Amicus Curiae Brief — Board of Governors of State Colleges & Universities v. Equal Employment Opportunity Commission

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C—O a LO er Ses eee Sl Oe eS eS eee, Ss

No. 91-1895

al IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

BOARD OF GOVERNORS OF STATE COLLEGES

AND UNIVERSITIES,

RP an e)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ie \ / de ; }

A oy} e

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF PETITIONER

ROBERT E. WILLIAMS

DOUGLAS 8S. MCDOWELL *

HEIDI K. MCAULIFFE

McGUINESS & WILLIAMS

Suite 1200

1015 15th Street, N.W.

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

* Counsel of Record

WILSON - EPEs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE .....00000000000.....

STATEMENT OF THE CASE ......000000000000... Laat a eters

SUMMARY OF REASONS FOR GRANTING THE

ft nn einaceagiieh to enuneeccsiee a ne A EE

Il.

THE DECISION BELOW CONFLICTS WITH

THIS COURT’S REASONING IN ALEX-

ANDER v. GARDNER-DENVER BY PENAL-

IZING AN EMPLOYER FOR PROVIDING

EMPLOYEES WITH AN ALTERNATIVE

DISPUTE RESOLUTION PROCEDURE DE-

SIGNED TO COMPLEMENT AND PRE-

SERVE, RATHER THAN OVERLAP AND

POTENTIALLY CONFLICT WITH, STATU-

TORY ENFORCEMENT PROCEDURES........

A. The Seventh Circuit’s Rule Creates a “Catch

22” for Employers Who Seek to Afford Em-

ployees Practical Alternatives to Statutory

Enforcement Procedures .........................-....---

B. The Decision Below Creates a Strong Dis-

incentive to the Use of Grievance and Arbi-

tration Procedures to Resolve Employment

Disputes, and Thus Will Seriously Burden

the EEOC and the Courts by Requiring

PURE Sr IIE ni insoecserscts cecssnretencnioncnattieieininicecsee

THE SEVENTH CIRCUIT’S DECISION IS

SQUARELY IN CONFLICT WITH THE LES-

SONS OF THE STEELWORKERS TRILOGY:

THE SCOPE OF ARBITRATION IS A MAT-

TER OF CONTRACT AND CANNOT BE

ALTERED ABSENT AGREEMENT OF THE

PARTIES ........ Eee aesbetia sieenicaaehuadigueaen abs tomaeinta aes

TABLE OF CONTENTS—Continued

Page

A. The Court of Appeals’ Decision Seriously

Undermines the Fundamental Principle that

the Parties to a Collective Bargaining Agree-

ment Bargain For and Consent To the Terms

of the Contract _... PEED, WT ee ae. ee 13

B. Under the Seventh Circuit’s Holding, Par-

ties to a Collective Bargaining Agreement

May No Longer Designate the Specific Dis-

putes that Are Beyond the Scope of Arbi-

tration ......... Ex wf Neti w eds 16

Il. EVEN IN NON-UNION SETTINGS, THE

SEVENTH CIRCUIT’S DECISION IN THIS

CASE WILL RESTRICT THE ABILITY OF

EMPLOYERS TO USE ALTERNATIVE DIS-

PUTE RESOLUTION PROCEDURES EF-

FECTIVELY AND WILL THEREBY CRE-

ATE A DISINCENTIVE TO THE ADOPTION

OF ADR PROCEDURES paatlentatch 17

CONCLUSION eateries 20

ili

TABLE OF AUTHORITIES

FEDERAL CASES Page

AT & T Technologies v. Communication Workers

of Am., 475 U.S. 643 (1986) ...............000000 15

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

| RRR RE IRR Ene Siecle DE ep EE a noes passim

Barrentine v. Arkansas-Best Freight Sys. Inc., 450

PNM FRIIS oo pesnciccunsttsacnsasnsscseunminneastnaiicxem sons - 18

Gilmer v. Interstate; Johnson Lane Corp., 111 S.Ct.

8 Eee a ea passim

Goss Golden West Sheet Metal v. Sheet Metal

Workers, Local 104, 933 F.2d 759 (9th Cir.

ESE een peceaavaedei eco 15

Hotel Ass’n of Washington, D.C. v. Hotel and

Restaurant Employees Union Local 25, No. 91-

5112, 1992 U.S. App. LEXIS 7898 (D.C. Cir.

ea ea ho ees Ren rt. 15

International Union of Elec. Workers, Local 790 v.

