                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-1-1997

Martin v. Dana Corp
Precedential or Non-Precedential:

Docket 96-1746




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Filed June 12, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1746

KEEFE M. MARTIN

v.

DANA CORPORATION

Keefe Martin,
Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 95-cv-08024)

Argued April 15, 1997

BEFORE: SCIRICA, COWEN and NYGAARD Circuit Judges

(Filed June 12, 1997)

Kingsley A. Jarvis, Esq. (argued)
Suite 903
One Montgomery Plaza
Norristown, PA 19401

Counsel for Appellant

Scott F. Cooper, Esq. (argued)
Blank, Rome, Comisky & McCauley
1200 Four Penn Center Plaza
Philadelphia, PA 19103

Counsel for Appellee
OPINION OF THE COURT

COWEN, Circuit Judge.

Appellant, Keefe Martin, appeals the July 26, 1996, order
of the district court dismissing his complaint with
prejudice. The district court held that Section 118 of the
Civil Rights Act of 1991 and the provisions of the collective
bargaining agreement between Martin's union and his
employer, appellee Dana Corporation Parish Division
(Dana), bar Martin from bringing his discrimination claim
in federal court. The collective bargaining agreement
between Dana and the union provides that both the
employee and the union retain the individual right to
demand arbitration. Based on the language of the collective
bargaining agreement, we hold that Martin is required to
arbitrate his discrimination claim pursuant to the grievance
procedure set forth in that agreement.

I.

Dana manufactures light industrial products. Keefe
Martin, a Dana employee, has been a welder in Dana's
Reading, Pennsylvania facility since September 13, 1983. In
1993, Martin filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC) against
Dana and a lawsuit against Dana, his union (the United
Steelworkers of America, Local 3733), and various Dana
managers and union officers alleging racial discrimination
in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. (1994), and 42 U.S.C.
§ 1981 (1994). Specifically, he alleged that after returning to
work following an injury, he was restricted from light duty
work because he is African-American. In early 1995, after
discovery, motions for summary judgment by all the
defendants, and extensive settlement discussions, Martin
signed a stipulation voluntarily dismissing his action with
prejudice.

Less than four months later, Martin filed a second charge
of discrimination with the EEOC against Dana. This charge

                    2
similarly alleged improper assignments within the restricted
duty program due to Martin's status as an African-
American. The EEOC issued Martin a right-to-sue letter,
and Martin again filed suit against Dana, along with a
motion for appointment of counsel. The district court
granted Martin's motion for appointment of counsel, and
Martin's attorney filed an amended complaint on his behalf.

In response to the amended complaint, Dana filed a
motion to dismiss pursuant to FED.R.C IV.P 12(b)(6). Dana
argued that Martin's suit should be dismissed for his
failure to arbitrate his claims under the 1994 collective
bargaining agreement between Dana and the Union. Article
1, Section 3 of that agreement provides:

Any and all claims regarding equal employment
opportunity provided for under this Agreement or
under any federal, state or local fair employment
practice law shall be exclusively addressed by an
individual employee or the Union under the grievance
and arbitration provisions of this Agreement.

Appellant's Br. App. at 85. The district court granted
Dana's motion and dismissed Martin's claim with prejudice.
The district court's order contained a footnote explaining
the reasoning for its decision. The footnote stated in full:

This is a question of first impression in this Circuit.
Section 3 of the Collective Bargaining Agreement
applicable to plaintiff expressly requires arbitration of
all types of employment claims. Under Alexander v.
Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011 (1971),
such a clause would not bar this suit. Since Alexander,
Congress has amended Title VII of the Civil Rights Act
to provide for alternate dispute resolution in Section
118 of the Civil Rights Act of 1991, P.L. 102-166, 105
Stat. 108. Although codified at 42 U.S.C. Section 1981A,1
Section 118 applies to Title VII. In our view, this
amendment and the provisions of the Collective
Bargaining Agreement bar this suit. Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct.
_________________________________________________________________

1. Section 118 is actually not codified but is set out as a note under
section 1981.

                    3
1647 (1991); Austin v. Owens-Brockway Glass
Container, Inc., 78 F.3d 875 (4th Cir. 1996).

