Petition for Writ of Certiorari — Garda CL Northwest, Inc., fka AT Systems, Inc., Petitioner v. Lawrence Hill, et al.

Supreme Court briefFeb 19, 2019

Ask Donna

What actually matters in this document.

Text

Case No. ___

IN THE

Supreme Court of the United States

GARDA CL NORTHWEST, INC. f/k/a AT

Systems, Inc.,

Petitioner,

v.

LAWRENCE HILL, ADAM WISE, and

ROBERT MILLER, on their own behalves

and on behalf of all persons similarly

situated,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE WASHINGTON SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

FRED A. ROWLEY, JR.

Counsel of Record

MALCOLM A. HEINICKE

ERIC P. TUTTLE

AARON D. PENNEKAMP

MUNGER, TOLLES & OLSON LLP

350 South Grand Avenue

Fiftieth Floor

Los Angeles, CA 90071-3426

(213) 683-9100

fred.rowley@mto.com

Counsel for Petitioner

i

QUESTIONS PRESENTED

(1) Whether a state labor claim that requires the

plaintiff to show that an employer acted with

“willfulness,” “unreasonableness,” or other mental

state, which can be resolved only through

interpretation of the terms of the pertinent collective

bargaining agreement, is preempted by section 301 of

the Labor Management Relations Act (“LMRA”).

(2) Whether a state-law rule, which imposes a

higher burden of proof for establishing waivers of

wage-and-hour rights contained in collective

bargaining agreements than it does for individual

waivers of those same rights outside the collective

bargaining context, is preempted by the National

Labor Relations Act (“NLRA”).

ii

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

Petitioner is Garda CL Northwest, Inc., a

Washington corporation. Garda CL Northwest, Inc.

is a subsidiary of Garda CL Technical Services, Inc.

Garda CL Technical Services, Inc. is a subsidiary of

ATI Systems International, Inc.

ATI Systems

International, Inc. is a subsidiary of The Garda

Security Group Inc./Le Group de Securite Garda Inc.

The Garda Security Group Inc./Le Group de Securite

Garda Inc. is a subsidiary of Garda World Security

Corporation/Corporation de Securite Garda World.

No publicly owned corporation owns 10% or more of

the

stock

of

Garda

World

Security

Corporation/Corporation de Securite Garda World.

Respondents are Lawrence Hill, Adam Wise, and

Robert Miller, who filed the litigation below on their

own behalves and on behalf of all persons similarly

situated.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT ............................... ii

TABLE OF AUTHORITIES .......................................v

PETITION FOR WRIT OF CERTIORARI .................1

OPINIONS AND ORDERS BELOW ..........................1

JURISDICTION ..........................................................1

STATUTORY PROVISIONS INVOLVED .................1

STATEMENT OF THE CASE ....................................3

I.

FACTUAL BACKGROUND.............................5

II.

PROCEDURAL HISTORY...............................6

III.

THE WASHINGTON SUPREME

COURT DECISION ..........................................9

A.

The Majority Opinion ..........................10

B.

The Dissenting Opinion.......................11

REASONS FOR GRANTING THE PETITION .......12

I.

THE DECISION BELOW FINDING

NO LMRA PREEMPTION

CONFLICTS WITH THIS COURT’S

PRECEDENTS AND CREATES AN

APPELLATE-COURT SPLIT ........................13

II.

THE DECISION BELOW REQUIRING

THAT WAIVERS OF MEAL-BREAK

RIGHTS IN CBAs BE “CLEAR AND

UNMISTAKABLE” IS PREEMPTED

iv

BY FEDERAL LAW AND CONFLICTS

WITH DECISIONS OF OTHER

APPELLATE COURTS ..................................30

III.

