[lbo-talk] The US Supreme Court closes the court house door to union members

Steven L. Robinson srobin21 at comcast.net
Wed Apr 1 23:16:28 PDT 2009

(If you belong to a union and your employer discriminates against you based upon age, sex, race, religion or disability, you no longer have the right to sue the employer in court, so says the US Supreme Court in 14 Penn Plaza v. Pyett, 07-581, 08 C.D.O.S. 4103. If the union collective bargaining agreement has an anti-discrimination clause, as nearly all do, your sole remedy may be through the collective bargaining agreement's grievance system - and you can't file a lawsuit. That means you can file a grievance but only the union itself has a right to take your complaint to arbitration. If the union decides not to go to arbitration, there is no recourse. Even if the union does the right thing and arbitrates your case, you will probably not be able to recover what you could in a civil lawsuit - emotional distress and punitive damages.

(The 14 Penn Plaza case pertains to the Federal anti-Age Discrimination law, but its reasoning may apply to other Federal discrimination statutes as well as various state law remedies. Literally, the court house door has been closed to union members. SR)

Union Contracts Can Limit Bias Suits, High Court Says

By Greg Stohr Bloomberg April 1, 2009

April 1 -- Workers can't sue for age discrimination when the union representing them has agreed that any bias claims should go to arbitration rather than court, the U.S. Supreme Court ruled.

The justices, voting 5-4, ruled in favor of Temco Services Industries Inc. on a discrimination lawsuit by three men who were demoted from positions as night watchmen at a New York City office building. The suit invokes the U.S. Age Discrimination in Employment Act.

"Congress has chosen to allow arbitration of ADEA claims," Justice Clarence Thomas wrote for the majority. "The judiciary must respect that choice."

The court's reasoning may also let unions and companies direct other types of discrimination suits into arbitration. One of the dissenting justices, John Paul Stevens, said the provisions in the ADEA are "not meaningfully distinguishable" from those in Title VII, the main federal statute targeting race and gender discrimination.

Thomas left open the possibility that an employee might be able to sue when a union refuses to press an arbitration grievance on the worker's behalf -- something the three workers say occurred in the Temco case. Thomas said that a "substantive waiver of federally protected civil rights will not be enforced."

That reasoning might limit the practical impact of the case, according to another dissenter, Justice David Souter. He said that in most cases "the union controls access to and presentation of employees' claims in arbitration."

Divided Court

The case nonetheless left the court ideologically divided, with the four dissenters accusing the majority justices of substituting their policy preferences for those of Congress.

Justices Stevens, Souter, Stephen Breyer and Ruth Bader Ginsburg said the majority effectively overruled parts of a 1974 Supreme Court decision that said unionized employees can press discrimination suits in court even after putting them before an arbitrator.

"It is for Congress, rather than this court, to reassess the policy arguments favoring arbitration and revise the relevant provisions to reflect its views," Stevens wrote.

Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito joined Thomas's opinion.

A federal appeals court had ruled that workers aren't bound by collective bargaining agreements that prevent employees from suing under federal discrimination laws.

Temco Workers

The three workers, all Temco employees, lost their positions as watchmen in 2003 when the building's owner started using licensed security guards provided by another company. The men were reassigned to positions as night porters and light-duty cleaners in the building.

The men sued Temco and the property owner, 14 Penn Plaza LLC. New York-based Temco is a building services and cleaning contractor.

The workers were covered under a collective bargaining agreement struck by the Service Employees International Union and the group that bargains on behalf of the New York real estate industry.

The workers' Supreme Court lawyer, David Frederick, said the biggest impact of the decision might come in negotiations over collective bargaining agreements.

"It raises the stakes for what statutory claims are subject to arbitration," he said in an e-mail. The ruling "may end up having more of an effect in the negotiations over a CBA than in litigation over claims arising under the agreement."

Temco's lawyer, Paul Salvatore, said the ruling "firmly enshrines in the law the important principle that collective bargaining arbitration agreements are every bit as valid and enforceable as those covering employment discrimination claims in the non-unionized workplace."

The case is 14 Penn Plaza v. Pyett, 07-581.


For a summary of the decision itself see:


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