Amicus Curiae Brief — Alexander v. Gardner-Denver Co.

Supreme Court brief1974

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> An employee does not waive his right under

2 title VII of the Civil Rights Act to bring

suit in federal district court for employment

discrimination merely by having his union

pursue to termination the grievance-arbitra-

tion procedure under the collective-bargain-

ing agreement between the union and his

IEE oa ome rcdinen nn esiecen sine ain

A. The federal courts are the forum

established by Congress for deter-

mining the rights conferred by title

B. Title VII and collective-bargaining

agreements provide legally distinct

rights that are properly enforceable

C. Judicial deference to arbitral decisions

is inappropriate in title VII cases,

and would be especially un-

warranted in the circumstances

524-727—73——_1

errr ee

CITATIONS

Cases: oka

Bernhardt y. Polygraphic Co., 350 U.S. 198... 19

Bowe v. Colgate-Palmolive Co., 416 F.2d 711.. 2%

Boys Markets, Inc., v. Clerks Union, 398 U.S.

12, 22

Carey v. Westinghouse Corp., 375 U.S. 261... 21

Collyer Insulated Wire, 192 NLRB 837 22

Carey v. Westinghouse Corp., 375 U.S. 261... 2

Cooper v. Philip Morris, Inc., 464 F.2d9.... 10

Dewey v. Reynolds Metals Co., 429 F.2d 324_ 6, 22, 25

Edward G. Budd Mfg. Co. v. National Labor

Relations Board, 138 F.2d 86 certiorari

denied, 321 U.S. 778

Hutchings v. United States Industries, Inc.,

A 10, 21, 24-25

J. I. Case Co. v. National Labor Relations

Board, 321 U.S. 332

Repiiblic Steel v. Maddox, 379 U.S. 650... 13, 14, 18

Rios v. Reynolds Metals Co., 467 F. 2d 54.. 28, 29, 31

Steelworkers vy. American Mfg. Co., 363 U.S.

Steclworkers v. Enterprise Corp., 363 U.S.

12, 13, 15

Steelworkers vy. Warrior & Gulf Co., 363 U.S.

GOs pois’ higgins nttndin ekceautevcomn na 12, 17

Taylor v. Armco Steel Corp., 429 F.2d 498... %

tinued

Textile Workers Union v. Lincoln Mills, 353

U.S. Bulk Carriers v. Arguelles, 400 US.

14, 15, 16

United Packinghouse Workers v. National

Labor Relations Board, 416 F. 2d 1126,

certiorari denied, 396 U.S. 903

Vaca v. Sipes, 386 U.S. 171

Statutes involved:

Equal Employment Opportunity Act of 1972,

86 Stat. 103

Civil Rights Act of 1964: Title VII, 78 Stat.

241, et seq., 42 U.S.C. 2000a, et seq.:

Section 703(a)(1), 42 U.S.C. 2000e-

Section 706(b), 42 U.S.C. 2000e-5(b)_ 10, 11, 23

Section 706(c), 42 U.S.C. 2000e-5(c)____ 11

Section 706(e), 42 U.S.C. 2000e-5(e)___- 11

Section 706(f), 42 U.S.C. 2000e-5(f)___ 8, 10, 12

Section 706(f)(1), 42 U.S.C. 2000e~

Section 706(g), 42 U.S.C. 2000e-5(g)___-

Section 716(c), 42 U.S.C. 2000e-15

Miscellaneous:

American Law Institute, Restatement of Judg-

ments, § 2 (1942)

A.nerican Law Institute, Restatement of Judg-

110 Cieeenal Record 12596-12597... ._

Comment, Dewey v. Reynolds Metals Co.:

Labor Arbitration and Title VII, 119 U. Pa.

L. Rev. 684 (1971)

Cox, . Rights Under a Labor Agreement, 69

Harv. L. Rev. 601 (1956)

Edwards & Kaplan, Religious Discrimination

and the Role of Arbitration under Title VII,

69 Mich. L. Rev. 599 (1971)

Elkouri & Elkouri, How Arbitration Works, 155

Fleming, The Labor Arbitration Process (1965).

Gould, Labor Arbitration of Grievances Involv-

ing Racial Discrimination, 118 U. Pa. L. Rev.

Hebert & Reischel, Title VII and the Multiple

Approaches to Eliminating Employment Dis-

crimination, 46 N.Y.U. L. Rev. 449 (1971).

Jalet, Judicial Review of Arbitration: The

Judicial Attitude, 45 Cornell L.G. 519

Jones, The Accretion of Federal Power in Zabor

Arbitration—The Example of Arbitral Dis-

covery, 116 U. Pa. L. Rev. 830

Lev & Fishman, Suggestion to Management:

Arbitration v. The Labor Board, 10 B.C.

Ind. & Com. L. Rev. 763 (1969)

Meltzer, Labor Arbitration and Overlapping

and Conflicting Remedies for Employment

Discrimination, 89 U.. Chi. L: Rev. 30

, 16, 22, 2B

Platt, The Relationship Between Arbitration and

Title VII of the Civil Rights Act of 1086,:8

Ga. L. Rev..398 (1969)

Miscellaneous—Continued

Smith, Merrifield & Rothchild, Collective Bar-

gaining and Labor Arbitration 217 (1970)...

Note, Developments in the Law-Discovery, 74

Harv. L. Rev. 940 (1961)

Note, Judicial Review of Arbitration Awards on

the Merits, 63 Harv. L. Rev. 681 (1950)_...

Note, The NLRB and Deference to Arbitration,

77 Yale L.J. 1191 (1968)

"Jn the Supreme Gourt of the Writed States

Ocroser TERM, 1973

No. 72-5847

HARRELL ALEXANDER, SR., PETITIONER

GARDNER- DENVER COMPANY

ON WRIT OF OBRTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

The opinion of the district court (App. 33-43) is

reported at 346 F. Supp. 1012. The opinion of the

court of appeals (App. 45-47) is reported at 466 F.

2d 1209.

JURISDICTION

The judgment of the court of appeals (App. 48)

was entered on August 11, 1972. On November 4,

1972, Mr. Justice White extended the time for filing

a petition for a writ of certiorari to and including

December 8, 1972, and the petition was filed on the

latter date. The petition was granted on February 20,

1973. 410 U.S. 925. This Court’s jurisdiction rests

on 28 U.S.C. 1254(1).

(1)

QUESTION PRESENTED

Whether, by invoking the grievance-arbitration pro-

cedures. of a collective-bargaining agreement which

are putsued to termination by his union, an employee

waives his right under Title VII of the Civil Rights

Act of 1964 to bring suit in federal district court for

employment discrimination, —

STATUTES INVOLVED

Section. 703 of the Civil Rights Act of 1964, 42

U.S.C. 2000e-2(a)(1), provides in pertinent part:

- It shall be an unlawful employment practice

for an employer * * * to discharge any indi-

vidual, or otherwise to discriminate against

“* any individual with respect to his compensation,

terms, conditions, or privileges of employment,

because of such individual’s race, color, religion,

“sex, or national origin * * *.

