Wright v. Universal Maritime Service Corp. Brief for Petitioner

    No. 97-889

IN THE

Supreme Court of tf]t ®mteb States?
October Term, 1997

C e a s a r  W r ig h t ,
Petitioner,

v.

U n iv e r s a l  M a r it im e  S e r v ic e  C o r p ., et a l ,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF FOR PETITIONER

R a y  P. M c C l a in  
A t t o r n e y  a t  L a w  

Counsel o f Record 
38 Broad Street, 3rd Floor 
Post Office Box 608 
Charleston, SC 29402 
(843) 577-3170

E l a in e  R . J o n e s  
Director-Counsel 

T h e o d o r e  M . Sh a w  
N o r m a n  J .  C h a c h k in  
C h a r l e s  S t e p h e n  R a l s t o n  
NAACP L e g a l  D e f e n s e  a n d  

E d u c a t io n a l  F u n d , In c .
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 219-1900

Attorneys fo r  Petitioner

PRESS OF BYRON S. ADAMS ♦  WASHINGTON, D.C. ♦  1-800-347-8208



QUESTION PRESENTED

Was the court below correct in bolding — contrary to 
this Court’s decisions in Alexander v. Gardner-Denver Co. and 
other cases, particularly Barrentine v. Arkansas-Best Freight 
Co., and McDonald v. City o f  West Branch, — that a general 
arbitration clause in a collective bargaining contract bars an 
employee covered by the contract from filing his own lawsuit 
under a federal anti-discrimination statute?



PARTIES TO THE PROCEEDINGS

The parties are Ceasar Wright, Petitioner, and Universal 
Maritime Service Corp., Stevens Shipping & Terminal 
Company, Stevedoring Services o f America, Ryan-Walsh, Inc., 
Strachan Shipping Company, Ceres Marine Terminals, Inc., and 
South Carolina Stevedores Association, Respondents. None of 
the corporate Respondents is a publicly held corporation or a 
subsidiary of a publicly held corporation, according to 
disclosures filed by Counsel for Respondents in the court below.



TABLE OF CONTENTS
Page

Question Presented .............. .............. ........ .................. . i

Parties to the Proceedings................................... ..............  u

Table o f Contents ......... .................................................... iii

Table o f Authorities  ......... .................... .................. •• iv

Opinions Below    .........................................-  1

Jurisdiction ................ .............. ......... ................... ........ 2

Statutory Provisions Involved....................... ................ . 2

Statement of the Case .............................................. . 2

Summary o f Argument......................................................  10

Argument........................... ....... ................... .................. . 13

I. By statute, tradition, function, and intention, 
“grievances” under a labor agreement, including the 
agreement here, are limited to disputes about the 
application of the collective bargaining
agreement......................... ........................... ............. 17

II. Because the collective bargaining process is designed to
be controlled by the majority, the rights o f victims of 
discrimination cannot be waived by a bargaining 
representative, and the union here did not intend to 
waive those rights........... ...... .......... .................. -.......  22



]V

III. This bargaining agreement, like most labor agreements,
does not provide a mechanism for adequately 
vindicating rights under employment discrimination 
statutes............................................................................  30

IV. No statute creates a national policy that a collective 
bargaining agreement should supersede the judicial 
remedies Congress provided to enforce the 
Americans with Disabilities Act and other statutes
prohibiting employment discrimination. ....... 39

Conclusion  ............................................... 48

TABLE OF AUTHORITIES

Page

CASES:

Adarand Constructors, Inc, v. Pena,
515 U.S. 200 (1995) . . . . . . . . . . . . ___ . . . . . . . . ____  47

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . .  16 

Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1 9 7 4 ) ........................................ passim

Atchison, T. & S.F.K Co. v. Buell,
480 U.S. 557 (1987) ........................................ .............  18, 46

Austin v. Owens-Brockway Glass Container,
Inc., 78 F.3d 875 (4th Cir.), cert, denied,

U.S. 117 S.Ct. 432 (1996) . . . . . . . . . . . . .  passim



V

Baltimore Regional Joint Board v. Welaster
Clothes, 596 F.2d 95 (4th Cir. 1 9 7 9 ).................................. 34

Barrentine v. Arkansas-Best Freight System,
450 U.S. 728 (1 9 8 1 ) .................... ................... .............passim

Bowen v. U.S. Postal Service, 459 U.S. 212 (1 9 8 3 ).........  37

Boys Markets v. Retail Clerks Union,
398 U.S. 235 (1 9 7 0 ) ............. ................. ............................  23

Brisentine v. Stone & Webster Engineering Corp.,
117 F.3d 519 (11th Cir. 1997) ....................................  18n, 29

Cole v. Burns Intern. Security Services,
105 F.3d 1465 (D.C. Cir. 1997)........... ................. .. 32, 44

Curtis v. Loether, 415 U.S. 189 (1 9 7 4 ) ........... .. 34

Domino Sugar Corp. v. Sugar Workers Local Union 392,
10 F,3d 1064 (4th Cir. 1993) . . . . . .................................  43n

Electrical Workers v. Foust, 442 U.S. 42 (1979)............  34

Electrical Workers v. Robbins & Myers, Inc.,
429 U.S. 229 (1 9 7 6 ) ......... ..................... .. 18n, 35

Gilmer v. Interstate/Johmon Lane Corp.,
500 U.S. 20 (1 9 9 1 ) ......... ..................................... .. passim

Goodman v. Lukens Steel, 482 U.S. 656 (1987) . . 24, 26, 27

Graham Oil Co. v. ARCO Products,
43 F.3d 1244 (9th Cir. 1995) ................ .. 32



V]

Harrison v. Eddy Potash, Inc., 112 F.3d 1437
(10th CirX p e t. fo r  cert, filed, 66 U.S.L.W. 3137
(Aug. 6, 1997)..................................................................... 18n

Hawaiian Airlines, Inc. v. Norris,
512 U.S. 2 4 6 (1 9 9 4 )......... ............................................ 18,46

Hetzel v. Prince William County, Virginia,
U .S .___ , 118 S.Ct. 1210(1998) .................. 39 ,42 ,48

International Union v. Murata Erie North America,
980 F.2d 889 (3d Cir. 1992) ................ ................... . . . . .  5n

Lingle v. Norge Division o f  Magic Chef,
486 U.S. 3 9 9 (1 9 8 8 )............................... ...................... 21,46

Livadas v. Bradshaw,
512 U.S. 107 (1 9 9 4 ) .............................  14, 21, 22, 29, 45, 46

Local 1422, ILA, AFL-CIO v. S.C. Stevedores
Association, etal., C.A. No. 2:97-2886-21
(D.S.C. filed Sept. 22, 1997), on appeal
No. 98-1296 ................................................... ................. .. . 9n

Local No. 391 v. Terry, 494 U.S. 558 (1990) . 16, 34, 36, 48

Mastrobuono v. Shear son Lehman Hutton, Inc.,
514 U.S. 52(1995) .................................... ............... 33

McDonald v. City o f  West Branch,
466 U S. 284 (1 9 8 4 ) ................................. .......... . . . .  passim

McKinney v. Missouri-Kansas-Texas R  Co.,
357 U.S. 265 (1958) .................................. ..........................  19



Mitsubishi Motors Corp. v. Solar Chrysler-Plymouth,
Inc., 473 U.S. 614 (1985) ....................  14, 19, 30, 31, 32, 49

Montes v. Shearson Lehman Brothers, Inc. ,
128 F.3d 1456 (11th Cir. 1 9 9 7 ).................... ...................  36n

Nelson v. Cyprus Baghdad Copper Co., 119
F.3d 756 (9th Cir. 1997), cert, denied, ___

U .S .___, 66 U.S.L.W. 3686 (April 20, 1998) . . 32, 42n, 48n

NLRB v. Magnavox Company, 415 U.S. 322 (1974) . 25,48

Oncale v. Sundowner Offshore Services, Inc.,
U .S .___ , 118 S. Ct. 998 (1 9 9 8 )............................... .. 27

Perry v. Thomas, 482 U.S. 483 (1987) ......................... 45

Prudential Insurance Co. o f  America v. Lai,
42 F.3d 1299 (9th Cir. 1994) . ..........................................  48n

Pryner v. Tractor Supply Co., 109 F.3d 354
(7th Cir.), cert, denied,___U .S .___ ,
118 S. Ct. 294 (1997) ...................... .. 28, 42n, 44

Rodriguez de Quijas v. Shear son/American
Express, Inc., 490 U.S. 477 (1 9 8 9 ) ......... .. 14

Shearson/American Express Inc. v. McMahon,
482 U.S. 220 (1987) ........................................ .. 14, 35

Sine v. Local No. 992, Intern. Broth,
644 F.2d 997 (4th Cir. 1981) ......................... ................. .. 43n

Steele v. Louisville&N.R.. Co., 323 U.S. 192 (1944) . . .  23



Textile Workers Union v. Lincoln Mills,
353 U.S. 448 (1 9 5 7 ) ........................................ ...................  23

Tran v. Tran, 54 F.3d 115 (2d Cir. 1995) . . . . . . . . . . .  18n

U.S. Bulk Carriers v. Argue lies,
400 U.S. 351 (1 9 7 1 ) ............. .....................................  18n, 44

United Electrical, etc., Workers v. Miller Metal Products,
215 F.2d 221 (4th Cir. 1954).............................................  43n

UnitedPaperworkers Intern. Union v. Misco, Inc.,
484 U.S. 2 9 (1 9 8 7 ) ........................................ .. 18

United Steelworkers v. Warrior &
G ulf Navigation Co., 363 U.S. 574 (1960) ......... .. 16,19

Vaca v. Sipes, 386 U.S. 171 (1 9 6 7 )........... .. 16, 37, 38

Varner v. National Super Markets, Inc.,
94 F.3d 1209 (8th Cir. 1996), cert, denied,
___U .S .___ , 117 S.Ct. 946 (1997) ...............................  18n

Wright v. Universal Maritime Service Corp.,
121 F.3d 702 (July 29, 1997)............................. ............. 1, 40

Zipes v. Trans World Airlines, 455 U.S. 385 (1982) . . . .  32 

STATUTES:

9 U.S.C. §§ 1 et seq. ................................ 14

9 U.S.C. § 1 ................................................... .. 43

viii



IX

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

29 U.S.C. §§ 151, etseq. . . .................................................

29 U.S.C. §§ 171, etseq .................... ...................................

29 U.S.C. § 173(d) ............................................... 2,

29 U.S.C. § 185 . . ......................... ...................................  2,

29 U.S.C. § 206(d) ............................................... ..

29 U.S.C. § 623(c) ...................... ........................................

42 U.S.C. § 1981a(c)............................................................

42 U.S.C. § 1983 ........... .. ....................................................

42 U.S.C. § 2000e-5(c)............................... .......................

42 U.S.C. § 2000e-5(e) ........................... ............................

42 U.S.C. § 2000e-5(f) ......................................  2, 32, 34,

42 U.S.C. §§ 12101 etseq. . . . ___ . . . . . . . . . . . . . . . . .

42 U.S.C. § 12101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

42 U.S.C. § 12102(2) ........................................................

42 U.S.C. § 12111(2) .................... ..

42 U.S.C. § 12112(b) ......................... ..............................

42 U.S.C. § 12117 ..............................................  2, 32, 34,

2

15

15

17

44

13

26

39

14

34

32

39

2

24

8

26

8

39



X

42 U.S.C. § 12212 .................................................  2 ,8 ,4 0 ,4 1

46U.S.C. § 596 ............................................................  18n, 44

46 U.S.C. § 597. . .................. .......................... .. 44

The Civil Rights Act of 1991, § 118, codified
at 42 U.S.C. § 1981 note ...............................................  40, 41

OTHER:

H R . Conf. Rep. No. 596, 101st Cong., 2d Sess.
(1990) , reprinted in 1990 U.S.C.C.A.N. 565 . . . . . . . . . .  42

H R . Rep. No. 40(1), 102d Cong., 1st Sess.,
(1991) , reprinted in 1991 U.S.C.C.A.N. 549 . . . . . . . . . .  43

H R . Rep. No. 485, 101st Cong., 2d Sess.
(1990) . . . . . ----- . . . . . . . . . . . . . . . . . . . . . . . ____ 42-43

NLRB Memorandum on Collective Bargaining
and ADA (Sept. 1992), reprinted in ADA
MAN. (BNA) 70:1021 . ....................... .. 27



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1997 
No. 97- 889

CEASAR WRIGHT,
Petitioner,

v.

