Unfairly dismissed, unfairly reinstated

September 4, 2009 8:16 AM

My father just won an arbitration hearing against his ex-employer. They were supposed to grant him retirement leave -- but they've found a way to force him to return to work. Help!

My father has worked in the meat department of a large grocery store chain for 20+ years, and is in a union. Last year he complained to the union about some management policies that he thought were illegal; he went to the manager first, and the guy stupidly threatened to "get" him if he went ahead and lodged the complaint. Sure enough, shortly afterward dad was fired -- they alleged that he had made offensive jokes and threats of violence to co-workers. My dad has a spotless record going back decades; he told me that the list of charges was purely invented, and I believe him.

My father was within 11 months of retiring with full benefits when they fired him. He suffers from degenerative arthritis, which was slowly making it less possible for him to perform the full range of his duties, and was practically dragging himself across the finish line to receive his benefits. This had been a source of frustration to the company, but since dad was in the union, they couldn't do anything about it.

Since he was fired, he has been through a long arbitration process to challenge the decision -- over a year. He is now well past the time at which he would have normally retired. The ruling was finally delivered -- unsurprisingly, the arbitrators found that the termination was wrongful. Dad was owed his full retirement package (they declined to grant him any back-pay for the months he missed, however). They also ruled that the company would have to give dad his job back if he wanted it, but of course he doesn't -- he told me that he'd love to take it back out of spite, but that physically he just doesn't think he can hack it at all anymore.

Well, today we found out that the store is requiring him to work 520 more hours before he can qualify for retirement. I'm sure they're just buying time, counting on finding a way to keep him from completing the stint or finding some way to weasel out of giving him his retirement benefits.

Dad is looking into all this with the union, but they're impossibly slow in dealing with these sorts of things, and he could wind up working again as soon as Monday. Standing for periods of more than an hour cause him incredible pain and swelling. The medication that he has to take to control this have bad side effects, and make it less safe for him to be working around saws, knives, and other tools, especially in cold temperatures. I want to know what he can do to protect himself NOW, and what he should look out for while he's on the job. But basically any advice would help.

posted by Julia F***ing Sugarbaker to work & money (18 comments total)

Should have mentioned, the state is Arizona.
posted by Julia F***ing Sugarbaker at 8:18 AM on September 4

You really need to talk to a lawyer.
posted by tristeza at 8:20 AM on September 4 [2 favorites]

I will try to get dad to talk to a lawyer right away, but let's proceed assuming the worst case scenario: that everyone is on vacation for the holiday weekend and that he won't find out anything useful before he begins work next week.
posted by Julia F***ing Sugarbaker at 8:23 AM on September 4

Do it now! And go to the union in person, reminding them that Monday is Labor Day. They need to stand up for their brother.
posted by Carol Anne at 8:24 AM on September 4

This isn't a question for Ask MeFi -- your dad needs a lawyer, immediately. I'd also -strongly- suggest having a mod remove this, lest it bite you when you go to court.
posted by ellF at 8:28 AM on September 4 [1 favorite]

The company is basically trying to reinterpret the terms of the ruling. The union is dealing with the case already, but until a decision is reached, Dad is going to have to try and satisfy the company's demands -- that way he'll be covered if it winds up going in their favor.

Another reason he has to start work ASAP: they are demanding that he works 520 hours by the end of the year. If it turns out that this can't be avoided, he basically needs to start right away in order to meet the deadline.

As of today, Dad is convinced that a lawyer can't help in these matters, at least not yet. He says that because of Arizona's laws it has to happen through the union. I'm not sure that's true, but I'm working on finding out.
posted by Julia F***ing Sugarbaker at 8:40 AM on September 4

Get a lawyer. Don't rely on metafilter.
posted by dfriedman at 8:46 AM on September 4 [2 favorites]

Your union will have a rep available. Can't speak to your union, but there's always a union rep available for any large sized union. Talk to them. There should probably be one in the store, too.

If the union is on it, bide your time. So he works for a couple weeks, and then in the followup aftermath lawsuit/arbitration he brings home a couple thousand extra $$ for the hassle.

Let the union do its job, they're usually good at it.

Disclosure: My mom is one of the local union reps for the AFL-CIO
posted by TomMelee at 8:50 AM on September 4

N'thing talking to the union.