Section 706 of the Civil Rights Act of 1964, 42

U.S.C. 2000e-5, provides in pertinent part:

(e) If within thirty days after a charge

[of unlawful employment practice] is filed with

the Commission * * * the Commission has been

unable to obtain voluntary compliance * * *,

the Commission shall so notify the person ag-

grieved and a civil action may, within thirty

- days thereafter, be brought against the respond-

ent named in the charge (1) by the person

' claiming to be aggrieved, or (2) if such charge

was filed by a member of the Commission, by

’ any person whom the charge alleges was ag-

grieved by the unlawful employment prac-

tice. *ee*# 4

(f) Each United States district court * * * shall

have jurisdiction of actions brought under this

su *#* nal

(g) If the court finds that the respondent has

intentionally engaged in * * * an unlawful em-

ployment practice charged in the complaint, the

court may enjoin the respondent from engaging

in such unlawful employment practice, and order

such affirmative action as may be appro-

priate ***.

INTEREST OF THE UNITED STATES

The decision in this case is likely to have a signifi-

cant impact upon enforcement of federal ri

under Title VII of the Civil Rights Act of 1964. In

that Act Congress has entrusted the Equal Employ-

ment Opportunity Commission and the Attorney Gen-

eral with important responsibilities for eliminating

religious, racial, ethnic, or sexual discrimination in

employment. But Title VII also strongly relies on

private court actions as a means of enforcing statu-

tory rights against discriminatory employment prac-

tices. At the same time, federal labor policy favors

settlement of disputes arising under collective bar-

gaining agreements through the grievance and arbi-

tration procedures provided for in such agreements.

The decision of the court of appeals, which in effect

requires an employee to choose between grievance-

arbitration and suit under Title VII, interferes with

both of these federal statutory policies. The United

States believes that the policies are complementary

and that an election of forums, which necessarily en-

tails also an election of rights, should not be required.

524-727—78——_2

In May 1966 petitioner, a black man, was hired by

respondent to do maintenance work. In June 1968 he

was promoted to'a position as a trainee drill opera-

tor.:He was discharged from employment in Septem-

ber 1969. Respondent informed petitioner at that time

that he was being discharged for producing too many

defective or unusable parts that had to be-scrapped

(App. 19-20).

Petitioner protested his discharge by filing a griey-

ance under the collective bargaining agreement be-

tween respondent and United Steelworkers of

America, Local Union. No. 3029, of which petitioner

-was a member (App. 11, 20). Petitioner’s grievance did

not allege that his discharge was racially motivated,

only that it was unjust (App. 32). Under the

collective bargaining agreement, respondent had re-

tained “the right to hire, suspend or discharge for

proper cause” (App. 23) but had agreed with the

union “that there shall be no discrimination against

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

national origin, or ancestry’’ (tbid.).

Petitioner’s grievance was presented by the union

through a multistep grievance procedure. Apparently

the issue of racial discrimination was first raised in

the final pre-arbitration step of the grievance proce-

dure (App. 12-13). All of petitioner’s claims were

rejected by respondent and the grievance proceeded

to arbitration (App. 20). Prior to arbitration, how-

ever, petitioner filed a parallel charge of racial dis-

crimination with the Colorado Civil Rights Commis-

sion, which referred the complaint to the Equal Em-_

ployment Opportunity Comemiesion: ¢ on Temoher: ‘5,

1969.(App. 46). >

At the arbitration ryan held on gr akiel By %G,

1969, the union did not press the issue: of -racial: dis-

-’, grimination (App. 13-14)... The only mention. made, by

- the union of any kind of: discrimination was the bare

recital of the text of a letter to the union by petitioner,

which stated that “I am knowledgeable that in the

same plant others have scrapped-an equal amount and

sometimes in excess, but by all logical reasoning I * *.*

have been the target of preferential discriminatory

treatment’’ (App. 30). The union representative did

testify, however, that respondent’s normal practice

was to transfer unsatisfactory trainee drill operators

back to their former positions (App. 22). Petitioner,

who believed that the union was not adequately repre-

senting him with respect to his claim of racial dis-

crimination (App. 14), informed the arbitrator that he

had filed a claim with the Colorado Commission be-

eause he “could not rely on the union’”’ (tbid.).

On December 30, 1969, the arbitrator issued his de-

cision, finding that petitioner had been “discharged for

just cause’’ (App. 22). The arbitrator’s five-page opin-

ion did not refer to the question of racial discrimina-

tion. The arbitrator stated that the union had failed

to produce evidence of a practice of transferring

rather than discharging unsatisfactory drill operators,

but he referred to that issue only in relation to the

general propriety or fairness of petitioner’s discharge

(see tbid.).

_ On July 25, 1970, the Equal Employment Opportu-

nity Commission determined that there was not rea-

sonable cause to believe that a violation of the Aé¢

had occurred (App. 33). The Commission thereafter

notified pe“tioner of his right under Title VII of the

Civil Rights Act of 1964 to institute a private action

against respondent in federal district court. (tbid.);

Petitioner then timely filed this aetion in the United

States District Court for the District of Colorado,

allegmg that his discharge resulted from a racially

discriminatory employment practice made unlawful by

the Act.

The district court found that petitioner’s claim of

racial discrimination had been submitted to the

arbitrator. The court then held that petitioner, having

elected the arbitration remedy, had no right to sue under

the Act. The court acknowledged the existence of a

confliet of authorities on this issue but chose to rely

on Dewey v. Reynolds Metals Co., 429 F.2d 324 (C.A.

6), affirmed by an equally divided eourt, 402 U.S. 689.

The court of appeals affirmed per curiam on the basis

of the district court’s opinion.

SUMMARY OF ARGUMENT

Congress has placed the final responsibility for en-

forcement of Title VII guarantees upon the federal

eourts. This Court has im prior cases recognized the

importance of judicial enforcement of Title VII

by upholding the right of individual access to

the courts. Petitioner here satisfied all the statutory

requisites for bringing a civil action; there is no

statutory basis for the dismissal of his action by the

courts below. : |

“In nish ac ley teenie

“to ‘rely upon the national labor policy

favoring arbitration as a method of settling Inbor’ dis-

putes. However, that policy makes arbitration the

exclusive means only of settling disputes that arise

out of a collective bargaining agreement. This Court.

has expressly held that the arbitral forum does not

displace the eourts in the adjudication of statutory

elaims. Contract rights are to be vindicated in the

arbitral forum, statutory rights ‘in the courts. And the

right asserted by petitioner is peculiarly statutory in

nature, existing independently of the collective —

gaining agreement.

Moreover, arbitration is an inadequate forum for the

vindication of the important civil rights guaranteed by

Title VII. The role of the arbitrator is merely to inter-

pret and apply the terms of the contract ; in doing so he

rarely relies upon publie law concepts, and he’ has

no authority to decide purely statutory matters. More-

over, the arbitrator, who is typically not trained in

the law, has no special competence or experience in the

adjuc‘ration of statutory questions. The employeec’s

¢laim of discrimination may not be adequately pre-

sented by his union. And the grievance-arbitration

process does not ensure careful, accurate fact-finding

of a kind necessary for the proper determination of

statutory claims.

