PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EASTERN ASSOCIATED COAL 

CORPORATION,

Plaintiff-Appellee,

v.

GARY D. MASSEY,

 No. 03-1991 Defendant-Appellant.

UNITED MINE WORKERS OF AMERICA,

Amicus Curiae supporting

Appellant. 

EASTERN ASSOCIATED COAL 

CORPORATION,

Plaintiff-Appellant,

v.

GARY D. MASSEY,

 No. 03-2012 Defendant-Appellee.

UNITED MINE WORKERS OF AMERICA,

Amicus Curiae supporting

Appellee. 

Appeals from the United States District Court

for the Southern District of West Virginia, at Charleston.

Joseph Robert Goodwin, District Judge.

(CA-03-309)

Argued: May 7, 2004

Decided: July 2, 2004
Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Judge Luttig and

Judge Shedd joined. 

COUNSEL

ARGUED: Roger Daniel Forman, FORMAN & HUBER, L.C.,

Charleston, West Virginia, for Appellant/Cross-appellee Gary D.

Massey. Charles David Morrison, STEPTOE & JOHNSON, Clarksburg, West Virginia, for Appellee/Cross-appellant Eastern Associated

Coal Corporation. ON BRIEF: Rodney L. Bean, Jill O. Florio,

STEPTOE & JOHNSON, Clarksburg, West Virginia, for

Appellee/Cross-appellant Eastern Associated Coal Corporation. Bradley J. Pyles, CRANDALL, PYLES, HAVILAND & TURNER,

Logan, West Virginia, for Amicus Curiae United Mine Workers of

America.

OPINION

WILKINSON, Circuit Judge: 

Appellant Gary D. Massey filed a complaint in West Virginia state

court against his employer, appellee Eastern Associated Coal Corporation, after Eastern terminated him in April 2001. Massey alleged

workers’ compensation discrimination in violation of the West Virginia Workers’ Compensation Act, see W. Va. Code §§ 23-5A-1 and

23-4-9 (2002), and disability discrimination in violation of the West

Virginia Human Rights Act, see id. § 5-11-9(1) ("WVHRA"). Eastern

in turn brought suit in federal court, arguing that the collective bargaining agreement ("CBA") that governed Massey’s employment —

the National Bituminous Coal Wage Agreement (the "Wage Agreement") — required him to arbitrate both state law claims. The district

court ruled that the Wage Agreement compelled Massey to arbitrate

2 EASTERN ASSOCIATED COAL v. MASSEY
his workers’ compensation discrimination claims, but that it did not

waive his right to sue Eastern for violating the WVHRA. Because we

find no clear and unmistakable waiver in the Wage Agreement of

Massey’s right to bring either statutory claim against Eastern in a

judicial forum, we affirm in part and reverse in part. See Wright v.

Universal Maritime Serv. Corp., 525 U.S. 70, 80 (1998).

I.

Massey worked as an electrician in a coal mine operated by Eastern

in Boone County, West Virginia. In January 2000, Massey was

injured while on the job, and he subsequently applied for and received

workers’ compensation benefits, including vocational rehabilitation

benefits. On April 18, 2001, however, Eastern discharged Massey on

the ground that his physical condition prevented him from working

his job at the mine. 

Massey filed suit against Eastern in the Circuit Court of Boone

County, West Virginia in January 2003. He claimed that he was discharged on account of his receipt of workers’ compensation benefits,

including rehabilitation benefits, constituting workers’ compensation

discrimination and related violations under the West Virginia Workers’ Compensation Act. See W. Va. Code §§ 23-5A-1 and 23-4-9.

Massey further alleged that Eastern discriminated against him on

account of his handicap, constituting disability discrimination under

the WVHRA. See id. § 5-11-9(1). 

In response, Eastern brought suit in federal court pursuant to § 301

of the Labor Management Relations Act, 29 U.S.C. § 185 (2000), and

the Federal Arbitration Act, 9 U.S.C. § 2 (2000), seeking to compel

Massey to arbitrate his pending state law claims. As a member of the

United Mine Workers of America ("UMWA"), Massey’s employment

with Eastern was governed by the Wage Agreement. Eastern asserted

that the Wage Agreement precluded Massey from litigating his claims

in a judicial forum, and instead committed them to arbitration. 