UNIVERSAL MARITIME SERVICE CORP.. et. al.,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF FOR PETITIONER

OPINIONS BELOW

The Opinion o f the United States Court o f Appeals for 
the Fourth Circuit is unreported. It is referenced in a Table at 
121 F.3d 702 (July 29, 1997), and is reprinted at Petition for 
Certiorari, Appendix (‘Pet. App.”) la.

The Order o f the United States District Court for the 
District o f South Carolina, dated September 25, 1996, is 
unreported, and is reprinted at Pet. App. 6a. That Order 
adopted the ruling recommended by a Magistrate Judge in a 
Report dated June 14, 1996, reprinted at Pet. App. 19a. The 
further Order of the District Court, dated December 5, 1996, is 
reprinted at Pet. App. 14a.

1



2

The decision o f the United States Court of Appeals for 
the Fourth Circuit in Austin v. Owens-Brockway Glass
Container, Inc., 78 F.3d 875 (4th Cir.), cert, denied,___ U.S.
___ , 117 S. Ct. 432 (1996), on which the courts below relied
without discussion, is reprinted, for convenient reference, at Pet. 
App. 34a.

JURISDICTION

Jurisdiction is conferred by 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This matter involves the enforcement o f the Ameri cans 
with Disabilities Act, 42 U.S.C. §§ 12101 et seq. The pertinent 
portions of the Act, particularly 42 U.S.C. §§ 12117 (adopting 
42 U.S.C. § 2000e-5(f)), 12212, are printed at Pet. App. 27a. 
This matter also involves 29 U.S.C. §§ 173(d) and 185.

STATEMENT OF THE CASE

A. Petitioner’s Employment History

Petitioner was regularly employed as a longshoreman in 
the Port of Charleston, beginning in 1970, through the hiring hall 
operated by Local 1422, International Longshoreman’s 
Association, AFL-CIO (ILA). His taxable income from this 
employment exceeded $82,000 in 1991. Joint Appendix (“JA”) 
5 la f  9. In early 1992, while working for respondent Stevens 
Shipping, petitioner fell off the top of a freight container, 
shattering his right heel and injuring his back. These injuries 
disabled him from waterfront employment for an extended 
period. His treating physician thought petitioner would probably 
be permanently and totally disabled from longshore employment, 
while other physicians expressed the opinion that petitioner



3

could return to waterfront work. JA 50a. In May, 1994, 
petitioner settled his workers’ compensation and other claims, 
including claims for permanent and total disability, for $250,000. 
JA 52a.

A major factor in petitioner’s physical disability was a 
bony spike in his right heel that made walking extremely painful. 
In late 1994 the bony spike spontaneously resorbed. Petitioner’s 
physician documented this improvement and found that 
petitioner was physically able to return to work. JA 53a.

In January, 1995, after almost three years off the job, 
petitioner returned to the hiring hall to seek assignments for 
work. On nine o f the ten days from January 2 through January 
11, 1995, petitioner was referred for employment by Local 
1422, TLA, and worked for four of the respondent employers 
during those nine days. Each of these respondents accepted 
petitioner as qualified for his position, and none had any 
complaints about his work performance. Pet. App. at 21a; JA 
54a f  18. Some of these respondents asked for written approval 
from petitioner’s treating physician for petitioner to return to 
work, and this was provided. JA 53 a.

On January 11, 1995, the respondent employers agreed 
among themselves that they would all refuse to accept petitioner 
for work. In virtually identical letters to the president of Local 
1422, TLA, the respondents stated that petitioner was previously 
“certified as permanently and totally disabled.” They continued 
that “once an individual is certified as permanently and totally 
disabled, he is no longer qualified to perform longshore work of 
any kind.” JA at 35a.

Petitioner immediately consulted with Benjamin Flowers, 
the president of Local 1422, ILA, his bargaining representative. 
As the District Court found, “Both parties agree that Plaintiff 
initially followed the proper procedure under the collective 
bargaining agreement for filling a grievance against Defendant.” 
Pet. App. 16a. President Flowers wrote to the respondents to



4

protest that the refusal to accept petitioner for work was a 
violation of the Americans with Disabilities Act and a “lockout” 
violating the bargaining agreement. (The agreement lacked a 
‘Nondiscrimination” clause.) The union president did not pursue 
a grievance for petitioner under the agreement; instead, he 
advised petitioner to retain private counsel to pursue a statutory 
claim under the Americans with Disabilities Act. By the time 
petitioner located counsel, just two weeks later, a grievance 
under the Bargaining Agreement was “out o f time.” JA 55a.

Petitioner promptly invoked his statutory rights by filing 
timely charges of discrimination with the Equal Employment 
Opportunity Commission (EEOC) against all respondents. After 
the EEOC issued a Notice o f Right to Sue on each charge, 
petitioner filed this action in January, 1996.

Two months later, the United States Corn! o f Appeals 
for the Fourth Circuit issued its opinion in the case o f Austin v. 
Owens-Brockway Glass Container, Inc., 78 F„3d 875 (4th Cir.
March 12, 1996), cert, denied,___U.S. ___, 117 S. Ct. 432
(1996), which held that an applicable labor arbitration agreement 
“ousts a court o f jurisdiction” to hear statutory claims of 
discrimination brought by individual employees. Petitioner then 
offered to arbitrate, but respondents refused. JA 58a.

B. The Collective Bargaining Agreement

The bargaining agreement in this case was adopted 
effective November 30, 1990. It was negotiated between the 
respondents and the South Atlantic & Gulf Coast District o f the 
International Longshoremen’s Association to cover ‘longshore 
work” in the Port o f Charleston, a term that covered “all labor 
used in connection with loading or discharging ships, barges or 
other floating craft.” JA 36a.1

1 In addition to a detailed definition of the scope of “longshore 
work,” JA 36a-37a, the agreement addressed job classifications, wage rates, 
vacation and holiday pay, shift differentials, minimum hours of work after the



5

The grievance and arbitration provisions were stated in 
Clause 15.(b) of the Agreement. That Clause did not define 
“grievances,” except as “Matters under dispute which cannot be 
promptly settled between the Local and an individual 
Employer.” JA43a. Clause 15. (F) of the Agreement [known 
as a “zipper clause”] stated that the Agreement represented 
closure o f negotiations, JA 45a - 46a:2

The Union agrees that this Agreement is intended to 
cover all matters affecting wages, hours, and other 
terms and conditions of employment and that during the 
term of this Agreement the Employers will not be 
required to negotiate on any further matters affecting 
these or other subjects not specifically set forth in this 
Agreement. Anything not contained in this Agreement 
shall not be construed as being part o f this Agreement.

day shift, special supplementary funds (container royalty and Guaranteed 
Annual Income), pension and welfare Funds (see Defendants’ Motion for 
Summary Judgment, Exhibit B, Attachment 1); the commitment of the parties 
to adopt safe and efficient methods for stevedoring operations, JA 37a; the 
Employer’s rights in hiring and discharging workers and assigning workers 
subject to various limitations, such as the “minimum gang structure” “required 
as determined by the class of cargo being handled by the gang,” detailed 
matters not defined within the four comers of the collective bargaining 
agreement, JA 38a; misconduct and punishment for various offenses, JA 39a- 
42a; a prohibition on lockouts by the Employers and on work stoppages by the 
union, JA 42a-43a; collection of delinquent Employer contributions to pension 
and welfare funds, JA 43 a; a grievance procedure, JA 43a-45a; and safety 
rules for various classes of cargo operations, including conditions 
disqualifying a worker from employment (intoxication and epilepsy). JA 46a- 
47a.

2 A “zipper clause” defines, not the scope of arbitration, but the 
scope of the employers’ exemption from participating in “mandatory 
bargaining” during the life of the collective bargaining agreement.” 
International Union v. Murata Erie North America, 980 F.2d 889, 903 (3d 
Cir. 1992).



6

All past port practices being observed may be reduced
to writing in each port.

The Agreement also provided in Clause 15(E): “All 
interpretations of this Agreement will be made in accordance 
with the provisions of Clause 15.” JA45a. As to construction 
o f the Agreement, the parties also adopted a “savings clause,” 
Clause 17, that states: “It is the intention and purpose of all 
parties hereto that no provision or part of this Agreement shall 
be violative o f any Federal or State Law.” JA 47a.

Although the bargaining agreement covered many topics, 
it did not include a Nondiscrimination” clause: the agreement 
includes no express provisions whatever prohibiting 
discrimination by the Employers on the basis o f race, gender, 
age, nationality, or disability. The Agreement makes no 
reference whatsoever to the Americans with Disabilities Act, nor 
to any other employment discrimination law. JA 55a f  21. The 
only specific statute to which the Agreement refers is the 
Occupational Safety and Health Act. JA 46a.

In the Port of Charleston, there are three local unions 
(ILA affiliates with distinct work jurisdictions) and a number of 
other Employers who contract with one or more o f these locals. 
When Local 1422, ILA, and an individual Employer have a 
“matter under dispute,” the Agreement contemplates that they 
will have “such discussion” as may “promptly settle” the 
dispute.3 If  the parties cannot achieve a resolution, the “Matters 
under dispute . . . shall, no later than 48 hours after such

3 The Agreement mentions explicitly several types of issues that will 
be referred to the Port Grievance Committee if the parties cannot resolve them. 
These include (1) safe and efficient methods of operation, JA 37a-38a; (2) a 
claim of “hardship . .  . because of unreasonable or burdensome conditions.” 
JA 38a; (3) “where work methods or operations materially change in the 
future,” id.; (4) “misconduct charges” against individual workers, JA 42a; and 
(5) contributions allegedly delinquent to pension and welfare funds (referred 
directly to District Grievance Committee). JA 42a.



7

discussion, be referred in writing covering the entire grievance 
to a Port Grievance Committee” consisting o f two 
representatives o f Management and two representatives of the 
union. The grievance may be settled at the Port level. JA 43 a- 
44a.

Only if “this Port Grievance Committee cannot reach an 
agreement within five days after receipt o f the complaint” can 
the matter “be referred to the Joint Negotiating Committee, 
which will function as a District Grievance Committee . . . JA 
44a. The Joint Negotiating Committee has five members from 
Management and five members from the Union. JA 45 a. When 
sitting as the District Grievance Committee, the meeting must be 
attended by at least three (3) regular Employer members and 
three (3) regular Union members and each side has four votes. 
JA 44a.

The Agreement further provides, JA 44a-45a:

A majority decision o f this [District Grievance] 
Committee shall be final and binding on both parties and 
on all employers signing this Agreement. In the event 
the Committee is unable to reach a majority decision 
within 72 hours after meeting to discuss the case, it shall 
employ a professional arbitrator. . . .

In the selection o f an arbitrator, thought will be 
given to a person who is knowledgeable and familiar 
with the problems of the Longshore industry.

Any decision in favor of the employee involving 
monetary aspects of discharge shall require the employer 
involved to make financial restitution from the time of 
the complaint concerned, whereas decisions involving 
working methods or interpretations shall take effect 
seventy-two hours after being rendered.



8

C. Claim under the Americans With Disabilities Act

The petitioner’s union received virtually identical letters 
from four stevedoring companies, all stating, "Once an 
individual is certified as permanently and totally disabled, he is 
no longer qualified to perform longshore work o f any kind." JA 
35a. This statement, petitioner believes, was an unusually clear 
violation o f the Americans with Disabilities Act.

