The vast majority of arbitrators will refuse to find just cause unless the discharge penalty bears some reasonable relation to the seriousness of the grievant's offense. They believe it to be their responsibility to determine whether the "punishment fits the crime" by realistically appraising the wrongful act's deleterious effects on the industrial community. If the grievant's proven offense appears to merit discipline short of discharge, the arbitrator usually will feel compelled to modify the discharge penalty in favor of some lesser degree of discipline. Since this amounts to a review of the penalty imposed by management, there is a substantial question as to whether the arbitrator has this authority. Generally, arbitrators have not been too concerned with this problem, and they consistently assert jurisdiction to reduce the discharge penalty on the ground that the power is implied in their authority to decide and adjust the dispute submitted by the parties.The courts, in actions to vacate or enforce awards, have shown a general tendency to favor the arbitrator's assertion of power to modify the penalty imposed unless this power is clearly denied him by the collective agreement or submission. This tendency indicates that arbitrators will be given some leeway in formulating adequate remedies for the breach of collective bargaining agreements. Looking to the future, one wonders whether arbitrators will be allowed to formulate additional and more controversial remedies under the implied authority rationale. It is reasonable to assume, however, that there will be a corresponding development in the arbitral remedy power as the arbitration process increasingly becomes the principal means for resolving labor disputes.
Roland P. Wilder Jr.,
Discharge In the "Law" of Arbitration,
20 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol20/iss1/4