THE DECISION BELOW

INCORRECTLY INTERPRETS THE

CBAs, IN CONFLICT WITH OTHER

COURTS APPLYING THE FEDERAL

LAW OF CBA INTERPRETATION ..............35

CONCLUSION ..........................................................37

APPENDIX

APPENDIX A: Opinion of the Supreme Court of

Washington ...............................................................1a

APPENDIX B: Opinion of the Court of Appeals of

Washington, Division 1 ...........................................31a

APPENDIX C: Judgment of the Superior Court of

Washington, King County ......................................74a

APPENDIX D: Findings of Fact and Conclusions of

Law of the Superior Court of Washington, King

County .....................................................................79a

APPENDIX E: Order Denying Motion for

Reconsideration of the Supreme Court of

Washington .............................................................98a

v

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Allis-Chalmers Corp. v. Lueck,

471 U.S. 202 (1985)...................................... passim

Atwater v. Nat’l Football League

Players Ass’n,

626 F.3d 1170 (11th Cir. 2010)............................29

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987)............................ 26, 27, 28, 29

Cramer v. Consolidated Freightways,

Inc.,

255 F.3d 683 (9th Cir. 2001)................................28

Douglas v. Am. Info. Tech. Corp.,

877 F.2d 565 (7th Cir. 1989)................................22

Foy v. Giant Food Inc.,

298 F.3d 284 (4th Cir. 2002)................................22

Fry v. Airline Pilots Ass’n, Int’l,

88 F.3d 831 (10th Cir. 1996)................................29

Hanks v. Gen. Motors Corp.,

859 F.2d 67 (8th Cir. 1988)..................................29

Int’l Bhd. of Elec. Workers, Local 803,

AFL-CIO v. NLRB,

826 F.2d 1283 (3d Cir. 1987) ...............................37

vi

Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399 (1988)............................ 13, 20, 28, 34

Livadas v. Bradshaw,

512 U.S. 107 (1994).................................. 23, 30, 34

McFarland v. Guardsmark, LLC,

538 F. Supp. 2d 1209 (N.D. Cal.

2008) .....................................................................20

Metro. Life Ins. Co. v. Mass.,

471 U.S. 724 (1985)..........................................3, 31

Miller v. AT&T Network Systems,

850 F.2d 543 (9th Cir. 1988).................... 21, 22, 23

Nat’l Metalcrafters, Div. of Keystone

Consol. Indus. v. McNeil,

784 F.2d 817 (7th Cir. 1986)..........................21, 23

Sanders v. Cotton,

398 F.3d 572 (7th Cir. 2005)................................25

Smith v. Colgate–Palmolive Co.,

943 F.2d 764 (7th Cir. 1991)................................29

Stop the Beach Renourishment, Inc. v.

