UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BARBARA ROBINSON; GAIL NEWTON;
GEORGIA GIGGETTS; ISABEL
ANDERSON,
Plaintiffs-Appellants,
                                                                  No. 99-2023
v.

HEALTHTEX, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-96-66-D)

Argued: February 28, 2000

Decided: May 30, 2000

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Reversed and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: James Bryan Coppess, AFL-CIO, Washington, D.C., for
Appellants. Donald Ross Hamilton, Jr., HAYNSWORTH, BALD-
WIN, JOHNSON & GREAVES, L.L.C., Greensboro, North Carolina,
for Appellee. ON BRIEF: Barbara Hudson, Evanston, Illinois, for
Appellants. James M. Powell, HAYNSWORTH, BALDWIN, JOHN-
SON & GREAVES, L.L.C., Greensboro, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Barbara Robinson, Gail Newton, Georgia Giggetts, and Isabel
Anderson (collectively, Appellants) filed suit in the United States Dis-
trict Court for the Western District of Virginia against their employer,
Healthtex, Incorporated (Healthtex), alleging gender discrimination
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.A.
§§ 2000e to 2000e-17 (West 1994 & Supp. 1999). Appellants argued
that Healthtex discriminated against them when it laid them off and
retained less senior male employees. The district court granted sum-
mary judgment to Healthtex and dismissed the suit without prejudice
on the ground that the collective bargaining agreement, through its
arbitration and antidiscrimination clauses, clearly and unmistakably
requires Appellants to arbitrate their Title VII claims. After the dis-
trict court issued its opinion in this case, however, we decided Brown
v. ABF Freight Sys., Inc., 183 F.3d 319 (4th Cir. 1999), and clarified
the standards for determining when a collective bargaining agreement
has waived an individual employee's statutory rights. For the reasons
that follow, we conclude that the collective bargaining agreement
does not clearly and unmistakably require Appellants to arbitrate their
Title VII claims. Accordingly, we reverse the district court's grant of
summary judgment to Healthtex and remand for further proceedings
consistent with this opinion.

I.

Appellants each worked in Healthtex's cutting department. Robin-
son and Anderson were "take-off" operators, Giggetts was a "relay"
operator, and Newton was a "bundle and tie" operator. In mid-1995,
Healthtex decided to reorganize several of its departments and drew
up a plan that included layoffs based upon seniority within various
affected positions. In November 1995, Healthtex laid off Appellants
pursuant to its reorganization plan.1 Notwithstanding the reorganiza-
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1 Giggetts was laid off because Healthtex eliminated her position
entirely. Robinson, Anderson, and Giggetts remained laid off for a period

                    2
tion and layoff, three "utility" positions remained available.
Healthtex, however, filled those positions with male employees who
had less seniority than Appellants. Another "utility" position opened
shortly after the layoff, but it, too, was filled by a male employee who
had less seniority than Appellants.

As members of the Union of Needletrades, Industrial Textile
Employees (UNITE), Appellants are subject to a collective bargaining
agreement (CBA). The CBA contains several relevant provisions that
govern employment disputes. Article XII governs grievance and arbi-
tration procedures and provides that

          [a]ll complaints, grievances or disputes arising between the
          parties hereto relating directly or indirectly to the provisions
          of this Agreement shall in the first instance be taken up for
          adjustment by a representative of the union and a represen-
          tative of the company.

(J.A. at 570 (emphasis added).) It also provides that "[i]n the event
that the parties are unable amicably to adjust any of the aforesaid
complaints, grievances or disputes, such matters shall be referred for
arbitration and final determination to an Arbitrator" and that

          the procedure established in this Agreement for the adjust-
          ment and arbitration of complaints, grievances and disputes
          shall be the exclusive means for the determination of such
          complaint, grievance or dispute. None of the parties hereto
          shall institute any proceeding in a court of law or equity or
          any administrative tribunal other than to compel arbitration
          or to enforce an arbitration award as herein provided. It is
          further agreed that this provision shall constitute a complete
          defense to any action instituted contrary hereto.

