14 Penn Plaza LLC v. Pyett

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
14 PENN PLAZA LLC ET AL. v. PYETT ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 07–581. Argued December 1, 2008—Decided April 1, 2009
Respondents are members of the Service Employees International Un
ion, Local 32BJ (Union). Under the National Labor Relations Act,
the Union is the exclusive bargaining representative of employees
within the building-services industry in New York City, which in
cludes building cleaners, porters, and doorpersons. The Union has
exclusive authority to bargain on behalf of its members over their
“rates of pay, wages, hours of employment, or other conditions of em
ployment,” 29 U. S. C. §159(a), and engages in industry-wide collec
tive bargaining with the Realty Advisory Board on Labor Relations,
Inc. (RAB), a multiemployer bargaining association for the New York
City real-estate industry. The agreement between the Union and the
RAB is embodied in their Collective Bargaining Agreement for Con
tractors and Building Owners (CBA). The CBA requires union mem
bers to submit all claims of employment discrimination to binding ar
bitration under the CBA’s grievance and dispute resolution
procedures.
Petitioner 14 Penn Plaza LLC is a member of the RAB. It owns
and operates the New York City office building where respondents
worked as night lobby watchmen and in other similar capacities. Re
spondents were directly employed by petitioner Temco Service Indus
tries, Inc. (Temco), a maintenance service and cleaning contractor.
After 14 Penn Plaza, with the Union’s consent, engaged a unionized
security contractor affiliated with Temco to provide licensed security
guards for the building, Temco reassigned respondents to jobs as por
ters and cleaners. Contending that these reassignments led to a loss
in income, other damages, and were otherwise less desirable than
their former positions, respondents asked the Union to file grievances
alleging, among other things, that petitioners violated the CBA’s ban
2 14 PENN PLAZA LLC v. PYETT
Syllabus
on workplace discrimination by reassigning respondents on the basis
of their age in violation of Age Discrimination in Employment Act of
1967 (ADEA), 29 U. S. C. §621 et seq. The Union requested arbitra
tion under the CBA, but after the initial hearing, withdrew the age
discrimination claims on the ground that its consent to the new secu
rity contract precluded it from objecting to respondents’ reassign
ments as discriminatory. Respondents then filed a complaint with
the Equal Employment Opportunity Commission (EEOC) alleging
that petitioners had violated their ADEA rights, and the EEOC is
sued each of them a right-to-sue notice. In the ensuing lawsuit, the
District Court denied petitioners’ motion to compel arbitration of re
spondents’ age discrimination claims. The Second Circuit affirmed,
holding that Alexander v. Gardner-Denver Co., 415 U. S. 36, forbids en
forcement of collective-bargaining provisions requiring arbitration of
ADEA claims.
Held: A provision in a collective-bargaining agreement that clearly and
unmistakably requires union members to arbitrate ADEA claims is
enforceable as a matter of federal law. Pp. 6–25.
(a) Examination of the two federal statutes at issue here, the
ADEA and the National Labor Relations Act (NLRA), yields a
straightforward answer to the question presented. The Union and
the RAB, negotiating on behalf of 14 Penn Plaza, collectively bar
gained in good faith and agreed that employment-related discrimina
tion claims, including ADEA claims, would be resolved in arbitration.
This freely negotiated contractual term easily qualifies as a “condi
tio[n] of employment” subject to mandatory bargaining under the
NLRA, 29 U. S. C. §159(a). See, e.g., Litton Financial Printing Div.,
Litton Business Systems, Inc. v. NLRB, 501 U. S. 190, 199. As in any
contractual negotiation, a union may agree to the inclusion of an ar
bitration provision in a collective-bargaining agreement in return for
other concessions from the employer, and courts generally may not
interfere in this bargained-for exchange. See NLRB v. Magnavox
Co., 415 U. S. 322, 328. Thus, the CBA’s arbitration provision must
be honored unless the ADEA itself removes this particular class of
grievances from the NLRA’s broad sweep. See Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 628. It does
not. This Court has squarely held that the ADEA does not preclude
arbitration of claims brought under the statute. See Gilmer v. Inter
state/Johnson Lane Corp., 500 U. S. 20, 26–33. Pp. 6–10. Accord
ingly, there is no legal basis for the Court to strike down the arbitra
tion clause in this CBA, which was freely negotiated by the Union
and the RAB, and which clearly and unmistakably requires respon
dents to arbitrate the age-discrimination claims at issue in this ap
peal. Pp. 6–10.
Cite as: 556 U. S. ____ (2009) 3
Syllabus
(b) The CBA’s arbitration provision is also fully enforceable under
the Gardner-Denver line of cases. Respondents incorrectly interpret
Gardner-Denver and its progeny as holding that an agreement to ar
bitrate ADEA claims provided for in a collective-bargaining agree
ment cannot waive an individual employee’s right to a judicial forum
under federal antidiscrimination statutes.. Pp. 11–23.
(i) The facts underlying Gardner-Denver and its progeny reveal
the narrow scope of the legal rule they engendered. Those cases “did
not involve the issue of the enforceability of an agreement to arbi
trate statutory claims,” but “the quite different issue whether arbi
tration of contract-based claims precluded subsequent judicial resolu
tion of statutory claims.” Gilmer, supra, at 35. Gardner-Denver does
not control the outcome where, as here, the collective-bargaining
agreement’s arbitration provision expressly covers both statutory and
contractual discrimination claims. Pp. 11–15.
(ii) Apart from their narrow holdings, the Gardner-Denver line of
cases included broad dicta highly critical of using arbitration to vin
dicate statutory antidiscrimination rights. That skepticism, however,
rested on a misconceived view of arbitration that this Court has since
abandoned. First, contrary to Gardner-Denver’s erroneous assump
tion, 415 U. S., at 51, the decision to resolve ADEA claims by way of
arbitration instead of litigation does not waive the statutory right to
be free from workplace age discrimination; it waives only the right to
seek relief from a court in the first instance, see, e.g., Gilmer, supra,
at 26. Second, Gardner-Denver’s mistaken suggestion that certain in
formal features of arbitration made it a forum “well suited to the
resolution of contractual disputes,” but “a comparatively inappropri
ate forum for the final resolution of [employment] rights.” 415 U. S.,
at 56, has been corrected. See, e.g., Shearson/American Express Inc.
v. McMahon, 482 U. S. 220, 232. Third, Gardner-Denver’s concern
that, in arbitration, a union may subordinate an individual em
ployee’s interests to the collective interests of all employees in the
bargaining unit, 415 U. S., at 58, n. 19, cannot be relied on to intro
duce a qualification into the ADEA that is not found in its text. Until
Congress amends the ADEA to meet the conflict-of-interest concern
identified in the Gardner-Denver dicta, there is “no reason to color
the lens through which the arbitration clause is read.” Mitsubishi,
supra, at 628. In any event, the conflict-of-interest argument
amounts to an unsustainable collateral attack on the NLRA, see Em
porium Capwell Co. v. Western Addition Community Organization,
420 U. S. 50, 62, and Congress has accounted for the conflict in sev
eral ways: union members may bring a duty of fair representation
claim against the union; a union can be subjected to direct liability
under the ADEA if it discriminates on the basis of age; and union
4 14 PENN PLAZA LLC v. PYETT
Syllabus
members may also file age-discrimination claims with the EEOC and
the National Labor Relations Board. Pp. 15–23.
(c) Because respondents’ arguments that the CBA does not clearly
and unmistakably require them to arbitrate their ADEA claims were
not raised in the lower courts, they have been forfeited. Moreover, al
though a substantive waiver of federally protected civil rights will not
be upheld, see, e.g., Mitsubishi, supra, at 637, and n. 19, this Court is
not positioned to resolve in the first instance respondents’ claim that
the CBA allows the Union to prevent them from effectively vindicat
ing their federal statutory rights in the arbitral forum, given that
this question would require resolution of contested factual allega
tions, was not fully briefed here or below, and is not fairly encom
passed within the question presented. Resolution now would be par
ticularly inappropriate in light of the Court’s hesitation to invalidate
arbitration agreements based on speculation. See, e.g., Green Tree
Financial Corp.-Ala. v. Randolph, 531 U. S. 79. Pp. 23–25.
498 F. 3d 88, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. STEVENS, J., filed a
dissenting opinion. SOUTER, J., filed a dissenting opinion, in which STE-
VENS, GINSBURG, and BREYER, JJ., joined.
Cite as: 556 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–581
_________________
14 PENN PLAZA LLC, ET AL., PETITIONERS v.
STEVEN PYETT ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 1, 2009]
JUSTICE THOMAS delivered the opinion of the Court.
The question presented by this case is whether a provi
sion in a collective-bargaining agreement that clearly and
unmistakably requires union members to arbitrate claims
arising under the Age Discrimination in Employment Act
of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C.
§621 et seq., is enforceable. The United States Court of
Appeals for the Second Circuit held that this Court’s
decision in Alexander v. Gardner-Denver Co., 415 U. S. 36(1974), forbids enforcement of such arbitration provisions.
We disagree and reverse the judgment of the Court of
Appeals.
I
Respondents are members of the Service Employees
International Union, Local 32BJ (Union). Under the
National Labor Relations Act (NLRA), 49 Stat. 449, as
amended, the Union is the exclusive bargaining represen
tative of employees within the building-services industry
in New York City, which includes building cleaners, por
ters, and doorpersons. See 29 U. S. C. §159(a). In this
role, the Union has exclusive authority to bargain on
2 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
behalf of its members over their “rates of pay, wages,
hours of employment, or other conditions of employment.”
Ibid. Since the 1930’s, the Union has engaged in industry
wide collective bargaining with the Realty Advisory Board
on Labor Relations, Inc. (RAB), a multiemployer bargain
ing association for the New York City real-estate industry.
