This article analyzes the question of whether arbitration of statutory claims should be classified as a mandatory or permissive subject of bargaining under the National Labor Relations Act (NLRA). First, this article reviews the post-Wright cases that hold that a union-negotiated waiver is permissible. Second, this article reviews the only decision to consider the issue of classification of the bargaining subject, Air Line Pilots Ass'n, International v. Northwest Airlines, Inc., a case arising in the United States Court of Appeals for the District of Columbia under the Railway Labor Act. In that case, the court concluded that the matter was not a mandatory subject of bargaining because the union could not lawfully waive the employees' right to litigate. The court went on to hold that the employer lawfully imposed the arbitration agreements on probationary pilots individually, rejecting the union's argument .that bargaining with the union was required. Because the D.C. Circuit's opinion was based on its conclusion that a union waiver is impermissible, this article proceeds to consider the appropriate analysis under the NLRA if a union waiver is not prohibited. To answer this question, this article analyzes the case law under the NLRA on mandatory bargaining subjects. This article concludes that, although all aspects of the arbitration procedure are mandatory bargaining subjects, the waiver of the employee's right to a judicial forum is not. Having reached that conclusion, this article goes on to determine whether the employer, consistent with the NLRA, may impose arbitration agreements upon individual employees who are represented by a union, with or without negotiation with the employees. Since statutory arbitration is substantially intertwined with contractual arbitration due to overlap in the subjects to be arbitrated, this article concludes that the employer cannot bypass the union and impose statutory arbitration on the employees directly. Nevertheless, there remains a role for statutory arbitration in the unionized workplace if the employer, employees, and union agree that it would be of mutual benefit.
Ann C. Hodges, Arbitration of Statutory Claims in the Unionized Workplace: Is Bargaining with the Union Required?, 16 Ohio St. J. Disp. Resol. 513 (2001).