Opposition Brief — Tractor Supply Co. v. Pryner

No. 96-1830

Supreme Court. U.S.

ED

IN THE

‘ JUL 15 1997

Supreme Court of the United States

OCTOBER TERM, 1996 | CLERK

TRACTOR SUPPLY COMPANY, INC.

¥ Petitioner,

VINCENT L. PRYNER,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION

WILLIAM R. GROTH RICHARD A. JONES

FILLENWARTH, DENNERLINE, 1214 N. Rural Street

GROTH & TOWER Indianapolis, Indiana 46201

Suite 204 (317) 637-4213

1213 N. Arlington Ave. Marsa S. BERZON *

Indianapolis, Indiana 46219 Mary LYNNE WERLWAS

(317) 353-9363 ALTSHULER, BERZON,

NUSSBAUM, BERZON

& RUBIN

177 Post Street, Suite 300

San Francisco, CA 94108

(415) 421-7151

Attorneys for Respondent

Pryner

* Counsel of Record

WILSON - Epes PrinTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

B GB co

TABLE OF CONTENTS

Page

STATEMENT OF THE CASE .....................0000. 1

ik, MIR dh bd aidateacaicke ti laaciele cesbbidcdncemunsiseciieesdacesesences- cs,

RIP ae eS 2

PA EE a EP Sa ee, 5

ORT ELISE EN! ET NT ee 16

ii

TABLE OF AUTHORITIES

FEDERAL CASES Page

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

(1974) ....... cccniciatsioaiticiiigieaniaedidiienimianaanne passim

Alford v. Dean Witter Reynolds, Inc., 989 F.2d

- | Nee ee rae Soe ons 13

Allis-Chalmers v. Lueck, 471 U.S. 202 (1985) -....... 14

American Construction Co. v. Jacksonville, T. &

K.W.R. Co., 148 U.S. 372, 384 (1893) -................ 12

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

r et | 2: : ee eee ee 14

Austin v. Owens-Brockway, 78 F.3d 875 (4th

Cir.), cert. denied, —— U.S. ——, 117 S. Ct.

GD CED « snccititcsnncicitinenigiiad passim

Barrentine v. Arkansas-Best Freight System, 450

We a GID incecitstccnasesoreticcticetenadeneliatamaeiiian 10, 14

Bernder v. A.G. Edwards & Sons, 971 F.2d 698

ti: eee ene KS ok a 13

Board of Regents v. Tomanio, 446 U.S. 478

EE ix nelbiecidindns skated cette eee aaa 10

Brotherhood of Locomotive, Firemen & Engine-

men v. Bangor & Aroostook R. Co., 389 U.S.

BE ED tesciceessinsiceciseecositscicieshicreninieatiabanipan tein nantintnias 12

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

BD SED xniticvisicewittniceannintidinitiaiitdiatammedemmicmemead passim

Harrison v. Eddy Potash, Inc., 112 F.3d 1437

SERENE eine ie nee ener 12

Hawaiian Airlines v. Norris, 114 S. Ct. 2239

I sscasieckssitabancsuisicnisieiasieieensescetatniacadeas ian nama cmmmnaigintdecls 9

International Union of Electrical Workers v.

Robins & Myers, 429 U.S. 229 (1976) ................ 11

Livadas v. Bradshaw, 114 S. Ct. 2068 _...........0...... 3, 15

Martin v. Dana Corp., 1997 U.S. App. LEXIS

18791 (8rd Cir., June 12, 1997) ...................... 13

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

CI ssidinscsatiiihnsidaeniinhcenliaiiiatect lac cetcnuene ne ae ee 14

Tran v. Tran, 54 F.3d 115 (2nd Cir. 1995) -........... 12

Varner v. National Super Markets, Inc., 94 F.3d

1209 (8th Cir. 1996), No. 96-802, cert. denied

sub nom. National Supermarkets, Inc. v. Varner,

— US. , 117 S. Ct. 946 (1997) ................. 6

iii

TABLE OF AUTHORITIES—Continued

Virginia Military Inst. v. United States, 118 S.Ct.

2431 (1993) (Scalia, J., concurring) ..................

Willis v. Dean Witter Reynolds, Inc., 948 F.2d

I cs

Yee v. City of Escondido, 508 U.S. 519 (1992) ....

