Amicus Curiae Brieft — Wright v. Universal Maritime Service Corp.

2) Supre oo

\ ¢ ae Se Ss;

NO. 97-889 . : MAY 7 1994

Cle

RK

IN THE

Supreme Court of the United States —

OCTOBER TERM, 1997

CAESAR WRIGHT,

Petitioner,

Vv

UNIVERSAL MARITIME SERVICE CORP., ET AL,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE IN SUPPORT OF

THE PETITIONER

SCOTT HARSHBARGER GRANT WOODS

Attorney General Attorney General

of Massachusetts of Arizona

CATHERINE C. ZIEHL JUDY DRICKEY-PROHOW

RICHARD WAYNE COLE * Assistant Attorney General

Assistant Attorneys General 400 West Congress Street

One Ashburton Place, Room 1915 Suite 215 South

Boston, Massachusetts 02108 Tucson, AZ $5701

(617) 727-2200 (520) 628-6500

*Counsel of Record

Additional Counsel Listed on Inside Cover

na ETS,

) ;

nV"

DARRELL V. McGRAW

Attorney General of

West Virginia

MAry C. BUCHMELTER

Assistant Attorney General

P.O. Box 1789

Charleston, West Virginia 25326-1789

WINSTON BRYANT MARK L. EARLY

Attorney General of Arkansas Attorney General of Virginia

RICHARD BLUMENTHAL

Attorney General of Connecticut

ALAN G. LANCE

Attorney General of Idaho

THOMAS J. MILLER

Attorney General of lowa

FRANK J. KELLEY

Attorney General of Michigan

HUBERT H. HUMPHREY III

Attorney General of Minnesota

DENNIS C. VACCO

Attorney General of New York

HARDY MYERS

Attorney General of Oregon

WILLIAM SORRELL

Attorney General of Vermont

Table of Contents.

TAREE OF AUTIRUBIEED foc ee cece cceces i

STATEMENT OF AMICUS INTEREST ...........

TE SPRUE odbigcset veccecacees

I. THE STATES HAVE AN IMPORTANT INTEREST

IN ENSURING THAT THEIR CITIZENS WHO ARE

SUBJECT TO COLLECTIVE BARGAINING

AGREEMENTS, HAVE ACCESS TO COURTS IN

ORDER TO VINDICATE EMPLOYMENT RIGHTS

THAT DERIVE FROM STATE AND FEDERAL

RE a CR ES ar As Pee ee

A. The Rationale of State Courts for Refusing to

Enforce Mandatory Arbitration Agreements is the

Distinctive Context of Collective Bargaining .... .

B. The Refusal to Enforce Mandatory Arbitration

Agreements Is Also Based on the States’ Strong

Public Interest in Providing a Public Forum for

Vindication of Statutory Rights .............

C. Decisions under the Labor and Management

Relations Act Recognizing the Right of States to

Provide a Judicial Forum to Employees Subject to

Collective Bargaining Agreements for Resolution of

Independent State Statutory Rights Support the

Conclusion that the Fourth Circuit’s Decision in

ll. ASSUMING ARGUENDO THAT THE COURT

INTENDED TO OVERRULE ALEXANDER V.

GARDNER-DENVERIN GILMER, THAT HOLDING

WAS OVERRULED BY CONGRESS WHEN IT

PASSED THE 1991 CIVIL RIGHTS ACT .......

eee rrr errs eee a ee

iv

Table of Authorities.

