1) Unions in the healthcare industry have gained momentum in organizing nurses and other healthcare workers. Labor laws allow healthcare workers to unionize and collectively bargain. 2) There are typically eight presumptively appropriate bargaining units in hospitals including registered nurses, physicians, and other professional and non-professional staff. Determining appropriate bargaining units can impact union organizing success. 3) During a union organizing campaign, both employers and unions can communicate their messages but cannot threaten or coerce workers. Employers must apply any rules limiting solicitation or use of facilities equally to union and non-union activities.

1. UNIONS IN THE
HEALTHCARE INDUSTRY
By Leslie Goff Sanders, Esq. and Alonda W. McCutcheon, Esq.
Leslie Sanders, formerly of counsel
at Berry 8i Sims PLC, in Nashville, Tenn.,
pracüced law witíi the Firm's Executive
Compensation and Labor and Employ-
ment Practice. Leslie is now a member
ofthe firm Webb Sanders pile where she
continues to practice in the same areas.
Alonda McCutcheon is an associate
with Bass, Berry, Sims. She has worked
in the Labor and Employment Practice
Area since September 2002. She is a
member ofthe firm's Diversity Commit-
tee and a charter member ofthe firm's
African-American Affinity Group.

2. 142
L
abor unions in the healthcare industry have been
much in the news of late, particularly the emer-
gence of large and well-funded nursing unions.
There is a sense of urgency among nursing unions to
organize nurses in large numbers, as well as an increased
push to organize other groups of healthcare workers.
What is the impact of this increased organizing activ-
ity within the healthcare industry? Beyond the obvious
answer of unions' desire to rebuild ailing labor unions
and increase dues revenue, in order to fully answer thèse
questions, it is important to understand both the past
and the current labor relations landscape. This article
will provide an overview ofthe application of labor law
in the healthcare industry and a practical discussion
of the changes businesses will face if their workforce
becomes unionized.
I. Labor Relations 101
Traditionally, people think of unions as the champions
of the blue-collar worker in the manufacturing setting.
The service industry has outgrown the manufacturing
industry, which means the focus of union organizing
activity has shifted as well.
For the healthcare industry, the origin of this "shift"
dates back to 1967 when the National Labor Relations
Board (NLRB) first recognized the right of hospital work-
ers to join unions and participate in collective bargaining
with their employers.' In 1974, Congress amended the
National Labor Relations Act (NLRA) to cover both

3. for-profit and nonprofit healthcare institutions under the
provisions and restrictions of the NLRA.̂
© 2010 by Leslie Goff Sanders, Esq. and Alonda W.
McCutcheon, Esq.
LABOR LAW JOURNAL
The NLRA gives employees certain rights
including: (1) the right to form, join or assist
labor organizations (i.e. unions); (2) the right to
collective bargaining; (3) the right to engage in
concerted activity with their co-workers for their
mutual benefit or protection; and (4) the right
to refrain from participating in union activities.̂
These rights, combined with the fact that hospi-
tals are subject to the NLRA, make it possible
for healthcare workers to join unions.
A. Appropriate Bargaining Units
A bargaining unit is defined as "a grouping of
two or more employees aggregated for the as-
sertion of organizational rights or for collective
bargaining."'' Unions may become certified
when a majority of workers in the appropriate
bargaining unit seek union representation. In
determining what is an appropriate bargaining
unit, the NLRB considers similarity of skills,
work hours, wages and working conditions as
well as the desires of the employees, bargaining
history and the extent of union organization.'
In the healthcare industry, the appropriate bar-
gaining unit is often a topic for debate. In acute
care hospitals, there are, with rare exceptions,

4. only eight presumptively appropriate bargaining
units: (1) registered nurses; (2) physicians; (3) all
professionals except for registered nurses and
physicians; (4) technical employees; (5) skilled
maintenance employees; (6) business office cleri-
cal employees; (7) guards; (8) all nonprofessional
employees, except for technical employees,
skilled maintenance employees, business of-
fice clerical employees and guards.* In all other
healthcare facilities, the NLRB considers the
"community of interest" and determines appro-
priate bargaining units on a case-by-case basis.'
The recognition of these distinct, separate units
in the hospital has made it easier for groups of
employees to organize. For example, if the NLRB
determined that a broader group of employees
still has a sufficient "community of interest" to
constitute an appropriate unit, then nurses would
arguably have a more difficult time generating
the requisite support for a union when lower
paid, less skilled employees do not have the same
concerns or interests as the nurses.
In Boston Medical Center Corp.^, a significant
decision in this industry that directly impacts
the determination of an appropriate bargaining
unit, the NLRB overruled its prior decisions and
held that interns, residents, and fellows were
employees and, therefore, could engage in col-
lective bargaining and select a labor organization
to represent them. Previously, this category was
excluded because the role was considered to be
primarily that of a student, not an employee.
In public service or government facilities, the
rules regarding the appropriate bargaining unit

5. may differ. Such facilities are generally subject
to state laws which will vary with respect to the
determination of appropriate bargaining units,
and, thus, the NLRE's community of interest
rules would not apply. For example, in New
York, the Pubhc Employees' Fair Employment
Act permits government employees to orga-
nize and requires public employers to enter
into agreements with the union.'' Government
employers include public benefit corporations
which encompass certain hospitals in the state of
New York.'" Because the Public Employees' Fair
Employment Act does not have the same rules
as the NLRA, bargaining units at public hospi-
tals in New York may be composed of multiple
disciplines and professions as opposed to those
specifically enumerated in the NLRA rules.
Of course, American labor law specifically
excludes supervisors from the bargaining unit."
A supervisor is defined as "any individual hav-
ing authority, in the interest of the employer, to
hire, transfer, suspend, layoff, recall, promote,
discharge, assign, reward or discipline other
employees, or responsibility to direct them, or to
adjust their grievances, or effectively to recom-
mend such action, if in the connection with the
foregoing the exercise of such authority is not of
a merely routine or clerical nature, but requires
the use of independent judgment."'^
Several courts have wrestled with this defini-
tion when determining whether a charge nurse
may be a member of a bargaining unit. In NLRB
V. Health Care (^Retirement Corp.," an employer
was accused of committing an unfair labor prac-

6. tice by disciplining four LPNs for engaging in
union activity. The NLRB had found that the
143
UNIONS INTHE HEALTHCARE INDUSTRY
only discretion exercised by the LPNs was in
the interest of patient care, not in the interest
of the employer, and they were not, therefore,
supervisors. The employer argued that the LPNs
were supervisors, because they were responsible
for ensuring adequate staffing, assigning work
and evaluating the work performance of and
issuing discipline to nurses' aides. The United
States Supreme Court rejected the NLRB's
distinction between acts taken in connection
with patient care and acts taken in the interest
of the employer, and it concluded the LPNs
were supervisors.
A few years later in NLRB v. Kentucky River
Community Care, Inc.,^^ the Supreme Court re-
viewed the NLRB's order requiring a mental
health care facility to bargain with RNs, whom
the employer contended were supervisors. The
NLRB ruled that, while the RNs exercised
discretion with respect to the supervisory acts
identified by the NLRA, their "independent
judgment" was "ordinary professional or techni-
cal judgment in directing less-skilled employees
to deliver services."'^ Thus, according to the
NLRB, the RNs were not "supervisors." The Su-
preme Court rejected this limitation and refused

7. to enforce the NLRB's order requiring the health
care facility to bargain vsdth the RNs.
In Oakwood Healthcare, Inc.,"' the NLRB de-
termined that, while regular charge nurses at an
acute care hospital were supervisors, the "rotat-
ing" charge nurses were not supervisors. The
NLRB noted that when an individual spends a
regular and substantial portion of his work time
performing supervisory functions, he is a supervi-
sor and exempt from the NLRA." (The NLRB
will generally find supervisory status where the
individual serves in a supervisory role for at least
10 to 15 percent of his total work time, though
there is no strict numerical definition.)'̂ In Oak-
wood, the facility did not have an established
pattern or predictable schedule for when and
how often RNs take turns in working as charge
nurses. The regular charge nurse worked 10 out
of 14 days in a pay period. On the four days the
charge nurse was off, other nurses would assume
the role of charge nurse. The hospital did not
have a designated method for choosing the RN
that would rotate into the charge nurse position.
In the absence of any showing of regularity,
the NLRB determined that the rotating charge
nurses' supervisory duties were not a substan-
tial part of their work time, and therefore, they
were properly included in a bargaining unit of
nurses.
B.The Election and Campaign Process
In order to be represented by a union, the em-
ployees seeking representation generally sign a

8. petition or authorization cards indicating their
interest in union representation." The NLRB
then determines if there is a sufficient showing
of interest in an appropriate unit.̂ " The NLRB
requires that 30 percent of the workers express
interest. '̂ Signing the petition or the authoriza-
tion card does not mean that the worker must
vote for the union in a subsequent election. A
company may voluntarily recognize a union
when a majority ofthe workers Mdthin an appro-
priate bargaining unit expresses interest in union
representation. Under these circumstances,
if requested the NLRB will certify a union as
the exclusive bargaining representative of the
employees within the bargaining unit." In the
absence of voluntary recognition, the NLRB
will hold a secret-ballot election in which the
employees in the particular bargaining unit
are eligible to vote on whether they want to be
represented by a union." If a majority of the
employees in the unit who vote cast their ballots
in favor of union representation, then the NLRB
will certify the union as the exclusive bargaining
representative.^''
The election process could change if Congress
enacts labor-friendly legislation. The Employee
Free Choice Act (EFCA) has garnered much
attention from employers and unions. EFCA
has lost momentum since it was introduced as a
bill, but labor reform remains a top priority for
some lawmakers and organized labor. EFCA in
its most recent form would have taken away the
secret ballot election so that if a majority of em-
ployees in a bargaining unit indicate approval of
a union election on a card or petition, this would

9. effectively be a vote for the union." Generally
speaking, unions favor this type of legislation
144
LABOR LAW JOURNAL
in part because the absence of secret-ballot waive fees if such
offer is unconditional, unam-
elections wifl increase the likelihood of union
success.̂ ^ By the same token, businesses are not
in favor of this type of legislation in part because
a union could organize the employees without
any notice whatsoever to the employer." There
have long been talks of compromise indicating
that some type of legislation to amend the NLRA
biguous and applicable to all employees."
During a pre-election campaign, employers
may not punish or reward employees based
on their pro-union or anti-union activities un-
less the conduct violates legal policies and
procedures, makes threats" ("We will close the
plant if the union wins the election."), conduct̂ "
could stiflemerge.̂ ^ The prospect of EFCA being polls or
surveys of employees' support for
passed in some itera-
tion could also change
the landscape of the
campaign process as we
currently know it. Cur-
rently, employers are