Fla. Dep’t of Envtl. Prot.,

560 U.S. 702 (2010)..............................................25

Teamsters v. Lucas Flour Co.,

369 U.S. 95 (1962).................................... 14, 19, 20

Truex v. Garrett Freightlines, Inc.,

784 F.2d 1347 (9th Cir. 1985)..............................22

vii

Valles v. Ivy Hill Corp.,

410 F.3d 1071 (9th Cir. 2005)...................... passim

Ward v. Circus Circus Casinos, Inc.,

473 F.3d 994 (9th Cir. 2007)................................29

Williams v. Nat’l Football League,

582 F.3d 863 (8th Cir. 2009)................................29

Wright v. Universal Mar. Serv. Corp.,

525 U.S. 70 (1998)................................................34

STATE CASES

Brinker Restaurant Corp. v. Super. Ct.,

273 P.3d 513 (Cal. 2012) ......................................19

California Grocers Ass’n v. City of Los

Angeles,

254 P.3d 1019 (Cal. 2011) ..............................32, 33

Ehret v. WinCo Foods, LLC,

26 Cal. App. 5th 1 (2018) ...............................35, 36

Pellino v. Brink’s Inc.,

267 P.3d 383 (Wash. Ct. App. 2011) ........... passim

Pope v. Univ. of Wash.,

852 P.2d 1055 (Wash. 1993) (en

banc) .....................................................................27

Schilling v. Radio Holdings, Inc.,

961 P.2d 371 (Wash. 1998) (en banc) ...... 15, 23, 27

FEDERAL STATUTES

28 U.S.C. § 1257 ..........................................................1

viii

29 U.S.C. § 151 ......................................................2, 30

29 U.S.C. § 157 .................................................. passim

29 U.S.C. § 185 .................................................. passim

STATE STATUTES

Wash. Admin. Code § 296-126-092 ...........................19

Wash. Rev. Code § 49.52.050 ......................................7

Wash. Rev. Code § 49.52.070 ......................................7

FEDERAL REGULATIONS

5 C.F.R. § 551.411 .....................................................20

CONSTITUTIONAL PROVISIONS

U.S. Const. Article VI, cl. 2 .........................................1

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Garda CL Northwest, Inc. (“Garda”)

respectfully petitions for a writ of certiorari to review

the judgment of the Washington Supreme Court.

OPINIONS AND ORDERS BELOW

The opinion of the Washington Supreme Court is

reported at 424 P.3d 207 and reproduced at Pet. App.

1a–30a. The opinion of the Court of Appeals of

Washington, Division 1 is reported at 394 P.3d 390

and reproduced at Pet. App. 31a–73a. The relevant

opinions and orders of the Washington Superior

Court are not reported but are reproduced at Pet.

App. 74a–97a.

JURISDICTION

The opinion of the Washington Supreme Court

was entered on August 23, 2018. Pet. App. 1a. The

Washington Supreme Court subsequently denied

Garda’s timely motion for reconsideration on

November 20, 2018. Pet. App. 98a. This Court has

jurisdiction pursuant to 28 U.S.C. § 1257(a).

STATUTORY PROVISIONS INVOLVED

The Supremacy Clause of Article VI of the

Constitution provides that “[t]his Constitution, and

the Laws of the United States which shall be made in

Pursuance thereof * * * shall be the supreme Law of

the Land.” U.S. Const. art. VI, cl. 2.

Section 301 of the LMRA provides that “[s]uits for

violation of contracts between an employer and a

labor organization representing employees in an

2

industry affecting commerce * * * may be brought in

any district court of the United States having

jurisdiction of the parties.” 29 U.S.C. § 185(a).

29 U.S.C. section 151 of the NLRA provides that

because:

“The denial by some employers of the right of

employees to organize and the refusal by some

employers to accept the procedure of collective

bargaining lead to strikes and other forms of

industrial strife or unrest, which have the

intent or the necessary effect of burdening or

obstructing commerce * * *

“It is hereby declared to be the policy of the

United States to eliminate the causes of

certain substantial obstructions to the free

flow of commerce and to mitigate and

eliminate these obstructions when they have

occurred by encouraging the practice and

procedure of collective bargaining and by

protecting the exercise by workers of full

freedom of association, self-organization, and

designation of representatives of their own

choosing, for the purpose of negotiating the

terms and conditions of their employment or

other mutual aid or protection.”

29 U.S.C. section 157 of the NLRA provides:

“Employees shall have the right to selforganization, to form, join, or assist labor

organizations, to bargain collectively through

representatives of their own choosing, and to

engage in other concerted activities for the

purpose of collective bargaining or other

3

mutual aid or protection, and shall also have

the right to refrain from any or all of such

activities except to the extent that such right

may be affected by an agreement requiring

membership in a labor organization as a

condition of employment as authorized in

section 158(a)(3) of this title.”

STATEMENT OF THE CASE

The Washington Supreme Court’s decision below

conflicts with decades of Supreme Court precedent on

the scope of LMRA and NLRA preemption and creates

conflict with several federal circuits and the

California Supreme Court. Federal labor law has long

required that state-law disputes that can be resolved

only by interpreting the terms of collective bargaining

agreements (“CBAs”) are preempted. See AllisChalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985)

(“[Q]uestions relating to what the parties to a labor

agreement agreed … must be resolved by reference to

uniform federal law.”). It has made equally clear that

state-law rules that discriminate against the

collective bargaining process are likewise preempted.

See Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 755

(1985) (noting that preemption does not extend to

state rules so long as they “neither encourage nor

discourage the collective-bargaining processes that

are the subject of the NLRA”).

In a 6-3 decision concerning claims for denied meal

breaks, the Washington Supreme Court disregarded

both of those long-settled preemption principles. The

court first allowed Plaintiffs’ state-law claims for

double damages to proceed, even though Plaintiffs

can recover such damages only if Garda withheld

4

Plaintiffs’ meal-break wages “willfully.” Resolving

that “willful[ness]” question would require the court

to determine the reasonableness of Garda’s

interpretation of the collective agreements between it

and Plaintiffs, each of which on its face purports to

waive Plaintiffs’ usual meal-period rights. The court

then compounded this error by adopting a waiver rule

that applies only to collective agreements, whereby

Washington employees may collectively bargain away

their meal-period rights only through “clear and

unmistakable” language. Pet. App. 19a. Because

there is no comparable state rule concerning

individual waivers of meal-period rights, the

Washington Supreme Court’s novel collectiveagreement rule is preempted.

The majority’s contrary determination conflicts

with the decisions of other appellate courts. The

Fourth, Seventh, and Ninth Circuits, for example,

have issued well-reasoned decisions finding that

claims

that

turn

on

the

“willfulness,”

“reasonableness,” or “outrageousness” of an

employer’s actions, and that therefore require the

reviewing court to interpret the terms of the

employer’s CBAs, are preempted under the LMRA.

And on the question of NLRA preemption, the

California Supreme Court has (correctly) found that

state-law rules—like the Washington Supreme

Court’s “clear and unmistakable language” rule—that

do not apply equally to unionized and non-unionized

employees, and that subject unionized employees to

“disfavored” status, are preempted.

What’s more, the decision below is plainly

incorrect as a matter of federal law governing the

interpretation of CBAs:

Even assuming that

5

Plaintiffs could collectively waive their usual mealperiod rights only through “clear” and “unmistakable”

language, the agreements at issue here meet that

standard—as three justices of the Washington

Supreme Court would have found. See Pet. App. 28a.

Several agreements, for example, make explicit that

“‘[t]he Employees hereto waive any meal period(s) to

which they would be otherwise entitled.’” Pet. App.

15a–16a.

This Court should intervene. Its guidance is

needed to resolve lingering confusion among

appellate courts concerning the exact contours of

LMRA and NLRA preemption, and to avoid more

manifest preemption errors like those made by the

court below.

I.

FACTUAL BACKGROUND

Garda operates an armored transportation service

that transports currency and other valuables using

armored trucks and armed employees. Garda has

seven branches in Washington State. Garda operates

its business in accordance with a series of CBAs that

it negotiated and entered with the Drivers

Association for each of these seven Garda branches.

Pet. App. 12a, 34a.

To transport and deliver valuables, Garda employs

truck crews of two individuals who rotate in two

positions: A driver, who drives the armored truck

along its assigned route; and a messenger, who rides

in the back of the truck and then securely transfers

the valuables to and from Garda’s customers in the

field. Because the armored truck and the employees

who operate them are at risk of attack at all times in

the field, safety concerns prevent the employees from

6

taking extended of periods of time—such as meal

breaks—during which they forego basic safety

precautions. As a result, Garda’s employees maintain

vigilance during their meal breaks. Pet. App. 2a.

This arrangement is reflected in the terms of

Garda’s CBAs, through which the Drivers

Associations and Garda have agreed that drivers and

messengers will not take “off-duty meal breaks”

relieving them of all work duties. See Pet. App. 15a–

16a. Rather, these employees have collectively agreed

to take paid, “on-duty meal breaks” that they must

“work through.”