The national labor and civil rights policies are there-

fore best accommodated by separate enforcement of con-

tractual and statutory rights. A requirement that an

owBers an

aggrieved employee must elect between the arbitral and

judicial forums would mean that, as to any broad class

of employees, neither contractual nor statutory rights

would be fully vindicated. Both rights should be given

full protection. Arbitration should be available for ex-

peditious consideration of contractual claims of dis

crimination and thus to put an end to the dispute be-

tween the union and employer, but the employee

should be free to pursue his statutory claims inde-

pendently in the courts. This approach is consistent

with the general statutory scheme, which provides

multiple forums for the consideration of discrimina-

tion claims, and is necessary to the full effectuation of

the congressional guarantee against employment dis-

crimination.

, C

The courts, in hearing Title VII claims, should not

defer to arbitral findings or decisions with respect

to contract claims. The factors that render arbitra-

tion an inadequate forum for the adjudication of stat-

utory rights also make inappropriate any juiem

deference to the arbitrator.

But even assuming arguendo the desirability of a

policy of partial deference, there is no basis for de-

ference to the arbitral decision in this case. The claim

of discrimination, and the important facts relating

to that claim, were not adequately presented to the

arbitrator. The arbitrator did not purport to decide

the issue of discrimination or to find any of the facts

that would have been necessary for such a decision.

His determination that respondent had just cause

to dismiss petitioner does not resolve the question

oe @& ©*° @2 2 @ WN & .t

whether under. os dneieient tl racially dis-

eriminatory to discharge, - rather a cite,

petitioner. .

AN EMPLOYEE DOES NOT WAIVE HIS RIGHT UNDER TITLE

Vil OF THE CIVIL RIGHTS ACT TO BRING SUIT IN FEDERAL

DISTRICT COURT FOR EMPLOYMENT DISCRIMINATION

’ "MERELY BY HAVING HIS UNION PURSUE TO TERMINA-

TION THE GRIEVANCE-ARBITRATION PROCEDURE UNDER

* ("HE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE

UNION. AND THE EMPLOYER

‘A. THE FEDERAL COURTS ARE THE FORUM ESTABLISHED BY CONGRESS

FOR DETERMINING THE RIGHTS CONFERRED BY TITLE VIL

1. The broad goal of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e et seq., is to eliminate

discrimination in employment because of race, color,

religion, sex, or national origin. Congress hoped that

this comprehensive goal would be achieved primarily

through conciliation and persuasion. To that end. it

created the Equal Employment Opportunity Commis-

sion and established a procedure under Title VII

whereby existing state and local equal employment op-

portunity agencies, as well as the Commission, would

have the opportunity to conciliate a dispute before an

individual was permitted to sue. Congress has

vested the Commission with authority to investigate

an individual charge of discrimination, to attempt to

achieve voluntary compliance with the requirements

of Title VII, and to bring a civil action against the

employer or union named in the charge. 42 U.S.C.

(1970 ed., Supp. IT) 2000e-5(f). But the Commission

itself has no direct powers of enforcement; it has no

authority to impose administrative sanctions.

Gongress placed the final responsibility for enfores.

‘ment of Title VII guarantees in the federal courts,

They are authorized under the Act to grant injunctive.

relief, and to order affirmative action if they find that

the Act has been violated. 42 U.S.C. (1970 ed., Supp.

IT),.2000e-5(g). The courts are empowered to grant

sueh relief whether or not the Commission has made a

finding of reasonable cause to believe that the Act has.

been violated. MeDonnell Douglas Corp. v. Green, 411

U.S. 792, 798-799. Similarly, findings and orders made

by state agencies donot. bar an individual from pur-

suing his claim before the Commission and in the fed-

eral cburts: Sed 42:0.8.C.. (1970 ed., Supp. IT) 2000e-5

(b):; Cooper v. Phélip Morris, Inc., 464 FP. 2a 9 (C.A. 6),

~ It is thus obvious that “[t]o the federal courts alone

is assigned the power to enforce compliance with [Title

VIi}.” Hutchings v. United States Industries, Inc., 428

F. 24303, 310 (0.A. 5).’ Indeed, this Court has reeog-

This conclusion is further confirmed by the legislative his

tory of éarlier versions of Title VII, which would have given

the Commission more power. The original Senate version pro-

vided for a quasi-judicial board with authority to receive un-

resolved complaints of employment discrimination from an Ad-

ministrator within the Department of Labor, and to issue broad

sentedial.endext, See. Comparatins. Anciysle of Title VIi of

H.R. 7152 as Passed by the House with S. 1987, as Reported,

110 Cong. Rec. 12596-12597. Moreover, the statute as originally

enatted did not authorize the Commission to institute civil ac-

tions, exeept to compel compliance with orders rendered in private

suite. That power was conferred on the Commission by the Equal

Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat.

103. Bat in sathorizing the Commission to bring suit to enforce

Title VIL, Congress expressly preserved the private right of ac-

tion. 42 U.S.C. (1970 ed., Supp. IT) 2000e-5(f), (1).

nized the importance of judicial enforcement of Title

VII guarantees in upholding the right of individual

access to the courts against allegations of procedural

obstacles. See McDonnell Douglas Corp. v. Green,

supra; Love v. Pullman Co., 404 U.S. 522.

2. In keeping with the statutory plan, petitioner in

this suit sought judicial enforcement of his Title VII

rights. The courts below held that petitioner, by having

had his grievance under the no-discrimination clause

of his collective bargaining agreement pursued to final

arbitration, had waived his right to sue his employer

for unlawful racial discrimination under Title VII.

They cited no statutory authority for this result, and

there is none.

Plaintiff had filed timely charges of racial discrimi-

nation with the Colorado Civil Rights Commission,

which referred the complaint to the Equal Employ-

ment Opportunity Commission.’ After investigation,

the Equal Employment Opportunity Commission de-

termined that there was not reasonable cause to be-

lieve that the Act had been violated; it thereupon

notified petitioner of his right to bring a private suit

against his employer.’ There is no statutory provision

for waiver of that richt, and, as we have noted, this

* Section 706(b), 42 U.S.C. 2000e-5(b), required that a charge

of unlawful employment practice must first be submitted to a

state or local agency. The same requirement is now set forth at 42

U.S.C. (1970 ed., Supp. II) 2000e-5(c).

* Section 706(e), 42 U.S.C. 2000e-5(e), permitted suit by an

individual upon the Commission’s failure, within a certain time, to

achieve voluntary compliance with the requirements of Title VII.

Such suits are now permitted under 42 U.S.C. (1970 ed., Supp. IT)

2000e-5 (£) (1).

524-727—78—8

Court in McDonnell Douglas Corp. v. Green, supra,

expressly held that a ‘‘no reasonable cause” finding by

the Commission does not bar a private suit based on

the same complaint. There is also no statutory pro-

vision for withdrawal of a federal district court’s

jurisdiction over Title VII suits on account of prior

arbitration of similar contractual issues; the Aet

grants the federal district courts jurisdiction over

such suits without restriction or. qualification, aside

from that of timeliness (see 42 U.S.C. 2000e-5 (f) ; 42

U.S.C. (1970 ed., Supp. II) 2000e-5(f) (3) ), and peti-

tioner’s suit was timely filed.