Adkins v. Times-World Corp.,

771 F.2d 829 (4th Cir. 1985), cert. denied,

rh. S40 ds uc wevescdereeecdoescees 15

Alexander v. Gardner-Denver Co.,

OEE cae Oh deb es b¥ sce Viesccces 12, 17, 18, 19

Allied-Bruce Terminix Cos. v. Dobson,

nn cl. 6 Sabah 6Ldbbs 6 case vee sweuses 15

Allis-Chalmers Corp. v. Lueck,

nn Adin Gadinnamerdnioeneeotesw''s 13

Austin v. Owens-Brockway Glass Container, Inc.,

pS OS ee 15

Barrentine v. Arkansas-Best Frieght Sys., Inc.,

SEE, tvwadbwuidectianeseneacenntwé 7,12

Blanchette v. School Comm. of Westwood,

427 Mass. 176, -- N.E.2d -- (1998) ................. 4,6,8

Commission of Labor v. Talbert Mfg. Co.,

593 N.E.2d 1229 (Ind. App. 1992) .................---- 5

De Canas v. Bica,

EEE. 66d b6b0b ceTbbUe cen coccescscoeces 14

Fort Halifax Packing Co. v. Coyne,

St PT i+ bi45 0b rekeebheweiiabibekdcanen 14, 16

Vv

Francini v. Phoenix Newspapers, Inc.,

188 Ariz. 576, 937 P.2d 1382 (1996) ...........2 ee eeeee 6

Genovese v. Gallo Wine Merchants Inc.,

226 Conn. 475, 628 A.2d 946 (1993)... 2... cece 7,8

Gilmer v. Interstate/Johnson Lane Corp.,

SOD TE MPEG 6s cavesccesccrcdtasenscasents passim

Hawaiian Airlines, Inc. v. Norris,

SED TEE, DERG ba ov cncscscecs sinned tenscceeenal 14

Lepore v. National Tool and Mfg. Co.,

224 N.J. Super. 463, 540 A.2d 1296, (1988) ............. 12

Lingle v. Norge Div. of Magic Chef, Inc.,

GOS CLE, Fee 65 6.006 4.6004000 500 4nncanes 10, 14, 15

Livadas v. Bradshaw,

TRAE TEE dccces seccencctpansssannl 12, 13, 14

McDonald v. City of West Branch,

GES CD, BOG occcnnnanscsenacessecscpenveseane 12

Metropolitan Life Ins. Co. v. Massachusetts,

GFE GE, FED cavcanaawesesistesanes c0ceceuans 14

Mitsubishi Motors v. Soler Chrsyler-Plymouth, Inc.,

GIB TS, GGG 0 sence cendctcevckasnb var sataeane 19

Moses H. Cone Mem'l Hosp. v. Mercury

Construction Corp.,

Gs WEE ho cc on bicdsdecedguctisebesnessaies 15

vi

Pike v. Burlington Northern R.R. Co.,

273 Mont. 390, 903 P.2d 1352 (1995) ............... 5, 6,7

Polk County Secondary Roads v. lowa Civil

Rights Comm'n,

PORE CPU UUUED cc ccccccccvoceedesbcivuce 5

Puchert v. Agsalud,

67 Haw. 25, 677 P.2d 449 (Hawaii 1984) ................ 5

Ryherd v. General Cable Co.,

124 Ill. 2d 418, 530 N.E.2d 431 (1988) ................ 5,6

Southland Corp. v. Keating,

I vet rah bebe es be wee Be 15

Torrez v. Consolidated Freightways Corp.,

58 Cal. App. 4th 1247, 68 Cal. Rptr. 2d 792 (1997) ........ 6

United Paperworkers Int'l Union v. Misco, Inc.,

Sere Se ED Wu e-40 6 Banc kee beds tavnnneeoccdece 11

Vaughn v. Pacific N.W. Beil Tel. Co.,

Se, CUE UE MEOED cccccucccducctcenes ce 5,8

Wilko v. Swan,

PE dh iws6h pugud tnGwak sc ueshiie dance 1]

Winston v. Maine Technical College Sys.,

631 A.2d 70 (Me. 1993), cert. denied,

ee ae I di 6 oils ch niin ren dd se bed 5,6

vii

Wright v. Universal Maritime Serv. Corp.,

121 F.3d 702 (4th Cir. 1997) 2.0... cece ee eee ees passim

Youghiogheny & Ohio Coal Co. v. Oszust,

23 Ohio St. 3d 39, 491 N.E.2d 298 (1986) .........-. 5, 7,8

Statutes and Regulations.

9 U.S.C. § 10 (1994) ........... ER dscccctdnsusenbwasss 11

29 U.S.C. § 173(d) (1994)... cee eee teen eee eeee 13

42 U.S.C. § 1981 (1994) 2... ccc ec eee eee eee eenes 17

42 U.S.C. § 2000e-5(c) (1994) 2.02... cece eee eeee eee ee ees 10

42 U.S.C. § 2000e-5(d) (1994) 2... 6. ce cee cece eee 10, 16

42 U.S.C. § 2000e-7 (1994) 2.0... cece cece eee eee eens 10

42 U.S.C. §§ 12101-12213 (1994)... 6. cee eee eee eee 2

42 U.S.C. § 12117 (1994) 2.0.2... cc eee cece eee eeeeeees 2, 16

Civil Rights Act of 1991

Pub. L. No. 102-166, § 118, 105 Stat. 1071,

NOES CITED cick covddvivsescoccsusserese 16, 17, 18, 9

29 C.F.R. §§ 1601.27, 1601.28 (1997)... 2.6 cece eee eee ees 10

Conn. Gen. Stats, § 31-S1bb (1997) 2... 6... e cece e ee eens 9

Mass. Gen. Law Ch. 150E, § 8 (1996) ... 2.0... ec eeeeeeees 8

viii

Mass. Gen. Law Ch. 151B, § 3(6) (1996) .................. 1

Miscellaneous.