Martin v. Dana Corp., No. 95-8024, slip op. at 1 n.1 (E.D.
Pa. July 26, 1996).

II.

Both parties contend that the appropriate standard of
review is plenary based on the fact that we are reviewing a
grant of summary judgment. However, the July 26, 1996,
order of the district court from which Martin appeals states
that the district court granted Dana's motion to dismiss
pursuant to FED.R.CIV.P 12(b)(6), not pursuant to
FED.R.CIV.P 56. Id. at 1. Rule 12(b) provides that if, on a
motion to dismiss under Rule 12(b)(6),

matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided
in Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent to
such a motion by Rule 56.

FED.R.CIV.P 12(b). "It is . . . well-established that prior to
converting a motion to dismiss into a motion for summary
judgment, the district court must provide adequate notice
to the parties." Hilfirty v. Shipman, 91 F.3d 573, 578 (3d
Cir. 1996)(citing Rose v. Bartle, 871 F.2d 331, 342 (3d Cir.
1989)). Nowhere in the record is it suggested that the
district court converted Dana's motion to dismiss into a
motion for summary judgment. The district court's terse
July 26, 1996, order does not indicate that it considered
any documents outside of the pleadings in the course of
disposing of Dana's motion to dismiss. Accordingly, we are
reviewing a grant of a motion to dismiss, not a grant of a
motion for summary judgment.

While the standard of review is still plenary, Rose, 871
F.2d at 342, the test is not whether "the pleadings,
depositions, answers to interrogatories and admissions on
file, together with affidavits . . . show that there is no
genuine issue as to any material fact and that the moving
parties [are] entitled to a judgment as a matter of law."

                    4
Appellant's Br. at 10 (citing Chipollini v. Spencer Gifts Inc.,
814 F.2d 893 (3d Cir. 1987)). Instead, the proper inquiry is:

[W]hether taking the allegations of the complaint as
true, . . . and viewing them liberally, giving plaintiffs
the benefit of all inferences which fairly may be drawn
therefrom, . . . "it appears beyond doubt that the
plaintiff[s] can prove no set of facts in support of [their]
claim[s] which would entitle them to relief."

Gluck v. Unisys Corp., 960 F.2d 1168, 1175 (3d Cir.
1992)(quoting Bogosian v. Gulf Oil Corp., 561 F.2d 434, 444
(3d Cir. 1977)(alteration in original) (citations omitted)).

III.

In this appeal we are presented with an issue offirst
impression for the Third Circuit. Actually, given the precise
factual situation with which we are dealing (an arbitration
clause in a collective bargaining agreement under which
either the employee or the union can compel arbitration), it
appears that this case may be different from all of the
relevant cases previously addressed by the other courts. We
embark on our analysis by surveying these earlier related
cases.

We begin with a unanimous United States Supreme
Court decision upon which Martin heavily relies, Alexander
v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011 (1974).
In Alexander, a black employee brought a Title VII suit
against his employer. The employee was a member of a
bargaining unit represented by a union that had a collective
bargaining agreement with the employer. Prior to the
commencement of the Title VII suit and pursuant to the
grievance procedure set forth in the collective bargaining
agreement, the union brought the employee's claim to
arbitration. The arbitrator determined that the employee
"had been `discharged for just cause.' " Id. at 42, 94 S.Ct.
at 1017. The employer contended that the employee's prior
submission of the claim to final arbitration precluded the
Title VII suit.

