ALEXANDER v. GARDNER-DENVER CO.

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Argument of Paul J. Spiegelman

Chief Justice Warren E. Burger: We will hear arguments first this morning in number 72-5847 Alexander against Gardner-Denver Company.

Mr. Spiegelman, you may proceed whenever you are ready.

Mr. Paul J. Spiegelman: Mr. Chief Justice and may it please the court.

My name is Paul Spiegelman and I am counsel for petitioner in this case.

The questions presented today are we believe two.

First, does the submission of a grievance to arbitration pursuant to a collective bargaining agreement deprive the Federal Courts of power to hear a statutory claim of racial discrimination based on the same incident which gave rise to the grievance?

Second, under what circumstances if any is it appropriate for a Federal Court to refuse to hear a claim of racial discrimination on its merits because the person raising the claim has pursued a contractual remedy which arose out of the same incident?

Petitioner is a black man who was hired by respondent in May of 1966, he bid on and was awarded a drill trainee job in June of 1968.

He remained in that job until he was discharged on September 29th, 1969 allegedly because he accumulated excessive scrap.

Petitioner filed a grievance on October 1st 1969.

That grievance stated, “I feel that I have been unjustly discharged and asked that I would be reinstated with full seniority in pay.”

That was the entire grievance.

No mention was made of issue of race.

The grievance was apparently brought under Section 6 (a) of Article 23 of the collective bargaining agreement which provided that no employee will be discharged, suspended, or given written notice except for just cause.

The contract also contains an ant-discrimination clause which provides that the Company and the Union agreed that there shall no discrimination against any employee on a account of race, color, religion, sex, national origin or ancestry.

Article 23 of the collective bargaining agreement sets forth the procedures for handling grievances.

Essentially, it sets up a five-step procedure.

The first four steps involve a negotiation between the Company and the Union and that failing to resolve the issue with fifth step of arbitration.

Arbitration may be invoked by the Union by written notice if the first four steps failed.

The collective bargaining agreement has no provision whatsoever to the individual to force arbitration and there is no provision specifically indicating than anyone can withdraw a grievance from arbitration once it has been refered to arbitration by the Union.

They only mention of any withdrawal or implication of withdrawal is Section 6 (f) of Article 23 which provides that company may convert a discharge into a suspension if the Union agrees at anytime prior to arbitration.

The procedures also provide that, the failure to meet the time limits prescribed therein will automatically make the disciplinary action take valid.

Those are the exact words of the collective bargaining agreement.

The agreement further provides that the Union and the Company select the arbitrator.

No provision is made for participation of the employee and the selection of the arbitrator.

The employee is not under the agreement even technically a party to the arbitration.

The arbitrator’s power is described in Section 5 step 5, it provides, the arbitrator shall not amend, take away, add to or change any of the provisions of this agreement and that the arbitrator’s decision must be based solely upon interpretation of the agreement.

In this case, the Company denied petitioner’s grievance in the first four steps.

Prior to the grievance being referred to arbitration, the petitioner filed the charge of racial discrimination with the Colorado Civil Rights Commission and some two weeks prior to the actual arbitration hearing, the Federal Equal Employment Opportunity Commission assumed jurisdiction of his charge on depositions which are part of the record in this case.

Unknown Speaker: Mr. Spiegelman, I don’t want to anticipate your argument but is it going to be an issue here whether in fact the usual racial discrimination was decided by the arbitrator?

Mr. Paul J. Spiegelman: We certainly believe that the issue of racial discrimination was not decided by the arbitrator.

Unknown Speaker: Was not?

Perhaps, I am under a misapprehension that the District Court found that it was --

Mr. Paul J. Spiegelman: It specially found that it did not.

It indicated that the issue was raised in arbitration but the arbitrator’s award was silent as to the issue of racial discrimination.

There was no mention made whatever of that and the District Court’s opinion did in fact note that.

Unknown Speaker: But it did find that the issue was raised before --

Mr. Paul J. Spiegelman: Yes, sir.

Unknown Speaker: And you questioned that finding?

Mr. Paul J. Spiegelman: Well, the record is not the best on that issue.

I would say that what the record does state is this.

First, petitioner indicated the only indication of it is from the deposition of petitioner which --

Unknown Speaker: I see, a year later?

Mr. Paul J. Spiegelman: Which was a year later?

Yes, the statement of petitioner and that seems to be what the record contains on this issue, two things, one he indicated that a letter that he had written to the Union was read verbatim into the transcript.

That letter stated that and I am quoting, “I am knowledgeable than in the same plant others have scrapped an equal amount and sometimes in excess but by all logical reasoning I, Harrell Alexander, have been the target of preferential discriminatory treatment.”

Now, the deposition indicates that Mr. Alexander, a year later indicate he felt that was raising the race issue.

The words of course did not mention the issue of race.

Unknown Speaker: And I gather the arbitrator’s opinion, that was the law school team, wasn’t it?

Mr. Paul J. Spiegelman: Yes, sir.

Unknown Speaker: It makes no reference that the grievance involved racial discrimination?

Mr. Paul J. Spiegelman: None, whatever I point out though that there is a --

Unknown Speaker: Did he testify later at all?

Mr. Paul J. Spiegelman: In the arbitration hearing?

Unknown Speaker: No.

Did the arbitrator testify anywhere as to this?

Mr. Paul J. Spiegelman: No sir, this was a summary judgment motion.

It was decided on paper, so I point out that the record does indicate that there was the following question and answer with respect to what happened in the deposition.

The question, “When you took the stand, did you try and water down the race issue also?”

This was the question of petitioner.

He said, “No, I didn’t.

I held it up at the time I told them that I already filed with the City Commission because I could not rely on the Union.”

Later the deposition makes clear the City Commission refer to the Colorado Civil Rights Commission.

Unknown Speaker: And had he in the fact before the arbitration hearing referred this discrimination claim to the Colorado City Commission?

Mr. Paul J. Spiegelman: Yes, sir.

In fact, the EEOC had discharged before the arbitrator decided.

Justice Thurgood Marshall: But there’s not one word of “race” in his letter at all?

Mr. Paul J. Spiegelman: Not one “race” unless you take preferential discriminatory treatment to mean race.

Justice Thurgood Marshall: How in the world can you do that?

Mr. Paul J. Spiegelman: Well, all I can say is that the petitioner, in his deposition did indicate that --

Justice Thurgood Marshall: But he didn’t say, I was discriminated because of race?

Mr. Paul J. Spiegelman: No, sir.

Justice Thurgood Marshall: He might have been discriminated because of the way cut his hair or his Union membership has not a word in “race” in the arbitrators’ find.

He didn’t mention “race” once.

Mr. Paul J. Spiegelman: That is --

Justice Thurgood Marshall: Well, how under the sun can we assume race was before the arbitration committee?

Mr. Paul J. Spiegelman: Well, I do not believe that the arbitrator decided it.

I think the argument is that since it was raised before the arbitrator?

Justice Thurgood Marshall: Well, how?

Well, as I understand the only evidence that was raised was this letter.

Mr. Paul J. Spiegelman: Well, the petition of the question and answer which I gave you, the statement by the petitioner that he said that he had filed with the Colorado Civil Rights Commission was apparently made before the arbitrator.

Justice Thurgood Marshall: But he didn’t say, “I am raising it there.”

He said, “I am raising it over in other place.”

Mr. Paul J. Spiegelman: I would agree with that.

Unknown Speaker: How do you suppose the Court of Appeals got the idea that -- what was the basis for its first finding I’m now reading from its opinion, the issue of racially motivated discriminatory employment practices was presented to the arbitrator and rejected?

Mr. Paul J. Spiegelman: I do not know on what basis unless it means by rejected that it refused to consider but it did not -- there is nothing in this record to indicate a rejection of the issue of race.

Unknown Speaker: But surely you can see that the arbitrator did find that the discharged was for just cause, isn’t that correct?

Mr. Paul J. Spiegelman: Yes, sir.

Unknown Speaker: Now, wouldn’t that mean that he did find that it wasn’t by reason of racial discrimination because that was a provision of the collective bargaining agreement as you told us.

Mr. Paul J. Spiegelman: No, I do not think so for this reason.

The arbitrator does not touch on the issue that petitioner raised in his letter.

