Petition for Writ of Certiorari — Tractor Supply Co. v. Pryner

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~< 961830 MAY 16 1997

Orrick OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

TRACTOR SUPPLY COMPANY, INC.,

Petitioner,

VINCENT L. PRYNER,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

€

PETITION FOR WEIT OF CERTIORARI

CuHarLEs W. PAUTSCH

Counsel of Record

James B. SHERMAN

BRIAN A. PRICE

Kerry E. Dwyer

WeEssELs & PAutscu, P.C.

Two Plaza East

330 East Kilbourn Avenue

Suite 1475

Milwaukee, WI 53202

(414) 291-0600

Davip L. SWIDER

Bose, McKinney & EvANs

2700 First Indiana Plaza

135 North Pennsylvania

Indianapolis, IN 46204

(317) 684-5161

Counsel for Petitioner

Tractor Supply

Company, Inc.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether a voluntary agreement to arbitrate federal

statutory employment discrimination claims is

enforceable under Gilmer v. Interstate/Johnson Lane

Corp., 500 U.S. 20 (1991), notwithstanding that it is

part of a collective bargaining agreement.

PARTIES TO THE PROCEEDINGS

All parties to the proceedings in the United States

Court of Appeals for the Seventh Circuit, with the excep-

tion of amici curiae, appear in the caption to this Petition.

Petitioner, Tractor Supply Company, Inc., has no parent

companies or nonwholly owned subsidiaries to be listed

pursuant to Rule 29.6.

ili

TABLE OF CONTENTS

Page(s)

Question Presented .........-.0:seeeereeeeeeeeeeees i

Parties To The Proceedings .......----+++eeeererees ii

Table Of Authorities Cited..........-..ee eee eeeeees Vv

Citations To Opinions Below.........--+++s++ss005 1

Jurisdiction. .........cseceeerccescsseeeceeeecsceces 1

Statutory Provisions Involved.......-.-++++++++++:: 2

Statement Of The Case.......---- cece rere c reece: 2

A. The Facts And The Jurisdiction Of The District

end sh eaew ass seed edecesasses sia 2

B. Proceedings Below......-----++++eeereerrrees 4

Reasons For Granting The Writ.......----+sss++++> 6

I. This Court Should Grant The Writ To Resolve

A Split In The Circuits That Threatens The

Orderly Administration Of Justice In Virtually

All Cases In Which Union Members Assert

Statutory Employment Discrimination Claims

Against Their Employers.......--+-+++++++:: 7

Il. The Seventh Circuit’s Opinion Is Contrary To

This Court’s Precedent..........-++seeeeeeee 15

A. The Seventh Circuit Erred In Failing To

Apply the Mitsubishi “Legal Constraints”

Analysis To The Issue .......--.-+++++:: 16

B. Supreme Court Precedent Supports

Enforcement Of The Arbitration Agree-

cake eke tress estes etavsce si 22

1. Federal Labor Law...........--+-.-: 22

TABLE OF CONTENTS - Continued

Page(s)

2. Gilmer v. Interstate/Johnson Lane Corp... 24

C. Title VII And The ADA Specifically

Encourage Arbitration.................. 27

III. The Interlocutory Nature Of The Judgment

Below Is Not A Bar To Granting The Writ .. 28

NINN 5 Lcd okd esau ayes as ee ee 30

— ares

TABLE OF AUTHORITIES CITED

Page(s)

CASES:

Alexander v. Gardner-Denver, 415 U.S. 36 (1974) .. passim

Almonte v. Coca-Cola, 1997 U.S. Dist. LEXIS 3189

(D. Conn. March 11, 1997)......:22 esse eeeeee eens 11

American Safety Equipment Corp. v. J.P. Maguire &

Co., 391 F.2d 821 (2d Cir. 1968)........----++- 17, 18

Austin v. Owens-Brockway Glass Container, Inc., 78

F.3d 875 (4th Cir. 1996), cert. denied, 117 S. Gt.

432 (1996)... ccccccvcccccceescccccvevcesseeces passim

Baert v. Euclid Beverage, 954 F. Supp. 170 (N.D. Il.

fp TEE eet ee tape. 12

Bowen v. Massachusetts, 487 U.S. 879 (1988)........--- 7

Bright v. Norshipco, 951 F. Supp. 95 (E.D. Va. 1997) .... 11

Brummett v. Copaz Packing Corp., 954 F. Supp. 160

(S.D. Ohio 1996). ....... cece cence erence eee ences 11

Buckley v. Gallo Sales Co., 949 F. Supp. 737 (N.D.

‘oe ME BRPPPTRPeT ORT eer ee i 12

Bush v. Carrier Air Conditioning, 940 F. Supp. 1040

(E.D. Tex. 1996) ....... cee ee eee e eee erence eeecees 12

Christensen v. Colt Industries Operating Corp., 486

U.S. 800 (1988) ...... cece eee e cere e ener eter eneeeeee 7

Commissioner v. Bilder, 369 U.S. 499 (1962).........--- 12

Cotton v. Sloan, 4 F.3d 176 (2nd Cir. 1993)........ 10, 29

Dickerson v. UPS, 1996 U.S. Dist. LEXIS 20668

(N.D. Texas Oct. 24, 1996) ....----eeeeee ee eeeeeees 11

Engle v. Ametek, Inc., No. 3:95 CV 7028 (N.D. Ohio

Chet: FD, TDDG) on cscs cece nces enna sensansscesst hes 11

TABLE OF AUTHORITIES CITED - Continued

Page(s)

Foster v. Bechtel Corporation, 154 LRRM 2060 (N.D.

Cal. OO BB ess caedesv eee 12

General Electric Co., 150 NLRB 192 (1964), enforced,

418 F.2d 736 (2d Cir. 1969), cert. denied, 397 U.S.

| Pe ere ere ree eh 4. Cu. Maine 23

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20

CEP ED «60:2 end eeeelia ne ae ee passim

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)..... 21

Gray v. Toshiba America Consumer Products, Inc.,

1997 U.S. Dist. LEXIS 5697 (M.D. Tenn. Jan. 16,

EPFF Dos cccccndeuvenens ¢0sueaeeiese eee Meteo ge eee 12

Hampton v. Kroger Co., 1996 U.S. Dist. LEXIS 14407

(WD. Va. Same. 27, BPE vndws ccc eaaecsagean sas 11

Hapgood v. City of Warren, 1996 Ohio App. LEXIS

4684 (Ohio Ct. App., 11th Dist., Trumbull

County, Oct. 25, 1996), discretionary appeal not

allowed, 78 Ohio St. 3d 1428, 676 N.E.2d 533

PM VR sis Rh Mere ae a Ree 12

Henry v. Colonial Baking Co., 952 F. Supp. 744 (M.D.

RMb, TOG) . o-00.60sneddeseberpaee eae 11

Hill v. American Nat'l Can Company/Forster Fobes

Glass Div., 952 F. Supp. 398 (N.D. Texas 1996)..... 12

Jessie v. Carter Health Care Ctr., 930 F. Supp. 1147

eae ES. TOU seeds ing eee 11

Linkletter v. Walker, 381 U.S. 618 (1965).............. 10

Metropolitan Edison Co. v. NLRB, 460 U.S. 693

CRONE 6.6 00.5 5000464604400000F ee 23

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614 (1985) ........ 16, 17, 18, 19, 20, 26

vil

TABLE OF AUTHORITIES CITED - Continued

Page(s)

National Broiler Marketing Assn. v. United States,

436 U.S. 816 (1978) .....-- eee cece cree ee eereeeeeees 14

Nieves v. Individualized Shirts, et al., 1997 U.S. Dist.

LEXIS 5861 (D. N.J. April 28, 1997)....---+-++++:: 12

Patterson v. Lamb, 329 U.S. 539 (1947) ...cccccccccees 13

Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965). ..22, 23

Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477 (1989) ...---e eee eee e reer eee ee: 16

Shearson/American Express, et al. v. McMahon, 482

U.S. 22 (1987) ....-ccecccccccccereccececess 16, 19, 25

Smith v. UPS, 947 F. Supp. 190 (D. Md. 1996)....... 11

Steelworkers v. Usery, 429 U.S. 305 (1977) ...-+++++++: 13

Teamsters, Chauffeurs, Warehousemen & Helpers v.

Lucas Flour Co., 369 U.S. 95 (1962)......--. eee 14

Textile Workers v. Lincoln Mills, 353 U.S. 488 (1957) .... 24

United States v. General Motors Corp., 323 U.S. 373

SPPrrrrertri Titre ir rete Rho 29

United Steelworkers of America v. American Manufac-

turing Co., 363 U.S. 564 (1960) ....cccccceveccceces 22

United Steelworkers of America v. Enterprise Wheel &

Car Corp., 363 U.S. 593 (1960)....-+-++seereerreees 22

United Steelworkers of America v. Warrior & Gulf

Navigator Co., 363 U.S. 574 (1960) .....--- eee eeees 22

Vaca v. Sipes, 386 U.S. 171 (1967)....--+-+eee errr eee: 21

Varner v. National Supermarkets, Inc., 94 F.3d 1029

(8th Cir. 1996), cert. denied, 117 S. Ct. 946 (1997)

Pied La deee Cea ee TEMAS ERR TERE VERE CARST 8, 14, 15, 24

viii

TABLE OF AUTHORITIES CITED - Continued

Page(s)

Wilko v. Swan, 346 U.S. 427 (1953), overruled by

Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477 (1989) ..---sseerrrsrr rn 17, 18

Wolfe v. Metropolitan Dade County, Florida, No.

95-2351-CIV-NESBITT (S.D. Fla. April 14, 1997) .... 11

STATUTES:

Oe a RE ak ase tele aeacaly 10, 16

OE BE ca ccssnssnaeisnemiweres aemesens = 2

REG ncn cence nx peeet eter 2, 4

pit ome oo POPPER rer Lees sp aeeaatee 2,5, 2

Oe CIOL. O TIM) ow cde cnn en ctsenerensrerser ete 1

re Coan: Ce ES achalasia 2

Oe ELEC, © IGE. «6s s coe vccstcssrecensenmesresentom 2

i CIGD TOD 5 in nsives a chee ae tenns Ce sv eee es Oer® 23

res tome Se RPP Ee adele theater shia“) 13

4D USC. & 1981... cr eeccccccerensenesees 2, 13, 21, 28

pea oe | SOOPER adalah ad 13

£2 US.C. § BOG. 0.0. ocrcresenersrnenecronerses: 2, 18

£9 USC. & TUL... oe cree entrees reetre re mee 2, 13

6 UB. © UBT eos voccsveseesreesetreererr® 2, 9, 28

Pub. L. No. 102-166, 105 Stat. 1071 (1991)..---- 2, 9, 28

PETITION FOR WRIT OF ~"ATIORARI

Tractor Supply Company, Inc. respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Seventh Circuit

entered on March 20, 1997 in this case.

— a

CITATIONS TO OPINIONS BELOW

The decision of the United States Court of Appeals

for the Seventh Circuit is officially reported at 109 F.3d

354 (7th Cir. 1997) and appears in the Appendix of this

petition at pages App. 1-27.1 The decision of the United

States District Court for the Southern District of Indiana

is officially reported at 927 F. Supp. 1140 (S.D. Ind. 1996)

and appears in the Appendix of this petition at pages

App. 28-44.

JURISDICTION

The judgment of the United States Court of Appeals

for the Seventh Circuit was entered on March 20, 1997.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

1 Reference to the Appendix to this petition will be as

follows: “App. __.”

RD ——————————

STATUTORY PROVISIONS INVOLVED

Section 2 of the Federal Arbitration Act (“FAA”), 9

U.S.C. § 2.

Section 3 of the FAA, 9 U.S.C. § 3.

Section 16 of the FAA, 9 U.S.C. § 16.

Section 118 of the Civil Rights Act of 1991, Pub. L.

No. 102-166 § 118, 105 Stat. 1071, 1081 (1991).

Section 12212 of the Americans With Disabilities Act

of 1990, 42 U.S.C. § 12212.

Pursuant to Supreme Court Rule 14(f) the text of

these statutes are set forth, infra, at App. 45-47.

STATEMENT OF THE CASE

A. The Facts And The Jurisdiction Of The District

Court.

The jurisdiction of the District Court was invoked

under 28 U.S.C. § 1331 (general federal question jurisdic-

tion) and 28 U.S.C. § 1343 (jurisdiction over civil rights

actions). In the District Court, the Respondent, Vincent L.

Pryner (“Pryner”) filed several complaints against the

Petitioner, Tractor Supply Company, Inc. (“TSC”), alleg-

ing that TSC discriminated against him in the terms and

conditions of his employment in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

(“Title VII”), the Civil Rights Act of 1866, 42 U.S.C.

§ 1981, and Title I of the Americans With Disabilities Act

of 1990, 42 U.S.C. § 12101, et seq. (“ADA”). (App. 31.)

The terms and conditions of Pryner’s employment

with TSC were governed by a collective bargaining agree-

ment (“CBA”) between TSC and Pryner’s exclusive bar-

gaining representative, Chauffers, Teamsters,

Warehousemen and Helpers Local No. 135 (the “Union”).

The CBA includes, inter alia, a “ ‘Grievance and Arbi-

tration Procedure’ for the resolution of any disputes

‘involving interpretation or application of the provisions

of this Agreement’” (App. 30) (citation to record omit-

ted). The grievance procedure provides for a three-step

grievance adjustment process followed by arbitration

which is “ ‘final and binding on both parties.’ ” (Id.)

The CBA also contains the following provisions:

Section 2 — No Discrimination

The Company agrees that it will not discrimi-

nate against any associate for employment for or

on account of his affiliation or activities with the

Union. The Company and Union agree not to

discriminate against any individual with respect

to hiring, compensation, terms or conditions of

employment because of an individual's race,

color, religion, age, sex, or national origin. Nor

will the Company limit, segregate or classify

associates in any way to deprive any individual

associate of employment opportunities because

of race, color, religion, age, sex, veteran or

national origin.

Section 3 — The Americans With Disabilities Act

(ADA)

Due to the Americans With Disabilities Act or

the regulations promulgated thereunder, the

Company may be required to make a reasonable

accommodation to the disability of an applicant

or incumbent associate that may be in conflict

with provisions of this Agreement. In such

event, the Company shall be privileged to make

such accommodation notwithstanding the

requirements of this Agreement. The Company

shall notify the Union thereafter as soon as is

practicable of such situation on a confidential

basis.

(App. 30-31.)

B. Proceedings Below.

On or about April 4, 1994, TSC moved to dismiss

Pryner’s claims for lack of subject matter jurisdiction or,

in the alternative, to stay, pursuant to section 3 of the

FAA, 9 U.S.C. § 3, the District Court’s proceedings pend-

ing arbitration. TSC’s motion was based upon the provi-

sions of the collective bargaining agreement (“CBA”)

between TSC and the union representing Pryner. (App.

31.)

TSC argued that these provisions of the CBA

required Pryner to arbitrate his statutory employment

discrimination claims. To support its argument, TSC

relied upon the then recent decision of the United States

Court of Appeals for the Fourth Circuit (“Fourth Circuit”)

in Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d

875 (4th Cir. 1996), cert. denied, 117 S. Ct. 432 (1996)

(holding that statutory employment discrimination

claims were subject to arbitration pursuant to the manda-

tory arbitration provisions of the CBA governing the

terms and conditions of the plaintiff’s employment).

(App. 33-34.)

On or about May 28, 1996, the District Court denied

TSC’s motion for summary judgment or, in the alterna-

tive, to stay its proceedings pending arbitration of Pry-

ner’s claims. (App. 28.) In so deciding, the District Court

addressed Austin as follows:

Clearly, if the decision of the Fourth Circuit [in

Austin] is a correct pronouncement of federal

law, then the instant case must be dismissed,

because Pryner’s sole remedy for the discrimi-

nation claimed would be pursuant to the arbi-

tration clause in the CBA. However, it is the

court’s assessment that Austin is not an accurate

interpretation of federal law as it presently

stands and that the reasoning of the majority in

that case would not be adopted by the Seventh

Circuit if faced with a similar case.

(App. 38) (material in brackets added).

The District Court concluded that Austin incorrectly

applied to a CBA this Court’s holding in Gilmer v. Inter-

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

employment discrimination claims are subject to agree-

ments to arbitrate. The District Court reasoned that

Gilmer’s holding cannot be applied to a CBA given this

Court’s holding in Alexander v. Gardner-Denver, 415 U.S.

36 (1974), that arbitration of an employee’s discharge

under the “just cause” provisions of a CBA did not pre-

clude a subsequent claim in court that the discharge

violated Title VII. (App. 39.)

Pursuant to section 16 of the FAA, 9 U.S.C. § 16, TSC

interlocutorily appealed the District Court’s decision to

the United States Court of Appeals for the Seventh Cir-

cuit (“Seventh Circuit”). (App. 6.) As previously noted,

on or about March 20, 1997, the Seventh Circuit affirmed

the decision of the District Court. (App. 1-2.) In so doing,

the Seventh Circuit concluded that neither Gilmer nor

Gardner-Denver were controlling precedent and held that:

the union cannot consent for the employee by

signing a collective bargaining agreement that

consigns the enforcement of statutory rights to

the union-controlled grievance and arbitration

machinery created by the agreement.

(App. 23) (emphasis in original).

By order dated May 14, 1997, the Honorable John

Paul Stevens, Associate Justice of this Court and Circuit

Justice for the Seventh Circuit, granted a stay of proceed-

ings in the District Court for the Southern District of

Indiana pending the timely filing of this petition.

REASONS FOR GRANTING THE WRIT

As the Seventh Circuit acknowledged, its decision in

this case directly conflicts with a decision of the Fourth

Circuit, but is in agreement with a decision of the Eighth

Circuit. (App. 23-24.) As the Seventh Circuit also

acknowledged, this split in the Circuits can only be

resolved by this Court because it involves the proper

interpretation of two previous decisions of this Court.

(App. 27.)

At the District Court level, conflicting decisions

regarding whether statutory employment discrimination

claims must be arbitrated pursuant to a CBA are prolif-

erating rapidly. This kind of litigation is inherently

unproductive. As Justice Scalia has observed, “[nJothing

is more wasteful than litigation about where to liti-

gate....” Bowen v. Massachusetts, 487 U.S. 879, 930 (1988)

(Scalia, J., dissenting); see also Christensen v. Colt Industries

Operating Corp., 486 U.S. 800, 818-19 (1988). Justice

Scalia’s comments apply with even greater force to the

issue raised by this petition because, absent guidance

from this Court, the lower courts’ efforts to resolve this

issue will be futile because it involves the proper applica-

tion of Gilmer to CBAs.

