dissenting.
I dissent from that portion of the majority opinion holding that the validity of the plaintiffs’ claim under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., depends upon the validity of their claim under the collective bargaining agreement. In my view, the Supreme Court’s conclusions in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), regarding Title VII claims apply with equal force to claims arising under FLSA; an employee’s FLSA claim is not precluded by prior submission of his claim to arbitration under a collective bargaining agreement, unless the parties clearly and specifically consented to have the FLSA claim decided by the arbiters.
In this case, there was no intent to submit the FLSA claim to arbitration and it was not submitted to arbitration. Accordingly, I would remand to the district court for a determination of the validity of plaintiffs’ FLSA claim.