The specific issue, the petitioner raised in his letter was that others had been performing with the same amount of scrap and that they had not been discharged.

Now, that is an issue which if there is a racial component that is that that whites who were performing that way were not discharged and he was then it could have been a just cause for dismissal but if the practice was not to dismiss for such conduct then even though there was just cause they could have been a discriminatory action in this case.

Unknown Speaker: Well not, there could not have been just cause under a collective bargaining agreement that provides that there cannot be any discrimination on the basis of race if they were racial discrimination, isn’t that correct?

Mr. Paul J. Spiegelman: Well, the arbitrator -- that’s correct.

The arbitrator limited his decisions very carefully to the facts that were presented to him.

I know that in another issue he was offered the statement from the Union that it was company practice to send the trainee who performed poorly back to the position from which he transferred and the arbitrator said he had not given him an evidence on that.

There is nothing in this record indicate that he did not given an evidence about the comparative treatment of people who were performing poorly in the drill trainee job.

So I think it would stand on the same status.

Unknown Speaker: Well, the issue in that case I gather go, perhaps considerably beyond the specific facts of this particular arbitration?

Justice Thurgood Marshall: Wouldn’t your argument be the same even it that have been raised?

Mr. Paul J. Spiegelman: I believe that our argument is that whether or not the issue is raised that arbitration should not prevent the right to sue in Federal Court.

Now, the District Court’s decision in this case relying on the sole ground that petitioner’s pursuit of his contractual remedies to arbitration barred his action under Title VII and the Court purported to rely on Dewey versus Reynolds Metals which has been before this Court and it was affirmed by an equally divided Court.

The Dewey rationale is that the submission of a grievance to arbitration prior to submitting the grievance to -- submitting the claim to EEOC constitutes an election against the Title VII process.

The Court of Appeals affirmed in the memorandum opinion which essentially relied on the District Court’s opinion.

Now, we believe that as an initial matter, it’s clear that the Federal Court have plenary power over charges of racial discrimination regardless of the arbitration process.

Thus, if the court -- the Federal Courts are to refrain from hearing the case, it is not because of their lack of jurisdiction but because of some other reason made by the Court.

Now, the theory apparently offered under Dewey and that which apparently District Court relies on is a theory of waiver.

I submit that in this case and in all cases thus far where grievances have been filed, it is not proper to talk in terms of waiver.

First, let’s take the facts to this case.

Petitioner manifested a direct intent not to waive.

He filed charges with the appropriate federal authorities.

He informed the arbitrator that he had filed those charges.

He informed the arbitrator that he thought his representation in this case was inadequate and surely did everything he could to follow his federal rights to talk in terms of an expressed waiver in this case.

I do not think it would be problem.

Now, can we have an implied waiver in this case?

Again, I do not think that would be proper.

We are talking about a fundamental civil right here and we are talking about a layman making a decision.

And I do not think that it is the custom to imply waivers of such important rights.

I would add then in the circumstances of grievance proceedings in general, we not only have the facts that the layman is making a decision but he is making it under a very, very short time limit.

That is, he will under this very contract in this case he will automatically make the discriminatory discharge valid if he fails to grievance in this contract it’s in five days.

Chief Justice Warren E. Burger: Mr. Spiegelman, are you raising another issue in the case of ineffective assistance?

And if so, do you think that could be attributed to the employer, the consequences of ineffective assistance or is that an action, is that a proceeding against the Union?

Mr. Paul J. Spiegelman: Well, no I do not think that the issue was necessarily ineffective assistance.

The labor law makes it quite clear that the Union has a wide variety of actions it can take.

It must merely not acting in bad faith in terms of its duty of fair representation under the labor law.

It must not be arbitrary or in bad faith.

Now, the Union and the arbitration process is one that contemplates that in fact the Union doesn’t hire lawyers for these arbitration processes.

Very often, the arbitration is conducted by a Union arbitration man who has had no legal training.

So the process itself is one that I point out is designed for the benefit of the employer as well as the Union.

The employer regardless of the outcome of any grievance gets labor piece by a no strike clause which is the quid pro quo for his arbitration agreement.

So that no matter what happens in the grievance whether the employer wins or loses, he’s already got what he bargained for and that is that the Union will not strike over this issue and he can enjoin such a strike under Boys Market if the Union does strike over such an issue.

So the employer gets what he bargains for the minute a case goes to arbitration.

Now, for these reasons we think the waiver theory is inadequate.

The other theory advanced by courts and not relied upon but the District Court in this case was the theory of deferral.

The deferral theory is that the arbitrator has adequately dealt with the issues and it will save judicial time and energy not to deal with these questions.

We point out that the Civil Rights Act embodies a fundamental commitment on the part of this country to end racial discrimination and that mere judicial economy is not an overriding consideration as against this important policy.

Nonetheless we believe that deferral to the arbitrator’s award is not an appropriate way even in terms of judicial economy to deal with important civil rights.

Now, in doing this I want state very clearly that we do not mean to denigrate the arbitration process as an efficient way of dealing with normal labor disputes.

The arbitration process is well embodied in the labor law and is working efficiently to deal with fast, speedy, efficient relief of particular law of the Charlotte (ph) kind of questions which are characteristically raised.

We do believe however that there are things about the arbitration process in racial cases which make it inappropriate to use it as a method for -- as a process to which to defer.

Unknown Speaker: Well, this is a racial case and part of the argument, which I think you are about to make it and it is made in your brief is confined to a racial situation sure, the principle that you espousing can not be confined to racial discrimination, can it?

Mr. Paul J. Spiegelman: No, sir.

Unknown Speaker: It also includes discrimination based on sex, for example and I suppose that -- well, how many are there 25 million employees in the United States covered by collective bargaining agreement something like that?

Over a 90% of them have arbitration provisions of the grievance?

Mr. Paul J. Spiegelman: Yes, sir.

Unknown Speaker: And over half of the grievances have to do with this discharge, is that right?

I remember I read that somewhere in the brief and I suppose, most if not all employees are either men or women, aren’t they?

Mr. Paul J. Spiegelman: Yes, sir.

Unknown Speaker: And so wouldn’t any employee who was discharged have a discrimination claim that he was discharged because he was man or that she was discharged because she was woman?

Mr. Paul J. Spiegelman: If in fact he had such a claim --

Unknown Speaker: She was discharged because she was a woman.

Mr. Paul J. Spiegelman: If he or she has such a claim, he can raise such a claim. Now, in order to bring such a case into the Federal Court --

Unknown Speaker: That is what we are talking at least potentially not about just a little bit of added burden on the courts, we are talking about tremendous dual trial of these things, aren’t we?

Mr. Paul J. Spiegelman: Well, I don’t think so.

Let me say first of all I think that the grievance process may in fact screen out a lot of these cases.

Unknown Speaker: Well?

Mr. Paul J. Spiegelman: That is they will decide --

Unknown Speaker: They would be prior to arbitration you mean?

Mr. Paul J. Spiegelman: Prior arbitration and in arbitration.

Often, all the employee wants is someone neutral to determine this issue.

The arbitrator's finding may in fact satisfy win or lose.

Now, if he does -- if the employee does choose to follow the EEOC route, I would point out that the person still has to bring the case to court.

He’s going to find the lawyer or be appointed to counsel to bring a case to court.

Also, prior to anything getting to court, he has to go through the whole EEOC process which is a rather time consuming process and also offers opportunities for conciliation by the federal authorities.

Chief Justice Warren E. Burger: Mr. Spiegelman, you referred to screening out good many of these potential claims could be screened out in the grievance and then you said also in the arbitration but will they be screened out in the arbitration in the cases where the employer prevails on your theory of this case?

Mr. Paul J. Spiegelman: I believe they will where the employee feels that the employers got in a fair shape.

Now, I understand that it’s possible that the employee --

Unknown Speaker: You mean that option is to be left to exclusively with the employee then whether he will have another bite of the apple?

Mr. Paul J. Spiegelman: Yes, I think that even respondent in this cases indicated that the that regardless of what the Federal Court’s rule is the employee would be able to file charges, that’s at least respondent’s position even he lost the arbitration that is the EEOC would process its claim and the EEOC could in fact go forward in this.

So even under that circumstance it would not prevent the case from getting to EEOC.

The question is whether these claims in fact would come to court, will lawyers take these claims?

