“You can fool all people some of the time and some people all the time.” “Is truth really an issue with Falcone”? – Riverside politics since before we were born
AS THE PAGE TURNS from 2023 to an election year in 2024, Thirty Miles examines the local candidates who would like to lead Riverside for the next 4 years. We start in Ward One – our ward – which now includes Downtown, the Wood Streets, the Eastside, and the Northside. The Grand neighborhood was unceremoniously dumped from Ward One during the decennial redistricting process by current Ward 1 Councilmember Erin Edwards in favor of the Eastside – we hear because they refused to believe her that the homelessness problem in the riverbed was clearly getting better. The nerve of those pesky constituents having different opinions!
Anyway, in keeping with the holiday theme: out with the old and in with the new! And that includes Ms. Edwards, who would later – in a surprise move that no one saw coming – announce last Summer that she would not be running for re-election to the City Council. We here at 30 Miles waited with dread as to which intersectionality candidate with the most (or is it least?) points on the wheel of power & privilege Erin would foist upon us as her handpicked successor. And we waited. And waited. And then we took a nap. Zzzzzzzzzzzzz…..in other words, it was kind of like waiting for her to produce her resume back in 2019 when she first ran for Council.
Riverside Marxist/Socialists ideal political candidate: a poor, old, big-boned, homeless, transsexual, undocumented, disabled, dark-skinned, lesbian sociopath, who doesn’t speak a lick of English and is off their meds. Someone I’m sure you all could identify with!
Finally, when we just about couldn’t take any more of the waiting, a candidate arrived in the form of Phil Falcone(y), a former aide to Mayor Patricia Lock-Dawson, who from what we can tell is about the least oppressed person in Riverside according the Intersectionality Olympics competition guide. Something didn’t quite add up.
Phil Falcone(y): Perhaps there’s some neuro-diversity or mental health issues the kid’s hiding?
It wasn’t his ideology that confused us. He’s 100% aligned with our current Mayor in making sure City Hall’s top priorities – painting murals, flying the right flags, handing out proclamations – are being taken care of. He believes showing more compassion and offering more gifts (and less consequences) to the City’s homeless population and criminals will eventually lead them to becoming productive citizens. And he believes that taking care of our City public employee unions in order to keep morale sky-high is more important than providing services – fixing streets, trimming trees, processing permits – to residents and businesses.
Heck he was even endorsed by the Marxist/socialist front Run For Something. In other words, he stands for almost exactly the opposite of just about everything we at 30 Miles think good government is. We believe making independent judgments based upon critical reasoning skills in order to improve the quality-of-life of the average constituent here should be the focus…BUT WHAT THE HECK DO WE KNOW!?
Runforsomething.net motto: get’em while they’re young and don’t know any better, aka Phil Falcone(y)
Then it dawned on us in a rare moment of clarity that only arrives during a near death experience (like a rotten City-owned tree nearly falling on our house): Mr. Falcone(y), backed by the political elite of Riverside, was the Good ‘Ole Boys’ attempt to co-opt the woke movement – a fake, a sham…a PHONEY. At least Councilwoman Edwards was a true believer in her Marxist/socialist ideology: we can almost respect that; well, if it wasn’t for the fact that if played out it would destroy the State and Country. 25-year-old Phil, on the other hand, and in our experience, will pretty much say anything to anyone that he thinks will get him elected (including stretttttttttttttching the truth as it conveniences him), so that the game continues here in Riverside: special interests scratching each other’s backs to the detriment of the general public. Tails they win; heads you lose. Meet the new boss; same as the old boss!
One of our neighbors got a close up of this rotten cyprus tree during a recent wind storm: If only we had money for tree trimming, or better, tree removal!
We remembered young Phil from his last run for Riverside City Council in 2019. Fresh off an internship with former Mayor Rusty Bailey, the then 21-year-old was well spoken and impeccably manicured, but with a sense of entitlement towards the position that was only dwarfed by the complete lack of self-awareness that he wasn’t experienced enough to lead nor be effective in the role. Ah …the long-term effects of raising an entire generation of participation trophy winners. With 10 years or more in the real world we figured perhaps he might someday be ready for local office. We wished him well on his journey, as did 80% of Ward 1 voters, who chose the two older candidates to advance in the run-off election that year.
