A High-Court Setback For Union Members

I have often reported that public employees belonging to labor unions enjoy not only contractual job protection pursuant to their unions' collective bargaining agreements, but also statutory job protection. In the past, union members in New York could always invoke Federal anti-discrimination statutes regardless of whether their unions negotiated anti-discrimination provisions into their collective bargaining agreements.

With this month's Supreme Court decision in 14 Penn Plaza v. Pyett, a union member's right to rely on Federal anti-discrimination laws may now be lost. Pyett is significant and very troubling.

Precedent Reversed

I have had some experience protecting a union member's right to allege discrimination in court. In 2000, I represented the plaintiff in Rogers v. N.Y.U., a Federal appeals court case cited in Pyett. The Rogers court had concurred with our position that a labor union may not waive its members' right to enforce discrimination statutes in court. Unfortunately, Pyett reverses Rogers, at least with regard to Federal anti-discrimination laws where the union's negotiated waiver is deemed unmistakable.

In Pyett, the plaintiffs were members of New York's Local 32BJ union. They filed a grievance with their union alleging improper reassignment to less-desirable positions, based on their age, in violation of the union's contractual anti-discrimination provision.

The union, at first, requested arbitration but eventually withdrew its request. The plaintiffs then filed a Charge of Discrimination with the Equal Employment Opportunity Commission and ultimately a Federal court complaint. In response, the defendants moved to dismiss plaintiffs' lawsuit by having the courts compel arbitration of the age discrimination claims.

Rights Waived

In a sharply divided 5-4 decision, the Supreme Court sided with defendants. The Court concluded that labor unions may waive their members' right to file a lawsuit based on the Federal Age Discrimination in Employment Act ("ADEA"), provided the waiver is clear and unmistakable.

In Pyett, the Local 32BJ collectivebargaining agreement's anti-discrimination provision was unambiguous. The union had negotiated the following provision: "There shall be no discrimination. . . by reason of race, creed, color, age, disability, national origin, sex, union membership . . . . All such claims shall be subject to the grievance and arbitration procedures as the sole and exclusive remedy for violations."

In considering the Local 32BJ antidiscrimination provision, the Supreme Court first determined that workplace discrimination is a matter subject to collective bargaining as a "condition of employment." Second, the Court concluded that the ADEA itself does not preclude arbitration of age discrimination claims. The Court then engaged in a mighty effort to justify Pyett's departure from years of Supreme Court precedent prohibiting union-negotiated waivers of statutory discrimination claims.

Open Questions

Pyett presents some open questions. What constitutes a clear and unmistakable waiver? Clearly, the Local 32BJ contractual provision making arbitration the "sole and exclusive" remedy for discrimination claims is clear. However, what if a union contract merely prohibits employment discrimination without making arbitration the sole and exclusive remedy? Certainly, one can argue that a mere anti-discrimination provision is distinguishable from the above-cited Pyett clause and thus would not qualify as a waiver.

Other open questions concern the extent of a union's control over the grievance process. For example, if a union can deny arbitration to a member alleging employment discrimination, should that member also be barred from court? Also, if a union controls the presentation of the grievance at arbitration, that too may invalidate any waiver. As stated by one dissenting justice: "the majority opinion may have little effect, for it explicitly reserves the question whether a CBA's waiver of a judicial forum is enforceable when the union controls access to and presentation of employees' claims in arbitration . . . 'which is usually the case.' "

If you are a union member and are considering filing a Federal discrimination claim in court, you must first determine whether your union's collective bargaining agreement contains an anti-discrimination clause and, if so, whether arbitration is deemed the sole and exclusive remedy for discrimination claims. Even if there appears to be a contractual waiver, you may still be able to have your Federal discrimination claims heard in court if your union won't request arbitration on your behalf or controls the presentation of your grievance (by, for example, not permitting you to be represented by your own private attorney at arbitration).

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.