Susan Rogers v. New York University 99-9172 99-9172 United States Court of Appeals for the Second Circuit SUSAN ROGERS, Plaintiff-Appellee, v. NEW YORK UNIVERSITY, Defendant-Appellant. On Appeal from the United States District Court for the Southern District of New York Brief of the Equal Employment Opportunity Commission as Amicus Curiae Supporting Plaintiff-Appellee C. GREGORY STEWART General Counsel PHILIP SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7816 Washington, DC 20507 (202) 663-4736 TABLE OF CONTENTS TABLE OF AUTHORITIES iii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 2 1. Nature of the Proceedings 2 2. Statement of Facts 3 3. The District Court Decision 4 SUMMARY OF ARGUMENT 5 ARGUMENT 6 I. A UNION CANNOT BY ENTERING A COLLECTIVE BARGAINING AGREEMENT WAIVE AN EMPLOYEE'S RIGHT TO PURSUE HER STATUTORY EMPLOYMENT DISCRIMINATION CLAIM IN A JUDICIAL FORUM. 6 II. THE DISTRICT COURT CORRECTLY RULED THAT THE COLLECTIVE BARGAINING AGREEMENT DOES NOT CONTAIN A "CLEAR AND UNMISTAKABLE" WAIVER OF ROGERS' STATUTORY RIGHTS. 13 CONCLUSION 20 CERTIFICATE OF COMPLIANCE WITH RULE 32 21 CERTIFICATE OF SERVICE 22 United States Court of Appeals for the Second Circuit No. 99-9172 SUSAN ROGERS, Plaintiff-Appellee, v. NEW YORK UNIVERSITY, Defendant-Appellant. On Appeal from the United States District Court for the Southern District of New York Brief of the Equal Employment Opportunity Commission as Amicus Curiae Supporting Plaintiff-Appellee STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the interpretation, administration and enforcement of Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and other federal laws prohibiting employment discrimination. Private actions play an important role in effectuating the purposes of these statutes. Cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974) (Title VII). In this case, the district court correctly rejected the employer's argument that the plaintiff was compelled to arbitrate her ADA claim by virtue of an arbitration clause in a collective bargaining agreement. If the employer's argument were accepted by this Court, many individuals could be unfairly deprived of their statutory right to judicial resolution of employment discrimination claims. The Commission therefore offers its views to the Court. STATEMENT OF THE ISSUES<1> 1. Whether the Supreme Court's holding in Alexander v. Gardner-Denver that a union in a collective bargaining agreement cannot waive an employee's right to pursue statutory claims of employment discrimination in a judicial forum controls this case. 2. Whether, assuming such waiver were possible, the collective bargaining agreement in this case contains a clear and unmistakable waiver of a covered employee's right to a judicial forum. STATEMENT OF THE CASE 1. Nature of the Proceedings This is an appeal from an order denying a motion by New York University ("NYU") to stay this action and compel arbitration of Susan Rogers' discrimination claims. Rogers filed suit in March 1998 alleging that NYU violated the ADA and the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., when it fired her after her medical leave expired. NYU moved to stay the action and compel arbitration pursuant to an arbitration clause in the collective bargaining agreement between the university and the union representing employees in Rogers' former job. Joint Appendix ("JA") 81-82. The district court denied the motion and this appeal followed. 2. Statement of Facts Rogers worked as an administrative assistant for NYU starting in January 1993 and continuing until she took medical leave in August 1997. JA 82. She was fired in November 1997, when her leave expired. JA 82. While employed at NYU, Rogers was covered by a collective bargaining agreement between the university and Local 3882 of the American Federation of Teachers. JA 81-82. The agreement contains a provision requiring arbitration of only those disputes "concerning the interpretation, application or claimed violation of a specific term or provision" of the agreement. JA 63, 65. The provision continues: "Disputes which do not involve the- interpretation, application, or claimed violation of a specific term or provision of this Agreement shall not be considered grievable." Id. at 63-64. The agreement also contains the following clause prohibiting discrimination: There shall be no discrimination as defined by applicable Federal, New York State, and New York City laws, against any present or future employee by reason of race, creed, color, religion, national origin, sex, sexual orientation, age, physical or mental disability, membership or nonmembership in the Union, by either the Employer or the Union. JA 39. 