Moreover, the Seventh Circuit’s decision is contrary

to the many recent decisions of this Court favoring the

arbitration of statutory claims. Therefore, this case pro-

vides this Court with the opportunity to clarify its prior

decisions favoring the arbitration of statutory claims

while removing a threat to the orderly administration of

justice.

I. THIS COURT SHOULD GRANT THE WRIT TO

RESOLVE A SPLIT IN THE CIRCUITS THAT

THREATENS THE ORDERLY ADMINISTRATION

OF JUSTICE IN VIRTUALLY ALL CASES IN

WHICH UNION MEMBERS ASSERT STATUTORY

EMPLOYMENT DISCRIMINATION CLAIMS

AGAINST THEIR EMPLOYERS.

In its opinion, the Seventh Circuit defined the issue

in this case as follows:

...can a collective bargaining agreement com-

pel an employee to arbitrate a claim that he may

have under one of the federal statutes, such as

Title VII of the Civil Rights Act of 1964, the Age

Discrimination in Employment Act, or the

Americans With Disabilities Act, that confer liti-

gable rights on employees?

(App. 3).

The Seventh Circuit held that a CBA cannot compel

arbitration of statutory employment discrimination

claims. (App. 23) In so holding, the Seventh Circuit

expressly recognized a split in the Circuits regarding this

issue. As the Seventh Circuit observed in its opinion:

Both sides of these appeals also are able to cite a

case or two that squarely support their position

~ cases that really do not differ in any material

particular from the present one - but in doing so

all they have done is identify a circuit split. Com-

pare Austin v. Owens-Brockway Glass Container,

Inc., supra, 78 F.3d at 885, with Varner v. National

Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir.

1996).

(App. 23-24.) (emphasis added). The Seventh Circuit

rejected the Fourth Circuit’s decision in Austin and

reached the same result as the Eighth Circuit in Varner.

The Seventh Circuit further recognized that this split

in the Circuits can only be resolved by this Court because

it involves reconciling this Court’s seemingly incon-

gruous decisions in Alexander v. Gardner-Denver, 415 US.

36 (1974) (holding that the arbitration of an employee’s

discharge under the “just cause” provisions of a CBA did

not preclude a subsequent claim in court that the dis-

charge violated Title VII), and Gilmer v. Interstate/Johnson

Lane Corp., 500 U.S. 20 (1991) (holding that statutory

employment discrimination claims are subject to agree-

ments to arbitrate). As the Seventh Circuit observed in its

decision in the case at bar:

— i i

eee ee ee

Mp rathd Wiel STATS linen Pra Sa

On balance our case is closer to Alexander [than

Gilmer], but is enough left of Alexander [after

Gilmer] to compel a decision in favor of the plain-

tiffs? Only the Supreme Court can answer that ques-

tion; and we are timid about declaring decisions

by the Supreme Court overruled when the Court

has not said so. Khan v. State Oil Co., 93 F.3d

1358, 1364 (7th Cir. 1996), cert. granted, 117 S.

Ct. 941 (1997). The conservative reading of

Gilmer is that it just pruned some dicta from

Alexander — and it certainly cannot be taken to

hold that collective bargaining agreements can

compel the arbitration of statutory rights. That

issue was not before the Court or discussed by

it. The Court may have so distinguished Alexander

as to deprive it of any authoritative force; but that is

the most it did and by doing so opened what till

then had been a closed issue.

(App. 27) (emphasis - except for the word “hold” — and

material in brackets added).

The tension between Garnder-Denver and Gilmer is

highlighted by the growing acceptance of alternate dis-

pute resolution as recognized by many decisions of this

Court, including Gilmer, and by Congress when it enacted

the Civil Rights Act of 1991 and the Americans With

Disabilities Act of 1990. See Pub. L. No. 102-166 § 118, 105

Stat. 1071, 1081 (1991) and 42 U.S.C. § 12212. (Both statu-

tory provisions are set forth, infra, at App. 47.)

The existing split in the Circuits regarding how to

apply Garder-Denver and Gilmer to agreements to arbitrate

statutory claims that are part of a CBA threatens the

orderly administration of justice. This problem is partic-

ularly acute in the majority of federal circuits that apply

the Federal Arbitration Act, 9 U.S.C. § 1, et seg. (“FAA”),

to CBAs.?

In those Circuits that apply the FAA to CBAs, a

defendant seeking to compel arbitration of a statutory

employment discrimination claim pursuant to a CBA

must interlocutorily appeal a denial of a motion to com-

pel arbitration or risk waiving the issue. See Cotton v.

Sloan, 4 F.3d 176, 180 (2nd Cir. 1993) (holding that a party

which loses a motion to compel arbitration under the

FAA must pursue an interlocutory appeal or waive the

issue). Therefore, absent a resolution of the issue raised

by this petition, the federal courts of appeals and this

Court are threatened with a flood of interlocutory

appeals. As discussed, infra, numerous cases involving

this issue are pending in the district courts.

Even in the minority of Circuits that do not apply the

FAA to CBAs, the failure to resolve the issue raised by

this petition threatens the orderly administration of jus-

tice. Without definitive guidance from this Court, district

courts in those Circuits will try cases with the threat of

the case being thrown out of the courts and into arbitra-

tion on appeal.

Therefore, the impact on the administration of justice

of the issue raised by this petition renders this petition

especially meritorious. See Linkletter v. Walker, 381 U.S.

618, 620 (1965) (granting certiorari to resolve a conflict in

2 The split in the Circuits regarding the applicability of the

FAA to CBAs is discussed in the Seventh Circuit’s opinion in the

case at bar and will not be repeated here for purposes of brevity.

(See App. 6-8.)

the Circuits over “what has become a most troublesome

question in the administration of justice”).

The issue raised by this petition affects numerous

pending cases, as is pointedly illustrated by at least eigh-

teen recent decisions (all rendered within roughly the last

year) involving this same issue.? Three of these recent

decisions were decided by district courts in the Fourth

Circuit, applying the Fourth Circuit’s holding in Austin

that statutory employment discrimination claims are sub-

ject to arbitration provisions in CBAs.4

Additionally, outside the Fourth Circuit, seven federal

district courts and one state appellate court decided to follow

Austin and held that statutory employment discrimination

claims are subject to arbitration provisions in CBAs.° On the

3 TSC lodged all unpublished decisions cited in this

petition with the Clerk of this Court pursuant to the Clerk’s

“Memorandum To Those Intending To Prepare A Petition For A

Writ Of Certiorari And Pay The $300.00 Docket Fee” dated

October, 1995. A copy of said lodging was served upon each

party required to be served with a copy of this petition.

4 See Bright v. Norshipco, 951 F. Supp. 95 (E.D. Va. 1997);

Smith v. UPS, 947 F. Supp. 190 (D. Md. 1996); Hampton v. Kroger

Co., 1996 U.S. Dist. LEXIS 14407 (W.D. Va. Sept. 27, 1996).

5 See Wolfe v. Metropolitan Dade County, Florida, No. 95-2351-

CIV-NESBITT (S.D. Fla. April 14, 1997) (Magistrate’s

recommended decision); Almonte v. Coca-Cola, 1997 U.S. Dist.

LEXIS 3189 (D. Conn. March 11, 1997); Brummett v. Copaz

Packing Corp., 954 F. Supp. 160 (S.D. Ohio 1996) (combined

opinion affecting cases brought by ten plaintiffs); Engle v.

Ametek, Inc., No. 3:95 CV 7028 (N.D. Ohio Oct. 22, 1996);

Dickerson v. UPS, 1996 U.S. Dist. LEXIS 20668 (N.D. Texas Oct.

24, 1996); Henry v. Colonial Baking Co., 952 F. Supp. 744 (M.D.

Ala. 1996); Jessie v. Carter Health Care Ctr., 930 F. Supp. 1147 (E.D.

other hand, in six recent cases outside the Fourth Circuit,

district courts declined to follow Austin and held that

statutory employment discrimination claims are not sub-

ject to arbitration provisions in CBAs.® Finally, in addi-

tion to the case at bar, at least four other cases are

pending in the Seventh Circuit involving the issue raised

by this petition.”

The existence of these pending cases makes this issue

particularly worthy of review by this Court. Cf. Commis-

sioner v. Bilder, 369 U.S. 499, 501 (1962) (granting cer-

tiorari because of a conflict in decisions of the federal

courts of appeals and the fact that “a considerable

Ky. 1996); Hapgood v. City of Warren, 1996 Ohio App. LEXIS 4684

(Ohio Ct. App., 11th Dist., Trumbull County, Oct. 25, 1996),

discretionary appeal not allowed, 78 Ohio St. 3d 1428, 676 N.E.2d

533 (1997).

LEXIS 5861 (D. N.J. April 28, 1997); Gray v. Toshiba America

Consumer Products, Inc., 1997 U.S. Dist. LEXIS 5697 (M.D. Tenn.

Jan. 16, 1997); Buckley v. Gallo Sales Co., 949 F. Supp. 737 (N.D.

Cal. 1996); Foster v. Bechtel Corporation, 154 LRRM 2060 (N.D.

Cal. Nov. 5, 1996); Hill v. American Nat'l Can Company/Forster

Fobes Glass Div., 952 F. Supp. 398 (N.D. Texas 1996); Bush v.

Carrier Air Conditioning, 940 F. Supp. 1040 (E.D. Tex. 1996).

7 In James A. Motley v. Tractor Supply Company, Case No. IP

95-0308-C-M/S (S.D. Ind.), proceedings have been stayed

pending disposition of this petition for certiorari. (App. 48-51.)

In addition, the defendants have raised the issue in Stanislaw

Noga v. KIMCO Corporation, Case No. 96-C-G276108 (N.D. IIL),

and Robert J. Hammond v. United Airlines, Inc. et al., Case No. 96-

C-902C (W.D. Wis.). (App. 52-57 & 62-69.) Finally, in Baert v.

Euclid Beverage, 954 F. Supp. 170 (N.D. Ill. 1997), the District

Court rejected Austin just six weeks prior to the Seventh

Circuit’s decision in this case.

number of suits are pending in the lower courts which

will turn on resolution of these issues”).

Moreover, the aforementioned cases are only those in

which the issue raised has been resolved in some discov-

erable fashion. There certainly are and will be countless

other cases involving this issue because it affects virtually

every union, every union member, every unionized

employer and every CBA in the United States. At present,

nearly fifteen percent (15%) of workers in the United

States belong to a union. This amounts to roughly sixteen

million (16,000,000) people who are potentially affected in

a disparate fashion by the split in the Circuits regarding

the issue raised by this petition. (App. 58.)

The sheer number of people and CBAs this issue

affects makes it particularly worthy of review by this

Court. Cf. Patterson v. Lamb, 329 U.S. 539, 541 (1947)

(granting certiorari regarding an issue that affected thou-

sands of people); Steelworkers v. Usery, 429 U.S. 305, 307 n.

3 (1977) (certiorari granted to resolve the propriety of a

common provision in union constitutions).

Moreover, this issue affects the administration of

each and every federal employment discrimination stat-

ute, including Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e, et seq., the Americans With

Disabilities Act of 1990, as amended, 42 U.S.C. § 12101, et

seq., the Federal Rehabilitation Act of 1973, 29 U.S.C.

§ 701, et seq., the Civil Rights Act of 1866, 42 U.S.C.

§ 1981, the Civil Rights Act of 1871, 42 U.S.C. § 1983, and

other similar federal statutes.

The large number of important federal statutes

affected by this issue is yet another reason to grant the

writ of certiorari. See National Broiler Marketing Assn. v.

United States, 436 U.S. 816, 820 (1978) (certiorari granted

due to the importance of the issue to the administration

of the antitrust laws and one group affected by them, to

wit, the agricultural community).

In addition, the split in the Circuits regarding this

issue is particularly intolerable because federal law man-

dates uniform interpretation of CBAs throughout the

nation. As this Court has repeatedly noted, the body of

law regarding the interpretation of CBAs “ ‘is peculiarly

one that calls for uniform law.’ ” Teamsters, Chauffeurs,

Warehousemen & Helpers v. Lucas Flour Co., 369 U.S. 95, 104

(1962), quoting Pennsylvania R. Co. v. Public Service

Comm'n, 250 U.S. 566, 569 (1919).

At present, the same CBA, between the same union

and the same employer, could require arbitration of union

members’ statutory employment discrimination claims in

the Fourth Circuit, but not in the Seventh and Eighth

Circuits. Moreover, as previously demonstrated, district

courts in other Circuits are hopelessly divided on this

issue.

TSC is aware that this issue has been presented to

this Court on two previous occasions. See Austin v.

Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir.

1996), cert. denied, 117 S. Ct. 432 (1996); Varner v. National

Supermarkets, Inc., 94 F.3d 1029 (8th Cir. 1996), cert. denied,

117 S. Ct. 946 (1997). However, for several reasons, the

circumstances surrounding TSC’s petition are quite dif-

ferent from the circumstances surrounding the petitions

in Austin and Varner.

First, Austin was the first federal Court of Appeals to

hold that statutory employment discrimination claims are

subject to arbitration provisions in CBAs. Varner was the

first decision to the contrary from a federal court of

appeals. Accordingly, at the time of the denial of the

petitions in Austin and Varner there had not been a full

airing of this issue in the lower courts. Since the decisions

in Austin and Varner, at least nineteen courts — including

the Seventh Circuit in this case - have considered this

issue. See, supra, pages 11-12. Therefore, the issue pre-

sented by this petition is now ripe for review.

Second, neither Austin nor Varner arose under the

FAA. Therefore, the petitions in those cases could not

have presented the specter of numerous interlocutory

appeals regarding this issue. Furthermore, when holding

that statutory employment discrimination claims are not

subject to arbitration provisions in CBAs, the Varner

Court did not consider the FAA’s strong policy in favor of

arbitration. See, infra, at pages 16-22.

Finally, as previously discussed, the Austin and Var-

ner decisions have spawned numerous conflicting deci-

sions in the federal district courts that affect countless

present and future cases. TSC respectfully submits that

given this growing conflict, and the threat it poses to the

orderly administration of justice, now is the time for this

Court to resolve the conflict.

II. THE SEVENTH CIRCUIT’S OPINION IS CON-

TRARY TO THIS COURT’S PRECEDENT.

The Seventh Circuit held that “the union cannot con-

sent for the employee by signing a collective bargaining

Tc cc

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agreement that consigns enforcement of statutory rights

to the union-controlled grievance and arbitration machin-

ery created by the agreement.” (App. 23.) In rendering its

opinion, the Court ignored considerable precedent of this

Court regarding the enforceability of arbitration agree-

ments under the FAA and the federal labor policy favor-

ing arbitration. In addition, the Seventh Circuit, while

correctly concluding that Gilmer v. Interstate/Johnson Lane

Corp., 500 U.S. 20 (1991), did not control the outcome of

this case, failed to apply the analysis found in Gilmer to

this case. Furthermore, while the Court acknowledged

that Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974),

did not compel the Court's result, it erroneously applied

Gardner-Denver to undercut the Gilmer decision. The

refusal of the Seventh Circuit to apply the analysis of

Gilmer and the other cases of this Court regarding the

enforceability of statutory claims was in error.

A. The Seventh Circuit Erred In Failing To Apply

the Mitsubishi “Legal Constraints” Analysis To

The Issue.

Since the mid-1980s, this Court has decided a number

of commercial cases concerning the enforceability of arbi-

tration agreements under the FAA, 9 U.S.C. § 1, et seq.,

and has uniformly upheld agreements to arbitrate statu-

tory claims. See, e.g., Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614 (1985); Shearson/

American Express, et al. v. McMahon, 482 U.S. 22 (1987);

Rodriguez de Quijas v. Shearson/American Express, Inc., 490

U.S. 477 (1989). These cases represent a departure from

previous precedent in which this Court and Circuit

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Courts refused to uphold agreements to arbitrate statu-

tory claims. See, e.g., Wilko v. Swan, 346 U.S. 427 (1953),

overruled by Rodriguez, 490 U.S. 477; American Safety Equip-

ment Corp. v. J.P. Maguire & Co., 391 F.2d 821 (2d Cir.

1968). In this previous line of cases, the courts considered

the question to be whether the statutory rights at issue

were “of a character inappropriate for enforcement by

arbitration.” American Safety, 391 F.2d at 825. In American

Safety the Second Circuit reasoned that “the pervasive

public interest in enforcement of the antitrust laws, and

the nature of the claims that arise in such cases, combine

to make . . . antitrust claims . . . inappropriate for arbitra-

tion.” Id. at 827-28. The Mitsubishi Court noted that the

Second Circuit arrived at this conclusion despite the fact

that there was no explicit support in either the Sherman

Act or the FAA to apply this exception to the

enforceability of the arbitration clause in that case. Mit-

subishi, 473 U.S. at 628-29.

While Mitsubishi declined to address the legitimacy

of the American Safety doctrine, it did provide consider-

able dicta which expressed “skepticism” about American

Safety’s validity. Id. at 632-35. In addition to relying on the

importance of the public policy underlying the antitrust

laws, the American Safety court also hinged its decision on

the perceived procedural inadequacy of arbitration and

the potential for unequal bargaining power between the

parties. American Safety, 391 F.2d at 826-27. In rejecting

American Safety's arguments, this Court stated: “so long as

the prospective litigant effectively may vindicate its stat-

utory action in the arbitral forum, the statute will con-

tinue to serve both its remedial and deterrent functions.”

Mitsubishi, 473 U.S. at 637.

In Mitsubishi the Court noted that “we are well past

the time when judicial suspicion of the desirability of

arbitration and of the competence of arbitral tribunals

inhibited the development of arbitration as an alternate

means of dispute resolution.” Mitsubishi, 473 US. at

626-27. With a “healthy regard for the federal policy

favoring arbitration” in mind, this Court proceeded to

analyze the enforceability of the arbitration agreement.

Id. at 626, citing Moses H. Cone Memorial Hospital v. Mer-

cury Construction Corp., 460 U.S. 1, 24-25 (1983). The Mit-

subishi Court replaced the policy driven analysis set forth

in Wilko and American Safety with a “congressional intent”

analysis. Id. at 627-28.

The Mitsubishi Court first drew a distinction between

waiving statutory claims and choosing a forum, stating

that “[b]y agreeing to arbitrate a statutory claim, a party

does not forego the substantive rights afforded by the

statute; it only submits to their resolution in an arbitral,

rather than judicial, forum.” Id. at 628. Despite the dis-

tinction between waiver of Statutory rights and forum

selection, the Court recognized that in some situations

Congress may intend to preclude a waiver of judicial

remedies for the statutory rights at issue. Id. The inquiry

a court must undertake when determining if an agree-

ment to arbitrate is enforceable has two Steps: first, the

court should determine whether the parties’ agreement to

arbitrate covers the Statutory claims at issue; second, it

should examine whether legal constraints external to the

parties’ agreement foreclose the arbitration of those

claims. Id.