If they are doubtful, I doubt that they will.

It’s tough enough to get a lawyer to handle a civil rights case that is meritorious.

It seems unlikely that these individual claims will in fact be those that are largely burdened in the courts.

Now, I would say that there are overriding considerations here though.

And those are that the process of arbitration owes its existence to a collective bargaining agreement which itself may violate Title VII.

If for the Union representative, there has a built in conflict of interest because the Union itself may be liable on these very charges.

This creates also problems because the employer in the Union not the individual choose the arbitrator.

You must remember that the Union’s interest acting in good faith still involved of the variety of trade offers and choices which it must make and it is representing the majority members of that Union under the labor law.

And perfectly good faith decisions of the Union may in fact disadvantage the Title VII plaintiff.

Now, I would finally add that the arbitration process is simply not equipped to deal with the subtle issues of discrimination.

This Court recently in McDonnell Douglas had occasion to deal with the difficult questions that arise in proving even an individual case of discrimination.

For example, the Court indicated that statistical data is relevant to determining such a claim.

Now, without a discovery process and it's normal that there is not a discovery process, there is no opportunity to bring this kind of evidence before the arbitrator.

Also, there is no cross-examination in the arbitration process and having tried a number of Title VII cases.

The fact is that the cross-examination of the company witnesses is one of the key basis for proving the case of discrimination.

For these reasons, we believe that deferral is not appropriate for Title VII case.

It was also point out that on the record in this case the arbitrator did not decide the race issue.

He did not say anything about it.

He specifically said there was no evidence dealing with that.

So, I think that deferral is in any case improper in this case.

There is also the issue of the effect of deferral on -- of allowing deferral on the grievance process itself will discourage people from using the grievance process and in fact channel all these claims into Federal Court because people are afraid of getting an arbitrator who is not sensitive to these claims rather than Federal Court.

For these reasons, we think that the decision below was improper.

With the Court’s permission, I will reserve --

Unknown Speaker: Well, are you going to deal at all or as a Government counsel with the question of, if you’re right on your basic concept of an arbitration does not wholly bar a lawsuit under the Federal statute?

What effect if any, should a Court give to an arbitration award?

Mr. Paul J. Spiegelman: Well, I am anticipating that the government is going to deal with that question.

Our position though is that it should use it as evidence and nothing more.

Unknown Speaker: Thank you.

Chief Justice Warren E. Burger: Mr. Wallace.

Argument of Wallace

Mr. Wallace: Mr. Chief Justice, Mr. Justice Douglas and may it please the Court.

In the spring of 1971 when this issue was before the Court in Dewey against Reynolds Metals Company, Solicitor General Griswold, Assistant Attorney General Leonard and General Counsel Ed Baire (ph) of the Equal Employment Opportunity Commission filed a brief and the Government participated in the oral argument of that case resulted in a 4:4 division in the Court.

That involved an additional troublesome issue not present in this case.

Now, with new encumbrance at all three of those offices, the government undertook a complete restudy of this question in light of the experience gained in case is decided since that time and in light of the scholarly commentary which has been published on the Dewey case.

Practically, all that I must -- I should add critical of the reasoning of the Court of Appeals in Dewey and the conclusions we have reached in the briefs filed with the Court in the present case are the same in all respects as the position, the Government took in the Dewey case.

Because of the widespread availability of grievance procedures pointed out by Mr. Justice Stewart under collective bargaining agreements, the question presented in this case seems to us of great public interest.

Its answer may well determine whether the statutory rights against discrimination conferred by Congress in Title VII as interpreted by the courts and by the Equal Employment Opportunity Commission whether those rights will be widely observed and even handedly enforced or whether those rights will in substantial measure be superseded by the so called law of the shop which is implemented by arbitrators who interpreted and applied the terms of various private collective bargaining agreements.

Now, the position we take on this issue is the position that has been taken by a majority of the Courts of Appeals that have addressed it.

The Courts of Appeals for the Fifth, Seventh and Ninth Circuits have all held that the invocation of the arbitration process of the grievance process and its use does not bar suit under Title VII.

This is proved to be workable in those Circuits.

They are not inundated with a large number of lawsuits seeking in other form to re-litigate so called the questions that have been decided in the arbitration process.

Indeed, the same question could be raised about some of the duplications of remedies that Congress specifically provided for Title VII, where it said that the remedies available again to millions of employees, I don’t have the figures, before state and local fair employment practices commissions should be preserved but should not bar the Federal remedy if they prove on availing.

This is the approach that Congress used and indeed our starting point in this case is the Federal statute itself which confers of right of individual access to the Courts for its enforcement and specifies in detail, the prerequisites for that right of access.

Nowhere does the statute suggest that the right to a judicial determination is waived by the availability or by the use of the grievance procedure under a collective agreement.

The whole background of the legislative history was that Congress meant to preserve existing remedies such as remedies that might exist before the National Labor Relations Board which were specifically referred to in the legislative history and remedies in other forms and to add to those the newly created rights and remedies specifically provided for.

Unknown Speaker: Well, do you think the Federal statute makes unenforceable the promise to arbitrate the grievance involving a racial claim?

Mr. Wallace: I don’t believe it makes that enforceable at all.

Unknown Speaker: Well, so the employer if he is sued in Court, do you think the employer can -- even he has to go for the Court suit can get an order to arbitrate the claim?

Mr. Wallace: With respect to the contract issue that is right, Your Honor.

All the arbitrator decides is that it is under the contract.

Unknown Speaker: If the arbitrator decides on facts, some facts such as he was not fired because of the Negro but because he had too much scrap, has that any significance at all in the court suit?

Mr. Wallace: Well, this is the most troublesome issue and we concluded that it should not have any significance in the court suit.

It has great significance in the arbitration process, it ends the issue under the agreement except for the very limited judicial review that there is that the arbitration award and therefore it ends the employers dispute with the Union protects him against work stoppages that hold grievance process is set up to protect them against and this is the great value of the arbitration system both to the Unions and the employers.

Unknown Speaker: But you said the contract is enforceable with premise to arbitrator is enforceable but it is just say, it doesn’t have any significance if the employee wants to pursue his legal remedies in court.

It does not have any significance for the court?

Mr. Wallace: To the Title VII issue because Congress specify another way of determining Title VII claims, statutory claims of an individual that don’t threaten works stoppages the way contract claims do.

Unknown Speaker: Well, why would you think that that was -- you apparently think that the Court should take a different approach where a contract provides for arbitrating racial claims and where a contract provides for arbitrating disputes that might be an unfair labor practice, even though Congress has provided another way also of settling unfair labor practices?

Mr. Wallace: Well, that is correct but that is --

Unknown Speaker: The Court certainly will not entertain arbitrable disputes where there might be unfair labor practice if there is a promise to arbitrary.

Mr. Wallace: Disputes of that kind are basically disputes between the workers as a collectivity the Union that’s representing them and the employer, the Union is a majoritarian institution and is like the employer concerned about protecting most of the workers in the shop from unnecessary disruptions of the work process and these disputes are closely tied in with the law of the shop and the expertise of arbitrators.

Here, Congress decided that rights of individual members of minority groups should be protected, rights that have proved not to be adequately protected in the majoritarian processes that prevailed in the collective bargaining process and in the adjustment of the grievances.

Indeed, Congress had to specify that these rights would be available against the Unions as well as against employers.

Unknown Speaker: Not only for minority groups that includes discrimination.

As I said earlier on the basis of sex and surely one sex or the other must be in majority in this county.

I think it’s the women, isn’t it?

Mr. Wallace: Out there in the majority in the country but not in the workforce.

Unknown Speaker: But in an objective plan they might be --

Mr. Wallace: Very much to be and it’s rather unlikely that their rights won’t be respected in the situation which therein --.

Unknown Speaker: But the demands might not be.

Mr. Wallace: That is correct, Your Honor and if a member of one of these groups can show that his statutory rights were violated.

Congress has specified that he should have a remedy.

Unknown Speaker: Well, he doesn’t need to show, he just needs to in order to file a complaint, he merely needs to allege, doesn’t he?

Mr. Wallace: That’s true in any field exactly.

It’s true with respect to those statutory or constitutional rights.