3. The District Court Decision The district court denied NYU's motion to compel arbitration. The court initially noted that this case is distinguishable from Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24-35 (1991), where the Supreme Court held that an individual arbitration agreement applied to a claim under the Age Discrimination in Employment Act of 1978 ("ADEA"). JA 87-89. Here NYU seeks to deprive Rogers of a judicial forum not on the basis of an agreement she signed, but on the basis of a collective bargaining agreement between the university and her union. JA 87-88. According to the court, "[b]ecause of the risk of conflict between employee and union interests, a union cannot consent to arbitration on behalf of an employee by signing a collective bargaining agreement that assigns the enforcement of statutory rights to the union-controlled grievance and arbitration procedure." JA 88 (citations omitted). In any event, the court concluded, the collective bargaining agreement at issue here does not contain a "clear and unmistakable" waiver of Rogers' right to a judicial forum for the resolution of her ADA claim. JA 89-92. Therefore, the court held, its enforcement would be inconsistent with the Supreme Court's decision in Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998), holding that a collective bargaining agreement will not be construed to waive an employee's "statutory right to a judicial forum for claims of employment discrimination" unless the waiver is "clear and unmistakable." Wright, 525 U.S. at 79-80; JA 89-92. SUMMARY OF ARGUMENT The district court's order should be affirmed. First, it does not matter if the instant collective bargaining agreement purports to waive the employees' statutory rights to a federal judicial forum, because unions lack the power to waive the employees' individual rights under the federal anti-discrimination statutes even if they wish to do so. The Supreme Court so held over 25 years ago in Gardner-Denver, and Gilmer did not overrule Gardner-Denver as it applies to waivers in collective bargaining agreements. (Interestingly, NYU does not even address this topic directly in its opening brief. Even if NYU were to prevail on its argument about the interpretation of the agreement, it still loses if Gardner-Denver is good law.) Second, the collective bargaining agreement in this case fails the Wright test: it does not contain a clear and unmistakable waiver of the employees' rights under the ADA to litigate their disability-discrimination claims in federal court. The agreement's grievance-and-arbitration article gives the arbitrator "jurisdiction only over . . . disputes concerning the interpretation, application or claimed violation of a specific term or provision of th[e] Agreement." JA 63, 65. The no-discrimination article gives the employees contractual rights against discrimination paralleling the statutory rights they already had before the agreement was signed. The agreement does not state clearly and unmistakably that the employees must submit their federal statutory claims to arbitration. ARGUMENT I. A UNION CANNOT BY ENTERING A COLLECTIVE BARGAINING AGREEMENT WAIVE AN EMPLOYEE'S RIGHT TO PURSUE HER STATUTORY EMPLOYMENT DISCRIMINATION CLAIM IN A JUDICIAL FORUM. NYU argues that Rogers is compelled to arbitrate her ADA claim by virtue of an arbitration clause in a collective bargaining agreement between the university and Local 3882 of the American Federation of Teachers. This argument is foreclosed by the Supreme Court's decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), which holds that an arbitration provision in a collective bargaining agreement does not preclude an individual employee from pursuing a judicial remedy under a federal anti-discrimination statute. 415 U.S. at 59-60. Contrary to the suggestion in NYU's brief (NYU Br. at 11-14), the holding in Gardner-Denver survives the Court's later decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), which held that an agreement signed by an employee to arbitrate claims arising out of his employment may be applied to a claim under the ADEA. This Court has twice rejected the argument that Gardner-Denver was implicitly overruled by Gilmer. See Tran v. Tran, 54 F.3d 115 (2d Cir. 1995); Bates v. Long Island Railroad Co., 997 F.2d 1028 (2d Cir. 1993).