# Petition for Writ of Certiorari — Tractor Supply Co. v. Pryner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0759%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 522 U.S. 912 ## Text ~< 961830 MAY 16 1997 Orrick OF THE CLERK In The Supreme Court of the United States October Term, 1996 * TRACTOR SUPPLY COMPANY, INC., Petitioner, v. VINCENT L. PRYNER, Respondent. 4 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. ll 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 iv 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 vi 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 9 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 10 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.) 11 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. : 12 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). © See Nieves v. Individualized Shirts et al., 1997 U.S. Dist. 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. 13 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 14 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. 15 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 ST ee 16 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 © 4 3 9 3 < = : 3 4 2 8 : 3 8 = 4 ee EE ee ee ae Oe ae see a eo ry 17 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. 18 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. vias uatn aide netbiandabl 2 os 2 ae 3 4 = Sedan doh Pil Wes ASI AL ad GE 0 Pret OOK ve “odin Ub cde tha iMan NES £ 19 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. 20 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. Seer ee sbetiey A Seal etal ee 8 serie ine rebut rs a ee LS ee ee Be aad 21 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 22 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 ili PED CL MEY Bi BT 00M | AED: Cala ba sie Lave 23 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 ili al 24 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 25 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 26 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 27 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 28 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 29 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 a 30 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. 48 52 App. 1 Vincent L. PRYNER, Plaintiff-Appellee, Counterclaim Defendant, V. TRACTOR SUPPLY COMPANY, Defendant-Appellant, Counterclaim Plaintiff. Eugene SOBIERAJSKI, Plaintiff-Appellee, v. 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 F. H | 3 4 3 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 a ) 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 Le 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, ; wa eer: tie eee ERE Ee LITO TORE SON ERG ERIE BP PE FS rn IE ee DEO 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 I ; 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 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 -