NCJ Number
96509
Date Published
1982
Length
38 pages
Annotation
This overview of arbitral remedial authority concludes that such powers are broader in the disciplinary are a than in contract issues and that arbitrators often use unique or unusual remedies.
Abstract
The most frequently encountered remedy problems arise in the disciplinary area, notably over conditional reinstatement with back pay, back pay without reinstatement, and the employee's obligation for mitigation of damages. When it is demonstrated that a discharge was due not to the grievant's intentional individual fault but to a defect in mental or physical capacity, arbitrators have not hesitated to order reinstatement conditioned on proper showing of mental or physical fitness. Arbitrators often have ordered reinstatement conditioned on the nonreoccurrence of conduct which led to the initial disciplinary penalty. Conditional reinstatement can create continued antagonism between the parties as well as conditions that are ambiguous and potentially troublesome. The National Labor Relations Board and the courts have used the principle of 'make whole' relief for an employee wrongfully discharged in computing back pay without reinstatement. With regard to a grievant's failure to mitigate damages, most arbitrators see such failure as reducing the employer's liability. In the nondisciplinary area, arbitrators generally have declined to award monetary damages for claims arising out of rescheduling vacation periods. Employers' claims for damages is another difficult area, with problems arising over whether such claims are subject to arbitration, what the elements of damage are, and individual liability for breach of a no-strike clause. A total of 127 notes are included.