Carson v. Giant Food, Inc.

• Decision Date: 29 April 1999
• Docket Number: No. 97-2240,97-2240
• Citation: 175 F.3d 325
• Parties: 161 L.R.R.M. (BNA) 2129, 79 Fair Empl.Prac.Cas. (BNA) 976, 75 Empl. Prac. Dec. P 45,847 Gregory CARSON; Wilbert Skipper, Jr.; Melvyn Connors; William Ingram; David Newman; Anthony Blocker; Maurice Mathews; W. Kirb Qualls, Jr.; John W. Dallas, Jr.; David Jones; Jerry Mungro, Plaintiffs-Appellees, v. GIANT FOOD, INC.; Peter Manos; Samuel Thurston; Maria Myers; Robert Haywood; Deborah Lilly; Tom Maynard; Christopher Balodemas, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 325

175 F.3d 325

161 L.R.R.M. (BNA) 2129, 79 Fair

Empl.Prac.Cas. (BNA) 976,

75 Empl. Prac. Dec. P 45,847

Gregory CARSON; Wilbert Skipper, Jr.; Melvyn Connors William Ingram; David Newman; Anthony Blocker; Maurice Mathews; W. Kirb Qualls, Jr.; John W. Dallas, Jr.; David Jones; Jerry Mungro, Plaintiffs-Appellees, v. GIANT FOOD, INC.; Peter Manos; Samuel Thurston; Maria Myers; Robert Haywood; Deborah Lilly; Tom Maynard; Christopher Balodemas Defendants-Appellants.

No. 97-2240.

United States Court of Appeals Fourth Circuit.

Argued March 5, 1999.

Decided April 29, 1999.

ARGUED: Kumiki San Gibson, WILLIAMS & CONNOLLY, Washington, D.C., for Appellants. William Ray Ford, Camp Spring, Maryland, for Appellees. ON BRIEF: Robert P. Watkins, Williams & Connolly, Washington, D.C.; Robert B. Fitzpatrick, Fitzpatrick & Associates, Washington, D.C., for Appellants. Jo Ann P. Myles, Largo, Maryland, for Appellees.

Before WILKINSON, Chief Judge, and WILKINS and LUTTIG, Circuit Judges.

Affirmed and remanded by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge WILKINS and Judge LUTTIG joined.

OPINION

WILKINSON, Chief Judge:

Eleven current and former employees brought individual and class claims of race, age, and disability discrimination against their employer, Giant Food, Inc., and individual Giant officers and managers. After examining four collective bargaining agreements (CBAs) between the employees' unions and Giant, the district court refused to compel arbitration. On appeal, Giant argues that the district court should have let the arbitrator decide which claims were arbitrable and that the CBAs required the arbitration of discrimination claims. We reject both arguments. First, the CBAs do not clearly and unmistakably provide that an arbitrator is to decide which claims the parties agreed to arbitrate. Second, the CBAs do not clearly and unmistakably require the arbitration of statutory discrimination claims. Thus, we affirm the judgment of the district court.

I.

Plaintiffs are current and former African American employees of the supermarket food chain Giant Food. Claiming that Giant and its officers and managers discriminated against employees on the basis of race, age, and disability, plaintiffs brought suit in September 1996. They alleged numerous individual and class claims, including claims under Title VII, 42 U.S.C. § 1981, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). The employees sought compensatory and punitive damages totaling $300 million, injunctive and declaratory relief, reinstatement of discharged employees, and attorneys' fees.

In response, defendants noted that the named plaintiffs were represented by four different unions which had entered into four different CBAs. Defendants asserted that each of those CBAs required the arbitration of employee statutory discrimination claims. They based their argument on two clauses--a nondiscrimination clause and an arbitration clause--that appear in each CBA.

The nondiscrimination provisions in the four CBAs are similar. The CBA negotiated by the United Food and Commercial Workers Union, Local 400, includes a clause in the preamble:

WHEREAS, the Employer and the Union in the performance of this Agreement agree not to discriminate against any employee or applicant for employment because of race, color, religious creed, origin, age or sex.

The preamble of the CBA signed by the International Brotherhood of Teamsters, Local 639, contains an identical clause, except that the word "Company" is substituted for the word "Employer." The CBA agreed to by the Teamster's Warehouse Employees Local 730 similarly states that

The Employer and the Union in the performance of this Agreement agree not to discriminate against any employee or applicant for employment because of race, sex, age, color, religious creed or national origin.

