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Melding external law with the collective bargaining agreement

A description of the various means by which statutory claims may be invoked in a labor arbitration. Arbitrator Bogue recommends methodologies that arbitrators might use to assure a full and accurate development of the statutory issues — one that will withstand the scrutiny of judicial appeal.

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A historical perspective of labor law during the 50-years of the Academy’s existence, including the Taft-Hartley Act; the publication of arbitrators’ awards; The Proceedings of the Academy; the development of workers’ protection against unjust dismissal; and the implications of “management rights.”

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Privacy in the workplace: International perspectives

Privacy in the workplace – drug testing, employee surveillance, searches, screening, physical exams, polygraphs, etc. – in Belgium, Israel and France are examined in this panel discussion.

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Professor Rentfro proffers that evolving societal values are reflected in the workplace: sexual harassment cases; drug and alcohol cases (and employee assistance programs); and a breakdown in the social contract that has led to federal rights legislation and employer-promulgated arbitration. Greater emphasis is being placed on the commitments and responsibilities of each party and greater …

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Arbitration in the employer welfare state

Professor Rothstein posits that employers are assuming governmental functions, carrying out or responding to legislation that uses the workplace to address social problems, including non-economic problems, and that arbitrators are increasingly called upon to rule on these subjects. Examples include drug testing and health insurance. The author argues that employer responsibilities should be limited to …

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The author distinguishes between the Supreme Court’s finding of a Constitutional right of personal privacy from governmental action and actions by private employers. “Instead of defining those rights, arbitrators assume that they will know them when they see them…” The reasonable expectation of privacy of public employees will yield to reasonable grounds for suspecting that …

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The author gives an overview of the public sector restraints on drug testing, and private sector issues including the unilateral institution of drug testing, drug screening techniques, random drug testing, refusal to submit to testing, discipline for positive results, and off-duty possession and use. Judicial review of awards on public policy grounds is discussed.

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The author states that drug testing is here to stay; that, when done correctly, it works; and that arbitrators have an obligation to apply the language of the CBA and rely on the evidentiary record, divorced from the emotional factors often associated with substance abuse. The factors affecting when testing is deemed reasonable are described.

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Professor Clark advocates federal legislation to set standards for all forms of employer investigations, searches and tests to uncover illicit drug use, as a means of avoiding inconsistent employer policies and individual arbitrator’s standards. Professor Clark also advocates the decriminalization of drug use (but not trafficking).

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