Employee Rights and Employment Policy Journal

The Supreme Court has granted certiorari in a Fourth Circuit case to resolve a split in the circuits regarding whether a collectively-bargained arbitration agreement requires an employee to forego a judicial forum and arbitrate a statutory discrimination claim. Wright v. Universal Maritime Serv. Corp., 121 F.3d 702, 1997 WL 422869 (4th Cir. 1997)(unpublished opinion), cert. granted, 118 S. Ct. 1162 (1998).  The Fourth Circuit has held that either a contractual nondiscrimina-tion clause referencing the statute or a broad grievance and arbitra-tion provision waives the right of all employees covered by the agreement to a judicial forum for litigation of discrimination claims.  Seven other circuits have disagreed with the Fourth Circuit’s view, which rejects the Supreme Court’s 1974 decision in Alexander v. Gardner-Denver, 415 U.S. 36.

This article analyzes the Fourth Circuit’s decisions in light of the Supreme Court’s arbitration jurisprudence, national labor policy, and the laws against discrimination, concluding that the Supreme Court should reverse the Fourth Circuit.  The Supreme Court in the Gilmer decision, which  required arbitration of an age discrimination claim based on the arbitration clause in a New York Stock Exchange mem-bership application, distinguished Gardner-Denver because labor ar-bitration differs from other arbitration in both purpose and form.  It substitutes for the strike, rather than litigation.  It is controlled by the union in order to further the purposes of the national labor policy, which is designed to further collective representation.  The very dif-ferent nature of arbitration and the lack of control by employees ren-ders labor arbitration inappropriate for vindication of statutory rights in many cases.  Moreover, the union’s resources permit arbitration of only a limited number of cases and the employee’s discrimination case may never be heard so long as the union’s decision not to arbi-trate is not arbitrary, discriminatory or in bad faith.

After examining several alternative methods for union protec-tion of employee rights, the article concludes that the reversal of the Fourth Circuit’s rule will best enable unions to assist employees in obtaining protection from discrimination. Therefore, the employee should retain the option to litigate and the union’s negotiation of nondiscrimination and arbitration provisions in a collective bargain-ing agreement should not be construed to waive the employee’s statutory rights.