The agreement between the Union and the RAB is embod
ied in their Collective Bargaining Agreement for Contrac
tors and Building Owners (CBA). The CBA requires union
members to submit all claims of employment discrimina
tion to binding arbitration under the CBA’s grievance and
dispute resolution procedures:
Ҥ30 NO DISCRIMINATION. There shall be no dis
crimination against any present or future employee by
reason of race, creed, color, age, disability, national
origin, sex, union membership, or any other character
istic protected by law, including, but not limited to,
claims made pursuant to Title VII of the Civil Rights
Act, the Americans with Disabilities Act, the Age Dis
crimination in Employment Act, the New York State
Human Rights Law, the New York City Human
Rights Code, . . . or any other similar laws, rules, or
regulations. All such claims shall be subject to the
grievance and arbitration procedures (Articles V and
VI) as the sole and exclusive remedy for violations.
Arbitrators shall apply appropriate law in rendering
decisions based upon claims of discrimination.” App.
to Pet. for Cert. 48a.1
——————
1 Article V establishes the grievance process, which applies to all
claims regardless of whether they are subject to arbitration under the
CBA. Article VI establishes the procedures for arbitration and postar
bitration judicial review, and, in particular, provides that the arbitrator
“shall . . . decide all differences arising between the parties as to inter
pretation, application or performance of any part of this Agreement and
such other issues as the parties are expressly required to arbitrate
Cite as: 556 U. S. ____ (2009) 3
Opinion of the Court
Petitioner 14 Penn Plaza LLC is a member of the RAB.
It owns and operates the New York City office building
where, prior to August 2003, respondents worked as night
lobby watchmen and in other similar capacities. Respon
dents were directly employed by petitioner Temco Service
Industries, Inc. (Temco), a maintenance service and clean
ing contractor. In August 2003, with the Union’s consent,
14 Penn Plaza engaged Spartan Security, a unionized
security services contractor and affiliate of Temco, to
provide licensed security guards to staff the lobby and
entrances of its building. Because this rendered respon
dents’ lobby services unnecessary, Temco reassigned them
to jobs as night porters and light duty cleaners in other
locations in the building. Respondents contend that these
reassignments led to a loss in income, caused them emo
tional distress, and were otherwise less desirable than
their former positions.
At respondents’ request, the Union filed grievances
challenging the reassignments. The grievances alleged
that petitioners: (1) violated the CBA’s ban on workplace
discrimination by reassigning respondents on account of
their age; (2) violated seniority rules by failing to promote
one of the respondents to a handyman position; and (3)
failed to equitably rotate overtime. After failing to obtain
relief on any of these claims through the grievance proc
ess, the Union requested arbitration under the CBA.
After the initial arbitration hearing, the Union with
drew the first set of respondents’ grievances—the age
discrimination claims—from arbitration. Because it had
consented to the contract for new security personnel at 14
Penn Plaza, the Union believed that it could not legiti
mately object to respondents’ reassignments as discrimi
natory. But the Union continued to arbitrate the seniority
——————
before him under the terms of this Agreement.” App. to Pet. for Cert.
43a–47a.
4 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
and overtime claims, and, after several hearings, the
claims were denied.
In May 2004, while the arbitration was ongoing but
after the Union withdrew the age-discrimination claims,
respondents filed a complaint with the Equal Employment
Opportunity Commission (EEOC) alleging that petitioners
had violated their rights under the ADEA. Approximately
one month later, the EEOC issued a Dismissal and Notice
of Rights, which explained that the agency’s “ ‘review of
the evidence . . . fail[ed] to indicate that a violation ha[d]
occurred,’ ” and notified each respondent of his right to
sue. Pyett v. Pennsylvania Building Co., 498 F. 3d 88, 91
(CA2 2007).
Respondents thereafter filed suit against petitioners in
the United States District Court for the Southern District
of New York, alleging that their reassignment violated the
ADEA and state and local laws prohibiting age discrimi
nation.2 Petitioners filed a motion to compel arbitration of
respondents’ claims pursuant to §3 and §4 of the Federal
Arbitration Act (FAA), 9 U. S. C. §§3, 4.3 The District
Court denied the motion because under Second Circuit
precedent, “even a clear and unmistakable union
——————
2 Respondents also filed a “hybrid” lawsuit against the Union and
petitioners under §301 of the Labor Management Relations Act, 1947,
29 U. S. C. §185, see also DelCostello v. Teamsters, 462 U. S. 151, 164–
165 (1983), alleging that the Union breached its “duty of fair represen
tation” under the NLRA by withdrawing support for the age
discrimination claims during the arbitration and that petitioners
breached the CBA by reassigning respondents. Respondents later
voluntarily dismissed this suit with prejudice.
3 Petitioners also filed a motion to dismiss the complaint for failure to
state a claim. The District Court denied the motion, holding that
respondents had sufficiently alleged an ADEA claim by claiming that
they “were over the age of 40, . . . they were reassigned to positions
which led to substantial losses in income, and . . . their replacements
were both younger and had less seniority at the building.” App. to Pet.
for Cert. 20a (footnote omitted). Petitioners have not appealed that
ruling.
Cite as: 556 U. S. ____ (2009) 5
Opinion of the Court
negotiated waiver of a right to litigate certain federal and
state statutory claims in a judicial forum is unenforce
able.” App. to Pet. for Cert. 21a. Respondents immedi
ately appealed the ruling under §16 of the FAA, which
authorizes an interlocutory appeal of “an order . . . refus
ing a stay of any action under section 3 of this title” or
“denying a petition under section 4 of this title to order
arbitration to proceed.” 9 U. S. C. §§16(a)(1)(A)–(B).
The Court of Appeals affirmed. 498 F. 3d 88. According
to the Court of Appeals, it could not compel arbitration of
the dispute because Gardner-Denver, which “remains good
law,” held “that a collective bargaining agreement could
not waive covered workers’ rights to a judicial forum for
causes of action created by Congress.” 498 F. 3d, at 92, 91,
n. 3 (citing Gardner-Denver, 415 U. S., at 49–51). The
Court of Appeals observed that the Gardner-Denver deci
sion was in tension with this Court’s more recent decision
in Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20(1991), which “held that an individual employee who had
agreed individually to waive his right to a federal forum
could be compelled to arbitrate a federal age discrimina
tion claim.” 498 F. 3d, at 91, n. 3 (citing Gilmer, supra, at
33–35; emphasis in original). The Court of Appeals also
noted that this Court previously declined to resolve this
tension in Wright v. Universal Maritime Service Corp., 525
U. S. 70, 82 (1998), where the waiver at issue was not
“clear and unmistakable.” 498 F. 3d, at 91, n. 3.
The Court of Appeals attempted to reconcile Gardner-
Denver and Gilmer by holding that arbitration provisions
in a collective-bargaining agreement, “which purport to
waive employees’ rights to a federal forum with respect to
statutory claims, are unenforceable.” 498 F. 3d, at 93–94.
As a result, an individual employee would be free to
choose compulsory arbitration under Gilmer, but a labor
union could not collectively bargain for arbitration on
behalf of its members. We granted certiorari, 552 U. S.
6 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
___ (2008), to address the issue left unresolved in Wright,
which continues to divide the Courts of Appeals,4 and now
reverse.
II
A
The NLRA governs federal labor-relations law. As
permitted by that statute, respondents designated the
Union as their “exclusive representativ[e] . . . for the
purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of em
ployment.” 29 U. S. C. §159(a). As the employees’ exclu
sive bargaining representative, the Union “enjoys broad
authority . . . in the negotiation and administration of
[the] collective bargaining contract.” Communications
Workers v. Beck, 487 U. S. 735, 739 (1988) (internal quota
tion marks omitted). But this broad authority “is accom
panied by a responsibility of equal scope, the responsibility
and duty of fair representation.” Humphrey v. Moore, 375
U. S. 335, 342 (1964). The employer has a corresponding
duty under the NLRA to bargain in good faith “with the
representatives of his employees” on wages, hours, and
conditions of employment. 29 U. S. C. §158(a)(5); see also
§158(d).
In this instance, the Union and the RAB, negotiating on
behalf of 14 Penn Plaza, collectively bargained in good
faith and agreed that employment-related discrimination
claims, including claims brought under the ADEA, would
be resolved in arbitration. This freely negotiated term
between the Union and the RAB easily qualifies as a
“conditio[n] of employment” that is subject to mandatory
——————
4 Compare, e.g., Rogers v. New York Univ., 220 F. 3d 73, 75 (CA2
2000) (per curiam); O’Brien v. Agawam, 350 F. 3d 279, 285 (CA1 2003);
Mitchell v. Chapman, 343 F. 3d 811, 824 (CA6 2003); Tice v. American
Airlines, Inc., 288 F. 3d 313, 317 (CA7 2002), with, e.g., Eastern Associ
ated Coal Corp. v. Massey, 373 F. 3d 530, 533 (CA4 2004).
Cite as: 556 U. S. ____ (2009) 7
Opinion of the Court
bargaining under §159(a). See Litton Financial Printing
Div., Litton Business Systems, Inc. v. NLRB, 501 U. S.
