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57 Temp. L.Q. 47 (1984)
Conflict between Seniority and Affirmative Action Principles in Labor Arbitration, and Consequent Problems of Judicial Review

handle is hein.journals/temple57 and id is 53 raw text is: CONFLICT BETWEEN SENIORITY AND AFFIRMATIVE ACTION PRINCIPLES IN LABOR ARBITRATION, AND CONSEQUENT PROBLEMS OF JUDICIAL REVIEW David L. Gregory* INTRODUCTION This article is a critical examination of W.R. Grace v. Local 759, Interna- tional Union of the United Rubber Workers,' the Supreme Court's most recent and significent pronouncement on the contours of arbitral authority and judicial review of arbitration awards. W.R. Grace reaffirmed the impor- tant role of the labor union by upholding the integrity of the seniority provi- sions of a collective bargaining agreement against unilateral alteration by an employer and the Equal Employment Opportunity Commission (EEOC).2 Although W.R. Grace is technically correct and legitimately supports the fundamental labor law principle of seniority, it may be inimical to the equally fundamental national policies of fair employment and affirmative action. In W.R. Grace the Supreme Court unanimously affirmed the Fifth Cir- cuit's3 enforcement of an arbitration award of backpay damages to senior male employees who were laid off while junior female employees were re- tained in accordance with the provisions of a conciliation agreement between the employer and the EEOC.4 The terms of the conciliation agreement, which contained a quota system for layoffs, contravened the seniority terms of the collective bargaining agreement.5 The union refused to agree to the concilia- tion agreement quota system and instead insisted on strict compliance with the seniority terms of the collective bargaining agreement.6 Despite one arbitra- tion award and repeated federal district court decisions sustaining the layoffs because they comported with the affirmative action conciliation agreement, the Fifth Circuit and the Supreme Court ultimately vindicated the union's position of strict adherence to the traditional seniority provisions7 of the collective bargaining agreement.8 *Associate Professor of Law, St. John's University Law School; LL.M., Yale University Law School, 1982; J.D., University of Detroit, 1980; M.B.A., Wayne State University, 1977; B.A., Catholic University of America, 1973. 1. 103 S. Ct. 2177 (1983). 2. See id. at 2186. 3. W.R. Grace v. Local 759, Int'l Union of the United Rubber Workers, 652 F.2d 1248 (5th Cir. 1981). 4. 103 S. Ct. at 2179. 5. Id. at 2180. 6. Id. 7. Traditional seniority essentially provides that the last person hired, who is the most junior employee with the least seniority, will be the first laid off in a reduction in force. See Gunther v. San Diego & Ariz. E. Ry., 198 F. Supp. 402, 410 (1961). 8. W.R. Grace v. Local 759, Int'l Union of the United Rubber Workers, 652 F.2d 1248, 1255, 1258 (5th Cir. 1981); 103 S. Ct. at 2180. But see infra note 118 for a discussion clarifying the

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