Indiana Law Review


Indiana Laiiv Revieiiv
Volume 10 1977 Number 5

The Authority of a Labor Arbitrator to Decide
Legal Issues Under a Collective Bargaining Contract:
The Situation After Alexander v. Gardner-Denver

Marvin Hill, Jr.*

I. Background and Introduction

In enacting the Labor-Management Relations (Taft-Hartley) Act

(LMRA), Congress specifically recognized the arbitration process/

However, legislative and judicial acceptance and recognition of the

arbitration process was long in coming. Courts initially made no ef-
fort to accommodate the labor arbitration process, considering it to

be competitive with the court system, and hence, a process which

should be discouraged.^ After passage of the Arbitration Act,^ courts

agreed that they had the power to enforce arbitration agreements in
collective bargaining contracts.* The applicability of the Arbitration
Act to collective bargaining agreements became something of a
moot issue after Textile Workers v. Lincoln Mills of Alabama,^
which held that section 301' of the LMRA provides a body of

*Member of the Iowa Bar Association. Assistant Professor of Management and
Industrial Relations, Northern Illinois University College of Business. M.A., University

of Iowa, 1972; J.D., University of Iowa, 1976; Ph.D., University of Iowa, 1976.

The author wishes to express his appreciation to Professor William Buss of the
University of Iowa College of Law for his assistance in the preparation of this Article.

'Section 203(d) of the Labor Management Relations Act, Pub. L. No. 101, 61 Stat.
136 (1947) (current version at 29 U.S.C. §§ 141-197 (1970 & Supp. V 1975)), provides that
"[f]inal adjustment by a method agreed upon by the parties is hereby declared to be

the desirable method for settlement of grievance disputes arising over the application

or interpretation of an existing collective-bargaining agreement."

^See, e.g., U.S. Asphalt Ref. Co. v. Trinidad Lake Petroleum Co., 222 F. 1006

(S.D.N.Y. 1915); International Ass'n of Machinists v. Cutler-Hammer, Inc., 271 App.

Div. 917, 67 N.Y.S. 2d 317, aff'd, 297 N.Y. 519, 74 N.E.2d 464 (1947) (if meaning of pro-

vision of contract sought to be arbitrated is beyond dispute, there cannot be anything

to arbitrate; function of court to determine whether dispute is subject to arbitration).
»9 U.S.C. §§ 1-14 (1970).

*E.g., Hoover Motor Express Co. v. Teamsters Local 327, 217 F.2d 49 (6th Cir.
1954).

"353 U.S. 448 (1957).

•29 U.S.C. § 185 (1970). Section 301(a) of the Labor Management Relations Act
provides:

Suits for violation of contracts between an employer and a labor organization

representing employees in an industry affecting commerce as defined in this



900 INDIANA LAWREVIEW [Vol. 10:899

substantive law for the enforcement of collective bargaining

agreements. Subsequently, the Supreme Court established the
primacy of grievance arbitration as a mechanism for the resolution

of industrial disputes in the famous Steelworkers Trilogy.''

Federal courts have limited the scope of judicial review of ar-

bitration awards by holding that the award is not reviewable on the

merits* and may be set aside only upon a showing of fraud or gross

chapter, or between any such labor organizations, may be brought in any
district court of the United States having jurisdiction of the parties, without

respect to the amount in controversy or without regard to the citizenship of
the parties.

'United Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); United Steel-
workers V. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers v.
Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).

"See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).
But cf. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976) (proof of breach of the
union's duty of fair representation held to remove the bar of finality from an arbitral
decision). In Hines, petitioner-plaintiffs, who were employed as truck drivers by An-
chor Motor Freight, were discharged for allegedly seeking reimbursement for motel

expenses in excess of the actual charges sustained by them. The union claimed that
petitioners were innocent, and opposed the discharge, based on the applicable collec-

tive bargaining contract which forbade discharges, except for just cause. In accordance

with the collective bargaining contract, the matter was submitted to a joint arbitration
committee, consisting of an equal number of union and company representatives, which
found that the discharges were for just cause. Petitioners later discovered that the

motel clerk had falsified the motel records, had recorded on the registration card less

than was actually paid by the discharged employees, and had retained for himself the
difference between the amount receipted and the amount recorded. Petitioners then

filed suit for one million dollars damages from their employer and the local and inter-
national unions, alleging that the employer wrongfully discharged the petitioners from

their jobs and that the unions represented their grievance in bad faith.

The district court granted summary judgment for the union and company, find-
ing that the issue had been finally decided in arbitration and that the plaintiffs had

failed to show sufficient facts to find "bad faith," "arbitrariness," or "perfunctoriness"

in the union's conduct. Hines v. Local 377, Int'l Bhd. of Teamsters, 84 L.R.R.M. 2649

(N.D. Ohio 1973), affd sub nom. Hines v. Anchor Motor Freight, Inc., 506 F.2d 1153 (6th

Cir. 1974), rev'd, 424 U.S. 554 (1976). The Court of Appeals for the Sixth Circuit
reversed the summary judgment as to the local union, holding that the issue of bad
faith should not have been summarily decided, that there were sufficient facts from

which bad faith or arbitrary conduct could be inferred by the trier of fact, and that the

employees should have been afforded an opportunity to prove their charges. However,

the court of appeals affirmed the judgment in fayor of the company, citing the finality

provision of the collective bargaining agreement. Hines v. Anchor Motor Freight, Inc.,

506 F.2d 1153 (6th Cir. 1974). The decision of the court of appeals with respect to An-
chor was appealed to the United States Supreme Court and limited to the following

question: "[w]hether petitioner's claim under LMRA [Taft-Hartley] § 301 for wrongful
discharge is barred by the decision of a joint grievance committee upholding their

,
discharge, notwithstanding that their union breached its duty of fair representation in

processing their grievance so as to deprive them and the grievance committee of over-



1977] LABOR ARBITRATOR AUTHORITY 901

misconduct.* As stated in Hines v. Anchor Motor Freight, Inc.,^^
*'[C]ourts are not to usurp those functions which collective bargain-

ing contracts have properly 'entrusted to the arbitration tribunal,'
"

but rather "should defer to the tribunal chosen by the parties finally

to settle their disputes."^^ As indicated by the Supreme Court, to
allow federal courts to review the merits of a dispute "would make
meaningless the provisions that the arbitrator's decision is final, for

in reality it would almost never be final."^^

The National Labor Relations Board (NLRBP has emphasized a
strong federal labor policy favoring the collective bargaining

mechanism for the resolution of industrial disputes. Section 10(a) of

the LMRA^* provides that the Board is empowered to prevent any
person from engaging in any unfair labor practice and that this

power shall not be affected by any other means of adjustment or
prevention established by agreement. However, section 203(d) of the

whelming evidence of their innocence of the alleged dishonesty for which they were

discharged." 424 U.S. at 561 n.7. The Court stated that petitioners were not to be ac-
corded the right to relitigate their discharge merely because they offered newly

discovered evidence supporting the propositions that the charges against them were

false and that they were, in fact, discharged without just cause. Id. at 571. However,

the finality provision of a collective bargaining contract would not bar a subsequent

relitigation when the employee's representation by the union has been dishonest, in
bad faith, or discriminatory. Accordingly, if the employee could prove that the

discharge was in fact erroneous and that the union's breach of duty had tainted the
decision, the employee would have a remedy against the employer as well as the labor
union. Id. at 567.

'For an excellent review of those instances under which a court will vacate the

award of an arbitrator, see 0. Fairweather, Practice and Procedure in Labor Ar-
bitration, ch. XVII (1973).

'"424 U.S. 554 (1976).

''Id. 562-63 (quoting U.S. Steelworkers v. Enterprise Wheel & Car Corp., 363
U.S. 593, 599 (I960)).

''Id.

''The administration of the National Labor Relations Act, 29 U.S.C. §§ 151-168

(1970 & Supp. V 1975), is vested in an independent five-member agency known as the
National Labor Relations Board. Members are appointed by the President with advice
and consent from the Senate and are not subject to removal, except for neglect of duty

or malfeasance in office. The Board is empowered to delegate to any group of three (a
quorum) any or all of the powers which it may itself exercise. The Board has no rights
and duties with respect to conciliation, mediation, or arbitration, nor has it jurisdiction

over wage disputes, or authority to order the parties to enter into a contract or in-
clude specific terms therein. The main function of the Board is to process two
categories of cases: representation cases and unfair labor practice cases. Representa-

tion cases arise under § 9, 42 U.S.C. § 159 (1970 & Supp. V 1975), and involve represen-
tation and selection of bargaining representatives by employees. Unfair labor practice

(complaint) cases arise under § 10, 42 U.S.C. § 160 (1970 & Supp. V 1975), and are con-
cerned with the prevention of employer and union unfair labor practices.

"/d § 160(a).



902 INDIANA LAWREVIEW [Vol. 10:899

LMRA also provides in part that "[f]inal adjustment by a method
agreed upon by the parties is . . . the desirable method for settle-
ment of grievance disputes arising over the applicaton or interpreta-
tion of an existing collective-bargaining agreement."^^ The Board has
resolved the problem of harmonizing its duty under section 10(a)

with its obligation to promote the private resolution of grievance

disputes, which arguably may also be considered unfair labor prac-
tices, by formulating procedures under which it will defer either to
an arbitration award previously issued^" or defer to an arbitration
process prior to the issuing of an award."

In general, both the federal courts and the NLRB have favored
the grievance-arbitration mechanism in resolving industrial disputes
based on the principles of collectivity and rule by the majority/® For

example, a union may decide not to process a grievance alleging a
violation of the collective bargaining agreement because of doubts

as to its merits or conflicts with other union interests. Under Vaca
V. Sipes,^^ before an employee can maintain a suit for breach of con-

tract against the employer, he must first demonstrate that the union
breached its duty of fair representation. This requirement places a

difficult burden of proof on the employee, especially in light of the

test employed by the courts in finding a breach.^" Thus, it appears

''Id. § 173(d).

^•In Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955), the Board held that "the

desirable objective of encouraging the voluntary settlement of labor disputes will best

be served" by the recognition of a prior arbitration award involving conduct which

might constitute an unfair labor practice under § 8, 29 U.S.C. § 158 (1970 & Supp. V
1975), if the Board finds that: (1) [T]he arbitration proceedings "have been fair and

regular," (2) all parties have agreed to be bound by the decision, and (3) "the decision

. . . was not clearly repugnant to the purposes and policies of the [NLRA]." 112
N.L.R.B. at 1082. Later, in International Harvester Co., 138 N.L.R.B. 923 (1962), the

Board refined these criteria in upholding an arbitration award which was not "palpably

wrong," and where the proceedings were not "tainted by fraud, collusion, unfairness,

or serious procedural irregularities." Id. at 928-29.