STATE CASES

Heutrebise v. Reliable Business Computers, Inc.,

550 N.W.2d 248 (Mich. 1996) ........0000

Pike v. Burlington Northern R.R. Co., 903 P.2d

fb Ee

Winston v. Maine Technical College System, 631

ee oe ee

FEDERAL STATUTES

RULES OF COURT

U.S. Supreme Court Rules

REE

SEE en ee

12

13

Ww ow

10

12

In THE

—« Supreme Court of the United States

OcTeBER TERM, 1996

No. 96-1830

TRACTOR SUPPLY COMPANY, INC.

¥ Petitioner,

VINCENT L. PRYNER,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION

The decisions below, statutes involved, and jurisdiction

are accurately stated in the Petition for Writ of Certiorari

(at 1-2).

STATEMENT OF THE CASE

1. Facts. Vincent Pryner worked in a warehouse as

an employee of Tractor Supply Company (“Tractor” or

“the employer”) from September 13, 1985 until his termi-

nation on February 22, 1996. Appendix to Petition for

Writ of Certiorari (“Pet. App.”) at 29. Prior to his dis-

charge, Mr. Pryner was covered by a collective bargaining

agreement (“CBA”) entered into by Tractor and his

union, the Chauffeurs, Teamsters, Warehousemen and

Helpers Local Union No. 135. Id. That collective bar-

gaining agreement prohibits Tractor from discharging any

covered employee without “just cause,” and contains a

provision prohibiting Tractor and Mr. Pryner’s union from

2

discriminating against any employee on the basis of race,

color, religion, national origin, sex or age. The CBA also

contains in Section 3 a separate provision recognizing

Tractor’s obligations under the Americans With Disabili-

ties Act (“ADA”), which expressly permits the company

unilaterally to “make a reasonable accommodation not-

withstanding the requirements of this Agreement” Tractor

deems necessary to comply with the ADA or the regula-

tions promulgated thereunder. Pet. App. 30-31. Nothing

in the agreement purports to incorporate as a contractual

term an enforceable obligation to comply with external

employment discrimination laws.

Additionally, the CBA establishes a grievance/arbitra-

tion procedure. That agreement provides, in Article 12,

Section 1, for a three-step grievance process for the reso-

lution of any disputes “involving interpretation or applica-

tion of the provisions” of the agreement. Appendix to

Brief in Opposition (“App.”) at la. The agreement pro-

vides further that “{i]f the decision of the Company in

Step 3 is unsatisfactory to the Union, and the Union

wishes to process the grievance further,” the union, but

not any individual employee, has the right to take the

matter to arbitration. Art. 12 §§ 3, 8, App. 2a, 4a. And

the agreement goes on to state several times that arbitra-

tion under the CBA is limited to issues arising under the

contract itself.

In September 1994, Mr. Pryner was informed that he

was discharged from his employment because he had failed

to provide adequate documentation regarding a disability

leave of absence, Mr. Pryner filed a grievance under the

CBA, the union processed the grievance and eventually

demanded arbitration. In August 1995, and after a two-

day hearing, the arbitrator found that Tractor did not

have “just cause” for terminating Mr. Pryner’s employ-

ment, and ordered that he be reinstated with back pay.

Thereafter, when Tractor first suspended and then, for a

vs \eainiiiliiaiaaaiiia a

|

3

second time, fired him, Mr. Pryner filed additional griev-

ances, on which arbitration is pending.

2. Proceedings. Mr. Pryner filed a complaint against

Tractor on February 17, 1995, which was amended on

July 12, 1995 and again on May 31, 1996. Pet. App. 31.

The complaint alleges that Mr. Pryner was subject to racial

harassment and retaliation, and was suspended and dis-

charged from his employment on the basis of his race,

in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq. The complaint also alleges that

Mr. Pryner was suspended and discharged on the basis of

his disability, in violation of the ADA, 42 U.S.C. § 12101

et seq. Pet. App. 31.

Tractor moved for summary judgment, or, in the alter-

native, a stay of the instant action pending arbitration of

Mr. Pryner’s still-pending grievances, on the ground that

| the arbitration provisions of the collective bargaining

agreement divested the district court of subject matter

jurisdiction. Pet. App. 31-32. The district court denied

both motions, holding that under this Court’s decision in

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

affirmed in all essential respects in Gilmer v. Interstate/

Johnson Lane Corp., 500 U.S. 20 (1991) and Livadas v.

Bradshaw, 114 S.Ct. 2068, 2080 n.21 (1994), the arbi-

tration provisions of the collective bargaining agreement

could not preclude Mr. Pryner from bringing his statutory

anti-discrimination claims. Pet. App. 34-43.

