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TheArbitrationofDiscriminationGrievancesintheAftermathofGardner-Denver:ALaborManagementPerspective

ArticleinJournalofInternationalArbitration·January1984

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M R hele I loyman is assistant professor in theDepartment of Political Science at the Univer-sity of Missouri-St. Louis. Lamont f. Stallworthis associate professor in the Institute of Indus-trial Relations at ioyola University of Chi-cago. He is also an arbitrator.

The Arbitration of DiscriminationGrievances in the Aftermath of

Gardner-DenverMICHELE HOYMAN AND LAMONT E. STALLWORTH

The Supreme Court has recentlyreaffirmed its earlier rationale inAlexander v. Gardner-Denver Co.(1974) and the broader issue of thebalancing of the enforcement offederal statutory rights and nationalpolicy favoring arbitration. An anal-ysis of the views of labor law attor-neys concerning Gardner-Denverand other related issues is thereforevery timely.

Based on a national survey of at-torneys who represent labor organi-zations and management, the au-thors conclude that the majority ofthe responding attorneys do notagree with the Supreme Court's de-cision in Gardner-Denver. The au-thors further conclude that the re-spondents in the study wouldsupport either a modification ofGardner-Denver or a change inTitle VII that would afford a claim-ant a right to an election of reme-dies and not "two bites of the ap-ple."

one of the most significant courtcases concerning labor arbitrationlaw was the Supreme Court's deci-sion in Alexander V. Gardner-Denver(1974).̂ In that case, the Court heldthat a grievant who had lost a griev-ance alleging race discrimination inarbitration was not precluded fromsubsequently seeking recourse underTitle VII of the Civil Rights Act of T964,as amended.^ This decision reversedthe final and binding effect of an arbi-tral award where Title VII rights areinvolved. Gardner-Denver left the

' 415 U.S. 36, 7 FEP Cases 81 (1974).

- Section 7(M(a) oi thf̂ act provides:

"It shall be an unlawful employment practice foran employer to discriminate againsi any of hisemployees or applicants for employment, for anemployment jgency, or joint labor-manaf^emenlcommittee controlling apprenticeship or othertraining or retraining, including on-the-job train-irig programs, to discriminate against any indi-vidual, or for a labor organization to discrimi-nate against any member thereof or applicantfor membership, because he has opposed anypractice made an unlawful employment practiceby the subchapter, or because he has made acharge, testified, assisted, or participated in anymanner in an investigation, proceeding or hear-ing under this subchapter."

For the purpose of this study, a Title Vll-relatedgrievance is a grievance that alleges discrimina-tion based upon race, sex, national origin, color,or religion.

door open for the relitigation of anarbitral award in the trial courts.

There have been a number ofempirical examinations of the effectof tbis and related Supreme Courtcases.^ This article is particularlytimely in light of the Court's recentdecision reaffirming the Gardner-Denver rationale.'' The views of attor-neys who represent either labor orga-nizations or employers concerningthe Supreme Court's major holding inGardner-Denver and other policy is-sues are considered. In addition, thearticle examines whether experiencewith review or reversal"' of an arbitral

' Since Gardner-Denver, the Supreme Court hasalso held that the prior submission of a griev-ance to arbitration does not preclude subse-quent recourse under the Fair Labor StandardsAct. See Barrentine e( al. v. Arkansas-BestFreight System, Inc., 450 U.S 67L.Ed.2d M l ,101 S.Ct. 1437 (1981).

' See "Justices Fiold Arbitration No Bar lo CivilRights Claim" and "Court Rules That TrusteesNeed Not Arbitrate [ERISAI Dispute," Daily La-bor Report No. 76 (April 19, 1984), reporting oncourt of appeals cases Robbins v. Prosser's Mov-ing and Storage Co., 700 F.2d 433 (1983) and Mc-Donald V. City of West Branch, Michigan, CA6No. 83-219 (April 19, 1983).

•̂ For the purpose of this study, the terms fewew,relitigation. and reversal are applied as follows:Review is used to indicate the reinvestigation ofthe claim of discrimination either by the EEOC

DISCRIMINATION GRIEVANCES 49

award by the EEOC or the trial courthas an effect on their attitudes towardcertain labor relations policies. It wascontemplated that because these in-dividuals had actually experiencedthe practical effect of Gardner-Den-ver, their opinions or attitudes woulddiffer from those who did not havesuch an experience. Participants inthe survey were also asked abouttbeir attitudes toward a proposedstatutory cbange in Title VII.'' Tbis

or by a state antidiscrimination agency. Relitiga-tion is used to indicate the act of submiltinji thesame claim of discrimination to the trial courtsfor determination. Reversal is used to indicate asituation in which there is a conflict of results ordeterminations between either the trial courtand an administrative agency and the determina-tion by the arbitrator, li was hypothesized Ihat ifan attorney were to have an arbitral award re-viewed, relitigated, or reversed, this would in-fluence his or her opinion about certain issuesrelated to Gardner-Denver and the arbitration ofdiscrimination fjrievances.

