United States Court of Appeals,
Eleventh Circuit.
No. 96-6866.
Clifford BRISENTINE, Plaintiff-Appellant,
v.
STONE & WEBSTER ENGINEERING CORPORATION, Defendant-Appellee.
July 21, 1997.
Appeal from the United States District Court for the Northern District of Alabama. (No. CV-94-N-
1623-NE), Edwin L. Nelson, Judge.
Before BIRCH and CARNES, Circuit Judges, and GODBOLD, Senior Circuit Judge.
CARNES, Circuit Judge:
Clifford Brisentine brought this lawsuit against Stone & Webster Engineering Corporation
("Stone & Webster") alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C.
§ 12101 et seq. The district court granted summary judgment in favor of Stone & Webster, holding
that Brisentine's statutory claims were subject to compulsory arbitration pursuant to an arbitration
clause in a collective bargaining agreement. We reverse, because we hold that in order to bar
litigation of federal statutory claims, a mandatory arbitration clause agreement must meet three
requirements, none of which were met in this case.
I. BACKGROUND
A. THE COLLECTIVE BARGAINING AGREEMENT
The Project Maintenance and Modifications Agreement ("the Agreement") for the Tennessee
Valley Authority ("TVA") is a collective bargaining agreement between TVA contractors and
subcontractors and the unions comprising the Tennessee Valley Trades and Labor Council ("the
Council"). The Council comprises some sixteen international unions, including the International
Brotherhood of Electrical Workers ("IBEW"). Stone & Webster, a TVA contractor, is an employer
party to that collective bargaining agreement.
Article I of the Agreement sets forth the intents and purposes of the parties, stating that the
Agreement
shall be construed as binding upon and effective in determining the relations between the
parties ... and [shall] set forth herein the basic Agreement covering the rates of pay, hours
of work, and conditions of employment to be observed by the parties hereto.
In Article III of the Agreement, the contractor, Stone & Webster in this case, agrees to "recognize[
] the Council as the sole and exclusive bargaining representative for all craft employees of the
Contractor." Article IV, the only provision in the Agreement remotely addressing federal statutory
rights, states:
The Council Unions and the Contractor shall not discriminate against any employee or
applicant for employment because of race, creed, color, sex, national origin, age, or
handicap....
Article VII provides a grievance procedure through which an employee may "protest a
termination, suspension, or violation of a specific provision of this Agreement." Although the
individual employee must initiate the grievance procedure, if a settlement is not reached within the
first few steps of the grievance procedure, only the Council and the contractor have the authority to
appeal an unfavorable resolution of a grievance to an arbitrator. See Agreement, Art. VII, Step III,
2 ("In the event agreement in not reached within ten (10) working days of receipt, the Contractor
or the Council may appeal within ten (10) working days to the Arbitrator...."). Thus, neither the
individual employee nor the employee's individual union can ensure that the employee's claim goes
to arbitration. Notwithstanding that, it is the employee's individual union, not the employee or the
Council, which shares the cost of arbitration with the contractor. See Agreement, Art. VII, Step IV,
2 ("In arbitration proceedings, the expenses of arbitration shall be shared by the Contractor and the
Council Union involved.").
Once a grievance reaches arbitration, "[a]ll decisions of the arbitrator shall be within the
scope and terms of this Agreement." The arbitrator's jurisdiction and authority are limited to
determining the "meaning, application of, or compliance with the provisions of [the] Agreement."
The arbitrator does not have jurisdiction or authority "to add to or detract from or alter in any way"
any provision of the Agreement.
B. THE HISTORICAL AND PROCEDURAL FACTS
Clifford Brisentine worked as an electrician in various small commercial, residential, and
industrial settings for more than ten years. In 1992, he fell off a scaffold at work and injured his
back. After surgery, he underwent a rehabilitation process called "work hardening" to facilitate his
return to work. In November 1993, Brisentine's doctor released him to return to work, but restricted
him from lifting more than 30 to 45 pounds and from repetitive bending and stooping.
Getting on the payroll at Stone & Webster at TVA's Browns Ferry Nuclear Plant is a two part
process. The first step requires that a union refer an individual for an opening at Stone & Webster.
Once referred by the union, the individual becomes a "probationary employee." Such designation
pulls the individual under the umbrella of the Agreement and provides him with all rights and
liabilities appertaining thereunto. The second step requires that the individual "meet [the]
requirements for ... clearance." See Agreement, Art. III, K. That is, the individual must file a formal
application with Stone & Webster and meet the job specifications in order for Stone & Webster to
formally hire the individual and put him on the payroll. Although an individual whose application
is rejected is "not hired," under the technical terms of the Agreement, that individual is "terminated"
from employment with Stone & Webster, because he is considered a probationary employee.