A major purpose of the ADA is to ensure that 
employment decisions are based on an individualized 
determination of a person’s actual abilities and limitations. The 
Act protects “individuals with a disability,” and defines a 
disability as: “(1) A physical or mental impairment that 
substantially limits one or more o f the major life activities of 
such individual; (2) a record of such an impairment; or (3) being 
regarded as having such an impairment.” 42U.S.C. § 12102(2).

Among the ADA’s specific prohibitions are: (a)
‘limiting . . .  or classifying a job applicant or employee in a way 
that adversely affects . . . opportunities,” and (b) “utilizing 
standards or criteria that have the effect o f discrimination on the 
basis o f disability. . . .” 42 U.S.C. §§ 12112(b)(1), (b)(3)(A). 
Respondents’ letters constitute an admission that petitioner was 
being permanently barred from his occupation because he was 
regarded as being permanently and totally disabled.” They also 
evidenced discrimination based on a “record” o f disability, 
utilizing both an impermissible “limitation or classification” and 
“standards or criteria” that screen out people with disabilities.



9

D. Proceedings Below

On cross motions for summary judgment, a Magistrate 
Judge recommended that petitioner’s suit “be dismissed without 
prejudice for want of jurisdiction,” on the authority o f Austin. 
Pet. App. at 26a. The District Judge agreed in an Opinion dated 
September 25, 1996. He later denied a timely Motion for 
Reconsideration by Order dated December 5, 1996.4

Since the employers had already refused to arbitrate the 
claims, the dismissal o f the suit without either compelling 
arbitration or retaining jurisdiction ended the statutory claims. 
The result is that petitioner has been permanently excluded from 
his career occupation without having a hearing in any forum on 
the merits of his ADA claims.

Petitioner prosecuted a timely appeal to the Court of 
Appeals. That Court affirmed the judgment on July 29, 1997, 
holding that Wright’s only recourse was a union-sponsored 
grievance, and that he had no right to sue under the ADA. The 
Court referred to the arbitration clause, but quoted instead from 
the “zipper clause,” 15(F):

The arbitration clause at issue is particularly broad. The 
clause states that the “Union agrees that this Agreement 
is intended to cover all matters affecting wages, hours, 
and other terms and conditions of employment.”

Pet. App. 4a. After confusing the zipper clause with the

4 In July, 1996, after the decision in Austin v. Owens-Brockway 
Glass Container, the union hiring hall again referred petitioner for work. 
Petitioner was again refused work. This time the union pursued a grievance. 
Respondents refused to process the grievance. The union filed suit to compel 
arbitration. Local 1422, ILA, AFL-CIO v. S.C. Stevedores Association, et al., 
C.A. No. 2:97-2886-21 (D.S.C. filed Sept. 22, 1997). Because the union’s 
suit was not filed within six months of January 11, 1995, when the petitioner 
was first refused work, the suit has been dismissed as untimely. The union has 
appealed to the Fourth Circuit, Docket No. 98-1296.



10

arbitration clause, the Court continued,

An employer need not provide a laundry list o f potential 
disputes in order for them to be covered by an 
arbitration clause. For example, in Gilmer v. 
Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), the 
Supreme Court held that a plaintiff was required to 
submit his ADEA claim to arbitration where the 
arbitration agreement covered “any dispute, claim or 
controversy.” Id. at 23. The language of the CBA at 
issue in this case is equally broad, covering “all matters” 
regarding “terms and conditions o f employment.” This 
language easily encompasses Wright's ADA claim

A timely petition for certiorari was granted on March 2,
1998.

SUMMARY OF ARGUMENT

The Americans with Disabilities Act is one o f many 
Congressional enactments that guarantee minimum substantive 
rights to all individual workers covered by each statute. In 
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), this 
Court held that these substantive statutory rights were 
independent o f labor agreements and found that these rights 
could be enforced judicially, either in addition to or instead of 
contract remedies.

For organized workers only, Congress created a parallel 
statutory regime promoting and regulating the exercise of 
collective economic rights, including the “core” collective right, 
the right to strike. Two statutes regulate collective activity. 
The NLRA created the National Labor Relations Board as an 
independent federal agency to oversee labor organizing and 
collective bargaining. The LMRA created a system of 
“industrial self-government” in which unions exchanged the right 
to strike, when disputes arose, for the right to have an 
independent private tribunal make a final and binding resolution



11

of disputes about the “interpretation or application” o f the labor 
agreement.

Statutes conferring individual rights emphasize “make 
whole” relief for the individual worker, whether or not he is 
covered by any labor agreement. Under the NLRA and the 
LMRA, statutes conferring collective rights, remedies are 
available for individuals, but are subordinated to the purposes of 
“national labor policy,” with the primary objective of promoting 
industrial peace.

The LMRA established the binding authority of the 
grievance-arbitration mechanism for resolving disputes about the 
application or interpretation of labor agreements. The Railway 
Labor Act did the same for railroads and airlines. Those 
mechanisms were not created to resolve disputes involving the 
“minimum substantive rights” guaranteed to workers by 
employment discrimination statutes, and parties to labor 
agreements do not generally intend to use the grievance 
mechanism for that purpose, except where they explicitly agree 
otherwise. In particular, most unions, like the union 
representing petitioner, do not wish to undertake the conflicting 
interests inherent in being a “gatekeeper” for the statutory rights 
of individuals under employment discrimination statutes.

Logically, the enforcement of statutory rights by 
individuals who seek personal “make whole” relief should be 
controlled by those individuals. In contrast, access to remedies 
for workers under the NLRA is controlled by the General 
Counsel o f the NLRB, through his discretionary authority to 
issue unfair labor practice complaints. Access to remedies for 
workers under “industrial self-government” is controlled by 
unions, as the official representatives o f the collective economic 
power o f those workers. In this context, only the control of 
enforcement of statutory rights by the injured worker is properly 
analogous to commercial arbitration.



12

In the securities industry’s arbitration regime, the 
Securities and Exchange Commission enforces standards for 
arbitration, and no employee risks forfeiting rights because of 
any special procedural rules o f that regime. In Gilmer v. 
Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), this Court 
held that, on the record there presented, the industry 
arrangements were adequate to assure effective vindication o f 
statutory rights to be free o f age discrimination.

In stark contrast, if  statutory claims are subject to “final 
and binding” resolution under labor grievance procedures, union 
control o f the grievance mechanism and the technical rules of 
that mechanism can easily combine, as in this case, to prevent 
strong claims from ever receiving a hearing on the merits. Both 
union control and extremely short periods for filing claims are 
well suited as an extension of collective bargaining to adjust 
contract disputes. To transform those grievance mechanisms to 
protect statutoiy rights, such as by recognizing the statutes of 
limitations enacted by Congress, would undermine the 
effectiveness o f the grievance mechanism as part o f the 
continuing process o f bargaining.

Congress has never authorized unions to waive any 
individual “minimum substantive rights” — including the right to 
a judicial forum — under any employment discrimination statute: 
in enacting the ADA, Congress explicitly endorsed Alexander; 
the Federal Arbitration Act does not apply to this agreement; 
and this Court has repeatedly rejected arguments that Section 
301 of the LMRA requires arbitration o f claims under federal 
statutes.

Alexander v. Gardner-Denver controls this case. Since 
remedies under labor agreements are primarily intended to 
further national labor policy, the grievance-arbitration 
procedures for enforcing those remedies are very different from 
commercial arbitration and give individual workers much less 
opportunity to enforce statutory rights than is provided in



13

commercial arbitration. Gilmer and the cases it applied have no 
relevance to labor grievance mechanisms. The decision of the 
court of appeals should be reversed and the case remanded for 
petitioner to proceed on the merits of his claim under the ADA.

ARGUMENT

Introduction

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), 
established a “bright-line” rule: a mandatory arbitration clause 
in a labor agreement does not bar an employee’s access to the 
courts to prosecute a claim based on a federal statute because, 
inter alia, the union, rather than any individual employee, 
controls the exercise o f the grievance-arbitration procedure 
under a collective bargaining agreement and any individual’s 
“waiver” of the judicial forum would have to be ‘Voluntary and 
knowing.” The principles of Alexander were amplified in 
Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 
(1981), which held that wage and hour claims under the Fair 
Labor Standards Act, 29 U.S.C. § 206(d), were not precluded 
by a decision o f a joint labor-management dispute board, and 
that other workers who did not file grievances could go directly 
to federal court. This Court also applied these principles in 
McDonald v. City o f  West Branch, 466 U.S. 284 (1984), which 
held that a First Amendment claim brought in federal court 
under 42 U.S.C. § 1983 was not barred by an unfavorable 
decision in an arbitration o f a grievance filed under a bargaining 
agreement.

In Alexander, even as this Court emphasized the 
importance of the right o f ultimate resort to the judicial forum 
to address statutory claims, the Court also endorsed the use of 
contractual procedures to resolve disputes through application 
of the bargaining agreement, 415 U.S. at 55:

. . .  the grievance-arbitration machinery of the collective­
bargaining agreement remains a relatively inexpensive



14

and expeditious means for resolving a wide range of 
disputes, including claims of discriminatory employment 
practices. Where the collective-bargaining agreement 
contains a nondiscrimination clause similar to Title VH, 
and where arbitral procedures are fair and regular, 
arbitration may well produce a settlement satisfactory to 
both employer and employee, . . . eliminat[ing] those 
misunderstandings or discriminatory practices that might 
otherwise precipitate resort to the judicial forum.

After McDonald, this Court decided that statutory 
claims were presumed to be within the scope of predispute 
agreements for mandatory arbitration in commercial and 
securities agreements, and were to be enforced under the 
Federal Arbitration Act, 9 U.S.C. §§ 1 et seq, Mitsubishi 
Motors Corp. v. Solar Chrysler-Plymouth, Inc., 473 U.S. 614 
(1985); Shearson/American Express Inc. v. McMahon, 482 U.S. 
220 (1987); Rodriguez de Quijas v. Shear son/American 
Express, Inc., 490 U.S. 477 (1989) (the “Mitsubishi Trilogy”).

Then in Gilmer v. Interstate/Johnson Lane Corp., 500 
U.S. 20 (1991), this Court applied the Mitsubishi Trilogy and 
the Federal Arbitration Act to require arbitration o f a claim 
under the Age Discrimination in Employment Act where a 
registration statement executed by a securities broker required 
arbitration o f disputes. The Court carefully distinguished that 
individual agreement, which left the individual employee with 
control o f the prosecution of his claims before the arbitrator, 
from the collective bargaining context, where the arbitrator’s 
authority was usually limited and the union (not the aggrieved 
employee) controlled the presentation o f the claim Three years 
later, in Livadas v. Bradshaw, 512 U.S. 107, 127 n.21 (1994), 
this Court reaffirmed the principle that workers’ statutory rights 
were not to be waived for them by a union contract.

The unique policy considerations governing labor 
arbitration clauses have been recognized by every federal court



15

of appeals to address the issue since Gilmer, with the exception 
of the court below.5 These policy concerns arise from the three 
parallel, sometimes overlapping regimes created by Congress 
to regulate employee-employer relationships in the organized 
shop. First, in the National Labor Relations Act (Wagner Act) 
(1935), 29 U.S.C. §§ 151, et seq., Congress authorized labor 
organizations that obtained majority worker support to be the 
exclusive bargaining representative in a workplace and 
established an independent agency, the National Labor Relations 
Board, to adjudicate disputes about the union’s exercise of 
collective economic rights and the employer’s opposition to 
union influence. Second, in Titles II and HI o f the Labor 
Management Relations Act (Taft-Hartley Act) (1947), 29 
U.S.C. §§ 171, et seq., Congress endorsed an exclusive system 
of “industrial self-government,” in which disputes between the 
parties about the application o f the bargaining agreement 
(“grievances”) would be resolved by the parties or by a private 
umpire -- an arbitrator, a joint labor-management council — with 
virtually no court review of the umpire’s decisions. Third, in a 
wide variety o f statutes addressing the rights of workers, 
including pay and freedom from discrimination, Congress 
provided ‘‘minimum substantive guarantees to individual 
workers.” Barrentine v. Arkansas-Best Freight System, 450 
U.S. 728, 737 (1981).

