LABOR CONTRACTS

Refusing to arbitrate isn't retaliatory

Employers with unionized workplaces devote substantial resources to addressing employee grievances, which can include defending against claims at arbitration. They also devote substantial resources to defending claims of discrimination before the Equal Employment Opportunity Commission (EEOC) and the Connecticut Commission on Human Rights and Opportunities (CHRO). Sometimes employers even have to deal with defending the same discrimination claim at both an arbitration and a CHRO/EEOC proceeding. Until recently, it didn't appear that employers could do much about that.

Agreed-on arrangement

Administrative and Residual Employees Union Local 4200 represents certain state employees. The union and the state negotiated a collective bargaining agreement (CBA) effective July 1, 1999, which contained a four-step grievance procedure allowing employees to arbitrate their grievances as the fourth and final step. However, the CBA provided that if the employee's grievance involved unlawful discrimination and she filed a separate administrative complaint of discrimination, then the grievance couldn't be arbitrated.

In October 2001, Leonyer Richardson's employment with the state was terminated. She filed a grievance over her termination, and it proceeded through the first three steps of arbitration, being denied at each step. The union then learned that Richardson had also filed an administrative complaint of discrimination with the CHRO. As a result, it notified her that it was withdrawing its request for arbitration based on the language in the CBA.

I want my arbitration!

Unhappy with that outcome, Richardson sued the state, her union, and other state employees, claiming, among other things, that the negotiation and enforcement of the CBA provision barring duplicative proceedings was retaliatory. She argued that by losing her right to arbitrate, she was being punished for complaining of discrimination. U.S. District Judge Alfred Covello didn't see things her way and dismissed her claims before trial in favor of the state and the union.

Again unsatisfied, Richardson appealed Judge Covello's decision to the Second U.S. Circuit Court of Appeals (which covers Connecticut). Her appeal was unsuccessful, however. The Second Circuit held that antiretaliation law doesn't preclude a union and an employer from agreeing that employees must forgo their right to arbitrate a grievance when they file an EEOC/CHRO complaint involving the same facts.

The court reasoned that Richardson still retained the right to file her claims with the EEOC/CHRO, and it wasn't unreasonable for her to give up the right to arbitration. The court found it reasonable for employers to take steps to avoid fighting claims in two places, and the arrangement was a practical defensive measure in response to litigation. Similarly, the court found that the union's agreement to the CBA provision was justified by its desire to conserve its scarce resources.

How does this help me?

Thanks to this decision, employers in Connecticut now have more leeway in drafting CBAs. You can avoid duplicate proceedings by negotiating a clause in your labor contracts eliminating arbitration when an EEOC/CHRO claim has been filed.