No Back Pay Where Reinstated Correctional Officer Failed To Mitigate Damages

David Foriska is a correctional officer working at Allegheny County Jail in Pennsylvania. Foriska was terminated for alleged misconduct, and reinstated on September 16, 2018, pursuant to an arbitrator’s order. The award also provided that Foriska “shall be made whole for any and all losses, including lost overtime opportunities,” and was “entitled to a set off for all reasonable interim earnings and unemployment compensation.” The County challenged the arbitration award in court and did not pay Foriska any back pay. Foriska’s union, Allegheny County Prison Employees Independent Union, demanded another hearing before the Arbitrator to determine the amount of back pay owed.

The parties held a remedy hearing in August 2020. During the hearing, Foriska testified that before his termination, his wife stayed home with their children as the primary caregiver. However, after the County terminated his employment, Foriska and his wife “switched roles,” and he chose to stay at home to care for their children, one of whom has special needs and requires significant attention, while his wife obtained employment outside the home. Foriska testified that following his suspension and discharge in October 2017, he drove for Uber for a short period of time and earned a total of approximately $600. This job ended when he began having issues with his vehicle. He testified there are other jails and prisons near where he lived, but he did not apply to work at any of them and did not make any other attempt to secure employment.

The Arbitrator determined that the County did not owe Foriska any back pay due to his admission that similar work was available, but that he chose not to pursue it for personal financial reasons. Foriska “did what he believed was best for his family. It was most likely reasonable for Foriska to stay home to care for his special needs child in lieu of working at a fast-food restaurant for minimum wage. But this did not absolve Foriska of his clearly established responsibility to mitigate his losses by exercising due diligence by making a bona fide effort to seek similar alternative employment.”

The Union filed a petition to vacate the award as “not rationally derived from the CBA between the parties and violative of public policy.” The Court ruled in favor of the County, finding that the Arbitrator’s award was rationally derived from the CBA: “Because discipline is covered by the CBA, and suspension without pay is a form of discipline, it logically flows that the Arbitrator in this case had the authority to determine the need for back pay and any ‘setoffs’ to which Foriska may be entitled.”

The Court rejected the Union’s argument that the Arbitrator’s award punished Foriska for choosing to be a stay-at-home parent, because it could not point to any law or policy exempting parents of dependent children from their obligation to mitigate damages pursuant to an arbitration award, nor did the Arbitrator require Foriska to accept a lower paying job instead of providing childcare. The Court also rejected the Union’s argument that the Arbitrator’s award incentivized the County not to comply with a reinstatement order, because Foriska’s duty to mitigate damages was an essential component of the Arbitrator’s order that he be reinstated with back pay, and the Arbitrator was authorized to determine the extent of any back pay owed by agreement of the parties. The Union appealed, asserting the same arguments.

The appellate court agreed that the Arbitrator’s back pay award satisfied the essence test, which requires that arbitration awards be rationally derived from the relevant CBA. When the CBA sets no limit on an arbitrator’s remedial powers – like in this case – a back pay award is lawful so long as it does not add to, subtract from, nor modify the terms of the contract. The Arbitrator’s first award satisfies the essence test because the Arbitrator modified Foriska’s termination to a suspension, and ordered back pay, none of which modified the terms of the CBA. The Arbitrator’s remedy award also satisfies the essence test because the CBA did not prevent him from retaining jurisdiction over the remedy, and the CBA covered suspension, discharge, and compensation, all of which encompass the issue of back pay.

The Court also agreed that the Arbitrator’s remedy award did not violate public policy. The Court explained that the Union had the burden to prove that the back pay award (1) implicated a public policy that was “well-defined, dominant, and ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests;” and (2) that the award compelled the County to violate the public policy under the circumstances.

Although the Court agreed with the Union that a public policy exists to protect the rights of parents to make decisions as to the care, custody, and control of their children, this policy was not implicated by the Arbitrator’s remedy award. Foriska’s obligation to mitigate his damages by finding alternate employment had, at best, a very attenuated connection to his rights as a parent. As a result, Foriska was not awarded any back pay.  

Allegheny County Prison Employees Independent Union (ACPEIU) v. Allegheny County, No. 637 C.D. 2021, 2024 WL 1422811 (Commw. Ct. Pa., 2024).

This article appears in the June 2024 issue of our monthly newsletter, Public Safety Labor News.

Also in the June 2024 issue:

  • Chicago Lawfully Disciplined Police Union President, But Unlawfully Called For His Resignation
  • Court Enforces Settlement Agreement Over Firefighters’ Longevity Pay
  • City Wrongly Offered OT Shifts To Patrol Officers Before Patrol Sergeants
  • Trial Court Improperly Dismissed Terminated Police Officer’s Retaliation Claim
  • Firefighters’ Lawsuit Challenging Discipline For Unvaccinated COVID-19 Status Fails
  • City Engaged In Improper Direct Dealing By Providing Officer With Extra Pension Service
  • Legal Holidays Compensable For WV Firefighters
  • Federal Appeals Court Rejects Officer’s Challenge To Placement On Giglio List
  • City Lawfully Refused To Turn Over Documents During Contract Negotiations
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