^ The question on the statutory amendment was"To what extent do you either support or op-pose a statutory amendment to Title VII prohibit-ing an individual claimant-employee who has

"This article isparticularly timely

in light of theCourt's recent

decisionreaffirming theGardner-Denver

rationale."

proposed statutory change wouldlimit tbe individual's future Title VII-related cause of action wbere tbe in-dividual bad "knowingly and volun-tarily" allowed bis or ber individualgrievance to be decided in arbitra-tion.

BACKGROUND

As early as World War II, laborarbitration was used as a mecbanismto resolve Industrial disputes/ A pol-

'knowingly and volunlarily' allowed his or herindividual discrimination grievance to be de-cided in arbitration from also having the statu-tory right to file subsequently or concurrently aclaim with the fctOC or filing a suit in federalcourt concerning the same factual claim of dis-crimination?"

' See U.S. National War Labor Board, The Termi-nation Report of the National War Labor Board(Washington, D.C: G.P.O.. 1947). See, also,Edwin Witte, "Wartime Handling of Labor Dis-putes," Harvard Business Review 25 (1947): 169-189. For an extensive analysis of discriminationsince WoHd War II, see Lamont E. Stallwortb,"The Arbitration of Discrimination Grievances:An Examination Into the Treatment of Sex and

THE ARBITRATION JOURNAL, SEPTEMBER 1SM, Vol . SS, No. .i

icy favoring voluntary private disputesettlement mechanisms was adoptedby Congress in its enactment of theNational Labor Relations Act of 1935(the Wagner Act). The SupremeCourt's landmark decisions in 1960,the Sleelworkers' Trilogy," further un-derscored the favored use of arbitra-tion as a matter of national labor pol-icy. The Trilogy was particularlysignificant because it established,among other things, the final andbinding effect of an arbitral award.

This was the status of labor arbi-tration until the enactment of TitleVII. Title VII brought about a conflictbetween federal labor policy, whichemphasized the private resolution ofindustrial disputes through grievancearbitration, and the national policy,which attempted to eliminate em-ployment discrimination through theexercise of individual statutory rights.The threshold issue that arose as aresult of Title VII was whether theprior submission of a grievance to ar-bitration precluded the individualfrom subsequently or concurrentlyseeking recourse under Title VII. Or,posed in more figurative terms, doesthe individual have "two bites of theapple?'"^

The Court addressed this issue inAlexander v. Gardner-Denver. TheCourt maintained that tbe individualgrievant should not be deprived ofhis or her statutory rights under TitleVII in favor of contractual rights.Thus, the antidiscrimination policy ar-ticulated in Title VII was seen as su-

Kac:£!-Rased Discrimination Grievances by Arbi-trators Since World War I I " (unpublished Ph.D-dissertation, New York State School of Industrialand Labor Relations, C^ornell University, Ithaca,N.Y., 19801.

" United Steelworkers v. American Manufactur-ing Co., 363 U.S. 564 (1960); United Steelvi-ork-ers V. Warrior & Culf Navigation Co., 363 U.S.S74 (1960); and United Steelworkers v. Enter-prise Wheel & Car Corp., 363 U.S. 593 (1960).See, also, Textile Workers v. Lincoln Mills <if Ala-bama, 77 S-Ct. 912 (1957), Prior to tbe Steelwork-ers' Trilogy, tbe courts did not take such a fa-vorable view toward arbitration. See, forexample. International Association of Machin-ists V. Cutler-Hammer Int., 271 App. Div. 197, 67N.Y.S.2d 317 (1st Dep't 1947). The Cutler-Hum-mer doctnne has since been repudiated by statu-tory amendment. See N.Y. Civ. Prac. Law § 7!J0111963).

•* One commentator has aptly referred to theGardner-Denver holding as "rightfully permit-ting the grievant one bite a) two different ap-ples."

perseding the national policy favoringthe resolution of employment-relateddisputes through grievance arbitra-tion.