"In Joseph Schlitz Brewing Co., 175 N.L.R.B. 141 (1969), the Board indicated that

it would not assert jurisdiction in deference to the grievance-arbitration machinery

provided that certain criteria were met. The Board formulated the following re-

quirements: (1) "[T]he contract clearly provides for grievance and arbitration

machinery," (2) the conduct "is not designed to undermine the Union and is not patent-

ly erroneous but rather is based on a substantial claim of contractual privilege," and (3)

"it appears that the arbitral interpretation of the contract will resolve both the unfair

labor practice issue and the contract interpretation issue in a manner compatible with

the purposes of the [NLRA]." /d at 142. See also CoUyer Insulated Wire, 192 N.L.R.B.

150 (1971).

"See, e.g., Emporium Capwell Co. v. Western Addition Community Org., 420 U.S.
50 (1975); Vaca v. Sipes, 386 U.S. 171 (1967); J.I. Case v. NLRB, 321 U.S. 332 (1944).

^»386 U.S. 171 (1967).

""The Supreme Court has established in Vaca v. Sipes, 386 U.S. 171 (1967), that a

breach of the statutory duty occurs "when a union's conduct ... is arbitrary, discrimi-



1977] LABOR ARBITRATOR A UTHORITY 903

that a system which vests the union with virtually total control over

the decision of whether to process a grievance — perhaps a necessity
to the maintenance of a strong and effective collective bargaining

and arbitration system — may, in the process, subvert the needs of a
minority group or an individual employee attempting to end dis-

criminatory employment practices."

Title VII of the Civil Rights Act of 1964^ exemplifies the conflict

between a federal labor policy which emphasizes the private settle-

natory, or in bad faith." Id at 207. The arbitrary or bad-faith conduct requirement is

not satisfied merely by showing that the employee has a meritorious grievance and

that the union refused to process it to arbitration. However, as stated in Vaca, "[A]

union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory
fashion." Id. at 191. The Court stated that "in administering the grievance and arbitra-
tion machinery as a statutory agent of the employees, a union must, in good faith and

in a nonarbitrary manner make decisions as to the merits of a particular grievance."
Id. at 194. But see Beriault v. Longshoremen Local 40, 501 F.2d 258 (9th Cir. 1974) (the

duty to act "fairly" is breached when the union's actions are arbitrary; such actions
need not be deceitful, dishonest, or in bad faith).

""The collective bargaining system as encouraged by Congress and administered

by the NLRB of necessity subordinates the interests of an individual employee to the
collective interests of all employees in a bargaining unit." Vaca v. Sipes, 386 U.S. 171,

182 (1967). In addition, the Supreme Court has limited the ability of employees to avail
themselves of self-help remedies. In Emporium Capwell Co. v. Western Addition Com-
munity Org., 420 U.S. 50 (1975), the Court held that picketing the premises of the

employer and urging a consumer boycott in order to force the employer to bargain

over alleged employment discrimination were unprotected activities under the LMRA,
because the employees effectively bypassed the union and demanded that the Com-
pany bargain with the picketing employees for the entire group of minority employees.

The Court rejected the argument that employees who seek to bargain separately with
their employer over the elimination of racially discriminatory employment practices
which peculiarly affected them should be free from the constraints of the exclusivity

principle of § 9(a), 29 U.S.C § 159(a) (1970). The employees cited the time-consuming
nature of the grievance procedure and the national labor policy against discrimination

as requiring this exception. The Court reasoned that "it is far from clear that separate
bargaining is necessary to help eliminate discrimination." 420 U.S. at 66. In Emporium
the collective bargaining agreement contained a provision prohibiting all manner of in-
vidious discrimination without qualification and made any violation a grievable issue.
In addition, the union was prepared to go to arbitration, and "[t]hat orderly determina-
tion, if affirmative, could lead to an arbitral award enforceable in court." Id, Further-

more, "[e]ven if the arbitral decision denies the putative discriminatee's complaint his

access to the processes of Title VII and thereby to the federal courts is not

foreclosed." Id. n.l8.

"Civil Rights Act of 1964, §§ 701-718, 42 U.S.C. §§ 2000e to 2000e-17 (1970 &
Supp. V 1975). Title VII of the Civil Rights Act of 1964 explicitly prohibits discrimina-
tion in employment as to hiring, firing, compensation, terms, conditions, or privileges
of employment on the basis of race, color, religion, sex, or national origin, /d. § 2000e-2
(1970). It is now clear that white persons have a cause of action for employment
discrimination under Title VII. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273
(1976). Since 1972 the Act has applied to employers engaged in interstate commerce
who have employed at least 15 employees during each working day in each of 20 or
more calendar weeks of the current or preceding calendar year. 42 U.S.C. § 2000e(b)



904 INDIANA LAWREVIEW [Vol. 10:899

ment of industrial disputes through the grievance-arbitration pro-
cedure and a national policy which attempts to eliminate employ-
ment discrimination. This conflict is intensified when a discrimi-
natory act by an employer or labor organization constitutes a viola-

tion of Title VIF^ as well as a violation of the terms of a collective

(Supp. V 1975). It also applies to employment agencies procuring employees for such an
employer, id. §§ 2000e(c), 2000e-2(b) (1970 & Supp. V 1975), and to almost all labor
organizations, id. §§ 2000e-(d), 2000e-2(c) (1970). The 1972 amendments extended
coverage to all state and local governments, government agencies, political subdivi-

sions (except for elected officials, their personal assistants, and immediate advisors)

and the District of Columbia departments and agencies (except where subject by law

to the federal competitive service). Id. § 2000e(a), (f) (Supp. V 1975).
An aggrieved employee charging a violation of the Act must file a charge with the

EEOC within 180 days after the alleged violation, unless the person has commenced a
proceeding before an authorized state or local authority. 42 U.S.C. § 2000e-5(e) (Supp.

V 1975). In the latter case, the charge must be filed within 300 days after the violation
occurred or within 30 days after the person aggrieved has received notice that the

deferral agency has terminated the proceeding, whichever is earlier. Id.

The reach of Title VII's prohibitions against employment discrimination has been
expanded by the courts to include even neutrally stated and indiscriminately ad-

ministered employment practices or procedures, in the absence of demonstrable

business necessity, if the practice operates to favor an identifiable group of white

employees over a protected class. Griggs v. Duke Power Corp., 401 U.S. 424 (1971).
Provision is made in the Act to preclude application of federal preemption to

state or local laws assigned to proscribe employment discrimination. 42 U.S.C. §
2000e-7 (1970). Thus, if an individual initially processes an employment discrimination

charge in a state or local forum and receives an adverse ruling (or fails to obtain a

timely ruling), this does not bar him from subsequently bringing a Title VII action.

See, e.g., Cooper v. Phillip Morris, Inc., 464 F.2d 9 (6th Cir. 1972); Voutis v. Union Car-

bide Corp., 452 F.2d 889 (2d Cir. 1971).
''''42 U.S.C. § 2000e-2(a) to (c) (1970) provides in part:

(a) Employer practices.

It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise

to discriminate against any individual . . . because of such individual's race,

color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees ... in any way which
would deprive or tend to deprive any individual of employment opportunities

or otherwise adversely affect his status as an employee, because of such in-

dividual's race, color, religion, sex, or national origin.

(c) Labor organization practices.

It shall be an unlawful employment practice for a labor organization —
(1) to exclude or to expel from its membership, or otherwise to discri-

minate against, any individual because of his race, color, religion, sex, or na-

tional origin;

(2) to limit, segregate, or classify its membership ... in any way which

would deprive or tend to deprive any individual of employment oppor-

tunities, or . . . otherwise adversely affect his status as an employee . . .

because of such individual's race, color, religion, sex, or national origin; or

(3) to cause or attempt to cause an employer to discriminate against

an individual in violation of this section.



1977] LABOR ARBITRA TOR A UTHORITY 905

bargaining agreement. For example, an individual covered under a

labor agreement may allege that the employer has violated the
terms of the agreement by discharging the employee for something

other than "just cause."^* If, at the same time, the employee alleges
that the discharge was based on race or some other criterion pro-
scribed by Title VII, he may commence an action under that statute.
The Supreme Court held in Alexander v. Gardner-Denver Co}^ that
an arbitral award does not bar a concurrent or subsequent suit in

federal court alleging discrimination under Title VII.^*' Effectively

this means that the employee may file a grievance pursuant to the
terms of a collective bargaining agreement and concurrently or

subsequently assert a Title VII claim in another forum. In declining

to hold that an arbitral determination would bar a Title VII suit, the

Alexander Court was especially cognizant of the arbitrator's task in

"Grounds for discharge, either in the form of a "just cause" limitation or a listing

of specific offenses for which one may be disciplined or discharged, are mentioned in
approximately 97% of labor contracts. [1976] Labor Relations Expeditor (BNA) 131.
Frequency figures are based on a sample of 400 representative union contracts in ef-

fect during 1973-74.

^^15 U.S. 36 (1974).

"Prior to the Supreme Court's ruling in Alexander v. Gardner-Denver Co., id.,
the federal courts were split in attempting to resolve the conflict between the follow-

ing "pro-" and "anti-bar" decisions, with the former holding that an arbitral determina-

tion operates as a bar to further action under Title VII, and the latter holding that an

arbitrator's decision is not such a bar:

Pro-bar decisions: Rios v. Reynolds Metals Co., 467 F.2d 54 (5th Cir. 1972); Alex-

ander V. Gardner-Denver Co., 466 F.2d 1209 (10th Cir. 1972), rev'd, 415 U.S. 36 (1974)

(the Supreme Court took an anti-bar stand); Thomas v. Phillip Carey Mfg. Co., 455 F.2d
911 (6th Cir. 1972) (favorable arbitration award bars Title VII claim in federal court);

Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir. 1970); Sanchez v. TWA, 8 Empl.
Prac. Dec. 5075 (D.N.M. 1973), rev'd and rem'd, 499 F.2d 1107 (10th Cir. 1974)

(decided consistently with the Supreme Court's decision in Alexander); Taylor v. Spring-
meier Shipping Co., 3 Empl. Prac. Dec. 7011 (W.D. Tenn. 1971) (resort to contract

grievance procedure on claim of wrongful discharge amounted to election of remedies);

Edwards v. North Am. Rockwell Corp., 291 F. Supp. 199 (CD. Cal. 1968) (pursual of
contract remedy to conclusion considered binding "election of remedies"); Washington
v. Aerojet-General Corp., 282 F. Supp. 517 (CD. Cal. 1968) (binding election of

remedies made when grievant agreed to third step of grievance procedure to reduce
one month's disciplinary layoff to nine days).