137 Cong. Rec. H9505-01, H9548 (Nov. 7, 1991) ........... 1

137 Cong. Rec. H9595-01, H9530 (Nov. 7, 1991) ........... 1

137 Cong. Rec. $15472, $15478 (daily ed. Oct. 30, 1991)

(statement of Sen. Dole) ............. 00. c cece ee cues 1

H.R. Rep. No. 102-40(1) (1991)... 0.6... eee ee ce cee 17, 1)

H.R. Rep. No. 102-40(11) (1991)... oe ee eee eee 17,1

Equal Employment Opportunity Commission,

Enforcement Guidance--Mandatory Arbitration,

Number 915.002 (1997)

Employment Pracs. (CCH) 4 5433, at617 ............. 9,1

Owen Fiss, Out of Eden,

ee 1:

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

No. 97-889

CAESAR WRIGHT, Petitioner

UNIVERSAL MARITIME SERVICE CORP.; STEVENS

SHIPPING & TERMINAL COMPANY; STEVEDORING

SERVICES OF AMERICA; RYAN-WALSH INC.; and

SOUTH CAROLINA STEVEDORES ASSOCIATION,

Respondents.

STATEMENT OF AMICUS INTEREST

The Commonwealth of Massachusetts, the States of Arizona

and West Virginia and the undersigned 10 amici states have a

direct interest in the resolution of this case. Many of the amici

States, either by judicial order or through legislation, have

expressed their strong public policy-based opposition to

enforcement of mandatory arbitration clauses contained in

collective bargaining agreements where individual statutory

rights (as opposed to collective rights) are at issue. The States

have a strong public interest in providing a public forum to

citizens for the consideration of claims involving important

l

statutory rights, particularly in the area of employment

discrimination. The absence of a public judicial forum impairs

deterrence, the establishment of norms of workplace conduct,

and the ability to identify systemic discrimination. Mandatory

arbitration also undermines the function of State fair

employment agencies charged with enforcement of State anti-

discrimination laws, which are bypassed when mandatory

arbitration is imposed.

STATEMENT OF FACTS

This is a private action alleging disability discrimination.

Petitioner Wright was a longshoreman who allegedly was

denied employment with Respondent because he suffered and

had been compensated for a work-related injury. After he was

refused employment, Wright notified his union president of the

refusal. The president complained to Respondent that his refusal

constituted a violation of the Americans with Disability Act

(“ADA”), 42 U.S.C. §12101-12213 (1994), and a violation of

the union contract, but he did not file a grievance on Wright's

behalf and allowed the period for filing it to lapse. Instead, the

union advised Wright to file a charge with the Equal

Employment Opportunity Commission (“EEOC”) and to seek

private legal counsel. When Wright subsequently filed a

complaint based upon his charge, that complaint was dismissed

because he failed to utilize the mandatory arbitration procedures

established under the collective bargaining agreement (“CBA”).

That decision was affirmed by the Fourth Circuit in an

unpublished decision, Wright v. Universal Maritime Service

Corporation, dated July 29, 1997, on the ground that Gilmer v.

2

Interstate/Johnson Lane Corporation, 500 U.S. 20 (1991),

mandates the use of arbitration in this situation.

SUMMARY OF ARGUMENT

The Fourth Circuit’s decision, if affirmed, would conflict

with many States’ important interest, reflected in judicial

decisions and legislation, in guaranteeing a public forum to

citizens who are subject to collective bargaining agreements for

consideration of state and federal statutory rights that adhere to

them as individuals rather than as collective members of a

union.

Affirming the Fourth Circuit’s decision in Wright to enforce

mandatory arbitration clauses in collective bargaining

agreements for resolution of important statutory rights in the

area of employer/employee relations could conflict with this

Court’s traditional deference under the Labor Management

Relations Act, 29 U.S.C. §§141-188 (1994), to the right of

States to determine whether to provide a public forum for state

Statutory claims.

The Fourth Circuit erred when it applied Gilmer in this case

to enforce a mandatory arbitration clause, because the legislative

history of the ADA indicates a clear intent to preclude

mandatory arbitration of discrimination claims.

ARGUMENT

I. THE STATES HAVE AN IMPORTANT INTEREST

IN ENSURING THAT THEIR CITIZENS WHO

ARE SUBJECT TO COLLECTIVE BARGAINING

AGREEMENTS HAVE ACCESS TO COURTS IN

ORDER TO VINDICATE EMPLOYMENT RIGHTS

THAT DERIVE FROM STATE AND FEDERAL

STATUTES.

A. The Rationale of State Courts for Refusing to Enforce

Mandatory Arbitration Agreements is the Distinctive °

Context of Collective Bargaining.’

If the Court affirms the Wright decision and requires that

mandatory arbitration clauses contained in collective bargaining

agreements be enforced to bar a judicial forum for resolution of

rights under state and federal statutes, it will contravene the

strong public interest of the States otherwise, as expressed in

case law and legislation. Many State courts, for example, either

refuse entirely to recognize arbitration clauses under collective

bargaining agreements as establishing the exclusive means for

resolving individual statutory rights for employees, or refuse to

give arbitral decisions preclusive effect. See Blanchette v.