Although Gardner-Denver raisedquestions concerning the future util-ity of arbitration where statutory-re-lated grievances are involved,'" itshould be noted that the courts stillfavor the resolution of discriminationclaims without resort to litigation."On this score, the Court set forth infootnote 21 the factors tbat might be

'" See, for example!, Bonnie L. Sibor, "Th(! Ciard-n{!r-Denver Decision; Does It Put Arbitration ina Bind?" Labor Ldw journal (November 1974):708-717. See, also, David E. Feller, "Arbitration:The Days of Us Clory Are Numbered," IndustrialRelationi. Law lournal 2 (Spring 1977): 97-130.Cf. Arthur Stark, "The Presidential Address;Tbeme and Adaptations," in lames L. Stern andBarbara D. Dennis, eds.. Truth, Lie Dctccton,and Othi^r Procedures in labor Arbitration, Pro-ceedings of the Thirty-first Annual Meeting ofthe National Academy of Arbitrators (Wasbing-ton, D.C.: Bureau of National Affairs, 1979), pp.1-29,

" See, for example. United States v. AllegbenyLudlum Industries, Inc., 517 F.2d 826 al 858 (CA51975); Lyght v. Ford Motor C*]., 4S8 F.Supp. 137(F.D. Mich. 1978), rev'd. 54 Daily Labor Report A-8 (CA6 1981). See, also, Strozier v. Ceneral Mo-tors Corp., 422 F.Supp. 475 {N.D. Ga. 1977);C.h\ci Justice Warren F. Burger, "Isn'l There aBetter Way?" Annual Report on the State of tbeJudiciary at tbe Midyear Meeting of tbe Ameri-can Bar Association, Chicago, Illinois, lanuary24, 1982; and "fudge Edwards Defends Usr o*Arbitration as Better Means to Settle Labor Dis-putes," Daily Labor Report No. 107 (June 3,1982), pp- A-1 to A-2 and D-1 to D-S.

considered in determining the de-gree of evidentiary weight that maybe accorded an arbitral award by thetrial courts.'^ There is little known,however, about either the effect ofthe Court's decision or what has beenthe experience with arbitrating dis-crimination claims following Gardner-Denver, That lack of information iswhat this study attempts to rectify.

METHODOLOGY

The data for this study were col-lected during the spring and summerof 1981. The authors conducted a sur-

'•' The Court, ralher than "sounding the deathknell for arbitration," set forth the possible evi-dentiary weight whit h might be accorded by tbetrial courts to a relitigated Title Vll-related arbi-tral award. This is set forth in footnote 21:

". , . Relevant factors include the existence ofprovisions in tbe collective bargaining agree-ment that conform substantially with Title VII,the degree of procedural tairness in the arbitralform, adequacy of the rn( ord witb respect to theissue of discrimination, and the special compe-tence of particular consideration to an employ-ee's Title VII rights, a court may properly accord\\ great weight. This is specially (rue where theissue is solely one of fact, specifically addressedby tbe parties and decided by the arbitrator onthe basis of an adequate record. But (ourtsshould ever be mindful that Congress, in enact-ing Tide VII, thought it necessary to provide ajudicial forum for the ultimate resolution of dis-criminatory employment claims. It is the duty ofcourts lo assure its full availability of this fo-rum." (Id. at 90.)

vey of attorneys who typically repre-sent either management or labor ingrievance arbitration. The survey in-strument was sent to a random sam-ple of persons who were listed asmembers of the Labor and Employ-ment Law Section of the American BarAssociation. The survey was also sentto attorneys who were employed di-rectly by international unions." At-torneys for the parties were surveyed,rather than the parties themselves,because of anticipated difficulties incontacting the appropriate labor andmanagement representatives in spe-cific cases. It was also thought thatlabor relations attorneys were bestqualified to answer general questionson the subject of judicial review.

The overall response rate for thesample was 33.2 percent of the com-pleted surveys; two could not beused. Therefore, the total number ofcompleted surveys was 659. Therewere 791 cases reported by thesurveyed atlorneys involving discrim-ination grievances that were rein-vestigated by a slate or federalantidiscrimination agency or reMtiga-ted in the federal district court.^'' Thesurveyed attorneys were asked to re-late their responses to their postGardner-Denver experience in arbi-trating discrimination grievances (thatis, subsequent to February 24, 1974).Because of the national scope of the

" Specifically, respondents' names were drawnfrom the official mailing list for Ihe labor andEmployment Law Section of the American BarAssociation and from the Natianal Directory ofLabor Organizations' Wst oi "in-house" union at-torneys. The majority of the respondents (67.5perteni) represenfed management—a lolai of445 individuals. The 101 union representativesaccounted for 15.J percent. The remaining re-spondents included attorneys who represent in-dividual plaintiffs in discrimination suits, EEOCor slate antidiscrimination commission attor-neys, National Labor Relations Board or state la-bor relations attorneys, law professors, and part-time and full-time arbitrators. Because there aremore attorneys who represent management, theauthors made an attempt to counter this fact byalso surveying labor union attorneys who werelisted in the National Directory of Labor Organi-zations.