Tractor took an interlocutory appeal to the United

States Court of Appeals for the Seventh Circuit, claiming

the appeal was proper under § 16 of the Federal Arbitra-

tion Act (“FAA”), 9 U.S.C. § 16. In its opinion, issued

March 20, 1997, and authored by Judge Posner, the

Seventh Circuit concluded that the FAA applies to dis-

putes such as this under a collective bargaining agree-

ment, and thus supplied the appeals court with jurisdiction

over the interlocutory appeal.? On the merits, the Seventh

1 This case was consolidated in the Seventh Circuit with another

case raising similar issues but involving a different, and differently

4

Circuit affirmed the judgment of the district court on the

basis of this Court’s holding in Gardner-Denver.

The Seventh Circuit emphasized that Gilmer “certainly

cannot be taken to hold that collective bargaining agree-

ments can compel the arbitration of statutory rights.”

Pet. App. 27. To the contrary, stated the court of appeals,

Gilmer, by distinguishing Gardner-Denver, underscored the

proposition that the availability of a grievance/arbitration

mechanism under a collective bargaining agreement can-

not supplant an individual employee's right to bring his

statutory anti-discrimination claim in court. Pet. App. 26.

And the Seventh Circuit went on to explain at length why

the Gardner-Denver rule is the right rule:

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 prosecute his grievance and if it loses in the early

stages of the grievance proceedings to submit the

grievance to arbitration. Vaca v. Sipes, 386 US.

171, 190-91 (1967). . . . [T]he union has broad

discretion as to whether or not to prosecute a griev-

ance. 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. [Citations] Corresponding to this ex-

pansive and ill-defined discretion, the scope of judi-

cial review of its exercise is deferential. See e.g. Air

Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 78

(1991) ... The result is that the worker who asks

the union to grieve a statutory violation cannot have

great confidence either that it will do so or that if

it does not the courts will intervene and force it to

do so. [Pet. App. 19-20].

On the basis of these distinctions between individual agree-

ments to arbitrate statutory claims and collective bargain-

worded, collective bargaining agreement. Sobierajski v. Thoesen

Tractor & Equipment Co., Seventh Cir. No. 96-2892. Sobierajski has

since been settled, and is not involved in the present proceeding.

-

VS =—.._—rc<«_<SS_""——

5

ing agreement arbitration of non-discrimination clauses, the

Seventh Circuit concluded that foreclosing Mr. Pryner’s

right to pursue his statutory claims in federal court be-

cause of a possible remedy under the “majoritarian” col-

lective bargaining agreement would be “deliver[ing] the

enforcement of the rights of . . . minorities into the hands

of the majority,” a result not “consistent wtih the policy

of [employment discrimination] statutes.” Pet. App. 21.

Tractor filed its petition for a writ of certiorari on

May 15, 1997.

ARGUMENT

The collective bargaining agreement here does not pro-

vide for the arbitration of Statutory claims and this case

therefore does not present the legal question—on which

Tractor seeks certiorari—as to the effect of a collective

agreement that does so provide on an individual employee’s

Suit asserting a statutory claim.

There is, additionally, a potentially dispositive threshold

question which, if decided differently than the Seventh Cir-

cuit decided it, would preclude reaching the question pre-

sented in Tractor’s petition.

And, in any event, the circuit conflict asserted in the

petition is likely to resolve itself over time. The Seventh

Circuit’s ruling is correct based on this Court’s cases,

and has been adopted by every circuit but one that has

definitively decided the question. Austin v. Owens-Brock-

way, 78 F.3d 875 (4th Cir.), cert. denied, US. ;

117 S.Ct. 432 (1996), the lone decision creating the as-

serted conflict, is becoming increasingly isolated and given

time, is likely to be limited to its unusual facts.

The petition for writ of certiorari should therefore be

denied.”

2 We note that the same issue Tractor presents for review in this

case was twice last term presented to the Court in petitions for

writs of certiorari, both of which were denied. Austin v. Owens-

Brockway, supra, Docket No. 96-337, cert. denied, U.S. —,

117 S.Ct. 482 (1996); Varner »v. National Super Markets, Inc.,

6

1. Tractor seeks certiorari to decide the following

question:

whether a voluntary agreement to arbitrate federal

statutory employment discrimination claims is en-

forceable under Gilmer v. Interstate/Johnson Lane

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

is a part of a collective bargaining agreement. [Pet.

Cert. I]

This case simply does not raise that question, because

the collective bargaining agreement in this case was not

an “agreement to arbitrate federal statutory employment

discrimination claims.”

