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

Supreme Court, U.S.

o) FILED

7 199%

CLERK

In THE

Supreme Court of the United

OcTOBER TERM, 1997 Ai

CEASAR WRIGHT,

Petitioner,

Vv.

UNIVERSAL MARITIME SERVICE CoRP.;

STEVENS SHIPPING & TERMINAL COMPANY;

STEVEDORING SERVICES OF AMERICA;

RYAN-WALSH, INC.;

STRACHAN SHIPPING COMPANY;

CERES MARINE TERMINALS, INC.; and

SoUTH CAROLINA STEVEDORES ASSOCIATION,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AND THE INTERNATIONAL LONGSHOREMEN’S

ASSOCIATION, AND ITS LOCAL 1422

AS AMICI CURIAE IN SUPPORT OF THE PETITIONER

THOMAS W. GLEASON JONATHAN P. HIATT

HERZL S. EISENSTADT JAMES B. COPPESS

26 Broadway, 17th Floor 815 - 16th Street, NW

New York, NY 10004 Washington, DC 20006

JAMES R. WATSON MARSHA S. BERZON

1827 The Strand 177 Post Street, Suite 300

Galveston, TX 77550 San Francisco, CA 94108

ARMAND DERFNER LAURENCE GOLD *

P.O. Box 600 1000 Connecticut Avenue, N.W.

Charleston, SC 29402 Washington, DC 20036

(202) 833-9340

* Counsel of Record

WILSON - EPES PRINTING Co.. Inc. . 789-0096 - WASHINGTON. D.C. 20001

eS ~

TABLE OF CONTENTS

ING AGREEMENT, THE UNION AND THE

EMPLOYER, ARE THE PARTICIPANTS IN

i Rei Se dale

THIS COURT HAS ALREADY DECIDED

THAT AN INDIVIDUAL EMPLOYER'S VIN-

DICATION OF PUBLIC LAW INDIVIDUAL

EMPLOYEE RIGHTS IN COURT IS NOT

AFFECTED BY ANY COLLECTIVELY-

BARGAINED EMPLOYER-UNION GRIEV-

ANCE-ARBITRATION PROCESS COVERING

THE EMPLOYEE’S BARGAINING UNIT......

THE REQUIREMENT THAT INDIVIDUAL

EMPLOYEES UTILIZE COLLECTIVELY-

BARGAINED UNION-EMPLOYER

GRIEVANCE-ARBITRATION PROCEDURES

WHERE THERE IS A CLAIMED VIOLATION

OF RIGHTS CREATED BY THE COLLEC-

TIVE BARGAINING AGREEMENT IS ONE

BASED ON A COMPLEX OF LABOR LAW

POLICY PRINCIPLES THAT HAVE NO AP-

PLICATION TO PUBLIC LAW INDIVIDUAL

EMPLOYEE RAIGHTS, AND NO RESEM-

BLANCE TO THE CONTRACT-BASED GIL-

MER ARBITRATION REQUIREMENT PRIN-

CIPLE ......... |

CONCLUSION

‘

TABLE OF AUTHORITIES

CASES Page

AT&T Tech. Inc. v. Communications Workers, 475

U.S. 643 (1986) | 20

Airline Pilots Ass'n v. O'Neill, 499 U.S. 65 (1991). 11, 28

Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974) ..... ceneeeePASBiM

Allis-Chalmers v. Lueck, 471 U.S. 202 (1985)........ 11, 12

American Steel Foundries v. Tri-City Trades

Council, 267 U.S. 184 (1921) ...............-.-ceccceceeverses 10,17

Atchison, Topeka, & Sante Fe Railway Co. v. Buell,

GD TE le SEE ccrtctccepeiniticdtinaintdtiinns 12

Barrentine v. Arkansas-Best Freight System, 450

TT eC i eal passim

Director, OWCP v. Greenwich Colleries, 512 U.S.

Be CED ccocervinnsssvcuissseescceduistnciediaiabaaiaanalld 15

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1

5 A SP eae RES aS ST TS Ge 12

Gateway Coal Co. v. United Mine Workers of

America, 414 U.S. 868 (1974)... eee 11,21

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.

8 CRE EEA: 6 SR Se” passim

Hawaiian Airlines v. Norris, 612 U.S. 246 (1994).. 12, 21,

22

Hilton v. South Carolina Public Railways Comm'n,

Bk REET al ren 15

Hubbard v. United States, 514 U.S. 695 (1995)...... 15, 16

Humphrey v. Moore, 375 U.S. 385 (1964) .............. 28

International Brotherhood of Electrical Workers

eS. git F 8. fie eee 27

International Union of Electrical Workers v. Rob-

bins & Mayers, 429 U.S. 229 (1976) .....00000000....... 15

Lingle v. Norge Division of Magic Chef, Inc., 486

I Ge I le 12, 15

Litton Financial Printing v. NLRB, 501 U.S. 190

6} SRNR ANC tnt ey No i= Set cea 20

Livadas v. Bradshaw, 512 U.S. 107 (1998) ............. 12, 14

Local 174, Teamsters v. Lucas Flour, 369 U.S. 95

b_, SUMAIRR Se ead ae leer Pee ts STEPPE INS 1a 18

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

CRB ED cccccevscansesstminciinsinnlateisianiadiiainienda anal 12

iii

TABLE OF AUTHORITIES—Continued

Page

Metropolitan Life Ins. Co. v. Massachusetts, 471

I Le A A Ms head a 12

Mitsubishi Motors Corp. v. Solar Chrysler-

Plymouth Inc., 478 U.S. 614 200 4, 18, 25

NLRB v. Allis-Chalmers Manufacturing Co., 388

A ae 24

Nolde Brothers Inc. v. Local No. 358, Bakery &

Confectionary Workers Union, 480 U.S. 248

EI TS Senate AE a! 0 aie ie tele 20

Paperworkers v. Misco, 484 UV. S. 29 (1987) _..... 11, 19, 20

Patterson v. McClean Credit Union, 491 US. 164

eet nS pM aly RR a SAC 15, 16

Republic Steel Corp. v. Maddox, 879 U.S. 650

EIS REISE Ce Re ae EEE, 11, 22, 24

Rodriquez de Quijas v. Shearson/ American Ex-

press, Inc., 490 U.S. 477 (1989) 2000000. 18

Shearson/ American Express, Inc. v. McMahon, 482

TE a ee 18

Steelworkers v. Enterprise Wheel & Car Corp.,

I i 20

Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S.

FE ES ee passim

Teamsters v. Oliver, 358 US. 283 (1959) .............. 18

Vaca v. Sipes, 386 U.S. 171 (1967)... 11, 25, 26, 27

STATUTES

|, aT EE eT ck EE oO fies 18

I 23

EE eo a 23

29 U.S.C. § 159(a) ........... ESS, reece a) eee 28

EEE ee een, 15

ET EAT CRY SR 20

EE TEL RE 15

CE EAS ee eR 22

Pub. L. No. 102-66, § 118, 105 Stat. 1071, 1081... 15

LEGISLATIVE HISTORY

H.R. Rep. No. 40, 102nd Cong., 2nd Sess. (1991)... 15

H.R. Rep. No. 485, 101st Cong., 2nd Sess. (1990).. 15

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AND THE INTERNATIONAL LONGSHOREMEN’S

ASSOCIATION, AND ITS LOCAL 1422

AS AMICI CURIAE IN SUPPORT OF THE PETITIONER

This brief amici curiae is filed by the American Fed-

eral of Labor and Congress of Industrial Organizations,

a federation of 78 national and international labor

zations with a total membership of approximately 13 mil-

lion working men and women, and by the International

Longshoremen’s Association, and its Local 1422, the ex-

clusive bargaining representatives of the collective bargain-

ing unit in which petitioner Ceasar Wright was employed.

