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The Arbitration Fairness Act would invalidate pre-dispute arbitration agreements relating to employment issues (except for CBAs). Borrowing heavily from Charles Dickens, the authors contend that enactment of the AFA would result in such disputes being channeled to the courts, creating a substantial additional caseload for the judiciary, and a costly burden to litigants. The role …

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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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The incredible shrinking workplace: Legal and arbitration issues generated by reorganizations and downsizing.

An examination of the issues that arbitrators will face, arising from bankruptcies and the impact of the Employee Retirement Income Security Act (ERISA). Management and union perspectives are offered on both subjects.

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The author explains management’s preference for arbitration rather than litigation (especially jury trials) of employment disputes.

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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 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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Make-whole and statutory remedies:4. Management perspective

In the face of Gilmer, the authors recognize the role of arbitrators in resolving employment disputes based upon federal statute, and recommend that organizations such as the AAA and NAA be at the forefront in developing rules assuring procedural and substantive fairness.

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A summary of the effects of the Civil Rights Act of 1991, and observation that the Act will have little effect on arbitration under CBAs, whereas the ADA will impose requirements at odds with the National Labor Relations Act and, correspondingly, common CBA provisions. The Court’s distinctions between Gilmer and Gardner-Denver are examined. Representatives of …

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Attorney Hautzinger sees a new era in employee involvement in operational decisions that runs counter to the National Labor Relations Act. He sees no “social contract” because he sees no consequence for the breach of such a contract. Attorney Hautzinger predicts a continuing decline in Unions and increase in arbitration of employment disputes.

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Arbitrator Jaffe describes how he handles statutory claims: the differences between CBA grievances and disputes arising under federal statutes; the issues that frequently arise under the latter; and bases of appeal to the Court of Appeals for the Federal Circuit, or for filing exceptions with the Federal Labor Relations Authority. Types of statutory claims often …

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