Professional Documents
Culture Documents
O'Connell v. Hove, JR., 22 F.3d 463, 2d Cir. (1994)
O'Connell v. Hove, JR., 22 F.3d 463, 2d Cir. (1994)
O'Connell v. Hove, JR., 22 F.3d 463, 2d Cir. (1994)
3d 463
146 L.R.R.M. (BNA) 2296, 62 USLW 2756,
127 Lab.Cas. P 33,083,
1 Wage & Hour Cas. 2d (BNA) 1645
Title VII of the Civil Service Reform Act ("CSRA"), 5 U.S.C. Secs. 7101-35
(1988) requires plaintiffs, all of whom are members of the National Treasury
Employees Union (the "Union"), to follow the negotiated grievance procedures
set out in the Union's collective bargaining agreement with the FDIC. The
employees appeal, and we affirm.
Background
2
Section 7(a)(1) of the FLSA requires that employees covered by that statute be
paid one and one-half times their regular hourly rate of pay if they work more
than forty hours during a work week. 29 U.S.C. Sec. 207(a)(1). However,
employees whose work meets certain statutory criteria are exempted from this
provision. 29 U.S.C. Sec. 213. When such exempt employees of the federal
government do work overtime, they are compensated in accordance with the
Federal Employment Pay Act ("FEPA"). 5 U.S.C. Sec. 5542 (1982). Plaintiffs
allege that the FDIC improperly classified them as exempt from the overtime
provisions of the FLSA, that they are worse off under the FEPA compensation
scheme than they would be under the FLSA, and that they have worked a
significant number of overtime hours, or contemplate doing so if the FDIC were
to pay the statutorily mandated overtime rates.
In a well reasoned memorandum and order, the district court concluded that,
under the CSRA, the grievance procedures contained in the collective
bargaining agreement provide the exclusive remedy for their claims. O'Connell
v. Hove, 821 F.Supp. 862 (E.D.N.Y.1993). Therefore, according to the district
court, a federal court lacks subject matter jurisdiction to hear plaintiffs' claims.
We agree. Because this is a case of first impression in this Circuit we will
outline and address the issues raised by plaintiffs in some detail. As the district
court noted, the U.S. Court of Appeals for the Federal Circuit has on several
occasions addressed the precise issue of this appeal. See Carter v. Gibbs, 909
F.2d 1452 (Fed.Cir.) (in banc ), cert. denied, Carter v. Goldberg, 498 U.S. 811,
111 S.Ct. 46, 112 L.Ed.2d 22 (1990); Adams v. United States, 979 F.2d 840
(Fed.Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2441, 124 L.Ed.2d 659
(1993); Aamodt v. United States, 976 F.2d 691 (Fed.Cir.1992); Muniz v.
United States, 972 F.2d 1304 (Fed.Cir.1992).
Discussion
5
6
Except
as otherwise provided ... no employer shall employ any of his employees
who in any workweek ... [works] longer than forty hours unless such employee
receives compensation for his employment in excess of the hours above specified at
a rate not less than one and one-half times the regular rate at which he is employed.
7
The question presented is whether the CSRA treats the FLSA overtime claims
of unionized federal employees as subject exclusively to the negotiated
grievance procedures set forth in the collective bargaining agreement absent a
provision to the contrary in the agreement, and thereby limits their access to the
courts under FLSA section 16. In other words, does the CSRA require that
federal employees who wish to preserve their right to enforce FLSA claims in
the courts negotiate through their unions for the inclusion of an express
statement to that effect in the collective bargaining agreement?
A. The CSRA
10
11
18
We are guided by the axiom that " 'the starting point in every case involving
construction of a statute is the language itself.' " Kelly v. Robinson, 479 U.S.
36, 43, 107 S.Ct. 353, 357, 93 L.Ed.2d 216 (1986) (quoting Blue Chip Stamps
v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539
(1975) (Powell, J., concurring)). "When we find the terms of a statute
unambiguous, judicial inquiry is complete except in rare and exceptional
circumstances." Demarest v. Manspeaker, 498 U.S. 184, 190, 111 S.Ct. 599,
604, 112 L.Ed.2d 608 (1991) (citations omitted). The "strong presumption that
the plain language of the statute expresses congressional intent" can only be
rebutted "when a contrary legislative intent is clearly expressed." Ardestani v.
Immigration and Naturalization Service, --- U.S. ----, ----, 112 S.Ct. 515, 520,
116 L.Ed.2d 496 (1991) (citations omitted).
19
Under the plain language of the exclusivity provision, federal jurisdiction over
plaintiffs' claim depends upon the collective bargaining agreement and whether
or not the parties negotiated to exclude FLSA overtime claims from the broad
category of disputes arbitrable as grievances. That is what the district court
held. On appeal, plaintiffs point to the equally clear language of the FLSA
conferring jurisdiction on federal and state courts of competent jurisdiction, and
argue that repeal by implication is strongly disfavored. Plaintiffs' other major
arguments urge us to reconcile the two statutes by considering the exclusivity
provision of the CSRA in light of its legislative history and its statutory context.
These contextual and historical insights, they argue, demonstrate that the
exclusivity provision was intended only to limit the employees' right of access
to certain administrative remedies, and was not intended to affect their right to
assert claims in a judicial tribunal.
B. Repeal by Implication
20
21
The district court opinion gives effect to the "interplay" between the two
statutes, 821 F.Supp. at 863; it does not construe one as repealing the other.
Section 7 of the FLSA confers a substantive right concerning overtime
compensation upon federal employees as well as upon private-sector
employees, and section 16 confers jurisdiction on courts to vindicate that right.