B. TITLE VII AND COLLECTIVE BARGAINING AGREEMENTS PROVIDE

LEGALLY DISTINCT RIGHTS THAT ARE PROPERLY ENFORCEABLE IN

DIFFERENT FORUMS

1. Notwithstanding the absence of any statutory au-

thority for doing so, the courts below held that the pur-

suit of petitioner’s claim under the no-discrimina-

tion clause of his collective bargaining agreement to

final arbitration foreclosed the possibility of judicial

consideration of his Title VII claim. In so holding,

the courts below relied on what they perceived to be

the dictates of national labor policy, as exemplified by

this Court’s decisions in Teatile Workers Union y,

Iancoln Mills, 353 U.S. 448, and the three Steelwork-

ers cases (Steelworkers v. American M fg. Co., 363

U.S. 564; Steelworkers v. Warrior & Gulf Co., 368

US. 574; Steelworkers v. Enterprise Corp., 363 U.8.

593). See also Boys Markets, Inc. vy. Clerks Union, 398

U.S. 235. The Court in those cases held that both employ-

ers and unions may be compelled to arbitrate a contract

grievance in accordance with the terms of the govern-

ing collective agreement and emphasized that “‘so far

as the arbitrator’s decision concerns construction of

the contract, the courts have no business overruling

him because their interpretation of the contract is dif-

ferent from his.” Steelworkers v. Enterprise Corp.,

supra, 363 U.S. at 599. And in Republic Steel v. Mad-

doz, 379 U.S. 650, the Court held that contract griev-

ance procedures must be exhausted before contract

claims may be submitted to the courts.

It is clear, however, that the holdings in these cases

fall far short of requiring a court to accept an

arbitrator’s denial of a contractual claim as also dis-

positive of a distinct statutory claim. The judgments

and opinions in those cases stand only for the primacy

of arbitration as a means of resolving contractual

issues; they do not call into question the independent

responsibility of the judiciary to resolve noncontrac-

tual, statutory issues. Moreover, this Court has ex-

plicitly indicated that the arbitral forum does not

displace the courts in the adjudication of peculiarly

statutory claims. For example, in McKinney v. Mis-

sourt-Kansas-Texas R. Co., 357 U.S. 265, the Court

held that an employee returning to employment after

his term of military service could sue to enforce his:

seniority rights under the Universal Military Train-

ing and Service Act, without having pursued the griev-

ance-arbitration remedy under his collective bargain-

ing agreement; the Court’s reasoning suggested (357

U.S. at 270) that even if the plaintiff had first asserted

his contractual seniority rights through arbitration, he

would nevertheless have been entitled to bring

suit under the statute. Similarly, in U.S. Bulk G

riers v. Arguelles, 400 U.S. 351, the Court held that

the federal district courts have jurisdiction o +

seaman’s statutory suits for wages, even when the sed.

man has ignored an available arbitral remedy. In dis

tinguishing between Arguelles and Maddoz, fr

Justice Harlan emphasized that where the substantiyg

rights being asserted “derive solely from the coms

tract,” strong policy concerns support the exclusivity

of the arbitral forum, but that where a right is claimed

under a federal statute, “‘the presumption of compre

hensiveness of the arbitral remedy is * * * rebutted”

and remedies prescribed by statute for vindication of

the statutory right remain available. U.S. Bulk Can

riers V. Arguelles, supra, 400 U.S. at 361-362 (con-

eurring opinion). >

In short, contract rights are to be vindicated in the.

arbitral forum, statutory rights in the courts. This

principle applies a fortiori where, as here, the statute

confers upon individuals a right that is wholly in

dependent of the collective bargaining agreements

right whose substance derives entirely from the statute

itself (and from the régulations adopted under it by

the agency responsible for its enforcement).‘ Thus, in

* Because Title VII rights are in this sense self-contained, the

present case does not present the difficulty that divided th

Court in Arguelles, In that case, the claimant's statutory and

contractual rights were interdependent—whether (and in at

measure) he was entitled to the statutory remedy Ke

“entirely on interpretation and application of the ining

agreement.” Arguelles, supra, 400 U.S. at 871 (dissenting opine

ion of Mr. Justice White). By contrast, Title VII rights bes

equally and in the same measure irrespective of whether a a

“

our view, a fundamental error committed by the courts

statutory claims, without giving due recognition to thé

fact that the rights created by Title VII are legally

distinct from those established by contract. Since the

rights are separate, an individual asserting violations

of both should be entitled to bring each claim before

the separate forum which is uniquely authorized to

interpret and enforce it.

2. There are significant differences between the proc-

esses of arbitration under a collective. bargaining

agreement and litigation under Title VII that high-

light the importance of recognizing that the separate

rights established by the contract and the statute are

appropriately enforceable in separate forums.

The role of the arbitrator is to interpret and apply

the contract. This Court emphasized the restricted

scope of the arbitral inquiry in Steelworkers v. Enter-

prise Corp., supra, 363 U.S. at 597:

* * * [A]n arbitrator is contined to inter-

pretation and application of the collective bar-

gaining agreement; he does not sit to dispense

his own brand of industrial justice. He may of

course look for guidance from many sources,

ee APS, a Lemenate. ay ae, tenga ft

og Gi Patra Bd we Je SY ena de is. dS, es FE aig B FEF on we es gat eine

oy Fae > ,, y me ete tien ie hii a AR

Si RIE ERD OE Et GN rE ate

Ga lol CERT AL st eee

(see 357 EA eae) MUA Oe Ooet ecee

mous on this issue, than it is to Arguelles.

“draws its essence from the collective bargin:

The narrow responsibility conferred on the arbitrator

does not include investigation into and vindication of

statutory rights. See Meltzer, Labor Arbitration ond

Overlapping and Conflicting Remedies for Employment.

Discrimination, 39 U. Chi. L. Rev. 30, 32-35 (1971), As

a recent tor has observed (Gould, Labor Arbi-

tration of Gri Involving Racial Discrimination,

118 U. Pa. L. Rev. 40, 47-49 (1969)) :

Even where there is a nb Aiscrinninitiee

clause prohibiting discrimination on the basis

of race—and even where the clause has been

negotiated subsequent to the passage of civil

rights legislation—arbitrators are generally Te

luctant to rely upon public law concepts in their

opinions and awards. The primary reason for

this attitude is the well-accepted notion that the

arbitrator is a creature of the parties and is

commissioned to interpret their wishes. * **

* * * Ordinarily, * * * the parties do not

intend arbitrators to function as a mini-Equal

Employment Opportunity Commission. *** —

Moreover, arbitrators are without special compe

tence or experience in the interpretation and applica-

tion of statutory and constitutional rights. See U.S.

Bulk Carriers vy. Arguelles, supra. See, also, Platt,

The Relationship Between Arbitration and Title Vl

of the Civil Rights Act of 1964, 3 Ga. L. Rev. 308

(1969). A substantial proportion of practicing labor

arbitrators are not lawyers. See Note, The NLEB ana

Dereon to Arbitration, 71 Yale L.J. 1191, 1194, a .

trial common law—the practices of the industry

the shop.’’ Steelworkers v. Warrior & Gulf Cox supra,

363 U.S. at 581-582. Such expertise does not guarantee

effectuation of the underlying purposes of Title VE:

Few arbitrators possess experience in dealing

with problems in the civil rights area. Sueh

problems, particularly those arising under Title

VI, are often, quite difficult * * *. * * * [Ejn-

trusting the protection of the rights created by

Title VIT to the relatively unreviewable discre-

tion of an arbitrator would seem to involve a

substantial curtailment of the protection pro-

vided by Congress. [Hebert & Reischel, Title

VII and the Multiple Approaches to Eliminat-

ing Employemnt Discrimination, 46 N.Y.U. L.