(J.A. at 570-71.) Article XV, which governs "compliance with exist-
ing laws," states, in relevant part, that
_________________________________________________________________

of approximately six months before Healthtex recalled them to work.
Newton accepted a lower paying position at Healthtex after her layoff.

                    3
          A. The Company agrees to comply with all Federal, State,
          and Municipal laws affecting wages, hours, working condi-
          tions, and all other conditions of employment.

          B. Non-Discrimination: The Company and the Union
          agree that there will be no discrimination against any
          employees because of race, creed, color, sex, national ori-
          gin, age, veteran status or mental and physical handicap,
          contrary to the provisions of Federal and State law .

(J.A. at 571 (emphasis added).)

Robinson asked UNITE to file a grievance regarding Appellants'
layoffs, but UNITE declined to do so. Robinson subsequently filed a
charge with the Equal Employment Opportunity Commission
(EEOC). On December 3, 1996, Appellants filed suit against
Healthtex in the United States District Court for the Western District
of Virginia alleging Title VII gender discrimination. None of the
Appellants except Robinson filed an EEOC claim before filing suit in
federal court.

On September 30, 1997, the district court granted summary judg-
ment to Healthtex and dismissed Appellants' case without prejudice,
concluding that it lacked jurisdiction to hear the suit because Appel-
lants' Title VII claim was subject to mandatory arbitration under the
CBA.2 Appellants appealed, and, in the interim, the Supreme Court
decided Wright v. Universal Maritime Serv. Corp. , 119 S. Ct. 391
(1998), which held that absent a clear and unmistakable waiver, a col-
lective bargaining agreement is not deemed to waive an employee's
statutorily protected rights, such as those arising under the Americans
with Disabilities Act. See id. at 396. On December 14, 1998, we
remanded this case for reconsideration in light of Wright. On remand,
_________________________________________________________________
2 The district court, mindful of our directive in Austin v. Owens-
Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir. 1996), to "ex-
press[ ] no opinion on the merits of the claim[s]" when enforcing a col-
lective bargaining agreement's mandatory arbitration clause with respect
to statutory antidiscrimination claims, see id. at 886, granted summary
judgment against Appellants and explicitly dismissed the case without
prejudice and without considering the merits of the claims.

                    4
the district court again granted summary judgment to Healthtex and
dismissed without prejudice Appellants' Title VII claims, concluding
that the CBA clearly and unmistakably waives Appellants' rights to
litigate their Title VII claims. On July 19, 1999, Appellants timely
filed their notice of appeal.

II.

Appellants argue that the district court erred in looking to the
CBA's arbitration and antidiscrimination clauses and reasoning that
the antidiscrimination clause's prohibition against discrimination
"contrary to the provisions of Federal and State law" was an explicit
incorporation of federal antidiscrimination law sufficient to constitute
a clear and unmistakable waiver because, under Brown v. ABF
Freight Sys., Inc., 183 F.3d 319 (4th Cir. 1999), the CBA's
antidiscrimination provision constitutes, at most, a simple agreement
not to discriminate rather than an explicit incorporation of Title VII's
antidiscrimination provisions.3 Healthtex responds that the CBA's
antidiscrimination provision explicitly incorporates federal
antidiscrimination law and that its arbitration provision explicitly
makes arbitration the exclusive remedy for all covered disputes,
including those arising under the antidiscrimination clause. Healthtex
argues, therefore, that the CBA's arbitration and antidiscrimination
clauses, read together, clearly and unmistakably waive Appellants'
rights to litigate their Title VII claims. Reviewing the district court's
grant of summary judgment de novo, see Austin v. Owens-Brockway
Glass Container, Inc., 78 F.3d 875, 877 (4th Cir. 1996), we agree
with Appellants that the district court erred in concluding that the
CBA clearly and unmistakably waives Appellants' rights to litigate
their Title VII claims. Accordingly, we reverse and remand.

