UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID M. BEDWELL,
Plaintiff-Appellant,

v.                                                                    No. 97-1688

MACK TRUCKS INCORPORATED,
Defendant-Appellee.

DAVID M. BEDWELL,
Plaintiff-Appellee,

v.                                                                    No. 97-1689

MACK TRUCKS INCORPORATED,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Rock Hill.
Matthew J. Perry, Jr., Senior District Judge.
(CA-95-685-10BC)

Submitted: January 29, 1999

Decided: February 24, 1999

Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

Sharon McCain Rickborn, Columbia, South Carolina, for Appellant.
Henry S. Knight, Jr., CONSTANGY, BROOKS & SMITH, Colum-
bia, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

David M. Bedwell filed suit against Mack Trucks, Inc. (Mack),
alleging discrimination on the basis of disability in violation of the
Americans with Disabilities Act (ADA), 42 U.S.C.§§ 12101-12213
(1994), and in retaliation for filing a claim with the South Carolina
Human Affairs Commission. Relying on our decision in Austin v.
Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir. 1996),
the district court concluded that a collective bargaining agreement
(CBA) mandated arbitration of Bedwell's claims; therefore, Bedwell
was precluded from filing suit in the district court. After a de novo
review, with all inferences drawn in Bedwell's favor, see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), we affirm in part,
reverse in part, and remand for further proceedings.

In 1974, Bedwell began working at Mack's Macungie, Pennsylva-
nia, assembly plant and transferred to Mack's Winnsboro, South Car-
olina, assembly plant in 1987. During his employment, Bedwell was
a member of the United Automotive, Aerospace, and Agricultural
Implement Workers Union (the Union), which had a CBA with Mack.
Article 5 of the CBA provided a multi-step dispute resolution proce-
dure in which any dispute, not settled by the grievance procedure,
could be submitted to arbitration or be considered settled on the basis
of the last answer and not subject to further consideration. Moreover,
Article 5 provided that, following exhaustion of the grievance proce-

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dure steps, the parties had thirty days to place a grievance into arbitra-
tion and the decision of arbitration was "final and binding."

In February 1995, Bedwell, who had work restrictions due to a
shoulder and back injury, filed suit in district court against Mack
alleging disability discrimination for failing to accommodate his dis-
ability and terminating his employment while he was on sick leave.
Mack moved for summary judgment. Mack asserted that Bedwell's
claims were subject to mandatory arbitration under the CBA and that
Bedwell failed to allege any material facts to support his claims.
Because Bedwell failed to pursue his claims under the griev-
ance/arbitration procedure, Mack maintained that Bedwell was pre-
cluded from filing suit in federal court.

The district court granted summary judgment to Mack based upon
Bedwell's failure to pursue his claims under the grievance/arbitration
procedure outlined in the CBA. The court held that the agreement
subjected Bedwell's claims to mandatory arbitration. Thus, the court
found that Austin precluded Bedwell from bringing the lawsuit.
Bedwell appealed the denial of summary judgment. Mack filed a
cross-appeal alleging that the district court erred in failing to address
the merits of Bedwell's claims. We granted Mack's unopposed
motion to submit the case for a decision on the briefs without oral
argument.

Bedwell argues that the district court erred by relying on our deci-
sion in Austin because Austin was wrongly decided. He contends that
the ADA and the Supreme Court's decision in Alexander v. Gardner-
Denver Co., 415 U.S. 36 (1974), require that statutory claims not be
submitted to arbitration for resolution. Conversely, Mack argues that
the enforcement of arbitration agreements is controlled by the
Supreme Court's decision in Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20 (1991), in which the Court held that statutory
claims may be the subject of an enforceable arbitration agreement.
See Gilmer, 500 U.S. at 26. Mack maintains that our decision in
Austin is a proper extension of Gilmer and controls the disposition of
this case.

The Supreme Court has recently addressed the issue of whether an
arbitration clause in a CBA precludes an employee from bringing an

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ADA action in federal court. See Wright v. Universal Maritime Serv.
Corp., ___ U.S. ___, 67 U.S.L.W. 4013 (U.S. Nov. 16, 1998) (No.
97-889). In Wright, the Supreme Court did not resolve the question
of the validity of a union-negotiated waiver of a federal forum for
statutory claims, such as the ADA; instead it held that a statutory
claim "is not subject to a presumption of arbitrability." Wright, 67
U.S.L.W. at 4015. The CBA must have a "clear and unmistakable"
waiver of the covered employees' rights to a judicial forum for fed-
eral claims of employment discrimination to mandate arbitration of
the claim. The Court found that the right to a judicial forum "is of suf-
ficient importance to be protected against less-than-explicit union
waiver in a CBA." Id. at 4016.

