OPINION OF THE COURT 14 PENN PLAZA LLC V. PYETT 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-581 14 PENN PLAZA LLC, et al., PETITIONERS v. STEVEN PYETT et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[April 1, 2009]

															   Justice Thomas delivered the
opinion of the Court.

															   The question presented by this
case is whether a provision in a collective-bargaining agreement
that clearly and unmistakably requires union members to arbitrate
claims arising under the Age Discrimination in Employment Act of
1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et
seq ., is enforceable. The United States Court of Appeals for
the Second Circuit held that this Court’s decision in Alexander v. Gardner-Denver Co. , 415 U.
S. 36 (1974), forbids enforcement of such arbitration
provisions. We disagree and reverse the judgment of the Court of
Appeals.

															I

															   Respondents are members of the
Service Employees International Union, Local 32BJ (Union). Under
the National Labor Relations Act (NLRA), 49 Stat. 449, as amended,
the Union is the exclusive bargaining representative of employees
within the building-services industry in New York City, which
includes building cleaners, porters, and doorpersons. See 29 U.
S. C. §159(a). In this role, the Union has exclusive authority
to bargain on behalf of its members over their “rates of pay,
wages, hours of employment, or other conditions of employment.” Ibid. Since the 1930’s, the Union has engaged in
industry-wide collective bargaining with the Realty Advisory Board
on Labor Relations, Inc. (RAB), a multiemployer bargaining
association for the New York City real-estate industry. The
agreement between the Union and the RAB is embodied in their
Collective Bargaining Agreement for Contractors and Building Owners
(CBA). The CBA requires union members to submit all claims of
employment discrimination to binding arbitration under the CBA’s
grievance and dispute resolution procedures:

															“§30 NO DISCRIMINATION. There shall be no
discrimination against any present or future employee by reason of
race, creed, color, age, disability, national origin, sex, union
membership, or any other characteristic protected by law,
including, but not limited to, claims made pursuant to Title VII of
the Civil Rights Act, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the New York State Human Rights
Law, the New York City Human Rights Code, … or any other similar
laws, rules, or regulations. All such claims shall be subject to
the grievance and arbitration procedures (Articles V and VI) as the
sole and exclusive remedy for violations. Arbitrators shall apply
appropriate law in rendering decisions based upon claims of
discrimination.” App. to Pet. for Cert. 48a.[ Footnote 1 ]

															   Petitioner 14 Penn Plaza LLC is a
member of the RAB. It owns and operates the New York City office
building where, prior to August 2003, respondents worked as night
lobby watchmen and in other similar capacities. Respondents were
directly employed by petitioner Temco Service Industries, Inc.
(Temco), a maintenance service and cleaning contractor. In August
2003, with the Union’s consent, 14 Penn Plaza engaged Spartan
Security, a unionized security services contractor and affiliate of
Temco, to provide licensed security guards to staff the lobby and
entrances of its building. Because this rendered respondents’ lobby
services unnecessary, Temco reassigned them to jobs as night
porters and light duty cleaners in other locations in the building.
Respondents contend that these reassignments led to a loss in
income, caused them emotional distress, and were otherwise less
desirable than their former positions.

															   At respondents’ request, the Union filed
grievances challenging the reassignments. The grievances alleged
that petitioners: (1) violated the CBA’s ban on workplace
discrimination by reassigning respondents on account of their age;
(2) violated seniority rules by failing to promote one of the
respondents to a handyman position; and (3) failed to equitably
rotate overtime. After failing to obtain relief on any of these
claims through the grievance process, the Union requested
arbitration under the CBA.

															   After the initial arbitration hearing, the
Union withdrew the first set of respondents’ grievances—the
age-discrimination claims—from arbitration. Because it had
consented to the contract for new security personnel at 14 Penn
Plaza, the Union believed that it could not legitimately object to
respondents’ reassignments as discriminatory. But the Union
continued to arbitrate the seniority and overtime claims, and,
after several hearings, the claims were denied.

															   In May 2004, while the arbitration was ongoing
but after the Union withdrew the age-discrimination claims,
respondents filed a complaint with the Equal Employment Opportunity
Commission (EEOC) alleging that petitioners had violated their
rights under the ADEA. Approximately one month later, the EEOC
issued a Dismissal and Notice of Rights, which explained that the
agency’s “ ‘review of the evidence … fail[ed] to indicate that
a violation ha[d] occurred,’ ” and notified each respondent of
his right to sue. Pyett v. Pennsylvania Building
Co. , 498 F. 3d 88, 91 (CA2 2007).

															   Respondents thereafter filed suit against
petitioners in the United States District Court for the Southern
District of New York, alleging that their reassignment violated the
ADEA and state and local laws prohibiting age
discrimination.[ Footnote 2 ]
Petitioners filed a motion to compel arbitration of respondents’
claims pursuant to §3 and §4 of the Federal Arbitration Act (FAA),
9 U. S. C. §§3, 4.[ Footnote
3 ] The District Court denied the motion because under Second
Circuit precedent, “even a clear and unmistakable union-negotiated
waiver of a right to litigate certain federal and state statutory
claims in a judicial forum is unenforceable.” App. to Pet. for
Cert. 21a. Respondents immediately appealed the ruling under §16 of
the FAA, which authorizes an interlocutory appeal of “an order …
refusing a stay of any action under section 3 of this title” or
“denying a petition under section 4 of this title to order
arbitration to proceed.” 9 U. S. C. §§16(a)(1)(A)–(B).

															   The Court of Appeals affirmed. 498 F. 3d
88. According to the Court of Appeals, it could not compel
arbitration of the dispute because Gardner-Denver , which
“remains good law,” held “that a collective bargaining agreement
could not waive covered workers’ rights to a judicial forum for
causes of action created by Congress.” 498 F. 3d, at 92, 91,
n. 3 (citing Gardner-Denver , 415 U. S., at 49–51).
The Court of Appeals observed that the Gardner-Denver decision was in tension with this Court’s more recent decision in Gilmer v. Interstate/Johnson Lane Corp. , 500 U. S. 20 (1991),
which “held that an individual employee who had agreed individually
to waive his right to a federal forum could be compelled
to arbitrate a federal age discrimination claim.” 498 F. 3d,
at 91, n. 3 (citing Gilmer , supra, at 33–35;
emphasis in original). The Court of Appeals also noted that this
Court previously declined to resolve this tension in Wright v. Universal Maritime Service Corp. , 525 U. S. 70 , 82 (1998), where the
waiver at issue was not “clear and unmistakable.” 498 F. 3d,
at 91, n. 3.

															   The Court of Appeals attempted to reconcile Gardner-Denver and Gilmer by holding that
arbitration provisions in a collective-bargaining agreement, “which
purport to waive employees’ rights to a federal forum with respect
to statutory claims, are unenforceable.” 498 F. 3d, at 93–94.
As a result, an individual employee would be free to choose
compulsory arbitration under Gilmer , but a labor union
could not collectively bargain for arbitration on behalf of its
members. We granted certiorari, 552 U. S. ___ (2008), to address
the issue left unresolved in Wright , which continues to
divide the Courts of Appeals,[ Footnote 4 ] and now reverse.

															II

															A

															   The NLRA governs federal
labor-relations law. As permitted by that statute, respondents
designated the Union as their “exclusive representativ[e] … for the
purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of employment.” 29
U. S. C. §159(a). As the employees’ exclusive bargaining
representative, the Union “enjoys broad authority … in the
negotiation and administration of [the] collective bargaining
contract.” Communications Workers v. Beck , 487 U. S. 735 ,
739 (1988) (internal quotation marks omitted). But this broad
authority “is accompanied by a responsibility of equal scope, the
responsibility and duty of fair representation.” Humphrey v. Moore , 375 U. S. 335 , 342
(1964). The employer has a corresponding duty under the NLRA to
bargain in good faith “with the representatives of his employees”
on wages, hours, and conditions of employment. 29 U. S. C.
§158(a)(5); see also §158(d).