In early May 1994, Brisentine's union, the IBEW, referred him for an industrial electrician
position with Stone & Webster at TVA's Browns Ferry Nuclear Plant. When Brisentine filed his
application with Stone & Webster, he indicated that he was unable to engage in heavy lifting or
repetitive bending and stooping. Shortly after that, Brisentine was informed that his application was
rejected and he was terminated because of those disabilities. Tom Dougherty, a labor relations
manager at Stone & Webster, reaffirmed to Brisentine later that day that he was terminated because
of his disabilities. Brisentine told Dougherty that he believed he could do the job, because he had
recently worked as an electrician at another nuclear power plant. Dougherty refused to reconsider
his decision and explained that "he just couldn't take the chance of [Brisentine's] getting hurt on [the]
job."
Immediately following his termination, Brisentine contacted an IBEW union representative
about filing a grievance under the procedures set out in the Agreement. The IBEW representative
told Brisentine that, because his dispute with the S & W centered around his disability, he would be
better off filing a complaint with the Equal Employment Opportunity Commission ("EEOC") instead
of pursuing his claim through the grievance procedure. Brisentine took that advice; he filed a
complaint with the EEOC; and he never filed a grievance.
After receiving his right to sue letter from the EEOC, Brisentine filed this lawsuit. In his
complaint, Brisentine alleged that Stone & Webster had violated the ADA, 42 U.S.C. § 12101 et
seq., by terminating him because of his disability and failing to make a reasonable accommodation
for it. Stone & Webster sought summary judgment on a number of grounds. However, the district
court addressed only Brisentine's alleged failure to file a grievance pursuant to the procedures set
forth under the Agreement and then submit that grievance to binding arbitration. Because he had
failed to do so, the court dismissed actions.
II. THE STANDARD OF REVIEW
We review the district court's grant of summary judgment de novo, applying the same
standards as the district court. See Counts v. American Gen. Life & Acc. Ins., 111 F.3d 105, 107
(11th Cir.1997); Harris v. Board of Educ., 105 F.3d 591, 595 (11th Cir.1997). Pursuant to Federal
Rule of Civil Procedure 56(c), summary judgment is appropriate when there is no genuine issue as
to any material fact and the moving party is entitled to judgment as a matter of law. See Counts, 111
F.3d at 107.
III. DISCUSSION
We deal here with the intersection of federal statutory anti-discrimination rights with
mandatory grievance and arbitration clauses in a collective bargaining agreement. This area of the
law has been staked out by two Supreme Court decisions, although neither one is directly on point
to our case. Moreover, those two Supreme Court decisions reached different results. Our task then
is to examine the precedential orbit of the two decisions and decide which one this case falls within.
The first Supreme Court decision bearing upon the matter is Alexander v. Gardner-Denver
Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). In that case, an employee grieved and
arbitrated unsuccessfully his claim that his discharge was racially discriminatory. After completing
the grievance and arbitration process that the collective bargaining agreement mandated, he filed a
Title VII lawsuit. Id. at 43, 94 S.Ct. at 1017. A unanimous Supreme Court held that the mandatory
grievance and arbitration clause, and the result of that process in that case, did not preclude the Title
VII lawsuit. The Court explained that "the federal policy favoring arbitration of labor disputes and
the federal policy against discriminatory employment practices can best be accommodated by
permitting an employee to pursue fully both his remedy under the grievance-arbitration clause of
a collective-bargaining agreement and his cause of action under Title VII." Id. at 59-60, 94 S.Ct.
at 1025.
The Alexander Court distinguished an employee's individual statutory rights from any
contractual rights he may have as an employee under a collective bargaining agreement:
In submitting his grievance to arbitration, an employee seeks to vindicate his contractual
right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title
VII, an employee asserts independent statutory rights accorded by Congress. The distinctly
separate nature of these contractual and statutory rights is not vitiated merely because both
were violated as a result of the same factual occurrence. And certainly no inconsistency
results from permitting both rights to be enforced in their respectively appropriate forums.
Id. at 49-50, 94 S.Ct. at 1020. In reaching that conclusion, the Supreme Court determined that in
enacting Title VII, Congress endowed individual employees with a statutory right to equal
employment opportunities that is not susceptible to prospective waiver by the "majoritarian
processes" of collective bargaining. Id. at 51-52, 94 S.Ct. at 1021.
