On April 1, 2009, the United States Supreme Court in a 5-4 decision, held in 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (U.S. 2009) that a clause in a collective bargaining agreement which requires union members to arbitrate discrimination claims raised under the Age Discrimination in Employment Act (“ADEA”) was enforceable. The opinion authored by Justice Thomas, held that because the ADEA did not expressly prohibit arbitration of claims made under the ADEA, that Congress had not prohibited a collective bargaining agreement from requiring arbitration in lieu of a court proceeding.

The Court relied on Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), which held that an individual employment agreement that required its employee to arbitrate discrimination claims was valid. The Court reasoned that the holding of Gilmer also applied in the context of collective bargaining agreements. The lawyer for the employees in 14 Penn argued that the Supreme Court’s decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) prohibited collective bargaining agreements from requiring their members to arbitrate discrimination lawsuits. The 14 Penn Court disagreed and held that Gardner-Denver resolved the issue of whether the waiver of the right to file a lawsuit for contract based discrimination claims also precluded the right to file a lawsuit in federal court for statutory discrimination claims, such as claims under the ADEA.

The collective bargaining agreement in Gardner-Denver required mandatory arbitration of all disputes between a union member and management. The collective bargaining agreement prohibited all discrimination against a union member on the basis of race, creed, national origin or age. The collective bargaining agreement, however, was silent as to arbitration for statutory discrimination claims. Because of this omission, the 14 Penn court held Gardner-Denver did not stand for the rule that a collective bargaining agreement can never waive a union member’s right to file a lawsuit in court for a statutory discrimination claim. The dissent stressed that the majority’s decision ignored and misconstrued the clear precedent set in Gardner-Denver.

The 14 Penn Court stressed that where a union member believes that the waiver of his right to raise discrimination cases in court was negotiated away in bad faith, he may maintain a lawsuit against his/her union under the National Labor Relations Act. 

After 14 Penn, it is clear that lawyers representing union members must carefully examine their client’s collective bargaining agreements to ensure that they have raised a claim for discrimination in the proper forum.