Unions May Waive Members’ Rights to a Jury in Employment Discrimination Cases
In a stark reversal of both its own prior decisions and the majority of the lower federal appellate courts, in the case of 14 Penn Plaza LLC v. Pyett, (April 1, 2009), the U.S. Supreme Court, in an opinion written by Justice Clarence Thomas, held that a union, through a collective bargaining agreement (“CBA”), may waive the rights of its members to bring claims of employment discrimination in court. Union members, therefore, are only entitled to assert claims in a union-sponsored arbitration, and not in court before a jury.
Despite the Supreme Court’s holding in Pyett, many issues remain unresolved. For example, the union, in a brief submitted to the Court, argued that the CBA provision at issue was never intended to limit a union member’s right to go to court for an employment discrimination claim. In fact, the union submitted evidence that during the negotiations for the CBA, management sought language that would clearly place such a limit on union members, which the union rejected. The Supreme Court, however, did not address this issue.
The Court also did not address the fact that the arbitration provisions could effectively deny union members the right to assert claims in any forum. Under the CBA, only the union, and not the individual employee, may bring a claim. If the union desires not to bring an employee’s claim, for whatever reason, that employee will have no remedy whatsoever. Even if a claim is brought to arbitration, it is the union’s claim, and not the employee’s claim, so that the union could settle the claim or even withdraw it, without the individual’s consent. The employee does not even need to be at the arbitration. The Court did not hear this issue, however, sending the case back to the lower courts to decide this issue and others.
The Supreme Court, in Pyett, clearly wanted to hold that, as a matter of law, a union may waive an individual’s right to a jury in employment discrimination cases. It remains to be seen, however, whether this particular CBA waiver, which clearly has a negative impact on an individual employee’s rights, will stand.