190, 199 (1991) (“[A]rrangements for arbitration of dis
putes are a term or condition of employment and a manda
tory subject of bargaining”); Steelworkers v. Warrior &
Gulf Nav. Co., 363 U. S. 574, 578 (1960) (“[A]rbitration of
labor disputes under collective bargaining agreements is
part and parcel of the collective bargaining process itself”);
Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 455
(1957) (“Plainly the agreement to arbitrate grievance
disputes is the quid pro quo for an agreement not to
strike”). The decision to fashion a CBA to require arbitra
tion of employment-discrimination claims is no different
from the many other decisions made by parties in design
ing grievance machinery.5
Respondents, however, contend that the arbitration
clause here is outside the permissible scope of the collec
tive-bargaining process because it affects the “employees’
individual, non-economic statutory rights.” Brief for Re
spondents 22; see also post, at 5–6 (SOUTER, J., dissent
ing). We disagree. Parties generally favor arbitration
——————
5 JUSTICE SOUTER claims that this understanding is “impossible to
square with our conclusion in [Alexander v.] Gardner-Denver [Co., 415
U. S. 36 (1974)] that ‘Title VII . . . stands on plainly different ground’
from ‘statutory rights related to collective activity’: ‘it concerns not
majoritarian processes, but an individual’s right to equal employment
opportunities.’ ” Post, at 5 (dissenting opinion) (quoting Gardner-
Denver, 415 U. S., at 51). As explained below, however, JUSTICE
SOUTER repeats the key analytical mistake made in Gardner-Denver’s
dicta by equating the decision to arbitrate Title VII and ADEA claims
to a decision to forgo these substantive guarantees against workplace
discrimination. See infra, at 15–17. The right to a judicial forum is not
the nonwaivable “substantive” right protected by the ADEA. See infra,
at 9, 24. Thus, although Title VII and ADEA rights may well stand on
“different ground” than statutory rights that protect “majoritarian
processes,” Gardner-Denver, supra, at 51, the voluntary decision to
collectively bargain for arbitration does not deny those statutory
antidiscrimination rights the full protection they are due.
8 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
precisely because of the economics of dispute resolution.
See Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 123
(2001) (“Arbitration agreements allow parties to avoid the
costs of litigation, a benefit that may be of particular
importance in employment litigation, which often involves
smaller sums of money than disputes concerning commer
cial contracts”). As in any contractual negotiation, a union
may agree to the inclusion of an arbitration provision in a
collective-bargaining agreement in return for other con
cessions from the employer. Courts generally may not
interfere in this bargained-for exchange. “Judicial nullifi
cation of contractual concessions . . . is contrary to what
the Court has recognized as one of the fundamental poli
cies of the National Labor Relations Act—freedom of
contract.” NLRB v. Magnavox Co., 415 U. S. 322, 328
(1974) (Stewart, J., concurring in part and dissenting in
part) (internal quotation marks and brackets omitted).
As a result, the CBA’s arbitration provision must be
honored unless the ADEA itself removes this particular
class of grievances from the NLRA’s broad sweep. See
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U. S. 614, 628 (1985). It does not. This Court has
squarely held that the ADEA does not preclude arbitration
of claims brought under the statute. See Gilmer, 500
U. S., at 26–33.
In Gilmer, the Court explained that “[a]lthough all
statutory claims may not be appropriate for arbitration,
‘having made the bargain to arbitrate, the party should be
held to it unless Congress itself has evinced an intention
to preclude a waiver of judicial remedies for the statutory
rights at issue.’ ” Id., at 26 (quoting Mitsubishi Motors
Corp., supra, at 628). And “if Congress intended the sub
stantive protection afforded by the ADEA to include pro
tection against waiver of the right to a judicial forum, that
intention will be deducible from text or legislative history.”
500 U. S., at 29 (internal quotation marks and brackets
Cite as: 556 U. S. ____ (2009) 9
Opinion of the Court
omitted). The Court determined that “nothing in the text
of the ADEA or its legislative history explicitly precludes
arbitration.” Id., at 26–27. The Court also concluded that
arbitrating ADEA disputes would not undermine the
statute’s “remedial and deterrent function.” Id., at 28(internal quotation marks omitted). In the end, the em
ployee’s “generalized attacks” on “the adequacy of arbitra
tion procedures” were “insufficient to preclude arbitration
of statutory claims,” id., at 30, because there was no evi
dence that “Congress, in enacting the ADEA, intended to
preclude arbitration of claims under that Act,” id., at 35.
The Gilmer Court’s interpretation of the ADEA fully
applies in the collective-bargaining context. Nothing in
the law suggests a distinction between the status of arbi
tration agreements signed by an individual employee and
those agreed to by a union representative. This Court has
required only that an agreement to arbitrate statutory
antidiscrimination claims be “explicitly stated” in the
collective-bargaining agreement. Wright, 525 U. S., at 80
(internal quotation marks omitted). The CBA under
review here meets that obligation. Respondents incor
rectly counter that an individual employee must person
ally “waive” a “[substantive] right” to proceed in court for a
waiver to be “knowing and voluntary” under the ADEA.
29 U. S. C. §626(f)(1). As explained below, however, the
agreement to arbitrate ADEA claims is not the waiver of a
“substantive right” as that term is employed in the ADEA.
Wright, supra, at 80; see infra, at 15–16. Indeed, if the
“right” referred to in §626(f)(1) included the prospective
waiver of the right to bring an ADEA claim in court, even
a waiver signed by an individual employee would be inva
lid as the statute also prevents individuals from “waiv[ing]
rights or claims that may arise after the date the waiver is
executed.” §626(f)(1)(C).6
——————
6 Respondents’ contention that §118 of the Civil Rights Act of 1991,
10 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
Examination of the two federal statutes at issue in this
case, therefore, yields a straightforward answer to the
question presented: The NLRA provided the Union and
the RAB with statutory authority to collectively bargain
for arbitration of workplace discrimination claims, and
Congress did not terminate that authority with respect to
federal age-discrimination claims in the ADEA. Accord
ingly, there is no legal basis for the Court to strike down
the arbitration clause in this CBA, which was freely nego
tiated by the Union and the RAB, and which clearly and
unmistakably requires respondents to arbitrate the age
discrimination claims at issue in this appeal. Congress
——————
Pub. L. 102–166, 105 Stat. 1081, note following 42 U. S. C. §1981 (2000
ed.), precludes the enforcement of this arbitration agreement also is
misplaced. See Brief for Respondents 31–32; see also post, at 8–9
(SOUTER, J., dissenting). Section 118 expresses Congress’ support for
alternative dispute resolution: “Where appropriate and to the extent
authorized by law, the use of alternative means of dispute resolution,
including . . . arbitration, is encouraged to resolve disputes arising
under” the ADEA. 105 Stat. 1081, note following 42 U. S C. §1981.
Respondents argue that the legislative history actually signals Con
gress’ intent to preclude arbitration waivers in the collective-bargaining
context. In particular, respondents point to a House Report that, in
spite of the statute’s plain language, interprets §118 to support their
position. See H. R. Rep. No. 102–40, pt. 1, p. 97 (1991) (“[A]ny agree
ment to submit disputed issues to arbitration . . . in the context of a
collective bargaining agreement . . . does not preclude the affected
person from seeking relief under the enforcement provisions of Title
VII. This view is consistent with the Supreme Court’s interpretation of
Title VII in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974)”).
But the legislative history mischaracterizes the holding of Gardner-
Denver, which does not prohibit collective bargaining for arbitration of
ADEA claims. See infra, at 11–14. Moreover, reading the legislative
history in the manner suggested by respondents would create a direct
conflict with the statutory text, which encourages the use of arbitration
for dispute resolution without imposing any constraints on collective
bargaining. In such a contest, the text must prevail. See Ratzlaf v.
United States, 510 U. S. 135, 147–148 (1994) (“[W]e do not resort to
legislative history to cloud a statutory text that is clear”).
Cite as: 556 U. S. ____ (2009) 11
Opinion of the Court
has chosen to allow arbitration of ADEA claims. The
Judiciary must respect that choice.
B
The CBA’s arbitration provision is also fully enforceable
under the Gardner-Denver line of cases. Respondents
interpret Gardner-Denver and its progeny to hold that “a
union cannot waive an employee’s right to a judicial forum
under the federal antidiscrimination statutes” because
“allowing the union to waive this right would substitute
the union’s interests for the employee’s antidiscrimination
rights.” Brief for Respondents 12. The “combination of
union control over the process and inherent conflict of
interest with respect to discrimination claims,” they argue,
“provided the foundation for the Court’s holding [in Gard
ner-Denver] that arbitration under a collective-bargaining
agreement could not preclude an individual employee’s
right to bring a lawsuit in court to vindicate a statutory
discrimination claim.” Id., at 15. We disagree.
1
The holding of Gardner-Denver is not as broad as re
spondents suggest. The employee in that case was covered
by a collective-bargaining agreement that prohibited
“discrimination against any employee on account of race,
color, religion, sex, national origin, or ancestry” and that
guaranteed that “[n]o employee will be discharged . . . except
for just cause.” 415 U. S., at 39 (internal quotation marks
omitted). The agreement also included a “multistep griev
ance procedure” that culminated in compulsory arbitration
for any “differences aris[ing] between the Company and the
Union as to the meaning and application of the provisions of
this Agreement” and “any trouble aris[ing] in the plant.”
Id., at 40–41 (internal quotation marks omitted).
The employee was discharged for allegedly producing
too many defective parts while working for the respondent
12 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
as a drill operator. He filed a grievance with his union
claiming that he was “ ‘unjustly discharged’ ” in violation of
the “ ‘just cause’ ” provision within the CBA. Then at the
final prearbitration step of the grievance process, the
employee added a claim that he was discharged because of
his race. Id., at 38–42.
