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The arbitrator’s remedial powers

An examination of arbitrators’ acceptance (or rejection) of evidence of post-discharge conduct and of later-acquired pre-discharge conduct. Arbitrator Nicolau applies a test of fair warning: If the evidence is revealed when discovered, and in sufficient time for the Union to prepare a defense, the employer is entitled to present it and the arbitrator is obligated …

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Drug-testing disputes

A review of litigation over random and “reasonable suspicion” drug testing. The scientific and technical issues in drug-testing arbitration disputes are explored.

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Remedies, troubled employees, and the arbitrator’s role

The challenges confronting arbitrators in cases involving troubled employees, such as employees with chronic alcohol and drug issues. Remedies based on a traditional corrective discipline, a modified corrective discipline model, and a therapeutic model are examined. Arbitrators are encouraged to prescribe remedies that conform to the values and practices previously adopted by the parties, and …

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Just cause and the troubled employee

A discussion of whether, in assessing the appropriateness of discipline or discharge, arbitrators should take into account “distractions” (such as the employee’s marital, family, financial or legal problems) that cause misconduct or unsatisfactory job performance. Arbitral treatment of alcoholic, drug-addicted, and mentally ill employees is examined. Observations are drawn from cases reported in volumes 70 …

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The author gives an overview of the public sector restraints on drug testing, and private sector issues including the unilateral institution of drug testing, drug screening techniques, random drug testing, refusal to submit to testing, discipline for positive results, and off-duty possession and use. Judicial review of awards on public policy grounds is discussed.

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The author states that drug testing is here to stay; that, when done correctly, it works; and that arbitrators have an obligation to apply the language of the CBA and rely on the evidentiary record, divorced from the emotional factors often associated with substance abuse. The factors affecting when testing is deemed reasonable are described.

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Professor Clark advocates federal legislation to set standards for all forms of employer investigations, searches and tests to uncover illicit drug use, as a means of avoiding inconsistent employer policies and individual arbitrator’s standards. Professor Clark also advocates the decriminalization of drug use (but not trafficking).

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A discussion of the impact of substance abuse in the workplace, and related arbitration decisions. Different approaches taken by the parties and by arbitrators are discussed, as is whether drug should be treated differently from alcohol. The legal status of different drugs in various jurisdictions and in different industrial settings, and the issues arising from …

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A discussion of the experience of the Airline Pilots Association and U.S. carriers in addressing the problems of alcohol and substance abuse, and issues in arbitrating related cases. The impact of the regulatory framework and Federal Aviation regulations is highlighted. A focus on rehabilitation rather than punishment is advocated.

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A discussion of substance abuse issues from the perspective of an employer. The use of job performance approaches are advocated, with a limited joint labor-management approach. A more active role by arbitrators in establishing principles and precedents, and the role of arbitrators as teachers, is suggested.

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