Gilmer: A Real or Imaginary Problem for Organized Labor?

Abstract

Compulsory arbitration of individual employee statutory rights is inconsistent with the concept of exclusive representation in a collective bargaining setting. In negotiations or in grievance arbitration, it is not uncommon for unions to be involved in employment disputes where individual employee statutory rights are directly or indirectly implicated. Often these statutory rights can clash with the interest of a majority of the membership and even where there is no clash the complexity of a statutory violation enmeshed with a contract violation may be beyond the scope of a union's ability to provide adequate representation. A solution for unions may rest in providing flexibility in the representation process and allowing employees to use their own representative in disputes that involve statutory claims on the condition that the arbitration decision will not establish a precedent for interpretation of the agreement. The Age Discrimination in Employment Act (ADEA) [1] is one of the various statutes that established employment rights for individuals which may be included in a collective bargaining agreement. In 1991, the Supreme Court ruled that the compulsory arbitration provisions of the Federal Arbitration Act (FAA) [2], could be used to address an age discrimination claim in Gilmer v. Interstate/Johnson Lane Corp. [3] Gilmer did not involve union representation, and the court distinguished it from cases that did, which included Alexander v. Gardner-Denver Co. [4], where it was held that an employee's use of arbitration to challenge race discrimination did not preclude any right to bring a lawsuit on the same claim. However, the one aspect of Gardner-Denver the court indicated it would no longer follow was the view that arbitration was inferior to the judicial process for resolving statutory claims. That rationale raised questions concerning a union's