Forty years ago, I successfully argued at the United States Supreme Court that public employee unions could not bargain away their members’ right to sue their employers for violations of their constitutional rights — exactly what the Kansas City firefighters’ union, Local 42, has recently done . The court unanimously held that union-negotiated arbitration was not an adequate substitute for the right to sue in state or federal court.
I would like to claim it was my brilliant advocacy that led to that result, but it was a relatively straightforward case. After all, the Court had already held that unions could not bargain away their members’ right to sue in court under Title VII for employment discrimination (1974’s Alexander v. Gardner-Denver) or for violation of minimum wage or overtime laws (1981’s Barrentine v. Arkansas-Best Freight System). The justices took almost no time to write a short, unanimous opinion reaching the obvious result.
This was no radical court — only two of its members had been nominated by Democrats. And the logic of the decision and its predecessors was clear: Unions, in their legitimate desire to achieve the best contract for most of their members, would sometimes negotiate away the best interests of minority workers or those whose interests were not shared by the majority. The Kansas City firefighters’ contract is a clear example of the problem: The union members as a whole received a pay raise at the cost of limiting the rights of minority members and others whose constitutional rights may be violated
So how is it that the firefighters’ union can now bargain away its members’ right to sue in court and force them to pursue their constitutional claims in arbitration? In a series of cases culminating in the 2009 case of 14 Penn Plaza LLC v. Pyett, the Supreme Court’s then-newly appointed conservative majority cavalierly stripped union members of the right that all other Americans have: the right to have a state or federal court determine whether their rights under federal law have been violated and what remedy is warranted. The 5-4 decision (written by Justice Clarence Thomas, and joined by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Antonin Scalia) cavalierly assumes that arbitration is as effective as — or perhaps superior to — to judicial remedies for violations of federal constitutional or statutory rights.
But Kansas City’s negotiation with the firefighters makes it clear that neither the union nor the city believe this to be true. Otherwise, the city would not have been willing to trade a higher across-the-board salary scale for surrender of individual firefighters’ right to go to court with claims of discrimination. All parties recognize what the conservative Supreme Court majority ignored: Arbitration is more favorable to the employer than a trial before a judge and jury — jury trials award the victims more money.
The contract may provide higher pay for the majority of union members, but it does so at the expense of those whose rights have been violated. And the conservative members of the U.S. Supreme Court were wrong to permit such contracts.
David Achtenberg is professor emeritus at the University of Missouri-Kansas City School of Law. In private practice, he represented individuals in employment discrimination cases and was sometimes hired by unions to represent their members. He lives in Kansas City.
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