Rey. 449, 469 (1971) ; footnotes omitted.]

This problem is compounded by the very limited seope

of judicial review of arbitration awards. See, ¢.g.,

Jalet, Judicial Review of Arbitration: The Judicial

Attitude, 45 Cornell L.Q. 519, 532-542 (1960); Note,

Judicial Review of Arbitration Awards on the Merits,

63 Harv. L. Rev. 681 (1950). The limited scope of judi-

cial review of arbitration awards is appropriate, at

least in part, because arbitrators merely interpret and

apply the disparate provisions of privately-adopted

agreements. But Congress has, in Title VII, created

nation-wide rights and provided methods for their en-

forcement intended to assure that they will be ju-

dicially defined and uniformly applied. The availa-

bility of uniform judicial enforcement of Title VII

rights thus serves an important public interest in as-

suring that the decisions in Title VII cases will affect

the entire class of persons who are the victims of dis-

crimination and not merely the parties to a contract.

Phere is also a serious risk that an employee asserb

ing primarily statutory claims may be inadequately

represented in the grievance-arbitration process. In

contrast to Title VII’s emphasis upon the individual’s

right of access to the courts, collective bargaining

agreements place the responsibility for the extent and

manner of processing a grievance on the union, not

the individual aggrieved. See Vaca v. Stipes, 386 US,

171; Republic Steel Co. v. Maddox, supra. See, also,

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

Rev. 601 (1956). Ordinarily the employee will be rep-

resented by a union officer with no legal training. See

Lev & Fishman, Suggestions to Management: Arbi-

tration v. The Labor Board, 10 B.C. Ind. & Com. L

Rev. 763, 768 (1969). Moreover, in some instances, at

least, the union may have little interest in pressing

claims of racial discrimination. That may have been

true in this very case; certainly petitioner thought that

the union tried to “water * * * down” his claim of

discrimination (App. 14). Inadequate presentation of

. such claims may be endemic under a system of collec

tive bargaining: “[t]he collective bargaining process

is premised on majority rule, whereas Title VII sets

forth certain statutory protections for the individual

who is a member of a proscribed minority.’ Edwards

& Kaplan, Religious Discrimination and the Role of

Arbitration under Title VII, 69 Mich. L. Rev. 59%,

648 (1971) (emphasis in the original). See, also,

Gould, supra, 118 U. Pa. L. Rev. at 49. And it is not

without significance that Congress found it necessary

to afford the protections of Title VII against unions

as well as employers, and that much of the significant

“eae *

: re:

under the Act has ‘been directed. sguinst

union defendants. s

Furthermore, the jist eaten pels it

not designed to ensure the kind of careful fact-finding

appropriate where important civil rights are at is-

sue. Racial discrimination is rarely practiced openly

and therefore must frequently be proved by detailed

comparison of the treatment of the class ‘protected

by Title VII with that afforded other individuals. Ex-

tensive discovery ‘may be essential, yet ~ gcovery in

arbitration is limited and compuleory process is prob-

ably not available.” ‘In arbitration proceedings wit-

nesses do not testify under oath and there is a lack

of skilled cross-examination (and frequently no cross-

examination at all). See Elkouri & Elkouri, How Arbi-

tration Works 155-156 (1960) ; see generally Fleming,

The Labor Arbitration Process (1965). The Process i is

basically an inforrnal one in which “[a}rbitrators * * *

need not give their reasons for their results [and] the

record of their proceedings is not as complete as it is

in a court trial * * *.” Bernhardt v. Polygraphic Co.,

350 U.S. 198, 208. This is not the method prescribed

by Congress for the adjudication of Title VII rights.

3. Separate enforcement of Title VII and collective

bargaining rights properly accommodates congres-

sional policies favoring both private resolution of em-

ployment disputes and full protection of the individ-

“$ See generally Smith, Merrifield & Rothchild, Collective Bar-

gaining and Labor Arbitration 217-218 (1970). The extent of the

discovery procedures prese ithy afforded parties to labor arbitra-

tion proceedings is subject to debate. Compare Note, Develop-

ments in the Law-Disoovery, 74 Harv. L. Rev. 940, 943 (1961)

with Jones, The Accretion of Federal Power in Labor Arbvitra-

tion—The Ewample of Arbitral Discovery, 116 U. Pa. Il. Rev.

830, 877-885 (1968).

ual against discrimination. By; contrast, the approach

adopted by the court below would undermine be

national labor policy, favoring arbitration of contract

disputes, and the policy of-the civil rights laws, which

provide for adjudication of statutory claims, - |

If employees. were required to elect between ‘the

arbitral and judicial forum, as the decision . below

would force them to. do, individuals who believe tha

their contractual remedies are inadequate or that surer

relief may be obtained under Title VII would be likely

to bypass the grievance procedure, while the speed and

lesser expense of the arbitral remedy might prompt

others to forego judicial enforcement of their statu-

tory rights. Such a haphazard method of enforcement

would only ensure that, as to any broad class of em-

ployees, neither contract rights nor statutory rights

would be fully vindicated: valid contract claims would

in some instances be suppressed in the interest of stat-

utory adjudication, whereas in other cases legitimate

Title VII claims would -be sacrificed in order to ob-

tain prompt settlement of a contract dispute. Yet there

is no reason why contract rights and statutory rights

should not both be given full protection, by allowing

an employee’s claim to be resolved in the appropriate

forum with respect to each of his distinct rights.

Harmonious resolution of labor disputes is of course

promoted by encouraging employees to invoke grier-

ance-arbitration procedures; the availability of.

tration as a prompt remedy for such disputes lesser

the likelihood of.labor strife. Arbitration in

therefore be available for expeditious’ consideration

of contractual claims of discrimination. “This com-

ports not only with the national labor yh favor

Paes hs $a

ing arbitration as a means for the final adjustment of

labor disputes * * * but also with the specific enforee-

ment policy of Title VII that) discrimination is better

sate through voluntary compliance with the. Act

than. through court orders.” Hutchings v. United

States Industries, Inc., supra, 428 F. 2d at 313. The un-

restricted availability of arbitration, and its utiliza-

tion on behalf of employees raising claims of discrimi-

nation, tends to strengthen the process of collective

bargaining by buttressing the allegiance of minority

group members to their labor organizations. Cf.