In Wright, the Court examined the entire agreement to determine
if it held a clear and unmistakable waiver. First, the Court looked to
the language of the arbitration clause to determine if it contained any
specific language regarding what claims must be arbitrated. Next, the
Court looked to the remainder of the CBA to determine whether it
contained an "explicit incorporation of statutory antidiscrimination
requirements." Id. The Court also discussed whether provisions in the
CBA calling for the agreement to cover all matters of employment,
and that the agreement was not to violate any federal or state law,
operate to incorporate federal antidiscrimination laws into the agree-
ment. The Court found that these provisions did not mandate that
compliance with the ADA was a contractual commitment subject to
the arbitration clause. Id.

Similar analysis can be utilized in this case. Article 5, Section 8 of
the CBA covering the grievance procedure applies to"[a]ny employee
. . . having a grievance." Section 11(d) of Article 5, the arbitration
clause, states that "[a]ny dispute which is not settled by the foregoing
grievance procedure, may be submitted to arbitration. . . . Any griev-
ance which is not submitted to arbitration . . . shall be considered set-
tled on the basis of the last answer and not subject to further
consideration (emphasis omitted)."1 This language is very broad and
similar to the arbitration clause addressed in Wright.
_________________________________________________________________
1 The record does not contain a specific provision stating what claims
must be submitted through the grievance procedure. However, neither
party points to a specific section of the CBA that provides the informa-
tion.

                     4
Looking at the CBA as a whole, it addresses discrimination in two
separate sections. First, Article 26 provides that the company and the
union will not discriminate in employment matters because of "race,
creed, color, national origin, political affiliation, union affiliation, sex,
marital status, physical handicap or age."2 Article 26 also states that
"[t]he company and the Union agree that they will support and imple-
ment the governmental anti-discrimination programs."

Also incorporated into the Master Agreement is a letter from
Mack's Executive Vice President for Administration regarding estab-
lishment of a voluntary equal employment opportunity program. The
letter states that the program was established in part to "emphasize the
contractual grievance procedure for relief of alleged violations of
(equal opportunity)." (J.A. 291). The letter also states that one pur-
pose of the newly established equal employment opportunity commit-
tees is to "avoid multiplicity of litigation in many forums simultane-
ously." One of the functions of the Joint Corporate/International
Committee was to review and discuss ways and means of encouraging
use of the "grievance procedures as the exclusive contractual method
to resolve claims of denial of equal opportunity rights." (J.A. 292).
This letter acknowledges that employees with equal opportunity con-
cerns have more than one forum to lodge their complaints. It also
implies that employees are not required to use the grievance proce-
dure as committees were formed to encourage its use. At best, this let-
ter is ambiguous regarding any arbitration requirements for
discrimination claims.

Finally, the CBA contains similar provisions to those discussed in
Wright declaring that the CBA is intended to cover all matters of
employment and that the CBA shall not violate any federal or state
law. Here, Article 5, Section 12(e) provides that the Arbitrator's func-
tion is to interpret and apply the CBA. The CBA includes
antidiscrimination language. However, although Mack and the Union
agreed to support and implement governmental antidiscrimination
programs, this is not the same as making compliance with the ADA
a contractual commitment subject to arbitration and does not consti-
tute a clear and unmistakable waiver of a judicial forum for discrimi-
_________________________________________________________________
2 This antidiscrimination provision is similar to those found in Austin
and Gardner-Denver.

                      5
nation claims. See Wright, 67 U.S.L.W. at 4016. This court has held
that similar antidiscrimination provisions in a CBA do not obligate
the parties to adhere to statutory antidiscrimination laws. An employ-
ee's contractual rights under a CBA are distinct from an employee's
statutory rights. See Brown v. Trans World Airlines, 127 F.3d 337,
341-42 (4th Cir. 1997).

For the foregoing reasons, we hold that the CBA in this case does
not contain a clear and unmistakable waiver of Bedwell's right to a
judicial forum for his ADA claim. We reverse the portion of the dis-
trict court order granting summary judgment to Mack and remand for
further proceedings on the merits of Bedwell's claims.

Mack filed a cross-appeal alleging that the district court erred in
failing to consider the merits of Bedwell's claims. Mack argued that
Bedwell failed to establish entitlement under the ADA. The district
court properly did not review the merits of Bedwell's claims because
it concluded that it did not have jurisdiction over them. In a footnote,
the court stated that if this court found that Bedwell is entitled to pro-
ceed before it, the merits of his claim would be addressed. Therefore,
that portion of the order is affirmed.

AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED

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