Does your union contract contain a provision that says the employer (and maybe even the union) will not discriminate against members of the bargaining unit?  If so, you need to be aware of a recent case from the United States Court of Appeals for the Tenth Circuit that explains the limits of such a clause.  In John Mathews v. Denver Newspaper Agency LLP, Case No. 09-1233 (March 16, 2011),  the Court held that an employee who asserts a violation of a union contract clause prohibiting discrimination can have two attempts to prove a discrimination claim. 

Mr. Mathews worked as a Unit Supervisor.  Despite the title of his position, a collective bargaining agreement regulated his terms and conditions of employment.  An employee whose work he oversaw complained to her union steward about inappropriate comments allegedly made by Mr. Mathews.  The newspaper began an investigation.  Approximately two weeks later, the newspaper demoted Mr. Mathews.

Mr. Mathews responded with a grievance claiming that the demotion violated the contractual provision prohibiting discrimination.  Specifically, he asserted that the newspaper demoted him because of his national origin and to retaliate against him for previous complaints.  Mr. Mathews advanced his grievance to an arbitration hearing.  The issue the arbitrator addressed was whether the demotion violated the contractual provisions prohibiting.  However, both sides presented their arguments by reference to the controlling law under Title VII.

The arbitrator ruled against Mr. Mathews, who subsequently filed a lawsuit, asserting statutory claims of discrimination.  The trial court dismissed the claim, noting (among other things) that by submitting his claims to the arbitrator, Mr. Mathews had waived his right to seek a judicial remedy.  Therefore, Mr. Mathews was precluded from relitigating his claims in court.

The court of appeals reversed.  Interpreting United States Supreme Court precedent, the court held that the language of the union contract in this case did not waive Mr. Mathews’ right to a judicial determination of his claims.  Rather, the contract created only contractual rights and the parties only submitted contractual claims in the arbitration.  The court noted, for example, that the issue presented to the arbitrator was phrased in terms of whether the newspaper violated the contract.  There was no language in the union contract that required an employee to submit statutory claims to an arbitrator and the court found no evidence that such claims were actually submitted. 

The most important point for the labor professional in a unionized workplace is the importance of the language in the labor agreement.  If the contract had required statutory claims to be submitted to the arbitration forum, the outcome would likely have been different.  If an employer wants to limit the possibility of a "do over" in cases like Mr. Mathews’, but only has general anti-discrimination language currently, then it will be necessary to seek different language in your next labor negotiation.  The general language will likely not be sufficient.