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In determining whether “legal constraints” foreclose

the arbitration of statutory claims, the Mitsubishi Court

stated that:

if Congress intended the substantive protection

afforded by a given statute to include protection

against waiver of the right to a judicial forum,

that intention will be deducible from text or

legislative history.

Id. at 628. This Court in McMahon added a third source of

congressional intent: “the inherent conflict between arbi-

tration and the statute’s underlying purposes.” McMahon,

482 U.S. at 226-27.

In Gilmer, this Court applied the Mitsubishi “legal

constraints” analysis to hold that agreements to arbitrate

claims arising under the Age Discrimination in Employ-

ment Act (“ADEA”) are enforceable. 500 U.S. at 23-25.

Because there was nothing in the text of the ADEA or its

legislative history to preclude arbitration, this Court

addressed whether compulsory arbitration of ADEA

claims would be inconsistent with the statutory frame-

work and purposes of the Act. Id. at 26-33. This Court

“[did] not perceive any inherent inconsistency” between

arbitration and the goal of the ADEA to eliminate age

discrimination. Id. at 27. Furthermore, this Court refused

to find the agreement unenforceable based on challenges

to arbitration of age discrimination claims based on pro-

cedural inadequacies or unequal bargaining power and

found those issues to be best determined on a case by

case basis. Id. at 30-33.

The Seventh Circuit did not apply the Mitsubishi

“legal constraints” analysis to the present matter.® While

the Court implicitly found that the CBA covered at least

some of the statutory claims at issue (App. 17), it did not

examine whether there were any legal constraints which

would foreclose the parties’ agreement to arbitrate those

claims. Instead, the Court relied on a series of flawed

policy arguments to hold the arbitration agreements in

the CBA enforceable.

First, the Seventh Circuit stated, in apparent defer-

ence to Mitsubishi, that the arbitration agreement in the

CBA was not a “curtailment of his [the employee’s] sub-

stantive rights. The only difference is the forum.” (App.

17.) However, the Court also stated that “by being forced

into binding arbitration [by a CBA] they [employees]

would be surrendering their right to trial by jury... ”

(App. 19.) This second statement indicates that, despite

Mitsubishi, the Seventh Circuit elevated the right to a jury

trial to the level of a substantive right. Mitsubishi is clear

that waiving the right to a trial in favor of arbitration is

not the waiver of any substantive right. Mitsubishi, 473

U.S. at 628. Furthermore, in Gilmer this Court held an

agreement to arbitrate an ADEA claim enforceable with-

out any regard for the fact that the statute provided for a

jury trial. Gilmer, 500 U.S. at 35. Thus, the fact that a

represented employee may be “surrendering the right to

8 While the Seventh Circuit correctly held the FAA

applicable to this action to provide the Court with jurisdiction

over the case, it erroneously refused to apply the FAA analysis

to the substantive issue.

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a trial by jury” is not a valid reason for refusing to

enforce an agreement to arbitrate.

The Seventh Circuit also relied heavily on a per-

ceived “tension” between individual rights and major-

itarian rights. It hypothesized that there could be

situations in which the employee would be inadequately

protected by the grievance and arbitration procedures of

the CBA. This speculation is premature - there is no

indication that this “tension” would exist. As this Court

noted in Gardner-Denver, the potential “tension between

contractual and statutory objectives may be mitigated

where a collective bargaining agreement contains provi-

sions facially similar to those of Title VII.” Gardner-

Denver, 415 U.S. at 57. In this case the CBA expressly

incorporates substantive rights under Title VII (and the

ADA and Section 1981 as well).

The Seventh Circuit’s opinion also rests on the

assumption that unions will not promote employees’ stat-

utory discrimination claims. First, as this Court has rec-

ognized, any procedural inadequacy in arbitration should

be resolved on a case by case basis. Gilmer, 500 U.S. at 33.

Thus, it is improper to formulate the rule based on the

possibility of an employee at some time being potentially

precluded from bringing a claim. Furthermore, a union

has a duty to fairly represent its members, and an

employee has a remedy under the NLRA if the union

breached this duty. Vaca v. Sipes, 386 U.S. 171, 177 (1967).

In addition, under Goodman v. Lukens Steel Co., 482 U.S.

656, 669 (1987), a union that intentionally fails to pursue

discrimination claims on the grounds that they would be

difficult to process and would stir resentment is liable

under both Title VII and 42 U.S.C. § 1981; thus, a union

has incentive to properly process discrimination claims.

Thus, the Seventh Circuit’s policy arguments which focus

on this perceived tension between the individual and the

union are out of step with the reality of the situation.

B. Supreme Court Precedent Supports Enforce-

ment Of The Arbitration Agreement.

The Seventh Circuit failed to recognize or apply the

legal precedent which supports enforcement of the agree-

ment in the CBA to arbitrate the statutory claims at issue.

1. Federal Labor Law.

There is a “well recognized policy of federal labor

law favoring arbitration of labor disputes” witich was

established in the Steelworkers Trilogy. See United Steel-

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

593 (1960); United Steelworkers of America v. Warrior & Gulf

Navigator Co., 363 U.S. 574 (1960); United Steelworkers of

America v. American Manufacturing Co., 363 U.S. 564

(1960). An integral part of this policy is the requirement

that employees exhaust grievance and arbitration pro-

cedures prior to initiating a lawsuit. Republic Steel Corp. v.

Maddox, 379 U.S. 650, 652-53 (1965). This policy “requires

that individual employees wishing to assert contract

grievances must attempt use of the contract grievance

procedure agreed upon by employer and union... . And

it cannot be said, in the normal situation, that contract

grievance procedures are inadequate to protect the inter-

ests of an aggrieved employee until the employee has

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attempted to implement the procedures and found them

so.” Id. (emphasis in original).

The Seventh Circuit ignored this policy and its

requirement that an employee attempt to utilize the

grievance and arbitration procedures. Instead, the Court

was quick to assume that the procedures would be inade-

quate. Such an assumption goes against the history of

arbitration as the means with which to settle disputes

between represented employees and their employer.

The Court also failed to recognize that under the

National Labor Relations Act unions have the authority

to negotiate all terms and conditions of employment on

behalf of their members. 29 U.S.C. § 159. This exclusive

authority operates to bar an individual employee from

bargaining over his or her individual employment

arrangements. General Electric Co., 150 NLRB 192, 194

(1964), enforced, 418 F.2d 736 (2d Cir. 1969), cert. denied,

397 U.S. 965 (1970) (“recognition that the statutory repre-

sentative is the one with whom [the employer] must deal

in conducting bargaining negotiations, and that it can no

longer bargain directly or indirectly with the employee”).

Thus, the union alone has the power to negotiate with the

employer over issues such as seniority, discharge, wages,

hours, pension and health benefits, layoffs, recalls, griev-

ance procedures and arbitration. This non-exhaustive list

illustrates the vast authority a union has to negotiate on

behalf of its members.

The union also has the ability to waive its members’

right to strike and other rights protected under the

NLRA. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 705

(1983). The Fourth Circuit in Austin noted that there is no

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reason to distinguish between a union bargaining away a

right to strike and a union bargaining for the right to

arbitrate. Austin, 78 F.3d 885. The right to arbitrate is a

term or condition of employment for which the union

solely, as the unit’s bargaining representative, has the

exclusive right to bargain. See Textile Workers v. Lincoln

Mills, 353 U.S. 488 (1957).

2. Gilmer v. Interstate/Johnson Lane Corp.

In Austin, the Fourth Circuit found that this Court’s

decision in Gilmer dictated its result - that an employee

und. a collective bargaining agreement can be com-

pelled to arbitrate statutory claims pursuant to that

agreement. Austin, 78 F.3d 875, 880-86. The Eighth Circuit

in Varner reached the opposite result and instead relied

on Alexander v. Gardner-Denver. Varner, 94 F.3d 1209, 1213.

While the Seventh Circuit found that neither Gardner-

Denver nor Gilmer controlled its decision, it did note that

there is uncertainty as to whether this Court intended to

overrule Gardner-Denver with Gilmer. (App. 27.) Despite

acknowledging this possibility and the fact that “[t]he

Court may have so distinguished Alexander as to deprive

it of any authoritative force .. . ,” the Court erroneously

utilized Gardner-Denver to diminish the force of Gilmer

with respect to this case. (App. 27.) Due to the conflict in

the Circuits as to which case, if either, applies to this

issue, this Court should clarify its opinion on this matter

and determine whether any principles remain of Gardner-

Denver in light of Gilmer.

Gilmer addressed the same issue present in this case -

whether an agreement to arbitrate statutory claims is

enforceable. Gilmer, 500 U.S. at 35. While TSC agrees with

the Seventh Circuit that neither Gilmer nor Gardner-

Denver compels the result of this case, it submits that it

was in error for the Seventh Circuit to disregard Gilmer’s

analysis when deciding this case. In Gilmer, this Court

determined that agreements to arbitrate statutory claims

under the Age Discrimination in Employment Act

(“ADEA”) could be upheld. Id. at 23. This Court applied

the analysis it had developed under the Federal Arbitra-

tion Act (“FAA”) and determined that because the plain-

tiff had agreed to arbitrate his statutory claims, he carried

the burden of proving that Congress intended to preclude

a waiver of a judicial forum for ADEA claims. Id. at 26,

citing McMahon, 482 U.S. at 227. In Gardner-Denver, this

Court decided whether arbitration of contract-based

claims precluded subsequent judicial resolution of statu-

tory claims. See Gilmer, 500 U.S. at 35. This Court held

that an employee who was covered by a collective bar-

gaining agreement was not precluded from bringing a

statutory claim in court despite having previously sub-

mitted his claim to arbitration. Gardner-Denver, 415 U.S. at

59-60.

This Court in Gilmer distinguished that case from

Gardner-Denver on three grounds: first, the cases

addressed different issues; second, in Gardner-Denver, the

arbitration occurred in the context of a collective bargain-

ing agreement and the concern was the tension between

collective representation and individual statutory rights;

and finally, Gardner-Denver wasn’t decided under the

FAA. Gilmer, 500 U.S. at 35.

The Seventh Circuit addressed these three distinc-

tions and determined that “[o]n balance our case is closer

to Alexander...” (App. 27.) This determination was in

error. Clearly, the underlying issue in this case is the

same issue addressed in Gilmer — the enforceability of an

agreement to arbitrate statutory claims - and not, as in

Gardner-Denver, the preclusive effect of a prior arbitration

award. Because the issue in this case is the same issue

addressed in Gilmer, the Mitsubishi “legal constraints”

analysis of the issue found in Gilmer should have been

applied.

When the Austin Court applied this analysis, it held

that an otherwise enforceable agreement to arbitrate

should not be declared unenforceable simply because it

occurs within the context of a collective bargaining agree-

ment. 78 F.3d at 885. Austin found that because the plain-

tiff’s union had the authority to bargain the terms and

conditions of her employment, the arbitration agreement

was voluntary and thus enforceable. Id. The Seventh Cir-

cuit should have followed the Austin Court and found the

agreement enforceable. Additionally, in Gilmer, Interstate

was a member of the NYSE, and the NYSE, not Interstate,

entered into the agreement to arbitrate. Gilmer, 500 U.S. at

23. Just as the agreement in Gilmer would require Inter-

state to arbitrate any dispute between it and Gilmer, a

collective bargaining agreement requires an employee to

arbitrate his or her claims against the employer. Both

Interstate and the employee, by virtue of their member-

ship in the NYSE and union, respectively, have consented

to be bound by the actions of the group to which they

belong. Moreover, the employee’s union is authorized by

law to represent him or her in bargaining.

a Oe ee ee

In addition, the other two points of distinction

between Gilmer and Gardner-Denver do not, as the Sev-

enth Circuit concluded, put this case “closer to Alex-

ander.” As discussed above, the “tension” between

individual rights and collective representation is negated

by the fact that the collective bargaining agreement incor-

porates the statutory law. The Austin Court also dis-

missed this concern by finding the plaintiff party to a

voluntary agreement. 78 F.3d at 883 n. 2. Similarly, in the

present matter, Pryner is a party to the CBA which is a

voluntary agreement negotiated by his statutorily autho-

rized representative and which incorporates the statutory

law at issue. Furthermore, in the event that an employee

was precluded from any forum by its union, he or she

could bring a claim for breach of the duty of fair repre-

sentation or under Title VII or Section 1981 against the

union. Any “tension” is largely speculative and should

not operate to prevent enforcement of the arbitration

agreement.

The final point of distinction is whether the FAA

applies to the substantive issue. As discussed above, the

Seventh Circuit erroneously failed to apply the FAA to its

analysis of this case. Because the FAA (and federal labor

policy favoring arbitration) applies to this case, this point

actually brings the present case further in line with

Gilmer.

C. Title VII And The ADA Specifically Encourage

Arbitration.

Finally, not only are there no legal constraints which

prohibit enforcing the arbitration agreements, but the law

specifically encourages arbitration. Five months after this

Court decided Gilmer, Congress passed the Civil Rights

Act of 1991. Pub. L. No. 102-166, 105 Stat. 1071. This Act,

amending Title VII and 42 U.S.C. § 1981, states: “Where

appropriate and to the extent authorized by law, the use

of alternative means of dispute resolution, including

. . arbitration, is encouraged to resolve disputes arising

under the Acts or provisions of federal law amended by

this title.” Pub. L. No. 102-166 § 118, 105 Stat. 1071, 1081.

The Americans With Disabilities Act contains identical

language: “Where appropriate and to the extent autho-

rized by law, the use of alternative means of dispute

resolution including . . . arbitration, is encouraged to

resolve disputes arising under this chapter.” 42 U.S.C.

§ 12212. The meaning of this language is clear - Congress

is in favor of arbitration of these claims. See Austin, 78

F.3d at 881.

Given the conflict in the Circuits as well as the Sev~

enth Circuit’s failure to follow established precedent, TSC

respectfully submits that this Court should accept this

case for hearing and find that an agreement to arbitrate

statutory claims is enforceable notwithstanding that it is

part of a collective bargaining agreement.

III. THE INTERLOCUTORY NATURE OF THE JUDG-

MENT BELOW IS NOT A BAR TO GRANTING

THE WRIT.

Review of the Seventh Circuit’s decision in the case

at bar is appropriate notwithstanding its interlocutory

nature for several reasons. First, this Court will review an

interlocutory decision that raises an issue that meets the

criteria for certiorari if the issue “ . . . is fundamental to

the further conduct of the case.” United States v. General

Motors Corp., 323 U.S. 373, 377 (1945) (certiorari granted

after the Court of Appeals remanded for trial). Clearly,

whether a case should be arbitrated or litigated is funda-

mental to the further conduct of any case.

Second, review of the Seventh Circuit’s decision at

this time is necessary to preserve the orderly administra-

tion of justice. As previously discussed, the Second Cir-

cuit held in Cotton v. Sloan, 4 F.3d 176, 180 (2nd Cir. 1993),

that a defendant that loses a motion to compel arbitration

must pursue an interlocutory appeal pursuant to Section

16 of the FAA, 9 U.S.C. § 16 (see App. 45-46), or waive the

issue of arbitrability. Accordingly, if the issue raised by

this petition is not resolved at this time, the federal courts

of appeals — and this Court - are threatened with a flood

of interlocutory appeals regarding this issue.

Finally, no facts will be developed on remand that

will affect the outcome of the issue raised by this petition,

and the legal issues raised by this petition have been

thoroughly debated in the lower courts as discussed,

supra, in Section I. Therefore, the issue raised by this

petition is ripe for review by this Court. Moreover,

review of the Seventh Circuit’s decision at this time is

particularly appropriate because it will ensure the orderly

administration of justice.

~~ cise eateae ean

CONCLUSION

The petition for a writ of certiorari should be

granted.

Dated this 15th day of May, 1997.

Respectfully submitted,

CHARLES W. PauTsCcH

Counsel of Record

CHARLES W. PAUTSCH

Counsel of Record

James B. SHERMAN

BRIAN A. PRICE

Kerry E. Dwyer

Wessets & Pautscn, P.C.

Two Plaza East

330 East Kilbourn Avenue

Suite 1475

Milwaukee, WI 53202

(414) 291-0600

Davip L. SwipDER

Bose, McKinney & Evans

2700 First Indiana Plaza

135 North Pennsylvania

Indianapolis, IN 46204

(317) 684-5161

Counsel for Petitioner

Tractor Supply

Company, Inc.

See eee eae

INDEX OF APPENDIX IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Decision of the United States Court of Appeals for

the Seventh Circuit dated March 20, 1997....App.

Decision of the United States District Court for the

Southern District of Indiana dated May 28,

Se ee errr er Try rT reer Terr et App.

Statutory provisions involved..........-.++++:: App.

Orders of the United States District Court for the

Southern District of Indiana in James A. Motley

v. Tractor Supply Company, Case No. IP 95-0308-

‘et FOROS eee rer eT rrr. ye ee re ee App.

Defendant’s Motion, and Portion of Supporting

Brief, for Summary Judgment, or, in the Alter-

native, to Stay Proceedings Pending Arbitra-

tion, in Stanislaw Noga v. KIMCO Corporation,

Case No. 96-C-6108, pending in the United

States District Court for the Northern District of

ee gc 00cnbnensesebbsnebssaness ¥anae> App.

Department of Labor Statistics Regarding Union

Membership.........---.s0s0es seers eeeeees App.

Defendant’s Answer and Defenses in Robert J.

Hammond v. United Airlines, Inc. et al., Case No.

96-C-902C, pending in the United States District

Court for the Western District of Wisconsin. .App.

App. 1

Vincent L. PRYNER, Plaintiff-Appellee,

Counterclaim Defendant,

TRACTOR SUPPLY COMPANY, Defendant-Appellant,

Counterclaim Plaintiff.

Eugene SOBIERAJSKI, Plaintiff-Appellee,

THOESEN TRACTOR & EQUIPMENT COMPANY,

Defendant-Appellant.

Nos. 96-2437, 96-2892.

United States Court of Appeals,

Seventh Circuit.

Argued Dec. 12, 1996.

Decided March 20, 1997.

Employee brought employment discrimination action

: against his former employer. The District Court for the

: Southern District of Indiana, John Daniel Tinder, J., 927

F.Supp. 1140, denied employer’s motion for summary

judgment or, in alternative, to stay proceedings pending

arbitration. Another employee brought discrimination

action against his former employer. The District Court

denied employer’s motion to stay suit pending arbitra-

tion. Employers appealed, and appeals were consoli-

dated. The Court of Appeals, Posner, Chief Judge, held

that: (1) parties to employment contracts in nontranspor-

tation industries can appeal from orders denying stays

pending arbitration, but parties to employment contracts

in transportation industries cannot, and (2) workers’

App. 2

statutory rights are arbitrable if worker consents to have

them arbitrated.