United Packinghouse Workers v. National Labor Re-

lations Board, 416 F. 2d 1126, 1135-1136 (C.A. D.C.),

certiorari denied, 396 U.S, 903. : ,

At the same time, allowing the employee to pursue

his statutory claims independently in the courts

ensures fuller effectuation of the congressional guar-

antee against employment discrimination and thus

also serves an important public interest (see p. 17,

supra). Allowing resort to both appropriate forums

would be similar to the procedure under the National

Labor Relations Act, permitting some issues to be pre-

sented both to the arbitrator and to the National Labor

Relations Board:

_ By allowing the dispute to go to arbitration

* * * those conciliatory measures which Con-

gress deemed vital to “industrial peace” * * *

__ and which may be dispositive of the entire dis-

_ pute, are encouraged. The superior authority

of the Board may be invoked at any time. Mean-

while the therapy of arbitration is brought to

' bear in a complicated and troubled area. [Carey

_ Vv. Westinghouse Corp., 375 U.S. 261, 272.] ~

eo ee ee oe Hot: be, pies

Liha hertewratan dale tis iais iter:

acterines ‘the inatitte of the emiployée’s lawsuit: In pu

SP %

-vindieate: "The “reason: why ‘the employer,’ wnlike’

‘employee; tannot ‘subsequently proeded iv the ¢ |

Stn taf ite Ga rat

stantive rights against -their employes jian %

‘eammot as a hatter of law be the vieticn of empl

disérimination by his' employée. See Comment, Dewey

V. Reynolds Metals Co.: ; Labor Arbitration and Title

VII, 119 U. Pa. 1: Rev, 4, 02-608 (1971) y Mtl

supra, 39 U. Chi Li Rev. at 38-39.

sr ican onde Ware aloy ik-otl dag

the ‘availability of a Title VIT suit after arbitration

“would sound the death knell for arbitration’ danse:

in labor contracts” (App. 43). Such a result sess

highly unlikely. As this Court has repeatedly recog:

mized, an arbitration agreement is the quid pro quo

for a no-strike clause. See, ¢.y., Boys Markets, Inc. ¥.

Clerks Union, supra; Textile Workers Union v. Lincola.

Mills, supra. An employer thus has ample incentive to

agree to an arbitration clause, regardless of the i

hility that it may not prevent litigation about employ.

ment. diserintination.* Indeed, even in an employment

“Tho experience under the National Labor Relations Act als

indicates that occasional subsequent litigation does not deter

Tae Ree ee

Ss seems ‘an arbitrator's award in favor of

the employer ends the latter's dispute. with the union

(sabject, of course, to limited judicial review) and thus

provides valuable assurance against disruption af the

esaployer’s activities by labor-management strife, ever

though the empleyer remains subject to suit by am em-

ployee under Title VII on a sirailar claim. This is an-

toa relitigation of the arbitrator’saward..

_ Purthermore, Oongress in enacting Titk vu evi-

denily eoneluded that the need to vindieate rights

ae ‘ \dlsdainbisihid -cutunieks tha de,

sirability of protecting employers against similar

that several different forums would have juriadietion

over employment . . ° ° hi ’ See, C9.»

42 U.S.C. (1970 ed., Supp. IF) 2000e-5(b) (state agen-

cies) ; 42 U.S.C. 2000e-15 (President’s Committee on

Equal Employment Opportunity); 110 Cong, Rec.

7207, (National Labor Relations Board). The rights

enforeed in each forum were considered to be inde-

pendent of each other..Senator Clark, a leading spon-

sor of the bill, explained (410 Cong. Rec. 7207):

[T Jitle VILI * * * does not deny to any individual,

rights and remedies which he may pursue under

other Federal and State statutes. Ifa given action

parties from entering into arbitration clauses. At least prior to its

decision. in Collyer Insulated. Wire, 192 NLRB 837 (1971), the

board deferred to arbitral decisions in only s small percentage of

the arbitration cases it reviewed (see Note, The NLRB and Defer-

once to Arbitration, supra, TT Yale L.J. at 1204-1208), yet a rep-

reentative sampling of collective bargaining agreements showed

that 94 percent contained arbitration clauses. Bureau of National

eee Yearbook: 1970, 38.

should: ‘violate both title ‘VII and the Nat

' Labor-Relations Act, the National: Labor E

- tions Board would not be deprived of jurisdict

Accordingly, three-courts of appeals have -held’

Title VII actions are not barred by prior adversé de.

terminations under other federal laws with respectto

the same practices. Tipler v. EI. duPont de Nemouts F

and Co., 443 F. 2d 125 (C.A: 6) ; Taylor v. Armed Steed

Corp., 429 F.2d 498 (C.A. 5); Norman v. Missouri

Pacific R.R., 414 ¥F. 2473 (C.A.8): There is, if anything,

even less reason why employers and unions (against

both of whom Title VII’s anti-discrimination provi-

sions are directed) should, by private agreement, be

able to deprive individuals of the right of access to si

courts conferred on them by Congress. ar

In sum, while Congress was silent on the relntial

ship of arbitration and Title VII rights, the multiple

forum approach which it adopted with respect to

other means of securing rights against discrimination

strongly suggests that arbitration is merely an addi-

tional means by which relief from discrimination may

be sought under relevant provisions of the collective

agreement, without depriving individuals of their

statutory right to a judicial determination of their

Title VII rights. Both federal labor policy and fed-

eral civil rights policy can most effectively be served

by allowing “plaintiffs to utilize dual or parallel pros-

ecution both in court and through arbitration so long.

as election of remedy was made after adjudication 8

as to preclude duplicate relief which would result in

an unjust enrichment.” Bowe v. Colgate-Palmolive Co,

416 F. 2d 711, 715 (C.A. 7). Accord: Hutchings. AA

eo 8 Fe

REA ee es ee Pee OE a. eS Se

y-3)

Waited States ‘Industries: Frie;, 48°F. #4°308 (C-A.5);

Dubichon y. North American Rockwél Corp., 482 ¥:

54 569 (C.A. 9). Indeed, this is the only approach

that is fully consistent ‘with ‘the intention of Con-

gress to preserve all ‘available Tights against dis-

crimination in employment.

G: JUDICIAL DEFERENCE TO ANBITRAL DECISIONS 18 INAPPROPRIATE IN

P SIfR VII CASBS, AMD WOULD BE ROPECLALLT UNWARRANTED IW TER

“CIRCUMSTANCES HERE

“For the reasons discussed above, we believe that | an

employee asserting’ Title yt Tights is entitled to

have his claims adjudicated by a@ court notwithstanding

any prior exhaustion of remedies available under thie

pertinent collective bargaining agreement. The same

reasons support the conclusion. that in hearing | such

claims, the courts should not defer to arbitral find-

ings or decisions, which relate only to matters of con-

tract and not to statutory rights. However, even if a

policy of limited judicial deference to the arbitral deci-

sion is adopted, there is no basis in this case for such

deference.