These parallel regimes had very different purposes. The 
two labor relations statutes were designed to regularize and 
legitimize the exercise o f the collective economic power of 
workers (NLRA) and to establish labor peace by creating an 
institutional mechanism to resolve disputes about collective 
rights under the bargaining agreement (“grievances”) without 
the continual disruption of strikes or other job actions (LMRA). 
Although remedies for individual workers were created in both 
these regimes, these remedies were strictly circumscribed. The

5 See cases cited, Petition for Certiorari at 10.



16

General Counsel for the NLRB has virtually unreviewable 
discretion as to whether to issue a complaint on an unfair labor 
practice charge. Vacav. Sipes, 386 U.S. 171, 182 (1967). Both 
collective regimes were primarily directed at the implementation 
o f collective rights and “national labor policy,” not at the 
protection o f the rights of individual workers. See, e.g., Local 
391 v. Terry, 494 U.S. 558, 573 (1990) (NLRA “concerned 
primarily with the public interest in effecting federal labor 
policy”); United Steelworkers v. Warrior & G ulf Navigation 
Co., 363 U.S. 574, 578 (1960) (“A major factor in achieving 
industrial peace is the inclusion of a provision for arbitration of 
grievances in the collective bargaining agreement.”); and Vaca 
v. Sipes, 386 U.S. at 191 (LMRA contemplates union will 
supervise the grievance process and “settle grievances short of 
arbitration.”).

On the other hand, federal statutes that guaranteed rights 
both to organized workers and to individual, unrepresented 
employees, were intended by Congress to “provide minimum 
substantive guarantees to all employees.” The courts’ remedial 
powers under these statutes, such as Title VII, were designed to 
provide “make whole” relief to the individual worker. 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). 
These rights are personal, and have never been considered to be 
within the authority o f the labor organization. Based on the 
individual character o f statutory protections against 
discrimination and based on the strong Congressional policy 
against union waivers o f rights o f the workers they represent, 
Alexander should be reaffirmed. All three distinctions this Court 
noted in Gilmer support this result: (1) the union and 
management did not agree to grieve statutory claims; (2) due to 
majoritarian control, the union should not have authority to 
waive or compromise personal statutory rights; and (3) no 
statute authorizes a union-management agreement to abrogate 
personal judicial remedies. In addition, the grievance mechanism



17

here, as in most labor agreements, is not suited for effective 
vindication of personal statutory rights.

I. By statute, tradition, function, and intention, 
“grievances” under a labor agreement, including the 
agreement here, are limited to disputes about the 
application of the collective bargaining agreement.

Petitioner’s representative did not intend that the 
bargaining agreement would be used to process statutory claims. 
Benjamin Flowers, the president o f Local 1422 who wrote 
letters o f protest to the employers and advised petitioner to 
retain an attorney to sue under the ADA, was the union 
representative who had signed the bargaining agreement. JA 
47a; Plaintiff’s Motion to Compel Arbitration, Exhibits 2, 3, 4. 
The agreement has never been applied to a statutory 
discrimination claim. Statement o f respondents’ counsel, 
Transcript o f Hearing on Motion for Summary Judgment, May 
22, 1996, page 51, line 13.

In Gilmer, 500 U.S. at 35, this Court correctly observed 
that the controversy was completely different from the 
Alexander line of cases, “since the employees there had not 
agreed to arbitrate their statutory claims and the labor arbitrators 
were not authorized to resolve such claims. . . . ” This limitation 
is often expressly stated in bargaining agreements, but it derives 
from the Congressional declaration that the function o f the 
grievance-arbitration process is to apply the bargaining 
agreement.

The generic meaning o f “grievance” as limited to the 
application o f the bargaining agreement was enacted in 1947 in 
Section 203(d) of the Labor Management Relations Act, 29 
U.S.C. § 173(d):

Final adjustment by a method agreed upon by the parties 
is hereby declared to be the desirable method for 
settlement o f grievance disputes arising over the



18

application or interpretation o f  an existing collective 
bargaining agreement. . . . [Emphasis added.]

As this Court observed in United Paperworkers Intern. Union 
v. Misco, Inc., 484 U.S. 29, 36 (1987):

Collective-bargaining agreements commonly 
provide grievance procedures to settle disputes between 
union and employer with respect to the interpretation 
and application o f the agreement and require binding 
arbitration for unsettled grievances.

This understanding of “grievances” is also congruent 
with parallel labor statutes. This Court has held that 
“grievances,” as used in the Railway Labor Act, is “a synonym 
for disputes involving the application or interpretation o f a 
CBA.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 255 
(1994) (state law “whistleblower” claim not subject to the 
statutory grievance procedure for “minor disputes” and National 
Adjustment Board). Before Norris, this Court had unanimously 
held that claims under federal statutes are not subject to the 
statutory grievance procedure for “minor disputes” and the 
Adjustment Board. Atchison, T. & S.F.R Co. v. Buell, 480 
U.S. 557 (1987) (FELA).6

6 As noted infra , pp. 47-48, the statutory procedure is completely 
independent of the contract mechanism. This Court has never required 
“exhaustion” of contract dispute procedures before presenting a statutory 
claim, either under the Railway Labor Act, see Buell, or under Section 301. 
See U.S. Bulk Carriers v. Arguelles, 400 U.S. 351,357 (1971) (grievance not 
prerequisite to seaman’s statutory wage and penalty claim under 46 U.S.C. § 
596); McKinney v. Missouri-Kansas-Texas R. Co. 357 U.S. 265, 268-70 
(1958) (contract grievance not prerequisite to suit asserting seniority rights 
under Universal Military Training and Service Act). In most of the appellate 
cases that have rejected Austin, no grievance was filed. See cases cited, Pet. 
at 10 (Varner,Harrison, Brisentine, Tran). Alexander and subsequent cases 
make clear there is no “exhaustion” requirement. See 415 U.S. at 47 and 
Electrical Workers v. Robbins &Myers, Inc., 429 U.S. 229 (1976) (grievance 
does not “toll” the statutory time for filing a claim under Title VII).



19

Because of this consistent interpretation by Congress and 
this Court of the term “grievance” in the grievan ce-arbitration 
mechanism, the labor grievance process is completely different 
from the sophisticated commercial arbitration mechanism 
described in Mitsubishi Motors Corp. v. Soler Chrysler- 
Plymouth, Inc., 473 U.S. 614, 634 n.18, 638 n.2G (1985), and 
it is substantially different from commercial arbitration in the 
securities industry, the arbitral regime this Court applied to Mr. 
Gilmer’s claim under the ADEA. The wide gulf between labor 
arbitration and commercial arbitration was described in the 
Steelworkers Trilogy, United Steelworkers v. Warrior & G ulf 
Nav. Co., 363 U.S. 574, 578, 580-81 (1960):

In the commercial case, arbitration is the substitute for 
litigation. Here arbitration is the substitute for industrial 
strife. . . .  For arbitration o f labor disputes under 
collective bargaining agreements is part and parcel o f the 
collective bargaining process itself.

%  5f: 5je

Courts and arbitration in the context of most commercial 
contracts are resorted to because there has been a 
breakdown in the working relationship of the parties; 
such resort is the unwanted exception. But the 
grievance machinery under a collective bargaining 
agreement is at the very heart of the system of industrial 
self-government. Arbitration is the means of solving the 
unforeseeable by molding a system of private law for all 
the problems which may arise and to provide for their



20

solution in a way which will generally accord with the 
variant needs and desires o f the parties.7

It is crucial to remember that the parties to the labor 
grievance are the District Union, the Employers’ Association, 
and the individual employees). JA 36a, 47a. The individual 
workers are not parties.8 Individuals on either the labor side or 
the management side can request that a “matter in dispute” 
about the application o f the agreement be submitted to the 
grievance process, but, for a worker, only the union can formally

7 Because the written agreement here has apparently evolved by 
accretion over many years, it is a collection of provisions that are applied year 
in and year out by permanent industry committees. The first step in the 
grievance process is a “Port Grievance Committee”; the union representatives 
come from several distinct local labor organizations in the Port (ILA locals 
with distinct work jurisdictions). If  the “matter under dispute” is not resolved 
at the Port level, “the written record of the dispute shall be referred to the Joint 
Negotiating Committee, which will function as a District Grievance 
Committee. . . . ” JA 44a.

At either level, if a majority develops for a disposition of the 
grievance, the matter ends there. Period. Neither the local union nor the 
particular employer involved in the dispute can appeal from a majority vote. 
No arbitrator enters the picture unless the industry committees deadlock at 
both the Port level and the District level.

The Seniority Board Agreement has no relevance to an employer’s 
refusal to hire (as opposed to a gang leader or header refusing to hire). If it 
did, the complaint process under the Seniority Board Agreement is even more 
truncated The Seniority Board is composed of two union representatives and 
two Employer representatives. JA 48a-49a. A determination by a majority of 
the Board is “final and binding,” If the Board “shall be unable to reach a 
determination of a particular dispute, the dispute shall be submitted to a 
committee of two [one union and one management, both from outside the Port 
of Charleston] for final determination.” If these committee members deadlock, 
the grievant has no further appeal.

8 The Fourth Circuit’s assertion in Austin that the worker was a 
“party” was a fundamental error in that court’s premise from which the 
majority reasoned to an erroneous conclusion. 78 F.3d at 883 n.2.



21

initiate and proceed with a “grievance” through the grievance 
mechanism.

Thus, the grievance mechanism is limited to application 
of the agreement, unless the parties clearly define a “grievance” 
to include alleged violations of rights deriving from public law. 
Violations o f discrimination statutes were defined as 
“grievances” in Austin v. Owens-Brockway Glass Container, 
Inc., 78 F.3d 875, 879-80 (4th Cir.) (“This Contract shall be 
administered in accordance with the applicable provisions of the 
Americans With Disabilities Act. . . . any disputes under this 
Article as with all other Articles o f this contract shall be subject
to the grievance procedure.”), cert, denied,___U .S .___ , 117
S. Ct. 432 (1996). Only specific language like that found in 
Austin could enable union and management to submit an 
individual worker’s claim of a violation of a federal statute to 
grievance-arbitration.

This Court’s decisions under Section 301 have 
consistently taken this approach. (See infra Argument IV.C.) 
Both in Lingle v. Norge Division o f  Magic Chef, 486 U.S. 399 
(1988), andLivadasv. Bradshaw, 512 U.S. 107 (1994), as well 
as in earlier cases, the Court has held that labor agreements do 
not require arbitrating state law claims that do not depend on 
interpreting the bargaining agreement, unless the agreement 
expresses a “clear and unmist akeable” intent to submit such 
claims to arbitration. Such intent is never found.

The court below thus erred in interpreting the general 
grievance provisions of the labor agreement to require 
arbitration of petitioner’s federal statutory ADA claim



2 2

II. Because the collective bargaining process is designed 
to be controlled by the majority, the rights of victims 
of discrimination cannot be waived by a bargaining 
representative, and the union here did not intend to 
waive those rights.

In Alexander, in discussing why the award made by an 
arbitrator who had heard the contract claim was not 
automatically entitled to deference by the federal court, this 
Court stated, 415 U.S. at 58 n. 19, the concern that individual 
statutory rights would be compromised in the interest o f the 
majority. The Court observed that “a breach o f the union’s duty 
o f fair representation may prove difficult to establish.” Seven 
years later, in Barrentine, this Court relied on the potential for 
compromise o f individual rights as the first reason for denying 
preclusion to the decision of the joint union-management council 
that denied a grievance stating a wage claim. 450 U.S. at 742. 
Continuing to today, the concern that the majority will decide to 
forego a valid individual statutory claim has been a principal 
reason this Court has refused to allow grievance-arbitration 
remedies in labor agreements to supplant judicial remedies for 
violation of federal statutes. See McDonald v. City o f  West 
Branch, 466 U.S. 284 (1984); Gilmer, 500 U.S. at 35 (1991); 
Livadas, 512 U.S. at 127 n.21 (1994).