The parties to this case have consented to the filing of this

brief as provided for in the Rules of the Court.*

SUMMARY OF ARGUMENT

The respondent-employers maintain that Ceasar Wright

may not proceed with his Americans with Disabilities Act

I. Mr. Wright pursued his statutory claim in court

rather than under the collective bargaining agreement's

te resolution system One track of that system pro-

H

i

g

4

:

}

:

3

employers deadlock at the final stage. Thus, the em-

ployers’ preclusion argument is really a contention that

* No counsel for a party authored this brief amici curiae in whole

or in part, and no person or entity, other than the amici curiae,

made a monetary contribution to the preparation or submissica

of this brief.

Mr. Wright was relegated for final and binding determina-

tion of his statutory claims to a system that is largely one

of negotiation, not adjudication, and in which access

Il. This Court has already decided, in a long line of

cases, that an individual employee's right to litigate public

law claims in court is not affected by the availability of a

collective bargaining agreement dispute resolution system

such as the one here. Beginning with Alexander v.

Gardner-Denver Co., 415 U.S. 36 (1974), this Court

ernance but from public law. Nothing in Gilmer v. Inter-

state/Johnson Lane Corp., 500 U.S. 20 (1991), detracted

from that basic principle. Stare decisis is therefore a full

and sufficient basis for reversing the Fourth Circuit’s hold-

ing in this case precluding the litigation of Ceasar Wright's

ADA claim.

Ill. In particular, this is decidedly not a situation in

which the Gardner-Denver resolution of the issue in this

case can be shown to be fundamentally incorrect, either

ab initio or as a result of later decisions. The basic premises

of Gilmer are that where two parties agree in advance

that subsequent disputes will be arbitrated rather than

litigated, there is no reason not to enforce that prom-

ise like any other, since substantive rights are not thereby

altered. Collective bargaining agreement union-employer

grievance-arbitration systems, in contrast, are a substitute

for strikes, not for litigation, and are designed to advance

the interests of the bargaining unit as a whole. Arbitra-

tors under labor agreements are expected to make deci-

sions based, in part, on the impact on the ongoing rela-

tionship between the employer and the employees as a

group, and not on a strictly rights-based model. It follows

that the policy favoring such processes has application

only to the enforcement of claims invoking the terms, ex-

clared in the system of private law created by the collec-

tive i was derived from the national

labor . contract concepts. And, the Court

grievance-arbitration systems if the system is to function

effectively.

Collective bargaining agreement dispute resolution sys-

tems therefore differ fundamentally in purpose, structure,

and potential to compromise substantive rights from the

direct, individual agreement enforced in Gilmer, and noth-

ing in Golmer supports the overruling of Gardner-Denver

and its progeny.

ARGUMENT

In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.

tion agreement” in which the claimant “agreed to arbitrate

any dispute, claim or controversy” with his employer in-

cluding those “arising out of [his] employment or termina-

tion of employment.” In so holding, the Gilmer Court

recognized the “liberal federal policy favoring arbitration

agreements,” (id. at 25 quoting Moses H. Cone Memorial

Hospital v. Mercury Constitution Corp., 460 U.S. 1, 24

(1983)), and stated that “having made the bargain to arbi-

trate, the party should be held to it unless Congress itself

has evinced an intention to preclude a waiver of judicial

remedies for the statutory rights at issue,” (500 U.S. at

4

26 quoting Mitsubishi Motors Corp. v. Solar Chrysler-

Plymouth Inc., 473 U.S. 614, 628 (1985).

Ceasar Wright, the employee-petitioner in this case, has

not made any such t to substitute arbitration for

litigation of his Americans with Disabilities Act (ADA)

claim. And, there is nothing in the ADA, in any other

employee ADA claim, or for the

public law indivi employee rights claim, absent an

employee agreement to substitute arbitration for court

litigation of the claim.

So far as appears then,

tention that Mr. Wright must arbitrate his ADA claim,

and is barred from litigating his claim in federal court in

the manner provided for in the ADA itself, fails on its

face.

To avoid that conclusion, the employer-respondents

argue: that while there is no Ceasar Wright arbitration

agreement, there is a Local 1422, International Longshore-

men’s Association-South Carolina Stevedores Association

collective bargaining agreement; that the collective bar-

gaining agreement provides, inter alia, for the arbitration

of “matters under dispute . . . between the Local and [an]

individual Employer;” that Mr. Wright is an employee in

the collective bargaining unit covered by the collective

agreement; that Local 1422 is the exclusive bargaining

representative of that bargaining unit; and that the collec-

tive agreement’s arbitration clause shovld therefore be

read both to cover public law individual employee rights

claims, such as ADA claims, and to be a binding agree-

ment between Mr. Wright and the Steveodres Association

to substitute arbitration of Mr. Wright’s ADA claim for

court litigation of that claim.

In the argument that follows we show that collective

bargaining agreements such as this one and their provision

for arbitration of union-employer disputes cannot be trans-

muted into employee-employer agreements to arbitrate

public law individual employee rights claims.

;

5

I. LIKE COLLECTIVE BARGAINING AGREEMENTS

GENERALLY, THE AGREEMENT IN THIS CASE

PROVIDES FOR A GRIEVANCE-ARBITRATION

SYSTEM THAT EMPHASIZES NEGOTIATION

OVER ADJUDICATION AND THAT PROVIDES

THAT THE P. TO THE COLLECTIVE BAR-

GAINING , THE UNION AND THE

EMPLOYER, ARE THE PARTICIPANTS IN THE

PROCESS.

To set the legal arguments that follow in perspective,

it is useful to begin by focusing on the genesis of the

bargaining

agreement establishes a process for extremely expedited

consideration by the union and the employers, the parties

who negotiated that agreement, of the disputes that arise

daily on the docks and for arbitration only in certain cir-

cumstances, and then only if the union and employer repre-

sentatives cannot come to an agreed upon solution. Thus,

while the employer-respondents argue that Ceasar Wright

should have arbitrated, rather than litigated his ADA

claim, under the collective bargaining agreement Mr.

Wright had no right to take his claim to arbitration.

1. Ceasar Wright, a longshoreman, first brought a claim

under the Longshore and Harbor Workers’ Compensation

Act for disability benefits when he was injured at work.

Pet. App. 3a. Three years after that claim was settled,

Mr. Wright sought to return to work, and the hiring hall

run by Local 1422 referred him fo employment. /d. After

initially accepting the referrals of Mr. Wright for a period

of approximately two weeks, the employer-respondents

refused to employ Mr. Wright because of his prior dis-

ability and took the position that the collective bargain-

ing agreement recognized their right to do so. Jd. In

response, Mr. Wright “initially followed the proper proce-

dure under the collective bargaining agreement for filing

a grievance against [the employers].” Pet. App. 16a.

Local 1422 wrote to the employer-respondents, denying

that the contract granted the employers any right to re-

6

fuse employment to Ceasar Wright and asserting in addi-

tion that, even “[i}Jf Ceasar Wright is proven to have limited

disability,” the ADA protects his right to return to work,

so long as he “can perform his duties.” Fourth Cir. App.

258. Local 1422 did not, however, pursue the matter of

Mr. Wright's reemployment further. Instead, reflecting its

understanding that there was no barrier to doing so, Local

1422 advised Mr. Wright to pursue his statutory claim

through the normal administrative and judicial channels.

Pet. App. 3a.