															   In this instance, the Union and
the RAB, negotiating on behalf of 14 Penn Plaza, collectively
bargained in good faith and agreed that employment-related
discrimination claims, including claims brought under the ADEA,
would be resolved in arbitration. This freely negotiated term
between the Union and the RAB easily qualifies as a “conditio[n] of
employment” that is subject to mandatory bargaining under §159(a).
See Litton Financial Printing Div., Litton Business Systems,
Inc. v. NLRB , 501 U. S. 190 , 199
(1991) (“[A]rrangements for arbitration of disputes are a term or
condition of employment and a mandatory subject of bargaining”); Steelworkers v. Warrior & Gulf Nav. Co. , 363 U. S. 574 ,
578 (1960) (“[A]rbitration of labor disputes under collective
bargaining agreements is part and parcel of the collective
bargaining process itself”); Textile Workers v. Lincoln Mills of Ala. , 353 U. S. 448 , 455
(1957) (“Plainly the agreement to arbitrate grievance disputes is
the quid pro quo for an agreement not to strike”). The
decision to fashion a CBA to require arbitration of
employment-discrimination claims is no different from the many
other decisions made by parties in designing grievance
machinery.[ Footnote 5 ]

															   Respondents, however, contend that the
arbitration clause here is outside the permissible scope of the
collective-bargaining process because it affects the “employees’
individual, non-economic statutory rights.” Brief for Respondents
22; see also post , at 5–6 (Souter, J., dissenting). We
disagree. Parties generally favor arbitration precisely because of
the economics of dispute resolution. See Circuit City Stores,
Inc. v. Adams , 532 U. S. 105 , 123
(2001) (“Arbitration agreements allow parties to avoid the costs of
litigation, a benefit that may be of particular importance in
employment litigation, which often involves smaller sums of money
than disputes concerning commercial contracts”). As in any
contractual negotiation, a union may agree to the inclusion of an
arbitration provision in a collective-bargaining agreement in
return for other concessions from the employer. Courts generally
may not interfere in this bargained-for exchange. “Judicial
nullification of contractual concessions … is contrary to what the
Court has recognized as one of the fundamental policies of the
National Labor Relations Act—freedom of contract.” NLRB v. Magnavox Co. , 415 U. S. 322 , 328
(1974) (Stewart, J., concurring in part and dissenting in part)
(internal quotation marks and brackets omitted).

															   As a result, the CBA’s arbitration provision
must be honored unless the ADEA itself removes this particular
class of grievances from the NLRA’s broad sweep. See Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U. S. 614 ,
628 (1985). It does not. This Court has squarely held that the ADEA
does not preclude arbitration of claims brought under the statute.
See Gilmer , 500 U. S., at 26–33.

															   In Gilmer , the Court explained that
“[a]lthough all statutory claims may not be appropriate for
arbitration, ‘having made the bargain to arbitrate, the party
should be held to it unless Congress itself has evinced an
intention to preclude a waiver of judicial remedies for the
statutory rights at issue.’ ” Id ., at 26 (quoting Mitsubishi Motors Corp. , supra, at 628). And “if
Congress intended the substantive protection afforded by the ADEA
to include protection against waiver of the right to a judicial
forum, that intention will be deducible from text or legislative
history.” 500 U. S., at 29 (internal quotation marks and brackets
omitted). The Court determined that “nothing in the text of the
ADEA or its legislative history explicitly precludes arbitration.” Id. , at 26–27. The Court also concluded that arbitrating
ADEA disputes would not undermine the statute’s “remedial and
deterrent function.” Id. , at 28 (internal quotation marks
omitted). In the end, the employee’s “generalized attacks” on “the
adequacy of arbitration procedures” were “insufficient to preclude
arbitration of statutory claims,” id., at 30, because
there was no evidence that “Congress, in enacting the ADEA,
intended to preclude arbitration of claims under that Act,” id., at 35.

															   The Gilmer Court’s interpretation of
the ADEA fully applies in the collective-bargaining context.
Nothing in the law suggests a distinction between the status of
arbitration agreements signed by an individual employee and those
agreed to by a union representative. This Court has required only
that an agreement to arbitrate statutory antidiscrimination claims
be “explicitly stated” in the collective-bargaining agreement. Wright , 525 U. S., at 80 (internal quotation marks
omitted). The CBA under review here meets that obligation.
Respondents incorrectly counter that an individual employee must
personally “waive” a “[substantive] right” to proceed in court for
a waiver to be “knowing and voluntary” under the ADEA. 29 U.
S. C. §626(f)(1). As explained below, however, the agreement
to arbitrate ADEA claims is not the waiver of a “substantive right”
as that term is employed in the ADEA. Wright , supra, at 80; see infra , at 15–16. Indeed, if the
“right” referred to in §626(f)(1) included the prospective waiver
of the right to bring an ADEA claim in court, even a waiver signed
by an individual employee would be invalid as the statute also
prevents individuals from “waiv[ing] rights or claims that may
arise after the date the waiver is executed.”
§626(f)(1)(C).[ Footnote 6 ]

															   Examination of the two federal statutes at
issue in this case, therefore, yields a straightforward answer to
the question presented: The NLRA provided the Union and the RAB
with statutory authority to collectively bargain for arbitration of
workplace discrimination claims, and Congress did not terminate
that authority with respect to federal age-discrimination claims in
the ADEA. Accordingly, there is no legal basis for the Court to
strike down the arbitration clause in this CBA, which was freely
negotiated by the Union and the RAB, and which clearly and
unmistakably requires respondents to arbitrate the
age-discrimination claims at issue in this appeal. Congress has
chosen to allow arbitration of ADEA claims. The Judiciary must
respect that choice.

															B

															   The CBA’s arbitration provision
is also fully enforceable under the Gardner-Denver line of
cases. Respondents interpret Gardner-Denver and its
progeny to hold that “a union cannot waive an employee’s right to a
judicial forum under the federal antidiscrimination statutes”
because “allowing the union to waive this right would substitute
the union’s interests for the employee’s antidiscrimination
rights.” Brief for Respondents 12. The “combination of union
control over the process and inherent conflict of interest with
respect to discrimination claims,” they argue, “provided the
foundation for the Court’s holding [in Gardner-Denver ]
that arbitration under a collective-bargaining agreement could not
preclude an individual employee’s right to bring a lawsuit in court
to vindicate a statutory discrimination claim.” Id. , at
15. We disagree.

															1

															   The holding of Gardner-Denver is not as broad as respondents suggest. The
employee in that case was covered by a collective-bargaining
agreement that prohibited “discrimination against any employee on
account of race, color, religion, sex, national origin, or
ancestry” and that guaranteed that “[n]o employee will be
discharged … except for just cause.” 415 U. S., at 39 (internal
quotation marks omitted). The agreement also included a “multistep
grievance procedure” that culminated in compulsory arbitration for
any “differences aris[ing] between the Company and the Union as to
the meaning and application of the provisions of this Agreement”
and “any trouble aris[ing] in the plant.” Id ., at 40–41
(internal quotation marks omitted).

															   The employee was discharged for
allegedly producing too many defective parts while working for the
respondent as a drill operator. He filed a grievance with his union
claiming that he was “ ‘unjustly discharged’ ” in
violation of the “ ‘just cause’ ” provision within the
CBA. Then at the final prearbitration step of the grievance
process, the employee added a claim that he was discharged because
of his race. Id. , at 38–42.

															   The arbitrator ultimately ruled that the
employee had been “ ‘discharged for just cause,’ ” but
“made no reference to [the] claim of racial discrimination.” Id ., at 42. After obtaining a right-to-sue letter from the
EEOC, the employee filed a claim in Federal District Court,
alleging racial discrimination in violation of Title VII of the
Civil Rights Act of 1964. The District Court issued a decision,
affirmed by the Court of Appeals, which granted summary judgment to
the employer because it concluded that “the claim of racial
discrimination had been submitted to the arbitrator and resolved
adversely to [the employee].” Id. , at 43. In the District
Court’s view, “having voluntarily elected to pursue his grievance
to final arbitration under the nondiscrimination clause of the
collective-bargaining agreement,” the employee was “bound by the
arbitral decision” and precluded from suing his employer on any
other grounds, such as a statutory claim under Title VII. Ibid .

															   This Court reversed the judgment on the narrow
ground that the arbitration was not preclusive because the
collective-bargaining agreement did not cover statutory claims. As
a result, the lower courts erred in relying on the “doctrine of
election of remedies” to bar the employee’s Title VII claim. Id. , at 49. “That doctrine, which refers to situations
where an individual pursues remedies that are legally or factually
inconsistent” with each other, did not apply to the employee’s dual
pursuit of arbitration and a Title VII discrimination claim in
district court. The employee’s collective-bargaining agreement did
not mandate arbitration of statutory antidiscrimination claims. Id. , at 49–50. “As the proctor of the bargain, the
arbitrator’s task is to effectuate the intent of the parties.” Id. , at 53. Because the collective-bargaining agreement
gave the arbitrator “authority to resolve only questions of
contractual rights,” his decision could not prevent the employee
from bringing the Title VII claim in federal court “regardless of
whether certain contractual rights are similar to, or duplicative
of, the substantive rights secured by Title VII.” Id. , at
53–54; see also id. , at 50.

