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15 Harv. Negot. L. Rev. 261
Harvard Negotiation Law Review
Spring 2010
Student Note
COLLECTIVELY BARGAINED EMPLOYMENT ARBITRATION: 14 PENN PLAZA LLC V. PYETT
E.E. Keenana1
Copyright (c) 2010 Harvard Negotiation Law Review; E.E. Keenan
Contents
I.
II.
III.
IV.
Introduction
The Case
Discussion
Conclusion
261
262
269
279
I. Introduction
For nearly thirty years, the Supreme Court’s guidance in Alexander v. Gardner-Denver Co.1 had led most lower federal
courts2 to conclude that collective bargaining agreements could not deprive individual employees of a judicial forum for their
discrimination claims. Since then, however, the Court has upheld individual employees’ waivers of judicial fora in federal
statutory discrimination *262 cases.3 The Court’s easing of long-standing judicial hostility to arbitration4 raised a question
about the continuing vitality of the rule against collectively-bargained pre-dispute arbitration agreements.5 Last Term, in 14
Penn Plaza LLC v. Pyett, the Supreme Court resolved the lingering doubts and held that a collective bargaining agreement
may waive individual employees’ rights to judicial resolution of statutory discrimination claims so long as the waiver is
“clear and unmistakable.”6
The Court’s evolution toward a more accommodating view of arbitration made its ruling somewhat foreseeable. Still, the
Court’s opinion neither acknowledged the full weight of its own precedent nor signaled its significant departure from the
normally strong rule of statutory stare decisis. Rather than treating it as dictum, the Court should have regarded
Gardner-Denver’s language barring enforcement of collectively-bargained arbitration clauses as an alternative holding and
proceeded to consider the merits of overruling Gardner-Denver.
II. The Case
Pyett arose out of an age-discrimination claim lodged by three unionized New York City building employees. 7 The plaintiffs,
all over forty years old,8 had worked in the lobby of an office building owned by 14 Penn Plaza LLC. 9 Two of the plaintiffs
had worked at this same building for over thirty years; another had about eight years on the job. 10 In 2003, 14 Penn Plaza
hired an affiliate of the plaintiffs’ employer to staff the lobby. Consequently, the plaintiffs received reassignments to
positions that they viewed as less desirable;11 apparently, they had been replaced by younger employees. 12 The union to
which the three demoted workers belonged challenged *263 the reassignment as a violation of their collective bargaining
agreement’s prohibition on age discrimination.13 When the non-binding grievance procedure failed to resolve the workers’
claims, the union initiated binding arbitration.14 The union later withdrew the age discrimination aspect of the complaints
while pursuing separate claims related to overtime pay and seniority in tenure. 15 The workers then filed a complaint under the
Age Discrimination in Employment Act (ADEA)16 with the Equal Employment Opportunity Commission (EEOC). 17 After
receiving a right-to-sue letter from the EEOC, the plaintiffs took their age discrimination claims to the Southern District of
New York, where management moved to compel arbitration under the Federal Arbitration Act (FAA).18 The District Court
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denied the motion, ruling that circuit law prohibited enforcement of “even a clear and unmistakable union-negotiated waiver
of a right to litigate certain federal and state statutory claims.”19
The Second Circuit affirmed the District Court’s decision.20 The unanimous panel focused on circuit precedent in Rogers v.
New York University,21 which struck down even clear and unmistakable waivers of employees’ rights to judicial fora for
employment discrimination claims. In Rogers, a unionized employee whose contract included an arbitration clause covering
statutory discrimination claims had sued for wrongful termination under the Family and Medical Leave *264 Act of 1993.22
Her employer had moved for a stay, citing the arbitration provision, but the Second Circuit affirmed the District Court’s
denial of the request.23
The Rogers court had noted that “there were two slightly different reasons for denying the stay, either one of which would
suffice.”24 The first ground was the broader. Gardner-Denver had “held that a discharged employee whose grievance had
been arbitrated pursuant to a CBA was not precluded from bringing an action in federal court based on the same conduct.”25
The Rogers panel accorded weight to Barrentine v. Arkansas-Best Freight System, Inc., in which the Supreme Court had held
that employees were not precluded from bringing suit under the federal Fair Labor Standards Act (FLSA)26 for the mere
reason that they had earlier submitted the same FLSA claims in a collectively-bargained arbitral forum.27 The Court worried
that preclusive arbitration could undermine enforcement of employment laws because of the collective bargaining agent’s
discretion over presenting grievances and arbitrators’ limited ability to deal with public law regimes. 28 The Court also
reasoned that “arbitral procedures [are] less protective of individual statutory rights than are judicial procedures.”29 Finally,
the Barrentine court noted that arbitrators might not have the power to award the same remedies as courts. 30 Resting on
Gardner-Denver, Barrentine, and the views of other circuits, the Rogers panel determined that the waiver could not be
enforced because it came through a CBA and not through an individual waiver. 31
The Rogers court had also rested its decision on a separate, narrower ground. It examined the Supreme Court’s ruling in
Wright v. Universal Maritime Service Corp.,32 which considered a unionized employee’s right to sue in court for disability
discrimination despite a collectively-bargained arbitration clause. The Court had upheld the *265 employee’s right to sue
because the waiver was not “clear and unmistakable.”33
Rogers had noted the clear tension - observed but not resolved in Wright - between the Supreme Court’s willingness to
enforce individual waivers in Gilmer v. Interstate/Johnson Lane Corp. 34 and its refusal decades earlier to allow
collectively-bargained waivers in Gardner-Denver.35 However, noting both the doctrinal and practical distinctions between
individual and collectively-bargained waivers,36 the Pyett panel reasoned that Gardner-Denver’s hard line against arbitration
remained intact. Indeed, in the years since Rogers, every Court of Appeals addressing the issue - except the Fourth Circuit adopted the position that collectively-bargained waivers were unenforceable.37 The Second Circuit accordingly concluded
that Pyett’s case could proceed in District Court.
