Can a Union Waive Employees Rights to a Judicial Forum for Claims ?
The question of whether a union can waive employees' rights to a judicial forum for statutory claims is an open one in the United States Supreme Court. (Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 77 119 S. Ct. 391, 395, 142 L. Ed. 2d 361.)
It also has not been decided by the California Supreme Court.
The Sixth District has decided that a union cannot waive such rights. ( Torrez v. Consolidated Freightways Corp. (1997) 58 Cal. App. 4th 1247, 1259 68 Cal. Rptr. 2d 792.) So has the First District. ( Deschene v. Pinole Point Steel Co. (1999) 76 Cal. App. 4th 33, 46-49 90 Cal. Rptr. 2d 15.)
In determining whether there has been a sufficiently explicit waiver, the courts look to the generality of the arbitration clause, explicit incorporation of statutory antidiscrimination requirements, and the inclusion of specific antidiscrimination provisions.
The test is whether a collective bargaining agreement makes compliance with the statute a contractual commitment subject to the arbitration clause. (Wright v. Universal Maritime Service Corp., supra, 525 U.S. at pp. 80-81 119 S. Ct. at pp. 396-397; see Austin v. Owens-Brockway Glass Container, Inc. (4th Cir. 1996) 78 F.3d 875, 879-880.)
The Austin collective bargaining agreement provided: "Fair Employment Practice and Equal Opportunities:
The Company and the Union will comply with all laws preventing discrimination against any employee because of race, color, religion, sex, national origin, age, handicap, or veteran status.
This Contract shall be administered in accordance with the applicable provisions of the Americans with Disabilities Act. Before taking action relative to this Section, the Company will meet with the Local Union, and both parties will have sufficient opportunity to express their opinions regarding an anticipated action.
Any disputes under this Article as with all other Articles of this Contract shall be subject to the grievance procedure." ( Austin v. Owens-Brockway Glass Container, Inc., supra, 78 F.3d at pp. 879-880.)
"Broad, general language is not sufficient to meet the level of clarity required to effect a waiver in a collective bargaining agreement. In the collective bargaining context, the parties 'must be particularly clear' about their intent to arbitrate statutory discrimination claims." (Carson v. Giant Food, Inc. (4th Cir. 1999) 175 F.3d 325, 331.)
A waiver in a collective bargaining agreement is sufficiently clear if it is found in an explicit arbitration clause. "Under this approach, the collective bargaining agreement must contain a clear and unmistakable provision under which the employees agree to submit to arbitration all state and federal statutory causes of action arising out of their employment." (Carson, at p. 331.)
A waiver in a collective bargaining agreement may also be sufficiently clear if broad, nonspecific language in the arbitration clause is coupled with "an 'explicit incorporation of statutory antidiscrimination requirements' elsewhere in the contract.
If another provision, like a nondiscrimination clause, makes it unmistakably clear that the discrimination statutes at issue are part of the agreement, employees will be bound to arbitrate their state and federal statutory claims." ( Id. at p. 332.)
A simple agreement not to engage in acts violative of a particular statute will not suffice; the agreement must establish the intent of the parties to incorporate "in their entirety" the discrimination statutes. (Brown v. ABF Freight Systems, Inc., supra, 183 F.3d at p. 322.)
Compliance with a particular statute must be an express contractual commitment in the collective bargaining agreement. ( Bratten v. SSI Services, Inc. (6th Cir. 1999) 185 F.3d 625, 631; Quint v. A.E. Staley Mfg. Co. (1st Cir. 1999) 172 F.3d 1, 9.)