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Attorney Paller reviews the case law pertaining to the duty of fair representation and addresses the union attorney’s differing duties when there is a conflict between the employee and the union, and when there is not.

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The Duty of Fair Representation II. The Surprising Strength of an Empty Duty – DFR Issues in Labor Arbitration

DFR hypotheticals discussed by a labor attorney, a management attorney and three arbitrators.

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What happens after the arbitrator’s award? I. Introduction

A survey of HR managers and labor relations personnel indicated that 86% of the employees who were reinstated after discharge were still employed, and had not engaged in recidivism. The majority had improved disciplinary records after reinstatement. Duty of fair representation (DFR) cases were brought in less than 1% of the 1,300 cases. Five percent …

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An examination of the difficulties confronting the union in cases of worker-on-worker violence. Various management approaches are critically assessed, including profiling and zero-tolerance policies. An alternative approach to addressing workplace stress, violence prevention and crisis management is offered.

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Attorney Brauer asserts that, while other federal legislation dealing with employee discrimination has viewed distinctions between workers as largely irrational, the ADA has turned that precept on its head: it requires that workers not be treated the same. The ADA does not support resolution of such disputes by arbitration under a CBA. The author examines …

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Professional responsibilities of arbitrators

Richard Block discusses whether and under what conditions arbitrators should agree to serve as expert witnesses.Walter Gershenfeld discusses when disclosure is required of an arbitrator, and when recusement is appropriate.And Alexander Porter addresses the issues arising when concerns about payment of the arbitrator arise.

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A survey of advocates discloses variations in preferences in arbitral styles, from tightly controlled hearings to an unstructured proceeding. All reject the overly active or overly passive arbitrator. All seek an atmosphere of civility and mutual respect. Suggestions from the discussants include a set of model procedural rules for arbitrators, a standardized pre-hearing form for …

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Arb. Nicolau contends that the arbitration process can be simplified to achieve cost-savings, time-savings and dispute resolution. The best way to simplify arbitration is to avoid it. Arb. Nicolau suggests ways to settle disputes at an early level through streamlined procedures, mediation, joint fact-finding and arbitral inquiry. Responses point out 1) that the ideal of …

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The duty of fair representation is examined: The union is the certified and exclusive representative of all the employees in the unit, including the disaffected grievant. Unless there is conclusive evidence to the contrary, the union is presumed to be acting in good faith as the grievant’s representative..

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Duty of fair representation: The role of the arbitrator

A discussion of “the duty of fair representation” arbitration proceedings, in terms of both the union and management responsibility. The author inquires into the arbitrator’s role when it becomes clear that there is a pending or a feasible future claim that the union had failed in its duty of fair representation.

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