School Committee of Westwood, 427 Mass. 176, 183, -- N.E.2d

' The amici states support the use of alternative dispute

resolution procedures when there is a present dispute or claim

and when the parties voluntarily and knowingly agree to resolve

a dispute through arbitration.

-- (1998) (employee who arbitrated her state discrimination

claim under a mandatory arbitration clause of a CBA not barred

from pursuing claim in a judicial forum); accord, Puchert v.

Agsalud, 67 Haw. 25, 677 P.2d 449, 455-56 (1984) (holding

that employee could pursue statutory wrongful discharge claim

in court and not through arbitration as required by CBA); Polk

County Secondary Roads v. Iowa Civil Rights Comm'n, 468

N.W.2d 811, 817 (lowa 1991) (same); Winston v. Maine

Technical College Sys., 631 A.2d 70, 73 (Me. 1993), cert.

denied, 511 U.S. 1069 (1994) (same); Pike v. Burlington

Northern R. Co., 273 Mont. 390, 903 P.2d 1352 (1995) (same);

Vaughn v. Pacific N.W. Bell Tel. Co., 289 Or. 73, 87, 611 P.2d

281, 290 (1980) (same); Ryherd v. General Cable Co., 124 Ill.

2d 418, 427-29, 530 N.E.2d 431, 435-37 (1988) (employee not

barred by mandatory arbitration clause from pursuing action for

retaliatory discharge under state workers’ compensation laws);

see also Commission of Labor v. Talbert Mfg. Co., 593 N.E.2d

1229, 1233 (Ind. App. 1992) (holding that IOSHA claims were

not subject to mandatory arbitration clause of a CBA);

Youghiogheny & Ohio Coal Co. v. Oszust, 23 Ohio St. 3d 39,

41, 491 N.E.2d 298, 300 (1986) (employee not barred by

arbitration provision from bringing action under unemployment

compensation laws).

The reason for refusing to enforce mandatory arbitration

arises partly from the distinctive nature of the collective

bargaining context. State courts have recognized, for example,

that an employee, merely by being a member of a union that is

covered by a CBA with a mandatory arbitration clause, does not

waive his or her right to a judicial forum for consideration of a

statutory claim that is personal to the employee, as opposed to

5

collective in nature (like the right to strike) and subject to

bargaining. See Blanchette, 427 Mass. at 183, -- N.E.2d --

(“Although a union has the power to waive statutory rights

related to collective activity, rights of the kind protected by [the

Massachusetts’ anti-discrimination statute], which are of a

personal, and not merely economic, nature are beyond the

union’s ability to bargain away”); accord Winston, 631 A.2d at

73. (“By merely joining a union . . . without specifically

contracting to arbitrate statutory employment discrimination

claims, an employee is not precluded from asserting such claims

in litigation.”); Pike, 903 P.2d at 1354 (stating that state and

federal rights to be free from unlawful sex discrimination

“cannot be bargained away as part of a collective bargaining

agreement”); see also Francini v. Pheonix Newspapers, Inc.,

188 Ariz. 576, 937 P.2d 1382, 1388-89 (Ariz. App. 1996);

Torrez v. Consolidated Freightways Corp., 58 Cal. App. 4th

1247, 1258, 68 Cal. Rptr. 2d 792, 799 (1997) (arguing that

only “common, contractual rights of the members” can be

bargained away); Ryherd, 124 Ill. 2d at 426, 530 N.E.2d at 435

(stating that the right to recover for retaliatory discharge is

“derived from Illinois public policy” and “[iJt cannot be

negotiated or bargained away”).

Moreover, State courts have recognized that under most

CBAs, the individual employee does not control the

advancement of his or her grievance and is dependent on the

decision of the union to bring a matter to arbitration, and

thereafter to appeal the matter if it is resolved unfavorably.

Under these circumstances, the union may reasonably and

properly refuse to arbitrate a particular matter, ur if it does

decide to go forward, arbitrate it with less vigor than likely

6

would be the case if the employee were pursuing the matter in

a State fair employment practices agency or in court. As one

State court has noted, “reliance on an employee's union to

vindicate adequately the employee's statutory rights may not be

justified.” Genovese v. Gallo Wine Merchants Inc., 226 Conn.

475, 488, 628 A.2d 946, 952 (1993). In fact, “[bjecause a

union’s objective may be to maximize the rights and benefits of

its members as a whole, rather than to achieve the best possible

outcome for an individual employee in a particular case, a union

weighing individual and collective interests might validly allow

some employee's statutory rights to be sacrificed.” Id.; see also

Youghiogheny & Ohio Coal Co., 23 Ohio St. 3d at 44, 491

N.E.2d at 302 (Wright, J., concurring).* If the union decides

not to pursue an individual case, that in no way implies that the

union opposes prosecution of the case by its member. As the

present case demonstrates, the opposite is most likely to be true.