In this Circuit, union-negotiated collective bargaining agreements
that require employees to arbitrate statutory discrimination claims are
_________________________________________________________________
3 Appellants also argue that even if the CBA requires them to arbitrate
their claims, the district court erred in relying upon Austin v. Owens-
Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir. 1996), to con-
clude that the waiver is enforceable. Because the CBA does not clearly
and unmistakably require arbitration of Appellant's Title VII claims,
however, we do not reach this issue.

                     5
enforceable and binding. See id. at 885. However, "the normal inter-
pretive rule applicable to collective bargaining agreements -- one
which presumes a dispute is arbitrable -- does not apply to statutory
discrimination claims." Carson v. Giant Food, Inc., 175 F.3d 325, 331
(4th Cir. 1999). Rather, the collective bargaining agreement must
clearly and unmistakably require arbitration of statutory discrimina-
tion claims. See Wright v. Universal Maritime Serv. Corp., 119 S. Ct.
391, 396 (1998). We have recognized two ways to determine whether
a collective bargaining agreement has clearly and unmistakably
waived the right to litigate statutorily-based antidiscrimination claims.
First, "intent can be demonstrated through the drafting of an `explicit
arbitration clause' pursuant to which the union agrees to submit all
statutory employment-discrimination claims to arbitration." Brown,
183 F.3d at 321 (quoting Carson, 175 F.3d at 331). "Second, where
the arbitration clause is `not so clear,' employees might yet be bound
to arbitrate their federal claims if `another provision, like a nondis-
crimination clause, makes it unmistakably clear that the discrimina-
tion statutes at issue are part of the agreement.'" Id. (quoting Carson,
175 F.3d at 331).

In the present case, the district court relied upon the second method
to conclude that the CBA's antidiscrimination provision clearly and
unmistakably waives Appellants' rights to litigate their Title VII
claims. In Brown, we addressed whether a collective bargaining
agreement's language, which prohibited discrimination based upon,
among other things, race, sex, age, or "any other discriminatory acts
prohibited by law,"4 constituted a clear and unmistakable requirement
_________________________________________________________________
4 The provision in Brown stated that:

          [t]he Employer and the Union agree not to discriminate against
          any individual with respect to hiring, compensation, terms or
          conditions of employment because of such individual's race,
          color, religion, sex, age, or national origin nor will they limit,
          segregate or classify employees in any way to deprive any indi-
          vidual employee of employment opportunities because of race,
          color, religion, sex, age, or national origin or engage in any
          other discriminatory acts prohibited by law. This Article also
          covers employees with a qualified disability under the Ameri-
          cans with Disabilities Act.

Brown v. ABF Freight Sys., Inc., 183 F.3d 319, 320 (4th Cir. 1999)
(emphasis added).

                     6
that employees arbitrate their statutory discrimination claims. See id.
at 320-22. We stated that "[w]hile the language of this contractual
agreement not to discriminate on certain specified bases in certain
specified ways may parallel, or even parrot, the language of federal
antidiscrimination statutes and prohibit some of the same conduct,
none of those statutes is thereby explicitly incorporated into the
agreement, by reference or otherwise." Id. at 322 (emphasis added
and internal citations omitted). Therefore, the rights established by the
provision were not congruent with those created by the federal stat-
utes, and "an arbitrator in interpreting the scope of those rights pursu-
ant to the general arbitration clause will be bound to interpret the
explicit terms of the agreement rather than of any federal statutory
antidiscrimination law." Id. We rejected the argument that the lan-
guage barring "any other discriminatory acts prohibited by law" in the
agreement was an explicit incorporation of federal statutory language,
stating that

          [t]here is a significant difference, and we believe a legally
          dispositive one, between an agreement not to commit dis-
          criminatory acts that are prohibited by law and an agreement
          to incorporate, in toto, the antidiscrimination statutes that
          prohibit those acts. We believe that where a party seeks to
          base its claim of waiver of the right to a federal forum on
          a claim of "explicit incorporation" of the relevant federal
          antidiscrimination statute into the terms of the CBA, a sim-
          ple agreement not to engage in acts violative of that statute
          (which, it bears noting, would be significantly more explicit
          than the vague reference to acts prohibited by "law" that we
          have before us) will not suffice. Rather, the parties must
          make "unmistakably clear" their intent to incorporate in
          their entirety the discrimination statutes at issue.