And the fourth CBA, entered into by the Teamster's Automotive Employees Local 922, provides

The Employer and the Union agree that neither will discriminate either directly or indirectly, nor will they permit any of their agents, members or representatives to discriminate either directly or indirectly, against any employee by reason of race, creed, color, national origin, age, sex, or membership or activity in the Union.

In addition to the nondiscrimination provisions, the four CBAs also contain arbitration clauses defining the scope of arbitrable matters. The CBAs for Locals 639, 730, and 922 each state that

[S]hould any grievance or dispute arise between the parties regarding the terms of this Agreement, [the parties will try to resolve the matter].... If agreement cannot be reached, the parties agree that within five (5) days they shall select a neutral and impartial arbitrator....

The arbitration clause negotiated by Local 400 is slightly different,requiring arbitration of any "controversy, dispute or disagreement ... concerning the interpretation of the provisions of this Agreement."

Asserting that the language of these agreements required the arbitration of plaintiffs' claims, defendants moved for summary judgment. The district court denied this motion in August 1997. ¹ It found that the language of the CBA antidiscrimination and arbitration clauses was not broad enough to require the arbitration of plaintiffs' claims under Title VII, section 1981, the ADEA, and the ADA. ² The district court certified this issue for interlocutory appeal, 28 U.S.C. § 1292(b), and we granted defendants' petition for permission to appeal.

II.

The public benefits of arbitration in the collective bargaining context are well known. Arbitration "reflects both our tradition of resolving private sector disputes without public sector interference and a desire to quickly and efficiently resolve labor grievances before they threaten economic progress on a broad front." Westvaco Corp. v. United Paperworkers Int'l Union, Local 1014, 1999 WL 164141, * 3 (4th Cir.1999). The private settlement of labor disputes through arbitration has been a "major factor in achieving industrial peace." United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).

While arbitration serves important public interests, an agreement to arbitrate--like any other contract--is fundamentally about private choice. "[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Id. at 582. Despite the public benefits of arbitration, the determination of what disputes are arbitrable is focused on the intent of the parties. See AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648-49, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) ("[A]rbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration."). Generally, the parties--not the courts--control which disputes will be arbitrated.

III.

The initial question presented in this case is who--a court or an arbitrator--determines whether each CBA requires the arbitration of plaintiffs' statutory discrimination claims. That is, did the parties agree to arbitrate the very issue of what claims are arbitrable?

Generally, "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see also Warrior & Gulf, 363 U.S. at 582-83. This presumption, however, does not apply to the issue of which claims are arbitrable. "[T]he general policy-based, federal presumption in favor of arbitration ... is not applied as a rule of contract interpretation to resolve questions of the arbitrability of arbitrability issues themselves." Virginia Carolina Tools, Inc. v. International Tool Supply, Inc., 984 F.2d 113, 117 (4th Cir.1993). Thus, "Courts should not assume that the parties agreed to arbitrate arbitrability." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995).

The Supreme Court has explained the reasons for this reverse presumption. It has stated that the "willingness of parties to enter into agreements that provide for arbitration of specified disputes would be drastically reduced ... if a labor arbitrator had the power to determine his own jurisdiction." AT & T Techs., 475 U.S. at 651 (internal quotation marks omitted). And, it has noted that a "party often might not focus upon that question or upon the significance of having arbitrators decide the scope of their own powers." First Options, 514 U.S. at 945.

Nevertheless, the parties can agree to let an arbitrator determine the scope of his own jurisdiction. Their agreement must, however, "clearly and unmistakably" provide that the arbitrator shall determine what disputes the parties agreed to arbitrate. AT & T Techs., 475 U.S. at 649; accord First Options, 514 U.S. at 944 ("Courts should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so." (internal quotation marks omitted)).

Defendants argue that the CBAs here clearly and unmistakably committed arbitrability to arbitration. They note that the CBAs provided for the arbitration of "any grievance or dispute aris[ing] between the parties regarding the terms of this Agreement" and any "controversy, dispute or disagreement ... concerning the interpretation of the provisions of this Agreement." Because the dispute over whether statutory discrimination claims are arbitrable requires an interpretation of the terms of the CBAs, defendants assert that the parties agreed to resolve this threshold dispute by arbitration. Thus, defendants claim that the parties agreed to arbitrate arbitrability.

We disagree. The "clear and unmistakable" test set forth by the Supreme Court requires more than simply...