But also wanted to mention, if he is physically disabled (in so much pain he can't work), they probably have to either assign him to a job he can do, or else just pay him on disability. The whole "520 more hours" thing sounds incredibly shady and illegal anyway.
posted by drjimmy11 at 9:10 AM on September 4

I know of no law that requires your dad to go through a union to deal with legal issues. I am not a lawyer. Of course, if there were such a law, any employment lawyer would know it immediately and you would have your question answered. So, go get a lawyer. As a matter of practice, it's hedging your bets. Even if the union does it's job perfectly, it won't hurt to have a second opinion. If the union doesn't do it's job perfectly, it'll avoid your dad being in a position where he loses his retirement or has to work another year or something more perverse.
posted by saeculorum at 9:11 AM on September 4

The ruling was finally delivered -- unsurprisingly, the arbitrators found that the termination was wrongful. Dad was owed his full retirement package (they declined to grant him any back-pay for the months he missed, however). They also ruled that the company would have to give dad his job back if he wanted it.

If that is an accurate summary of the actual legal ruling you already have in your favor... any two-bit lawyer should be able to read that and give you decent advice, even if you can't find your own or the best lawyer.

And second: yes, union rep. That's what they're for!
posted by rokusan at 9:17 AM on September 4

Can you get ahold of the arbitrators? I could see how a judge might have the power to rule a company in contempt and issue a temporary injunction, were this case to have been decided by a judge; perhaps, in this situation, the deciding arbitrators would have the same power?

Your profile says you live in Atlanta. Using the phrase "labor & employment" (be sure to include the quotes so it's a phrase search), Google for nearby attorneys, and explain the problem. Not all attorneys leave by lunchtime the day before Labor Day, especially given that the recession hit the legal profession pretty hard and, resultingly, whoever's left is oft a real workhorse.

Finally, if they're demanding 520 hours before year's end, just as an FYI, this tells me that there's 96 business days left, which would mean about a 5.4-hour day, roughly. Yeah, not what you want your father to be doing, I agree – just offering that as a datapoint.

You said that they "found a way" to require he return to work before retirement – yet, looking over your questions and follow-ups, I don't see explained what rationale they're using. What are they using to somehow justify this?
posted by WCityMike at 9:28 AM on September 4

Oh, and when looking for a lawyer, check out martindale.com -- it's one of the more established, less fly-by-night law firm directories. But when looking for firms, make sure you check into it and make sure that they're not management-side labor & employment -- which a lot of firms specialize in, as it's more profitable.
posted by WCityMike at 9:34 AM on September 4 [2 favorites]

My father had a similar thing happen to him.*

Talk to both a lawyer and the union, ASAP.

Offhand, if you can't get any advice before he is to return to work, I'd say call in sick. But you'll have to evaluate whether that makes any sense or not.

But really, you need to use the tools you have available to you - get actual legal advice pertinent to your locale.**


*(after 28 years, he was hurt on the job and they fired him and denied his pension. The union went to bat for him and restored his pension and got a nice settlement, to boot. Afterward the company demanded that he return to work, the union told the company to piss up a rope, and also send a check. In the end, they did both).

** in my dad's case, this was Minnesota.
posted by Pogo_Fuzzybutt at 9:38 AM on September 4

Employment and Labor Union lawyer here. First, do not assume the worst. Act immediately to get your situation taken fixed.

First, do not listen to anything anyone else has written on this thread. Second, I am not your attorney, but I can advise you to find an attorney or union rep who can help you in Arizona.

Next, determine who can help you the most the quickest. Was your father represented by an attorney at the arbitration? Unions often hire lawyers to handle the arbitration part of the case. If so, have your father contact the attorney immediately. Like 5 minutes ago. Contact the union steward as well.

Next, look at the Collective Bargaining Agreement. It will tell you if you can get a private attorney or if you need the union to sign off on the private attorney. The Collective Bargaining Agreement will usually have an article entitled "representation" which controls in these matters. Comments upthread on this subject are not to be listened to. They will lead you wrong.

Finally, if you can get an attorney, go to the National Employment Lawyers Association website and find a lawyer. They will be able to help you.
posted by Ironmouth at 10:02 AM on September 4 [11 favorites]

Get thee to a union rep.
posted by nestor_makhno at 2:36 PM on September 4

The union should be providing your father with a lawyer. But he surely needs one NOW!
posted by 6:1 at 5:20 PM on September 4

Follow Ironmouth's advice (going back to the lawyer who handled the arbitration).
Also, consider taking it to a higher level in the union- regional, national or international reps.
Many arbitrator's are reasonable and accessible- it might be worth sending the arbitrator a query saying the company has interpreted your ruling this way, is this within the bounds of your ruling.

If this is the union, contact several of the people on this page (ie not just his store rep) and let them know the situation.
posted by cushie at 10:18 PM on September 4