1. 1 Relationship between collective agreement/arbitration and law

2. 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. 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. 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. 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.” 6

7. 14 Penn Plaza LLC v. Pyett, U.S. Supreme Court, 105 FEP Cases 1441, 4/1/09 Employee covered by a collective bargaining agreement that requires all discrimination claims to be submitted to the grievance and arbitration procedure as the sole and exclusive remedy does not have the right to file a federal anti-discrimination claim through EEOC and courts; e.g., the agreement to arbitrate statutory claims is enforceable 7

8. Penn Plaza CBA Language “§30 NO DISCRIMINATION. There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, … or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures (Articles V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.”

9. Penn Plaza Rationale ADEA does not prohibit union from bargaining in good faith for a CBA provision that requires all employment discrimination claims to be remedied through grievance procedure and arbitration –Courts may not nullify a CBA provision unless it is clearly illegal –No ADEA prohibition on judicial waivers of right to sue under ADEA Individual employee may agree to a judicial waiver, per Gilmer Collective bargaining representative may agree to a judicial waiver for represented employees 9

10. Penn Plaza Rationale (cont.) Gardner-Denver –addressed question of whether an arbitration provision could preclude an employee from pursuing a subsequent statutory claim No requirement in CBA that discrimination claims must be submitted to grievance and arbitration procedure –did not address question of whether CBA that requires arbitration of such claims enforceable Penn Plaza does not involve a waiver of statutory right to remedy ADEA claims, only a change in forum

11. Penn Plaza Rationale (cont.) Courts over the past three decades have become increasingly comfortable with arbitration as a means of resolving statutory disputes Possibility that individual interests of employee will be subordinated to collective union interests irrelevant –Not part of statutory structure –NLRA had majority rule as governing principle Union actions limited by –Union duty of fair representation –Union liability under ADEA for discrimination

12. Penn Plaza Dissents Stevens: No reason to overrule precedent –No changes in governing statute –Court views on superiority of judiciary to address discrimination claims still relevant (Gardner Denver) –Union has no authority to waive a judicial forum for a represented employee (Wright) Individual employee may waive own right (Gilmer) Souter: Precedent should not be overruled –Majoritarian nature of CB unsuited to enforcing individual rights –All courts of appeals have supported principle that CBA cannot waive individual federal rights 12

13. Arbitration Proceeding In Penn Plaza, Union did not take cases to arbitration but permitted employees to take cases to arbitration –Suppose union filed grievance but lawfully refused to take case and lawfully refused to permit employees authority to arbitrate case? –Suppose employer has refused to arbitrate because it claimed only union could take case under CBA?