Anti-bar decisions: Franks v. Bowman Transp. Co., 495 F.2d 398 (5th Cir, 1974);
Oubichon v. North Am. Rockwell Corp., 482 F.2d 569 (9th Cir. 1973); Macklin v. Spec-
tor Freight, Inc., 478 F.2d 981 (D.C Cir. 1973) (policy of honoring private grievance

decisions not to be followed where fairness of procedure attacked); Voutsis v. Union

Carbide Corp., 452 F.2d 889 (2d Cir. 1971) (federal court can entertain complaint of sex

discrimination despite settlement under a state fair employment practices provision);

Newman v. Avco Corp., 451 F.2d 743 (6th Cir. 1971); Hutchings v. United States In-
dus., Inc., 428 F.2d 303 (5th Cir. 1970); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th
Cir. 1969).



906 INDIANA LAWREVIEW [Vol. 10:899

relation to the collective bargaining agreement. The Court noted
that the labor arbitrator, as proctor of the bargain, has no general

authority to invoke public laws that conflict with the agreement.

Citing United Steelworkers v. Enterprise Wheel & Car Corp.," the
Court stated:

If an arbitral decision is based solely on 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 his 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 whether certain contrac-

tual rights are similar to, or duplicative of, the substantive

rights secured by Title VII.'^*

The obligation and authority of a labor arbitrator to interpret
and apply the law in resolving conflicts arising under the labor

agreement has been the subject of much debate.^' This Article will
explore and analyze the problems and issues arising when an arbi-
trator is presented with the opportunity to interpret and apply the

law in resolving a contractual dispute, particularly those disputes

which are cognizable under Title VII. Part II will review the posi-

tions taken by selected members of the National Academy of Arbi-

==^363 U.S. 593 (1960).

"415 U.S. at 53-54.

^See generally Cox, The Place of Law in Labor Arbitration, in The Profession
OF Labor Arbitration, Selected Papers from the First Seven Annual Meetings of
THE National Academy of Arbitrators, 1948-1954 at 76 (BNA 1957); Howlett, The
Role of Law in Arbitration; A Reprise, in Developments in American and Foreign
Arbitration; Proceedings of the Twenty-First Annual Meeting, National
Academy of Arbitrators 64 (BNA 1968); Howlett, The Arbitrator, the NLRB, and the
Courts, in The Arbitrator, the NLRB, and the Courts; Proceedings of the Twen-
tieth Annual Meeting, National Academy of Arbitrators 67 (BNA 1967); Meltzer,
The Role of Law in Arbitration; Rejoinders, in Developments in American and
Foreign Arbitration; Proceedings of the Twenty-First Annual Meeting, National
Academy of Arbitrators 58 (BNA 1968); Meltzer, Ruminations About Ideology, Law,
and Labor Arbitration, in The ARBITRATOR, the NLRB, AND the Courts; Proceedings
OF THE Twentieth Annual Meeting, National Academy of Arbitrators 1 (BNA
1967); Mittenthal, The Role of Law in Arbitration, in Developments in American and
Foreign Arbitration; Proceedings of the Twenty-First Annual Meeting, National
Academy of Arbitrators 42 (BNA 1968); St. Antoine, The Role of Law in Arbitration:
Discussion^ in Developments in American and Foreign Arbitration; Proceedings of
the Twenty-First Annual Meeting, National Academy of Arbitrators 75 (BNA
1968); Sovern, When Should Arbitrators Follow Federal Law?, in Arbitration and
the Expanding Role of Neutrals; Proceedings of the Twenty-Third Annual
Meeting, National Academy of Arbitrators 29 (BNA 1970).



1977] LABOR ARBITRATOR AUTHORITY 907

trators^ and other authorities. Part III will focus on the analysis

and reasoning provided by the Supreme Court in Alexander, with
respect to the problems and policy considerations of arbitrators in-

terpreting and applying the law when resolving grievances. Finally,
Part IV will review selected cases subsequent to Alexander involv-

ing the general authority of arbitrators to decide Title Vll-type

grievances.

II. The Arbitrator and the Law: Deciding Legal Issues
Under a Collective Bargaining Agreement

As indicated earlier, the obligation and authority of a labor ar-
bitrator to interpret and apply the law when resolving grievances
has been the subject of much debate." Two situations are to be dis-
tinguished. In the first, the contractual and statutory standards are

not in conflict, but overlap. In this case, few argue that arbitrators

should ignore federal law when a contractual provision is ambiguous
and can be interpreted in two ways — one consistent with the law
and one inconsistent therewith. Meltzer'^ argues that in such a situa-

tion, there is not necessarily an incompatability between the

statutory and contractual standard.

[WJhere a contractual provision is susceptible to two inter-
pretations, one compatible with, and the other repugnant to,

an applicable statute, the statute is a relevant factor for in-

terpretation. Arbitral interpretation of agreements, like

judicial interpretation of statutes, should seek to avoid a con-

struction that would be invalid under a higher law.**

The second situation involves the case where a conflict exists
between the agreement and the statute. The orthodox position is
that an arbitrator's decision is constrained by the collective bargain-
ing agreement; when there is conflict the arbitrator should respect
the agreement and ignore the law. Meltzer, the leading exponent of
this traditional view, has argued that arbitrators should respect the
agreement, which is the source of their authority, leaving to the
courts or other official tribunals the determination of whether the
agreement contravenes a specific statute. Otherwise, arbitrators

*The National Academy of Arbitrators was organized in 1947 in cooperation with
the American Arbitration Association. In addition to setting standards for labor ar-
bitrators, the Academy provides a forum for discussing problems of labor arbitration
within the profession.

"See note 29 supra and accompanying text.
'^Meltzer, Ruminations About Ideology, Law, and Labor Arbitration, supra note

29.

"Id. at 15.



908 INDIANA LAWREVIEW [Vol. 10:899

would be deciding issues beyond the scope of not only the submis-

sion agreement, but also arbitral competence.^* However, Meltzer
would deem the arbitrator to be justified in resolving a legal ques-
tion if the parties have requested the arbitrator to issue an addi-

tional advisory opinion^^ or if they intended to incorporate legal

standards into the agreement.^" Absent these special circumstances,

Meltzer believes that an arbitrator who invokes the law to defeat
the negotiated contract exceeds the authority conferred by the sub-

mission agreement.^^ As a final argument for the traditional view,
Meltzer asserts that there is no reason to credit arbitrators with

having any special legal competence.'*

A contrary position is taken by Howlett,'^ who argues that "arbi-
trators should render decisions on the issues before them based on
both contract language and law."^^ This position is based on the

following considerations: (1) The rationale that "each contract in-
cludes all applicable law," which becomes "part of the 'essence [of

the] collective bargaining agreement' to which Mr. Justice Douglas

has referred in [Enterprise WheeJ]^'^^ (2) the policy of the NLRB, as
enunciated in Spielberg, favoring the arbitral determination of legal

issues,*^ and (3) the notion that "an arbitrator who decides a dispute
without consideration of legal issues disserves his management-

union clients."" Indeed, under Howlett's view, an arbitrator is not

only under a duty to apply substantive law, but is also under an af-

firmative duty to probe for a statutory violation. "Unless he does so,

neither the General Counsel nor the Board will 'defer' to the ar-

bitrator's decision.""

Several commentators have proposed solutions somewhere be-
tween the Meltzer and Howlett positions. Cox has argued that an ar-
bitrator should look to the statutes in order to avoid rendering an

award that would require the parties to violate the law.*^ This posi-

tion, states Cox,

"/d at 16.

""^M at 31.

«'/d. at 15.

"M at 16-17.
""Id,

**Howlett, The Arbitrator, the NLRB, and the Courts, supra note 29.
"/d at 83 (emphasis in original).

*7d (citing United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593
(I960)).

«M at 79 (citing Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955)).
"/d. at 85.

"M at 92.
"Cox, The Place of Law in Labor Arbitration, supra note 29, at 78.



1977] LABOR ARBITRATOR AUTHORITY 909

does not suggest that an arbitrator should pass upon all the

parties' legal rights and obligations. It does not suggest that

an arbitrator should refuse to give effect to a contract provi-

sion merely because the courts would not enforce it. Nor

does it imply that an arbitrator should be guided by judge-

made rules of evidence or contract interpretation. The prin-
ciple requires only that the arbitrator look to see whether

sustaining the grievances would require conduct the law for-

bids or would enforce an illegal contract; if so, the arbitrator

should not sustain the grievance."

In an address before the National Academy of Arbitrators in
1968, Mittenthal*^ refined Cox's position:

On balance, the relevant considerations support Cox's
view. The arbitrator should "look to see whether sustaining
the grievance would require conduct the law forbids or

would enforce an illegal contract; if so, the arbitrator should

not sustain the grievance." This principle, however, should

be carefully limited. It does not suggest that "an arbitrator

should pass upon all the parties' legal rights and obligations"

or that "an arbitrator should refuse to give effect to a con-

tract provision merely because the courts would not enforce

it." Thus, although the arbitrator's award may permit con-
duct forbidden by law but sanctioned by contract, it should

not require conduct forbidden by law even though sanctioned

by contract.**

Mittenthal cited several interesting examples which demonstrated

the rationale behind his position, including the following, which was
first proposed by Cox. After World War II a conflict developed be-
tween provisions of the Selective Service Act and contractual provi-
sions of collective bargaining contracts dealing with seniority. The
Supreme Court interpreted the Act to require employers to give
veterans preference over nonveterans in the event of layoffs during

the first year after their discharge from the armed forces," while
the common collective bargaining contract gave veterans only the
seniority they would have had if they had not been drafted. The
other example concerned a problem arising under the National
Labor Relations Act. Without prior discussion with the union, an
employer advanced the starting time at the plant pursuant to a con-

"/d at 79.

"Mittenthal, The Role of Law in Arbitration, supra note 29.
"/d. at 50.

"Fishgold V. Sullivan Corp., 328 U.S. 275 (1946).