To see why that is true, it is instructive to compare

the collective bargaining agreement here with the agree-

ment before the Fourth Circuit in Austin. The Austin

agreement provided:

Article 38

Fair Employment and Equal Opportunities

1. The Company and the Union will comply with

all laws preventing discrimination against any em-

ployee because of race, color, religion, sex, national

origin, age, handicap, or veteran status.

2. This Contract shall be adminfstered in accordance

with the applicable provisions of the American with

Disabilities Act. Before taking action relative to this

Action, the Company will meet with the Local Union,

and both parties will have sufficient opportunity to

express their opinions regarding an anticipated action.

94 F.3d 1209 (8thk..Cir. 1996), No. 96-802, cert. denied sub nom.

National Supermarkets, Inc. v. Varner, USS. , 117 S.Ct.

946 (1997). At the time of both of those denials, as now, there

was a conflict in the circuits, with only Austin holding that Gilmer,

rather than Alexander v. Gardner Denver, governs in the collective

bargaining situation. The only change is that the Austin rule has

subsequently been rejected by the Seventh and Tenth Circuits.

7

3. Any dispute under this Article as with all other

Articles of this Contract shall be subject to the griev-

ance procedure.

Quite understandably, the Fourth Circuit regarded this

language as providing in express terms for the submission

of all statutory issues concerning the enumerated employ-

ment discrimination claims to the grievance/arbitration

process, and went on to decide whether that procedural

route for the resolution of the covered statutory employ-

ment discrimination disputes is mandatory for covered

employees.

The collective bargaining agreement governing Mr.

Pryner’s case, by contrast, does not provide for arbitration

of Mr. Pryner’s statutory claims, and makes this clear in

several respects.

First, with respect to discrimination based on “race [or]

color”, the agreement simply forbids the Company to

discriminate on those bases. The agreement makes no

reference whatever to external employment discrimination

law, and does not purport in any way to incorporate into

the agreement an obligation to follow external law. Art.

29, § 3. App. Sa.

The agreement in Gardner-Denver contained a similar

provision, which prohibited “discrimination against any

employee on account of race, color, religion, sex, national

origin, or ancestry.” 415 U.S. at 39. And Gardner-

Denver makes clear that a collective bargaining agreement

which simply prohibits discrimination in employment on

certain bases cannot be read as broadly incorporating all

external statutory protections against discrimination:

In submitting his grievance to arbitration, an em-

ployee seeks to vindicate his contractual right under

a collective bargaining agreement. .. . The distinctly

separate nature of these contractual and statutory

rights is not vitiated merely because both were vio-

lated as a result of the same factual occurrence. [415

U.S. at 49-50.]

Additionally, one of Mr. Pryner’s claims arose under

the Americans with Disabilities Act. Unlike the agreement

in Austin, the collective bargaining agreement here does

not provide any affirmative contractual protection against

discrimination based on disability. Article 29, Section 2

does not mention discrimination based on handicap or dis-

ability. App. 5a. And Article 29, Section 3, far from

incorporating the ADA protections into the agreement,

provides that accommodations required by external law

“that may be in conflict with provisions of this Agree-

ment” can be made “notwithstanding the requirements of

this Agreement.” (Emphasis supplied). App. 5a. To

agree that something may be done “notwithstanding” the

agreement although “in conflict” with it is only to preclude

a claim of contract violation where the employer complies

with external law. To so agree is certainly not to provide

any protections enforceable under the agreement itself.

With regard to the ADA claim, then, the Tractor-

Teamsters collective bargaining agreement does not pro-

vide even contractual discrimination protections such as

those applicable in Gardner-Denver.

Moreover, the collective bargaining agreement govern-

ing Mr. Pryner provides emphatically that arbitration

under the agreement is limited to contractual questions.

Art. 12 §§ 1, 2(A), App. la-2a. Arbitration, for ex-

ample, is limited to grievances “based on an alleged viola-

tion by the Company of a specific contract provision or

. . . based on the interpretation or application of a specific

provision of the contract.” Art. 12, §2, App. 2a. And

the arbitration clause of the agreement specifically pro-

vides that an arbitrator may not reverse the company’s

decision “unless it is found that the Company misinter-

preted or violated the express terms of the contract.” Art.

12, §2, App. 2a. Finally, the agreement expressly pro-

vides that “[t]he arbitrator shall only interpret the Agree-

ment and shall not modify, amend, add to or delete from

any of its provisions in deciding the issue(s) submitted

Se a

.

9

to him by the parties.” Art. 12 § 7, App. 3a-4a (emphasis

supplied ).

Similar language is consistently understood in the labor

relations world as precluding the arbitration of statutory

disputes. See, e.g., Hawaiian Airlines v. Norris, 114 S. Ct.