The Supreme Court disagreed and held that "Title VII's
purpose and procedures strongly suggest that an individual

                     5
does not forfeit his private cause of action if he first
pursues his grievance to final arbitration under the
nondiscrimination clause of a collective-bargaining
agreement." Id. at 49, 94 S.Ct. at 1020. In other words, "a
person may sue under Title VII notwithstanding that he has
submitted his claims to arbitration under a collective
bargaining agreement and lost." Austin v. Owens-Brockway
Glass Container, Inc., 78 F.3d 875, 886 (4th Cir. 1996)
(Hall, J., dissenting)(citing Alexander, 415 U.S. 36, 94 S.Ct.
1011 (1974)). The Court further stated that "there can be
no prospective waiver of an employee's rights under Title
VII." Alexander. 415 U.S. at 51, 94 S.Ct. at 1021. The Court
explained that because Title VII "concerns not majoritarian
processes, but an individual's right to equal employment
opportunities," such rights "can form no part of the
collective-bargaining process since waiver of these rights
would defeat the paramount congressional purpose behind
Title VII." Id. at 51, 94 S.Ct. at 1021 (emphasis added). The
Court continued, "[i]n these circumstances, an employee's
rights under Title VII are not susceptible of prospective
waiver." Id. at 51-52, 94 S.Ct. at 1021. (citing Wilko v.
Swan, 346 U.S. 427, 74 S.Ct. 182 (1953)). The Court's
holding is grounded in the distinction between disputes
arising from the collective bargaining agreement itself and
disputes concerning an employee's statutory rights.

After Alexander, the Supreme Court continued to rely on
this crucial distinction. See McDonald v. City of West
Branch, 466 U.S. 284, 292, 104 S.Ct. 1799, 1804 (1984)
(involving claim brought under 42 U.S.C. § 1983);
Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S.
728, 101 S.Ct. 1437 (1981) (involving claim under Fair
Labor Standards Act). In both of these cases the Court
emphasized that grievance procedures under collective
bargaining agreements protect only contractual rights. See
id. Just as in Alexander, in these cases the Court expressed
its concern that the "majoritarian" nature of the collective
bargaining process "in which the balancing of individual
and collective interests [occurs,] might lead a union to
sacrifice statutorily granted benefits." Randolph v. Cooper
Indus., 879 F. Supp. 518, 521 (W.D. Pa. 1994) (citing
Alexander, 415 U.S. at 51, 94 S.Ct. at 1021 and Barrentine,
450 U.S. at 742, 101 S.Ct. at 1445-46); see also McDonald,

                    6
466 U.S. at 291, 104 S.Ct. at 1803. The Court "concluded
that this tension between individual and group interests
should not be permitted to compromise statutory rights
conferred by Congress on individual employees." Randolph,
879 F. Supp. at 521 (citing Alexander, 415 U.S. at 51, 94
S.Ct. at 1021 and Barrentine, 450 U.S. at 742, 101 S.Ct. at
1445-46).

Leaving Alexander and its progeny, we next turn to the
other major case in this area -- the case upon which Dana
places great importance, Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 111 S.Ct. 1647 (1991). As part of his
employment, the plaintiff in Gilmer registered as a
securities representative with several stock exchanges
including the New York Stock Exchange (NYSE). In his
registration statement with the NYSE, the employee
" `agree[d] to arbitrate any dispute, claim or controversy'
arising between him and [his employer]." Gilmer, 500 U.S.
at 23, 111 S.Ct. at 1650 (first alteration in original).

The employee was fired at the age of 62. He then brought
suit in federal court, alleging that his employer terminated
his employment because of his age, in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. (1985). The employer filed
a motion to compel arbitration of the ADEA claim. The
Supreme Court held that an ADEA claim "can be subjected
to compulsory arbitration pursuant to an arbitration
agreement in a securities registration application." Gilmer,
500 U.S. at 23, 111 S.Ct. at 1650. The Court stated:

Although all statutory claims may not be appropriate
for arbitration, "[h]aving made the bargain to arbitrate,
the party should be held to it unless Congress itself
has evinced an intention to preclude a waiver of
judicial remedies for the statutory rights at issue." In
this regard, we note that the burden is on Gilmer to
show that Congress intended to preclude a waiver of a
judicial forum for ADEA claims. If such an intention
exists, it will be discoverable in the text of the ADEA,
its legislative history, or an "inherent conflict" between
arbitration and the ADEA's underlying purposes.
Throughout such an inquiry, it should be kept in mind

                    7
that "questions of arbitrability must be addressed
with a healthy regard for the federal policy favoring
arbitration."