Chief Justice Warren E. Burger: Mr. Wallace you seem to make a sharp distinction both in your brief and in your argument between rights arising out of the contract and rights arising out of the statute but is it not true that this contract provides for protection against discriminatory action against employees?

Mr. Wallace: There is a simple provision in the contract relating to discrimination whether that is coextensive with the law under Title VII is highly questionable and is an issue which the arbitrator had no occasion to address and which ordinarily the arbitrator has no occasion to address.

The law of --

Chief Justice Warren E. Burger: If the arbitrator in a given case addresses himself to the claim of racial discrimination and decides that adversely to the employer, the man is reinstated, is he not?

Mr. Wallace: Yes, he is.

As a matter of his contract rights that he’s reinstated as a matter of his contract rights.

Chief Justice Warren E. Burger: But he has all the remedies that he could get or not?

Mr. Wallace: That depends on the terms of the collective agreement because the arbitrators powers are drawn entirely from the collective agreement –-

Chief Justice Warren E. Burger: Well, in this case --

Mr. Wallace: -- the questions of backpay and so forth that might be available under Title VII are the question of the intent of the parties to the collective agreement.

Chief Justice Warren E. Burger: If he had expressly raised and vigorously pressed the claim of racial discrimination in the arbitration, would you think that the scope of remedy would be any less than under the statute?

Mr. Wallace: I have no reason to think it would in this case but one could not know until the arbitrator expressed himself on what his powers are under the agreement and the --

Chief Justice Warren E. Burger: The normal remedy would be reinstatement of backpay, wouldn’t it?

Mr. Wallace: That would be the normal remedy, Your Honor.

Unknown Speaker: Well, I take it Mr. Wallace, the Government’s position must be that even if he prevailed on a claim of a racial discrimination in arbitration, he would still have right to pursue his Title VII in the Claims of Court?

Mr. Wallace: Although, we take the position that double recovery should not be applied.

Unknown Speaker: I agree but he would still be permitted to pursue a statutory remedy?

Unknown Speaker: Remedy for what, excuse me?

I beg your pardon?

He would not have any damages --

Mr. Wallace: He would not’have any damages.

It may be that there would be reason why he would want to secure an injunction which he has a right too under the statute if he can prove that he is entitled to it.

Unknown Speaker: I see.

I see.

Unknown Speaker: But there might be different measure of damages?

Mr. Wallace: There might be a different measure of damages.

Unknown Speaker: It’s definitely Mr.Wallace.

Did the legislative history, I don’t notice in your brief any reference to this; address itself particularly to the question?

Mr. Wallace: Not of the grievance procedure of arbitration, no.

It was not mentioned under the legislative history.

It did, there was reference to proceedings that may be available under the Railway Labor Act or the National Labor Relations Act.

Senator Clark mentioned on the floor that those would be preserved including proceedings before the National Labor Relation Board and we do refer to that act, sir from the legislative history.

Here we can deal only by analogy with the fact that the statute on its face specifies that numerous remedies are to be preserved and the new remedies to be added to them.

Unknown Speaker: Tell me, does Arguelles decide this case?

Mr. Wallace: Well, we think Arguelles is very persuasive authority.

To us, this case is in many respects much stronger than Arguelles because here Congress was familiar with the wide use of arbitration.

It is not true when the Arguelles statute was passed.

Unknown Speaker: Yes, but Arguelles.

In Arguelles, he went directly in the Court.

He hadn’t gone to arbitration.

Mr. Wallace: That is correct.

Unknown Speaker: And the Court itself realizes of that scene.

The Arguelles made a substantial difference.

He said that -- The Court indicated that he could go to arbitration if he wanted to.

Mr. Wallace: Well, we think it would be contrary to the encouragement of the arbitration process, that is an important part of the Federal Labor Policy to put a premium on not invoking the grievance procedure without thinking --

Unknown Speaker: Didn’t Mr. Justice Harlan make this difficult in the case?

Mr. Wallace: Yes, he did.

Unknown Speaker: And he specifically said that he has a choice but and he said at least desirable would be permitting or requiring pursuit in both Courts?

Mr. Wallace: I thought so.

I was a bit --

Unknown Speaker: And Arguelles might be a very substantial authority for deciding this case against your --

Mr. Wallace: Well, the Arguelles case was one in which the statutory right was closely interwoven with the rights under the contract and with the interpretation of the contract which was a major point made in your dissenting opinion in this case.

Unknown Speaker: Well, that’s not quite responsive to the issue because Mr. Justice Harlan, I would take, would have come out quite the other way if there have been a result to arbitration in the time at laws?

Mr. Wallace: Now, that wasn’t the issue decided by the Court.

On the other hand in McKinney against Missouri-Kansas-Texas Railroad in 357 United States, when Mr. Justice Frankfurter was writing for a Court that was unanimous on this issue.

With respect to the Universal Military Training and Service Act, he said that it would be inconsistent with the purposes of that statute to insist that the veteran first exhaust all their possibly lengthy and doubtful procedures.

The clear implication being that the statutory remedy would be available to him even if he had first exhausted the other remedies.

So that to the extent of majority of the Court has commented on this issue, I think a majority of the Court has commented consistently with our position.

Unknown Speaker: Well, in McKinney was there a clause in the contract which basically gave him the same rights as the Veterans Preference Act here?

Mr. Wallace: I don’t think there is in this case either, Your Honor.

Unknown Speaker: Is that a negative implication that you’re saying no.

The answer to my question is no?

Mr. Wallace: I don’t know the answer there, I don’t believe the collective agreement is recited in the opinion but the Court is familiar from cases like Griggs and McDonell Douglas with the great complexity of the law under Title VII and to say that this can be equated with the single sentence in a collective bargaining agreement that will be applied by arbitrators who may or may not be lawyers with representation by Union representatives who may or may not be lawyers, may or may not be familiar with the complexities of the case law and how to develop one of these cases which requires usually statistical proof, the processes of discovery and the various other court procedures that make such proof credible and meaningful such as cross examination, etcetera.

I think it would be doing a great disservice to the effectuation of Title VII of the 1964 Civil Rights Act.

My time has expired.

Chief Justice Warren E. Burger: Mr. Good.

Argument of Robert G. Good

Mr. Robert G. Good: Mr. Chief Justice and may it please the court.

I am Robert Good from Denver, Colorado representing the respondent here Gardner-Denver Company.

Prior to submitting to company’s legal position I would like to highlight a few of the facts involving Alexander’s case.

He had been twice warned prior to his discharge.

On the first to those occasions, the company volunteered 80 extra hours of instruction and study to Mr. Alexander.

On the second of those occasions, he was disciplinarily suspended for two days and of course on the third occasion, he was fired.

Merely upon his firing he and the Union invoked the four steps grievance and arbitration procedure.

Early in those steps he submitted to the Union his letter which impart accused the company of discrimination treatment.

That letter was read to the arbitration at the hearing.

The contract proscribed employment discrimination and also proscribed any discharge not based on just cause.

It is true that Alexander filed with the State Commission prior to the arbitration hearing and EEOC assumed jurisdiction also prior to the arbitration hearing.

It is also true however, that seven months after the arbitrator’s award, the EEOC found no probable cause to believe that Gardner-Denver Company had violated the Act relative to Mr. Alexander’s discharge.

Unknown Speaker: Incidentally, was there any reference in either of the state proceedings?

I gather the company was party of course both for the state proceedings and the EEOC procedure?

Mr. Robert G. Good: This is true.

Unknown Speaker: When in either that the company make reference to the dependency of the arbitration?

Mr. Robert G. Good: It’s difficult to answer that Mr. Justice.

In the state proceedings, they were terminated without explanation.

In the Colorado practices there could very well be explanations having nothing to do with an indication of guilt or innocence, case load for instance.

EEOC assumed jurisdiction, so we can not tell anything from the state proceedings.

In the Federal proceedings, the company did submit although this is not in the appendix, did submit the arbitration award in the investigation.

Unknown Speaker: And was the EEOC determination of no probable cause made in the light of that submission?

Mr. Robert G. Good: We do not know Mr. Justice.

Incidentally, some concern was raised here that the issue of race was not before the arbitrator.

If I may briefly direct the Court’s attention to some of the testimonies of Mr. Alexander in that the deposition is contained at page 13 of the appendix.

Question of Mr. Alexander: Now, at the arbitration, who was that that raised the issue of race?

