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A brief history of the arbitration of statutory claims arising under an employment relationship – employment arbitration – is given as background to the question: Is it socially desirable to permit employers to impose mandatory arbitration in disputes involving public rights? The logistical advantages of arbitration are described, as is the potential disadvantage of a …

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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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Attorney Teitelbaum notes the infrequency with which statutory claims arise, and that CBAs often furnish the means for redress of matters also addressed by statute. The potential conflicts between seniority rights on the one hand, and Civil Rights statutres and Disabilities Rights statutes on the other are discussed. It is noted that the Supreme Court …

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An examination of the arbitrator’s role in applying public statutes to determinations of just cause when those statutes have been incorporated by reference into the CBA.

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The author recommends that, when statute is cited in a just cause case, the arbitrator have the parties thoroughly address the statutory arguments, and that the arbitrator then present a thorough analysis of those arguments in his or her decision. Doing so may reduce the likelihood of vacatur.

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Where a statute has not been incorporated by reference into the CBA, the arbitrator’s application of the statutory standards can yield inequitable results. The author recommends that arbitrators resort to external law standards only as a last resort, and that they not “import” external law that had not been bargained for. The author further notes …

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An examination of the development and implementation of the EEOC’s voluntary mediation program, and discussion of proposed legislation: the National Employment Dispute Resolution Act (or ‘NEDRA”).

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Can an employee’s statutory rights be made the subject of a collectively bargained arbitration agreement? Relevant case law is examined. The author concludes that (except in the Fourth Circuit) when employee grievances under CBAs contain statutory issues, those issues may be heard in the courts, notwithstanding that the grievance procedure has not been exhausted. The …

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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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President Zack notes the increasing incorporation by reference of statutory rights into the CBA, and the “statute-reading” authority granted arbitrators by the Supreme Court in Gilmer. He posits the risk that labor-management arbitration may lose credibility in the face of unilaterally imposed arbitration. He stresses the importance of the participation of labor, management and arbitrators …

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