Can a union waive its members' ERISA claims? An analysis.
Unions can waive some statutory rights of their members and not others. But can a union as the collective bargaining agent for its members waive ERISA claims that the members might have had against the employer? Given the broad coverage of ERISA and its powerful remedies, this issue is very important for employers and unions deciding how to approach these issues. If unions cannot do so, this also has significant implications for union members when looking at potential claims they may have against their current or former employers. This article presents a quick review of the limited case law on this issue, and the general case law covering when a union can and cannot waive its members' statutory rights.
“A distinction has been drawn between a union having the power to waive statutory rights related to collective activity, but not statutory rights that are of a personal, and not merely economic, nature." 20 Williston on Contracts § 55:30 (4th Ed.). The distinction between collective-economic rights and personal-noneconomic rights might work for most situations, but ERISA rights are both personal and economic. There is very little case law on point.
One isolated district court opinion, without authority or explanation, suggests that unions cannot waive their members ERISA rights. Allen v. American Home Foods, Inc., 644 F. Supp. 1553, 1564 (N.D. Ind. 1986) (“ERISA rights appear to be no different from other statutory entitles to individual rights that a union cannot waive."). The Sixth Circuit almost confronted this issue more recently in Dotson v. Arkema, No. 09-1383 (6th Cir. 2010), but because the plaintiffs failed to raise a challenge to the unions' power to waive their rights in the district court, the issue was deemed forfeited. Attorneys and beneficiaries investigating the issue will need to look at the policies behind the general rule to understand how courts would likely approach the issue if confronted with it.
Unions can waive certain collective rights, but as a general rule cannot waive or release members’ individual statutory rights. So unions can waive economic and labor related rights. See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 51-52 (1974) (right to strike); Metro Edison Co. v. NLRB, 460 U.S. 693, 705-06 (1983) (“a union may bargain away its members economic rights"); NLRB v. Mead Corp., 73 F.3d 74, 79 (1996) (NLRA rights); Beverely Health and Rehab. Servs., Inc. v. NLRB, 297 F.3d 468, 480 (6th Cir. 2002) NLRA right to bargain). Unions can also waive the right to recover for WARN act violations. McMillan v. LTV Steel, Inc., 555 F.3d 218, 299 (6th Cir. 2009); but see Wilson v. Airthenrm Prods., 2004 U.S. Dist. LEXIS 299334, at *42 (E.D. Ark. Sept. 29, 2004) (taking contrary position on WARN Act.) But unions can also sue on behalf of their members for WARN Act violations. 29 U.S.C. § 2104(a)(5).
Conversely, Unions cannot waive other statutory rights, like ADA, FMLA, or Title VII. _ Dotson v. Arkema, n. 5 (E. D. Mich. Feb. 26, 2009). And unions cannot waive FLSA rights. _See, e.g., Featsen v. Youngstown, 70 F.3d 900, 905 (6th Cir. 1995); Douglas v. Argo-Tech Corp., 113 F.3d 67, 70 (6th Cir. 1997); Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 745 (1981). This outcome seems appropriate because unions cannot bring FLSA actions on behalf of their members. See UFCW, Local 1565 v. Albertson’s, Inc. , 207 F.3d 1193, 1198 (10th Cir. 2000) (collecting cases); 29 U.S.C. § 216(b).
Only plan participants and beneficiaries, as opposed to their unions, can bring civil actions under ERISA. 29 U.S.C. § 1131(a); New Jersey State AFL-CIO v. New Jersey, 747 F.2d 891 (3d. Cir. 1984); Int’l Union v. Auto Glass Employees Federal Credit Union, 858 F.Supp. 711, 722 (M.D. Tenn. 1994). Thus, ERISA rights are more like the FLSA, which unions cannot sue under, than the WARN Act or NRLB that unions can press a claim under. In other words, if the unions cannot sue to vindicate the members’ ERISA rights, then the unions probably cannot waive those members ERISA rights.
Until the courts provide guidance on the issue, cautious practitioners representing employers should be sure to obtain the signatures of individual employees when negotiating retrospective ERISA waivers and should not simply rely on the collective bargaining process. Potential plaintiffs investigating these issues or challenging an ERISA waiver on other grounds should be sure to raise the issue right away to avoid forfeiting it like the Arkema plaintiffs. In all circumstances, one should promptly consult an attorney licensed to practice in the relevant jurisdiction.