Affirmed.

William R. Groth, Fillenwarth, Dennerline, Groth &

Towe, Bobby A. Potters, Indianapolis, IN, Marsha S.

Berzon (argued), Altshuler, Berzon, Nussbaum, Berzon &

Rubin, San Francisco, CA, for plaintiff-appellee in No.

96-2437.

David L. Swider, Scott A. Weathers, Bose, McKinney

& Evans, Indianapolis, IN, Charles W. Pautsch (argued),

James B. Sherman, Brian A. Price, Wessels & Pautsch,

Milwaukee, WI, for defendant-appellant in No. 96-2437.

Paul Bogas, Equal Employment Opportunity Com-

mission, Office of General Counsel, Robert E. Williams,

Ann Elizabeth Reesman, McGuiness & Williams, Wash-

ington, DC, amicus curiae Equal Employment Advisory

Council.

Douglas A. Darch, Marcia A. Mahoney, Eric J. Gor-

man, Seyfarth, Shaw, Fairweather & Geraldson, Chicago,

IL, amicus curiae Illinois Chamber of Commerce.

Thomas R. Meites, Paul W. Mollica, Meites, Frack-

man, Mulder & Burger, Chicago, IL, Richard T, Seymour,

Lawyers Committee for Civil Rights Under Law, Wash-

ington, DC, amicus curiae Lawyers’ Committee for Civil

Rights Under Law.

Thomas R. Meites, Paul W. Mollica, Cynthia A.

Wilson, Clyde Murphy, Chicago Lawyers’ Committee for

App. 3

Civil Rights Under Law, Chicago, IL, amicus curiae Chi-

cago Lawyers’ Committee for Civil Rights Under Law,

Inc.

Barry A. Gomberg (argued), Gomberg & Associates,

Chicago, IL, for plaintiff-appellee in No. 96-2892.

Charles W. Pautsch (argued), Frank A. Gumina, Brian

A. Price, Wessels & Pautsch Milwaukee, WI, for defen-

dant-appellant in No. 96-2892.

Before POSNER, Chief Judge, and COFFEY and

MANION, Circuit Judges.

POSNER, Chief Judge.

We have consolidated the appeals in two employ-

ment discrimination cases that raise the same two issues:

Are arbitration clauses in collective bargaining agree-

ments other than in the maritime, railroad, and other

transportation industries subject to the Federal Arbitra-

tion Act, 9 U.S.C. §§ 1 et seq.? And can a collective

bargaining agreement compel an employee to arbitrate a

claim that he may have under one of the federal statutes,

such as Title VII of the Civil Rights Act of 1964, the Age

Discrimination in Employment Act, or the Americans

with Disabilities Act, that confer litigable rights on

employees? The first issue is critical to our jurisdiction of

these appeals; the second is the issue on the merits -

which, of course, we can reach only if we satisfy our-

selves that we have jurisdiction.

Each of the two plaintiffs is a former employee of one

of the defendants, and each was discharged by his

employer in alleged violation of federal law. Pryner is

black and complains that he was discharged in violation

App. 4

of Title VII and of 42 U.S.C. § 1981 because of his race and

also because he had complained about Tractor Supply’s

previous racial discrimination against him before he was

fired; he also has a claim under the Americans with

Disabilities Act. Tractor Supply has counterclaimed

against Pryner, but the counterclaim is not involved in

this appeal. Sobierajski complains of having been dis-

charged because of his age (58 at the time of the dis-

charge), in violation of the Age Discrimination in

Employment Act, and because of a disability, in violation

of the ADA.

Both plaintiffs were employed under collective bar-

gaining agreements. The agreement between defendant

Thoesen and Sobierajski’s union, the automobile

mechanics union, provided that “in accordance with

applicable Federal and State law, neither the company

nor the Union will discriminate against employees cov-

ered by this collective bargaining agreement in regard to

any terms or conditions of employment on the basis of

race, creed, religion, national origin, sex or age.” The

agreement between Tractor Supply and Pryner’s union,

the teamsters, contains a similar provision but does not

refer to federal or state law and adds to the prohibition

against discrimination in regard to any “terms or condi-

tions of employment” a prohibition against discrimina-

tion “with respect to hiring [or] compensation.” Both

agreements authorize the employer to impose discipline

on an employee, up to and including discharge, for “just

cause.” And both contain a clause that creates a grievance

procedure, making the union the employee's griever and

culminating in arbitration if the matter is not resolved in

arrestee

App. 5

the earlier stages of the procedure, for disputes involving

“interpretation or application” of the agreement.

Both Sobierajski and Pryner invoked the grievance

procedure in their respective collective bargaining agree-

ments. Pryner’s union struck out at the earlier stages of

the grievance procedure, and has demanded arbitration.

Sobierajski’s grievance, however, was abandoned, though

whether by his own actions or those of the union is

unclear. Pryner and Sobierajski then filed these discrimi-

nation suits, seeking damages (including punitive dam-

ages in the case of Pryner), attorneys’ fees, and

reinstatement. The defendants moved to stay the suits

pending arbitration of the plaintiffs’ claims. The motions

were denied (Pryner’s in Pryner v. Tractor Supply Co., 927

F.Supp. 1140 (S.D.Ind.1996)), and the defendants have

appealed from these denials. Sobierajski may be barred

from seeking arbitration, having failed to exhaust his

remedies. In that event, the stay would be pointless. But

failure to exhaust contractual remedies would presuma-

bly bar his suit if, as the employers argue, the arbitration

clauses in these collective bargaining agreements pre-

clude suits to enforce statutory rights; otherwise the

worker could circumvent the clause by disabling himself

from seeking arbitration. So Thoesen also filed a motion

in the district court to dismiss Sobierajski’s suit, and it

was also denied. The question whether failure to exhaust

the prearbitration grievance procedure would be a bar to

suing is independent of the effect of the arbitration clause

and was not raised in Thoesen’s motion. We express no

view on it.

App. 6

The issue of our appellate jurisdiction is whether

these two appeals are authorized by the Federal Arbitra-

tion Act. The denial of a stay of proceedings before the

court asked to grant the stay is not a final decision within

the meaning of 28 U.S.C. § 1291, but when it is the denial

of a stay of those proceedings pending arbitration it

nevertheless is appealable immediately, at least (and

probably at most, see Central States, Southeast & Southwest

Areas Pension Fund v. Central Cartage Co., 84 F.3d 988,

990-92 (7th Cir.1996)) if the motion is filed under the

arbitration act, which expressly authorizes such appeals.

9 U.S.C. § 16(a)(1)(A). See IDS Life Ins. Co. v. SunAmerica,

Inc., 103 F.3d 524, 526 (7th Cir.1996). The act covers mar-

itime transactions and transactions involving interstate

commerce. 9 U.S.C. § 2. But “contracts of employment of

seamen, railroad employees, or any other class of workers

engaged in foreign or interstate commerce” are speci-

fically excluded by section 1.

If “engaged in foreign or interstate commerce” is

given its usual modern legal meaning, virtually all

employment contracts are within the exclusion, including

the two collective bargaining agreements upon which the

defendants based their motions for a stay. Some courts so

read it. Pritzker v. Merrill Lynch, Pierce, Fenner & Smith,

Inc., 7 F.3d 1110, 1120 (3d Cir.1993); Willis v. Dean Witter

Reynolds, Inc., 948 F.2d 305, 310-12 (6th Cir.1991); Herring

v. Delta Air Lines, Inc., 894 F.2d 1020, 1023 (9th Cir.1989);

United Food & Commercial Workers v. Safeway Stores, Inc.,

889 F.2d 940, 943-44 (10th Cir.1989). Others confine the

exclusion to collective bargaining agreements, as in

United Electrical, Radio & Machine Workers v. Miller Metal

Products, Inc., 215 F.2d 221, 224 (4th Cir.1954); see also

Vl ieee

App. 7

Domino Sugar Corp. v. Sugar Workers Local Union 392, 10

F.3d 1064, 1067 (4th Cir.1993). Others deem the arbitration

act superseded with regard to such agreements by section

301 of the Taft-Hartley Act, 29 U.S.C. § 185 - as did we in

Martin v. Youngstown Sheet & Tube Co., 911 F.2d 1239, 1244

(7th Cir.1990), and the cases cited there. But in Interna-

tional Union of Operating Engineers v. Murphy Co., 82 F.3d

185, 188-89 (7th Cir.1996), we assumed the opposite (that

the arbitration act is not superseded by section 301),

without citing Martin. And in Chicago Typographical Union

v. Chicago Sun-Times, 935 F.2d 1501, 1504 (7th Cir.1991),

decided between Martin and International Union of Operat-

ing Engineers, we had described the issue of supersession

as an open one.

A footnote in United Paperworkers Int'l Union v. Misco,

Inc., 484 U.S. 29, 40 n. 9, 108 S.Ct. 364, 372 n. 9, 98 L.Ed.2d

286 (1987), says that the arbitration act does not apply to

labor arbitration. But the footnote gives no reason; is

inconsistent with the Supreme Court’s subsequent deci-

sion in Gilmer v. Interstate/Johnson Lane Corp., 500 USS. 20,

25 n. 2, 111 S.Ct. 1647, 1651, 114 L.Ed.2d 26 (1991), which

expressly left the question open, and goes on to cite with

apparent approval our decision in Pietro Scalzitti Co. v.

International Union of Operating Engineers, 351 F.2d 576,

579-80 (7th Cir.1965), which, limiting the exclusion of

employment contracts in section 1 to workers engaged in

the physical movement of goods in interstate or foreign

commerce, holds that the arbitration act applies to labor

arbitration in all industries except transportation. See

also Briggs & Stratton Corp. 0. Local 232, 36 F.3d 712,

714-15 (7th Cir.1994); Miller Brewing Co. v. Brewery Workers

Local Union No. 9, 739 ¥.2d 1159, 1162 (7th Cir.1984); Cole

App. 8

v. Burns Int’l Security Services, 105 F.3d 1465, 1469

(D.C.Cir.1997); Asplundh Tree Expert Co. v. Bates, 71 F.3d

592, 596-602 (6th Cir.1995); Erving v. Virginia Squires Bas-

ketball Club, 468 F.2d 1064, 1069 (2d Cir.1972). This is

acknowledged to be the “prevailing view” of the scope of

the exclusion by an opponent. Matthew W. Finkin,

“ ‘Workers’ Contracts’ Under the United States Arbitra-

tion Act: An Essay in Historical Clarification,” 17

Berkeley J. Employment & Labor L. 282, 290 (1996).

But aren’t we on both sides of the issue? We have

cases like Martin that hold that section 301 supersedes

the Federal Arbitration Act, a case that assumes it does

not (International Union of Operating Engineers), and

cases such as Briggs & Stratton that imply not by confin-

ing the exclusion in section 1 to transportation workers

and saying nothing about supersession by section 301.

This internal conflict is, fortunately, illusory. The cases

that say that section 301 supersedes the arbitration act for

cases within section 301’s domain hold (all but Martin

itself and Cleveland v. Porca Co., 38 F.3d 289, 296 n. 5 (7th

Cir.1994)) only that particular provisions of the act, such

as its limitations periods (three months for moving to

vacate an award, one year for enforcing it), are super-

seded, and do not mention the provision allowing inter-

locutory appeals. We shall see that these holdings are

consistent with the act’s being generally applicable to

collective bargaining agreements provided that the

workers covered by the agreement are not engaged in

transportation and federal common law created under the

aegis of section 301 is used to determine any substantive

issues that arise in proceedings to vacate or enforce the

pe ee

App. 9

arbitration award. See, e.g., Glass, Molders, Pottery, Plas-

tics & Allied Workers Int’! Union v. Excelsior Foundry Co., 56

F.3d 844, 848 (7th Cir.1995); Miller Brewing Co. v. Brewery

Workers Local Union No. 9, supra, 739 F.2d at 1162.

Professor Finkin argues that the prevailing view,

which limits the exclusion in section 1 to employment

contracts in transportation, is wrong. His review of the

legislative history (the arbitration act was passed in 1925)

has persuaded him that Congress’s intention was to

exclude all employment contracts. Yet, as he acknowl-

edges, the impetus for the exclusion came entirely from

the seafarers union, concerned that arbitrators would be

less favorably inclined toward seamen’s claims than

judges were. Judges favored such claims, the union

thought, in part because of a tradition that seamen were

“wards in admiralty,” in part because of peculiarities of

maritime law that would make it easy to slip an arbitra-

tion clause into a maritime employment contract without

the seaman’s noticing it, and in part because the maritime

employment relation was already heavily regulated by

federal law. It was soon noticed that the railroad indus-

try’s labor relations were also heavily regulated - by a

statute (the Railway Labor Act) that included provisions

for compulsory arbitration of many disputes. Motor car-

riers were not yet comprehensively regulated, but it may

have seemed (and was) only a matter of time before they

would be: hence the expansion of the exclusion from

seamen to railroad to other transportation workers. It

seems to us, as it did to the Third Circuit in Tenney

Engineering, Inc. v. United Electrical, Radio & Machine

Workers, 207 F.2d 450, 452-53 (3d Cir.1953), that this his-

tory supports rather than undermines limiting “engaged

App. 10

in foreign or interstate commerce” to transportation. To

impress the modern meaning on the quoted term, more-

over, would both make the reference to seamen and rail-

road workers superfluous and give the exclusion a

breathtaking scope. It would mean that an arbitration

clause in an employment contract between a giant multi-

national corporation and its chief executive officer would,

though plausibly “involving” interstate commerce within

the meaning of section 2, not be enforceable in federal

court. Such a result would not answer to any concern

expressed to or by Congress in the debates leading up to

the passage of the arbitration act.

Even if as we believe the collective bargaining agree-

ments in this case are not excluded from the act’s cover-

age by section 1’s reference to employment agreements,

they might be excluded, as some courts believe, by sec-

tion 301 of the Taft-Hartley Act. Section 301(a), which

makes collective bargaining agreements enforceable in

the federal courts, was interpreted in Textile Workers

Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d

972 (1957), to require that principles of federal common

law be developed and used to interpret such agreements.

There is no reference in section 301 to arbitration, which

becomes an issue in a section 301 case only when a

collective bargaining agreement happens to contain (as

most such agreements do) an arbitration clause. The

question is then whether, despite its silence about arbitra-

tion, section 301 repealed the Federal Arbitration Act

with respect to collective bargaining agreements that

would otherwise be within the act’s scope. This seems

hardly likely, quite apart from the venerable but con-

tested principle that repeals by implication are disfavored

App. 11

and so are to be avoided unless there is no way to

reconcile the two statutes. TVA v. Hill, 437 U.S. 153,

189-90, 98 S.Ct. 2279, 2299-2300, 57 L.Ed.2d 117 (1978);

Vaughn v. Sullivan, 83 F.3d 907, 913 (7th Cir.1996); Reich v.

Great Lakes Indian Fish & Wildlife Comm'n, 4 F.3d 490, 493

(7th Cir.1993); Blanco v. United States, 775 F.2d 53, 61 (2d

Cir.1985) (Friendly, J.).

The cases that decline to apply the arbitration act's

three-month statute of limitations to suits under section

301 to set arbitration awards aside (e.g., Sullivan v. Gil-

christ, 87 F.3d 867, 870 (7th Cir.1996); Chauffeurs, Teams-

ters, Warehousemen & Helpers Local Union v. Jefferson

Trucking Co., 628 F.2d 1023, 1025-26 (7th Cir.1980); Harry

Hoffman Printing, Inc. v. Graphic Communications, Int'l

Union, 912 F.2d 608, 610-13 (2d Cir.1990); Champion Int'l

Corp. v. United Paperworkers Int'l Union, 779 F.2d 328, 331

(6th Cir.1985); cf. United Auto. Workers v. Hoosier Cardinal

Corp., 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13, 16

L.Ed.2d 192 (1966)) stand for nothing more than that

while the existence of two statutes both conferring fed-

eral jurisdiction over the same claim in the same case is

not such an anomaly as would justify holding that one or

the other was exclusive, if there are inconsistencies the

courts are going to have to make a choice. See Lander Co.

v. MMP Investments, Inc., 107 F.3d 476, 481 (7th Cir. 1997).

Jurisdictional redundancies are commonplace: a claim

under federal law against a citizen of another state is

within the jurisdiction of the federal courts under both 28

U.S.C. § 1331 and 28 U.S.C. § 1332, provided the claim is

for more than $75,000. It is true, as mentioned in Lander

and emphasized in Harry Hoffman Printing, Inc. v. Graphic

Communications, Int'l Union, supra, 912 F.2d at 611-12,

App. 12

that the arbitration act reaches only disputes that are

within the jurisdiction of the federal courts under some

other statute, such as the diversity statute or, as here,

section 301 of the Taft-Hartley Act. But all that this

means, so far as the jurisdictional issue in the present

cases is concerned, is that whenever the arbitration act is

properly invoked there are two jurisdictional statutes in

play. That is not an argument for refusing to apply one of

them. And if the arbitration act is better regarded not as a

source of jurisdiction at all but merely as a prescription of

procedures for a class of cases otherwise within federal

jurisdiction, this would actually strengthen the argument

against deeming the act superseded by the presence of a

“truly” jurisdictional statute such as section 301.

The arbitration act covers almost the whole fieid of

arbitrable disputes, only a subset of which (and a small

one in 1925) grow out of collective bargaining agree-

ments. The act’s limitations periods were not designed

with such agreements in mind, and may not suit them.

When the question arose what the statute of limitations

should be in suits under section 301 to challenge arbitra-

tion awards based on such agreements (the statute con-

tains no limitations period), the courts cast about for

analogous claims from which to “borrow” a limitations

period. In so doing they did not hold that section 301 had

repealed the arbitration act so far as collective bargaining

agreements were concerned; and wherrin 1988, long after

section 301 had been enacted, Congress amended the

arbitration act to make denials of stays pending arbitra-

tion expressly appealable despite the absence of finality,

it did not carve an exception for arbitration pursuant to

collective bargaining agreements. Judicial Improvements

App. 13

and Access to Justice Act, Pub.L. No. 100-702, 102 Stat.

