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March 5, 1997

ELFRIN SMITH, Plaintiff,

The opinion of the court was delivered by: SHADUR

 Elfrin Smith ("Smith") has sued his ex-employer CPC International Inc. ("CPC," mistakenly named as CPC Foodservice" in Smith's Complaint), complaining that CPC's firing of Smith was both (1) a violation of the Family Medical Leave Act of 1993 ("Act," which vests federal jurisdiction over such claims under 29 U.S.C. § 2617(a)(2) *fn1" and 28 U.S.C. § 1331) and (2) a retaliatory discharge in violation of Illinois public policy (a claim asserted under the supplemental jurisdiction provisions of 28 U.S.C. § 1367(a)). At the February 7, 1997 status hearing, the first one held after CPC had filed its Answer and Affirmative Defenses ("ADs") to Smith's claim advanced under the Act, *fn2" this Court directed counsel for both parties to file memoranda addressing the potentially dispositive issues posed by ADs 1 and 2. They have done so in timely fashion, and this memorandum opinion and order addresses the matter.

 CPC points to the mandatory grievance-and-arbitration provisions contained in the collective bargaining agreement ("CBA") between CPC and the union ("Union") that represented Smith and all other production employees at the facility where he worked. That CBA contained an express agreement to arbitrate all unresolved disputes involving (among other things) the application of any of the CBA's provisions, and in that respect it included (as part of its Article VI's detailed provisions regarding leaves of absence) an express provision that mandated CPC's conformity to the Act's requirements:

SECTION 6.7 Family Leave of Absence
Leaves of absence relating to the Family Leave Act of 1993 will be granted in accordance with the law.

 In addition the CBA included a prohibition against discrimination on various specified grounds that tracked federal anti-dissemination laws (CBA § 1.7), and it also prohibited any covered employee's termination "without just cause" (CBA § 2.2, and see CBA § 4.5(b)).

 As CPC would have it, those provisions mandate that Smith must have resorted to the CBA's detailed grievance and arbitration procedure rather than bringing his claim to this federal court. In fact Smith did file a grievance about March 24, 1995 (the day after his employment was terminated), asserting that his termination was not for "good cause." That filing led to an April 5 meeting among Smith, CPC representatives and Union representatives (as called for by the CBA's grievance procedure), during which meeting Smith was asked to provide documentation (as required by the Act) regarding his asserted failure to return from his family and medical leave on a timely basis. Nonetheless Smith never provided the requested documents, nor did he pursue the remaining stages of the CBA's grievance-and-arbitration process--he did not assist the Union in prosecuting his grievance or take any other actions to exhaust his remedies under the CBA.

 This situation poses another instance of the tension that exists between Alexander v. Gardner-Denver Co., 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974), which held that an arbitrator's decision under a CBA is neither preemptive nor conclusive when an employee later seeks to sue his or her employer claiming discrimination under Title VII, and the considerably more recent decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 114 L. Ed. 2d 26, 111 S. Ct. 1647 (1991), which has held that statutorily-based claims are just as subject to enforceable agreements to arbitrate as non-statutory claims. CPC's Mem. 7 urges that Gilmer "effectively overruled Gardener-Denver [sic] when it unequivocally stated that statutory claims may be subject to arbitration unless Congress demonstrated a clear intent that the statutory right at issue was not waivable." Smith's position is the polar opposite--his Mem. 5-8 asserts that Gardner-Denver is still alive and well and living in Washington (and hence a fortiori in Chicago) and that it "applies to the Family and Medical Leave Act right down the line" (id. at 6).

 This Court need not subscribe to the extreme position advanced by either litigant--either the death of Gardner-Denver or its unimpaired vitality in all respects. Instead the parties' positions will be examined in light of the manner in which Gilmer itself distinguished Gardner-Denver and the succeeding cases that had followed it (500 U.S. at 35 (citation omitted)):

 Here by contrast "the issue of the enforceability of an agreement to arbitrate statutory claims" is presented directly: CPC's CBA § 6.7 sets out CPC's express promise to comply with the Act, and the CBA's arbitration agreement is all-encompassing, extending to "any dispute or difference of opinion . . . between the Company and any of its employees covered by this Agreement, involving the meaning, interpretation or application of the provisions of this Agreement" (CBA § 3.1). *fn3" And that in turn means that, with employees' rights under the Act coming directly within the scope of the expansive grievance and arbitration provisions, unlike Gardner-Denver an arbitrator in Smith's case would have been "authorized to resolve such [a] claim[ ]" that CPC had breached the CBA by its noncompliance with the Act. *fn4" As for the issue of representation by Smith's Union, in this instance there is no basis whatever for suggesting the existence of any "tension between collective representation and individual statutory rights"--instead the Union representatives had specifically taken up the cudgels for Smith, and it was his own actions that prevented the Union from pursuing his rights. Finally, the "liberal federal policy favoring arbitration agreements" applies not only to the Federal Arbitration Act but to labor-based disputes as well (a principle established by the famous Steelworkers Trilogy over three decades ago and consistently reiterated since then).

 There is more as well. Gilmer, 500 U.S. at 26 reiterated the proposition announced in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 87 L. Ed. 2d 444, 105 S. Ct. 3346 (1985) that "having made the bargain to arbitrate, the parties should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." And in that respect Gilmer, id. has placed the burden on the party seeking to avoid arbitration to demonstrate that congressional intention. In this instance the Act clearly reflects no such preclusive intention, and is indeed entirely consistent with a resort to arbitration rather than treating such resort as overridden by pursuing a lawsuit under Section 2617:

1. It should be mentioned first of all that the Act was adopted in 1993, at a time when Gilmer and the principles that it announced were already in place. Thus Congress must be presumed to have been well aware of the Gilmer-dictated need to evince its intention to preclude parties from waiving a judicial forum for their claims under the Act if Congress really wanted to do that. And the Act is wholly devoid of any such provision.
2. Both the findings and the purposes of the Act as expressed in Act § 2601 reflect an obvious awareness of the fact that the rights conferred by the Act establish employment policies of the same type that are typically embraced in CBAs. Indeed, the effective-date adjunct to the Act (Section 405 of Pub. L. 103-3) had a special provision as to the Act's date of effectiveness with respect to collective bargaining agreements that had been in place before the more generally prescribed effective date of the Act--a ...

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