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10 Lab. L.J. 18 (1959)
Arbitration Back-Pay Awards

handle is hein.journals/labljo10 and id is 20 raw text is: Arbitration Back-Pa A vexing problem which has arisen concerns the authority of an arbitrator, in the absence of a specific contract provision, to award back pay. If it is assumed that this authority exists, more problems are generated in its ap- plication. In discussing the above problems the author refers to the opinions of arbitrators and of the courts. N THE WAKE of the Supreme Court decisions in Lincoln Mills and companion cases,' a host of problems' of far-reaching significance in the area of industrial rela- tions has arisen, not the least of these being the more intangible ones emanating from the collision of the judicial mind of the courts with the quasi-judicial (some would even say nonjudicial) process of labor arbitration. The reverberations of this collision will undoubtedly be felt for some years to come. Arbitral Authority to Award Back Pay As anyone remotely associated with the process is well aware, arbitration, including labor arbitration, is a device which is created and given legal vitality by an agreement. Consequently (and completely aside from social and industrial relations considera- tions of usefulness and desirability), the parties are free to give the arbitrator of their choice virtually any authority they Present litigation in the area appears wish over their past or future relations. centered on the question of arbitrability The arbitrator, as a result, may undoubtedly and related problems. Among the more In- be given express authority to grant back pay if hie finds a contract violation in the teresting of these related problems now particular case, or even to fashion a remedy being subjected to the scrutiny of the federal which, in his judgment, is more suitable courts is the question of the extent of the to the needs and desires of the parties. authority of the arbitrator to dispose of a Many union representatives (within the dispute once the underlying problem is writer's experience) have shown acute deemed arbitrable. Specifically, the au- awareness of this principle by insisting upon thority of the arbitrator, in the absence of a a submission, on the record, in each case specific contract provision, to award back incorporating at least the following ques- pay, and the implementation of that au- tions: (1) Did the company violate the thority, where it exists, are matters of im- terms of the collective agreement by taking portant concern and will be examined in the action it did in this case? (2) If so, this article. what shall the remedy be? Textile Workers Ubion of America v. Lin- Law of the American Bar Association, pp. 55 copn Mills of Alabama, 32 LABOR CASES a c 70,733, and following. 353 U. S. 448 (1957): General Electric Company pSee, for example, Local 149, A TE v. en- v. Local 205 (UE), 32 LABOR CASES VI 70,735, 353 eral Electric Company, 33 LABOR CASES ff 71,149. U. S. 547 (1957); Goodall-Sanford, Inc. v. United 250 F. (2d) 922 (CA-m, 1957): Engineers Associa- Textile Workers of America,' 32 LABOR CASES tion v. Sperry Gyroscope Company, 33 LABOR II 70,734, 353 U. S. 550 (1957). CASES 1 71,178, 251 F. (2d) 133 (CA-2. 1957). For some of the legal problems. see Report of course, the company would insist upon of the Committee on Labor Arbitration, 1957 greater specificity regarding the particular pro- Proceedings of the Section of Labor Relations vision of the agreement claimed to have been violated. 18 January, 195L o Labor Law journal

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