2239 (1994) (holding that the Railway Labor Act, 45

U.S.C. § 158 et seq., which requires the arbitration of

“disputes growing out of grievances or out of the inter-

pretation or application” of collective bargaining agree-

ments does not require the arbitration of statutory dis-

putes); Livadas v. Bradshaw, supra, 114 S. Ct. at 2071

n.2 (collective bargaining agreement that defines a griev-

ance as a “dispute . . . involving or growing out of the

meaning, interpretation, application, or alleged violation”

of the agreement does not require the arbitration of issues

governed by independent statutory law). In contrast, the

collective bargaining agreement considered by the Fourth

Circuit in Austin explicitly provided for arbitration of the

employer’s promise to abide by all laws prohibiting speci-

fied forms of employment discrimination. 78 F.3d at 879.

The collective bargaining agreement in this case, then,

unlike the one in Austin, does not permit, much less re-

quire, submission of statutory questions to the arbitrator.

The Seventh Circuit identified some of these features

of the collective bargaining agreement governing Mr.

Pryner. Pet. App. 25.* But that court went on to decide

the arbitration of statutory claims issue decided in Austin

anyway, maintaining, quite incorrectly, that Austin “[does]

not differ in any material particular from the present

[case].” Pet. App. 24.*

* The difference between the substantive and procedural provi-

sions in the agreements in this case and in Austin, and the con-

sequences of those differences under this Court’s cases, was argued

at length to the Seventh Circuit. Brief and Supplemental Appendix

of Plaintiff-Appellee, at 19-32.

*It is possible that the Seventh Circuit decided the Austin ques-

tion although that question is not presented by this case because it

10

The upshot is that, if certiorari were granted in this

case to decide “whether a voluntary agreement to arbi-

trate federal statutory employment discrimination claims

is enforceable . . . notwithstanding that it is a part of a

collective bargaining agreement,” the Court would almost

certainly never reach the issue on which certiorari was

granted, because it would discover that there was no such

agreement in this case.

The only related issue that could be presented in this

case is whether a collective bargaining agreement arbitra-

tion procedure limited to the adjudication of a contractual

nondiscrimination clause, with no commitment of statu-

tory issues to the arbitrator, must be exhausted before

bringing a case based on a federal statute. If plenary

review were granted in this case, that issue could not be

reached, because it is not within the question presented.

See Supreme Court Rules, Rule 14.1(a); Yee v. City of

Escondido, 503 U.S. 519, 536-37 (1992). And that issue

is not certworthy, because there is no circuit conflict on

the question, Gilmer is entirely irrelevant to it (since the

agreement to arbitrate in that case did cover statutory

rights), and this Court’s pre-Gilmer cases hold defini-

tively that because there is a fundamental difference be-

tween contract-based rights and rights grounded in a fed-

eral statute, a contract-based right to be free of discrim-

ination has no legal effect on employees’ federal statutory

rights. Gardner-Denver, supra; Barrentine v. Arkansas

Best Freight System, 450 U.S. 728, 737-38, 744 (1981)

(“An arbitrator’s power is both derived from, and limited

by, the collective bargaining agreement . . . [Where] the

arbitartor is required to effectuate the intent of the parties,

he may issue a ruling that is inimical to the public policies

underlying the {statute], thus depriving an employee of

protected statutory rights.”); see also Board of Regents v.

Tomanio, 446 U.S. 478, 490 (1990) (“contractual rights

was presented by the companion case, Sobierajski, now settled.

The collective bargaining agreement in Sobierajski did refer to

external employment discrimination law. Pet. App. 25.

11

Under a collective bargaining agreement and statutory

rights have legally independent origins”); International

Union of Electrical Workers v. Robbins & Myers, 429

U.S. 229, 236, 238 (1976) (declining to toll Title VII

Statute of limitations during the pendency of contractual

grievance proceedings was not asserting the same statutory

claim in a different forum, but was asserting an inde-

pendent claim based on a contract right.”).

2. There is a second reason this Court would not reach

the issue presented in Tractor’s petition were review

granted: This case presents a potentially dispositive thres-

hold issue, viz., whether the Federal Arbitration Act, the

asserted basis for the court of appeal’s appellate jurisdic-

tion over the interlocutory appeal from the denial of a

Stay, applies to disputes arising from collective bargaining

agreements.® Mr. Pryner is filing a cross-petition request-

ing that, if this Court grants Tractor’s petition for cer-

tiorari on the merits, the Court also grant certiorari on

the FAA question. If the Court concludes that the FAA

does not apply to such agreements, then the interlocutory

appeal to the Seventh Circuit was improper, and this

Court will have no merits issue before it to decide.

