Negotiating Gilmer Agreements in the Union Sector
In recent years, employers have been faced with an ever-increasing number of employment discrimination claims, including claims for violation of Title VII, the Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act ("ADEA"), and the Family and Medical Leave Act ("FMLA"). The costs, adverse publicity, time expenditure and distraction associated with litigating these claims lead many employers to seek out alternative dispute resolution processes. To this end, a growing number of employers have exacted from employees agreements which require them to waive their right to go to court to vindicate discrimination and employment law claims, and instead require employees to submit their claims to binding arbitration.
Almost a decade has passed since the U.S. Supreme Court gave its stamp of approval to such agreements in the landmark case Gilmer v. Interstate/Johnson Lane Corp, 520 U.S. 111 (1991). In Gilmer, the Court held that an individual employee could prospectively waive the right to pursue a claim under the ADEA in a judicial forum, and the Court enforced the employee's agreement to arbitrate that claim. In so doing, the Court noted that an employee's statutory right to a judicial forum "is not a substantive right" and that a claim under the ADEA can be "equally vindicated in an arbitral forum." Id. at 396. Since Gilmer, most courts have enforced agreements between employers and individual employees to arbitrate statutory claims ("Gilmer agreements"), even though an employer's bargaining position is generally vastly superior to an employee's.2 Id. at 1647 (unequal bargaining power is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context; Johnson v. Circuit City Stores Inc., 158 F.3d 742 (4th Cir. 1998) (enforcing Gilmer agreement contained in a job application stating that the application would not be considered unless the applicant agreed to arbitrate any disputes arising during the application process or during employment).
II. Gardner-Denver vs. Gilmer
Where employees are represented by a union, employers have been reluctant to test the post-Gilmer waters because of another landmark Supreme Court case -- the 1974 decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). In Gardner-Denver, the union grieved and arbitrated the termination of an employee under a collective bargaining agreement which contained a provision prohibiting discipline or discharge except for just cause (a "just cause provision") and a provision prohibiting discrimination on the basis of protected classifications, including race (a "non-discrimination provision"). During the arbitration proceedings, the union alleged that the termination was based on race discrimination and therefore violated the just cause provision and the non-discrimination provision of the collective bargaining agreement. The arbitrator rejected the union's claims and found that the termination was for just cause, but the award itself was silent on the issue of discrimination.
Undeterred, the employee then brought a lawsuit to vindicate his statutory rights under Title VII. The employer argued that challenging the termination via the contract arbitration precluded the employee from later pursuing a discrimination claim in court. The Supreme Court rejected the employer's argument, holding that an employee could pursue a Title VII claim in a judicial forum even after the union had arbitrated and lost a claim based on the same facts.
Amplifying its holding, the Court noted (1) that Title VII concerned "not majoritarian processes but an individual's right to equal employment opportunities," and therefore, "the rights conferred can form no part of the collective-bargaining process"; (2) that arbitration was never an appropriate forum for the resolution of Title VII rights; and (3) that an individual's right under Title VII to a judicial forum could never be waived prospectively. The latter two propositions were clearly overruled by Gilmer, but whether the first proposition was also overruled by Gilmer has been the subject of much debate. Most courts reaching the issue have determined that Gardner-Denver's holding that a union may not waive an individual employee's right to a judicial forum for resolution of discrimination claims, remains intact.3 However, the Fourth Circuit held that Gardner-Denver was overruled by Gilmer, and that therefore, a union may waive an individual's right to vindicate statutory rights in a judicial forum. Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir. 1996), cert den. 117 S.Ct. 432 (1996).
III. The Supreme Court Avoids a Resolution
Whether there is life in Gardner-Denver appeared to be heading for a resolution in the Supreme Court's 1998 term, when the Court granted certiorari in Wright v. Universal Maritime Service Corp., 119 S.Ct. 391 (1998). In Wright, the Fourth Circuit barred an employee's attempt to bring a lawsuit under the Americans with Disabilities Act of 1990, and held that the collective bargaining agreement mandated that such claims should be resolved only in contract arbitration. But, in deciding Wright, the Supreme Court sidestepped the Gardner-Denver issue, holding that "[w]hether or not Gardner-Denver's seemingly absolute prohibition of union waiver of employees' federal forum rights survives Gilmer, Gardner-Denver at least stands for the proposition that the right to a federal judicial forum is of sufficient importance to be protected against less-than-explicit union waiver in a collective bargaining agreement." The Court went on to find that the collective bargaining agreement contained a "less-than-explicit" waiver, and therefore, even if a union could waive employees' rights, the question need not be decided.