Ceasar Wright did in fact then pursue the matter, filing

suit under the ADA against six stevedoring companies

and their multiemployer association, the South Carolina

Stevedores Association. The defendants (the employer-

respondents in this Court), in response, raised as an af-

firmative defense Mr. Wright’s “fail[ure] to exhaust the

adequate remedies and procedures afforded him under the

collective bargaining agreement between Local 1422 and

SCSA, . . ., as well as the remedies provided under the

Longshore Seniority Plan.” Jt. App. 30a. And, when Mr.

Wright offered to arbitrate the ADA dispute at that junc-

ture, the employers insisted that while Mr. Wright could

have taken his grievance to the Charleston Longshore

Seniority Board under the Longshore Seniority Plan, or

Local 1422 could have taken a grievance to arbitration

under Section 15(B) of the collective bargaining agree-

ment, the time limits for both had run (although the ADA

lawsuit itself was timely). Fourth Cir. App. 264.

2. The first of the two union-employer dispute resolu-

tion schemes that the employer-respondents maintain

should have been exhausted, the Seniority Plan, does pro-

vide for “resolution of a ‘dispute or grievance’ brought by

an individual employee.’” Jt. App. 49a. But that Plan

does not provide for arbitration at all. Rather, a “dispute

1We stress that we refer to these provisions of the collective

bargaining agreement in response to the employer-respondents’ in-

vocation of the provisions and are not agreeing with the employ-

ers as to the applicability of any particular provision to Mr. Wright's

circumstances.

7

or grievance” may be submitted to a “Seniority Board”

composed of two union representatives and two employer

representatives, and, if the Board deadlocks, to a two

person committee, composed of one individual chosen by

Local 1422 and one by the Stevedores Association, “for

final determination,” with no provision for breaking a

deadlock between the two. Id. at 48a. The Seniority

Plan procedure, then, is not a procedure for the resolution

of claims by a neutral arbitrator. Nor is it a system for

the resolution of claims based on public law individual

employee rights. The Seniority Board is restricted to re-

solving a “dispute concerning or arising out of the terms

and/or conditions of the Agreement, or dispute involving

the interpretation or application of this Agreement, or

dispute arising out of any rule adopted for its implemen-

tation.” Id.

The second, more general, union-employer dispute res-

olution procedure invoked by the employer-respondents

is set out in Section 15(B) of the collective bargaining

agreement. Jt. App. 43a-45a. That provision begins by

stating that “[mJatters under dispute which cannot be

promptly settled between the Local and the individual

Employer shall, not later than 48 hours after such discus-

sion, be referred” to a Port Grievance Committee, com-

posed of two union representatives and two employer

representatives. Jd. at 43a. If that committee does not

reach a majority resolution within five days, then the dis-

pute is referred to the “Joint Negotiating Committee,”

functioning as a “District Grievance Committee,” again

composed of employer and union representatives, this time

from ports other than the one in which the dispute origi-

nated; committee members from the originating port “may

participate in the discussions but may not vote.” /d., at

43a-44a. “A majority decision of this Committee” is “final

and binding on both parties (to the dispute] and on all

Employers signing th{e] Agreement.” Jd. at 44a. “In the

event the Committee is unable to reach a majority deci-

sion within 72 hours after meeting to discuss the case,”

the Committee is directed by the Agreement to “employ

a professional arbitrator.” /d.

In sum, only after the Port Grievance Committee “can-

not reach an agreement” and the District Grievance Com-

mittee is “unable to reach a majority decision” is a “mat-

ter[] under dispute” submitted to a “professional arbitra-

tor.” Jt. App. 44a. In that event, Section 15(B) admon-

ishes that in selecting an arbitrator, “thought will be given

to a person who is knowledgeable and familiar with the

problems of the Longshore industry.” Id. And, Section 15

also provides that “[aJll interpretations of this Agreement

will be made in accordance with” the contractual pro-

cedure, and that “[a]nything not contained in this Agree-

ment shall not be construed as being part of this Agree-

ment.” Jd. at 45a-46a §§ 15(E) & 15(F).*

Under the Section 15(B) procedure, then, the process-

ing of a grievance is controlled from start to finish by

Local 1422, not by the individual grievant. Further, the

process is on its face as much one of negotation as of ad-

judication, with the union committee representatives having

2In support of its assertion that “(t]he arbitration clause at

issue is particulary broad,” the court of appeals quotes a portion of

Section 15(F) describing the scope of the entire collective bargain-

ing agreement. Pet. App. 4a. However, the arbitration clause is

contained in Section 15(B), Jt. App. 43a-44a, and not in Section

15(F), id. at 44a-45a. Section 15(F) is an integration or “zipper”

clause, and its function is to “close out bargaining during the con-

tract term and to make the written contract the exclusive statement

of the parties’ rights and obligations.” NLRB v. Tomco Communi-

cations, Inc., 567 F.2d 871, 879 (9th Cir. 1978).

The district court, by contrast, relied upon Section 17—which

states “the intention and purpose of all parties—that no provision

or part of th[e] Agreement shall be violative of any Federal or

State Law,” Jt. App. 47a, in concluding that the “[p]laintiff and

his union, through the collective bargaining agreement, were obli-

gated to submit ADA and other claims to the grievance procedure.”

Pet. App. 17a. Section 17, however, is a “savings” clause, which

merely provides that the parties do not intend their agreement to

violate the public laws. This is a qualitatively different and far

narrower undertaking than providing a private enforcement mech-

anism for the public laws.

9

the authority, after discussion, to compromise a grievance

by agreeing with management representatives concerning

its resolution. And, the time limits imposed are exceed-

ingly short—a matter of days—indicating that the need to

come to a quick resolution was of utmost importance to

the contracting parties.

3. The employer-respondents’ arguments in this case

have proceeded in full awareness of the nature of the

grievance-arbitration systems set out in the collective bar-

gaining agreement. Thus, in opposing a motion by Caesar

Wright to compel arbitration, the employers maintained

that Mr. Wright was bound by Local 1422’s decision not

to prosecute a grievance regarding his ADA rights under

Section 15(B), arguing that Mr. Wright’s “membership in

a collective bargaining unit subjects him to the possibility

that his grievance might not be deemed worthy of pursuit

to arbitration” and that “union . . . conduct evincing an

abandonment of the grievance[{] has the same finality as

an arbitration award adverse to the grievant.” D.S.C. Dk.

No. 39, Defs. Mem. in Opp. 5-6. The employers added

that “the union is not required to provide notice to, or

obtain the consent of, the grievant in order to abandon

the grievance,” id. at 5, and that the individual’s “interest

in having his grievance arbitrated cannot override the in-

terest of his fellow Longshoremen to expend their dues

money in other ways,” because “this is the essence of col-

lective representation.” Jd. at 7. Finally, the defendants

recognized that Mr. Wright “is not a party to the collec-

tive bargaining agreement,” and, on that basis, stated that

Mr. Wright was “unable to bring a motion (or a suit) to

compel arbitration in the absence of a claim of union

misconduct or unfair representation by the union.” /d.

at 4.

10

Il. THIS COURT HAS ALREADY DECIDED THAT AN

INDIVIDUAL EMPLOYEE’S VINDICATION OF

PUBLIC LAW INDIVIDUAL EMPLOYEE RIGHTS

IN COURT IS NOT AFFECTED BY ANY COLLEC-

TIVELY-BARGAINED EMPLOYER-UNION GRIEV-

ANCE-ARBITRATION PROCESS COVERING THE

EMPLOYEE’S BARGAINING UNIT.

