bargaining agreement unless he first exhausts the grievance and arbitration procedure specified in said agreement, the instant case should be dismissed.
In response to defendant's motion, plaintiffs argue that the present controversy falls within the exception to the requirement of exhaustion carved out by the Supreme Court in U.S. Bulk Carriers v. Arguelles, 400 U.S. 351, 27 L. Ed. 2d 456, 91 S. Ct. 409 (1971). Plaintiffs contend, essentially, that when a statutory remedy is available, the complaining party has the option of pursuing its rights via the grievance and arbitration procedure or of bringing separate suit in court to vindicate its statutory right. Plaintiffs reason that, since Counts II and III of the instant complaint allege violations of statutes, those counts may be brought independently of the grievance and arbitration procedure.
This Court has studied the authorities supplied by plaintiffs and does not find the exception spelled out in Arguelles, supra, to be so broad as to include the instant case. Arguelles was a suit for wages brought by a seaman against his former employer. Although plaintiff Arguelles' union and his employer were parties to a collective bargaining agreement, Arguelles chose to sue under 46 U.S.C. § 596, a federal statute covering payment of wages to seamen. The federal district court, noting that plaintiff-employee had failed to exhaust the grievance and arbitration procedure of the collective bargaining agreement, granted employer's motion for summary judgment. The court of appeals reversed, and the Supreme Court affirmed. In an opinion by Justice Douglas, the Court reasoned that the federal rights guaranteed to seamen in 1790 under 46 U.S.C. §§ 596-97 were not abrogated by the subsequent passage in 1947 of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a). "The judicial remedy was made explicit in § 596 and was not clearly taken away by § 301. What Congress has plainly granted we hesitate to deny." 400 U.S. at 357. Thus, under the facts of Arguelles, the existence of two conflicting congressionally-created rights provided an option for seamen to sue under the statute or pursue arbitration remedies. Id.
In 1975, the United States Court of Appeals for the District of Columbia had occasion to apply the principles of Arguelles, supra, in the case of Leone v. Mobil Oil Co., 173 U.S. App. D.C. 204, 523 F.2d 1153 (D.C. Cir. 1975). In Leone, the Court of Appeals held that the right to sue under the Fair Labor Standards Act (FLSA) of 1938 was unaffected by the passage of § 301 of the Labor Management Relations Act; therefore, the FLSA constituted an additional exception to the exhaustion requirement of § 301. Plaintiffs contend that Leone is also controlling in the case at bar.
The Arguelles-Leone exception to the requirement of exhaustion of the grievance and arbitration procedure does not encompass the instant case. Arguelles and Leone recognized that pre-existing federal rights were protected from abrogation by the arbitration requirement of § 301. In the instant case, only one of the two District of Columbia acts relied upon by plaintiff -- the Minimum Wage Act -- was passed prior to the passage of § 301. More important, neither the Minimum Wage Act nor the Wage Payment Act creates a federal right of the sort created by the statutes relied upon by plaintiffs Arguelles and Leone. Even though Congress passed the two District of Columbia statutes at issue, it did so in an exercise of its plenary power to legislate for the District of Columbia. See U.S. Const. art. I, § 8, cl. 17. That power is separate and distinct from Congress' power to legislate for the entire nation. Palmore v. United States, 411 U.S. 389, 397, 36 L. Ed. 2d 342, 93 S. Ct. 1670 (1973). In passing the two acts relied upon by plaintiff, Congress performed a function much like a state legislature's in passing state legislation. Id. Thus, unlike the statutes involved in Arguelles and Leone, the statutes relied upon by plaintiff do not provide alternative federal remedies; rather, for the reason specified in part I of this opinion, supra, they are pre-empted by § 301, including its requirement of exhaustion of arbitration remedies.
For these reasons, arbitration of plaintiffs' claims is required, and this cause of action shall be dismissed, in accordance with the Order of even date herewith. See Bonnot v. Congress of Independent Unions Local 14, 331 F.2d 355 (8th Cir. 1964) (Blackmun, J.); Belk v. Allied Aviation Service Co., 315 F.2d 513 (2d Cir. 1963); and Hayes v. C. Schmidt & Sons, Inc., 381 F. Supp. 1385, 1390 (E.D.Pa. 1974).
Charles R. Richey, United States District Judge.