First, the article will review the history of arbitration of statutory employment claims, including the Pyett decision. Second, the article will look at the history and causes of legalism in arbitration. Then the article will consider the probable responses of employers and unions to Pyett. While predictions are necessarily speculative, it is likely that some unionized employers will seek to require employees to arbitrate statutory claims, perhaps in higher percentages than in the nonunion workplace. While unions may, and perhaps should, resist, many future collective bargaining agreements (CBAs) may contain such provisions. The article then discusses the alternative dispute resolution approaches that might be negotiated. The article concludes that if statutory claims are incorporated in the collectively bargained grievance and arbitration procedure, that procedure will become more legalistic, perhaps even in cases where no legal claim is involved. If a separate arbitration procedure for statutory claims is negotiated, however, the new procedure may become the vehicle for legal claims, returning the contractual procedure to its traditional and favored role as an extension of the contract negotiation process. There are many legal and practical hurdles to creating an effective separate procedure for statutory claims in the unionized workplace, however, leading to substantial uncertainty about the future of arbitration in the unionized workplace.
Ann C. Hodges,
Fallout from 14 Penn Plaza v. Pyett: Fractured Arbitration Systems in the Unionized Workplace,
2010 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2010/iss1/3