'* These are not 791 unique cases, since it is pos-sible for the same case to be reviewed by tfieEEOC and by the courts. The number of casesreported under review by the EEOC is 4fi4 andthe number reported under review by the courtsis 307. Many of these are probably the samecase. If that is true, the figure 791 suggests amuch higher amount of activity than is actuallypresent, based on the number of unique cases.

mailing list, the survey responses re-flect the responding attorneys' expe-rience with the EEOC and the variousstate antidiscrimination agencies andstate and federal courts throughoutthe United States.

Of the 659 respondents, themajority (67.5 percent) representedmanagement, for a total of 445 in-dividuals. One hundred and onerespondents (15.3 percent) repre-sented unions. The remainder repre-sented neither labor nor manage-ment; tberefore, they were placed inthe category of "other."^^ Tbere were

"Examining thenumber of

reversals by theEEOC out of aUcases, it can be

seen that 77 of atotal of the 1,761cases are reversed

(4.4 percent)."

'•• The mailing list acquired from the ABA con-tains the names of individuals u-lio serve in vari-ous capacities and oct upations. The distributionof the respondents by occupation was

Represent ManagementRepresent LaborRepresenf Individual PlaintiffsEEOC AttorneysNLRB AttorneysLaw ProfessorsProfessors and Labor ArbitratorsFull-time ArbitratorsJudgesRetired from LawOther

445101

107

20

4831

49

68.115.51.51.13.1

.8

.61.2

.5,2

7.5

approximately four times as manymanagement attorneys than laborunion attorneys responding to thestudy. Tbis reflects tbe fact that thereare considerably more attorneys rep-resenting management than labor or-ganizations.'^'

AREAS OF INQUIRY

The questionnaire was a ten-pagesurvey with primarily close-endeditems. Tbe questions included itemsconcerning the views of tbe respon-dents on their experience followingthe Gardner-Denver decision'^ andon a proposed statutory provision re-quiring the election of remedies.There were also items about changesin the grievance and arbitration pro-cedure that have occurred and themost common types of discriminationclaims heard in arbitration {for exam-ple, individual factual claims versusclaims raising legal issues).'" Respon-

653 100.0Missing = 6 cases

^^ For an explanation concerning the greaternumber of management attorneys than union at-torneys responding to the study, see supra fn.13.

'•" Although not discussed in this article, the au-thors also inquired about the respondents'agreement with the Supreme Court's decision inBarrentine v. Arkansas-Best Freight System, Inc.,4S0 U.S 67 L.Ed.2d 641,101 S.Ct. 1437 (1981).

'" An example of an individual factual claim ofdiscrimination would be "Was Harrel Alexander

52 THE ARBITRATION JOURNAL, SEPTEMBER 1984, Vol. 39, No. 3

dents were also asked about the num-ber of cases relitigated and the fre-quency with which these relitigatedcases were reversed by either the trialcourt or the EEOC. There were addi-tional items on the characteristics ofthe respondent, for example, amountof experience in the practice of laborand employment law.

FINDINGS AND DISCUSSION:TYPES OF COMPLAINTS

Respondents reported a total of1,761 discrimination cases. As wouldbe expected, the vast majority in-volved factual claims. Specifically,there were 1,481 (84.0 percent) factualclaims of discrimination. There were117 cases (6.6 percent) involving thealleged illegality of contract provi-sions. There were 111 cases (6.3 per-cent) that were reverse discrimination

discharged (or unlawful discriminatory rea-sons?" An example oi a legal claim of discrimina-tion would be "Is, [t unlawful to exclude preg-nancy-related illness from contractual sick leaveprovisions?" (See, for example. General ElectricV. Gilbert, 429 U.S. f25 (19761.)