Ibid.

Some of the collective

agreements expressly provide that employees

“waived” their right to a meal period; others state that

the employees agreed to an “on-duty meal period”

unless they specifically request an off-duty period;

and still others provide that “routes will be scheduled

without a designated lunch break,” but that truck

crews could request a “nonpaid lunch break.” Pet.

App. 14a, 15a.

II.

PROCEDURAL HISTORY

Plaintiffs in this case comprise a class of some 500

Garda drivers and messengers. Despite the CBAs’

collectively

bargained-for

meal-period

terms,

Plaintiffs sued Garda in February 2009, alleging that

Garda’s policy of having the drivers and messengers

take the on-duty meal periods to which they had

agreed, and thereby allegedly prohibiting them from

taking vigilance-free meal periods, violated

Washington law. Pet. App. 4a. Plaintiffs sought not

only compensatory damages for their missed meal

breaks, but also exemplary double-damages for

Garda’s allegedly intentional underpayment of its

7

employees. Under Washington law such double

damages are available only if the employer withheld

wages “(1) willfully and (2) with intent to deprive the

employee of any part of his or wages.” Pet. App. 7a

(internal quotation marks and brackets omitted); see

Wash. Rev. Code §§ 49.52.050, 49.52.070.

A plaintiff cannot make this “willful[ness]”

showing if there was a bona fide dispute about

whether the wages were due. Garda therefore

maintained, among other things, that there was a

bona fide dispute over Plaintiffs’ entitlement to

vigilance-free meal periods given the terms of the

parties’ CBAs. And because Plaintiffs’ claims turn on

the proper interpretation of those CBA terms, Garda

argued that the claims were preempted by federal

labor law. See Pet. App. 16a.

The trial court rejected Garda’s arguments,

however, denying Garda’s motion for summary

judgment on its CBA and LMRA-preemption defenses

without issuing any reasoned opinion, and—

separately—granting Plaintiffs’ motion for partial

summary judgment on the question of Garda’s

liability. On the liability question, the trial court

relied on Pellino v. Brink’s Inc., 267 P.3d 383 (Wash.

Ct. App. 2011), a case decided well after Plaintiffs

filed their complaint, which held that a similar

“constant vigilance” policy violated Washington’s

meal-break laws. Pet. App. 86a. Notably, however,

Pellino did not involve CBAs or any agreements that

spoke to employee meal breaks. See 267 P.3d at 399.

The trial court then held a bench trial to determine

damages for the missed breaks, as well as whether

Garda owed Plaintiffs double damages. The court

8

found that—after Pellino—there could be no bona fide

dispute that Garda’s “constant vigilance” policy

violated Washington law, and that Plaintiffs had not

waived their right to meal periods because such

waivers could not be collectively bargained as a

matter of law. Pet. App. 93a. The trial court thus

awarded Plaintiffs $4,209,596.71 in back-pay

damages, $1,668,235.62 in double damages for the

period after the Pellino decision, and $2,350,255.63 in

prejudgment interest. Pet. App. 95a–96a.

Garda appealed several aspects of the trial court’s

judgment. As relevant here, Garda argued that the

trial court’s decision as to liability was erroneous,

because Plaintiffs can (and did) waive their mealperiod rights in CBAs, and, in any event, Plaintiffs’

meal-break claims were preempted by the LMRA and

the NLRA. Pet. App. 32a–33a. Similarly, Garda

challenged the trial court’s double-damages award on

the ground that the terms of the parties’ CBAs created

a bona fide dispute about whether Plaintiffs were

entitled to work-free meal breaks. Pet. App. 33a.

The Washington Court of Appeals affirmed in part

and reversed in part. While acknowledging that

employees may individually waive their rights to

duty-free meal breaks under Washington law, it

nevertheless held that “Washington does not allow

most private employees to waive their right to a meal

period through a CBA.” Pet. App. 53a. Treating the

meal-period right as “nonnegotiable,” the court

rejected Garda’s arguments based on waiver and

LMRA preemption. Pet. App. 53a–54a; see also Pet.

