Remedies in Arbitration - Old Problems Revisited (From Arbitration Issues for the 1980s, P 109-133, 1982, James L Stern and Barbara D Dennis, ed. - See NCJ-96502)

• NCJ Number: 96508
• Author(s): D E Feller
• Date Published: 1982
• Length: 25 pages
• Sale Source: Bureau of National Affairs
• Language: English
• Country: United States of America

Annotation

When the employer has not complied with the rules set forth in a collective agreement, the arbitrator's function is to decide what the agreement means and what it says about remedy.

Abstract

This function is quite different from that of a court when it decides remedies for breach of contract. In the latter, justice requires no more than compensation measured by the amount of harm suffered, whereas remedies specified in collective bargaining agreements do not consider damage. The arbitrator reading the collective bargaining agreement reads not only the agreement's words, but also the commonly accepted standards which the parties may be assumed to have agreed upon even if they fail to express them in words. Another proposition is that the primary authority implicitly granted to the arbitrator is the authority to award specific performance according to the agreement's provisions. The power to award specific performance, retroactively if necessary, is limited ordinarily to the payment of sums calculated in terms of the collective bargaining agreement, not by external measures. When there is no measure internal to the agreement that can be applied, there can be no monetary award. The one exception to this rule is the deduction of outside earnings from back pay which an arbitrator should not allow. Cases illustrate the author's theories. A total of 49 footnotes are included.