‘Innocent until proven guilty’ — not the other way around

April 22, 2016

Employment Law BookWhere a worker resigned solely to avoid being terminated, an arbitrator ruled that management’s due process lapse proved fatal to its charge that he was guilty of a firing offense. A company client, the U.S. State Department, notified management that a security officer rehired after a four-year absence had an arrest record in the National Crime Information Center database.

When confronted, the employee acknowledged that he had been questioned about the theft of government property from a Marine Corps base where he previously worked but insisted that he was not arrested.

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His claim was backed up by a letter from the Department of the Navy to the union which stated that the grievant was neither arrested nor detained by the Marine Corps Criminal Investigation Division and that no other action was being considered.

Nevertheless, management offered him a choice: resign or be terminated. He chose resignation, emphasizing that he did so under duress, and filed a grievance.

The arbitrator sustained the grievance, concluding that the employee neither voluntarily resigned nor was terminated for just cause.

Holding that the “arrest” notation, standing alone, did not establish the grievant’s guilt, the arbitrator found telling the admission by the company’s vice president of operations that he did not conduct any additional investigation but, rather, waited for the grievant to provide proof of innocence.

That decision, “is tantamount to abandoning the Bill of Rights: ‘Innocent until proven guilty,’” held the arbitrator, and constituted a fatal procedural flaw that warranted overturning the company’s action.

The company was directed to rehire the grievant and make him whole for all losses.

Inter-Con Security Systems Inc. et al., 44 LAIS 104, 2015 WL 7422769