But alas, Falcone(y) is now back, and only 4 years later, and not much different we surmise from before. But for one difference: the backing of our current Mayor Patricia Lock-Dawson and her cadre of political elites. So we at Thirty Miles, semi-retired now with nothing much to do but watch trees fall from our front window, decided to find out what Phil Falcone(y) has been up to recently and inform our faithful followers. And what we found out was, to say the least, interesting. Interesting as to how the Old Boy network chooses their proteges and grooms them for their future use: a symbiotic tale of cronyism at its finest, and all with our money! But we drank, smoked, and gambled too much over New Years, and we need a nap. Look forward to “Phoney Falcone(y) – Part 2” coming soon! THE SUSPENSE!
Young Falcone(y) sings about b______y? Fill in the blank. (Hint: it rhymes with “phoney”)
TMC, RATED RIVERSIDE REGIONAL COUNTIES MOST EVERYTHING, INACCURATE, RACIST, A.K.A “THIRTY MILES OF CR-P,” RACIST, “LATINO WHITE SUPREMACIST SITE,” “SITE IS A JOKE,” “RACIST,” “SCANDALOUS,” “NEGATIVE,” DID WE MENTIONED WE HAVE BEEN LABELED RACIST?, “WARPED,” “RAUNCHY,” “LOW CLASS,” “VISIONS OF GRANDEUR,” “FULL OF B.S.,” “REPREHENSIBLE,” “IGNORANT,” “MISGUIDED,” “BULLYISH,” “INDECENT,” “REPUGNANT,””IMMORAL,” “FILTHY,” “VILE,” “SICK,” “PERVERTED,” “DEFAMATORY,” “STUPID,” “PATHETIC,” “DESPICABLE,” “DISAPPOINTING,” “BELOW THE BELT,” “A NEW LOW,” “SHOCKING,” “OFFENSIVE,” “OBNOXIOUS,” “INAPPROPRIATE,” “HURTFUL,” “MEAN SPIRITED,” “DISTASTEFUL,” “EMBARRASSING,” HORRIFFIC,” “SLANDEROUS” “FIT TO BE VIEWED FROM THE REAR” AND MEZZSPELLED, “MISSPELLED” AND “OPINIONATED” BLOG SITE! YES WE ADMIT WE OUR ALL OF THAT AND MORE, WHICH IN CURRENT TERMS IS KNOWN AS “UNPOLITICALLY CORRECT.” TEMPORARILY BLOCKED BY THE CITY OF RIVERSIDE AT PUBLIC ACCESS SITES WITHIN THE CITY, THEN UNBLOCKED. I GUESS YOU CANNOT DO THAT ACCORDING TO THE ACLU. BUT IT LOOKS LIKE WE CANNOT TRUST THE ACLU THESE DAYS ANYWAY! RATED ONE STAR OUT OF FIVE IN TERMS OF COMMUNITY APPROVAL RATINGS.. … AGAIN, THANK YOU COMMUNITY OF RIVERSIDE AND THE CITY OF RIVERSIDE EMPLOYEE’S FOR YOUR SUPPORT! CONTACT US: thirtymilescorruption@hotmail.com
IG
Javier Moreno
TMC: Thirty Miles of Corruption 
I tried to post on the web, but the system wouldn’t let me (it’s an issue on my end).
I’m in Ward 3, and we have two very reasonable candidates running for the seat. I have met them both, and we featured interviews with them our podcast. I thought I would drop you a note, with the link, in case you wanted to hear what they had to say.
https://podcasters.spotify.com/pod/show/jana-cheney/episodes/Be-The-Change-You-Want-To-See-e2a0t7b?fbclid=IwAR2Qr3xkNuvOppHzHbVBiK5HNOZT_n5bWwY72_vg95Inkf-7haJ5MDMhl88
Type to you later,
Mark, Sr.