Id. at 26, 111 S.Ct. at 1652 (alteration in original)(citations
omitted).

The Court concluded that "nothing in the text of the
ADEA or its legislative history explicitly precludes
arbitration." Id. It also found that"compulsory arbitration
of ADEA claims pursuant to arbitration agreements [is not]
inconsistent with the statutory framework and purposes of
the ADEA." Id. at 27, 111 S.Ct. at 1652.

Gilmer did not overrule Alexander. Rather, the Court
stated that reliance on Alexander and its progeny was
"misplaced" because "[t]here are several important
distinctions between the [Alexander] line of cases and
[Gilmer]." Id. at 33, 35, 111 S.Ct. at 1656, 1657. First, the
Court noted that Alexander and Gilmer involved different
issues. The issue in Alexander was "whether arbitration of
contract-based claims precluded subsequent judicial
resolution of statutory claims." Id. at 35, 111 S.Ct. at 1657.
The issue in Gilmer was "the enforceability of an agreement
to arbitrate statutory claims." Id.

Second, and most important to our discussion about the
instant case, the Court noted that "because the arbitration
in [Alexander and its progeny] occurred in the context of a
collective-bargaining agreement, the claimants there were
represented by their unions in the arbitration proceedings.
An important concern therefore was the tension between
collective representation and individual statutory rights, a
concern not applicable to [Gilmer]." Id. Specifically, in
Alexander the Court was worried about "the potential
disparity in interests between a union and an employee."
Id.

Finally, the Court placed importance on the fact that
Gilmer, unlike Alexander, was "decided under the FAA
[Federal Arbitration Act], which . . . reflects a `liberal federal
policy favoring arbitration agreements.' " Id. (quoting
Mitsubishi Motors Corp. V. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 625, 105 S.Ct. 3346, 3353 (1985)).

                     8
Since Gilmer, courts have repeatedly held that Title VII
claims, like ADEA claims, are subject to mandatory
arbitration. See, e.g., Austin v. Owens-Brockway Glass
Container, Inc., 78 F.3d 875 (4th Cir. 1996); Metz v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482 (10th Cir.
1994); Nghiem v. NEC Electronic, Inc., 25 F.3d 1437 (9th
Cir. 1994); Bender v. A.G. Edwards & Sons, Inc., 971 F.2d
698 (11th Cir. 1992); Mago v. Shearson Lehman Hutton Inc.,
956 F.2d 932 (9th Cir. 1992); Willis v. Dean Witter
Reynolds, Inc., 948 F.2d 305 (6th Cir. 1991); Alford v. Dean
Witter Reynolds, Inc., 939 F.2d 229 (5th Cir. 1991).
However, only one of these cases arose in the context of a
collective bargaining agreement. See Austin, 78 F.3d 875
(4th Cir. 1996). The other cases all involved arbitration
clauses in employment contracts and securities registration
applications. Thus, out of the above-mentioned cases,
Austin is the one closest to the case at hand.

In addition to the above cases, "[t]he language of [Title
VII] could not be any more clear in showing Congressional
favor towards arbitration [of Title VII discrimination
claims]." Id. at 881. The Civil Rights Act of 1991, amending
Title VII, provides:

Where appropriate and to the extent authorized by law,
the use of alternative means of dispute resolution,
including . . . arbitration, is encouraged to resolve
disputes arising under the Acts or provisions of Federal
law amended by this title.