The arbitrator ultimately ruled that the employee had
been “ ‘discharged for just cause,’ ” but “made no reference
to [the] claim of racial discrimination.” Id., at 42. After
obtaining a right-to-sue letter from the EEOC, the em
ployee filed a claim in Federal District Court, alleging
racial discrimination in violation of Title VII of the Civil
Rights Act of 1964. The District Court issued a decision,
affirmed by the Court of Appeals, which granted summary
judgment to the employer because it concluded that “the
claim of racial discrimination had been submitted to the
arbitrator and resolved adversely to [the employee].” Id.,
at 43. In the District Court’s view, “having voluntarily
elected to pursue his grievance to final arbitration under
the nondiscrimination clause of the collective-bargaining
agreement,” the employee was “bound by the arbitral
decision” and precluded from suing his employer on any
other grounds, such as a statutory claim under Title VII.
Ibid.
This Court reversed the judgment on the narrow ground
that the arbitration was not preclusive because the collec
tive-bargaining agreement did not cover statutory claims.
As a result, the lower courts erred in relying on the “doc
trine of election of remedies” to bar the employee’s Title
VII claim. Id., at 49. “That doctrine, which refers to
situations where an individual pursues remedies that are
legally or factually inconsistent” with each other, did not
apply to the employee’s dual pursuit of arbitration and a
Title VII discrimination claim in district court. The em
ployee’s collective-bargaining agreement did not mandate
arbitration of statutory antidiscrimination claims. Id., at
Cite as: 556 U. S. ____ (2009) 13
Opinion of the Court
49–50. “As the proctor of the bargain, the arbitrator’s task
is to effectuate the intent of the parties.” Id., at 53. Be
cause the collective-bargaining agreement gave the arbi
trator “authority to resolve only questions of contractual
rights,” his decision could not prevent the employee from
bringing the Title VII claim in federal court “regardless of
whether certain contractual rights are similar to, or dupli
cative of, the substantive rights secured by Title VII.” Id.,
at 53–54; see also id., at 50.
The Court also explained that the employee had not
waived his right to pursue his Title VII claim in federal
court by participating in an arbitration that was premised
on the same underlying facts as the Title VII claim. See
id., at 52. Thus, whether the legal theory of preclusion
advanced by the employer rested on “the doctrines of
election of remedies” or was recast “as resting instead on
the doctrine of equitable estoppel and on themes of res
judicata and collateral estoppel,” id., at 49, n. 10 (internal
quotation marks omitted), it could not prevail in light of
the collective-bargaining agreement’s failure to address
arbitration of Title VII claims. See id., at 46, n. 6 (“[W]e
hold that the federal policy favoring arbitration does not
establish that an arbitrator’s resolution of a contractual
claim is dispositive of a statutory claim under Title VII”
(emphasis added)).
The Court’s decisions following Gardner-Denver have
not broadened its holding to make it applicable to the facts
of this case. In Barrentine v. Arkansas-Best Freight Sys
tem, Inc., 450 U. S. 728 (1981), the Court considered
“whether an employee may bring an action in federal
district court, alleging a violation of the minimum wage
provisions of the Fair Labor Standards Act, . . . after
having unsuccessfully submitted a wage claim based on
the same underlying facts to a joint grievance committee
pursuant to the provisions of his union’s collective
bargaining agreement.” Id., at 729–730. The Court held
14 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
that the unsuccessful arbitration did not preclude the
federal lawsuit. Like the collective-bargaining agreement
in Gardner-Denver, the arbitration provision under review
in Barrentine did not expressly reference the statutory
claim at issue. See 450 U. S., at 731, n. 5. The Court thus
reiterated that an “arbitrator’s power is both derived from,
and limited by, the collective-bargaining agreement” and
“[h]is task is limited to construing the meaning of the
collective-bargaining agreement so as to effectuate the
collective intent of the parties.” Id., at 744.
McDonald v. West Branch, 466 U. S. 284 (1984), was
decided along similar lines. The question presented in
that case was “whether a federal court may accord preclu
sive effect to an unappealed arbitration award in a case
brought under [42 U. S. C. §1983].” Id., at 285. The Court
declined to fashion such a rule, again explaining that
“because an arbitrator’s authority derives solely from the
contract, Barrentine, supra, at 744, an arbitrator may not
have authority to enforce §1983” when that provision is
left unaddressed by the arbitration agreement. Id., at
290. Accordingly, as in both Gardner-Denver and Barren
tine, the Court’s decision in McDonald hinged on the scope
of the collective-bargaining agreement and the arbitrator’s
parallel mandate.
The facts underlying Gardner-Denver, Barrentine, and
McDonald reveal the narrow scope of the legal rule arising
from that trilogy of decisions. Summarizing those opin
ions in Gilmer, this Court made clear that the Gardner-
Denver line of cases “did not involve the issue of the en
forceability of an agreement to arbitrate statutory claims.”
500 U. S., at 35. Those decisions instead “involved the
quite different issue whether arbitration of contract-based
claims precluded subsequent judicial resolution of statu
tory claims. Since the employees there had not agreed to
arbitrate their statutory claims, and the labor arbitrators
were not authorized to resolve such claims, the arbitration
Cite as: 556 U. S. ____ (2009) 15
Opinion of the Court
in those cases understandably was held not to preclude
subsequent statutory actions.” Ibid.; see also Wright, 525
U. S., at 76; Livadas v. Bradshaw, 512 U. S. 107, 127,
n. 21 (1994).7 Gardner-Denver and its progeny thus do not
control the outcome where, as is the case here, the collec
tive-bargaining agreement’s arbitration provision ex
pressly covers both statutory and contractual discrimina
tion claims.8
——————
7 JUSTICE SOUTER’s reliance on Wright v. Universal Maritime Service
Corp., 525 U. S. 70 (1998), to support its view of Gardner-Denver is
misplaced. See post, at 5, 7. Wright identified the “tension” between
the two lines of cases represented by Gardner-Denver and Gilmer, but
found “it unnecessary to resolve the question of the validity of a union
negotiated waiver, since it [was] apparent . . . on the facts and argu
ments presented . . . that no such waiver [had] occurred.” 525 U. S., at
76–77. And although his dissent describes Wright’s characterization of
Gardner-Denver as “raising a ‘seemingly absolute prohibition of union
waiver of employees’ federal forum rights,’ ” post, at 7 (quoting Wright,
525 U. S., at 80), it wrenches the statement out of context: “Although
[the right to a judicial forum] is not a substantive right, see Gilmer, 500
U. S., at 26, and whether or not Gardner-Denver’s seemingly absolute
prohibition of union waiver of employees’ federal forum rights survives
Gilmer, Gardner-Denver at least stands for the proposition that the
right to a federal judicial forum is of sufficient importance to be pro
tected against less-than-explicit union waiver in a CBA,” id., at 80(emphasis added). Wright therefore neither endorsed Gardner-Denver’s
broad language nor suggested a particular result in this case.
8 Because today’s decision does not contradict the holding of Gardner-
Denver, we need not resolve the stare decisis concerns raised by the
dissenting opinions. See post, at 4, 9 (opinion of SOUTER, J.); post, at 2–
4 (opinion of STEVENS, J.). But given the development of this Court’s
arbitration jurisprudence in the intervening years, see infra, at 16–19,
Gardner-Denver would appear to be a strong candidate for overruling if
the dissents’ broad view of its holding, see post, at 6–7 (opinion of
SOUTER, J.), were correct. See Patterson v. McLean Credit Union, 491
U. S. 164, 173 (1989) (explaining that it is appropriate to overrule a
decision where there “has been [an] intervening development of the
law” such that the earlier “decision [is] irreconcilable with competing
legal doctrines and policies”).
16 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
2
We recognize that apart from their narrow holdings, the
Gardner-Denver line of cases included broad dicta that
was highly critical of the use of arbitration for the vindica
tion of statutory antidiscrimination rights. That skepti
cism, however, rested on a misconceived view of arbitra
tion that this Court has since abandoned.
First, the Court in Gardner-Denver erroneously as
sumed that an agreement to submit statutory discrimina
tion claims to arbitration was tantamount to a waiver of
those rights. See 415 U. S., at 51. (“[T]here can be no
prospective waiver of an employee’s rights under Title VII”
(emphasis added)). For this reason, the Court stated, “the
rights conferred [by Title VII] can form no part of the
collective-bargaining process since waiver of these rights
would defeat the paramount congressional purpose behind
Title VII.” Ibid.; see also id., at 56 (“we have long recog
nized that ‘the choice of forums inevitably affects the scope
of the substantive right to be vindicated’ ” (quoting U. S.
Bulk Carriers, Inc. v. Arguelles, 400 U. S. 351, 359–360
(1971) (Harlan, J., concurring))).
The Court was correct in concluding that federal anti
discrimination rights may not be prospectively waived, see
29 U. S. C. §626(f)(1)(C); see supra, at 9, but it confused an
agreement to arbitrate those statutory claims with a
prospective waiver of the substantive right. The decision
to resolve ADEA claims by way of arbitration instead of
litigation does not waive the statutory right to be free from
workplace age discrimination; it waives only the right to
seek relief from a court in the first instance. See Gilmer,
supra, at 26 (“ ‘[B]y agreeing to arbitrate a statutory claim,
a party does not forgo the substantive rights afforded by
the statute; it only submits to their resolution in an arbi
tral, rather than a judicial, forum’ ” (quoting Mitsubishi
Motors Corp., 473 U. S., at 628)). This “Court has been
quite specific in holding that arbitration agreements can
Cite as: 556 U. S. ____ (2009) 17
Opinion of the Court
be enforced under the FAA without contravening the
policies of congressional enactments giving employees
specific protection against discrimination prohibited by
federal law.” Circuit City Stores, Inc., 532 U. S., at 123.
The suggestion in Gardner-Denver that the decision to
arbitrate statutory discrimination claims was tantamount
to a substantive waiver of those rights, therefore, reveals a
distorted understanding of the compromise made when an
employee agrees to compulsory arbitration.