The Supreme Court granted certiorari to consider the enforceability of clear and unmistakable waivers of judicial fora in
statutory discrimination claims.38 In a five-to-four decision, the Court reversed *266 the Second Circuit and upheld the
waivers.39 The majority analyzed the case primarily in terms of the ADEA’s text and the Court’s arbitration case law from
the preceding decades. The majority opinion notably did not question the continued vitality of Gardner-Denver’s holding.
The Court began its analysis by identifying freedom of contract and privately-negotiated arbitration as bedrock features of
national labor policy.40 It turned to the interplay between the National Labor Relations Act (NLRA) 41 and the ADEA and
reasoned that because the ADEA contained no specific language prohibiting the enforcement of arbitration agreements, the
NLRA’s policy of allowing arbitration prevailed.42 In support of this conclusion, the majority went into depth recounting the
Court’s Gilmer decision.43 Focusing on statutory text and dismissing Pyett’s legislative history arguments, the Court
reasoned that, even though the Pyett case involved collective bargaining and Gilmer did not, “[n]othing in the law suggests a
distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union
representative.”44
The Court’s opinion next directly examined Gardner-Denver and concluded that the case’s holding “is not as broad as
respondents suggest.”45 Instead, the Court reasoned, Gardner-Denver centered on res judicata: arbitration did not preclude a
later lawsuit under Title VII where the arbitration clause explicitly covered only breaches of the collective bargaining
agreement’s privately-negotiated discrimination protections, and not Title VII itself. 46 The majority observed *267 that
anti-arbitration decisions subsequent to Gardner-Denver also centered on this narrow issue of preclusion where an arbitrator
had ruled on a contractual question conferring rights similar to those conferred by statute.47 Having distinguished the
Gardner-Denver line of cases, the Court reasoned that “[b]ecause today’s decision does not contradict the holding of
Gardner-Denver, [the Court] need not resolve . . . stare decisis concerns.”48
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Nevertheless, the majority opinion addressed the issues presented by what it deemed “broad dicta” in prior cases such as
Gardner-Denver.49 In place of “the old judicial hostility to arbitration,”50 the Court’s arbitration jurisprudence had evolved to
a far more receptive view, extending the Federal Arbitration Act’s reach to contracts of employment in the non-unionized
context.51 In the years since Gardner-Denver, the Court’s “misconceptions ha[d] been corrected” on the competency and
fairness of arbitration.52 The majority also addressed conflict-of-interest arguments centered on unions’ ability to control the
handling of employees’ arbitral claims. While emphasizing that statutory text - not policy considerations - drove its ruling,
the Court noted that the NLRA represented a specific Congressional choice of majority rule, in which some members of the
bargaining unit might end up dissatisfied.53 Anyone left out may sue the union under the ADEA and may also bring a
separate claim for breach of the union’s duty of fair representation. 54 Citing the scope of the Court’s certiorari grant and the
course of earlier proceedings, the Court concluded that the plaintiffs had forfeited any claim that their *268 collective
bargaining agreement’s arbitration clause was insufficiently clear. Still, the Court left open the possibility of a separate
reason for invalidating the arbitration clause: that the union may so heavily control arbitral access that the plaintiffs
effectively have lost any opportunity to vindicate their ADEA rights. 55
Justice Souter dissented on the basis of the Gardner-Denver precedent.56 He recounted the “several . . . lines of
complementary reasoning” used to support Gardner-Denver, including a Congressional preference for “parallel or
overlapping remedies against discrimination,” a sense that arbitration did not offer a good forum for resolution of Title VII
claims, and a concern that collective bargaining representatives might not adequately represent employees’ individual
interests.57 He also emphasized subsequent cases interpreting Gardner-Denver, including Wright’s statement that
Gardner-Denver imposed a “seemingly absolute prohibition”58 on the enforcement of collectively-bargained arbitration
clauses, the near-unanimity of the circuits in refusing enforcement,59 and the Barrentine court’s summation of
Gardner-Denver’s logic.60 Justice Souter criticized the majority’s narrow reading of Gardner-Denver in light of subsequent
judicial interpretation, declaring that “[h]uman ingenuity is not equal to the task of reconciling” the Court’s
post-Gardner-Denver views with the Pyett majority’s narrow construction of the case. 61 He emphasized the heightened force
of stare decisis in statutory interpretation cases and noted that Congress had not just acceded to, but *269 had apparently
approved, the Gardner-Denver court’s view of employment arbitration.62
In addition to joining Justice Souter’s dissent, Justice Stevens wrote for himself, addressing what he saw as the Court’s
“policy favoring arbitration.”63 He cited his dissents in prior arbitration cases and stated that he viewed the Court’s decision
in Pyett as a continuation of a pro-arbitration trend.64 Justice Stevens also targeted the Court’s willingness to reexamine
statutory precedent and its methodology for doing so, lamenting that “it is only by reexamining the statutory questions
resolved in Gardner-Denver through the lens of the policy favoring arbitration that the majority now reaches a different
result.”65
III. Discussion
Although stare decisis plays a central role in judging, terms like “precedent,” “dicta,” and “holding” frequently get applied
without clear definition. The debate usually focuses on the holding-dicta dichotomy, but a third, even less-well-defined
category - alternative holdings - occasionally appears. The Second Circuit explicitly looked at alternative holdings in the
earlier proceedings. Reflecting back on Rogers’ two sufficient grounds for barring arbitration, the Pyett panel observed that
since a previous Second Circuit panel’s ruling had rested on two reasons, both reasons bound future panels. This same
observation should have prevailed at the Supreme Court, for a careful reading of Gardner-Denver shows that the opinion’s
statements categorically barring enforcement of collectively-bargained arbitration clauses were precedential.
