Suppose a union employee is unhappy with her union representation or the arbitration procedures and wants to pursue her employment law claims in federal court. Can she do both?
Well, it depends on the precise language in the collective bargaining agreement (CBA).
If the CBA “clearly and unmistakably” waives the employees’ right to file certain types of claims in court, the employee may be forced to accept arbitration on those claims. That was the holding of 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S. Ct. 1456, 173 L. Ed. 2d 398 (2009). In a 5-4 decision written by Justice Thomas, the Court looked to the precise language of the CBA. In Penn Plaza, the CBA stated:
“[There] shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disability Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code . . . or any other similar laws, rules or regulations. All such claims shall be subject to grievance and arbitration procedures . . . as the sole and exclusive remedy for violations.” (emphasis added).
Note that this CBA did two things: (1) it defined the specific statutes; and (2) it stated that arbitration was the sole and exclusive remedy for those particular statutes. This type of language was enough to foreclose any judicial lawsuit.
Note, too, that Penn Plaza does not mean that mere mention of non-discrimination language in a CBA, or even the listing of federal statutes in the CBA is sufficient to foreclose judicial remedy. Where a CBA explicitly lists certain statutory claims, it must be contained within the context of a grievance resolution procedure, not as part of a compliance provision. Simply put, a CBA which includes a provision preventing discrimination against employees under a federal statute is not the same as requiring union members to arbitrate such statutory claims. See Bratten v. SSI Services, Inc., 185 F.3d 625 (6th Cir. 1999). A contractual promise to abide by certain civil rights laws does not satisfy the “clearly and unmistakably” requirement of Penn Plaza.
Bottom Line: If a CBA “clearly and unmistakably” requires union members to arbitrate certain statutory claims, then the employee’s claims are subject to grievance and arbitration procedures. But, when a CBA falls short of satisfying this high standard, an employee is free to pursue his or her claims through the judicial system.