"For the courts,the number of

reversals out of alldiscrimination

cases is 21 out of1,761 or 1.2

percent."

cases.^^There were 189 cases (a full 10percent of the sample) that were classaction claims. A case could be classi-fied as having two different character-istics (for example, a class action andillegality of contract claim).-" This ac-counts for the fact that the above per-centages total more than 100 percent.

The number of reverse discrimi-

''' Under Title VII. whit«? males are also protectedagainst discrimination or preferential treatment.See, for example, McDonald v. Santa Fe TrailTransportation Co., 423 U.S. 92i, 12 FEP Cases1577 (19761 and Alfred Blumrosen, "Strangers NoMort^: All Workers Are tntitled to |us.t Cause,"Industrial Relations Law lournal 2 (19781: 519-.566. For a discussion of class action suits underTitle VII and Rule 23 of the Federal Rules of CivilProcedure, see Schlei and Grossman, "Chapter34 Class Actions," in Employment Discrimina-tion Law (Washington, D.C.: Bureau of NationalAffairs, 19831, pp. 714-740.

"' The sum of all these tatejjories is 1,898. This isin response to a series of questioris asking thetypes of claims that are filed. It is possible forone case to involve two types of discrimination.A case could be a factual case and involve re-verse discrimination, (or example. The numberof unique discrimination cases—as indicated byanother question that asked how many differentdiscrimination cases respondenis had han-dled—is 1,761.

nation cases (6.3 percent) is higherthan what one would expect, giventhat the original Intention of the CivilRights Act of 1964 was to end discrimi-nation against blacks, not againstwhites. This reflects how knowledge-able employees are about theirrights. The number of illegality ofcontract provision cases is also veryhigh, given that many parties think ofthe role of the arbitrator only in termsof resolving disputes over contractlanguage, rather than of decidingstatutory issues.- '̂ Finally, it is impos-sible to assess the proportionateamount of activity that class actionclaims represent, that is, the actualnumber of claimants. Although theseclaims constitute 10 percent of thissample, they may represent a greateror lesser proportion of all activity,since a class action by definition rep-resents more than one case and theexact number it represents is un-known. In the aggregate of the 1,761discrimination cases, the arbitratorruled in favor of the claimant 270times.

REVIEW AND REVERSAL

Following Gardner-Denver, onemajor and immediate concern of la-bor and management was whether itwould lead to a massive number ofdiscrimination claims being reviewedby the EEOC and the courts.'^ Reviewin this study refers to the process ofsubmitting a discrimination grievancepreviously heard in the arbitral forumto either the EEOC, a state antidis-crimination agency, or the trialcourts.

Respondents were asked to indi-cate how many discrimination griev-ances they had handled sinceGardner-Denver. As the authors re-ported elsewhere, the total number

-' See Mictiele M. Hoyman and Lamont E.Stallworth, "Arbitrating Discriminalion Griev-ances in the Wake of Gardner-Denver," MonthlyLabor Review (October 1983): 3-9, in which theaulhors notod that 83 percent of the respon-dents reported that they favored, either condi-tionally or unLonditionally, the Meltzer schoolof thought. This school asserts Ihal the properrole of the arbitrator is to interpret and apply thelabor agreement and not the law.

•̂ See, for example, lay S. Siegel, "An End toMultiple Litigation of Non-Meritorious Title VIIDiscrimination Claims," Labor Law Journal 28(ApriM977): 195-199.

"The data suggestthat neither reviewnor reversal has a

significant eflFect onthe parties'

attitudes towardthe Gardner-

Denver decision,with the exception

of review by theEEOC."

of "unique" discrimination cases re-ported by the respondents was1,761.-^ With a total of 659 respon-dents, this results in an average of 2.6cases per respondent. Of these dis-crimination grievances, 484 or 27.4percent were reviewed by the EEOCor state antidiscrimination agencies.Thus, more than a quarter of thesecases were reviewed by administra-tive agencies.

There may be several reasons forthe great amount of review activity.One is that the perception of individ-uals may be that they have a higherprobability of succeeding in theirclaims through the EEOC rather thanthrough arbitration. The EEOC pro-vides a relatively inexpensive methodof redress compared to a court pro-ceeding. Also, the evidentiary stan-dard for establishing probable causerequired by the EEOC is less strictthan that required by the trial court.̂ "^

One of the troublesome aspectsof studying the effect of a public pol-icy is the problem of establishing thebase line from which to measure thechange. In other words, how muchreview activity could have been ex-pected without the change implied byGardner Denver? Prior to Gardner-Denver, it was possible to have somereview activity.^^ It was very little,however, because the courts were re-lying on the national labor policy fa-voring arbitration.^''

^' To determine the actual nunibtir of labor arbi-trations presented involving discrimination, thefollowing questions were asked: (1) "SinceGardner-Denver (1974), approximately howmany discrimination grievances have; you pre-sented in labor arbitration? (If none, fill in zeroand skip to Q. 17.]" (2) "In how many of thesediscrimination grievances did the arbitrator ac-lually find that the company and/or union wasguilty of discrimination?" See also Hoyman andStallworth, op. cit.