															   The Court also explained that the employee had
not waived his right to pursue his Title VII claim in federal court
by participating in an arbitration that was premised on the same
underlying facts as the Title VII claim. See id., at 52.
Thus, whether the legal theory of preclusion advanced by the
employer rested on “the doctrines of election of remedies” or was
recast “as resting instead on the doctrine of equitable estoppel
and on themes of res judicata and collateral estoppel,” id. , at 49, n. 10 (internal quotation marks omitted),
it could not prevail in light of the collective-bargaining
agreement’s failure to address arbitration of Title VII claims. See id. , at 46, n. 6 (“[W]e hold that the federal policy
favoring arbitration does not establish that an arbitrator’s
resolution of a contractual claim is dispositive of a
statutory claim under Title VII” (emphasis added)).

															   The Court’s decisions following Gardner-Denver have not broadened its holding to make it
applicable to the facts of this case. In Barrentine v. Arkansas-Best Freight System, Inc. , 450 U. S. 728 (1981),
the Court considered “whether an employee may bring an action in
federal district court, alleging a violation of the minimum wage
provisions of the Fair Labor Standards Act, … after having
unsuccessfully submitted a wage claim based on the same underlying
facts to a joint grievance committee pursuant to the provisions of
his union’s collective-bargaining agreement.” Id. , at
729–730. The Court held that the unsuccessful arbitration did not
preclude the federal lawsuit. Like the collective-bargaining
agreement in Gardner-Denver , the arbitration provision
under review in Barrentine did not expressly reference the
statutory claim at issue. See 450 U. S., at 731, n. 5. The
Court thus reiterated that an “arbitrator’s power is both derived
from, and limited by, the collective-bargaining agreement” and
“[h]is task is limited to construing the meaning of the
collective-bargaining agreement so as to effectuate the collective
intent of the parties.” Id. , at 744. McDonald v. West Branch , 466 U. S. 284 (1984), was decided along similar lines. The question presented in
that case was “whether a federal court may accord preclusive effect
to an unappealed arbitration award in a case brought under [42 U.
S. C. §1983].” Id. , at 285. The Court declined to
fashion such a rule, again explaining that “because an arbitrator’s
authority derives solely from the contract, Barrentine , supra, at 744, an arbitrator may not have authority to
enforce §1983” when that provision is left unaddressed by the
arbitration agreement. Id. , at 290. Accordingly, as in
both Gardner-Denver and Barrentine , the Court’s
decision in McDonald hinged on the scope of the
collective-bargaining agreement and the arbitrator’s parallel
mandate.

															   The facts underlying Gardner-Denver , Barrentine , and McDonald reveal the narrow scope
of the legal rule arising from that trilogy of decisions.
Summarizing those opinions in Gilmer , this Court made
clear that the Gardner-Denver line of cases “did not
involve the issue of the enforceability of an agreement to
arbitrate statutory claims.” 500 U. S., at 35. Those decisions
instead “involved the quite different issue whether arbitration of
contract-based claims precluded subsequent judicial resolution of
statutory claims. Since the employees there had not agreed to
arbitrate their statutory claims, and the labor arbitrators were
not authorized to resolve such claims, the arbitration in those
cases understandably was held not to preclude subsequent statutory
actions.” Ibid.; see also Wright , 525 U. S., at
76; Livadas v. Bradshaw , 512 U. S. 107 , 127,
n. 21 (1994).[ Footnote 7 ] Gardner-Denver and its progeny thus do not control the
outcome where, as is the case here, the collective-bargaining
agreement’s arbitration provision expressly covers both statutory
and contractual discrimination claims.[ Footnote 8 ]

															2

															   We recognize that apart from
their narrow holdings, the Gardner-Denver line of cases
included broad dicta that was highly critical of the use of
arbitration for the vindication of statutory antidiscrimination
rights. That skepticism, however, rested on a misconceived view of
arbitration that this Court has since abandoned.

															   First, the Court in Gardner-Denver erroneously assumed that an agreement to
submit statutory discrimination claims to arbitration was
tantamount to a waiver of those rights. See 415 U. S., at 51.
(“[T]here can be no prospective waiver of an employee’s
rights under Title VII” (emphasis added)). For this reason, the
Court stated, “the rights conferred [by Title VII] can form no part
of the collective-bargaining process since waiver of these rights
would defeat the paramount congressional purpose behind Title VII.” Ibid.; see also id. , at 56 (“we have long
recognized that ‘the choice of forums inevitably affects the scope
of the substantive right to be vindicated’ ” (quoting U.
S. Bulk Carriers, Inc. v. Arguelles , 400 U. S. 351 , 359–360
(1971) (Harlan, J., concurring))).

															   The Court was correct in concluding that
federal antidiscrimination rights may not be prospectively waived,
see 29 U. S. C. §626(f)(1)(C); see supra, at 9, but
it confused an agreement to arbitrate those statutory claims with a
prospective waiver of the substantive right. The decision to
resolve ADEA claims by way of arbitration instead of litigation
does not waive the statutory right to be free from workplace age
discrimination; it waives only the right to seek relief from a
court in the first instance. See Gilmer , supra, at 26 (“ ‘[B]y agreeing to arbitrate a statutory claim, a
party does not forgo the substantive rights afforded by the
statute; it only submits to their resolution in an arbitral, rather
than a judicial, forum’ ” (quoting Mitsubishi Motors
Corp. , 473 U. S., at 628)). This “Court has been quite
specific in holding that arbitration agreements can be enforced
under the FAA without contravening the policies of congressional
enactments giving employees specific protection against
discrimination prohibited by federal law.” Circuit City Stores,
Inc. , 532 U. S., at 123. The suggestion in Gardner-Denver that the decision to arbitrate statutory
discrimination claims was tantamount to a substantive waiver of
those rights, therefore, reveals a distorted understanding of the
compromise made when an employee agrees to compulsory
arbitration.

