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Arbitrator Mittenthal examines alternative means of addressing the remedy when delay of the arbitration results in reinstatement after months of unemployment.

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Arbitrator Burke discusses the prevailing practice in Canada, of awarding damages rather than reinstatement when delay of the arbitration has resulted in protracted unemployment.

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How and why labor arbitrators decide discipline and discharge cases. An empirical examination.

A statistical analysis of over 2,000 discipline and discharge arbitration decisions and the rationale given in those cases in which the discharge penalty was mitigated. Concepts such as the quantum of proof and reliance (or citation) of the “seven tests” of just cause are examined. Theodore J. St. Antoine examines The Common Law of the …

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Just cause across industries: III. The federal sector

The participants describe the differences between the way discharge penalties are arrived at in the federal sector, and the way that arbitrators deal with them, as compared with private sector and state and local cases. In Douglas v. Veterans Administration, the MSPB stated that the MSPB sits as the final government employer decisionmaker on adverse …

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The authors posit that there has been a shift, from (a) Arbitrators’ deference to an employer’s imposition of discharge absent arbitrariness or abuse of discretion to (b) the de novo review of whether the penalty was unfair, arbitrary or capricious (i.e., unreasonable) from the arbitrator’s perspective.

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Awarding no interest on back pay has been the rule; paying interest the exception. This article examines the rationale for each, and the growing trend of awarding interest.

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An examination of how to make an employee financially whole when the employee is displaced from the workplace without just cause, and cannot be put back into the same workplace. A methodology for the computation of the current, discounted value of front pay is offered.

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The payment of money damages, rather than reinstatement, is the prevailing remedy in non-union wrongful termination cases, and also in industrialized democracies other than North America. Professor Rehmus observes that reinstatement was established as the appropriate remedy in the 1940’s; that today’s statutory and legal framework is much different; and that, where there is a …

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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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