4671 (1988). That may have been an oversight, but we

suspect not; for no reason is suggested why, if immediate

appeals of denials of such stays are a good thing with

respect to the arbitration of other types of dispute, they

are a bad thing when the dispute is a labor dispute. If

anything, the public interest in resolving labor disputes

by arbitration, and therefore in allowing erroneous

refusals to defer to arbitration to be corrected promptly, is

greater than in an ordinary commercial arbitration.

seid is ——

The big thing that section 301 did (besides creating

federal jurisdiction over suits to enforce collective bar-

gaining agreements), so far as labor arbitration is con-

cerned, was to ordain the creation of a body of federal

common law to govern disputes arising out of such arbi-

tration. Included in that body are limitations periods,

which by analogy to the substance-procedure distinction

4 worked out in the wake of the Erie decision fall on the

substantive side of the divide. Guaranty Trust Co. v. York,

326 U.S. 99, 109-10, 65 S.Ct. 1464, 1469-70, 89 L.Ed. 2079

(1945). The question whether a particular type of inter-

locutory order is immediately appealable, however, is a

quintessentially procedural question to which the Federal

Arbitration Act provides an answer that creates no ten-

sion with anything in either section 301 or the common

law of collective bargaining agreements that has evolved

under it; that in fact effectuates the policy of section 301,

which is to encourage the resolution of labor disputes by

means other than industrial warfare - and arbitration is

prominent among those means.

ee eee ee es

Our resolution of the jurisdictional issue can be crit-

icized as creating an arbitrary difference between the

PAIRUIED 2 BGR A bi 8 ae eed Saban aA Sov Repeat es ett ina eS tai SE rn OLN

ee tee

) App. 14

appeal rights of parties to employment contracts, includ-

ing collective bargaining agreements, in nontransporta-

tion industries and the corresponding appeal rights of

parties to collective bargaining agreements and other

employment contracts in transportation. Parties to

employment contracts in other industries can appeal from

orders denying stays pending arbitration. Parties to

employment contracts in the transportation industries

cannot because, excluded from the Federal Arbitration

Act by section 1, they cannot rely on section 16; and

section 301 of the Taft-Hartley Act has no provision,

corresponding to that section, authorizing interlocutory

appeals. We need not consider the likely success of efforts

to construct a right to take such an appeal from other

statutes, such as 28 U.S.C. § 1292(a)(1), or from judge-

made doctrines of appealability such as the collateral-

order doctrine; let us assume for the sake of argument

that they would fail. The resulting anomaly (different

treatment of labor arbitration in transportation versus

nontransportation industries) would be the unavoidable

consequence of an interpretation of section 1 of the arbi-

tration act that differentiates between employment con-

tracts in the transportation and nontransportation sectors,

and that is a distinction to which this court is committed.

Another anomaly concerns the specific statutes of

limitations that the courts have borrowed for use in sec-

tion 301 arbitration cases. Always these are statutes of

limitations applicable to arbitration awards rather than

anything specially to do with labor. See, e.g., Sullivan v.

Gilchrist, supra, 87 F.3d at 870. We have even borrowed

App. 15

from arbitration statutes that are inapplicable to collec-

tive bargaining contracts! Stevens v. Gateway Transporta-

tion Co., 696 F.2d 500, 502 (7th Cir.1982); Hemmings v.

Barian, 822 F.2d 688, 690 (7th Cir.1987). Why should a

state statute of limitations for arbitration cases be thought

more apt to section 301 than the statute of limitations in

the Federal Arbitration Act? We cannot find an answer in

the cases and are given additional pause by the decisions

that say, Hygrade Operators, Inc. v. Local 333, 945 F.2d 18,

22 (2d Cir.1991), or more commonly assume, Local 232 v.

Briggs & Stratton Corp., 837 F.2d 782, 788-89 (7th Cir.1988);

Evans v. Einhorn, 855 F.2d 1245, 1246 (7th Cir.1988) (per

curiam), that disputes growing out of labor arbitration

arise under section 301, without mentioning the arbitra-

tion act. But American law is rarely as clear as one might

like; and for the reasons that we explained earlier, we

think the better view is that we do have jurisdiction of

these appeals under section 16 of the arbitration act. So

we may turn at last to the issue on the merits, which is

whether a collective bargaining agreement can compel

the arbitration of a federal antidiscrimination claim.

Two competing interests have to be considered. One

is the interest in allowing unions and employers to estab-

lish a comprehensive regime for the adjustment of

employment disputes; it argues for allowing the collec-

tive bargaining agreement to force all such disputes into

the grievance and arbitration groove even when the dis-

pute arises out of a claim that a worker’s statutory rights

have been infringed. The other is the interest in the

effective enforcement of rights designed for the protec-

tion of workers whom Congress has classified as belong-

ing to vulnerable groups, generally and in these two

App. 16

cases minority groups — blacks, the disabled, and the

aged (though whether persons 40 years old and older, the

group protected by the age discrimination law, should be

considered a vulnerable segment of the population may

certainly be questioned as an original matter). That inter-

est will be impaired if the right to bring suit in federal

district court to enforce these rights is taken away from

the workers.

Or will it? The employers in our two cases, sup-

ported by employer groups that have filed amicus curiae

briefs, argue that the workers will actually be better off if

the employers’ position is adopted. Because the Equal

Employment Opportunity Commission has an enormous

backlog and limited resources for litigating, the vast

majority of workers who have claims under any of the

statutes that the Commission enforces have perforce to

bring and finance their own lawsuits; they cannot rely on

the Commission to do so for them. In contrast, a griev-

ance is prosecuted by the worker’s collective bargaining

representative (the union) at no cost to the worker. It is

true that the plaintiffs in these cases do not wish to

abandon their right to invoke the grievance machinery

created by the collective bargaining agreements; they just

want the option of pursuing judicial remedies on top of

or in lieu of their arbitral remedies. But unless the arbitral

remedy is exclusive, the company’s incentive to agree to

negotiate an arbitration clause broad enough to encom-

pass statutory violations will be reduced, as the only

effect of such a clause will be to multiply the employee’s

remedies.

The employers emphasize that these collective bar-

gaining agreements do not take away any of the workers’

App. 17

substantive statutory rights, but merely substitute an

arbitral for a judicial proceeding as the means of vindicat-

ing the rights. Although the arbitrator’s award, whether

or not confirmed, 4 Ian R. Macneil, Richard E. Speidel &

Thomas J. Stipanowich, Federal Arbitration Law § 39.6

(1994); G. Richard Shell, “Res Judicata and Collateral

Estoppel Effects of Commercial Arbitration,” 35 UCLA

L.Rev. 623, 642 (1988), can — this is implicit in the notion

of binding arbitration — be pleaded as res judicata in the

worker’s federal district court suit, Rudell v. Comprehen-

sive Accounting Corp., 802 F.2d 926, 930 (7th Cir.1986); Wolf

v. Gruntal & Co., 45 F.3d 524, 528 (1st Cir.1995); Greenblatt

v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1360 (11th

Cir.1985); American Law Institute, Restatement (Second)

of Judgments § 84(1) (1982), subject to limitations unnec-

essary to dwell on here, id., §§ 84(2)-(4), this is true if the

worker wins before the arbitrator as well as if he loses. So

there is no curtailment of his substantive rights. The only

difference is the forum; the defendants are right. The

plaintiffs riposte that it isn’t clear that the collective bar-

gaining agreements in our two cases are completely coex-

tensive with the plaintiffs’ statutory rights; and it isn't.

But a court can properly stay a suit before it if any issue

in the suit is arbitrable, even if some issues are not. The

arbitration act says in fact that the court shall stay the

suit, not just a piece of the suit, if the suit is “brought

upon” an arbitrable issue, 9 U.S.C. § 3, though the cases,

perhaps concerned lest the tail wag the dog, treat the

question whether to stay the entire case as discretionary

in cases involving both arbitrable and nonarbitrable

issues. American Recovery Corp. v. Computerized Thermal

Imaging, Inc., 96 F.3d 88, 96-97 (4th Cir.1996); McCarthy v.

App. 18

Azure, 22 F.3d 351, 361 (1st Cir.1994); Genesco, Inc. v. T.

Kakiuchi & Co., 815 F.2d 840, 856 (2d Cir.1987); 2 Macneil,

Speidel & Stipanowich, supra, § 23.3.1, pp. 23:12-:13. This

interpretation was assumed in Dean Witter Reynolds Inc. v.

Byrd, 470 U.S. 213, 218-19 and n. 5, 105 S.Ct. 1238, 1241-42

n. 5, 84 L.Ed.2d 158 (1985), though in the context of issues

nonarbitrable as a matter of law, as distinct from those

the parties may just not have agreed to arbitrate.

The defendants concede that to the extent that the

rights conferred by the collective bargaining agreements,

or the sanctions available to the arbitrators, fall short of

fully vindicating the plaintiffs’ substantive and remedial

statutory rights, the plaintiffs will be free to resume their

suits after the arbitrators render their awards, having

filed the suits within the statute of limitations. But the

findings made by the arbitrators might be entitled to

collateral estoppel effect in the resumed suits. Benjamin v.

Traffic Executive Ass’n Eastern Railroads, 869 F.2d 107, 110

(2d Cir.1989). We say “might” to emphasize the readiness

of courts to deny that effect to arbitral awards when the

arbitrator has failed to explain his findings adequately or

to follow procedures likely to lead to reliable findings —

“adequacy” and “reliability” being relative to the impor-

tance of the claim that the arbitrator’s findings are sought

to be used to block. Dean Witter Reynolds Inc. v. Byrd,

supra, 470 U.S. at 222-23, 105 S.Ct. at 1243-44; McDonald v.

City of West Branch, 466 U.S. 284, 289, 104 S.Ct. 1799,

1802-03, 80 L.Ed.2d 302 (1984); Kulavic v. Chicago & Illinois

Midland Ry., 1 F.3d 507, 513-15 (7th Cir.1993); Universal

American Barge Corp. v. J-Chem, Inc., 946 F.2d 1131, 1137

(Sth Cir.1991).

App. 19

The honey-tongued assurances of the employers’ able

counsel and their amici, unusually and perhaps oppor-

tunistically aligned with the unions’ interest in control-

ling their members’ access to remedies, do not persuade

us that there is no genuine conflict between employer and

employee interests in these cases. The plaintiffs’ rights

under the collective bargaining agreements are not as

extensive as their statutory rights, so that to obtain com-

plete relief they may have to undergo two trials, one

before the arbitrator and the other in the district court.

And by being forced into binding arbitration they would

be surrendering their right to trial by jury - a right that

civil rights plaintiffs (or their lawyers) fought hard for

and finally obtained in the 1991 amendments to Title VII,

and that they also have under the age discrimination and

disability acts.

Most important, the grievance and arbitration pro-

cedure can be invoked only by the union, and not by the

worker. The worker has to persuade the union to pros-

ecute his grievance and if it loses in the early stages of the

grievance proceedings to submit the grievance to arbitra-

tion. Vaca v. Sipes, 386 U.S. 171, 190-91, 87 S.Ct. 903,

916-17, 17 L.Ed.2d 842 (1967); cf. Martin v. Youngstown

Sheet & Tube Co., supra, 911 F.2d at 1244. The defendants

point out that if the union arbitrarily refuses to prosecute

a grievance, let alone refuses on racial or other invidious

grounds to do so, the worker can bring a suit against the

union for breach of its duty of fair representation of all

members of the bargaining unit. DelCostello v. Teamsters,

462 U.S. 151, 164, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476

(1983); Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1176

(7th Cir.1995); Conn v. GATX Terminals Corp., 18 F.3d 417,

App. 20

420 (7th Cir.1994); LaBuhn v. Bulkmatic Transport Co., 865

F.2d 119, 120 (7th Cir.1988); Trnka v. Local Union No. 688,

30 F.3d 60, 61 (7th Cir.1994). This raises the spectre of

three suits to enforce a statutory right — the suit against

the union to force it to grieve and if necessary arbitrate

the grievance, the arbitration proceeding, and the

resumed district court proceeding if the workers’ rights

under the collective bargaining agreement are more lim-

ited than their statutory rights. In any event, the union

has broad discretion as to whether or not to prosecute a

grievance. It may take into account tactical and strategic

factors such as its limited resources and consequent need

to establish priorities, just as other “prosecutors” must

do, as well as its desire to maintain harmonious relations

among the workers and between them and the employer.

Vaca v. Sipes, supra, 386 U.S. at 191-92, 87 S.Ct. at 917-18;

Cole v. Burns Int’l Security Services, supra, 105 F.3d at 1479;

Garcia v. Zenith Electronics Corp., supra, 58 F.3d-at 1176;

Kulavic v. Chicago & Illinois Midland Ry., supra, 1 F.3d at

515. Corresponding to this expansive and ill-defined dis-

cretion, the scope of judicial review of its exercise is

deferential. See, e.g., Air Line Pilots Ass'n v. O'Neill, 499

U.S. 65, 78, 111 S.Ct. 1127, 1135-36, 113 L.Ed.2d 51 (1991);

Trnka v. Local Union No. 688, supra, 30 F.3d at 61; Nida v.

Plant Protection Ass’n National, 7 F.3d 522, 526 (6th

Cir.1993). The result is that a worker who asks the union

to grieve a statutory violation cannot have great confi-

dence either that it will do so or that if it does not the

courts will intervene and force it to do so. While the

grievance machinery could in principle offer the worker a

cheaper alternative to suing, it seems unlikely that the

union would be any more willing to prosecute a marginal

PREETI EE IF) BES 85)

pe Ie ee

App. 21

case than a lawyer asked to handle it on a contingent-fee

basis. Indeed, the union might for strategic reasons

decline to prosecute a claim that would have enough

merit to enable the worker to retain a lawyer on a contin-

gent-fee basis were the worker not bound to the union.

The essential conflict is between majority and minor-

ity rights. The collective bargaining agreement is the

symbol and reality of a majoritarian conception of

workers’ rights. An agreement negotiated by the union

elected by a majority of the workers in the bargaining

unit binds all the members of the unit, whether they are

part of the majority or for that matter even members of

the union entitled to vote for union leaders — they need

not be. The statutory rights at issue in these two cases are

rights given to members of minority groups because of

concern about the mistreatment (of which there is a long

history in the labor movement, see, e.g., Steele v. Louisville

& Nashville R.R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173

(1944)) of minorities by majorities. We may assume that

the union will not engage in actionable discrimination

against minority workers. But we may not assume that it

will be highly sensitive to their special interests, which

are the interests protected by Title VII and the other

discrimination statutes, and will seek to vindicate those

interests with maximum vigor. The employers’ position

delivers the enforcement of the rights of these minorities

into the hands of the majority, and we do not think that

this result is consistent with the policy of these statutes or

justified by the abstract desirability of allowing unions

and employers to cut their own deals. And we are given

no reason to believe that the ability of unionized workers

to enforce their statutory rights outside of the grievance

App. 22

machinery established by collective bargaining agree-

ments is undermining labor relations.

The defendants cite provisions_added in the early

1990s to Title VII, the Age Discrimination in Employment

Act, and the Americans with Disabilities Act that “where

appropriate and to the extent authorized by law, .. . arbi-

tration . . . is encouraged to resolve disputes arising

under” these laws. Pub.L. No. 102-166, § 118, 105 Stat.

1071, 1081 (1991); 42 U.S.C. § 12212. These provisions, a

polite bow to the popularity of “alternative dispute reso-

lution” and perhaps a mild sop to the judiciary, which has

expressed alarm at Congress’s relentless expansion of the

jurisdiction of the federal courts, encourage arbitration

“where appropriate” — and if we are right it is not appro-

priate when it is not agreed to by the worker but instead

is merely imposed by a collective bargaining agreement

that he may have opposed. Nothing in the background of

the amendments is inconsistent with this interpretation. It

would be at least a mild paradox for Congress, having in

another amendment that it made to Title VII in 1991

conferred a right to trial by jury for the first time, Pub.L.

No. 102-166, § 102, § 1977A(c), 105 Stat. 1071, 1073 (1991),

to have empowered unions, in those same amendments,

to prevent workers from obtaining jury trials in these

cases. We know that statutes, being products of compro-

mise, frequently reflect inconsistent aims. But if that is

the case here, we might expect to find a hint of it in the

statutory language or design, or in the legislative history,

but we find none.

We are not holding that workers’ statutory rights are

never arbitrable. They are arbitrable if the worker con-

sents to have them arbitrated. If the worker brings suit,

;

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App. 23

the employer suggests that their dispute be arbitrated,

the worker agrees, and the collective bargaining agree-

ment does not preclude such side agreements, there is

nothing to prevent a binding arbitration. Austin v. Owens-

Brockway Glass Container, Inc., 78 F.3d 875, 879 (4th

Cir.1996); American Italian Pasta Co. v. Austin Co., 914 F.2d

1103, 1104 (8th Cir.1990); Gardner v. Shearson, Hammill &

Co., 433 F.2d 367 (5th Cir.1970) (per curiam); Moran v.

Paine, Webber, Jackson & Curtis, 389 F.2d 242, 246 (3d

Cir.1968). All we are holding is that the union cannot

consent for the employee by signing a collective bargain-

ing agreement that consigns the enforcement of statutory

rights to the union-controlled grievance and arbitration

machinery created by the agreement.

Thus far we have analyzed the arbitrability of the

disputes in these two cases without reference to the pre-

cedents that might be thought to govern the issue, even

though the hundreds of pages of briefs are devoted to

little else. That in itself is a sign that case law is unlikely

to be dispositive of the issue. The authority of a previ-

ously decided case is at its greatest when it is apparent

that the case does not. differ in any material particular

from the case in which it is cited as authority; and to

show the absence of a material difference usually is easy.

When instead a lawyer tries to create a mosaic of case

authority from a large number of previous cases all dis-

tinguishable from the present one, what purports to be an

investigation of case law is really a quest for policies or

principles that can be found in the previous cases and are

thus legitimate factors to guide the decision of a new

case. Those factors we have discussed. Both sides of these

appeals also are able to cite a case or two that squarely

App. 24

support their position — cases that really do not differ in

any material particular from the present one —- but in

doing so all they have done is identify a circuit split.

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

supra, 78 F.3d at 885, with Varner v. National Super Mar-

kets, Inc., 94 F.3d 1209, 1213 (8th Cir.1996).

Each side has its favorite Supreme Court case that it

has flogged mercilessly to yield the desired holding. Alex-

ander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39

L.Ed.2d 147 (1974), arose out of a Title VII suit like

Pryner’s brought by a black employee against his

employer. The employee was a member of a bargaining

unit represented by a union that had negotiated a collec-

tive bargaining agreement materially identical to that in

Pryner’s case. His claim was pressed by the union in a

grievance proceeding that eventuated in arbitration, and

the arbitrator found that Alexander had been discharged

_for just cause, which in the employer’s view precluded a

Title VII suit. The Supreme Court disagreed. It held that

the arbitration of a contractual right not to be discrimi-

nated against does not preclude enforcement of a statu-

tory right. This is not quite the same thing as holding that

the worker does not have to go through the arbitration

process. But as we mentioned earlier, the parties to our

cases all assume that if Pryner and Sobierajski must go

through arbitration they also must abide by its result,

though one possible result is the arbitrators’ concluding

that they lack authority under the collective bargaining

agreements to render complete, or perhaps any, relief, in

which event there would be room for further litigation.