10. put on notice of union
organizing activity when
a representation petition
has been filed (if the employer has not already
caught wind ofthe organizing efforts). The short
period of time between the filing of the petition
and the date of the election (usually an average
of 42 days) is the campaign period. As discussed
above, the concern is that legislation similar to
EFCA would eliminate this campaign period
because by the time an employer had notice
of union organizing the union is likely to have
secured a sufficient showing of interest.
During a union campaign, both the employer
and union must be careful that they do not en-
gage in conduct that may interfere with, restrain,
or coerce employees in the exercise of the rights
guaranteed in Section 7 of the NLRA." So what
conduct can employers and unions lawfully en-
gage in during a campaign? Both sides can convey
their respective messages through literature and
campaign paraphernalia (i.e. buttons, t-shirts, etc.)
Employers can discuss the disadvantages of having
a imionized workforce,̂ " compare their compen-
sation and benefits with union shops and other
employers, solicit employee grievances as long
as there is no promise to remedy the grievance, '̂
and correct any untrue statements made by the
union. Employers also can attempt to curb union
campaign activity by enforcing non-solicitation
and non-distribution policies. (See below for fur-
ther discussion of solicitation and distribution.)
The prospect of EFCA being
passed in some iteration could

11. also change the landscape of
the campaign process as we
currently know it.
union, make" promises
("You will get a raise or
promotion if you vote
against the union."), and
conduct surveillance of
employees,'* including
videotaping and photo-
graphing employees."
Employers cannot law-
fully prohibit the wearing of union buttons and
insignia absent "special circumstances" justifying
the restriction." Much like employers, unions
also are prohibited from threatening" non-
supporters and from unexplained photographing
or videotaping of employees.""
Having well-established policies concerning
solicitation and distribution in the workplace is
critical to combating the threat of union orga-
nization. However, if such policies do not exist
or have not been consistently enforced prior to
union organizing, then an employer may not
adopt or attempt to enforce such policies in order
to deter union activity."' The key with regard to
the enforcement of any non-solicitation and non-
distribution policy is ensuring that the policy is
applied in a non-discriminatory manner.
An employer may prohibit solicitation and
distribution during working time."̂ Distribution

12. of literature may be further restricted to work
areas."' These restrictions must apply to solicita-
tion and distribution of any nature, not just union
activity."" Solicitation can occur, however, dur-
ing non-working time such as breaks, lunch, or
before and after a shift."' Similarly, distribution
of literature can occur during nonworking time
and in nonwork areas."* A prohibition against
solicitation and distribution by off-duty em-
ployees is permitted only where the employer's
Conversely, a union may offer to reduce dues or pohcy restricts
the off-duty employees' access
145
UNIONS IN THE HEALTHCARE INDUSTRY
to working areas or the inside of the facility
and such policy has been clearly disseminated
to employees and consistently enforced against
any off-duty employee seeking access, not just
against those engaged in union activity. Gener-
ally, an employer cannot prohibit off-duty em-
ployees from soliciting and distributing outside
the facility in parking lots or other nonworking
areas. Moreover, a policy that prohibits an em-
ployee from "loitering" after working hours is
likely unlawful."'
E-mail serves as an important tool for com-
munication in the healthcare industry. This is
particularly true for communication between
employees on different shifts or in different fa-

13. cilities operated by the same business. While it
is permissible for healthcare companies to limit
e-mail usage for business-related communication
only, selectively enforcing the policy can violate
the LMRA.""* Unions will use e-mail as a method
of communication because it is an efficient and
effective way to reach employees. Employers
need a clear e-mail communication policy that
limits soUcitation and other non-business related
e-mails, and the employer must uniformly disci-
pline employees who violate the policy
Unions are not only targeting healthcare
workers but they are also appealing to patients
and the patient's families. In healthcare fa-
cilities, employers can restrict solicitation and
distribution in "immediate patient care areas,"
such as operating rooms, patient rooms and
treatment rooms."' A hospital also may restrict
non-employees from entering the property and
communicating with patients or their families.'"
On the other hand, hospital employees are
generally permitted to solicit and distribute to
patients and their families during nonworking
time and outside of patient care areas.
C. Negotiations Between the Union
and the Company
Once a union is certified, then it is the exclusive
representative ofthe appropriate bargaining unit,
for example, the nurses.'' This means that only
the union may negotiate with the healthcare facil-
ity regarding nurses' rates of pay, wages, hours
of employment and other conditions of employ-
ment." The union will be the representative of

14. fl//the nurses in the bargaining unit, not just the
nurses that actually voted for the union or pay
union dues." If a union is certified, then as a gen-
eral rule, the employees in the bargaining unit
will not have individual contracts with the facility
that pertain to the conditions of employment.
Currently, the NLRA requires employers and
unions to negotiate in good faith, but there is
no requirement the parties reach an agreement
within a certain period of time. If legislation such
as EFCA is passed, it could limit the negotiations
between the union and the employer by forcing
mandatory arbitration of initial disputes.'" Such
legislation could add timelines to the initial
bargaining process. EFCA would have required
the parties to reach an agreement within 90 days
after the bargaining process begins. If no con-
tract is executed after 90 days, then either party
could request mediation. If there is no agreement
reached within 30 days from the date media-
tion is requested, then an arbitrator will decide
the terms of the contract that the parties will be
required to follow for the next two years." This
is an example of the type of labor reform that
has been considered. Essentially, such reform
would take the bargaining process out of the
hands of the parties who know the most about
the particular healthcare facility and place it
in the hands of a neutral arbitrator who is not
familiar with the business.
ll.The Current Union Landscape
In February 2009, three nurses unions repre-
senting nearly 150,000 nurses announced plans

15. to merge and form the largest nurses' union to
date.« The United American Nurses ("UAN"),
the California Nurses Association ("CNA"), and
the Massachusetts Nurses Association ("MNA")
formed a "Super Union" known as the Na-
tional Nurses United. ("NNU") on December
7, 2009 in Phoenix, Arizona." The focus of the
NNU is to engage in widespread organizing as
"a substantial majority of the budget shall be
dedicated to new organizing;"'^ create a national
Taft-Hartley pension plan for union registered
nurses, and emphasize protecting and expanding
146
LABOR LAW JOURNAL
the rights of registered nurses, including promot-
ing the passage of National Nursing Shortage
Reform and Patient Advocacy Act."
Just two months after the announcement of
the "Super Union", six state nurses associations
that were formerly affiliated with the UAN
announced the formation of a new national
nurses' labor federation - the National Federa-
tion of Nurses ("NFN").'" This union represents
approximately 70,000 registered nurses in
various states including New Jersey, New York,
Ohio, Montana, Oregon and Washington."'
The NFN stated that it will differ from the
NNU in that each state affiliate will be autono-
mous and may voluntarily join the national
organization."2 According to NFN literature,

16. the sole purpose of NFN is "to provide sup-
port, education and assistance to nursing labor
organizations (NLOs) who represent RNs for
collective bargaining.""' Similar to the NNU,
the NFN also supports pension reform and
workplace protections.""
The Service Employees International Union
("SEIU") has over 2 million members and rep-
resents a variety of service employees, including
healthcare workers."^ Ofthe 2 miUion plus mem-
bers, nearly half are in the healthcare industry
with 110,000 nurses and 40,000 physicians."" In
March 2009, the SEIU and the CNA announced
a cooperation agreement in an effort to unionize
healthcare workers and step up efforts to enact
the EFCA."' The two unions have vowed to
refrain from "raiding" each other's members."*
The agreement between the two rival unions has
been referred to as a "truce.""' However, SEIU
president Andy Stern has said that it is more
than a truce: "[i]t's really trying to establish a
partnership at a moment of profound change in
our country." According to the CNA, it will be
the leading voice for RNs and SEIU the lead-
ing voice for all other hospital workers™ though
the SEIU certainly has a strong contingency of
nurses under its umbrella.
At least one union, the National Union of
Healthcare Workers ("NUHW"), is not joining
forces with the SEIU to organize healthcare
workers. Expelled from office by SEIU President
Andy Stem, these former Executive Board mem-
bers and Stewards of SEIU United Healthcare

17. Workers-West ("SEIU-UHW")" formed their
own independent union on January 28, 2009
and are hoping to attract non-unionized health-
care workers as well as healthcare workers who
are currently being represented by the SEIU."
NUHW purports to advance the practices and
principles of SEIU-UHW and seeks to restore
effective representation for SEIU-UHW mem-
bers who are under the "dictatorial control of
SEIU's appointed trustees.""
lll.The Impact on Healthcare
The answer to the question "why the hype" is
really quite simple - the current White House
administration. Rose Ann DeMoro's, now the
executive director of National Nurses United
comment says it all: "the Obama administration
has certainly been a shot in the arm...." for the
ailing labor unions.'" President Obama received
tremendous support from organized labor during
his campaign and is expected to support union-
friendly legislation throughout his presidency,
though his support of organized labor took a
back seat to healthcare reform and the economy.
In fact, the day of his inauguration President
Obama took a major step toward returning the
support from organized labor with the appoint-
ment of Wilma B. Liebman as Chairman of the
NLRB. Ms. Liebman was first appointed to the
Board in November 1997 by former President
Bill Clinton.'̂ Ms. Liebman replaces Peter Carey
Schaumber as Chairman. Mr. Schaumber ex-
pired term on August 27, 2010.'" He was serving
in his second term on the Board, having been ap-
pointed by former President George W. Bush in

18. September 2005." President Obama nominated
Craig Becker (Democrat), Mark Gaston Pearce
(Democrat) and Brian Hayes (Republican) to
the three remaining Board seats. On June 22,
2010, the Senate confirmed Hayes and Pearce,
but Becker was not confirmed. Becker is cur-
rently on the Board filling a recess appointment
by President Obama which is set to expire in
December 2011. Controversy ensued over the
nomination of Becker who served as Associate
General Counsel to both the SEIU and the AFL-
147
UNIONS IN THE HEALTHCARE INDUSTRY
CIO when Senator John McCain threatened to employees in
other facilities. Because campaigns
place a hold on Becker's nomination.
Even more significant is the support President
Obama has received from the unions on health-
care reform. Last year, DeMoro said, "we're going
to be pushing the Obama administration to imple-
ment the most progressive health-care reform
imaginable, which is universal health care, the
highest standard of care for all patients."'* There
can be little doubt that unions will continue to
turn up the heat on passage of labor reform."
Once employees organize, then the land-
scape at the healthcare facility will change. At
non-union facilities, people often refer to the
human resources function as "employee rela-

19. tions." In a union facility, the nomenclature is
often involve an inordinate amount of time and
resources, a company may consider entering
into a neutrality agreement with the union which
requires the company to remain neutral during
the union's organizing activities.*" A divided
workforce can pose an extreme hardship on a
healthcare facility, so an agreement to work co-
operatively may be a good business decision. A
company may also voluntarily recognize a union
without an election, though under the current
law, an election is the only way to be certified
by the NLRB.«'
Why would a company enter into a neutral-
ity agreement with or voluntarily recognize a
union? There are several reasons. A plausible
usually "labor relations." This seemingly insig- scenario is one
in which the company has a
nificant difference actu-
ally points out the most
fundamental change
a healthcare facility
will experience when
it goes from non-union
to union - it stops deal-
Once one facility becomes
organized, then the union may
very well seek to represent
employees in other facilities.
good working relation-