<2> The plaintiffs in Bates were railroad employees pursuing Rehabilitation Act claims against their former employer. The railroad urged this Court to apply Gilmer, and this Court rejected that argument in part because "Gilmer did not involve a collective bargaining agreement." 997 F.2d at 1034. Instead, this Court followed Gardner-Denver. Id. at 1034-35. Two years later, in Tran, this Court addressed whether an arbitration agreement in a collective bargaining agreement compelled arbitration of the plaintiff's claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., notwithstanding the Supreme Court's holding in Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 745 (1981), extending to FLSA claims the Gardner-Denver rule that unions cannot waive an employee's statutory rights under Title VII. The Tran court rejected the contention that Barrentine was no longer good law after Gilmer. The court noted that Gilmer, far from overruling Gardner-Denver and Barrentine, distinguished them on a number of grounds. Tran, 54 F.3d at 117-18; accord Brisentine v. Stone & Webster Eng'g Corp., 117 F.3d 519, 523 (11th Cir. 1997) ("[B]y explicitly distinguishing Alexander . . . the [Gilmer] Court clearly implied . . . that it was [not] overruling Alexander . . . . Distinguishing a prior precedent that is being overruled would make as much sense as pruning a plant that is being dug up and discarded."). The Tran court concluded that "[t]here is nothing in Gilmer which appears to throw anything but favorable light upon the continuing authority of Barrentine," and that Barrentine in fact had "renewed vitality under Gilmer." Id. at 117-18. This Court's conclusion that Gardner-Denver and Barrentine survive Gilmer is manifestly correct. As the Gilmer Court pointed out, the holdings in Gardner-Denver and Barrentine depended on three factors not relevant in Gilmer: "the difference between contractual rights under a collective-bargaining agreement and individual statutory rights, the potential disparity in interests between a union and an employee, and the limited authority and power of labor arbitrators." Gilmer, 500 U.S. at 35; Livadas v. Bradshaw, 512 U.S. 107, 127 n.21 (1994). First, the Gardner-Denver and Barrentine Courts stressed the "distinctly separate nature" of the employees' statutory rights, which derive from federal law, as opposed to their contractual rights, which originate in the collective bargaining agreement. Gardner-Denver, 415 U.S. at 49-50, 52-53; Barrentine, 450 U.S. at 734-38. The Court reaffirmed that distinction 15 months ago in Wright. 525 U.S. at 79 ("The cause of action Wright asserts arises not out of contract, but out of the ADA, and is distinct from any right conferred by the collective-bargaining agreement."). A significant related distinction between Gardner-Denver and Gilmer is the nature of the agreement that purportedly waives the employees' statutory rights. In Gilmer, the plaintiff had personally signed a form agreeing to submit various claims to arbitration; in Gardner-Denver and the instant case, the agreement allegedly waiving the employees' statutory rights was negotiated and signed not by the individual employee-plaintiff, but by the union. Gardner-Denver, Barrentine, and the instant case are all cases in which employees' statutory rights are potentially affected by a union-negotiated collective bargaining agreement, and should therefore be treated differently from cases arising out of individual contracts, such as Gilmer. See Wright, 525 U.S. at 80-81 ("Gilmer involved an individual's waiver of his own rights, rather than a union's waiver of the rights of represented employees . . . ."); Albertson's, Inc. v. United Food Workers Union, 157 F.3d 758, 762 (9th Cir. 1998) ("Gilmer . . . does not bear on the right of employees covered by a collective bargaining agreement . . . ."); Pryner v. Tractor Supply Co., 109 F.3d 354, 363 (7th Cir. 1997) (Posner, C.J.) ([a]rbitration "is not appropriate when it is not agreed to by the worker but instead is merely imposed by a collective bargaining agreement that he may have opposed," since "the union cannot consent for the employee by signing a collective bargaining agreement that consigns the enforcement of statutory rights to the union-controlled grievance and arbitration machinery created by the agreement"). Second, as is true