Although Alexander involved a claim arising under Title VII, later cases indicate that the
reasoning of that decision applies equally to claims brought under other federal statutes that protect
individual rights. See McDonald v. City of West Branch, 466 U.S. 284, 290, 104 S.Ct. 1799, 1803,
80 L.Ed.2d 302 (1984) (applying Alexander in a 42 U.S.C. § 1983 lawsuit); Barrentine v. Arkansas-
Best Freight System, Inc., 450 U.S. 728, 745, 101 S.Ct. 1437, 1447, 67 L.Ed.2d 641 (1981)
(applying Alexander in a Fair Labor Standards Act lawsuit); Pryner v. Tractor Supply Co., 109 F.3d
354, 355 (7th Cir.1997) (applying Alexander in a lawsuit involving claims arising under the ADA
and the Age Discrimination in Employment Act ("ADEA") as well as Title VII), petition for cert.
filed, 65 U.S.L.W. 3783 (U.S. May 16, 1997) (No. 96-1830).
If Alexander were the last word on this subject from the Supreme Court, the law would be
pretty clear, and Stone & Webster would have little to talk about. However, Alexander is not the
last word, and Stone & Webster does have something to talk about, because seventeen years after
Alexander the Supreme Court decided Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111
S.Ct. 1647, 114 L.Ed.2d 26 (1991). In that case, as a condition of employment, the plaintiff had
personally agreed to arbitration as his exclusive remedy for any controversy arising out of his
employment or the termination of it. 500 U.S. at 23, 111 S.Ct. at 1650-51. He was later terminated.
Believing it was because of his age, and notwithstanding his agreement to arbitrate any disputes the
plaintiff filed a lawsuit alleging violation of the ADEA. The employer responded with a motion to
compel arbitration. 500 U.S. at 24, 111 S.Ct. at 1651. In denying that motion, the district court
relied upon Alexander, but the Supreme Court held that the motion to compel arbitration should have
been granted.
The Supreme Court took back in Gilmer some of the disparaging things it had said about
arbitration in Alexander. See Gilmer, 500 U.S. at 34 n. 5, 111 S.Ct. at 1656 n. 5. The Court also said
in Gilmer that "[i]t is by now clear that statutory claims may be the subject of an arbitration
agreement, enforceable pursuant to the [Federal Arbitration Act] FAA." 500 U.S. at 26, 111 S.Ct.
at 1652. Accordingly, because the would-be plaintiff in that case had "made the bargain to
arbitrate," the burden was on him "to show that Congress had intended to preclude a waiver of a
judicial forum for ADEA claims." Id. (citation omitted). Having failed to carry that burden, he was
relegated to his arbitration remedy. See id. 26-33, 111 S.Ct. at 1652-56.
Understandably, Stone & Webster contends that Gilmer means any agreement, including a
collective bargaining agreement, that makes arbitration the exclusive remedy for violation of a
federal statutory right is enforceable. The only exception in its view is where the plaintiff seeking
to relitigate rather than arbitrate can show that Congress intended to preclude a waiver of a judicial
forum in favor of arbitration. Stone & Webster points to the text of the ADA itself, which is
arbitration friendly: "Where appropriate and to the extent authorized by law, the use of alternative
means of dispute resolution, including ... arbitration, is encouraged to resolve disputes arising under
this chapter." 42 U.S.C. § 12212. Encouragement is towards the other end of the pole from
preclusion. Congress in the ADA did not manifest an intention to preclude a collective bargaining
waiver of a judicial remedy for an arbitration remedy. Therefore, Brisentine, like the plaintiff in
Gilmer, should lose. Or so Stone & Webster argues.
The problem with Stone & Webster's argument is that it goes too far. If Gilmer stands for
the proposition that any agreement requiring arbitration in lieu of judicial enforcement of federal
statutory rights is valid, unless the plaintiff shows Congress intended to preclude the result, then
Gilmer overruled Alexander. But the Supreme Court did not say in Gilmer that it was overruling
Alexander, nor did the Court even imply that. Instead, the Court clearly implied to the contrary by
explicitly distinguishing Alexander from Gilmer. See 500 U.S. at 33-35, 111 S.Ct. at 1656-57; see
also Livadas v. Bradshaw, 512 U.S. 107, 126 n. 21, 114 S.Ct. 2068, 2080 n. 21, 129 L.Ed.2d 93
(1994) ("Gilmer emphasized its basic consistency with our unanimous decision in Alexander ";
"Gilmer distinguished [Alexander ]."). Distinguishing a prior precedent that is being overruled
would make as much sense as pruning a plant that is being dug up and discarded. If the Supreme
Court in Gilmer had intended to cast Alexander upon the judicial mulch heap, it would not have
bothered to prune back that decision.