SOP Ata whens fe ee,

SEAMED IO BE IR PAGO DE LOL LEE TSE

WD EAA PR

App. 25

By stressing, somewhat formalistically it might seem,

the “distinctly separate nature” of contractual and statu-

tory rights, 415 U.S. at 50, 94 S.Ct. at 1020-21, the

Supreme Court sowed the possibility of distinguishing

Sobierajski’s case. For his collective bargaining agreement

mentions federal and state law and could therefore be

deemed consent to the arbitrators’ enforcing statutory as

well as contractual rights. The defendants note this, but

put most of their weight on the Supreme Court’s subse-

quent decision in Gilmer v. Interstate/Johnson Lane Corp.,

supra. Gilmer, a stockbroker, signed a registration agree-

ment with the New York Stock Exchange (that is, an

agreement that permitted him to register as a broker with

the exchange) in which he consented to the arbitration of

any dispute arising out of his employment by a member

of the exchange. Later he claimed that his employer had

discriminated against him in violation of the Age Dis-

crimination in Employment Act. The Court held that he

had to submit his claim of age discrimination to arbitra-

tion. Although the arbitration clause was not in the

employment contract (if it had been the Court would

have had to decide the applicability of the Federal Arbi-

tration Act to nontransportation employment contracts),

but in the registration agreement to which the employer

was not a party, the employer had required Gilmer to

sign the registration agreement as a condition of his

employment.

Although the Court did not overrule Alexander, it did

say that the mistrust of the arbitral process that had

permeated that opinion had been “undermined” by sub-

sequent decisions evincing a positive attitude toward

arbitration. 500 U.S. at 34 n. 5, 111 S.Ct. at 1656 n. 5. It

App. 26

also distinguished Alexander from Gilmer’s case on three

grounds. The first was that the arbitration in Alexander

had “occurred in the context of a collective-bargaining

agreement,” creating a “tension between collective repre-

sentation and individual statutory rights.” Id. at 35, 111

S.Ct. at 1657. An attenuated version of that tension was

present in Gilmer itself, because Gilmer’s employer had

forced him as a condition of his employment to sign a

nonnegotiable form contract with the New York Stock

Exchange that contained an arbitration clause. But

Gilmer’s access to arbitration, if a dispute arose, was not

controlled by a union, or any other entity or individual.

At all events the Court treated his situation as being

different from Alexander’s.

The second distinction drawn in Gilmer was that the

issue in the earlier case had been the preclusive effect of

an arbitration award concerning a contractual right on

the litigation of a statutory right, rather than (as in

Gilmer) the enforceability of the agreement to arbitrate

the statutory claim. The third distinction was that Alex-

ander had not been decided under the Federal Arbitration

Act. This was not to say that the act had been totally

inapplicable, but only that, as we saw earlier, substantive

issues in suits that are within the scope of both the

arbitration act and section 301 of the Taft-Hartley Act are

governed by section 301. So the third ground of distinc-

tion ties back to the first, and like the first puts our two

cases on the Alexander side of the line - while the second

distinction seems to be a distinction without a difference,

since the Court assumed, consistent with what we said

earlier about the preclusive effects of arbitration awards,

that Gilmer could not bring an age discrimination suit if

;

App. 27

he lost the arbitration proceeding. 500 U.S. at 28, 111 S.Ct.

at 1653. But for what the distinction is worth, it tugs our

cases a little closer to Gilmer, since here as there the issue

is the enforceability of the arbitration clause in a collec-

tive bargaining agreement rather than the effect of the

award in an arbitration of a contractual right on the right

to sue to enforce a statutory right.

On balance our case is closer to Alexander; but is

enough left of Alexander to compel a decision in favor of

the plaintiffs? Only the Supreme Court can answer that

question; and we are timid about declaring decisions by

the Supreme Court overruled when the Court has not

said so. Khan v. State Oil Co., 93 F.3d 1358, 1364 (7th

Cir.1996), cert. granted, __ U.S. __, 117 S.Ct. 941, 136

L.Ed.2d 831 (1997). The conservative reading of Gilmer is

that it just pruned some dicta from Alexander — and it

certainly cannot be taken to hold that collective bargain-

ing agreements can compel the arbitration of statutory

rights. That issue was not before the Court or discussed

by it. The Court may have so distinguished Alexander as

to deprive it of any authoritative force; but that is the

most it did and by doing so opened what till then had

been a closed issue. It did not resolve the issue, which for

the reasons stated earlier we believe should be resolved

in favor of the plaintiffs’ right to sue. The district judges

were therefore right to deny the defendants’ motions for

stays of the judicial proceedings pending arbitration.

AFFIRMED.

App. 28

Vincent L. PRYNER,

Plaintiff/Counterclaim-Defendant,

Vv.

TRACTOR SUPPLY COMPANY, INC.

Defendant/Counterclaim-Plaintiff.

No. IP 95-211-C-T/G.

United States District Court,

S.D. Indiana,

Indianapolis Division.

May 28, 1996.

Former employee brought action against employer,

alleging Title VII race discrimination, disability discrimi-

nation in violation of Americans with Disabilities Act

(ADA), and Title VII retaliatory discharge. Employer

counterclaimed that employee and coemployee conspired

to deprive various employees of equal protection of the

laws in violation of civil rights statute. Employer moved

for summary judgment or, in the alternative, to stay pro-

ceedings pending arbitration. The District Court, Tinder,

J., held that, even assuming provisions of Federal Arbitra-

tion Act applied, neither employee’s prior arbitration

under his collective bargaining agreement of claims now

brought before court, nor his failure to previously arbi-

trate said claims, had any bearing upon his right to

enforce statutory rights now asserted.

Motion denied.

Bobby Allen Potters, Indianapolis, IN, for Plaintiff.

Tc: keh det deheee ean heeds ae

eR,

App. 29

Charles W. Pautsch, Wessels & Pautsch, Milwaukee,

WI, for Defendant.

Entry Regarding Defendant’s Motion for Summary

Judgment or, In the Alternative, to Stay Proceedings

Pending Arbitration

TINDER, District Judge.

This matter comes before the court upon Defendant

Tractor Supply Company’s (“TSC”) motion for summary

judgment or, in the alternative, motion to stay proceed-

ings pending arbitration. The court, having considered

the motion and the submissions of the parties, finds that

the Defendant’s motion for summary judgment with

respect to the remainder of the Plaintiff’s claims or, in the

alternative, to stay the proceedings pending arbitration

should be DENIED for the reasons set forth below.

I. Background Facts and Procedural History

The Plaintiff, Vincent L. Pryner (“Pryner”), was

employed by TSC at its warehouse facility in Indi-

anapolis, Indiana from September 13, 1985 until his termi-

nation on February 22, 1996. Following a sixty-day

probationary period at the beginning of his employment,

the terms and conditions of Pryner’s employment have

been governed by a succession of collective-bargaining

agreements (“CBA”) between TSC and Chauffeurs, Team-

sters, Warehousemen and Helpe Lecal Union No. 135

(the “Union”). Details of Pry - <aily work history

were not provided, but there were no indications of any

App. 30

problems until Pryner’s allegations that he had been sub-

jected to a racially-hostile work environment since Janu-

ary 1992.

The CBA relevant to the period at issue in the case at

bar contains a “Grievance and Arbitration Procedure” for

the resolution of any disputes “involving interpretation

or application of the provisions of this Agreement.”

(Def.’s Ex. 3 at 14.) Said procedure provides for a three

step grievance adjustment process followed by arbitra-

tion which is “final and binding on both parties.” (Id. at

16.) The CBA also contains the following “miscellaneous”

provisions relevant to the instant inquiry:

Section 2 — No Discrimination

The Company agrees that it will not discrimi-

nate against any associate for employment for or

on account of his affiliation or activities with the

Union. The Company and Union agree not to

discriminate against any individual with respect

to hiring, compensation, terms or conditions of

employment because of an individual’s race,

color, religion, age, sex, or national origin. Nor

will the Company limit, segregate or classify

associates in any way to deprive any individual

associate of employment opportunities because

of race, color, religion, age, sex, veteran or

national origin.

Section 3 — The Americans With Disabilities Act

(ADA)

Due to the Americans with Disabilities Act or

the regulations promulgated thereunder, the

Company may be required to make a reasonable

accommodation to the disability of an applicant

or incumbent associate that may be in conflict

220 ON Ee

ap iene eis i ANGIE TES PO

aaieS ahenory

(Id.

App. 31

with provisions of this Agreement. In such

event, the Company shall be privileged to make

such accommodation notwithstanding the

requirements of this Agreement. The Company

shall notify the Union thereafter as soon as is

practicable of such situation on a confidential

basis.

at 25.)

On February 17, 1995, Pryner filed the instant com-

plaint against TSC, which was amended with leave of the

court on July 12, 1995. Count I of the amended complaint

alleges that TSC discharged Pryner from his employment

on the basis of his race in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII")

and 42 U.S.C. § 1981; Count II alleges that Pryner was

discharged from his employment on the basis of his dis-

ability in violation of the ADA; and Count Ill alleges that

TSC retaliated against Pryner for having filed a complaint

of discrimination, also in violation of Title VII.’ In its

answer, TSC counterclaimed that Pryner and James A.

Motley, another TSC employee, conspired to deprive var-

ious TSC employees of the equal protection of the laws in

violation of 42 U.S.C. § 1985(3).

On April 4, 1994, the Defendant moved for summary

judgment or, in the alternative, a stay of the instant action

pending arbitration of the Plaintiff's complaints, on the

ground that the mandatory arbitration provisions of the

CBA divest this court of subject matter jurisdiction in this

1 It is expected that the Plaintiff will again move to amend

his complaint to include a count regarding his most recent

discharge. However, said event is not presently before the court.

App. 32

case. The matter has been fully briefed and is now ripe

for adjudication.

Il. Summary Judgment Standard

The Seventh Circuit stated the standard for summary

judgment in Howland v. Kilquist, 833 F.2d 639 (7th

Cir.1987).

Fed.R.Civ.P. 56(c) provides that a district court

shall grant summary judgment “if the pleadings,

depositions, answers to interrogatories, and

admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to

any material fact and that the moving party is ©

entitled to judgment as a matter of law.” When

the facts are disputed, the parties must produce

proper documentary evidence to support their

contentions, and may not rest on mere allega-

tions in the pleadings, Posey v. Skyline Corp., 702

F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960,

104 S.Ct. 392, 78 L.Ed.2d 336 (1983), or upon

conclusory statements in affidavits. First Com-

modity Traders v. Heinold Commodities, Inc., 766

F.2d 1007, 1011 (7th Cir.1985). In reviewing a

grant of summary judgment, all reasonable

inferences from the evidence presented must be

drawn in favor of the opposing party. Matsushita

Elecs. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d

538 (1986). ... The mere existence of a factual

dispute will not bar summary judgment unless

“the disputed fact is outcome determinative

under governing law.” Egger v. Phillips, 710 F.2d

App. 33

292, 296 (7th Cir.) (en banc), cert. denied, 464 US.

918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).

Id. at 642.

The Supreme Court further clarified the scope of

Federal Rule of Civil Procedure 56 in Celotex Corp. v.

Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)

and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986). In Celotex, the Court held that

the initial burden is on the moving party to demonstrate

“with or without affidavits” the absence of genuine issues

of material fact and that, absent such material facts, judg-

ment should be granted as a matter of law in the moving

party’s favor. 477 U.S. at 323, 106 S.Ct. at 2552-53. Once

the moving party has met its burden, the opposing party

must “go beyond the pleadings” and designate specific

facts to support or defend each element of the claim,

demonstrating a genuine issue for trial. Celotex, 477 U.S.

at 322-23, 106 S.Ct. at 2552-53; Becker v. Tenenbaum-Hill

Assocs., Inc., 914 F.2d 107, 110 (7th Cir.1990). Not every

factual dispute creates a barrier to summary judgment,

“[o]nly disputes over facts‘that might affect the outcome

of the suit under the governing law will properly pre-

clude the entry of summary judgment. Factual disputes

that are irrelevant or unnecessary will not be counted.”

Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

III. Discussion

The crux of the Defendant’s argument is that the

decision of the United States Supreme Court in Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647,

114 L.Ed.2d 26 (1991), requires a finding that Pryner’s

App. 34

sole remedy in this proceeding is the arbitration to which

he agreed in the CBA. In support of this argument, the

Defendant points to the recent decision of the Court of

Appeals for the Fourth Circuit in Austin v. Owens-Brock-

way Glass Container, Inc., 78 F.3d 875 (4th Cir.1996).

In addressing this issue, the court must begin with

the Supreme Court’s unanimous decision in Alexander v.

Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d

147 (1974). In Gardner-Denver, the plaintiff, an African-

American union member employed pursuant to a collec-

tive-bargaining agreement, claimed that his discharge by

the defendant was the result of racial discrimination. The

~~ plaintiff initially filed a grievance under the broad arbi-

tration provisions of his collective-bargaining agreement.

Prior to the arbitration hearing, the plaintiff filed a charge

of racial discrimination with the Colorado Civil Rights

Commission, which referred the complaint to the Equal

Employment Opportunity Commission (“EEOC”). Id. at

38-42, 94 S.Ct. at 1015-17.

The arbitrator ruled that the plaintiff had been “dis-

charged for just cause.” Thereafter, the EEOC determined

that no reasonable cause existed to support a finding that

any violation of Title VII had occurred and issued the

plaintiff a right to sue letter. The plaintiff subsequently

filed an action in federal court alleging that his discharge

had resulted from a racially-discriminatory employment

practice in violation of Title VII. Gardner-Denver, 415 U.S.

at 42-43, 94 S.Ct. at 1016-17.

The district court granted the defendant’s motion for

summary judgment and dismissed the action. “The court

found that the claim of racial discrimination had been

an soe ert Ra ec as i epee i ae alin bs Cota rent

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App. 35

submitted to the arbitrator and resolved adversely to [the

plaintiff]. It then held that [the plaintiff], having volun-

tarily elected to pursue his grievance to final arbitration

under the nondiscrimination clause of the collective-bar-

gaining agreement, was bound by the arbitral decision

and thereby precluded from suing his employer under

Title VII.” Gardner-Denver, 415 U.S. at 43, 94 S.Ct. at 1017.

The Tenth Circuit affirmed the decision of the district

court. Id.

In reversing, the Supreme Court noted that the griev-

ance procedure in the collective-bargaining agreement

was intended to vindicate the plaintiff’s contractual

rights, while Title VII created an independent statutory

right to be free from racial discrimination. Gardner-

Denver, 415 U.S. at 49-50, 94 S.Ct. at 1020-21. The Court

then stated that “[t]he distinctly separate nature of these

contractual and statutory rights is not vitiated merely

because both were violated as a result of the same factual

occurrence. And certainly no inconsistency results from

permitting both rights to be enforced in their respectively

appropriate forums.” Id. at 50, 94 S.Ct. at 1020. The Court

held that “the federal policy favoring arbitration of labor

disputes and the federal policy against discriminatory

employment practices can best be accommodated by per-

mitting an employee to pursue fully both his remedy

under the grievance-arbitration clause of a collective bar-

gaining agreement and his cause of action under Title

VIL.” Id. at 59-60, 94 S.Ct. at 1025.

The next major element in the analysis is the Court's

subsequent decision in Gilmer. In Gilmer, the plaintiff was

required, by his employer, to register as a securities rep-

resentative with, among others, the New York Stock

App. 36

Exchange (“NYSE”). The plaintiff’s registration applica-

tion with the NYSE contained an agreement to arbitrate

when so required by the NYSE rules and those _rules

provided for arbitration of any controversy arising out of

a registered representative’s employment or termination

of employment. 500 U.S. at 23, 111 S.Ct. at 1650-51.

The defendant terminated Gilmer at age sixty-two.

Thereafter, Gilmer filed a charge with the EEOC alleging

that he had been discharged because of his age in viola-

tion of the Age Discrimination in Employment Act of

1967 (“ADEA”). The defendant moved to compel arbitra-

tion of the matter in accordance with the arbitration

agreement in Gilmer’s NYSE registration application and

the Federal Arbitration Act (“FAA”). Relying upon Gard-

ner-Denver, the district court denied the defendant’s

motion and the Court of Appeals for the Fourth Circuit

reversed. Gilmer, 500 U.S. at 23-24, 111 S.Ct. at 1650-51.

In affirming the decision of the Fourth Circuit, the

Supreme Court first noted that statutory claims may be

the subject of an arbitration agreement enforceable under

the FAA and that, “by agreeing to arbitrate a statutory

claim, a party does not forego the substantive rights

afforded by the statute; it only submits to their resolution

in an arbitral, rather than a judicial, forum.”2 Gilmer, 500

U.S. at 26, 111 S.Ct. at 1652 (quotation omitted). Conse-

quently, because Gilmer had agreed to arbitrate his statu-

tory claims, the Court found that, in order to avoid said

2 For the purposes of the instant entry, the court will

assume without deciding that Pryner, in his individual capacity,

could agree to arbitrate all of the statutory claims which he has

brought in this action.

RN SS SEN ES SE A Pe Te SEM

App. 37

arbitration clause, the burden was upon the plaintiff to

demonstrate that Congress intended to preclude the

waiver of a judicial forum for the statutory claim - ADEA

— in question. Id. The Court held that Gilmer had failed to

meet his burden of demonstrating that “Congress, in

enacting the ADEA, intended to preclude arbitration of

claims under that Act.” Id. at 35, 111 S.Ct. at 1657.

Accordingly, the Court found that the arbitration agree-

ment in Gilmer’s NYSE registration application should be

enforced. Id.

Completing the analysis is the Fourth Circuit’s recent

decision in Austin. In Austin, the plaintiff, a union

employee governed by a collective-bargaining agreement,

was injured in a job-related accident after fourteen years

in the defendant’s employ. Thereafter, the plaintiff was

released for light-duty work, but was told that none was

available. Instead, she was placed on leave and provided

with worker’s compensation benefits. While Austin was

on leave, the defendant eliminated her position and ‘er-

minated her employment. 78 F.3d at 877.

Austin filed suit against the defendant alleging viola-

tion of both Title VII and the ADA. The defendant moved

to dismiss on the grounds that Austin was precluded

from filing suit in federal court because she was bound

by the mandatory arbitration clause of her collective-

bargaining agreement. Austin, 78 F.3d at 878. The district

court agreed and found that Gilmer precluded Austin

from bringing the lawsuit because she had agreed in her

collective-bargaining agreement to resolve the dispute via

binding arbitration. Id. A divided panel of the Fourth

Circuit affirmed. Id. at 886.

