIS 3306, 357 AAA 4 (Spilker, 1988) (Where the grievant’s foreman had already verbally reprimanded the grievant for damaging a cabinet and failing to report the damage, the employer’s subsequent suspension of the grievant for three days was double jeopardy)