New England Biz Law Update
An employee who successfully filed a complaint with the MCAD alleging sexual-orientation bias and claimed she was then targeted for retaliation, including being passed over for promotions, could sue under the state’s anti-discrimination statute despite the fact that she had not exhausted her remedies under a collective bargaining agreement, a U.S. District Court judge has decided.
The defendant employer argued that, to seek redress for the alleged harassment, the plaintiff was required to complete the grievance and arbitration process in the CBA between the company and her union.
Alternatively, the defendant argued that the plaintiff’s claim was precluded by Section 301 of the federal Labor Relations Act, which seeks to ensure uniform interpretation of collective bargaining agreements.
But Judge Mark G. Mastroianni disagreed.
Mastroianni found that the CBA did not contain a “clear and unmistakable” waiver of the plaintiff’s rights under G.L.c. 151B. While the CBA contained a provision under which the defendant pledged “not to apply the CBA in a discriminatory manner,” “this contractual agreement is separate from, and does not supersede, Plaintiff’s statutory rights to be free from workplace discrimination,” Mastroianni wrote.
Turning to the preemption argument, Mastroianni said his decision hinged on whether “the asserted state-law claim plausibly can be said to depend on the meaning of one or more provisions within the collective bargaining agreement” or whether the CBA merely needed to be “consulted” to resolve the plaintiff’s claim. Mastroianni decided it was the latter and denied the defendant’s motion to dismiss.
The 11-page decision is Rivera v. U.S. Tsubaki, Inc., Lawyers Weekly No. 02-060-15.
Independent rights
Plaintiff’s counsel Michael O. Shea of Wilbraham hailed the ruling for its careful analysis of an employee’s rights to judicial remedies that “clearly exist independent of the rights and remedies set forth in the collective bargaining agreement.”
Shea added that he was “perplexed” by the defendant’s motion to dismiss given that the court had already addressed the same basic questions in two cases involving the defendant: 2008’s Navarro v. Tsubaki, Inc. and Salois v. U.S. Tsubaki Inc. in 2010.
Those cases provide “clear precedent,” Shea said.
But Jay M. Presser of Springfield, who represented defendant U.S. Tsubaki, said there have been two developments since the 2008 Navarro decision.
One, the court clarified what it means for the resolution of a claim to “depend” on contract interpretation and included “instances where the ‘state-law claim plausibly can be said to depend upon the meaning of one or more provisions within the collective bargaining agreement’ and claims whose resolution ‘arguably hinges upon an interpretation of the collective bargaining agreement,’” Presser said in an emailed statement, citing the 2010 case O’Donnell v. Boggs and the 2011 case Haggins v. Verizon New England, Inc.
Two, post-2008, the company and the union negotiated what Presser called a “complex matrix” to determine which employee would be hired to a vacant position, with any disputes resulting from the use of the matrix resolved in arbitration. Presser noted that in each instance in which Rivera claimed discrimination, the position was awarded as required by the negotiated matrix.
The Skoler, Abbott & Presser attorney added that, as the case proceeds, “it will become clear that a determination of whether plaintiff likely would have received a position but for a discriminatory intent will not only arguably, but inevitably, require interpretation of the negotiated agreement, thus making the claim subject to §301 preemption.”
Meanwhile, Peter J. Moser, an employer-side attorney at Boston’s Hirsch, Roberts, Weinstein, said the waiver aspect of the case called to mind the 2009 U.S. Supreme Court decision 14 Penn Plaza LLC v. Pyett. A 5-4 court in that case used the “clear and unmistakable” standard to uphold a waiver of the right of employees to sue under the Age Discrimination in Employment Act.
But 14 Penn Plaza can be distinguished from the case that was before Mastroianni by the precision with which the waiver was drafted, Moser said. He suggested judges are saying, “Unless I’m darned sure statutory rights are intended to be covered by the mandatory arbitration clause,” a waiver will not be upheld.
From a drafting perspective, Moser added, “you better be real clear” what the mandatory arbitration clause covers. A good approach would be to include within a CBA’s non-discrimination clause language articulating that claims arising under that clause need to be arbitrated, he said.
Another approach would be to exclude a non-discrimination clause in the CBA. For example, Moser said that collective bargaining agreements typically do not specify that employers are bound by OSHA’s safe-workplace requirements, even though they are expected to abide by them. By including a non-discrimination clause, the employer is opening itself up to being challenged in two forums: its own process and in court.
However, Moser acknowledged that, as a political matter, it may not always be feasible to fight the inclusion of a non-discrimination clause if a union requests one.
In Rivera, while the employer pledged not to apply the CBA in a discriminatory manner, there was no mention of a grievance procedure in that specific article of the agreement. Instead, a separate article outlined circumstances in which employees agreed to waive their right to pursue judicial remedies until after they exhausted the grievance and arbitration process. The article defined a grievance as a difference of opinion or dispute over “the interpretation and/or application of any terms of” the CBA. Rights under specific statutes, such as Chapter 151B, were not mentioned.