20. ship with a union in
a particular facility. A
different union may be
attempting to organize
another facility. The
company would rather
ing directly with employees and begins deal- work with the
union with which it is already
ing indirectly with employees through a labor
union. Thus, the relationship between individual
employees and the employer is no longer the
measuring stick for determining whether a
company is a good employer. Instead, the re-
lationship between the union and the company
is the determinative factor.
The unions' interest is in all of the employees
collectively, not each individual employee. Col-
lective bargaining by its very nature involves
negotiating the needs of the workforce as a
whole. Instead of individual agreements with
each employee, there is one contract that ap-
plies to all of the employees in a bargaining
unit. This is a fundamental change, particularly
when the bargaining unit consists of physicians
who often negotiate individual contracts with
the employer.
If your healthcare company operates multiple
facilities, then you may discover that the union
organization of one facility will have a ripple
effect. Once one facility becomes organized.
familiar. Also, the negotiating process may be
shortened drastically if the company has one

21. union to deal with as opposed to a different
union at each facility or for each bargaining unit.
The company may also simply want to avoid the
cost of another campaign.
The disciplinary system of the healthcare
facility that has been unionized is the subject of
mandatory bargaining.*^ Likewise, the law re-
quires management and unions to bargain over
a grievance process which nearly always results
in a formal grievance procedure included in
the collective bargaining agreement." With
respect to discipline of employees, the union
will grieve disciplinary action taken against
an employee if the union believes it is a viola-
tion of the collective bargaining agreement. It
is a fairly common practice in the healthcare
industry for facilities to have internal griev-
ance procedures in place whether or not the
employees are represented by a union. In these
facilities, employees who believe they have
then the union may very well seek to represent received
discipline either in a discriminatory
148
LABOR LAW JOURNAL
manner or contrary to company policy may
internally appeal the disciplinary decision
through a grievance process. The peer review
process is in some ways similar to a grievance
proceeding in that a decision is reviewed to

22. give it a sense of fairness.
In a union setting, the concept is the same,
but the mechanics differ. For example, it is the
union that files the grievance on behalf of the
employee. Thus, the company works with the
union, not necessarily the employee, to resolve
the dispute.*" The outcome of the negotiation is
binding on the employee.*' Note that for pub-
lic sector employees,
it may be permissible
for employees to file a
grievance directly with-
out the presence of the
union.** If the union and
the company cannot
reach an agreement,
then most collective
bargaining agreements require arbitration by a
neutral third party of the dispute. Arbitration is
also a mandatory subject of collective bargain-
ing." In a non-union facility, there is generally
not a provision requiring third-party arbitration
of dispute. In other words, once the internal
appeal process is exhausted, the matter is over
unless the employee files a legal claim against
the employer.
Management personnel in union facilities
will have additional obligations that did not
exist prior to the organization of the workforce.
Obviously, if a union comes to your healthcare
facility, then there will be significant changes
in the function of the human resources depart-
ment. You will have to employ human resources
professionals who can effectively deal with the

23. union representatives. The staff will have to
know the collective bargaining agreement and
understand the way in which it works. Likewise,
the negotiation of a collective bargaining agree-
ment will require a significant amount of time
and resources. The company will need someone
at the bargaining table that is intimately familiar
with the company, the particular workforce and
the industry.
In addition to the changes in
dealing with the workforce,
unions may also bring political
or social agendas to the
A workforce on strike constitutes the most
disruptive action for a business. In fact, one of
the few provisions in a collective bargaining
agreement that actually benefits an employer is a
"no-strike" provision. States may prohibit public
sector healthcare workers from striking.** In the
private sector, healthcare workers may strike
but there are some limitations. For example,
the Labor Management Relations Act requires
parties to a collective bargaining agreement to
provide notice to the other.party of its intent to
modify or terminate the contract 60 days before
its expiration date. In the healthcare industry,
the notice is extended
to 90 days.*' During this
"cooling off" period,
an economic strike is
prohibited.'" For health-
care workers, there is an

24. additional cooling off
period. The union must
give the employer and
the Federal Mediation and Conciliation Service
at least ten days notice of its intent to strike." This
additional cooling off period applies to any work
stoppage, not just a strike, including refusal to
work overtime."
Hospitals in the Minneapolis-St. Paul area
have recently felt the effects of a nurses' strike.
Nurses at the fourteen hospitals are represented
by the Minnesota Nurses Association. Collec-
tive bargaining agreements covering approxi-
mately 12,000 nurses expired on June 1, 2010.
A major issue in the negotiations is the nurse-
to-patient staffing ratios. Thousands of the
nurses participated in a one-day strike against
the hospitals on June 10, 2010. The hospitals
hired 2800 temporary nurses to fill in for the
workers that day. Some hospitals rescheduled
elective surgeries and took other measures
to make up for the reduced labor force. On
June 25, 2010, the union filed a strike notice
indicating that its members had approved an
open-ended strike beginning July 6, 2010 at
six of the hospitals." The parties reached an
agreement, however, on July 1,2010, ending the
bitter dispute and avoiding the biggest nursing
strike in U.S. history.'"
149

25. UNIONS IN THE HEALTHCARE INDUSTRY
In addition to the changes in dealing with the
workforce, unions may also bring political or
social agendas to the healthcare facility. Nurses
unions in particular have certain platforms that
reach beyond wages, hours and benefits. They
promise to improve what is likely the number
one concern for all nurses - patient care. As
mentioned above, UAN, CNA, MNA and
their recently-formed super union all support
nationalized universal healthcare. Sometimes,
patient care is directly related to nurse's work-
ing conditions and causes a difference of opin-
ion among the nurses' unions. A good example
of this is patient ratios. Some nurses want strict
ratios while others prefer staffing committees,
and still others have a variety of opinions on
the issue. It is quite understandable that with
the varying opinions, the nurse's unions differ
on this point as well. For example, in Penn-
sylvania, the CNA proposed and supported
state legislation related to nurse-patient ratios
and according to a CNA spokesperson, the
Pennsylvania Nurses Association, an affiliate
ofthe American Nurses Association ("ANA"),
opposed the proposal as written.'^ Thus, the
healthcare facility may get increasing pressure
from the union to support its platform. If the
employer and the union have different views
(which is quite possible), then the tension be-
tween the employees and the employer may
be greater than in the non-union facility. In
the non-union facility, the employees are free
to support their causes, but such support is

26. separate from their employment. In the union
facility, the platforms of the workers may in-
directly or even directly become a subject in
the collective bargaining process between the
employer and the union, such as the nurse-to-
patient staff ratios in Minnesota.
With a Democratic-controlled Congress and
White House, unions will seek to organize
healthcare workers like never before. Unions
are businesses. Their revenue is generated
by the dues paid by the members. If laws are
in place to make it even easier for unions to
organize workers, then it is a prime time to
increase membership, and theref^ore, revenues.
There are healthcare facilities and unions that
have managed to work well together and reach
palatable compromises. There are others that
have not had such good fortune. There are
lessons to learn from both, namely that col-
lective bargaining is all about compromise.
Perfect union contracts do not exist because
individual needs and wants vary. If your
healthcare facility finds itself on the other side
of a union contract, remember that mutual
respect is the key to successful negotiations
and long-term relationships between unions
and employers. •
ENDNOTES
See Butte Med. Prop., 168 NLRB 266 (1967).
29 U.S.C. §152(14).
29 U.S.C. §157.
UFCW, Local 1036 v. NLRB, 307 F.3d 760, 764
n. 3 (9th Cir. 2002) (citing I Patrick Hardin, THE
DEVELOPING LABOR LAW 448 (1992)).

27. See NLRB v. Metro. Life Ins. Co., 380 U.S. 438
(1965).
29C.F.R. § IO3.3O(a)
See Meijer, I n c . v. NLRB, 564 F.2d 737, 740,
96 LRRM 2738 (6th Cir 1977).
I62LRRM 1329(1999).
NY CLS Civ S §200 et seq.
N Y C L S a v S § 2 0 l ( 6 ) ( a )
29 U.S.C. §152(3).
29 U.S.C. §152(11)
NLRB V. Health Care & Retirement Corp., 511
U.S. S7I (1994).
NLBR V. Kentucky River Community Care, Inc.,
532 U.S. 706(2001).
Id. at 714.
Oakwood Healthcare, Inc., 348 NLRB 686, 180
LRRM 1257(2006).
Id. at 694.
Id.
An employer may voluntary recognize a union, but
ordinarily, the employer recognizes the union only
after the election process described herein.
29 U.S.C. I59(a).
NLRB Statements of Procedure §101.21
Lincoln Park Zoological Soc'y v. NLRB, 116 F.3d
216, 219 (7* Cir 1997).
29 U.S.C. §l59(e).
Id.
H.R. 1409, S. 560
Labor Relations Expediter (Analysis), "Employee
Free Choice Act - Pending Legislation," Labor
and Employment Law Library, The Bureau of
National Affairs.
Id.

28. 83 Daily Labor Report C - l , May 4, 2009 (The
Bureau of National Affairs)
29 U.S.C. § IS8(a)(l) and 158 (b)(l)(A)
Children's Center for Behavioral Dev., 347 NLRB
35(2006)
Airport 2000 Concessions, LLC, 346 NLRB 958
(2006)
NLRB V. Savair Manufacturing Co, 414 U.S. 270
(1973)
See Leiser Construction, LLC, 349 NLRB 413
(2007)
GrenadaStampingand Assembly, Inc., 351 NLRB
1152(2007)
Valerie Manor, Inc., 351 NLRB 1306 (2007)
See Ivy Steel and W i r e , Inc., 346 NLRB 404
(2006)
See Kingsbridge Heights Rehab. Care Center,
352 NLRB 6 (2008)
Republic Aviation v. NLRB, 324 U.S. 793,803-04
(1945): see also. Airport 2000 Concessions, LLC,
346 NLRB 958 (2006)
PPG Industries, Inc., 350 NLRB 225 (2007)
See Randell Warehouse of Arizona, 347 NLRB
591 (2006)
Downtown Hartford YMCA, 349 NLRB 960
(2007): See also Baptista's Bakery, Inc., 352 NLRB
547 (2008)
Douglas E. Ray et al.. Understanding Labor Law
(2d ed 2005).
Id.
Publix Super Markets, Inc., 347 NLRB 1434
(2006)
ISO

29. LABOR LAW JOURNAL
Douglas E. Ray et al.. Understanding Labor Law
(2d ed 2005).
Id.
Tecumseh Packaging
Solution
s, 352 NLRB 694
(2008)
Guard Publishing Co. v. NLRB, 571 F.3d 53 (D.C.
Cir. 2009)
Beth Israel Hospital v. NLRB, 437 U.S. 483
(1978); NLRB v. Baptist Hospital, Inc., 442 U.S.
773(1979).
See NLRB v. Babcock and Wilcox Co., 351 U.S.
105(1956)
29 U.S.C. §l59(a).
Id.
Id.
Labor Relations Expediter (Analysis), "Employee
Free Choice Act - Pending Legislation," Labor
and Employment Law Library, The Bureau of
National Affairs.

