CA1: Industrial Double Jeopardy only applies to final punishments

Zayas et al v. Bacardi Corporation,  No. 07-1950 (4/18/08).  An employee raised a “double jeopardy” argument in an arbitration – essentially arguing that he had been dismissed after already being punished.  The arbitrator freaked out and didn’t address it.  So, by the time it gets to the First, unlike most arbitration fights, review of the concept is not that deferential.  After concluding that there really isn’t any Court of Appeals precedent, and that this is real “constitutional double jeopardy” Selya holds (citing treatises) that “a second sanction only transgresses industrial double jeopardy principles if the first sanction has become final.”  In this case, the employee had been suspended while the employer investigated things.  Even though the arbitrator found that that suspension was not with just cause, Selya says that was a separate claim which failed because the employer didn’t meet his burden.

Finally, Selya says that just because the arbitrator didn’t explain his rationale, no remand is necessary, because on de novo review, the First could affirm on a rationale that isn’t stated by the arbitrator.