Aleman v. Chugach Support Services, Inc.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSE ALEMAN; CESAR BASILIS; JAMES 
BLASIC; CARLOS BORRAYO; MARIO
RODAS,
Plaintiffs-Appellants,
v.
CHUGACH SUPPORT SERVICES,
INCORPORATED; CHUGACH ALASKA
CORPORATION,
Defendants-Appellees.  No. 06-1461
LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS UNDER LAW; METROPOLITAN
WASHINGTON EMPLOYMENT LAWYERS
ASSOCIATION; WASHINGTON LAWYERS’
COMMITTEE FOR CIVIL RIGHTS AND
URBAN AFFAIRS,
Amici Supporting Appellants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(l:04-cv-04022-WDQ)
Argued: March 13, 2007
Decided: May 3, 2007
Before WILKINSON and KING, Circuit Judges, and
T. S. ELLIS, III, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
2 ALEMAN v. CHUGACH SUPPORT SERVICES
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Wilkinson wrote the opinion, in which Judge King and
Judge Ellis joined.
COUNSEL
ARGUED: Eric Kenneth Bachman, WIGGINS, CHILDS, QUINN &
PANTAZIS, P.L.L.C., Washington, D.C., for Appellants. Harvey
Alan Levin, THOMPSON & COBURN, L.L.P., Washington, D.C.,
for Appellees. ON BRIEF: Ann C. Robertson, WIGGINS, CHILDS,
QUINN & PANTAZIS, P.L.L.C., Birmingham, Alabama, for Appel-
lants. Richard T. Seymour, Washington, D.C.; S. Micah Salb, LIPP-
MAN, SEMSKER & SALB, L.L.C., Bethesda, Maryland; Michael
Foreman, Sarah Crawford, Monica Saxena, LAWYERS’ COMMIT-
TEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C.; Susan
E. Huhta, Carolyn P. Weiss, WASHINGTON LAWYERS’ COM-
MITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, Washing-
ton, D.C., for Amici Supporting Appellants.
OPINION
WILKINSON, Circuit Judge:
Plaintiffs brought claims against their employer, Chugach Support
Services, Inc., and its parent company, Chugach Alaska Corporation,
under 42 U.S.C. § 1981 (2000), which prohibits racial discrimination
in the making and enforcement of contracts, and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (2000), which pro-
hibits, among other things, employment discrimination based upon
race and national origin. The district court granted summary judgment
to the defendants on the claims of one plaintiff because it held that
Alaska Native Corporations and their subsidiaries were not subject to
suit under either of the federal anti-discrimination laws. It dismissed
the claims of two other plaintiffs because a collective bargaining
agreement required that the claims be addressed through binding arbi-
tration.
ALEMAN v. CHUGACH SUPPORT SERVICES 3
We reinstate the claims of the first plaintiff because the exemption
for Alaska Native Corporations from suit under Title VII does not
immunize the defendants from suit under the separate and indepen-
dent cause of action established by Section 1981. However, we affirm
the dismissal of the union members’ claims, because any duty to
explain the provisions of a collective bargaining agreement to
employees with limited English skills belongs principally with the
union which represents them.
I.
The plaintiffs, carpenters Jose Aleman and Cesar Basilis and
finance manager James Blasic, were employed by defendant Chugach
Support Services, Inc. ("CSS") on construction projects that CSS con-
tracted to perform for the U.S. Department of Health and Human Ser-
vices at the National Institutes of Health ("NIH") campus in Bethesda,
Maryland.1 CSS performs general contractor services, typically for the
federal government, and is a wholly owned subsidiary of defendant
Chugach Alaska Corporation, an Alaska Native Corporation owned
by Native Alaskans and their devisees.
Alaska Native Corporations play special roles in controlling lands
and funds for Alaskan Natives, see Alaska Native Claims Settlement
Act, Pub. L. No. 92-203, 85 Stat. 688 (1971) (codified as amended
at 43 U.S.C. §§ 1601-1629a (2000)), but Chugach Alaska Corporation
also operates as a traditional business, employing about 5,000 people
in construction, environmental services, information technology, tele-
communications, and other areas. The defendants have not alleged
that the plaintiffs’ work touched in any way on the internal affairs or
special functions of the Alaska Native Corporation.
Plaintiff Jose Aleman, who is Hispanic, performed carpentry and
other tasks at the NIH site from March 10, 2003 until he was dis-
missed on September 9, 2003. Plaintiff Cesar Basilis, who is also His-
panic, worked at the NIH site from February 11, 2003, until he was
dismissed on October 17, 2003. Plaintiff James Blasic, who describes
1
Two other former employees, Carlos Borrayo and Mario Rodas, were
also plaintiffs in the suit when it was filed, but have since voluntarily dis-
missed their claims with prejudice.