In order to see which precedent the present case more closely resembles, we turn now to the
distinctions the Supreme Court drew in Gilmer between that case and Alexander. There are three.
First, the Gilmer Court distinguished Alexander because it had involved an agreement to arbitrate
contractual claims that did not extend to statutory claims. See Gilmer, 500 U.S. at 35, 111 S.Ct. at
1657. As the Court observed, the labor arbitrator's authority and power in Alexander were limited
to interpretation of the collective bargaining agreement; the labor arbitrator was not authorized to
resolve any statutory claims. For that reason, the agreement to arbitrate the contract claims under
the collective bargaining agreement in Alexander could not preclude litigation of a statutory claim,
which was outside its scope. See id. In Gilmer, by contrast, the agreement covered the arbitration
of statutory as well as contractual claims. See 500 U.S. at 23, 111 S.Ct. at 1650-51, That made it,
the Court noted, a "quite different issue." Id. at 35, 111 S.Ct. at 1657.
As in Alexander, in this case the arbitrator only has authority to interpret the collective
bargaining agreement; the arbitrator does not have the authority to resolve statutory claims. See
Agreement, Art. VII, Step IV, 1; Alexander, 415 U.S. at 53, 94 S.Ct. at 1022.1
The provision in the collective bargaining agreement in this case that sets forth the
arbitrator's authority to arbitrate claims brought pursuant to the grievance procedure is materially
identical to the one in Alexander. Both agreements confine the arbitrator's jurisdiction to
determining the meaning, application of, or compliance with the provisions of the agreement; both
agreements make clear that the arbitrator does not have the authority to add to, detract from, or alter
in any way any provision of the respective agreement. In examining the arbitrator's authority under
the collective bargaining agreement in Alexander, the Supreme Court discussed the limitations it had
previously placed on arbitrators of grievances brought pursuant to collective bargaining agreements,
415 U.S. at 53, 94 S.Ct. at 1022, and explained what those limitations meant in this context:
If an arbitral decision is based solely upon the arbitrator's view of the requirements of
enacted legislation, rather than on an interpretation of the collective-bargaining agreement,
the arbitrator has exceeded the scope of the submission, and the award will not be enforced.
Thus, the arbitrator has authority to resolve only questions of contractual rights, and this
authority remains regardless of whether certain contractual rights are similar to, or
duplicative of, the substantive rights secured by Title VII.
415 U.S. at 53-54, 94 S.Ct. at 1022 (internal single quotations omitted). That analysis applies in this
case, because the Agreement did not authorize the arbitrator to decide federal statutory claim issues.
It is true that Brisentine, unlike the plaintiff in Alexander, did not first submit any
contract-based claims to arbitration. However, as the Alexander Court noted, "the actual submission
1
Alexander explained the collective bargaining agreement at issue there as follows:
Article 5, § 2, provided ... that "there shall be no discrimination against any
employee on account of race, color, religion, sex, national origin, or ancestry,"
and Article 23 § 6(a) stated that "[n]o employee will be discharged, suspended or
given a written warning notice except for just cause." The agreement also
contained a broad arbitration clause covering "differences aris[ing] between the
Company and the Union as to the meaning and application of the provisions of
this Agreement" and "any trouble aris[ing] in the plant." Disputes were to be
submitted to a multistep grievance procedure, the first four steps of which
involved negotiations between the company and the union. If the dispute
remained unsolved, it was to be remitted to compulsory arbitration.... The
agreement further provided that "[t]he arbitrator shall not amend, take away, add
to, or change any of the provisions of this Agreement, and the arbitrator's decision
must be based solely upon an interpretation of the provisions of the agreement."
