The United States Court of Appeals for the Fifth Circuit affirmed the district court’s order to compel arbitration finding that it was the arbitrator’s task to evaluate the scope of the grievance and the CBA. Background In International Brotherhood of Electrical Workers, Local Union No. 716, AFL-CIO v. Albemarle Corporation, Inc., No. 11-20883 (5th Cir. June 18, 2012) the International Brotherhood of Electrical Workers (“Union”) filed a grievance against Albemarle Corporation (“Albemarle”), a company that manufactures specialty chemicals and operates a chemical plant in Pasadena, Texas. Both are parties to a collective bargaining agreement (“CBA”), and pursuant to that CBA, the Union filed a grievance known as Grievance 10-02. The grievance was denied at all stages of internal review. The CBA allowed for arbitration in limited circumstances, but Albemarle refused to arbitrate the grievance. The Union sued Albemarle to compel arbitration. The Union claimed that Albemarle’s refusal to submit the grievance to arbitration violated the CBA. Albemarle argued that the Union was attempting to arbitrate issues outside the scope of Grievance 10-02 by recharacterizing the subject matter of the grievance. The district court agreed with the Union and granted summary judgment in its favor. Fifth Circuit According to the Court, it was undisputed that the CBA allowed the Union to raise Grievance 10-02 and that the CBA thus entitled the Union to arbitration of that grievance. The particular issue was whether Grievance 10-02 encompasses the claims on which the Union sought to compel arbitration. The Court addressed whether that was a question for the court or the arbitrator to decide. The Court reviewed the CBA to determine the scope of the parties’ agreement. The CBA entitle the Union to arbitrate “grievances,” which included any dispute between the parties involving the proper application of, interpretation of, or compliance with the CBA. However, the CBA does not extend the right to arbitration to “complaints,” which involve claims that do not allege violations of the CBA. Furthermore, the CBA prohibited the parties from attempting to arbitrate a complaint by disguising it as a grievance. The Court explained that the CBA required the Union to meet certain procedural requirements before it could arbitrate a claim. It was undisputed that the Union met those procedural requirements to arbitrate. The CBA left the questions of proper application of or compliance with the CBA to the arbitrator. Furthermore, questions of falsely citing contract violations merely for the purpose of elevating a complaint to grievance status is also a question left to the arbitrator. The Court concluded that the Union’s right to arbitration was limited to the scope of Grievance 10-02 and that the Union’s complaint was limited to Grievance 10-02. The arbitrator need not consider issues outside the scope of Grievance 10-02. Thus, the district court did not err in ordering Albemarle to arbitrate Grievance 10-02. The Court affirmed.

The United States Court of Appeals for the Fifth Circuit held that the district court erred when it concluded that UPS’s CBA required Title VII claims to be brought under the CBA’s grievance process. Background In Amber Ibarra v. United Parcel Service, No. 11-50714 (5th Cir. Sept. 13, 2012), Amber Ibarra worked as a package car driver for the United Parcel Service (“UPS”), but was terminated from her job after she lost control of her van and struck a telephone pole while delivering packages. Ibarra filed a grievance under her union’s collective bargaining agreement (“CBA”), claiming that her termination was unjust. According to Article 51 of the CBA, Ibarra first had a local hearing and her discharge was upheld. She then had an evidentiary hearing before the Southern Regional Area Parcel Grievance Committee which also upheld her termination. Ibarra then filed a Title VII action alleging sex discrimination with the district court. UPS filed three motions for summary judgment. The second motion argued that UPS was entitled to summary judgment on two grounds, including that the grievance procedure established in the CBA provided Ibarra’s exclusive remedy for her Title VII sex discrimination claim and Ibarra failed to exhaust that remedy by failing to assert sex discrimination by UPS in the grievance process. The district court agreed with UPS and granted summary judgment. Fifth Circuit On appeal, Ibarra contended that the district court erred in finding that the CBA explicitly provided that statutory discrimination claims are subject to the grievance process. The Fifth Circuit agreed. The Court applied Supreme Court precedence from Alexander v. Gardner-Denver and 14 Penn Plaza LLC v. Pyett.The Court reasoned that in Gardner-Denver, the Supreme Court recognized that employees have separate statutory and contractual rights. However, the Court also acknowledged that Penn Plaza subsequently tailored the suggestion in Gardner-Denver that arbitral procedures are inadequate to address statutory discrimination claims. The Penn Plaza Court held that a CBA that clearly and unmistakably requires union members to arbitrate certain statutory claims is enforceable as a matter of federal law. The Court then examined the UPS’s CBA to see whether it clearly and unmistakably required union members to submit Title VII claims to the CBA’s grievance process. Reviewing both Article 51 and Article 36 of the CBA, the Court concluded that the CBA contained no express waiver of judicial forum for claims brought pursuant to Title VII. The Court then supported its conclusion by citing precedence from other Supreme Court cases and cases from other Circuit Courts of Appeals. Because the CBA did not clearly and unmistakably waive a union member’s right to bring a Title VII claim in a federal judicial forum, the Court held that the district court erred in concluding that the CBA required Ibarra to submit her Title VII claim under the CBA’s grievance process. The grant of summary judgment was vacated and the case remanded for further proceedings.