4 ALEMAN v. CHUGACH SUPPORT SERVICES
himself as Caucasian and does not claim Hispanic ancestry, worked
for CSS from December 2, 2002 until he was dismissed on October
22, 2003.
Aleman and Basilis were required to join the Washington D.C.
Regional Council of Carpenters as a condition of their employment,
and became members on August 15, 2003. The union’s collective bar-
gaining agreement states that it covers the period from May 1, 2001
until April 30, 2004 — a period that includes all of Aleman and
Basilis’ time as CSS employees. It includes mandatory dispute resolu-
tion procedures, including procedures for binding arbitration, with
respect to any "grievance" between an employer and an employee
represented by the union. It further states,
The parties expressly agree that a grievance shall include
any claim by an employee that he has been subjected to dis-
crimination under Title VII of the Civil Rights Act of 1964,
as amended, the Age Discrimination in Employment Act,
the Americans with Disabilities Act, and/or all other federal,
state, and local anti-discrimination laws.
Blasic was not a union member, evidently because as a finance man-
ager rather than a carpenter he was not required to join the union as
a condition of employment. He was therefore not covered by the col-
lective bargaining agreement’s dispute resolution provisions.
Aleman and Basilis have apparently not sought to resolve their
grievances through the procedures set forth in the collective bargain-
ing agreement, but they allege that they should not be bound by the
procedures because they were not provided with a translation of the
collective bargaining agreement or its dispute resolution provisions
into their native Spanish. Each stated in declarations made as part of
this litigation that his ability to speak and write English is limited.
Neither plaintiff claimed, however, that he did not or could not under-
stand the arbitration provision in English.
Plaintiffs filed suit on December 27, 2004, claiming unlawful dis-
crimination under Title VII and Section 1981 as well as Maryland
law. Aleman and Basilis allege, in particular, that CSS terminated
them on the basis of race. They also allege that when they were
ALEMAN v. CHUGACH SUPPORT SERVICES 5
employed by CSS, they were paid less than non-Hispanic employees
and were subjected to a hostile work environment and discriminatory
terms and conditions of employment, including anti-Hispanic state-
ments by managers and employees, segregated eating areas, and dis-
parate disciplinary treatment. They further allege that an "English
Only" rule at their workplace constituted unlawful discrimination.
The two union members later filed a motion to amend their complaint
in order to add their union as a defendant, asserting that the union dis-
criminated against them under the same anti-discrimination statutes
by failing to provide equal representation and by employing discrimi-
natory terms and conditions, practices, and/or procedures. They cite,
in particular, the union’s failure to provide its members with a Span-
ish translation of the collective bargaining agreement or with the
assistance of a translator in interpreting the agreement. The plaintiffs
were not required to arbitrate claims against their union.
Blasic alleges that CSS violated the anti-discrimination statutes by
terminating him in retaliation for reporting racial discrimination in the
company’s operations. He states that he was fired one week after
reporting to the defendants that Aleman, Basilis, and two other His-
panic employees had been dismissed and that derogatory comments
had been made to non-Caucasians at CSS’ work site.
On November 7, 2005, the district court granted the defendants’
motion to dismiss the claims of Aleman and Basilis on the grounds
that their collective bargaining agreement required binding arbitration
of claims under Title VII "and/or all other federal, state, and local
anti-discrimination laws." The court denied Aleman and Basilis’
motion to add the union as a defendant in the same decision. On
March 28, 2006, the district court granted summary judgment to the
defendants regarding Blasic’s Title VII and Section 1981 claims on
the grounds that Alaska Native Corporations were exempt from suit
under both anti-discrimination statutes. It declined supplemental juris-
diction over the remaining state law claims.
Aleman, Basilis, and Blasic do not now dispute that the defendants
are immune from suit under Title VII, but they argue that the defen-
dants are not immune from suit under Section 1981. They also argue
that the district court erred in dismissing the claims of Aleman and
Basilis based upon the dispute resolution provision in their collective
6 ALEMAN v. CHUGACH SUPPORT SERVICES
bargaining agreement, and in declining to add the union as a defen-
dant.
II.
A.
Title VII created a new cause of action for employment discrimina-
tion against unions, employment agencies, and any entity defined as
an "employer." The statute provides, in relevant part,
It shall be an unlawful employment practice for an employer
. . . to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color,
religion, sex, or national origin . . . .
42 U.S.C. § 2000e-2(a). The class of employers covered by Title VII
is restricted to persons with fifteen or more employees, and it
excludes bona fide private membership clubs, certain government
entities, id. § 2000e(b), and — most relevantly — Alaska Native Cor-
porations, 43 U.S.C. § 1626(g) (2000), and Indian tribes, 42 U.S.C.
