Are Collective Bargaining Agreements Still Special?

Abstract

Since 1957, the Supreme Court regarded collective bargaining agreements (CBAs) as different from ordinary commercial contracts: as generalized codes of workplace governance in which the contractual grievance-arbitration procedure substitutes for the strike and the arbitrator function as an extension of the collective bargaining process. But in 2009, in 14 Penn Plaza, LLC v. Pyett – the Court, applying a CBA’s arbitration procedure to a civil rights claim – regarded arbitration simply as a more efficient form of litigation no different from arbitration in the commercial context. Six years later, in M&G Polymers USA, LLC v. Tackett – concerning the duration of retiree medical benefits contained in a CBA – the Court extended this logic opining that CBAs are to be interpreted “according to ordinary principles of contract law” save only insofar as these principles are inconsistent with federal labor policy.

This article explores the Court’s troubling movement away from the long-held understanding of what CBAs are and how they are to be read and explains the pernicious consequences of its new approach. It argues that Pyett and Tackett should be confined to their facts and that CBAs should otherwise continue to be treated as they have long been understood.