MARK R. ROOT PRODUCTIONS
6921 MALIBU DRIVE
RIVERSIDE, CA 92504-2049
MOBILE: 310.909.3255
http://www.markroot.comhttp://www.markroot.com
Aaaah yes, business as usual. Nothing to see here, move along, move along. After living there for over 33 years, it’s why my wife and I left the city of Riverside in 2017. Just couldn’t take the corruption anymore.
Phil the Shill !!!
ARBITRATOR’S FINDINGS, AND CONCLUSIONS It is found by the Arbitrator that the City has
f a i l e d to show by a preponderance of the evidence that the
Grievant, Christopher Naron was discharged with Just Cause. The grievance must be sustained and termination
from employment overturned. As remedy, the Grievant is ordered to be made whole by being reinstated to his
position as a Firefighter, and voluntary transfer to 8
•
another station, with compensation for lost wages and benefits from the date of his termination of employment.
The Arbitrator finds the evidence presents a scenario
where a probationary Firefighter V. Gibby, was struggling with learning and performance of his job tasks. He was
evaluated by job performance Staff Officers as not meeting standards of satisfactory in his 3 month probationary test/evaluation and suggested for an extended probationary period by his immediate supervisor, Captain Fenske.
Next, a few days before V. Gibby’s 6th month performance test/evaluation, V. Gibby’s father, Tom Gibby,
(hereinafter, I. Gibby), approached the Chief Michael Moore during a luncheon get together at a car race event and declared his son Vincent Gibby, a probationary
Firefighter, was being harassed and abused by the Crew at Station 8. After a private discussion between the two, Moore requested that I. Gibby put his complaint in writing and send it to him as soon as possible. The complaint was promptly received by Moore who forwarded it to Deputy
Chief Semper, who then assigned two command s t a f f level
Officers, to conduct an Internal Affairs investigation. The Arbitrator concurs with the opinion of Counsel
for the Grievant who adduces from the record that
the investigation was seriously lacking through the use of
improper interviewing techniques such as leading questions 9
•
and by not including an interview of I. Gibby. Similar opinion is concurred with when it is noted that 3months
passed between the first and second I.A.
interview with the Grievant, and approximately six months passed until
November, 2018, when the Grievant was terminated.
Several mis-steps by Fire Chief Moore are
found when staying personally involved in the grievance as it
proceeded, including his presence in the Skelly Hearing, offering the Grievant could keep his job if he admitted to
the Dishonesty charge, allowing significant delay in processing the grievance matter, and then signing the termination notice. These and other mistakes are considered by the undersigned as an abuse of discretion by
the Fire Chief and other Department Management.
It is also found by the undersigned Third
Party Arbitrator that the charge of dishonesty against the
Grievant is not justified in evidence but rather,
Management in the form of the Chief, through attempt to coerce the Grievant to admit to dishonesty in his dealings
with the IA Investigators in order to keep his job. The same tactics were utilized when the Human Resource
Director was involved in the
internal investigation and implied that the Grievant would not lose his job if he
admitted to dishonesty. Both suggestions were declined by the Grievant who declared he had not lied about using a
10
(non-existant) social meeting account he allegedly used to
“stalk” V. Gibby on his wife’s social media accounts, nor did he lie to the I.A. Investigators about his not
producing the psychological test.
Also found unsupported in substantial evidence was
the allegation that the City claims the Grievant produced and placed a psychological test on V. Gibby’s desk. This is determined to be inadequately supported by evidence
including the testimony of a hand writing expert when he could not conclude with certainly that any of those with whom the handwriting on the test materials was compared, Frenske, Fausto, Naron or V. Gibby.
For these and other reasons, the Grievance is sustained and termination from employment of the Grievant
overturned.
Award
The City failed to prove by a preponderance of the evidence that the Grievant was terminated with Just Cause, and it is ordered that the Grievant be made whole by being reinstated to his position classification of Firefighter and allowed voluntary transfer to another Fire Station.
It is also ordered that the Grievant be compensated for all lost wages and benefits since his termination on November 29, 2018, until he is reinstated to another position as a Firefighter.
