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Commenting on Arbitrator Mittenthal’s paper describing the virture of narrowly-focused rationale in contract interpetation cases [DRW 2009-335], Attorney Smith states that advocates would be wise to include, in their closing arguments, a discussion of the possible impact of the arbitrator’s decision.

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A critique of the use of more restrictive principles of contract interpretation and an argument that reliance on such standards is inconsistent with the essential function of grievance arbitration under the NLRA. Strict adherence to the parol evidence rule, the residual rights construction principle, and general principles of construction for other contracts are sited as …

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A discussion of the use of extrinsic evidence in the interpreting collective-bargaining agreement provisions. Resorts to extrinsic evidence for the purpose of ascertaining the parties and can’t is approved but use of extrinsic evidence to create new obligations is opposed.

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Situation ethics and the arbitrator’s conscience

Arbitrators Davey, Linn and Parson offer guidance in the consideration of equities when applying the terms of the CBA, as well as other advice on the practice of arbitration.

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Consensus holds that arbitrators may rely upon federal law as an aide in contract interpretation, and may rest a decision on federal law when expressly contractually authorized to do so. Less certain is when, if ever, an arbitrator should follow federal law rather than the labor agreement. Sovern asserts that an arbitrator may follow federal …

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National Academy President Killingworth asserts that the “reserved rights of management” theory of contract interpretation is constrained by two factors: it is unrealistic in practice because, unless there is a no-strike clause, the employees’ right to strike renders all of the employer’s power conditional. Second, the Supreme Court, in Warrior and Gulf, ruled that the …

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