Robbins & Meyers, Inc., 429 U.S. 229 (1976)... 3,15

Litton Financial Printing v. N.L.R.B., 111 S.Ct.

NE ec ee past an 15

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

I octet ee a NS Tae passim

Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614 (1985) 0. 18

Montgomery Mailers’ Union 127 v. Advertiser Co.,

827 F.2d 709 (11th Cir. 1987) ............... ADs aa 16

New York News, Inc. v. Newspaper Guild of New

York, 927 F.2d 82 (2d Cir. 1991) 16

Pipe Trades Council, Local 159 v. Underground

Cont. Assoc., 835 F.2d 1275 (9th Cir. 1987) ...... 15

Rodriguez de Quijas v. Shearson/Am. Express,

Inc., 490 U.S. 477 (1989) ...00000 oo 17

Shearson/Am. Express, Inc. v. McMahon, 482 U.S.

220 (1987) ....... SSiiscaid oh obiniiclonsohachsareblahdaietbdceigunnokeuecanedanond 17

T.C. Baer, Inc. v. Iron Workers Local Union No.

580, 813 F.2d 562 (2d Cir. 1987) __................. 15

Teamsters Local 315 v. Union Oil Co. of Califor-

nia, 856 F.2d 1307 (9th Cir. 1988), cert. denied,

488 U.S. 1043 (1989) Se ESO OS oer TT 16

United Steelworkers of Am. v. American Mfg. Co.,

ee Ue EE ID, ...-. ...cnerenanesonsscndetenspiseosodmsanasiais 13

TABLE OF AUTHORITIES —Continued

United Steelworkers of Am. v. Ente Ppl ise Wheel

& Car Corp., 363 U.S. 593 (1960)

United Steelworkers of Am. v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960)

Van Waters & Rogers Inc. v. Int'l Brotherhood of

Teamsters, Local 70, 913 F.2d 736 (9th Cir.

(“ADEA”), 29 U.S.C. Sec. 621 et seq . 8,4,

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

Sec. 2000e, et seq. ........ ance AEN Lae tein a eres eee eta

MISCELLANEOUS

Report of the Federal Courts Study Committee

SE Ee ON icchcth ca Laing gs bicudubecessstucnttsevetaceabnuees:

Page

. 14,16

. 18,17

16, 18

8,18

IN THE

Sipreme Court of the Wuited States

OCTOBER TERM, 1991

No. 91-1895

BOARD OF GOVERNORS OF STATE COLLEGES

AND UNIVERSITIES,

rm Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF PETITIONER

The Equal Employment Advisory Council (EEAC)

respectfully submits this brief, Amicus Curiae. Let-

ters of consent on behalf of Petitioner, the Board of

Governors, and iespondent, the Equal Employment

Opportunity Commission (EEOC), have been filed

with the Clerk of the Court. The brief supports the

petition for a writ of certiorari.

INTEREST OF THE AMICUS CURIAE

EEAC is a nationwide association of employers or-

ganized in 1976 to promcte sound approaches to the

elimination of employment discrimination. Its mem-

bership comprises a broad segment of the employer

community in the United States, including over 260

major corporations and several trade associations

which themselves have hundreds of corporate mem-

bers. Its Board of Directors is composed of experts

in labor and equal employment opportunity. Their

combined experience gives EEAC a unique depth of

understanding of the practical, as well as legal, as-

pects of EEO policies and requirements that apply

to the employer-employee relationship.

All of EEAC’s members, and the constituents of

its trade association members, are employers subject

to the provisions of the Age Discrimination in Em-

ployment Act of 1967 (“ADEA”), 29 U.S.C. § 621

et seqg., and other various federal orders and regula-

tions pertaining to nondiscriminatory employment

practices and equal opportunity policies. In addition,

as employers, many of EEAC’s members maintain

in-house dispute resolution procedures, including

many that are products of the collective bargaining

process.

In this case, the court below held that a collectively-

bargained provision that made disputes non-arbitrable

where employees sought administrative or judicial re-

lief violated the Age Discrimination in Employment

Act, 29 U.S.C. § 621 et seg. As potential respondents

to charges of discrimination pursuant to ADEA and

other employment statutes, EEAC’s members are con-

cerned that the decision below may expose them to

liability if, by collective bargaining or otherwise, they

establish dispute resolution procedures that exclude

from arbitration claims which a complaining party

seeks to have resolved in a parallel administrative or

judicial forum. Thus, EEAC members have a direct

ee...

interest in the issues presented for the Court’s con-

sideration in this case.