App. 38

Clearly, if the decision of the Fourth Circuit is a

correct pronouncement of federal law, then the instant

case must be dismissed, because Pryner’s sole remedy for

the discrimination claimed would be pursuant to the

arbitration clause in the CBA. However, it is the court's

assessment that Austin is not an accurate interpretation of

federal law as it presently stands and that the reasoning

of the majority in that case would not be adopted by the

Seventh Circuit if faced with a similar case.

Austin relies primarily upon Gilmer’s holding that an

individual may agree to arbitrate statutory claims, such

as those found in the instant case. The fatal flaw in Austin

is its failure to fully consider the prior holding of Gard-

ner-Denver. The Austin court basically dismisses the deci-

sion in Gardner-Denver by stating that “Gilmer thus rejects

the principal concern in ... Gardner-Denver ..., that

arbitration is an ‘inappropriate forum’ for the resolution

of Title VII statutory rights.” Austin, 78 F.3d at 880.

It is uncontroverted that the decision in Gardner-

Denver reflected the Court’s then-current view that arbi-

tration was inferior to judicial process for the resolution

of statutory claims. Gardner-Denver, 415 U.S. at 56-58, 94

S.Ct. at 1023-25. Such “mistrust of the arbitral process”

has plainly been overcome by more recent decisions of

the Court. Gilmer, 500 U.S. at 34 n. 5, 111 S.Ct. at 1656 n. 5

(citing Shearson/Am. Express Inc. v. McMahon, 482 U.S. 220,

231-32, 107 S.Ct. 2332, 2340-41, 96 L.Ed.2d 185 (1987);

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473

U.S. 614, 626-27, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444

(1985) (“[W]e are well past the time when judicial suspi-

cion of the desirability of arbitration and of the compe-

tence of arbitral tribunals inhibited the development of

;

SregetAny

A Re BRL a et Re eS

App. 39

arbitration as an alternative means of dispute resolu-

tion.”)).

While Austin’s recognition that the Court’s accep-

tance of arbitration has progressed significantly since its

decision in Gardner-Denver, the Austin Court’s reliance

upon Gilmer to the exclusion of Gardner-Denver is clearly

misplaced. Gilmer made a point of distinguishing, not

overruling, Gardner-Denver, see 500 U.S. at 33-35, 111 S.Ct.

at 1655-57, and the continuing vitality of Gardner-Denver

was recognized by the Court even more recently in Liv-

adas v. Bradshaw, 512 U.S. 107, __ n. 21, 114 S.Ct. 2068,

2080 n. 21, 129 L.Ed.2d 93 (1994).

The Gilmer Court distinguished Gardner-Denver, and

its progeny,? on three grounds, only two of which are

applicable in the instant case. First, the Court again noted

that an employee’s contractual rights under a collective-

bargaining agreement are distinct from said employees

statutory rights. 500 U.S. at 34, 111 S.Ct. at 1656; see also

In re Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 852 F.2d

960, 965 (7th Cir.1988). This recognizes one of the classic

differences between an individual employment contract

between an employee and his or her employer and the

contract created by a collective-bargaining agreement.

While an individual may surrender any of his or her

3 The Gilmer Court recognized Barrentine v. Arkansas-Best

Freight Sys., Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641

(1981) and McDonald v. City of West Branch, Mich., 466 U.S. 284,

104 S.Ct. 1799, 80 L.Ed.2d 302 (1984) as other cases which have

involved the issue whether arbitration under a collective

bargaining agreement precluded a subsequent statutory claim.

Gilmer, 500 U.S. at 35, 111 S.Ct. at 1656-57.

aie

App. 40

statutory rights unless Congress has expressed the intent

that a particular right cannot be surrendered, in the con-

text of a collective-bargaining agreement, the rights at

issue are solely those articulated within the confines of

the agreement itself. In other words, while an individual

employment contract can address both contractual and

statutory rights, a collective-bargaining agreement, by its

very nature, may only address the contractual rights of

the members of the bargaining unit. “Thus the arbitrator

has authority to resolve only questions of contractual

rights, and this authority remains regardless of whether

certain contractual rights are similar to, or duplicative of,

the substantive rights secured by Title VII.”* Gardner-

Denver, 415 U.S. at 53-54, 94 S.Ct. at 1022. The Court

continues to recognize this dualism, even in light of its

greater acceptance of the arbitral process.5 See, e.g.,

* For this reason, it is essentially immaterial that the CBA at

issue appears to provide for rights similar or identical to those

provided for in Title VII, the ADA or section 1981. The court

notes that similar provisions, with the exception of the ADA,

were found in the collective-bargaining agreement at issue in

Gardner-Denver, 415 U.S. at 39, 94 S.Ct. at 1015.

5 Gilmer noted as follows:

“[A] labor arbitrator has authority only to resolve

questions of contractual rights. The arbitrator’s task is

to effectuate the intent of the parties and he or she does

not have the general authority to invoke public laws

that conflict with the bargain between the parties. By

contrast, in instituting an action under Title VII, the

employee is not seeking review of the arbitrator’s

decision. Rather, he is asserting a statutory right

independent of the arbitration process.

500 U.S. at 34, 111 S.Ct. at 1656 (citations and quotations omitted).

App. 41

Livadas, 512 U.S. at ___ n. 21, 114 S.Ct. at 2080 n. 21;

Gilmer, 500 U.S. at 34, 111 S.Ct. at 1656.

The Gilmer Court next expressed its continuing “con-

cern that in collective-bargaining arbitration the interests

of the individual employee may be subordinated to the

collective interests of all employees in the bargaining

unit.” 500 U.S. at 34, 111 S.Ct. at 1656 (citation and

quotation omitted); see Livadas, 512 U.S. at ___ n. 21, 114

S.Ct. at 2080 n. 21. The Court has also recognized that

“harmony of interest between the union and the individ-

ual employee cannot always be presumed, especially

where a claim of racial discrimination is made.... Anda

breach of the union’s duty of fair representation may

prove difficult to establish.” Gardner-Denver, 415 U.S. at

58 n. 19, 94 S.Ct. at 1024 n. 19. The Court’s recent juris-

prudence has done nothing to alleviate this concern.

The final distinction drawn by the court between the

situation it faced in Gilmer and that in Gardner-Denver

was that Gardner-Denver and its progeny were not

decided under the FAA, while Gilmer was. Gilmer, 500

U.S. at 35, 111 S.Ct. at 1656-57. Likewise, the decision in

Austin did not consider the effects of the FAA because the

Fourth Circuit takes the position that the FAA is not

applicable to labor disputes arising from collective-bar-

gaining agreements. 78 F.3d at 879. It is relative to this

third factor that the instant case diverges from the situa-

tion in Gardner-Denver.

The FAA basically effectuates arbitration agreements

brought before federal courts, and it reflects a “liberal

federal policy favoring arbitration agreements. . . .

Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460

”

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——— ee

App. 42

U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983); accord

Mitsubishi, 473 U.S. at 625, 105 S.Ct. at 3353. The Fourth

Circuit does not apply the FAA to collective-bargaining

agreements because of the FAA’s exclusion from coverage

of “contracts of employment of . . . any other class of

workers engaged in foreign or interstate commerce.” 9

U.S.C. § 1. The Seventh Circuit “is among the minority

that has limited § 1 to the transportation industries and

therefore applies the Arbitration Act to most collective

bargaining agreements.” Briggs & Stratton Corp. v. Local

232, Int'l Union, Allied Indus. Workers of Am., 36 F.3d 712,

715 (7th Cir.1994), cert. denied, __ U.S. __, 115 S.Ct. 1998,

131 L.Ed.2d 1000 (1995); accord Matthews v. Rollins Hudig

Hall Co., 72 F.3d 50, 53 n. 3 (7th Cir.1995); Miller Brewing

Co. v. Brewery Workers Local Union No. 9, 739 F.2d 1159,

1162 (7th Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct.

912, 83 L.Ed.2d 926 (1985); Pietro Scalzitti Co. v. Interna-

tional Union of Operating Eng’rs, Local No. 150, 351 F.2d

576, 579-80 (7th Cir.1965); see also American Postal Workers

Union v. United States Postal Serv., 823 F.2d 466, 473 (11th

Cir.1987). It has not been suggested that Pryner is

employed in the transportation industry. However, even

assuming that the provisions of the FAA apply to the

instant case, sufficient reason does not exist to depart

from the clear dictates of Gardner-Denver.

The court notes that the purpose of the FAA “was to

reverse the longstanding judicial hostility to arbitration

agreements that had existed at English common law and

had been adopted by American courts, and to place arbi-

tration agreements upon the same footing as other con-

tracts.” Gilmer, 500 U.S. at 24, 111 S.Ct. at 1651 (citations

omitted). But see Farrand v. Lutheran Bhd., 993 F.2d 1253,

App. 43

1255 (7th Cir.1993) (“Gilmer did not establish a grand

presumption in favor of arbitration; it interpreted and

enforced the texts on which the parties had agreed.”).

Nevertheless, the reasons cited by the Court for its deci-

sion in Gardner-Denver remain, regardless of the Court's

renewed acceptance of arbitration clauses as stated in

Gilmer. The Court’s recognition of the dualism between

the contractual rights governed by a collective-bargaining

agreement and the statutory rights which flow to each

individual within the collective bargaining unit is

unchanged. Likewise, the Court's concern regarding the

motivations of the union as the representative of the

individual members of the bargaining unit when it comes

to the enforcement of individual statutory rights also

remains. Accordingly, although the instant case may be

governed by the FAA, this court remains bound by the

decision in Gardner-Denver, a decision which dictates that

the existence of a possible remedy to Pryner under the

CBA does not foreclose Pryne:’s right to pursue the

statutory claims brought in the present litigation. This

result is in accord with a number of other courts which

have addressed this issue after the Gilmer decision. See,

e.g., EEOC v. Board of Governors of State Colleges and Univs.,

957 F.2d 424, 431 & n. 11 (7th Cir) (citing Gilmer, 500 U.S.

at 35, 111 S.Ct. at 1656-57) (“[I} is well established that

unions cannot waive employees’ ADEA or Title VII rights

through collective bargaining.”),cert. denied, 506 U.S. 906,

113 S.Ct. 299, 121 L.Ed.2d 223 (1992); DiPuccio v. United

Parcel Serv., 890 F.Supp. 688, 69293 (N.D.Ohio 1995); Ran-

dolph v. Cooper Indus., 879 F.Supp. 518, 520-23

(W.D.Pa.1994); Block v. Art Iron, Inc., 866 F.Supp. 380,

383-87 (N.D.Ind.1994); Griffith ov. Keystone Steel & Wire Co.,

App. 44

858 F.Supp. 802, 804 (C.D.II1.1994); Claps v. Moliterno Stone

Sales, Inc., 819 F.Supp. 141, 144-47 (D.Conn.1993); see also

Austin 78 F.3d at 886-87 (Hall, J., dissenting). But see

Austin, 78 F.3d at 877-86, aff’g, 844 F.Supp. 1103

(W.D.Va.1994); Knox v. Wheeling-Pittsburgh Steel Corp., 899

F.Supp. 1529, 1536-40 (N.D.W.Va.1995).

IV. Conclusion

For the reasons stated above, the court finds that

neither Pryner’s prior arbitration under his CBA of the

claims he now brings before the court nor his failure to

previously arbitrate said claims has any bearing upon his

right to enforce the statutory rights he now asserts.

Accordingly, the Defendant’s motion for summary judg-

ment on this issue will be DENIED. Likewise, the Defen-

dant’s motion in the alternative to stay the instant

proceedings pending the arbitration of Pryner’s claims

under the CBA will also be DENIED.

ALL OF WHICH IS ORDERED.

2 err et

App. 45

STATUTORY PROVISIONS INVOLVED

Section 2 of the Federal Arbitration Act (“FAA”), 9

U.S.C. § 2, provides as follows:

A written provision in any maritime transaction

or a contract evidencing a transaction involving

commerce to settle by arbitration a controversy

thereafter arising out of such contract or trans-

action, or the refusal to perform the whole or

any part thereof, or an agreement in writing to

submit to arbitration an existing controversy

arising out of such a contract, transaction, or

refusal, shall be valid, irrevocable, and enforce-

able, save upon such grounds as exist at law or

in equity for the revocation of any contract.

Section 3 of the FAA, 9 U.S.C. § 3, provides as fol-

lows:

If any suit or proceeding be brought in any of

the courts of the United States upon any issue

referable to arbitration under an agreement in

writing for such arbitration, the court in which

such suit is pending, upon being satisfied that

the issue involved in such suit or proceeding is

referable to arbitration under such an agree-

ment, shall on application of one of the parties

stay the trial of the action until such arbitration

has been had in accordance with the terms of

the agreement, providing the applicant for the

stay is not in default in proceeding with such

arbitration.

Section 16 of the FAA, 9 U.S.C. § 16, provides as

follows (materials in brackets added):

(a) An appeal may be taken from -

(1) an order -

(b)

eee LLL LE

(2)

(3)

App. 46

(A) refusing a stay of any action

under section 3 of this title [9

U.S.C. § 3],

(B) denying a petition under section

4 of this title [9 U.S.C. § 4] to

order arbitration to proceed,

section 206 of this title to compel

arbitration,

(D) confirming or denying confirma-

tion of an award or partial

award, or

(E) modifying, correcting, or vacat-

ing an award;

an interlocutory order granting, con-

tinuing, or modifying an injunction

against an arbitration that is subject to

this title; or

a final decision with respect to an arbi-

tration that is subject to this title.

Except as otherwise provided in section

1292(b) of title 28 [28 U.S.C. § 1292(b)], an

appeal may not be taken from an interlocu-

tory order -

(1)

(2)

(3)

(4)

granting a stay of any action under

section 3 of this title [9 U.S.C. § 3];

directing arbitration to proceed under

section 4 of this title [9 U.S.C. § 4];

compelling arbitration under section

206 of this title; or

refusing to enjoin an arbitration that is

subject to this title.

App. 47

Section 118 of the Civil Rights Act of 1991, Pub. L.

No. 102-166 § 118, 105 Stat. 1071, 1081 (1991), provides as

follows:

Where appropriate and to the extent authorized

by law, the use of alternative means of dispute

resolution, including settlement negotiations,

conciliation, facilitation, mediation, factfinding,

minitrials, and arbitration, is encouraged to

resolve disputes arising under the Acts or provi-

sions of Federal law amended by this title.

Section 12212 of the Americans With Disabilities Act

of 1990, 42 U.S.C. § 12212, provides as follows:

Where appropriate and to the extent authorized

by law, the use of alternative means of dispute

resolution, including settlement negotiations,

conciliation, facilitation, mediation, factfinding,

minitrials, and arbitration, is encouraged to

resolve disputes arising under this chapter.

< a

App. 48

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

JAMES A. MOTLEY,

Plaintiff /Counter-

claim-defendant,

Case No. IP95-0308-C-M/S

Judge:

V. Hon. Larry J. McKinney

TRACTOR SUPPLY Magistrate:

COMPANY, Hon. V. Sue Shields

Defendant /Counter-

Nm mee ee ee ee ee ee eee”

claim-plaintiff.

ORDER

This matter comes before the Court upon Defendant/

Counterclaim-plaintiff’s TRACTOR SUPPLY COMPANY,

INC.’S, Motion For Clarification Of The Court’s October

21 and 22, 1996 and January 2, 1997 Orders, Or, In The

Alternative For An Extension.

The Court finds that said motion has been brought

for good cause and should be granted as follows:

1. Defendant/Counterclaim-plaintiff shall have

thirty (30) days from the date of either the date of the

United States Supreme Court’s order denying certiorari,

or the date of the Supreme Court’s ultimate determina-

tion of the appeal of Pryner v. Tractor Supply Company to

submit its responsive brief to Plaintiff’s supplemental

brief; this case shall be stayed until such time.

App. 49

IT IS SO ORDERED this 21st day of April, 1997.

/s/ Larry J. McKinney

Copies To:

Joseph E. Gumina

WESSELS & PAUTSCH,

P.C.

330 East Kilbourn

Avenue

Suite 1475

Milwaukee, WI 53202

Larry J. McKinney, Judge

United States District Court

Southern District of Indiana

Kenneth Collier-Magar, Esq.

COLLIER-MAGAR &

KIRAGES, P.C.

1460 Market Square Center

151 North Delaware Street

Indianapolis, IN 46204

App. 50

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

JAMES A. MOTLEY, )

A )

Plaintiff, ) CAUSE NO. IP 95-0308-

Vv. ) C-M/S

TRACTOR SUPPLY )

COMPANY,

Defendant. )

ORDER

The Court, having reviewed defendant’s motions,

now GRANTS DEFENDANT’S MOTION FOR LEAVE TO

FILE A RESPONSIVE BRIEF THIRTY (30) DAYS AFTER

THE FINAL DETERMINATION OF THE APPEAL IN

PRYNER V. TRACTOR SUPPLY CO.

IT IS SO ORDERED this 2nd day of January, 1997.

/s/ Larry J. McKinney

LARRY J. McKINNEY,

JUDGE

United States District Court

Southern District of Indiana

App. 51

Distribution to:

Kenneth Collier-Magar

COLLIER-MAGAR & KIRAGES, P.C.

1460 Market Square Center

151 North Delaware Street

Indianapolis, Indiana 46204

James B. Sherman

WESSELS & PAUTSCH, P.C.

Two Plaza East

330 East Kilbourn Avenue

Suite 1475

Milwaukee, Wisconsin 53202

App. 52

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

STANISLAW NOGA,

Plaintiff, 96 C 6108

-VS-

KIMCO CORPORATION, an

Illinois corporation,

Judge Conlon

Defendant.

DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT, OR, IN THE ALTERNATIVE, TO STAY

PROCEEDINGS PENDING ARBITRATION

NOW COMES THE DEFENDANT, KIMCO CORPO-

RATION, by and through its attorneys, Schiff & Hulbert,

pursuant to Rule 56 of the Federal Rules of Civil Pro-

cedure, for its Motion for Summary Judgment, or, in the

Alternative, to Stay Proceedings Pending Arbitration,

states as follows:

1. This case was originally filed on September 20,

1996. By minute order of November 6, 1996, this case was

dismissed for want of prosecution. This case was rein-

stated on or about November 27, 1996.

2. Plaintiff alleges he was discriminated against by

Defendant Kimco Corporation (“Kimco”) because of his

age.

3. Defendant filed its Answer and Affirmative

Defenses to Plaintiff’s Complaint on December 19, 1996.

App. 53

4. The deposition of Plaintiff was taken on March 14

and March 31, 1997.