State courts have also reasoned that an inherent “tension”

exists between contractual and statutory rights when an

arbitrator is called upon to decide a statutory matter. Pike, 903

P.2d at 1357. The arbitrator’s source of authority is the CBA

“and his task is to effectuate the intent of the parties . . . by

interpreting the agreement in accordance with the law of the

sh.» and the various needs of the employer and the union,

rather than in accordance with the law of the land.” Jd.

? This Court similarly has recognized that “even if the

employee’s claim were meritorious, his union might, without

breaching its duty of fair representation, reasonably and in good

faith decide not to support the claim vigorously.” Barrentine v.

Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 742 (1981).

7

Moreover, an arbitrator may not take into consideration “the

full range of ‘public law’ and public policy considerations”

necessary for an appropriate decision on an individual claim that

statutory rights were violated, because his or her “power is both

derived from, and limited by, the collective bargaining

agreement and the submi*sinn of the parties.” Genovese, 226

Conn. at 486, 628 A.2d a: 952; see also Vaughn, 289 Or. at 86,

611 P.2d at 289. *

B. The Refusal to Enforce Mandatory Arbitration

Agreements Is Also Based on the States’ Strong Public

Interest in Providing a Public Forum for Vindication of

Statutory Rights.

States have concluded that it is good public policy to make

a judicial forum available for vindication of important statutory

rights under various statutes that govern the employment

relationship, including the anti-discrimination statutes,

> Indeed, some states statutorily limit an arbitrator to

deciding issues related to the interpretation or application of the

CBA only, thereby altogether depriving the arbitrator of the

power to decide statutory claims. See Blanchette, 427 Mass. at

180 (declaring this the effect of Mass. Gen. Law Ch. 150E, §

8 (1996), which provides that a written agreement for binding

arbitration in a CBA can “be invoked in the event of any dispute

concerning the interpretation or application of such written

agreement” (emphasis added)); cf. Youghiogheny & Ohio Coal

Co., 23 Ohio St. 3d at 41, 491 N.E.2d at 300 (holding that an

“arbitrator simply has no authority to invoke this state’s

unemployment compensation laws in reaching a decision”).

a —

regardless of the CBA.* The preference for a public forum (as

opposed to a private arbitral setting) serves the public interest

in a number of important ways. First, public hearings provide

education and information to the community as a whole

concerning legal and illegal workplace conduct. In addition,

rulings by the courts establish precedent. “[T]he courts give

valuable guidance to persons and entities covered by the laws

compliance with the laws.” Equal Employment Opportunity

Commission, Enforcement Guidance--Mandatory Arbitration,

Number 915.002 (1997) Employment Pracs. (CCH) 45433, at

6173 (“EEOC Enforcement Guidance”). Forcing private

mandatory arbitration of discrimination claims for employees

subject to CBAs disserves the public by denying an open and

fully-developed hearing process.

This function of public judicial decisions applies equally to

decisions from State fair employment agencies and is

hearings at which evidence is presented and issues written

* Some states have enacted legislation which codifies this

right. See, e.g., Conn. Gen. Stat. § 31-51bb (1997) (providing

that “[njo employee shall be denied the right to pursue, in a

court of competent jurisdiction, a cause of action arising under

the state or federal constitution or under a state statute solely

because the employee is covered by a collective bargaining

agreement” ).

See Mass. Gen. Law Ch. 151B, § 3(6) (1996). ° As this Court

has recognized, Congress “affirmatively endorsed state

antidiscrimination remedies in Title VII of the Civil Rights Act

of 1964.” Lingle v. Norge Div. of Magic Chef, Inc. 486 U.S.

399, 412 (1987) (citing 42 U.S.C. §§ 2000e-S(c), 2000e-7).

Moreover, Congress has recognized the right of the States,

under the federal fair employment laws, to have the first

opportunity to investigate and prosecute state law discrimination

claims. 42 U.S.C. § 2000e-5(d) (1994). Mandatory arbitration

of discrimination claims, however, bypasses the State fair

employment agencies, as well as the courts.°

Moreover, enforced arbitration restricts the flow of

information to State fair employment agencies, damaging their

ability to monitor, investigate and enforce discrimination rights

> The EEOC procedures allow the Commission or the

claimant to file a civil action after conciliation fails. 29 C.F.R.

§§ 1601.27, 1601.28 (1997). It does not provide for a public

hearing.

® This Court noted in Gilmer that an employee subject to

a mandatory arbitration agreement could still file allegations of

discrimination in the Equal Employment Opportunity

Commission, even though he or she could not initiate a private

judicial action. See Gilmer, 500 U.S. at 28. It is unclear,

however, whether under a particular state law, an employee

could also file in a State fair employment agency. Moreover,

even if an employee could file, and assuming that he or she

knew of that right, there is no incentive to do so since personal

gain is unlikely -- any opportunity to obtain financial

remuneration is in the arbitral forum.

