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A summary of the effects of the Civil Rights Act of 1991, and observation that the Act will have little effect on arbitration under CBAs, whereas the ADA will impose requirements at odds with the National Labor Relations Act and, correspondingly, common CBA provisions. The Court’s distinctions between Gilmer and Gardner-Denver are examined. Representatives of …

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Attorney Brauer asserts that, while other federal legislation dealing with employee discrimination has viewed distinctions between workers as largely irrational, the ADA has turned that precept on its head: it requires that workers not be treated the same. The ADA does not support resolution of such disputes by arbitration under a CBA. The author examines …

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Attorney Hautzinger sees a new era in employee involvement in operational decisions that runs counter to the National Labor Relations Act. He sees no “social contract” because he sees no consequence for the breach of such a contract. Attorney Hautzinger predicts a continuing decline in Unions and increase in arbitration of employment disputes.

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The rise of labor arbitration from the 1940s to 1970s; its plateau in the 1980s (statistics are furnished); the decrease in private sector and increase in public sector arbitration; and the rise of employment arbitration. A distinction is offered between Gardner-Denver (arbitration presumed to be inappropriate for resolving statutory-based discrimination claims) and Gilmer (arbitration appropriate …

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An examination of the factors favoring the arbitration of employment disputes. Gardner-Denver (arbitration presumed to be inappropriate for resolving statutory-based discrimination claims) is distinguished from Gilmer (arbitration is appropriate except where Congress intended to preclude waiver of the judicial forum) by their factual dissimilarities. (See alternative reasoning at 1992, page 82.) The author predicts that …

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Arbitrator Jaffe describes how he handles statutory claims: the differences between CBA grievances and disputes arising under federal statutes; the issues that frequently arise under the latter; and bases of appeal to the Court of Appeals for the Federal Circuit, or for filing exceptions with the Federal Labor Relations Authority. Types of statutory claims often …

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An exploration of the impact of the Gilmer decision on arbitration, and the relationship between the Federal Arbitration Act and the Steelworker Trilogy: “Gilmer has laid the foundation for a stronger rule of preclusion in collective bargaining arbitration cases – a rule that may remove a court’s discretion to deny preclusion where the arbitration meets …

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The author addresses the standards that arbitrators should apply when addressing charges of sexual harassment, and the rights of the accused as well as the employer and alleged victim. Helen Neuborne, Exec. Dir. of NOW, notes the importance of arbitrators understanding workplace dynamics and the problems posed for women by sexual harassment, and urges that …

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Arbitration in a changing environment

David Feller introduces Justice Brennan, who, observes that “arbitral awards are not accorded sufficient finality and that federal law intrudes at every turn.” Justice Brennan recommends that arbitrators do their utmost to render decisions that are consistent with the statutes to which they pertain and that, knowing that judicial second-guessing of their opinions will be …

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The author compares arbitral and judicial competence to hear and decide discrimination complaints and concludes that the traditional arbitration model provides as good or better forum for resolving gender discrimination claims. She addresses typical concerns (e.g. that an employee will not be fairly represented; that an arbitrator’s narrow responsibility of contract interpretation does not include …

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