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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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Functus Officio under the Code of Professional Responsibility:The ethics of staying wrong

Article 6.D of the Code of Professional Responsibility – “Clarification or Interpretation of Awards” – states in paragraph 1: “No clarification or interpretation of an award is permissible without the consent of both parties.” In this 3-part article, Attorney Ellman offers reasons that the provision should be deleted from the Code; Attorney Campbell for management, …

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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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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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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 review of the arbitration award concerning the discharge of Alexander and the court cases leading to the Supreme Court’s decision in Alexander v. Gardner-Denver. This is followed by an analysis of the results of a survey of Academy members concerning their experience and their self-defined expertise in disputes dependent on Federal law and judicial …

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The parties have a right to expect an arbitrator to answer the question presented, and to resolve that question with a final award when the hearing has concluded. Interim awards, retention of jurisdiction, remanding matters back to the parties, and expansive commentary generally do not serve the purpose for which the parties retained the arbitrator. …

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A discussion of some of the reasons functus officio hinders rather than promotes achievement of the objective of management-labor arbitration and the power of the arbitrator to make monetary awards. The author offers some conclusions with respect to the operation of the doctrine of functus officio.

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