Carson v. Giant Food, Inc. , 175 F.3d 325 ( 1999 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GREGORY CARSON; WILBERT SKIPPER,
JR.; MELVYN CONNORS; WILLIAM
INGRAM; DAVID NEWMAN; ANTHONY
BLOCKER; MAURICE MATHEWS; W.
KIRB QUALLS, JR.; JOHN W. DALLAS,
JR.; DAVID JONES; JERRY MUNGRO,
Plaintiffs-Appellees,
No. 97-2240
v.
GIANT FOOD, INC.; PETER MANOS;
SAMUEL THURSTON; MARIA MYERS;
ROBERT HAYWOOD; DEBORAH LILLY;
TOM MAYNARD; CHRISTOPHER
BALODEMAS,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-96-2882-JFM)
Argued: March 5, 1999
Decided: April 29, 1999
Before WILKINSON, Chief Judge, and WILKINS and
LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Wilkins and Judge Luttig joined.
_________________________________________________________________
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, WIL-
LIAMS & 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 manag-
ers. 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 unmistak-
ably provide that an arbitrator is to decide which claims the parties
agreed to arbitrate. Second, the CBAs do not clearly and unmistak-
ably 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 Employ-
ment 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 dis-
charged employees, and attorneys' fees.
2
In response, defendants noted that the named plaintiffs were repre-
sented by four different unions which had entered into four different
CBAs. Defendants asserted that each of those CBAs required the arbi-
tration of employee statutory discrimination claims. They based their
argument on two clauses -- a nondiscrimination clause and an arbi-
tration 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 perfor-
mance 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 simi-
larly 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 discrim-
inate 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 member-
ship 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
3
[S]hould any grievance or dispute arise between the parties
regarding the terms of this Agreement, [the parties will try
to resolve the matter]. . . . If agreement cannot be reached,
the parties agree that within five (5) days they shall select
a neutral and impartial arbitrator . . . .
The arbitration clause negotiated by Local 400 is slightly different,
requiring arbitration of any "controversy, dispute or disagreement . . .
concerning the interpretation of the provisions of this Agreement."
Asserting that the language of these agreements required the arbi-
tration of plaintiffs' claims, defendants moved for summary judg-
ment. The district court denied this motion in August 1997.1 It found
that the language of the CBA antidiscrimination and arbitration
clauses was not broad enough to require the arbitration of plaintiffs'
claims under Title VII, section 1981, the ADEA, and the ADA.2 The
district court certified this issue for interlocutory appeal, 28 U.S.C.
§ 1292(b), and we granted defendants' petition for permission to
appeal.
_________________________________________________________________
1 The district court did, however, grant other motions of defendants. It
dismissed plaintiffs' claims under the Equal Pay Act, Executive Order
No. 11246, and 42 U.S.C. §§ 1985 & 1986. The court also dismissed the
Title VII, ADEA, and ADA claims against the individual defendants.
And it dismissed the ADEA claims of individual plaintiffs W. Kirb
Qualls and Maurice Mathews and the section 1981 claims against defen-
dant Tom Maynard. None of these dismissals is before us.
2 The district court's judgment with respect to the Title VII, section
1981, and ADEA claims applied to all four of the CBAs in this case. By
contrast, its judgment of nonarbitrability with respect to the ADA claims
was limited to the effect of the Local 400 CBA. The district court found
that the Local 400 CBA did not require the arbitration of ADA claims,
and this refusal has been appealed. The arbitrability of ADA claims
under the CBAs signed by Locals 639, 730, and 922 is not before us. The
district court did not reach the issue under the Local 639 and 922 CBAs.
And it found that the Local 730 CBA required the arbitration of ADA
claims; that ruling has not been appealed.
4
II.
The public benefits of arbitration in the collective bargaining con-
text are well known. Arbitration "reflects both our tradition of resolv-
ing 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 arbi-
tration 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 author-
ity 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 gen-
eral 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
5
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 pre-
sumption. 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 quota-
tion 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 pro-
vided 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 interpreta-
tion 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 par-
ties 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 arbi-
trator's jurisdiction.
6
For example, in AT&T Technologies, Inc. v. Communications
Workers of America, the collective-bargaining contract committed to
arbitration all "differences arising with respect to the interpretation of
this contract or the performance of any obligation hereunder." 475
U.S. at 645. Still, the Supreme Court held that"It was for the court,
not the arbitrator, to decide in the first instance whether the dispute
was to be resolved through arbitration." Id. at 651. Similarly, in John
Wiley & Sons, Inc. v. Livingston, the Supreme Court addressed a con-
tract providing for the arbitration of "any differences, grievance or
dispute between the Employer and the Union arising out of or relating
to this agreement, or its interpretation or application, or enforcement."
376 U.S. 543, 553 (1964). Despite this language, the Court itself
decided that the union's claims were in fact arbitrable. Id. at 554-55;
see also Warrior & Gulf, 363 U.S. at 576, 583 n.7. Elsewhere the
Supreme Court has explained that even "``when the parties have
agreed to submit all questions of contract interpretation to the arbitra-
tor,'" the judiciary is still "``to ascertain[ ] whether the party seeking
arbitration is making a claim which on its face is governed by the
contract.'" United Paperworkers Int'l Union v. Misco, Inc., 484 U.S.
29, 36-37 (1987) (quoting United Steelworkers of Am. v. American
Mfg. Co., 363 U.S. 564, 567-68 (1960)). Thus, broad arbitration
clauses that generally commit all interpretive disputes "relating to" or
"arising out of" the agreement do not satisfy the clear and unmistak-
able test.