910 INDIANA LAWREVIEW [Vol. 10:899

tract which granted the employer "sole jurisdiction over all matters

concerning the management of the plant subject only to the terms of
the agreement." In the first example, the union filed a grievance

when the employer released a nonveteran who had more contract
seniority than a veteran. In the second, the union charged that the

statutory rights and duties are a part of the contract and that the

unilateral action was a violation of section 8(a)(5) of the LMRA,
which makes it an unfair labor practice for the employer to refuse to
bargain collectively with representatives of his employees.

Mittenthal would apply the Supreme Court ruling in the first ex-
ample and deny the grievance because such an award would require
the employer to engage in conduct forbidden by law. In the second

hypothetical, he would sustain the grievance if there were no con-
tract violation, for even if the employer's actions were contrary to

law, the award would merely permit and not require illegal action.
Mittenthal supports his position with the following reasoning:

One of the reasons for this proposition [that arbitrators
should consider the law to avoid an award which would re-

quire unlawful conduct] is that contracts contemplate 'final

and binding' awards and that an award compelling unlawful
conduct cannot really be 'final and binding.' The dispute over
the contract, over the award itself, would continue into the

courts.^

However, Mittenthal realizes that the arbitrator should, for the

same reason, enforce statutory obligations because his failure to do
so would likely result in a court suit.

When an arbitrator refuses to enforce a statutory obligation,
his award is 'final and binding' with respect to the contract.
The grievant has no contract question to take to court. He
may pursue his statutory rights in the appropriate forum,
but such a suit has nothing to do with the contract."

Sovern^^ offers a more detailed compromise to the debate, listing
the following criteria which should be satisfied before an arbitrator

entertains a legal issue:

"Mittenthal, The Role of Law in Arbitration, supra note 29, at 52 n.37.
"/d. This author takes the position that the distinction which Mittenthal makes

with respect to "permitting" and "requiring" a violation of the law is not functionally

useful. As Meltzer notes, "[I]f the arbitrator is viewed as 'enforcing' contracts, he 'en-
forces' an illegal contract equally whether he causes an employer to engage in an act

prohibited by statute or, by denying a remedy, condones the prohibited act already ex-

ecuted by the employer." Meltzer, The Role of Law in Arbitration; Rejoinders, supra
note 29, at 60.

"''Sovern, When Should Arbitrators Follow Federal Law?, supra note 29.



1977] LABOR ARBITRATOR A UTHORITY 911

1. The arbitrator is qualified.
2. The question of law is implicated in a dispute over the

application or interpretation of a contract that is also

before him.

3. The question of law is raised by a contention that, if the
conduct complained of does violate the contract, the law

nevertheless immunizes or even requires it.

4. The courts lack primary jurisdiction to adjudicate the
questions of law.^

Sovern notes that in a Title VII case, the fourth criterion is not met,

"[s]ince the courts are entrusted with primary jurisdiction to decide

Title VII questions. . . .""

III. THE Alexander Position

A. Background

In May 1966, Harrell Alexander was hired to perform mainten-
ance at the plant of the Gardner-Denver Company. In June 1968,
Alexander was awarded a trainee position as a drill operator where
he remained until his discharge in September 1969. He was told that
he was being discharged for producing too many defective parts.

On October 1, 1969, Alexander filed a grievance pursuant to the
terms of the collective bargaining contract.^^ Under the agreement,
the company retained the right to hire, suspend, or discharge
employees for proper cause. The agreement also provided that
"there shall be no discrimination against any employee on account of

race, color, religion, sex, national origin, or ancestry,"^' and that "no

employee will be discharged, suspended or given a written warning

notice except for just cause."" A broad arbitration clause was in-
cluded to cover the differences between the company and the union
as to the meaning and application of the provisions of the labor con-
tract. Disputes were to be processed through a multi-step grievance
procedure with final and binding arbitration as the last step.

The union processed Alexander's grievance through the above
machinery. In a final prearbitration step, Alexander raised the
claim, apparently for the first time, that his discharge resulted from

"/d at 38.

"M at 45.
"The grievance stated: "I feel I have been unjustly discharged and ask that I be

reinstated with full seniority and pay." Alexander v. Gardner-Denver Co., 415 U.S. 36,
39 (1974).

"/d at 39 n.l.

"M at 40-41 n.3.



912 INDIANA LAWREVIEW [Vol. 10:899

racial discrimination. At the hearing, Alexander testified that his
discharge was the result of racial discrimination and informed the
arbitrator that because he could not rely on the union, he had filed a
charge with the Colorado Civil Rights Commission.^ In December,
after an arbitration hearing, Alexander was found to have been dis-
charged for just cause. The arbitrator's opinion made no reference
to Alexander's claim of racial discrimination.

In June 1970, pursuant to a referral by the Colorado Civil Rights
Commission, the EEOC determined that there was not reasonable
cause to believe that a violation of Title VII had occurred. After be-

ing notified of his right to institute an action under the Civil Rights

Act of 1964, Alexander filed an action in district court. Stating that

the issue raised by the suit was the need to determine "just how
many chances plaintiff should be afforded to try to establish his
claim of discrimination," the district court granted summary judg-
ment to the employer.^"

In Alexander, the Supreme Court had to decide under what cir-
cumstances, if any, an employee's statutory right to a trial de novo

^IdL at 42.

"•Alexander v. Gardner-Denver Co., 346 F. Supp. 1012 (D. Colo. 1971), aff'd, 466

F.2d 1209 (10th Cir. 1972), revd, 415 U.S. 36 (1974). The lower court focused on the
dichotomy of authority found in Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir.
1970), aff'd by an equally divided court, 402 U.S. 689 (1971), and Hutchings v. United

States Indus., Inc., 428 F.2d 303 (5th Cir. 1970), and adopted, in their entirety, the

views expressed in Dewey.
We hold that when an employee voluntarily submits a claim of discrimination
to arbitration under a union contract grievance procedure — a submission
which is binding on the employer no matter what the result— the employee
is bound by the arbitration award just as is the employer. We cannot accept
a philosophy which gives the employee two strings to his bow when the
employer has only one. Congress has given the employee one and one-half

strings under the Equal Employment Opportunity procedure. It is true that
the Commission can enter no order binding on the employer, but with a find-

ing of probable cause, reserving to the employee the right to sue, he is given

the assistance of an agency of the United States Government in attempting

to bring about a settlement of the claimed discrimination. This amounts to a

, half string.

... To hold that an employee has a right to an arbitration of a grievance
which is binding on an employer but is not binding on the

employee— a trial balloon for the employee, but a moon shot for the employer
— would sound the death knell for arbitration clauses in labor contracts. Such
a result would bring to a tragic end the many years of effort which have
brought about the now prevailing arbitration procedures to resolve labor
disputes. The vital importance of the rights protected by the Civil Rights

Act must not be overlooked, but it is the employee who elected arbitration.
His was a voluntary choice, and he should be bound by it.

Alexander v. Gardner-Denver Co., 346 F. Supp. at 1019.



1977] LABOR ARBITRA TOR A UTHORITY 913

under Title VII is precluded by a prior submission of his claim to

final arbitration. Hence, the Court was faced with two important,

but conflicting national policies: encouragement of voluntary settle-

ment of disputes through grievance-arbitration procedures negotiated

by the parties, and elimination of employment discrimination.""
The Court noted the absence of any express authority in Title

VII itself with respect to the relationship between federal courts

and the grievance-arbitration machinery of collective bargaining

agreements. However, the Court stated that prior legislative enact-

ments" and the legislative history of Title VIP^ suggested a Con-

gressional intent to allow an individual to pursue his rights in-

dependently under both Title VII and other applicable state and

federal statutes. "The clear inference," reasoned the Court, "is that

Title VII was designed to supplement, rather than supplant, existing

•"It is noteworthy that with respect to precedent, an equally divided Court had af-

firmed Dewey v, Reynolds Metals Co., 402 U.S. 689 (1971), three years earlier. In addi-
tion, the Supreme Court considered the relationship between contract and statutory
remedies in United States Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351 (1971). In Bulk

Carriers, a seaman brought an action in district court under the Seaman's Act of 1790,

§ 6, 46 U.S.C. § 596 (1970), to recover wages allegedly due. The seaman was also sub-
ject to a collective bargaining agreement containing a grievance procedure with final

arbitration as the last step. The Supreme Court held that the seaman was not required

to exhaust his contractual remedies. In his concurring opinion. Justice Harlan recognized

that the ultimate resolution of the conflict between statutory and contractual rights

would proceed "with close attention to the policies underpinning both the duty to ar-

bitrate and the provision by Congress of rights and remedies in alternative forums."

400 U.S. at 359.

"The Court cited the Civil Rights Act of 1870, ch. 114, § 16, 42 U.S.C. § 1981

(1970):

All persons within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all laws and pro-

ceedings for the security of persons and property as is enjoyed by white

citizens, and shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other,

and the Civil Rights Act of 1871, ch. 22, § 1, 42 U.S.C. § 1983 (1970), which states the

following:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress.

"In support, the Court cited an interpretive memorandum by one of the sponsors
of the bill containing Title VII which stated:

Nothing in title VII or anywhere else in this bill affects rights and obliga-

tions under the NLRA and the Railway Labor Act. . . . [Tjitle VII is not in-
tended to and does not deny to any individual, rights and remedies which he



914 INDIANA LAWREVIEW [Vol. 10:899

laws and institutions relating to employment discrimination.""^ The
Court rejected the theory of "election-of-remedies" or "res judicata-

collateral estoppel"** as a rationale for precluding relitigation.

Analogous to the procedure under the National Labor Relations Act,

where conduct may implicate both contractual and statutory rights,
the Court held that the relationship between the forums is comple-

mentary, "since consideration of the claim by both forums may pro-
mote the policies underlying each."*^ The "separate nature of . . .
contractual and statutory rights is not vitiated merely because both

were violated as a result of the same factual occurrence."''*' In addi-

tion, the Court rejected the argument that an "election of remedies

is required by the possibility of unjust enrichment through dupli-

cative recoveries," for "even in cases where the employee has first

prevailed, judicial relief can be structured to avoid such windfall

gains."'^

may pursue under other Federal and State statutes. If a given action should
violate both title VII and the National Labor Relations Act, the National

Labor Relations Board would not be deprived of jurisdiction.

415 U.S. at 48 n.9 (quoting 110 Cong. Rec. 7207 (1964)). The Court also discussed the
legislative history of Title VII:

Moreover, the Senate defeated an amendment which would have made Title
VII the exclusive federal remedy for most unlawful employment practices.
[A] similar amendment was rejected in connection with the Equal Employ-
ment Opportunity Act of 1972. The report of the Senate Committee responsi-
ble for the 1972 Act explained that neither the provisions regarding the in-

dividual's right to sue under title VII, nor any of the other provisions of this

bill, . . . [were] meant to affect existing rights granted under other laws.
Id. (citations omitted).

