OCTOBER TERM, 1998 course of study WRIGHT v. UNIVERSAL MARITIME SERVICE CORP. ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 97-889. Argued October 7, 1998-Decided November 16, 1998 Petitioner Wright, a stevedore, was subject to a collective-bargaining agreement ( CBA ) and a Longshore Seniority Plan, both of which contained an arbitration article. When respondents refused to employ him following his village of a claim for permanent disability benefits for job-related injuries, Wright filed this suit, alleging discrimination in irreverence of the Americans with Disabilities Act of 1990 ( ADA ). The District Court dismissed the case without bias because Wright had failed to pursue the arbitration operation provided by the CBA. The Fourth Circuit affirmed. Held : The CBA ‘s general arbitration clause does not require Wright to use the arbitration procedure for alleged misdemeanor of the ADA. pp. 75-82. ( a ) The Fourth Circuit ‘s conclusions that the CBA arbitration article encompassed a statutory claim under the ADA and was enforceable bring into concenter the tension between two lines of this Court ‘s case law. Compare, e. g., Alexander v. Gardner-Denver Co., 415 U. S. 36, 49-51, with, e. g., Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 26. however, it is unnecessary to resolve the question of the robustness of a union-negotiated release of employees ‘ statutory rights to a federal forum, since it is apparent, on the facts and arguments presented here, that no such release has occurred. Pp. 75-77. ( boron ) Petitioner ‘s ADA claim is not subject to the presumption of arbitrability this Court has found in § 301 of the Labor Management Relations Act, 1947. That presumption does not extend beyond the achieve of the chief rationale that justifies it, i. e., that arbitrators are in a better position than courts to interpret the terms of a CBA. See, e. g., AT & T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 650. The dispute here ultimately concerns not the application or interpretation of any CBA, but the mean of a federal codified, the ADA. Although ordinary textual analysis of a CBA may show that matters beyond the interpretation and lotion of sign terms are subject to arbitration, they will not be presumed to be thus. pp. 77-79. ( carbon ) In order for a union to waive employees ‘ rights to a federal discriminative forum for statutory antidiscrimination claims, the agreement to arbitrate such claims must be clear and unmistakable. Cf., e. g., Metropoli-
71 tangent Edison Co. v. NLRB, 460 U. S. 693, 708. The CEA ‘s arbitration article is very cosmopolitan, providing only for arbitration of “ [ m ] atters under dispute, ” and the end of the shrink contains no explicit incorporation of statutory antidiscrimination requirements. For alike reasons, there is no clear and apparent release in the Longshore Seniority Plan. This Court does not reach the wonder whether such a release would be enforceable. Pp. 79-82. 121 F.3d 702, vacated and remanded. SCALIA, J., delivered the opinion for a solid Court. Ray P. McClain argued the lawsuit for petitioner. With him on the briefs were Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, and Charles Stephen Ralston. Deputy Solicitor General Underwood argued the causal agent for the United States et alabama. as amici curia urging reversal. With her on the brief were Solicitor General Waxman, Acting Assistant Attorney General Hodgkiss, James A. Feldman, C. Gregory Stewart, Philip B. Sklover, Lorraine C. Davis, and Robert J. Gregory. Charles A. Edwards argued the campaign and filed a brief for respondents. * *Eriefs of amici curia urging reversal were filed for the Commonwealth of Massachusetts et aluminum. by Scott Harshbarger, Attorney General of Massachusetts, Richard Wayne Cole and Catherine C. Ziehl, Assistant Attorneys General, Grant Woods, Attorney General of Arizona, Judy Drickey-Prohow, Assistant Attorney General, Darrell V. McGraw, Attorney General of West Virginia, Mary