A case of retribution?
In April 2008, plaintiff Leslie Rivera married Marilyn Kent. Seven months later, she requested that her employer, U.S. Tsubaki, add Kent to her health insurance policy.
After initially granting the request, the company’s Illinois corporate headquarters revoked the benefit, prompting Rivera to file a grievance with her union. Several weeks later, she also filed a complaint with the Massachusetts Commission Against Discrimination.
An arbitrator found that, by withdrawing health benefits from Rivera’s spouse, the employer had violated the CBA’s non-discrimination clause. The arbitrator ordered the employer to restore the benefits, which the company did. However, it charged Rivera more for the coverage than it was charging employees with opposite-sex spouses.
The arbitrator also ordered the employer to reimburse Rivera for any costs she had incurred while the coverage had been revoked.
In October 2011, the MCAD issued a finding of probable cause against the employer and, six months later, ordered post-determination discovery. Two weeks later, the employer wrote to Rivera, attributing the overcharging for medical benefits in 2011 and 2012 to a “system error.”
The employer then sought to enjoin the MCAD from adjudicating the discrimination claim, and ultimately the parties agreed to dismiss that case, though Rivera reserved her right to pursue a discrimination claim in court.
Also around October 2011, Rivera began to apply for jobs that, according to the CBA, were to be awarded “to the qualified applicant with the greatest seniority.” As noted in a letter of understanding, the employer and union were to develop a process for identifying qualified applicants, which, with respect to the jobs for which Rivera was applying, meant consulting a Job Posting Evaluation Chart. Applicants were to be awarded points in eight categories, with the position going to the applicant with the most points.
Rivera contended that her points were miscalculated, and she was shortchanged for her current labor grade, attendance or years of service. That, she said, caused her to be passed over for open positions she had earned.
Rivera also alleged other forms of harassment, including “unfair micromanagement, excessive work assignments and lack of communication.” She made timely complaints about those issues with the company’s human resources department and her union president but received no response.
She said the discrimination and harassment continued until the working conditions became unbearable, and she was “constructively discharged” on Aug. 3, 2012.
A close call?
Mastroianni noted that, given the diversity of the parties, he did not need to determine whether Section 301 of the Labor Relations Act and the doctrine of complete preemption granted jurisdiction, but did need to decide whether the issue required dismissal of the state-law claim, something he noted was “the more complicated of the two tasks.”
To dismiss the claim, Mastroianni said he would need to find that “the asserted state-law claim plausibly can be said to depend upon the meaning of one or more provisions within the collective bargaining agreement,” citing the 1997 1st Circuit case Flibotte v. Pennsylvania Truck Lines.
“There are two types of claims that can ‘depend’ on the ‘meaning’ of a collective bargaining agreement,” the judge wrote. “First, a claim alleging breach of duty arising under a collective bargaining agreement and second, a claim ‘if it “plausibly can be said to depend upon the meaning of” or “arguably hinges upon an interpretation of” the CBA.’”
The collective bargaining agreement in Rivera contemplated “the qualified applicant with the greatest seniority” attaining open positions, and the union and employer committed to devising a process for assessing applicants’ standing.
However, the CBA contained no specifics about the process, which Mastroianni said proved essential in resolving the preemption issue in the plaintiff’s favor.
“The basis of Plaintiff’s failure to promote claim is her assertion that there was a process and that it was applied differently to her than to others; as the CBA does not detail the process, her claim neither plausibly depends nor arguably hinges upon language within the CBA,” Mastroianni wrote.
As for the waiver issue, Mastroianni noted that a waiver would be deemed “clear and unmistakable” if the waiver referred to the “specific statutory provision being waived.”
Citing the 2012 1st Circuit decision Cavallaro v. UMass Mem’l Healthcare, Inc., Mastroianni wrote that “[a] broadly-worded arbitration clause such as one covering ‘any dispute concerning or arising out of the terms and/or conditions of [the CBA], or dispute involving the interpretation or application of [the CBA]’ will not suffice.”
Further, Mastroianni found that while the defendant had bound itself not to apply the CBA in a discriminatory manner, “this contractual agreement is separate from, and does not supersede, Plaintiff’s statutory rights to be free from workplace discrimination.” MLW
CASE: Rivera v. U.S. Tsubaki, Inc., Lawyers Weekly No. 02-060-15
COURT: U.S. District Court
ISSUE: Could an employee proceed with a bias claim under G.L.c. 151B even though she had not exhausted her remedies under the collective bargaining agreement between her union and her employer and despite Section 301 of the federal Labor Relations Act, which seeks to ensure uniform interpretation of collective bargaining agreements?
DECISION: Yes