29 U.S.C. Secs. 207, 216(b). Nothing in the CSRA affects the substantive right;
plaintiffs may assert that right in the grievance process. Nothing in the CSRA
affects any remedy of private-sector employees, or of federal employees who
are not union members. Although the CSRA requires that procedures be
established under collective bargaining agreements to resolve the grievances of
unionized federal employees, nothing in the CSRA prevents the plaintiff
employees of the FDIC (acting through their union) from negotiating to remove
some or all FLSA claims from the grievance procedure; and if they do, they
would need and would be able to invoke the grant of jurisdiction in section 16
of the FLSA. In short, CSRA Sec. 7121(a) does not repeal section 16 of the
FLSA, and the district court opinion cannot be read to assume such a repeal.
22
The CSRA does impose a condition that potentially impairs plaintiffs' ability to
avail themselves of the judicial remedies created for their benefit in the FLSA,
and it does so without any express Congressional recognition that the second
statute will affect rights under the first. Plaintiffs contend that that potential
impairment of an existing right is a repeal (which it is not) and that Congress's
failure to address the impact of the CSRA on FLSA rights demonstrates that
none was intended. However, "[a] leading purpose of the CSRA was to replace
the haphazard arrangements for administrative and judicial review of personnel
action, part of the 'outdated patchwork of statutes and rules built up over almost
a century' that was the civil service system." Fausto, 484 U.S. at 444, 108 S.Ct.
at 672 (quoting S.Rep. No. 969, 95th Cong., 2nd Sess., 3 (1978), 1978
U.S.C.C.A.N. 2723, 2725). It would be better if Congress were to map each
intended impact on existing legislation (direct or incidental) when it revamps so
complex a network of statutes and regulations, but we cannot deduce from its
failure to do so a Congressional intent that the new statute is to be simply an
overlay to an unaffected body of existing rights and remedies.
C. Legislative History
23
Executive Order No. 11491, Sec. 13(a) (emphasis added). Plaintiffs' reliance on
Executive Order 11491 thus proves too much. If it were significant that
Congress borrowed the exclusivity language, it would be just as telling that
Congress did not take the related language that allowed the parties to negotiate
"the coverage and scope" of the grievance procedures, and barred them from
consigning to grievance procedures disputes for which a statutory appeal
procedure exists. The CSRA is different in design, and provides that the
grievance mechanism will resolve all disputes that fall within the statutory
definition of "grievance" unless expressly excluded by the parties.
26
D. Context
27
5 U.S.C. Secs. 7121(d), (e)(1). Section 7121(c) lists five categories of disputes
as to which the negotiated grievance procedures are inapplicable:
31 The preceding subsections of this section shall not apply with respect to any
(c)
grievance concerning--(1) any claimed violation of subchapter III of chapter 73 of
this title (relating to prohibited political activities); (2) retirement, life insurance, or
health insurance; (3) a suspension or removal under section 7532 of this title; (4) any
examination, certification, or appointment; or (5) the classification of any position
which does not result in the reduction in grade or pay of an employee.
32
33
Carter, 909 F.2d at 1455. We adopt the question as well as the answer. The
district court notes (without evaluating) the undeniably interesting fact that
"Congress initially included FLSA claims in [Sec. 7121(c) ] but then omitted
those claims without any explanation." 821 F.Supp. at 868; see also Carter, 909
F.2d at 1455. No one can tell whether Congress excised that express provision
because Congress affirmatively wished to make FLSA claims subject to the
exclusivity provision of the CSRA or because (as plaintiffs argue) such claims
were not subject to it in the first place. Deciding that issue one way or the other
would entail an exercise of pure inspiration. We hold simply that the CSRA
provides a limited number of exemptions from the otherwise comprehensive
exclusivity provision, and that FLSA claims are not among them.
E. Other Arguments
36
"Under the CSRA, however, the rights of a unionized federal employee are
consolidated within the four corners of the collective agreement: Congress
defined a 'grievance' to include contractual disputes and 'any claimed violation
... of any law.' " Carter, 909 F.2d at 1457 (quoting 5 U.S.C. Sec. 7103(a)(9)
(C)). Congress--for whatever reason--chose not to exclude FLSA claims from
the scope of the contractual grievance procedures. Congress did, however,
leave it to the Union to negotiate for exclusion of FLSA claims from the
grievance process; the Union, implicitly if not explicitly, chose not to do so.
Having made that choice, its members must now abide by the terms of their
collective bargaining agreement, as informed by the CSRA.
38
Finally, appellants argue that we must permit them to pursue their claims in
court, because the negotiated grievance procedures are inferior, and will lead to
an imbalance in FLSA enforcement between unionized federal employees and
all other workers. First, as discussed above, and as the Federal Circuit points
out, "the CSRA expressly defines grievances to include violations of law."
Carter, 909 F.2d at 1457. Second, we are not in a position to determine what
statutorily-mandated remedies for statutorily-created rights are better or worse
than others; nor could we substitute one remedy for another if we formed such
a view. Finally, the CSRA contemplates that unions unwilling to confine FLSA
issues to the grievance procedures they negotiate can negotiate to preserve
judicial remedies. If, as plaintiffs fear, their union may fail to fairly represent
their individual interests (out of a concern that such interests may conflict with
the collective interests of the Union), appellants may then have recourse to
other statutory protections. See 5 U.S.C. Secs. 7114(a)(1), 7116(b)(8), 7118;
Karahalios v. Nat. Fed. of Federal Emp., Local 1263, 489 U.S. 527, 531-32, 109
S.Ct. 1282, 1286, 103 L.Ed.2d 539 (1989) ("a breach of the duty of fair
representation is an unfair labor practice" under the CSRA).
39
For the reasons stated in this opinion, the district court's order dismissing
appellants' complaint for lack of subject matter jurisdiction is affirmed.
Honorable T.F. Gilroy Daly, of the United States District Court for the District
of Connecticut, sitting by designation