C. Buchmelter, Assistant Attorney General, and by the Attorneys General for their respective States as follows : Winston Bryant of Arkansas, Richard Blumenthal of Connecticut, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Dennis C. Vacco of New York, Hardy Myers of Oregon, William Sorrell of Vermont, and Mark L. Early of Virginia ; for the American Civil Liberties Union et aluminum. by Louis M. Bograd, David S. Schwartz, and Steven R. Shapiro ; for the american english Federation of Labor and Congress of Industrial Organizations et alabama. by Laurence Gold, Jonathan P. Hiatt, James B. Coppess, Marsha S. Berzon, Thomas W Gleason, Herzl S. Eisenstadt, James R. Watson, and Armand Derfner ; for the Lawyers ‘ Committee for Civil Rights under Law et alabama. by Paul W Mollica, Thomas R. Meites, Barbara R. Arnwine, Thomas
72 JUSTICE SCALIA delivered the opinion of the Court. This case presents the question whether a general arbitration article in a collective-bargaining agreement ( CBA ) requires an employee to use the arbitration operation for an alleged trespass of the Americans with Disabilities Act of 1990 ( ADA ), 104 Stat. 327, 42 U. S. C. § 12101 et seq. I In 1970, petitioner Ceasar Wright began working as a stevedore in Charleston, South Carolina. He was a member of local 1422 of the International Longshoremen ‘s Association, AFL-CIO ( Union ), which uses a hiring anteroom to supply workers to several stevedore companies represented by the South Carolina Stevedores Association ( SCSA ). Clause 15 ( B ) of the CBA between the Union and the SCSA provides in separate as follows : “ Matters under challenge which can not be promptly settled between the Local and an individual Employer shall, no late than 48 hours after such discussion, be referred in writing covering the integral grievance to a Port Grievance Committee …. “ App.43a. If the Port Grievance Committee, which is evenly divided between representatives of labor and management, can not reach an J. Henderson, Richard T. Seymour, Teresa A. Ferrante, Cathy VentrellMonsees, and Sally Dunaway ; for the National Academy of Arbitrators by David E. Feller ; and for the National Employment Lawyers Association et alabama. by Cliff Palefsky and Paula A. Brantner. Briefs of amici curia urging affirmance were filed for the peer Employment Advisory Council et aluminum. by Robert E. Williams, Ann Elizabeth Reesman, and Daniel V. Yager ; for the National Association of Manufacturers by Clifford M. Sloan, Samuel D. Walker, Jan S. Amundson, and Quentin Riegel ; and for the National Association of Waterfront Employers by Charles T. Carroll, Jr., and F. Edwin Froelich. Briefs of amici curiae were filed for the Chamber of Commerce of the United States by Steven B. Berlin, Mark A. de Bernardo, Garry G. Mathiason, Stephen A. Bokat, Robin S. Conrad, and Sussan Mahallati Kysela ; and for the Securities Industry Association by Michael Delikat, Gary Siniscalco, Lisa K. McClelland, and Stuart J. Kaswell .
73 agreement within five days of receiving the complaint, then the quarrel must be referred to a District Grievance Committee, which is besides evenly divided between the two sides. The CBA provides that a majority decision of the District Grievance Committee “ shall be concluding and bind. ” Id., at 44a. If the District Grievance Committee can not reach a majority decision within 72 hours after merging, then the committee must employ a master arbiter. clause 15 ( F ) of the CBA provides as follows :
” The Union agrees that this Agreement is intended to cover all matters affecting wages, hours, and other terms and conditions of employment and that during the term of this Agreement the Employers will not be required to negotiate on any far matters affecting these or other subjects not specifically set forth in this Agreement. Anything not contained in this Agreement shall not be construed as being part of this Agreement. All past port practices being observed may be reduced to writing in each port. ” Id., at 45a-46a .
