1. Relationship between collective agreement/arbitration and law

2. 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

3. 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

4. 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)

5. 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

6. 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.”