Did the trial court err by applying the clear and unmistakable-standard in determining that arbitration language in a collective bargaining agreement was unenforceable?
Respondent, Jeffrey George, was a union employee working for Petitioner, AC&S, Inc. Petitioner discharged Respondent in April, 2016, citing Respondent’s role in a chemical upset. The discharge was grieved under the terms of the union’s collective bargaining agreement. After Respondent’s grievance was denied, he filed a complaint against Petitioner asserting a variety of discrimination-and retaliation-based claims. Petitioner then moved to compel arbitration under language contained in the collective bargaining agreement. The trial court denied the motion, finding that the agreement did not contain a “clear and unmistakable” agreement to arbitrate. Petitioner now appeals.
Petitioner acknowledges that a special rule of construction applies to cases involving arbitration language in collective bargaining agreements. Specifically, an arbitration clause appearing in a collective bargaining agreement can only be enforced if it evidences a “clear and unmistakable” waiver of the right to a jury trial. However, citing 14 Penn Plaza, LLC vs. Pyett, 556 U.S. 247, 264, Petitioner contends this rule is “a strong candidate for overruling.” Even if the trial court had applied the clear-and-unmistakable rule, it should have found that the language in the agreement did, in fact, satisfy that rule.
According to Respondent, the clear-and-unmistakable standard remains good law and any dicta in Pyett “has no effect on [its] liability.” Furthermore, the trial court correctly applied the rule in this instance because the agreement did not explicitly incorporate any statutory antidiscrimination requirements.
It seems highly unlikely that the Supreme Court will adopt a rule contrary to existing federal law, regardless of whether its continuing viability has been called into question. However, Petitioner may be positioning the case for certiorari to SCOTUS so the issue can be fully and finally resolved.