Relationship between collective agreement/arbitration and law

Alexander v. Gardner-Denver 416 U.S. 36 (1974) Voluntary filing of a grievance under a CBK alleging discrimination does not foreclose employee from filing suit under Title VII ee must meet jurisdictional requirements CBA does not waive an employee’s statutory rights arbitration and EEOC/courts different forums with different authority arb - interpret CBK EEOC - enforce Title VII

Waiver of Statutory Rights? MUST an employee use the (grievance and) arbitration procedure? Gilmer v. Interstate/Johnson Lane Corp., Sup. Ct., 500 U.S. 20, 1991 Nonunion brokerage firm employee who had agreed to arbitrate any employment controversy required to arbitrate age discrimination claim agreement to arbitrate a waiver of right to sue

Waiver of Statutory Rights? (cont.) Wright v. Universal Maritime Service Corp, U.S.Supreme Court, 1998 Is there a conflict between Gardner-Denver (ee covered by a CBA may go to court on statutory claim regardless of outcome of grievance procedure) Gilmer (ee may waive statutory right to file if ee agrees to submit dispute to arb)

Wright (continued) Incorporation of statutory law in CBK does not alter fact that this a statutory claim, not a claim under CBK Presumption of arbitrability only extends to those issues which can be decided better by arbitrators than by courts - issues under CBK, not a federal statute Waiver of statutory rights must be “clear and unmistakable; must be “explicitly stated” in CBK Court unwilling to infer a Gilmer-like individual waiver of statutory rights from a collective agreement No explicit incorporation in agreement of ADA, as there was with OSHA

Relationship Between External Law and CBA “The dispute in the present case, however, ultimately concerns not the application or interpretation of any CBA, but the meaning of a federal statute. The cause of action Wright asserts arises not out of contract, but out of the ADA, and is distinct from any right conferred by the collective-bargaining agreement. . . . To be sure, respondents argue that Wright is not qualified for his position as the CBA requires, but even if that were true he would still (emphasis in original) prevail if the refusal to hire violated the ADA.”