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The arbitrator’s remedial powers

An examination of arbitrators’ acceptance (or rejection) of evidence of post-discharge conduct and of later-acquired pre-discharge conduct. Arbitrator Nicolau applies a test of fair warning: If the evidence is revealed when discovered, and in sufficient time for the Union to prepare a defense, the employer is entitled to present it and the arbitrator is obligated …

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Arbitral implications: Hearing the sounds of silence

Authors Mittenthal and Bloch examine how arbitrators, in performing their interpretive function, find implied obligations that are nowhere mentioned in the contract. Arbitrators embrace those implications that help to preserve the parties’ bargain and reject those that alter or enlarge it. Author Macey agrees that preserving the parties’ bargain should be a guiding concern, but …

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The authority of labor arbitrators to fashion and administer discovery procedures is now firmly established. The basic objective of arbitral discovery is to achieve full disclosure while avoiding the legal complexities of discovery as practiced by “litigators.” A duty of full disclosure applies to the parties. This article addresses burden of proof responsibilities (and distinguished …

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A review of the cases and papers that preceded and followed the Trilogy cases.

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The thesis of this article is that the appropriate judicial disposition of a DFR case – once the determination of breach of the duty of fair representation has been made – is to refer the dispute back to the contractual arbitration procedure for further processing.

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Courts, arbitrators and OSHA problems: An overview

An examination into the intent of the Occupational Health and Safety Act. The author addresses the difficulties that arise with the introduction of new standards, and the contesting of citations issued to employers based upon claims that the regulations are vague, unduly burdensome, or unreasonable. The question of the adjudicative body best suited to review …

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Revisiting an old battle ground: The subcontracting dispute

A discussion of arbitration decisions concerning limitations on subcontracting. Topics discussed include arbitrability decisions by courts, the duty to bargain over subcontracting, NLRB deferral in subcontracting cases, and the development of arbitration standards in subcontracting disputes. The article includes a table, showing the increasing prevalence of limitations upon subcontracting found in collective bargaining agreements, and …

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Judicial review of labor arbitration awards: a second look at Enterprise Wheel and its progeny

A discussion as to the degree that external law must be considered, if at all, in the arbitral resolution of the terms of a collective bargaining agreement. The author views the arbitrator as the “reader” of the agreement, under terms set by the parties and that, since the parties have agreed to accept an award …

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An examination of the impact of arbitration on the formulation and administration of national labor policy. The interplay between labor arbitration and state and federal courts and administrative tribunals, the roles of public policy in labor arbitration in both the private and public sectors are considered. Although public policy concerns inhere in many cases, arbitrators …

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Should the scope of arbitration be restricted?

A panel discussion of the papers presented by Francis A. O’Connell and Ben Fischer including the views of the discussants as to whether arbitrators should limit themselves to the language of the contract.

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