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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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Racial Discrimination Claim by California Employee Thwarted by Union Grievance

We watch with interest all California cases involving discrimination and try to learn from each appellate decision, favorable or not to our employee-clients. In this case, Wade vs. Ports America Management Corp, the court held on appeal that a union member would not be allowed to sue in court following a denial of his claim of wrongful termination by the union. As always, there is some good news and bad news for California employees here.

In the original union grievance, the plaintiff, Calvin Wade, alleged he had been laid off in violation of the CBA, or collective bargaining agreement. He claimed “discriminatory” practices. His attorney, a union lawyer, claimed that the question was whether the release was in violation of the seniority system and whether there was discrimination for union activity. Following a company “win”, the employee filed a lawsuit in court and this lawsuit was the subject of the published opinion denying the right to move the dispute into court.

In the court papers, the employee alleged in was terminated in violation of public policy against racial and retaliation, as reflected in the Fair Employment and Housing Act of California. In discussing a number of cases involving union rights and statutory rights to be free of discrimination, the court noted that an arbitration (union) award of a FEHA claim under a CBA can only be given binding or preclusive effect if the agreement to arbitrate the statutory claim in the bargaining agreement is clear and that the procedures all for full litigation of the FEHA claim. (citing Camargo, 86 CA4th at 1008). In short, the court held that a union grievance can bar a later Superior Court lawsuit if the cause of action litigated in both forums is a common law claim involving retaliation and wrongful termination in violation of public policy, as long as the arbitration award addressed the same cause of action. This is because “res judicata” prohibits this double litigation. (Troubling to me is the fact that technically a union grievance is not between the “same” parties, as the plaintiff is merely the real party in interest and the union is the plaintiff, so perhaps this doctrine should not even be considered relevant).

This case demonstrates the importance of seeking expert employment advise before filing a union grievance where discrimination and retaliation are involved. In a future blog, we are going to look into the heart and soul of typical bargaining agreements to see what is covered and what is not. Then, a decision must be made about the best forum in which to bring a statutory or common law claim.