These concerns dictate that imprecise language in 
bargaining agreements should not be construed as waiving 
minority rights. (See cases under Section 301, infra, IV.C.)

The risk o f majority waiver in pursuing an individual 
claim is substantial. The negotiations that lead to the terms of 
the bargaining agreement (the pre-dispute agreement that 
respondents assert waived petitioner’s judicial remedies), 
present an even greater risk o f the majority’s compromising 
minority rights, since the numerous considerations, all at issue 
at the same time, make it impossible to identify the quid pro quo 
for compromising minority rights.



23

A. The union’s role derives from its authority to 
represent workers in exercising the collective 
right to strike, and in exercising the collective 
rights bargained for in relinquishing the 
right to strike, not by compromising 
statutory rights of minorities.

As this Court noted in Barrentine, 450 U.S. at 735: 
“[T]o promote industrial peace, the interests o f some employees 
in a bargaining unit may have to be subordinated to the 
collective interests of a majority o f their co-workers.” The 
Court had earlier observed in Alexander, 415 U.S. at 54, “The 
primary incentive for an employer to enter into an arbitration 
agreement is the union’s reciprocal promise not to strike,” 
china Boys Markets v. Retail Clerks Union, 398 U.S. 235, 248 
(1970). See also, e.g., Textile Workers Union v. Lincoln Mills, 
353 U.S. 448, 455 (1957). The union is not permitted to 
negotiate away the rights o f a protected minority in return for 
concessions that benefit the majority of workers in the unit. 
Steele v. Louisville &N.R.. Co., 323 U.S. 192 (1944).

The arbitration clause and the scope o f its application 
must be interpreted consistently with its origins in the union’s 
relinquishing the collective right to strike, and not as a waiver of 
individual rights to which workers are entitled under federal 
statutes applicable to those workers as individuals.9 The Fourth 
Circuit’s view, as stated in Austin, 78 F.3d at 885, confuses the 
fundamental nature of the collective bargain -- relinquishment of 
the right to strike as quid pro quo for the right to arbitrate 
disputes under the collective bargaining agreement -- by adding 
relinquishment of individuals’ statutory rights to the mix of

9 “ Since an employee’s rights under Title VII may not be waived 
prospectively, existing contractual rights and remedies against discrimination 
must result from other concessions already made by the union as part of the 
economic bargain struck with the employer.” Alexander v. Gardner-Denver 
Co., 415 U.S. at 52.



24

concessions, notwithstanding that this Court has never 
authorized waiver by the union of workers' individual rights.

As this Court observed in Alexander, since the union 
exercises the collective rights of workers, it “may waive certain 
statutory rights related to collective activity, such as the right to 
strike.” 415 U.S. at 51. But in exercising that exclusive 
authority, the union cannot discriminate against minorities — 
whether the worker be a member o f a minority ethnic group; a 
member o f a disadvantaged gender; a worker o f an advanced 
age; a non-member or dissident member o f union; or an 
“individual with a disability.” For example, if  the union 
systematically disadvantages minority workers by refusing to 
process grievances for a class of minority workers, it violates 
Title VII. Goodman v. Lukens Steel, 482 U.S. 656 (1987).

As discussed in Alexander and Barrentine, many federal 
employment statutes are “designed to provide minimum 
substantive guarantees to individual workers.” 450 U.S. at 737. 
Congress has clearly stated that the purpose o f the Americans 
with Disabilities Act is to provide such ‘‘minimum substantive 
guarantees” for “individuals with disabilities [emphasis added],” 
in many spheres o f social activity, including employment. 42 
U.S.C. §§ 12101(a), (b). By the nature o f the enactments, all 
employment discrimination statutes are “designed to provide 
minimum substantive guarantees,” i. e., protection from 
discrimination, ‘Tor individual workers.”

As with the Title VII rights discussed in Alexander, the 
“substantive guarantees” to be free from discrimination cannot 
be waived prospectively. It would defeat the “paramount 
purpose” of each Congressional enactment to allow an employer 
or a union -- separately or in concert -- to condition employment 
on waiver o f substantive statutory guarantees — with the 
employee left to “take it or leave it.” Such a policy would allow 
sophisticated but unscrupulous business enterprises that are 
“covered employers” under the terms of the ADA and other



25

statutes to “opt out” of that coverage by conditioning all jobs on 
waiver o f those rights.

Unions, as well as employers, can violate the ADA. For 
example, if  an employee proposes several options to 
accommodate his disability, the employer may object to one 
proposal and the union may object both to that proposal and to 
all other alternative accommodations requested. The bargaining 
agreement cannot commit to grievance-arbitration the worker’s 
rights against the union, which has an express conflict. Since the 
union could not “waive” judicial remedies for claims filed jointly 
against the union and employer, it should not have the power to 
waive judicial remedies for any claims. Compare NLRB v. 
Magnavox Company, 415 U.S. 322, 325 (1974). But for this 
case, the Court need not decide the limits on a union’s power to 
waive individual remedies; the Court need only find that a 
bargaining agreement that is silent about the issue will not be 
construed to waive a worker’s access to the courts.

B. The Union’s exclusive control of the 
grievance process makes labor arbitration 
unsuitable for enforcing minimum statutory 
standards for individuals.

When this Court decided Gilmer, Justice White 
emphasized that Alexander and its progeny, on which petitioner 
relies, were distinguishable from Gilmer, 500 U.S. at 35:

[Bjecause the arbitration in those cases occurred in the 
context of a collective bargaining agreement, the 
claimants there were represented by their unions in the 
arbitration proceedings. An important concern therefore 
was the tension between collective bargaining 
representation and individual statutory rights. . . .

This Court has identified two related reasons for this 
concern: (1) the union often faces conflicting demands, which 
range from reluctance to accuse management of racism or sexual



26

harassment, to outright conflicts o f interest when the union is 
charged with discrimination; and (2) the union’s decisions about 
pursuing a grievance can be reviewed only in a suit for breach of 
the duty of fair representation (DFR), an imprecise and 
inequitable means o f enforcing statutory rights.

1. Conflicting demands and conflict of interest.
In Alexander, this Court noted, 415 U.S. at 58 n. 19:

In arbitration, as in the collective bargaining process, the 
interests of the individual employee maybe subordinated 
to the collective interests o f all employees in the 
bargaining unit. . . . Moreover, harmony of interest 
between the union and the individual employee cannot 
always be presumed, especially where a claim o f racial 
discrimination is made. . . . Congress thought it 
necessary to afford the protections o f Title VII against 
unions as well as employers. [Citations omitted.]

Congress also “thought it necessary to afford the 
protections” of the Americans with Disabilities Act as to unions. 
42 U.S.C. § 12111(2). (“The term ‘covered entity’ means an 
employer, employment agency, labor organization, or joint 
labor-management committee.”) Congress has expressly 
prohibited discrimination by unions in every modem federal 
employment discrimination statute. See, e.g., 29 U.S.C. § 
623(c) (ADEA). The union itself may be guilty of 
discrimination, either in hiring or admission to membership, or 
in processing grievances against the employer. Goodman v. 
Lukens Steel, 482 U.S. 656 (1987).

Even if the union does not actively discriminate, it may  
be inhibited in its response to a statutory claim because other 
workers in the same bargaining unit are discriminating against 
the claimant or because other workers resent the relief the 
claimant seeks. Other workers can create a “hostile work 
environment” that violates any of the federal anti-discrimination



27

statutes. While this type o f claim is currently most commonly 
pursued in sexual harassment cases, e.g. Oncale v. Sundowner
Offshore Services, In c .,___U .S .___ , 118 S.Ct. 998 (1998),
and in claims of harassment of a racial or ethnic minority 
employee, a ‘hostile environment’’ can also be created for a 
worker with a disability protected by the ADA. For example, a 
union member might reveal that a co-worker is HIV-positive, 
and the infected employee might be shunned by other workers 
in the unit.

A related problem appears when the relief sought by the 
victim o f discrimination requires resources the union considers 
scarce. As this Court observed in Barr entitle, 450 U.S. at 742:

a union balancing individual and collective interests 
might validly permit some employees’ statutorily granted 
wage and hour benefits to be sacrificed if an alternative 
expenditure o f resources would result in increased 
benefits for workers in the bargaining unit as a whole.

Unions may also be reluctant to discuss proposals for 
“reasonable accommodation” that an individual with a disability 
requests under the ADA. The National Labor Relations Board 
has declared that a union’s refusal to bargain over a proposed 
accommodation would violate § 8(b)(3) of the National Labor 
Relations Act. NLRB Memorandum on Collective Bargaining 
and ADA (Sept. 1992), reprinted in ADA MAN. (BNA) 
70:1021. Uncertainty about the scope of obligations under the 
ADA makes the union’s position especially precarious.

The on-going relationship between the union and the 
employer may also make the union reluctant to assert claims of 
discrimination. Allegations of racial discrimination are a “hot- 
button” issue, which unions often seek to avoid because o f the 
adverse effect such claims have on the bargaining relation. See 
Goodman v. Lukens Steel Co., 482 U.S. at 667-68 (union 
asserted it omitted “racial discrimination claims in grievances 
claiming other violations of the contract . . . because the



28

employer would ‘get its back up’ if  racial bias was charged, 
thereby making it more difficult to prevail”). Similarly, a claim 
o f sexual harassment by a supervisor might be so potentially 
explosive that the union, concerned with everyday contacts with 
the supervisor, would hesitate to pursue the complaint unless the 
victim presented overwhelming corroborating evidence.

2. Unions have wide latitude in handling 
grievances.

As this Court observed in discussing the Fair Labor 
Standards Act claims at issue in Barrentine, 450 U.S. at 742:

even if the employee’s claim were meritorious, his union 
might, without breaching its duty of fair representation, 
reasonably and in good faith decide not to support the 
claim vigorously in arbitration.

The union may make such a decision simply on the basis of 
allocation of its own scarce resources, even if the claim does not 
initiate conflicting demands within the unit. As another court o f 
appeals observed in rejecting the rationale of Austin, in Pryner 
v. Tractor Supply Co., 109 F.3d 354, 362 (7th Cir.), cert, 
denied, ___U .S .___ , 118 S.Ct. 294 (1997):

[T]he union has broad discretion as to whether or not to 
prosecute a grievance. . . . Corresponding to this 
expansive and ill-defined discretion, the scope o f judicial 
review ofits exercise is deferential. [Citations omitted.] 
The result is that a 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. . . .

“[A] breach of the union’s duty o f fair representation may prove 
difficult to establish.” Alexander, 415 U.S. at 58, n.19.

The facts o f this case are a particularly compelling 
example o f the difficulty in proving a breach of duty by the



29

bargaining representative. Petitioner immediately sought the 
union’s assistance. When the matter could not be resolved by 
initial discussions with the employer, the president o f the local 
union advised petitioner to retain private counsel to pursue his 
statutory remedies under the ADA, rather than his contract 
remedies. Since the bargaining agreement lacks any “non- 
discrimination” clause, the statutory remedies fit the claim more 
closely. This was not an unusual position for a union to take; 
compareBrisentine v. Stone & Webster Engineering Corp., 117 
F.3d 519, 521 (11th Cir. 1997), where the local union also 
declined to pursue a contract claim of disability discrimination.

