Supreme Court Without a Clue: 14 Penn Plaza L.L.C.V. Pyett and the System of Collective Action and Collective Bargaining Established by the National Labor Relations Act

Abstract

The U.S. Supreme Court and various National Labor Relations Boards have been engaged for more than two decades in statutory interpretations of the National Labor Relations Act (as amended, L.M.R.A.) that substantially undermine and narrow those statutes. Recent decisions of the Supreme Court have crossed the line to judicial re-legislation of those statutes. The most brazen judicial legislation occurred in the recent case of 14 Penn Plaza L.L.C. v. Pyett. The Supreme Court in enforcing an express contractual duty to arbitrate union members federal statutory individual rights has seemingly remade the collective bargaining system in the United States, by first, equating collective bargaining arbitration with individual employment contract dispute arbitration, and anti-trust arbitration, thus transforming, the role of collective bargaining arbitration in ways which ignore bedrock case precedent. By second, destroying the doctrine of mandatory versus permissive subjects of the duty to bargain in good faith. By third, turning the purpose of collective bargaining away from protecting collective action by workers to achieving the aggregated individual interests of a bare majority of a union’s membership, contrary to the plain language of the statute. This agenda of individualizing the interpretation and enforcement of the collective bargaining agreement and system ignores stare decisis and longstanding consensus on the purposes of federal labor statutes to the detriment of both employers and employees. The article extends remarks first offered on Pyett at the Labor Coordinating Committee annual meeting of the AFL-CIO, May, 2009.