Barrentine v. Arkansas-Best Freight System, Inc./Dissent Burger

, with whom joins, dissenting.

The Court today moves—rather blithely, so it seems to me, and unnecessarily—in a direction counter to the needs and interests of workers and employers and contrary to the interests of the judicial system. It does so on the theory that this result advances congressional policy, but careful analysis reveals that Congress, if anything, has mandated the contrary. With funds appropriated by Congress, the Executive Branch, through the Department of Justice, and the Judicial Branch have undertaken studies and pilot programs to remove just such routine and relatively modest-sized claims as this from the courts. Today, the Court moves in precisely the opposite direction, ignoring the objectives of Congress, the agreement of the parties, and the common sense of the situation. It moves toward making federal courts small claims courts contrary to the constitutional concept of these courts as having special and limited jurisdiction.

I
I agree, of course, that the congressionally created right of individual workers to a minimum wage under § 6 of the Fair Labor Standards Act, 29 U.S.C. § 206, may not be waived through a collective-bargaining agreement between an employer and the workers' union or through a direct agreement between an individual worker and the employer. Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 707 (1945). I also agree that the Act creates a private cause of action to vindicate the right to a minimum wage. Fair Labor Standards Act § 16, 29 U.S.C. § 216. But it is a different—indeed, a totally different—proposition to say that employees and employers may not agree to a means of enforcing the employees' [p747] routine wage claims outside the costly, cumbersome judicial process of the federal courts and, specifically, that employees, acting through their union in an arm's-length negotiation with the employer, may not bind themselves—as the petitioners did here—to submit to final and binding arbitration "any controversy that might arise." App. 24, rather than resolve it through litigation in the federal courts. The existence of a right and the provision of a judicial forum do not necessarily make either nonwaivable; if that were so, all the holdings of this Court and countless decisions of federal and state courts that parties are bound by contracts to arbitrate are placed in doubt. "[T]he question of whether the statutory right may be waived depends upon the intention of Congress as manifested in the particular statute." Brooklyn Savings Bank v. O'Neil, supra, at 705.

Unfortunately, neither the parties nor the United States as amicus curiae can point to a clear answer to this question in the legislative history of the Fair Labor Standards Act. It is hornbook law, however, that there is a strong congressional policy favoring grievance procedures and arbitration as a method of resolving labor disputes. See Labor Management Relations Act, §§ 201(b), 203(d), 29 U.S.C. §§ 171(b), 173(d); Norris-LaGuardia Act, § 8, 29 U.S.C. § 108. This Court has acknowledged that policy in the past. See, e.g., Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, and n. 4 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596 (1960); Textile Workers v. Lincoln Mills, 353 U.S. 448, 458–459 (1957). The Court today pays lipservice to that congressional policy, ante, at 734–736, but then—paradoxically—ignores it.

The reasons for favoring arbitration are as wise as they are obvious: litigation is costly and time consuming, and, more to the point in this case, judges are less adapted to the nuances of the disputes that typically arise in shops and factories than shop stewards, business agents, managerial supervisors, and the traditional ad hoc panels of factfinders. See, e.g., [p748] Steelworkers v. Warrior & Gulf Navigation Co., supra, at 581–582. By bringing together persons actually involved in the workplace, often assisted by a neutral arbitrator experienced in such matters, disputes are resolved more swiftly and cheaply. This mechanism promotes industrial harmony and avoids strikes and conflicts; it provides a swift, fair, and inexpensive remedy.

The policy of favoring extrajudicial methods of resolving disputes is reflected in other areas as well. With federal courts flooded by litigation increasing in volume, in length, and in a variety of novel forms, the National Institute of Justice, under the leadership of Attorney General Griffin Bell, in 1979 launched a multimillion-dollar program of field studies to test whether mediation at a neighborhood level could resolve small disputes out of courts in a fashion satisfactory to the parties. Neighborhood Justice Centers Field Test: Final Evaluation Report 7–8 (1980). The results of this study—and other similar studies financed by private sources —confirmed what many had long suspected: small disputes may be resolved more swiftly and to the satisfaction of the parties without employing the cumbersome, time-consuming, and expensive processes of litigation. The National [p749] Institute of Justice recommended further study and implementation of similar procedures. Neighborhood Justice Centers Field Test, supra, at 108–109. Congress itself has recognized this problem and authorized such studies. Dispute Resolution Act, 94 Stat. 17.

II
By rejecting binding arbitration for resolution of this relatively simple wage claim arising under the Fair Labor Standards Act, the Court thereby rejects as well a policy Congress has followed for at least half a century throughout the field of labor relations and now being applied in other areas as well. To reach that strange result, the Court relies on our holding in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). But that case in no sense compels today's holding. The congressionally created right under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., was aimed at guaranteeing a workplace free from discrimination, racial and otherwise. That fundamental right is not and should not be subject to waiver by a collective-bargaining agreement negotiated by a union. But there obviously is a vast difference between resolving allegations of discrimination under the Civil Rights Act and settling a relatively typical and simple wage dispute such as we have here when the parties have expressly agreed to resolve such grievances by arbitration.