Collective bargaining dispute resolution provisions, such

as those summarized above, are designed for, and are well-

adapted to, the settlement between the parties to a collec-

tive bargaining agreement—i.e., between the union and

the employer—of issues concerning that agreement. The

question presented in this case of the effect of that process

on the access of bargaining-unit employee-claimants to a

judicial forum is one to which this Court has devoted the

most mature attention over a prolonged period and on

which the Court has arrived at well-settled, solidly-

grounded conclusions.

The question here, as the Court has recognized, is gen-

erated by Congress’ two-fold response to a single economic

dilemma. The dilemma, described by Chief Justice Taft

at the beginning of modern labor law, is that

A single employee was helpless in dealing with an

employer. He was dependent ordinarily on his daily

wage for the maintenance of himself and family.

If the employer refused to pay him the wages that he

thought fair, he was nevertheless unable to leave the

employ and to resist arbitrary and unfair treatment.

[American Steel Foundries v. Tri-City Trades Coun-

cil, 257 U.S. 184, 209 (1921).]

And, Congress has addressed the dilemma not through a

unitary labor policy but through “two aspects of national

labor policy”, which are in some instances—but not, as

we will develop, in this instance—“in tension.” Barrentine

v. Arkansas-Best Freight System, 450 U.S. 728, 734

(1981):

The first, reflected in statutes governing relationships

between employers and unions, encourages the nego-

tiation of terms and conditions of employment

11

through the collective-bargaining process. The sec-

ond, reflected in statutes governing relationships be-

tween employers and their individual employees,

guarantees covered employees specific substantive

rights.

For reasons we survey in detail below, in interpreting

and applying the “collective bargaining process” law, this

Court has recognized and applied a very strong presump-

tion that workrlace disputes arising under a collective

bargaining agreement are subject to the dispute resolution

system, if any, devised and administered by the parties to

that relationship. Steelworkers v. Warrior & Gulf Nav.

Co., 363 U.S. 574, 580 (1960); see also, e.g., Gateway

Coal Co. v. United Mine Workers of America, 414 U.S.

368 (1974); Allis-Chalmers v. Lueck, 471 U.S. 220

(1985); Paperworkers v. Misco, 484 U.S. 29, 37-39

(1987). And, as a matter of policy derived from the

labor laws governing the collective bargaining regime, this

Court has also spelled out an obligation of individual bar-

gaining unit employees—not themselves parties to the col-

lective bargaining agreement—to proceed through, and be

bound by, the collectively-bargained union-employer dis-

pute resolution system, rather than through employee-

initiated court litigation, as 4 means of vindicating rights

derived from the collective agreement’s “system of private

law” (Warrior & Gulf Nav. Co., 363 U.S. at 581). See,

e.g., Republic Steel v. Maddox, 379 U.S. 650 (1965);

Vaca v. Sipes, 386 U.S. 171 (1967); Airline Pilots v.

O'Neill, 499 U.S. 65 (1991).

At the same time, this Court has held emphatically and

consistently that the set of principles governing the obliga-

tion of employees to proceed through the collectively-

bargained grievance-arbitration system simply has no

application where the employee’s claim derives not from

the collectively bargained “system of industrial self-

government,” (Warrior & Gulf Nav. Co., 363 U.S. at

580), but from the “statutes governing relationships be-

tween employers and their individual employees, [which]

guarantee covered employees specific substantive rights”

(Barrentine, 450 U.S. at 734). The Court has so held in a

12

series of cases stemming from Alexander v. Gardner-

Denver Co., 415 U.S. 36 (1974), and arising under a

variety of different statutes and in a variety of procedural

circumstances. See, e.g., Gardner-Denver, supra (employ-

ment discrimination action under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., is not af-

fected by availability of a collectively-bargained union-

employer grievance-arbitration system to challenge the

same employer action); Barrentine, supra (same, with re-

spect to causes of action under the Fair Labor Standards

Act and elaborating on Gardner-Denver’s rationale);

McDonald v. City of West Branch, 466 U.S. 284 (1984)

(same, with respect to causes of action under 42 U.S.C.

§ 1983); Allis-Chalmers v. Lueck, 471 U.S. 202, 213 n.8

(1985), and Lingle v. Norge Div. of Magic Clef, Inc.,

486 U.S. 399, 412-13 (1988) (same, with respect to

state law individual employee rights causes of action);

cf. Atchison, Topeka, & Santa Fe Ry. Co. v. Buell, 480

U.S. 557, 565 (1987), and Hawa:.an Airlines v. Norris,

512 U.S. 246 (1994) (applying similar principles under

the Railway Labor Act to hold that individual employees

need not utilize the statutory arbitration system created by

the RLA to vindicate either federal or state public law

individual employee-rights causes of action).

The essential premise of all of these cases is that the col-

lective bargaining process through which Congress deter-

mined the exclusive bargaining representative of an em-

ployee group would develop and enforce fair working con-

ditions in the absence of governmentally-imposed norms

is not appropriate to, and was not intended to apply to,

the increasingly broad range of federal and state public

law norms that set minimum working protections for all

employees, whether covered by collective bargaining agree-

ments or not. See Metropolitan Life Ins. Co. v. Massa-

chusetts, 471 U.S. 724 (1985), Fort Halifax Packing Co.

v. Coyne, 482 U.S. 1 (1987), and Livadas v. Brad-

shaw, 512 U.S. 107 (1993) (all holding that state court

causes of action for enforcement of governmentally-

13

required minimum ‘working protections are in no way in-

consistent with the collective bargaining process established

by the National Labor Relations Act).

The Fourth Circuit—alone of the federal courts of ap-

peals that have addressed the question—has taken the

view that this Court in the Gilmer decision washed away

the foundations of the Court’s established Gardner-Denver

jurisprudence. Gilmer, of course, did not arise in a col-

lective bargaining agreement setting. And, Gilmer simply

holds that an individual employee who herself agrees to

arbitration by a neutral arbitrator, in lieu of court litiga-

tion, of any dispute regarding her employment that may

arise, is as bound by that promise as any other person

who commits in advance to arbitrate a dispute involving

interstate commerce.’ In that regard, Gilmer rested on

a series of commercial arbitration cases holding that when

a person or entity promises another person or entity to

arbitrate rather than litigate any dispute that may arise

between them, statutory claims are not excepted from

that general promise. 500 U.S. at 26, citing Mitsubishi

Motors Corp., supra; Shearson/ American Express Inc. v.

McMahon, 482 U.S. 220 (1987); Rodriquez de Quijas

v. Shearson/ American Express, Inc., 40 U.S. 477 (1989).

3 In Gilmer, the arbitration promise was contained in an agree-

ment between the employee and securities exchanges, not in the em-

ployee’s employment agreement, and was held enforceable under the

Federal Arbitration Act (FAA), 9 U.S.C. §1 et seq. Because the

arbitration agreement in that case was contained in a separate

agreement between the plaintiff and the securities exchanges, Gilmer

left open the question whether the exception to the FAA §1 for

“contracts of employment of seamen, railroad employees, or any

other class of workers engaged in foreign or interstate commerce”

applies to all or only some contracts of employment. 500 U.S. at 25

n.2. It is of note that Ceasar Wright’s employment as a longshore-

man is certainly within the FAA exclusion. Consequently, had Mr.

Wright not worked under a collective bargaining agreement, it is

far from clear that the Gilmer holding enforcing a prospective

agreement to arbitrate employment discrimination, or other public

individual employee right, causes of action would have been ap-

plicable.

14

Despite these critical differences, and even though, as

this Court later noted, “Gilmer emphasized its basic con-

sistency with [the] unanimous decision in Alexander v.

