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Creative Commons Attribution-NonCommerical-ShareAlike 4.0 International

Document Type


Publication Date

Spring 2010


Florida International University College of Law




This article considers the extent to which the National Labor Relations Board should defer in its protection of statutory rights to the private arbitration process under collective bargaining. The article explains and criticizes the theory of implied union waiver advanced by the District of Columbia Circuit Court of Appeals under the leadership of Judge Harry Edwards. It posits a reformulation of Board deferral doctrine for waivable substantive rights. The article also consider the relevance of the Supreme Court’s 2009 decision in 14 Penn Plaza, LLC v. Pyett to Board deferral to arbitration in cases involving § 7 rights that are not subject to waiver by exclusive bargaining agents.

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