in most collective bargaining agreements, the agreements in Gardner-Denver, Barrentine, and the instant case establish grievance-and-arbitration procedures in which the union and not the individual employee controls the process. Gardner-Denver, 415 U.S. at 58 n.19; Barrentine, 450 U.S. at 742; JA 65. The union decides whether to pursue the grievance beyond the first step, whether to demand arbitration, and how vigorously to pursue the employee's claim at each step. The union's decisions will obviously be - and should be - influenced by the union's assessment of the interests of the majority of employees in the bargaining unit. Gardner-Denver, 415 U.S. at 58 n.19; Barrentine, 450 U.S. at 742; see also Pryner, 109 F.3d at 362-63 (stressing the union's "broad discretion as to whether or not to prosecute a grievance" and "[t]he essential conflict . . . between majority and minority rights"). In contrast, the federal anti-discrimination statutes give the individual employee the right to control her claim and decide whether to sue. This contrast is a second important reason for treating cases governed by collective bargaining agreements differently from cases governed by an individual contract. Livadas, 512 U.S. at 127 n.21. Third, the arbitral fora to which Alexander's and Barrentine's claims would have been relegated are different from the arbitral forum to which Gilmer's claims were assigned. Even absent collective bargaining agreement clauses so providing - and most collective bargaining agreements have such clauses, as the instant one does - the normal expectation in labor arbitration is that the arbitrator's role is to interpret and apply the collective bargaining agreement and the law of the shop. Wright, 525 U.S. at 78-79 (the jurisdiction and authority of a labor arbitrator are presumed to be limited to interpreting and applying the contract, even if the collective bargaining agreement does not contain a clause to that effect); Gardner-Denver, 415 U.S. at 52-53 ("[T]he role of the arbitrator in the system of industrial self-government . . . is to effectuate the intent of the parties. His source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the 'industrial common law of the shop' . . . .); see also David E. Feller, Compulsory Arbitration of Statutory Discrimination Claims under a Collective Bargaining Agreement: the Odd Case of Caesar Wright, 16 Hofstra Lab. & Employment L.J. 53, 70 (1998) (explaining why the presumption favoring arbitrability should not apply in interpreting collective bargaining agreements, and predicting the result and the rationale in Wright); Martin H. Malin, Arbitrating Statutory Employment Claims in the Aftermath of Gilmer, 40 St. Louis. U. L.J. 77, 83-88 (1996) (stressing the distinction between grievance arbitration, designed to create and enforce a system of private law, and general arbitration, applying public law).<3> In sum, Gardner-Denver and Barrentine arose in a collective-bargaining context and turned on the inappropriateness of allowing unions to waive individual employees' rights to control their statutory claims and resolve them in a federal judicial forum. This Court's decisions in Bates and Tran, holding that Gardner-Denver and Barrentine survive Gilmer, govern the instant case and compel affirmance of the district court's decision denying NYU's motion to compel arbitration. II. THE DISTRICT COURT CORRECTLY RULED THAT THE COLLECTIVE BARGAINING AGREEMENT DOES NOT CONTAIN A "CLEAR AND UNMISTAKABLE" WAIVER OF ROGERS' STATUTORY RIGHTS. The district court correctly ruled that the collective bargaining agreement at issue in this case does not effectuate a "clear and unmistakable" waiver of Rogers' right to a judicial forum for her ADA claim within the meaning of Wright. The arbitration clause in the contract makes no mention of the ADA or any other statute. By its terms it requires the arbitration only of disputes "concerning the interpretation, application or claimed violation of a specific term or provision of this Agreement." JA 63-65. NYU argues, however, that this arbitration article requires the arbitration of Rogers' ADA claim because another provision of the agreement states that "[t]here shall be no discrimination as defined by applicable Federal . . . laws, against any present or future employee by reason of . . . disability . . . ." According to the university, this provision has the effect of incorporating the ADA into the agreement so that the arbitration clause applies to claims under the statute. NYU Br. at 16. The Commission submits that even if the collective bargaining agreement could be read, as NYU suggests, as a waiver of Rogers' right to bring her statutory claim in court, it is not a "clear and unmistakable" waiver. The Supreme Court explained in Wright that even where a collective bargaining agreement incorporates federal law, this merely "creat[es] a contractual right that is coextensive with the federal statutory right." 