Garner-Denver Co.,” (Livadas v. Bradshaw, 512 U.S. at

127, n.21, see Gilmer, 500 U.S. at 33-35 (discussing at

some length the reasons for that basic consistency) ), the

employer-respondents in this case maintain that the Fourth

Circuit correctly precluded Ceasar Wright from bringing

his ADA case in federal court by reason of the union-

employer grievance-arbitration provisions of the collective

bargaining agreement here.

Considerations of stare decisis are alone sufficient basis

to reject the contention that the entire Gardner-Denver

line of cases should be abandoned and that in Gardner-

Denver's place a presumption should be erected that col-

lective bargaining agreement union-employer dispute res-

olution systems preclude individual employees from pur-

suing their claims based on a public law individual em-

ployee statutory right through the judicial remedial scheme

stated in the applicable statute.‘

The issues here are statutory and Congress has never

evidenced an intent to alter the well-settled principle that

individual employee rights are not subject to collective-

bargained union-employer dispute resolution systems.° See

* The employer-respondents in this case make what is in essence

a preclusion—or, perhaps, a choice of remedies—contention. That

contention was definitively rejected in Gardner-Denver. It is worth

noting, however, that this Court’s precedents go further and reject

a “prior exhaustion” contention, permitting some form of court

litigation after exhaustion and do so without regard to whether the

collective bargaining arbitration actually reaches, or has the author-

ity to reach, the statutory cause of action on its merits. Barrentine,

450 U.S. at 731 n.4, 732 n.6 (court litigation not precluded even if

the statutory claim was submitted to the collective bargaining

agreement procedure, nor is an employee who does not submit his

claim to the collective bargaining agreement procedure at all barred

from bringing his statutory suit in court.)

* Both the ADA and the 1991 Civil Rights Act, amending Title

VII of the Civil Rights Act of 1964, do contain identical sections

providing that “[w]here appropriate and to the extent authorized

by law, the use of alternative dispute resolution, including .. .

15

Patterson v. McClean Credit Union, 491 U.S. 164, 172-

73 (1989); Hilton v. South Carolina Public Railways

Comm'n, 502 U.S. 197, 202 (1981); Director, OWCP

v. Greenwich Colleries, 512 U.S. 267 (1994); Hubbard

v. United States, 514 U.S. 65 (1995). Nor has that basic

principle generated any practical difficulties of note. Pat-

terson, 491 U.S. at 173-174.

To the contrary, that principle has become so embedded

in this Court's jurisprudence that altering it would require

reconsideration of a number of related questions, includ-

ing whether statutory limitations periods should be ad-

justed to permit attempted exhaustion of

bargained procedures (International Union of Electrical

Workers v. Robbins & Mayers, 429 U.S. 229 (1976))

and whether state law causes of action that are independ-

ent of the terms of a collective bargaining agreement are

preempted under § 301 of the Labor Management Rela-

tions Act, 29 U.S.C. § 185 (Lingle, 486 U.S. at 411

wrong Aye §301 preemption because “the need to pre-

serve effectiveness of arbitration” is satisfied as long

as “the interpretation of collective bargaining agreements

remains firmly in the arbitral realm.”)). To foment such

widespread instability in well-established law regarding

employment relations would create new practical difficul-

ties for employers, employees, and unions seeking to struc-

ture their complex relationships with each other.

Most importantly for stare decisis purposes, this is de-

cidedly not a situation in which the Gardner-Denver line

arbitration, is encouraged ...” 42 U.S.C. § 12212 (ADA); Pub. L.

No. 102-66, § 118, 105 Stat. 1071, 1081. These vague provisions do

not, however, specify whether it is “appropriate” or “authorized by

law” to require use of collective bargaining agreement grievance-

arbitration procedures to adjudicate ADA or Title VII rights. And,

the legislative history of both provisions states that the intent was

to preserve, not displace, this Court’s decision in Gardner-Denver

that it is not “appropriate” to mandate arbitration of Title VII

and ADA rights under collective bargaining agreement grievance-

arbitration provisions. H.R. Rep. No. 485, 101st Cong., 2nd Sess.

(1990), at 76-77 (ADA); H.R. Rep. No. 40, 102nd Cong., 2nd Sess.

(1991) at 97 (1991 Civil Rights Act).

16

of cases is “seriously flawed” (Hubbard v. United

States, 702 U.S. at 514), or in which there is an “in-

tervening development of the law . . . [which] ha[s]} re-

moved or weakened the conceptual underpinnings from

the prior decision{s]” (Patterson, 491 U.S. at 173). For,

as we show in the remainder of this brief, the Gardner-

Denver precedents are based on a sound understanding

of the nature of the collective bargaining system and the

role of collectively-bargained union-employer dispute res-

olution processes in that system, an understanding in no

way in tension with Gilmer and its predecessor cases en-

forcing a direct prior arbitration promise by a putitive

plaintiff in a court case.

Ill. THE REQUIREMENT THAT INDIVIDUAL EM-

PLOYEES UTILIZE COLLECTIVELY-BARGAINED

UNION-EMPLOYER GRIEVANCE-ARBITRATION

PROCEDURES WHERE THERE IS A CLAIMED

VIOLATION OF RIGHTS CREATED BY THE COL-

LECTIVE BARGAINING AGREEMENT IS ONE

BASED ON A COMPLEX OF LABOR LAW POLICY

PRINCIPLES THAT HAVE NO APPLICATION TO

PUBLIC LAW INDIVIDUAL EMPLOYEE RIGHTS,

AND NO RESEMBLANCE TO THE CONTRACT-

BASED G/LMER ARBITRATION REQUIREMENT

PRINCIPLE.

A Gilmer arbitration promise is a simple promise to

substitute arbitration for litigation. The arbitration pro-

ceeding is akin to a court proceeding, with a neutral arbi-

trator performing adjudicatory functions essentially like

those performed by a judge. Agreement to this type of

alternate dispute resolution method does not, therefore,

inherently limit or alter the essential nature of the rights

committed to the arbitration forum—claims concerning

those rights will be adjudicated on the claiming party’s

initiative by a neutral, uninvolved decisionmaker and, if

found valid, will be enforced. Gilmer, 500 U.S. at 26,

quoting Mitsubishi, supra, (“‘[b]y agreeing to arbitrate a

statutory claim, a party does not forego the substantive

rights afforded by the statute; it only submits to resolution

in an arbitral, rather than a judicial, forum.” )

17

Collectively-bargained union-employer grievance-arbi-

tration systems, in contrast, are a “substitute for industrial

strife,” not a “substitute for litigation.” Steelworkers v.

Warrior & Gulf Nav. Co., 363 U.S. 574, 578 (1960).

And, precisely because that is so, just as a strike over an

employment dispute is a collective action of the employee

group through their union, so too is the grieving and arbi-

Suing. ot am apetigubans Gleputa Gheenah the esltentive

bargaining agreement dispute settlement process. The

union acting, for and on behalf of, the er’ ~ bargaining

unit controls the prosecution of the claim and determines

whether the claim is to be pressed to arbitration or settled

either in its own terms or through a process of negotiation

ee Senne nantes Salen os getiorn ipl And,

throughout the process the union proceeds by taking into

account the employee group’s entire working situation. In

all these regards the collective bargaining agreement dis-

pute resolution system is well-suited to its purpose as a

means of effectuating the employee group’s collective rights

in 0 pencil eu Sattar than Gheotad tedcariel nati. By

the same token such systems are not aimed at and are not

well-suited to the very different task of substituting for

cals. “Thun, to toad 0 collectively barguinsd, union

claims. Thus, to read a collectively bargained union

ion Aapeor pel merge eS ae

agreement for on gues Vineet tone

employee covering the employees’ por Ayr enagee Ara

employee rights claims is to distort the collectively bar-

gained provision beyond all recognition.