30. H.R. 1409; Id.
31 Daily Labor Report AA-1, February 19,2009
(The Bureau of National Affairs)
Id.; 233 Daily Labor Report B-l, December 8,
2009 (The Bureau of National Affairs)
http://www.uannurse.org/documents/National-
NursesUnitedFAQ.doc; see also 223 Daily Labor
Report B-l, December 8, 2009 (the Bureau of
National Affairs)
Id. http://www.medical news today.com/ar-
ticles/ 161698.php; http://www.nationalnurse-
sunited.org/about/; 90 Daily Labor Report A-13,
May 12, 2010 (The Bureau of National Affairs)
71 Daily Labor Report A-12, April 16,2009 (The
Bureau of National Affairs)
Id.
Id.
http://www.nysna.org/images/pdfs/nfn/NFN_
lntroduction.pdf
Id.
52 Daily Labor Report A - l , March 20, 2009
(The Bureau of National Affairs); www.SEIU.
org/ourunion
www.SEIU.org/ourunion

31. www.calnurses.org/media-center/press-releases
Id.
w w w . b o s t o n . c o m / b u s i n e s s / a r t i -
cles/2009/03/19
www.calnurses.org/media-center/press-releas-
es
Formed on January I, 1995, the SEIU United
Healthcare Workers-West is the largest health-
care union in the western united States and a
local affiliate of the SEIU.
http://www.nuhw.org/about/
Id.
Id.
http://www.nlrb.gov/about_us/overview/board/
wilma_b_liebman.aspx
htpp://www.nlrb.gov/about_us-overview/board/
index.aspx
http://www.nlrb.gov/about_us/overview/board/
peter_c_schaumber.aspx
http://www.calnurses.org/media-center/in-the-
news/2009
http://www.deiu.org/2009/05/seiu-announces-
unprecedented-coalition-to-sav-2-trillion-in-
healthcare-costs-pass-obama-healthcare.php

32. SeeAK Steel Corp. v. United Steel Work-
ers of Am.. 163 F.3d 403, 160 LRRM 2065 (6th
Cir. 1998).
See Gen. Box Co., 82 N.L.R.B. 678, 23 LRRM
1589(1949).
29 U.S.C. §l58(d)
See U.S. Gypsum Co.. 94 N.L.R.B. 112, 28
LRRM 1015(1951).
See Plumbers & Pipefitters Local 520 v.
NLRB, 955 F.2d 744, 139 LRRM 2457 (D.C. Cir.
1992).
See Id.
Smith V. Ark. State Highway Employees,
441 U.S. 463, 101 LRRM 2091 (1979).
Wire Prods. Mfg. Corp., 329 N.L.R.B. 155,
165 LRRM 1014(1999).
NY CLS Civ S §200.
29 U.S.C. §l58(d)
See Mastro Plastics Corp. v. NLRB. 350
U.S. 270, 37 LRRM 2584 (1956).
29U.S.C. §l58(g)
N.Y. State Nurses Ass'n, 334 N.L.R.B. 798,
167 LRRM 1313 (2001).
122 Daily Labor Report A-IO,June 28,2010 (The
Bureau of National Affairs)

33. http://www.startribune.com/lifestyle/
health/97611569.html (July 2, 2010)
71 Daily Labor Report A-12, April 16,2009 (The
Bureau of National Affairs)
I S I
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T H E SUPREME COURT'S 14
PENN PLAZA, LLC V, PYETT
DECISION: IMPACT AND
FAIRNESS CONSIDERATIONS FOR

34. COLLECTIVE BARGAINING
By David P. Twomey*
I. Introduction
David P. Twomey is a Professor at
Boston College, Carroll School of Man-
agement and member ofthe National
Academy of Arbitrators
Labor arbitration is an alternative dispute resolution
process created by the parties to a collective bargain-
ing agreement. In the private sector, an arbitration is
generally confined to a question of whether or not a
particular action was valid under the CBA. And the
powers and duties of an arbitrator are as set forth and
limited by the terms of the CBA.' Some fifty years
ago, as part ofits Steelworkers Trilogy,'^ the United States
Supreme Court announced a strong presumption in
favor of arbitrability in the United Steelworkers v. War-
rior & Gulf Navigation Co., as follows:

35. To be consistent with the congressional policy
in favor of settlement of disputes by the parties
through the machinery of arbitration...[a]n or-
der to arbitrate the particular grievance should
not be denied unless it may be said with posi-
tive assurance that the arbitration clause is not
susceptible to an interpretation that covers the
asserted dispute. Doubts should be resolved in
favor of coverage.^
In the United Steelworkers v. Enterprise Wheel & Car Co.
component ofthe Trilogy, the Supreme Court approved
the role of arbitrators as the interpreters of the contract
in the following language:
© 2010 by David P. Twomey
THE SUPREME COURT'S 14 PENN PLAZA. LLCV. PYETT
DECISION
The question of interpretation of the col-
lective bargaining agreement is a ques-
tion for the arbitrator. It is the arbitrator's

36. construction which M
̂ as bargained for; and
so far as the arbitrator's decision concerns
construction of the contract, the courts have
no business overruling him because their
interpretation of the contract is different
from his.'*
Over the years the Supreme Court expanded
the use of arbitration in employment disputes
beyond arbitration under collective bargaining
agreements to approval of the use of arbitration
to resolve individual employment agreements
to arbitrate statutory rights.^ The Supreme
Court in 14 Penn Plazfi, LLC v. Pyett recently
decided that a provision in a collective bargain-
ing agreement that "clearly and unmistakably"
requires union members to arbitrate claims aris-
ing under a federal antidiscrimination statute is
enforceable and is a waiver of union members'
rights to pursue statutory discrimination claims
in federal courts.* The decision was a significant
departure from existing precedents going back
to the Court's 1974 Alexander v. Gardner-Denver
Co. decision that allowed a union member to
pursue a grievance-arbitration remedy under a

37. CBA, and after an adverse arbitration award, to
pursue statutory rights in a federal court under
the Title VII of the Civil Rights Act of 1964.̂
Where once labor arbitrators were focused
on the four corners of a collective bargaining
agreement, interpreting contractual disputes
involving wages, hours and working conditions,
labor arbitrators will now, in some cases, inter-
pret federal antidiscrimination statutes and case
law, and resolve procedural and substantive
due process issues inherent in the application
of federal statutory law.
This paper presents the developing and some-
times conflicting Supreme Court precedents
involving the waiver of employee statutory
rights through mandatory arbitration clauses.
It then presents the Supreme Court's Pyett de-
cision. Pyett's impact on the labor arbitration
process is considered along with procedural
and fairness issues parties may choose to ad-
dress in their contract negotiations on whether
or not to require bargaining unit members to
arbitrate their statutory discrimination claims.

38. The paper concludes with an assessment of the
workability of resolving statutory discrimina-
tion claims through arbitration, rather than
Article III courts.
II. Pre-Pyett Precedent On
Mandatory Arbitration
Four Supreme Court decisions laid the founda-
tion and expressed sufficient conflict to persuade
the Supreme Court to grant certiorari in 14
Penn Plazfl v. Pyett to settle issues underlying the
distinctions between individual employment
agreements to arbitrate and arbitration clauses
found in CBA's.
A.Alexander v. Gardner-Denver
In the 1974 case of Alexander v. Gardner-Denver
Co., the Supreme Court considered the ques-
tion of whether Harrell Alexander's election
to invoke grievance-arbitration machinery
that resulted in an adverse arbitration award
precluded him from filing a subsequent Title
VII claim of racial discrimination.** The Court
found that it did not.^ The Court held that

39. Title VII was designed by Congress to supple-
ment existing laws and institutions involving
employment discrimination.'" Moreover, the
Court determined that the doctrine of election
remedies was inapplicable in the present con-
text, which involved statutory rights distinctly
separate from the employee's contractual rights,
regardless of the fact that violation of both rights
may have resulted from the same factual occur-
rence." The unanimous Gardner-Denver Court
held that "an employee's rights under Title VII
are not susceptible of prospective waiver."'^
And, the Court set forth the policy statements
regarding the appropriateness of arbitration
for the resolution of Title VII rights, in part,
as follows:
Arbitral procedures, while well suited to
the resolution of contractual disputes, make
arbitration a comparatively inappropri-
5 6

40. LABOR LAW JOURNAL
ate forum for the final resolution of rights
created by Title VIL The conclusion rests
first on the special role of the arbitrator,
whose task is to effectuate the intent of the
parties, rather than the requirements of
enacted legislation. Where the collective
bargaining agreement conflicts with Title
VII, the arbitrator must follow the agree-
ment. ... Parties usually choose an arbitrator
because they trust his knowledge and judg-
ment concerning the demands and norms
of industrial relations. On the other hand,
the resolution of statutory or constitutional
issues is a primary responsibility of courts,
and judicial construction has proved espe-
cially necessary with respect to Title VII,
whose broad language frequently can be
given meaning only by reference to public
law concepts.
Moreover, the fact-finding process in
arbitration usually is not equivalent to
judicial fact-finding. The record of the ar-

41. bitration proceedings is not as complete;
the usual rules of evidence do not apply;
and rights and procedures common to
civil trails, such as discovery, compulsory
process, cross examination, and testimony
under oath, are often severely limited or
unavailable. Indeed, it is the informality
of arbitral procedure that enables it to
function as an efficient, inexpensive, and
expeditious means for dispute resolution.
These same characteristics, however,
make arbitration a less appropriate forum
for final resolution of Title VII issues than
the federal courts.'^
B. Gilmer v. Interstateljohnson Lane
In Gilmer v. Interstate/Johnson Lane Corp., the
Supreme Court held that stockbroker Robert
Gilmer's lawsuit under the Age Discrimination
in Employment Act (ADEA) against his former
employer could be stayed under the Federal
Arbitration Act (FAA), and that he could be
compelled to arbitrate his statutory ADEA
claim under the FAA rather than pursue his case

42. in a federal court.''' Gilmer's registration form
with the New York Stock Exchange contained
an agreement to arbitrate any controversy
arising out of his employment with or termina-
tion by a member firm.'^ The Court enforced
this broad mandatory arbitration clause even
though it deprived Gilmer of his judicial rem-
edy, concluding that Congress did not explicitly
preclude arbitration of ADEA claims."^ The
Court distinguished its Gilmer decision from
Gardner-Denver "povatin^ out that Gardner-Denver
did not involve the issue of the enforceability
of an agreement to arbitrate statutory claims;
and the arbitration in Gardner-Denver occurred
in the context of a collective bargaining agree-
ment.'^
C. Wright V. Universal Maritime
Services Corp.
In Wright v. Universal Maritime Services Corp.,
the Supreme Court addressed the question of
whether a general arbitration clause in a CBA
required an employee to use the arbitration
procedures set forth in the contract to pur-

