Tip Pooling and Private Rights of Action
Cundiff Remains Published

Arbitration Order to "Make Whole" Needs More Detail

We aren't sure why we needed a published opinion to tell us this, but the Court of Appeal has determined that the arbitrator of a labor dispute cannot simply issue an order compelling the employer to make the employee whole, and then leave it to the parties to figure out what that entails. Mossman v. City of Oakdale (2009) __ Cal.App.4th __.

In this twist arising from a contractual arbitration proceeding, we address whether an arbitrator's award that concludes (1) the City of Oakdale violated its own personnel rules, and (2) then directing the employee to be made whole without more, is an enforceable award As sometimes happens, the arbitrator ordered the parties to work out the details of the make-whole remedy, which they did not do. This appeal flows from a judgment denying a motion to vacate the arbitration award pursuant to Code of Civil Procedure section 1286.2 on the ground the arbitrator did not specify an adequate remedy and therefore did not resolve all issues submitted to arbitration. Although we conclude that the arbitrator resolved issues presented in the arbitration, we order the judgment reversed because, in its current form, the judgment is unenforceable. We remand to enable the original arbitrator to determine the appropriate nature of the make-whole remedy. 

So the case goes back to the arbitrator, who, it is worth noting, was held not to be bound by a 30-day time limit in the city personnel and arbitration rules. You can download the full text of Mossman here in Word or PDF


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