August 8, 2020
1
In the Matter of Arbitration
between
CITY OF RIVERSIDE, CALIFORNIA )
)
)
and )
)
) Christopher Naron
) Termination Grievance
CHRISTOPHER NARON )
Before: Robert B. Hoffman, Arbitrator
Appearances:
For the Grievant: Saku E. Ethir, Esq.
For the City: Brandon S, Mercer, Esq.
Hearing Dates: November 15 and 16, 2022
Virtual Hearing – via Zoom
Briefs Filed By/Hearing Closed: January 19, 2023
Decision and Award Date Issued: February 6, 2023
DECISION AND AWARD
I. INTRODUCTION
The CITY OF RIVERSIDE, CALIFORNIA (“the City”) terminated CHRISTOPHER
NARON (“the grievant”) by a “Notice of Intent to Terminate Reinstatement and Employment”
for his refusing to submit to a Live Scan.1 An arbitrator previously ruled in a prior termination
involving the grievant’s alleged misconduct that “the grievant is ordered to be made whole by
1 “’Live Scan” is inkless electronic fingerprinting. The fingerprints are electronically transmitted to the Department
of Justice for completion of a criminal record check.” my.ca.gov.
2
being reinstated to his positions as a Firefighter . . . and compensated for all lost wages and
benefits.” The grievant maintains that the City improperly would not honor the former arbitrator’s
award to reinstate him, unless he first submitted to the Live Scan.
At issue is whether the city has proven just cause per the Memorandum of Understanding
(“MOU”) between the City and The Riverside Firefighters Association, (“the Union”) to terminate
the grievant under the City’s Letter of Intent; if not, what shall be the proper remedy?
II. FACTS
The grievant began his employment with the City and its Fire Department (“the Department”)
in or about May, 2007 as a firefighter. During the application process, before he was hired, he
participated in a Live Scan. He did one more Live Scan when the Department later assigned him
as an arson investigator with authority to carry a firearm, in 2015 or 2016. He testified as to why
a Live Scan occurred at that time: “. . . because I would be carrying and issued a firearm by the
Riverside Police Department, I would have to abide by their rules . . . they require their officers to
go through to carry that firearm.” He was not an arson investigation at the time of his termination,
and, thus, did not carry a firearm.2 He also held the position of Engineer for five or six years.
On November 29, 2018, the City terminated the grievant from his position of firefighter for
misconduct. The grievant appealed through the MOU grievance procedure. An arbitration hearing
before Arbitrator John Perone lasted seven days. Then, on August 8, 2020, Arbitrator Perone
issued an Award, as follows:
The City failed to show by a preponderance of evidence that the Grievant was terminated with
Just Cause, and it is ordered that the Grievant be made whole by being reinstated to his position
as a Firefighter, and allowed voluntary transfer to another station.
It is also ordered that the Grievant be compensated for all lost wages and benefits since his
termination on November 29, 2018, until he is reinstated to another position as a firefighter.
2 The Police Officer’s Standards and Training (“POST”) required live scans for officers carrying firearms.
3
Not having been contacted by the City after this Award, on August 19, 2022, Naron’s counsel,
Saku Ethir (“Ethir”) emailed City Attorney Brandon Mercer ( “Mercer”): “It is our expectation the
City will reinstate him as a City employee/firefighter, which includes, but is not limited to,
reinstatement of his wages and benefits, effective August 10, 2020.” Mercer replied eight days
later that “payroll is working on back pay and benefits issue. Please have Chris contact Rene
Goldman . . . to facilitate his physical return to work.”
Ethir then emailed Goldman to find out what information she needed to “facilitate his physical
return.” On August 31, 2020 Goldman emailed that that “based on your concern” she assigned
HR Analyst Amalia Perez for the grievant’s “boarding/return to work.” Goldman then added:
“Payroll is currently working on a backpay calculation, and Mr. Naron can return to payroll going
forward once that process is complete. Amalia is aware that his return should be expedited.”