Civil Rights Act of 1991, Pub. L. No. 102-166, § 118, 105
Stat. 1071, 1081. This statutory language certainly
undermines the portion of the Supreme Court's Alexander
opinion expressing a mistrust of the arbitral process.
Further, analyzed under the test set forth in Gilmer, this
language demonstrates that Congress did not intend "to
preclude a waiver of judicial remedies" for Title VII claims
in general. Gilmer, 500 U.S. at 26, 111 S.Ct. at 1652.
Nonetheless neither this statutory language nor the
Supreme Court's statement in Gilmer that "statutory claims
may be the subject of an arbitration agreement," id.,
specifically speaks to the situation where arbitration is
compelled by a collective bargaining agreement. Indeed, an
employee subject to an arbitration clause in a collective

                    9
bargaining agreement where only the union can compel
arbitration presents a situation where "compulsory
arbitration of [the employee's Title VII] claims . . . would be
inconsistent with the statutory framework and purposes of
[Title VII]." Id. at 27, 111 S.Ct. at 1652. In such a situation
Alexander would control.

In addition to the Fourth Circuit in Austin, two other
circuit courts and a few other district courts have
addressed the issue of whether an arbitration clause in a
collective bargaining agreement can bar an employee from
bringing a Title VII claim in federal court. See Pryner v.
Tractor Supply Company, 109 F.3d 354 (7th Cir. 1997);
Varner v. National Super Market, Inc., 94 F.3d 1209, 1213
(8th Cir. 1996); Almonte v. Coca-Cola Bottling Co. of NY, No.
95-1458, 1997 WL 149328 (D. Conn. Mar. 13, 1997); Bush
v. Carrier Air Conditioning, 940 F. Supp. 1040 (E.D. Tex.
1996); Randolph v. Cooper Indus., 879 F. Supp. 518 (W.D.
Pa. 1994). In contrast to Austin, all of these cases except
Almonte, have held that employees cannot be compelled by
a collective bargaining agreement to arbitrate federal
statutory discrimination claims. Not surprisingly, the
difference in outcome is due to the fact that Austin and
Almonte placed emphasis on Gilmer, whereas Pryner,
Varner, Bush, and Randolph all viewed Alexander as
controlling. Further, whereas Austin did not find
importance in whether an arbitration clause appeared in a
collective bargaining agreement or an employment contract,
Pryner and the other cases found the difference dispositive.
In addition, the courts in Bush and Randolph emphasized
the fact that the language in their particular collective
bargaining agreements did not explicitly provide for the
mandatory arbitration of statutory discrimination claims.
See Bush, 940 F. Supp. at 1046; Randolph, 879 F. Supp. at
522.

Austin held that "[w]hether the dispute arises under a
contract of employment growing out of securities
registration application, a simple employment contract, or a
collective bargaining agreement, an agreement has yet been
made to arbitrate the dispute. So long as the agreement is
voluntary, it is valid, and we are of opinion it should be
enforced." Austin, 78 F.3d at 885. It further stated that the
employee in that case was

                    10
a party to a voluntary agreement to submit statutory
claims to arbitration. The collective bargaining
agreement specifically lists gender . . . discrimination
as [a] claim[ ] that [is] subject to arbitration. This
voluntary agreement is consistent with the text of Title
VII . . ., the legislative intent behind [that] statute[ ],
and the purpose[ ] of [that] statute[ ].

Id. at 885-86.

Similarly, in a case involving the arbitrability of
discrimination claims under 42 U.S.C. § 1981 in the
context of a collective bargaining agreement, one court
found importance in the fact that "Congress has expressly
encouraged arbitration of § 1981 claims." Almonte, 1997 WL
149328, at *5. Almonte held that a "less stringent
interpretation of [Alexander] is found to be a more
reasonable accommodation of the conflict between vitiating
individual statutory rights and enforcing the express terms
of a fairly negotiated contract than a per se rule barring
enforcement of [collective bargaining agreement-] mandated
arbitration of individual statutory claims." Id. at *4.