															   In this respect, Gardner-Denver is a
direct descendant of the Court’s decision in Wilko v. Swan , 346 U. S. 427 (1953), which held that
an agreement to arbitrate claims under the Securities Act of 1933
was unenforceable. See id. , at 438. The Court subsequently
overruled Wilko and, in so doing, characterized the
decision as “pervaded by … ‘the old judicial hostility to
arbitration.’ ” Rodriguez de Quijas v. Shearson/American Express, Inc. , 490 U. S. 477 , 480
(1989). The Court added: “To the extent that Wilko rested
on suspicion of arbitration as a method of weakening the
protections afforded in the substantive law to would-be
complainants, it has fallen far out of step with our current strong
endorsement of the federal statutes favoring this method of
resolving disputes.” Id. , at 481; see also Mitsubishi
Motors Corp. , supra, at 626–627 (“[W]e are well past
the time when judicial suspicion of the desirability of arbitration
and of the competence of arbitral tribunals inhibited the
development of arbitration as an alternative means of dispute
resolution”). The timeworn “mistrust of the arbitral process”
harbored by the Court in Gardner-Denver thus weighs
against reliance on anything more than its core holding. Shearson/American Express Inc. v. McMahon , 482 U. S. 220 , 231–232 (1987); see
also Gilmer , 500 U. S., at 34, n. 5 (reiterating that Gardner-Denver ’s view of arbitration “has been undermined
by [the Court’s] recent arbitration decisions”). Indeed, in light
of the “radical change, over two decades, in the Court’s
receptivity to arbitration,” Wright , 525 U. S., at 77,
reliance on any judicial decision similarly littered with Wilko ’s overt hostility to the enforcement of arbitration
agreements would be ill advised. [ Footnote 9 ] Second, Gardner-Denver mistakenly suggested that certain features
of arbitration made it a forum “well suited to the resolution of
contractual disputes,” but “a comparatively inappropriate forum for
the final resolution of rights created by Title VII.” 415 U. S., at
56. According to the Court, the “factfinding process in
arbitration” is “not equivalent to judicial factfinding” and the
“informality of arbitral procedure … makes arbitration a less
appropriate forum for final resolution of Title VII issues than the
federal courts.” Id ., at 57, 58. The Court also questioned
the competence of arbitrators to decide federal statutory claims.
See id ., at 57 (“[T]he specialized competence of
arbitrators pertains primarily to the law of the shop, not the law
of the land”); Barrentine , 450 U. S., at 743 (“Although an
arbitrator may be competent to resolve many preliminary factual
questions, such as whether the employee ‘punched in’ when he said
he did, he may lack competence to decide the ultimate legal issue
whether an employee’s right to a minimum wage or to overtime pay
under the statute has been violated”). In the Court’s view, “the
resolution of statutory or constitutional issues is a primary
responsibility of courts, and judicial construction has proved
especially necessary with respect to Title VII, whose broad
language frequently can be given meaning only by reference to
public law concepts.” Gardner-Denver , supra, at
57; see also McDonald , 466 U. S., at 290 (“An arbitrator
may not … have the expertise required to resolve the complex legal
questions that arise in §1983 actions”). These misconceptions have been
corrected. For example, the Court has “recognized that arbitral
tribunals are readily capable of handling the factual and legal
complexities of antitrust claims, notwithstanding the absence of
judicial instruction and supervision” and that “there is no reason
to assume at the outset that arbitrators will not follow the law.” McMahon , supra, at 232; Mitsubishi Motors
Corp. , 473 U. S., at 634 (“We decline to indulge the
presumption that the parties and arbitral body conducting a
proceeding will be unable or unwilling to retain competent,
conscientious, and impartial arbitrators”). An arbitrator’s
capacity to resolve complex questions of fact and law extends with
equal force to discrimination claims brought under the ADEA.
Moreover, the recognition that arbitration procedures are more
streamlined than federal litigation is not a basis for finding the
forum somehow inadequate; the relative informality of arbitration
is one of the chief reasons that parties select arbitration.
Parties “trad[e] the procedures and opportunity for review of the
courtroom for the simplicity, informality, and expedition of
arbitration.” Id. , at 628. In any event, “[i]t is unlikely
… that age discrimination claims require more extensive discovery
than other claims that we have found to be arbitrable, such as RICO
and antitrust claims.” Gilmer , 500 U. S., at 31. At
bottom, objections centered on the nature of arbitration do not
offer a credible basis for discrediting the choice of that forum to
resolve statutory antidiscrimination claims.[ Footnote 10 ] Third, the Court in Gardner-Denver raised in a footnote a “further concern”
regarding “the union’s exclusive control over the manner and extent
to which an individual grievance is presented.” 415 U. S., at 58,
n. 19. The Court suggested that in arbitration, as in the
collective-bargaining process, a union may subordinate the
interests of an individual employee to the collective interests of
all employees in the bargaining unit. Ibid.; see also McDonald , supra , at 291 (“The union’s interests
and those of the individual employee are not always identical or
even compatible. As a result, the union may present the employee’s
grievance less vigorously, or make different strategic choices,
than would the employee”); see also Barrentine , supra, at 742; post , at 8, n. 4
(Souter, J., dissenting). We cannot rely on this
judicial policy concern as a source of authority for introducing a
qualification into the ADEA that is not found in its text. Absent a
constitutional barrier, “it is not for us to substitute our view of
… policy for the legislation which has been passed by Congress.” Florida Dept. of Revenue v. Piccadilly Cafeterias,
Inc. , 554 U. S. ___, ___ (2008) (slip op., at 18) (internal
quotation marks omitted). Congress is fully equipped “to identify
any category of claims as to which agreements to arbitrate will be
held unenforceable.” Mitsubishi Motors Corp. , supra , at 627. Until Congress amends the ADEA to meet the
conflict-of-interest concern identified in the Gardner-Denver dicta, and seized on by respondents here,
there is “no reason to color the lens through which the arbitration
clause is read” simply because of an alleged conflict of interest
between a union and its members. Mitsubishi Motors Corp.,
supra, at 628. This is a “battl[e] that should be fought among
the political branches and the industry. Those parties should not
seek to amend the statute by appeal to the Judicial Branch.” Barnhart v. Sigmon Coal Co. , 534 U. S. 438 , 462
(2002). The conflict-of-interest
argument also proves too much. Labor unions certainly balance the
economic interests of some employees against the needs of the
larger work force as they negotiate collective-bargain agreements
and implement them on a daily basis. But this attribute of
organized labor does not justify singling out an arbitration
provision for disfavored treatment. This “principle of majority
rule” to which respondents object is in fact the central premise of
the NLRA. Emporium Capwell Co. v. Western Addition
Community Organization , 420 U. S. 50 , 62 (1975).
“In establishing a regime of majority rule, Congress sought to
secure to all members of the unit the benefits of their collective
strength and bargaining power, in full awareness that the superior
strength of some individuals or groups might be subordinated to the
interest of the majority.” Ibid. (footnote omitted); see
also Ford Motor Co. v. Huffman , 345 U. S. 330 , 338
(1953) (“The complete satisfaction of all who are represented is
hardly to be expected”); Pennsylvania R. Co. v. Rychlik , 352 U. S. 480 , 498
(1957) (Frankfurter, J., concurring). It was Congress’ verdict that
the benefits of organized labor outweigh the sacrifice of
individual liberty that this system necessarily demands.
Respondents’ argument that they were deprived of the right to
pursue their ADEA claims in federal court by a labor union with a
conflict of interest is therefore unsustainable; it amounts to a
collateral attack on the NLRA. In any event, Congress has
accounted for this conflict of interest in several ways. As
indicated above, the NLRA has been interpreted to impose a “duty of
fair representation” on labor unions, which a union breaches “when
its conduct toward a member of the bargaining unit is arbitrary,
discriminatory, or in bad faith.” Marquez v. Screen
Actors , 525 U.
S. 33 , 44 (1998). This duty extends to “challenges leveled not
only at a union’s contract administration and enforcement efforts
but at its negotiation activities as well.” Beck , 487 U.
S., at 743 (citation omitted). Thus, a union is subject to
liability under the NLRA if it illegally discriminates against
older workers in either the formation or governance of the
collective-bargaining agreement, such as by deciding not to pursue
a grievance on behalf of one of its members for discriminatory
reasons. See Vaca v. Sipes , 386 U. S. 171 , 177
(1967) (describing the duty of fair representation as the
“statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise
its discretion with complete good faith and honesty, and to avoid
arbitrary conduct” (emphasis added)). Respondents in fact brought a
fair representation suit against the Union based on its withdrawal
of support for their age-discrimination claims. See n. 2, supra . Given this avenue that Congress has made available
to redress a union’s violation of its duty to its members, it is
particularly inappropriate to ask this Court to impose an
artificial limitation on the collective-bargaining
process. In addition, a union is
subject to liability under the ADEA if the union itself
discriminates against its members on the basis of age. See 29 U.
S. C. §623(d); see also 1 B. Lindemann &
P. Grossman, Employment Discrimination Law 1575–1581 (4th ed.
2007) (explaining that a labor union may be held jointly liable
with an employer under federal antidiscrimination laws for
discriminating in the formation of a collective-bargaining
agreement, knowingly acquiescing in the employer’s discrimination,
or inducing the employer to discriminate); cf. Goodman v. Lukens Steel Co. , 482 U. S. 656 , 669
(1987). Union members may also file age-discrimination claims with
the EEOC and the National Labor Relations Board, which may then
seek judicial intervention under this Court’s precedent. See EEOC v. Waffle House, Inc. , 534 U. S. 279 , 295–296
(2002). In sum, Congress has provided remedies for the situation
where a labor union is less than vigorous in defense of its
members’ claims of discrimination under the ADEA. III Finally,
respondents offer a series of arguments contending that the
particular CBA at issue here does not clearly and unmistakably
require them to arbitrate their ADEA claims. See Brief for
Respondents 44–47. But respondents did not raise these
contract-based arguments in the District Court or the Court of
Appeals. To the contrary, respondents acknowledged on appeal that
the CBA provision requiring arbitration of their federal
antidiscrimination statutory claims “is sufficiently explicit” in
precluding their federal lawsuit. Brief for Plaintiffs-Appellees in
No. 06–3047–cv(L) etc. (CA2), p. 9. In light of respondents’
litigating position, both lower courts assumed that the CBA’s
arbitration clause clearly applied to respondents and proceeded to
decide the question left unresolved in Wright . We granted
review of the question presented on that understanding. “Without
cross-petitioning for certiorari, a prevailing party may, of
course, ‘defend its judgment on any ground properly raised below
whether or not that ground was relied upon, rejected, or even
considered by the District Court or the Court of Appeals.’ ” Granfinanciera, S. A. v. Nordberg , 492 U. S. 33 , 38–39
(1989) (quoting Washington v. Confederated Bands and
Tribes of Yakima Nation , 439 U. S. 463 , 476,