In this respect, Gardner-Denver is a direct descendant of
the Court’s decision in Wilko v. Swan, 346 U. S. 427(1953), which held that an agreement to arbitrate claims
under the Securities Act of 1933 was unenforceable. See
id., at 438. The Court subsequently overruled Wilko and,
in so doing, characterized the decision as “pervaded by . . .
‘the old judicial hostility to arbitration.’ ” Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U. S. 477,
480 (1989). The Court added: “To the extent that Wilko
rested on suspicion of arbitration as a method of weaken
ing the protections afforded in the substantive law to
would-be complainants, it has fallen far out of step with
our current strong endorsement of the federal statutes
favoring this method of resolving disputes.” Id., at 481;
see also Mitsubishi Motors Corp., supra, at 626–627 (“[W]e
are well past the time when judicial suspicion of the desir
ability of arbitration and of the competence of arbitral
tribunals inhibited the development of arbitration as an
alternative means of dispute resolution”). The timeworn
“mistrust of the arbitral process” harbored by the Court in
Gardner-Denver thus weighs against reliance on anything
more than its core holding. Shearson/American Express
Inc. v. McMahon, 482 U. S. 220, 231–232 (1987); see also
Gilmer, 500 U. S., at 34, n. 5 (reiterating that Gardner-
Denver’s view of arbitration “has been undermined by [the
Court’s] recent arbitration decisions”). Indeed, in light of
the “radical change, over two decades, in the Court’s re
18 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
ceptivity to arbitration,” Wright, 525 U. S., at 77, reliance
on any judicial decision similarly littered with Wilko’s
overt hostility to the enforcement of arbitration agree
ments would be ill advised. 9
Second, Gardner-Denver mistakenly suggested that
certain features of arbitration made it a forum “well suited
to the resolution of contractual disputes,” but “a compara
tively inappropriate forum for the final resolution of rights
created by Title VII.” 415 U. S., at 56. According to the
——————
9 JUSTICE STEVENS suggests that the Court is displacing its “earlier
determination of the relevant provisions’ meaning” based on a “prefer
ence for arbitration.” Post, at 2. But his criticism lacks any basis. We
are not revisiting a settled issue or disregarding an earlier determina
tion; the Court is simply deciding the question identified in Wright as
unresolved. See supra, at 5–6; see also infra, at 23–24. And, contrary
to JUSTICE STEVENS’ accusation, it is the Court’s fidelity to the ADEA’s
text—not an alleged preference for arbitration—that dictates the
answer to the question presented. As Gilmer explained, nothing in the
text of Title VII or the ADEA precludes contractual arbitration, see
supra, at 8–9, and JUSTICE STEVENS has never suggested otherwise.
Rather, he has always contended that permitting the “compulsory
arbitration” of employment discrimination claims conflicts with his
perception of “the congressional purpose animating the ADEA.” Gil
mer, 500 U. S., at 41 (STEVENS, J., dissenting); see also id., at 42(“Plainly, it would not comport with the congressional objectives behind
a statute seeking to enforce civil rights protected by Title VII to allow
the very forces that had practiced discrimination to contract away the
right to enforce civil rights in the courts” (internal quotation marks
omitted)). The Gilmer Court did not adopt JUSTICE STEVENS’ personal
view of the purposes underlying the ADEA, for good reason: That view
is not embodied within the statute’s text. Accordingly, it is not the
statutory text that JUSTICE STEVENS has sought to vindicate—it is
instead his own “preference” for mandatory judicial review, which he
disguises as a search for congressional purpose. This Court is not
empowered to incorporate such a preference into the text of a federal
statute. See infra, at 20–21. It is for this reason, and not because of a
“policy favoring arbitration,” see post, at 1, 3 (STEVENS, J., dissenting),
that the Court overturned Wilko v. Swan, 346 U. S. 427 (1953). And it
is why we disavow the antiarbitration dicta of Gardner-Denver and its
progeny today.
Cite as: 556 U. S. ____ (2009) 19
Opinion of the Court
Court, the “factfinding process in arbitration” is “not
equivalent to judicial factfinding” and the “informality of
arbitral procedure . . . makes arbitration a less appropri
ate forum for final resolution of Title VII issues than the
federal courts.” Id., at 57, 58. The Court also questioned
the competence of arbitrators to decide federal statutory
claims. See id., at 57 (“[T]he specialized competence of
arbitrators pertains primarily to the law of the shop, not
the law of the land”); Barrentine, 450 U. S., at 743 (“Al
though an arbitrator may be competent to resolve many
preliminary factual questions, such as whether the em
ployee ‘punched in’ when he said he did, he may lack
competence to decide the ultimate legal issue whether an
employee’s right to a minimum wage or to overtime pay
under the statute has been violated”). In the Court’s view,
“the resolution of statutory or constitutional issues is a
primary responsibility of courts, and judicial construction
has proved especially necessary with respect to Title VII,
whose broad language frequently can be given meaning
only by reference to public law concepts.” Gardner-
Denver, supra, at 57; see also McDonald, 466 U. S., at 290(“An arbitrator may not . . . have the expertise required to
resolve the complex legal questions that arise in §1983
actions”).
These misconceptions have been corrected. For exam
ple, the Court has “recognized that arbitral tribunals are
readily capable of handling the factual and legal complexi
ties of antitrust claims, notwithstanding the absence of
judicial instruction and supervision” and that “there is no
reason to assume at the outset that arbitrators will not
follow the law.” McMahon, supra, at 232; Mitsubishi
Motors Corp., 473 U. S., at 634 (“We decline to indulge the
presumption that the parties and arbitral body conducting
a proceeding will be unable or unwilling to retain compe
tent, conscientious, and impartial arbitrators”). An arbi
trator’s capacity to resolve complex questions of fact and
20 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
law extends with equal force to discrimination claims
brought under the ADEA. Moreover, the recognition that
arbitration procedures are more streamlined than federal
litigation is not a basis for finding the forum somehow
inadequate; the relative informality of arbitration is one of
the chief reasons that parties select arbitration. Parties
“trad[e] the procedures and opportunity for review of the
courtroom for the simplicity, informality, and expedition of
arbitration.” Id., at 628. In any event, “[i]t is unlikely . . .
that age discrimination claims require more extensive
discovery than other claims that we have found to be
arbitrable, such as RICO and antitrust claims.” Gilmer,
500 U. S., at 31. At bottom, objections centered on the
nature of arbitration do not offer a credible basis for dis
crediting the choice of that forum to resolve statutory
antidiscrimination claims.10
Third, the Court in Gardner-Denver raised in a footnote
a “further concern” regarding “the union’s exclusive con
trol over the manner and extent to which an individual
grievance is presented.” 415 U. S., at 58, n. 19. The Court
suggested that in arbitration, as in the collective
bargaining process, a union may subordinate the interests
of an individual employee to the collective interests of all
employees in the bargaining unit. Ibid.; see also McDon
ald, supra, at 291 (“The union’s interests and those of the
individual employee are not always identical or even
compatible. As a result, the union may present the em
ployee’s grievance less vigorously, or make different stra
——————
10 Moreover, an arbitrator’s decision as to whether a unionized em
ployee has been discriminated against on the basis of age in violation of
the ADEA remains subject to judicial review under the FAA. 9 U. S. C.
§10(a). “[A]lthough judicial scrutiny of arbitration awards necessarily
is limited, such review is sufficient to ensure that arbitrators comply
with the requirements of the statute.” Shearson/American Express Inc.
v. McMahon, 482 U. S. 220, 232 (1987).
Cite as: 556 U. S. ____ (2009) 21
Opinion of the Court
tegic choices, than would the employee”); see also Barren
tine, supra, at 742; post, at 8, n. 4 (SOUTER, J., dissenting).
We cannot rely on this judicial policy concern as a
source of authority for introducing a qualification into the
ADEA that is not found in its text. Absent a constitu
tional barrier, “it is not for us to substitute our view of . . .
policy for the legislation which has been passed by Con
gress.” Florida Dept. of Revenue v. Piccadilly Cafeterias,
Inc., 554 U. S. ___, ___ (2008) (slip op., at 18) (internal
quotation marks omitted). Congress is fully equipped “to
identify any category of claims as to which agreements to
arbitrate will be held unenforceable.” Mitsubishi Motors
Corp., supra, at 627. Until Congress amends the ADEA to
meet the conflict-of-interest concern identified in the
Gardner-Denver dicta, and seized on by respondents here,
there is “no reason to color the lens through which the
arbitration clause is read” simply because of an alleged
conflict of interest between a union and its members.
Mitsubishi Motors Corp., supra, at 628. This is a “battl[e]
that should be fought among the political branches and
the industry. Those parties should not seek to amend the
statute by appeal to the Judicial Branch.” Barnhart v.
Sigmon Coal Co., 534 U. S. 438, 462 (2002).
The conflict-of-interest argument also proves too much.
Labor unions certainly balance the economic interests of
some employees against the needs of the larger work force
as they negotiate collective-bargain agreements and im
plement them on a daily basis. But this attribute of or
ganized labor does not justify singling out an arbitration
provision for disfavored treatment. This “principle of
majority rule” to which respondents object is in fact the
central premise of the NLRA. Emporium Capwell Co. v.
Western Addition Community Organization, 420 U. S. 50,
62 (1975). “In establishing a regime of majority rule,
Congress sought to secure to all members of the unit the
benefits of their collective strength and bargaining power,
22 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
in full awareness that the superior strength of some indi
viduals or groups might be subordinated to the interest of
the majority.” Ibid. (footnote omitted); see also Ford
Motor Co. v. Huffman, 345 U. S. 330, 338 (1953) (“The
complete satisfaction of all who are represented is hardly
to be expected”); Pennsylvania R. Co. v. Rychlik, 352 U. S.