§ 2000e(b). The defendants argue that these exclusions not only bar
suit against Alaska Native Corporations and Indian tribes under Title
VII, but also render such entities immune from suit under Section
1981.
We reject this contention for two reasons. By their own terms, the
Title VII exclusions are limited to Title VII itself. And Section 1981
— which the Supreme Court has instructed us to treat as a separate
and distinct cause of action — contains no exemptions corresponding
to those in Title VII.2
2
Because employer exemptions under Title VII do not bar suits under
Section 1981, we need not address the plaintiffs’ contention that the
defendants do not qualify as Indian tribes for the purposes of Title VII’s
employer exemptions in any event.
ALEMAN v. CHUGACH SUPPORT SERVICES 7
While the definition of "employer" in Title VII excludes Indian
tribes and Alaska Native Corporations, these exclusions state that they
are limited to the section of federal law that contains Title VII. The
single-sentence exclusion for Alaska Native Corporations makes this
clear twice, stating,
For the purposes of implementation of the Civil Rights Act
of 1964 [42 U.S.C. 2000a et seq.], a Native Corporation and
corporations, partnerships, joint ventures, trusts, or affiliates
in which the Native Corporation owns not less than 25 per
centum of the equity shall be within the class of entities
excluded from the definition of "employer" by section
701(b)(1) of Public Law 88-352 (78 Stat. 253), as amended
[42 U.S.C. § 2000e(b)(1)], or successor statutes.
43 U.S.C. § 1626(g) (emphasis added). Similarly, the provision
excluding Indian tribes from Title VII’s definition of employer states,
"For the purposes of this subchapter . . . [t]he term ‘employer’ . . .
does not include . . . an Indian tribe . . . ." 42 U.S.C. § 2000e (empha-
sis added). The subchapter containing Title VII does not contain Sec-
tion 1981.
Section 1981 contains no similar exception for Alaska Native Cor-
porations. Its civil cause of action, enacted as part of the Civil Rights
Act of 1866, states, "All persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make
and enforce contracts . . . as is enjoyed by white citizens . . . ." Id.
§ 1981(a). The Supreme Court has long held the Civil Rights Act of
1866 "to prohibit all racial discrimination, whether or not under color
of law, with respect to the rights enumerated therein." Jones v. Alfred
H. Mayer Co., 392 U.S. 409, 436 (1968). Congress amended the stat-
ute in 1991 to codify this understanding, stating that Section 1981
protects rights "against impairment by nongovernmental discrimina-
tion" in addition to "impairment under color of State law." 42 U.S.C.
§ 1981(c). Section 1981 makes no mention of Alaska Native Corpora-
tions or Indian tribes, and it includes no terms that could be construed
to set such entities outside the statute’s reach.
Indeed, it is hard to imagine how the exclusions of Alaska Native
Corporations and Indian tribes from Title VII’s definition of "em-
8 ALEMAN v. CHUGACH SUPPORT SERVICES
ployer" could control under Section 1981, because Section 1981 does
not apply solely to employers or employment discrimination. Section
1981’s prohibition on racial discrimination in the making and
enforcement of contracts has long been applied to relationships far
afield of employment. Black parents established "a classic violation
of § 1981" by showing that private schools refused, on the basis of
race, to enroll their children. Runyon v. McCrary, 427 U.S. 160, 172
(1976). Prospective purchasers of home leaseholds, Pinchback v.
Armistead Homes Corp., 907 F.2d 1447, 1448 (4th Cir. 1990), and
prospective club members, Wright v. Salisbury Club, Ltd., 632 F.2d
309, 310 (4th Cir. 1980), among others, have availed themselves of
the statute’s protections. Thus, the Supreme Court wrote in Johnson
v. Railway Express Agency, Inc. that the limitation of Title VII to
those defined as employers is one way in which Title VII is narrower
than Section 1981, writing that "Section 1981 is not coextensive in its
coverage with Title VII" in part because "the latter is made inapplica-
ble to certain employers." 421 U.S. 454, 460 (1975). While exclusions
from the "employer" category are crucial for the Title VII scheme
directed at employment discrimination, they thus have lesser rele-
vance under Section 1981’s extended protections.
The defendants nevertheless urge that the employer exceptions in
Title VII must be read broadly if they are to serve their purpose.
Without such a reading, Alaska Native Corporations would be immu-
nized from suit for acts of discrimination under Title VII, but face lia-
bility under Section 1981 for some of the same acts — a result that
defendants argue would strip the Title VII exemption of any meaning
and run counter to what must have been Congress’ purpose in enact-
ing the "employer" exceptions. The Tenth Circuit has agreed with
defendants, writing that the "specific" provisions of Title VII must be
understood to impose limits on the "broad, general provision" of Sec-
tion 1981, and that Indian tribes are therefore exempt from suit for
discriminatory discharge under Section 1981. Wardle v. Ute Indian
Tribe, 623 F.2d 670, 673 (10th Cir. 1980).