3. Finally, the asserted circuit conflict is not worthy

of this Court’s attention because it is likely to work itself

out on the basis of the differences between the collective

bargaining agreement in Austin and those in the other

decided federal appellate cases.*

5 Austin did not proceed under the FAA, since under the Fourth

Circuit’s law, the FAA has no application to collective bargaining

agreements. Austin, 78 F.3d at 879.

*It is worth noting as well that this case in its current posture

is merely an appeal from an interlocutory order denying a motion

for a stay. Even if the case proceeds to trial and judgment under

the Seventh Circuit decision. Tractor could seek review on the

same issue it now raises after the trial is over. By the same token,

the question on which Tractor seeks certiorari would disappear if

Tractor wins a final judgment in its favor after trial. The combina-

12

Austin is the only decided federal appellate case that

has adopted petitioner’s position on the question it seeks to

present to this Court.” All the federal appellate cases (and

cases by State courts of last resort) addressing whether

employees covered by collective bargaining agreements are

precluded from asserting federal statutory rights in federal

court where there could be a claim on the same facts

under the agreement’s grievance/arbitration clause have,

like the decisions below in this case, held that there is no

such preclusion, and that the Gilmer lines of cases requir-

ing the arbitration of statutory claims applies to individ-

ual contracts of employment only. Varner v. National

Super Markets, Inc., supra, 94 F.3d at 1209; Tran v.

Tran, 54 F.3d 115 (2nd Cir. 1995); Harrison v. Eddy

Potash. Inc., 112 F.3d 1437 (10th Cir. 1997); Pike v.

Burlington Northern R.R. Co., 903 P.2d 1352, 1355-57

(Mon. 1995).°

tion of the interlocutory posture and the fact that the circuit

conflict on which Tractor’s petition is based may well dissipate

while this case goes forward in the lower courts counsel that the

Court should not depart from its presumption against granting

certiorari in cases that have not yet resulted in a final judgment.

See e.g., Virginia Military Inst. v. United States, 113 S.Ct. 2431

(1993) (Scalia, J., concurring) (citing American Construction Co.

v. Jacksonville, T & K.W.R. Co., 148 U.S. 372, 384 (1893); Brother-

hood of Locomotive Firemen & Enginemen v. Bangor & Aroostook

R. Co., 389 U.S. 327 (1967) (per curiam) ).

™In an effort to create a broader conflict, the petition relies

heavily upon federal district court cases and one intermediate state

appellate court case that follow Austin. The rules of this Court,

however, do not recognize conflicts at those levels as supporting

a petition for writ of certiorari (Rule 10), and with good reason:

It is the task of the federal courts of appeal and of the highest

court of the states, not of this Court, to resolve such decisional

disarray within their own jurisdictions.

8 Additionally, many other cases on related issues have reaf-

firmed the vitality of Gardner-Denver after Gilmer, and stressed the

distinction between individual and collective agreements for pur-

poses of determining the obligation to arbitrate rather than litigate.

Heurtebise v. Reliable Business Computers, Inc., 550 N.W.2d 243,

13

The collective bargaining agreement in Austin, quoted

above, is quite unusual in the clarity with which it makes

Statutory causes of action cognizable under the collective

bargaining agreement grievance/arbitration system. As the

Tenth Circuit concluded recently in rejecting the Austin

approach in favor of the “majority view” (Harrison,

supra, 112 F.3d at 1453-54), in the usual case “fajn

arbitration clause in a collective bargaining agreement

. . » implicates only contractual rights under that agree-

ment,” (id.).

That Austin was not the “usual” case almost certainly

explains why the Fourth Circuit decided it differently from

all the other appellate cases concerning exhaustion of

collective bargaining agreement arbitration in employment

discrimination cases. The Fourth Circuit itself has not

had the opportunity to apply Austin to collective bargain-

ing agreement discrimination and grievance/arbitration

provisions of the typical kinds. Until the Fourth Circuit

or some other federal court of appeals or state high court

decides that the arbitration process created by the more

usual collective bargaining agreement precludes federal

employment discrimination litigation, there will be no con-

flict on the question petitioner seeks to present worthy of

this Court’s attention.®

248-49 (Mich. 1996); Winston v. Maine Technical College System,

631 A.2d 70, 73 n.6 (Me. 1998); Alford v. Dean Witter Reynolds,

Inc., 939 F.2d 229, 230 (5th Cir. 1991); Willis v. Dean Witter

Reynolds, Inc., 948 F.2d 305, 308 (6th Cir. 1991); Bernder v. A.G.