Cases in this circuit reinforce this point. In Brown v. Trans World
Airlines, this court encountered a CBA which required the arbitration
of all "disputes between the Union, employee, and the Company
growing out of the interpretation or application of any of the terms of
this Agreement." 127 F.3d 337, 338 (4th Cir. 1997). In spite of this
language, we stated that "The determination of the arbitration provi-
sion's scope and meaning is for the court to resolve." Id. at 340. Even
broader language was used in Virginia Carolina Tools, Inc. v. Inter-
national Tool Supply, Inc. The agreement in that case did not even
restrict the scope of arbitration to matters of interpretation or differ-
ences growing out of the agreement. Instead, it capaciously stated that
"Should any dispute arise between the parties they agree to seek reso-
lution through [arbitration]." 984 F.2d at 115. Nonetheless, we noted
that
7
We need not decide if anything short of a specific,
express provision, such as "all disputes concerning the
arbitrability of particular disputes under this contract are
hereby committed to arbitration," would meet[the clear and
unmistakable] test. It suffices to say that the typical, broad
arbitration clause [like this one] -- which contains nothing
approaching such a provision -- does not.
Id. at 117.
The lesson from these cases is that if contracting parties wish to let
an arbitrator determine the scope of his own jurisdiction, they must
indicate that intent in a clear and specific manner. Expansive general
arbitration clauses will not suffice to force the arbitration of arbitra-
bility disputes.
Here, the parties failed to so agree. The four CBAs at issue in this
case have broad clauses requiring arbitration to resolve disputes "re-
garding the terms of this Agreement" and "concerning the interpreta-
tion of the provisions of this Agreement." These general clauses are
indistinguishable from those at issue in the cases discussed above.
Thus, we are compelled to find they do not clearly and unmistakably
commit questions of arbitrability to arbitration. A court, not an arbi-
trator, is to determine whether the parties agreed to arbitrate the statu-
tory discrimination claims at issue here.
We stress, however, that arbitration of arbitrability disputes -- like
other contractual matters -- remains a question of the parties' intent.
Those who wish to let an arbitrator decide which issues are arbitrable
need only state that "all disputes concerning the arbitrability of partic-
ular disputes under this contract are hereby committed to arbitration,"
or words to that clear effect. Absent such clarity, we are compelled
to find that disputes over the arbitrability of claims are for judicial
resolution.
IV.
We thus proceed to determine whether the parties agreed to arbi-
trate the discrimination claims arising under Title VII, 42 U.S.C.
8
§ 1981, the ADEA, and the ADA. Like the previous issue, this ques-
tion 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 arbi-
trate 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 judi-
cial forum. There, the Court held that the normal interpretative rule
applicable to collective bargaining agreements -- one which pre-
sumes a dispute is arbitrable -- does not apply to statutory discrimi-
nation 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 unmistak-
ably require arbitration of employee federal discrimination claims.
Each of those CBAs contains a specific provision banning discrimina-
tion 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
9
together, defendants argue this language clearly and unmistakably
provides for the arbitration of statutory discrimination claims.
We disagree. Broad, general language is not sufficient to meet the
level of clarity required to effect a waiver in a CBA. In the collective
bargaining context, the parties "must be particularly clear" about their
intent to arbitrate statutory discrimination claims. Universal
Maritime, 119 S. Ct. at 396. Here, the parties were not that clear.
The Supreme Court's opinion in Universal Maritime indicates that
the requisite degree of clarity can be achieved by two different
approaches. The first is the most straightforward. It simply involves
drafting an explicit arbitration clause. Under this approach, the CBA
must contain a clear and unmistakable provision under which the
employees agree to submit to arbitration all federal causes of action
arising out of their employment. Such a clear arbitration clause will
suffice to bind the parties to arbitrate claims arising under a host of
federal statutes, including Title VII, 42 U.S.C.§ 1981, the ADEA,
and the ADA.
The second approach is applicable when the arbitration clause is
not so clear. General arbitration clauses, such as those referring to "all
disputes" or "all disputes concerning the interpretation of the agree-
ment," taken alone do not meet the clear and unmistakable require-
ment of Universal Maritime. When the parties use such broad but
nonspecific language in the arbitration clause, they must include an
"explicit incorporation of statutory antidiscrimination requirements"
elsewhere in the contract. Universal Maritime , 119 S. Ct. at 396. If
another provision, like a nondiscrimination clause, makes it unmistak-
ably clear that the discrimination statutes at issue are part of the
agreement, employees will be bound to arbitrate their federal claims.
The CBAs in this case failed to follow either approach. The arbitra-
tion clauses in the CBAs state broadly that the parties agree to arbi-
trate all disputes over the meaning of the agreement. No mention,
however, is made of disputes arising under federal law. This sort of
general arbitration clause does not satisfy the demand of particular
clarity. Nor do the other provisions of the contract persuade us that
the plaintiffs' statutory claims have been incorporated into the CBAs.
The agreements do contain antidiscrimination provisions stating that
10
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 arbitra-
tion and nondiscrimination clauses fails to meet the"clear and unmis-
takable" standard set forth in Universal Maritime. Thus, we hold that
the CBAs at issue in this case did not commit to arbitration the resolu-
tion 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 inter-
preted to require arbitration. Instead, a CBA must plainly specify the
intent to have an arbitrator decide both the scope of his own jurisdic-
tion 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 unmistak-
able 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
11