n. 20 (1979)). But this Court will affirm on grounds that have
“ ‘not been raised below … “only in exceptional
cases.” ’ ” Nordberg, supra, at 39 (quoting Heckler v. Campbell , 461 U. S. 458 , 468–469,
n. 12 (1983)). This is not an “exceptional case.” As a result,
we find that respondents’ alternative arguments for affirmance have
been forfeited. See, e.g. , Rita v. United
States , 551 U.
S. 338 , 360 (2007); Sprietsma v. Mercury
Marine , 537 U.
S. 51 , 56, n. 4 (2002). We will not resurrect them on
respondents’ behalf. Respondents also argue that
the CBA operates as a substantive waiver of their ADEA rights
because it not only precludes a federal lawsuit, but also allows
the Union to block arbitration of these claims. Brief for
Respondents 28–30. Petitioners contest this characterization of the
CBA, see Reply Brief for Petitioners 23–27, and offer record
evidence suggesting that the Union has allowed respondents to
continue with the arbitration even though the Union has declined to
participate, see App. to Pet. for Cert. 42a. But not only does this
question require resolution of contested factual allegations, it
was not fully briefed to this or any court and is not fairly
encompassed within the question presented, see this Court’s Rule
14.1(a). Thus, although a substantive waiver of federally protected
civil rights will not be upheld, see Mitsubishi Motors
Corp ., 473 U. S., at 637, and n. 19; Gilmer , 500
U. S., at 29, we are not positioned to resolve in the first
instance whether the CBA allows the Union to prevent respondents
from “effectively vindicating” their “federal statutory rights in
the arbitral forum,” Green Tree Financial
Corp. - Ala. v. Randolph , 531 U. S. 79 , 90 (2000).
Resolution of this question at this juncture would be particularly
inappropriate in light of our hesitation to invalidate arbitration
agreements on the basis of speculation. See id ., at
91. IV We hold that a
collective-bargaining agreement that clearly and unmistakably
requires union members to arbitrate ADEA claims is enforceable as a
matter of federal law. The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings
consistent with this opinion. It is so ordered. Footnote
1 Article V establishes the
grievance process, which applies to all claims regardless of
whether they are subject to arbitration under the CBA. Article VI
establishes the procedures for arbitration and postarbitration
judicial review, and, in particular, provides that the arbitrator
“shall … decide all differences arising between the parties as to
interpretation, application or performance of any part of this
Agreement and such other issues as the parties are expressly
required to arbitrate before him under the terms of this
Agreement.” App. to Pet. for Cert. 43a–47a. Footnote
2 Respondents also filed a
“hybrid” lawsuit against the Union and petitioners under §301 of
the Labor Management Relations Act, 1947, 29 U. S. C. §185,
see also DelCostello v. Teamsters , 462 U. S. 151 , 164–165
(1983), alleging that the Union breached its “duty of fair
representation” under the NLRA by withdrawing support for the
age-discrimination claims during the arbitration and that
petitioners breached the CBA by reassigning respondents.
Respondents later voluntarily dismissed this suit with
prejudice. Footnote
3 Petitioners also filed a
motion to dismiss the complaint for failure to state a claim. The
District Court denied the motion, holding that respondents had
sufficiently alleged an ADEA claim by claiming that they “were over
the age of 40, … they were reassigned to positions which led to
substantial losses in income, and … their replacements were both
younger and had less seniority at the building.” App. to Pet. for
Cert. 20a (footnote omitted). Petitioners have not appealed that
ruling. Footnote
4 Compare , e.g. , Rogers v. New York Univ. , 220 F. 3d 73, 75
(CA2 2000) (per curiam); O’Brien v. Agawam, 350
F. 3d 279, 285 (CA1 2003); Mitchell v. Chapman, 343 F. 3d 811, 824 (CA6 2003); Tice v. American Airlines, Inc. , 288 F. 3d 313, 317 (CA7
2002), with , e.g. , Eastern Associated Coal Corp. v. Massey, 373 F. 3d 530, 533 (CA4 2004). Footnote
5 Justice Souter claims that
this understanding is “impossible to square with our conclusion in
[ Alexander v.] Gardner-Denver [ Co. , 415 U.
S. 36 (1974)] that ‘Title VII … stands on plainly different
ground’ from ‘statutory rights related to collective activity’: ‘it
concerns not majoritarian processes, but an individual’s right to
equal employment opportunities.’ ” Post , at 5
(dissenting opinion) (quoting Gardner-Denver , 415 U.
S. , at 51). As explained below, however, Justice Souter
repeats the key analytical mistake made in Gardner-Denver ’s dicta by equating the decision to
arbitrate Title VII and ADEA claims to a decision to forgo these
substantive guarantees against workplace discrimination. See infra , at 15–17. The right to a judicial forum is not the
nonwaivable “substantive” right protected by the ADEA. See infra , at 9, 24. Thus, although Title VII and ADEA rights
may well stand on “different ground” than statutory rights that
protect “majoritarian processes,” Gardner-Denver , supra , at 51, the voluntary decision to collectively
bargain for arbitration does not deny those statutory
antidiscrimination rights the full protection they are
due. Footnote
6 Respondents’ contention that
§118 of the Civil Rights Act of 1991, Pub. L. 102–166, 105 Stat.
1081, note following 42 U. S. C. §1981 (2000 ed.), precludes
the enforcement of this arbitration agreement also is misplaced.
See Brief for Respondents 31–32; see also post , at 8–9
(Souter, J., dissenting). Section 118 expresses Congress’ support
for alternative dispute resolution: “Where appropriate and to the
extent authorized by law, the use of alternative means of dispute
resolution, including … arbitration, is encouraged to resolve
disputes arising under” the ADEA. 105 Stat. 1081, note following 42
U. S.C. §1981. Respondents argue that the legislative history
actually signals Congress’ intent to preclude arbitration waivers
in the collective-bargaining context. In particular, respondents
point to a House Report that, in spite of the statute’s plain
language, interprets §118 to support their position. See H. R.
Rep. No. 102–40, pt. 1, p. 97 (1991) (“[A]ny agreement to
submit disputed issues to arbitration … in the context of a
collective bargaining agreement … does not preclude the affected
person from seeking relief under the enforcement provisions of
Title VII. This view is consistent with the Supreme Court’s
interpretation of Title VII in Alexander v. Gardner-Denver Co. , 415 U.
S. 36 (1974)”). But the legislative history mischaracterizes
the holding of Gardner-Denver , which does not prohibit
collective bargaining for arbitration of ADEA claims. See infra, at 11–14. Moreover, reading the legislative history
in the manner suggested by respondents would create a direct
conflict with the statutory text, which encourages the use of
arbitration for dispute resolution without imposing any constraints
on collective bargaining. In such a contest, the text must prevail.
See Ratzlaf v. United States , 510 U. S. 135 , 147–148
(1994) (“[W]e do not resort to legislative history to cloud a
statutory text that is clear”). Footnote
7 Justice Souter’s reliance on Wright v. Universal Maritime Service Corp. , 525 U. S. 70 (1998), to support its
view of Gardner-Denver is misplaced. See post , at
5, 7. Wright identified the “tension” between the two
lines of cases represented by Gardner-Denver and Gilmer , but found “it unnecessary to resolve the question
of the validity of a union-negotiated waiver, since it [was]
apparent … on the facts and arguments presented … that no such
waiver [had] occurred.” 525 U. S., at 76–77. And although his
dissent describes Wright ’s characterization of Gardner-Denver as “raising a ‘seemingly absolute
prohibition of union waiver of employees’ federal forum
rights,’ ” post , at 7 (quoting Wright , 525
U. S. , at 80), it wrenches the statement out of context:
“Although [the right to a judicial forum] is not a substantive
right, see Gilmer , 500 U. S., at 26, and whether or
not Gardner-Denver ’s seemingly absolute prohibition of union
waiver of employees’ federal forum rights survives Gilmer , Gardner-Denver at least stands for the proposition that
the right to a federal judicial forum is of sufficient importance
to be protected against less-than-explicit union waiver in a CBA,” id., at 80 (emphasis added). Wright therefore
neither endorsed Gardner-Denver ’s broad language nor
suggested a particular result in this case. Footnote
8 Because today’s decision does
not contradict the holding of Gardner-Denver , we need not
resolve the stare decisis concerns raised by the
dissenting opinions. See post , at 4, 9 (opinion of Souter,
J.); post , at 2–4 (opinion of Stevens, J.). But given the
development of this Court’s arbitration jurisprudence in the
intervening years, see infra , at 16–19, Gardner-Denver would appear to be a strong candidate for
overruling if the dissents’ broad view of its holding, see post , at 6–7 (opinion of Souter, J.), were correct.
See Patterson v. McLean Credit Union , 491 U. S. 164 , 173
(1989) (explaining that it is appropriate to overrule a decision
where there “has been [an] intervening development of the law” such
that the earlier “decision [is] irreconcilable with competing legal
doctrines and policies”). Footnote
9 Justice Stevens suggests that
the Court is displacing its “earlier determination of the relevant
provisions’ meaning” based on a “preference for arbitration.” Post , at 2. But his criticism lacks any basis. We are not
revisiting a settled issue or disregarding an earlier
determination; the Court is simply deciding the question identified
in Wright as unresolved. See supra , at 5–6; see
also infra , at 23–24. And, contrary to Justice Stevens’
accusation, it is the Court’s fidelity to the ADEA’s text—not an
alleged preference for arbitration—that dictates the answer to the
question presented. As Gilmer explained, nothing in the
text of Title VII or the ADEA precludes contractual arbitration,
see supra , at 8–9, and Justice Stevens has never suggested
otherwise. Rather, he has always contended that permitting the
“compulsory arbitration” of employment discrimination claims
conflicts with his perception of “the congressional purpose
animating the ADEA.” Gilmer , 500 U. S., at 41 (Stevens,
J., dissenting); see also id. , at 42 (“Plainly, it would
not comport with the congressional objectives behind a statute
seeking to enforce civil rights protected by Title VII to allow the
very forces that had practiced discrimination to contract away the
right to enforce civil rights in the courts” (internal quotation
marks omitted)). The Gilmer Court did not adopt Justice
Stevens’ personal view of the purposes underlying the ADEA, for
good reason: That view is not embodied within the statute’s text.
Accordingly, it is not the statutory text that Justice Stevens has
sought to vindicate—it is instead his own “preference” for
mandatory judicial review, which he disguises as a search for
congressional purpose. This Court is not empowered to incorporate
such a preference into the text of a federal statute. See infra , at 20–21. It is for this reason, and not because of
a “policy favoring arbitration,” see post , at 1, 3
(Stevens, J., dissenting), that the Court overturned Wilko v. Swan , 346 U. S. 427 (1953). And it is why we
disavow the antiarbitration dicta of Gardner-Denver and
its progeny today. Footnote
10 Moreover, an arbitrator’s
decision as to whether a unionized employee has been discriminated
against on the basis of age in violation of the ADEA remains
subject to judicial review under the FAA. 9 U. S. C. §10(a).
“[A]lthough judicial scrutiny of arbitration awards necessarily is
limited, such review is sufficient to ensure that arbitrators
comply with the requirements of the statute.” Shearson/American
Express Inc. v. McMahon , 482 U. S. 220 , 232 (1987). STEVENS, J., DISSENTING 14 PENN PLAZA LLC V. PYETT 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-581 14 PENN PLAZA LLC, et al., PETITIONERS v. STEVEN PYETT et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[April 1, 2009]