As respondents have repeatedly pointed out, most 
recently in Respondent’s Brief in Opposition to Certiorari, page 
14, petitioner has not accused the union of a breach of the duty7 
o f fair representation. How could petitioner have possibly 
prevailed on a DFR claim, which requires proof o f arbitrary or 
discriminatory action by the union? In January, 1995, the union 
had no notice that the Fourth Circuit would “overrule” 
Alexander v. Gardner-Denver Co., a year later. It was certainly 
not arbitrary or irrational for the union to think that petitioner 
had an administrative and judicial remedy; to this day, every 
other appellate court has agreed that Alexander is still good law, 
as this Court stated in Gilmer and Livadas.

As Justice White observed for the court in Gilmer, none 
of the concerns discussed in this section of the argument had any 
application in that case. But in this case, concerns of majority 
waiver of minority rights are as fresh and compelling as they 
were when this Court decided Alexander, Barrentine, 
McDonald, Gilmer, and Livadas.



3 0

HI. This bargaining agreement, like most labor 
agreements, does not provide a mechanism for 
adequately vindicating rights under employment 
discrimination statutes.

In Gilmer, the employer compelled the employee to 
arbitrate his claims, rather than to sue on the claims in court. 
Here, the employers have successfully avoided ever defending 
the claim on the merits. The cursory manner in which the courts 
below have denied petitioner any hearing on the merits o f his 
ADA claim demonstrates how difficult it is to use labor 
grievance-arbitration “effectively” to “vindicate a statutory cause 
of action. . .

In Gilmer, this court reiterated that an employee seeking 
statutory remedies cannot be required to “forgo the substantive 
rights afforded by the statute. . . ” 500 U.S. at 26, quoting 
Mitsubishi, 473 U.S. at 628. Thus, one requirement for 
enforcement of a compulsory arbitration agreement is that “‘the 
prospective litigant effectively may vindicate [his or her] 
statutory cause of action in the arbitral forum. . . 500 U.S. at
28, quoting Mitsubishi Motors, 473 U.S. at 637. This Court has 
also emphasized that if arbitration “clauses operated . . .  as a 
prospective waiver of a party’s right to pursue statutory 
remedies . . . ,  we would have little hesitation in condemning the 
agreement as against public policy.” Mitsubishi Motors v. Soler 
Chrysler-Plymouth, 473 U.S. at 637 n.9. The unique nature of 
labor grievance mechanisms as “part and parcel of the collective 
bargaining process,” prevent individuals from effectively 
vindicating causes of action based on statutes that “provide 
minimum substantive guarantees” for workers.

A major concern expressed by this Court in Alexander 
was that the grievance-arbitration mechanism in labor 
agreements was not adequate for the determination of statutory 
claims of employment discrimination. 415 U.S. at 56-58. These 
concerns remain fresh today even after compulsory arbitration



31

has extended commercial arbitration to statutory claims. See, 
e.g., Gilmer, 500 U.S. at 34 n.5.

Through wholesale modifications, perhaps the labor 
grievance mechanism could be transformed to adopt the 
procedures o f modem commercial arbitration. But such 
transformation would either destroy the effectiveness of 
grievance mechanisms in their current forms, or it would create 
an acute tension between the limited procedures and rights of 
workers in adjustment of contract grievances, on one hand, and 
the more formal, sophisticated procedures to vindicate statutory 
rights, on the other. The “bright-line” rule of Alexander has 
worked well to preserve the collaborative bargaining processes 
reflected in existing grievance mechanisms, and also to preserve 
the judicial forum that Congress adopted for the vindication of 
statutory rights in employment discrimination cases.

A. The Grievance Mechanisms are incompatible 
with vindication of statutory rights.

Grievances are required to be asserted in 
extraordinarily short time periods. The bargaining agreement 
in this case is typical o f labor agreements. An extremely short 
time is allowed to assert a grievance: “no later than 48 hours 
after such discussion” if the grievance “cannot be promptly 
settled.” JA 43a. In this case, although petitioner retained an 
attorney within 15 days, petitioner’s ADA claim was already 
defaulted by the union’s failure to pursue the grievance 
procedures within 48 hours. JA 55a,10

10 Petitioner argued below that he was entitled to proceed in court 
because this application of the grievance procedure violated the ADA’s 
180/300 day statute of limitations for filing charges. The District Court stated, 
without explanation, Pet. App. 16a: “The Court is not concerned that this 
procedure unduly limits the time in which an employee has to bring an 
employment discrimination claim.” The Court of Appeals ignored petitioner s 
argument that he had complied with the statutory time limit.



32

Congress has extended the time for filing administrative 
charges to 180 days, 300 days in those states, such as South 
Carolina, which have state Fair Employment Practices Acts. 42 
U.S.C. § 2000e - 5(e)(1), adopted for the ADA in 42 U.S.C. § 
12117(a). Enforcing much shorter time limits in the grievance 
process clearly prevents the “vindication o f rights” under 
employment discrimination statutes, since Congress has 
mandated the courts “to interpret this [statutory] time limitation 
so as to give the aggrieved person the maximum benefit o f the 
law. . . See Zipes v. Trans World Airlines, 455 U.S. 385, 395 
(1982); cf. Graham Oil Co. v. ARCO Products, 43 F.3d 1244, 
1247-48 (9th Cir. 1995) (reducing time for asserting commercial 
claim from one year to six months, and other limitations, 
rendered the arbitration clause unenforceable); Nelson v. Cyprus 
Baghdad Copper Co., 119 F.3d 756, 761 n.8 (9th Cir. 1997),
cert, denied,___U .S.___ , 66 U.S.L.W. 3686 (April 20, 1998)
(claim under Americans with Disabilities Act); see also Cole v. 
Bums Intern. Security Services, 105 F.3d 1465, 1482 (D.C. Cir. 
1997).

This agreement does not guarantee access to 
impartial arbitration. As discussed above, Section ELB, this 
Court has consistently been concerned that the worker does not 
control prosecution o f his grievance nor the demand for 
arbitration. But here the problem of access to arbitration is even 
more fundamental. Under the bargaining agreement, not even 
the worker’s local union can take a claim to arbitration if  the 
industry committee rejects the worker’s claim. Arbitration is 
available only when the District Negotiating Committee 
deadlocks on the grievance. JA 44a. For claims before the 
Seniority Board, that Board’s determination is final and binding. 
There is never any access to an arbitrator. JA 48a.

For statutory claims asserted against the union, or 
against the union and the employer jointly, the absence of a 
neutral decision maker is painfully obvious. All members o f the 
joint labor-management grievance committees at the Port level



33

and the District level represent either an employer or a union 
affiliated with the allegedly offending union.

For contract claims, such industry boards or committees 
are completely appropriate, but these boards are inadequate for 
statutory claims. Nothing in Gilmer or the Mitsubishi Trilogy 
authorizes the union to allow such boards to make a final 
determination on statutory claims of individual workers.

The worker cannot select counsel of his choice. As 
the party to the bargaining agreement, the union controls 
presentation of the grievance, including choosing the 
representative. Usually grievances are presented by union 
officials (local officers or District or International 
representatives), not by attorneys. See McDonald v. City o f  
West Branch, 466 U.S. 284, 290 n.9 (1984). This would be the 
case under this agreement through the industry grievance 
committee steps, so that a worker could easily lose his claim in 
a final and binding denial of a grievance before any attorney ever 
spoke on his behalf.

Even when an attorney participates, as (s)he would if the 
arbitration stage were reached under the CBA, the attorney is 
selected, retained, and instructed by the union, not by the 
individual worker who has suffered discrimination.

The full range of statutory remedies is not 
guaranteed. In Gilmer, this Court assumed that arbitration 
could only be enforced if the arbitrator could award the full 
range of statutory remedies; the relevant arbitration rules did not 
restrict the remedies available. 500 U.S. at 32. Subsequently, 
in Mastrobnono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 
(1995), this Court held that punitive damages could be awarded 
in securities arbitration.

As to relief to the individual, the bargaining agreement 
here states only, JA 45a:



34

Any decision in favor of the Employee involving 
monetary aspects or discharge shall require the 
Employer involved to make financial restitution from the 
time o f the complaint concerned. . . .

The use o f the term “restitution” connotes back pay, and 
possibly fringe benefits, such as contributions to the Pension and 
Welfare Fund. These remedies “would generally be 
restitutionary in nature. See Curtis v. Loether, [415 U.S. 189], 
at 197 [(1974)].” Local No. 391 v. Terry, 494 U.S. at 572. It 
is doubtful, at best, whether this agreement contemplates that an 
arbitrator can award compensatory and/or punitive damages. 
Traditionally, punitive damages have been available in labor 
arbitration only where clearly authorized in the agreement. See, 
e.g., Baltimore Regional Joint Board v. Welaster Clothes, 596 
F.2d 95, 98 (4th Cir. 1979). The ADA authorizes recovery of 
both compensatory and punitive damages (42 U.S.C. § 2000e- 
5(c), adopted by 42 U.S.C. § 12117(a)). Petitioner sought both 
remedies. JA20a.

With regard to statutory claims against the union, it 
would be doubtfid that punitive damages could be awarded in 
the grievance procedure or arbitration. Even in cases where the 
worker establishes a breach of the duty of fair representation in 
presenting a grievance, the worker cannot recover punitive 
damages. Electrical Workers v. Foust, 442 U.S. 42, 52 (1979).

Both industry committees and arbitrators lack 
competence to resolve statutory claims of employment 
discrimination. The labor arbitrator’s lack of competence in a 
complex area o f public law has been a significant concern for 
this Court in the decisions holding that statutory judicial 
remedies are not superseded by labor arbitration. Alexander, 
415 U.S. 56-58; Barrentine, 450 U.S. at 743; and McDonald, 
466 U.S. at 290, text at n.9. In decisions like Gilmer, revising 
this Court’s view of commercial arbitration, the Court has relied 
on the Security and Exchange Commission’s “broad authority



35

. . .  to mandate the adoption o f any rules it deems necessary to 
ensure that arbitration procedures adequately protect statutory 
rights.” Shearson /American Express, Inc. v. McMahon, 482 
U.S. 220, 233-34(1987).

Of course, unlike Gilmer, there is no federal agency that 
establishes, monitors, or maintains standards in the labor 
arbitration regime. Because o f the unique nature o f the 
grievance process (see above, pages 19-21), Petitioner submits 
that labor arbitrators, on the whole, still lack the competence to 
resolve complex statutory issues applying the proper 
presumptions in favor o f the protected person as established by 
federal statute and regulation. For example, the arbitration 
clause here declares that an arbitrator should be “a person who 
is knowledgeable and familiar with the problems of the 
Longshore industry.” JA44a. No intent is declared to select a 
person knowledgeable about specific public law issues relevant 
to statutory disputes.

But even if the competence o f labor arbitrators has 
improved in this area, the competence o f the joint industry 
committees and grievance boards has not. In this case, as in 
Barrentine and many other instances, the decision of such a 
committee or board may be final and binding both on the worker 
and on the union. Not only are the members of these 
committees not lawyers, compare McDonald, 466 U.S. at 290, 
n.9 (citing to Alexander and Barrentine), they may have no 
formal education beyond high school. Their experience in the 
industry prepares them well to resolve issues of the “application 
and interpretation of the bargaining agreement.” But Committee 
members with limited formal education are poorly prepared to 
understand and apply complex statutory standards and 
presumptions. The increasingly complex nature of employment 
law makes it hazardous even for a lawyer who is an excellent 
general practitioner to attempt to present an employment 
discrimination claim without specialized assistance. If  lay union 
representatives present claims under employment discrimination



36

statutes to these committees, lay members o f industry 
committees and boards cannot be expected to understand clearly 
any complex issues.