43. sue a remedy for an alleged violation of the
Americans with Disabilities Act (ADA).'** The
Fourth Circuit Court of Appeals concluded
that the general arbitration provision in the
CBA governing Wright's employment was suf-
ficiently broad to encompass a statutory claim
under the ADA, and that such a provision was
enforceable." Before the Supreme Court, the
employer group asserted that this position was
supported in part by Gilmer v. Interstate/Johnson
Lane Inc. and a strong federal policy favoring
arbitration.^" The plaintiff, Caesar Wright,
contended that the Alexander v. Gardner-Denver
and Gf/wzer precedents could be reconciled, by
maintaining that federal forum rights cannot
be waived in union-negotiated CBAs even if
they can be waived in individually executed
contracts.^' The Supreme Court did not take
up the daunting task of deciding whether or
not Gilmer had in fact undermined or over-
ruled Gardner-Denver.^^ The Court, following
its tradition of judicial restraint, resolved the
controversy before it on the narrow basis that
the arbitration clause in the parties' collective

44. 57
THE SUPREME COURT'S 14 PENN PLAZA. LLCV. PYETT
DECISION
bargaining agreement did not require the work-
er to arbitrate his ADA claim." Importantly,
the Court provided this clarification:
...whether or not Gardner-Denver's seem-
ingly absolute prohibition of union waiver
of employees' federal forum rights survives
Gilmer, Gardner-Denver at least stands for
the proposition that the right to a federal
judicial forum is of sufficient importance
to be protected against less-than-explicit
union waiver in a CBA. The CBA in this
case does not meet that standard.^"
Ultimately the Court distinguished the Wright
case from Gi/w r̂ reasoning that G//wẑ r involved
an individual's waiver of his own rights, in
contrast to Wright's case in which there was a

45. waiver of the rights of employees covered by
the
D. Circuit City Stores v. Adams
Following Gilmer, many employers required
their non-union employees to agree to broad
arbitration clauses as a condition of employ-
ment, often inserting such clauses in employee
handbooks with due notification to affected
employees.̂ *" New employees at all salary levels
have been commonly required to sign such pre-
dispute, broad mandatory arbitration clauses
on a take-it-or-leave-it basis. A strong challenge
to a so-called Gilmer arbitration clause was
initiated in the 2001 case of Circuit City Stores,
Inc. V. Adams^^ on the theory that the FAA was
intended to compel judicial enforcement of
arbitration agreements governing commercial
disputes and was not intended to apply to em-
ployment contracts.^^ The Court of Appeals for
the Ninth Circuit had accepted this position
in post-Gî/mer litigation.^' However, in Circuit
City Stores, Inc. v. Adams, the Supreme Court
overturned the Ninth Circuit's interpretation
ofthe FAA, in a 5-4 decision, rejecting the sup-

46. position that the advantages of the arbitration
process somehow disappear when transferred
to the employment context.^" Relying on its
Gilmer precedent, the Court made clear that
in agreeing to arbitration of a statutory claim.
a party does not forego substantive rights af-
forded by the statute.^'
lll.The Pyett Decision
The question presented in 14 Penn Plaza, LLC
V. Pyett was whether a provision in a CBA
that clearly and unmistakably required union
members to arbitrate claims arising under the
ADEA was enforceable.̂ ^ The Court of Appeals
for the Second Circuit held that Alexander v.
Gardner-Denver Co. forbids enforcement of such
a provision.̂ ^
The plaintiffs worked as unionized night lob-
by watchmen at the 14 Penn Plaza office build-
ing in New York City, until the building owner
hired a unionized security services contractor
to staff the lobby.̂ '̂ The plaintiffs were then as-

47. signed as night porters and light duty cleaners in
other locations.̂ ^ The Service Employees Inter-
national Union filed grievances challenging the
reassignment, asserting that the owner violated
the CBA because of: (1) age discrimination, (2)
the seniority provision, and (3) the overtime
distribution clause.̂ ^ Failing to obtain relief in
the grievance procedure, the union initially
requested arbitration, believing that it could
not legitimately object to the reassignments
because it had consented to the contract for the
new security personnel." The union continued
to arbitrate the seniority and overtime claims,
which they subsequently lost. While the limited
arbitration process continued, the plaintiffs filed
complaints with the EEOC alleging the owner
violated the ADEA.̂ ^ After receiving a right to
sue letter from the EEOC, the plaintiffs filed an
ADEA lawsuit against the employer in federal
district court. The employer responded by filing
a motion to compel arbitration under Sections
3 and 4 of the FAA. '̂ The district court denied
the employer's motion and the U.S. Court of
Appeals for the Second Circuit affirmed relying
on both Gardner-Denver and a Second Circuit

48. precedent that a CBA which purports to waive
employees' rights to a federal forum with respect
to statutory claims, is unenforceable.""
A divided Supreme Court reversed.'" Justice
Thomas, writing for the five-justice majority.
58
LABOR LAW JOURNAL
stated that the CBA's arbitration clause must
be honored unless the ADEA itself removes the
particular class of grievances from the National
Labor Relations Act's (NLRA's) broad sweep -
which was not the case in this instance."^ The
Court reasoned that the
NLRA provided the
union and the employer
group with statutory
authority to bargain
over the subject matter
of arbitration of work-

49. place discrimination
claims, and the ADEA
did not terminate that
authority."-' Accord-
ingly, the Court found that there was no legal
basis to strike down the arbitration clause in
the CBA.""
The Court then pointed out that the arbitra-
tion provision in Pyett is also fully enforceable
under the Gardner-Denver line of cases, because
the arbitration provision in the Gardner-Denver
CBA did not cover statutory claims,"^ while in
Pyett, the CBA's provision expressly covered
both statutory and contractual discrimination
claims."^ Moreover, the Court stated that the
union and employer group's decision to resolve
ADEA claims by way of arbitration instead of
litigation does not waive the statutory right to be
free from workplace age discrimination; it waives
only the right to seek relief from a court in the
first instance."^
The Court disavowed Gardner-Denver's state-
ment that certain features of arbitration make it

50. "a comparatively inappropriate forum for the
final resolution of rights created by Title VII,""^
including questioning the competence of arbi-
trators to decide federal statutory claims."' The
Court stated that these misconceptions have
been corrected, pointing out, for example, that
the Supreme Court has "recognized that arbi-
tral tribunals are readily capable of handling
the factual and legal complexities of antitrust
claims, notwithstanding the absence of judicial
instruction and supervision" and that "there is
no reason to assume at the outset that arbitrators
will not follow the law."̂ "
The Court disavowed Gardner-
Denver's statement that
certain features of arbitration
make it "a comparatively
inappropriate forum for
the final resolution of rights
created by Title VU."
The Court disposed of the plaintiffs' confiict-

51. of-interest argument, that a union's interest and
those ofthe individual are not always identical or
even compatible, by asserting that the principle
of majority rule is in fact the central premise of
the NLRA.5' The Court
bolstered its rationale
by pointing out that the
NLRA imposes a "duty
of fair representation"
on unions; that a union
is subject to liability
under the ADEA if it
discriminates against its
members on the basis of
age; and age-discrimi-
nation claims may be filed with the EEOC and
breach of duty of fair representation claims with
the NLRB.52
The majority did not resolve the question
whether a collective bargaining agreement's
waiver of a judicial forum is enforceable when
the union controls access to and presentation of

52. employees' claims in arbitration because it was
not fully briefed to the Court and made part of
the question presented to the Court.̂ ^
Justice Souter's dissent, joined by Justice
Stevens, Ginsberg, and Breyer, reprimanded
the majority for evading Gardner-Denver's xvXe,
a case that it contended was controlling prec-
edent. Justice Souter asserted federal forum
rights may not be waived in union-negotiated
contracts, stating "one need only read Gardner-
Denver itself to know that it was not at all so
narrowly reasoned... ."̂ "
IV. Impact And Fairness Issues
Under Pyett
The Pyett decision permits employers and
unions to bargain away individual employees'
rights to pursue the resolution of statutory dis-
crimination claims in federal court, relegating
employees to resolve their claim in arbitration.
It is anticipated that unionized employers may
seek to take advantage of this important change
in the law when bargaining new or renewal

53. contracts. Employers perceive litigation cost
5 9
THE SUPREME COURT'S 14 PENN PLAZA, LLCV. PYETT
DECISION
and outcome advantages'^ in manda-
tory arbitration by avoiding federal court liti-
gation. Unions will be required to bargain on
this mandatory subject of bargaining. Unions
will assess the advantages and disadvantages of
mandatory arbitration of statutory claims for
their members. If unions agree to the concept,
they will demand to have input into the con-
tent of any arbitration clause and will expect
enhanced economic benefits for its members
as quid pro quo for acceptance ofthe arbitration
agreement provision, as well as an economic
adjustment for the additional costs to be borne
by the union for additional representation
costs. Impact and fairness issues include the
unresolved issue, in Pyett, of a union's failure to

54. progress an individual's discrimination claim to
arbitration, "clear and unmistakable" waivers
in light of post-Pyett trial court decisions, and
"fairness" issues including: an overview com-
parison of arbitration and litigation, arbitrator
competence, grievant representation, rules of
evidence, discovery, conflicting time limits and
limited court review.
A. Failure of a Union to Progress
Discrimination Claims to Arbitration
In processing a grievance of a bargaining
unit member, the union progresses the matter
through the contractual grievance-arbitration
steps set forth in a CBA, and the union has the
discretion to make decisions "in good faith"
and "in a non arbitrary manner" as to the mer-
its of any particular grievance." In the absence
of any bad faith, a union cannot be found to
have breached its duty of fair representation
to a union member when it decides not to
arbitrate a grievance as non-meritorious.'^
The Pyett court did not resolve the question
whether a CBA's waiver of a judicial forum
is enforceable against a union member when

55. the union declines to progress the grievance
involving a federal statutory discrimination
claim to arbitration.'^ In Kravar v. Triangle
Services, Inc., involving an arbitration clause
identical in all respects to Pyett, the union re-
fused to take Ms. Kravar's disability discrimi-
nation claims to arbitration.''" In adjudicating
the case brought by the employer to compel
arbitration under Sections 3 and 4 ofthe FAA,
the U.S. District for the Southern District of
New York relied on the i^^íí principle that "the
decision to resolve ADEA claims by way of
arbitration instead of litigation does not waive
the statutory right to be free from workplace
age discrimination: it waives only the right to
seek relief from a court in the first instance."*'
The Kravar court held that the CBA operated
to preclude Ms. Kravar from raising her dis-
ability claim in any forum. As such, the CBA
arbitration provision operated as a waiver of
Ms. Kravar's substantive rights and may not
be enforced.^^
B. Negotiating "Clear and

56. Unmistakable"Waivers
After P)/ett, a first wave of cases raised a range of
i^^W-related enforceability issues. In Mathews v.
Denver Newspaper Agency, LLP., the U.S. District
Court for the District of Colorado found that
the CBA's arbitration agreement covered the
plaintiff's statutory discrimination claim, and
the court concluded that the plaintiff waived
his right to seek a judicial remedy.''^ However,
in St. Aubin v. Unilever., the U.S. District Court
for the Northern District of Illinois found that
the "clear and unmistakable" requirement to
arbitrate the statutory discrimination claim
was not met where the arbitration clause and
the anti-discrimination clause were distinct,
and the anti-discrimination clause did not refer
to arbitration.'''* In Markell v. Kaiser Foundation
Health Plan, the U.S. District Court for the
District of Oregon determined that where a
CBA did not clearly provide for arbitration of
statutory claims, the statutory claim should be
given de novo consideration in federal court.'''
In Shipkevich v. Staten Island University Hospital,
the U.S. District Court for the Eastern District
of New York determined that the CBA did not