480, 498 (1957) (Frankfurter, J., concurring). It was Con
gress’ verdict that the benefits of organized labor outweigh
the sacrifice of individual liberty that this system neces
sarily demands. Respondents’ argument that they were
deprived of the right to pursue their ADEA claims in
federal court by a labor union with a conflict of interest is
therefore unsustainable; it amounts to a collateral attack
on the NLRA.
In any event, Congress has accounted for this conflict of
interest in several ways. As indicated above, the NLRA
has been interpreted to impose a “duty of fair representa
tion” on labor unions, which a union breaches “when its
conduct toward a member of the bargaining unit is arbi
trary, discriminatory, or in bad faith.” Marquez v. Screen
Actors, 525 U. S. 33, 44 (1998). This duty extends to “chal
lenges leveled not only at a union’s contract administra
tion and enforcement efforts but at its negotiation activi
ties as well.” Beck, 487 U. S., at 743 (citation omitted).
Thus, a union is subject to liability under the NLRA if it
illegally discriminates against older workers in either the
formation or governance of the collective-bargaining agree
ment, such as by deciding not to pursue a grievance on
behalf of one of its members for discriminatory reasons.
See Vaca v. Sipes, 386 U. S. 171, 177 (1967) (describing
the duty of fair representation as the “statutory obligation
to serve the interests of all members without hostility or
discrimination toward any, to exercise its discretion with
complete good faith and honesty, and to avoid arbitrary
conduct” (emphasis added)). Respondents in fact brought
a fair representation suit against the Union based on its
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Opinion of the Court
withdrawal of support for their age-discrimination claims.
See n. 2, supra. Given this avenue that Congress has
made available to redress a union’s violation of its duty to
its members, it is particularly inappropriate to ask this
Court to impose an artificial limitation on the collective
bargaining process.
In addition, a union is subject to liability under the
ADEA if the union itself discriminates against its mem
bers on the basis of age. See 29 U. S. C. §623(d); see also 1
B. Lindemann & P. Grossman, Employment Discrimina
tion Law 1575–1581 (4th ed. 2007) (explaining that a labor
union may be held jointly liable with an employer under
federal antidiscrimination laws for discriminating in the
formation of a collective-bargaining agreement, knowingly
acquiescing in the employer’s discrimination, or inducing
the employer to discriminate); cf. Goodman v. Lukens Steel
Co., 482 U. S. 656, 669 (1987). Union members may also
file age-discrimination claims with the EEOC and the
National Labor Relations Board, which may then seek
judicial intervention under this Court’s precedent. See
EEOC v. Waffle House, Inc., 534 U. S. 279, 295–296
(2002). In sum, Congress has provided remedies for the
situation where a labor union is less than vigorous in
defense of its members’ claims of discrimination under the
ADEA.
III
Finally, respondents offer a series of arguments con
tending that the particular CBA at issue here does not
clearly and unmistakably require them to arbitrate their
ADEA claims. See Brief for Respondents 44–47. But
respondents did not raise these contract-based arguments
in the District Court or the Court of Appeals. To the
contrary, respondents acknowledged on appeal that the
CBA provision requiring arbitration of their federal anti
discrimination statutory claims “is sufficiently explicit” in
24 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
precluding their federal lawsuit. Brief for Plaintiffs-
Appellees in No. 06–3047–cv(L) etc. (CA2), p. 9. In light of
respondents’ litigating position, both lower courts assumed
that the CBA’s arbitration clause clearly applied to re
spondents and proceeded to decide the question left unre
solved in Wright. We granted review of the question
presented on that understanding.
“Without cross-petitioning for certiorari, a prevailing
party may, of course, ‘defend its judgment on any ground
properly raised below whether or not that ground was
relied upon, rejected, or even considered by the District
Court or the Court of Appeals.’ ” Granfinanciera, S. A. v.
Nordberg, 492 U. S. 33, 38–39 (1989) (quoting Washington
v. Confederated Bands and Tribes of Yakima Nation, 439
U. S. 463, 476, n. 20 (1979)). But this Court will affirm on
grounds that have “ ‘not been raised below . . . “only in
exceptional cases.” ’ ” Nordberg, supra, at 39 (quoting
Heckler v. Campbell, 461 U. S. 458, 468–469, n. 12 (1983)).
This is not an “exceptional case.” As a result, we find that
respondents’ alternative arguments for affirmance have
been forfeited. See, e.g., Rita v. United States, 551 U. S.
338, 360 (2007); Sprietsma v. Mercury Marine, 537 U. S.
51, 56, n. 4 (2002). We will not resurrect them on respon
dents’ behalf.
Respondents also argue that the CBA operates as a
substantive waiver of their ADEA rights because it not
only precludes a federal lawsuit, but also allows the Union
to block arbitration of these claims. Brief for Respondents
28–30. Petitioners contest this characterization of the
CBA, see Reply Brief for Petitioners 23–27, and offer
record evidence suggesting that the Union has allowed
respondents to continue with the arbitration even though
the Union has declined to participate, see App. to Pet. for
Cert. 42a. But not only does this question require resolu
tion of contested factual allegations, it was not fully
briefed to this or any court and is not fairly encompassed
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Opinion of the Court
within the question presented, see this Court’s Rule
14.1(a). Thus, although a substantive waiver of federally
protected civil rights will not be upheld, see Mitsubishi
Motors Corp., 473 U. S., at 637, and n. 19; Gilmer, 500
U. S., at 29, we are not positioned to resolve in the first
instance whether the CBA allows the Union to prevent
respondents from “effectively vindicating” their “federal
statutory rights in the arbitral forum,” Green Tree Finan
cial Corp.-Ala. v. Randolph, 531 U. S. 79, 90 (2000). Reso
lution of this question at this juncture would be particu
larly inappropriate in light of our hesitation to invalidate
arbitration agreements on the basis of speculation. See
id., at 91.
IV
We hold that a collective-bargaining agreement that
clearly and unmistakably requires union members to
arbitrate ADEA claims is enforceable as a matter of fed
eral law. The judgment of the Court of Appeals is re
versed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Cite as: 556 U. S. ____ (2009) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–581
_________________
14 PENN PLAZA LLC, ET AL., PETITIONERS v.
STEVEN PYETT ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 1, 2009]
JUSTICE STEVENS, dissenting.
JUSTICE SOUTER’s dissenting opinion, which I join in
full, explains why our decision in Alexander v. Gardner-
Denver Co., 415 U. S. 36 (1974), answers the question
presented in this case. My concern regarding the Court’s
subversion of precedent to the policy favoring arbitration
prompts these additional remarks.
Notwithstanding the absence of change in any relevant
statutory provision, the Court has recently retreated from,
and in some cases reversed, prior decisions based on its
changed view of the merits of arbitration. Previously, the
Court approached with caution questions involving a
union’s waiver of an employee’s right to raise statutory
claims in a federal judicial forum. After searching the text
and purposes of Title VII of the Civil Rights Act of 1964,
the Court in Gardner-Denver held that a clause of a collec
tive-bargaining agreement (CBA) requiring arbitration of
discrimination claims could not waive an employee’s right
to a judicial forum for statutory claims. See 415 U. S., at
51. The Court’s decision rested on several features of the
statute, including the individual nature of the rights it
confers, the broad remedial powers it grants federal
courts, and its expressed preference for overlapping reme
dies. See id., at 44–48. The Court also noted the problem
of entrusting a union with certain arbitration decisions
2 14 PENN PLAZA LLC v. PYETT
STEVENS, J., dissenting
given the potential conflict between the collective interest
and the interests of an individual employee seeking to
assert his rights. See id., at 58, n. 19. That concern later
provided a basis for our decisions in Barrentine v. Arkan
sas-Best Freight System, Inc., 450 U. S. 728, 742 (1981),
and McDonald v. West Branch, 466 U. S. 284, 291 (1984),
which similarly held that a CBA may not commit enforce
ment of certain rights-creating statutes exclusively to a
union-controlled arbitration process. Congress has taken
no action signaling disagreement with those decisions.
The statutes construed by the Court in the foregoing
cases and in Wilko v. Swan, 346 U. S. 427 (1953), have not
since been amended in any relevant respect. But the
Court has in a number of cases replaced our predecessors’
statutory analysis with judicial reasoning espousing a
policy favoring arbitration and thereby reached divergent
results. I dissented in those cases to express concern that
my colleagues were making policy choices not made by
Congress. See Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U. S. 614, 640 (1985); Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U. S. 477,
486 (1989); Gilmer v. Interstate/Johnson Lane Corp., 500
U. S. 20, 36 (1991); and Circuit City Stores, Inc. v. Adams,
532 U. S. 105, 124 (2001).
Today the majority’s preference for arbitration again
leads it to disregard our precedent. Although it purports
to ascertain the relationship between the Age Discrimina
tion in Employment Act of 1967 (ADEA), the National
Labor Relations Act, and the Federal Arbitration Act, the
Court ignores our earlier determination of the relevant
provisions’ meaning. The Court concludes that “[i]t was
Congress’ verdict that the benefits of organized labor
outweigh the sacrifice of individual liberty” that the sys
tem of organized labor “necessarily demands,” even when
the sacrifice demanded is a judicial forum for asserting an
individual statutory right. Ante, at 22. But in Gard
Cite as: 556 U. S. ____ (2009) 3
STEVENS, J., dissenting
ner-Denver we determined that “Congress’ verdict” was
otherwise when we held that Title VII does not permit a
CBA to waive an employee’s right to a federal judicial
forum. Because the purposes and relevant provisions of
Title VII and the ADEA are not meaningfully distinguish
able, it is only by reexamining the statutory questions
resolved in Gardner-Denver through the lens of the policy
favoring arbitration that the majority now reaches a dif
ferent result.*
Under the circumstances, I believe a passage from one
of my earlier dissents merits repetition. The Court in
Rodriguez de Quijas overruled our decision in Wilko and
held that predispute agreements to arbitrate claims under
the Securities Act of 1933 are enforceable. 490 U. S., at
484; see also id., at 481 (noting Wilko’s reliance on “the
outmoded presumption of disfavoring arbitration proceed
ings”). I observed in dissent:
“In the final analysis, a Justice’s vote in a case like
this depends more on his or her views about the re
spective lawmaking responsibilities of Congress and
this Court than on conflicting policy interests. Judges
who have confidence in their own ability to fashion
public policy are less hesitant to change the law than
those of us who are inclined to give wide latitude to
the views of the voters’ representatives on nonconsti
——————
* Referring to the potential conflict between individual and collective
interests, the Court asserts that it “cannot rely on this judicial policy
concern as a source of authority for introducing a qualification into the
ADEA that is not found in its text.” Ante, at 21. That potential conflict
of interests, however, was a basis for our decision in several pertinent
cases, including Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974),
and Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 35 (1991),
and in the intervening years Congress has not seen fit to correct that
interpretation. The Court’s derision of that “policy concern” is particu
larly disingenuous given its subversion of Gardner-Denver’s holding in
the service of an extratextual policy favoring arbitration.