Edwards & Sons, 971 F.2d 698, 700 (11th Cir. 1992).

® The only circuit court case of which we are aware involving

a somewhat similar agreement to that in Austin is one that is

presently pending. See Martin v. Dana Corp., 1997 U.S. App.

LEXIS 13791 (8rd Cir., June 12, 1997), vacated and rehearing

en bane ordered July 1, 1997. In Martin, a panel of the Third

Circuit followed Austin, stressing the particular language of the

agreement before it and distinguishing the other appellate cases

on that basis. If the Third Circuit in its en banc review decides

not to follow Austin, there might be then, as there is not now,

a certworthy circuit conflict.

14

Any such development is exceedingly unlikely. For,

under Gardner-Denver and the line of related cases extend-

ing it and affirming its essential rationale, the result

reached by the Seventh Circuit in this case is the only

one that can be squared with this Court’s precedents. See

e.g. Barrentine v. Arkansas-Best Freight System, supra

(applying Gardner-Denver to causes of action under the

Fair Labor Standards Act and elaborating on its ration-

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

(1984) (applying Gardner-Denver and Barrentine to

causes of action under 42 U.S.C. § 1983); see also Allis-

Chalmers v. Lueck, 471 U.S. 202, 213 n.8 (1985)

(Gardner-Denver distinguished NLRA rights, conferred

on employees collectively, “which could be waived by

contract between the parties” from “an individual’s sub-

stantive right derived from an independent body of law

that could not be avoided by a contractual agreement.” ;

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

557, 565 (1987), citing McDonald, Barrentine, and

Gardner-Denver (“This Court has, on numerous occa-

sions, declined to hold that individual employees are,

because of the availability of arbitration, barred from

bringing claims under federal statutes. . . . [T]he theory

running through these cases is that notwithstanding the

strong policies encouraging arbitration, ‘different consid-

erations apply where the employee’s claim is based on

rights arising out of a statute designed to provide minimum

substantive guarantees to individual workers.’).

Far from undermining those cases, Gilmer specifically

reaffirmed them, distinguishing Gardner-Denver on the

basis, among others, that in Gardner-Denver “the employ-

ees there had not agreed to arbitrate their statutory

claims” and “an important concern therefore was the ten-

sion between collective representation and individual statu-

tory rights, a concern not applicable in the present [in-

dividual agreement] case.” 500 U.S. at 34. And since

Gilmer, this Court has reiterated that Gilmer is consistent

15

with Gardner-Denver, and that Gardner-Denver remains

good law:

In holding that an agreement to arbitrate an Age Dis-

crimination in Employment Act claim is enforceable

under the Federal Arbitration Act, Gilmer empha-

sized its basic consistency with our unanimous deci-

sion in Gardner-Denver [citations omitted], permit-

ting a discharged employee to bring a Title VII claim

notwithstanding his having already grieved the dis-

missal under a collective-bargaining agreement. Gil-

mer distinguished Gardner-Denver as relying, inter

alia, on: the ‘distinctly separate nature of . . . con-

tractual and statutory rights’ (even when both were

‘violated as a result of the same factual occurrence’)

[citations omitted]; the fact that a labor arbitrator

has authority to resolve only questions of contractual

rights [citations omitted]; and the concern that in

collective-bargaining arbitration, ‘the interests of the

individual employee may be subordinated to the col-

lective interests of all employees in the bargaining

unit.’

Livadas v. Bradshaw, supra, 114 S. Ct. at 2081 n.21.

Thus, Gilmer and Livadas together provide more than

adequate guidance to the lower courts. Those cases re-

affirm the recognition in Gardner-Denver and its progeny

that there is an inherent tension between federal labor pol-

icy encouraging the collective resolution of terms and con-

ditions of employment through collective bargaining, and

the particular federal statutory protection accorded to each

individual employee to be free of discrimination. And

nothing in Gilmer or Livadas disturbs the conclusion of

Gardner-Denver and its progeny that this tension is to be

resolved by permitting individual employees to pursue

the statutory procedures available to vindicate their indi-

vidual statutory employment rights, even if there is also

a collectively bargained grievance/arbitaration procedure

available to them.

16

CONCLUSION

For the foregoing reasons Tractor’s petition for a writ

of certiorari should be denied.