5. Plaintiff admitted in his deposition that, as early

as September 1993, he was “totally sure” that he was

discriminated against because of his age. (Plaintiff's

Deposition, p. 44)

6. Any and all conduct prior to February 16, 1994

(300 days prior to the filing of Plaintiff’s charge of dis-

crimination at the Equal Employment Opportunity Com-

mission) is not actionable and would be inadmissible at

trial.

7. Plaintiff cannot set forth a prima facie case of age

discrimination.

8. Plaintiff was terminated for poor performance, a

legitimate, non-discriminatory reason.

9. Plaintiff cannot prove that the reason for his ter-

mination was pretext.

10. Plaintiff has not been employed since he was

terminated by Kimco. Plaintiff has not used reasonable

diligence to conduct a job search. Therefore, Plaintiff

breached his duty to mitigate his damages. Even if lia-

bility were established, Plaintiff would recover nothing.

11. Plaintiff's claim of age discrimination is covered

by a mandatory grievance-arbitration procedure. There-

fore, the proceedings in this case should be stayed pend-

ing the outcome of arbitration.

12. There is no genuine issue of material fact pre-

cluding summary judgment in this case.

App. 54

WHEREFORE, Kimco respectfully requests that this

Court grant its Motion for Summary Judgment and enter

judgment in its favor as a matter of law as to Plaintiff's

Complaint in its entirety. In the alternative, Kimco

requests that the proceedings in this case be stayed pend-

ing arbitration.

Respectfully submitted,

/s/ Illegible

Attorney for Defendant,

KIMCO CORPORATION

Matthew B. Schiff

Linda C. Kramer -

Schiff & Hulbert

10 S. LaSalle

Suite 900

Chicago, IL 60603

(312) 422-0060

App. 55

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

STANISLAW NOGA,

Plaintiff,

-VS-

KIMCO CORPORATION, an

Illinois corporation,

Defendant.

96 C 6108

Judge Conlon

i i

DEFENDANT’S MEMORANDUM IN SUPPORT

OF MOTION FOR SUMMARY JUDGMENT, OR

IN THE ALTERNATIVE, TO STAY

PROCEEDINGS PENDING ARBITRATION

NOW COMES THE DEFENDANT, KIMCO CORPO-

RATION, by and through its attorneys, Schiff & Hulbert,

and in support of its Motion for Summary Judgment, or

in the Alternative, to Stay Proceedings Pending Arbitra-

tion, states as follows:

* * +

VI. PLAINTIFF FAILED TO EXHAUST HIS

REMEDIES UNDER A MANDATORY GRIEV-

ANCE-ARBITRATION PROVISION

The Collective Bargaining Agreement (“CBA”)

between Kimco and the Service Employees International

Union, Local 25, (the “Union”) contains a non-discrimina-

tion clause. (See CBA, attached as Ex. 9, Art. XXIII, §3)

The CBA also provides a mandatory arbitration pro-

cedure “pertaining to any difference or dispute which

App. 56

may arise under this Agreement.” (Ex. 9, Art. XVIII)

Plaintiff testified that he filed a grievance after each

reprimand. He also filed a grievance over his termination.

(Denges Aff. 21) Plaintiff testified that, in September

1993, he was “totally sure” that he was discriminated

against because of his age. (12M 4142; Pl. Dep. 44) Plain-

tiff’s discrimination allegations were covered by the

CBA’s mandatory arbitration procedure. The proper

forum for asserting his discrimination claim is arbitra-

tion. This case is precluded by the arbitration provision.

The U.S. Supreme Court has made clear that agree-

ments to arbitrate statutory claims, such as ADEA, are

enforceable. Gilmer v. Interstate/Johnson Lane Corp., 500

U.S. 20 (1991). In a case of first impression in the U.S.

Courts of Appeals, the Court of Appeals for the Fourth

Circuit held last year that Gilmer applies to discrimination

claims by union employees when the arbitration agree-

ment is contained in a CBA. Austin v. Owens-Brockway

Glass Container, Inc., 78 F.3d 875 (4th Cir. 1996), cert.

denied, 117 S.Ct. 432 (1997). Accord Tomasetti v. Prudential

Ins. Co. of America, 153 L.R.R.M. (BNA) (E.D. Cal. 1996);

Jessie v. Carter Health Care Ctr. Inc., 930 F. Supp. 1174 (E.D.

Ky. 1996).

The Seventh Circuit’s recent decision in Pryner v.

Tractor Supply Co., __ F.3d __, 1997 WL 125936 (7th Cir.

3/20/97) is contrary to Austin. No other circuit has yet to

decide this issue. There is presently a stay on the Seventh

Circuit’s mandate, pending the employer’s petition for

certiorari to the U.S. Supreme Court. Kimco adopts the

position of the employer in Pryner. Should this Court

decide that summary judgment is inappropriate at this

App. 57

juncture, this case should be stayed pending a final deci-

sion in Pryner.

VII. CONCLUSION

Plaintiff is unable to meet his burden for proving a

prima facie case of age discrimination. Kimco has pre-

sented a legitimate, non-discriminatory reason for Plain-

tiff’s discharge. Plaintiff cannot prove that Kimco’s

proffered business reason is a pretext for discrimination.

Therefore, no genuine issue of material fact remains.

Kimco is entitled to summary judgment as a matter of

law.

WHEREFORE, Kimco respectfully requests that this

Court grant its Motion for Summary Judgment and enter

judgment in its favor as a matter of law as to Plaintiff’s

Complaint in its entirety. In the alternative, Kimco

requests this court to stay proceedings pending arbitra-

tion or a final decision in Pryner v. Tractor Supply.

Respectfully submitted,

/s/ Matthew B. Schiff

Attorney for Defendant,

KIMCO CORPORATION

Matthew B. Schiff

Linda C. Kramer

Schiff & Hulbert

10 S. LaSalle Street

Suite 900

Chicago, IL 60603

(312) 422-0060

App. 58

Developments in Labor Management Relations [LOGO]

Union Members Summary

Internet address: http://stats.bls.gov:80/newsrels.htm

Technical information: (202) 606-6378 USDL 97-27

For release: 10:00 A.M. EST

Media contact: 606-5902 Friday, January 31, 1997

UNION MEMBERS IN 1996

Union membership as a percent of wage and salary

employment continued to decline in 1996, the U.S.

Department of Labor’s Bureau of Labor Statistics

reported today. Union members accounted for 14.5 per-

cent of wage and salary employment in 1996, down from

14.9 percent in 1995. In 1983, the first year for which

comparable data are available, union members made up

20.1 percent of wage and salary workers.

In 1996, as wage and salary employment continued to

rise, the number who were members of unions totaled

16.3 million, little changed from the prior year. Nearly

three-fifths of union members (9.4 million) were in pri-

vate industry, where they constituted 10.2 percent of

wage and salary employment. There were 6.9 million

union members in government (federal, state, and local),

where they accounted for 37.7 percent of wage and salary

employment. :

Membership by industry and occupation

Among private industry groups, transportation and

public utilities had the highest proportion of workers

who were union members (27 percent). Other major

groups with membership proportions above the private

App. 59

industry average were construction (19 percent), manu-

facturing (17 percent), and mining (14 percent). The

remaining private industry groups had unionization rates

ranging from 2 to 6 percent. (See table 3.)

Precision production, craft, and repair occupations

(including, for example, mechanics, electricians, and

other skilled trades workers) and operators, fabricators,

and laborers (including machine and vehicle operators,

assemblers, cleaners, and helpers) continued to have the

highest proportions of union members (23 percent each).

In contrast, union membership proportions were about 1

in 10 among technical and administrative support occu-

pations and 1 in 20 among farming, forestry, and fishing

workers. (See table 3.)

Demographic characteristics of union members

Union membership was higher among men (17 per-

cent) than women (12 percent) and higher among blacks

(19 percent) than either whites (14 percent) or Hispanics

(13 percent). Within these major groups, black men con-

tinued to have the highest union membership rate (22

percent), while white women had the lowest rate (11

percent). Workers ages 35 to 64 had higher unionization

rates than either younger or older workers. Full-time

workers were more than twice as likely as part timers to

be union members. (See table 1.)

Union representation of non-members

In 1996, 1.9 million wage and salary workers were

represented at their work place by a union, although they

App. 60

were not union members themselves. A little more than

half worked in government.

Earnings

Among full-time wage and salary workers, union

members had median usual weekly earnings of $615 in

1996, compared with a median of $462 for workers not

represented by unions. (See tables 2 and 4.) This differ-

ence reflects a variety of influences in addition to cover-

age by a collective bargaining agreement, including

variations in the distribution of union members and non-

union employees by gender, occupation, industry, firm

size, or geographic region. (For a discussion of the prob-

lem of differentiating between the influence of unioniza-

tion status and other worker characteristics on employee

earnings, see Kay E. Anderson, Philip M. Doyle, and

Albert E. Schwenk, “Measuring union-nonunion earnings

differences,” Monthly Labor Review, June 1990, pp.

26-38.) The disparities in union-nonunion earnings were

greater for women than for men and for Hispanics and

blacks than for whites.

e Union Members Technical Note

e Table 1. Union affiliation of employed wage

and salary workers by selected characteris-

tics

e Table 2. Median weekly earnings of full-time

wage and salary workers by union affiliation

and selected characteristics

e Table 3. Union affiliation of employed wage

and salary workers by occupation and indus-

try

App. 61

e Table 4. Median weekly earnings of full-time

wage and salary workers by union affiliation,

occupation, and industry

e Text version of entire news release

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Last modified: Thursday, January 30 1997

URL: http://stats.bIs.gov/news.release/union2.nws.htm

App. 62

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

ROBERT J. HAMMOND,

Plaintiff,

UNITED AIRLINES, INC.,

AIR WISCONSIN, INC.

and AIR WISCONSIN

AIRLINES CORP.,

Defendant.

Case No. 96 C 902C

ANSWER AND DEFENSES

Defendants, UNITED AIRLINES, INC., AIR WIS-

CONSIN, INC. and AIR WISCONSIN AIRLINES CORP.,

by and through their attorneys, WESSELS & PAUTSCH,

P.C., by Charles W. Pautsch, Frank A. Gumina and Joseph

E. Gumina, hereby set forth their Answer and Defenses to

the Complaint filed herein, denying each and every aver-

ment of said Complaint except, and only to the extent, as

is hereinafter expressly admitted and/or qualified, stat-

ing as follows:

1. The District Court has jurisdiction over this

action pursuant to 28 U.S.C. § 1331 in that Plaintiff Ham-

mond’s claims arise under federal law, namely, the Amer-

icans With Disabilities Act, 42 U.S.C. § 12101, et seq.

ANSWER: Defendants admit that this Court has

jurisdiction pursuant to 28 U.S.C. § 1331 in that Plaintiff

alleges claims arising under federal law, namely, the

Americans With Disabilities Act, 42 U.S.C. § 12101, et seq.;

App. 63

however Defendants deny that they have either individu-

ally or in concert, violated any laws.

2. Venue is proper in the Western District of Wis-

consin under 28 U.S.C. § 1391(b) in that Plaintiff Ham-

mond resides in Dane County, Wisconsin, a substantial

portion of the acts and omissions alleged in this action

occurred in this District and the Defendants may be

found in this District.

ANSWER: Defendants are without information or

knowledge sufficient to form a belief as to the truth of the

allegations contained in paragraph two (2) of the Com-

plaint; and, therefore, Defendants deny the same.

3. Plaintiff Hammond has exhausted all administra-

tive remedies prerequisite to the filing of this action and

has been issued a Notice of Right to Sue by the United

States Equal Employment Opportunity Commission.

ANSWER: Defendant admits that Plaintiff has been

issued a Notice of Right to Sue by the United States Equal

Employment Opportunity Commission, but Defendants

deny that Plaintiff has exhausted all administrative pre-

requisites to the filing of this action as to all Defendants.

4. The Plaintiff, Robert J. Hammond, is an adult

resident of the State of Wisconsin and resides at 4319

Vilas Hope Road, Cottage Grove, Wisconsin, 53527.

ANSWER: Defendants are without information or

knowledge sufficient to form a belief as to the truth of the

allegations contained in paragraph four (4) of the Com-

plaint; and, therefore, Defendants deny the same.

5. The Defendants, United Airlines, Inc., Air Wis-

consin, Inc., and Air Wisconsin Airlines Corp., are related

App. 64

business corporations, the principal business of which is

the providing of air transportation services. United Air-

lines, Inc. has its general offices at P.O. Box 66100, Chi-

cago, Illinois 60666. Air Wisconsin, Inc. and Air

Wisconsin Airlines Corp. have their general offices at

W6390 Challenger Drive, Suite 203, Appleton, Wisconsin

54915.

ANSWER: Defendants deny tk « United Airlines,

Inc., Air Wisconsin, Inc. and Air Wisconsin Airlines Corp.

are related businesses, but Defendants admit that Defen-

dants’ principal business is that of providing air transpor-

tation services. Further, Defendants admit the remainder

of the allegations contained in paragraph five (5) of the

Complaint.

6. At all times material hereto Plaintiff Hammond

was employed by Defendants as a pilot for Air Wiscon-

sin, Inc.

ANSWER: Defendants deny.

7. On October 6, 1988, while carrying out the duties

of his employment as a pilot, Plaintiff Hammond injured

his back, which injury required surgery in August, 1989,

July, 1992 and, again in November, 1992.

ANSWER: Defendants are without information or

knowledge sufficient to form a belief as to the truth of the

allegations contained in paragraph seven (7) of the Com-

plaint; and, therefore, Defendants deny same.

8. As of August 25, 1993 Plaintiff Hammond’s treat-

ing physicians determined that he had a 20% permanent

partial disability and authorized his return to work with

a lifting restriction of 40 pounds and the restriction that

App. 65

he not remain seated for more than one and a half hours

without interruption.

ANSWER: Defendants are without information or

knowledge sufficient to form a belief as to the truth of the

allegations contained in paragraph eight (8) of the Com-

plaint; and, therefore, Defendants deny same.

9. As of August 25, 1993, and at all times since then,

Plaintiff Hammond has been capable of performing the

essential functions of his employment as a pilot for Air

Wisconsin, Inc., with minimal accommodation, or the

functions of some other employment with the Defen-

dants, with or without accommodation, and he has

requested that he be permitted to return to his employ-

ment as a pilot or to some other employment consistent

with his restrictions.

ANSWER: Defendants deny.

10. At all times since August 25, 1993 the Defen-

dants have failed and refused to permit Plaintiff Ham-

mond to return to his employment as a pilot or any other

employment with Defendants, with or without accom-

modation.

ANSWER: Defendants deny.

11. The Defendants are, and each of them is, an

employer subject to the Americans With Disabilities Act.

ANSWER: Defendants deny.

App. 66

12. Plaintiff Hammond is, and at all times material

hereto has been, an employee subject to the protections

afforded by the Americans With Disabilities Act.

ANSWER: Defendants deny.

13. The actions of the Defendants set forth at Para-

graph ten (10) of this Complaint were done by them

because of Plaintiff Hammond's disability or because of

what they perceived to be his disability, if one existed, all

in violation of the Americans With Disabilities Act.

ANSWER: Defendants deny.

14. Asa result of said actions by the Defendants,

Plaintiff Hammond has lost wages and other benefits of

his employment, suffered emotional distress and humilia-

tion, and otherwise been injured.

ANSWER: Defendants deny.

DEFENSES

1. As and for their first defense, Defendants aver

that Plaintiff’s claims contained in his Complaint are

subject to an enforceable agreement to arbitrate, rather

than litigate, said claims and, accordingly, this Court

lacks jurisdiction to decide same.

2. As and for their second defense, Defendants aver

that, notwithstanding its first defense, Plaintiff failed to

exhaust his available contractual remedies prior to bring-

ing this lawsuit.

3. As and for their third defense, Defendants state

that any and all decisions made regarding Plaintiff were

predicated solely upon nondiscriminatory, legitimate

App. 67

business reasons having no relation whatsoever to Plain-

tiff’s alleged disability or perceived disability.

4. As and for their fourth defense, Defendants

assert, upon information and belief, that Plaintiff has

failed to mitigate his damages.

5. As and for their fifth defense, Defendants assert,

upon information and belief, that Plaintiff is not an indi-

vidual with a disability, as that term is defined in the

Americans With Disabilities Act (42 U.S.C. § 12102); and,

therefore, is afforded no protection under the Americans

With Disabilities Act (42 U.S.C. § 12101, et seq.).

6. As and for their sixth defense, Defendants assert

that at all times they acted in good faith in all particulars

with regard to Plaintiff.

7. As and for their seventh defense, Defendants

assert, upon information and belief, that Plaintiff is not a

“qualified individual with a disability,” as that term is

defined in the Americans With Disabilities Act (42 U.S.C.

§ 12111(8)); and, therefore, is afforded no protection

under the Americans With Disabilities Act (42 U.S.C.

§ 12101, et seq.).

8. As and for their eighth defense, Defendants

assert, upon information and belief, that Plaintiff was not

qualified as a pilot because in that employment position

he posed a “direct threat,” as that term is defined by the

Americans With Disabilities Act (42 U.S.C. § 12101, et

seq.).

9. As and for their ninth defense, and in the alterna-

tive, Defendants assert that if Plaintiff was entitled to a

“reasonable accommodation,” as that term is defined by

App. 68

the Americans With Disabilities Act (42 U.S.C.

§ 12111(9)), Defendants assert that any such reasonable

accommodation afforded to Plaintiff would impose an

undue hardship upon the operation of the Defendants.

10. As and for their tenth defense, Defendant,

United Airlines, Inc., asserts that it never employed

Plaintiff, accordingly, Defendant United Airlines, Inc. is

not an “employer” as that term is defined in the Ameri-

cans with Disabilities Act (42 U.S.C. § 12101, et. seq.), and,

therefore, is not liable to Plaintiff under the Americans

With Disabilities Act (42 U.S.C. § 12101, et. seq.)

11. As and for their eleventh defense, Defendant,

United Airlines, Inc., asserts that it was not a joint

employer of Plaintiff with Air Wisconsin, Inc. in that,

among other things, Defendant United Airlines, Inc.

played no role in the control of labor relations of Air

Wisconsin, Inc., and made no decisions regarding

employment matters related to Plaintiff.

12. As and for their twelfth defense, Defendant, Air

Wisconsin Airlines Corp., asserts that it never employed

Plaintiff accordingly, Defendant Air Wisconsin Airlines

Corp., is not an “employer” as that term is defined in the

American with Disabilities Act (42 U.S.C. § 12101, et. seq.),

and, therefore, is not liable to Plaintiff under the Ameri-

cans with Disabilities Act (42 U.S.C. § 12101, et. seq.).

As and for their thirteenth defense,

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