18

The “terms” which were thus induced evolved into the

modern collective bargaining agreement, enforceable under

federal law in order “to promote industrial stabilization.”

Warrior & Gulf Nav. Co., 363 U.S. at 578. And, be-

cause the parties to that agreement—the union and the

employer—are by force of circumstances and of law

involved in a continuing, complex relationship, their agree-

ments “cover[] the whole employment relationship” and

“call[] into being a new common law—the common law

of a particular industry or a particular plant” as the means

of “erect{ing] a system of industrial self-government.” /d.

at 579-580; see also Teamsters v. Oliver, 358 U.S. aan

295 (1959) (“The goal of federal labor policy .

to encourage the employer and the representative of the

employees to establish, through collective negotiation,

their own charter for the ordering of industrial relations,

and thereby to minimize industrial strife”); Local 174,

Teamsters v. Lucas Flour, 369 U.S. 95, 105 (1962).

The collectively-bargained grievance-arbitration system,

in its turn, is “[a] major factor in achieving industrial

peace,” because it provides a means of peaceably admin-

istering the self-governmental system created by the col-

lective bargaining agreement rather than “leaving each

and every matter subject to a temporary resolution de-

pendent solely upon the relative strength, at any given

time, of the contending forces.” Warrior & Gulf Nav. Co.,

363 U.S. at 580. Thus, “arbitration of labor disputes

under collective bargaining agreements” is “part and

parcel of the collective bargaining process itself.” Jd.

at 578. “The processing of disputes through the grievance

machinery”—of which arbitration is a part—‘is actually

a vehicle by which meaning and content are given to the

collective bargaining agreement . . . [as] a part of the

continuous collective bargaining process.” Id. at 581.

As such, arbitration in the labor context is both a

method of enforcing pre-established rights and “the means

of solving the unforeseeable by molding a system of

private law for all the problems which may arise and

to provide for their solution in a way which will generally

19

accord with the variant needs and desires of the parties.”

Warrior & Gulf Nav. Co., 363 U.S. at 581; see also, e.g.,

Gateway Coal Co. v. United Mine Workers, 414 US. 368,

378; Paperworkers v. Misco, 484 U.S. at 38. And, given

the nature of the process, the rights-enforcing and private-

lawmaking functions are often intertwined in even the

most mundane grievances.

All that being so, “[t}he labor arbitrator performs func-

tions which are not normal to the courts,” and “the con-

siderations which help him fashion judgments may indeed

be foreign to the competence of courts.” Warrior & Gulf

Nav. Co., 363 U.S. at 581. The arbitrator’s resolution

of the dispute is expected to “reflect not only what the

contract says but . . . such factors as the effect upon

productivity of a particular result, its consequence to the

morale of the shop, his judgment whether tensions will be

heightened or diminished.” Jd. at 582. For that reason,

an important consideration in the arbitrator’s selection will

often be his familiarity with “the practices of the industry

and the shop.” /d. See Jet. App. 44a.

In all these respects, of course, a collective bargaining

agreement arbitrator has everything to do with proper

effective of the agreement's “system of private law” (War-

rior & Gulf Nav. Co., 363 U.S. at 581) and nothing to

do with the adjudication of public law individual employee

rights.

(2) The above analysis indicates that the policy of

the federal labor laws favoring enforcement of collectively-

is predicated upon the need to foster flexible administra-

roger allies tat Gi geile bo tae Ral te te

enforcement of such rights, express and implied. And in-

deed, gy Pov almse eg beading fe mers

of the Labor Management Relations Act, 29

20

§ 173(d), expressly so indicates, declaring that the “[f]Jinal

adjustment by a method agreed upon by the parties is .. .

desirable” with respect to, and only with respect to, “set-

tlement of grievance disputes arising over the application

or interpretation of an existing collective bargaining agree-

ment” (emphasis supplied ).

As far as we are aware, every articulation by this Court

of the presumption favoring arbitration under collective

bargaining agreements has, consistently with the industrial

strife roots of that presumption and with § 203(d), been

limited to issues involving the elucidation of the collectively-

negotiated, private law agreement. See, e.g., Warrior &

Gulf, Nav. Co. supra; Steelworkers v. Enterprise Wheel &

Carriage Corp., 363 U.S. 593, 597 (1960) (“an arbitrator

is confined to the interpretation and application of the

collective bargaining agreement; he does not sit to dis-

pense his own brand of industrial justice”); Paperworkers

v. Misco, 484 U.S. at 36 (emphasis supplied) (“[c]ollec-

tive-bargaining agreements commonly provide grievance

procedures to settle disputes between union and employer

with respect to the interpretation and application of the

agreement and require binding arbitration for unsettled

grievances. In such cases, . . . the courts play only a

limited role when asked to review the decision of an arbi-

trator.”) AT&T Tech. Inc. v. Communications Workers,

475 U.S. 643, 650 (1986) (“This presumption of arbi-

trability for labor disputes recognizes the greater institu-

tional competence of arbitrators in interpreting collective-

bargaining agreements, ‘furthers the national labor policy

of peaceful resolution of labor disputes and thus best ac-

cords with the parties’ presumed objectives in pursuing

collective bargaining.’”); Nolde Brothers Inc. v. Local No.

358, Bakery & Confectionary Workers Union, 430 U.S.

243, 253 (1977); Litton Financial Printing v. NLRB,

501 U.S. 190, 206 (1991).

Against this background, it is not surprising that this

Court’s cases articulating the reach of broadly-stated col-

lective bargaining agreement arbitration provisions read

those clauses as providing for the arbitration of any aspect

21

of the “common law of the shop” but not for the arbitra-

tion of issues entirely outside the private system of gov-

ernance established by the agreement.

In Warrior & Gulf Nav. Co., for example, the grievance-

arbitration clause covered “differences . . . as to the mean-

ing and application of the provisions of this Agreement,

. . . any local trouble of any kind.” 363 U.S. at 576.

The Court, as we have seen, viewed this agreement as “a

substitute for industrial strife,” not litigation (id. at 578),

and in its extended discussion of the arbitrator’s authority

remained focused on the authority to elaborate “the in-

dustrial common law—the practices of the industry and

the shop—{as] . . . part of the collective bargaining agree-

ment although not expressed in it,” (id. at 582), and the

Court never suggested that the determination of external

law questions is within a labor arbitrator’s ordinary

functions. See also Gateway Coal, supra, 414 U.S. at

375, 377-78 (arbitration provision covering disputes “as

to the meaning and application of the provisions of this

agreement . . .[,]matters not specifically mentioned in this

agreement . . . [and] any local trouble of any kind” is

meant to assure access to arbitration for “unforeseen dis-

agreements that inevitably arise . . . [in which] the labor

arbitrator has resort to considerations foreign to the

courts”); Barrentine, 450 U.S. at 736, 737 (collective bar-

gaining agreement providing that “‘any controversy’ be-

tween the parties . . . be resolved through the binding con-

tractual grievance procedures” does not give rise to a pre-

sumption favoring binding arbitration of individual rights

arising out of a statute; “[w]hile courts should defer to

an arbitral decision where the employee’s claim is based

on rights arising out of the collective-bargaining agree-

ment, different considerations apply where the employee’s

claim is based on rights arising out of a statute designed

to provide minimum substantive guarantees to individual

workers.” ).