4 14 PENN PLAZA LLC v. PYETT
STEVENS, J., dissenting
tutional matters. Cf. Boyle v. United Technologies
Corp., 487 U. S. 500 (1988). As I pointed out years
ago, Alberto-Culver Co. v. Scherk, 484 F. 2d 611 (CA7
1973) (dissenting opinion), rev’d, 417 U. S. 506 (1974),
there are valid policy and textual arguments on both
sides regarding the interrelation of federal securities
and arbitration Acts. None of these arguments, how
ever, carries sufficient weight to tip the balance be
tween judicial and legislative authority and overturn
an interpretation of an Act of Congress that has been
settled for many years.” Rodriguez de Quijas, 490
U. S., at 487 (footnote and citation omitted).
As was true in Rodriguez de Quijas, there are competing
arguments in this case regarding the interaction of the
relevant statutory provisions. But the Court in Gardner-
Denver considered these arguments, including “the federal
policy favoring arbitration of labor disputes,” 415 U. S., at
59, and held that Congress did not intend to permit the
result petitioners seek. In the absence of an intervening
amendment to the relevant statutory language, we are
bound by that decision. It is for Congress, rather than this
Court, to reassess the policy arguments favoring arbitra
tion and revise the relevant provisions to reflect its views.
Cite as: 556 U. S. ____ (2009) 1
SOUTER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–581
_________________
14 PENN PLAZA LLC, ET AL., PETITIONERS v.
STEVEN PYETT ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 1, 2009]
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE
GINSBURG, and JUSTICE BREYER join, dissenting.
The issue here is whether employees subject to a collec
tive-bargaining agreement (CBA) providing for conclusive
arbitration of all grievances, including claimed breaches of
the Age Discrimination in Employment Act of 1967
(ADEA), 29 U. S. C. §621 et seq., lose their statutory right
to bring an ADEA claim in court, §626(c). Under the 35-
year-old holding in Alexander v. Gardner-Denver Co., 415
U. S. 36 (1974), they do not, and I would adhere to stare
decisis and so hold today.
I
Like Title VII of the Civil Rights Act of 1964, 42 U. S. C.
§2000e et seq., the ADEA is aimed at “ ‘the elimination of
discrimination in the workplace,’ ” McKennon v. Nashville
Banner Publishing Co., 513 U. S. 352, 358 (1995) (quoting
Oscar Mayer & Co. v. Evans, 441 U. S. 750, 756 (1979)),
and, again like Title VII, the ADEA “contains a vital ele
ment . . . : It grants an injured employee a right of action
to obtain the authorized relief,” 513 U. S., at 358. “Any
person aggrieved” under the Act “may bring a civil action
in any court of competent jurisdiction for legal or equitable
relief,” 29 U. S. C. §626(c), thereby “not only redress[ing]
his own injury but also vindicat[ing] the important con
2 14 PENN PLAZA LLC v. PYETT
SOUTER, J., dissenting
gressional policy against discriminatory employment
practices,” Gardner-Denver, supra, at 45.
Gardner-Denver considered the effect of a CBA’s arbitra
tion clause on an employee’s right to sue under Title VII.
One of the employer’s arguments was that the CBA en
tered into by the union had waived individual employees’
statutory cause of action subject to a judicial remedy for
discrimination in violation of Title VII. Although Title
VII, like the ADEA, “does not speak expressly to the rela
tionship between federal courts and the grievance
arbitration machinery of collective-bargaining agree
ments,” 415 U. S., at 47, we unanimously held that “the
rights conferred” by Title VII (with no exception for the
right to a judicial forum) cannot be waived as “part of the
collective bargaining process,” id., at 51. We stressed the
contrast between two categories of rights in labor and
employment law. There were “statutory rights related to
collective activity,” which “are conferred on employees
collectively to foster the processes of bargaining[, which]
properly may be exercised or relinquished by the union as
collective-bargaining agent to obtain economic benefits for
union members.” Ibid. But “Title VII . . . stands on
plainly different [categorical] ground; it concerns not
majoritarian processes, but an individual’s right to equal
employment opportunities.” Ibid. Thus, as the Court
previously realized, Gardner-Denver imposed a “seemingly
absolute prohibition of union waiver of employees’ federal
forum rights.” Wright v. Universal Maritime Service
Corp., 525 U. S. 70, 80 (1998).1
We supported the judgment with several other lines of
complementary reasoning. First, we explained that anti
——————
1 Gardner-Denver also contained some language seemingly prohibit
ing even individual prospective waiver of federal forum rights, see 415
U. S., at 51–52, an issue revisited in Gilmer v. Interstate/Johnson Lane
Corp., 500 U. S. 20 (1991), and not disputed here.
Cite as: 556 U. S. ____ (2009) 3
SOUTER, J., dissenting
discrimination statutes “have long evinced a general
intent to accord parallel or overlapping remedies against
discrimination,” and Title VII’s statutory scheme carried
“no suggestion . . . that a prior arbitral decision either
forecloses an individual’s right to sue or divests federal
courts of jurisdiction.” Gardner-Denver, 415 U. S., at 47.
We accordingly concluded that “an individual does not
forfeit his private cause of action if he first pursues his
grievance to final arbitration under the nondiscrimination
clause of a collective-bargaining agreement.” Id., at 49.
Second, we rejected the District Court’s view that simply
participating in the arbitration amounted to electing the
arbitration remedy and waiving the plaintiff’s right to sue.
We said that the arbitration agreement at issue covered
only a contractual right under the CBA to be free from
discrimination, not the “independent statutory rights
accorded by Congress” in Title VII. Id., at 49–50. Third,
we rebuffed the employer’s argument that federal courts
should defer to arbitral rulings. We declined to make the
“assumption that arbitral processes are commensurate
with judicial processes,” id., at 56, and described arbitra
tion as “a less appropriate forum for final resolution of
Title VII issues than the federal courts,” id., at 58.
Finally, we took note that “[i]n arbitration, as in the
collective bargaining process, the interests of the individ
ual employee may be subordinated to the collective inter
ests of all employees in the bargaining unit,” ibid., n. 19, a
result we deemed unacceptable when it came to Title VII
claims. In sum, Gardner-Denver held that an individual’s
statutory right of freedom from discrimination and access
to court for enforcement were beyond a union’s power to
waive.
Our analysis of Title VII in Gardner-Denver is just as
pertinent to the ADEA in this case. The “interpretation of
Title VII . . . applies with equal force in the context of age
discrimination, for the substantive provisions of the ADEA
4 14 PENN PLAZA LLC v. PYETT
SOUTER, J., dissenting
‘were derived in haec verba from Title VII,’ ” and indeed
neither petitioners nor the Court points to any relevant
distinction between the two statutes. Trans World Air
lines, Inc. v. Thurston, 469 U. S. 111, 121 (1985) (quoting
Lorillard v. Pons, 434 U. S. 575, 584 (1978)); see also
McKennon, 513 U. S., at 358 (“The ADEA and Title VII
share common substantive features and also a common
purpose”). Given the unquestionable applicability of the
Gardner-Denver rule to this ADEA issue, the argument
that its precedent be followed in this case of statutory
interpretation is equally unquestionable. “Principles of
stare decisis . . . demand respect for precedent whether
judicial methods of interpretation change or stay the
same. Were that not so, those principles would fail to
achieve the legal stability that they seek and upon which
the rule of law depends.” CBOCS West, Inc. v. Humphries,
553 U. S. ___, ___ (2008) (slip op., at 14). And
“[c]onsiderations of stare decisis have special force” over
an issue of statutory interpretation, which is unlike con
stitutional interpretation owing to the capacity of Con
gress to alter any reading we adopt simply by amending
the statute. Patterson v. McLean Credit Union, 491 U. S.
164, 172–173 (1989). Once we have construed a statute,
stability is the rule, and “we will not depart from [it]
without some compelling justification.” Hilton v. South
Carolina Public Railways Comm’n, 502 U. S. 197, 202
(1991). There is no argument for abandoning precedent
here, and Gardner-Denver controls.
