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
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: Suggested Citation