Policy concerns about arbitration did not form the sole basis of the Gardner-Denver holding. The Pyett majority accurately
noted a prominent factual difference between Gardner-Denver and Pyett: in Gardner-Denver, the arbitration agreement did
not confer any power on the arbitrator to decide matters arising under federal anti-discrimination laws.66 The
Gardner-Denver court found the collective bargaining agreement’s narrowness important, and it devoted significant space to
the preclusion issue.67 Gardner-Denver made a procedural distinction that allowed the plaintiff’s case to survive:
*270 In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective
bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights
accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because
both were violated as a result of the same factual occurrence. 68
Given the centrality of preclusion and of the narrowness of the arbitration clause in Gardner-Denver, which encompassed
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only a privately-negotiated right against discrimination and not the public Title VII right, the narrow preclusion ground
clearly forms part of the Court’s holding.
Judges rarely garner criticism for doing only what is minimally necessary to decide a case. But where a court goes beyond the
most fact-specific ground it can find, and rests its ruling additionally on broad policy concerns, the question gets trickier as to
what is dictum, what is an alternative holding, what is the core of the case, and where along this spectrum the language of an
opinion takes on precedential force.69 The question is more than academic: on one view, treating dictum as binding breaches
the Article III case-or-controversy limitation and invades the elective branches’ constitutional roles. 70
*271 Classically, dictum is anything not necessary to the decision. 71 But this time-worn definition contains a serious flaw.72
If a court ever offers more than one sufficient reason for its decision, then no one reason is necessary because each of the
others would do.73 Accordingly, multiple-ground opinions would have no precedential weight at all because no single ground
had to support the judgment.74
This result invites examination of the holding-dictum distinction from standpoints other than necessity. Alternative holdings
can take the form both of single rules that sweep more widely than needed to decide the case and of multiple independent
rules each of which would alone lead to the same result.75 Looking to “broad rule” cases, Professor Healy expresses
sympathy for the argument that certain holdings go so far into unnecessary territory as to violate Article III. 76 But Healy also
notes that drawing the appropriate line of narrowness can prove difficult and subjective, and that “reliance on general
principles promotes the rule of law and prevents judges from deciding cases based on personal bias.”77 Other commentators
focus on sufficiency of a rule to support the court’s judgment; their lines of reasoning could extend to multiple independent
rule cases as well as to broad rule cases. Professors Abramowicz and Stearns have suggested that “[a] holding consists of
those propositions along the chosen decisional path or paths of reasoning that (1) are actually decided, (2) are based upon the
facts of the case, and (3) lead to the judgment.”78 Along the same lines, Professor Dorf asks whether a proposition “forms an
essential ingredient in the process by which the court decides the case, even if, viewed from a post hoc perspective, it is not
essential to the result.”79
*272 Despite some suggestion to the contrary,80 the binding approach to alternative holdings finds solid roots in federal
jurisprudence.81 The Supreme Court has not put much of a gloss on this principle,82 but the Courts of Appeals have devised
criteria to separate alternative holdings from dicta. The best statement in recent years comes from the Seventh Circuit’s
opinion in Whetsel v. Network Property Services, which applied a three-pronged inquiry.83 First, the Whetsel court asked
whether the language in a prior opinion was “based on the actual facts before the court and was a sufficient ground standing
alone to reach the court’s decision.”84 An affirmative answer pointed to a holding; by contrast, dictum could be seen as “a
stray rumination on what the law would be in a hypothetical case.”85 Second, the Whetsel court looked to whether the
previous statement was “carefully considered”86 - that parties in the earlier case addressed the *273 matter in their briefs
indicates that it was, indeed, considered carefully.87 Third, the court asked whether “the statement [in the prior case] . . . does
not conflict with other well-settled precedents.”88 Adherence to prior cases points to a statement being an alternative
holding.89 This last criterion makes sense in light of the focus on whether language was carefully considered. Overruling is a
major event; just as Congress does not “hide elephants in mouseholes” when changing a major legal regime,90 neither do
courts.
Federal courts have added a jurisdictional caveat. Where one of the grounds of the prior decision was an absence of
jurisdiction, the other independent grounds are dicta. 91 This principle stems from the rule, also reflected in Whetsel, that an
alternative holding must “support the actual judgment in [the] case.”92 It is hard to see how any other approach squares with
Article III. Merits commentary is only appropriate to support a merits ruling. 93 The Constitution vests the federal courts with
power over specified classes of “cases and controversies,”94 and where no jurisdiction exists, any discussion of the merits
would constitute an advisory opinion.
Did Gardner-Denver categorically bar enforcement of a pre-dispute binding arbitration clause covering federal statutory
employment rights when incorporated in a collective bargaining agreement? Two passages indicate that the Court did
prohibit enforcement of such agreements. The first is the broad statement that “there can be no prospective waiver of an
employee’s rights under Title VII,”95 *274 which the Court determined includes the right to bring a court action.96 This
assertion did not survive Gilmer with respect to individual employees who signed arbitration agreements.97 As Justice Scalia
indicated in Wright, though, the question remained open as to collectively-bargained waivers.98 The second clue emerges
from the Gardner-Denver court’s discussion of the defendant’s recommended rule. The management litigant had suggested
the Court adopt a rule that:
courts . . . defer to arbitral decisions on discrimination claims where: (i) the claim was before the arbitrator; (ii) the
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collective-bargaining agreement prohibited the form of discrimination charged in the suit under Title VII; and (iii) the
arbitrator has authority to rule on the claim and to fashion a remedy.”99
The Court very specifically declined the invitation, finding it “unlikely . . . that Congress impliedly intended federal courts to
defer to arbitral decisions on Title VII issues.”100 The Court concluded that several features made arbitration inappropriate
for Title VII claims. These included “the specialized competence of arbitrators [which] pertains primarily to the law of the
shop, not the law of the land,”101 the lack of court-equivalent procedural and evidentiary rules,102 the absence of a
requirement for a reasoned opinion,103 and the bargaining representative’s potential control over the arbitral process. 104
The Gardner-Denver court’s well-articulated objections to compulsory arbitration constitute a binding alternative holding. Its
reasoning satisfied all of the Whetsel factors.105 First, the discussion *275 related directly to “the actual facts before the
court” and not a hypothetical scenario.106 The Court’s view of compulsory arbitration as an end-run around substantive
non-discrimination rights, and its refusal to defer to arbitral rulings, related to the actual parties’ interests in the wake of a real
arbitral decision. Second, the Court’s discussion - spanning several pages and citing many sources - appeared “carefully
considered”107 to the extent that the phrase is capable of objective definition. The management defendant’s brief had
explicitly encouraged the Court to discuss deferral to arbitration. 108 Finally, Gardner-Denver’s categorical rule against
collective bargaining agreements forcing binding arbitration of Title VII claims “d[id] not conflict with other well-settled
precedents”109 at the time of decision. It hewed closely to the anti-arbitration outlook of Wilko v. Swan,110 which would later
be overruled111 but was valid law at the time.