The Wage Agreement establishes a grievance process for resolving

disputes between Eastern and the UMWA or its members. In Article

XXIII(c), the Wage Agreement provides that "disputes arising under

this Agreement shall be resolved" by following three preliminary

EASTERN ASSOCIATED COAL v. MASSEY 3
steps involving just the employee, the UMWA, and Eastern. Then, "in

cases where the [UMWA’s] district representative and the representative of [Eastern] fail to reach agreement, the matter shall . . . be

referred to the appropriate district arbitrator who shall decide the case

without delay." Furthermore, Article XXVII states in relevant part

that "all disputes and claims which are not settled by agreement shall

be settled by" the grievance process in Article XXIII, and that "the

purpose of this provision [is] to provide for the settlement of all such

disputes and claims through the machinery in this contract . . . without

recourse to the courts." 

The Wage Agreement also includes two substantive provisions that

are relevant to the arbitrability of Massey’s claims. First, Article III(l)

is pertinent to Massey’s workers’ compensation discrimination

claims:

Each employer who is a party to this Agreement will provide the protection and coverage of the benefits under workers’ compensation and occupational disease laws, whether

compulsory or elective, existing in the states in which the

respective Employees are employed. Refusal of any

Employer to carry out this directive shall be deemed a violation of this Agreement.

Moreover, a non-discrimination provision in Article XXV is relevant

for considering the arbitrability of Massey’s WVHRA claims:

Neither the Employer nor the Union shall discriminate

against any Employee or with regard to the terms or availability of classified employment on the basis of race, creed,

national origin, sex, age, political activity, whether intraUnion or otherwise. In addition, the Employer and Union

agree that they will adhere to applicable provisions of the

Vietnam Era Readjustment Assistance Act of 1974, the

Rehabilitation Act of 1973, and the Americans With Disabilities Act.

Asserting that these clauses waived Massey’s right to litigate his

state law claims, Eastern filed a motion to compel arbitration and to

enjoin Massey from prosecuting his causes of action in state court.

4 EASTERN ASSOCIATED COAL v. MASSEY
For his part, Massey filed a motion to dismiss Eastern’s federal lawsuit. 

The district court was persuaded that Massey was required by the

Wage Agreement to arbitrate his claims under the West Virginia

Workers’ Compensation Act. It therefore enjoined Massey from pursuing these claims further in state court and ordered him to submit

them to the Wage Agreement’s grievance process. See also Pine

Ridge Coal Co. v. Loftis, 271 F. Supp. 2d 905, 909 (S.D. W. Va.

2003) (reaching the same conclusion when interpreting the Wage

Agreement in a lawsuit brought by another union employee under the

same West Virginia anti-discrimination provision). However, the district court held that the Wage Agreement did not prevent Massey

from bringing his WVHRA claim in state court, and it therefore dismissed Eastern’s complaint as it related to that count. Both parties

appeal the district court’s judgment, and the UMWA filed an amicus

brief supporting Massey’s position in the case.1

II.

We have consistently held that a union-negotiated CBA may waive

an employee’s statutory right to litigate his employment discrimination claims in a judicial forum. See, e.g., Safrit v. Cone Mills Corp.,

248 F.3d 306, 308 (4th Cir. 2001). However, the Supreme Court made

clear in Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 80

(1998), that any such waiver must be "clear and unmistakable." While

a presumption in favor of arbitration normally governs the interpretation of arbitration clauses in CBAs, this presumption is inapplicable

in the context of statutory discrimination claims. Id. at 77-79. Waivers

of statutory claims in CBAs are subject to a stricter standard, because

the right to a judicial forum is so important that it must "be protected

against less-than-explicit union waiver." Id. at 80. Thus, "in the collective bargaining context, the parties ‘must be particularly clear’

about their intent to arbitrate statutory discrimination claims." Carson

1The district court also rejected Massey’s contention that it should

abstain from considering Eastern’s federal lawsuit in light of Massey’s

ongoing state proceedings and the ongoing state litigation of another former employee against Eastern. We find no error on this point. 