Procedural limitations on the grievance and 
arbitration process make that process inadequate for both 
adjudication and review of statutory claims. In Gilmer, this 
Court emphasized the procedural protections in place for 
commercial arbitration in the securities industry, particularly in 
light of the oversight role o f the Securities and Exchange 
Commission. In rejecting Mr. Gilmer’s objections to arbitration 
of his ADEA claims, this Court emphasized several procedural 
protections, including: (1) the rules authorized discovery, 
though on a limited basis; and (2) the rules required that 
arbitration awards be in writing and allow public access to 
awards. 500 U.S. at 31-32. Here there are no rules, and the 
bargaining agreement reflects no agreement to authorize 
discovery for the grievance process. Nor are awards required to 
be issued in writing. Without a written award, it is virtually 
impossible for the courts “to ensure that arbitrators comply with 
the requirements of the statute at issue.”11 Gilmer at 32 n.4.

Further, the bargaining agreement here reflects no intent 
to take testimony before the joint industry grievance 
committees, nor to maintain a written record o f the grievance 
proceedings. In fact, the respective representatives usually 
present their cases to the industry committees without 
testimony. Compare the procedure described in Local No. 391 
v. Terry, 494 U.S. 558, 562 (1990).

11 Some decisions in the courts of appeals reviewing arbitration 
awards in statutory employment claims reflect a standard for judicial review 
that will correct legal errors only if the arbitrator knew the statutory 
requirements and intentionally refused to follow them. E.g., Montes v. 
Shearson Lehman Brothers, Inc., 128 F.3d 1456, 1461 (11th Cir. 1997). 
Without a written award, there is no way for a court to review whether the 
arbitrator violated this standard.



37

B. A “duty of fair representation” claim against 
the union is an inadequate substitute for a 
claim against the employer.

If  a worker must meet the standard to prove “breach of 
duty o f fair representation” (DFR) to obtain a hearing on the 
merits o f a discrimination claim, that requirement is itself 
‘Yoregoing a substantive right afforded by the statute.” In a 
DFR case, the employee must prove “arbitrary or bad-faith 
conduct on the part ofthe Union.” Vaca v. Sipes, 386 U.S. 171, 
193 (1967). This deferential standard protecting unions from 
liability was adopted by this Court so that “the employer and the 
union . . . each will endeavor in good faith to settle grievances 
short o f arbitration.” Id. at 191.

These are valid objectives in administering a private 
contract, a bargaining agreement, but may have perverse 
consequences for enforcing statutes that protect individual 
employees from discrimination.

In addition, under prevailing interpretation o f remedies, 
if  the union has breached the duty o f fair representation, the 
union would be solely liable for all of the worker’s losses after 
the time the union’s breach caused the losses to continue. 
Bowen v. U.S. Postal Service, 459 U.S. 212 (1983). Such a rule 
would greatly benefit the primary wrongdoer (the employer) 
who has discriminated against the worker. As in Bowen, the 
employer would be relieved of half or more of its liability for the 
harm it caused. This allocation o f liability would reduce the 
beneficial effect of statutory remedies in deterring repetition of 
the violations.



38

C. Transforming the grievance process to 
protect statutory rights would undermine the 
efficiency of the mechanism in adjusting 
contract disputes.

In Alexander, this Court recognized that it might be 
possible, if  sufficient resources were to be devoted to the 
project, to bring the practice o f labor arbitration up to “a 
standard that adequately insured effectuation of Title VII rights 
in the arbitral forum. . . 415 U.S. at 59. This Court also
recognized that such changes “would tend to make arbitration 
a procedurally complex, expensive, and time-consuming 
process.” To match the standards approved in Gilmer, there 
would have to be at least (1) some federal agency oversight 
authority and mechanism; (2) some discovery procedures; (3) 
systematic written awards analyzing the statutory issues; and (4) 
a more stringent standard of judicial review to “ensure that 
arbitrators comply with the requirements o f the statute. . . . ” 
500 U.S. at 31-32. Time limits for filing grievances would have 
to be relaxed to comply with the time limits established by 
Congress. The individual worker’s right to counsel o f his choice 
would have to be protected.

As observed by the Court in Vaca v. Sipes, 386 U.S. 
171, 191-92 (1967), to give the individual worker the right to 
control prosecution of his grievance would increase the number 
of grievances taken to arbitration: “This would greatly increase 
the cost of the grievance machinery and could so overburden the 
arbitration process as to prevent it from functioning success- 
fidly.”

These changes would undermine the nature o f the labor 
grievance process as an extension o f collective bargaining. To 
give the individual worker control sufficient to assure protection 
o f his rights would undermine the union’s authority to control 
presentation and resolution of grievances. Such changes would 
be pernicious; to avoid them, employees need to retain the



39

option of going to court that they have had since this Court 
decided Alexander.

These problems do not arise under Alexander. The 
worker retains the right to go to court, but has the option — with 
the consent o f both union and management — to submit the 
statutory claim to an arbitrator. Where the submission is 
optional, the victim of discrimination can use labor arbitration 
where the procedures and the representative will give him 
satisfactory protection of statutory rights. See supra pp. 13-14.

IV. No statute creates a national policy that a collective 
bargaining agreement should supersede the judicial 
remedies Congress provided to enforce the 
Americans with Disabilities Act and other statutes 
prohibiting employment discrimination.
The foregoing arguments show (1) why this labor 

agreement, like such agreements traditionally, was never 
intended to extend to statutory claims of employment 
discrimination; and (2) why institutional arrangements that are 
well suited to resolve contract grievances are inadequate to 
assure the protection of rights under employment discrimination 
statutes. Either of those points is sufficient to resolve this case. 
More broadly, however, Congress has never authorized a 
bargaining representative to waive either judicial remedies or the 
constitutional right to a jury trial.

The Americans with Disabilities Act explicitly provided 
a judicial forum for the enforcement o f the ADA. 42 U. S. C. § 
12117, adopting inter alia 42 U.S.C. § 2000e-5. In 1991, the 
remedies available under the ADA for intentional discrimination 
(as under Title VII o f the Civil Rights Act of 1964) were 
extended to include compensatory and punitive damages and the 
right to a jury trial. 42 U.S.C. § 1981a(c). That right to a jury 
trial is grounded in the Seventh Amendment. Hetzel v. Prince
William County, Virginia, ___U.S. ____, 118 S. Ct. 1210
(1998).



40

The courts below held that the grievance-arbitration 
provisions o f the bargaining agreements governing petitioner’s 
hiring hah displaced all judicial remedies provided in the 
Americans with Disabilities Act. The Court o f Appeals 
specifically relied upon “both the ADA’s statutory preference for 
arbitration, 42 U.S.C. § 12212, and the strong federal policy 
favoring alternative dispute resolution . . . Pet. App. at 5a.

In fact, there are no statutory grounds for the ruling 
below. The ADA expresses no “preference” for mandatory pre­
dispute arbitration agreements. Under Austin, the Federal 
Arbitration Act does not apply to Collective Bargaining 
Agreements, 78 F.3d at 879, and the respondents have not 
argued otherwise. Section 301 favors arbitration o f contract 
disputes, but this court has repeatedly ruled, both before and 
after Alexander, that the federal policy favoring arbitration of 
collective labor disputes does not displace judicial remedies 
provided to individual workers.

A. Neither the ADA nor any other federal 
employment discrimination statute expresses 
a “preference” for mandatory pre-dispute 
arbitration agreements.

The issue presented is not whether Congress permitted 
voluntary post-dispute arbitration for a binding resolution o f 
statutory claims. Alexander permitted such arbitration, if  the 
employee voluntarily and knowingly relinquished his judicial 
remedies, and Congress has encouraged voluntary use of 
“alternative dispute resolution.” The issue is whether Congress 
has authorized unions to bind workers to pre-dispute agreements 
for mandatory arbitration of statutory claims.

In Austin, the Fourth Circuit relied on The Civil Rights 
Act o f 1991, § 118, to conclude that “Congress is in favor o f 
arbitration.” 78 F.3d at 881. Two years later, in Wright, this 
“favor” had progressed to a “statutory preference.” But it is 
clear that Congress has never approved mandatory pre-dispute



41

arbitration agreements, much less expressed a “statutory 
preference” for mandatory pre-dispute agreements.

The Fourth Circuit’s analysis o f Congressional intent 
rests on its expansive reading of § 118 of the 1991 Amendments 
to Title VII, a section adopted almost verbatim from § 12212 of 
the Americans with Disabilities Act. Those statutes provide:

§ 12212. Alternative means of dispute resolution

Where appropriate and to the extent authorized 
by law, the use of alternative means o f dispute 
resolution, including settlement negotiations, 
conciliation, facilitation, mediation, fact finding, mini- 
trials, and arbitration, is encouraged to resolve disputes 
arising under this chapter.

The initial phrase o f this section, drafted in 1990 and 
enacted in two separate Acts in 1990 and 1991, limits ADR 
techniques to cases “Where appropriate and to the extent 
authorized by law . . . .” In Alexander and its progeny, this 
Court had repeatedly held that it was neither “appropriate” nor 
“authorized by law” for a union to waive judicial remedies for 
the workers it represents. The most reasonable interpretation of 
the statutes enacting this language is that Congress intended to 
encourage only voluntary use of such ADR techniques.

Other provisions o f The Civil Rights Act o f 1991 also 
support the conclusion that Congress endorsed “arbitration” 
limited to voluntary post-dispute agreements. The Act 
authorized compensatory damages and punitive damages as new 
remedies for intentional discrimination in violation of the ADA 
(and Title VII). Trial o f these damage remedies was to be 
before a jury, if  demanded, a right grounded in the Seventh



42

Amendment. Hetzel v. Prince William County, U. S. ,
118 S.Ct. 1210 (1998).12

In the legislative history o f the ADA, even before 
enacting damage remedies and the right to jury trials, Congress 
clearly stated its intention that the rule o f Alexander should 
apply to allow voluntary post-dispute agreements to waive 
judicial remedies, but only post-dispute agreements.13 The 
Conference Committee Report explicitly provided:

It is the intent o f the conferees that the use o f these 
alternative dispute resolution procedures is completely 
voluntary. Under no condition could an arbitration 
clause in a collective bargaining agreement or 
employment contract prevent an individual from 
pursuing their rights under the ADA.

H.R. Conf Rep. No. 596, 101st Cong., 2d Sess. 89 (1990), 
reprinted in 1990 U.S.C.C.A.N. 565, 598, cited in Austin, 78 
F.3d at 881.

Congress5 intent to preserve the rule o f Alexander was 
explicitly stated in Committee Reports for both the ADA and 
The Civil Rights Act o f 1991:

The Committee believes that any agreement to submit 
disputed issues to arbitration, whether in the context of 
a collective bargaining agreement or in an employment

12 “It would be at least a mild paradox for Congress, having in 
another amendment that it made to Title VII [and the ADA] in 1991 confirmed 
a right to trial by jury for the first time . . .  to have empowered unions in those 
same amendments to prevent workers from obtaining jury trials in these 
cases.” Prynerv. Tractor Supply Co., 109 F.3d at 363.

13 See Nekonv. Cyprus Baghdad Copper Corp., 119F.3d 756, 761-
62 (9th Cir. 1997), cert, denied,___U .S .___ , 66 U.S.L.W. 3679 (April 20,
1998), holding that a waiver of judicial remedies by an individual employee 
has to be “knowing.”



43

contract, does not preclude the affected person from 
seeking relief under the enforcement provisions o f this 
Act.

H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3 at 76-77 
(1990). See also, H R  Rep. No. 40(1), 102d Cong., 1st Sess., 
97 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 635. (“This 
view is consistent with the Supreme Court’s interpretation o f 
Title VII in Alexander v. Gardner-Denver Co.. 415 U.S. 36 
(1974). The Committee does not intend this section to be used 
to preclude rights and remedies that would otherwise be 
available.”), quoted in part, in Austin, 78 F.3d at 881-82.

R. The Federal Arbitration Act does not apply 
to these collective bargaining agreements.

The Federal Arbitration Act (F.A.A.), upon which this 
Court relied in Gilmer, is inapplicable to the collective 
bargaining agreements involved in this case.

