"Recent Developments in Dispute Resolution" 8/7/97

Brisentine v. Stone & Webster Engineering
(11th Cir 7/21/97)

     Employee sued his employer in federal district court claiming
     violations of the ADA.  The district court granted summary
     judgment in favor of the employer on the ground that the
     employee had failed to arbitrate his claims under the
     collective bargaining agreement.  The 11th Circuit reversed,
     holding that an arbitration agreement bars litigation of a
     federal statutory claim only if three requirements are met.
     In the court's words:

     "[A] mandatory arbitration clause does not bar litigation of
     a federal statutory claim, unless three requirements are met.
     First, the employee must have agreed individually to the
     contract containing the arbitration clause--the union having
     agreed for the employee during collective bargaining does not
     count. Second, the agreement must authorize the arbitrator to
     resolve federal statutory claims--it is not enough that the
     arbitrator can resolve contract claims, even if factual issues
     arising from those claims overlap with the statutory claim
     issues. Third, the agreement must give the employee the right
     to insist on arbitration if the federal statutory claim is not
     resolved to his satisfaction in any grievance process. All
     three of those requirements were met in the Gilmer case, which
     is the latest word from the Supreme Court on the subject. None
     of the requirements were met in this case."

Comment:

     This case represents the prevailing view.  For example,
     Harrison v. Eddy Potash, 112 F.3d 1437 (10th Cir 5/8/97);
     Pryner v. Tractor Supply Co., 109 F.3d 354 (7th Cir 3/20/97);
     Varner v. National Super Markets, 94 F.3d 1209 (8th Cir 1996);
     Tran v. Tran, 54 F.3d 115 (2d Cir 1995).  One Circuit holds to
     the contrary: Austin v. Owens Brockway Glass Container, 78
     F.3d 875 (4th Cir 1996).  One Circuit had decided to the
     contrary, but that decision was withdrawn pending an en banc
     decision:  Martin v. Dana Corp., 114 F.3d 421 (3d Cir
     6/12/97), withdrawn, 114 F.3d 428 (7/1/97).

Full text --

     Willamette University Dispute Resolution Information Service
     http://www.willamette.edu/dis-res/
     Click on "Recent Developments"

     We will email full text to you if you send the message
     "request DR9712" to rrunkel@willamette.edu

 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
           "Recent Developments in Dispute Resolution"
       Willamette University Center for Dispute Resolution
       Willamette University College of Law, Salem, Oregon
       Ross Runkel, Editor         Richard Birke, Director
       rrunkel@willamette.edu        rbirke@willamette.edu
 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .