Wilson v. PBM, LLC

• Decision Date: 03 February 2021
• Docket Number: 2017–08428,Index No. 515620/15
• Citation: 140 N.Y.S.3d 276,193 A.D.3d 22
• Parties: Ronnie WILSON, appellant, v. PBM, LLC, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 22
140 N.Y.S.3d 276

Ronnie WILSON, appellant,
v.
PBM, LLC, etc., et al., respondents.

2017–08428
Index No. 515620/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 7, 2020
February 3, 2021

C.T. Lee & Associates, New York, N.Y. (Corey T. Lee of counsel), for appellant.

Davidoff Hutcher & Citron LLP, New York, N.Y. (Mark E. Spund and Joshua Krakowsky of counsel), for respondents.

WILLIAM F. MASTRO, A.P.J., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

OPINION & ORDER

CHRISTOPHER, J.

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This appeal concerns the issue of whether pursuant to a collective

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bargaining agreement, the 2012 Contractors Agreement (hereinafter the CBA) between Service Employees International Union Local 32BJ (hereinafter the Union) and The Realty Advisory Board on Labor Relations, Inc. (hereinafter the RAB), an employee has the right to pursue employment discrimination claims individually in court upon the Union declining to pursue arbitration of such claims, or whether the claims are subject to mandatory arbitration under the terms of the CBA. For the reasons that follow, we conclude that the Supreme Court correctly determined that arbitration of the discrimination claims brought by the plaintiff is mandated by the clear terms of the CBA.

Background

The plaintiff is an African–American male who was employed by the defendant PBM, LLC, doing business as Perfect Building Maintenance Corp. (hereinafter PBM), as a porter and freight elevator operator from 2002 until termination of his employment in August 2014. PBM is a privately held company that provides janitorial and related services to single- and multi-tenant properties in the northeast area. It is a member of the RAB, a multi-employer bargaining association. While at PBM, the plaintiff was a member of the Union. The terms and conditions of the plaintiff's employment during the relevant time period were governed by the CBA, which was effective January 1, 2012, to December 31, 2015. Section 30(A) of Article XVI of the CBA, which addresses arbitration, provides that discrimination claims "shall be subject to the grievance and arbitration procedure (Article V and VI) as the sole and exclusive remedy for violations." Section 30(B), the No–Discrimination Protocol, provides, inter alia, for arbitration procedures when the Union has declined to take an individual employee's employment

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discrimination claims set forth in section 30(A) to arbitration.

The plaintiff alleges that, at his workplace, he routinely experienced discrimination, was subjected to a hostile work environment, and was discharged from his employment due to his race. He asserts that beginning in or around December 2012, his direct supervisor began to routinely refer to him as "boy," and from July 2013 until February 2014, he observed "several nooses" hanging in the workplace. After filing a grievance with the Union, the plaintiff was reassigned to another building, without being given any explanation for the transfer. On February 7, 2014, the plaintiff filed a second grievance

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with the Union regarding the transfer and alleging racial discrimination. He was then reassigned a second time to a different building, where he was required to undergo a background check which revealed that he had prior criminal convictions that he had failed to report on his original employment application. The plaintiff's employment was terminated on August 4, 2014. The plaintiff filed another grievance on the basis that he was unjustly discharged. While the Union arbitrated the plaintiff's unjust discharge complaints, it declined to arbitrate the plaintiff's claims of racial discrimination. In October 2015, the plaintiff attempted without success to mediate the discrimination claims. Thereafter, in December 2015, the plaintiff commenced this action against PBM and several of PBM's employees to recover damages, alleging discrimination and hostile work environment based on race and retaliation under 42 USC § 1981, the New York State Human Rights Law ( Executive Law § 296 ; hereinafter NYSHRL), and the New York City Human Rights Law (Administrative Code of City of NY, tit 8; hereinafter NYCHRL). The plaintiff also alleged causes of action to recover damages for negligence, negligent supervision and retention, and negligent training.

In May 2016, the defendants moved pursuant to CPLR 7503 to compel arbitration and/or, in effect, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. They argued that the plaintiff's claims were subject to mandatory arbitration pursuant to the terms of the CBA. The Supreme Court granted the defendants' motion. The plaintiff appeals.

