Are Collective Bargaining Agreements Still Special?

37 A.B.A. J. Lab. & Emp. L. ___ (Forthcoming)

University of Illinois College of Law Legal Studies Research Paper

45 Pages Posted: 20 Oct 2022

See all articles by Martin H. Malin

Martin H. Malin

Chicago-Kent College of Law - Illinois Institute of Technology

Matthew Finkin

University of Illinois College of Law

Date Written: October 14, 2022

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.

Suggested Citation

Malin, Martin H. and Finkin, Matthew W., Are Collective Bargaining Agreements Still Special? (October 14, 2022). 37 A.B.A. J. Lab. & Emp. L. ___ (Forthcoming), University of Illinois College of Law Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4248347

Martin H. Malin (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

Matthew W. Finkin

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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