Let the Grand Experiment Begin: Pyett Authorizes Arbitration of Unionized Employees' Statutory Discrimination Claims

Abstract

In Pyett v. 14 Penn Plaza, the Supreme Court affirmed the ability of unions and employers to negotiate arbitration clauses that require unionized employees to arbitrate statutory claims. The academic response to this case will likely be that it is wrongly decided because arbitration, especially labor arbitration, is a poor substitute for litigation and unions' willingness to bargain away minority members' rights to the judicial forum is but one more sign of union bias against women and minorities. This paper contends that this argument may be wrong on both counts. It is likely that litigants will achieve better results in labor arbitration than in traditional litigation because unionized arbitration involves repeat players on both sides and offers parties substantial opportunity to negotiate an arbitral process that best suits them. In addition, the presence of repeat players on both sides of the dispute offers protection against arbitrary decision-making. The process should also be cheaper for the employee than traditional litigation becaue the employee does not have to pay for a representative.

The presumption that unions are biased against women and minorities may also be in error. Although true in the past, unions, to ensure their survival, have become staunch advocates of traditionally underrepresented groups as they recognize that it is members of those groups who form a large percentage of their newest and most supportive members.

Pyett creates an opportunity for unionized employees and their advocates to take advantage of the arbitration process to resolve their discrimination claims more quickly and cheaply with results similar to or better than litigation. As unions search for a role in the twenty-first-century workplace and employees face increasingly poor odds of success in litigating statutory discrimination claims, labor arbitration may be the response to an increasingly dire landscape for unionized employees’ statutory discrimination claims in the federal courts.

Keywords: arbitration, union, empirical, labor, employment

JEL Classification: D74