EASTERN ASSOCIATED COAL v. MASSEY 5
v. Giant Food, Inc., 175 F.3d 325, 331 (4th Cir. 1999) (quoting Universal Maritime, 525 U.S. at 79). 

In Carson, we outlined two ways in which a waiver in a CBA can

meet the clear and unmistakable standard from Universal Maritime.

See id. at 331-32. First, parties can include in a CBA an "explicit arbitration clause," which is a self-contained, "clear and unmistakable

provision under which the employees agree to submit to arbitration all

[statutory discrimination claims] arising out of their employment." Id.

at 331. Second, in cases where the arbitration clause is not as specific

and instead refers broadly to "all disputes" or "all disputes under this

agreement," a CBA may meet the clear and unmistakable requirement

by explicitly incorporating the statutory anti-discrimination requirements elsewhere in the contract. Id. at 332. Where such a separate

provision "makes it unmistakably clear that the discrimination statutes

at issue are part of the agreement," we have said that a general arbitration clause would be sufficient to satisfy the strictures of Universal

Maritime. Id.

While it is thus possible to meet the clear and unmistakable waiver

standard of Universal Maritime, it is not easy. In Carson, the arbitration clauses provided generally for arbitration of any disputes regarding the meaning of the CBAs. See 175 F.3d at 328, 332. While the

various CBAs contained contractual anti-discrimination clauses, none

of them specifically incorporated any anti-discrimination statutes. See

id. at 327-28, 332. Likewise in Brown v. ABF Freight Sys., Inc., 183

F.3d 319, 320 (4th Cir. 1999), the arbitration clause simply referred

to "all grievances or questions of interpretation arising under this . . .

Agreement." And although the CBA had a fairly elaborate contractual

anti-discrimination provision (it parroted in part the language of federal statutes, it stated that the parties would not "engage in any other

discriminatory acts prohibited by law," and it specified that it protected employees who qualify as disabled under the Americans with

Disabilities Act), this clause also failed to specifically incorporate any

anti-discrimination statutes into the CBA. Id. at 322-23. In both cases,

we held that the CBAs fell short of meeting the clear and unmistakable standard. See Carson, 175 F.3d at 332; Brown, 183 F.3d at 323.

As we observed in Carson, "broad, general language is not sufficient

to meet the level of clarity required to effect a waiver in a CBA." 175

F.3d at 331. 

6 EASTERN ASSOCIATED COAL v. MASSEY
In Safrit, we did find that a CBA met the requisite level of clarity

for waiving an employee’s right to litigate her Title VII discrimination claim. See 248 F.3d at 308. But there, the CBA contained an

explicit, self-contained arbitration clause for Title VII claims, declaring that the parties agreed to "abide by all the requirements of Title

VII" and, in the same section, that "unresolved grievances arising

under this Section are the proper subjects for arbitration." Id. Simply

put, we have required explicit, unambiguous language to satisfy the

standard laid out in Universal Maritime. 

III.

It is within this framework that we consider whether Massey was

compelled by the Wage Agreement to arbitrate his statutory claims.

Eastern makes no claim that the Wage Agreement contains an explicit

arbitration clause that would satisfy the first approach in Carson.

Article XXIII(c) simply provides that "disputes arising under this

Agreement shall," after three steps involving the employer, the

employee, and the union, be submitted to an arbitrator. And Article

XXVII only directs that "all disputes and claims which are not settled

by agreement" shall be resolved through arbitration. Thus Eastern

cannot rest on an explicit arbitration clause in seeking to satisfy the

Universal Maritime standard. 

Nonetheless, the district court found (and Massey concedes) that

Articles XXIII(c) and XXVII are sufficient to constitute a general

arbitration clause. The court then held that Article III(l) of the Wage

Agreement explicitly incorporates the West Virginia Workers’ Compensation Act, thus constituting a clear and unmistakable waiver of

Massey’s workers’ compensation discrimination claims under the second approach outlined in Carson. As for Massey’s WVHRA claim,

the district court ruled that there is no explicit incorporation of the

statute in Article XXV of the Wage Agreement, and consequently that

Massey could pursue his WVHRA claim in state court. We consider

each ruling in turn. 

