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Published United States Court of Appeals For The Fourth Circuit
Published United States Court of Appeals For The Fourth Circuit
COUNSEL
ARGUED: Kumiki San Gibson, WILLIAMS & CONNOLLY,
Washington, D.C., for Appellants. William Ray Ford, Camp Spring,
Maryland, for Appellees. ON BRIEF: Robert P. Watkins, WILLIAMS & CONNOLLY, Washington, D.C.; Robert B. Fitzpatrick,
FITZPATRICK & ASSOCIATES, Washington, D.C., for Appellants.
Jo Ann P. Myles, Largo, Maryland, for Appellees.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Eleven current and former employees brought individual and class
claims of race, age, and disability discrimination against their
employer, Giant Food, Inc., and individual Giant officers and managers. After examining four collective bargaining agreements (CBAs)
between the employees' unions and Giant, the district court refused
to compel arbitration. On appeal, Giant argues that the district court
should have let the arbitrator decide which claims were arbitrable and
that the CBAs required the arbitration of discrimination claims. We
reject both arguments. First, the CBAs do not clearly and unmistakably provide that an arbitrator is to decide which claims the parties
agreed to arbitrate. Second, the CBAs do not clearly and unmistakably require the arbitration of statutory discrimination claims. Thus,
we affirm the judgment of the district court.
I.
Plaintiffs are current and former African American employees of
the supermarket food chain Giant Food. Claiming that Giant and its
officers and managers discriminated against employees on the basis
of race, age, and disability, plaintiffs brought suit in September 1996.
They alleged numerous individual and class claims, including claims
under Title VII, 42 U.S.C. 1981, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).
The employees sought compensatory and punitive damages totaling
$300 million, injunctive and declaratory relief, reinstatement of discharged employees, and attorneys' fees.
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In response, defendants noted that the named plaintiffs were represented by four different unions which had entered into four different
CBAs. Defendants asserted that each of those CBAs required the arbitration of employee statutory discrimination claims. They based their
argument on two clauses -- a nondiscrimination clause and an arbitration clause -- that appear in each CBA.
The nondiscrimination provisions in the four CBAs are similar.
The CBA negotiated by the United Food and Commercial Workers
Union, Local 400, includes a clause in the preamble:
WHEREAS, the Employer and the Union in the performance of this Agreement agree not to discriminate against
any employee or applicant for employment because of race,
color, religious creed, origin, age or sex.
The preamble of the CBA signed by the International Brotherhood of
Teamsters, Local 639, contains an identical clause, except that the
word "Company" is substituted for the word"Employer." The CBA
agreed to by the Teamster's Warehouse Employees Local 730 similarly states that
The Employer and the Union in the performance of this
Agreement agree not to discriminate against any employee
or applicant for employment because of race, sex, age,
color, religious creed or national origin.
And the fourth CBA, entered into by the Teamster's Automotive
Employees Local 922, provides
The Employer and the Union agree that neither will discriminate either directly or indirectly, nor will they permit any
of their agents, members or representatives to discriminate
either directly or indirectly, against any employee by reason
of race, creed, color, national origin, age, sex, or membership or activity in the Union.
In addition to the nondiscrimination provisions, the four CBAs also
contain arbitration clauses defining the scope of arbitrable matters.
The CBAs for Locals 639, 730, and 922 each state that
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II.
The public benefits of arbitration in the collective bargaining context are well known. Arbitration "reflects both our tradition of resolving private sector disputes without public sector interference and a
desire to quickly and efficiently resolve labor grievances before they
threaten economic progress on a broad front." Westvaco Corp. v.
United Paperworkers Int'l Union, Local 1014, 1999 WL 164141, *3
(4th Cir. 1999). The private settlement of labor disputes through arbitration has been a "major factor in achieving industrial peace." United
Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 578
(1960).
While arbitration serves important public interests, an agreement to
arbitrate -- like any other contract -- is fundamentally about private
choice. "[A]rbitration is a matter of contract and a party cannot be
required to submit to arbitration any dispute which he has not agreed
so to submit." Id. at 582. Despite the public benefits of arbitration, the
determination of what disputes are arbitrable is focused on the intent
of the parties. See AT&T Techs., Inc. v. Communications Workers of
Am., 475 U.S. 643, 648-49 (1986) ("[A]rbitrators derive their authority to resolve disputes only because the parties have agreed in
advance to submit such grievances to arbitration."). Generally, the
parties -- not the courts -- control which disputes will be arbitrated.
III.
The initial question presented in this case is who-- a court or an
arbitrator -- determines whether each CBA requires the arbitration of
plaintiffs' statutory discrimination claims. That is, did the parties
agree to arbitrate the very issue of what claims are arbitrable?