We discuss this issue as a question of judicial

“deference” because it is clear that the principles of

res judicata and collateral estoppel do not bar litiga-

tion, subsequent to the arbitration award, of all ques-

tions pertaining to an eniployee’s statutory claims. In

the first place, the doctrines of res judicata and col-

lateral estoppel do not appear to be technically ap-

plicable at all. At common law these doctrines applied

* These decisions, of course, conflict with the decision below and

with Dewey v. Reynolds Metals Co., supra.

only with respeet to prior judgments in judicial pre

bunal “are binding in subsequent controversies depends

upon the character of the tribunal and the my |

ture of its procedure and the construction of the staf.

ute creating the tribunal and conferring powers upog-

it.” American Law Institute, Restatement of Judg-

; f 2 (1942). The arbitrator, however, is not a pub

lie official or tribunal but is essentially a private agentot

the parties to the contract. His award is given effect

by the courts basically because it thus becomes a part

of the parties’ contractual agreement, rather than as

a matter of res judicata or collateral estoppel. «sid

In any event, the judgment of any tribunal of

special and limited jurisdiction is conclusive only as

to questions within its competence. American Law

Institute, Restatement of Judgments, § T1. The effect

on subsequent litigation of an arbitrator’s award is

therefore restricted to contract issues. This is true

not only of the arbitrator’s legal determinations but

of his findings of fact as well. Id., §71, comment é

and illustration 1.° ,

* Moreover, while the union acts in a representative capacity

in the grievance proceeding, it does not act as a mere agent

subject to the control of the complaining employee as prind-

pal (see J. J. Case Co. v. National Labor Relations Board,

321 U.S. 332), and it is the uniom rather than the employes

that controls the presentation to the arbitrator (Vaca v. Sipes,

supra). For this reason, also, it would be inappropriate to

apply the principle of collateral estoppel to claims of ‘the

employee not directly presented to and decided by the arb

trator. Cf. American Law Institute, Restatement of Judgments,

§ 85, comment e.

cisions Inty be briefly restated and summarized. First)

the arbitral award bivolves's different issue of law than:

conduct conforms to the contract, and in so deciding:

he ordinarily does not draw upon public law concepts;

certainly, such concepts’ are not binding: upon the

atbitrator in interpreting sas seamen ree

agreement.

. Second, the arbitral tactinding process falls far

short of judicial standards. Normal rules of evidence

do not apply; often there is no opportunity for cross-

éxamination of witnesses ‘and their testimony is not

given under oath; discovery i is limited. These informal

and relatively. crude procedures expedite the resolution

of Isbor disputes, but, they do not provide a sufficient

guarantee of AOCUTACY,; when important civil rights are

at issue.

- Third, the esuaiaile claim of discrimination may

be inadequately presented to the arbitrator. The union,

which controls tis presentation, may be unsympathetic

to the claim or may, as a matter of litigation strategy,

subordinate that claim to others that may appear to be

sounder or more appealing to the arbitrator. Or the

union’s representation of its employees generally may

in some cases be inadequate; the union representatives

themselves are often not trained in the law.

We believe these considerations demonstrate that the

policy adopted by the courts below—one of total defer-

ence to the arbitral decision—is unsound and would re-

protective force of Title-VII. We further believe tt

a policy of partial deference, such as that enunciatedia

Rios ¥. Reynolds Metals Co,, 481 F.2d 54 (0.4.5) ( i

also, Edwards.& Kaplan, supra, 69 Mich. L. Rev. at@i

652), is also unwarranted and should-be rejected t ‘this

Court. See generally Meltzer, supra, 39 U. Chi. L. Rey

at 35-46. Be

The Fifth Circuit in Rios held that, in cases uh

as this, a district court should examine the prior grige

ance arbitration on the basis of the islianings cri

teria (467 F. 2d at 58) :

First, there may be no deference to the i

arbitral hearing dealt adequately with all factug

right coincides with rights under Title VIL

Second, it must be plain that the arbit

decision is in no way violative of the private |

rights guaranteed by Title VII, nor of the pub

lic policy which inheres in Title VII. In adi

tion, before deferring, the district court must

be satisfied that (1) the factual issues beforei

are identical to those decided by the arbitrator;

(2) the arbitrator had power under the

tive agreement to decide the ultimate issue of dis

crimination; (3) the evidence presented at the

arbitral hearing dealt adequately with all f factual

issues ; (4) the arbitrator actually decided the

factual i issues presented to the court; (5) the ar

bitration proceeding was fair and regular and

free of procedural infirmities, The burden of

proof in establishing these conditions of limita-

tion will be upon the respondent as distinguished

from the claimant.

at ae SRS POD ee

‘ @

Cn LS eR aR TING 2

“the district court would find itself-held- —

ing a hearing to determine if {deference} was appro-

Si Whi ding Sud *=' i ig ai ct

‘be similar to a Title VIF trial” (Resp. Br.

35). ‘At the same time, the Rios guidelines are not, in

our view, sufficiently ‘protective of the important civil

rights established by Title VII. For example, 8 no-

discrimination clause in a collective bargaining agree-

ment may by its terms appear to create a right identi-

eal in substance to that conferred by Title VII, yet

if the arbitrator does not apply Title VII concepts as

élaborated by the courts the rights will not in fact

coincide; but Rios apparently does not require the

district courts to defer only to arbitral decisions ex-

_ pressly and accurately relying upon public law con-—

cepts, Similarly, even when all primary factual issues

are raised before the arbitrator, there is no reason

to believe that he will be as sensitive to subtle forms

of discrimination, or to the potentially discriminatory

implications of an engrained industrial practice, as are

the courts: the arbitrator’s findings of fact are unlikely

to reflect the kind of vigilant inquiry into employment

practices Congress envisioned in enacting Title VII.

This is further emphasized by the fact that even

“fair and regular” arbitration proceedings are pfo-

cedurally inadequate under traditional judicial stand-

ads and do not provide as full an opportunity, through

proof, to reveal subtle forms of discrimination. More

over, the Rios guidelines do not fully take inte sonsid-

Minow

—~

eration ithe possibility:.of, inadequate : representatic

se ere emp peNNEE Primos torterh ) ail erschone 7

deference ee a gybltzaten', findings in a. eae

proceeding is wholly inappropriate in a Title VILease,

2, But even assuming arguendo, that some ,

of partial deference is appropriate, there is no. basis

for deference to the arbitral decision in this case. Even

though the district. court found that the claim of x

crimination was presented. to the arbitrator (Ap

the arbitrator did not discuss or purport { to.

issue of diseimination. His finding iol pars fhe

“the discharge * * * was for just cause” (App. 2).

That finding is not inconsistent with petitioner's claim

of discrimination: eyen if petitioner was not qualifi

for the position he held, and therefore properly. b-

ject to dismissal, he was discriminated against if

white employees similarly unqualified are treated dif-

ferently (¢.g., demoted but not discharged). But the

union presented no probative evidence on this issue

(see App. 22). In fact, the union in representing peti-

tioner did not even raise the claim of racial discrim-

ination; that issue was put before the arbitrator—to

*In the field of labor relations it is well established that s

Snares 98 Sam ene, Sor Sechanap Seen net Earnie a oat

was discriminatory. See, ¢.g., Edward G.

Bede Alp. Co. v. National Labor Relations Board, 188 F. 2%

86 (C.A. 8}, certiorari denied, 821 U.S. 778.

the limited extent that it-can be said to have been

raiséd at all-only by petitioner, »and: his: principal

‘peference to the issue was to state that because the

union’s representation of his claim was inadequate, ‘he

had lodged a complaint against respondent with the

state equal employment agency (App. 14).