The long history of union discrimination against minorities [p750] and women, now happily receding, led Congress to forbid discrimination by unions as well as employers. See 42 U.S.C. § 2003e–2(c). Against a background of union discrimination, Congress was aware that, in the context of claims under the Civil Rights Act, unions sometimes had been the adversary of workers. 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. For federal courts to defer to arbitral decisions reached by the same combination of forces that had long perpetuated invidious discrimination would have made the foxes guardians of the chickens. But this case is not a discrimination case.

Even beyond the historical fact of union discrimination, we observed in Gardner-Denver that arbitrators are not likely to have the needed experience to deal with the special issues arising under the Civil Rights Act, a statute "whose broad language frequently can be given meaning only by reference to public law concepts." 415 U.S., at 57. Leaving resolution of discrimination claims to persons unfamiliar with the congressional policies behind that statute could have undermined enforcement of fundamental rights Congress intended to protect. But the "tension" seen by the Court in Gardner-Denver, ante, at 734, is simply not present here.

A dispute over wages under the Fair Labor Standards Act arises in an entirely different historical and legal context. In that setting, the union and the employee are the traditional allies, united in enforcing wage claims of employees individually as well as collectively. The Court distorts the possibility that union leadership might fail to protect members' interests in a wage dispute. Ante, at 742. If this rare exception arose, protection of the employee is abundantly [p751] available by way of the cause of action for breach of the union's duty of fair representation. See Vaca v. Sipes, 386 U.S. 171 (1967).

Despite the Court's contrary view, ante, at 743–744, whether the time spent in the driver's inspection of a vehicle before taking to the road, as required by federal law, and in transportation of the vehicle to a repair facility when necessary constituted "compensable time" under "Federal Wage Laws," App. 21 (petitioner Barrentine's grievance), is a factual question well suited for disposition by grievance processes and arbitration. The following factors are relevant:

(a) the vehicle inspection was mandated, not by the employer, but by a federal regulation, 49 CFR § 392.7 (1980);

(b) the regulation places the responsibility to inspect the vehicle on the driver directly;

(c) the inspection is intended primarily for the benefit of the public;

(d) the petitioners' claim is one for wages; and

(e) the bargaining over wages, which produced a rate well above the statutory minimum wage, presumably took into account the time spent by drivers in complying with federal requirements.

This elementary wage dispute falls well within the scope of traditional arbitration as it exists under countless collective-bargaining agreements, which the Court now channels into the federal courts. For years the labor movement has developed panels of persons acceptable to both sides who are [p752] familiar with "the law of the shop  [and] the demands and norms of industrial relations." Alexander v. Gardner-Denver Co., supra, 415 U.S., at 57. The Court's generalizations about the powers of arbitrators, ante, at 744–745, are irrelevant; arbitrators have whatever power the parties confer upon them. Here, that power extends to "any controversy that might arise," App. 24 (emphasis added). Surely a wage claim is covered.

Allowing one party to such an elementary industrial dispute unilaterally to resort to the federal courts when an established, simplified, less costly procedure is available—and desired, as here, by the employer and the employee's union—can only increase costs and consume judicial time unnecessarily. It makes neither good sense nor sound law to read the broad language of Gardner-Denver—written in a civil rights discrimination case—to govern a routine wage dispute over a matter traditionally entrusted by the parties' arm's-length bargaining to binding arbitration.

III
The Court seems unaware that people's patience with the judicial process is wearing thin. Its holding runs counter to every study and every exhortation of the Judiciary, the Executive, and the Congress urging the establishment of reasonable mechanisms to keep matters of this kind out of the courts. See The Pound Conference: Perspectives on Justice in the Future passim (West Pub. Co. 1979); American Bar Assn., Report on the National Conference on Minor Disputes Resolution passim (1978). The Federal Government, as I noted earlier, has spent millions of dollars in pilot programs experimenting in extrajudicial procedures for simpler mechanisms to resolve disputes. Approving an extrajudicial resolution procedure "is not a question of first-class or second-class means. It is a matter of tailoring the means to the problem that is involved." Resolution of Minor Disputes, Joint Hearings before the Subcommittee on Courts, [p753] Civil Liberties, and the Administration of Justice. House Committee on the Judiciary, and Subcommittee on Consumer Protection and Finance, House Committee on Interstate and Foreign Commerce, 96th Cong., 1st Sess., 28 (1979) (testimony of Assistant Attorney General Meador). This Court ought not be oblivious to desperately needed changes to keep the federal courts from being inundated with disputes of a kind that can be handled more swiftly and more cheaply by other methods.