Originally from:
AAA Handbook on Labor Arbitration - 2nd Edition - Hardcover
AAA Handbook on Labor Arbitration - 2nd Edition - Electronic
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CHAPTER 5
JOB DISCRIMINATION CLAIMS UNDER
COLLECTIVE BARGAINING
Harvey R. Boller and Donald J. Petersen*
I. Introduction
This chapter deals with the effect of a mandatory arbitration clause in
a collective-bargaining agreement. More specifically, the chapter
investigates whether the presence of such a clause effectively compels an
employee to arbitrate an alleged violation of an employment
discrimination statute in lieu of the litigation of his/her claim. This issue
has considerable current significance. In 1997 alone, it was presented to
federal courts of appeals in six circuits.
The first recent decision regarding the enforceability of a mandatory
arbitration clause in a collective-bargaining agreement was Austin v.
Owens-Brockway Glass Containers, Inc.,1 which was decided by the
Fourth Circuit in 1996. The court held that the mandatory arbitration
provision was enforceable and that the employee’s only option was to
arbitrate the alleged violation of her rights under Title VII of the Civil
Rights Act of 1964 (Title VII) and the Americans with Disabilities Act
(ADA). Five other circuits have rendered decisions after Austin. With the
exception of one decision, which was withdrawn shortly after it was
rendered, the decisions have uniformly rejected the conclusions reached
in Austin. Those courts have held that the agreement to arbitrate was not
binding because it was contained in a collective-bargaining agreement.
This chapter reviews Austin and the other recent circuit court
decisions. Although some of the issues presented by the cases are not yet
Full Table of Contents from "AAA Handbook on Labor Arbitration - 2nd Edition"
Foreword
PART I: Issues in Labor Arbitration
Chapter 1
An Analysis of Factors Present in Challenged and Vacated
Labor and Employment Arbitration Awards
Michael Jedel, Helen Lavan and Robert Perkovich
Chapter 2
Labor and Employment Arbitration:
What’s Justice Got to Do with It?
Dennis Nolan
Chapter 3
Alternatives for Labor Arbitrators
Walter J. Gershenfeld
Chapter 4
Issues in Discharge Arbitration
Walter J. Gershenfeld and Gladys Gershenfeld
Chapter 5
Job Discrimination Claims under Collective Bargaining
Harvey R. Boller and Donald J. Petersen
Chapter 6
Ambiguities in Labor Contracts: Where Do They Come From?
John B. LaRocco
PART II: Labor Arbitration Procedures
Chapter 7
Rules of Evidence in Labor Arbitration
Michael S. Winograd
Chapter 8
Arbitral Perspectives in Supervisor Work
Restriction Cases
Donald J. Petersen
Chapter 9
The Eight Essential Steps of Grievance
Processing
Mark I. Lurie
Chapter 10
Applying the Public Policy-Exception to Labor
Arbitration on Awards
Donald J. Petersen and Harvey R. Boller
Chapter 11
Process, Strategy and Tactics in Labor-Management Mediation
Paul D. Roose
Chapter 12
Fatal Error and Sparks of Genius in Labor Arbitration
Advocacy
Douglas E. Ray and Patricia Thomas Bittel
Chapter 13
Weingarten Rights in the Non-Union Workplace:
A Merry-Go-Round of NLRB Decisions
Clarence R. Deitsch, David A. Dilts and Francine Guice
PART III: Advocates’ and Arbitrators’ Issues
Chapter 14
What Labor Arbitrators Should Know About
Arbitral Immunity
Matthew M. Bodah
Chapter 15
Suggestions for Labor Arbitration Advocates
Barry Winograd
Chapter 16
The Impact of Lawyers on Labor-Management Arbitration
Richard Mittenthal
Chapter 17
Who Are Labor Arbitration Opinions Written For?
And Other Musings About Award Writing
Herbert L. Marx, Jr.
Chapter 18
How Unions Can Improve Their Success Rate in
Labor Arbitration
Charles A. Borrell
Chapter 19
The Arbitrator’s Dilemma: External vs. Internal Law:
Narrowing the Debate
Steven K. Birch
Chapter 20
Disclosure Problems of the Academic Labor
Arbitrator
Joseph Krislov
Part IV: Judicial Review of Labor Arbitration
Chapter 21
The NLRB’s Unfair Labor Practice Settlement Program:
An Empirical Analysis of Participant Satisfaction
Lamont Stallworth, Arup Varma and John T. Delaney
Chapter 22
Arbitration in Public Sector Labor Disputes
Richard M. Gaba
Chapter 23
“Contract Reading” in Labor Arbitration
Theodore J. St. Antoine
Chapter 24
Constructing a New Paradigm of Labor
Arbitration
Charles J. Coleman and Gerald C. Coleman
Index
Harvey R. Boller is an assistant professor of business law at Loyola University
Chicago. He has participated in court-annexed arbitrations since 1991. Donald J. Petersen
is a professor of management at Loyola University Chicago, a member of the American
Arbitration Association’s roster of neutrals and the Federal Mediation and Conciliation
Service since 1970, and a member of the National Academy of Arbitrators since 1984.