The Supreme Court has foreclosed such a reading of Title VII as
intended to amend Section 1981 sub silentio in the areas where Title
VII is more specific, holding "that the remedies available under Title
VII and under § 1981, although related, and although directed to most
of the same ends, are separate, distinct, and independent." Railway
ALEMAN v. CHUGACH SUPPORT SERVICES 9
Express, 421 U.S. at 461. "Title VII was designed to supplement
rather than supplant, existing laws and institutions relating to employ-
ment discrimination," Alexander v. Gardner-Denver Co., 415 U.S. 36,
48-49 (1979), because Congress sought "to accord parallel or overlap-
ping remedies against discrimination," not to overwrite longstanding
remedies through its subsequent enactments, id. at 48. In sum, an
individual aggrieved by acts of employment discrimination "clearly is
not deprived of other remedies he possesses and is not limited to Title
VII in his search for relief." Railway Express, 421 U.S. at 459; see
also Johnson v. Ryder Truck Lines, Inc., 575 F.2d 471, 473 (4th Cir.
1978) ("The Civil Rights Act of 1964 did not repeal by implication
any part of § 1981.").
We find nothing implausible about Congress’ enacting overlapping
causes of action or deciding that Alaska Native Corporations should
be exempt from suit under Title VII, but not Section 1981. While both
Section 1981 and Title VII provide remedies against racial discrimi-
nation, Title VII imposes obligations that are in some ways more
expansive. To take the most obvious example, Title VII addresses not
simply discrimination based upon race or color but also discrimina-
tion based upon "religion, sex, or national origin." 42 U.S.C. § 2000e-
2(a). A legislature could easily desire to subject only certain entities
to the additional strictures of Title VII, while leaving in place the
more limited cause of action in Section 1981 that has long been a part
of our anti-discrimination law.
In addition, Title VII establishes new remedies for racial discrimi-
nation in employment that Congress could have seen as undesirable
for Alaska Native Corporations. Under the Title VII framework, a
claimant must first lodge a charge with the Equal Employment
Opportunity Commission ("EEOC"), see 42 U.S.C. § 2000e-5(e)-(f);
Great Am. Fed. Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 372-
74 (1979) — an action that is not a prerequisite to filing a Section
1981 suit. After lodging a charge under Title VII, however, a com-
plainant can benefit from EEOC powers not made available by Sec-
tion 1981. These include the agency’s ability to investigate charges
of discrimination, its attempts to remedy noncompliance through vol-
untary or negotiated changes, and its authority to file a civil action
against the offending party and practice itself. Railway Express, 421
U.S. at 458. There is nothing paradoxical about Congress’ not apply-
10 ALEMAN v. CHUGACH SUPPORT SERVICES
ing these arguably more intrusive mechanisms to Alaska Native Cor-
porations, without narrowing the scope of the longstanding,
comparatively bare-bones cause of action against racial discrimina-
tion provided by Section 1981. In any event, because this is the
approach embodied in the language of the two statutes and in the
Supreme Court’s decisions, the district court erred in holding that
plaintiffs could be deprived of a cause of action against Alaska Native
Corporations under Section 1981 on the grounds that such defendants
are not subject to suit under Title VII.
To be sure, we have recognized Indian tribal immunity as a bar to
Section 1981 liability. See Yashenko v. Harrah’s N.C. Casino Co.,
446 F.3d 541, 551-53 (4th Cir. 2006). But the defendants claim no
such immunity here and we find no basis to conclude that the owner-
ship of the defendant corporations by Alaska Natives and their devi-
sees, or any other attribute, entitles the defendants to immunity from
suits arising from their for-profit construction activities in Maryland.
While the sovereign immunity of Indian tribes "is a necessary corol-
lary to Indian sovereignty and self-governance," Three Affiliated
Tribes of the Fort Berthold Reservation v. Wold Engineering, 476
U.S. 877, 890 (1986), Alaska Native Corporations and their subsidia-
ries are not comparable sovereign entities, see Native Village of Ste-
vens v. Alaska Management & Planning, 757 P.2d 32, 34 (Alaska
1988) (reviewing differences between Alaska Native groups and
Indian tribes and holding most Alaska native groups lack immunity
from suit because they are "not self-governing or in any meaningful
sense sovereign"); see also Seldovia Native Ass’n v. Lujan, 904 F.2d
1335, 1350 (9th Cir. 1990) (holding that Alaska Native Village Cor-
poration "does not meet one of the basic criteria of an Indian tribe"
because it "is not a governing body"). In short, Indian tribal immunity
does not foreclose Section 1981 relief here.