last, Clause 17 of the CBA states : “ It is the intention and determination of all parties hereto that no provision or part of this Agreement shall be violative of any Federal or State Law. ” Id., at 47a. Wright was besides topic to the Longshore Seniority Plan, which contained its own grievance provision, take as follows : “ Any dispute refer or arising out of the terms and/or conditions of this Agreement, or challenge involving the rendition or application of this Agreement, or dispute arising out of any dominion adopted for its execution, shall be referred to the Seniority Board. ” Id., at 48a. The Seniority Board is evenly divided between undertaking and management representatives. If the dining table reaches agreement by majority vote, then that determination is final and bind. If the board can not resolve the dispute, then the Union and
74 the SCSA each choose a person, and this “ Committee of two ” makes a final determination. On February 18, 1992, while Wright was working for respondent Stevens Shipping and Terminal Company ( Stevens ), he injured his right heel and his back. He sought compensation from Stevens for permanent disability under the Longshore and Harbor Workers ‘ Compensation Act, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq., and ultimately settled the claim for $ 250,000 and $ 10,000 in lawyer ‘s fees. Wright was besides awarded Social Security disability benefits. In January 1995, Wright returned to the Union hiring hall and asked to be referred for shape. ( At some point he obtained a written note from his doctor of the church approving such activeness. ) Between January 2 and January 11, Wright worked for four stevedoring companies, none of which complained about his performance. When, however, the stevedoring companies realized that Wright had previously settled a claim for permanent wave disability, they informed the Union that they would not accept Wright for employment, because a person certified as permanently disabled ( which they regarded Wright to be ) is not qualified to perform longshore oeuvre under the CBA. The Union responded that the employers had misconstrued the CBA, suggested that the ADA entitled Wright to return to work if he could perform his duties, and asserted that refusing Wright use would constitute a “ lock-out ” in misdemeanor of the CBA. When Wright found out that the stevedoring companies would nobelium long accept him for use, he contacted the Union to ask how he could get back to ferment. Wright claims that rather of suggesting the filing of a grudge, the Union told him to obtain rede and file a title under the ADA. Wright hired an lawyer and finally filed charges of discrimination with the equal Employment Opportunity Commission ( EEOC ) and the South Carolina State Human Affairs Commission, alleging that the stevedoring
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companies and the SCSA had violated the ADA by refusing him work. In October 1995, Wright received a right-to-sue letter from the EEOC. In January 1996, Wright filed a complaint against the SCSA and six individual stevedoring companies in the United States District Court for the District of South Carolina. Respondents ‘ answer asserted versatile affirmative defenses, including Wright ‘s failure to exhaust his remedies under the CBA and the Seniority Plan. After discovery, respondents moved for drumhead judgment and Wright moved for overtone compendious judgment with esteem to some of respondents ‘ defenses. A Magistrate Judge recommended that the District Court dismiss the case without prejudice because Wright had failed to pursue the grievance operation provided by the CBA. The District Court adopted the report and recommendation and subsequently rejected Wright ‘s gesticulate for reconsideration. The United States Court of Appeals for the Fourth Circuit affirmed, see No. 96-2850 ( July 29, 1997 ), judgt. order reported at 121 F.3d 702, relying upon its earlier decision in Austin v. OwensBrockway Glass Container, Inc., 78 F.3d 875, cert. denied, 519 U. S. 980 ( 1996 ), which in sour had relied upon our decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 ( 1991 ). We granted certiorari, 522 U. S. 1146 ( 1998 ). two In this case, the Fourth Circuit concluded that the general arbitration provision in the CBA governing Wright ‘s employment was sufficiently broad to encompass a statutory claim arising under the ADA, and that such a provision was enforceable. The latter ending brings into wonder two lines of our case police. The first is represented by Alexander v. Gardner-Denver Co., 415 U. S. 36 ( 1974 ), which held that an employee does not forfeit his justly to a discriminative forum for claim discriminatory free in irreverence of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42