10

within their states for employees subject to CBAs. It also

renders it impossible for them to identify industry-wide

problems or systemic forms of discrimination in the workplace

of employees subject to CBAs. Arbitral resolution of these

cases “may, in fact, protect systemic discriminators by forcing

claims to be adjudicated one at a time, in isolation, without

reference to a broader -- and more accurate -- view of the

employers’ conduct.” EEOC Enforcement Guidance, supra, at

6175.’

Second, the judicial forum provides important safeguards to

assure that a decision is rendered which takes into account the

public policy behind a particular statute and the interests it was

meant to protect. In the private arbitral setting, however, the

focus is on the language of the contract and the smooth

functioning of the workplace. As one commentator has noted,

“[a}]djudication is more likely to do justice than . . . arbitration

. . precisely because it vests the power of the state in officials

7 Moreover, review of an arbitral award by a Court is

limited. EEOC Enforcement Guidance, supra, at 6174

(“[T]here is virtually no opportunity for meaningful scrutiny of

arbitral decision-making”). The Federal Arbitration Act

(“FAA”) provides that arbitral awards can be vacated only for

procedural reasons, such as fraud, corruption or misconduct.

9 U.S.C. §10 (1994). This Court has held that an arbitral award

can be vacated where it is in “manifest disregard” of the law,

Wilko v. Swan, 346 U.S. 427, 436-37 (1953), or violates public

policy that is explicit, well-defined, “dominant” and

ascertainable from the law, United Paperworkers Int’l Union v.

Misco, Inc., 484 U.S. 29, 43 (1987), both of which are difficult

standards to meet.

11

who act as trustees for the public, who are highly visible, and

who are committed to reason.” Owen Fiss, Out of Eden, 94

Yale L.J. 1669, 1673 (1985); see also Lepore v. National Tool

and Mfg. Co., 224 N.J. Super 463, 472, 540 A.2d 1296, 1300

(1988) (stating that “an arbitrator ordinarily cannot consider

public interest and does not determine violations of law or

public policy”) (citations omitted).

Finally, the arbitrator is limited in his or her ability to

fashion an appropriate remedy for discrimination, and is unable

to award the kind of relief that may be imposed by a court or

the State fair employment agencies to address systemic problems

in the workplace. An agency or a court, for example, can

require and enforce company-wide equitable and injunctive

relief that has an effect beyond the grievant. Moreover, courts

and agencies can impose affirmative obligations on the

employer, such as performing diversity training and

promulgating zero tolerance policies. An arbitrator, however,

is limited to the powers set forth in the four corners of the

contract.®

* This Court, in a long line of cases, also has repeatedly

rejected the view that a decision in an arbitration proceeding

brought under a CBA bars a subsequent suit in federal court

under a federal statute, when that statute creates an individual

right. See McDonald v. City of West Branch, 466 U.S. 284, 292

(1984); Barrentine v. Arkansas-Best Freight Says., Inc., 450

U.S. 728, 744 (1981); Alexander v. Gardner-Denver Co., 415

U.S. 36, 52 (1974). The rationale for these cases is based on

the distinctive nature of the CBA context. Livadas v.

Bradshaw, 512 U.S. 107, 127 n.21 (citing Gilmer, 500 U.S. at

33-34). The Fourth Circuit in Wright ignored this line of cases

12

C. Decisions under the Labor Management Relations Act

Recognizing the Right of States to Provide a Judicial

Forum to Employees Subject to Collective Bargaining

Agreements for Resolution of Independent State Statutory

Rights Support the Conclusion that the Fourth Circuit's

Decision in Wright Should be Reversed.

The Labor Management Relations Act of 1947 (“LMRA”

or “the Act”), 29 U.S.C. §173(d) (1994), which applies to

collective bargaining agreements, grants federal (and state)

courts jurisdiction over claims asserting breach of CBAs, and

also authorizes the development of federal common law rules of

decision “in large part to assure that agreements to arbitrate

grievances would be enforced, regardless of the vagaries of state

law and lingering hostility toward extrajudicial dispute

resolution.” Livadas v. Bradshaw, 512 U.S. 107, 121-22

(1994).

This Court, however, has specifically limited the pre-

emptive reach of the LMRA to avoid intrusion on the traditional

powers of the States to legislate in the area of

employer/employee relations, including the ability of States to

provide a judicial forum for consideration of state law claims.

See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212 (1985)

(“It would be inconsistent with congressional intent under [the

and the concomitant rationale when it denied a judicial forum to

an employee covered by a CBA who asserted a claim under the

ADA. Wright v. Universal Maritime Service Corp., 121 F.3d

702 (1997).

13

LMRA] to pre-empt state rules that proscribe conduct, or

establish rights and obligations, independent of the labor

contract.” ); accord Hawaiian Airlines, Inc. v. Norris, 512 U.S.