IV. The Questions That Remain4
Unless and until the U.S. Supreme Court determines that Gardner-Denver is no longer valid, employees who are subject to a collective bargaining agreement containing either a just cause provision or a non-discrimination provision and a provision requiring arbitration of all contract claims, are provided two distinct routes for addressing discriminatory conduct: their union, on their behalf, can use the grievance and arbitration machinery of the collective bargaining agreement to pursue a claim for a violation of the agreement, and they can individually pursue a claim for a violation of a statute (or common law right) through the judicial system. These two routes are not mutually exclusive because the rights they vindicate arise from different substantive sources -- the collective bargaining agreement and a statute.
In this context, a host of issues emerge; e.g., can an employer approach its unionized employees and obtain from them a Gilmer type waiver of the statutory judicial forum thereby driving the vindication of the statutory substantive right to arbitration; are Gilmer agreements non-mandatory subjects of bargaining such that an employer may bypass the union and deal directly with its employees; even if Gilmer agreements are not mandatory subjects, is the process by which the employer approaches the employee a mandatory subject of bargaining; and if Gardner-Denver is dead, under what conditions, if any, can an employer and the union bargain and agree to make the employee's individual statutory right subject to the arbitration machinery of the collective bargaining agreement?
A. Direct Dealing as a Mandatory Subject of Bargaining
If we assume that Gardner-Denver is still good law, then a union is precluded from waiving an individual employee's right to pursue a statutory claim in a judicial forum. But, whether an employer may bypass the union and bargain directly with an individual employee to obtain a Gilmer agreement is another matter which essentially turns on whether and to what extent the subject matter and the process are mandatory subjects of bargaining.5
Some judicial light is shed on these subjects in a recent decision of the D.C. Circuit, ALPA v. Northwest Airlines, Inc., 1999 WL 256118 (1999), which held that the arbitration of individual statutory discrimination claims is not a mandatory subject of bargaining under the Railway Labor Act. In that case, pilots hired by Northwest were required to undergo a training program, during which they were considered probationary employees and outside the bargaining unit represented by the Air Line Pilots Association ("ALPA"). Northwest had a 30-year practice of requiring these trainees to sign individual employment contracts or "Conditions of Employment." Some of the Conditions of Employment continued to apply after the pilot became a member of the ALPA unit. In 1995, Northwest added a provision to the Conditions of Employment which required each probationary pilot to submit to binding arbitration any claim involving employment discrimination, and that Condition continued to apply when the probationary pilot was promoted.
Claiming that Northwest bypassed the union in violation of the RLA by unilaterally implementing this Gilmer type arbitration provision without bargaining, ALPA brought suit in the federal district court for the District of Columbia seeking, among other things, injunctive relief. The district court agreed with ALPA and held that the provision in the "Conditions of Employment" requiring the pilot to submit statutory discrimination claims to arbitration was a mandatory subject of bargaining, and enjoined Northwest from applying the clause to any pilot in the ALPA unit.
On appeal, Northwest argued that the district court erred because under Gardner-Denver, a union cannot agree to a waiver of an individual's right to bring a discrimination claim in a judicial forum, and that as a consequence this right cannot be a mandatory subject of bargaining (i.e., it was free to deal directly with its employees over the arbitrability of such claims). The Union argued that Gilmer superseded Gardner-Denver, and accordingly, "there is no reason to doubt that the arbitration of statutory claims is a mandatory subject of bargaining" and that even if Gardner-Denver survived Gilmer, the arbitration of any employment-related claim, whatever its legal source, and the procedural rules for a Gilmer arbitration, directly relate to "rates of pay, rules, or working conditions," and are therefore mandatory subjects of bargaining.
The D.C. Circuit reversed the District Court and in doing so had no problem determining that Gardner-Denver still lives. According to the D.C. Circuit, the reasoning in Gardner-Denver that Title VII rights could form no part of the collective bargaining process was not, and could not have been, overruled by Gilmer since that case arose in a non-union context. Moreover, the Circuit noted that the Gilmer Court had specifically distinguished Gardner-Denver on that very basis, and therefore had left it intact. As a result, the D.C. Circuit announced a "clear rule of law" emerging from Gardner-Denver and Gilmer: -- "an individual may prospectively waive his own statutory right to a judicial forum, but his union may not prospectively waive that right for him." Id. at 483.
