Thirty-five Years of Litigating Over Arbitration in Employment Cases
| Publication year | 2010 |
| Pages | 61 |
2010, July, Pg. 61. Thirty-Five Years of Litigating Over Arbitration in Employment Cases
July 2010
Vol. 39, No. 7 [Page 61]
Labor and Employment Law articles are sponsored by the CBA Labor and Employment Law Section to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado.
Coordinating Editor
John M. Husband, Denver, of Holland & Hart LLP-(303) 295-8228, jhusband@hollandhart.com
About the Author
Bill C. Berger is a partner with Stettner Miller, P.C., where he and the firm represent employers on labor and employment law issues, agency actions, and litigation. He has been the management-side co-chair of the CBA's Labor and Employment Law Section. He is a member of the CBA Board of Governors and its Executive Council. He teaches employment law at the University of Denver Sturm College of Law as an adjunct professor-(303) 534-0273, bberger@stetmil.com. The author's partner, Kenneth R. Stettner, and his former partner, Bob Good, represented Gardner-Denver Co.
The phrase "labor and employment law" often is used to refer to the law governing the American workplace. Traditionally, labor law refers only to the law involving unions, and employment law refers to all other laws, such as federal and state anti-discrimination laws. For thirty-five years, courts have struggled with labor agreements that require arbitration of employment disputes. In a 1974 case originating in Colorado, the U.S. Supreme Court was thought to have rejected the notion that a union's labor agreement could require an individual to arbitrate employment claims. In 2009, the Court held that labor agreements can do so. The case is a major development in both labor and employment law.
In April 2009, the U.S. Supreme Court dramatically restructured the landscape of rights in unionized workplaces. The opinion in 14 Penn Plaza v. Pyett(fn1) expanded the basket of chips a union may use in collective bargaining, increased an employer's right to argue that claims once arbitrated cannot be relitigated, and solidified an employee's need to rely on his or her union for protection. The decision is highly controversial-it produced a fierce 5-4 split among the justices and already has had unintended consequences. It may culminate in Congressional action.
To understand the 14 Penn Plaza decision, it is necessary to understand its predecessor, Alexander v. Gardner-Denver Co.,(fn2) a case that arose forty years ago in Denver. This article provides an overview of both opinions and summarizes the current state of the law regarding arbitration and litigation in labor and employment law.
"Two Strings to his Bow"
Harrell Alexander, an African American drill operator, was a trainee learning to become a drill operator for his employer, the Gardner-Denver Co. He was part of a bargaining unit represented by the United Steelworkers of America, Local Union No. 3029 (Steelworkers).
In 1969, he was discharged "for producing too many defective or unusable parts that had to be scrapped."(fn3) He filed a grievance under the Steelworkers' collective bargaining agreement. The grievance went to arbitration. At the arbitration, the Steelworkers were not content to challenge whether Alexander's discharge met the collective bargaining agreement's "just cause" provision. A claim of discrimination was asserted. On December 30, 1969, the arbitrator, Donald W. Sears, Dean of the University of Colorado Law School,(fn4) ruled in favor of Gardner-Denver.(fn5) Sears's decision concluded the Steelworkers' grievance, but began a debate that continues today.
Dissatisfied with the union grievance and arbitration process, Alexander pursued his claim individually. On October 27, 1969, before Sears ruled in the arbitration, Alexander filed a charge of discrimination.(fn6) On July 1, 1970-six months after Sears's decision-the U.S. Equal Employment Opportunity Commission (EEOC) issued a right to sue.(fn7)
Alexander filed a discrimination lawsuit in the U.S. District Court for the District of Colorado. Gardner-Denver moved for summary judgment. On July 7, 1971, summary judgment was granted in favor of Gardner-Denver by the Honorable Fred M. Winner.(fn8) Judge Winner held that Alexander had "voluntarily submit[ted]" his discrimination claim to arbitration, lost, and therefore was "bound by the arbitration award just as is the employer."(fn9)
Judge Winner summarized his analysis as follows: "We cannot accept a philosophy which gives the employee two strings to his bow when the employer has only one."(fn10) As seen in 14 Penn Plaza and the cases since, this theme continues to fuel the ongoing debate. As this article explains, the cases since can be read as simply struggling to explain the limits of Judge Winner's observation.
On appeal, the Tenth Circuit affirmed,(fn11) but the U.S. Supreme Court reversed, giving Alexander a second string to his bow.(fn12)
On remand, the case was heard by the court's newest member, the Honorable Richard P. Matsch.(fn13) Judge Matsch issued his decision on November 19, 1974, ruling for Gardner-Denver on the merits.
The Holding in Gardner-Denver
For thirty-five years, there has been a general sense that the ruling in Gardner-Denver meant that an employee could have two strings to his or her bow, as Judge Winner put it. An employee could grieve then pursue an arbitration through his or her union under a collective bargaining agreement, and pursue an individual claim of discrimination. However, the full extent of that holding was not revisited until the facts of 14 Penn Plaza caused the Supreme Court to return to this area of the law. In 14 Penn Plaza and the cases since, the courts have been struggling with questions left unanswered by Gardner-Denver, like whether the proper...
To continue reading
Request your trial