[Emphasis added]
Naron’s Counsel Ethir then began to express concern with the City not expediting his
reinstatement and paying him his back pay. She emailed Goldman on September 1, 2022 about an
email she received from Goldman on August 31:
You made the statement “… Naron can return to payroll going forward once that process is
complete.” That’s not how it works. Naron will be placed on payroll retroactively effective the
date of Mr. Perone’s decision, and will receive compensation in the form of wages and benefits
for every day since his date of termination through the date of his physical return to work and
moving forward.. . . it has already been 3 weeks and the City has failed to take appropriate and
necessary action. In fact, Ms. Perez has still not reached out to Mr. Naron.
The City first demanded in emails during September 2020 that the grievant needed to do a
Live Scan. Only then, and with other certifications that needed to be updated, could he be
considered by the City as “officially reinstated.” Naron’s counsel responded: “You say, ‘officially
reinstated’ as opposed to what ‘unofficially reinstated?’ The Arbitrator’s Award requires Naron to
be reinstated. Again, the Arbitrator makes no qualification of officially vs unofficially.” And as
4
for the Live Scan: ”The Arbitrator’s Award regarding reinstatement, and being made whole, did
not come with a qualification that Naron first needed to pass a live scan, complete a physical, and
complete an on boarding process with the city.”
With the Live Scan Scheduled for September 30, 2020, Ethir emailed the City: “He will
however only be participating in those tests which he would have been required to participate in
had he not been terminated (i.e. the yearly physical examination. . . .“) She objected to any physical
test that would be given to a “new hire, as he is not a new hire nor should he be treated and/or
assessed as one…. the City is required to put Firefighter Naron back in the position he would have
been had he not been terminated.” As such, Naron cancelled the Live Scan scheduled portion.
In October 2020 Naron’s attorney asked the City if her client was placed back on payroll.
City attorney Mercer answered that “Naron is not in the payroll system because he has not
complied with live scan. The live scan policy applies to all employees, prospective employees, and
volunteers. Once Naron has his live scan processed, then an onboarding date and time will be
scheduled and Naron will be officially on the City’s payroll.”
Naron’s attorney responded on October 19, 2020:
With respect to the City’s position on the Live Scan. Read Perone’s decision Brandon, it says
nothing about a Live Scan. . . . . Was this a Live Scan condition of reinstatement in your
arguments at Hearing or in the City’s Post Hearing Brief? In an email from you dated
September 29, 2020, . . . you state as follows: “As a practical matter, Naron fell off of the
Live Scan notifications when he was terminated.” This statement is at best inaccurate.
Attached is an email you produced to me during the Naron Hearing, and which you claimed
you obtained from the Department (so the Department, HR, (and you were aware of it). The
email establishes the City continued to receive notifications from DOJ reference Firefighter
Naron, and he did not “…fall off the Live Scan notifications when he was terminated,” thus
negating any alleged Live Scan requirement.
Attorney Ethir then refers to a City document it relied on to justify its insistence that the
grievant must do a Live Scan before he can be reinstated. She wrote Mercer in this same October
19 email:
5
More importantly, however, the July 2006, Policy No. I-14, which you emailed me on 9/20/20,
is NOT applicable to Naron. The Policy states as follows at Page 1, Number 3. “Criminal
Record Background Checks The City shall obtain criminal background information pursuant
to the procedures set forth below on all prospective employees and volunteers, all current
employees and volunteers who work with or supervise minors, and all employees formally
considered for promotion.”
This policy does NOT apply to Firefighter Naron. He is not a “prospective employee,” he is
not a “prospective volunteer,” he is not a “current employee who work with or supervises
minors,” he is not a “volunteer who works with or supervises minors,” and he is clearly not an
“employee being considered for promotion.” . . . . Immediately place Firefighter Naron on the
payroll and ensure he receives appropriate pay from the date of reinstatement, August 10,
2020, through the current date.
Still the City scheduled the grievant for a Live Scan on December 23, 2020. It stated to him:
“Your participation is mandatory, this process includes separated employees. Failure to comply
and attend your live scan appointment may result in the termination of your reinstatement and
employment.” Naron’s attorney responded: “Firefighter Naron is not on the payroll per Mr.
Mercer. Naron will not be attending the Live Scan appt until he is reinstated pursuant to Mr.