Since Gardner-Denver’s rule against binding arbitration was precedential, the next question for the Court should not have
been whether to distinguish Gardner-Denver, but instead whether to overrule it.112 The Court has had the opportunity to
enunciate standards for overruling; two of the most prominent recent cases discussing these standards are Payne v.
Tennessee113 and Planned Parenthood v. Casey.114 Using a comparatively flexible approach to stare decisis, 115 the Payne
court overruled recent precedent that had barred “victim *276 impact” evidence in capital trials. The Court looked to such
factors as: whether the “governing decisions are unworkable or are badly reasoned,”116 the closeness of those decisions,117
and whether they have come into question in subsequent judicial commentary. 118 It observed that “[c]onsiderations in favor
of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved.”119
The next Term, the closely-divided Casey court reaffirmed the core holding of Roe v. Wade.120 The controlling opinion
focused on four factors courts had historically invoked in reconsidering precedent:
[1] whether the rule has proven to be intolerable simply in defying practical workability; [2] whether the rule is subject to a
kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of
repudiation; [3] whether related principles of law have so far developed as to have left the old rule no more than a remnant of
abandoned doctrine; [4] or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of
significant application or justification.121
One distinction is that Pyett involved statutory questions, whereas Payne and Casey were constitutional decisions. Statutory
precedents “often enjoy a super-strong presumption of correctness.”122 Justice Souter’s Pyett dissent picked up on this,
noting that statutory stare decisis exercises a more solid grip because “unlike constitutional interpretation . . . Congress [may]
alter any reading . . . simply by amending the statute.”123
*277 Combining the Casey and Payne frameworks,124 the Pyett court could have first looked to workability and reasoning.
The phrase “badly reasoned”125 invites highly subjective judgment, as almost no decision in a hard case is insusceptible to
critique. But Gardner-Denver is well-reasoned insofar as its conclusions follow from its premises and it identifies the correct
governing doctrine of the time. The case’s rule seems easily administrable: courts hearing statutory cases involving
collectively-bargained waivers would simply refuse to compel arbitration.
A second factor, reliance, poses a trickier question. Collective bargaining agreements involve the sort of economic interests
that Payne singled out for protection. Nonetheless, the Gardner-Denver precedent does not enforce the terms of collective
bargaining agreements - it condemns them. Which “reliance” is more important: the parties’ ex ante reliance on the terms
they negotiated, or their ex post reliance on the hope that the agreement would not in practice mean what they said it would?
Note, especially, the reliance interests of the less-well-represented groups in the bargaining unit, who might count on
Gardner-Denver to save them from a process that would disadvantage them.126
The Pyett majority’s stronger case regards intervening change in the law and judicial commentary, though the dissent also
presented strong arguments on this issue.127 The major consideration here is *278 Gilmer. Critics of the Court’s
contemporary arbitration jurisprudence argue that the extension of the Federal Arbitration Act’s reach to employment
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disputes stands athwart Congress’s intent.128 Even ignoring legislative history, the FAA specifically provides that “nothing
herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers
engaged in foreign or interstate commerce.”129 But that view has not prevailed. Whatever the law may have been before,
Gilmer put the finishing touches on a line of cases that made federal courts much more open to arbitration. The Court
indicated that it would find arguments about intervening arbitration law compelling were it to have considered the matter of
overruling Gardner-Denver outright.130 Had the Court gone this route, it could have emphasized the incongruence between
allowing enforcement of arbitration agreements for employees without representation and maintaining a different rule for
those who are represented.
The defense of this distinction shifts the dialogue back to the factual picture and Casey’s fourth factor. Gilmer agreed with
the Gardner-Denver view that collectively-bargained waivers involve a “tension between collective representation and
individual statutory rights.”131 This tension exists just as much today as in 1974. The fourth factor - lack of change over time
- counsels against overruling.
Aside from the Payne-Casey factors, the dissent’s strongest argument lies in the Court’s commitment to statutory stare
decisis. Although the Court certainly overrules statutory precedents in some cases, 132 Congress remains the primary actor.
Here, Congress had thirty-five years to adopt a contrary position on arbitration and chose not to do so. But because the
majority used the dicta label to distinguish all but the narrowest components of Gardner-Denver, it never had to balance
reliance interests and separation of powers concerns against the merits of a uniform approach to employment arbitration.
*279 IV. Conclusion
Lawyers seeking to give their clients sound advice find little guidance in opinions that mean no more than the precise facts on
which they were decided.133 As the dissenting justices in Pyett made clear, the Supreme Court’s prior opinions, along with
the nearly unanimous views of the Courts of Appeals, had broadcast justifiable expectations of the state of the law.
Gardner-Denver contained an alternative holding, barring enforcement of any collectively-bargained agreement to arbitrate
statutory discrimination claims. The Court should have acknowledged the binding precedent in Gardner-Denver and set it
side-by-side with subsequent developments in the law of arbitration, considering the propriety of overruling and its attendant
ramifications for the Court’s strong tradition of statutory stare decisis.
Footnotes
a1
A.B., 2006, J.D. Candidate, 2010, Harvard. I am very grateful to Professor Richard H. Fallon, Jr., Mr. George A. Hanson, Mr.
