I do not know what the practice is in other jurisdictions, but collective bargaining agreements (CBAs) in the New Mexico public sector typically include a clause prohibiting all kinds of statutorily illegal discrimination, not just that related to collective bargaining. In these same contracts, there are also mandatory grievance-arbitration requirements that purportedly apply to all provisions except those that are expressly exempted. Moreover, although these contracts frequently state that claims for discrimination or retaliation based on union activity may be brought before the state labor board, the New Mexico Public Employee Labor Relations Board (PELRB), there is no such carve out or proviso concerning other statutory discrimination claims.
While a hearing examiner with the PELRB I had previously wondered, privately, if such clauses could be read together to require employees to assert these claims through arbitration. I had, frankly, tended to assume such a thing could not be a good thing. However, Hoyt N. Wheeler has written a provocative, pause-giving little article in the LERA publication, Perspectives on Work, Vol. 14*, Summer 2010/Winter 2011, about the possible positive outcomes such arbitration. See “Unions and the Arbitration of Statutory Rights,” Perspectives at 26-28.
Mr. Wheeler was addressing 14 Penn Plaza v. Pyett, 129 S.Ct. 1456 (2009), which dealt with claims raised under the Age Discrimination in Employment Act (ADEA). In that case certain employees, who were represented by the SEIU Local 32BJ for purposes of collective bargaining, alleged that the employer was discriminatorily reassigning them due to their age. The Court ultimately held that provisions in a CBA that clearly and unmistakably require union members to arbitrate ADEA claims are enforceable as a matter of federal law. Id. at 1463-1474.
In so concluding, the Court reviewed and considered earlier law, including Gilmer v. Interstate/Johnson Lane Corp., 500 US 20 (1991), and Alexander v. Gardner-Denver Co., 415 US 36 (1974). In Gilmer, decided in the non-union context, the Court enforced an employment contract arbitration clause in the face of a claim for ADEA discrimination. In contrast, Alexander was decided in the union context, and in it the Court noted that the arbitration forum was “ill suited” to address ADEA claims. However, as the Court pointed out in 14 Penn Plaza, the Alexander decision merely concluded an employee was not a priori prohibited from subsequently pursuing ADEA claims in federal court after arbitration. Additionally, the 14 Penn Plaza Court pointed out that Alexander’s “broad dicta,” which was highly critical of the use of arbitration for the vindication of statutory antidiscrimination rights[,] … rested on a misconceived view of arbitration that this Court has since abandoned.” 14 Penn Plaza at 1469.
Granted, the relevant clauses in 14 Penn Plaza likely constituted a much more “clear and unmistakable” waiver of the right to exercise the various individual statutory rights, than do the clauses in New Mexico contracts. Id. at 1461. The contract clause in 14 Penn Plaza was quite precise, providing as follows:
§30 NO DISCRIMINATION. 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 Disabilities 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 the grievance and arbitration procedures (Article V and VI) as the sole and exclusive or violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.
Nonetheless, perhaps the parties would want to consider renegotiating local contracts to clearly and unmistakably apply to other discrimination claims, after hearing out Mr. Wheeler. Mr. Wheeler sees a number potential advantages in such an expansive application of CBA arbitration.
For all parties, arbitration offers a relatively informal, quick, and expert solution to disputes. From the employer’s perspective, there are several other advantages. First and foremost, the union provides an advocate at no cost to the employee…
For unions, this path has … some potential payoffs … [A] union might make an arbitration clause of this nature a prime organizing tool … A great advantage that the union offers is representation of the employees, usually be a union steward, at the earliest stages of a grievance procedure.
Perspectives at 27-28. Wheeler further goes on to posit such benefits as:
- a reduction in employer opposition to unions;
- reduction in potential litigation cost;
- consolidation of all employment related claims into a single forum; and
- more certain, final decisions because they would “be less vulnerable to legal attacks on the grounds of unconscionability,” as are many arbitration clauses in current individual employment contracts.
Id. at 28.
I find Mr. Wheeler’s take frankly fascinating. First, it coincides nicely with my recent speculation that, in today’s “new normal,” perhaps unions’ best value to employees in the future will be in the resolution of grievances. If so, a natural outgrowth could be expanding the types of employment claims resolved.
Second, it dovetails very nicely with my biases and self-interest as a labor/employment ADR professional. The number and type of employment discrimination claims have mushroomed over the years, and I would love to see more of this wide array of claims resolved efficiently through ADR.
If you are interested in neutral services such as arbitration, mediation or contract ALJ services, in labor/employment or other areas of the law, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