Professor S.I. Strong, from the University of Missouri School of Law (and a friend of this blog) has posted on SSRN the book chapter entitled “Monism and Dualism in International Commercial Arbitration: Overcoming Barriers to Consistent Application of Principles of Public International Law, to be published in “Basic Concepts of Public International Law: Monism and Dualism,” edited by Marko Novakovic, Forthcoming, University of Missouri School of Law Legal Studies Research Paper No. 2012-39. Here is the abstract: Although monism and dualism are central tenets of public international law, these two principles are seldom, if ever, considered in the context of international commercial arbitration. This oversight is likely due to the longstanding assumption that international commercial arbitration belongs primarily, if not exclusively, to the realm of private international law. However, international commercial arbitration relies heavily on the effective and consistent application of the New York Convention and other international treaties, and must therefore be considered as a type of public international law. This chapter considers the principles of monism and dualism in international commercial arbitration and identifies a number of ways in which international commercial arbitration can overcome some of the practical and theoretical problems associated with improper or ineffective incorporation of international law into the domestic realm. In so doing, this chapter provides some useful insights not only regarding the operation of the international arbitral regime but also regarding other areas of public international law. This chapter can be downloaded (for free) here. Other scholarly papers by Professor S.I. Strong are here.

Welcome to Disputing‘s 2012 Year End-Highlights. Perhaps one of the most publicized cases in the modern history of sports was Lance Armstrong’s controversy with the U.S. Anti-doping agency. Following are our 2012 posts related to the case: UCI Recognizes Sanctions against Lance Armstrong, Disputing, October 23, 2012   USADA Case against Lance Armstrong | Statute of Limitations, Disputing, October 22, 2012   USADA Case against Lance Armstrong | Evidence against Armstrong, Disputing, October 19, 2012   USADA Case against Lance Armstrong | USADA Case against Lance Armstrong | Standard of Proof and Means of Proof, Disputing, October 17, 2012   USADA Case against Lance Armstrong | Charges Brought against Armstrong, Disputing, October 16, 2012   USADA Case against Lance Armstrong | USADA Issues its Reasoned Opinion Describing its Evidence against Lance Armstrong, Disputing, October 15, 2012   USADA Case against Lance Armstrong | Remaining Procedural Steps, Disputing, August 29, 2012   USADA Case against Lance Armstrong | USADA Announces Lance Armstrong’s Lifetime Ban from Sport and Forfeiture of Titles, Disputing, August 24, 2012   Armstrong v. Tygart | Austin Federal Court Dismisses Lance Armstrong Lawsuit Against USADA, Disputing, August 20, 2012   Armstrong v. Tygart | Federal Court to Rule Before August 23, Disputing, August 10, 2012   Armstrong v. Tygart | Hearing is Today, Disputing, August 10, 2012   Armstrong v. Tygart | Lance Armstrong Responds to USADA’s Motion to Dismiss, Disputing, August 8, 2012   Armstrong v. Tygart | Fairness of Arbitration Procedure, Disputing, August 8, 2012   Armstrong v. Tygart | Jurisdiction, Disputing, August 7, 2012   Armstrong v. Tygart | Existence of Agreement to Arbitrate, Disputing, August 6, 2012   The International Convention Against Doping in Sport of 2005, Disputing, August 2, 2012   USADA Case against Lance Armstrong | USADA’s Successful Arbitration Track Record, Disputing, August 1, 2012   USADA Case against Lance Armstrong | USADA Adjudication Process Part VI | Right to Appeal to the Court of Arbitration for Sport (CAS), Disputing, July 30, 2012   USADA Case against Lance Armstrong | USADA Adjudication Process Part V |USADA Expedited Track, Disputing, July 26, 2012   USADA Case against Lance Armstrong | USADA Adjudication Process Part IV | The Arbitration Hearing, Disputing, July 25, 2012   USADA Case against Lance Armstrong | USADA Adjudication Process Part III | The Appointment of Arbitrators, Disputing, July 24, 2012   USADA Case against Lance Armstrong | USADA Adjudication Process Part II | The Review Board Track, Disputing, July 23, 2012   Armstrong v. Tygart | USADA Files Motion to Dismiss Lance Armstrong’s Suit , Disputing, July 21, 2012   USADA Case against Lance Armstrong | USADA Adjudication Process Part I | USADA ‘Results Management,’ Disputing, July 19, 2012   Armstrong v. Tygart | Texas Federal Court Will Hear Lance Armstrong Case on August 10, Disputing, July 18, 2012   Armstrong v. Tygart | Lance Armstrong’s Suit and Restraining Order against USADA, Disputing, July 17, 2012   USADA Case against Lance Armstrong | What is the USADA? Disputing, July 16, 2012   USADA Case against Lance Armstrong | USADA Allegations, Disputing, July 13, 2012   Lance Armstrong | The Doping Controversy Continues, Disputing, July 12, 2012