A.

First, Massey argues that the district court erred in ruling that his

workers’ compensation discrimination claims must be arbitrated

EASTERN ASSOCIATED COAL v. MASSEY 7
under the Wage Agreement. As noted above, Article III(l) directs that

every "employer who is a party to this Agreement will provide the

protection and coverage of the benefits under workers’ compensation

. . . laws, whether compulsory or elective, existing in the states in

which" covered employees are employed. And it further declares that

an employer’s failure "to carry out this directive shall be deemed a

violation of this Agreement." According to the district court, this Article makes clear that Eastern’s failure to comply with state workers’

compensation laws results in a breach of the Wage Agreement. Thus,

the court concluded, the West Virginia Workers’ Compensation Act

is fully incorporated into the Wage Agreement, and Eastern’s alleged

failure to comply with the anti-discrimination provisions in that Act

could only be resolved through the grievance process. 

It is true that one could reasonably construe Article III(l), as the

district court did, to incorporate into the Wage Agreement the antidiscrimination provision of the West Virginia Workers’ Compensation Act. Article III(l) could be read to mean that Eastern is required

to give Massey all of the "protection[s] . . . under workers’ compensation . . . laws" in West Virginia, which would include the Act’s "protection" against discrimination in the receipt of benefits. Under this

construction, Massey would indeed be compelled to arbitrate his

claims predicated on the Act’s anti-discrimination provision. 

Yet the UMWA advances another plausible reading of Article

III(l). Article III(l) can be interpreted to require Eastern to "provide

the protection . . . of the benefits under workers’ compensation . . .

laws" in West Virginia. Under this construction, Article III(l) mandates simply that signatory employers, such as Eastern, provide the

proper amount of benefits to which their employees are entitled under

state workers’ compensation laws. Indeed, the fact that Article III(l)

contemplates that state workers’ compensation laws may be "compulsory or elective" — and then makes clear that employers bound by the

Wage Agreement must provide the relevant benefits — supports this

interpretation. But this basic requirement on employers to provide

benefits under state workers’ compensation laws is not the same as

explicitly incorporating into the Wage Agreement the entire West

Virginia Workers’ Compensation Act, along with its legal rights and

remedies for (among other things) discrimination. See Brown, 183

F.3d at 322 (holding that for a waiver to explicitly incorporate an anti8 EASTERN ASSOCIATED COAL v. MASSEY
discrimination statute, "a simple agreement not to engage in acts violative of that statute . . . will not suffice," because "the parties must

make ‘unmistakably clear’ their intent to incorporate in their entirety

the ‘discrimination statutes at issue’") (citations omitted). 

Our task here, of course, is not to decide which of these interpretations is the correct one. The fact that there are at least two plausible

and competing interpretations of Article III(l) is enough to demonstrate that the Article fails to provide a clear and unmistakable waiver.

See Carson, 175 F.3d at 332 ("[C]lear and unmistakable does not

mean general language that under ordinary principles of contract

interpretation might very well be interpreted to require arbitration.").

At bottom, Article III(l) requires that Eastern provide its employees

with the "protection and coverage of the benefits" under state laws.

This may be interpreted to include protection against discrimination

in the receipt of benefits, but it does not do so clearly and unmistakably. See Brown, 183 F.3d at 322. It is not nearly as explicit as the

CBA in Safrit, in which the same section mandated compliance with

Title VII and, further, expressly directed that "unresolved grievances"

dealing with such claims "are the proper subjects for arbitration." 248

F.3d at 308. Accordingly, Massey was not compelled by the Wage

Agreement to arbitrate his workers’ compensation discrimination

claims.2

B.