246, 252 (1994) (noting that employment standards are “within

the traditional police power of the State”) (quoting Fort Halifax

Packing Co. v. Coyne, 482 U.S. 1, 21 (1987) (internal

quotation marks omitted)); see also Metropolitan Life Ins. Co.

v. Massachusetts, 471 U.S. 724, 756 (1984) (“States possess the

broad authority under their police powers to regulate the

employment relationship to protect workers within the State”)

(quoting De Canas v. Bica, 424 U.S. 351, 356 (1976) (internal

quotation marks omitted)).

Under the LMRA, mandatory arbitration clauses must be

enforced for matters involving the interpretation of a CBA but

a public forum is available for matters involving independent

state and federal statutory rights of employees. See Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413 (1988) (an

employee covered by a CBA with a mandatory arbitration clause

was held not barred from pursuing her retaliatory discharge

action under Illinois workers’ compensation laws in Illinois state

court); Livadas, 512 U.S. at 124-25 (employee subject to a

CBA containing an agreement to arbitrate was not prevented by

Section 301 of the LMRA from maintaining her state law claim

for late payment of wages owed upon discharge); see also

Hawaiian Airlines, 512 U.S. at 260 (state law cause of action of

CBA-covered employee under whistle blower statute is not pre-

empted by the Railway Labor Act, where its pre-emption

standard is “virtually identical” to Section 301 of the LMRA).

If the Fourth Circuit’s decision in Wright denying a judicial

forum to a CBA-covered employee asserting an independent

14

federal statutory claim is upheld, courts will soon be asked to

enforce mandatory arbitration of state statutory claims as well.’

This would conflict with this Court’s decisions in Lingle and its

progeny, and should not be the result. To the contrary, this

Court has recognized that the States have a substantial interest

in providing a judicial forum for employees subject to CBAs to

vindicate state statutory rights. See Lingle, 486 U.S. at 412

® The Fourth Circuit’s unpublished decision in Wright --

which required mandatory arbitration of an ADA claim -- was

based on its earlier decision in Austin v. Owens-Brockway Glass

Container, Inc., 78 F.3d 875 (4th Cir. 1996), which relied on

the “‘well-recognized policy of federal labor law favoring

arbitration of labor disputes.’” Jd. at 875 (quoting Adkins v.

Times-World Corp., 771 F.2d 829, 831 (4th Cir. 1985), cert.

denied, 474 U.S. 1109 (1986)); see also Gilmer, 500 U.S. at 25

(noting “liberal federal policy favoring arbitration agreements”)

(quoting Moses H. Cone Mem’! Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 24 (1983)) (internal quotation marks

omitted). While application of this policy to require arbitration

of state statutory claims would directly conflict with the Lingle

line of cases, courts will nonetheless be asked to extend its

reach to such claims. See e.g. Allied-Bruce Terminix Cos. v.

Dobson, 513 U.S. 265, 282 (1995) (holding that Alabama’s

statute, which rendered pre-dispute arbitration agreements in

consumer protection cases unenforceable, was pre-empted by

Section 2 of the FAA); Southland Corp. v. Keating, 465 U.S.

1, 15-16 (1984) (holding that California Franchise Investment

Law, which invalidates certain arbitration agreements, was pre-

empted by Section 2).

15

(“The establishment of labor standards falls within the

traditional police power of the State.”) (quoting Fort Halifax

Packing, 482 U.S. at 21) (internal quotation marks omitted).

Wright should be reversed.

Il. ASSUMING ARGUENDO THAT THE COURT

INTENDED TO OVERRULE ALEXANDER V.

GARDNER-DENVER IN GILMER, THAT HOLDING

WAS OVERRULED BY CONGRESS WHEN IT

PASSED THE 1991 CIVIL RIGHTS ACT.

Assuming that the Fourth Circuit was correct in concluding

that it was this Court’s intent in Gilmer to compel the

beneficiaries of those collective bargaining agreements which

provide for mandatory arbitration to arbitrate their statutory

discrimination claims, that requirement was discarded when

Congress subsequently passed the Civil Rights Act of 1991,

Pub. L. No. 102-166, 105 Stat. 1071 (1991). That Act, among

other things, amended both the enforcement provisions of the

federal 1964 Civil Rights Act, 42 U.S.C. § 2000e-5 (1994), and

the ADA, 42 U.S.C. § 12117 (1994). The legislative history of

the Act unambiguously rejected pre-dispute mandatory

arbitration agreements. '°

Section 118 of the Civil Right Act of 1991 speaks directly

‘0 Although the legislative history of the Civil Rights Act

of 1991 refers explicitly to Title VII, Congress specifically

imported the enforcement scheme of Title VII into the ADA,

making these amendments equally applicable there. See 42

U.S.C. § 12117 (1994).

16

to the issue of the arbitrability of Title VII claims. That section

encourages the use of alternative dispute resolution “where

appropriate and to the extent authorized by law.” Pub. L. No.

