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Arbitrator Winograd examines the derivation and purposes served by the broad admissibility of evidentiary submissions in labor arbitrations, and subsequent assessment of reliability and weight made by the arbitrator. He also presents the contrary views and reasoning of its critics. A simulated case is then presented to members of the National Academy, who discuss the …

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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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A discussion of the ethical responsibilities of arbitrators, including the duty to disclose any factor that a reasonable person might regard as material. Methods of disclosure are also discussed. Hypotheticals are offered, to illustrate the range of what should be disclosed.

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A history of judicial review of workplace arbitration, and a statistical survey of the rate of confirmation/vacatur of labor and employment arbitration awards. After an extensive analysis of the survey results and the causes of vacatur, the authors conclude that most critics of judicial review of labor arbitration awards fail to give federal courts due …

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The Revised Uniform Arbitration Act: Third leg of modern arbitration law

A description of the “mindset and methodology” employed by the drafters of the Revised Uniform Arbitration Act, the essential elements and public policies underlying the Act, and the likely impact of the Act. An employee perspective on mandatory employment arbitration and the RUAA is given, including the importance of discovery and the awarding of attorneys …

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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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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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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 asserts that commercial arbitration under the Federal Arbitration Act, and labor arbitration under the Labor Management Relations Act are “in a state of substantial symmetry.” Federal preemption under each, the common threshold issues of consent and substantive arbitrability, and the bases of judicial vacatur of each are discussed. The author proffers that a …

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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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