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Employee not bound by CBA arbitration clause

An arbitration clause in a collective bargaining agreement did not preclude an employee from going to court to sue her employer under the Rhode Island Civil Rights Act and the state’s Fair Employment Practices Act, the R.I. Supreme Court has ruled.

The defendant employer argued that the arbitration provision constituted a waiver of the plaintiff employee’s right to raise employment discrimination claims in a judicial forum.

The Supreme Court disagreed.

“[A] general arbitration provision in a CBA which contains no specific reference to the state anti-discrimination statutes at issue does not constitute a clear and unmistakable waiver of the plaintiff’s right to a judicial forum in which to litigate claims arising under the RICRA and the FEPA,” Justice William P. Robinson III wrote for the unanimous court. “The CBA at issue in this case does not contain sufficiently precise language indicative of the required clear and unmistakable assent to waive a specific statutory right to a judicial forum that is plaintiff’s by virtue of the RICRA and the FEPA.”

The 22-page decision is Weeks v. 735 Putnam Pike Operations, LLC.

David S. Cass of Providence represented the employee. William E. O’Gara of Providence defended the employer.

Agreement in place

The plaintiff, Reynalda Weeks, worked for the defendant, 735 Putnam Pike Operations, LLC, doing business as Greenville Skilled Nursing and Rehabilitation.

In her Superior Court complaint, the plaintiff alleged that she was subjected to a hostile work environment on account of her “race and color” stemming from what she characterized as “derogatory and disparate treatment” by her supervisor. She further alleged that she was constructively terminated on July 18, 2010.

The defendant responded to the complaint by filing a “Motion to Stay Proceedings,” arguing that the proper forum for resolution of the plaintiff’s claims was binding arbitration.

The plaintiff conceded that she was a union member and was subject to the collective bargaining agreement — which contained an anti-discrimination clause — between her union and the employer.

Superior Court Judge Sarah Taft-Carter allowed the defendant’s motion for a stay, ordering that the “matter … be resolved through binding arbitration as required by the governing Collective Bargaining Agreement between the parties.”

No ‘clear and unmistakable’ waiver

On appeal, the plaintiff argued that Taft-Carter’s decision was in error because the CBA’s arbitration provision did not preclude the plaintiff from asserting her statutorily created rights under the RICRA and the FEPA in a judicial forum.

Under Rhode Island caselaw, a finding that contracting parties have agreed to substitute arbitration for adjudication must rest on “clear contract language as evidence of definite intent to do so,” Robinson said.

The Supreme Court noted that the collective bargaining agreement between the plaintiff’s union and the defendant contains an anti-discrimination clause. That provision, entitled “NO DISCRIMINATION,” provides: “Neither the Employer nor the Union shall discriminate against or in favor of any Employee on account of race, color, creed, national origin, sex, sexual preference, age, mental disability, physical disability, or activity with respect to the Union.”

The language in the CBA, however, did not contain any express reference to the rights of an employee under the RICRA and the FEPA, “which certainly provides a predicate for a non-frivolous argument that there is no clear indication in the CBA of a mutual agreement to arbitrate such claims,” Robinson stated.

“[W]hen a collective bargaining agreement clearly and unmistakably waives the right to pursue statutory claims in a judicial forum, the federal courts will honor that waiver and bar the plaintiffs from pursuing their claims in court,” Robinson said. “Such an approach strikes us as being eminently sensible, and it is our judgment that a similar principle should be applied in the case at bar.”

Thus, he said, it was the court’s holding that the right to a judicial forum for claims brought specifically under the RICRA or the FEPA can be waived in a collective bargaining agreement “if, and only if, that waiver is clear and unmistakable.”

The state statutes under which the plaintiff’s suit was brought “reflect the General Assembly’s very explicit determination that those statutes are necessary to militate against ‘grave injury to public safety, health, and welfare,’” Robinson said. “The General Assembly has sounded neither an uncertain nor a muted trumpet in this domain; it has clearly manifested an intent of the highest order to extirpate discrimination in employment in view of its deleterious effect on individuals and on society more generally.”

While acknowledging that the CBA contained a provision stating that “[n]either the Employer nor the Union shall discriminate against or in favor of any Employee on account of race [or] color,” Robinson said that the agreement did not contain any reference to the RICRA or the FEPA.

“Contrary to defendant’s arguments, such a general arbitration provision simply is not sufficient to clearly and unmistakably waive an employee’s rights under the RICRA or the FEPA,” he said. “Based on the general language of the CBA, we perceive no evidence of a waiver of plaintiff’s statutory right to a judicial forum, let alone a waiver which would be characterized as clear and unmistakable.”

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