Generally, "any doubts concerning the scope of arbitrable issues
should be resolved in favor of arbitration." Moses H. Cone Mem'l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983); see also
Warrior & Gulf, 363 U.S. at 582-83. This presumption, however,
does not apply to the issue of which claims are arbitrable. "[T]he general policy-based, federal presumption in favor of arbitration . . . is
not applied as a rule of contract interpretation to resolve questions of
the arbitrability of arbitrability issues themselves." Virginia Carolina
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Tools, Inc. v. International Tool Supply, Inc., 984 F.2d 113, 117 (4th
Cir. 1993). Thus, "Courts should not assume that the parties agreed
to arbitrate arbitrability." First Options of Chicago, Inc. v. Kaplan,
514 U.S. 938, 944 (1995).
The Supreme Court has explained the reasons for this reverse presumption. It has stated that the "willingness of parties to enter into
agreements that provide for arbitration of specified disputes would be
drastically reduced . . . if a labor arbitrator had the power to determine
his own jurisdiction." AT&T Techs., 475 U.S. at 651 (internal quotation marks omitted). And, it has noted that a "party often might not
focus upon that question or upon the significance of having arbitrators
decide the scope of their own powers." First Options, 514 U.S. at 945.
Nevertheless, the parties can agree to let an arbitrator determine the
scope of his own jurisdiction. Their agreement must, however,
"clearly and unmistakably" provide that the arbitrator shall determine
what disputes the parties agreed to arbitrate. AT&T Techs., 475 U.S.
at 649; accord First Options, 514 U.S. at 944 ("Courts should not
assume that the parties agreed to arbitrate arbitrability unless there is
clear and unmistakable evidence that they did so." (internal quotation
marks omitted)).
Defendants argue that the CBAs here clearly and unmistakably
committed arbitrability to arbitration. They note that the CBAs provided for the arbitration of "any grievance or dispute aris[ing]
between the parties regarding the terms of this Agreement" and any
"controversy, dispute or disagreement . . . concerning the interpretation of the provisions of this Agreement." Because the dispute over
whether statutory discrimination claims are arbitrable requires an
interpretation of the terms of the CBAs, defendants assert that the parties agreed to resolve this threshold dispute by arbitration. Thus,
defendants claim that the parties agreed to arbitrate arbitrability.
We disagree. The "clear and unmistakable" test set forth by the
Supreme Court requires more than simply saying that the arbitrator
determines the meaning of any disputed contractual terms. The courts
have repeatedly rejected the assertion that general arbitration clauses,
like the ones at issue here, commit to arbitration disputes over an arbitrator's jurisdiction.
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1981, the ADEA, and the ADA. Like the previous issue, this question is one of contract and is to be resolved by the parties' expressed
intentions.
Union-negotiated collective bargaining agreements that require the
arbitration of statutory discrimination claims are valid and binding on
unionized employees. Austin v. Owens-Brockway Glass Container,
Inc., 78 F.3d 875 (4th Cir. 1996). In Austin , we noted that under
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991),
employees were free to enter into predispute agreements to arbitrate
statutory employment claims. Austin, 78 F.3d at 880-82. And we
found no reason to preclude enforcement of such agreements when
they were entered into as part of a CBA. "A union has the right and
duty to bargain for the terms and conditions of employment. . . . The
right to arbitrate is a term or condition of employment, and as such,
the union may bargain for this right." Id. at 885. Agreements to arbitrate statutory claims are "`valid because they rest on the premise of
fair representation.'" Id. (quoting Metropolitan Edison Co. v. NLRB,
460 U.S. 693, 705 (1983)). Thus, when a union has agreed to arbitrate
statutory claims, "an employee must follow the grievance procedure
established by the collective bargaining agreement prior to filing suit
in federal court." Id.
Recently, in Wright v. Universal Maritime Service Corp., 119
S. Ct. 391 (1998), the Supreme Court set forth the test required to
determine whether there has been a union-negotiated waiver of a judicial forum. There, the Court held that the normal interpretative rule
applicable to collective bargaining agreements -- one which presumes a dispute is arbitrable -- does not apply to statutory discrimination claims. Id. at 395-96. Instead, collective bargaining agreements
to arbitrate these claims, unlike contracts executed by individuals,
must be "clear and unmistakable." Id. at 396.
Defendants argue that the CBAs in this case clearly and unmistakably require arbitration of employee federal discrimination claims.
Each of those CBAs contains a specific provision banning discrimination on the basis of race and age. Further, the agreements provide for
the arbitration of all disputes "regarding the terms" and "concerning
the interpretation of the provisions" of the agreements. Taken
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the company and the union agree not to discriminate on the basis of
race or age. They do not, however, begin to incorporate by reference
federal statutory law. The absence of transparency in both the arbitration and nondiscrimination clauses fails to meet the"clear and unmistakable" standard set forth in Universal Maritime. Thus, we hold that
the CBAs at issue in this case did not commit to arbitration the resolution of the employees' federal statutory discrimination claims.
V.
Our decision does not seek to undermine private choices about how
best to resolve industrial disputes. This case presents two issues
which require the parties to use "clear and unmistakable" language
expressing a desire to arbitrate. With respect to each, we hold that
clear and unmistakable does not mean general language that under
ordinary principles of contract interpretation might very well be interpreted to require arbitration. Instead, a CBA must plainly specify the
intent to have an arbitrator decide both the scope of his own jurisdiction and the merits of federal statutory discrimination claims. If an
agreement does so, the judiciary will give full effect to that intent.
The CBAs in this case, however, are simply not clear and unmistakable with respect to these issues. The judgment of the district court
is hereby affirmed and the case is remanded for further proceedings
consistent with this opinion.
AFFIRMED AND REMANDED
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