«M15 U.S. at 48-49.

**/d. at 49. As noted by the Sixth Circuit in Tipler v. E. I. duPont deNemours &
Co., 443 F.2d 125 (6th Cir. 1971), res judicata and collateral estoppel are different

theories which often lead to the same result. The Tipler court noted:
[A]pplication of the doctrine of res judicata necessitates an identity of causes

of action, while the invocation of collateral estoppel does not. Each doctrine,

on the other hand, requires that, as a general rule, both parties to the subse-

quent litigation must be bound by the prior judgment. The essence of col-
lateral estoppel by judgment is that some question or fact in dispute has

been judicially and finally determined by a court of competent jurisdiction

between the same parties or their privies. Thus, the principle of such an

estoppel may be stated as follows: Where there is a second action between
parties, or their privies, who are bound by a judgment rendered in a prior
suit, but the second action involves a different claim, cause, or demand, the

judgment in the first suit operates as a collateral estoppel as to, but only as

to, those matters or points which were in issue or controverted and upon the

determination of which the initial judgment necessarily depended.

443 F.2d at 128 (quoting IB Moore's Federal Practice 5 441[2] (2d ed. 1974) (footnotes

omitted)).

««415 U.S. at 50-51.

""M at 50.

"M at 51 n.l4.



1977] LABOR ARBITRATOR AUTHORITY 915

The Supreme Court also rejected "waiver" as a possible legal

basis for the preclusion rule, stating that "[i]n no event can the sub-

mission to arbitration . . . under the nondiscrimination clause of a

collective-bargaining agreement constitute a binding waiver with

respect to an employee's rights under Title VII."** The Court's

reasoning is instructive.

It is true, of course, that a union may waive certain
statutory rights related to collective activity, such as the

right to strike. These rights are conferred on employees col-

lectively to foster the processes of bargaining and properly

may be exercised or relinguished by the union as collective-
bargaining agent to obtain economic benefits for union mem-
bers. Title VII, on the other hand, stands on plainly different

ground; it concerns not majoritarian processes, but an in-

dividual's right to equal employment opportunities. Title

VII's strictures are absolute and represent a congressional

command that each employee be free from discriminatory
practices. Of necessity, the rights conferred can form no part

of the collective-bargaining process since waiver of these

rights would defeat the paramount congressional purpose

behind Title VII. In these circumstances, an employee's

rights under Title VII are not susceptible of prospective

waiver.*'

Significantly, Alexander took an inflexible position in refusing to

adopt a preclusion rule or a deferral standard. A deferral rule was
viewed as laced with many of the objections applicable to a policy of
preclusion. Nor would a more demanding deferral standard provide
a solution.™ In support of its position, the Court stated that deferral

criteria which "adequately insured effectuation of Title VII rights

"/d at 52 n.l5.

"/d. at 51-52 (citations omitted). With respect to the waiver argument, the Court

further stated:

The actual submission of petitioner's grievance to arbitration in the present

case does not alter the situation. Although presumably an employee may
waive his cause of action under Title VII as part of a voluntary settlement,

mere resort to the arbitral forum to enforce contractual rights constitutes no
such waiver. Since an employee's rights under Title VII may not be waived
prospectively, existing contractual rights and remedies against discrimina-

tion must result from other concessions already made by the union as part of
the economic bargain struck with the employer. It is settled law that no addi-

tional concession may be exacted from any employee as the price for enforc-
ing those rights.

Id. at 52.

"415 U.S. at 58. Alexander rejected the more demanding test adopted in Rios v.

Reynolds Metals Co., 467 F.2d 54 (5th Cir. 1972).



916 INDIANA LAWREVIEW [Vol. 10:899

would tend to make arbitration a procedurally complex, expensive,
and time-consuming process."^^ Such a standard of review would ef-
fectively require courts to make de novo determinations of an
employee's claim. In addition, a deferral rule was seen as adversely
affecting the arbitral system. The Court noted that employees,
"fearing that the arbitral forum cannot adequately protect their
rights under Title VII, . . . may elect to bypass arbitration and in-
stitute a lawsuit."^^ This, reasoned the Court, would reduce volun-

tary compliance and settlement of Title VII claims, resulting in

more, not less, litigation. Thus, while not adopting any "de jure"

deferral standards, the Court stated that the arbitral decision "may
be admitted as evidence and accorded such weight as the court

deems appropriate."^^
Lest anyone believe the Court had finally resolved the con-

troversy, the following footnote was inserted:

We adopt no standards as to the weight to be accorded
an arbitral decision, since this must be determined in the
court's discretion with regard to the facts and circumstances

of each case. Relevant factors include the existence of provi-

sions in the collective-bargaining agreement that conform

substantially with Title VII, the degree of procedural

fairness in the arbitral forum, adequacy of the record with

respect to the issue of discrimination, and the special com-

petence of particular arbitrators. Where an arbitral deter-
mination gives full consideration to an employee's Title VII

rights, a court may properly accord it great weight. This is
especially true where the issue is solely one of fact, specifi-
cally addressed by the parties and decided by the arbitrator
on the basis of an adequate record. But courts should ever
be mindful that Congress, in enacting Title VII, thought it

necessary to provide a judicial forum for the ultimate resolu-

tion of discriminatory employment claims. It is the duty of
courts to assure the full availability of this forum.^*

It is especially noteworthy that throughout the opinion the

Court focused on the role of arbitration "in a system of industrial

"415 U.S. at 59. For a detailed analysis of the reasoning of the Court with respect

to deference standards, see Hill, The Effects of Non-Deference on the Arbitral Institu-

tion: An Alternative Theory, 28 Lab. L.J. 230 (1977).
"415 U.S. at 59.

"M at 60.
^*/d. at 60 n.21. Upon remand, the district court found that Alexander had in fact

been discharged for just cause. Alexander v. Gardner-Denver Co., 8 Empl. Prac. Cas.

1153 (D. Colo. 1974), aff'd, 519 F.2d 503 (10th Cir. 1975).



1977] LABOR ARBITRATOR AUTHORITY 917

government,"''* as well as some of the institutional deficiencies of the

arbitration process. The Court felt that the arbitral institution was a

comparatively inappropriate forum for final resolution of Title VII

rights. This conclusion was based on the following considerations: (1)

The role of the arbitrator is to effectuate the intent of the parties;

(2) because the arbitrator's authority is the collective bargaining

agreement, any conflict between Title VII and the agreement must

be resolved in favor of the agreement;'** (3) the specialized com-

petence of arbitrators lies primarily in the law of the shop, not in

the law of the land;'' (4) arbitral fact-finding is not equivalent to

"415 U.S. at 52.

''Id. at 56-57.

"M The extent to which arbitrators possess the expertise to decide legal issues
in employment discrimination cases has been the subject of empirical investigation.

One study randomly selected members of the National Academy of Arbitrators and at-
tempted (by questionnaire) to determine the views of arbitrators with respect to their

expertise in handling legal issues. Of the 79 members returning the questionnaire,
18% felt competent and expert about interpreting the provisions of a collective
bargaining agreement in accordance with Title VII, 47% believed themselves compe-
tent, and 31% responded that they would rather avoid the legal issue; 4% had no opin-
ion. The figures were 23, 58, 13, and 6%, respectively, for those respondents who were
also lawyers. Note, The Authority and Obligation of a Labor Arbitrator to Modify or

Eliminate a Provision of a Collective Bargaining Agreement Because in His Opinion it
Violates Federal Law, 32 Ohio St. L.J. 395 (1971).

Of the 200 Academy members responding to a 1975 survey, only 52% indicated
that they read advance sheets to keep current with respect to Title VII developments,

nearly 40% answered that they did not read the sheets, and 8% declined to answer.
Only 72% indicated that they felt professionally competent to decide legal issues in
cases involving claims of race, sex, national origin, or religious discrimination. Sixteen

percent answered that they did not feel competent, and 12% declined to answer the
question. See Edwards, Arbitration of Employment Discrimination Cases: An Em-
pirical Study, in Proceedings of the Twenty-Eighth Annual Meeting of the Na-
tional Academy of Arbitrators 59 (BNA 1976).

What is especially interesting is Edwards' finding that of the 83% who indicated
that they had never read a judicial opinion involving a claim of employment discrimina-

tion, 50% of this same group nevertheless answered that they felt professionally com-
petent to decide legal issues in discrimination grievances. One-half of those who felt
they were not professionally competent to decide legal issues also answered that they

had heard and decided employment discrimination cases during the past year.
The above data, especially Edwards' findings, appear to support Alexander's con-

cern with the expertise and competence of labor arbitrators to decide legal issues, and

especially those involving employment discrimination. Edwards reasoned that there
would be little interest in the question of the competence and expertise of arbitrators

if only qualified arbitrators were being selected. However, based on the survey data,
such is not the case. The existing selection processes fail to screen out persons who
are not professionally qualified to decide legal issues.

It is noteworthy that arbitrators themselves are supportive of the Alexander ra-

tionale. Approximately two-thirds of the responding arbitrators in the Edwards study
adopted Meltzer's position, see notes 32-38 supra and accompanying text, that an ar-



918 INDIANA LAWREVIEW [Vol. 10:899

judicial fact-finding;^^ (5) the record of the arbitration proceeding is

generally incomplete relative to that of a court; the usual rules of

evidence do not apply; and the rights and procedures common to
civil trials, such as discovery, compulsory process, cross-

examination, and testimony under oath, are often severely limited or

unavailable;^^ (6) arbitrators have no obligation to the court to give

reasons for an award;®" (7) the general informality of the arbitration

procedure relative to the court system makes it a less appropriate
forum for final resolution of Title VII issues;" and (8) the interests of

an individual employee may be subordinated to the collective in-
terests of all employees in an arbitration hearing, due in part to (a)

the union's exclusive control over the manner and extent to which
an individual grievance is presented;®^ (b) the lack of "harmony of in-

terest" between union and employer, given a charge of racial dis-

crimination against the former; and (c) the difficulty of establishing a

breach of the duty of fair representation.®^

B. Alexander and the Authority of the Arbitrator

The Alexander decision has resolved little of the Meltzer-
Howlett-Cox-Mittenthal debate. The Court, in dicta, merely cited the
dicta in Enterprise WheeP* and stated that the arbitrator has
authority to resolve only questions of contractual rights.®^ Presum-

bitrator has no business applying a statute in a contract-grievance dispute. In addition,

85% of those respondents felt that an arbitrator may consider and interpret public law
in order to avoid compelling the parties to violate the law. But at the same time, Ed-
wards found that more than one-third of the arbitrators disagreed with the result in
Alexander, which, argues Edwards, is inherently illogical.

