File 2: Opinion of Chair Segal

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Chair Phyllis N. Segal, concurring:

      For the reasons stated in the Authority's decision, I agree that the award in this case is deficient as inconsistent with the Fair Labor Standards Act (FLSA), 29 U.S.C. § 255(a), and must be remanded for determinations regarding liquidated damages as well as the appropriate recovery period for backpay. I also agree with the Authority's resolution of the other exceptions to the award. Finally, I agree with Member Cabaniss that there is no claim before the Authority challenging, as contrary to law, the Arbitrator's procedural arbitrability determination that nine of the grievances were not timely filed under the parties' agreement. For the reasons stated in the Authority's decision, this case does not present the issue, reached by our dissenting colleague, of the extent, if any, to which long-standing precedent deferring to arbitral determinations of procedural arbitrability should be reversed when the determination is in the context of contractual filing periods for FLSA claims.

      I write separately to note that dictum in National Treasury Employees Union and Federal Deposit Insurance Corporation, 53 FLRA 1469, 1494-95 n.17 (1998) (FDIC), relied on in the dissent, did not examine statutory language that may have bearing on disposition of the procedural arbitrability issue resolved in the dissent. See Dissent at 3.

      The Authority suggested in FDIC that prior precedent, holding that parties can agree to a recovery or filing period different from that set forth in section 255(a), may be incorrect. 53 FLRA at 1494-95 n.17 (cited in Dissent at 3). In FDIC, the Authority stated that there was no contention that the parties had agreed to a backpay recovery period different from section 255(a), and therefore found it unnecessary to determine whether such a contractual provision would be enforceable. Id. In this case, there likewise is no contention that the parties have agreed to a contract provision setting forth the backpay recovery period. Thus, as in FDIC, it also is unnecessary to address the enforceability of such a provision here.

      The Authority's comments in FDIC concerning prior precedent did not address the fact that, as a result of the 1994 amendment to 5 U.S.C. § 7121(a)(1), arbitration is no longer the exclusive forum to remedy FLSA claims that fall within the coverage of a negotiated grievance procedure. Section 7121 previously provided that the negotiated grievance procedure was the "exclusive procedure for resolving grievances which fall within its coverage." As amended, section 7121(a)(1) provides that the negotiated grievance procedure is only "the exclusive administrative procedure for resolving grievances which fall within its coverage." (Emphasis added.) Thus, the inclusion of alleged FLSA violations within the scope of a negotiated grievance procedure is no longer a bar to direct judicial enforcement of rights under the FLSA. Cf. FDIC, 53 FLRA at 1486 n.13 (union argued that the 1994 amendment to the Statute "effectively overruled Carter v. Gibbs," 909 F.2d 1452 (Fed. Cir. 1990), where court held that employees' access to negotiated grievance procedures to resolve FLSA claims barred judicial resolution of such claims).

      The ability of employees to pursue FLSA claims in court, in lieu of or even after arbitration, may affect whether there is a legal impediment to enforcing a contractual backpay recovery period -- or a contractual time period for filing claims -- that differs from the period provided under the FLSA. Cf. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (alleged violation of Age Discrimination in Employment Act subject to compulsory arbitration pursuant to agreement in securities registration application); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220 (1987) (alleged violations of Securities Exchange Act and RICO subject to compulsory arbitration under brokerage agreement); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) (alleged violations of various antitrust and unfair competition statutes subject to compulsory arbitration pursuant to sales agreement). Indeed, it is not clear from the record in this case whether the grievants whose claims were found untimely by the Arbitrator could have subsequently filed their claims directly in court.

      Certainly, section 7121(a)(1), as amended, should be examined and addressed by the Authority, with the aid of parties' arguments, in determining the effect of contract provisions concerning filing FLSA claims and recovering FLSA remedies. To the extent that my dissenting colleague implies that I have reached a conclusion on the question he resolves, he is mistaken. My point is simply that, contrary to the dissent, I believe that the Authority should not resolve this significant issue without requesting and considering briefs from the parties, and conducting a careful statutory analysis. The policy objective of applying the law in an evenhanded [ v55 p825 ] manner, Dissent at 4, is certainly laudable, even when application of this goal is complex. [n1]  Ho