															   Justice Stevens, dissenting.

															   Justice Souter’s dissenting
opinion, which I join in full, explains why our decision in Alexander v. Gardner-Denver Co. , 415 U. S. 36 (1974), answers the
question presented in this case. My concern regarding the Court’s
subversion of precedent to the policy favoring arbitration prompts
these additional remarks.

															   Notwithstanding the absence of change in any
relevant statutory provision, the Court has recently retreated
from, and in some cases reversed, prior decisions based on its
changed view of the merits of arbitration. Previously, the Court
approached with caution questions involving a union’s waiver of an
employee’s right to raise statutory claims in a federal judicial
forum. After searching the text and purposes of Title VII of the
Civil Rights Act of 1964, the Court in Gardner-Denver held
that a clause of a collective-bargaining agreement (CBA) requiring
arbitration of discrimination claims could not waive an employee’s
right to a judicial forum for statutory claims. See 415 U. S., at
51. The Court’s decision rested on several features of the statute,
including the individual nature of the rights it confers, the broad
remedial powers it grants federal courts, and its expressed
preference for overlapping remedies. See id. , at 44–48.
The Court also noted the problem of entrusting a union with certain
arbitration decisions given the potential conflict between the
collective interest and the interests of an individual employee
seeking to assert his rights. See id. , at 58, n. 19.
That concern later provided a basis for our decisions in Barrentine v. Arkansas-Best Freight System, Inc. , 450 U. S. 728 ,
742 (1981), and McDonald v. West Branch , 466 U. S. 284 , 291
(1984), which similarly held that a CBA may not commit enforcement
of certain rights-creating statutes exclusively to a
union-controlled arbitration process. Congress has taken no action
signaling disagreement with those decisions.

															   The statutes construed by the Court in the
foregoing cases and in Wilko v. Swan , 346 U. S. 427 (1953),
have not since been amended in any relevant respect. But the Court
has in a number of cases replaced our predecessors’ statutory
analysis with judicial reasoning espousing a policy favoring
arbitration and thereby reached divergent results. I dissented in
those cases to express concern that my colleagues were making
policy choices not made by Congress. See Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U. S. 614 , 640
(1985); Rodriguez de Quijas v. Shearson/American
Express, Inc. , 490 U. S. 477 , 486
(1989); Gilmer v. Interstate/Johnson Lane Corp. , 500 U. S. 20 , 36 (1991); and Circuit City Stores, Inc. v. Adams , 532 U. S. 105 , 124
(2001).

															   Today the majority’s preference for
arbitration again leads it to disregard our precedent. Although it
purports to ascertain the relationship between the Age
Discrimination in Employment Act of 1967 (ADEA), the National Labor
Relations Act, and the Federal Arbitration Act, the Court ignores
our earlier determination of the relevant provisions’ meaning. The
Court concludes that “[i]t was Congress’ verdict that the benefits
of organized labor outweigh the sacrifice of individual liberty”
that the system of organized labor “necessarily demands,” even when
the sacrifice demanded is a judicial forum for asserting an
individual statutory right. Ante , at 22. But in Gard-
ner-Denver we determined that “Congress’ verdict” was
otherwise when we held that Title VII does not permit a CBA to
waive an employee’s right to a federal judicial forum. Because the
purposes and relevant provisions of Title VII and the ADEA are not
meaningfully distinguishable, it is only by reexamining the
statutory questions resolved in Gardner-Denver through the
lens of the policy favoring arbitration that the majority now
reaches a different result.

															   Under the circumstances, I believe a passage
from one of my earlier dissents merits repetition. The Court in Rodriguez de Quijas overruled our decision in Wilko and held that predispute agreements to arbitrate
claims under the Securities Act of 1933 are enforceable. 490 U. S.,
at 484; see also id. , at 481 (noting Wilko ’s
reliance on “the outmoded presumption of disfavoring arbitration
proceedings”). I observed in dissent:

															   “In the final analysis, a
Justice’s vote in a case like this depends more on his or her views
about the respective lawmaking responsibilities of Congress and
this Court than on conflicting policy interests. Judges who have
confidence in their own ability to fashion public policy are less
hesitant to change the law than those of us who are inclined to
give wide latitude to the views of the voters’ representatives on
nonconstitutional matters. Cf. Boyle v. United
Technologies Corp. , 487 U. S. 500 (1988). As
I pointed out years ago, Alberto-Culver Co. v. Scherk , 484 F. 2d 611 (CA7 1973) (dissenting
opinion), rev’d, 417
U. S. 506 (1974), there are valid policy and textual arguments
on both sides regarding the interrelation of federal securities and
arbitration Acts. None of these arguments, however, carries
sufficient weight to tip the balance between judicial and
legislative authority and overturn an interpretation of an Act of
Congress that has been settled for many years.” Rodriguez de
Quijas , 490 U. S., at 487 (footnote and citation omitted).

															   As was true in Rodriguez de
Quijas , there are competing arguments in this case regarding
the interaction of the relevant statutory provisions. But the Court
in Gardner-Denver considered these arguments, including
“the federal policy favoring arbitration of labor disputes,” 415 U.
S., at 59, and held that Congress did not intend to permit the
result petitioners seek. In the absence of an intervening amendment
to the relevant statutory language, we are bound by that decision.
It is for Congress, rather than this Court, to reassess the policy
arguments favoring arbitration and revise the relevant provisions
to reflect its views.

