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October 1983, Vol. 106, No. 10
Arbitrating discrimination grievances
in the wake of Gardner-Denver
Michele M. Hoyman and Lamont E. Stallworth
In its 1974 decision in the case of Alexander v. Gardner: Denver Co.,1 the Supreme Court held that a worker who had lost a grievance alleging race discrimination in arbitration was not precluded from subsequently seeking recourse under Title VII of the Civil Rights Act of 1964.2 The holding of the Court in Gardner-Denver ran counter to the conventional wisdom that the decision of a labor arbitrator is final and binding upon the employer, the grievant, and the labor organization. Many observers predicted that the Court's decision would lead to a proliferation of similar cases which would jam the dockets of courts and equal opportunity commissions, and undermine the sanctity of the union contract. This article examines empirically the state of discrimination grievance arbitration in the aftermath of Gardner-Denver,3 as perceived by a sample of labor law attorneys.
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1 Alexander v. Gardner-Denver Co., 7 FEP Cases 81 (1974).
2 Section 704(a) of the act provides:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining , including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this subchapter.For the purpose of our study, a Title VII-related grievance is a grievance which alleges discrimination based upon race, sex, national origin, color, or religion.
3 Since Gardner-Denver, the Supreme Court has also held that the prior submission of a grievance to arbitration does not preclude subsequent recourse under the Fair Labor Standards Act. See Barrentine et al. v. Arkansas-Best Freight Systems, Inc., 450U.S. 67L. Ed.(2d)641, 101 S. Ct. 1437 (191), and box p. 5 of this issue.
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