B.
The defendants claim that the district court’s grant of summary
judgment in its favor on plaintiff Blasic’s claims for retaliation can be
upheld on the alternate ground that Section 1981 does not contain an
anti-retaliation provision. They argue that if we fail to apply Title VII
employer exemptions to Section 1981, we must likewise decline to
import an anti-retaliation principle from Title VII into Section 1981.
ALEMAN v. CHUGACH SUPPORT SERVICES 11
This argument fails for two reasons. First, it was not raised in the
district court. Second, it is foreclosed by Supreme Court and circuit
precedent, which hold retaliation to be a form of differential treatment
subsumed in the anti-discrimination language of Section 1981. Bryant
v. Aiken Reg’l Med. Ctrs., Inc., 333 F.3d 536, 543 (4th Cir. 2003)
(holding that a "plaintiff can prove illegal retaliation under . . .
§ 1981" in the same manner as he establishes retaliation under Title
VII); see also Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 174-
75 (2005) (retaliation for complaints of unlawful discrimination is a
form of discrimination). Under these precedents, plaintiffs such as
Blasic can challenge as discriminatory actions that were taken against
them for reporting unlawful discrimination, even if the plaintiffs were
not subject to discrimination based upon their own race, gender, or
similar protected status. See Sullivan v. Little Hunting Park, Inc., 396
U.S. 229, 237 (1969) (permitting white plaintiff to bring suit under 42
U.S.C. § 1982’s racial discrimination provisions because he suffered
retaliation for protesting discrimination against black person); Jack-
son, 544 U.S. at 171 (holding male athletic coach could bring suit
under prohibition on sex discrimination in Title IX of the Education
Amendments of 1972, because coach alleged that he suffered adverse
consequences for protesting discriminatory treatment of female ath-
letes). In sum, the grant of summary judgment against Blasic on his
Section 1981 claims cannot be justified on the alternative grounds that
Section 1981 does not encompass retaliation claims.3 Blasic had the
right to protest discrimination visited upon Hispanic employees and
to proceed under Section 1981 if he lost his job as a result.
III.
A.
Plaintiffs also appeal the dismissal of the claims of Aleman and
Basilis. The district court based its dismissal upon a provision in Ale-
man and Basilis’ collective bargaining agreement requiring manda-
3
The defendants’ similar argument that mixed-motive discrimination is
not cognizable under Section 1981 does not appear to have been raised
below and was not addressed by the district court. It cannot provide an
alternate basis here for affirming summary judgment to the defendants on
Blasic’s claims.
12 ALEMAN v. CHUGACH SUPPORT SERVICES
tory arbitration of discrimination claims. The two union members
argue that the provision should not bind them. They have stated in
affidavits that their "ability to speak and read English is limited" and
"very limited," respectively, and that each has "a very limited ability
to read English as compared to Spanish," although neither plaintiff
suggested in his affidavit or complaint that he could not read or
understand the arbitration provision as written.4 While Aleman and
Basilis point to no statute or precedent indicating an employer must
secure translations of a collective bargaining agreement according to
union members’ relative linguistic skills or preferences, they argue
that such a duty is a logical extension of principles of contract law
and collective bargaining. We find neither of these sources support
such a duty and decline to void the arbitration provision with respect
to Aleman and Basilis on these grounds.
Aleman and Basilis first argue that they should not be bound by the
arbitration provision in their collective bargaining agreement as an
extension or application of "ordinary contract principles." Brief of
Appellants at 39. They suggest that because they were not provided
with a translated version of the arbitration provision, there was no
"meeting of the minds" between themselves and their employer, given
that their Spanish skills were stronger than their English skills. Brief
of Appellant at 39, 40. In other words, they claim the provision was
not binding because there was no true agreement between the parties.
See Restatement (Second) of Contracts § 17 cmt. c (1981) ("The ele-
ment of agreement is sometimes referred to as a ‘meeting of the
minds.’").
Aleman and Basilis’ suggestion that the collective bargaining
agreement was not binding upon them because they did not truly
agree to its terms disregards the "collective" in "collective bargain-
4
Appellants state for the first time in their brief before this court that
"Aleman and Basilis did not understand the arbitration provision and
would not have understood it unless the company or union had provided
them with Spanish translated copies of the arbitration provision." They
made no such claims below, however, and make them now only in reli-
ance on Aleman and Basilis’ declarations, neither of which states that the
affiant did not understand the dispute resolution provision or would not
have understood it absent translation. Brief of Appellants at 40.