In contrast to Austin and Almonte, Pryner focused on the
"essential conflict . . . between majority and minority
rights." Pryner, 109 F.3d at 362. The Seventh Circuit found
important the fact that "the grievance and arbitration
procedure can be invoked only by the union, and not by the
worker." Id. The court continued, "[t]he worker has to
persuade the union to prosecute his grievance and if it
loses in the early stages of the grievance proceedings to
submit the grievance to arbitration." Id. It further stated
that "we may not assume that [the union] will be highly
sensitive to [minority workers'] special interests, which are
the interests protected by Title VII and the other
discrimination statutes and will seek to vindicate those
interests with maximum vigor." Id. at 362-63.

In the instant appeal we are presented with a case that
appears to be different from all of the above related cases.
This case involves an arbitration clause under which both
the employee and the union can compel arbitration. At oral
argument, the parties agreed that in Pryner the employee
did not have the right to initiate the arbitration. However,

                     11
they suggested that, like the instant case, Austin and
Varner also involved situations where the employee could
arbitrate at his election as well as the election of the union.
This factual assertion is not evident from either the district
or appellate opinions of those cases. Therefore, in view of
this distinguishing fact, the instant case is more compelling
than Austin, which did not differentiate between arbitration
clauses in collective bargaining agreements and arbitration
clauses in employment contracts.2

Moreover, this case is distinguishable from Pryner and
the other cases that have adhered to a strict reading of
Alexander. Because Martin, as an employee, does not need
"to persuade the union to prosecute his grievance and . . .
submit [his] grievance to arbitration," Pryner, 109 F.3d at
362, there is not the same "tension between individual and
group interests." Randolph, 879 F. Supp. at 521. Thus,
there is not a concern about a "potential disparity in
interests between [the] union and [the] employee." Gilmer,
500 U.S. at 35, 111 S.Ct. at 1657. For these reasons, in
this specific situation where the individual employee can
compel arbitration, Gilmer, not Alexander, should control.

We note that another determinative factor in our
decision-making is the fact that the language of the
collective bargaining agreement in this case explicitly
provides for the mandatory arbitration of statutory
discrimination claims. Article 1, Section 3 of the agreement
provides:

Any and all claims regarding equal employment
opportunity provided for under this Agreement or under
any federal, state or local fair employment practice law
shall be exclusively addressed by an individual
employee or the Union under the grievance and
arbitration provisions of this Agreement.
_________________________________________________________________

2. If the parties' assertion about the employees' ability to initiate
arbitration under the collective bargaining agreements in Austin and
Varner is correct, our opinion is not affected in any way. Neither Austin
nor Varner commented on what we find to be the critical distinguishing
factor -- the employee's ability individually to initiate arbitration.
Therefore, although the outcome of this case is akin to that in Austin, we
arrive at the same conclusion by utilizing different reasoning.

                     12
Appellant's Br. App. at 85 (emphasis added). We find that
the language requiring compulsory arbitration of Title VII-
type claims, along with the language giving "an individual
employee" the right to initiate the grievance and arbitration
process, drives our result in this case.

IV.

The district court was correct in finding that Martin's suit
was barred by the arbitration clause in the collective
bargaining agreement. We will affirm the district court's
July 25, 1996, order granting Dana's motion to dismiss the
complaint.

                    13
SCIRICA, Circuit Judge, Dissenting.

There are few current issues in federal labor law more
central than the one presented in this case: whether a
collective bargaining agreement can compel the arbitration
of a federal Title VII discrimination claim.