102-166, § 118, 105 Stat. 1071, 1081 (1991) (codified as a

historical and statutory note to 42 U.S.C. § 1981 (1994)). The

House reports on this section explicitly state that “any

agreement to submit disputed issues to arbitration, whether in

the context of a collective bargaining agreement or in an

employment contract, does not preclude the affected person

from seeking relief under the enforcement provisions of Title

Vil.” H.R. Rep. No. 102-40(1) at 97 (1991), H.R. Rep. No.

102-40(1T) at 41 (1991). They went on to explain that,

consistent with this Court’s decision in Alexunder v. Gardner-

Denver, the encouragement of alternate dispute resolution in the

Act was intended to “supplement, not supplant” existing

remedies otherwise available in the statutory enforcement

scheme. Jd. Speaking to proposed section 118, then-Senate

Minority leader Robert Dole noted that the section encouraged

arbitration only “where the parties knowingly and voluntarily

elect to use these matters.” 137 Cong. Rec. $15472, $15478

(daily ed. Oct. 30, 1991) (statement of Sen. Dole).

Congress further underscored its support of Alexander v.

Gardner-Denver by rejecting a proposed amendment which

would have implicitly endorsed mandatory arbitration

agreements by encouraging the use of arbitration “in place of

judicial resolution.” The Education and Labor committee

explained that such agreements would have allowed employers

to “refuse to hire workers unless they signed a binding

statement waiving all rights to file Title VII complaints” and

that this “would fly in the face of Supreme Court decisions

17

holding that workers have the right to go to court, rather than

being forced into compulsory arbitration, to resolve important

statutory and constitutional rights . . . .” H.R. Rep. No. 102-

40(T) at 104 (1991). The committee concluded that “American

workers should not be forced to choose between their jobs and

their civil rights.” Jd.

Although the greater part of the legislative debate involving

the 1991 Civil Rights Act occurred prior to Gilmer, the final

debate over the bill occurred after the decision and immediately

prior to the Act’s passage on November 7, 1991. During that

debate, the chair of the House Committee on Education and

Labor reiterated that Section 118 was “intended to be consistent

with . . . Alexander v. Gardner-Denver,” and added:

This section contemplates the use of voluntary

arbitration to resolve specific disputes after they have

arisen, not coercive attempts to forego statutory rights.

No approval whatsoever is intended of the Supreme

Court’s recent decision in Gilmer.... or any application

or extension of it to Title VII.

137 Cong. Rec. H9595-01, H9530 (Nov. 7, 1991). Only

Representative Henry Hyde, who had urged that the bill not be

passed, H.R. Rep. No. 102-40(II) at 80 (1991), contended that

section 118 permitted binding arbitration, 137 Cong. Rec.

H9505-01, H9548 (Nov. 7, 1991), and conceded that binding

arbitration could occur only “where the parties knowingly and

voluntarily elect to use these methods.” Jd.

Aside from the legislative history of the Act, the language

of the amendments clearly indicates that Congress did not intend

18

to compel the use of binding alternative dispute resolution

mechanisms, or to permit agreements to use alternative dispute

resolution to be entered into before a dispute arose. For

example, Section 118 of the Act speaks of settlement

negotiations, conciliation, facilitation, mediation, fact-finding

and mini-trials, not of binding arbitration. See Civil Right Act

of 1991, Pub. L. No. 102-166, § 118, 105 Stat. 1071, 1081

(1991). Title VII's goal of “encouraging voluntary settlement”

is referred to several times, both in the legislative history and

throughout the Act, but always in the context of the resolution

of existing claims. Further, despite every opportunity to

remove them, Congress retained in the new enforcement

provisions an absolute right to seek relief in court when

alternative dispute resolution efforts failed.

This legislative history of the 1991 Civil Rights Act serves

two purposes in the context of this case. It definitively

establishes Congress’ intent to permit Title VII and ADA

claimants to rely on Alexander v. Gardner-Denver,

notwithstanding any subsequent contrary holding in Gilmer, and

it establishes the clear Congressional intent necessary to

overcome a presumption of arbitrability under the standards set

out in Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc., 473

U.S. 614 (1985).

For these reasons the Court should conclude that any

presumption in favor of arbitrability has been overcome, that

the legislative history of the ADA does not permit binding

arbitration of ADA claims, and that Wright should not be

denied his statutory right to a judicial forum for his claim of

disability discrimination.

19

CONCLUSION

For the foregoing reasons, the amici states respectfully

request that the Court reverse the Fourth Circuit decision in this

SCOTT HARSHBARGER

Attorney General

of Massachusetts

CATHERINE C. ZIEHL

RICHARD WAYNE COLE*

Assistant Attorneys General

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2200

GRANT Woops

Attorney General

of Arizona

DARRELL V. MCGRAW

Attorney General

of West Virginia

MARY C. BUCHMELTER

Assistant Attorney General

P.O. Box 1789

Charleston, WV 25326-1789