Perone’s Award, which includes placement on payroll. . . . If the City confirms placement of
firefighter Naron on payroll, Naron will contact the appropriate person to schedule a Live Scan
Appt.”
Then, on February 19, 2021 Deputy Fire Chief La Wayne Hearn issued the grievant a Notice
titled, “Notice of Intent to Terminate Reinstatement and Employment.” As the legal basis for this
termination that would be effective March 8, 2021, Hearn listed the following:
– Human Resources Policy and Procedures Manual: 1-14 Criminal Background and Live Scan
Policy
– Human Resources Policy and Procedures Manual: III-1 Discipline (“Insubordination . . .
refusing to carry out a supervisor’s/manager’s/City agent’s lawful orders.”)
-City of Riverside Fire Department Policy 1.01 Rules of Conduct: 1.01.10 (“No member shall
refuse, fail or delay in performing and/or carrying our proper orders, work assignments, or
instructions of supervisors without a reasonable and bona fide excuse.”)
Hearns lists some 13 grounds for the ”proposed termination,” all relating to the grievant’s
refusal to be scanned. The Deputy Chief concludes: “Your actions have prohibited the fire
6
department from completing the onboarding process and assigning you to an operations
assignment.” He refers to the grievant’s right to respond either verbally or in writing by March 5,
2020. The grievant responded in writing for this Skelly process. Fire Chief Moore thereafter issued
a Skelly Response:
The singular reason for your termination is failure to complete the on-boarding process
outlined by the City of Riverside’s Human Resources Department (Human Resources Policy
and Procedures Manual: I-14 Criminal background and Live Scan Policy).
After being advised of the appeal process, this Arbitrator was selected and two days of
Arbitration ensued.
III. RELEVANT POLICY PROVISIONS
Criminal Background and Live Scan Policy . No. 1-14. Effective Date: 07/06
PURPOSE:
To establish a policy to ensure that the City of Riverside, its employees and volunteers,
and members of the public are protected and to help minimize potential liability, the City
Council has authorized a resolution authorizing the City to obtain state summary
criminal background information from the Department of Justice for employment purposes.
The City desires to identify those employees, prospective employees and volunteers who have
a criminal history so that such information may be used in employment decisions.
POLICY:
1. Authority. Under federal and state law, public agencies may enact policies that disqualify
applicants with certain criminal convictions from employment positions if the conviction is
relevant to the position in question. Furthermore, California Penal Code Section 11105 permits
cities to obtain state summary criminal background information from the Department of
Justice if the City Council has authorized such access and if the criminal background
information is required to implement a statute, ordinance or regulation that contains
requirements or exclusions based on specified criminal conduct. The City Council authorized
the City to access such information pursuant to Resolution Number 19579.
2. General. The City shall not consider for employment a person or volunteer who has been
convicted of a felony or a misdemeanor involving moral turpitude (see. Section 4 for specific
penal code convictions). Such conviction shall be cause for termination of any employee or
volunteer, if the felony or misdemeanor is for a crime specified below, or, if the crime is not
actually listed, the City determines that the crime is substantially similar in nature to those
specified below. The conviction may be disregarded if it is found and determined by the
appointing authority that mitigating circumstances exist, such as, but not limited to, evidence
of rehabilitation, length of time elapsed since such conviction, the age of such person at the
7
time of conviction, or the fact that the classification applied for is unrelated to such conviction,
and federal or state law does not require such disqualification or
termination.
3. Criminal Record Background Checks. The City shall obtain criminal background
information pursuant to the procedures set forth below on all prospective employees and
volunteers, all current employees and volunteers who work with or supervise minors, and all
employees formally considered for promotion.
IV. DISCUSSION AND CONCLUSIONS
Fire Chief Moore effectively defined the issue for this arbitration when he wrote in his
Skelly Response that “the singular reason for your termination is failure to complete the on-boarding
process outlined by the City of Riverside’s . . . Policy and Procedures Manual: I-14 Criminal background
and Live Scan Policy).”3 And the facts are not in dispute. The City scheduled grievant for Live Scans and
he refused to report as scheduled. Also, there is no dispute that his refusal is based on his not coming within
the scope of the City’s Live Scan Policy and that “make whole” required his reinstatement without any
conditions. .