Most recently, in Hawaiian Airlines, Inc. v. Norris,

supra, the Court construed the RLA statutory provision

22

for the arbitration of disputes that “gro[w] out of griev-

ances or out of the interpretation or application of agree-

ments covering rates of pay, rules, or working conditions”

(45 U.S.C. § 15la), and held that “grievances” does not,

in the industrial relations context, connote “disputes . . .

based on statutory or common law,” but only “disagree-

ments over how to give effect to the bargained-for agree-

ment,” including implied terms of the agreement. 512 U.S.

at 253-254; see also id. at 254 (“The use of ‘grievance’

to refer to a claim arising out of a [collective bargaining

agreement] is common in the labor law context in gen-

eral,” citing Paperworkers v. Misco, supra).

In short, this Court has consistently read broad but gen-

eral language delineating the scope of collective bargain-

ing agreement union-employer grievance-arbitration provi-

sions with the presumption that the intent is to cover

all disputes arising out of the private law system estab-

lished by the parties to the agreement and has not under-

stood such general language as encompassing an intent

fundamentally to alter the basic office of such provisions

where the alternative to arbitration is not industrial strife

but court litigation. That understanding could not be

more right.

(3) To be sure, the employer-respondents in this case

do seek to overcome the lack of a Ceasar Wright arbi-

tration agreement through the Locai 1422-Stevedore As-

sociation grievance-arbitration agreement. And, in this

regard, the employers point to the Republic Steel v. Mad-

dox, 379 U.S. 650, (1965), rule that bargaining unit

emplovees asserting a right under a collective bargaining

agreement containing such a grievance-arbitration provi-

sion must proceed by filing a grievance and following the

contractual dispute settlement system and may not proceed

by filing and prosecuting an individual contract action in

court.

But Maddox recognizes that the bargaining unit em-

ployees are not parties to the union-employer arbitration

agreement in the same way that Mr. Gilmer was party to

23

an arbitration agreement and that the effect of the collec-

tively bargained union-employer arbitration provision on

the employees’ right to bring a suit in court is therefore

not a simple contract law question of the kind presented

by a direct individual arbitration agreement. Rather, the

Maddox rule was derived by the Court from the “national

labor policy” in elucidating the scope and limits of the

majoritarian regime established by the federal labor laws.

The Principles governing when an individual employee is

required to invoke the collectively bargained union-

employer grievance-arbitration system, and when he or she

is not, were also developed by this Court, in full recogni-

tion that the task is not one of applying contract law prin-

ciples but of reconciling the various strands of the na-

tional labor policy. And, those principles, which empha-

size the necessity of majoritarian control over the collec-

tive bargaining agreement’s dispute resolution procedure,

mandate the conclusion that such union-employer arbitra-

tion provisions do not impinge on the right of employees

to bring their individual public law employee right claims

to court.

As the statutory exclusive bargaining representative, the

Union was chosen by the majority of employees and im-

bued by the NLRA with authority to enter into a collec-

tive bargaining agreement establishing the basic private

governance system covering the wages, hours, and terms

and conditions of employment of unit employees. 29

U.S.C. §§ 158(a)(5), 158(d), & 159(a). And, to a

large but not unlimited degree, national labor policy binds

the represented employees to the decisions reached by

their exclusive representative in negotiating and adminis-

tering such collective agreements.

_ National labor policy has been built on the prem-

ise that by pooling their economic strength and act-

ing through a labor organization freely chosen by the

majority, the employees . . . have the most effective

means of bargaining for improvements in wages,

hours, and working conditions. The policy therefore

extinguishes the individual employee’s power to order

24

his own relations with his employer and creates a

power vested i

provisions

his grievances. [NLRB v. Allis-Chalmers Manufac-

turing Co., 388 U.S. 175, 180 (1967).]

Initially, the Court concluded that “federal labor policy

requires that individual employees wishing to assert con-

tract grievances must attempt use of the contract grievance

procedure agreed upon by employer and union as the

mode of redress.” Republic Steel v. Maddox, 379 U.S.

at 652. In so doing, the Court emphasized that a “Mad-

dox” suit is “simply on the contract.” Id. at 657 (empha-

sis supplied). That the holding in Maddox is limited to

cases concerning rights created by the system of private

law erected by the parties to the collective agreement is

clear not only from that emphasis and from the use of the

term “grievance,” but from the reasons the Court gave for

requiring individual employees to attempt to use the con-

tractual procedure.

Those reasons, the Court initially explained, were that:

Congress has expressly approved contract griev-

ance procedures as a preferred method for settling

disputes and stabilizing the “common law” of the

plant. LMRA §203(d). . . . Union interest in

prosecuting employees grievances is clear. Such ac-

tivity complements the union’s status as exclusive

bargaining representative by permitting it to partici-

pate actively in the continuing administration of the

contract... . A contrary rule would . . . “inevitably

exert a disruptive influence upon both the negotiation

and administration of collective agreements.” [Mad-

dox, 379 U.S. at 653.]

And the Court later expanded on the rationale for the

Maddox exhaustion rule in Vaca v. Sipes, 386 U.S. 171

(1967):

Since the employee's claim is based upon breach

of the collective bargaining agreement, he is bound

25

by the terms of that agreement which govern the

manner in which contractual rights may be enforced.

For this reason, it is settled that the employee must

at least attempt to exhaust exclusive grievance and

arbitration procedures established by the bargaining

agreement. Republic Steel Corp. v. Maddox, 379

U.S. 650. [386 U.S. at 184-185 (emphasis sup-

plied) .]

To put this observation another way, Vaca recognizes

that the substantive rights created by the collective agree-

ment and the union-employer grievance-arbitration pro-

visions of the collective agreement addressed to enforcing

those rights are two parts of an indivisible contractual

whole, so that requiring employee resort to the grievance-

arbitration system does not alter the individual employee’s

contract-derived rights. That understanding of the Mad-

dox rule, like the understandings stated in Maddox itself,

has force only with respect to employec rights derived

from ae and implied terms of the collective agree-

ment itself.

In short, the reasons for requiring individual employees

to utilize collective bargaining agreement grievance-

arbitration procedures are not grounded, as in Gilmer, in

the traditional contract principle that “ ‘having made the

bargain to arbitrate, the party should be held to it... .”

500 U.S. at 26, quoting Mitsubishi, 473 U.S. at 628.

Rather, the national labor policy concerns that underlie

the Maddox rule pertain to the scope of union repre-

sentation and the nature of the collective bargaining agree-

ment. As such, the Maddox requirement that individual

employees are bound by those procedures applies only

where the employee’s right derives from collective repre-

sentation and the collective agreement.

The Maddox rule cannot be stretched to cover individ-

ual public law employee rights claims for a second closely

related reason. As we have emphasized a union-employer

grievance-arbitration agreement provision, in contrast to

an individual employee Gilmer arbitration agreement, both

Substitutes one forum for another and grants the union,

26

as opposed to any individual employee, control over the

prosecution and settlement of the claim.

That is the case, this Court has stressed, for compelling

reasons related to the proper development of the “common

law of the shop” under the collective bargaining agree-

ment and to the role union-employee grievance-arbitration

systems play in that development by enforcing and elabo-

rating on those agreements so as to promote and stabilize

the on-going collective bargaining relationship.

