Interest Arbitration Clauses in Sec. 8(F) Pre-Hire Agreements: Effective for Achieving Genuine Collective Bargaining or Enabling Parties to Underhandedly Gain Majority Bargaining Power

Abstract

In Sheet Metal Workers\u27 International Ass\u27n, Local Union No. 2 v. McElroy\u27s Inc., the United States Court of Appeals for the Tenth Circuit considered whether an employer was required to submit to interest arbitration with a union under the pre-hire agreement entered into by the parties. The applicability of the statutory standards for pre-hire agreements to bargained-for labor and employment contracts is an essential element of this case. When interpreting federal statutory law, the majority of jurisdictions permit unilateral repudiation upon the expiration of a pre-hire agreement and a small minority of jurisdictions allow for the agreement to be repudiated unilaterally during its term. However, in considering these principles, the courts have not provided as clear a standard as to how interest arbitration clauses can be used contractually to provide for non-reputable pre-hire agreements between employers and unions. Consequently, it is a question that must be resolved to achieve uniformity in federal labor law. In the instant decision, the Tenth Circuit upheld the application of the interest arbitration clause in a pre-hire agreement as consistent with the decisions of other circuit courts that had been presented with similar contract language.2 Unfortunately, the court left open the question of whether a pre-hire agreement that provides for no avenue of repudiation upon the contract\u27s expiration date and rather a duty to negotiate or accept arbitrated terms, is an inappropriate waiver of the rights statutory policy sought to provide in bargaining relationships