The D.C. Circuit then reached the heart of the matter -- given that Gardner-Denver precluded a union from waiving individual statutory rights, could the arbitrability of those individual rights be a mandatory subject of bargaining? No said the Court --and Northwest was free to bypass the Union and deal directly with the trainees. According to the D.C. Circuit:
The "essence of collective bargaining is a notion of mutuality, that if a subject is brought up each side has at least the authority both to offer and to concede." [Citation omitted]. It follows that a proposal to trade that which is not one's to give cannot be a mandatory subject of bargaining. [Citations omitted]. Because Gardner-Denver precludes ALPA from agreeing to binding arbitration of individual statutory claims, we conclude that the Arbitration Clause is not a mandatory subject of bargaining. Id.
The Court then considered ALPA's argument that even if the arbitrability of a statutory claim was not a mandatory subject, Northwest must deal with the Union about the procedures to be used in a "statutory" arbitration.6 The union argued, among other things, that those procedures are "a mandatory subject of bargaining because the remedy awarded by an arbitrator could affect the 'rates of pay, rules, or working conditions' of all employees, for example by restructuring their seniority rights." Id.
Again the D.C. Circuit disagreed and held that the union could have no role in negotiating either about Gilmer agreements or the procedural rules for Gilmer arbitrations. The Court noted that (1) a proceeding involving an individual employee could not have an adverse effect on the working conditions of the employees in the bargaining unit, and (2) the possibility that an arbitrator deciding an individual's statutory claim could render an award that would restructure seniority rights did not bring the remedy within the union's bargaining authority, because the employer would be precluded by law (under either the NLRA or the RLA) from making any unilateral change in seniority rights without first negotiating with the union. While the D.C. Circuit recognized that an employer could end up with two conflicting obligations -- a duty to comply with the arbitrator's award and a duty to bargain over mandatory subjects such as seniority -- that problem, found the D.C. Circuit, was the employer's and not the union's.7 Id.
Finally, the D.C. Circuit observed that if the union had a mandatory role in negotiating the terms that would apply to a Gilmer arbitration, it could "contrive to discourage the exercise of the employee's right to choose a forum," and such a result would interfere with the individual's statutory right by imposing the majoritarian concerns that motivate a union. Id. (Earlier in its opinion, the Court similarly observed that "a union may not use the employees' individual statutory right to a judicial forum as a bargaining chip to be exchanged for some benefit to the group." Id. at 484.) In the Court's view, such an influence would violate the Supreme Court's directive in Gardner-Denver that the rights conferred by discrimination statutes can "form no part of the collective-bargaining process."
Northwest is significant because for the first time, a court (and a particularly influential court) has given its imprimatur to an employer's attempt to bypass the union and negotiate Gilmer agreements directly with employees. Although Northwest is law only in the D.C. Circuit,8 it would appear likely that other Circuit Courts will adopt its persuasive reasoning given that most Circuits have already concluded that Gardner-Denver is alive and well.9
B. Gilmer Agreements as a Condition of Continued Employment -- The "Just Cause" Implications
In Northwest, the employer negotiated Gilmer agreements with "trainees" who were not yet covered by the collective bargaining agreement. While the agreement remained in effect after the trainee became a covered employee, the negotiations took place before the individual was represented, so the restrictions imposed on the employer by the RLA (which for this purpose are the same as those imposed by the NLRA) were of no concern during the negotiation process.
Northwest does not, however, provide guidance concerning the very real practical problems in negotiating Gilmer agreements with employees who are already members of the bargaining unit. In a non-union setting, employers often require employees to sign Gilmer agreements as a condition of continued employment (a euphemism for "under threat of termination"). Since in a union setting bargaining unit employees are usually covered by a just cause provision, an employer that terminated an employee for refusing to sign a Gilmer agreement would face a contract arbitration requesting reinstatement and back pay. And, under these circumstances it would be hard to imagine that any contract arbitrator would sustain the termination.10 If an employee signed a Gilmer agreement under threat of termination (or perhaps under individual protest or union protest), there would not be termination, but the threat of termination itself would likely provoke a contract arbitration, and an arbitrator could fashion a remedy which voids the agreement.