App. 55a (“Because the Plaintiffs cannot waive meal

breaks through their CBAs, evidence that the

Plaintiffs … understood that they would not receive

9

meal breaks under the CBAs is not evidence that they

voluntarily waived this right.”).

The Court of Appeals reversed the trial court’s

double-damages award, however, holding that

Garda’s violation of Washington’s meal-period laws

was not “willful.” As the court explained, the law was

not clear that employees could not waive their mealperiod rights in CBAs, and Garda had reasonably

relied on the “purported [meal-period] waivers” in

their agreements. Pet. App. 67a. The Court of

Appeals declined to take the further step of actually

reviewing the terms of the CBAs to decide whether

they amounted to “actual[] waivers.” Pet. App. 66a.

Both Garda and Plaintiffs filed petitions for review

before the Washington Supreme Court. Among other

things, Garda asked the Washington Supreme Court

to reconsider the Court of Appeals’ waiver and

preemption holdings, while Plaintiffs asked that court

to take up the double-damages dispute. The court

denied Garda’s petition and granted Plaintiffs’ crosspetition. Garda was therefore forced to litigate its

arguments before Washington’s highest court

through the (cramped) lens of Plaintiffs’ claims for

exemplary double damages. Pet. App. 7a (“The

question for us relates solely to Garda’s liability for

double exemplary damages.”).

III.

THE

WASHINGTON

COURT DECISION

SUPREME

On August 23, 2018, a six-justice majority of the

Washington Supreme Court reversed the Court of

Appeals’ double-damages decision. Pet. App. 27a.

Three justices signed an opinion dissenting in

relevant part. Pet. App. 28a–30a.

10

A.

The Majority Opinion

According to the majority, Garda failed to carry its

burden of establishing a bona fide dispute concerning

Plaintiffs’ meal-period rights, and thus its failure to

pay all of Plaintiffs’ (allegedly) owed wages was

“willful” under Washington state law.

To support this conclusion, the majority first held

that Garda “never argued” that Plaintiffs had waived

their right to “on duty” meal periods as that term had

been recently defined in state law. According to the

majority, under Washington law (as annunciated in

the 2011 Pellino decision), “[a]n ‘on duty’ meal period

is one during which the employee is relieved of all

work duties—the employee need only remain ‘on the

premises or at a prescribed work site in the interest

of the employer.’” Pet. App. 12a (emphasis added). It

reasoned that it was “undisputed that Garda failed to

provide the Plaintiffs with that type of work free, ‘on

duty’ meal period,” Pet. App. 13a (emphasis added).

Instead, Garda had argued that Plaintiffs—through

their CBAs—had waived “off duty meal periods,” and

“that [Plaintiffs] received their on duty meal periods”

(that is, work periods that Plaintiffs would be

expected to “work through,” but for which they would

be paid).

Pet. App. 12a.

Because Garda’s

understanding of what counted as an “on duty” meal

period did not exactly match Washington law’s new

definition for that term, the majority held, Garda

“never actually argued there was waiver of the

particular type of rights the Plaintiffs sought to

enforce here.” Pet. App. 13a.

Second, the majority rejected Garda’s arguments

that Plaintiffs’ double-damages claims were

11

preempted by federal law. It held that Plaintiffs’

claims were not preempted by the LMRA because

“Garda raised the [CBAs’] language” in support of its

defense to double-damages liability, and thus “the

need to interpret [those agreements]” did not “inhere

in the nature of [Plaintiffs’] claim[s].” Pet. App. 17a

(citation and internal quotation marks omitted). It

reasoned that, even if the Court of Appeals was wrong

that meal-period rights are not collectively

negotiable,

Plaintiffs’

claims

still

survived

preemption because a CBA can waive Plaintiffs’

rights only if the agreement uses “‘clear and

unmistakable language’” to do so—a standard that it

applied uniquely to CBAs even though no such rule

applies to individual waivers. Pet. App. 18a.