Because of its interest in the application of the

nation’s employment laws, EEAC has filed over 300

briefs as amicus curiae before the United States Su-

preme Court, the United States Circuit Courts of

Appeals and various state supreme courts. As part of

this amicus activity, EEAC has participated as am-

icus curiae in cases involving the proper relationship

between grievance and arbitration procedures and

federal administrative and judicial procedures. See

Gilmer v. Interstate/Johnson Lane Corp., 111 S.Ct.

1647 (1991); McDonald v. City of West Branch,

Mich., 466 U.S. 284 (1984); and International Union

of Elec. Workers, Local 790 v. Robbins & Meyers,

Inc., 429 U.S. 229 (1976).

Because of its experience with these issues, EEAC

is well-situated to brief the Court on the importance

of the issues beyond the immediate concerns of the

parties to this case. EEAC’s brief brings matter to

the attention of the Court that has not already been

provided by the party briefs.

STATEMENT OF THE CASE

The collective bargaining agreement at issue was

negotiated between the Board of Governors of State

Colleges and Universities (hereinafter “the Board’’)

and the University Professionals of Illinois (herein-

after “the Union’). (Pet. App. 2-3).' The Agree-

ment contains the following provision:

1 Citations to the Petitioner’s Appendix, including those to

the decision below, are designated as Pet. App. ——.

Article 17.2

If prior to filing a grievance hereunder, or while

a grievance proceeding is in progress, an em-

ployee seeks resolution of the matter in any other

forum, whether administrative or judicial, the

Board or any University shall have no obligation

to entertain or proceed further with the matter

pursuant to this grievance procedure.

(Pet. App. 3).

In 1984, Professor Raymond Lewis filed a griev-

ance with the Union, alleging that the University

president’s failure to recommend him for tenure was

in violation of University procedures. (Pet. App. 4).

An arbitration hearing to resolve Professor Lewis’

grievance was scheduled for May 20, 1985. Jd. On

May 14, 1985, Professor Lewis filed a charge of age

discrimination with the EEOC based on the same

tenure decision. /d.

Pursuant to Article 17.2 of the collective bargaining

agreement, the Board declined to proceed further with

the arbitration procedure. Jd. Thereafter, the EEOC

brought this action against the Board, alleging that

its policy, embodied in Article 17.2, violated the non-

retaliation provision of the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et. seg. (Pet. App.

5).

The trial court concluded that Article 17.2 was

valid in the absence of evidence that the provision

was adopted with intent to retaliate and granted

summary judgment for the Board. (Pet. App. 20).

The Court of Appeals for the Seventh Circuit reversed.

(Pet. App. 17). Declaring that the motivation of

the employer is irrelevant to a claim of retaliation the

Seventh Circuit remanded the case, ordering injunc-

tive relief in favor of the EEOC. (Pet. App. 17).

Judge Manion, although concurring in the opinion

of the court, recognized the injustice the decision would

produce.

[T]he advantage of the grievance procedure .. .

was that a just result could be achieved without

literally making every employment dispute a

federal case. This procedure would be a much

less expensive and probably more efficient

method to resolve disputes . . . the EEOC’s ap-

proach will eliminate the contractual grievance

procedure as a viable option for a Union member

to use as an alternative means to resolve a

dispute.

(Pet. App. 18-19).

SUMMARY OF REASONS FOR GRANTING THE WRIT

It makes no practical sense to require that a single

employment dispute be processed simultaneously

through two procedures. Recognizing this, many em-

ployers, independently or through collective bargain-

ing, have structured workplace dispute resolution

procedures so that they can be suspended or discon-

tinued if the complaining party elects to pursue the

matter in another forum. This spares the parties un-

necessary expense and duplication of effort and elim-

inates the prospect of conflicting results.

Placing such practical limitations on the use of an

internal dispute resolution procedure in no way retal-

lates or discriminates against employees who choose

to file charges with the EEOC. It simply affords all

employees an internal procedure that can be used

whenever it has not been rendered redundant by the

initiation of proceedings in a parallel forum.

This accommodation is particularly appropriate in

cases involving claims of employment discrimination

in light of this Court’s decisions in Alexander v.