76 u. S. C. § 2000e et seq., if “ he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement. ” 415 U. S., at 49. In rejecting the argument that the doctrine of election of remedies barred the Title VII lawsuit, we reasoned that a grudge is designed to vindicate a “ contractual veracious ” under a CBA, while a lawsuit under Title VII asserts “ mugwump statutory rights accorded by Congress. ” Id., at 49-50. The statutory cause of action was not waived by the union ‘s agreement to the arbitration provision of the CBA, since “ there can be no prospective release of an employee ‘s rights under Title VII. ” Id., at 51. We have followed the holding of Gardner-Denver in deciding the consequence of CBA arbitration upon employee claims under other statutes. See McDonald v. West Branch, 466 U. S. 284 ( 1984 ) ( title under Rev. Stat. § 1979, 42 U. S. C. § 1983 ) ; Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728 ( 1981 ) ( claim under Fair Labor Standards Act of 1938, 29 U. S. C. § 201 et seq. ). The second lineage of cases implicated here is represented by Gilmer v. Interstate/Johnson Lane Corp., above, which held that a title brought under the Age Discrimination in Employment Act of 1967 ( ADEA ), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., could be subject to compulsory arbitration pursuant to an arbitration provision in a securities registration form. Relying upon the federal policy favoring arbitration embodied in the Federal Arbitration Act ( FAA ), 9 U. S. C. § 1 et seq., we said that “ statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA. ” 500 U. S., at 26 ( citing Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 ( 1989 ) ; Shearson/American Express Inc. v. McMahon, 482 U. S. 220 ( 1987 ) ; Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U. S. 614 ( 1985 ) ). There is obviously some tension between these two lines of cases. Whereas Gardner-Denver stated that “ an employee ‘s
77 rights under Title VII are not susceptible of prospective release, ” 415 U. S., at 51-52, Gilmer held that the right to a union judicial forum for an ADEA title could be waived. Petitioner and the United States as amicus would have us reconcile the lines of authority by maintaining that federal forum rights can not be waived in union-negotiated CBAs even if they can be waived in individually executed contracts-a eminence that assuredly finds accompaniment in the text of Gilmer, see 500 U. S., at 26, 35. Respondents and their amici, on the other handwriting, contend that the real number difference between Gardner-Denver and Gilmer is the revolutionary change, over two decades, in the Court ‘s receptiveness to arbitration, leading Gilmer to affirm that “ questions of arbitrability must be addressed with a healthy respect for the federal policy favoring arbitration, ” 500 U. S., at 26 ( home quotation marks and citation omitted ) ; Gilmer, they argue, has sufficiently undermined Gardner-Denver that a union can waive employees ‘ rights to a judicial forum. Although, as will appear, we find Gardner-Denver and Gilmer relevant for diverse purposes to the shell before us, we find it unnecessary to resolve the interview of the robustness of a union-negotiated release, since it is apparent to us, on the facts and arguments presented hera, that no such release has occurred. three In asserting the universe of an agreement to arbitrate the ADA claim, respondents rely upon the presumption of arbitrability this Court has found in § 301 of the Labor Management Relations Act, 1947 ( LMRA ), 61 Stat. 156, 29 U. S. C. § 185.1 See broadly Steelworkers v. Enterprise 1 We have besides discerned a presumption of arbitrability under the FAA, 9 U. S. C. § 1 et seq. See Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U. S. 614, 626 ( 1985 ). Petitioner argued that the FAA