Alexander, 415 U.S. at 39-42, 94 S.Ct. at 1015-16 (footnotes omitted).
of [the] grievance to arbitration ... does not alter the situation." 415 U.S. at 52, 94 S.Ct. at 1021;
see also id. at 52, 94 S.Ct. at 1022 ("[Statutory and contractual rights] have legally independent
origins and are equally available to the aggrieved party."); Varner v. National Super Markets, Inc.,
94 F.3d 1209, 1213 (8th Cir.1996) ("[T]he United States Supreme Court has held that the pursuit
of a claim through grievance and binding arbitration under a [collective bargaining agreement] does
not preclude a civil suit under Title VII, and we believe that the same reasoning applies to a plaintiff
who has chosen not to participate in the grievance procedure.") (citations omitted), cert. denied, ---
U.S. ----, 117 S.Ct. 946, 136 L.Ed.2d 835 (1997). For all of those reasons, the first distinction the
Supreme Court drew between Alexander and Gilmer places the present case on the Alexander side
of the line.
So does the second distinction, which has to do with the individual versus collective nature
of the agreements in the two cases. An individual contractual agreement to submit a claim to
arbitration was enforced in Gilmer; a collective bargaining agreement to do so was not enforced in
Alexander. The Gilmer Court noted that, in the context of collective bargaining agreements,
employee-claimants are represented by their unions in arbitration proceedings. See Gilmer, 500 U.S.
at 35, 111 S.Ct. at 1657. As a result, there is a "potential disparity in interests between a union and
an employee" regarding the prosecution of the employee's individual statutory rights. Id. That
disparity weighed against the enforcement of arbitration clauses as the employee's exclusive remedy
for individual statutory rights. See Alexander, 415 U.S. at 52, 94 S.Ct. at 1021-22; see also Pryner,
109 F.3d at 362-63. The Gilmer Court explained that the concern about the conflict between
collective representation and individual statutory rights that was present in Alexander is not present
in the context of individual employment contracts. Gilmer, 500 U.S. at 35, 111 S.Ct. at 1657.
Consequently, the Court was unconstrained by that concern when it determined in Gilmer that
arbitration clauses in individual employment contracts are enforceable.
The same is true here. In fact, the disparity in interests between the union and the individual
employee, which helps explain the differing results in Alexander and Gilmer, is illustrated by the
facts in this case. Recall that the IBEW advised Brisentine to file a complaint with the EEOC rather
than file a grievance. That advice is some indication that the union was at least unenthusiastic, and
perhaps unwilling, to pursue Brisentine's claim to arbitration. Recall also that, under the Agreement,
the Council of Unions, not Brisentine or his union, would ultimately decide whether to put the claim
to arbitration. See Agreement, Art. VII, Step III, 2. Moreover, the union, not Brisentine, would be
obligated to bear half the cost of arbitration, which gave it an incentive against pressing the Council
to take a claim to arbitration. That same conflict of interest existed in Alexander but was absent in
Gilmer, 500 U.S. at 35, 111 S.Ct. at 1657. Thus, the second distinction between those two cases,
like the first distinction, places this case on the Alexander side of the line.
The third distinction the Gilmer Court drew between that case and Alexander was that the
claim in Gilmer arose under the FAA, whereas the claim in Alexander did not. Gilmer, 500 U.S. at
35, 111 S.Ct. at 1657. The FAA reflects a "liberal federal policy favoring arbitration agreements,"
which was another reason given for enforcing the arbitration clause in Gilmer but not Alexander.
Neither this Court nor the Supreme Court has decided whether collective bargaining agreements are
subject to the FAA. Other circuits that have addressed the issue have reached conflicting results.
Compare Pryner, 109 F.3d at 359 (7th Cir.)(holding that the FAA is generally applicable to
collective bargaining agreements) with Austin v. Owens-Brockway Glass Container Inc., 78 F.3d
875, 879 (4th Cir.) (noting that "in this circuit, the FAA is not applicable to labor disputes arising
from collective bargaining agreements") (citations omitted), cert. denied, --- U.S. ----, 117 S.Ct. 432,
136 L.Ed.2d 330 (1996). While Gilmer did reject Alexander's general "mistrust of the arbitral
process," Gilmer, 500 U.S. at 34 n. 5, 111 S.Ct. at 1656 n. 5, the Supreme Court has yet to address
arbitration clauses in collective bargaining agreements in light of Gilmer. Unless and until it does
so, the present case, a collective bargaining agreement case like Alexander, is not distinguishable
from Alexander on that basis, either.
Therefore, in all three of the ways that the Gilmer Court distinguished that case from
Alexander, this case is like Alexander and unlike Gilmer. It may be that the Supreme Court has cut
Alexander back so far that it will not survive. Perhaps, but we are not convinced we are authorized
to sing the dirge of Alexander. We will leave that to the Supreme Court, which has admonished
courts of appeal:
If a precedent of this Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of overruling its own decisions.