Similarly, in a non-union setting, employers often publicize Gilmer "agreements" in employee handbooks or on company intranets.11 Employees accept the "agreements" by continuing to work after being informed of the new conditions. In a union setting, in those jurisdictions which would enforce handbook or intranet Gilmer agreements, one way to avoid being bound by the Gilmer agreement is for the employee to resign. In that case, the union would likely pursue a grievance and arbitration under the just cause provision, alleging that the employee was constructively discharged, again seeking reinstatement and backpay. For those unionized employees who continued to work, the union would likely still grieve and arbitrate the publication of the Gilmer agreement and attempt to void it arguing that a forced resignation is analogous to a threat of termination.
However, many collective bargaining agreements provide for a "probationary period," during which period unit employees are not protected by the just cause provision of the collective bargaining agreement. As such, these probationary employees are in the same position as that of the trainees in Northwest; an employer has free reign to negotiate Gilmer agreements with its probationary employees and could mandate that they either sign Gilmer agreements or face termination, without the consequence of breaching the just cause provision. As in Northwest, these Gilmer agreements would continue in effect after the employee successfully completed the probationary period.
And, even if the collective bargaining agreements did not contain a probationary period during which the just cause provision is suspended, employers may still be able to negotiate Gilmer agreements with job applicants -- before the individuals become members of the bargaining unit. That is, an employer could include a Gilmer agreement in an offer letter, or in the employment application under which by accepting employment, the individual agrees to arbitrate individual statutory claims.
Also, rather than threatening an employee with discharge, or unilaterally imposing a Gilmer agreement in a handbook, an employer seeking to obtain a Gilmer agreement from a represented employee could offer some additional consideration to the employee so long as the employer makes clear that the consideration is in exchange for signing the agreement, and not in exchange for services rendered.
C. Does the Argument that Gilmer Nullified Gardner-Denver Make Sense
Were the Supreme Court to side with the Fourth Circuit in holding that a union's knowing and explicit waiver of an individual's statutory right to pursue a discrimination claim in a judicial forum is enforceable, then the arbitrability of these statutory rights would likely be a mandatory subject of bargaining and an employer would be prohibited from dealing directly with its unionized employees to obtain Gilmer agreements.
However, in this context, the employer could obtain a result which it could not obtain through direct dealing -- if it were able to extract a waiver from the bargaining representative, it would be relieved of the burden of defending against discrimination claims in two forums (both statutory claims and any contractual claims would be vindicated using the arbitration machinery of the collective bargaining agreement).
According to the Supreme Court in Wright, for any union waiver to be enforceable, it would have to be sufficiently clear and unmistakable; at a bare minimum, the collective bargaining agreement must explicitly incorporate statutory anti-discrimination requirements and clearly provide for arbitration of those requirements.12 Wright, 119 S.Ct. at 394.
In addition, in order to be enforceable in a particular jurisdiction, the union waiver would need to comply with the requirements for the enforcement of Gilmer agreements which the courts in that jurisdiction impose.13 For example, in some jurisdictions, courts require that a Gilmer agreement must include a provision that the employee will receive attorney fees if he/she wins a discrimination case. DeGaetano v. Smith Barney, 983 F.Supp. 459 (S.D.N.Y. 1997). In others, the arbitrator must be given authority to impose all remedies which the employee could obtain through a judicial proceeding. Paladino v. Arnet Computer Technologies, Inc., 134 F.3d 1054 (11th Cir. 1998). As a practical matter then, it would appear that arbitration provisions in collective bargaining agreements would have to be modified to encompass the Gilmer procedural safeguards imposed by courts in the relevant jurisdiction. And, if those procedural safeguards were absent, it appears that there is a real danger that an employee may be permitted to bring a lawsuit after the arbitration is over. See Pryner v. Tractor Supply Co., 109 F.3d 354, 361 (7th Cir. 1997) ("to the extent that the rights conferred by the collective bargaining agreements, or the sanctions available to the arbitrators, fall short of fully vindicating the plaintiffs' substantive and remedial statutory rights, the plaintiffs will be free to resume their suits after the arbitrators render their awards"). A full circle back to Gardner-Denver.