ALEMAN v. CHUGACH SUPPORT SERVICES 13
ing." The National Labor Relations Act gives employees the right "to
form, join or assist labor organizations" and "to bargain collectively
through representatives of their own choosing." 29 U.S.C. § 157
(2000); see also id. § 159(a) (2000). Acceptance by individual union
members of individual provisions is not required, because the forma-
tion of a collective bargaining unit "extinguishes the individual
employee’s power to order his own relations with his employer and
creates a power vested in the chosen representative to act in the inter-
ests of all employees," with the result that "only the union may con-
tract the employee’s terms and conditions of employment, and
provisions for processing his grievances." NLRB v. Allis-Chalmers
Mfg. Co., 388 U.S. 175, 180 (1967) (footnote omitted); see also J.I.
Case Co. v. NLRB, 321 U.S. 332, 336 (1944) (describing employee’s
status under collective bargaining agreement as analogous to that of
"third party beneficiary").
It is natural that a union member might desire higher wages or
more generous benefits or different working conditions than an agree-
ment provides. Still, in a representative negotiation, he "is bound" by
it. Allis-Chalmers Mfg. Co., 388 U.S. at 180. As a result, when courts
have spoken of the "meeting of the minds" required for a collective
bargaining agreement, it has been a "meeting of the minds" between
an employer and a union, not between an employer and each and
every individual union member. See, e.g., United Steelworkers of Am.
v. Bell Foundry Co., 626 F.2d 139, 141 (9th Cir. 1980); see also, e.g.,
Ekas v. Carling Nat’l Breweries, Inc., 602 F.2d 664, 666-67 (4th Cir.
1979) (modification of collective bargaining agreement was valid
when union and employer assented, despite objections of some
employees); Eastern Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 861
F.2d 1546, 1553-54 (11th Cir. 1988) (collective bargaining agreement
was binding when union and employer manifested assent).
Nor can we find a basis for Aleman and Basilis’ novel duty of
translation in the settled requirement that a collective bargaining
agreement contain a "clear and unmistakable" waiver of the right to
a federal judicial forum in order to require the binding arbitration of
statutory discrimination claims. Wright v. Universal Maritime Serv.
Corp., 525 U.S. 70, 80 (1998). As the precedents of the Supreme
Court and our circuit have established, this is a principle of clear
drafting, which ensures that the federal forum for such claims is
14 ALEMAN v. CHUGACH SUPPORT SERVICES
waived only when the union and employer clearly intended such a
waiver. Thus, the Supreme Court has explained this requirement to
mean that the federal-forum waiver must be "‘explicitly stated,’" id.
(quoting Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 701
(1983)), and that an employee is not required to arbitrate federal
employment discrimination claims when the collective bargaining
agreement "does not contain a clear and unmistakable waiver of the
covered employees’ rights to a judicial forum," id. at 82.
Our circuit has thus read Universal Maritime to require that collec-
tive bargaining agreements eliminate any doubt that a waiver of a fed-
eral forum was intended. Universal Maritime, we have noted,
"indicates that the requisite degree of clarity can be achieved by two
different approaches." Carson v. Giant Food, Inc., 175 F.3d 325, 331
(4th Cir. 1999). First, provisions that require arbitration of disputes
without mentioning statutory claims nonetheless require arbitration of
statutory claims if the rest of the agreement "makes it unmistakably
clear" that a violation of discrimination laws constitutes a grievance
or dispute under the agreement. Id. at 332. Second, an agreement
requires arbitration of statutory discrimination claims if it contains
"an explicit arbitration clause" referring to statutory claims, which
would require in the case of an agreement to arbitrate all federal
employment claims "a clear and unmistakable provision under which
the employees agree to submit to arbitration all federal causes of
action arising out of their employment." Id. at 331.
The collective bargaining agreement to which Aleman and Basilis
were subject met the Universal Maritime test. The agreement pro-
vided mandatory dispute resolution mechanisms for grievances and
stated, "The parties expressly agree that a grievance shall include any
claim by an employee that he has been subjected to discrimination
under Title VII . . . and/or all other federal, state, and local anti-
discrimination laws" (emphasis added). The agreement thus satisfied
the requirement of "clear and unmistakable" waiver, notwithstanding
plaintiffs’ suggestion, contrary to our precedent, that "clear and
unmistakable" waiver requires a meeting of the minds between the
employer and individual union members. As Aleman and Basilis cite
no statute or precedent that can form a basis for the new duty they
propose, we decline to place upon employers a requirement we find
without basis in law.