Rodriguez de Quijas v. Shearson/American Express Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-
22, 104 L.Ed.2d 526 (1989); accord Florida League of Prof. Lobbyists v. Meggs, 87 F.3d 457, 462
(11th Cir.) ("This prediction may be accurate, but we are not at liberty to disregard binding case law
that is so closely on point and has only been weakened, rather than directly overruled, by the
Supreme Court."), cert. denied, --- U.S. ----, 117 S.Ct. 516, 136 L.Ed.2d 405 (1996); Pryner, 109
F.3d at 364 ("[W]e are timid about declaring decisions by the Supreme Court overruled when the
Court has not said so."). Unless and until the Supreme Court overrules Alexander, we are bound to
apply that decision to a case like this one that involves an exclusive remedy arbitration clause in a
collective bargaining agreement under which the arbitrator is limited to resolving contractual claims,
and the employee-claimant is not empowered to insist that his claim be arbitrated.
In applying Alexander instead of Gilmer to collective bargaining agreements, we follow the
Seventh, Eighth, and Tenth Circuits. See Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1453 (10th
Cir.1997) (adopting "the majority view ... that Alexander and its progeny remain good law and that
statutory employment claims are independent of a collective bargaining agreement's grievance and
arbitration procedures") (citations and internal quotation marks omitted); Pryner, 109 F.3d at 363
(7th Cir.) (applying Alexander and holding that "the union cannot consent for the employee by
signing a collective bargaining agreement that consigns the enforcement of statutory rights to the
union-controlled grievance and arbitration machinery created by the agreement"); Varner, 94 F.3d
at 1213 (8th Cir.) (applying Alexander instead of Gilmer and holding that exhaustion of grievance
and administrative remedies under a collective bargaining agreement is not required in order to bring
a Title VII claim in federal court).
We disagree with the result and reasoning of the Fourth Circuit, which reached the opposite
conclusion. See Austin, 78 F.3d at 885 (applying Gilmer and holding that an employee's individual
statutory claim is subject to compulsory arbitration pursuant to an arbitration clause in a collective
bargaining agreement). Judge Hall dissented from that decision, and we find the reasoning in his
dissenting opinion, see id. at 886-87, more persuasive that the panel majority's.
The Third Circuit recently has upheld the exclusivity of the arbitration remedy in a collective
bargaining agreement case, but limited its holding to agreements which empower the employee to
pursue arbitration without the approval of the union, and which explicitly provide for arbitration of
statutory discrimination claims, instead of only contractual claims. See Martin v. Dana Corp., 114
F.3d 421 (3d Cir. 1997). Even though it was circumscribed in that manner, the decision still drew
a dissent. Id. at 421 (Scirica, J., dissenting). Unlike the agreement in Martin, the one in the present
case did not give employees the authority to pursue arbitration without union consent, and the
arbitrator was not given the authority to decide statutory claims, anyway.
IV. CONCLUSION
Employment discrimination lawsuits are burgeoning as are the costs of litigating them, costs
that are borne by the judicial system as well as by employers and employee-plaintiffs. Faced with
a rising tide of litigation, it is not surprising that businesses are seeking to "trade[ ] the procedures
and opportunity for review of the courtroom for the simplicity, informality, and expedition of
arbitration," Gilmer, 500 U.S. at 31, 111 S.Ct. at 1655 (quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985)), in order
to reduce the costs of resolving such disputes, nor is it surprising that courts are becoming more
favorably inclined to litigation alternatives such as arbitration. The Supreme Court's attitude toward
arbitration warmed considerably from Alexander to Gilmer, and may become warmer still. In the
meantime, our duty is to apply the law as it is now.
Under that law, as we understand it, a mandatory arbitration clause does not bar litigation
of a federal statutory claim, unless three requirements are met. First, the employee must have agreed
individually to the contract containing the arbitration clause—the union having agreed for the
employee during collective bargaining does not count. Second, the agreement must authorize the
arbitrator to resolve federal statutory claims—it is not enough that the arbitrator can resolve contract
claims, even if factual issues arising from those claims overlap with the statutory claim issues.
Third, the agreement must give the employee the right to insist on arbitration if the federal statutory
claim is not resolved to his satisfaction in any grievance process. All three of those requirements
were met in the Gilmer case, which is the latest word from the Supreme Court on the subject. None
of the requirements were met in this case.
For the foregoing reasons, we REVERSE the judgment of the district court and REMAND
for further proceedings consistent with this opinion.