Answer: Mr. Berg.

Mr. Berg was a Union representative.

Question: How did he raise that?

Answer: By the letter that I wrote him explaining my position and what I had discovered.

Justice Thurgood Marshall: Is that the same letter that’s in the appendix?

Mr. Robert G. Good: I beg your pardon Mr. Justice?

Justice Thurgood Marshall: Is that the letter that’s in the appendix?

Mr. Robert G. Good: This is the letter that’s in the appendix, yes.

Justice Thurgood Marshall: And what in that letter says “race?”

Mr. Robert G. Good: Nothing specifically says race.

There’s an allusion to preferential discriminatory treatment and Mr. Alexander --

Justice Thurgood Marshall: That means race?

Mr. Robert G. Good: I beg your pardon?

Justice Thurgood Marshall: Does that mean race?

Mr. Robert G. Good: It does in the context –-

Justice Thurgood Marshall: Well, when do you know when the context of these cases that a Negro got preferential treatment?

Mr. Robert G. Good: Would you repeat the question?

Justice Thurgood Marshall: Where in the interest of cases like this can you name me where Negro got preferential treatment?

Mr. Robert G. Good: Well, as you will notice from a review of this particular letter it was a joint draft between his pastor and himself and you will notice that it is not in the highest of art forms.

The language selected of course is clearly layman’s language.

A review of that letter in several instances shows that --

Justice Thurgood Marshall: But do you think that letter gets a basis for a claim of racial discrimination on this?

Mr. Robert G. Good: Yes sir, when combined with Mr. Alexander’s later description of what he intended.

Justice Thurgood Marshall: Do you mind if I don’t?

Mr. Robert G. Good: Not at all sir.

Incidentally, in the lower court, the employer moved under Rule 56 on the motion for summary judgment alleging that race was before the arbitrator and it ought not be re-litigated in District Court.

Interestingly enough, Alexander in the lower court never did deny that race was before the arbitrator.

And of course as you know under Rule 56, he can come forward with counter affidavits or other evidence to indicate that there truly is a question of fact.

He came forward with no such statement nor any statement that the arbitration proceedings were not fair and regular.

Unknown Speaker: Well, I gather his position is that if it all were -- it could have been there expressly and if had been decided against him nevertheless, he still has a statutory claim.

That’s basically his position.

Mr. Robert G. Good: Yes.

Unknown Speaker: I suppose that’s the one that you have to address, isn’t it?

Mr. Robert G. Good: Yes, sir.

Unknown Speaker: Well, that’s the position he has to take it.

Mr. Robert G. Good: Indeed he does.

The company’s position simply stated is that an employee having statutory claim cannot be required to submit his claim to the arbitration process.

He may however do so voluntarily if the collective bargaining agreement gives the arbitrator jurisdiction over that claim.

And when he does so he must be bound except to the extent that considering the overriding public policy considerations in the Civil Rights Act, the District Court function must be that of an overview of the arbitration ex post facto that is after the arbitration and when the Title VII is filed, the District Court should review it to determine first if the statutory issue was before the arbitrator.

Second, did the contract of the arbitrator jurisdiction over it and third, of course did a final opinion in award of the arbitrator offend any of the underlying policies in the Act.

If the answer is appropriate in each of those instances deferral ought to be granted.

Unknown Speaker: This does mean that in each instance under your submission the District Court has the duty to make that much of a review?

Mr. Robert G. Good: Yes, Mr. Justice.

Unknown Speaker: You don’t at all say that the fact of arbitration bars access to the Federal Court over the statute?

Mr. Robert G. Good: That is correct.

We say the Court maintains the power –-

Unknown Speaker: And the duty to give at least that much of a review?

Mr. Robert G. Good: To give an overview, yes.

Unknown Speaker: And if Court finds that none of those conditions were met then I gather --

Mr. Robert G. Good: That’s right.

Unknown Speaker: You would say that it’s the Court duty then to proceed to consider the claim under the statute?

Mr. Robert G. Good: Yes, indeed despite the provisions of Section 301 in Steelworkers Trilogy because the overriding public interest in the matter.

Unknown Speaker: Yes, that’s right.

Unknown Speaker: Mr. Good, at the appendix, page 42 where Judge Winner’s opinion is found, where he is quoting from the Dewey language, it seems to where he says the paragraph beginning with “Faced with this dichotomy of authority” the second sentence “We hold that when an employee voluntarily submits a claim of discrimination to arbitration under a Union contract grievance procedure, the submission which is binding on the employer no matter what, the employee is bound by the arbitration or just the employer.”

I think it would be fairly easy to read that as indicating that Judge Winner at least had not reviewed the arbitration award at all but it simply treated himself as being bound by rather categorically which sounds inconsistent of what you said the District Court should do?

Mr. Robert G. Good: I think Mr. Justice one can learn a different reading to your quote there.

The District Court, Judge Winner in employing this language could be inferring, we have the power to permit Alexander to proceed but in this case since it was a voluntary submission the award should be consider final and binding.

Unknown Speaker: Well, that’s exactly how I read it but I thought you were conceding that something more was required at the District Court not merely a voluntary submission but that the District Court should in effect review and kind of clearly erroneous or substantial evidence on the record basis the arbitrators.

Mr. Robert G. Good: Yes, that’s correct and I am saying that the District Court here conformed to that policy.

You will note for several pages the District Court examines the underlying public policy of the Civil Rights Act before reaching his decision and so he certainly was attempting to examine the arbitrator’s award in light of those policies.

He had already found that race was an issue before the arbitrator under the collective bargaining agreement.

He then, as I read it Mr. Justice, declines to exercise the power of the Court to permit Alexander to proceed.

Unknown Speaker: I understood you to respond at Mr. Justice Stewart that a District Court had a duty to examine the arbitrator’s process to see at least with the issue of racial discrimination had been treated, is that your position?

Mr. Robert G. Good: No, sir.

Only to initially determine was the statutory right before the arbitrator and --

Unknown Speaker: What’s the difference between that?

Mr. Robert G. Good: Perhaps none Mr. Justice --

Unknown Speaker: And was decided that’s all?

Unknown Speaker: Not whether it was properly decided but whether it was before the arbitrator and was it decided, is that your position?

Mr. Robert G. Good: Yes, except --

Unknown Speaker: That's just --

Mr. Robert G. Good: Well, he has one more condition, except to the extent that the final opinion and award can not offend the underlying policies of this public policies statute.

Unknown Speaker: Well, that has confused me.

I just don’t understand, what would view then to determine that is made by the -- of the arbitrators award is made by the District Judge?

Mr. Robert G. Good: Yes.

Unknown Speaker: What does he do?

What’s his review?

What standard does he apply to determine whether or not the arbitration award offends the underlying public policy of the Title VII?

Mr. Robert G. Good: On a preliminary peak, he determines as here that in the arbitrators award that he -- did he do anything to offend the policies of the act and --

Unknown Speaker: There isn’t any difference, Is it?

Then in the case of the other arbitrations and arbitrator is not suppose to decide the case before in contrary to the labor act and this is supposed to be consistent with the law then if a complaint comes in and alleges that the arbitrator is disregarding provision of the labor law, he can get some review, can’t he?

Mr. Robert G. Good: The only review in that particular case Mr. Justice would be exercised I would think by the NLRB and that would not be a review it would --

Unknown Speaker: Well, I don’t -- if somebody sues in Court to enforce some arbitrational hearing and the enforcement is resisted on the grounds the arbitrator acted illegally, is the District Court going to order compliance without answering that question?

I just wonder if you’re really saying that an arbitration award in this context is subject to any different review than it is anywhere else, and I don’t know why you would say that.

Mr. Robert G. Good: Well, perhaps that’s correct Mr. Justice.

I’ve been looking at --

Unknown Speaker: But if that’s your answer to Mr. Justice White’s question Title VII gives this petitioner nothing because he could have that sort a review of the arbitration award with out the benefit of Title VII?

Mr. Robert G. Good: Well, this is true.

Title VII however is an explicit statute designed to preserve the privileges of the minority employee.

It truly would have been a foolish-sounding Civil Rights Act for it to read that your employment rights are enforceable under your agreement and a final arbitrators award shall represent the state of the law as Congress sees it.