^"415 U.S. at 57.

"M at 57-58.
""Id. at 58.

"'Id.

''Id n.l9 (citing Vaca v. Sipes, 386 U.S. 171 (1967), and Republic Steel Corp. v. Mad-,
dox, 379 U.S. 650 (1965)).

84

[A]n arbitrator is confined to interpretation and application of the collective

bargaining agreement; he does not sit to dispense his own own brand of in-
dustrial justice. He may of course look for guidance from many sources, yet
his award is legitimate only so long as it draws its essence from the collec-

tive bargaining agreement. When the arbitrator's words manifest an infideli-
ty to this obligation, courts have no choice but to refuse enforcement of the

award.

415 U.S. at 53 (quoting United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S.
593, 597 (I960)).

*®"Thus the arbitrator has authority to resolve only questions of contractual

rights, and this authority remains regardless of whether certain contractual rights are



1977] LABOR ARBITRATOR AUTHORITY 919

ably, under Alexander, no legal infirmity would result in the situa-

tion where an arbitrator, faced with an ambiguous contract, looks to
Title VII for guidance in resolving the dispute. Indeed, the Supreme
Court in Enterprise Wheel contemplated that the arbitrator would
look for guidance from many sources, including the law.®**

Where the question does not require choosing one of two inter-
pretations of an ambiguous provision — one consistent with the law,
the other inconsistent — arbitrators are entitled to rest their deci-
sions squarely on the law if the parties have granted the arbitrator

such authority, either by contract or submission agreement.®' As an
example, the parties may execute a contract incorporating the provi-
sions of Title VII, in which case the arbitrator would be within his

authority in basing the award on his interpretation of Title VII.
Here again, Alexander would not preclude the arbitrator from

deciding the Title VII issue; the Court states that when the collec-
tive bargaining agreement contains a nondiscrimination clause

similar to Title VII, arbitration may well produce a satisfactory set-
tlement.*® When no explicit discrimination clause similar to Title VII
is present, most collective bargaining agreements will contain a
"just cause" restriction with respect to discipline or discharge.®® Ac-

cordingly, an arbitrator may well invalidate conduct by an employer
based on criteria prohibited by Title VII. Even if a contract does not
contain any limitation on the right to discipline or discharge, some
arbitrators have held that a "just cause" term is implied.*" Hence, in

the last two examples, where the arbitrator has not been given the
contractual authority to apply the law, an aggrieved employee may
still be afforded an adequate remedy in the arbitral forum. Again,
Alexander does not preclude this result.

In the difficult situation where the arbitrator has not been given
the authority to apply the law, and he feels that the arbitral award

similar to, or duplicative of, the substantive rights secured by Title VII." 415 U.S. at
53-54.

"See note 84 supra.

"'See 0. Fairweather. supra note 9, at 111.
**415 U.S. at 55. See also Goodyear Tire and Rubber Co. v. Rubber Workers

Local 200, 42 Ohio St. 2d 516, 330 N.E.2d 703 (1975) (arbitrator had authority to modify

contract pursuant to EEOC guidelines where contract provided for modification by
federal statute).

^'Grounds for discharge, either in the form of 4 "just cause" limitation or a listing

of specific offenses for which one may be disciplined or discharged, are mentioned in
approximately 97% of contracts. Frequency figures are based on a sample of 400
representative union contracts in effect during 1973-74. [1976] Labor Relations Ex-
PEDITOR (BNA) 131.

^'E.g., Cameron Iron Works, Inc., 25 Lab. Arb. & Disp. Settl. 295 (1955); contra,
Okenite Co., 22 Lab. Arb. & Disp. Settl. 756, 760-61 (1954).



(

920 INDIANA LAWREVIEW [Vol. 10:899

would conflict with Title VII if he were to follow the agreement in-
stead of the law, Alexander appears to mandate that the arbitrator
follow the agreement. The Court states that "[w]here the collective-
bargaining agreement conflicts with Title VII, the arbitrator must
follow the agreement."®^

At this juncture some elaboration is needed. Alexander indicates
that the arbitrator can 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."®^ An arbitrator who is not explicitly granted
the power by a collective bargaining agreement to apply the law
and is faced with a contract which "requires" or "permits" a viola-

tion of Title VII must, under Alexander, follow the agreement. This

is not to say that under Alexander the arbitrator cannot resolve the
dispute consistently with Title VII. Arguably, the arbitrator who
determines that the agreement, in fact, incorporates "the law" may
well resolve the dispute consistently with Title VII on the theory

that the parties did not intend to negotiate an agreement that is

contrary to law. However, in drafting the opinion, the arbitrator

must be especially cognizant of the dicta in Enterprise Wheel- "[The]
award is legitimate only so long as it draws its essence from the col-
lective bargaining agreement. When the arbitrator's words manifest
an infidelity to this obligation, courts have no choice but to refuse

enforcement of the award."®^ An award invalidating a discriminatory
employment practice based solely on what the arbitrator believes to
be required by Title VII will not be enforced; arguably such an

award does not "draw its essence from the collective bargaining
agreement."'* If the opinion of the arbitrator "is based solely upon

the arbitrator's view of the requirements of the enacted legislation,"

he has exceeded the scope of his submission.'^

In absence of specific authority to incorporate the law, the arbi-

trator, under Alexander and Enterprise Wheel must make clear
that his award is based upon the collective bargaining agreement,

and not upon his application of Title VII. Of course, under Enter-

prise Wheel the arbitrator may look to the law for help in determin-
ing the sense of the agreement.*" Such "reaching out" for the law by

"415 U.S. at 57.

"^/d at 53-54.

"363 U.S. at 597.

«/d

••Such language as "I, the arbitrator, sustain the grievance on the basis of Section

703 of Title VII, Griggs v. Duke Power Corp., and the recent EEOC Guidelines on
Testing," may not withstand a subsequent court challenge. However, the following
language would probably withstand a challenge in the courts:



1977] LABOR ARBITRATOR AUTHORITY 921

the arbitrator is also permitted by Alexander, but again, the ar-

bitrator must carefully word the opinion so as to indicate that his
decision is, in fact, based upon the agreement.

IV. Title VII -The Grievance Procedure and the Authority
OF THE ARBITRATOR: RECENT CASE LAW

The Alexander Court recognized the possibility that employment
discrimination cases may, under certain circumstances, be adequate-

ly resolved in grievance and arbitration proceedings.

Where the collective bargaining agreement contains a non-
discrimination clause similar to Title VII and where pro-

cedures are fair and regular, arbitration may well produce a
settlement satisfactory to both employer and employee. . . .

[A]rbitration may often eliminate those misunderstandings
or discriminatory practices that might otherwise precipitate

resort to the judicial forum.'^

Although it seems clear that Alexander does not require exhaustion

of the grievance procedure prior to initiating a Title VII action,®^ the

Court found no infirmity in those cases where arbitrators resolve Ti-

[Tjhis grievance is upheld on the grounds that the agreement does not permit

the employer to promote on the basis of data obtained from an invalidated

test, which, although fair on its face, operates to discriminate on the basis of

race, and furthermore, my findings appear to be consistent with Title VII.
»'415 U.S. at 55.

'^Courts have held that an employee need not exhaust the grievance and arbitra-

tion procedure contained in a collective bargaining agreement before commencing a Ti-

tle VII action. King v. Georgia Power Co., 295 F. Supp. 943 (N.D. Ga. 1968); Dent v. St.
Louis Ry., 265 F. Supp. 56 (N.D. Ala. 1967); Reese v. Atlantic Steel Co., 282 F. Supp.

905 (N.D. Ga. 1967). The issue of exhaustion is not entirely foreclosed by Alexander,

where the Supreme Court never explicitly addressed the issue. Additionally, the facts

of Alexander do not lend themselves to a definitive holding, because Alexander had

exhausted his contractual remedies prior to initiating a suit in federal court. However,

prior decisions by the Supreme Court, e.g., United States Bulk Carriers, Inc. v.
Arguelles, 400 U.S. 351 (1971), as well as the language of Alexander, indicate that an

employee need not resort to the grievance procedure before initiating a Title VII suit.

Alexander correctly noted that Title VII does not speak explicitly to the relationship

between the federal courts and the grievance procedure, but instead it "[vests] the

federal courts with plenary powers to enforce the statutory requirements; and it

specifies with precision the jurisdictional prerequisites that an individual must satisfy

before he is entitled to institute a lawsuit." 415 U.S. at 47. The Court stated that in

the present case, these prerequisites were met when the petitioner filed a timely
charge of employment discrimination with the EEOC, and received and acted upon the
Commission's statutory notice of the right to sue. In light of the overall emphasis in

Alexander on the separate nature of contractual rights under the grievance procedure

and statutory rights under Title VII, there is little reason to believe that the Court im-

plicitly held that exhaustion was required. Subsequent to Alexander, the courts that



922 INDIANA LAWREVIEW [Vol. 10:899

tie Vll-type grievances pursuant to their authority under the

agreement.^

Courts that have considered the issue of arbitral authority

subsequent to Alexander^^^ have not always resolved the issue con-

sistently with that decision. In Southbridge Plastics Division v. Rub-
ber Workers Local 759,^°^ a federal court granted the employer an
injunction against the union processing the grievances of the

employees to arbitration. The employees were alleging a layoff
which was in violation of the terms of the collective bargaining
agreement. The company had previously been the subject of an
EEOC complaint filed by certain female employees alleging sex dis-
crimination with respect to its hiring policies and job classification

system. The EEOC found the system of departmental- and plant-
wide seniority, provided for in the agreement, unlawful because it

perpetuated the effects of past sex discrimination. Accordingly, the

company and the EEOC entered into a conciliation agreement which
would effectively shield women from the effects of the past discrimi-
natory practices.^"^ After refusing to sign the agreement, the union

have considered the exhaustion issue have invariably held that an employee need not

exhaust his or her contractual remedies before initiating a Title VII action, Leone v.

Mobile Oil Corp., 523 F.2d 1153 (D.C. Cir. 1975); Waters v. Wisconsin Steel Workers,

502 F.2d 1309 (7th Cir. 1974); Tuma v. American Can Co., 373 F. Supp. 218 (D.N.J.
1974); Kewin v. Melvendale Bd. of Educ, 65 Mich. App. 472, 237 N.W.2d 514 (1975);
Markarian v. Roadway Express, Inc., 56 Mich. App. 43, 223 N.W.2d 356 (1974).

