U.S. Supreme Court Administers Coup de Gras to Alexander v. Gardner-Denver. . . Or Does It?
Posted by Sheldon N. Sandler On April 1, 2009 In: U.S. Supreme Court Decisions , Union and Labor Issues
Employers have another U.S. Supreme Court decision to contend with, 14 Penn Plaza LLC v. Pyett. In a 5-4 decision written by Justice Thomas, the Supreme Court today held that, at least in some circumstances, its 35-year old decision in Alexander v. Gardner-Denver Co. does not prevent a unionized employer from forcing an employee belonging to the bargaining unit to arbitrate his age discrimination claim rather than pursuing it through an ADEA lawsuit, where the union entered into a collective bargaining agreement that included a clear and express provision prohibiting discrimination. Depending on the prism through which one views the decision, it is either a giant step in overruling Gardner-Denver or a very narrow ruling that depends entirely on the specific facts and the language contained in the CBA.
Justice Thomas’ opinion makes a distinction between substantive rights and the forum in which those rights are pursued, and holds that allowing an age discrimination claim to proceed in an arbitral forum rather than in court does not affect the individual’s substantive right to be free from age discrimination. “The right to a judicial forum is not the nonwaivable ‘substantive right’ protected by the ADEA.” Since that is now the law of the land, would the Court also uphold individual employment agreements that contain an explicit waiver of the right to the judicial forum? One suspects that the current majority would see no difference, since the majority opinion states that “[N]othing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative.”
Such individual waiver agreements have had a checkered history, but may gain new life as a result of the Pyett decision. No doubt the dissenters would say that such an agreement, signed by the individual in order to obtain employment, is a contract of adhesion. But for the moment, it seems likely that any clear and unmistakable waiver of the right to pursue a discrimination claim in court will be upheld. As the dissent points out in what may be nothing more than a bit of wishful thinking, the majority left itself some wiggle room and the decision “may have little effect” since the court took pains to point out that it was not deciding whether a CBA’s waiver of a judicial forum is enforceable when the union has exclusive control over access to and presentation of employees’ claims in arbitration. So the door remains open a crack for unionized employees to continue to file Title VII, ADEA and ADA lawsuits. Whether Congress will react to this decision with another Ledbetter Act remains to be seen. Unions may be unwilling to make it an issue, since the decision increases the importance of the union’s role.
Comments
Posted by: Jay Geary, Lakeland, FL | April 2, 2009 11:08 AM
I hope I'm wrong, but it seems the practical effect of this decision on the rights of unionized workers will, ultimately, be determined by what's in the collective bargaining agreement (CBA). The terms of the CBA are, of course, subject negotiation between the union and the employer. Conceivably, unions could be forced to negotiate away their members' access to the courts on a number of fronts, and these waivers would be upheld. With unions losing much of their bargaining leverage since the Reagan presidency, with workers losing their jobs, and with employers on the ropes, I don't think it's idle concern that CBA's will continue to "write out" the ability of employees to seek meaningful redress of acts and practices that have been outlawed by ADEA, Title VII, and other federal laws. Hard times make bad laws.
As an example, in the 1980's I represented a man who worked for a large lumber/paper company in Oregon. His CBA had a three-step grievance procedure BUT NO PROVISION FOR BINDING ARBITRATION when the grievance procedure was exhausted. (Go figure.) He was "jacked" of course at every level of the grievance procedure. When we sued in court, the trial court ruled that he was barred from suing in court because he was under a CBA that had a grievance mechanism - as toothless as it was. All of the decisions the employer relied on involved CBA's with arbitration provisions - thus, some meaningful remedy existed when the worker ran out of grievance options. In my client's case, there was no "honest broker" to decide the outcome under some procedure offering fairness if not full relief. This crucial (I felt)distinction was lost on the judge. Contract won out, even though the contract was, in the final analysis, a total bar not only to the courts but also to justice.