Respectfully submitted,

WILLIAM R. GROTH RICHARD A. JONES ‘

FILLENWARTH, DENNERLINE, 1214 N. Rural Street :

GROTH & TOWER Indianapolis, Indiana 46201 F

Suite 204 (317) 687-4213 é

1213 N. Arlington Ave. MARSHA S. BERZON * :

Indianapolis, Indiana 46219 Mary LYNNE WERLWAS

(317) 358-9363 ALTSHULER, BERZON,

NUSSBAUM, BERZON

& RUBIN

177 Post Street, Suite 300

San Francisco, CA 94108

(415) 421-7151

Attorneys for Respondent

Pryner

* Counsel of Record

Dated this 15th day of J uly, 1997.

APPENDIX

la

APPENDIX

Articles 12 and 29 of the

Collective Bargaining Agreement between

Tractor Supply Co. and

Chauffeurs, Teamsters, Warehousemen, and Helpers,

Local Union No. 135

ARTICLE 12—GRIEVANCE AND

ARBITRATION PROCEDURE

Section I

A grievance within the meaning of the Article shall be

limited to a dispute arising between the parties hereto in-

volving interpretation or application of the provisions of

this Agreement. Should a grievance arise it shall be han-

dled in the following manner:

Step 1. The aggrieved associate, will present a griev-

ance to the associate’s immediate supervisor within

two (2) working days of the occurrence of the

complained-of event. If not presented within this

period of time, the case cannot be presented at a

future date. The Company shall render a decision

within two (2) working days of the date of presen-

tation.

Step 2. If not disposed of in Step 1, the associate may

present the grievance in writing to the Company. A

decision at Step 1 shall be considered to be final and

the grievance shall be considered to be withdrawn

unless the grievance is taken to Step 2 within three

(3) working days of the date of decision at Step 1.

The Company shall give this decision within three

(3) working days after the grievance is presented to

him.

Step 3. If not disposed of in Step 2, the associate and

the business representative of the Union may appeal

2a

the grievance by giving written notice thereof to the

Company. A decision at Step 2 shall be considered

as final unless the notice of appeal to Step 3 is given

within five (5) calendar days after the decision. The

Company shall render this decision within five (5)

calendar days from the date the written grievance is

presented at Step 3.

At any step of the grievance procedure, if the appropriate

Company representative does not act within the specified

period of time, the grievance shall be considered as having

been denied as of the conclusion of the applicable time

period.

Section 2

Only those issues fulfilling both of the following require-

ments can be appealed beyond Step 3.

A. The grievance must be based on an alleged violation

must be based on the interpretation or application of

a specific provision of the contract. A Company

decision will not be subject to reversal unless it is

found that the Company misinterpreted or violated

the express terms of the contract.

Matters involving associate grievances shall be brought to

formal arbitration only after attempts to resolve the griev-

ance in the steps as outlined in the Grievance Procedure

are completed.

Section 5

When the Union invokes the arbitration procedure, the

Union will request a panel of arbitrators from the Federal

Mediation and Conciliation Service. The FMCS shall send

list of arbitrators to the authorized representatives of

Union and the Company. The arbitrator will be se-

from the panel by the parties, alternately striking a

a. i

PREECE ES

il

ne

et

if

i

Section 6

In the course of hearings before the arbitrator, the Com-

pany and the Union shall be afforded a full opportunity

to present any evidence, written or oral, which may be

pertinent to the matter before the arbitrator.

Section 7

4a

~ modify, amend, add to or delete from any of its provisions

in deciding the issue(s) submitted to him by. the parties

as contained in the above grievance procedure.

Section 8

Associates covered by this Agreement cannot, except

through the duly constituted officials of the Union, initiate

the arbitration procedures set forth in this Article.

Section 9

All grievance and arbitration matters shall be handled at

a time other than normal working hours, and shall not

interfere with an associate’s performance of duties. Time

spent by the associates in handling such matters shall be

without pay.

Section 10

No associate or Union representative shall in any manner

solicit or encourage grievances and disputes. Any griev-

ance or dispute which has been in any way solicited or

encouraged shall be null and void, will be reviewed by the

Company for such reason, and will not be subject to the

grievance and arbitration procedure.

Section 11

The decision of the arbitrator will be final and binding on

all parties.

Sa

ARTICLE 29—MISCELLANEOUS PROVISIONS

Section 1—Bulletin Boards

The Company agrees to post within the business premises

such notices of Union meetings, etc., as may be delivered

to it by the Union.

Section 2—No Discrimination

The Company agrees that it will not discriminate 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, reli-

gion, 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 be-

cause 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 regula-

tions promulgated thereunder, the Company may be re-

quired to make a reasonable accommodation to the dis-

ability 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 there-

after as soon as is practicable of such situation on a

confidential basis.