Id. (emphasis added and internal citations and quotation marks omit-
ted).

In the present case, the CBA provisions at issue are substantially
similar to those in Brown. Here, the CBA explicitly refers to federal
law, but only in the context of prohibiting discrimination that is "con-
trary to the provisions of Federal and State law." (J.A. at 571.) In
other words, it constitutes "a simple agreement not to engage in acts

                    7
violative of [federal law]" as opposed to"an agreement to incorporate,
in toto, the antidiscrimination statutes that prohibit those acts."
Brown, 183 F.3d at 322. There is little material difference between a
provision that bars discriminatory "acts prohibited by law," as in
Brown, and a provision that prohibits discriminatory acts "contrary to
provisions of Federal and State law," as in the present case. In each
instance, the antidiscrimination provision constitutes "a simple agree-
ment not to engage in acts violative of that statute." Id. And, in each
instance, the antidiscrimination provision does not purport to incorpo-
rate all of the antidiscrimination statute's requirements in toto, includ-
ing, for example, all potential remedies that might be available under
Title VII.5 Under our holding in Brown, the language in the CBA sim-
ply does not constitute an explicit incorporation of statutory require-
ments, and, therefore, it cannot be a clear and unmistakable waiver of
Appellants' rights to litigate their Title VII claims.

III.

In conclusion, the CBA does not clearly and unmistakably waive
Appellants' rights to litigate their Title VII claims. The CBA's
antidiscrimination provision, at best, constitutes an agreement not to
violate Title VII, rather than an explicit incorporation of Title VII's
requirements. Accordingly, we reverse the district court's grant of
_________________________________________________________________

5 Healthtex argues, nevertheless, that notwithstanding the similarity
between the antidiscrimination provision at issue and the antidiscrimina-
tion provision in Brown v. ABF Freight Sys., Inc., 183 F.3d 319 (4th Cir.
1999), the CBA as a whole is distinguishable because, unlike in Brown,
the CBA explicitly makes arbitration the exclusive means of resolving all
disputes "relating directly or indirectly to the provisions of [the CBA],"
(J.A. at 570) including those covered in the antidiscrimination provision.
We disagree. First, broad but unspecific language in a general arbitration
clause, such as that in the present case, is insufficient to effect a waiver
of statutory rights. See Brown, 183 F.3d at 322. Second, although the
arbitration provision makes arbitration the exclusive remedy for those
disputes that must be arbitrated under the CBA, it has no bearing on the
question before us, i.e., whether the present dispute itself must be arbi-
trated. We, therefore, find this distinction unavailing.

                     8
summary judgment to Healthtex and remand for further proceedings
consistent with this opinion.6

REVERSED AND REMANDED
_________________________________________________________________
6 Healthtex also argues that even if the CBA does not clearly and
unmistakably waive Appellants' rights to litigate their Title VII claims,
we should affirm summary judgment on the alternate grounds that New-
ton, Giggetts, and Anderson did not exhaust their EEOC remedies and
that Appellants failed to raise a triable issue of fact as to the merits of
their Title VII claims. We find it more appropriate to remand these previ-
ously unaddressed issues to the district court. Cf. Virginia Hosp. Assoc.
v. Baliles, 830 F.2d 1308, 1310 n.1 (4th Cir. 1987) (remanding even
though parties argued other grounds for summary judgment because
"[t]he district court did not address these arguments, and the parties
alluded to them only briefly in their briefs to this court").

                   9