525 U.S. at 79. Accordingly, where an employer subject to such an agreement engages in a discriminatory act, that act gives rise to both a contractual and a statutory claim. The arbitration clause in this collective bargaining agreement requires arbitration of the contractual claim, but says nothing about the statutory claim. Even if one could infer that the parties intended to require arbitration of the statutory claim as well, thereby depriving employees of their statutory right to a judicial forum, the agreement does not constitute a "clear and unmistakable" waiver of that right. See Bratten v. SSI Servs., Inc., 185 F.3d 625, 631-32 (6th Cir. 1999) (finding no clear and unmistakable waiver in part because the arbitration provision in the collective bargaining agreement "does not mention statutory claims"); Carson v. Giant Food, Inc., 175 F.3d 325, 331 (4th Cir. 1999) ("Broad, general language [in the arbitration provision] is not sufficient to meet the level of clarity required to effect a waiver [of the employees' statutory rights] in a CBA."); Giles v. City of New York, 41 F. Supp. 2d 308, 311-12 (S.D.N.Y. 1999) (holding that the collective bargaining agreement's arbitration clause, which called for arbitration of disputes about interpretation of the agreement, as well as other matters, "does not bar the plaintiffs' FLSA complaint in federal court . . . because it does not explicitly cover claims of individual statutory rights"); Prince v. Coca-Cola Bottling Co., 37 F. Supp. 2d 289, 289, 292-93 (S.D.N.Y. 1999) (holding that since the collective bargaining agreement's arbitration provision "could be understood to pertain only to matters controlled by the contract," it did not constitute a clear and unmistakable waiver of the employees' federal forum rights). The university relies on Carson v. Giant Food, Inc., 175 F.3d 325 (4th Cir. 1999), to argue that the reference to federal law in the no-discrimination clause of its collective bargaining agreement is sufficient to create a clear and unmistakable waiver of statutory rights notwithstanding the failure of the arbitration clause to refer to statutory claims. NYU Br. at 15-16. However, insofar as Carson can be read to suggest that an unclear arbitration provision combined with an explicit incorporation elsewhere of the relevant federal law can constitute an effective waiver, it cannot be reconciled with Wright. As noted above, the Wright Court stated that incorporating federal laws into the collective bargaining agreement merely "creat[es] a contractual right that is coextensive with the federal statutory right." 525 U.S. at 79. Wright concluded that "requir[ing] the arbitrator to 'apply legal definitions derived from the ADA' . . . is not the same as making compliance with the ADA a contractual commitment that would be subject to the arbitration clause." Id. at 81.<4> Accordingly, no matter how clear the agreement may be about incorporating federal statutory standards into the contract, unless the agreement also expressly requires arbitration of statutory claims, it is subject to the interpretation that only contractual claims must be arbitrated. Therefore, it is not an unmistakable waiver of the right to pursue statutory claims in court. See Bratten, 185 F.3d at 631-32 ("[I]ncluding a provision in a collective bargaining agreement that prevents discrimination against employees under a federal statute 'is not the same as requiring union members to arbitrate such statutory claims.'"); Beason v. United Techs. Corp., 37 F. Supp. 2d 127, 131 (D. Conn. 1999) (same); Prince, 37 F. Supp. 2d at 293 (holding that a clause in a collective bargaining agreement committing the employer and the union to refrain from discrimination "as defined under New York Laws and Federal Laws" does not constitute a clear and unmistakable waiver of the employees' statutory rights). As NYU points out, the collective bargaining agreement in this case is governed in this