57. "clearly and unmistakably require" arbitration
of statutory antidiscrimination claims.'̂ '̂ Einally,
in Méndez v. Starwood Hotels, the Court of Ap-
peals for the Second Circuit upheld the lower
court's denial of a motion to compel arbitration
based on a letter agreement signed by Starwood
6 0
LABOR LAW JOURNAL
and Méndez because the subject matter of the
agreement to arbitrate employment related
discrimination claims was subject to mandatory
bargaining under the NLRA, and the employer
had no right to go outside the collective bar-
gaining context to obtain this letter. '̂' To avoid
the time and expense of litigation about "clear
and unmistakable" waivers, the arbitration
clause in Pyett may be used by employers and
unions in contract negotiations as a Court ap-
proved model of arbitration clause language
that clearly and unmistakably requires union

58. members to arbitrate statutory discrimination
claims. The clause states:
§30 NO DISCRIMINATION. There shafl
be no discrimination against any present or
future employee by reason of race, creed,
color, age, disability, national origin, sex,
union membership, or any other charac-
teristic protected by law, including, but not
limited to, claims made pursuant to Title
VII of the Civil Rights Act, the Americans
with Disabilities Act, the Age Discrimina-
tion in Employment Act, the New York
State Human Rights Law, the New York
City Human Rights Code, ... or any other
similar laws, rules, or regulations. All such
claims shall be subject to the grievance and
arbitration procedures (Articles V and VI)
as the sole and exclusive remedy for viola-
tions. Arbitrators shall apply appropriate
law in rendering decisions based upon
claims of discrimination.̂ **
As discussed in the previous segment of this
paper, the Pyett Court did not resolve the ques-

59. tion whether a CBA's waiver of a judicial forum
is enforceable against a union member when the
union declines to progress the grievance involv-
ing a statutory claim to arbitration. The Kravar
decision indicates that the employer would not
be able to compel arbitration against the union
member in that case. In their contract nego-
tiations the parties may choose to address this
matter to attempt close this exclusion.* '̂ And,
in order to obtain union approval of the model
waiver clause contained in the Pyett decision.
the parties may address other procedural and
remedial issues unique to their history of collec-
tive bargaining and current circumstances.
C. Selected Fairness Considerations
Regarding the Arbitration of Statutory
Discrimination Claims;With Certain
Litigation Comparisons
The Py^Wmajority noted that "arbitration proce-
dures are more streamlined than federal litiga-
tion" as an advantage not an inadequacy, point-
ing out that the relative informality of arbitration

60. is one of the chief reasons that parties select
arbitration.™ The Court noted that the parties to
a CBA "trade the procedures and opportunity
for review of the courtroom for the simplicity,
informality, and expedition of arbitration."^' In
this bargained -for exchange of forums, a num-
ber of procedural and fairness issues arise which
parties in upcoming negotiations of their CBAs
may choose to address in deciding whether or
not to agree to a contractual provision requir-
ing union members to arbitrate statutory dis-
crimination claims, and if so, what procedural
adjustments, if any, are necessary based on the
individualized history and circumstances of the
parties themselves.
¡.Arbitration and Litigation
Parties to CBAs agree to resolve the complaints
of employees who believe they have been
wronged through the steps of a contractual
grievance-arbitration procedure.^^ The process
takes form with the filing of a grievance with a
first-line supervisor, whereby the grievant, with
the assistance of a union shop steward, states the
basis of the complaint in writing on a grievance

61. form, identifies the section of the CBA believed
to have been violated, and states the remedy
sought. Through a series of procedural steps with
specified time limits, the matter is progressed up
to the highest designated manager for resolving
grievances and a high ranking union officer, such
as an international vice president who will meet
to attempt to resolve the grievance." If the par-
ties are unable to resolve the grievance, it may
be progressed to arbitration.'"'
6 1
THE SUPREME COURT'S 14 PENN PLAZA, LLC V. PYETT
DECISION
At the arbitration stage, both parties partici-
pate in the selection of the arbitrator.̂ ^ The ar-
bitrator's authority emanates from the contract
itself and the parties' "statement of the issue."
The issue and the contract define the jurisdiction
of the arbitrator.'^

62. As compared to the grievance handling
and the initiation of the arbitration process
outlined above, in litigation, technical pretrial
pleadings are complied with and discovery is
pursued, consisting of interrogatories between
the parties, taking depositions from principal
witnesses involved in the controversy and re-
quiring the production of relevant company
documents and records.'^ Once all of the pre-
trial motions have been resolved, the judge
presides over the selection of the jury and the
trial begins.̂ ^
2. Arbitrator Competence
Arbitrators are usually selected by mutual agree-
ment of the parties,'^ or through the process
of elimination by striking names from a panel
of names of arbitrators with corresponding in-
formation about the arbitrators' backgrounds,
experience, and fees.̂ *̂ The American Arbitra-
tion Association (AAA) and the Federal Media-
tion and Conciliation Service provide panels
of arbitrators who are prescreened for their
neutrality and experience.^' Upon selection, an
arbitrator is duty bound to disclose any conflict

63. of interest.̂ ^
Federal judges are highly qualified to preside
over statutory discrimination cases and to make
rulings on all legal issues. They are assigned to
cases, as opposed to selection by the parties.
And, in federal courts, juries make determina-
tions on facts and damages determinations,
including compensatory and punitive damages.
Employer uncertainty and concern over the po-
tential for large damages awarded by juries and
the cost of litigation itself, even when successful,
has led employers to be the moving party seek-
ing to mandate arbitration of statutory claims.
Indeed, in Pyett the employer's brief before the
Supreme Court stated that the union accepted
the arbitration clause in question in exchange for
unit-wide economic improvements.^^
As asserted by the Pyett majority, there is
httle doubt that the parties will in fact be able to
retain "competent, conscientious and impartial
arbitrators" to make findings of fact, and inter-
pret the contract and statutory law, and assess
appropriate damages in full compliance with

64. statutory law.
3. Conflicting Time Limits
Grievance arbitration provisions in CBAs may
require grievances to be filed within short periods
of time up to thirty days after the grievant knew
or should have known of the occurrence giving
rise to the grievance.̂ " Untimely grievances often
are refused a hearing unless it is a "continuing
violation" of the contract.^' Antidiscrimination
statutes provide much longer periods of time
to initiate claims under each statute.̂ * In union
settings with access to immediate advice from
shop stewards, union members should be readily
able to file their grievances within a contractual
time period of up to thirty days. The early filing
of a grievance allows the employer and union
to investigate matters in a timely fashion while
memories are fresh and to obtain other evidence
that may exist, in the interest of early and ac-
curate resolution of claims.
As the parties negotiate contractual language
for the arbitration of statutory discrimination
claims, they may decide to provide a modified

65. time limit shortening the statutory period for
filing such claims to provide for the early reso-
lution of claims, writing into the CBA a "clear
and unmistakable" waiver of each applicable
federal statute's time limits. A reasonable short-
ened time limit for discrimination cases may
range from ninety days to six months. However,
with the promise promulgated by Gilmer,^^
Circuit City,^^ and Pyetf^ that parties agreeing
to resolve statutory claims through arbitration
do not forego substantive rights afforded by
the statute, shortened statutory time limits will
be subject to scrutiny for reasonableness by
reviewing courts.
4. Grievant Representation
The parties to a collective bargaining agree-
ment are the employer and the union, and
6 2
LABOR LAW JOURNAL

66. they are "the parties" as well at an arbitration
under their CBA. The parties apportion the
administrative fees charged by the arbitration
services agency, and the arbitrator's fees and
expenses. Other than periodic union dues,
there is no cost to the grievant. The union also
pays the fees of the attorney retained by the
union to represent the grievant at an arljitra-
tion.̂ " What if the grievant desires to have his
own attorney represent his individual interests
at the arbitration? Should the parties negotiate
a contractual right for a grievant asserting a vio-
lation of an antidiscrimination statute to retain
counsel of his or her choice to present the case
at the arbitration since the arbitration decision
will result in a final and binding resolution of
the grievant's statutory rights? Such is a matter
to be resolved by the union and the grievant.
It is the union's right to put on its case for the
grievant as it sees fit, so long as the union's
conduct towards the grievant is not arbitrary,
discriminatory or in bad faith.̂ ' However, when
requested in statutory discrimination cases, it
would make sense for the union to step aside,
and allow the grievant's retained attorney to

67. present the union's case for the grievant, with
the union's full cooperation.
5. Pre-hearing Procedures
CBA's rarely set forth the rules and procedures
for conducting an arbitration. Rather the proce-
dures for conducting arbitrations have evolved
over time through the combined infiuences of
arbitrators themselves and the practice of pub-
lication of their awards, the procedures of the
War Labor Board, the rules and publications of
the AAA, the activities and proceedings of the
National Academy of Arbitrators and the con-
duct of lawyers.'^ The procedural practices of
labor arbitration are widely accepted as fair by
workers, unions, employers, and courts.'^ Some
further development of arbitration procedures
may evolve regarding the pre-hearing role of
arbitrators in handling pre-hearing discovery
requests in arbitrations involving statutory dis-
crimination claims.
Section 1.10 of The Second Edition of The
Common Law of the Workplace, summarizes

68. some ofthe leading arbitral principles developed
over six decades of labor arbitration. It states:
Unless mutually agreed to, prehearing dis-
covery tools as found in civil litigation—such
as prehearing depositions, written inter-
rogatories, and requests for admissions-are
generally not allowed in labor arbitration.
Depositions may be allowed, however, to
preserve testimony that would otherwise be
unavailable at the hearing.'"*
In footnote 10, the Pyett majority recognized
that the FAA applies to labor arbitration pro-
cedures.''̂ Section 7 of the FAA authorizes the
arbitrator to "summon in writing any person
to attend...as a witness and in a proper case to
bring with him.. .any book, document, or paper,
which may be deemed material as evidence in
the case."'^ It also grants a party permission to
take the deposition of a witness who cannot be
subpoenaed or is unable to attend the hearing.̂ ^
Section 10 of the FAA also allows for a vacatur
of an award for an arbitrator's refusal to hear
evidence pertinent and material to the contro-

69. versy.̂ ^ Future litigation may develop guidance
as to the extent of additional discovery rights of
grievants in statutory discrimination cases.
The parties themselves, in negotiating con-
tractual language mandating the arbitration of
statutory discrimination claims may consider
providing for limited discovery rights in bal-
ance with the goal of an efficient and effective
dispute resolution process, which coupled with
the information developed during the steps of
the grievance procedure, may very well lead to
an early resolution of the matter.
6. Rules of Evidence
In an arbitration, the arbitrator may not
strictly adhere to the application of the rules
of evidence as applied in the federal courts.'^
For example, arbitrators may choose to hear a
grievant's testimony that would have been ruled
inadmissible hearsay in a federal court, for the
therapeutic value to the grievant, allowing the
grievant to tell his or her story "for whatever
weight it deserves."'"^ However, testimony

