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“Split Circuits: Can Unions Waive Members’ Rights to a Judicial Forum?”

Can unions waive the rights of their members to a judicial forum? The circuit courts are split on this question, with the Second Circuit recently ruling in 14 Penn Plaza LLC v. Pyett that “mandatory arbitration clauses in collective bargaining agreements are unenforceable to the extent that they waive the rights of covered workers to a judicial forum for federal statutory causes of action.”

In sharp contrast, the Fourth Circuit repeatedly has upheld such waivers, most recently in Aleman v. Chugach Support Services, Inc ., a case in which the parties had expressly agreed “…that a grievance shall include any claim by an employee that he has been subjected to discrimination under Title VII…and/or all other federal, state and local anti-discrimination laws.”

By granting certiorari in 14 Penn Plaza, the Supreme Court will be addressing an issue it expressly declined to decide in Wright v. Universal Maritime Service Corp., and reconciling the inherent tension between its rulings in Alexander v. Gardner-Denver Co ., and Gilmer v. Interstate/Johnson Lange Corp. This tension, which the Supreme Court itself acknowledged in Wright, has contributed to the split in the circuits.

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