Collective Bargaining Agreement Arbitration
The collective bargaining agreement (CBA) contains the following pertinent provisions.
"That it is the intent and purpose of the parties hereto that all grievances or disputes arising between them over the interpretation or application of the terms of this Agreement, except jurisdictional disputes and subcontracting, shall be settled by the procedure set forth in Article V hereof . . . ." (CBA, pt. III. A.)
"All grievances or disputes between the Union and the Employer with respect to the interpretation or application of any of the terms of this Agreement, including discharges, shall be processed in accordance with the procedure for settlement of grievances and disputes." (CBA, pt. V. C.) the grievance procedure terminated in mandatory, binding arbitration. "
A. There shall be no discrimination by the Union or the Employer of any kind against any applicant or employee on account of race, color, religion, sex, age or national origin under applicable federal and state law.
B. the Employer and the Union shall make a good faith effort for the Employer to be an equal opportunity Employer." (CBA, pt. XVIII. A.-B.)
Although ordinarily a presumption of arbitrability applies to contractual disputes arising out of a collective bargaining agreement, the presumption is not applicable to statutory violations. (Wright v. Universal Maritime Service Corp.,525 U.S. at pp. 78-79 119 S. Ct. at pp. 395-396.)
Indeed a requirement to arbitrate statutory claims "must be particularly clear." (Id. at p. 79 119 S. Ct. at p. 396.)
A union-negotiated waiver of employees' statutory rights to a judicial forum for claims of employment discrimination must be " 'clear and unmistakable.' " (Id. at p. 80 119 S. Ct. at p. 396.)
'We will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is "explicitly stated." ' " (Ibid.)
"The right to a . . . judicial forum is of sufficient importance to be protected against less-than-explicit union waiver in a collective bargaining agreement." (Ibid.)