Richard M. Paul III, Professor Benjamin I. Sachs, and the editors of the Harvard Negotiation Law Review for excellent guidance.
All errors are my own.
1
415 U.S. 36 (1974).
2
The overwhelming majority of circuits to speak on the issue had denied enforcement to collectively-bargained waivers of judicial
fora. See, e.g., O’Brien v. Town of Agawam, 350 F.3d 279 (1st Cir. 2003); Mitchell v. Chapman, 343 F.3d 811 (6th Cir. 2003);
Tice v. Am. Airlines, Inc., 288 F.3d 313 (7th Cir. 2002); Rogers v. N.Y. Univ., 220 F.3d 73 (2d Cir. 2000); Air Line Pilots Ass’n,
Int’l v. Nw. Airlines, Inc., 199 F.3d 477 (D.C. Cir. 1999), judgment reinstated, 211 F.3d 1312 (D.C. Cir. 2000) (en banc);
Albertson’s, Inc. v. United Food & Commercial Workers Union, 157 F.3d 758 (9th Cir. 1998); Brisentine v. Stone & Webster
Eng’g Corp., 117 F.3d 519 (11th Cir. 1997); Harrison v. Eddy Potash, Inc., 112 F.3d 1437 (10th Cir. 1997), vacated on other
grounds, 524 U.S. 947 (1998); Varner v. Nat’l Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir. 1996). Contra E. Ass’d Coal
Corp. v. Massey, 373 F.3d 530 (4th Cir. 2004).
3
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 23 (1991).
4
See, e.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) (employment); Shearson/Am. Express Inc. v. McMahon, 482
U.S. 220 (1987) (securities); Mitsubishi Motors Corp v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) (antitrust). But see
EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) (employment).
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5
Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 82 (1998).
6
14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009).
7
Id. at 1461-62.
8
See id. The Age Discrimination in Employment Act’s protections begin at age 40. 29 U.S.C. § 631(a) (2006).
9
Pyett, 129 S. Ct. at 1461.
10
Pyett v. Pa. Bldg. Co., No. 04 Civ. 7536 (NRB), 2006 WL 1520517, at *1 (S.D.N.Y. June 1, 2006).
11
Pyett, 129 S. Ct. at 1462 (2009).
12
Pyett, 2005 WL 1520517, at *1.
13
Pyett, 129 S. Ct. at 1462. The Collective Bargaining Agreement read in relevant part: Ҥ 30 NO DISCRIMINATION. There shall
be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex,
union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of
the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State
Human Rights Law, the New York City Human Rights Code, ... or any other similar laws, rules, or regulations. All such claims
shall be subject to the [CBA’s] grievance and arbitration procedures ... as the sole and exclusive remedy for violations. Arbitrators
shall apply appropriate law in rendering decisions based upon claims of discrimination.” Id. at 1461 (footnote and citation
omitted).
14
Id. at 1462. The arbitration clause of the CBA “provides that the arbitrator ‘shall ... decide all differences arising between the
parties as to interpretation, application or performance of any part of this Agreement and such other issues as the parties are
expressly required to arbitrate before him under the terms of this Agreement.”’ Id. at 1461 n.1 (citing App. to Petition for
Certiorari 43a-47a).
15
Id. at 1642.
16
Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34 (2006).
17
Pyett, 129 S. Ct. at 1462.
18
Id.
19
Pyett v. Pa. Bldg. Co., No. 04 Civ. 7536 (NRB), 2006 WL 1520517, at *3 (S.D.N.Y. June 1, 2006).
20
Pyett v. Pa. Bldg. Co., 498 F.3d 88 (2d Cir. 2007).
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21
Rogers v. N.Y. Univ., 220 F.3d 73 (2d Cir. 2000).
22
Id. at 74. The Family and Medical Leave Act of 1993 is codified at 29 U.S.C. §§ 2601-54 (2006).
23
Rogers, 220 F.3d at 74.
24
Id.
25
Id. at 75.
26
Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-19 (2006).
27
Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728 (1981).
28
Id. at 742-43.
29
Id. at 744 (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 57-58 (1974)).
30
Barrentine, 450 U.S. at 745.
31
Rogers, 220 F.3d at 75 (citing the court’s own precedent in Tran v. Tran, 54 F.3d 115, 117-18 (2d Cir. 1995), and cases from six
other circuits in support).
32
Wright v. Universal Mar. Serv. Corp., 525 U.S. 70 (1998).
33
Id. at 80 (quoting Metro. Edison Co. v. NLRB, 460 U.S. 693, 708 (1983)).
34
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).
35
Wright, 525 U.S. at 80.
36
Pyett v. Pa. Bldg. Co., 498 F.3d 88, 93 (2d Cir. 2007). The Supreme Court had emphasized a distinction between collective rights,
which it deemed appropriate for collective bargaining, and statutory rights, which it viewed as inappropriate topics at the
bargaining table. E.g., Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (“In contrast to the Labor Management
Relations Act, which was designed to minimize industrial strife and to improve working conditions by encouraging employees to
promote their interests collectively, the FLSA was designed to give specific minimum protections to individual workers ....”)
(citing Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578 (1942)).
37
Pyett, 498 F.3d at 93 n.4 (“After Wright, our sister circuits have not stepped much beyond Gardner-Denver’s holding with regard
to the enforceability of arbitration provisions in CBAs.”) (citing O’Brien v. Town of Agawam, 350 F.3d 279, 285 (1st Cir. 2003);
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Mitchell v. Chapman, 343 F.3d 811, 824 (6th Cir. 2003); Tice v. Am. Airlines, Inc., 288 F.3d 313, 317 (7th Cir. 2002); EEOC v.
Ind. Bell Tel. Co., 256 F.3d 516, 522 (7th Cir. 2001)); but see E. Ass’d Coal Corp. v. Massey, 373 F.3d 530, 533 (4th Cir. 2004).
38
14 Penn Plaza LLC v. Pyett, 128 S. Ct. 1223 (2008). See also Petition for Writ of Certiorari, 14 Penn Plaza LLC v. Pyett, No.