70. 63
THE SUPREME COURT'S 14 PENN PLAZA. LLC V. PYETT
DECISION
of little probative value, like uncorroborated
hearsay, is addressed by the arbitrator from
the bench or disposed of in the arbitrator's
award."" In some continuing relationships the
parties themselves, in the manner in which
they present their cases and assert objections
have led to a gradual increase in the strictness
ofthe rules of evidence and a resulting increase
in legalism in labor arbitration."^^ As expert
tribunals, neutral and competent, it is highly
unlikely that an arbitration case will turn on
the basis of incompetent evidence.
7. judicial Review of Arbitration Awards
Arbitration awards are "final and binding" on
the parties as required by specific language set
forth in each collective bargaining agreement.
As compared to litigation, it is this expeditious,

71. efficient, and final resolution of controversies
that provide the major advantage for arbitra-
tion over litigation. To maintain this advan-
tage, arbitrators' decisions are afforded an
extraordinary level of deference by courts.'"^
Arbitration decisions are subject to limited
court review under the FAA."̂ " The FAA ap-
plies to all employees, with the exclusion of
transportation workers engaged in foreign or
interstate commerce.'"^ And, as set forth in 7^-
ett, the EAA applies to arbitration agreements
involving statutory discrimination claims of
unionized employees.'"^
The FAA provides streamlined treatment for
vacating or modifying or correcting an arbitra-
tion award. Section 10 lists grounds for vacating
an award, including (1) corruption, fraud, or
undue means, (2) evident partiality or corrup-
tion by the arbitrators, (3) misconduct of the
arbitrators, or (4) the arbitrators exceeding their
power. "̂^ The grounds for modifying or cor-
recting an award under Section 11 of the FAA
include (1) evident material miscalculation, (2)
evident material mistake, and (3) imperfections

72. on a matter of form not affecting the merits.'"^
The Supreme Court held that Sections 10 and 11
are the exclusive grounds for expedited vacatur
and modification of awards with these provi-
sions substantiating a national policy favoring
arbitration with just the limited review needed to
maintain arbitrations essential virtue of resolving
disputes straightaway.'"'
R.esolution of federal statutory discrimination
claims through the procedures ofthe EEOC and
then the federal trial and appeals courts are the
primary dispute resolution process designed by
Congress. However, this process is technical,
prolonged, and expensive. The expense alone
may make it impossible for a unionized worker
to pursue statutory rights in the federal courts.
Appellate review of federal trial court decisions,
however, provides a much broader review of
the legal determinations of a trial court than is
made of the legal determinations of arbitrators
under the FAA. Appellate court review allows
for errors of law to be corrected."" Moreover,
the published decisions of the appeals courts

73. provide precedents for the resolution of similar
issues in the future.'"
As the Court majority expressed in Pyett, "[p]
arties trad[e] the procedures and opportunity
for review of the courtroom for the simplicity,
informality, and expedition of arbitration.""^
Arbitration of statutory discrimination claims is
a bargained for, agreed to process, with mutually
beneficial features and drawbacks for the parties.
It is reserved to the parties themselves to choose
whether or not to include a mandatory arbitra-
tion of statutory discrimination claims provision
in their collective bargaining agreement.
V. Conclusion
The dissent in Pyett correctly complained that
the majority misread Gardner-Denver when it
claimed the decision in that case turned solely
on the narrow ground that the CBA did not
cover statutory claims."^ And, it is true that
under the Pyett decision, unions can, in effect,
waive an employee's right to a jury trial for the
employee's statutory discrimination claim(s).

74. However, the Pyett Court majority decision
is now the law. The matter is finally settled.
Unions and employers may negotiate a rule in
their CBAs requiring the arbitration of statutory
discrimination claims as the sole and exclusive
remedy for both the violations of the CBA and
the antidiscrimination statutes.""
6 4
LABOR LAW JOURNAL
Under the Gilmer and Circuit City precedents,
pre-dispute, broad, mandatory arbitration claus-
es in employment contracts, imposed on new or
continuing non-union employees by employers
on a take-it-or-leave-it basis may be enforceable
under the Federal Arbitration Act.'" A narrow
exclusion exists for transportation workers.'"^
These unilaterally drafted and imposed arbitra-
tion provisions are often unbalanced and unfair
to the employees involved."^ Contrary to these
so called "employment arbitration" category of

75. cases is the "labor arbitration" category of cases,
as dealt with in Pyett where the arbitration clauses
are co-authored by unions and employers. If a
union believes it is unfair or unjust to agree to
a clause requiring the mandatory arbitration
of statutory discrimination claims for all of its
members it can refuse to agree to such a provi-
sion. Or, if a union is offered "sizeable wage
and benefit enhancements" as asserted by the
employer in Pyett,^'^ union and employer nego-
tiators can modify the Pyett arbitration clause
model, balancing and adjusting with agreement
language for the fairness and procedural issues
raised previously in this article, while retaining
for the employees and the employers the full
scope of remedies and defenses available in the
antidiscrimination statutes. •
ENDNOTES
Professor, Boston College. Carroll School
of Management and member of the National
Academy of Arbitrators. The author wishes to
express his appreciation to the following faculty

76. at Boston College. Christine Neylon O'Brien and
Stephanie Greene for their thoughtful review
and comments, and particularly to Margo E.K.
Reder for her research assistance and helpful
comments.
See David P. Twomey, LABOR & EMPLOYMENT
LAW, 266(2010).
United Steelworkers v. American Mfg. Co., 363
U.S. 561 (I960); United Steelworkers v. War-
rior & Gulf Navigation Co., 363 U.S. 574 (I960);
United Steelworkers v. Enterprise Wheel & Car
Corp., 363 U.S. 593(1960).
363U.S. 574, 582(1960).
365 U.S. 593,599(1960).
Gilmer v. Interstate/Johnson Lane Corp. 500 U.S.
20 (1991); Circuit City Stores, Inc. v. Adams, 532
U.S. 105(2001).
I29S. Ct. 1456(2009).
415 U.S. 36(1974).
W. at 38.
Id. at 60.
Id. at 48-49.
Id. at 49,-50.
W. a t 5 l .

77. Id. at 56-58.
500 U.S. 20(1991).
Id. at 23.
Id. at 29.
Id. at 35.
525U.S. 70, 72(1998).
Id. at 75.
See Id. at 77.
Id.
See Id. at 77 and 80.
The Court handled the Fourth Circuit's errone-
ous interpretation ofthe arbitration clause with
judicial tact by simply refusing to apply a pre-
sumption of arbitrability to the case before it. Id.
at 79. The arbitration clause in question stated;
"Union agrees that this Agreement is intended
to cover all matters affecting wages, hours and
other terms and conditions of employment...."
Id. at 73. The plain language of this clause does
not purport to vest an arbitrator with authority
to decide whether or not the employer violated
the Americans with Disabilities Act or discrimi-
nation laws in general.

78. Id. at 80.
M. at 80-81.
See David Lewin, Workplace ADR: What's New
and What Matters? 2007 N.A.A. Proc. 26-27.
532 U.S. 105(2001).
See Circuit City, 532 U.S. at 110-111.
Id. at 124-128 (Stevens, J. dissenting). Proponents
of the position rely on the language of Section
2 of the FAA which makes enforceable writ-
ten agreements to arbitrate "in any maritime
transaction or contract involving commerce."
9 U.S.C. §2 (2006). Advocates believe that the
legislative history ofthe Act shows that it was in-
tended to apply only to commercial and maritime
contracts. While there is no legislative history
of intent to extend arbitration to employment
disputes, proponents point out that the Secre-
tary of Commerce, Herbert Hoover, proposed
the language, "but nothing herein shall apply to
seamen or any class of workers in the interstate
and foreign commerce" to allay the fears of a
maritime union. Joint Hearing on S. 1005 and
H.R. 646, 68»' Cong. l"Sess. 14 (1924).
C/rcuit City, 532 U.S. at 118, 119.
Id. at 123.

79. 14 Penn Plaza, LLC V. Pyett, l29S.Ct. 1456, 1461
(2009).
Pyett V. Pennsylvania Building Co., 498 F.3d 88
(2d Cir. 2007).
14 Penn Plaza, 129 S. Ct. at 1461.
Id. at 1462.
Id.
Id.
Id.
Id. Federal Arbitration Act, 9 U.S.C. §§ 3, 4
(2006).
Pyett, 498 F. 3d at 93-94.
14 Per)n Plaza, at 129 S. Ct. at 1461.
Id. at 1465.
Id. at 1466.
Id.
Id. at 1467.
Id. at 1469.
Id.
Id. at 1471.
Id.
Id. at 1471, citing Shearson/American Express,

80. Inc. V. McMahon, 482 U.S. 220, 231-232 (1987).
14 Penn P/ozo, 129 S.Ct. at 1472.
W. at 1473.
Id. at 1474.
Id. at 1479.
See Theodore St. Antoine, /Viondatory Arbitra-
tion: Why It's Better Than It Looks, 41 U. Mich J.L.
Reform 783, 786 (2008) (citing litigation costs
as follows; fees and expenses for a successful
defense of a discharge case before a jury could
range from $ 100,000 in the Midwest to $200,000
on the coast according to a Dean St. Antoine's
informal survey in 1992).
Employers may perceive an outcome advantage
by avoiding the broad discovery rights available
in the federal courts, and have more confidence
in the fact finding of an arbitrator selected
by the parties as compared to that of a jury.
W i t h o u t regard for whether a workplace is
unionized or not, employers fear exposure to
what they perceive as possible runaway jury
awards in employment discrimination law suits.
For example, in a highly publicized case, a jury
awarded Anucha Browne Sanders, a former
marketing vice president ofthe New York Knicks

81. basketball team, $ 11.6 million in punitive damages
for sexual harassment and retaliation against the
team's corporate owner, its chairman, and its
president and head coach; and even though the
defendants "vehemently disagreed with the jury's
decision" they settled the case under pressure
from the NBA Commissioner. See Post-Verdict
Settlement Reached in Former Knicks Executive's
Case, DLR N O . 238, A-12 (Dec. 12, 2007). The
median award to plaintiffs who won employment
discrimination lawsuits between the mid-1990s
and the mid-2000s was $250,000, and one in nine
cases resulted in plaintiffs receiving $1 million
or more each. See Lewin, supra note 26 at 26.
See also David S. Schwartz, Mandatory Arbitra-
tion and Fairness, 84 Notre Dame L. Rev. 1247
(2009) where Professor Schwartz challenges
the fairness of mandatory arbitration of employ-
ment disputes involving individual employment
agreements to arbitrate forced on employees by
their employers, in contrast to arbitration under
collective bargaining agreements.
Vaca V. Sipes, 386 U.S. 171, 191 (1967).
SeeW. at 190-191.