circuit by the Federal Arbitration Act ("FAA"). See Maryland Casualty Co. v. Realty Advisory Bd. on Labor Relations, 107 F.3d 979, 982 (2d Cir. 1997) (stating that only collective bargaining agreements governing workers involved in the transportation industries are not covered); NYU Br. at 8-9 (citing cases). However, that fact should not change the outcome. Under the FAA, courts normally interpret contracts with the same presumption favoring arbitrability that courts have traditionally employed under § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Compare Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983) (FAA), with Wright, 525 U.S. at 77-78 (LMRA). In Wright, the Court held that the LMRA's presumption favoring arbitrability in construing an arbitration clause in a collective bargaining agreement should be limited to disputes involving "the application or interpretation of [the] collective bargaining agreement" itself, and should not be extended to disputes involving "the meaning of a federal statute." 525 U.S. at 78-79. There is no reason why a different rule should be applied in construing such an arbitration provision pursuant to the FAA's similar presumption in favor of arbitrability. The Court reasoned in Wright that the presumption should not be extended beyond disputes involving the interpretation of the collective bargaining agreement because a labor arbitrator has special expertise in interpreting and applying the collective bargaining agreement and the law of the shop, but does not have special expertise in interpreting and applying federal statutes. Wright, 525 U.S. at 78-79; see supra, pp. 11-12. This is no less true in the context of the FAA than it is under the LMRA. Accordingly, the district court properly held that when a court is construing a collective bargaining agreement governed by the FAA, the FAA presumption favoring arbitrability should be limited in precisely the same fashion as the LMRA presumption favoring arbitrability was limited in Wright. See JA 87 ("[B]ecause Rogers's claims arise under the ADA and the FMLA, the FAA's broad presumption of arbitrability is inapplicable."). The arbitration clause in NYU's collective bargaining agreement should be construed using the same principles applied in Wright. See Interstate Brands Corp. v. Bakery Drivers, 167 F.3d 764, 767 (2d Cir. 1999) (acknowledging the Wright rule that "[w]here a dispute 'ultimately concerns not the application or interpretation of any CBA, but the meaning of a federal statute,' the presumption [favoring arbitrability] does not apply"). Employing those principles, it is plain that this collective bargaining agreement does not clearly and unmistakably waive Rogers' ADA right to a federal judicial forum. CONCLUSION For the reasons stated above, this Court should affirm the district court's order denying NYU's motion to compel arbitration. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7816 Washington, DC 20507 (202) 663-4736 CERTIFICATE OF COMPLIANCE I certify that the main body of this amicus brief contains 4,201 words, and that it therefore complies with Fed. R. App. P. 32(a)(7)(B). Paul D. Ramshaw Attorney February 22, 2000 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were served by mailing them on this date first class, postage prepaid, to the following counsel of record: S. Andrew Schaffer, Esq. Terrance J. Nolan, Esq. 70 Washington Square South New York, NY 10012 James A. Brown, Esq. 30 Vesey Street, Sixth Floor New York, NY 10007 Paul D. Ramshaw Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7816 Washington, DC 20507 (202) 663-4737 June 25, 2001 TABLE OF AUTHORITIES FEDERAL CASES AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643 (1986) 12 Air Line Pilots Association v. Northwest Airlines, Inc., 199 F.3d 477 (D.C. Cir. 1999) 7 Albertson's, Inc. v. United Food Workers Union, 157 F.3d 758 (9th Cir. 1998) 7, 10 Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) passim Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir. 1996) 7 Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981) 8-11, 13 Bates v. Long Island Railroad Co., 997 F.2d 1028 (2d Cir. 1993) 7, 13 Beason v. United Technologies Corp., 37 F. Supp. 2d 127, (D. Conn. 1999) 17 Bratten v. SSI Services, Inc., 185 F.3d 625 (6th Cir. 1999) 7, 14, 17 Brisentine v. Stone & Webster Engineering Corp., 117 F.3d 519 (11th Cir. 1997) 7-8 Brown v. ABF Freight Systems, Inc., 183 F.3d 319 (4th Cir. 1999) 16 