1

1
Relationship between collective
agreement/arbitration and law
2
Alexander v. Gardner-Denver416 U.S. 36 (1974)

• Voluntary filing of a grievance under a CBK
  alleging discrimination does not foreclose
  employee from filing suit under Title VII
• ee must meet jurisdictional requirements
• CBA does not waive an employees statutory rights
• arbitration and EEOC/courts different forums with
  different authority
• arb - interpret CBK
• EEOC - enforce Title VII

3
Waiver of Statutory Rights?

• MUST an employee use the (grievance and)
  arbitration procedure?
• Gilmer v. Interstate/Johnson Lane Corp., Sup.
  Ct., 500 U.S. 20, 1991
• Nonunion brokerage firm employee who had agreed
  to arbitrate any employment controversy required
  to arbitrate age discrimination claim
• agreement to arbitrate a waiver of right to sue

4
Waiver of Statutory Rights?(cont.)

• Wright v. Universal Maritime Service Corp,
  U.S.Supreme Court, 1998
• Is there a conflict between
• Gardner-Denver (ee covered by a CBA may go to
  court on statutory claim regardless of outcome of
  grievance procedure)
• Gilmer (ee may waive statutory right to file if
  ee agrees to submit dispute to arb)

5
Wright (continued)

• Incorporation of statutory law in CBK does not
  alter fact that this a statutory claim, not a
  claim under CBK
• Presumption of arbitrability only extends to
  those issues which can be decided better by
  arbitrators than by courts - issues under CBK,
  not a federal statute
• Waiver of statutory rights must be clear and
  unmistakable must be explicitly stated in CBK
• Court unwilling to infer a Gilmer-like individual
  waiver of statutory rights from a collective
  agreement
• No explicit incorporation in agreement of ADA, as
  there was with OSHA

6
Relationship Between External Law and CBA

• The dispute in the present case, however,
  ultimately concerns not the application or
  interpretation of any CBA, but the meaning of a
  federal statute. The cause of action Wright
  asserts arises not out of contract, but out of
  the ADA, and is distinct from any right conferred
  by the collective-bargaining agreement. . . . To
  be sure, respondents argue that Wright is not
  qualified for his position as the CBA requires,
  but even if that were true he would still
  (emphasis in original) prevail if the refusal to
  hire violated the ADA.