But, even if the waiver is clear and unmistakable, and procedural safeguards are in place, courts and commentators have recognized that a waiver may still be problematic because in most contract arbitrations, unions, not employees, are empowered to bring complaints. See e.g., Pryner, 109 F.3d at 362; The Committee on Labor and Employment Law, "Arbitration of Statutory Employment Discrimination Claims Under Collective Bargaining Agreements: Comments to the Secretary of Labor on the Report and Recommendations of the Commission on the Future of Worker-Management Relations," The Record of the Association of the Bar of the city of New York, Vol. 51, p. 154, at 159-160, March 1996; Reginald Alleyne, "Arbitrating Sexual Harassment Grievances: A Representation Dilemma for Unions," 2 U.Pa.J.Lab. & Employmnet L. 1 (1999). As Judge Posner noted in Pryner, generally in a collective bargaining agreement "the grievance and arbitration procedure can be invoked only by the union, and not by the worker . . . The worker has to persuade the union to prosecute his grievance and . . . to submit the grievance to arbitration."14 Id.
In all of this discussion and speculation, the union's duty of fair representation -- which the employee can enforce in court -- hovers. Indeed, the Fourth Circuit continually reasserts that union waivers of individual statutory rights are valid "because they rest on the premise of fair representation." See Carson v. Giant Foods, Inc., 175 F.3d 325 (4th Cir. 1999); Metropolitan Edison Co. v. NLRB, 103 S.Ct. 1467 (1983) (union's argument that it may not waive individual rights rejected because the union is subject to complete good faith and honesty of purpose in exercising its discretion).
Indeed, practical problems involving the duty of fair representation abound. Would unions be equipped to process statutory discrimination claims? Would unions afford the employee with the right to counsel? To what extent would the union permit the employee's counsel to control the arbitration? How would a union handle an harassment case which might pit one union member against the other? Would the delay and distraction of litigating statutory claims be overwhelming to a union with limited resources? Would unions, concerned about duty of fair representation exposure be forced into arbitrating every claim which has even a remote possibility of succeeding?15 It should be expected that an employer, wary of duty of fair representation claims and of the cost, distraction and delay of arbitrating statutory claims, would be unlikely to obtain a union waiver.
It is likely that eventually the Supreme Court will hold that Gardner-Denver is still good law, and also likely, although somewhat less so, that it will determine that an employer's negotiation of a Gilmer agreement with a unit member is not a mandatory subject of bargaining. If that be the case, then a union would be without authority to waive the represented employee's statutory forum, and an employer's negotiation directly with its employees to obtain a Gilmer agreement would not be an unfair labor practice. In that event, employers could require applicants to sign a Gilmer agreement as a condition of hire, or require employees not protected by a just cause provision to sign a Gilmer agreement under threat of termination. Once an employee becomes part of a bargaining unit and protected by a just cause provision, an employer could not, as a practical matter, require the employee to sign a Gilmer agreement as a condition of continued employment. Rather, the employer would be relegated to obtaining Gilmer agreements through genuinely mutual negotiations -- such as offering monetary consideration.
It is also possible that the Supreme Court could affirm the narrow holding of Gardner-Denver (that a union is without authority to waive an employee's right to a judicial forum) and could back away from the notion that Gilmer agreements form "no part of the collecting bargaining process;" it could hold that the subject of remedying employment discrimination is so intertwined with wages, hours and conditions of employment as to fall within the ambit of a mandatory subject of bargaining, and even though bargaining would be required, bargaining would be limited because the union could not waive the right to a judicial forum. That is, within a union setting, while a union would still not be able to waive the represented employee's right to a judicial forum, neither could the employer engage in direct dealing without the union's assent. It is likely that even if the union allowed direct dealing, the union would negotiate certain parameters or minimum conditions for the direct dealing (e.g., a minimum monetary amount an employee must be paid in exchange for signing a Gilmer agreement; when and how often the employer might approach the employee; who may be present when the employer approaches the employee -- the shop steward, a union representative, etc.)
Finally, the Supreme Court could hold that Gardner-Denver was, in effect, overruled by Gilmer and that the waiver is either a mandatory or permissive subject of bargaining. As a result, a union and employer would be empowered to agree to a waiver of the employee's statutory forum, but the waiver, once given will, in our judgment, be so fraught with the possibility of collateral litigation that the risks are likely to outweigh the rewards.
1 Jerome B. Kauff is a member of Kauff, McClain & McGuire LLP. Laura L. Putney is an associate with the firm.
2 The notable exception is the Ninth Circuit which has held that arbitration agreements contained in employment contracts are not enforceable. Duffiel v. Robertson Stephens & Co., 144 F.3d 182 (9th Cir. 1998); Craft v. Campbell Soup Co., 161 F.3d 1199 (9th Cir. 1998).
