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Arbitral discretion: The tests of just cause

Dunsford posits that Carroll Daugherty’s “seven tests” of just cause are misleading in substance and distracting in application, and disputes that the tests are part of the “common law” of arbitration: the tests were developed in the context of the railroad industry and ought not govern in the private sector, where arbitration hearings are de …

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Life after Misco

A review of public policy challenges since Misco and forecast of further judicial review of labor arbitration awards. The author notes that the litigation to vacate arbitrators’ awards, even if unsuccessful, could have the effects of undermining labor arbitration finality and adding burdens to an already crowded court system.

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President Anderson provides a brief historical survey of labor arbitration in the United States, both grievance and interest, and cautions arbitrators to discharge so as not to overlook or ignore the material facts, or the contract, or the applicable law, and to perform their work carefully, correctly and ethically.

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Attorney Gottesman observes a resistance in the lower federal courts to accept principles that the Supreme Court enunciated in Misco, the lower courts expansively applying the limited exceptions to the general enforceability of awards. He opines that exceptions to enforcement have become loopholes that should be made as narrow as possible. “Only bribery of the …

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Judge Reinhart assesses the criteria on which judges overturn, or refrain from overturning labor arbitrators’ decisions.

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The author gives an overview of the public sector restraints on drug testing, and private sector issues including the unilateral institution of drug testing, drug screening techniques, random drug testing, refusal to submit to testing, discipline for positive results, and off-duty possession and use. Judicial review of awards on public policy grounds is discussed.

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