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Where is the New Enterprise Wheel? Judicial review of employment arbitration awards

The instances of court review of arbitration decisions is increasing notwithstanding that courts are extremely deferential to the awards. Michael LeRoy and Peter Feuille present an in-depth survey of the judicial criteria for vacatur, and include a listing of cases, a statistical analysis of those cases, and a state-by-state description of the laws of those …

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The author presents the current thinking of arbitrators (52 respondents) on the conundrum of what to do when a CBA provision irreconcilably conflicts with external law. The alternatives are to uphold the agreement over the law, the law over the agreement, or the “middle ground”: permit conduct forbidden by law but not require it (i.e., …

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The authors posit that arbitrators must not apply external law unless the parties have granted them the authority to do so, and that advocates should be circumspect in investing the arbitrator with such authority. The parties should also consider whether they want classwide claims heard by an arbitrator.

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An examination of the roles of arbitrators and the courts in interpreting and enforcing labor agreements. Bases on which courts have refused to enforce arbitrators’ decisions are examined, and advice given about contract interpretation and public policy.

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Judicial review of labor arbitration awards:The view from the bench

An examination of the judicial vacatur of arbitration decisions since the Steelworkers Trilogy, and the rationale for those court rulings. The article includes an appendix of rulings by the Fifth Circuit Court of Appeals (since Misco) in which the Court has refused to enforce arbitrators’ decision based upon the “essence” standard. This is followed by …

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Arbitrator Dunsford observes that there is no legal impediment to the arbitrator’s retention of jurisdiction with respect to remedies, and such retention, without time limit, serves the interests of the parties, the process and the judiciary. For example, it makes no sense to issue an award in which a remedy is prescribed in general terms …

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The principle of functus officio is examined. Arbitrator Nicolau advocates allowing an arbitrator to clarify or correct his/her decision at the request of a single party, in order to carry out an award’s intent, and further advocates amendment of Section 6.D.1. of the Code of Professional Responsibility accordingly.

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Melding external law with the collective bargaining agreement

A description of the various means by which statutory claims may be invoked in a labor arbitration. Arbitrator Bogue recommends methodologies that arbitrators might use to assure a full and accurate development of the statutory issues — one that will withstand the scrutiny of judicial appeal.

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A survey of Academy members, concerning the circumstances under which they will mitigate discipline based upon the denial of due process.

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Professor Feller reviews three of his earlier papers. The first, “A General Theory of the Collective Bargaining Agreement,” advanced a theory of labor arbitration which, he acknowledges, the courts have followed. The second was “The Impact of External Law upon Labor Arbitration. By “external law” Professor Feller meant public law and not the law of …

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