ALEMAN v. CHUGACH SUPPORT SERVICES 15
Indeed, to the extent that the plaintiffs assert that employers must
provide translations of agreements on the theory that union members
must individually consent to the waiver of a federal forum for statu-
tory discrimination claims, their argument is contrary to our cases
establishing that unions are entitled to strike bargains that require
arbitration of such claims. We have repeatedly held that such matters
are among the subjects about which unions may bargain under the
National Labor Relations Act. We have observed that unions have the
right — indeed, the duty — to bargain with employers on their mem-
bers’ behalf over "terms and conditions of employment," see 29
U.S.C. § 158(d) (2000), and that the method through which employers
and union members resolve disputes is a preeminent term or condition
of employment. Safrit v. Cone Mills Corp., 248 F.3d 306, 308 (4th
Cir. 2001) (citing Austin v. Owens-Brockway Glass Container, Inc.,
78 F.3d 875, 885 (4th Cir. 1996); Textile Workers v. Lincoln Mills,
353 U.S. 448 (1957); Metropolitan Edison Co., 460 U.S. at 705). As
a result, "Union-negotiated collective bargaining agreements that
require the arbitration of statutory discrimination claims are valid and
binding on unionized employees." Carson, 175 F.3d at 331; see also
Safrit, 248 F.3d at 308; Austin, 78 F.3d at 880-85; Brown v. ABF
Freight Sys., Inc., 183 F.3d 319, 321 (4th Cir. 1999).
The enactment of civil rights laws against discrimination does not
by itself mean the Congress intended to place the resolution of such
claims beyond the reach of arbitration. Congress could do this, of
course, but it has not yet done so. To hold otherwise would be too
much an exercise in judicial implication. The scope of the arbitration
provision must be of a "clear and unmistakable" character no doubt,
but to say there can be no waiver at all is to change the nature of col-
lective bargaining over conditions of employment and to read judicial
exceptions into the National Labor Relations Act.
B.
Aleman and Basilis, however, argue that an employer’s duty to
provide translations of the agreement to employees with deficient
English skills renders the foregoing principles inoperative and voids
the collective bargaining agreement’s dispute resolution provision.
Aleman and Basilis argue that their proposed duty would be mini-
mally disruptive because this court could simply require that "if an
16 ALEMAN v. CHUGACH SUPPORT SERVICES
employer has notice that certain employees cannot communicate
effectively in English, the employer must take reasonable steps to
ensure that these employees understand the arbitration provision."
Reply Brief of Appellants at 20.
To begin with, the duty is much too benignly described. The
employer is under no remedial order, and the basis of the duty in law
is as vague as its obligations are significant. The number of employ-
ees who could invoke this principle to escape collective bargaining
provisions of all sorts would be vast, since the degree of linguistic
deficiency needed to invoke the duty is unclear, and plaintiffs would
evidently require employers to secure translations on behalf of
employees — such as themselves — who evidently speak and read
some English. Ostensibly, Aleman and Basilis’ proposed duty would
apply only when employers had notice of limited language skills, but
the plaintiffs would hold employers to be on notice of limited lan-
guage skills even where — as here — there is no allegation that the
plaintiffs or their union told the defendants of Aleman or Basilis’ lan-
guage limitations.
Even if employers could determine when they were subject to this
new duty, it is unclear just what "reasonable steps" employers would
be required to take in order to render the negotiated collective bar-
gaining agreement fully comprehensible and thus enforceable. Ale-
man and Basilis offer no more than passing suggestions as to how this
duty could be discharged, contending that perhaps employers could
fulfill the obligation through posted translations at the work site. But
conceivably, the new duty could require translations in many different
languages, and the quality and accuracy of the translations would
likely be at issue. The threat of voidability under this opaque
employer obligation would cast a pall over collective bargaining as a
technique for resolving labor disputes, for neither side could be cer-
tain when deals would bind the parties and when they would wholly
or partially unravel with respect to many of those they purported to
cover.
The disruption that the plaintiffs’ proposed duty threatens is only
compounded by plaintiffs’ suggestion that employers could fulfill
their duty of translation by ensuring that unions faithfully communi-
cated the contents of collective bargaining agreements to union mem-
ALEMAN v. CHUGACH SUPPORT SERVICES 17
bers. It would be dicey to say the least for an employer to seek to
compel a union to fulfill what the employer regards as the union’s
obligations to those it represents. See NLRB v. Electra-Food
Machinery, Inc., 621 F.2d 956, 958 (9th Cir. 1980) (holding that
employer overstepped its role when it refused to enter into written
collective bargaining agreement because it believed union’s entering
the deal would violate union constitution). Nor could the employer
step in easily on its own. Unions and employers may well disagree on
the nature of collective bargaining agreement obligations, and encour-
aging excessive employer involvement in union affairs may generate
"collateral issues" which might themselves "become the source of dis-
pute and litigation." Id. By suggesting that internal union matters,
including unions’ internal communications, can affect the validity of
a collective bargaining agreement, the plaintiffs would force employ-
ers to engage in intrusive oversight of their bargaining partners.
The proposed employer duty to provide union members with col-
lective bargaining agreement translations is fraught with problems
that only Congress or other policy-making bodies could sort out.
