193 A.D.3d 22
N.Y. App. Div.2021Background
- Plaintiff Ronnie Wilson, an African‑American SEIU Local 32BJ member, worked for PBM from 2002 until his termination in August 2014 and alleged racial harassment, hostile work environment, and wrongful discharge.
- Employment terms were governed by the 2012–2015 CBA between Local 32BJ and the RAB; Article XVI §30(A) states discrimination claims (including §1981, NYSHRL, NYCHRL) are subject to the grievance/arbitration procedure as the "sole and exclusive remedy."
- After the Supreme Court's Pyett decision, the parties adopted a "No‑Discrimination Protocol" (Article XVI §30(B)) providing mandatory mediation and an arbitration procedure for individual employees when the Union declines to pursue a discrimination claim.
- The Union declined to arbitrate Wilson’s discrimination claims (though it did arbitrate his discharge grievance); Wilson sued in Dec. 2015 under §1981, NYSHRL, NYCHRL and tort theories; defendants moved to compel arbitration and, in effect, to dismiss.
- Supreme Court granted the motion to compel and dismissed; on appeal the Second Department held the CBA mandates arbitration under the Protocol but the court should have stayed the action pending arbitration rather than dismissing it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CBA requires arbitration of statutory discrimination claims when the Union declines to arbitrate | Protocol’s preface preserves the "reserved question" and allows individuals to sue in court when Union declines | Article XVI §30(A) makes arbitration the sole and exclusive remedy; Protocol supplies an individual arbitration mechanism | Arbitration is mandatory; Protocol does not carve claims out of §30(A) and provides the route for individual arbitration |
| Whether the CBA operates as an unenforceable substantive waiver of statutory rights because the Union can block arbitration | Waiver: union control can prevent effective vindication of rights, so clause is unenforceable under Pyett’s caveat | Not a waiver: Protocol preserves access to the arbitral forum for individuals even if Union declines | No substantive waiver here; Protocol ensures access to arbitration and preserves vindication opportunities |
| Whether arbitration under the CBA provides adequate relief (e.g., attorney’s fees) required by §1981/NYCHRL | Protocol/fee provisions force employee to bear costs and/or bar fee awards, so arbitration cannot vindicate statutory remedies | CBA and AAA rules permit arbitrator to determine fees/cost allocation; unlawful provisions are severable | Arbitration is adequate; fee‑related provisions do not necessarily preclude fee awards and severance is available for unlawful terms |
| Whether the court should dismiss the action after compelling arbitration | Dismissal improper; action should continue or be stayed pending arbitration | Defendants sought dismissal after compelling arbitration | Court held dismissal improper; order modified to deny dismissal and stay the action pending arbitration |
Key Cases Cited
- 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (U.S. 2009) (CBA that clearly and unmistakably requires arbitration of statutory discrimination claims is enforceable)
- Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (U.S. 1991) (statutory claims may be subject to arbitration if the arbitral forum permits effective vindication)
- Litton Financial Printing Div. v. NLRB, 501 U.S. 190 (U.S. 1991) (provisions of employment can be "conditions of employment" subject to collective bargaining)
- NLRB v. Magnavox Co., 415 U.S. 322 (U.S. 1974) (judicial nullification of contractual concessions conflicts with labor law policy)
- God's Battalion of Prayer Pentecostal Church, Inc. v. Miele Assoc., LLP, 6 N.Y.3d 371 (N.Y. 2006) (arbitration agreement must be clear, explicit, and unequivocal)
- Allied Bldg. Inspectors Int'l Union v. Office of Labor Relations of City of N.Y., 45 N.Y.2d 735 (N.Y. 1978) (motion to compel arbitration stays, not dismisses, a pending action)