But for Martin's right to initiate and prosecute his
grievance without union approval, this case would present
an irreconcilable conflict between individual and group
interests. This was the situation faced by the Court of
Appeals for the Seventh Circuit in Pryner v. Tractor Supply
Co., 109 F.3d 354 (7th Cir. 1997), petition for cert. filed, 65
U.S.L.W. 2622 (U.S. May 16, 1997)(No. 96-1830), and
decided in favor of the employee.1 Nevertheless, the issue
here remains whether a union can waive Martin's statutory
rights in a collective bargaining agreement that specifically
provides that arbitration is the exclusive remedy for equal
employment opportunity claims.

The answer, it seems to me, in large part depends on the
continued vitality of the Supreme Court's decision in
Alexander v. Gardner-Denver Co., 4l5 U.S. 36, 51
(1974)("[W]e think it clear that there can be no prospective
waiver of an employee's rights under Title VII."). "Title VII
. . . concerns not majoritarian processes, but an
individual's right to equal employment opportunities. . .
[and] waiver of these rights would defeat the paramount
congressional purpose behind Title VII." Id. Until the
Supreme Court signals otherwise, I am reluctant to hold
that a collective bargaining agreement may preclude an
individual from exercising his statutory civil rights.

Martin contends he is entitled to pursue independently
(and perhaps collaterally) his statutory rights under Title
VII. Despite his right to initiate grievance proceedings,
Martin contends that enough tension exists between his
interests and those of the union (and other employees) that
he should not be held to have waived his statutory rights.
Of particular significance in this case alleging racial
_________________________________________________________________

1. But see Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875
(4th Cir.) (unclear whether employee could initiate arbitration), cert.
denied, 117 S. Ct. 432 (1996).

                    14
discrimination is that Martin is one of 75 African-
Americans in the 2,300 member Local 3733 Union. It would
appear, therefore, that the tension between individual and
collective rights spills over to a tension between racial
minority and majority rights.2

For these reasons, the Supreme Court's decision in
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20
(1991), is not especially helpful here. As an individual,
Gilmer agreed to arbitrate all future employment claims.
Consequently, Gilmer did not address the majoritarian
concerns discussed in Alexander.

The question remains whether Congress' 1991
amendment to Title VII encouraging arbitration where
appropriate and to the extent authorized by law, permits a
collective bargaining unit to prospectively waive an
individual member's rights to select a federal judicial
forum. Civil Rights Act of 1991, Pub.L. No. 102-166, 195
Stat. 108, § 118. If Congress intended to allow such a
waiver, it did not explicitly say so. Moreover, it is
questionable to assume that in the 1991 Amendments,
Congress provided civil rights plaintiffs with a right to trial
by jury in one section, and then severely limited that right
in another. See Pryner, 109 F.3d at 363. Also it may be
significant that Alexander was not listed in the legislative
history among the cases affected by § 118. See H.R. Rep.
No. 102-40(I) at 97 (1991), reprinted in 1991 U.S.C.C.A.N.
549.

When an individual worker agrees to arbitrate an
employment discrimination dispute, it must be submitted
to an arbitrator. But absent individual consent, the
_________________________________________________________________

2. The Pryner court observed that while "the collective-bargaining
agreement is the symbol and reality of a majoritarian conception of
workers' rights," such ideas do not belong in the context of "[t]he
statutory rights at issue in these two cases [which] are rights given to
members of minority groups because of concern about the mistreatment
(of which there is a long history in the labor movement . . .) of minorities
by majorities." Pryner, 109 F.3d at 362 (citations omitted).

                    15
There are strong policy reasons weighing for and against
the arbitration of federal discrimination claims. But these
choices rest with Congress.

For these reasons, I respectfully dissent.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

_________________________________________________________________

3. See Deborah Patterson v. Tenet Healthcare, Inc., ___ F.3d ___, No. 96-
2587, 1997 WL 236237, at *5 (8th Cir. May 12, 1997) ("Accordingly, we
have held that arbitration agreements contained within a [collective
bargaining agreement] do not bar civil claims under Title VII".).
employee retains his right to statutory relief. See Alexander,
415 U.S. 36.3

                    16
