Collective Bargaining Agreement and Discrimination
Author: New York Employment Discrimination Attorney Alena Shautsova
A Collective Bargaining Agreement or "CBA" is an important document that every employee who is a member of a union should have a copy of. CBA is not just a book that regulates conditions of employment. Often, it has provisions that directly affect an employee’s ability to pursue his/her rights in court.
Specifically, some Unions recently undertook a responsibility to negotiate on behalf of their members and waive employees’ rights to pursue discrimination claims in court. Employees who are union members sometimes are in worse situation with this regard than employees who are non-union members. If a CBA contains a provision that an employee has to arbitrate rather than litigate his/her claims against an employer, an employee will likely to be barred from brining an employment discrimination case in court.
This was not the case some time ago under Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), but with the decision in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S.Ct. 1456 (2009), many employers will successfully argue that the mandatory arbitration clauses contained in the CBAs should be upheld. While Penn Plaza discussed claims under the ADEA only, nevertheless, the decision came from the U.S. Supreme Court and cannot be ignored. The dissenting opinion, however, presented powerful arguments disfavoring the majority’s rule. It means that the issue will likely be revisited and new arguments and circumstances may move the tip of Themis’ scale in a different direction again.
Apart from the mandatory arbitration clause, a CBA may contain important provisions regarding disciplinary system and grievance procedures. It may also describe the bidding system and seniority rules.
It is a good idea to get an updated copy of the CBA and refer to it first, whenever you feel that your rights are violated or you need clarifications as to the rules and practices at work. The next step would be to reach out to your union representative, and do it in writing. Finally, above all, if the situation is a serious one, consult with a lawyer.