Thus the arbitral proceeding here failed to satisfy

even the Rtos guidelines. It is not clear that the no-

discrimination clause of the contract coincides with

‘Title VII rights, as interpreted and applied by the

courts. Nor is it plain that the arbitrator’s decision,

by sustaining a—discharge in circumstances where

white employees may only be demoted, does not con-

travene Title VII policy. Moreover, the evidence pre-

sented did not deal adequately with all factual issues

raised by the claim of discrimination, and the arbi-

trator did not expressly decide those factual issues. To

_ perniit such cursory arbitral consideration of claimed

discrimination to foreclose an employee’s efforts to

obtain judicial vindication of his Title VII rights

would seriously weaken enforcement of Title VII and

thus jeopardize achievement of the important eco-

nomic and social objectives of that Act.

CONCLUSION

For the reasons stated above, the judgment below

should be reversed and the case remanded for pie.

of petitioner’s Title VII claims.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

J. Srantey Porrrnaer,

Assistant Attorney General.

LAWRENCE G, WALLACE,

Deputy Solicitor General. .

KeitH A. JONEs,

Assistant to the Solicitor General.

Denis F. Gorpon,

EILEEN M. Sten,

Attorneys,

Win A. Carey,

General Counsel,

JOsEPH T. EppINns,

Assistant General Counsel,

BEATRICE ROSENBERG,

CHARLES L. REISCHEL,

Attorneys,

Equal Employment Opportunity

Commission.

OcroBER 1973.

. >

? P

SUPREME COURT OF THE UNITED STATES

ALEXANDER v. GARDNER-DENVER CO.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 72-5847. Argued November 5, 1973—

Decided February 19, 1974

(a) Title VII was designed to supplement, rather than supplant,

tion, as may be inferred from the legislative history of Title VIL,

which manifests a congressional intent to allow an individual to

Syllabus |

pore, Hants, wander ‘Tite, VII. .and othe, applicable, siete and.

federal statutes. Pp: 10-12.

(b) The doctrine of election of remedies is inapplicable in the

present context, which involves statutory rights distinctly separate

from the employee’s contractual rights, regardless of the fact that

violation of both rights may haye resulted from the eame factual

occurrence. Pp. 12-14.

not waive his cause of action under Title VII; the rights conferred

thereby casnot be prospectively waived and form no part of the

collective-bargaining process. Pp, 14-15.

(d) The arbitrator's authority is confined to resolution of ques-

tions of contractual rights, regardless of whether they resemble

or duplicate Title VII rights. Pp. 15-17.

(e) In instituting a Title VII action, the employee is not seek-

ing review of the arbitrator's decision and thus getting (as the

District Court put it) “two strings to his bow when the employer

has only. one,” but is asserting a right independent of the arbitra-

tion process that the statute gives to employees, the only possbile

victims of discriminatory employment practices. P. 17.

(f) Permitting an employee to’resort to the judicial forum after

arbitration procedures have been followed does not undermine the

employer’s incentive to arbitrate, as most employers will regard

the benefits from a no-strike pledge in the arbitration agreement

_ 48 outweighing any costs resulting from giving employees an

arbitral antidiscrimination remedy i in addition to their Title VII

judicial remedy. Pp. 17-18.

(g) A policy of deferral by federal courts to arbitral decisions

(as opposed to adoption of a preclusion rule) would not comport

with the congressional objective that federal courts should exer-

cise the final responsibility for enforcement of Title VII would

lead to: the arbitrator's emphasis on the law of the shop rather

than the law of the land; factfinding and other procedures less

complete than those followed in a judicial forum; and perhaps

bypassing arbitration in favor of litigation, Pp, 18-23.

‘(hy In considering an employee's claim, the federal court may

admit the arbitral decision as evidence and accord it such weight

as may be appropriate under the facts and cireumstances of each

case. Pp. 22-23.

466 F. 2d 1209, reversed.

Powe, J., delivered the opinion for a unanimous Court.

SUPREME COURT OF THE UNITED STATES

No. 72-5847

Harrell Alexander, Sr.. )On Writ of Certiorari to

Petitioner, _ the United States Court

v. of Appeals for the Tenth

Gardner-Denver Company,) Circuit.

[February 19, 1974]

Mr. Justice Powzu, delivered the opinion of the

Court.

This case concerns the proper relationship between

federal courts and the grievance-arbitration machinery

of collective-bargaining agreements in the resolution and

enforcement of an individual’s rights to equal employ-

ment opportunities under Title VII of the Civil Rights

Act of 1964, 42 U.S. C. § 2000e et seg. Specifically, we

must decide under what circumstances, if any, an em-

ployee’s statutory right to a trial de novo under Title

VII may be foreclosed by prior submission of his claim

to final arbitration under the nondiscrimination clause

of a collective-bargaining agreement.

In May 1966, petitioner Harrell Alexander, Sr., a black,

was hired by respondent Gardner-Denver Company (the

“eompany”) to perform maintenance work at the com-

pany’s plant in Denver, Colorado. In June 1968, peti-

tioner was awarded a trainee position as a drill operator.

He remained at that job until his discharge from employ-

ment on September 29, 1969. The company informed

petitioner that he was being discharged for producing too

; it

pursue, rights under Title VII and other applicable state and.

federal statutes. Pp. 10-12, | Hou |

(b) The doctrine of election of remedies is inapplicable in the

present context, which involves statutory rights distinctly separate

from the employee's contractual rights, regardless of the fact that

violation of both righte may have resulted from the same factual

occurrence. Pp. 12-14.

not waive his cause of action. under Title VII; the rights conferred

thereby cannot be prospectively waived and form no part of the

process. Pp, 14-165. ’

(d) The arbitrator's authority is confined to resolution of ques-

tions of ‘contractual rights, regardless of whether they resemble

or duplicate Title VII rights. Pp. 15-17.

(e) In instituting s Title VII action, the employee is not seek-

ing review of the arbitrator's decision and thus getting (as the

District Court put ic) “two strings to his bow when the employer

has only one,” but is asserting a right independent of the arbitra-

tion process that the statute gives to employees, the only possbile

victims of discriminatory employment practices. P. 17.

(f) Permitting an employee to resort to the judicial forum after

arbitration procedures have been followed does not undermine the

employer's incentive to arbitrate, as most employers will regard

the benefits from a no-strike pledge in the arbitration agreement

48 outweighing any costs resulting from. giving employees an

arbitral antidiscrimination remedy in addition to their Title VII

judicial remedy. Pp. 17-18.

(g) A policy of deferral by federal courts to arbitral decisions

(as opposed to adoption of a preclusion rule) would not comport

with the congressional objective that federal courts should exer-

cise the final responsibility for enforcement of Title VIT and would

lead to: the arbitrator's emphasis on the law of the shop rather

than the law of the Jand; factfinding and other procedures less

complete than those followed in a judicial forum; and perhaps

employees bypassing arbitration in favor of litigation, Pp, 18-23.

(h) In considering an employee’s claim, the federal court may

admit the arbitral decision as evidence and accord it such weight

as may be appropriate under the facts and circumstances of each

case. Pp. 22-23. ;

466 F. 2d 1209, reversed.

Powe, J., delivered the opinion for a unanimous Court.

SUPREME COURT OF THE OF THE UNITED STATES :

No. 72-5847 °

Harrell Alexander, Sr., )On Writ of Certiorari to

Petitioner, the United States Court

v. of Appeals for the ‘Tenth

Gardner-Denver Company.) Circuit. |