78 Wheel & Car Corp., 363 U. S. 593 ( 1960 ) ; Steelworkers v. american Mfg. Co., 363 U. S. 564 ( 1960 ) ; Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574 ( 1960 ). In collectivebargaining agreements, we have said, “ there is a presumption of arbitrability in the sense that ‘ [ a ] newton ordering to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration article is not susceptible of an interpretation that covers the asserted dispute. ‘ ” AT & T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 650 ( 1986 ) ( quoting Warrior & Gulf, above, at 582-583 ). That presumption, however, does not extend beyond the range of the principal rationale that justifies it, which is that arbitrators are in a better position than courts to interpret the terms of a CBA. See AT & T Technologies, above, at 650 ; Warrior & Gulf, above, at 581-582. This rationale finds support in the very textbook of the LMRA, which announces that “ [ f ] inal alteration by a method acting agreed upon by the parties is declared to be the desirable method for village of grievance disputes arising over the lotion or interpretation of an existing collective-bargaining agreement. ” 29 U. S. C. § 173 ( d ) ( vehemence added ). The quarrel in the award casing, however, ultimately concerns not the application or does not apply to this encase, see brief for Petitioner 43-44, and asserted that respondents “ have not argued at any stage of this case that the F. A. A. applies, ” id., at 43. Respondents did not dispute the latter affirmation, nor did they argue the applicability of the FAA before us ; rather, they contended that it makes no difference whether the FAA applies, since the FAA presumption and the LMRA presumption are the lapp, see brief for Respondents 12 ; Tr. of Oral Arg. 42-43. finally, the Fourth Circuit, while it cited an FAA case, Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24-25 ( 1983 ), did not explicitly trust upon the FAA-presumably because it has held elsewhere that the FAA does not apply to CBAs, see Austin v. Owens-Brockway Glass Container, Inc., 78 F. 3d 875, 879 ( CA4 ), cert. denied, 519 U. S. 980 ( 1996 ). In these circumstances, we decline to consider the applicability of the FAA to the show case .
79 rendition of any CBA, but the mean of a federal codified. 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. See Gilmer, above, at 34 ; Barrentine, 450 U. S., at 737 ; GardnerDenver, above, at 49-50. To be certain, respondents argue that Wright is not qualified for his position as the CBA requires, but even if that were true he would still prevail if the refusal to hire violated the ADA. Nor is the statutory ( as opposed to contractual ) focus of the call altered by the fact that Clause 17 of the CBA recites it to be “ the intention and purpose of all parties hereto that no provision or depart of this Agreement shall be violative of any Federal or State Law. ” App. 47a. As we discuss below in Part IV ; this does not incorporate the ADA by reference book. evening if it did so, however-thereby creating a contractual right that is coextensive with the federal statutory right-the ultimate question for the arbiter would be not what the parties have agreed to, but what federal law requires ; and that is not a question which should be presumed to be included within the arbitration requirement. application of that principle is unaffected by the fact that the CBA in this encase, unlike the one in Gardner-Denver, does not expressly limit the arbiter to interpret and applying the contract. The presumption merely extends that far, whether or not the textbook of the agreement is similarly specify. It may well be that ordinary textual analysis of a CBA will show that matters which go beyond the interpretation and lotion of contract terms are subject to arbitration ; but they will not be presumed to be so. four not only is suer ‘s statutory claim not capable to a presumption of arbitrability ; we think any CBA prerequisite to arbitrate it must be particularly clear. In Metropolitan Edison Co. v. NLRB, 460 U. S. 693 ( 1983 ), we stated that a
80 union could waive its officers ‘ statutory justly under § 8 ( a ) ( 3 ) of the National Labor Relations Act, 29 U. s. C. § 158 ( a ) ( 3 ), to be free of antiunion discrimination, but we held that such a release must be clear and apparent. “ [ W ] vitamin e will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertake is ‘explicitly stated. ‘ More succinctly, the release must be clear and apparent. ” 460 U. S., at 708 ; learn besides Livadas v. Bradshaw, 512 U. S. 107, 125 ( 1994 ) ( obiter dictum ) ; Lingle v. Norge Div. of Magic Chef, Inc., 486 U. S. 399, 409, n. 9 ( 1988 ) ( obiter dictum ) ; californium. Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 283 ( 1956 ). We think the lapp standard applicable to a unionnegotiated release of employees ‘ statutory proper to a judicial forum for claims of employment discrimination. Although that is not a substantive right, see Gilmer, 500 U. S., at 26, and whether or not Gardner-Denver ‘s apparently absolute prohibition of marriage release of employees ‘ federal forum rights survives Gilmer, Gardner-Denver at least stands for the suggestion that the right to a federal discriminative forum is of sufficient importance to be protected against less-thanexplicit union release in a CBA. The CBA in this case does not meet that standard. Its arbitration article is very general, providing for arbitration of “ [ thousand ] atters under quarrel, ” App. 43a-which could be understood to mean matters in challenge under the shrink. And the remainder of the sign contains no explicit incorporation of statutory antidiscrimination requirements. ( indeed, it does not even contain, as did the CBAs in Austin and Gardner-Denver, its own specific antidiscrimination provision. ) The Fourth Circuit relied upon the fact that the equivalently broad arbitration article in Gilmer-applying to “ any challenge, claim or controversy ” -was held to embrace union statutory claims. But Gilmer involved an individual ‘s release of his own rights, quite than a union ‘s release of the rights of represented em-
81 ployees-and therefore the “ clear and apparent ” standard was not applicable. Respondents rely upon Clause 15 ( F ) of the CBA, which states that “ this Agreement is intended to cover all matters affecting wages, hours, and other terms and conditions of employment. ” App. 45a-46a. But even if this could, in isolation, be considered a authorize and unmistakable internalization of employment-discrimination laws ( which is doubtful ), it is surely deprived of that consequence by the planning, late in the like paragraph, that “ [ a ] nything not contained in this Agreement shall not be construed as being part of this Agreement. ” Id., at 46a. Respondents besides rely upon Clause 17 of the CBA, which states that “ [ one ] metric ton is the purpose and function of all parties hereto that no provision or part of this Agreement shall be violative of any Federal or State Law. ” Id., at 47a. They argue that this requires the arbiter to “ apply legal definitions derived from the ADA ” in determining whether Wright is “ certified ” for employment within the meaning of the CBA. Brief for Respondents 39. possibly then, but that is not the lapp as making submission with the ADA a contractual commitment that would be subject to the arbitration article. This becomes crystal clear when one contrasts Clause 17 with the planning of the CBA which states that “ [ triiodothyronine ] he requirements of the Occupations [ sic ] Safety and Health Administration shall be binding on both Parties. ” App. 46a. ( Under respondents ‘ interpretation of Clause 17, this OSHA planning would be excess. ) clause 17 seems to us nothing more than a course session of the canon of structure which would in any event have been applied to the CBA-that an agreement should be interpreted in such manner as to preserve, preferably than destroy, its validity ( do res magis valeat quam pereat ). finally, we do not find a clear and apparent release in the Longshore Seniority Plan. Like the CBA itself, the plan contains no antidiscrimination provision ; and it specifi-
82 cally limits its grudge procedure to disputes related to the agreement.2 *** We hold that the collective-bargaining agreement in this case does not contain a clear and unmistakable release of the cover employees ‘ rights to a judicial forum for federal claims of use discrimination. We do not reach the question whether such a release would be enforceable. The sagacity of the Fourth Circuit is vacated, and the case is remanded for foster proceedings consistent with this opinion. It is so rate. 2 Respondents and some of their amici trust upon the provision in the ADA which states that “ [ watt ] here appropriate and to the extent authorized by law, the manipulation of alternate means of dispute settlement, including … arbitration, is encouraged to resolve disputes arising under this chapter. ” 42 U. S. C. § 12212. They rely upon it chiefly in connection with the question whether, under Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 ( 1991 ), a pre quarrel agreement in a CBA to arbitrate employment-discrimination claims is enforceable-a question we do not reach. Our conclusion that a union release of employee rights to a federal judicial forum for employment-discrimination claims must be absolved and unmistakable means that, absent a clear release, it is not “ appropriate, ” within the entail of this provision of the ADA, to find an agreement to arbitrate. We take no position, however, on the effect of this provision in cases where a CBA clearly encompasses employment-discrimination claims, or in areas outside collective bargain .