Opinion
Civil No. 2000/54
February 26, 2001
ORDER DENYING IMC'S MOTION TO STAY
THIS MATTER came for consideration on motion of Defendant, Virgin Islands Industrial Maintenance Corporation (IMC)to stay this matter pending arbitration. Plaintiff filed opposition to the motion and IMC filed a response to such opposition.
IMC's motion is premised upon its collective bargaining agreement (CBA) with United Steelworkers of America Union (Union). Plaintiff was a member of the union and the terms and conditions of his employment are governed by the CBA.
The relevant provisions of the CBA are as follows:
Section 1.1.: The provisions of this agreement constitute the sole procedure for any claim by an employee or the Union of a violation by the Company of this Agreement. As a representative of the employees, the Union may process, adjust or settle grievances through the grievance procedure including arbitration, in accordance with this Agreement.
ARTICLE V — NO DISCRIMINATION
Section 5.0: There shall be no discrimination against any employee with respect to any of the terms of employment, because of sex, race, color, religious creed, age as defines in the Age Discrimination Act, national origin or membership in or activities on behalf of the Union.
ARTICLE IX — GRIEVANCE PROCEDURES
Section 9.0: This Article provides the procedure for the timely consideration of grievances over the interpretation or application of this Agreement. Any employee or group of employees may file a grievance under this procedure. The employees and the Company shall cooperate to resolve grievances informally at the earliest possible time and at the lowest possible supervisory level.
Whether a particular dispute should be submitted to arbitration is a mater of federal law. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 450 U.S. 1, 24 (1983).
Arbitration is a matter of contract and a party cannot be required to submit any dispute which he has not agreed to submit. ATT Technologies, Inc. v. Communications Workers, 475 U.S. 642, 648 (1986). Thus, as with any contract, the parties' intentions control and the Court must determine whether the clause governs the particular dispute. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985). The federal courts overwhelmingly favor arbitration. Pritzker v. Merrill Lynch, Pierce, Fenner Smith, Inc. 7 F.3d 1110, 112-13 (3d Cir. 1993).
Union-negotiated collective bargaining agreements that require the arbitration of statutory discrimination claims are valid and binding on unionized employees, Carson v. Giant Foods, Inc., 175 F.3d 325, 331 (4th Cir. 1999).
Statutorily conferred rights may be waived by a CBA if either to two conditions is met." First, a waiver is sufficiently explicit if the arbitration clause contains a provision whereby employees specifically agree to submit all federal causes of action arising out of their employment to arbitration. . .
Second, a waiver may be sufficiently clear and unmistakable when the CBA contains an explicit incorporation of the statutory anti-discrimination requirements in addition to a broad and general arbitration clause. . . Courts agree that specific incorporation requires identifying the anti-discrimination statutes by name or citation." Rogers v. New York University, 220 F.2d 73, 76 (2d Cir. 2000) citing Carson 175 F.3d at 331-32.
In Osula v. Community College of Philadelphia, 2000 WL 1146623 *4, the court considered an anti-discrimination clause and grievance procedure similar to the ones at issue herein, i.e.
The anti-discrimination clause in the instant case, Article IV(A) of the CBA, states that: Neither the Board nor the Federation shall discriminate against any Employee because of race, creed, color, national origin, sex, age, marital status, sexual orientation or membership in (or lack thereof) or activities on behalf of the Federation or any other organization or for any other reason violative of law.
(Def. Ex. K at 7.) The grievance procedure, Article XXII, declares that:
A grievance is an allegation or complaint that there has been a breach, violation . . . or a deviation from, the terms of this Agreement or of any policy, practice, or procedure which relates to wages, hours, or working conditions.
(Def. Ex. K at 84.)
The grievance procedure further provides that if the parties cannot resolve a grievance they may "submit the matter . . . for binding arbitration," and "the decision of the arbitrator shall be final and binding upon the parties . . ." (Id. at 86).
The Court held that in order to constitute a clear and unmistakable wavier, a CBA must explicitly cover federal statutory claims and must contain clear and unmistakable waiver language. The court found the CBA deficient stating that "any waiver of statutory rights here is at best implicit rather than explicit. . ." Id.
This was noted to be a departure from the approach taken in Clarke v. VFI, inc. 98 F. Supp.2d 320, 332 (E.D.N.Y. 2000).
Upon consideration, the Court finds that the particular non-discrimintation clause and grievance procedures at issue herein do not operate to effectively waive Plaintiff's statutory (Title Seven) rights. Accordingly, it is hereby;
ORDERED that IMC's motion to stay pending arbitration is DENIED.