The City insists that as an employee the grievant must take the Live Scan so it has criminal
background information that is up to date. However, before that can happen arbitrator Perone’s make whole
Award must be recognized and followed by the City. In it he ordered reinstatement for the grievant to his
former position, without any Live Scan condition attached to his make whole remedy.
A “make whole” remedy is basically placing the terminated employee back in his/her workforce
as if he/she never left. It is a remedy that is one of the most common in labor arbitration. As seen in Brand
and Biren, Editors, Discipline and Discharge in Arbitration, 3rd Ed. (2015) at 14-10: “Reinstatement
is the central and most common element of the modern remedy for discharge without just cause. The
majority rule is that where an arbitrator awards make-whole relief, reinstatement will, be part of the award.”
3 The City has abandoned its insubordination basis for the termination found in the proposed termination letter from
the Deputy Chief. Seemingly it recognized that it would be challenging at best to pin insubordination on a person
who the City has not even placed on the payroll as an employee.
8
And as Professor Arnold Zack of Harvard Law School and former President of the National Academy of
Arbitrators wrote in his in Grievance Arbitration, et al (1989): “Most arbitrators take the position
that the employee shall be made whole for what he or she would have received from the employer
had he or she continued to work.” As such, if “he/she continued to work” means that the employee
be reinstated so he/she can “continue to work.”
This arbitrator is among the “most arbitrators.” As he held in Dept. Justice, Fed. Prisons,
107 LRP 45703 (2007): “It is generally accepted that such a remedy refers to pay and any other
allowances, differentials or benefits the employee would have normally earned and received during
the period of the unwarranted personnel action had not the unwarranted action occurred.” Thus,
reinstatement of the employee must take place for those earnings to continue.
Make whole remedies are not always absolute when it comes to reinstatement. There are any
number of conditions that arbitrators have attached onto the remedy based on evidence presented
that would warrant the condition. For example, loss of seniority, loss of benefits, proof of fitness,
and many other remedies tailored to fit the circumstances of a particular discharge.
4
The point is that unless the arbitrator is made aware of any conditions sought by an employer who
has not proven just cause, and is subject to the make the remedy “whole,”5 he/she will issue a general make
whole remedy that has no specific condition with it. In a recent case, a federal district court considered the
question of whether conditions sought relevant by the employer for reinstatement under the general make
whole remedy could be warranted when they are not specifically referred to in a labor arbitration award.
The employer argued that the vagueness of “make whole “allowed for these conditions to be worthy enough
for conditioning the reinstatement. The court looked at several factors in determining that a general make
4 See Elkouri & Elkouri, How Arbitration Works, 8th Ed. (2016) at 18-51-55 for a long listing of such conditions.
5 “Whole” is commonly defined as “describing the completeness of something.” dictionary.cambridge.com
9
whole remedy was not vague, and, thus, unless the arbitrator spells out the condition, the reinstatement
must follow without any restrictions. United Electrical, Radio & Machine Workers of America v.
General Electric Co., No. 18-330-E, 2020 U.S. Dist. LEXIS 55677 (W. D. Pa. Mar. 31, 2020),
This court found noteworthy that the company did not raise the conditioning issue with the
arbitrator, “despite the fact that the appropriate remedy was one of the issues the arbitrator was
deciding.” The court noted that regardless of whether the company’s decision not to raise the issue
at the hearing or in its post-hearing brief constituted a “waiver” of its right to do so, “it does suggest
that [the conditions] were not issues [the company] deemed to be relevant.”
Moreover, the court added that the arbitrator did not retain jurisdiction, “which would imply
that he did not anticipate any issues with the remedy, including issues involving [the conditions].
While his decision not to retain jurisdiction is certainly not dispositive, it does suggest that the
remedy language of the Award was not intended to create issues that would need to be addressed
after the fact.” Overall, this ruling advises that where an arbitrator makes no mention of possible
conditions affecting reinstatement “it unambiguously means that no [conditions] were intended.”