3 See e.g., Bolden v.SEPTA, 953 F.2d 807 (3rd Cir. 1991); Sewell v. New York City Transit Authority, 809 F.Supp. 208 (E.D.N.Y. 1992); Rosen v. Tranx Ltd., 816 F.Supp. 1364 (D. Minn. 1993); Claps v. Moliterno Store Sales, Inc., 819 F.Supp. 141 (d. Conn. 1993).
4 For purposes of this article, we assume that the collective bargaining agreement, as most do, contains a provision that prohibits the employer from terminating an employee except for just cause and a provision that prohibits discrimination on the basis of membership in various "protected classes," e.g., age, race, sex, national origin and union membership.
5 Fundamental principals of labor dictate the it is an unfair labor practice for an employer to bypass the union and negotiate directly with its employees concerning any mandatory subject of bargaining. Direct dealing, by its very nature, improperly affects the bargaining relationship. See e.g., Beverly Cal. Corp., 326 NLRB No. 30 (1998); American Pine Lodge Nursing & Rehabilitation Center, 325 NLRB No. 4 (1997). Moreover, the notion that discrimination in employment is a mandatory subject of bargaining is not subject to question. Jubilee Mfg. Co., 202 NLRB 272 (1973). Indeed, anti-discrimination provisions are standard subjects for bargaining, and approximately 87% of collective bargaining agreements contain such provisions. Basic Patterns in Union Contracts (14th ed. 1995) at 127.
6 It is not clear what "procedures" fall within the ambit of mandatory subjects but conjecture would suggest that a union would be interested in negotiating over, among other things, the order of the two arbitrations, the limitations period for bringing a statutory arbitration, the procedure for selecting the statutory arbitrator and the remedies available to the statutory arbitrator.
7 In practice, an employer would likely avoid this problem by challenging the arbitrator's award in a court, on the grounds it was unlawful.
8 Indeed, the Northwest case was decided by a panel, and it is likely that ALPA will seek rehearing en banc. In that event, the panel's decision would not be binding even in the D.C. Circuit.
9 The notable exception is the Ninth Circuit which has held that arbitration agreements contained in employment contracts are not enforceable. Duffiel v. Robertson Stephens & Co., 144 F.3d 182 (9th Cir. 1998); Craft v. Campbell Soup Co., 161 F.3d 1199 (9th Cir. 1998).
10 A union would likely instruct its members to refuse to sign Gilmer agreements thereby forcing the employer's hand.
11 Courts are divided concerning whether and in what circumstances such "agreements" are knowing waivers of the right to a judicial forum. See e.g., Patterson v. Tenet Healthcare, 113 F.3d 832 (8th Cir. 1997); Nelson v. Cyprus Bagdad Copper Corp., 119 F.3d 756 (9th Cir. 1997).
12 It should be noted that since Wright, the Fourth Circuit has delineated two separate standards, either of which must be met in order for a union waiver to be valid: (1) the collective bargaining agreement "must contain a clear and unmistakable provision under which the employees agree to submit to arbitration all federal causes of action arising out of their employment; or (2) the arbitration clause itself must specifically incorporate statutory anti-discrimination requirements, which requirements are explicitly incorporated elsewhere in the agreement. Carson v. Giant Foods, Inc., 175 F.3d 325 (4th Cir. 1999).
13 However, the Supreme Court has held that the lack of discovery available in an arbitration proceeding is not an impediment to enforcing an agreement. Gilmer, 111 S.Ct. at 1649.
14 Judge Posner noted in Pryner that: "[t]he essential conflict is between majority and minority rights . . . We may assume that the union will not engage in actionable discrimination against minority workers. But we may not assume that it will be highly sensitive to their 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. The employers' position delivers the enforcement of the rights of these minorities into the hands of the majority, and we do not think that this result is consistent with the policy of these statutes or justified by the abstract desirability of allowing unions and employers to cut their own deals." Pryner, 109 F.3d at 362-363.
15 Employees often name the employer as a co-defendant in duty of fair representation cases, and the employer is jointly and severably liable if a violation by the union is found. Accordingly, employers would find themselves in a judicial forum defending the duty of fair representation claim and if it and the union lost that case, the remedy imposed might permit the relitigation of the statutory claim in a judicial forum (see Pryner, supra).