Saturday, July 7, 2007

Gould on Modern Labor Arbitration

Gould_bill Not just out, but just came across this interesting piece by former NLRB Chairman William Gould (Stanford) in the Emory Law Journal entitled: Kissing Cousins?: The Federal Arbitration Act and Modern Labor Arbitration (Westlaw subscription required).

From the introduction:

The Federal Arbitration Act of 1925 was signed into law by President Calvin Coolidge in an entirely different era. Indeed, the Act's purpose, as the Supreme Court noted just a few years ago, “was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts.” This statute, focused as it was upon commercial agreements and arrangements and designed to both confront and diminish judicial hostility toward arbitration, has experienced substantial transformation. Most significantly, it has come to have a major impact upon the employment relationship that may rival the impact of both the National Labor Relations Act of 1935 and the civil rights statutes of the 1960s. One of the paradoxes here is that the Federal Arbitration Act was shaped at a time of overt, explicit, and now illegal discrimination on the basis of race, religion, sex, union activity, and other forms of conduct. Yet now, the Act has become a major employment statute with an impact not only upon the individual contract of employment in and out of the discrimination context, as is obvious, but also potentially, the collective bargaining agreement itself.

Definitely an important read from one of the great labor arbitrators in this country.


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