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In his 1960 paper, Professor Mittenthal defined a past practice as “the understood and accepted way of doing things over an extended period of time.” In this article, he notes that, in the intervening years, the parties have taken steps to express their obligations in writing, and many employers have negotiated highly restrictive arbitrability clauses. …

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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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Problems of proof in the arbitration process: Report of the Chicago Area Tripartite Committee

A discussion of hearing procedures and the rules of evidence. [See also the transcript of the open discussion, 1966 page 110.]

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Problems of proof in the arbitration process: Report of the West Coast Tripartite Committee

Discussion of pre-hearing procedures, hearing procedures, and rules of evidence, with additional remarks regarding history and theory on these matters. [See also the transcript of the open discussion, 1966 page 214.]

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Problems of proof in the arbitration process: Report of the Pittsburgh Tripartite Committee

A discussion of hearing procedures and rules of evidence. [See also the transcript of the open discussion, 1966 page 263.]

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A review of arbitration decisions, comparing contracts that contain a “maintenance of conditions” provision with contracts that do not. The result of that review: standards for the arbitrator’s decisions and the awards are the same for wash-up time, lunch period and contracting-out cases, but are different for crew-size cases (possibly because crew size goes to …

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Past practices and the administration of collective bargaining agreements

The classic discussion of past practice. When does a customary way of doing things become a binding contractual obligation and when may it be changed? Several answers to those questions are analyzed and evaluated. Elson points out that those who negotiate the CBA and those who adopt practices on the shop floor are not the …

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Arbitration: A union viewpoint

Unions view the arbitration process as an extension of the democratic principles to the industrial world; the agreed-upon substitute for strikes or economic warfare, in a forum that is simpler, more expeditious, more expert and more private that the courts. The CBA is not seen as an exclusive statement of all the rights and privileges …

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The author defines “management rights” as the “residue of existing functions which remain after collective bargaining negotiations,” within which area management is free to act without restriction. The author conceives of the parties’ relationship as one in which all rights reside with management except as ceded to the Union through the bargaining process, and rejects …

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The author views labor as an equal partner with management, and the management rights clause as recognition of solely the fact that it is management that acts, and the union that grieves. The author asserts that unions, like employers, have inherent rights separate from the collective bargaining agreement, and that the CBA does not, alone, …

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