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

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

(1984), holding that arbitration decisions cannot

preclude relief under federal anti-discrimination

laws. Given those holdings, an employer may rea-

sonably conclude that it is pointless to proceed with

arbitration of an issue that has been made the sub-

ject of an EEOC charge or court complaint, because

arbitration in such circumstances cannot provide

what many would view as an essential ingredient of

effective dispute resolution—.e., finality.

The court of appeals’ decision in this case, how-

ever, denies employers and unions the option of

agreeing to limit an internal arbitration system to

complaints that have not been made the subject of

external agency or court proceedings. In doing so,

the Seventh Circuit’s reasoning effectively converts

the internal dispute resolution procedure the parties

negotiated from the alternative procedure they en-

visioned to a duplicative one that must be carried out

even when potentially dispositive, parallel proceed-

ings are underway. Thus, the decision below under-

mines the basic principle of the Steelworkers Trilogy

that it is up to the parties to decide what types of

claims they wish to submit to arbitration, and under

what circumstances.

As Judge Manion noted in his concurrence below, if

an employer can be compelled by the risk of liability

under an anti-discrimination statute to continue with

a dispute resolution hearing even after the employee

has sought redress from the EEOC or in court, many

employers may opt to forgo making alternative for-

ums available at all. (Pet. App. 19.) Thus, if al-

lowed to stand, the Seventh Circuit’s decision will

thwart the development and use of alternative dis-

pute resolution in the employment context. The deci-

sion below thus raises important issues in the admin-

istration of the federal anti-discrimination statutes

that only this Court can now resolve.

Moreover, this case presents an opportunity for

the Court to provide much-needed further guidance

concerning issues addressed last term in Gilmer v.

Interstate/Johnson Lane Corp., 111 S.Ct. 1647

(1991). By appearing to encourage greater use of

arbitration for the resolution of employment dis-

crimination issues without overruling or expressly

modifying Gardner-Denver and its progeny, the

Gilmer decision sent mixed signals to employers

about the extent to which arbitration or other dispute

resolution procedures may provide viable alternatives

to administrative and judicial procedures. Many em-

ployers now are very interested in offering employees

the option of agreeing voluntarily to the use of alter-

native dispute resolution procedures. If widely

adopted, such procedures could greatly reduce the

volume of employment discrimination litigation in

the courts. Efforts to develop such programs, how-

ever, have been hampered by remaining doubts and

uncertainties concerning their efficacy in the wake of

Gilmer. Many of the questions left unanswered in

Gilmer could be addressed in the context of this ease.

For all of these reasons, the writ should be granted.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH THIS

COURT’S REASONING IN ALEXANDER v. GARD-

NER-DENVER BY PENALIZING AN EMPLOYER

FOR PROVIDING EMPLOYEES WITH AN ALTER-

NATIVE DISPUTE RESOLUTION PROCEDURE

DESIGNED TO COMPLEMENT AND PRESERVE,

RATHER THAN OVERLAP AND POTENTIALLY

CONFLICT WITH, STATUTORY ENFORCEMENT

PROCEDURES.

A. The Seventh Circuit’s Rule Creates a “Catch 22”

for Employers Who Seek to Afford Employees

Practical Alternatives to Statutory Enforcement

Procedures.

In Alexander v. Gardner Denver Co., this Court

held that Congress intended federal courts to exer-

cise final responsibility for enforcing the employment

discrimination provisions of Title VII of the Civil

Rights Act of 1964, and that arbitration pursuant to

a collective bargaining agreement could not preclude

an individual’s recourse to the courts for resolution

of Title VII rights. 415 U.S. at 56. Similarly, in

McDonald v. City of West Branch, this Court held

that an arbitrator’s award could not preclude a claim

for judicial relief under 42 U.S.C. § 1983. 466 U.S.

284 (1984.) In the case at bar, however, the Sev-

enth Circuit held that a grievance and arbitration

procedure designed to yield to statatorily-created ad-

ministrative or judicial procedures whenever they

have been invoked by a complaining party is retalia-

tory and unlawful. (Pet. App. 16-17).

Taken together, these decisions create a practical

dilemma for employers who wish to make arbitration

or other internal dispute resolution procedures avail-

able to employees as an alternative to statutory en-

forcement proceedings. Under the Seventh Circuit’s

decision, if an employer provides such internal pro-

cedures at all, it must allow employees who invoke

them to pursue their claims through those procedures

all the way to completion, even when the same claims

have been made the subject of statuiory proceedings.

