The terms of a collective bargaining agreement can play a critical role in analyzing the rights of the parties. For example, in a previous blog, the terms of the collective bargaining agreement played a critical role in the court allowing for random drug testing of current employees. That said, when it comes to collective bargaining the employer and a union are not free to bargain on terms that may violate the ADA.
An example of such a situation is the case of Trayling v. St. Joseph County Employers Chapter of Local # 2955, 2013 WL 3147314 (W.D. Mich. June 19, 2013). In this case, the plaintiff filed a disability discrimination claim through her union’s grievance process and then also filed a disability discrimination claim with the Michigan Department of Civil Rights against the county. The collective bargaining agreement had a clause in it that said that if the union member elects to pursue his or her remedies through any administrative or statutory scheme or procedure in addition to the grievance procedure in the collective bargaining agreement, then the grievance procedure would not be processed beyond step two of the grievance procedure. Further, if the union member elects to use the grievance procedure and then subsequently elects to utilize statutory administrative remedies, then the grievance procedure is no longer applicable and any relief granted under the grievance procedure is forfeited. Accordingly, the county allowed plaintiff’s grievance to continue through step two but refused to process the grievance any further in accordance with the collective bargaining agreement. As a result, the plaintiff filed suit alleging that such a process was per se retaliatory and therefore in violation of the ADA (she made the same claim with respect to the Age Discrimination in Employment Act).
First, the court explored two different cases from other circuits with opposite holdings ( EEOC v. Board of Governors of State Colleges and Universities, 957 F. 2d 424 (7th Cir.) and Richardson v. Commission on Human Rights and Opportunities , 532 F.3d 114 (2d Cir. 2008). Board of Governors took the approach that an election of remedies provision was a per se violation because the employee’s participation in the statutorily protected activity was the determining factor in the employer’s decision to take the adverse employment action (termination of the contractual remedies). St. Joseph County Employers Chapter of Local #2955, 2013 WL 3147314 at *5. On the other hand, Richardson held that the union withdrawing from the arbitration of the plaintiff’s claim was not an adverse employment action, rather what it did was avoid duplicative proceedings in two different forums maintained by the employer for adjudicating discrimination claims and it did so without affecting a complainant’s work, working conditions, or compensation. Id. at *6.
Second, after reviewing the two decisions, the Western District of Michigan winds up agreeing with the plaintiff saying that Board of Governors was the more cogent approach and concludes that the election of remedies provision was retaliatory per se because the employee’s participation in the statutorily protected activity of pursuing her legal remedies was the determining factor in the employer’s decision to take the adverse employment action of terminating the contractual remedy. Id. at 7. The Western District of Michigan was persuaded by the Seventh Circuit’s reasoning that an employer once having decided to provide grievance proceedings cannot then provide them only to employees who refrain from participating in statutorily protected activities. Id. at *5.
Since as discussed by the Western District of Michigan in this case, there is a split among the circuits, it is possible that this may eventually wind up in the United States Supreme Court. My standard line in such situations is that I don’t like to make predictions as to what United States Supreme Court does in those kind of situations. That said, the question remains is how does a plaintiff or an employer deal with the situation in the meantime. First, if you are in the Second Circuit, an election of remedies provision may be permissible. In the Seventh Circuit, it is not. In the Sixth Circuit, as discussed in Trayling, an election of remedies provision is probably not permissible. On a preventive level, it would seem that a union and an employer in negotiating a collective bargaining agreement would want to stay away from an election of remedies clause in their final contract unless they want to invite guaranteed litigation over the clause. Also, to my mind, one wonders if an election of remedies clause might be argued to be creating an incentive for the union to not vigorously advocate for the union member especially since they know that there is a good possibility that their efforts are not going to be required long-term (not saying that it would actually happen this way, but I am saying that an argument as such could be made). In short, it probably makes sense as a preventive matter to not have in the final collective bargaining agreement an election of remedies clause.