Labor & Employment Law

CBA may not require an employee to waive the right to sue in a federal forum

By Harvey Randall, Esq.

CBA may not require an employee to waive the right to sue in a federal forum
Pyett v Pennsylvania Building Co., et al, USCA, Second Circuit, 498 F.3d 88

Pyett and other employees sued Pennsylvania Building alleging that they had been subjected to unlawful discrimination because of age. They contended that transferring them from their positions and replacing them with younger employees violated the Age Discrimination in Employment Act (?ADEA?), 29 USC. §621 et seq., the New York State Human Rights Law, N.Y. Executive Law §290 et seq., and the New York City Administrative Code, N.Y.C. Admin. Code §8-107. Pyett and other employees had filed charges of discrimination with the Equal Employment Opportunity Commission (?EEOC?). The EEOC issued a Dismissal and Notice of Rights on June 29, 2004 for plaintiffs Phillips and O?Connell and on September 14, 2004 for plaintiff Pyett. In each case, the EEOC determined that its ?review of the evidence . . . fail[ed] to indicate that a violation ha[d] occurred,? and notified each plaintiff of his right to sue.

Pennsylvania asked the federal district court to dismiss Pyett? petition, contending that arbitration pursuant to the provisions of the collective bargaining agreement precluded Pyett?s suing in federal court. Pennsylvania argued that the CBA contains a mandatory arbitration clause for discrimination claims, which provided: The decision notes that the Union declined to pursue the employees? claims of wrongful transfer and age discrimination as part of grievance/arbitration it filed against the employer on behalf of these workers. The Circuit Court noted that this case illustrates why the Supreme Court may be reluctant to treat arbitration provisions in CBAs the same as arbitration provisions in individual contracts. If, as Pyett alleged, the Union refused to submit the wrongful transfer claims to arbitration because the Union had agreed to the new contract, the interests of the Union and the interests of Pyett are clearly in conflict.

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 characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, New Jersey Law Against Discrimination, New Jersey Conscientious Employee Protection Act, Connecticut Fair Employer Practices Act, or any other similar laws, rules or regulations. All such claims shall be subject to the grievance and arbitration procedure (Articles V and VI [of the CBA]) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.

In response, the District Court ruled that this arbitration clause in the collective bargaining agreement was unenforceable under Rogers v. New York University, 220 F.3d 73; the Circuit Court of Appeals agreed.

In so doing, the Circuit Court said that it here would ?reaffirm our decision in Rogers that mandatory arbitration clauses in collective bargaining agreements are unenforceable to the extent they waive the rights of covered workers to a judicial forum for federal statutory causes of action.?

Noting that in Gilmer v Interstate/Johnson Lane Corp., 500 US 20, the U.S. Supreme Court held that an individual employee who had agreed individually to waive his right to a federal forum could be compelled to arbitrate a federal age discrimination claim, in contrast to Glimer, binding Second Circuit precedent [1]demonstrates a collective bargaining agreement could not waive covered workers? rights to a judicial forum for causes of action created by Congress -- in Glimer, a cause of action created by Title VII.

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[1] Fayer v. Town of Middlebury, 258 F.3d 117

Full post as published by New York Public Personnel Law on April 17, 2008 (boomark / email).