Yet, under this Court’s decisions in Gardner-Denver

and McDonald, arbitration or other internal proce-

dures cannot produce a dispositive resolution of a

claim involving issues of discrimination in such

circumstances.

Thus, employers in the Seventh Circuit are placed

in the untenable position of being compelled, upon

pain of liability under federal anti-discrimination

statutes, to process complaints through internal pro-

cedures that have been rendered both duplicative and

potentially inconclusive by reason of parallel statu-

tory proceedings. And since the EEOC also sub-

scribes to the Seventh Circuit’s reasoning, the same

dilemma will face employers throughout the nation

unless this Court grants the writ and overturns the

decision below.

“Alternative dispute resolution” (ADR) will be

rendered a misnomer if this decision stands. An

employer cannot offer arbitration as an alternative

to EEOC or court procedures, but only as an addi-

tional, overlapping means of pursuing a complaint.

The irony of this dilemma is that, under the reason-

ing of the Seventh Circuit and the EEOC, it is the

employer’s deference to the statutorily-prescribed

enforcement procedure that places the employer in

violation of the anti-retaliation provisions of the very

statute whose procedures the employer was trying to

preserve.

To be sure, some employers and unions may con-

clude that it is worthwhile to proceed with the proc-

essing of grievances through arbitration even though

the issues involved have been made the subject of

parallel statutory proceedings. For example, the dis-

crimination issues may be closely intertwined with

contractual issues that can be resolved only through

arbitration. Or the parties may decide to proceed

in the hope that an arbitrator’s decision, although

not preclusive, may be given substantial evidentiary

weight in any subsequent judicial proceedings in-

volving the same matter. See Alexander v. Gardner-

Denver, 415 U.S. at 60 n.21.

In many other instances, however, it may reason-

ably be concluded that there will be nothing to be

gained by continuing to process a case through an

internal complaint procedure after external proceed-

ings have been launched. Thus, it is entirely logical

and proper for employers and unions to agree, as

did the parties in the case at bar, that when statu-

tory charges of discrimination have been filed, in-

ternal procedures will be suspended or terminated

and the matter will be left to the statutorily-

prescribed administrative and judicial processes for

resolution.

B. The Decision Below Creates a Strong Disincentive

to the Use of Grievance and Arbitration Procedures

to Resolve Employment Disputes, and Thus Will

Seriously Burden the EEOC and the Courts by

Requiring Duplicative Forums.

To say that the Seventh Circuit’s decision in this

case provides “no incentive to offer a grievance pro-

cedure in lieu of seeking a resolution in some other

forum” (Pet. App. 19) is a monumental understate-

ment. The decision provides a powerful disincentive

2 aaa

to any employer to agree to provide dispute resolu-

tion procedures through which employees could raise

any issue that might also be made the subject of a

charge under one or more anti-discrimination laws.

For to do so would almost certainly invite substantial

expenditures of time and money to process complaints

through a procedure which, under the Seventh Cir-

cuit’s ruling, could not be suspended or terminated

until it had run its full course, and yet could not pro-

duce a dispositive resolution of the issues.

Moreover, the availability of dual forums, with dif-

ferent procedural requirements and factfinders, to

resolve disputes based on the same or similar facts

will surely result in inconsistent rulings in many

cases. If the Seventh Circuit’s decision in this case

is allowed to stand, the parties to such actions will

then be forced to litigate the question of which results

should be carried out and implemented.

Thus, if, as the Seventh Circuit and the EEOC

reason, employers who offer arbitration procedures

Will face liability for retaliation if they do not allow

the use of such procedures for matters being pursued

simultaneously through statutory procedures, it may

fairly be predicted that most employers will opt not

to make such in-house procedures available at all.

This unfortunate result was correctly foreseen by

the concurring judge in this case:

‘ [T]he EEOC’s approach will eliminate the con-

tractual grievance procedure as a viable option

for a Union member to use as an alternative

means to resolve a dispute. Without Article

17.2, the [employer] has no incentive to offer a

grievance procedure in lieu of seeking a resolu-

tion in some other forum. As it is, the collective

bargaining agreement would offer an incentive

to both sides to resolve the issue quickly, before

statutes of limitations or other time limits ex-

pire. If the grievance procedure wasn’t working,

the Union member could turn to the courts (or

some other form of arbitration), thus overriding

the grievance procedure. Now, the Union mem-

ber will be permitted to operate in two forums,

and presumably take the best deal. But the [em-

ployer] may see no benefit in doubling its expo-

sure and adding to the costs of its administra-

tive and legal defense. Thus, [the employer]

could conclude that if court action must be an

alternative, it will be the only alternative. It

seems to me that this rigid result was not really

the goal of our federal laws against discrimina-

tion. (Pet. App. 19).