Vaca v. Sipes explains at some length the virtues of a

“grievance and arbitration procedure which gives the

union discretion to supervise the grievance machinery and

to invoke arbitration”:

Through this settlement process, frivolous griev-

ances are ended prior to the most costly and time-

consuming step in the grievance procedures. More-

over, both sides are assured that similar complaints

will be treated consistently, and major problem areas

in the interpretation of the collective bargaining con-

tract can be isolated and perhaps resolved. And

finally, the settlement process furthers the interest of

the union as statutory agent and as coauthor of the

bargaining agreement in representing the employees

in the enforcement of that agreement. See Cox,

Rights Under a Labor Agreement, 69 Harv. L. Rev.

601 (1956). [386 U.S. at 191.]

In contrast,

If the individual employee could compel arbitra-

tion of his grievance regardless of its merit, the set-

tlement machinery provided by the contract would

be substantially undermined, thus destroying the em-

ployer’s confidence in the union’s authority and re-

turning the individual grievant to the vagaries of

independent and unsystematic negotiation. More-

over, under such a rule, a significantly greater num-

ber of grievances would proceed to arbitration.’ This

®*Vacc noted that “fu]nder current grievance practices, an at-

tempt is usually made to keep the number of arbitrated grievances

27

would greatly increase the cost of the grievance

Saal tr rae tr tee edt one

t it from functioning successfully.

tid. at 191.5 , Citations omitted. ]

‘tui; Vins Coal Wid oats Gat 6 rile poem

ting individual access to union-employer grievance-arbi-

tration procedures could endanger future negotiation of

“detailed grievance and arbitration procedures of the kind

encouraged by LMRA § 203(d) . . . if the [] power to set-

tle the majority of grievances short of the costlier and

more time-consuming steps was limited by a rule permitting

the grievant unilaterally to invoke arbitration.” 386 U.S.

at 192 (emphasis supplied). See also International

Brotherhood of Electrical Workers v. Foust, 442 U.S. 42,

51 (1979) (“[U]nion discretion is essential to the proper

functioning of the collective-bargaining system. Union

supervision of employee complaints promotes settlements,

avoids processing of frivolous complaints, and strengthens

the employee’s confidence in the union . . . Without these

screening and settlement procedures . . . the costs of

private dispute resolution could ultimately render the sys-

tem impracticable” ).

The Court in Vaca and other cases did recognize that

“because these contractual remedies have been devised and

are often controlled by the union and the employer, they

may well prove unsatisfactory for the individual grievant.”

386 U.S. at 185. But, to preserve the virtues of union-

controlle. access to the grievance-arbitration process, Vaca

held that employees may bypass the contractual procedures

with regard to a “claim . . . based upon breach of the

collective bargaining agreement” (id. at 184) only if “the

employee can prove that the union as bargaining agent

breached its duty of fair representation in its handling of

the employee’s grievances” (id. at 186). And, in eluci-

dating the scope of that duty, this Court has preserved a

to a minimum,” and cited statistics showing that in some plants less

than one percent of the grievances filed were taken to arbitration.

386 U.S. at 192 n.15.

28

wide breadth of discretion for unions in handling em-

ployees’ contractual grievances:

Inevitably differences arise in the manner and de-

gree to which the terms of any negotiated agreement

affect individual employees and classes of employees

woe Ae ete satisfection of all who are repre-

sented is to be =xrected. A wide range of

reasonableness must be allowed a statutory bargain-

ing representative in serving the unit it represents,

subject always to complete good faith and honesty

of purpose . . . [Humphrey v. Moore, 375 U.S. 335,

349 (1964); quoting Ford Motor Co. v. Huffman,

345 U.S. 330, 338 (1953).]

The union’s discretion goes beyond the authority “to sift

out wholly frivolous grievances which would only clog the

process,” so as to leave the union “free to take a position

on the not so frivolous disputes” or when “the issue is

chiefly between two sets of employees.” Humphrey, 375

U.S. at 349. For “[t]o remove or gag the union in these

cases would surely weaken the collective bargaining and

grievance processes.” Id. at 350. See also Air Line Pilots

v. O'Neill, 499 U.S. at 78 (“[a]ny substantive examina-

tion of the union’s performance . . . must be highly defer-

ential, recogniizng the wide latitude . . . need[ed] for the

effective performance of the[] [union’s] . . . responsibili-

ties.”).

Once again, both the reasons for precluding legally-

mandated individual access to collectively-negotiated em-

ployer-union grievance-arbitration systems and the rea-

sons for giving wide deference to union decisions made re-

garding the prosecution of claims within that system were

developed—and only have force—with regard to individ-

ual claims based upon rights derived from the collective

agreement itself. Yet, to provide, as in the Gilmer situa-

tion, for individual employee access and control would

fundamentally compromise the nature of collective bar-

gaining agreement grievance-arbitration systems as part of

the ongoing collective bargaining process, and would frus-

trate the purposes of the parties to the collective bargain-

mitted to the parties to the agreement rather than to any

form of neutral adjudication (the Seniority Board). See

pp. 6-7, supra. As in this case, those processes ordinarily

do not permit individual access to the arbitration process,

and may or may not permit individual employee access to

earlier stages of the grievance process (here the earlier

Stages are based on a negotiation model, with the union

representative acting as co-decisionmaker). As in this

case, those processes tend to provide extremely short dead-

lines for decisionmaking in order to fulfill the basic func-

tion of deterring industrial strife, and tend to prefer arbi-

trators with experience in the customs and practices of the

particular industry or plant, since the function of the arbi-

trator is to draw upon those customs and practices in

elucidating the private law system established by the col-

lective bargaining agreement. And, as in this case, collec-

30

tive bargaining agreement grievance and arbitration pro-

cedures almost always provide for union control over the

determination which grievances move forward in the proc-

ess and how.

Those processes are not intended to provide for bind-

ing determinations of rights that do not derive from

the collectively-negotiated t and are unsuited to

such determinations. Nothing in Gilmer supports com-

mitting individual employees’ public law rights to a system

which does not assure individual access to the neutral

adjudicatory forum and individual control over presenta-

tion of the case. And, as this Court has long recognized,

adjusting the collective bargaining grievance-arbitration

process to an individual rights model would so overburden

the process as to sap its ability to serve the collective-

bargaining related purposes it was designed to serve.

Since there is no basis whatever for reconsidering this

Court’s well-considered, often-reiterated understanding

that “[n]Jot all disputes between an employee and his em-

ployer are suited for binding resolution in accordance with

the procedures established by collective bargaining” (Bar-

rentine, 450 U.S at 737), that understanding and the

Gardner-Denver rule it supports should be reaffirmed."

CONCLUSION

The decision of the United States Court of Appeals for

the Fourth Circuit should be reversed.

®* We recognize that it is theoretically possible for a union and

an employer to enter into a collective bargaining agreement which

expressly provides for adjudication of statutory rights, and which

expressly permits individual employee access to and control of that

process. If such an agreement were negotiated, then the question

might arise whether the union’s representational authority extends

to the modification of individual employee public law rights.

This Court’s precedents indicate, we believe, that the union's

representational authority does not extend that far. Gardner-

Denver, 415 U.S. at 51; Barrentine, 450 U.S. at 731 n.4, 737-38. But

there is no need to address here whether we are correct in that

regard.

26 Broadway, 17th Floor

New York, NY 10004

JAMES R. WATSON

1827 The Strand

Galveston, TX 77550

ARMAND DERFNER

P.O. Box 600

Charleston, SC 29402

Respectfully submitted,

JONATHAN P. HIATT

JAMEs B. CoPpPEss

815 - 16th Street, NW

Washington, DC 20006

MARSHA S. BERZON

177 Post Street, Suite 300

San Francisco, CA 94108

LAURENCE GOLD *

1000 Connecticut Avenue, N.W.

Washington, DC 20036

(202) 888-9340

* Counsel of Record