II
The majority evades the precedent of Gardner-Denver as
long as it can simply by ignoring it. The Court never
mentions the case before concluding that the ADEA and
the National Labor Relations Act, 29 U. S. C. §151 et seq.,
“yiel[d] a straightforward answer to the question pre
sented,” ante, at 10, that is, that unions can bargain away
Cite as: 556 U. S. ____ (2009) 5
SOUTER, J., dissenting
individual rights to a federal forum for antidiscrimination
claims. If this were a case of first impression, it would at
least be possible to consider that conclusion, but the issue
is settled and the time is too late by 35 years to make the
bald assertion that “[n]othing in the law suggests a dis
tinction between the status of arbitration agreements
signed by an individual employee and those agreed to by a
union representative.” Ante, at 9. In fact, we recently and
unanimously said that the principle that “federal forum
rights cannot be waived in union-negotiated CBAs even if
they can be waived in individually executed contracts . . .
assuredly finds support in” our case law, Wright, 525
U. S., at 77, and every Court of Appeals save one has read
our decisions as holding to this position, Air Line Pilots
Assn., Int’l v. Northwest Airlines, Inc., 199 F. 3d 477, 484
(CADC 1999) (“We see a clear rule of law emerging from
Gardner-Denver and Gilmer [v. Interstate/Johnson Lane
Corp., 500 U. S. 20 (1991)]: . . . an individual may prospec
tively waive his own statutory right to a judicial forum,
but his union may not prospectively waive that right for
him. All of the circuits to have considered the meaning of
Gardner-Denver after Gilmer, other than the Fourth, are
in accord with this view”).
Equally at odds with existing law is the majority’s
statement that “[t]he decision to fashion a CBA to require
arbitration of employment-discrimination claims is no
different from the many other decisions made by parties in
designing grievance machinery.” Ante, at 7. That is sim
ply impossible to square with our conclusion in Gardner-
Denver that “Title VII . . . stands on plainly different
ground” from “statutory rights related to collective activ
ity”: “it concerns not majoritarian processes, but an indi
vidual’s right to equal employment opportunities.” 415
U. S., at 51; see also Atchison, T. & S. F. R. Co. v. Buell,
480 U. S. 557, 565 (1987) (“[N]otwithstanding the strong
policies encouraging arbitration, ‘different considerations
6 14 PENN PLAZA LLC v. PYETT
SOUTER, J., dissenting
apply where the employee’s claim is based on rights aris
ing out of a statute designed to provide minimum substan
tive guarantees to individual workers’ ” (quoting Barren
tine v. Arkansas-Best Freight System, Inc., 450 U. S. 728,
737 (1981))).
When the majority does speak to Gardner-Denver, it
misreads the case in claiming that it turned solely “on the
narrow ground that the arbitration was not preclusive
because the collective-bargaining agreement did not cover
statutory claims.” Ante, at 12. That, however, was merely
one of several reasons given in support of the decision, see
Gardner-Denver, 415 U. S., at 47–59, and we raised it to
explain why the District Court made a mistake in thinking
that the employee lost his Title VII rights by electing to
pursue the contractual arbitration remedy, see id., at 49–
50. One need only read Gardner-Denver itself to know
that it was not at all so narrowly reasoned, and we have
noted already how later cases have made this abundantly
clear. Barrentine v. Arkansas-Best Freight System, Inc.,
450 U. S., at 737, provides further testimony:
“Not all disputes between an employee and his em
ployer are suited for binding resolution in accordance
with the procedures established by collective bargain
ing. While courts should defer to an arbitral decision
where the employee’s claim is based on rights arising
out of a collective-bargaining agreement, different
considerations apply where the employee’s claim is
based on rights arising out of a statute designed to
provide minimum substantive guarantees to individ
ual workers.
“These considerations were the basis for our deci
sion in [Gardner-Denver].”
See also Gilmer, supra, at 35 (“An important concern” in
Gardner-Denver “was the tension between collective rep
resentation and individual statutory rights . . .”). Indeed,
Cite as: 556 U. S. ____ (2009) 7
SOUTER, J., dissenting
if the Court can read Gardner-Denver as resting on noth
ing more than a contractual failure to reach as far as
statutory claims, it must think the Court has been wreak
ing havoc on the truth for years, since (as noted) we have
unanimously described the case as raising a “seemingly
absolute prohibition of union waiver of employees’ federal
forum rights.” Wright, supra, at 80.2 Human ingenuity is
not equal to the task of reconciling statements like this
with the majority’s representation that Gardner-Denver
held only that “the arbitration was not preclusive because
the collective-bargaining agreement did not cover statu
tory claims.” Ante, at 12.3
Nor, finally, does the majority have any better chance of
being rid of another of Gardner-Denver’s statements sup
porting its rule of decision, set out and repeated in previ
ous quotations: “in arbitration, as in the collective
——————
2The majority seems inexplicably to think that the statutory right to
a federal forum is not a right, or that Gardner-Denver failed to recog
nize it because it is not “substantive.” Ante, at 7, n. 5. But Gardner-
Denver forbade union waiver of employees’ federal forum rights in large
part because of the importance of such rights and a fear that unions
would too easily give them up to benefit the many at the expense of the
few, a far less salient concern when only economic interests are at
stake. See, e.g., Barrentine v. Arkansas-Best Freight System, Inc., 450
U. S. 728, 737 (1981).
3 There is no comfort for the Court in making the one point on which
we are in accord, that Gardner-Denver relied in part on what the
majority describes as “broad dicta that was highly critical of the use of
arbitration for the vindication of statutory antidiscrimination rights.”
Ante, at 15–16. I agree that Gardner-Denver’s “ ‘mistrust of the arbitral
process’ . . . has been undermined by our recent arbitration decisions,”
Gilmer, supra, at 34, n. 5 (quoting Shearson/American Express Inc. v.
McMahon, 482 U. S. 220, 231 (1987)), but if the statements are “dicta,”
their obsolescence is as irrelevant to Gardner-Denver’s continued
vitality as their currency was to the case’s holding when it came down;
in Gardner-Denver itself we acknowledged “the federal policy favoring
arbitration,” 415 U. S., at 46, n. 6, but nonetheless held that a union
could not waive its members’ statutory right to a federal forum in a
CBA.
8 14 PENN PLAZA LLC v. PYETT
SOUTER, J., dissenting
bargaining process, a union may subordinate the interests
of an individual employee to the collective interests of all
employees in the bargaining unit,” ante, at 20 (citing 415
U. S., at 58, n. 19), an unacceptable result when it comes
to “an individual’s right to equal employment opportuni
ties,” id., at 51. The majority tries to diminish this reason
ing, and the previously stated holding it supported, by
making the remarkable rejoinder that “[w]e cannot rely on
this judicial policy concern as a source of authority for
introducing a qualification into the ADEA that is not
found in its text.” Ante, at 20.4 It is enough to recall that
respondents are not seeking to “introduc[e] a qualification
into” the law; they are justifiably relying on statutory
interpretation precedent decades old, never overruled, and
serially reaffirmed over the years. See, e.g., McDonald v.
West Branch, 466 U. S. 284, 291 (1984); Barrentine, supra,
at 742. With that precedent on the books, it makes no
sense for the majority to claim that “judicial policy con
——————
4 The majority says it would be “particularly inappropriate” to con
sider Gardner-Denver’s conflict-of-interest rationale because “Congress
has made available” another “avenue” to protect workers against union
discrimination, namely, a duty of fair representation claim. Ante, at 22.
This answer misunderstands the law, for unions may decline for a
variety of reasons to pursue potentially meritorious discrimination
claims without succumbing to a member’s suit for failure of fair repre
sentation. See, e.g., Barrentine, 450 U. S., at 742 (“[E]ven if the em
ployee’s claim were meritorious, his union might, without breaching its
duty of fair representation, reasonably and in good faith decide not to
support the claim vigorously in arbitration”). More importantly, we
have rejected precisely this argument in the past, making this yet
another occasion where the majority ignores precedent. See, e.g., ibid.;
Gardner-Denver, supra, at 58, n. 19 (noting that a duty of fair represen
tation claim would often “prove difficult to establish”). And we were
wise to reject it. When the Court construes statutes to allow a union to
eliminate a statutory right to sue in favor of arbitration in which the
union cannot represent the employee because it agreed to the em
ployer’s challenged action, it is not very consoling to add that the
employee can sue the union for being unfair.
Cite as: 556 U. S. ____ (2009) 9
SOUTER, J., dissenting
cern[s]” about unions sacrificing individual antidiscrimi
nation rights should be left to Congress.
For that matter, Congress has unsurprisingly under
stood Gardner-Denver the way we have repeatedly ex
plained it and has operated on the assumption that a CBA
cannot waive employees’ rights to a judicial forum to
enforce antidiscrimination statutes. See, e.g., H. R. Rep.
No. 102–40, pt. 1, p. 97 (1991) (stating that, “consistent
with the Supreme Court’s interpretation of Title VII in
[Gardner-Denver],” “any agreement to submit disputed
issues to arbitration . . . in the context of a collective bar
gaining agreement . . . does not preclude the affected
person from seeking relief under the enforcement provi
sions of Title VII”). And Congress apparently does not
share the Court’s demotion of Gardner-Denver’s holding to
a suspect judicial policy concern: “Congress has had [over]
30 years in which it could have corrected our decision . . .
if it disagreed with it, and has chosen not to do so. We
should accord weight to this continued acceptance of our
earlier holding.” Hilton, 502 U. S., at 202; see also Patter
son, 491 U. S., at 172–173.
III
On one level, the majority opinion may have little effect,
for it explicitly reserves the question whether a CBA’s
waiver of a judicial forum is enforceable when the union
controls access to and presentation of employees’ claims in
arbitration, ante, at 24–25, which “is usually the case,”
McDonald, supra, at 291. But as a treatment of precedent
in statutory interpretation, the majority’s opinion cannot
be reconciled with the Gardner-Denver Court’s own view of
its holding, repeated over the years and generally under
stood, and I respectfully dissent.