Incorporation of statute into cba sufficient to trigger Penn Plaza

In its decision in 14 Penn Plaza v. Pyett, the Supreme Court held that a union may agree in a cba that an employee's statutory claims are subject exclusively to the contract's grievance procedure, and that the employee may not pursue the claim in court. Such an agreement, however, must be evidenced by clear and unmistakable language demonstrating such an intent.

 Subsequent cases interpreting Penn Plaza have held that general non discrimination language is insufficient to prevent an employee from pursuing litigation over a statutory claim. In Ibarra v. United Parcel Service the Fifth Circuit determined that for a cba to bar litigation, the cba must "at the very least, identify the specific statutes the agreement purports to incorporate or include an arbitration clause that explicitly refers to statutory claims." In its recent decision in Gilbert v. Donohoe, the Fifth Circuit has addressed a cba that it finds "falls between" the language discussed in Penn Plaza, and that in subsequent cases finding no waiver. 

Plaintiff Gilbert sought to litigate claims that the USPS had violated her rights under the FMLA, and the Rehabilitation Act. Reversing, in part, the District Court's decision, the Fifth Circuit has determined that the contract in issue precluded litigation of the Rehabilitation Act claims, but not the FMLA ones.

The contract provided for a dispute resolution procedure culminating in binding arbitration. Separately the cba provided "consistent with the other provisions of this Agreement, there shall be no unlawful discrimination against handicapped, as prohibited by the Rehabilitation Act." The contract also incorporated the Employee and Labor Relations Manual (ELM) which, according to its terms, "provides policies to comply with the [FMLA]."

Noting that the contract could be said to reference both statutes, the Court found the nature of the references distinct, resulting in differing results. 

...the ways in which the agreement identifies the respective statutes are distinct, and this difference guides our resolution of this case. Section 2.01(B) of the CBA specifically provides that it is incorporating into the agreement the prohibition of discrimination against handicapped employees contained in the Rehabilitation Act. It thus complies with the dicta of both Ibarra and Wright that the CBA “identify the specific statutes the agreement purports to incorporate.” 26 Combined with Article 15, this provision makes it clear and unmistakable that the Rehabilitation Act is part of the CBA and subject to the same grievance procedures. By contrast, the ELM only provides policies to comply with the FMLA. It does not purport to make the FMLA a part of the agreement. As our sister circuits have recognized, references to statutes that fall short of incorporation are insufficiently “clear and unmistakable” to bar access to federal court. 27 There is no reason to treat this reference any differently. Accordingly, we hold that, while the CBA requires Gilbert to pursue her Rehabilitation Act claims through the specified grievance and arbitration procedures, its references to the FMLA are not sufficiently clear and unmistakable to deprive the district court of subject matter jurisdiction over claims arising under that statute.

The Court therefore affirmed the dismissal of plaintiff's Rehabilitation Act claims, but reversed the dismissal of the claims under the FMLA.

Management rights clause properly subject to arbitral review

          The Eighth Circuit has affirmed enforcement of an arbitration award finding that Breckenridge O'Fallon violated its labor agreement by inconsistently applying its return to work policy. Breckenridge O'Fallon, Inc. v. Teamsters Local Union No. 682.

          Grievant was injured on the job and was out for an extended period. After a workers compensation physician released him to return to work , Breckenridge required him to complete a functional capacity evaluation (FCE) pursuant to its return to work policy. The FCE physician found him unable to return to work, as did another physician selected by grievant from a list provided pursuant to the policy.

          Grievant's personal physician subsequently released him to return to work without restrictions but Breckenridge refused to schedule a second FCE. Grievant and the Union claimed that Breckenridge was inconsistently applying its policy and ultimately arbitrated the issue.

        The arbitrator concluded that while the company had the contractual right to establish reasonable rules, including those relating to FCEs, it had to apply those rules consistently. Finding inconsistent enforcement, the arbitrator ordered the company to schedule grievant for another FCE and to restore his seniority if he passed.

          Breckenridge sought to set aside the award, arguing that it failed to draw its essense from the parties CBA. The district court rejected this claim and the circuit court affirmed.  The court noted that the case was an unusual one because "the grievance as resolved by the arbitrator involved only the CBA's management rights provision. " Nevertheless, the court concluded:

                    When a management rights provision is expressly limited to the right to establish            reasonable work rules, determining whether the employer acted reasonably in adopting and applying its work rules is within the scope of the arbitrators authority to decide a particular grievance the parties have submitted to him.


          The court rejected the company's challenge to the merits of the claim, observing that the correctness of the arbitrator's decision was beyond the scope of their limited review. The court also rejected the company's claim that the award was contrary to the employer's right under the FMLA to require the employee to obtain a third medical opinion when there were conflicting opinions, noting that this right was permissive rather than mandatory, and that nothing in the FMLA diminished the obligation of an employer to comply with its collective bargaining agreement.


         

Eighth Circuit applies Pyett, sends FMLA claim to arbitration

           The Eighth Circuit has affirmed a district court’s decision dismissing plaintiff’s FMLA claim, sending the claim instead to arbitration. Thomson v Air Transport International LLC.

            Plaintiff was employed as a pilot by ATI. In early 2009 he missed eight weeks of work because of illness and related surgery. His employment was terminated after his return to work, allegedly because of a violation of operational procedures. He filed suit claiming the termination was in retaliation for his taking sick leave, in violation of the FMLA. 

            ATI moved to dismiss, arguing that the claims were subject to mandatory arbitration under the collective bargaining agreement covering his position. That agreement provided in relevant part:

         

                    [C]laims of discrimination arising within the employment relationship between Company and the Crewmembers, whether such claims are made under the collective bargaining agreement or in state or federal court and alleged to be violations of state or federal law ... are to be addressed, resolved  and finalized solely under Section V- Grievance and/or [Section] VI-Arbitration of the Agreement... 

          Plaintiff claimed that the mandatory arbitration provision was part of an unconsionable waiver of his FMLA rights, pointing to language of the Agreement that "each Crewmember waives each and every cause of action and remedies provided under these statutes and common law frameworks."

          Rejecting this claim, the Court noted that, when read in context ,the language plaintiff pointed to was not a waiver of substantive rights, but instead was a waiver of a judicial forum. The Court further noted that the Suprreme Court held in 14 Penn Plaza LLC v. Pyett that such a waiver could be made by a union as part of a collective bargaining agreement. As a result, the Court affirmed the dismissal of the lawsuit.