And much the same can be said here. The Live Scan issue was never raised before arbitrator
Perone at the hearing or even in post-hearing briefs. It suggests that the City did not deem the issue
relevant. Perone did call for a “voluntary transfer to another Fire Station” that is somewhat of a
condition to reinstatement sought by the grievant and not the City. Arbitrator Perone must have
heard evidence about a condition and inserted it into his Award for the grievant. Certainly the City
had an opportunity to make sure that its condition, the Live Scan, was also included.
The arbitrator finds that it is not necessary to rule on whether all of these factors constitute
a waiver. Still, if anything, they suggest, along with the City waiting well over a month after the
Award to insist on the Live Scan requirement before reinstatement, that this issue was more of an
10
after-thought than a real requirement that could have been presented at the last arbitration when
the remedy was the issue, if the arbitrator found no just cause.6
It is unnecessary to rule on a waiver inasmuch as the actual Live Scan Policy of the City
on its face is unmistakably inapplicable to this grievant. Thus, the policy spells out unequivocally
those who must submit to a Live Scan for “Criminal Record Background Checks:”
-all prospective employees and volunteers,
-all current employees and volunteers who work with or supervise minors,
-all employees formally considered for promotion.
This grievant is neither a “prospective” employee nor a “volunteer employee” He is not
“prospective” because arbitrator Perone ordered him reinstated as a firefighter, a position he has
held for almost 16 years. He is not applying for a job, and he is not volunteering for work. His
status is the same as if he was never terminated.
Or is the grievant a “current employee” who works with or supervises minors. He is a
“current employee” under the reinstatement order, but as a firefighter who has nothing, even
remotely, to do with minors. And again, he is not a “volunteer.”
The City seems to take the position that as this Policy section refers to a “current employee”
the grievant is thus required to take the Live Scan. However, both grammatically and practically
this language does not cover the grievant. Grammatically, as there is no comma separating “current
employees” with the conjunction “and” that links “current employees to “work with minors.”
6 Perhaps the City decided not to do so because Live Scan was not an issue, as seen by emails in evidence at the
previous arbitration. Those emails from August 2019 relate to whether to keep the grievant on the Department’s DOJ
notifications list (which resulted from his previous Live Scans). The decision was “to keep Naron on the notification
list for another year. This is not the norm but Chris’ case is a little different.” Whether that notification stopped after
one year is unknown. But the fact that the City characterized the grievant’s case “a little different” suggests that it
had the notifications beyond one year. In any event, as will be seen, the grievant is not saying he will flat-out refuse
to submit to the Live Scan. He will do so, as seen infra.
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Practically, because the City has not reinstated him as a “current employee.” As will be seen, once
it does so, the grievant is willing to submit to a Live Scan.
The third and final eligibility for a Live Scan is being “formally considered for promotion.”
This eligibility factor has nothing to do with the grievant. There is no evidence from the former
arbitration that at the time of his termination the City was considering him for promotion.
In all, the City had not proven just cause for this termination. The remedy shall be for the
City to promptly reinstate the grievant by placing him on the payroll. The condition from the
previous arbitration that he be reinstated with a “voluntary transfer to another Fire Station” shall
take place promptly after issuance of this Decision and Award. The City shall also promptly pay
him back pay with interest and benefits owing from his improper termination in this matter. Once
fully reinstated to his position (i.e., on the payroll and assigned to a Fire Station per the make
whole order from the previous arbitration and this arbitrator’s Award,) the grievant shall submit to
a Live Scan that shall be scheduled by the City.
AWARD
Based on the above and the entire record, the grievance is sustained. The grievant shall be
reinstated promptly to his former firefighter driver position and paid back pay with interest and
benefits by the City. The complete remedy is found in the last paragraph of the Decision above
and is incorporated into the Award. The arbitrator shall retain jurisdiction for a period of 90 days
after the issuance of this Decision and Award, to hear and resolve any dispute regarding the
administration of this Award.
_______________________
Robert B. Hoffman, Arbitrator