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At the 1999 Annual Meeting of the National Academy of Arbitrators (NAA), Dennis Nolan gave a provocative, influential address on the Academy’s future. He concluded that if the organization was to survive and remain a vibrant force for workplace justice, to the mutual benefit of employers and employees, it must expand beyond its traditional role in labor arbitration based on collective bargaining. According to Nolan, the Academy should also encompass employment arbitration in the nonunion context. Like many good advocates, he may have slightly overstated his case. Although subsequent changes in admission standards now allow the counting of 10 employment arbitrations toward the requirement of 60 written decisions in six years, few if any persons recently admitted to membership needed to count their employment arbitration cases in order to qualify. When Nolan spoke, our total membership was 633; at present it is approximately 642. So our demise would not have been imminent in any event. But the downward trend in unionization that Nolan noted continues. Union density in 2011 had declined to 11.8 percent of the total workforce, and a mere 6.9 percent in the private sector. By comparison, Professor Alexander Colvin reports that mandatory employment arbitration agreements now cover one-fourth to one-third of the nonunion workforce. There is thus strong evidence to support Nolan’s thesis. And if Professor Colvin’s figures are indicative, mandatory employment arbitration remains a pressing issue for the country as a whole and most deserving of our close attention. A disclosure: In my 40 years or so of arbitrating, I have probably handled no more than half a dozen nonunion employment cases. I have arbitrated none for several years. So, I am more of an onlooker at the process, and my voice is mainly that of vicarious experience. In my remarks, I will provide a brief summary of the current legal framework and set forth the standards I believe are needed to ensure a fair procedure for all parties, particularly the isolated individual nonunion employee.


Reproduced with permission. Bloomberg Law, Copyright 2022 by The Bureau of National Affairs, Inc. (800-372-1033)