Supreme Court Again Limits Workers' Right to the Courts

The Supreme Court this week issued a decision in 14 Penn Plaza LLC v. Pyett that takes away the right of union members to bring statutory claims, such as Title VII or the Age Discrimination in Employment Act, against their employers in court, if their collective bargaining agreement says that those claims must be arbitrated. This decision overturns longstanding precedent in the Second Circuit and other circuits that held such CBA clauses unenforceable. Justice Thomas wrote the opinion.

Just as in the Court's prior decisions enforcing employer-mandated arbitration clauses, this decision repeats the usual fig-leaf that when employees are forced into arbitration they are only giving up their choice of forum, not any of their substantive rights. What makes this decision even more dishonest is that it glosses over the fact that the right to a CBA arbitration does not belong to the employee at all, but their union. It is the union's choice alone to decide whether or not to arbitrate, and which claims to bring. A union is given great discretion under the law to make these decisions, since it must act for the good of all its members, and it is easy to envision various scenarios, all perfectly legal, where a union decides to forego raising a potentially inflammatory discrimination claim in order to preserve relations with management, or to devote their energies elsewhere.

Indeed, in Pyett the union decided not to bring the employees' discrimination claim, and there is no suggestion that choice was wrongful. According to Justice Thomas, this means the employees had no way to vindicate their right to be free from discrimination. Thus, a union member will often find him or herself in the absurd position of having fewer rights to be free of unlawful discrimination than someone without a union.

The reach of the opinion is limited to those CBA's that "clearly and unmistakably" state that statutory claims must be arbitrated. Not all CBA's have these provisions, and it remains to be seen if this decision leads management to push for such provisions in future CBA's. This may place unions in a difficult bargaining position, as they may be pressured to, in effect, give up their employee's statutory rights in return for wages or benefits.

Union members who believe they are victims of discimination now have even more reason to consult with a private attorney. If the member's CBA "clearly and unmistakably" requires arbitration of statutory claims, the member should consider asking the union to allow outside counsel to represent the member at the arbitration, since union lawyers are likely to be unfamiliar with the applicable statutes and available remedies. BMBB has represented union members under those sort of arrangements, including arbitrations involving Local 32BJ, the same union involved in the Pyett decision.

Finally, the Court's misguided decision can and should be remedied by Congress. Section 159(a) of the National Labor Relations Act should be amended to remove statutory claims from the collective bargaining process. This needed not just to allow union members to proceed in court, but to alloe them to have their rights at all.

NYLJ Article about BMBB's Case, Anderson v. NYS

Today's New York Law Journal published on its first page the following article about one of BMBB's cases, Anderson v. New York State et al:

New York state, in a motion for summary judgment filed last week, portrayed an attorney who sought $10 million damages for her firing by the First Department's Departmental Disciplinary Committee as violating the direct orders of her superiors. The lawyer, Christine C. Anderson, filed the lawsuit in 2007 claiming she was fired after six years as a staff attorney because she complained the committee's chief counsel and his top deputy were "whitewashing" complaints against "certain select attorneys" (NYLJ, Oct. 30, 2007). A brief filed for the defendants -- the state and three committee officials -- stated that instead of following her direct supervisor's orders, Ms. Anderson engaged in "an eight month campaign to circumvent and berate" the supervisor, Sherry K. Cohen. The brief, which was written by Assistant Attorneys General Lee Alan Adlerstein and Wesley E. Bauman, also contended that the "highest officers" in the First Department were aware of Ms. Anderson's "ascerbic and posturing conduct." Ms. Anderson's attorney, John A. Beranbaum, reported that the defendant's brief is using an "employers' time-honored technique of trying to trivialize a valid whistleblowing claim" by labeling "a disgruntled employee's personal grievance." Mr. Beranbaum, of Beranbaum Menken Ben-Asher & Bierman, added, "at the end of the day, this tactic will prove unsuccessful."