Academic journal article Law and Contemporary Problems

The Uncertain Future of Mandatory Arbitration of Statutory Claims in the Unionized Workplace

Academic journal article Law and Contemporary Problems

The Uncertain Future of Mandatory Arbitration of Statutory Claims in the Unionized Workplace

Article excerpt

I

INTRODUCTION

For the past seventy years, arbitration has been closely linked to the resolution of labor disputes. (1) Courts have consistently upheld labor arbitration agreements, usually included in collective bargaining agreements (CBAs), because they are the result of negotiations between parties of equal bargaining strength. (2) More recently, however, employers have attempted to use mandatory arbitration to handle disputes relating to individual employees' statutory rights under such laws as Title VII of the Civil Rights Act, (3) the Americans with Disabilities Act (ADA), (4) and the Age Discrimination in Employment Act (ADEA). (5) This use of mandatory arbitration has been the subject of ongoing scrutiny by the courts and commentators because it attempts to use arbitration as a substitute for the courts rather than as the final step of a grievance procedure. (6)

As arbitration processes have improved over the last ten years, the negative perception of mandatory arbitration provisions that apply to statutory claims has decreased. The case law reflects this change in perception, as courts now allow mandatory arbitration of statutory claims brought by nonunion employees. Nonetheless, the almost universal rejection of mandatory arbitration of statutory claims in the collective bargaining context continues. This Article argues that this continued distinction between claims by union and nonunion employees lacks any meaningful justification--that is, that mandatory arbitration of statutory claims is as appropriate, if not more so, in the collective bargaining context as it is in the nonunionized workplace.

Part II of the Article describes the impact of Alexander v. Gardner-Denver Co., (7) the case that remains the precedent for denying unions the right to agree to enforceable mandatory arbitration provisions. Part III explores the changing mentality of the courts regarding mandatory arbitration provisions in individual employment contracts. Part IV clarifies the distinction between individual agreements to arbitrate statutory claims and similar provisions in CBAs and contends that it is a distinction with too little difference to justify disparate treatment by the courts. Part V discusses some recent decisions in which courts have, in fact, rejected this distinction. Finally, Part VI outlines how employers and unions can draft arbitration provisions to increase their likelihood of being upheld in the courts.

II

GARDNER-DENVER AS THE STARTING POINT

In Alexander v. Gardner-Denver Co., the Supreme Court held that an employee does not lose his right to sue under Title VII when he is part of a collective bargaining agreement requiring arbitration of all disputes. In its analysis, the Court distinguished between contractual and statutory rights. (8) While contractual rights are conferred upon employees as a collective, and thus can be bargained away for the benefit of the group, (9) statutory rights are conferred upon the individual and are therefore subject to waiver only on an individual basis. In other words, Title VII rights to equal and fair employment opportunities can be waived only by the person who holds them--the individual worker. (10) The Court also recognized that Congress intended through Title VII to make eliminating discrimination one of the nation's highest priorities. (11) Therefore, the Court held, while arbitration may be appropriate for contractual disputes, an employee's statutory rights under Title VII should not be forfeited by an agreement between his employer and his union. (12)

In addition to distinguishing between contractual and statutory rights, the Court expressed a number of concerns with the arbitration process as it applies to statutory claims. For example, the Court was concerned that union members do not have the opportunity to give individual consent to CBAs and that unions ultimately control access to CBA-mandated arbitration. …

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