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Conzo v. City of New York

July 12, 2006


The opinion of the court was delivered by: Miriam Goldman Cedarbaum ,United States District Judge


Plaintiffs are 1478 current and former emergency medical technicians, paramedics, and related personnel in the Fire Department of the City of New York. They allege various violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA"), and seek to proceed as a collective action under 29 U.S.C. § 216. Defendants move to dismiss, compel dispute resolution, and stay discovery. Defendants assert that this action may not proceed at this time because plaintiffs are required to exhaust administrative remedies under their collective bargaining agreement prior to pursuing their FLSA claims in federal court. For the reasons that follow, defendants' motion is denied.


Section 216 of the FLSA allows individuals who claim that their employers have violated the statute to proceed in collective form. These "collective actions," unlike class actions under Rule 23 of the Federal Rules of Civil Procedure, require that each individual plaintiff opt-in by signing and filing a consent form with the court. When plaintiffs commenced this action on January 20, 2005, 735 individuals filed their consents to be named as plaintiffs. At the time the motion to dismiss was filed, the number of plaintiffs had grown to 1478. All 1478 plaintiffs claim that they were required to perform work for which they were not properly compensated.

While employed by defendants, plaintiffs were members of Local 2507, District Council 37, AFSCME, AFL-CIO (the "Union"). The Union and defendants are parties to a collective bargaining agreement ("CBA") that provides for a special administrative procedure to be used solely for resolving FLSA disputes. Article XV Section 10 of the CBA, entitled "FLSA Dispute Procedure," reads:

a. Any dispute, controversy or claim concerning or arising out of the application or interpretation of the Fair Labor Standards Act ("FLSA Controversy") shall be submitted by a claimant in accordance with this section.

b. Any FLSA Controversy must be presented in writing and in the form prescribed by the FLSA Panel no later than sixty days after the date on which such FLSA Controversy arose.

c. i. Any FLSA Controversy arising out of a claimed wrongful computation of benefits shall be submitted by an employee in writing to the applicable agency head or designee for review and resolution. A copy shall also be submitted to the Office of Labor Relations and to the Union. The agency shall have thirty days to resolve the matter and issue a written decision; such period may be extended by mutual agreement of the parties.

ii. If the matter is not satisfactorily resolved at the agency level the claimant may, within two weeks after receipt of the agency determination, appeal the matter to the FLSA Panel in writing. Subsection (d) of Section 10 of the CBA provides that the "FLSA Panel" will be composed of one union representative and one city representative. Subsection (e) deals with controversies regarding classification of positions under the FLSA and is not relevant to the current dispute. Subsection (f) is a general reservation of rights and reads:

f. Notwithstanding the provisions of this Section 10, the submission of a dispute by an employee under this procedure shall not constitute a waiver of the employee's rights under the FLSA.

The parties read these provisions differently. Although defendants concede that the CBA does not render the outcome of the dispute procedure binding on plaintiffs, they argue that the provision requires each plaintiff to exhaust the administrative process before bringing or joining an FLSA claim in federal court.

In contrast, plaintiffs maintain that the FLSA Dispute Procedure is merely a co-extensive form of relief, not a prerequisite to legal relief. If the dispute procedure were actually mandatory, plaintiffs argue, it would be unenforceable because collective bargaining agreements cannot create exhaustion requirements that limit an individual's pursuit of a federal statutory remedy.

At oral argument, counsel for defendants stated that this FLSA dispute resolution provision has been included in the CBA since at least January 1, ...

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