Carson v. Giant Food, Inc., 175 F.3d 325 (4th Cir. 1999) 15 Giles v. City of New York, 41 F. Supp. 2d 308 (S.D.N.Y. 1999) 15 Gilmer v. Interstate/Johnson Lane Corp., 4 500 U.S. 20 (1991) passim Harrison v. Eddy Potash, Inc., 112 F.3d 1437 (10th Cir. 1997), vacated on other grounds, 524 U.S. 947 (1998) 7 Interstate Brands Corp. v. Bakery Drivers, 167 F.3d 764 (2d Cir. 1999) 19 Livadas v. Bradshaw, 512 U.S. 107 (1994) 9, 11 Maryland Casualty Co. v. Realty Advisory Board on Labor Relations, 107 F.3d 979 (2d Cir. 1997) 17 Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983) 18 Prince v. Coca-Cola Bottling Co., 37 F. Supp. 2d 289 (S.D.N.Y. 1999) 15, 17 Pryner v. Tractor Supply Co., 109 F.3d 354 (7th Cir. 1997) 7, 10-11 Tran v. Tran, 54 F.3d 115 (2d Cir. 1995) 7-8, 13 United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960) 12 Varner v. National Super Markets, Inc., 94 F.3d 1209 (8th Cir. 1996) 7 Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998) passim FEDERAL STATUTES Americans with Disabilities Act of 1990 42 U.S.C. § 12101 et seq. passim Fair Labor Standards Act 29 U.S.C. § 201 et seq. 7, 8 Family and Medical Leave Act of 1993 29 U.S.C. § 2601 et seq. 2, 19 Labor Management Relations Act 29 U.S.C. § 185 12, 18-19 OTHER David E. Feller, Compulsory Arbitration of Statutory Discrimination Claims under a Collective Bargaining Agreement: the Odd Case of Caesar Wright, 16 Hofstra Lab. & Employment L.J. 53 (1998) 12 Martin H. Malin, Arbitrating Statutory Employment Claims in the Aftermath of Gilmer, 40 St. Louis U. L.J. 77 (1996) 12 1 The Commission expresses no views on the other issues in this case. 2 With the exception of the Fourth Circuit, every court of appeals to address the issue has reached the same conclusion. See, e.g., Air Line Pilots Ass'n v. Northwest Airlines, Inc., 199 F.3d 477, 484-85 (D.C. Cir. 1999); Bratten v. SSI Servs., Inc., 185 F.3d 625, 630 (6th Cir. 1999) (ADA); Albertson's, Inc. v. United Food Workers Union, 157 F.3d 758, 760-62 (9th Cir. 1998) (FLSA); Brisentine v. Stone & Webster Eng'g Corp., 117 F.3d 519, 522-25 (11th Cir. 1997) (ADA); Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1451-54 (10th Cir. 1997) (Title VII), vacated on other grounds, 524 U.S. 947 (1998); Pryner v. Tractor Supply Co., 109 F.3d 354, 364-65 (7th Cir. 1997) (ADA, Title VII, and ADEA); Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir. 1996) (Title VII); but see Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875, 880-86 (4th Cir. 1996). 3 Indeed, it was the superior expertise of labor arbitrators (compared to judges) in interpreting collective bargaining agreements and the law of the shop that led the Supreme Court to establish the presumption favoring arbitrability that courts employ when addressing labor agreements under the Labor Management Relations Act ("LMRA"). See United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960) ("[t]he labor arbitrator performs functions which are not normal to the courts; the considerations which help him fashion judgments may indeed be foreign to the competence of courts"); AT&T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 650 (1986) ("This presumption of arbitrability for labor disputes recognizes the greater institutional competence of arbitrators in interpreting collective-bargaining agreements . . . ."). 4 Moreover, the Fourth Circuit would probably not find a sufficient waiver in this agreement in any event. That court stated in Brown v. ABF Freight Systems, Inc., 183 F.3d 319, 322 (4th Cir. 1999): There is a significant difference, and we believe a legally dispositive one, between an agreement not to commit discriminatory acts that are prohibited by law and an agreement to incorporate, in toto, the antidiscrimination statutes that prohibit these acts. We believe that where a party seeks to base its claim of waiver . . . on a claim of "explicit incorporation" . . . of the relevant . . . statute . . . , a simple agreement not to engage in acts violative of that statute . . . will not suffice. The collective bargaining agreement in Brown explicitly covered "employees with a qualified disability under the [ADA]," but the court deemed this provision an insufficient incorporation of the ADA because it "merely adds disability, as defined by the ADA, to the list of grounds upon which the parties . . . have agreed not to discriminate." 183 F.3d at 323 (citing in support the passage in Wright just quoted in the text supra).