'•' See, generally, Arthur B. Smith, |r., CharlesCraven, and Leroy Clark, Employment Discrimi-nation Law (Indianapolis: Bobbs-Merrill, 1981).

'^'' The positions of the various courts of appealswere set forth in seven leading decisions: De-wey V. Reynolds Metal Co., 429 r.2d 324 (1970),aff'd. 402 U.S. 689 (19711; Hutchings v. U.S. In-dustries, 426 F.2d 303 (1970); Newman v. AvcoCorp., 451 F.2d 743 (1971); Spann v. KaywoodDiv. [oanna Western Mills, 446 F.2d 120 (1971);Rios V. Reynolds Metal Co.. 467 F.2d 541 (1972);Bowe V. Colgate Palmolive, 416 F.2d 711 (1969);and Oubichon v. North American RockwellCorp., 482 F.2d 324 (CA5 1970).

'̂' Supra in. 8.

54 THE ARBITRATION JOURNAL, SEPTEMBER 1984, Vol. 39, No. 3

A comparative analysis of courtand EEOC relitigation and review ac-tivity in the present study reveals thatthere is much less court relitigationactivity than administrative agency re-view activity. It is, however, still sub-stantial. Of the 1,761 cases, there are307 (17 percent) of the discriminationcases that have been relitigated bythe courts. This is a very high rate,given the substantial cost of relitiga-tion from the individual claimant'spoint of view.^'' Thus, fhe largeamount of review activity suggeststhat Gardner-Denver has had morethan just a procedural effect.

Seventy-seven of the 484 cases(15.9 percent) of the arbitral awardsthat were reviewed were reported tobe reversed by either the EEOC orstate antidiscrimination agencies.This suggests that there is approxi-mately a one-ouf-of-six chance that areviewed arbitral award will be re-versed by the EEOC. If the reversalsby fhe trial court are examined, thereis a much different picture. Of the 307Title Vll-related arbitral awards reliti-gated in the trial courts, only 21 (6.8percent) were reversed. This is a dra-matically smaller percentage of rever-sals than thaf found in EEOC or stateagency decisions.^"

A closer examination of the num-ber of reversals of all discriminationcases, rather than merely those re-viewed and relitigated, yields a muchmore modest figure and perhaps amore accurate estimate of the effectof the review process. Erom the pointof view of the litigants, the importantquestion is how frequently does re-versal occur out of all potential cases?For the purpose of this study, theterm potential case is used to de-scribe any Title Vll-related grievancearbitration that may be reviewed or

^•' There are other noneconomic costs involvedin deciding to file a charge or suit. See SandraGleason, "The Probability of Redress: SeekingExiernal Suppori." in Barbara Forisha and Bar-bara Goldman, eds.. Outsiders on the Inside:Women and Organizations (bnglewood Cliffs,N.I.: Prentice-Hall, 1981), in which Gleasonmakes tbe point that tbe cost of a female filingare quite high. These include the cost of lawyers'fees, time, stress, and the possibility of retalia-tion on Ibe job.

^ These results were first reported in Hoymanand Stallwortb, op. cit.

relitigated under Title VII, during theseven-year time period followingGardner-Denver (1974).

In this study, there were 1,761potential cases.•̂ '' Examining the num-ber of reversals by the EEOC out of allcases, it can be seen that 77 of a totalof the 1,761 cases are reversed (4.4percent). For the courts, the numberof reversals out of all discriminationcases is 21 out of 1,761 or ^ .2 percent.This finding paints quite a differentpicture. Depending on the forum towhich the grievant takes his or hercase, there is either a one-out-of-25chance for EEOC reversal or a one-out-of-100 chance of reversal by thecourts. In other words, there is only avery small chance of a single discrimi-nation case being reversed.

