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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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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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Arbitral implications: Hearing the sounds of silence

Authors Mittenthal and Bloch examine how arbitrators, in performing their interpretive function, find implied obligations that are nowhere mentioned in the contract. Arbitrators embrace those implications that help to preserve the parties’ bargain and reject those that alter or enlarge it. Author Macey agrees that preserving the parties’ bargain should be a guiding concern, but …

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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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A survey of the knowledge and experience of judges, advocates, and arbitrators, as to how their decisions come into being and how they are shaped by their respective institutional frameworks. The first of five reports is the functioning of the arbitrator, for which there are two schools of thought: 1) the arbitrator as problem-solver and …

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The law of contracts: A changing legal environment

Between Harry Shulman’s view that collective bargaining agreements are pacts adopted in complex industrial societies to set up systems for their governance, and the Williston view that a contract is a contract, is the middle ground: collective bargaining agreements as special types of contracts with respect to which the principles of “ordinary” contract law. Professor …

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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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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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Reiterates position previously taken – that arbitrators are bound by the law. Rejects the Mittenthal formula (1968, p. 42). Cites arbitrators’ decisions on both sides of the debate. Discusses cases where courts have considered the merits of awards.

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