Justice Thurgood Marshall: But you take in to consideration that the Court is to be bound by an arbitration where no witnesses are sworn, no cross-examination and no discovery?

Mr. Robert G. Good: Yes, Mr. Justice because the --

Unknown Speaker: Only statutory right?

Mr. Robert G. Good: Yes, because here the key is the consent of the employee.

Title VII gave that employee a right to sue his employer and there’s no question about that.

However, he is the possessor of that right as the possessor, he can use it fully by filing a full Title VII class and in visual action he can use it partially as Alexander did by filing only individual action.

He can use it not at all or he can submit it to another form.

The key is the consent of the employee.

Justice Thurgood Marshall: The consent of the employer?

Mr. Robert G. Good: He.

Justice Thurgood Marshall: He Employee?

Mr. Robert G. Good: Yes, sir.

Justice Thurgood Marshall: I can’t conceive of that at all under Title VII.

You see, my trouble is Title VII gave the employee a right of the full plenary hearing, discovery everything under the sun that his lawyer could think of and in place of that, you say he gives up by taking arbitration where one; he doesn’t have employer.

2; he does not have court procedure.

He doesn’t have sworn testimony, so he’s given –- he is not taken two equal forums.

Mr. Robert G. Good: I agree, Mr. Justice.

Justice Thurgood Marshall: He had taken the lesser forum.

Now, how do you account for the fact while this lesser arbitration was going on?

He made it clear that he prefered his Title VII rights during that arbitration hearing.

Mr. Robert G. Good: If I may answer that in two ways Mr. Justice.

Justice Thurgood Marshall: But how can you say he gave it up if he filed but he did file while it was pending, didn’t he?

Mr. Robert G. Good: Yes, indeed he did.

We view that differently than counsel does.

Here is man who presses race, the racial issue before the arbitrator and at the same time simultaneously invokes the state procedures under the statute.

When he thereafter proceeds to press the arbitration racial issue, he’s indicating one; that he has knowledge of his statutory rights because he’s already filed under the state and two, when he presses that issue, he’s indicating his selection of the two areas or the two remedies.

Unknown Speaker: (Inaudible)

Mr. Robert G. Good: Yes sir, but you should remember here he had access to the State Civil Rights Agency and to the Federal Civil Rights Agency at a point prior to his submitting the racial issue to the arbitrator and surely that indicates that he had as a good advice is available anywhere in the land today.

Unknown Speaker: (Inaudible)

Mr. Robert G. Good: That’s correct.

Unknown Speaker: (Inaudible)

Mr. Robert G. Good: That’s correct.

Unknown Speaker: (Inaudible)

Mr. Robert G. Good: I’m sure he was Mr. Arbitrator.

Unknown Speaker: As long (Inaudible).

Mr. Robert G. Good: He was knowledgeable of his statutory rights.

Unknown Speaker: (Inaudible)

Mr. Robert G. Good: That he was trying to get both?

He certainly is today, he still trying to get the other half.

Unknown Speaker: (Inaudible)

Mr. Robert G. Good: Well, because Mr. Justice (Voice Overlap).

Unknown Speaker: That’s the issue in this case.

Mr. Robert G. Good: Yes, we must –- we cannot ignore certain statistics that prevailed here.

As stated earlier, there are 160,000 collective bargaining agreements in the United States covering 25 million employees 94% of which have binding arbitration clauses and today 69% of those agreements have nondiscrimination clauses.

Now, Alexander’s case is only in the tip of the iceberg.

Unknown Speaker: What about the Fifth Circuit?

Mr. Robert G. Good: The Fifth Circuit in Rios recommends deferral as Dewey.

However and I presume that is what the Justice is talking about the Rios versus Reynolds Metals case.

There, they recommend deferral on the seventh stringent criteria.

We recommend what we call a liberal deferral policy.

We find the Rios deferral policy unworkable and destructive of the arbitration process.

First, under the Rios deferral policy, the arbitration has to compare favorably, substantially and procedurally with a hearing that the claimant would have in the U.S. District Court.

Further, the U.S. District Court in determining whether to defer has to hold a hearing that I think in lengthy complexity is greater than a normal Title VII hearing.

Unknown Speaker: Yes, but (Inaudible).

Mr. Robert G. Good: The Rios decision Mr. Justice is only about five or six months old and so I can not answer your question.

We do --

Unknown Speaker: (Inaudible).

Mr. Robert G. Good: That Act?

Unknown Speaker: (Inaudible).

Mr. Robert G. Good: There is nothing.

The Act is totally barren of any reference to prior arbitration would.

I submit Mr. Justice.

Unknown Speaker: (Inaudible)

Mr. Robert G. Good: Yes, but I submit Mr. Justice when you consider the statistics I’ve mentioned most --

Unknown Speaker: (Inaudible)

Mr. Robert G. Good: Yes, they had to.

They just missed the whole point surely with those tremendous statistics whether they were to permit the arbitration to stand or to deny enforcement.

They would have said one way or the other with this totally pervasive structure of our industrial relations staring them in the face.

They just missed the vote and it is up to this Court to make reasonable accommodation between these conflicting interests.

Next, Mr. Justice Marshall showed some concern that the employee is participating in a forum where the scope and the dimensions of the hearing, he receives is something different and what he would receive in U.S. District Court and this is surely true.

However, this Court has previously acknowledged that those differences do exist.

This was in the Arguelles case.

Those differences do exist and they are not repugnant.

Justice Harlan in Bulk Carriers stated it this way, “This Court has always recognized that the choice of forms inevitably affects the scope of the substantive rights to be vindicated before the chosen forum.”

In particular, where arbitration is concerned, the court has been acutely sensitive to these differences and he goes on further at a later point.

Normally, the impact on the substantive rights resulting from the decision to remit the individual to the arbitral forum is acceptable because the parties themselves have consented to that forum.”

Again, consent the key here is consent.

The employee was given a right to sue his employer.

He is possessor of that right.

He can use it fully, partially not use it at all or submit it to another forum.

Unknown Speaker: (Inaudible)

Mr. Robert G. Good: The Union filed it.

Unknown Speaker: (Inaudible)

Mr. Robert G. Good: The Union did.

Unknown Speaker: (Inaudible)

Mr. Robert G. Good: Our --

Justice Thurgood Marshall: The context of Title VII is a different situation.

He didn’t have a lawyer.

He had a Union.

Mr. Robert G. Good: It was by his choice Mr. Justice.

It is not part of our premise or I should say part of our premise is that if an employee, if this would be possible or required by the Union and the employer to process an arbitration claim that involved the Title VII issue.

If he disavowed that at any point, he would still have his Title VII yet available to him because --

Justice Thurgood Marshall: Didn’t he disavow when he filed this Title VII action?

You are in the arbitration, didn’t he?

Mr. Robert G. Good: He commence the state procedures.

He filed the Title VII action after the arbitration.

Justice Thurgood Marshall: Well he started the state proceeding?

Mr. Robert G. Good: This is correct.

Justice Thurgood Marshall: Didn’t that say I disavow this?

Mr. Robert G. Good: It says --

Justice Thurgood Marshall: Or didn’t he say I don’t trust this or what did it say?

Mr. Robert G. Good: It says --

Justice Thurgood Marshall: It certainly, didn’t say he was satisfied?

Mr. Robert G. Good: No sir, it says to me that, “I, Alexander, am aware that I have these alternate remedies but I, Alexander, choose to press the discrimination claim in this arbitral forum in both.

Justice Thurgood Marshall: You said before both?

Mr. Robert G. Good: When he proceeded with the arbitration, I submit he made the selection at that point.

He showed his ability to keep it, to withhold it from arbitration.

He showed his knowledge of the statutory proceedings.

Nevertheless --

Justice Thurgood Marshall: Wait a minute.

He showed the knowledge of that statutory proceeding when arbitration was filed?

Mr. Robert G. Good: Yes, he had already filed with a state agency.

Justice Thurgood Marshall: I thought that was after arbitration had started?

Mr. Robert G. Good: No, sir.

He filed with the Colorado Civil Rights Commission shortly after his discharge and the EEOC assumed jurisdiction before the arbitration also.

So, both agencies had taken jurisdiction prior to the arbitration.

Justice Thurgood Marshall: Well, what is going on with the arbitration in the meantime, they just weren’t there?

Mr. Robert G. Good: It was ascending to the grievance steps, Mr. Justice.

Justice Thurgood Marshall: That’s what I thought, that’s what I thought.

Mr. Robert G. Good: Now, you recall though --

Justice Thurgood Marshall: And then he got dissatisfied with his representative, the Union.

Mr. Robert G. Good: He says so a year later after he’s lost the arbitration, yes.

Justice Thurgood Marshall: So, is that good?

Mr. Robert G. Good: Well, we can’t say he was dissatisfied at the point of the arbitration which brings me to another point.

Counsel stated that we ought to allow the arbitration process to take place because of what I interpreted he was saying it’s therapeutic vial.

I submit to you that it has a lot of good therapy if the employee wins but if he loses it exacerbates his feelings of resentment and we have a Title VII action if we doubt that, just look at all the cases we have cited in this various briefs.

All on this issue and guess what always in the arbitration, he lost.

Chief Justice Warren E. Burger: In your concept of his having options that you seem to be pressing, do I understand you to mean that he might, the employee might as a matter of choice ignore all the grievance procedure, all of the arbitration procedure and he lacked to proceed under the statute right away?

Mr. Robert G. Good: Yes, indeed.

Chief Justice Warren E. Burger: And if he did that, you would not think you have any defense by way of asserting this, the arbitration clause had to be exhausted?

Mr. Robert G. Good: Not at all compared to Maddox.

Compared with Maddox where the Court said thou shalt exercise your administrator remedies.

That was on the contract however.

Here, it is a statute with an overriding public interest and incidentally in making the assertion that he can not be forced to arbitration we not only relied on a literal words of Section 706 that says, you do have a right to sue your employee.

We rely on U.S. Bulk Carriers versus Arguelles as I’ve heard it pronounced here this morning.

And it’s true in that case Justice Harlan did say that the least satisfactory of all solutions is the necessity of suits in both forms.

Now, my opposition points out that or they suggest that the 1972 Amendments the Civil Rights Act indicate a clear congressional intent that no other forum was to substitute for a Title VII District Court forum.

It is true that the 72 Amendments direct the EEOC to give “substantial way to final orders or the decisions of state local authorities.”

However, we use, we view that as a concern of Congress that an employee who Congress has required to use the state procedures, they are concerned that an employee be required to be bound by state procedures which contained infirmities or potential infirmities.

Indeed, Senator Clark in the legislative history of the Civil Rights Act expressed exactly that concern.

He stated “state and local fair employment laws very widely in effectiveness in many areas effective enforcement is handed by inadequate legislation, inadequate procedures, or an inadequate budget.”

And you will recall that now Congress requires the employee to first use those procedures.

So the concern of the Congress was that no other sovereign or law or procedure require the employee to accept less than his full day in Court under Title VII if he so chose.

Unknown Speaker: Mr. Good, I just had chance to look at Rios.

Do I understand you to say earlier that, this went too far or didn’t go far enough, the procedure that it is --

Mr. Robert G. Good: In so far as it ruled deferral it went exactly as far as we would go.

Insofar as it defined the rules for the District Court under which deferral was proper, it went much too far.

We say it’s destructive of the arbitration process and unworkable.

Unknown Speaker: Well, apparently, it says first, the contract right must coincide with the statutory right.

Mr. Robert G. Good: No question about that.

Unknown Speaker: And second, it must be plain that the decision of the arbitrator, in no way violates the private rights guaranteed by Title VII or the public policy which adheres to Title VII?

Mr. Robert G. Good: No problem with that.

Unknown Speaker: In addition, must be satisfied one, the factual issues are identical to those decided by the arbitrator, right?

Mr. Robert G. Good: I begin to argue at that point Mr. Justice and the subsequent point, I believe --

Unknown Speaker: The arbitrator – second, the arbitrator power in collective bargaining agreement to decide the issue of discrimination?

Mr. Robert G. Good: Yes.

I don’t have problem with that.

Unknown Speaker: Third, the evidence presented the arbitrator hearing dealt adequately with all factual issues?

Mr. Robert G. Good: Yes.

Unknown Speaker: Do you have trouble with that?

Mr. Robert G. Good: That one and none of the remaining ones, Mr. Justice.

Unknown Speaker: The arbitrator actually decided the factual issues presented in the Court, does that bother you?

Mr. Robert G. Good: Well, yes insofar as, I’m bothered by the one preceding it.

That is the evidence presented at the arbitral hearing dealt adequately with all the factual issues.

Unknown Speaker: How about the fifth one, the arbitration proceedings is fair and regular and free of procedural infirmities??

Mr. Robert G. Good: No problem.

Unknown Speaker: So it’s really the second, third and fourth?

Mr. Robert G. Good: Yes, it is.

Unknown Speaker: Do you think they give -– they interfered too much with the arbitration process?

Mr. Robert G. Good: Yes.

Well, not only with the arbitration process but it imposes a duty on the lower court to hold a hearing that is its magnitude and complexity would go far beyond going ahead with this Title VII trial for instance, Mr. Justice.

I believe you called it the third one.

The evidence presented at the arbitral hearing dealt adequately with all the factual issues.

Well, first the Court has to determine what were all the factual issues?

And secondly, what would be the factual issues if we had a Title VII trial?

In other words, did the arbitrator know all the issues?

Unknown Speaker: So actually when you come down to as far as the District Court should go, it would be to determine that the factual issues before either identical to those decided by the arbitrator?

Number one, and that the arbitration proceeding was fair and regular free of procedural infirmities?

Mr. Robert G. Good: Would you repeat that Mr. Justice, please?

Unknown Speaker: The first is, the factual issues before it, that is the Court are identical to those decided by the arbitrator?

I thought you said you go with that.

Mr. Robert G. Good: No, I disagree with that.

Unknown Speaker: Well all right, that eliminates one, two, three and four.

Mr. Robert G. Good: No, sir.

I do not eliminate two.

The arbitrator had a power to determine the issue.

Unknown Speaker: That the Court can look to.

How about five, the arbitration proceeding is fair and regular and free of procedural infirmities?

Mr. Robert G. Good: No problem.

Unknown Speaker: So, just those two and you think to the extent?

Mr. Robert G. Good: Yes, sir.

There is a third one.

Unknown Speaker: Which one?

Mr. Robert G. Good: The evidence presented at the arbitral hearing dealt adequately with all the factual issues.

Unknown Speaker: Well, do you agree with that?

Mr. Robert G. Good: Not insofar as the District Court must determine that but we all know from trial experience even in a pretrial conference.

We do not agree on what all the factual issues are and its sub-factual issues and always in trial of the issues come up.

The judge under this burden of Rios would have to hold a hearing that would certainly be lengthy, it would be a retrial of the arbitration hearing and in fact the District Court would have to substitute in many instances its judgment.

Unknown Speaker: Mr. Good, under your theory of deferral, if the employer could come in on an action to set aside the arbitration award assuming it had gone in favor of the employee and make the same sort of showing that you’re talking about an employee making under Title VII action, would the employer then be entitled to have the arbitration award set aside on a proceeding directed to that end?

Mr. Robert G. Good: If he went in under Section 301, do you mean Mr. Justice?

Unknown Speaker: Yes.

Well, whatever Section you go in to have an arbitration award set aside?

Or say you’re opposing a judicial action to confirm the award or enforce the award?

Mr. Robert G. Good: Yes.

No.

I did not understand your question Mr. Justice.

Unknown Speaker: You’re talking about the showing that must be made by an employee in a Title VII case that the type of procedure that District Court should follow to decide whether or not to defer to the arbitration award.

Mr. Robert G. Good: Yes, sir.

Unknown Speaker: Supposing that in a case not involving discrimination an employee brings action to enforce an arbitration award in his favor, is the standard that the District Court is to employ there any different in a kind of standard you’re talking about here?

Mr. Robert G. Good: Yes, in most cases whether there is no statute involved the District Court you exercise its normal function to determine that that the arbitrator had jurisdiction and where the proceedings are fair and regular.

Unknown Speaker: Well, so is this basically the same thing or is it something added because of Title VII?

Mr. Robert G. Good: We had one thing and I am not so sure if they’re listening to Mr. Justice White.

They were adding that one thing.

They were at least underlining it and that is that the Court must examine the arbitrator’s opinion and award to see if it patently offended the underlying policies of the Civil Rights Act.

