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Judicial review of labor arbitration awards:The view from the bench

An examination of the judicial vacatur of arbitration decisions since the Steelworkers Trilogy, and the rationale for those court rulings. The article includes an appendix of rulings by the Fifth Circuit Court of Appeals (since Misco) in which the Court has refused to enforce arbitrators’ decision based upon the “essence” standard. This is followed by …

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Arbitrator Dunsford observes that there is no legal impediment to the arbitrator’s retention of jurisdiction with respect to remedies, and such retention, without time limit, serves the interests of the parties, the process and the judiciary. For example, it makes no sense to issue an award in which a remedy is prescribed in general terms …

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The principle of functus officio is examined. Arbitrator Nicolau advocates allowing an arbitrator to clarify or correct his/her decision at the request of a single party, in order to carry out an award’s intent, and further advocates amendment of Section 6.D.1. of the Code of Professional Responsibility accordingly.

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Arbitration as a venerable and honorable process, and the consistency of its attributes is traced from the 17th century.

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An examination of court decisions (post-Misco ) in which arbitration decisions have been vacated on grounds other than “public policy.” Such grounds include contractual limits on the arbitrator’s authority, the arbitrator’s adding to the terms of the CBA, failure of the decision to “draw its essence” from the CBA, and irreconcilability of the decision with …

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The Code and post-award arbitral discretion

The authors consider the pros and cons of an arbitrator’s retention of jurisdiction. Arbitrator Rehmus reviews the evolution of the doctrine of functus officio, offers guidance on the process, and adopts the view that arbitrators are not functus officio until the job is finished. Arbitrator Nolan discusses several specific ethical issues and Arbitrator Quinn advises …

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Poorly crafted arbitration awards invite judicial attack and frustrate the objective of finality. The authors assert that a competent final and binding award must 1) be enforceable and impervious to legal attack, 2) deter legal challenges (i.e., provide no legal “handle” for appeal) and 3) satisfy the losing party that they have had their “day …

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A defense of greater adherence to more formal rules of evidence and more formalized procedures in arbitration to protect finality and assure certainty and fairness.

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The role of private bargaining and grievance arbitration in eliminating discrimination in the workplace.In Emporium Capwell Co. v. Western Addition, the Court held that the employees’ substantive rights under Title VII cannot be pursued at the expense of orderly collective bargaining under the NLRA. If the union is unable or unwilling to press the discrimination …

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Judicial review of labor arbitration awards: a second look at Enterprise Wheel and its progeny

A discussion as to the degree that external law must be considered, if at all, in the arbitral resolution of the terms of a collective bargaining agreement. The author views the arbitrator as the “reader” of the agreement, under terms set by the parties and that, since the parties have agreed to accept an award …

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