Given the rate at which employment discrimination

cases are contributing to the rapidly growing case-

load problems of the federal judiciary,” and the val-

uable role that grievance and arbitration procedures

could play in helping to alleviate those problems, to

condone such a result would be irresponsible. These

compelling public policy considerations add further

support to the arguments for granting the writ and

reversing the decision of the Seventh Circuit in this

Case,

* The Federal Courts Study Committee observed in a report

published two years ago that the number of employment dis-

crimination cases filed in the federal courts had already in-

creased by over two thousand percent since 1969. Report of

the Federal Courts Study Committee at 61 (April 2, 1990).

Given the passage of the Civil Rights Act of 1991, and the

impending July 26, 1992, effective date of the Americans

with Disabilities Act, we can anticipate a further substantial

increase in the amount of litigation in the federal courts.

Il. THE SEVENTH CIRCUIT'S DECISION IS

SQUARELY IN CONFLICT WITH THE LESSONS

OF THE STEELWORKERS TRILOGY: THE SCOPE

OF ARBITRATION IS A MATTER OF CONTRACT

AND CANNOT BE ALTERED ABSENT AGREE-

MENT OF THE PARTIES.

A. The Court of Appeals’ Decision Seriously Under-

mines the Fundamental Principle that the Parties

to a Collective Bargaining Contract Must Consent

to the Terms of the Contract.

The teachings of the Steelworkers Trilogy, three

decisions in which this Court delineated and under-

scored the importance of grievance arbitration in the

collective bargaining arena, indicate that arbitration

is a consensual arrangement between the parties and

that the parties must negotiate and agree which dis-

putes will be submitted to grievance arbitration.

In United Steelworkers of Am. v. American Mfg.

Co., 363 U.S. 564, 564-566 (1960), an employer re-

fused to arbitrate a grievance, arguing that the

dispute was not arbitrable under the collective bar-

gaining agreement. After examining the content of

the collective bargaining agreement that the parties

had negotiated, Justice Douglas, writing for the

Court, indicated that arbitration should have been

ordered because “the agreement is to submit all

grievances to arbitration, not merely those that a

court may deem to be meritorious.” Jd. at 567.

In a dispute over the “contracting out” provisions

of a collective bargaining agreement, this Court

again looked to the agreement that was negotiated

between the parties and ordered the matter to pro-

ceed to arbitration. United Steelworkers of Am. v.

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

Justice Douglas, again speaking for the Court,

ca aa

wrote: “Apart from matters that the parties spe-

cifically exclude, all of the questions on which the

parties disagree must therefore come within the

scope of the grievance and arbitration of the collec-

tive agreement.” Jd. at 581 (emphasis added). Em-

phasizing the consensual nature of an arbitral proc-

ess, this Court stated that “a party cannot be required

to submit to arbitration any dispute which he has

not agreed so to submit.” 7d. at 582.

The last Steelworkers case in the trilogy addressed

the issue of judicial review of the arbitrator’s award.

In United Steelworkers of Am. v. Enterprise Wheel

& Car Corp., 363 U.S. 5938, 599 (1960), this Court

again emphasized that the parties’ contractual agree-

ment was the defining event, holding that the parties

had contracted for the arbitrator’s judgment and that

the courts were not to reject that judgment merely

because they disagreed with the interpretation of the

arbitrator.

The Seventh Circuit’s decision in this case com-

pletely ignores the fact that the parties have agreed,

through the collective bargaining process, not to arbi-

trate discrimination claims where charges involving

the same subject matter have been formally initiated

in an administrative or judicial forum. In essence,

the parties have deemed these disputes to be non-

arbitrable. Because the Seventh Circuit’s decision

squarely conflicts with the longstanding and vener-

-- able principles articulated in the Steelworkers Tril-

ogy, employers who are parties to such collectively-

bargained agreements in the Seventh Circuit face a

real quandary as to the extent to which they may

rely upon those agreements’ terms to govern the scope

of their arbitration rights and obligations.