On its cross-appeal, Eastern argues that the district court erred in

finding that Massey’s WVHRA claim is not committed to arbitration

under Article XXV of the Wage Agreement. Yet if the Wage Agreement does not clearly and unmistakably waive Massey’s workers’

compensation discrimination claims, it certainly does not do so for his

2Massey advances a number of alternative arguments relating to the

district court’s ruling that his worker’s compensation discrimination

claims must be arbitrated. For instance, Massey asserts that he would be

unable to vindicate all his statutory remedies in arbitration, and that the

district court erred in rejecting Massey’s motion for reconsideration

based on an affidavit submitted after the close of evidence. Because we

find that Massey may pursue his workers’ compensation discrimination

claim in a judicial forum, we need not address these contentions. 

EASTERN ASSOCIATED COAL v. MASSEY 9
WVHRA claim. The first sentence in Article XXV merely provides

that "neither the Employer nor the Union shall discriminate against

any Employee . . . on the basis of race, creed, national origin, sex,

age, [or] political activity." As we have held, it is not enough for a

contractual anti-discrimination clause to loosely approximate the language of anti-discrimination statutes. See Brown, 183 F.3d at 322.

Such statutory provisions must be explicitly incorporated into the

CBA in order to constitute a valid waiver under Universal Maritime.

Id.

But Eastern places heavy reliance on the second sentence in Article

XXV, which states that "the Employer and Union agree that they will

adhere to applicable provisions of," among other statutes, the Americans with Disabilities Act ("ADA"). Eastern assumes that this clause

is sufficiently clear and unmistakable to compel arbitration of all

ADA claims. It then argues that, because the WVHRA is the state

counterpart to the ADA and is interpreted in the same manner by

West Virginia courts and administrative agencies, Article XXV’s

incorporation of the ADA also constitutes a specific incorporation of

the WVHRA. 

As an initial matter, it is not clear that West Virginia courts have

interpreted the WVHRA as federal courts have construed the ADA.

See Stone v. St. Joseph’s Hosp., 538 S.E.2d 389, 404 (W. Va. 2000)

("[W]e recognize that the [WVHRA], as created by our Legislature

and as applied by our courts and administrative agencies, represents

an independent approach to the law of disability discrimination that

is not mechanically tied to federal disability discrimination jurisprudence."); but see id. at 408-10 (Scott, J., concurring) (disputing the

majority’s characterization of the relationship between the WVHRA

and the ADA, asserting that "the pattern and practice of this Court

have been to follow the federal courts’ interpretation of various statutory provisions" in discrimination cases). 

Regardless, if we entertain Eastern’s assumptions that the ADA is

explicitly incorporated into the Wage Agreement in Article XXV, and

further that the WVHRA is treated similarly to the ADA, this does not

mean that there is a clear and unmistakable waiver of WVHRA

claims. The standard enunciated in Universal Maritime makes clear

that a valid waiver must explicitly incorporate the anti-discrimination

10 EASTERN ASSOCIATED COAL v. MASSEY
statute at issue. See Universal Maritime, 525 U.S. at 79-81; Carson,

175 F.3d at 332. It is insufficient, then, for a waiver provision to

incorporate one statute into a CBA by referring to another, independently created (though analogous) statute. 

Sensing the lack of textual support for its position, Eastern protests

that we must not ignore the intent of the parties in Article XXV. It

would make no sense, Eastern contends, to construe the parties as

having decided to handle all ADA claims through the grievance process but to leave the state courts open to hear ADA-like claims under

the WVHRA. This contention misses the point. Even if Eastern could

offer more than speculation as to what the parties intended when

agreeing to Article XXV, it is "the parties’ expressed intentions" that

control our inquiry into whether there was a clear and unmistakable

waiver. Carson, 175 F.3d at 331 (emphasis added). Here, the language unquestionably fails to provide such a clear and unmistakable

waiver of Massey’s WVHRA claim. Massey was therefore entitled to

pursue his disability discrimination claim in state court.

IV.

For the foregoing reasons, the judgment of the district court is

affirmed in part and reversed in part. We remand with directions that

Eastern’s suit be dismissed.

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

EASTERN ASSOCIATED COAL v. MASSEY 11