Unknown Speaker: Well, are you saying that the arbitrator may not just disregard this applicable substantive law?

Mr. Robert G. Good: Whatever, Civil Rights Law.

Unknown Speaker: Well, yes whatever the applicable laws are in the areas?

Mr. Robert G. Good: Yes.

Justice Byron R. White: I don’t suppose an arbitrator can just say well I don’t really in the deciding whether some arbitration if a provision of National Labor Relations Act is relevant to it.

I suppose he must not decide contrary to what the law provided?

Mr. Robert G. Good: This is correct in the view of over 90% of the arbitrators, Mr. Justice White.

There is a small minority who disagree with that.

Unknown Speaker: But Mr. Good this sounds like what was said in Rios, second, it must be plain that the arbitrator’s decision is no way violative of the private rights guaranteed by Title VII nor the public policy which adheres in Title VII, didn’t you say to me earlier that you agreed with this?

Mr. Robert G. Good: I agree with that.

Unknown Speaker: Well, if you do, why doesn’t a judge, the District Judge to be satisfied of this have to go through it as extensive hearing as concerns you?

Mr. Robert G. Good: Because he can tell on the face of the arbitration and some –- well, on the face of the arbitration he can tell whether it patently offensed the underlying policies of the Act.

Unknown Speaker: Of course, thus far the Fifth Circuit stands alone and its enunciation standards, (Inaudible)?

Mr. Robert G. Good: Well, except to the extent Mr. Justice that the District of Columbia Circuit in the McLean case which was shortly after Rios seem to agree with Rios.

However, in the McLean the Court predicated that decision on a statement that they read into the Steelworkers Trilogy, “Federal policy of the deferral.”

Well, that’s very presumptuous reading considering the case we are right here that I’m talking about.

Unknown Speaker: Are there some –- are there some cases in the Courts of Appeals or this Court that indicates that an arbitrator is not bound but made it by a relevant provision of the substantive law?

Mr. Robert G. Good: No, Your Honor.

Unknown Speaker: And may disregard it?

Mr. Robert G. Good: No, Your Honor.

The reason I have made statement I did is that I attend all of these labor law conferences and there’s always a isolated arbitrator who gets up and makes the statement that we’ve all heard so often, I’m merely a creature of the parties and I am only what the parties make me and if they tell me to violate the law and –-

Unknown Speaker: Do you know, are there some cases then to say that the arbitrator is bound by a substantive?

Let’s assume for example in this case the arbitrator decided there was no racial discrimination in this case within the meaning of Title VII, whereas a decision of this Court had construed the Title VII to bar precise to the conduct that was the issue before the arbitrator.

Now, is there some case that says the arbitrator must follow them all?

Mr. Robert G. Good: I’m unaware of any of that say exactly that.

I’m aware of this Court’s assumption that an arbitrator will follow the law especially in preemption matters for the problem.

One item mentioned in my opponent’s brief and which I think bears some response, the Alexander appeals that sense of fairness of this Court and he states in there that if David in the biblical confrontation with Goliath had two stones to a sling, he would not have been unfairly on for that confrontation and thus by analogy says Alexander.

If Alexander i.e. David has two cracks at my client i.e. Goliath, there’s nothing wrong with that.

And then at that point they go on to recite six different statutory procedures now available for an employee to proceed against his employer.

All of which are free, none of which are exclusive to all of which the employer must respond and to which he is bound in the event of an adverse determination in any one of those forums.

Take all of that, add to it the fact that the amendments now apply the act to a business having as few as 15 employees and you have to wonder, who in the world is David and who is Goliath in this Industrial Civil Rights confrontation.

Mr. John Pemberton, Deputy General Counsel of the EEOC, former Deputy General Counsel.

Even in his position was able to show some pity for the employer in this dilemma.

He described the dilemma as follows: “If the number of multiple employee remedies is not awesome enough, the lack of finality in any decision on behalf of the respondent certainly poses a defendant’s nightmare.”

Surely, Congress in defining Title VII did not intend nightmare of litigation for anyone.

It only intended to create of very powerful tool with which to eliminate employment discrimination.

For all of these reasons we ask the Court to adopt a policy of liberal deferral to find that the lower court did conform to that policy and to affirm for those reasons.

Mr. Chief Justice, absent any further questions I submit the case on behalf of my client Gardner-Denver Company.

Chief Justice Warren E. Burger: Thank you, Mr. Good.

Mr. Robert G. Good: Thank you sir.

Chief Justice Warren E. Burger: Mr. Spiegelman you have about four minutes left.

Rebuttal of Paul J. Spiegelman

Mr. Paul J. Spiegelman: I’d like to first deal with the question of voluntariness which is the cornerstone of the respondent’s argument.

We have a case here where the choice of arbitration was made by Union.

There is nothing in the record to indicate for one instance that petitioner had any right to withdraw that grievance once the Union went ahead with it.

The point made by counsel here that EEOC advice plaintiff with respect to his rights here is contrary of the facts, the EEOC told me had a right to sue.

They issued him a right to sue at it.

Moreover, as a matter of fact when a man files a charge with EEOC, it gets put in the file and it maybe six or eight months before he ever hears anybody on that.

So the notion that EEOC provided many assistance in this case is absurd.

Now, I think that we must deal with the issues of why should there be deferral policy.

There have been a number of question arguments made.

The government has told us that the labor act is ill-served by a policy of the deferral and I can tell you there’s a private lawyer if you have deferral problem, I will advise every one of my clients not to use the grievance machinery.

The Federal Courts will if anything be inundated by a deferral of rule because all the clients are going to take their case to the Federal Courts where they have much more adequate proceedings.

Unknown Speaker: I thought, you told us earlier counsel about how difficult it was to get a lawyer in a case like this.

Mr. Paul J. Spiegelman: I will say that with respect to my clients, I would advise them, I currently advise them to follow the grievance machinery and if there’s deferral policy, I would advise them otherwise.

I think it will increase the burden of litigation.

Unknown Speaker: You mean only in Title VII cases or what?

Mr. Paul J. Spiegelman: In terms of Title VII case, that’s correct.

Unknown Speaker: Only?

Would you think of --

Mr. Paul J. Spiegelman: Yes.

Unknown Speaker: Do you think really that if the arbitration machinery is only enforceable by one side of the contract, eventually the employer would ever be forced to go to arbitration?

Mr. Paul J. Spiegelman: I don’t know the answer that I’d say this that --

Unknown Speaker: No, if your advise your clients may be futile if the employers are bound to go arbitration?

Mr. Paul J. Spiegelman: Well, what I’m saying is that with respect to Labor Act Policies of policy of using both remedies further serves that policy enforce of the Union agreement.

I would say that the employer is getting an advantage here because he also already got his quit when the arbitration is filed.

That is his got Union peace that’s what he bought.

He’s now trying to get a license to conduct practices which the arbitrators say is okay.

With respect to the law, the question that you asked earlier about arbitrators and how they act, we cited three cases in our brief in which the arbitrators refused to follow Title VII concepts in making an award.

Now, it may be that the arbitrator will not order illegal conduct but he may refrain from ordering conduct that is required under the Act.

Now, with respect to the economy point, I think we have indicated that an economy just does not work.

The Courts can’t stay out of this.

Mr. Justice Stewart's question about, can they file?

They can always file and they always have to go through the deferral process.

There’s no way out of springing these case as a Federal Court in the first as the courts have power.

I point out further that the argument here that the comforts will be inundated by a deferral policy just doesn’t hold up.

Bowe is been on the books for a number of years.

Bowe versus Colgate, the Seventh Circuit doesn’t defer at all.

There’s no evidence here of any deferral policy and also find out any inundations of the courts.

I also point out that would respect to this issue of employers dropping their arbitration clause is I think that is wholly speculative.

We have had the Chamber of Commerce with all its resources coming here and file an amicus brief and the best they can do is cite statistics that there are a lot of anti-discrimination clauses.

The fact of the matter is however that arbitration is the way of life.

It’s a strong process.

It’s going to be used regardless of whether or not we adopt deferral policy or for the reasons we have indicated, we believe that deferral just simply isn’t proper.

Chief Justice Warren E. Burger: Thank you, Mr. Spiegelman.

Thank you gentlemen.

The case is submitted.