In AT & T Technologies v. Communication Work-

ers of Am., 475 U.S. 643 (1986), this Court recently

re-emphasized that the consensual agreement nego-

tiated between the parties is the anchor in the collec-

tive bargaining arena. Similarly, in Litton Financial

Printing v. N.L.R.B., a post-contract ¢ <piration case,

this Court again stated “[n]o obliga‘.on to arbitrate

a labor dispute arises solely by operation of law. The

law compels a party to submit his grievance to arbi-

tration only if he has contracted to do so.” 111 S.Ct.

2215, 2222 (1991) (citing, Gateway Coal Co. v. Mine

Workers, 414 U.S. 368, 374 (1974)) (emphasis

added). Thus, this Court has consistently held that

arbitration is a matter of consent and that it will not

be imposed upon parties beyond the scope of their

agreement.*®

3 The lower courts have followed this Court’s guidance.

For instance, the parties to a collectively-bargained contract

may agree that the question of arbitrability may be deter-

mined by an arbitrator. Pipe Trades Council, Local 159 v.

Underground Cont. Assoc., 835 F.2d 1275 (9th Cir. 1987) ;

Montgomery Mailers’ Union 127 v. Advertiser Co., 827 F.2d

709 (11th Cir. 1987). They also may agree on time limita-

tions and other procedural requirements. Goss Golden West

Sheet Metal v. Sheet Metal Workers, Local 104, 933 F.2d 759

(9th Cir. 1991). Provisions requiring parties to a collectively-

bargained contract to turn over “any and all records reason-

ably necessary” for an audit under the agreement may be

included, T.C. Baer, Inc. v. Iron Workers Local Union No.

580, 813 F.2d 562 (2d Cir. 1987), as well as the issue of

,whether an arbitrator may be bound by the decision of a

predecessor arbitrator. Hotel Ass’n of Washington, D.C. v.

Hotel and Restaurant Employees Union Local 25, No. 91-

5112, 1992 U.S. App. LEXIS 7898 (D.C. Cir.). Indeed, this

Court has intimated that the parties to a collective bargaining

contract may even designate in the contract the relevant

“event” for purposes of a statutory cause of action. See In-

ternational Union of Elec. Workers v. Robbins & Myers, Inc.,

supra.

A corollary to the principle that the parties’ agree-

ment controls the scope of the arbitration is that

where the collective bargaining provision establishes

a limit on the arbitrator’s power to resolve disputes,

an arbitrator is confined to the interpretation and

application of the agreement. United Steelworkers

of Am. v. Enterprise Wheel & Car Corp., 363 U.S.

at 597. Thus, pursuant to the parties’ agreement,

some specific disputes will not be subject to resolution

through the grievance and arbitration process. See

Van Waters & Rogers Inc. v. International Bhd. of

Teamsters, Local Union 70, 913 F.2d 736, 740 (9th

Cir. 1990) (“[jurisdictional issues] shall not be sub-

mitted to arbitration under this agreement .. .”);

New York News Inc. v. Newspaper Guild of New

York, 927 F.2d 82 (2d Cir. 1991) (the dispute at

issue did not arise under the “narrow” arbitration

clause); Teamsters Local 315 v. Union Oil Co. of

California, 856 F.2d 1307 (9th Cir. 1988), cert. de-

nied, 488 U.S. 1043 (1989) (no agreement to arbi-

trate employer’s authority to determine the medical

fitness of an employee to work); and Montgomery

Mailers’ Union No. 127 v. Advertiser Co., 827 F.2d

709 (1th Cir. 1987) (where agreement is silent, the

issue is beyond the scope of the arbitration clause).

B. Under the Seventh Circuit’s Holding, the Parties

to a Collective Bargaining Agreement No Longer

May Designate the Specific- Disputes that Are

Beyond the Scope of Arbitration.

In this instance, the Seventh Circuit erroneously

held that Article 17.2 violated the retaliation prohibi-

tion of the ADEA because it incorrectly interpreted

the provision as a broad policy conferring arbitrable

status on all employment disputes, i.e., a “contractual

right to a grievance proceeding.” (Pet. App. 12).

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Under the collective bargaining agreement negotiated

between the Board and the Union in this case, there

Was no contractual right to arbitrate a dispute in

Which the employee was seeking an administrative

or judicial resolution. In Article 17.2, “the parties

specifically exclude[d]” from arbitration, disputes

in which an administrative or judicial resolution is

sought. United Steelworkers of Am. v. Warrior &

Gulf Navigation Co., 363 U.S. at 581.