'"415 U.S. at 53.

"^See, e.g., Southbridge Plastics Div. v. Rubber Workers Local 759, 403 F. Supp.

1183 (N.D. Miss. 1975); Goodyear Tire & Rubber Co. v. Rubber Workers Local 200, 42
Ohio St. 2d 516, 330 N.E.2d 703 (1975); Bridgeton Educ. Ass'n v. Board of Educ, 132
N.J. Super. 554, 334 A.2d 376 (1975); Board of Higher Educ. v. Professional Staff Con-

gress, 80 Misc. 2d 297, 362 N.Y.S.2d 985 (1975).
^"403 F. Supp. 1183 (N.D. Miss. 1975).

"''The conciliation agreement provided, in part, as follows:

[A]ll recruiting, hiring, training, compensation, overtime, job classifica-

tions and assignments, working conditions and privileges of employment

shall be maintained and conducted in a manner which does not discriminate

on the basis of race, color, sex, religion or national origin in violation of Title

VII of the Civil Rights Act of 1964, as amended.

. . . [NJotwithstanding any provision(s) of any collective bargaining agree-

ment to which it is a party at its Corinth facility, including a contract with

the International Union of the United Rubber, Cork, Linoleum and Plastic

Workers of America and its Local Union Number 759, [Southbridge] will
adhere to the following:

a. No female employee, whether employed at the present time or hired
at a future date, will be removed from her job or her shift by a male

employee by utilization of the shift preference provisions of any collec-

tive bargaining agreement in effect at the Corinth facility.



1977] LABOR ARBITRATOR A UTHORITY 923

initiated grievances when several senior males were not given
preference in shift assignments within the plant. Southbridge refused

to arbitrate, reasoning that if the arbitrator's decision were

favorable to the union members, the company would be required to
reassign female employees, contrary to Title VII and the EEOC con-
ciliation agreement. The company then sought an injunction "to
preclude the union from utilizing the clauses of the collective

bargaining agreement upon which it relies in initiating and process-

ing the instant grievances."^"^ Citing Alexander, the court stated the

following:

The court is of the opinion that no useful purpose would be
served by requiring arbitration of the grievances filed by

the union members. Since the arbitrator should not and

could not go beyond the bounds of the collective bargaining

agreement in resolving the dispute before him, he or she

would be unable to consider the effect of Title VII upon the

relative rights of the parties. "[T]he arbitrator has authority

to resolve only questions of contractual rights. . . ." Arbitra-

tion under these conditions would be futile and pointless.^"*

The decision in Southbridge is unfortunate and probably incor-
rect. It is doubtful that the Alexander decision stands for the propo-

sition that federal courts should grant such injunctive relief merely

b. In the event that it becomes necessary for [Southbridge] to lay off

employees who are in effect at the Corinth facility and said layoff will
result in females being laid off if the applicable provisions of the collec-

tive bargaining agreement were utilized in a greater percentage than

they constitute of the bargaining unit, the following procedure will be

utilized:

(1) Female employees will be laid off in direct proportion to the

percentage which they make up of a bargaining unit covered by a collec-
tive bargaining agreement. For example, if in a bargaining unit covered

by a collective bargaining agreement which has four hundred (400)

members of which three hundred (300) are male and one hundred (100)
females who have less plant seniority than the males, [Southbridge]
decides to lay off one hundred (100) employees, then since females con-

stitute 25 percent of the bargaining unit, twenty-five (25) females in

order of their seniority will be laid off.

(2) In no event will any female employee be laid off by utilization

of the foregoing procedure if she would not have been laid off if the ap-

plicable contract provisions were utilized. For example, if [Southbridge]

were to lay off one hundred (100) employees in accordance with the

terms of the applicable collective bargaining agreement and only ten (10)

females would be laid off, then only ten (10) females will be laid off.

Id. at 1185-86.

'"'Id at 1185.

'"/d. at 1188 (citations omitted) (emphasis added).



924 INDIANA LAWREVIEW [Vol. 10:899

because the court feels that an arbitrator should not and would not
consider the effect of Title VII upon the relative rights of the par-
ties. Alexander contemplates that the parties may resolve Title VII-
type disputes in the grievance and arbitration procedures."^ In

Southbridge, the court felt that "no useful purpose would be served

by requiring arbitration.""' Arbitration of the dispute in this case

may have served no useful purpose, but this is not to assert that ar-
bitration could not have served a useful purpose. The arbitrator
could well have adopted Howlett's theory"^ that the agreement "in-
corporates the law" and then rendered a decision consistent with Ti-

tle VII. In addition, the conciliation agreement would not have

precluded such a result. A conciliation agreement "is nothing more
than a contractual settlement of a dispute prior to filing of suit, and,

as such, is to be analyzed according to the general contract law prin-

ciples of federal law.""* Furthermore, the agreement may be more
exacting than Title VII by requiring the parties to the agreement to
engage in a course of action not otherwise required by Title VII."*
In Southbridge, the union was not a party to the conciliation settle-
ment and was therefore not affected by any "deals" the employer
struck with the EEOC. The Company effectively bound itself to two
agreements, one with the union, and another with the EEOC. With
respect to the rights of the parties under the collective bargaining

agreement, the conciliation agreement was a nullity. If, in fact, the
seniority provisions of the collective bargaining agreement were in

conflict with Title VII, a determination to this effect could have

been made independently of the conciliation agreement. Moreover,
an arbitrator may well have made this determination under the col-
lective bargaining agreement so as to render a decision consistent

with Title VII. The Southbridge solution of denying the union access
to arbitration encourages employers to attempt to extricate them-

selves from the unenviable dilemma of defending actions in two
forums, a solution arguably neither warranted nor contemplated by
Alexander.

^'«'415 U.S. at 55.

'°m3 F. Supp. at 1188.
^"Hewlett, The Arbitrator, the NLRB, and the Courts, note 29 supra. See notes

39-44 supra and accompanying text.

'"'EEOC V. Mississippi Baptist Hosp., 12 Fair Empl. Prac. Cas. 411, 412 (S.D. Miss.

1976).

"^See, e.g., Jersey Cent. Power & Light Co. v. Local 327, IBEW, 508 F.2d 687 (3d
Cir. 1975), where the conciliation in effect required the company to establish a five-
year affirmative action program designed to increase the percentage of minority group

and female employees. In addition, it provided for reporting, modification of the mater-

nity leave policies, and certain payments by the company to employees and others for
past discriminatory practices. Id. at 695.



1977] LABOR ARBITRA TOR A UTHORITY 925

Bridgeton Education Association v. Board of Education^^^ was

decided subsequently to Alexander and dealt with the issue of ar-

bitral authority to decide statutory issues. In Bridgeton, the

teachers' association filed grievances when the Board of Education
unilaterally changed the requirements that special education

teachers would have to satisfy in order to continue receiving extra

pay of $400. Following the grievance procedure in the contract, the

association processed the grievance through four steps, but the final

determination was adverse to the teachers. Rather than proceeding

to arbitration, the association filed suit claiming that such a policy

change is a working condition which must be negotiated under state
law. The Board of Education argued that the elimination of extra com-

pensation was merely a "policy decision," and, as such, the grievance
procedure was the proper method for resolving the dispute under New
Jersey law; since the association had already chosen the grievance pro-

cedure, it was foreclosed from filing suit due to estoppel, laches, and
failure to exhaust administrative remedies."^

In holding for the teachers, the court identified the issue to be

whether the association was foreclosed from instituting the suit
because it had previously elected to file a grievance.^^^ The court
stated that it was "uniquely a court's function to rule on alleged
violations of statutes."^^^ "The grievance procedure does not and can-
not decide if a statute has been violated. That question is for the
court, and the fact that an act may constitute a grievance does not
foreclose a court from deciding if the same act also violates a
statute."'^'

The New Jersey court was correct in stating that the grievance
does not and cannot decide if a statute has been violated. Recogniz-

ing that this case did not involve a violation of Title VII, the New
Jersey court cited Justice Powell's language in Alexander: "[T]he

distinctively separate nature of . . . contractual and statutory rights

is not vitiated merely because both were violated as a result of the
same factual occurrence."^^^ But, as in Southbridge, the grievance
procedure could have resolved the dispute and the resolution may
well have been consistent with the statute. Arguably, the court had

a more narrow alternative available in Bridgeton. Pursuant to the
policy of the National Labor Relations Board, the court could have

deferred to the arbitrator's expertise in resolving the grievance

"°132 N.J. Super. 554, 334 A.2d 376 (Super. Ct. 1975).

'"M at 557, 334 A.2d at 378.
'''Id.

'''Id

'"Id,

'''Id. (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 50 (1974)).



926 INDIANA LAWREVIEW [Vol. 10:899

dispute while still retaining jurisdiction to the Title VII suit. If the

arbitral resolution was contrary to, or inconsistent with the statute,
the court could have amended or vacated the award. Such an alter-
native would have accommodated the arbitral forum while at the
same time preserving the statutory rights of the parties.

Goodyear Tire & Rubber Co. v. Rubber Workers Local 200,^^^
decided subsequently to Alexander, involved arbitral authority and

Title Vll-type issues. Goodyear filed an action in state court seeking
to vacate an arbitrator's award granted pursuant to the terms of the
collective bargaining agreement. The company and the union were
parties to two agreements, a collective bargaining agreement and a
pension agreement. The union challenged provisions in each agree-
ment, applying different standards to maternity disability from

those applied to other forms of disability caused by illness or in-

jury."^ The dispute was submitted to arbitration as provided for in
the grievance procedure of both agreements and the arbitrator sus-

tained the grievance with regard to the payment of disability
benefits under the pension agreement. No case for a denial of
disability leave or extension was presented under the collective
bargaining agreement. The company argued that the arbitrator had
exceeded his powers in that he made an error in law by determining
that the EEOC guidelines"® were federal regulations. The pension
agreement in effect at the time of the dispute contained a clause

which provided that "the provisions [of the agreement] may be ap-
propriately modified where necessitated by federal or state statute
or regulation.""^ The arbitrator held that the guidelines had become
a part of the Code of Federal Regulations, and, accordingly, con-

stituted a federal regulation within the meaning of the pension

agreement.^^"

The Ohio Supreme Court refused to vacate the award. The court
stated that the company was correct in asserting that the EEOC
guideline cited was not a federal regulation, but rather an admini-

"M2 Ohio St. 2d 516, 330 N.E.2d 703 (1975).
"^The collective bargaining agreement provided for temporary disability leave for

the period of any illness, but limited pregnancy leave to four months after the birth of

the child. The pension agreement provided for the payment of disability benefits for a
maximum of 52 weeks for all disabilities due to any one pregnancy. Id. at 517, 330
N.E.2d at 705.

