PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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,

No. 97-2240

v.

GIANT FOOD, INC.; PETER MANOS;

SAMUEL THURSTON; MARIA MYERS;

ROBERT HAYWOOD; DEBORAH LILLY;

TOM MAYNARD; CHRISTOPHER

BALODEMAS,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Chief District Judge.

(CA-96-2882-JFM)

Argued: March 5, 1999

Decided: April 29, 1999

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.

_________________________________________________________________
COUNSEL

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.

_________________________________________________________________

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.

 2
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

 3
[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.

_________________________________________________________________

1 The district court did, however, grant other motions of defendants. It

dismissed plaintiffs' claims under the Equal Pay Act, Executive Order

No. 11246, and 42 U.S.C. §§ 1985 & 1986. The court also dismissed the

Title VII, ADEA, and ADA claims against the individual defendants.

And it dismissed the ADEA claims of individual plaintiffs W. Kirb

Qualls and Maurice Mathews and the section 1981 claims against defendant Tom Maynard. None of these dismissals is before us.

2 The district court's judgment with respect to the Title VII, section

1981, and ADEA claims applied to all four of the CBAs in this case. By

contrast, its judgment of nonarbitrability with respect to the ADA claims

was limited to the effect of the Local 400 CBA. The district court found

that the Local 400 CBA did not require the arbitration of ADA claims,

and this refusal has been appealed. The arbitrability of ADA claims

under the CBAs signed by Locals 639, 730, and 922 is not before us. The

district court did not reach the issue under the Local 639 and 922 CBAs.

And it found that the Local 730 CBA required the arbitration of ADA

claims; that ruling has not been appealed.

 4
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

(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 (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 (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

 5
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 (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 saying that the arbitrator

determines the meaning of any disputed contractual terms. The courts

have repeatedly rejected the assertion that general arbitration clauses,

like the ones at issue here, commit to arbitration disputes over an arbitrator's jurisdiction.

 6
For example, in AT&T Technologies, Inc. v. Communications

Workers of America, the collective-bargaining contract committed to

arbitration all "differences arising with respect to the interpretation of

this contract or the performance of any obligation hereunder." 475

U.S. at 645. Still, the Supreme Court held that"It was for the court,

not the arbitrator, to decide in the first instance whether the dispute

was to be resolved through arbitration." Id. at 651. Similarly, in John

Wiley & Sons, Inc. v. Livingston, the Supreme Court addressed a contract providing for the arbitration of "any differences, grievance or

dispute between the Employer and the Union arising out of or relating

to this agreement, or its interpretation or application, or enforcement."

376 U.S. 543, 553 (1964). Despite this language, the Court itself

decided that the union's claims were in fact arbitrable. Id. at 554-55;

see also Warrior & Gulf, 363 U.S. at 576, 583 n.7. Elsewhere the

Supreme Court has explained that even "`when the parties have

agreed to submit all questions of contract interpretation to the arbitrator,'" the judiciary is still "`to ascertain[ ] whether the party seeking

arbitration is making a claim which on its face is governed by the

contract.'" United Paperworkers Int'l Union v. Misco, Inc., 484 U.S.

29, 36-37 (1987) (quoting United Steelworkers of Am. v. American

Mfg. Co., 363 U.S. 564, 567-68 (1960)). Thus, broad arbitration

clauses that generally commit all interpretive disputes "relating to" or

"arising out of" the agreement do not satisfy the clear and unmistakable test.

Cases in this circuit reinforce this point. In Brown v. Trans World

Airlines, this court encountered a CBA which required the arbitration

of all "disputes between the Union, employee, and the Company

growing out of the interpretation or application of any of the terms of

this Agreement." 127 F.3d 337, 338 (4th Cir. 1997). In spite of this

language, we stated that "The determination of the arbitration provision's scope and meaning is for the court to resolve." Id. at 340. Even

broader language was used in Virginia Carolina Tools, Inc. v. International Tool Supply, Inc. The agreement in that case did not even

restrict the scope of arbitration to matters of interpretation or differences growing out of the agreement. Instead, it capaciously stated that

"Should any dispute arise between the parties they agree to seek resolution through [arbitration]." 984 F.2d at 115. Nonetheless, we noted

that

 7
 We need not decide if anything short of a specific,

express provision, such as "all disputes concerning the

arbitrability of particular disputes under this contract are

hereby committed to arbitration," would meet[the clear and

unmistakable] test. It suffices to say that the typical, broad

arbitration clause [like this one] -- which contains nothing

approaching such a provision -- does not.

Id. at 117.

The lesson from these cases is that if contracting parties wish to let

an arbitrator determine the scope of his own jurisdiction, they must

indicate that intent in a clear and specific manner. Expansive general

arbitration clauses will not suffice to force the arbitration of arbitrability disputes.

Here, the parties failed to so agree. The four CBAs at issue in this

case have broad clauses requiring arbitration to resolve disputes "regarding the terms of this Agreement" and "concerning the interpretation of the provisions of this Agreement." These general clauses are

indistinguishable from those at issue in the cases discussed above.

Thus, we are compelled to find they do not clearly and unmistakably

commit questions of arbitrability to arbitration. A court, not an arbitrator, is to determine whether the parties agreed to arbitrate the statutory discrimination claims at issue here.

We stress, however, that arbitration of arbitrability disputes -- like

other contractual matters -- remains a question of the parties' intent.

