The United States Supreme Court has granted cert in a case that should resolve lingering uncertainty as to whether a union-negotiated collective bargaining agreement (CBA) can require individual union members to submit statutory discrimination claims to an arbitral forum. See 14 Penn Plaza LLC v. Pyett, No. 07-581, 2008 WL 423540 (Feb. 19, 2008).

The case involves three union members who sued for age discrimination after they were reassigned from their positions as night watchmen. The employer moved to compel arbitration pursuant to a CBA that specifically required arbitration of discrimination claims. The trial court denied the motion on the ground that "even a clear and unmistakable union-negotiated waiver of a right to litigate certain federal and state statutory claims in a judicial forum is unenforceable." Pyett v. Pennsylvania Bldg. Co., No. 04 Civ. 7536, 2006 WL 1520517, at *3 (S.D.N.Y. June 1, 2006).

On appeal, the Second Circuit Court of Appeals discussed a trilogy of Supreme Court decisions bearing on the interplay between union-negotiated arbitration agreements and statutory claims of individual union members. See Pyett v. Pennsylvania Bldg. Co., 498 F.3d 88 (2d Cir. 2007).

First, in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the Court held that a CBA can not require union members to submit Title VII claims to arbitration. Seventeen years later, in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), the Court held that an agreement entered into by an individual employee required arbitration of the employee's age discrimination claim. Lastly, in Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998), the employer questioned the continuing validity of Gardner-Denver, but the Court expressly avoided the question of whether a CBA can require arbitration of a union member's discrimination claim because there was no "clear and unmistakable" intent to arbitrate such claims.

In the case before the Second Circuit, the employer argued that Gardner-Denver is no longer good law based on Gilmer and Wright. The Second Circuit rejected this argument based on its and other circuit's continuing adherence to Gardner-Denver.

By granting cert, the Supreme Court will definitively answer the question that has lingered in the wake of Wright: Can a union-negotiated CBA require individual union members to submit their statutory discrimination claims to arbitration?

As the Supreme Court indicated in Wright, there are two competing theories. One could argue that Gardner-Denver is no longer good law because subsequent caselaw has firmly established the Court's renunciation of the outmoded view that arbitration is not a proper forum for the resolution of statutory claims. Conversely, one could argue that Gardner-Denver may be reconciled with Gilmer based on the fundamental distinction between a collective agreement and an individual one.

The best guess is that the Court will overturn Gardner-Denver because the reasoning of that case is remarkably similar to the reasoning that underlied the now-defunct Wilko v. Swan, 346 U.S. 427 (1953). Compare Gardner-Denver, 415 U.S. at 56-57 ("Arbitral procedures, while well suited to the resolution of contractual disputes, make arbitration a comparatively inappropriate forum for the final resolution of rights created by Title VII. This conclusion rests first on the special role of the arbitrator, whose task is to effectuate the intent of the parties rather than the requirements of enacted legislation.") with Wilko, 346 U.S. at 435-36 ("Even though the provisions of the Securities Act, advantageous to the buyer, apply, their effectiveness in application is lessened in arbitration as compared to judicial proceedings. Determination of the quality of a commodity or the amount of money due under a contract is not the type of issue here involved. This case requires subjective findings on the purpose and knowledge of an alleged violator of the Act.").