"'The specific guideline concerning employment policies relating to pregnancy and

childbirth, 29 C.F.R. § 1604.10(b) (1976), essentially provides that disabilities caused or

contributed by pregnancy or related conditions must be treated in the same manner as

other temporary disabilities for purposes of benefits, privileges, and leave.

"'Goodyear Tire & Rubber Co. v. Rubber Workers Local 200, 42 Ohio St. 2d at
519, 330 N.E.2d at 706.

'''Id. at 520-21, 330 N.E.2d at 707.



1977] LABOR ARBITRATOR A UTHORITY 927

strative determination of the meaning of Title VII promulgated by

the EEOC/^' In addition, the decision of the arbitrator was held to

be ambiguous.

It could mean either that the arbitrator, believed the Guide-
line to be binding, or that he interpreted the term "regula-

tion," as used in the contract, to include an administrative

Guideline such as this one, which was published in the Code

of Federal Regulations and was an administrative interpreta-
tion of a federal statute.

^^^

Nevertheless, the court, citing Enterprise Wheel, stated that "[a]

mere ambiguity in the opinion . . . which permits the inference that

the arbitrator may have exceeded his authority, is not a reason for
refusing to enforce the award."^^^

It is interesting to contrast the decision by the Ohio Supreme
Court with that of the federal court in Southbridge. In Southhridge,

the arbitrator was never afforded the opportunity to resolve the
dispute under the collective bargaining agreement. Rather, the

federal court ruled that "no useful purpose could be served by re-

quiring arbitration" since the arbitrator could not and should not

consider the effect of Title VII on the rights of the parties. Had the
facts of Goodyear been before the Southbridge court, the decision

may have gone the other way. The federal court may have reasoned
that since the EEOC guidelines are not federal regulations, the ar-
bitrator could not consider the effects of Title VII with respect to

the disputed contractual provisions. Concededly, the contract in

Goodyear made it easier for the arbitrator to render a decision
based on the agreement which would be consistent with Title VII.

Unlike the contract in Southbridge,^^* the Goodyear agreement con-
tained an explicit provision which effectively allowed the arbitrator

to appropriately modify the agreement where necessitated by
federal or state statute or regulation.^^^ But again, the arbitrator

could have concluded that the contract in Southbridge did "incorpor-

ate the law," based on a Howlett-type theory, and thereby rendered

a decision consistent with Title VII.

V. Conclusion

The main infirmity in applying the law to resolve Title Vll-type
grievances is neither that arbitrators, as a class, are incompetent,

'"Id.

'""Id

'''Id. at 522. 330 N.E.2d at 707.

^"See note 102 supra.

'"42 Ohio St. 2d at 520. 330 N.E.2d at 706.



928 INDIANA LAWREVIEW [Vol. 10:899

nor that the entire discrimination area is so complex that ar-
bitrators could not acquire the necessary expertise to resolve the

case consistently with Title VII or other relevant statutes/^^ Rather,

the infirmity lies in clothing the arbitrator's decision with a greater

degree of finality than that of a federal court, which is the effective

result when an individual is precluded from commencing a Title VII
action because he first resorted to the arbitral forum. In light of the

paramount national policy of eliminating employment discrimination,
it is desirable to protect an individual from an erroneous decision by
allowing an effective appeal from an arbitral decision when Title VII
rights are at issue; such is the state of the law after Alexander.

Alexander mandates that the courts grant a statutory remedy in
addition to, and not as a substitute for, any contractual remedy
granted by an arbitrator. As indicated earlier,^" the courts in South-
bridge and Bridgeton effectively granted statutory relief as a
substitute for arbitration. Therefore, the result in the Goodyear
decision is arguably more consistent with the tenor of Alexander;
that is, although the arbitrator has the authority to resolve only

questions of contractual rights, the arbitrator's decision pursuant to

the collective bargaining contract may also afford the parties a solu-
tion to an industrial dispute which is consistent with Title VII.

Indeed, there are compelling policy reasons for providing the ar-

bitral forum with the opportunity to resolve Title Vll-type griev-

ances, notwithstanding the absence of finality under Alexander.

While Alexander made it clear that an arbitrator's decision does not
preclude an employee from subsequently filing a Title VII action in

federal court, it nevertheless sanctioned the grievance and arbitra-

tion mechanism as a relatively inexpensive and expeditious means
for resolving a wide range of disputes, including claims of discrimi-

natory employment practices. ^^* This would especially be true when

^^There is a tacit assumption throughout the discussion in this Article, and the

discussion in Alexander with respect to the competence or expertise of labor ar-

bitrators. The assumption is that an arbitrator who lacks expertise in the Title VII

area will do better to ignore the legal issues, rather than attempt to decide the issue,

hoping to resolve the dispute consistently with Title VII, notwithstanding the lack of

expertise; or attempt to educate himself with respect to Title VII and then make the

decision, again hoping to resolve the grievance in accordance with the law. Perhaps

the main focus should be on the parties that control the arbitration process. The union

and employer may in fact not want to settle the legal issue and that is why they are in

arbitration, not in a court of law. In cases where the parties are in arbitration because

they prefer a settlement rather than employee rights under Title VII, the decision in

Alexander not to preclude an individual from initiating a suit in federal court subse-

quent to an arbitral hearing appears all the more correct.

'"See notes 101-15 supra.

•^"415 U.S. at 55.



1977] LABOR ARBITRATOR AUTHORITY 929

\ the agreement contains a nondiscrimination provision similar to that

of Title YIV
Considering the expense and time necessary to process a Title

Vll-type grievance, use of the arbitral forum would relieve the
^ EEOC and the federal courts of a large backlog.^^" Initial resort to
the arbitral forum would further the use of the arbitral process,

while relieving the administrative and judicial machinery of cases

which could be settled at the grievance or arbitration level. Having

employees submit all grievances under the grievance procedure —

a

procedure negotiated, maintained, and administered by the union —
would also tend to minimize any possible disruptive influences

resulting from first resorting to "outsiders" for assistance, while

enhancing the status of the union as the exclusive bargaining

representative. The arbitral forum also provides a means of satisfy-
ing the common desire of both labor and management to avoid the
adverse publicity of a Title VII suit.

The arbitration procedure itself may even be of therapeutic
value to the individual employee in the broader context of demo-
cratic self-government in grievance matters. Both parties in an ar-
bitration have the opportunity to select the individual who may
ultimately be the final arbiter of the dispute. By selecting an ar-
bitrator who is acquainted with the industrial setting, the resulting
decision will more likely measure up to the expectations of the par-
ties.''^

In view of the aforementioned advantages of the arbitral forum,

it becomes crucial to maintain such a forum as a viable institution

^**In Emporium Capwell Co. v. Western Addition Community Organization, 420

U.S. 50 (1975), a post-Alexander decision, the Court again voiced its approval of the

grievance mechanism for the possible resolution of Title VII claims. The Court stated:

"The collective-bargaining agreement involved here prohibited without qualification all

manner of invidious discrimination and made any claimed violation a grievable issue.

The grievance procedure is directed precisely at determining whether discrimination

has occurred." 420 U.S. at 66. In this particular case, that orderly determination could

resolve a "pattern or practice" of discrimination. Id. at 66-67.

^**For example, in fiscal year 1974 the EEOC received 56,000 new charges; mean-
while, 78,000 investigations were in process. 9 EEOC Ann. Rep. 47 (1974). The total
budget for the EEOC during this period was 44.5 million, /d. at 29.

^^'When discrimination is at issue, the question arises over how to select the ar-
bitrator and how to conduct the hearing so as to insure that all the facts and issues are
presented in a manner which adequately addresses the discrimination issue. A common
criticism of arbitration is that the grievant generally has no say in selecting the ar-

bitrator and no effective role in conducting the hearing. See Brodie, Antidiscrimina-

tion Clauses and Grievance Processes, 25 Lab. L.J. 352 (1974); Bloch, Race Discrimina-

tion in Industry and the Grievance Process, 21 Lab. L.J. 627 (1970). The argument that

it may be unrealistic to trust the arbitration process to resolve Title VII disputes
when the process is written, designed, and controlled by the parties may have much



930 INDIANA LAWREVIEW [Vol. 10:899

for the resolution of civil rights disputes. The opposite tendency
could well result by an overextension of Alexander. The mere possi-
bility that an arbitral award will not be in accord with the mandates

of Title VII, either because the arbitrator fails to "look to the law

for help" in resolving a contractual dispute, or because the ar-

bitrator incorporates an incorrect interpretation of Title VII in his

award, should not preclude access to the arbitral forum. Courts

should not grant statutory relief as a substitute for contractual

remedies. To do so would effectively displace an individual's con-
tract rights with those of a statute, a result not warranted or even

contemplated by Alexander.

merit, especially if the individual is simultaneously charging the union and the

employer with acts of discrimination. See, e.g., Robinson v. Lorillard Corp., 444 F.2d

791 (4th Cir. 1971); Local 189, United Papermakers v. United States, 416 F.2d 980 (5th

Cir. 1969).

A partial solution to the potential conflict-of-interest problem is to allow grievants
to appear with their own counsel at the arbitration hearing. However, in absence of
clear evidence that the grievant will not be fairly represented by the union, he or she

will generally not be permitted to retain outside counsel to prosecute a claim. In addi-

tion, outside civil-rights or other interest groups will not be allowed any third-party in-

tervention rights to submit grievances, or to represent employees in arbitration who
are covered by a contract and represented by a union. Even if the individual is provided
the option to be represented by his or her own attorney in an arbitration hearing, this
option may be of doubtful effectiveness if the individual is urging an interpretation of
the collective bargaining agreement which differs from that of the parties who
negotiated the contract, or if the individual is attacking the provisions of the agree-

ment as being "unjust" or "improvidently negotiated." In addition, Meltzer has noted

that the grievant who exercises that option would in effect be expressing his distruct
of union representation whose good will might be important in preparing the case.

Meltzer, Labor Arbitration and Overlapping and Conflicting Remedies for Employ-

ment Discrimination^ 39 U. Chi. L. Rev. 30, 45 (1971).