Those who wish to let an arbitrator decide which issues are arbitrable

need only state that "all disputes concerning the arbitrability of particular disputes under this contract are hereby committed to arbitration,"

or words to that clear effect. Absent such clarity, we are compelled

to find that disputes over the arbitrability of claims are for judicial

resolution.

IV.

We thus proceed to determine whether the parties agreed to arbitrate the discrimination claims arising under Title VII, 42 U.S.C.

 8
§ 1981, the ADEA, and the ADA. Like the previous issue, this question is one of contract and is to be resolved by the parties' expressed

intentions.

Union-negotiated collective bargaining agreements that require the

arbitration of statutory discrimination claims are valid and binding on

unionized employees. Austin v. Owens-Brockway Glass Container,

Inc., 78 F.3d 875 (4th Cir. 1996). In Austin , we noted that under

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991),

employees were free to enter into predispute agreements to arbitrate

statutory employment claims. Austin, 78 F.3d at 880-82. And we

found no reason to preclude enforcement of such agreements when

they were entered into as part of a CBA. "A union has the right and

duty to bargain for the terms and conditions of employment. . . . The

right to arbitrate is a term or condition of employment, and as such,

the union may bargain for this right." Id. at 885. Agreements to arbitrate statutory claims are "`valid because they rest on the premise of

fair representation.'" Id. (quoting Metropolitan Edison Co. v. NLRB,

460 U.S. 693, 705 (1983)). Thus, when a union has agreed to arbitrate

statutory claims, "an employee must follow the grievance procedure

established by the collective bargaining agreement prior to filing suit

in federal court." Id.

Recently, in Wright v. Universal Maritime Service Corp., 119

S. Ct. 391 (1998), the Supreme Court set forth the test required to

determine whether there has been a union-negotiated waiver of a judicial forum. There, the Court held that the normal interpretative rule

applicable to collective bargaining agreements -- one which presumes a dispute is arbitrable -- does not apply to statutory discrimination claims. Id. at 395-96. Instead, collective bargaining agreements

to arbitrate these claims, unlike contracts executed by individuals,

must be "clear and unmistakable." Id. at 396.

Defendants argue that the CBAs in this case clearly and unmistakably require arbitration of employee federal discrimination claims.

Each of those CBAs contains a specific provision banning discrimination on the basis of race and age. Further, the agreements provide for

the arbitration of all disputes "regarding the terms" and "concerning

the interpretation of the provisions" of the agreements. Taken

 9
together, defendants argue this language clearly and unmistakably

provides for the arbitration of statutory discrimination claims.

We disagree. Broad, general language is not sufficient to meet the

level of clarity required to effect a waiver in a CBA. In the collective

bargaining context, the parties "must be particularly clear" about their

intent to arbitrate statutory discrimination claims. Universal

Maritime, 119 S. Ct. at 396. Here, the parties were not that clear.

The Supreme Court's opinion in Universal Maritime indicates that

the requisite degree of clarity can be achieved by two different

approaches. The first is the most straightforward. It simply involves

drafting an explicit arbitration clause. Under this approach, the CBA

must contain a clear and unmistakable provision under which the

employees agree to submit to arbitration all federal causes of action

arising out of their employment. Such a clear arbitration clause will

suffice to bind the parties to arbitrate claims arising under a host of

federal statutes, including Title VII, 42 U.S.C.§ 1981, the ADEA,

and the ADA.

The second approach is applicable when the arbitration clause is

not so clear. General arbitration clauses, such as those referring to "all

disputes" or "all disputes concerning the interpretation of the agreement," taken alone do not meet the clear and unmistakable requirement of Universal Maritime. When the parties use such broad but

nonspecific language in the arbitration clause, they must include an

"explicit incorporation of statutory antidiscrimination requirements"

elsewhere in the contract. Universal Maritime , 119 S. Ct. at 396. If

another provision, like a nondiscrimination clause, makes it unmistakably clear that the discrimination statutes at issue are part of the

agreement, employees will be bound to arbitrate their federal claims.

The CBAs in this case failed to follow either approach. The arbitration clauses in the CBAs state broadly that the parties agree to arbitrate all disputes over the meaning of the agreement. No mention,

however, is made of disputes arising under federal law. This sort of

general arbitration clause does not satisfy the demand of particular

clarity. Nor do the other provisions of the contract persuade us that

the plaintiffs' statutory claims have been incorporated into the CBAs.

The agreements do contain antidiscrimination provisions stating that

 10
the company and the union agree not to discriminate on the basis of

race or age. They do not, however, begin to incorporate by reference

federal statutory law. The absence of transparency in both the arbitration and nondiscrimination clauses fails to meet the"clear and unmistakable" standard set forth in Universal Maritime. Thus, we hold that

the CBAs at issue in this case did not commit to arbitration the resolution of the employees' federal statutory discrimination claims.

V.

Our decision does not seek to undermine private choices about how

best to resolve industrial disputes. This case presents two issues

which require the parties to use "clear and unmistakable" language

expressing a desire to arbitrate. With respect to each, we hold that

clear and unmistakable does not mean general language that under

ordinary principles of contract interpretation might very well be interpreted to require arbitration. Instead, a CBA must plainly specify the

intent to have an arbitrator decide both the scope of his own jurisdiction and the merits of federal statutory discrimination claims. If an

agreement does so, the judiciary will give full effect to that intent.

The CBAs in this case, however, are simply not clear and unmistakable with respect to these issues. The judgment of the district court

is hereby affirmed and the case is remanded for further proceedings

consistent with this opinion.

AFFIRMED AND REMANDED

 11