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Can an employee’s statutory rights be made the subject of a collectively bargained arbitration agreement? Relevant case law is examined. The author concludes that (except in the Fourth Circuit) when employee grievances under CBAs contain statutory issues, those issues may be heard in the courts, notwithstanding that the grievance procedure has not been exhausted. The …

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Mandatory arbitration of statutory claims is discussed, including limitations on the enforceability of related contractual provisions. A sample agreement, mandating arbitration of statutory claims, is appended.

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An examination of the statutory criteria contained in the ADA, and the potential conflict between management’s duty of reasonable accommodation under the ADA, and its Section 8 duty to bargain under the NLRA. A hypothetical case is furnished.

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The author notes that the first obligation of a labor union is to the group rights of its members, and that those interests may be contrary to a disabled member’s rights under the ADA. In Goodman v. Lukens, the Supreme Court said that if a union failed to grieve a race discrimination claim, it might …

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The author explains why he deems it advisable for management to encourage submission of ADA claims to arbitration. He notes the relevance of Gilmer (in which the Supreme Court ruled that an individual’s waiver of judicial enforcement of a statutory claim is enforceable, as opposed to waiver of such rights by the union for its …

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Attorney Brauer asserts that, while other federal legislation dealing with employee discrimination has viewed distinctions between workers as largely irrational, the ADA has turned that precept on its head: it requires that workers not be treated the same. The ADA does not support resolution of such disputes by arbitration under a CBA. The author examines …

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An examination of the factors favoring the arbitration of employment disputes. Gardner-Denver (arbitration presumed to be inappropriate for resolving statutory-based discrimination claims) is distinguished from Gilmer (arbitration is appropriate except where Congress intended to preclude waiver of the judicial forum) by their factual dissimilarities. (See alternative reasoning at 1992, page 82.) The author predicts that …

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An exploration of the impact of the Gilmer decision on arbitration, and the relationship between the Federal Arbitration Act and the Steelworker Trilogy: “Gilmer has laid the foundation for a stronger rule of preclusion in collective bargaining arbitration cases – a rule that may remove a court’s discretion to deny preclusion where the arbitration meets …

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The rise of labor arbitration from the 1940s to 1970s; its plateau in the 1980s (statistics are furnished); the decrease in private sector and increase in public sector arbitration; and the rise of employment arbitration. A distinction is offered between Gardner-Denver (arbitration presumed to be inappropriate for resolving statutory-based discrimination claims) and Gilmer (arbitration appropriate …

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