Originally from Dispute Resolution Journal

The hearing has been closed. The arbitrator has received and read the transcript of the proceedings and the briefs of counsel. He has studied the exhibits.' He proceeds to write his decision. He is convinced that the employer, on the record developed before him, has failed to demonstrate "just cause" for the discharge of the grievant. Smith, from employment. The stipulated issue, however, asks whether the company had just cause to discharge Smith; and, if not, what remedy is appropriate.

It is possible to read this conventionally expressed issue as referring, exclusively, to the character and extent of the remedy available to the grievant for the wrongful discharge (that is, what does it take to make him whole for his period of wrongfully enforced unemployment?). In decades of arbitration, however, and in many hundreds of discharge cases, this exclusive and narrow reading has never been pressed upon me for acceptance. The familiar and customary statement of the issue described has been taken, generally, to refer to two kinds of remedies that might be appropriate under the circumstances: (a) compensatory relief to the wronged grievant, or (b) commutation of the discharge penalty to some lesser degree of discipline fitting to the circumstances. Since the early days of labor-management dispute arbitration in the 1930s, most arbitrators have regarded the less severe personnel penalty of disciplinary suspension to be subsumed under the expressly reserved power of the employer to discharge for just cause; and where the record in the case does not support the discharge penalty, the arbitrator, when the circumstances warrant, may decree the lesser penalty of some appropriate degree of disciplinary suspension.