															 Referring to the potential conflict between
individual and collective interests, the Court asserts that it
“cannot rely on this judicial policy concern as a source of
authority for introducing a qualification into the ADEA that is not
found in its text.” Ante , at 21. That potential conflict
of interests, however, was a basis for our decision in several
pertinent cases, including Alexander v. Gardner-Denver
Co. , 415
U. S. 36 (1974), and Gilmer v. Interstate/Johnson
Lane Corp. , 500 U. S. 20 , 35 (1991), and in the
intervening years Congress has not seen fit to correct that
interpretation. The Court’s derision of that “policy concern” is
particularly disingenuous given its subversion of Gardner-Denver ’s holding in the service of an extratextual
policy favoring arbitration. SOUTER, J., DISSENTING 14 PENN PLAZA LLC V. PYETT 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-581 14 PENN PLAZA LLC, et al., PETITIONERS v. STEVEN PYETT et al.

															on writ of certiorari to the united states court of
appeals for the second circuit

															[April 1, 2009]

															   Justice Souter, with whom Justice
Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.

															   The issue here is whether
employees subject to a collective-bargaining agreement (CBA)
providing for conclusive arbitration of all grievances, including
claimed breaches of the Age Discrimination in Employment Act of
1967 (ADEA), 29 U. S. C. §621 et seq. , lose their
statutory right to bring an ADEA claim in court, §626(c). Under the
35- year-old holding in Alexander v. Gardner-Denver
Co. , 415 U. S.
36 (1974), they do not, and I would adhere to stare
decisis and so hold today.

															I

															   Like Title VII of the Civil
Rights Act of 1964, 42 U. S. C. §2000e et seq. , the
ADEA is aimed at “ ‘the elimination of discrimination in the
workplace,’ ” McKennon v. Nashville Banner
Publishing Co. , 513 U. S. 352 , 358
(1995) (quoting Oscar Mayer & Co. v. Evans , 441 U. S. 750 ,
756 (1979)), and, again like Title VII, the ADEA “contains a vital
element … : It grants an injured employee a right of action to
obtain the authorized relief,” 513 U. S., at 358 . “Any
person aggrieved” under the Act “may bring a civil action in any
court of competent jurisdiction for legal or equitable relief,” 29
U. S. C. §626(c), thereby “not only redress[ing] his own
injury but also vindicat[ing] the important congressional policy
against discriminatory employment practices,” Gardner-Denver , supra , at 45. Gardner-Denver considered the effect of a CBA’s arbitration clause on an
employee’s right to sue under Title VII. One of the employer’s
arguments was that the CBA entered into by the union had waived
individual employees’ statutory cause of action subject to a
judicial remedy for discrimination in violation of Title VII.
Although Title VII, like the ADEA, “does not speak expressly to the
relationship between federal courts and the grievance-arbitration
machinery of collective-bargaining agreements,” 415 U. S., at 47,
we unanimously held that “the rights conferred” by Title VII (with
no exception for the right to a judicial forum) cannot be waived as
“part of the collective bargaining process,” id. , at 51.
We stressed the contrast between two categories of rights in labor
and employment law. There were “statutory rights related to
collective activity,” which “are conferred on employees
collectively to foster the processes of bargaining[, which]
properly may be exercised or relinquished by the union as
collective-bargaining agent to obtain economic benefits for union
members.” Ibid. But “Title VII … stands on plainly
different [categorical] ground; it concerns not majoritarian
processes, but an individual’s right to equal employment
opportunities.” Ibid. Thus, as the Court previously
realized, Gardner-Denver imposed a “seemingly absolute
prohibition of union waiver of employees’ federal forum rights.” Wright v. Universal Maritime Service Corp. , 525 U. S. 70 , 80
(1998).[ Footnote 1 ]

															   We supported the judgment with several other
lines of complementary reasoning. First, we explained that
antidiscrimination statutes “have long evinced a general intent to
accord parallel or overlapping remedies against discrimination,”
and Title VII’s statutory scheme carried “no suggestion … that a
prior arbitral decision either forecloses an individual’s right to
sue or divests federal courts of jurisdiction.” Gardner-Denver , 415 U. S., at 47. We accordingly concluded
that “an individual does not forfeit his private cause of action if
he first pursues his grievance to final arbitration under the
nondiscrimination clause of a collective-bargaining agreement.” Id. , at 49.

															   Second, we rejected the District Court’s view
that simply participating in the arbitration amounted to electing
the arbitration remedy and waiving the plaintiff’s right to sue. We
said that the arbitration agreement at issue covered only a
contractual right under the CBA to be free from discrimination, not
the “independent statutory rights accorded by Congress” in Title
VII. Id. , at 49–50. Third, we rebuffed the employer’s
argument that federal courts should defer to arbitral rulings. We
declined to make the “assumption that arbitral processes are
commensurate with judicial processes,” id. , at 56, and
described arbitration as “a less appropriate forum for final
resolution of Title VII issues than the federal courts,” id. , at 58.

															   Finally, we took note that “[i]n arbitration,
as in the collective bargaining process, the interests of the
individual employee may be subordinated to the collective interests
of all employees in the bargaining unit,” ibid., n. 19, a result we deemed unacceptable when it came to Title
VII claims. In sum, Gardner-Denver held that an
individual’s statutory right of freedom from discrimination and
access to court for enforcement were beyond a union’s power to
waive.

															   Our analysis of Title VII in Gardner-Denver is just as pertinent to the ADEA in this
case. The “interpretation of Title VII … applies with equal force
in the context of age discrimination, for the substantive
provisions of the ADEA ‘were derived in haec verba from
Title VII,’ ” and indeed neither petitioners nor the Court
points to any relevant distinction between the two statutes. Trans World Airlines, Inc. v. Thurston , 469 U. S. 111 , 121
(1985) (quoting Lorillard v. Pons , 434 U. S. 575 , 584
(1978)); see also McKennon , 513 U. S., at 358 (“The ADEA
and Title VII share common substantive features and also a common
purpose”). Given the unquestionable applicability of the Gardner-Denver rule to this ADEA issue, the argument that
its precedent be followed in this case of statutory interpretation
is equally unquestionable. “Principles of stare decisis …
demand respect for precedent whether judicial methods of
interpretation change or stay the same. Were that not so, those
principles would fail to achieve the legal stability that they seek
and upon which the rule of law depends.” CBOCS West, Inc. v. Humphries , 553 U. S. ___, ___ (2008) (slip op., at 14).
And “[c]onsiderations of stare decisis have special force”
over an issue of statutory interpretation, which is unlike
constitutional interpretation owing to the capacity of Congress to
alter any reading we adopt simply by amending the statute. Patterson v. McLean Credit Union , 491 U. S. 164 , 172–173
(1989). Once we have construed a statute, stability is the rule,
and “we will not depart from [it] without some compelling
justification.” Hilton v. South Carolina Public
Railways Comm’n , 502 U. S. 197 , 202
(1991). There is no argument for abandoning precedent here, and Gardner-Denver controls.

															II

															   The majority evades the precedent
of Gardner-Denver as long as it can simply by ignoring it.
The Court never mentions the case before concluding that the ADEA
and the National Labor Relations Act, 29 U. S. C. §151 et
seq. , “yiel[d] a straightforward answer to the question
presented,” ante , at 10, that is, that unions can bargain
away individual rights to a federal forum for antidiscrimination
claims. If this were a case of first impression, it would at least
be possible to consider that conclusion, but the issue is settled
and the time is too late by 35 years to make the bald assertion
that “[n]othing in the law suggests a distinction between the
status of arbitration agreements signed by an individual employee
and those agreed to by a union representative.” Ante , at
9. In fact, we recently and unanimously said that the principle
that “federal forum rights cannot be waived in union-negotiated
CBAs even if they can be waived in individually executed contracts
… assuredly finds support in” our case law, Wright , 525 U.
S., at 77, and every Court of Appeals save one has read our
decisions as holding to this position, Air Line Pilots Assn.,
Int’l v. Northwest Airlines, Inc. , 199 F. 3d
477, 484 (CADC 1999) (“We see a clear rule of law emerging from Gardner-Denver and Gilmer [v. Interstate/Johnson Lane Corp. , 500 U. S. 20 (1991)]: … an individual
may prospectively waive his own statutory right to a judicial
forum, but his union may not prospectively waive that right for
him. All of the circuits to have considered the meaning of Gardner-Denver after Gilmer, other than the
Fourth, are in accord with this view”).