Section 1 of the Act, 9 U.S.C. § 1, provides that 
“nothing herein contained shall apply to contracts of 
employment o f seamen, railroad employees, or any other class 
o f workers engaged in foreign or interstate commerce . . . ” 
Although in Gilmer this Court reserved decision on the issue 
whether that statutory exclusion applied to “all 'contracts of 
employment,'” 500 U.S. at 25-26 n.2, that issue is not presented 
here14: respondents have not argued at any stage o f this case 
that the F. A.A. applies to the agreements, and the court below 
did not cite the F.A.A. in support of its ruling.

“ Settled precedent in the Fourth Circuit has established that the 
F.A.A. has no application to any collective bargaining agreement, Domino 
Sugar Corp. v. Sugar Workers Local Union 3 92 ,10 F.3d 1064, 1067 (4th Cir. 
1993); Sine v. Local No. 992, Intern. Broth., 644 F.2d 997, 1002 (4th Cir. 
1981); United Electrical, etc., Workers v. Miller Metal Products, 215 F.2d 
221,224 (4th Cir. 1954). The court of appeals adhered to those precedents in 
Austin, 78 F.3d at 879, and 882-83 n.2.



44

In any event, it is undisputed in this case that petitioner 
worked in the longshore industry, physically moving goods in 
interstate and foreign commerce. It is therefore clear as a matter 
of statutory construction that the collective bargaining 
agreements here involved are within the exclusion in § 1 o f the 
F.A.A. See, e.g., Pryner v. Tractor Supply Co., 109 F.3d at 
357; Cole v. Bums Int'lSecurity Services, 105 F.3d 1465, 1469 
(D.C. Cir. 1997). Consequently, neither the F.A.A. nor Gilmer 
(which relied upon the F.A.A.) provide support in this case for 
the decision o f the court below.

C. Section 301 of the National Labor Relations 
Act provides no authority for a union to bind 
workers it represents to grieve and arbitrate 
statutory claims.

This Court has declared Section 301, 29 U.S.C. § 185, 
to be a vehicle for establishing uniform construction o f 
bargaining agreements throughout the nation. The Court’s 
jurisprudence on arbitration under Section 301 has centered on 
applying the bargaining agreement through a regime of industrial 
self-government that is created in return for the union’s 
relinquishing the right to strike. Since the beginning, the focus 
has been virtually exclusively on a uniform system for construing 
the agreement, and this Court has repeatedly found that Section 
301 (and comparable provisions o f the RLA) do not pre-empt 
judicial remedies under federal statutes.

Even before this Court’s decision in Alexander, the 
Court had found that Section 301 did not require arbitration of 
a seaman’s statutory claim for wages and penalties under 46 
U.S.C. §§ 596-597. U.S. Bulk Carriers v. Arguelles, 400 U.S. 
351, 357 (1971). In Alexander, this Court again expressly beld 
that an arbitrator’s decision under the bargaining agreement, 
enforceable under Section 301, was not dispositive o f a 
statutory claim. See, e.g., 415 U.S. at 46 n.6. Instead, this 
Court unanimously held, 415 U.S. at 59-60:



45

. . . that the federal policy favoring arbitration o f labor 
disputes and the federal policy against discriminatory 
employment practices can best be accommodated by 
permitting an employee to pursue hilly both his remedy 
under the grievance arbitration clause o f a collective 
bargaining agreement and his cause of action under Title 
VII.

In Barrentine, this Court held that statutory claims under 
the Fair Labor Standards Act were not resolved by submission 
of wage claims to a joint industry committee under a bargaining 
agreement requiring “that ‘any controversy’ between the parties 
to the agreement be resolved through the binding contractual 
grievance procedures.” Barrentine v. Arkansas-Best Freight 
System, 450 U.S. 728, 736-37 (1981). This Court expressly 
considered the arguments based on Section 301, 450 U.S. at 
734-37, and held that Congress intended that the judicial forum 
be available for enforcing statutory wage claims, even after the 
grievance process had reached a binding result on the same 
claims under the contract.

More recently, in Gilmer this Court expressly 
distinguished the Alexander line o f cases as “not decided under 
the FAA, which, as discussed above, reflects a ‘liberal federal 
policy favoring arbitration agreements.’” [Emphasis added.] 
500 U.S. at 35. That this Court meant to adhere to its prior 
holding that Section 301 does not require arbitration o f federal 
statutory claims was again confirmed in Livadas v. Bradshaw, 
512 U.S. 107, 127 n.21 (1994), where this Court cited the 
Alexander cases with approval in addressing limits on the scope 
of pre-emption of state statutory claims by Section 301.

Indeed, Livadas v. Bradshaw clearly shows that the 
scope of the authority to require arbitration under Section 301 
is much narrower than the authority under the Federal 
Arbitration Act. In Livadas, this Court held that Section 301 
does not pre-empt all claims under § 229 o f the California Labor



46

Code when there is an arbitration provision in the applicable 
collective bargaining agreement. But in Perry v. Thomas, 482 
U.S. 483, 492 (1987), this Court held that, under the Federal 
Arbitration Act, the arbitration provision in an applicable 
securities registration does pre-empt all claims under the same 
§ 229 o f the California Labor Code.

Livadas is simply one of a long line o f cases in which 
this Court has held that state law claims are not pre-empted by 
Section 301 unless the determination o f the claim requires a 
construction o f doubtful matters covered by the bargaining 
agreement. See, e.g., Lingle v. Norge Division o f  Magic C hef 
486 U.S. 399 (1988) (state law claim for retaliatory discharge 
for filing workers compensation claim). As Livadas noted, 512 
U.S. at 125, this Court has repeatedly held that the union’s 
intent for an arbitration agreement to waive the rights o f an 
individual to a state judicial forum would have to be “clear and 
unmistakeable.” Petitioner’s counsel have not found a single 
case where this Court has ever found an agreement to arbitrate 
to be a “clear and unmistakeable” waiver of a state law claim.

Similarly, under the Railway Labor Act, this Court has 
held that the grievance-arbitration process and the National 
Adjustment Board do not pre-empt federal statutory claims, 
Atchison, Topeka & S.F.R. Co. v. Buell, 480 U.S. 557 (1987) 
(FELA claims), nor does the mere existence o f those RLA 
remedial procedures pre-empt state law statutory claims. 
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994).

Simply put, this Court has never found the judicial 
remedies Congress created for an individual worker’s statutory 
claim to be foreclosed by a grievance-arbitration procedure that 
was enforceable under Section 301. The Fourth Circuit’s 
application o f the “national policy favoring arbitration o f labor 
disputes” is both unprecedented and unsound. It is one thing for 
the courts to resolve apparent conflicts in the requirements o f 
the FAA with rights under other federal statutes. It is something



47

wholly different to abrogate judicial remedies enacted by 
Congress with a nebulous “national pobcy favoring arbitration” 
which has no basis in any applicable federal statute.

D. The ‘Voluntary and knowing” waiver 
required by Alexander v. G ardner-D enver Co. 
must necessarily be an individual choice, 
which cannot be delegated to a union.

As observed in Barrentine, Congress has enacted many 
standards for the protection o f workers. These minimum 
standards of substantive rights cannot be waived prospectively 
by the worker, nor can such rights be negotiated away by a 
representative. Barrentine v. Arkansas-Best Freight System, 
450 U.S. 728 (1981). To allow such prospective waivers would 
completely undermine the public pobcy reflected by each statute, 
including the statute at issue here, the Americans with 
Disabilities Act.

With regard to statutory rights protected by Title VII, 
this Court emphasized in Alexander, 415 U.S. at 51:

. . that there can be no prospective waiver o f an 
employee’s rights under Title VH. . . . .  Title VO . . . 
concerns not majoritarian processes, but an individual’s 
right to equal employment opportunities. Title VII’s 
strictures are absolute and represent a congressional 
command that each employee be free from 
discriminatory practices. Of necessity, the rights 
conferred can form no part of the collective-bargaming 
process since waiver o f these rights would defeat the 
paramount congressional purpose behind Title VII. 
[Emphasis added.]

The rights conferred under each o f the numerous anti- 
discrimination statutes regulating employment are personal 
rights, not collective rights. Compare Adarand Constructors, 
Inc. v. Pena, 515 U.S. 200, 227 (1995) (right to equal



48

protection is a personal right). Personal rights can only be 
waived personally, not through a collective representative. Even 
some rights supporting collective activity under the NLRA may 
not be waived by a collective representative. See NLRB v. 
Magnavox Company.

In Alexander, this Court also discussed a post-dispute 
waiver of rights under Title VII. This Court observed that, to 
enforce “any such [post-dispute] waiver, a court would have to 
determine at the outset that the employee’s consent to the 
settlement was voluntary and knowing.” 415 U.S. at 52 n. 15. 
This is the appropriate standard to apply to any waiver o f rights 
under employment discrimination statutes, including a pre­
dispute waiver o f a judicial forum (in those instances where 
Congress intended to allow such waivers).

The “voluntary and knowing” standard is reflected in the 
legislative history o f the ADA and of The Civil Rights Act of 
1991.15 The ‘Voluntary and knowing” standard is particularly 
appropriate because the judicial remedies now include a Seventh 
Amendment constitutional right to a jury trial. Hetzel v. Prince
William County, Virginia,   U .S .___, 118 S. Ct. 1210
(1998). “[A]ny seeming curtailment o f the right to a jury trial 
should be scrutinized with the utmost care.” Local No. 391 v. 
Terry, 494 U.S. at 565.

CONCLUSION
This Court’s decision in Alexander v. Gardner-Denver 

Co. was a correct limitation o f the scope of a union’s authority 
and duties. Minimum substantive rights guaranteed to 
individuals by federal statutes are not the responsibility o f the 
union and the union has no authority to compromise any aspect

15 Prudential Insurance Co. o f  America v. Lai, 42F.3d 1299, 1304-5 
(9th Cir. 1994) (Title VII); Nelson v. Cyprus Baghdad Copper Corp., 119
F.3d 756,761 n. 9-10 (9th Cir. 1997) (ADA), cert, denied, ___ U .S .___ , 66
U.S.L.W. 3679 (April 20,1998).



49

of those statutory rights. The union here certainly did not agree 
to compromise those rights, nor to commit the statutory claims 
of individuals to final and binding resolution in the grievance- 
arbitration process.

Since 1985, the Court’s decisions in the Mitsubishi 
Trilogy approve resolution o f statutory claims in commercial 
arbitration, but these decisions have no application to the 
grievance-arbitration mechanisms in labor agreements. These 
procedures in labor agreements still administer an ongoing 
process o f interpretation and application of the private “law of 
the shop.” Commercial arbitration substitutes for litigation 
when the commercial relation has broken down; labor arbitration 
addresses the vital rights and obligations in the continuing 
relation between the parties in order to avoid the disruption of 
relations that occurs in a strike.

Further, because the labor grievance process is so 
important to administering the ongoing relations between union 
and management, the process is not designed to meet the 
standards by which commercial arbitration can adequately 
vindicate rights under the statute. Transforming the grievance 
process to give reasonable assurance that statutory rights would 
be protected would undermine the usefulness o f the grievance 
process as an extension of collective bargaining.

This case involves a grievance process that is clearly not 
adequate to vindicate statutory rights, particularly because 
“grievances” must be asserted within 48 hours, rather than the 
180/300 days Congress provided to assert ADA claims. There 
are many other variations in bargaining agreements, but they all 
share a central characteristic: they are designed as an extension 
of collective bargaining, as a substitute for the strike, not as a 
substitute for litigation. Alexander’s “bright-line” rule, that 
individual statutory claims may be enforced in court, has well 
served the business community, employees, and the judiciary.



50

This Court should reaffirm Alexander and reverse the
judgment below.

Respectfully submitted,

Ray P. McClain*
38 Broad Street, 3rd Floor 
P. O. Box 608 
Charleston, SC 29402 
(843)577-3170

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212)219-1900

* Counsel of Record 
Charleston, South Carolina 
May 7, 1998