As such, if left unaddressed, the Seventh Circuit’s

decision threatens to undermine employers efforts to

craft arbitration systems under the Steelworkers

cases and add to the confusion that has already been

generated by this Court’s discussion of arbitration

systems in Alexander v. Gardner-Denver and Gilmer.

III. EVEN IN NON-UNION SETTINGS, THE SEVENTH

CIRCUIT’S DECISION IN THIS CASE WILL RE-

STRICT THE ABILITY OF EMPLOYERS TO USE

ALTERNATIVE DISPUTE RESOLUTION PROCE-

DURES EFFECTIVELY AND WILL THEREBY

CREATE A DISINCENTIVE TO THE ADOPTION

OF ADR PROCEDURES.

The Seventh Circuit’s decision in this case—requir-

ing continuation of a grievance and arbitration pro-

cedure even where an employee initiates a parallel

administrative action—will have far reaching effects

on employers with non-union workforces as well as

unionized employers. Propelled by revent decisions

of this Court encouraging the use of alternative

means of dispute resolution, see Gilmer v. Interstate/

Johnson Lane Corp., supra.; Rodriguez de Quijas v.

Shearson’Am. Express, Inc., 490 U.S. 477 (1989) ;

Shearson/Am. Express, Inc. v. McMahon, 482 U.S.

220 (1987), many employers currently are attemp-

ting to determine whether to adopt alternative dis-

pute resolution systems to resolve disputes involving

the terms and conditions of employment, and issues

of employee selection such as hiring, promotion, and

discharge.

In endorsing the use of arbitration in these cases,

this Court embraced the view that arbitration offers

businesses and individuals predictability and effi-

ciency in their relationships. Mitsubishi Motors Corp.

v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 633,

638 (1985). In contrast to the concerns expressed in

Gardner-Denver and its progeny about the adequacy

of collectively-bargained arbitration to resolve statu-

tory discrimination claims,’ this Court more recently

has rejected arguments that individual arbitration

agreements cannot sufficiently or adequately be used

to resolve statutory claims. Gilmer v. Interstate/

Johnson Lane Corp., 111 8. Ct. at 1654.

At the same time, however, Gilmer left open the

question of whether its holding applied generally to

“employment contracts” or is limited to the securities

industry. See 111 S. Ct. at 1651 n.2. Gilmer also left

open the degree to which private arbitration systems

must duplicate the procedural and remedial schemes

of a statute such as the ADEA or Title VII. As in

the collective bargaining context, when an EEOC

charge is filed, many employers may find it advisable

to have the same claims resolved by the EEOC and

the courts rather than take the chance that their ADR

procedures may not be binding under standards yet

to be determined by this Court.

4See Alexander v. Gardner-Denver, 45 U.S. at 56-57;

McDonald v. City of West Branch, Mich., 466 U.S. at 290-

292; and Barrentine v. Arkansas-Best Freight Sys., Inc., 450

U.S. 728, 742-744 (1981).

Despite these uncertainties, many employers have

established ADR procedures for non-union work-

forces. One important consideration is whether this

alternative system will subject employers to a sep-

arate forum that may duplicate or conflict with ex-

isting statutory procedures. Often, such arbitration

or other dispute resolution procedures provide that

where employees have initiated a statutory claim

in an administrative or judicial forum, those claims

should be resolved through the administrative or ju-

dicial process and not by an alternate procedure. The

Seventh Circuit’s decision in this case, however, will

prevent employers from doing so. For, although this

case involves a grievance and arbitration provision of

a collectively-bargained contract, the underlying ra-

tionale of the Seventh Circuit’s decision and the

EEOC’s policy would appear equally applicable to

non-union alternative dispute resolution procedures.

The decision below, therefore, inevitably will dis-

courage employer attempts to utilize alternative dis-

pute resolution procedures, because it will allow them

no way of discontinuing such procedures when dupli-

cative EEOC or court proceedings are begun. Thus,

Judge Manion’s admonition that employers will have

“no incentive to offer a grievance procedure in lieu

of seeking a resolution in some other forum” applies

as well to an arbitration system adopted outsidethe

collective bargaining context. (Pet. App. 19).

CONCLUSION

In licht of the foregoing, EEAC respectfully sub-

mits that the petition for writ of certiorari should be

eranted so that this Court may issue some guidance

to employers seeking to use alternative means of dis-

pute resolution and comply with this Court’s rulings

in Alexander v. Gardner-Dexver, Gilmer, and the

Steelworkers Trilogy.

Respecifully submitted,