The data indicate that there is asubstantial amount of review activity.More than a quarter of all discrimina-tion arbitral awards were reviewed bythe EEOC.̂ " A very small fraction of alldiscrimination cases, however, arereversed. This study indicates thatonly one-out-of-100 cases are re-versed by the courts. Therefore, it isreasonable to conclude that the effectof Gardner Denver has been primarilyin the form of review and relitigation,rather than in reversals. Thus, the ef-fect of Gardner-Denver appears tohave more procedural significancethan practical or substantive signifi-cance, except where review activityimplies a substantive effect. For in-stance, the parties who anticipate thatthey may be reviewed may adoptsome of the protections for the indi-vidual grievant's rights as articulatedin Gardner-Denver."

-'' See supra fn. 23, regarding bow this numberwas determined.

•^ For an explanation of tbe terms review, reliti-galion, and reversal, see supra fn. 5.

" The Court set forth its concern in footnote 19.Tbe Court expressed furtber concern about tbeunion's exclusive control over the manner andextent lo which an individual grievance is pre-sented. See Vaca v. Sipes, 386 U.S. 171, 64 LRRM2369 (1967) and Republic Steel Co. v. Maddox,379 U.S. 650, S8 LRKM 2193 (1%5). In arbitration,as in collective bargaining, the interests of theindividual employee may be subordinated to tbecollective interests of all employees in the bar-gaining unit. See J.I. Case Co. v. Labor Board,321 U.S. 332, 14 LRRM 501 (1944). Moreover, bar-mony of interest between tbe union and the in-dividual employee cannot always be presumed,especially where a claim of racial discriminationis made. See, for example, Steele v. Louisville &

ATTITUDES TOWARDGARDNER-DENVER

There was not much popular sup-port for Gardner-Denver when it wasrendered. It is believed that this wasnot so much because of its legal rea-soning, but because of its practical ef-fect of eroding the final and bindingnature of arbitration. Consequently,it was argued that Gardner-Denverundermined the traditional notions ofindustrial self-regulation. In fact, thissurvey found that a substantial por-tion of attorneys oppose the Court'sholding in Gardner-Denver.

LABOR AND MANAGEMENTATTITUDINAL DIFFERENCES

An analysis of the data accordingto labor organization attorney rep-resentatives versus management at-torney representatives reveals sig-nificant labor and managementdifferences. Seventy-two percent ofthose attorneys who represent laboragree with Gardner-Denver, whereasonly 28.2 percent of the managementrepresentatives agree with Gardner-Denver.

REVIEW AND REVERSAL:EFFECT ON VIEWS

It was contemplated that thoserepresentatives who had the experi-ence of having a Title Vll-relatedgrievance either reviewed or reversedwould be less likely to supportGardner-Denver. The data suggestthat neither review nor reversal has asignificant effect on the parties' atti-tudes toward the Carcfner-Denver de-cision, with the exception of reviewby the EEOC. Review by the EEOC ispositively and significantly associatedwith disagreement with Gardner-Denver. In other words, those indi-viduals who have actually experi-enced review of arbitral awards by theEEOC are more likely to express dis-agreement with Gardner-Denver, in-dependent of the outcome of the re-view.

N.R. Co., 323 U.S. 192, 15 LRRM 715 (1944) andTunstall v. Brotberbood of Locomotive firemen,323 U.S. 210, 15 LRRM 715 (1944).

DISCRIMINATION GRIEVANCES

LITIGANTS' VIEWS ONAPPROPRIATE EVIDENTIARYWEIGHT

Soon after Gardner-Denver, anumber of scholars feared that eitherthe trial courts would establish, in ef-fect, an arbitral deferral policy underfootnote 21^^ or that the utility of arbi-tration in this area would be lost.^^Because of tbese strong and diver-gent views, it was initially thought inthis study that respondents who actu-ally spent the time and money in-volved in having a case reviewed orreversed would tend to accord reliti-gated arbitral awards a considerableor great degree of evidentiaryweight.^ The data do not support thisview.

In other words, opinions on evi-dentiary weight of those respondentswhose decisions have been reviewedand those respondents who havebeen reversed by the EEOC or by thecourts do not vary from the opinionsof those whose awards have not beenreviewed or reversed.

"A large proportion (78.5percent) of the respondents

would favor a statutoryamendment precluding anindividual claimant who

'knowingly and voluntarily'permitted his or her claim tobe determined in arbitrationfrom subsequently seekingrecourse under Title VII."

LABOR AND MANAGEMENTDIEFERENCES

The status of litigants as labor ormanagement attorney representa-tives was not correlated with the de-gree of evidentiary weight that theythought should be accorded an arbi-tral award. An analysis of the experi-ence of the parties having undergonereview or reversal by the EEOC didnot tend to predict whether a respon-dent would support the judicial prac-tice of according an arbitral award ei-ther considerable weight or greatevidentiary weight by the trial courts.