Whatever duty might arise in this regard between unions and their
members is a question that is not before us.5 See Zamora v. Local 11,
5
Aleman and Basilis did not name the union as a defendant in their
complaint. We affirm the denial of Aleman and Basilis’ motion to amend
their complaint to add their union as a defendant, considering "both the
general principles of amendment provided by Rule 15(a) and also the
more specific joinder provisions of Rule 20(a)." Hinson v. Norwest
Financial S.C., Inc., 239 F.3d 611, 618 (4th Cir. 2001) (citing Desert
Empire Bank v. Insurance Co., 623 F.2d 1371, 1374 (9th Cir. 1980)).
Rule 20 gives courts wide discretion concerning the permissive joinder
of parties, and "should be construed in light of its purpose, which ‘is to
promote trial convenience and expedite the final determination of dis-
putes, thereby preventing multiple lawsuits.’" Saval v. BL, Ltd., 710 F.2d
1027, 1031 (4th Cir. 1983) (quoting Mosley v. General Motors Corp.,
497 F.2d 1330, 1332 (8th Cir. 1974)). "[T]he court has discretion to deny
joinder if it determines that the addition of the party under Rule 20 will
not foster the objectives of the rule, but will result in prejudice, expense,
or delay." 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 1652 (3d ed. 2001). Aleman and
Basilis were not required to arbitrate claims against their union, but join-
18 ALEMAN v. CHUGACH SUPPORT SERVICES
817 F.2d 566, 569-71 (9th Cir. 1987) (stating that union rule of not
providing appropriate translation assistance at monthly meetings
deprived non-English speaking members of right to participate in
deliberations); Retana v. Apartment, Motel, Hotel & Elevator Opera-
tors Union, 453 F.2d 1018, 1023-25 (9th Cir. 1972) (stating that
union’s failure to provide Spanish-speaking members with translation
of collective bargaining agreement and other translation assistance
could violate duty of fair representation). The employer duty of trans-
lation that Aleman and Basilis propose is, however, as at odds with
the aims of collective bargaining as it is without foundation in statute
and precedent.
C.
Since Aleman and Basilis were bound by the collective bargaining
agreement, they were required to resolve their discrimination claims
through the procedures it provided, because the claims arose during
the agreement’s stated coverage period. The agreement sets forth
mandatory dispute resolution procedures for any "grievance . . . aris-
ing during the term of this Agreement" between an employer and a
union member, including "any claim by an employee that he has been
subjected to discrimination under Title VII of the Civil Rights Act of
1964, as amended, . . . and/or all other federal, state, and local anti-
discrimination laws." The "term of the agreement" is defined repeat-
edly as May 1, 2001 until April 30, 2004 — a period that includes all
the time Aleman and Basilis worked for CSS. This period is set out
twice on the agreement’s initial page, which contains the dates "May
1, 2001 - April 30, 2004" near the top of the pact, above the word
"Agreement." The agreement goes on to state:
The undersigned employer accepts each and every provision
of the Collective Bargaining Agreement between the Con-
ing new claims against a new party with now-dismissed claims would
not promote the above objectives and the district court did not err in
denying leave to amend.
Since the motion to add the union as a defendant was properly denied,
we express no view on any possible claim that Aleman and Basilis might
have against their union.
ALEMAN v. CHUGACH SUPPORT SERVICES 19
struction Contractors Council, Inc. — A.G.C. Labor Divi-
sion and the Washington D.C. Regional Council of
Carpenters, effective May 1, 2001 to an[d] including April
30, 2004 and adopts said Agreement and each and every
provision thereof as its own collective bargaining agreement
with The Washington, D.C. Regional Council of Carpenters.
(emphasis added). It specifies the same dates in the article on "dura-
tion of agreement," which states, "This Agreement shall be in full
force and effect from May 1, 2001, to and including April 30, 2004
. . . ."
Plaintiffs suggest that other dates should define the agreement’s
temporal scope, but those dates have no operative significance under
the deal’s terms. Representatives of CSS and the union did not sign
the agreement until July of 2003, as Aleman and Basilis note, but the
agreement does not define its scope according to the dates of signing.
And while Aleman and Basilis observe that they did not themselves
join the union until August of 2003, when they did so, they bound
themselves to arbitrate any grievances arising during the term of the
agreement as repeatedly set forth in the agreement’s text. Since the
pact requires arbitration of all grievances arising during the term from
May 1, 2001 to April 30, 2004, Aleman and Basilis’ claims were
properly dismissed on the basis of the dispute resolution provisions.
IV.
For the foregoing reasons, the judgment is affirmed in part,
reversed in part, and remanded for further proceedings consistent with
this opinion.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED