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The Supreme Court’s 1960 Steelworker Trilogy decisions established that arbitration was the quid pro quo for the collective bargaining agreement’s no-strike provisions, and directed that judicial deference. In this Chapter, Professor Gould surveys the judicial history that preceded the Trilogy and the subsequent application and expansion of the Trilogy principles (including its recent exansion – …

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The author presents the current thinking of arbitrators (52 respondents) on the conundrum of what to do when a CBA provision irreconcilably conflicts with external law. The alternatives are to uphold the agreement over the law, the law over the agreement, or the “middle ground”: permit conduct forbidden by law but not require it (i.e., …

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The authors posit that arbitrators must not apply external law unless the parties have granted them the authority to do so, and that advocates should be circumspect in investing the arbitrator with such authority. The parties should also consider whether they want classwide claims heard by an arbitrator.

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An examination of the roles of arbitrators and the courts in interpreting and enforcing labor agreements. Bases on which courts have refused to enforce arbitrators’ decisions are examined, and advice given about contract interpretation and public policy.

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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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The author recommends that, when statute is cited in a just cause case, the arbitrator have the parties thoroughly address the statutory arguments, and that the arbitrator then present a thorough analysis of those arguments in his or her decision. Doing so may reduce the likelihood of vacatur.

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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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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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Professor Feller reviews three of his earlier papers. The first, “A General Theory of the Collective Bargaining Agreement,” advanced a theory of labor arbitration which, he acknowledges, the courts have followed. The second was “The Impact of External Law upon Labor Arbitration. By “external law” Professor Feller meant public law and not the law of …

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Professor Cox asserts the need to create new processes to encourage cooperation between government, organizations, and individuals whose activities are directly affected by government. He proposes, as a model, the Health Effects Institute.

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