In a set back for unionized employees, the Supreme Court holds in a 5-4 decision ( 14 Penn Plaza LLC v. Pyett, No. 07-581 (April 1, 2009)) that where a collective bargaining agreement clearly and unmistakably assigns statutory discrimination claims to arbitration, the employee in the bargaining unit loses the right to proceed with an individual civil action and is left with arbitration as his or her only remedy.
The Plaintiffs in this case were members of the Service Employees International Union, Local 32BJ (Union). Under the National Labor Relations Act, the Union is the exclusive bargaining representative of employees within the building-services industry in New York City, which includes building cleaners, porters, and doorpersons. The Union has exclusive authority to bargain on behalf of its members over their “rates of pay, wages, hours of employment, or other conditions of employment,” 29 U. S. C. §159(a), and engages in industry-wide collective bargaining with the Realty Advisory Board on Labor Relations, Inc. (RAB), a multi-employer bargaining association for the New York City real estate industry. The agreement between the Union and the RAB is embodied in their Collective Bargaining Agreement for Contractors and Building Owners (CBA). The CBA requires union members to submit all claims of employment discrimination to binding arbitration under the CBA’s grievance and dispute resolution procedures.
The Union initially requested arbitration under the CBA, but after the initial hearing, withdrew the age discrimination claims on the ground that its consent to the new security contract precluded it from objecting to respondents’ reassignments as discriminatory. Respondents then filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners had violated their ADEA rights, and the EEOC issued each of them a right-to-sue notice. In the ensuing lawsuit, the District Court denied petitioners’ motion to compel arbitration of respondents’ age discrimination claims. The Second Circuit affirmed, holding that Alexander v. Gardner-Denver Co., 415 U. S. 36, forbids enforcement of collective-bargaining provisions requiring arbitration of ADEA claims.
The Supreme Court held that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. With Justice Clarence Thomas writing for the majority and joined by Chief Justice John G. Roberts and Justices Anthony G. Scalia, Anthony M. Kennedy, and Samuel A. Alito, the Court reasoned that ,here, the arbitration provision was a "bargained-for exchange" in the collective bargaining agreement and thus should not be interfered with by the courts. The Court went on to state that because the ADEA itself did not mandate such interference, the arbitration provision should be enforced.
Justice John Paul Stevens wrote a separate dissenting opinion. He noted that the majority opinion was a departure from Supreme Court precedent with respect to arbitration clauses in collective bargaining agreements. He went on to state that it was it was Congress' responsibility to reassess the policy arguments favoring arbitration rather than for the Supreme Court to decide. Justice David H. Souter also wrote a separate dissenting opinion and was joined by Justices Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer. He reemphasized that Supreme Court precedent did not preclude the pursuit of an ADEA claim because of an arbitration provision in a collective bargaining agreement, as in this case.
My take: In reality, this still leaves unionized employees in a better position than those without union representation. Most non-union employees have absolutely no choice as to whether discrimination claims will be forced into arbitration. In most states, a company can simply maintain an arbitration policy for its employees and force them to agree to same in order to continue employment. At least in the case of unionized employees, workers can negotiate with the company, through their union, and either not agree to arbitration clauses or at least get some other concession or compensation in exchange for giving up the "right" to trial by jury.