82. 65
THE SUPREME COURT'S ¡4 PENN PLAZA, LLC V. PYETT
DECISION
14 Penn Plaza, 129 S. Ct. at 1474.
No. I: 06-CV-07858, 2009 U.S. Dist. LEXIS
26459, at *8 (S.D.N.Y., Mar. 27, 2009).
Id. at *6 (quoting 14 Penn Plaza. 129 S. Ct. at
1469).
No. I: 06-CV-07858, 2009 U.S. Dist. LEXIS
26459 a t * 9 (S.D.N.Y., Mar. 27, 2009).
No. 07-CV-02097, 2009 U.S. Dist. LEXIS 37697,
at *I2-I3 (D. Colo. May 4, 2009). The anti-
discrimination clause in the CBA stated: "The
Employer and the Union acknowledge continua-
tion of their policies of no discrimination against
employees and applicants on the basis of age, sex,
race, religious beliefs, color, national origin or
disability in accordance with and as required by
applicable state and federal law."
No. 09 C 1874, 2009 U.S. Dist. LEXIS 55626, at
*9-IO (N.D. III. June 26, 2009). See also, Dun-

83. nigan v. City of Peoría, No. 09-CV-I064, 2009
U.S. Dist. LEXIS 71797, at *5-7 ( C D . III. July
25, 2009).
No. CV 08-752, 2009 U.S. Dist. LEXIS 95891
at *I9-2O (D. Or. Sept. 14, 2009). The CBA
provided that the parties are "free to arbitrate"
disputes regarding "problems arising in con-
nection with the application or interpretation
of" the CBA itself: that is, arbitration is clearly
authorized in connection with contract-based
claims only. CBA, A r t 9., §§ B(8), A(3).
No. 08-CV-1008,2009 U.S. Dist. LEXIS 51011, at
*l9-20(E.D.N.Y.June 15,2009). The CBA that
governed the parties in this case stated: "Neither
the Employer nor the Union shall discriminate
against or in favor of any Employee on account of
race, color, creed, national origin, political belief,
sex, sexual orientation, citizenship status, marital
status, disability or age." Arbitration is contem-
plated if the CBA's grievance procedure does
not resolve the dispute: "A grievance...which
has not been resolved [under the grievance
procedure] may, within thirty (30) working days
after completion of...the grievance procedure,

84. be referred for arbitration by the Employer or
the Union...".
No. 08-4264-CV, 2009 U.S. App. LEXIS 17113,
a t * 4 ( 2 d C i r . 2009).
14 Penn Plaza, 129 S. Ct. at 1461.
It is unusual indeed for a union not to progress
a case of a terminated employee to arbitration.
It is an unwritten rule in most unions that every
terminated union worker is entitled to his or her
"day in court" -- meaning a right to go before an
arbitrator to challenge the termination. Statu-
tory discrimination claims are often raised in
such arbitration proceedings. Moreover, in this
day and age unions' interests are very supportive
of broad civil rights and it would be unusual for
a union to fail to progress a statutory antidis-
crimination claim to arbitration. It may well be
best for the parties to simply allow this "union
declination exception" to exist. Justice Souter's
dissent in Pyett states in closing that " [ o ] n one
level, the majority opinion may have little effect"
because of the union declination exception. 14
Penn Plaza, 129 S. Ct. at 1481. However, I believe
that the applicability of this exception will be
quite unusual.

85. /4 Penn P/oza, 129 S.Ct. at 1471.
Id.
See generally Frank Elkouri & Edna Asper Elkouri,
H O W ARBITRATION WORKS, 198-278 (Alan
Miles Ruben Ed. 6"' ed. 2003).
See id. at 213-214.
See id. at 268.
See id. at 42-43. (The Federal Mediation and
Conciliation Service and the American Arbitra-
tion Association provide panels of arbitrators
experienced in dealing with labor matters.)
See, THE COMMON LAW OF THE WORK-
PLACE, 15-16 (Theodore J. St. Antoine ed.
2005).
See David P. Twomey & Marianne M. Jennings,
BUSINESS LAW, 22 (2"" ed. 2008).
See id. at 23.
Elkouri & Elkouri, supra note 72, at 171.
Id. at 173.
See id at 173-175.
St. Antoine, supra note 76, at 9. The Code of
Professional Responsibility for Arbitrators ofLabor-
Manogen^ent Disputes (2003) has been adopted
by the National Academy of Arbitrators, the

86. American Arbitration Association, and the Fed-
eral Mediation and Conciliation Service. Section
2.B.I of the code mandates that an arbitrator
"disclose directly... any current or past manage-
rial, representational, or consultive relationship
with any company or union" involved, and must
disclose "any pertinent pecuniary interest."
See Brief of Petitioners, 14 Penn Plaza LLC v.
Pyett, No.07-581, at 6, available at www.supre-
mecourtpreview.org, (asserting that "the Union
gained sizable wage and benefit enhancements, as
well as other favorable provisions, in exchange
for its agreement to arbitrate its members'
statutory employment claims" ).
Elkouri & Elkouri, supra note 72, at 213-217.
Id. at 217-219. See the Lilly Ledbetter Fair Pay Act
of 2009,42 U.S.C.§2000-a note (2009), (provid-
ing that every paycheck resulting from an earlier
discriminatory pay decision would constitute
a continuing violation of the Civil Rights Act
provided the employee filed charges within 180
day of the discriminatory paycheck).
See the 180-day and 300-day initial filing periods
of Title VII of the Civil Rights Act of 1964, 42.
U.S.C.§2000-5(e)(l)(2000).

87. aimer, 500 U.S. at 26.
Circuit City, 532 U.S. at 123.
14 Penn Plaza, 129 S. Ct. at 1469.
A union ordinarily does not breach its duty of
fair representation merely because it uses a
union representative rather than an attorney
to present the union's case at the arbitration
hearing. See Elkouri & Elkouri, supra note 72,
at 303. However, having bargained for the
right to arbitrate bargaining unit employees'
statutory employment discrimination claims, to
provide representation with a person without
legal training and experience may well be on
its face a violation of the union's duty of fair
representation.
Vaca V. Sipes 386 U.S. 171, 190 (1967).
See Laura J. Cooper, The Process of Process: The
Historical Development of Procedures in Labor
Arbitration, 2005 N.A.A. Proc. 19-20.
Id. at 20.
St. Antoine, supra note 76 at 12.
14 Penn Plaza, 129 S. Ct. at 1471.
9 U.S.C. §7(1994).
Id.

88. 9 U.S.C. § 10(1994).
Elkouri & Elkouri, supra note 72, at 341.
St. Anoine, supra note 76, at 32.
See Elkouri & Elkouri, supra note 72, 2008 Supp.
159.
See W. Daniel Boone, How to Have an Arbitration
Hearing In One Day or Less, 2007 N.A.A. Proc.
91-95.
See Crawford Group, Inc. v. Holekamp, 543 F.3d
971, 976 ( 8 " ' O r . 2008).
9 U.S.C. §§ 1-16(2006).
Circuit City Stores v. Adams, 532 U.S. 105
(2001).
14 Penn Plaza, 129 S. Ct. at 1471 n.lO.
9 U.S.C. § 10(2006).
9 U.S.C. § II (2006).
In Hall Street Associates, LLC v. Mattel, Inc., 552
U.S. 576 (2008), the Supreme Court rejected
enforcing additional grounds agreed to by the
parties for setting aside an award under the
FAA, including the ground that "the arbitrator's
conclusions of law were erroneous." Id. at 579.
The Court stated any other reading opens the
door to the full-bore legal and evidentiary ap-

89. peals that can "rende[r] informal arbitration
merely a prelude to a more cumbersome and
time-consuming judicial review process." Id.
at 588.
FED. R. CIV. P. 52(a).
Selected arbitration decisions are published by
numerous publishing houses serving as guidance
for parties in resolving grievances prior to arbi-
tration and as persuasive reasoning supportive
of a party's position in arbitration.
14PennP/aza, I29S. Ct. at 1471 (quotingMitsubi-
shi Motors Corp. v. Soler Chrysler-Plymouth,
Inc., 473 U.S. 614, 628(1985)).
14 Penn Plaza, 129 S. Ct. at 1479.
Under an arbitration clause modeled on the
Pyett clause, an employee asserting that he or
she has been discharged without just cause
and who is also claiming that the discharge was
the result of age discrimination, the arbitrator
will consider the facts and circumstances that
encompass both claims, and make a determi-
nation on the contractual just cause claim and
the contractual/statutory discrimination claim
of age discrimination. The employee will no

90. longer be able to bring a statutory claim in a
federal forum under Cardner-Denver after an
adverse arbitration decision on a contractual
claim. The matter is resolved in an expeditious,
timely and just manner, before an expert on
labor and employment law, with lower overall
costs for all. Should the employee be successful,
the employer can take expeditious corrective
action, and provide full statutory remedies
covering a much shorter time period and thus
lower damages. Moreover, the process is a
private one, and not a source of adverse public-
ity in the case of an adverse decision. Should
the employee be unsuccessful, the controversy
is resolved in a shorter period of time, with a
decision explaining why the claim lacked merit,
and the individual can move forward with his or
her life, short of the years that are sometimes
consumed in prolonged litigation.
See the discussion of the Cilmer precedent in part
N.B. of the text and the discussion of the Circuit
City precedent in part II.D. of the text.
Circuit City, S32 U.S. at 119.
A r e s o l u t i o n of the unfairness issues is
proposed in the Arbitration Fairness Act of

91. 2009, now pending before Congress, S. 931,
H.R. 1020, I I ' " Cong. (2009). The bill would
prohibit pre-dispute arbitration agreements
and would promulgate due process standards
to apply to "employment arbitration" cases.
The bill excludes coverage of a r b i t r a t i o n
provisions in collective bargaining agreements.
See Section 401.
See Brief of Petitioners, supra note 83.
66
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92. Contents The Internet saps the fall TV season 24 Lawyers circle
another medical device failure 25 ^ The high cost of being into
leather 26
Now girls can dress like their avatars 27 Briefs: Best Buy's
worst nightmare 28 Edited by James E. Ellis
Companies&lndustries
FortheUAW,
A Bargaining Dilemma
>• Some of the auto union's newest members receive poverty-
level pay
"The idea of middle-class wages... in manufacturing has been
over for a long time"
Preston Bunce, an assembly-line worker
at a GM sport-utility vehicle plant in Lan-
sing, Mich., is at the center of the upcom-
ing contract talks between the United
Auto Workers and U.S. automakers.
The 29-year-old father of two started in
2008 at $14 an hour and today makes
less than $16, a wage that he says is too
low to buy a home or purchase the SUV

93. he builds, a Chevrolet Traverse that sells
for more than $30,000. His mother, who
like Bunce's grandparents is a CM lifer,
makes double his wage for similar work
at a CM plant across town. "It is tough to
make ends meet," says Bunce, who also
works part-time installing windows and
siding when he can find extra work.
As the UAW bargains for a new
labor deal with CM, Ford Motor, and
Chrysler Group, a key question is how
much of a raise the union will demand
for workers such as Bunce. UAW Presi-
dent Bob King has a tough choice: He
can push for higher wages to secure
new workers a better standard of liv-
ing-as the union has for decades while
watching its membership shrink by
almost 80 percent since 1979, to barely
360,000 members-or he can keep pay
low and use the cheap wages as a carrot
to get carmakers to increase the number
of unionized U.S. jobs.