A New Board Policy on Deferral to Arbitration: Acknowledging and Delimiting Union Waiver of Employee Statutory Rights

FIU Law Review, Vol. 5, No. 2, Spring 2010

Boston Univ. School of Law, Public Law Research Paper No. 10-46

18 Pages Posted: 7 Feb 2013

See all articles by Michael Harper

Michael Harper

Boston University - School of Law

Date Written: 2010

Abstract

This article considers the extent to which the National Labor Relations Board should defer in its protection of statutory rights to the private arbitration process under collective bargaining. The article explains and criticizes the theory of implied union waiver advanced by the District of Columbia Circuit Court of Appeals under the leadership of Judge Harry Edwards. It posits a reformulation of Board deferral doctrine for waivable substantive rights. The article also consider the relevance of the Supreme Court’s 2009 decision in 14 Penn Plaza, LLC v. Pyett to Board deferral to arbitration in cases involving § 7 rights that are not subject to waiver by exclusive bargaining agents.

Keywords: Board deferral, board deference, waiver of NLRA rights, deferral to arbitration, deferral of statutory rights, NLRB, arbitration, deference, Penn Plaza

JEL Classification: K30, K31

Suggested Citation

Harper, Michael Conrad, A New Board Policy on Deferral to Arbitration: Acknowledging and Delimiting Union Waiver of Employee Statutory Rights (2010). FIU Law Review, Vol. 5, No. 2, Spring 2010, Boston Univ. School of Law, Public Law Research Paper No. 10-46, Available at SSRN: https://ssrn.com/abstract=2212734

Michael Conrad Harper (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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