07-581, 2007 WL 3230905, at *i (Oct. 30, 2007) (Question Presented: “Is an arbitration clause contained in a collective
bargaining agreement, freely negotiated by a union and an employer, which clearly and unmistakably waives the union members’
right to a judicial forum for their statutory discrimination claims, enforceable?”). The merits briefing featured a number of
noteworthy alliances: the National Right to Work Legal Defense Foundation and the nation’s two leading labor federations, the
AFL-CIO and the Change to Win Coalition, all filed amicus briefs in support of the employee plaintiffs. See Brief for AFL-CIO
& Change to Win as Amici Curiae Supporting Respondents, 14 Penn Plaza LLC v. Pyett, No. 07-581, 2008 WL 2817677 (July
18, 2008); Brief for Nat’l Right to Work Legal Def. Found., Inc. as Amicus Curiae Supporting Respondents, 14 Penn Plaza LLC
v. Pyett, No. 07-581, 2008 WL 2781975 (July 15, 2008).
39
14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009).
40
See id. at 1464.
41
National Labor Relations Act, 29 U.S.C. §§ 151-69 (2006).
42
Pyett, 129 S. Ct. at 1465.
43
Id.
44
Id.; see also id. at n.6 (“[R]eading the legislative history in the manner suggested by respondents would create a direct conflict
with the statutory text, which encourages the use of arbitration for dispute resolution without imposing any constraints on
collective bargaining. In such a contest, text must prevail.”). A House report on the ADEA had included the following language:
“[A]ny agreement to submit disputed issues to arbitration ... in the context of a collective bargaining agreement ... does not
preclude the affected person from seeking relief under the enforcement provisions of Title VII. This view is consistent with the
Supreme Court’s interpretation of Title VII in Alexander v. Gardner-Denver ....” Id. (citing H.R. Rep. No. 102-40, pt. 1, p. 97
(1991)) (internal marks omitted).
45
Id. at 1466.
46
Id. at 1467.
47
Id. at 1468-69.
48
Id. at 1469 n.8.
49
Id. at 1469.
50
Id. at 1470 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 480 (1989)) (internal marks omitted).
51
See id. at 1469-70 (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991); Circuit City Stores, Inc. v. Adams,
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532 U.S. 105, 123 (2001)).
52
Id. at 1471 (“[T]he Court has ‘recognized that arbitral tribunals are readily capable of handling the factual and legal complexities
of antitrust claims, notwithstanding the absence of judicial instruction and supervision’ and that ‘there is no reason to assume at
the outset that arbitrators will not follow the law.’ ... An arbitrator’s capacity to resolve complex questions of fact and law extends
with equal force to discrimination claims brought under the ADEA. Moreover, the recognition that arbitration procedures are
more streamlined than federal litigation is not a basis for finding the forum somehow inadequate; the relative informality of
arbitration is one of the chief reasons that parties select arbitration.”) (citing Shearson/Am. Express, Inc. v. McMahon, 482 U.S.
220, 232 (1987); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 634 (1985)).
53
Id. at 1472.
54
Id. at 1473.
55
Id. at 1474. Justice Souter concluded in the dissent: “On one level, the majority opinion may have little effect, for it explicitly
reserves the question whether a CBA’s waiver of a judicial forum is enforceable when the union controls access to and
presentation of employees’ claims in arbitration, which is usually the case.” Id. at 1481 (citation and internal marks omitted).
56
Justices Stevens, Ginsburg, and Breyer joined Justice Souter’s dissent. Id. at 1476.
57
Id. at 1477-78 (Souter, J., dissenting) (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)).
58
Id. at 1477 (quoting Wright v. Universal Mar. Serv. Corp., 525 U.S. 70 (1998)).
59
Id. at 1479.
60
Id. (“‘Not all disputes between an employee and his employer are suited for binding resolution in accordance with the procedures
established by collective bargaining. ... [D]ifferent considerations apply where the employee’s claim is based on rights arising out
of a statute designed to provide minimum substantive guarantees to individual workers. These considerations were the basis for
our decision in [Gardner-Denver].”’) (quoting Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 737 (1981)).
61
Id. at 1480.
62
Id. at 1478, 1481.
63
Id. at 1474 (Stevens, J., dissenting).
64
Id. at 1475.
65
Id. at 1475-76.
66
Id. at 1467 (majority opinion).
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67
See Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-51 (1974).
68
Id. at 49-50.
69
For discussion of the spectrum concept, see Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2013 (1994). There
are ways to further divide the spectrum: for instance, some courts and commentators have separated dicta into “judicial dicta” and
“obiter dicta.” See, e.g., United States v. Bell, 524 F.2d 202, 206 (2d Cir. 1975) (“There is authority for the proposition that a
distinction should be drawn between ‘obiter dictum,’ which constitutes an aside or an unnecessary extension of comments, and
considered or ‘judicial dictum’ where the Court ... is providing a construction of a statute to guide the future conduct of inferior
courts. While such dictum is not binding upon us, it must be given considerable weight ....”) (footnotes omitted). Professor Dorf
looks at cases in which three or more alternative holdings support the result, and based on the concern that a court would not have
carefully considered so many grounds, suggests potential stare decisis approaches. Dorf, supra, at 2045 n.170 (“Perhaps ... the law
ought to presume that none of them is a full-fledged holding .... Or perhaps, like well-considered dicta, each of many alternate
rationales ought to be treated as persuasive authority only.”). Additionally, not every commentator adheres to the traditional
dictum-holding distinction. Professor Bayern has proposed a flexible view of precedent that looks to the contextualized intentions
of a court that announced a rule and compares the intended rule to the context of the later case in which it might be applied. See
Shawn J. Bayern, Case Interpretation, 36 Fla. St. U. L. Rev. 125, 137-38, 144 (2009).
70
See Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1259-60 (2004) (“Given that
the court’s sole constitutional authority is to decide cases, what should we make of the constitutional legitimacy of lawmaking
through proclamation of dicta? It is simply without justification. Courts make law only as a consequence of the performance of
their constitutional duty to decide cases.”)
