Alaska Employment Law

The Second Circuit has now unambiguously held that 

mandatory arbitration clauses in collective bargaining agreements are unenforceable to the extent they waive the rights of covered workers to a judicial forum for federal statutory causes of action.

Pyett v. Pennsylvania Building Company, ___ F.3d ___, 2007 WL 2189126 (2nd Cir. Aug. 1, 2007).  The Court emphasized that Wright v. Universal Maritime Serv. Corp., 525 U.S. 70 (1998), “declined to resolve the tension between Gardner-Denver and Gilmer [v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)], instead deciding that it would ‘not reach the question whether such a [clear and unmistakable waiver] would be enforceable.’”  2007 WL 2189126 *2, n.3. 

The 2nd Circuit’s rationale for its holding that Gardner-Denver survived Wright rests on the union’s potential (in Pyett, actual) conflict between its duty to an individual grievant and its duty to the class of represented employees.   The 2nd Circuit’s holding is consistent with an earlier opinion from the 7th Circuit, but conflicts with a more recent one from the 4th Circuit  Id. at *4, n.4. 

Pyett goes beyond (i.e., is more pro-employee than) the majority’s opinion (Carpeneti, Bryner, Fabe) in Hammond v.  State, DOTPF, 107 P.3d 871 (Alaska 2005), which expressly adopted the “clear and unmistakable” waiver standard of Wright, but did not expressly reject or retain Gardner-Denver.  Id. at 876-77.  The Hammond dissenters (Matthews and Eastaugh) expressly rejected Gardner-Denver.  Id. at 883. 

Workplace Prof has a good discussion of Pyett.  

See also the earlier discussion in this blog of Hammond.