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UNDER THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT PLAINTIFF MUST ARBITRATE HIS RACIAL DISCRIMINATION CLAIMS; AFTER THE UNION REFUSED TO ARBITRATE THE CLAIMS PLAINTIFF BROUGHT THE INSTANT HUMAN RIGHTS LAW CAUSES OF ACTION; THE COMPLAINT WAS STAYED PENDING ARBITRATION (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Christopher, determined plaintiff’s racial discrimination claims were subject to mandatory arbitration under the controlling collective bargaining agreement (CBA). The union had declined to pursue the arbitration of the discrimination claims and plaintiff then commenced the instant action pursuant to the NYS and NYC Human Rights Law. The opinion is to detailed to fairly summarize here. The plaintiff’s complaint was stayed pending arbitration:

“[A]rbitration must be preferred unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute” … . An agreement to arbitrate must be “clear, explicit and unequivocal” … . “Arbitration is a matter of contract, and arbitration clauses, which are subject to ordinary principles of contract interpretation, must be enforced according to their terms” … . * * *

… [I]n order for the plaintiff to be required to arbitrate his employment discrimination claims, the CBA must “clearly and unmistakably” waive the plaintiff’s right to proceed in a judicial forum … . Here, the mandatory arbitration clause “clearly and unmistakably” waives the plaintiff’s right to proceed in a judicial forum. It explicitly references the employment discrimination statutes that the plaintiff has alleged were violated, and states that “[a]ll such claims shall be subject to the grievance and arbitration procedure . . . as the sole and exclusive remedy for violations.” * * *

The Supreme Court’s determination to grant that branch of the defendants’ motion which was, in effect, pursuant to CPLR 3211(a) to dismiss the complaint was improper. “An agreement to arbitrate is not a defense to an action,” and “[t]hus, it may not be the basis for a motion to dismiss” … . However, upon granting that branch of the defendants’ motion which was to compel arbitration pursuant to CPLR 7503(a), the court should have stayed the action …, the order granting a motion to compel “shall operate to stay a pending . . . action.” Wilson v PBM, LLC, 2021 NY Slip Op 00593, Second Dept 2-3-21

 

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