71
Dorf, supra note 69, at 2003.
72
See Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1066 (2005); Dorf, supra note 69, at
2043-44.
73
Dorf, supra note 69, at 2043-44.
74
Id.
75
Cf. Bayern, supra note 69, at 165 (“[T]he way a particular legal rule is stated - the statement of a rule as a threshold or serial
inquiry rather than one requiring a parallel inquiry - influences the distinction between holdings and dicta.”) (citing Abramowicz
& Stearns, supra note 72.).
76
Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 N.C. L. Rev. 847, 917 (2005).
77
Id. at 917-18.
78
Abramowicz & Stearns, supra note 72, at 1065.
79
Dorf, supra note 69, at 2045 (footnote omitted).
80
See Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court’s Responsibilities: An Empirical Study, 59
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N.Y.U. L. Rev. 681, 723 & n.157 (1984) (drawing an analogy to collateral estoppel in arguing that dicta and alternative holdings
are both non-binding, but also citing contrary Supreme Court case law).
81
The Courts of Appeals widely recognize alternative holdings as binding. See, e.g., Carachuri-Rosendo v. Holder, 570 F.3d 263
(5th Cir. 2009); Bravo v. United States, 532 F.3d 1154 (11th Cir. 2008); Phila. Marine Trade Ass’n-Int’l Longshoremen’s Ass’n
Pension Fund v. Com’r of Internal Rev. Serv., 523 F.3d 140, 147 n.5 (3d Cir. 2008) (“[W]here a decision rests on two or more
grounds, none can be relegated to the category of obiter dictum.”) (quoting Woods v. Interstate Realty Co., 337 U.S. 535, 537
(1949)); Pyett v. Pa. Bldg. Co., 498 F.3d 88 (2d Cir. 2007); United States v. Dupas, 417 F.3d 1064, 1069 (9th Cir. 2005) (noting
that a “one-sentence alternative holding at the end of [an] opinion” is binding precedent); United States v. Fulks, 454 F.3d 410,
434-35 (4th Cir. 2006). But see Leval, supra note 70, at 1259-60.
82
The Supreme Court’s last major discussion of the concept appears to have come in Woods v. Interstate Realty Company, 337 U.S.
535 (1949). As apparent in the preceding footnote, Woods continues to be cited to this day. Woods involved the subsequent
construal of a case whose decisional grounds resemble those of Gardner-Denver. In the opinion in question, Angel v. Bullington,
330 U.S. 183 (1947), the Court had enunciated two grounds for decision - one based on res judicata and the other on a changed
view of federal jurisdiction in light of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). In Woods, the lower court had held that
only the res judicata ground was precedential. Woods, 337 U.S. at 537. The Court rejected this position. Id.
83
Whetsel v. Network Prop. Servs., LLC, 246 F.3d 897 (7th Cir. 2001).
84
Id. at 903.
85
Id. The non-hypothetical criterion is canonical and has strong support even in the narrow, fact-bound conception of a holding. See
Arthur L. Goodhart, Determining the Ratio Decidendi of a Case, 40 Yale L.J. 161, 178-79 (1930). Professor Goodhart’s view
accorded precedential status solely to the material facts of the case and the result on those facts, not to the announced rules or the
path of reasoning. Id. at 180-82.
86
Whetsel, 246 F.3d at 903.
87
Id. The careful consideration tenet also stands at the core of traditional holding-dictum distinction. See, e.g., Healy, supra note 76,
at 919 (describing the relationship between alternative holdings, unnecessary constitutional holdings, and advisory opinions in
light of parties’ incentives to argue alternative grounds for judgment); Dorf, supra note 69, at 2002 (noting lack of careful
consideration resulting from lack of briefing and argument as traditional grounds for according less deference to dicta).
88
Whetsel, 246 F.3d at 903.
89
See id.
90
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).
91
United States ex rel. Bledsoe v. Cmty. Health Sys., 501 F.3d 493, 507 (6th Cir. 2007) (citing Moreland v. Fed. Bureau of Prisons,
431 F.3d 180, 185 (5th Cir. 2005)).
92
Moreland, 431 F.3d at 185.
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93
See generally Grabinski v. Blue Springs Ford Sales, Inc., 203 F.3d 1024, 1027 (8th Cir. 2000) (applying diminished deference to
state alternative holding where main basis of state decision was jurisdictional). The jurisdictional limitation conflicts with the
Supreme Court’s view of alternative holdings in Woods v. Interstate Realty Co., 337 U.S. 535 (1949), which held that res judicata
and lack of jurisdiction both constituted precedential grounds of decision in a prior case. See supra note 82.
94
U.S. Const. art. III. For further discussion of the constitutional importance of the holding-dictum distinction, see Leval, supra note
70, at 1259-60.
95
Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974).
96
See id. (citing Wilko v. Swan, 346 U.S. 427 (1953), a securities case that, at the time, was the main precedent weighing against
the enforceability of arbitration clauses).
97
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 34-35 (1991) (distinguishing Gardner-Denver’s broad language against
arbitration as inconsistent with subsequent precedent, but reserving the question of whether arbitration agreements in collective
bargaining agreements are enforceable).
98
Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 82 & n.2 (1998).
99
Gardner-Denver, 415 U.S. at 55-56 & n.17 (citing defendant’s brief and National Labor Relations Board precedent for “deferring
to arbitral decisions on statutory issues in certain cases”).
100 Id. at 56.
101 Id. at 57.
102 Id.
103 See id. at 58.
104 See id. at 58 n.19.
105 Of course, Whetsel - a lower court decision - is not binding on the Supreme Court. The Whetsel checklist is instead used as a
heuristic for determining whether an alternative holding is precedential, since the Supreme Court does not appear to have issued
any such comprehensive statement.
106 Whetsel v. Network Prop. Servs., LLC, 246 F.3d 903, 903 (7th Cir. 2001).
107 Id.
108 See id.
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109 Id.