Discussion

Generally, "[t]here is a longstanding public policy favoring the arbitration of disputes, particularly with respect to broad arbitration clauses set forth in collective bargaining agreements" ( Ibarra v. 101 Park Rest. Corp., 140 A.D.3d 700, 702, 34 N.Y.S.3d 93 [citation omitted]). The United States Supreme Court enunciated clear support of this position in its 2009 decision in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S.Ct. 1456, 173 L.Ed.2d 398, wherein the Court analyzed an arbitration clause that was substantially the same as the one at issue herein, and which was contained in a prior version of a collective bargaining agreement between the Union and the RAB. In Pyett, the Court, finding that Congress did not preclude waiver of judicial remedies for the employees' statutory claims for age discrimination under the Age Discrimination in Employment Act of 1967 (

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29 USC § 621 et seq. ; hereinafter ADEA), held "that a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law" ( 14 Penn Plaza LLC v. Pyett, 556 U.S. at 274, 129 S.Ct. 1456 ).

Pyett 's holding has since been applied to claims arising under other employment discrimination statutes, including 42 USC § 1981, title VII of the Civil Rights Act of 1964 ( 42 USC, ch 21, § 2000e et seq. ), the

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NYSHRL, and the NYCHRL (see Sum v. Tishman Speyer Props., Inc., 37 A.D.3d 284, 284, 829 N.Y.S.2d 507 ; Lawrence v. Sol G. Atlas Realty Co., Inc., 841 F.3d 81, 83 [2d Cir.] ; Lobban v. Cromwell Towers Apts., LP, 345 F. Supp. 3d 334, 347–348 [S.D. N.Y.] ; Hamzaraj v. ABM Janitorial Northeast Inc., 2016 WL 3571387, 2016 U.S. Dist. LEXIS 83216 [S.D. N.Y., No. 15–Civ.–2030 (ER)]; Germosen v. ABM Indus. Corp., 2014 WL 4211347, 2014 U.S. Dist. LEXIS 119092 [S.D. N.Y., No. 13–CV–1978 (ER)]; Duraku v. Tishman Speyer Props., Inc., 714 F. Supp. 2d 470, 473–474 [S.D. N.Y.] ).

In Pyett, the United States Supreme Court reasoned that the Union and the RAB's agreement that employment-related discrimination claims would be resolved in arbitration was a freely negotiated term between them that easily qualifies as a " ‘conditio[n] of employment’ " subject to mandatory bargaining under section 159(a) of the National Labor Relations Act ( 29 USC § 159 [a]; hereinafter NLRA), the statute which governs federal labor relations law ( 14 Penn Plaza LLC v. Pyett, 556 U.S. at 256, 129 S.Ct. 1456, quoting Litton Financial Printing Div., Litton Business Systems, Inc. v. N.L.R.B., 501 U.S. 190, 199, 111 S.Ct. 2215, 115 L.Ed.2d 177 ). The Court noted that freedom of contract is one of the fundamental policies of the NLRA, and that " ‘[j]udicial nullification of contractual concessions’ " is contrary to that policy ( 14 Penn Plaza LLC v. Pyett, 556 U.S. at 257, 129 S.Ct. 1456, quoting N.L.R.B. v. Magnavox Co., 415 U.S. 322, 328, 94 S.Ct. 1099, 39 L.Ed.2d 358 ). The Court further expounded that there was no legal basis to strike down the arbitration clause which clearly and unmistakably required the employees to arbitrate the age discrimination claims at issue, as "[t]he NLRA provided the Union and the RAB with statutory authority to collectively bargain for arbitration of workplace discrimination claims, and Congress did not terminate that authority with respect to federal age-discrimination claims in the ADEA" ( 14 Penn Plaza LLC v. Pyett, 556 U.S. at 260, 129 S.Ct. 1456 ).

However, while acknowledging that "a substantive waiver of federally protected civil rights will not be upheld," the United

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States Supreme Court declined to address the employees' argument that the collective bargaining agreement operated as a substantive waiver of their statutory rights, as it not only precluded litigation of their federal statutory claims in court, but also allowed the Union to block arbitration of such claims ( id. at 273, 129 S.Ct. 1456 ). Thus, as noted by the dissent (Souter, J.), the majority opinion in Pyett "explicitly reserves the question whether a [collective bargaining agreement's] waiver of a judicial forum is enforceable when the union controls access to and...