Relationship between collective agreement/arbitration and law

Alexander v. Gardner-Denver 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 CBK 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., 1991 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 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