MANDATORY ARBITRATION CLAUSES - Dispute Resolution Journal - Vol. 54, No. 1
Harvey R. Boller is an assistant professor of business law at Loyola University Chicago. He has participated in court-annexed arbitrations since 1991.
Donald Petersen is a professor of management at Loyola University Chicago, a member of the American Arbitration Association’s roster of neutrals, the Federal Mediation and Conciliation Service, and the National Academy of Arbitrators.
Originally from Dispute Resolution Journal
In Wright v. Universal Maritime Service Corp., the Supreme Court ruled that for an arbitration clause in a collective bargaining agreement to be mandatory, it must contain a “clear and unmistakable” waiver of an employee’s statutory rights to a judicial forum. Yet it did not rule on the enforceability of such a waiver. In this article, the authors hold that although the waiver issue remains unresolved, the case provides valuable insights into the drafting of arbitration provisions in CBAs.
The August 1998 issue of this Journal contained an article on the effect of a mandatory arbitration provision in a collective-bargaining agreement (CBA) with respect to statutory antidiscrimination claims.1 More specifically, that article considered whether the presence of such a clause compels an employee alleging a statutory discrimination claim to arbitrate rather than litigate that claim. The crux of the issue is whether a union can, by consenting to the inclusion of a mandatory arbitration clause in a CBA, effectively waive a covered employee’s right to a judicial forum. As indicated in that article, the circuit courts of appeals have reached conflicting conclusions on that question. In November 1998, the Supreme Court rendered its decision in Wright v. Universal Maritime Service Corp.2 Although it was widely anticipated that Wright would finally resolve
this conflict, the court found it unnecessary to reach the waiver issue and, accordingly, the question remains unanswered. Wright, nevertheless, is significant because it provides some valuable insights into the standards courts will employ in reviewing arbitration clauses in CBAs. Furthermore, it furnishes some useful guidance for the drafting of arbitration provisions.