It is important for employees who are union members to understand the interplay between their rights under the union contract to file union grievance and their rights under State and Federal law to make their case in court. A CBA (Collective Bargaining Agreement) is an agreement between an employer and a union and thus may be construed to waive certain rights of union members to file certain claims in court even without explicit, individual consent of each member. But such a waiver, if applied to legal rights, must be “clear and unmistakable.” Choate v. Celite Corp. (2013) 215 Cal.App.4th 1460, 1465.
The key rule to know is that CBA cannot be invoked to deprive an employee-claimant of his ability to file a case in court to bypass state law statutory protections. When liability is governed by independent state law, ‘the fact that a CBA will be consulted in the course of state-law litigation’ is not sufficient to invoke preemption under section 301. Sciborski v. Pacific Bell Directory (2012) 205 Cal.App.4th 1152, 1164. Several California and Ninth Circuit cases have applied the above rule to hold that, for instance, claims under FEHA for discrimination and retaliation and claims under similar remedial state statutes are not preempted by section 301 and therefore are not subject to union arbitration under a CBA. Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 41-49. Therefore, typically workers who are union members are able to bring their cases for discrimination and retaliation in violation of FEHA in court, even if, they also bring their claims for violations of CBA as a union grievance.
However, not all work-related state law tort claims avoid section 301 preemption. For example, in Chmiel v. Beverly Wilshire Hotel Co. (9th Cir. 1989) 873 F.2d 1283, the employee brought both discrimination and breach of contract claims in his lawsuit against his employer. In effect, he claimed that he was entitled to greater employment protection than provided by the CBA. The court determined that Chmiel’s breach of contract claim was preempted by section 301, but he could still proceed with his age discrimination part of the case in court, because the latter claim did not depend on the interpretation of CBA.
In Cramer v. Consol. Freightways, Inc. (9th Cir. 2001) 255 F.3d 683, 695, the court made an important observation with regard to wage claims made by union members – “§ 301 does not grant the parties to a CBA the ability to contract for what is illegal under state law.” Thus, in Burnside v. Kiewit Pacific Corp. (9th Cir. 2007) 491 F.3d 1053 employees claimed that their employer failed to pay them for the time spent traveling from meeting sites and job sites and back again. Their CBAs included rules about shift length, overtime, and compensation for transportation. But state law set out other rules for determining how they should be paid for such time. That case held that the claims made were not preempted because they were based on state laws independent of the CBA, and they did not substantially depend on the interpretation of CBA. Notably, the court observed that mere overlapping or protections of terms found in both the CBA and state law does not necessarily require preemption. In other words – just because the union contract includes certain provisions regarding wages and compensation of the union members, this doesn’t automatically mean that these employees cannot file their case for wage violations in court.
A union member who wishes to pursue any type of claim against his employer should have his union agreement thoroughly reviewed with an employment attorney experienced in pre-emption issues, so that a early determination can be made as to which claims can should be brought in court v which claims can only be filed through union grievance and potentially – union arbitration.