The question of how broadly arbitration agreements should be interpreted has been the subject of much judicial and legislative consideration since early in this century. Originally, executory agreements to settle disputes by arbitration were not judicially enforceable. In the 1920’s, Congress made arbitration agreements enforceable in federal courts and many states quickly enacted similar provisions. Labor agreements were, however, generally excluded from this early arbitration legislation. In 1947, Congress enacted a comprehensive labor relations scheme which granted federal courts the power to enforce labor-management arbitration agreements. Ten years later, the United States Supreme Court began to develop a substantive federal common law of labor relations by expanding upon the Congressional enactments.
For many years, the federal and state courts had reserved all decisions of arbitrability of labor disputes for judicial resolution. In the past few years, however, the courts have been increasingly willing to allow arbitral decisions in areas which were previously reserved for judicial determination. In 1960, the Supreme Court found that the right to arbitrate attaches during the course of the labor agreement and survives beyond the end of the agreement, whether the agreement ends by expiration or by termination. The Court held that labor-management disputes arising prior to the end of the agreement remain arbitrable even when the agreement is no longer operational. In 1977, the Supreme Court rendered its most recent arbitrability decision and again expanded the role of arbitration. The Court ruled that even those disputes which arise after the end of the agreement, but which are based upon an obligation created by the agreement, are arbitrable.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.