STATUTORY AMENDMENT TOTITLE VII

A large proportion (78.5 percent)of the respondents would favor a stat-utory amendment precluding an indi-

'̂ See "ludge Edwards Defends . . . ," op. cit.

" See Feller, op. Lit.

^ Generally, it has been found Ihat the trialcourts do not accord relitigated arbitral awardseither considerable or great evidenliary weight.See Hoyman and Stallworth, op. cit.

vidual claimant who "knowingly andvoluntarily" permitted his or herclaim to be determined in arbitrationfrom subsequently seeking recourseunder Title VII. This finding is consis-tent with the views of a number oflabor relations experts. In addition, itsupports the notion of the viability ofsome form of arbitration in the reso-lution of Title Vll-related grievancesand is in line with the suggestion ofChief Justice Burger to explore theexpanded use of arbitration insteadof litigation in such civil matters.^^

There were differences in theway that labor and management re-sponded to the waiver question. Ofthe management respondents, 91percent supported a statutory limita-tion on the grievant's redress if the

grievant knowingly and willinglywaived his or her legal rights whenthe case went to arbitration. Only 45percent of the labor respondents sup-ported such a change."'

Those who have had experiencewith discrimination cases expressed adifferent attitude to this statutory lim-itation than those who had none.By "experience with discriminationcases," we mean that an attorney forlabor or management reported hav-ing experience with one or more dis-crimination cases. Eor instance, 83percent of the group with discrimina-

'•̂ Infra, in. 11.

^ Of the labor respondents, 4') of them (4'j.5percent) favored the statutory limitation given asigned waiver and .54 respondents (54.5 perceni)opposed the statutory amendment. Of the man-agement respor)dents, 40^ respondents (91 per-cent) supported the statutory amendment and39 (8.8 percent) opposed it. (The Pearson's cor-relation - .46, sig. = .001.)

THE ARBITRATION )OUKNAL, SEPTEMBER 1984, Vol. 39, No. 3

tion experience favored this statutorylimitation, as opposed to 17 percentof those with no experience. Surpris-ingly, however, there is no relation-ship between review or reversal ei-ther by the courts or the EEOC andthe attitude toward the waiverscheme.

LABOR AND MANAGEMENTVIEW OE THE EFEECT OEGARDNER-DENVER

The opinions of the respondingattorneys concerning the policy is-sues raised by the Gardner-DenverCourt fall substantially short of a re-sounding endorsement. Sixty percentdisagreed with the decision. Thereare significant differences in how la-bor and management view Gardner-Denver, with labor supporting it morefrequently.

The responding attorneys had afavorable view toward a statutoryamendment limiting the redress avail-able to a grievant if he or she know-ingly and willingly signed a waiver be-fore agreeing to submit his or hergrievance to arbitration. What theseresults suggest is an endorsement oftraditional notions of collective bar-gaining. The parties seem to still have

grave doubts about the Gardner-Den-ver rationale almost ten years afterthe decision.

IMPLICATIONS OE THE STUDY

The authors do not propose toadvance any definitive policy recom-mendations based upon this study.The data collected, however, do havesome significance, particularly sincethis information was drawn from at-torneys who have substantial experi-ence in representing labor organiza-tions and management in mattersconcerning discrimination griev-ances. The three most noteworthyfindings that these representatives of-fer concern (1) the frequency of re-view and relitigation, (2) the fact thatin the overwhelming number ofinstances, the determination of thearbitrator is not in conflict withthe findings of state and federalantidiscrimination agencies, and (3)support of the respondents for a stat-utory change of Title VM that effec-tively eliminates affording the individ-ual claimant the opportunity or theright to have "two bites of the apple."

The second finding suggests thatthe responding attorneys are of fheopinion that arbitration has played an

"What these resultssuggest is an

endorsement oftraditional notions

of collectivebargaining."

effective role in resolving discrimina-tion grievances. Support for the pro-posed statutory amendment, how-ever, suggests that arbitration may bemore acceptable to litigants if theclaimant were to be precluded fromhaving "two bites of the apple" wherehe or she has knowingly and volun-tarily allowed his or her claim fo bedetermined in arbitrafion. Perhaps,here lies the answer to the Gardner-Denver riddle and the nongovern-mental resolution of other statutory-related grievances. •

DISCRIMINATION GRIEVANCES