110 Alexander v. Gardner-Denver Co., 415 U.S. 36, 58 (1974) (citing Wilko v. Swan, 346 U.S. 427, 435-37 (1953)).
111 Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 485 (1989).
112 See William N. Eskridge, Jr., Overruling Statutory Precedents, 76 Geo. L.J. 1361, 1370-71 (1988) (“Statements in Supreme Court
opinions later declared to be dicta are often quite reasonably treated as authoritative by lower courts, private parties, and
Congress. By characterizing earlier statements as dicta, the Court seems at times almost too willing to shift directions frequently;
this is ... at odds with ... the goal of orderly development of the law underlying normal stare decisis.”) (italics added).
113 Payne v. Tennessee, 501 U.S. 808 (1991).
114 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
115 The ruling drew biting commentary. Justice Marshall assailed it on stare decisis grounds, declaring, “Power, not reason, is the
new currency of this Court’s decisionmaking.” Payne, 501 U.S. at 844 (Marshall, J., dissenting). See also Andrew M. Jacobs, God
Save This Postmodern Court: The Death of Necessity and the Transformation of the Supreme Court’s Overruling Rhetoric, 63 U.
Cin. L. Rev. 1119, 1172 (1995) (“No contemporary decision of the Court has underscored the lack of necessity in current
overrulings more than Payne v. Tennessee.”) (footnote omitted).
116 Payne, 501 U.S. at 827.
117 Id. at 828-29.
118 Id. at 829-30.
119 Id. at 828.
120 Roe v. Wade, 410 U.S. 113 (1973).
121 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854-55 (1992) (citing Swift & Co. v. Wickham, 382 U.S. 111 (1965);
United States v. Title Ins. & Trust Co., 265 U.S. 472 (1924); Patterson v. McLean Credit Union, 491 U.S. 164 (1989); Burnet v.
Coronado Oil & Gas Co., 285 U.S. 393, 412 (1932) (Brandeis, J., dissenting)).
122 Eskridge, supra note 112, at 1362. Professor Eskridge has suggested that the current standard be replaced with a slightly more
flexible “‘evolutive’ approach, under which a statutory precedent might be overruled if its reasoning has been exposed as
problematic and its results pernicious, and it has not broadly influenced subsequent lawmaking and private planning.” Id. at 1385.
123 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456, 1478 (2009) (Souter, J., dissenting).
124 Although this article adheres to the doctrinal criteria the Court has articulated, there have been several scholarly expositions of the
proper grounds for overruling. E.g., Melvin Aron Eisenberg, The Nature of the Common Law 104-05 (1988) (“A doctrine should
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be overruled if (i) it substantially fails to satisfy the standards of social congruence and systemic consistency, and (ii) the values
that underlie the standard of doctrinal stability and the principle of stare decisis - the values of evenhandedness, protecting
justified reliance, preventing unfair surprise, replicability, and support - would be no better served by the preservation of a
doctrine than by its overruling.”) (italics added); Eskridge, supra note 112, at 1385. Under Professor Eisenberg’s approach, which
places a premium on predictability and coherence, the majority has a strong case for overruling Gardner-Denver. Since Gilmer,
the Court has embraced what are essentially adhesion arbitration contracts for unrepresented employees, and in light of that
development, it may seem counterintuitive to refuse enforcement of contracts for those who do have some bargaining power.
Under Professor Eskridge’s approach, which focuses more on the wrongness of the decision and its interplay with other
policymaking bodies, the dissent seems to have the upper hand. Even if Gardner-Denver were wrong as a matter of policy, it is
not necessarily wrong as a matter of logic, and Congress had arguably accepted the Gardner-Denver court’s view of arbitration.
See Pyett, 129 S. Ct. at 1478, 1481 (Souter, J., dissenting).
125 Payne v. Tennessee, 501 U.S. 808 (1991).
126 See Pyett, 129 S. Ct. at 1481 n.4 (Souter, J., dissenting).
127 As to Payne’s vote-count factor, note Gardner-Denver’s unanimity.
128 See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 39-40 (Stevens, J., dissenting) (discussing legislative history of the
FAA).
129 Federal Arbitration Act, 9 U.S.C. § 1 (2006).
130 Pyett, 129 S. Ct. at 1469 n.8 (majority opinion).
131 Gilmer, 500 U.S. at 35.
132 See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172-73 (1989) (discussing grounds for overruling statutory precedents
and cases in which precedents had been overruled), superseded by statute, Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat.
1071 (Nov. 21, 1991) (codified in relevant part at 28 U.S.C. § 1981 (2006)).
133 For instance, advice to the practicing bar has already expressed questions about the importance of Pyett: “The holding in 14 Penn
Plaza may have limited effect, as Justice Souter’s dissent observes, because it leaves unresolved the question of whether a union
can waive a federal forum for discrimination claims if the union has the power to block individual employees from arbitrating
such claims.” Leila S. Narvid, Supreme Court Upholds Enforceability of Collective Bargaining Agreements That Mandate
Arbitration for Statutory Claims, 23 Andrews Employment Litig. Rptr. 1 (2009). Furthermore, under the majority’s own
restrictive view of stare decisis, it may mean little that the Court signaled that the FAA governs collective bargaining agreements,
contrary to years of case law suggesting it did not. Cf. Seth M. Galanter & Jeremy M. McLaughlin, Does the FAA Apply to
Collective Bargaining Arbitrations After 14 Penn Plaza, 24 Corp. Couns. 5 (2009) (noting previous treatment of collective
bargaining agreements rested on federal common law, but “14 Penn Plaza can be read to sweep aside the lower court decisions
that have refused to allow the parties to rely on the FAA to enforce arbitration agreements in CBAs”). If reliance on the FAA was
unnecessary - perhaps the Court could have proceeded to decide the issue under federal common law - then its statements about
the FAA are not binding on future courts. This, again, offers little help to labor lawyers attempting to figure out what body of law
applies to the collective bargaining agreements they draft.
End of Document
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