															   Equally at odds with existing law
is the majority’s statement that “[t]he decision to fashion a CBA
to require arbitration of employment-discrimination claims is no
different from the many other decisions made by parties in
designing grievance machinery.” Ante , at 7. That is simply
impossible to square with our conclusion in Gardner-Denver that “Title VII … stands on plainly different ground” from
“statutory rights related to collective activity”: “it concerns not
majoritarian processes, but an individual’s right to equal
employment opportunities.” 415 U. S., at 51; see also Atchison,
T. & S. F. R. Co. v. Buell , 480 U. S. 557 , 565
(1987) (“[N]otwithstanding the strong policies encouraging
arbitration, ‘different considerations apply where the employee’s
claim is based on rights arising out of a statute designed to
provide minimum substantive guarantees to individual
workers’ ” (quoting Barrentine v. Arkansas-Best
Freight System, Inc. , 450 U. S. 728 , 737 (1981))).

															   When the majority does speak to Gardner-Denver , it misreads the case in claiming that it
turned solely “on the narrow ground that the arbitration was not
preclusive because the collective-bargaining agreement did not
cover statutory claims.” Ante , at 12. That, however, was
merely one of several reasons given in support of the decision, see Gardner-Denver , 415 U. S., at 47–59, and we raised it to
explain why the District Court made a mistake in thinking that the
employee lost his Title VII rights by electing to pursue the
contractual arbitration remedy, see id. , at 49–50. One
need only read Gardner-Denver itself to know that it was
not at all so narrowly reasoned, and we have noted already how
later cases have made this abundantly clear. Barrentine v. Arkansas-Best Freight System, Inc. , 450 U. S., at 737,
provides further testimony:

															“Not all disputes between an employee and his
employer are suited for binding resolution in accordance with the
procedures established by collective bargaining. While courts
should defer to an arbitral decision where the employee’s claim is
based on rights arising out of a collective-bargaining agreement,
different considerations apply where the employee’s claim is based
on rights arising out of a statute designed to provide minimum
substantive guarantees to individual workers.

															   “These considerations were the basis for our
decision in [Gardner-Denver] .”

															See also Gilmer , supra , at 35
(“An important concern” in Gardner-Denver “was the tension
between collective representation and individual statutory rights
…”). Indeed, if the Court can read Gardner-Denver as
resting on nothing more than a contractual failure to reach as far
as statutory claims, it must think the Court has been wreaking
havoc on the truth for years, since (as noted) we have unanimously
described the case as raising a “seemingly absolute prohibition of
union waiver of employees’ federal forum rights.” Wright , supra , at 80.[ Footnote
2 ] Human ingenuity is not equal to the task of reconciling
statements like this with the majority’s representation that Gardner-Denver held only that “the arbitration was not
preclusive because the collective-bargaining agreement did not
cover statutory claims.” Ante , at 12.[ Footnote 3 ]

															   Nor, finally, does the majority have any
better chance of being rid of another of Gardner-Denver ’s
statements supporting its rule of decision, set out and repeated in
previous quotations: “in arbitration, as in the
collective-bargaining process, a union may subordinate the
interests of an individual employee to the collective interests of
all employees in the bargaining unit,” ante , at 20 (citing
415 U. S. , at 58, n. 19), an unacceptable result when
it comes to “an individual’s right to equal employment
opportunities,” id. , at 51. The majority tries to diminish
this reasoning, and the previously stated holding it supported, by
making the remarkable rejoinder that “[w]e cannot rely on this
judicial policy concern as a source of authority for introducing a
qualification into the ADEA that is not found in its text.” Ante, at 20.[ Footnote
4 ] It is enough to recall that respondents are not seeking to
“introduc[e] a qualification into” the law; they are justifiably
relying on statutory-interpretation precedent decades old, never
overruled, and serially reaffirmed over the years. See, e.g. , McDonald v. West Branch , 466 U. S. 284 , 291
(1984); Barrentine , supra , at 742. With that
precedent on the books, it makes no sense for the majority to claim
that “judicial policy concern[s]” about unions sacrificing
individual antidiscrimination rights should be left to
Congress.

															   For that matter, Congress has unsurprisingly
understood Gardner-Denver the way we have repeatedly
explained it and has operated on the assumption that a CBA cannot
waive employees’ rights to a judicial forum to enforce
antidiscrimination statutes. See, e.g. , H. R. Rep.
No. 102–40, pt. 1, p. 97 (1991) (stating that, “consistent
with the Supreme Court’s interpretation of Title VII in [Gardner-Denver] ,” “any agreement to submit disputed
issues to arbitration … in the context of a collective bargaining
agreement … does not preclude the affected person from seeking
relief under the enforcement provisions of Title VII”). And
Congress apparently does not share the Court’s demotion of Gardner-Denver ’s holding to a suspect judicial policy
concern: “Congress has had [over] 30 years in which it could have
corrected our decision … if it disagreed with it, and has chosen
not to do so. We should accord weight to this continued acceptance
of our earlier holding.” Hilton , 502 U. S., at 202; see
also Patterson , 491 U. S. , at 172–173.

															III

															   On one level, the majority
opinion may have little effect, for it explicitly reserves the
question whether a CBA’s waiver of a judicial forum is enforceable
when the union controls access to and presentation of employees’
claims in arbitration, ante , at 24–25, which “is usually
the case,” McDonald , supra , at 291. But as a
treatment of precedent in statutory interpretation, the majority’s
opinion cannot be reconciled with the Gardner-Denver Court’s own view of its holding, repeated over the years and
generally understood, and I respectfully dissent. Footnote 1 Gardner-Denver also contained some
language seemingly prohibiting even individual prospective waiver
of federal forum rights, see 415 U. S., at 51–52, an issue
revisited in Gilmer v. Interstate/Johnson Lane
Corp. , 500 U. S. 20 (1991), and not disputed
here. Footnote 2 The majority seems inexplicably to think that the
statutory right to a federal forum is not a right, or that Gardner-Denver failed to recognize it because it is not
“substantive.” Ante , at 7, n. 5. But Gardner-Denver forbade union waiver of employees’ federal
forum rights in large part because of the importance of such rights
and a fear that unions would too easily give them up to benefit the
many at the expense of the few, a far less salient concern when
only economic interests are at stake. See, e.g. , Barrentine v. Arkansas-Best Freight System, Inc. , 450 U. S. 728 , 737 (1981). Footnote 3 There is no comfort for the Court in making
the one point on which we are in accord, that Gardner-Denver relied in part on what the majority
describes as “broad dicta that was highly critical of the use of
arbitration for the vindication of statutory antidiscrimination
rights.” Ante , at 15–16. I agree that Gardner-Denver ’s “ ‘mistrust of the arbitral process’
… has been undermined by our recent arbitration decisions,” Gilmer , supra , at 34, n. 5 (quoting Shearson/American Express Inc. v. McMahon , 482 U. S. 220 ,
231 (1987)), but if the statements are “dicta,” their obsolescence
is as irrelevant to Gardner-Denver ’s continued vitality as
their currency was to the case’s holding when it came down; in Gardner-Denver itself we acknowledged “the federal policy
favoring arbitration,” 415 U. S., at 46, n. 6, but nonetheless
held that a union could not waive its members’ statutory right to a
federal forum in a CBA. Footnote 4 The majority says it would be “particularly
inappropriate” to consider Gardner-Denver ’s
conflict-of-interest rationale because “Congress has made
available” another “avenue” to protect workers against union
discrimination, namely, a duty of fair representation claim. Ante , at 22. This answer misunderstands the law, for
unions may decline for a variety of reasons to pursue potentially
meritorious discrimination claims without succumbing to a member’s
suit for failure of fair representation. See, e.g. , Barrentine , 450 U. S., at 742 (“[E]ven if the employee’s
claim were meritorious, his union might, without breaching its duty
of fair representation, reasonably and in good faith decide not to
support the claim vigorously in arbitration”). More importantly, we
have rejected precisely this argument in the past, making this yet
another occasion where the majority ignores precedent. See, e.g. , ibid. ; Gardner-Denver , supra , at 58, n. 19 (noting that a duty of fair
representation claim would often “prove difficult to establish”).
And we were wise to reject it. When the Court construes statutes to
allow a union to eliminate a statutory right to sue in favor of
arbitration in which the union cannot represent the employee
because it agreed to the employer’s challenged action, it is not
very consoling to add that the employee can sue the union for being
unfair.

Summary: The Supreme Court ruled that a collective bargaining agreement requiring union members to arbitrate claims under the Age Discrimination in Employment Act is enforceable, reversing the Second Circuit Court's decision. The Court disagreed with the lower court's interpretation of a previous case, Alexander v. Gardner-Denver Co., which they cited as forbidding enforcement of such arbitration provisions.