Brisentine v. Stone & Webster Engineering - William White

• Publication year: 1998

CASENOTES

Brisentine v. Stone & Webster Engineering

In Brisentine v. Stone & Webster Engineering,¹ the Eleventh Circuit Court of Appeals revisited the murky corner of employment law that deals with arbitration agreements. The case is noteworthy because the court, for the first time in the Eleventh Circuit, addressed the issue of whether a compulsory arbitration provision in a collective bargaining agreement precluded a separate action by the employee to protect his statutory rights.

I. Factual Background

The collective bargaining agreement in Brisentine was between Tennessee Valley Authority ("TVA") contractors and subcontractors and unions comprising the Tennessee Valley Trades and Labor Council. It provided for arbitration to resolve any grievances filed as a result of an alleged violation of the agreement.²

Article VII of the agreement contained the procedure for filing a grievance. According to that procedure, employees initiated any grievance by contacting their union representative. The union representative and the employee were involved in the intitial steps, but if a settlement could not be reached within those first few steps, only the contractors and the council had the authority to appeal an unfavorable resolution to the arbitrator. In addition, if the dispute went to arbitration the contractors and the council, not the employee, had to split the costs. If the grievance reached the arbitrator, the agreement limited his jurisdiction to determining the '"meaning, application of, or compliance with the provisions of [the] Agreement.'"³

Clifford Brisentine worked as an electrician for several years before applying to Stone & Webster, during which time he fell off a scaffolding and injured his back. After undergoing surgery, Brisentine rehabilitated to the point of being able to return to work, although his doctor restricted him from lifting more than thirty to forty-five pounds and from repetitive bending and stooping.⁴

Upon his release from treatment, Brisentine sought employment with Stone & Webster. The detailed hiring process included a probationary period. While on probation he was informed that his application was rejected and that he was being terminated because of the restrictions on his ability to work. Brisentine immediately contacted his union, the I.B.E.W., about filing a grievance. The union representative told Brisentine that because his dispute with Stone & Webster centered on his disability, he would have a much better chance of success if he filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). Brisentine followed the representative's advice and filed a complaint with the EEOC. After receiving his right to sue letter from the commission, Brisentine filed a lawsuit alleging that Stone & Webster had violated the Americans with Disabilities Act ("ADA")⁵ by terminating him. Stone & Webster moved for summary judgment, and the district court granted the motion on the grounds that Brisentine had failed to submit his agreement to binding arbitration.⁶ The Eleventh Circuit reversed the district court and held that the statutory complaint was not subject to the compulsory arbitration provisions of the collective bargaining agreement.⁷

II. Legal Background

Traditionally, American courts harbored a "suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants."⁸ This "judicial hostility to arbitration"⁹ was pervasive and prevented arbitration from being a viable alternative form of dispute resolution. As recent as the early 1950s, the Supreme Court refused to enforce arbitration agreements even in the face of federal legislation that was "not easily reconcilable."¹⁰

Since 1953, judicial attitude has changed drastically. Today, given the right factual scenario, courts will "rigorously enforce agreements to arbitrate."¹¹ Nonetheless, there has not been a total change. Instead of completely switching tracks from not enforcing any arbitration agreements to enforcing all of them, the courts have undergone a "metamorphosis," slowly accepting arbitration as an alternative form of dispute resolution. As a result, predicting whether an agreement will be enforceable has become a daunting task.¹² Not surprisingly, the gradual change of judicial attitude, the presence of cases in which courts have held agreements to arbitrate unenforceable, and the enactment of much federal legislation on the subject have caused a considerable amount of litigation, the result of which can easily become confusing.¹³

In the area of employment law, probably the best way to wade through the quagmire of case and statutory law is to start with the "easy" case and move to the exceptions. In recent years, the Supreme Court has had little trouble enforcing agreements to arbitrate when three factors are present: (1) the individual employee agrees with his employer, (2) the setting in which the agreement takes place is covered by the Federal Arbitration Act ("FAA"),¹⁴ and (3) the agreement is to arbitrate disputes regarding the provisions of the employment contract itself.¹⁵ When one of these factors is missing, the Court has struggled with whether or not to enforce the agreement, although the trend leans toward enforcement. When multiple factors are missing, however, no clear trend exists, and the lower courts differ on whether to enforce the agreement.

For example, when a court finds that the FAA does not apply, it must then struggle to enforce the arbitration agreement. The issue that causes the struggle is often whether the FAA applies to employment contracts at all. Passed by Congress in 1925, the FAA created a federal policy favoring arbitration to help promote judicial acceptance. Because of political pressure, coming mainly from maritime unions,¹⁶ section one of the Act excluded from coverage seamen, railroad employees, and any other worker "engaged in foreign or interstate commerce."¹⁷ That exception has caused much confusion over what is covered by the FAA. Many courts have held that Congress intended all employment contracts to be excluded from the Act.¹⁸ Others have held that only collective bargaining agreements are excluded,¹⁹ while the Seventh Circuit has held that the FAA is generally applicable to all employment contracts.²⁰ Another small group of courts has held that section 301 of the Taft-Hartley Act²¹ supersedes the FAA, rendering the question moot.²² The Supreme Court has not yet directly addressed the issue, and as a result, other courts avoid the issue whenever possible.²³

When the FAA is found not to apply, or the court addressing the agreement avoids the issue, the arbitration clause may still be enforced. In three cases that have collectively become known as The Steelworkers Trilogy, the Supreme Court announced that a presumption of arbitrabil-ity may be present even where the FAA cannot be applied.²⁴ This presumption is based on the "notion that arbitration is a preferable means of dispute resolution where there is a need to promote labor peace, given that the parties to a labor dispute possess potent economic weapons, including the strike and the lockout."²⁵ Thus, even though the addressing court may struggle with the issue, the absence of the FAA factor, alone, will generally not keep the agreement from being enforced.

Like the applicability of the FAA, when it is not clear that the individual employee has agreed to arbitration with the employer, courts will struggle to determine whether the agreement is enforceable. This problem most often arises under collective bargaining agreements where the decision to send disputes to arbitration is made for the individual employees by the union representing them in the collective bargaining. In these cases the Supreme Court has been most concerned about possible tension between collective representation and...