The majority then went on to analyze the CBAs

through the same state-law lens applied to the waiver

issue.

It concluded that “the language in the

Plaintiffs’ CBAs … did not waive [meal-period rights]

in clear and unmistakable language,” because the

CBAs said the employees would receive “on duty meal

periods”—which the majority believed must mean

“true on duty meal periods” (i.e., work-free meal

periods)—within the meaning of recently articulated

Washington law. Pet. App. 19a (emphasis added).

B.

The Dissenting Opinion

By contrast, three justices would have held that

“double damages [were] inappropriate” in this case.

Pet. App. 28a. As the minority saw things, Garda did

not “willfully withhold wages” for meal periods,

because “[t]he language in the CBAs is clear:

‘Employees hereto waive any meal period(s) to which

they would otherwise be entitled.’” Pet. App. 28a

12

(emphasis added). It therefore was “not unreasonable

for Garda to perceive this language as a clear waiver

of employees’ meal periods and not merely an

agreement to on-duty meal periods” as defined by

Washington law. Pet. App. 28a. Indeed, the minority

felt that “there should be no question that [Plaintiffs]

understood the need for a constant state of vigilance

when they agreed to work for Garda.” Pet. App. 29a.

Because “Garda operated according to the CBAs

signed by its employees,” the minority explained,

Garda could not be said to have willfully withheld

Plaintiffs’ wages. Pet. App. 29a. The majority’s

contrary decision “undermines the right of employees

to bargain collectively with their employers” by

signaling that CBAs “are no longer binding” on

employers and employees. Pet. App. 30a.

REASONS FOR GRANTING THE PETITION

The Washington Supreme Court’s 6-3 decision not

only conflicts with decades of Supreme Court

precedent concerning preemption of state-law claims

under both the LMRA and the NLRA, it also creates

multiple conflicts with the decisions of other appellate

courts and is flat-out wrong. Because the decision

below “undermines the right of employees to bargain

collectively with their employers,” Pet. App. 30a, this

Court should grant Garda’s petition and correct the

Washington Supreme Court’s multiple, manifest

errors.

13

I. THE DECISION BELOW FINDING NO

LMRA PREEMPTION CONFLICTS WITH

THIS COURT’S PRECEDENTS AND

CREATES

AN

APPELLATE-COURT

SPLIT

As this Court repeatedly has explained, a statelaw claim that is “substantially dependent upon

analysis of the terms of an agreement made between

the parties in a labor contract,” “must be brought

under § 301 [of the LMRA] and be resolved by

reference to federal law.” Allis-Chalmers, 471 U.S. at

210, 220; see also Lingle v. Norge Div. of Magic Chef,

Inc., 486 U.S. 399, 405–06 (1988) (“[I]f the resolution

of a state-law claim depends upon the meaning of a

[CBA], the application of state law (which might lead

to inconsistent results since there could be as many

state-law principles as there are States) is pre-empted

and federal labor-law principles—necessarily uniform

throughout the Nation—must be employed to resolve

the dispute.”).

The rationale for this broad federal preemption

rule is plain:

“The possibility that individual contract terms

might have different meanings under state

and federal law would inevitably exert a

disruptive influence upon both the negotiation

and administration of collective agreements….

Once the collective bargain was made, the

possibility

of

conflicting

substantive

interpretation under competing legal systems

would tend to stimulate and prolong disputes

as to its interpretation … [and] might

substantially impede the parties’ willingness

14

to agree to contract terms providing for final

arbitral or judicial resolution of disputes.”

Teamsters v. Lucas Flour Co., 369 U.S. 95, 103–04

(1962).

Given this purpose, any preemptive effect “must

extend beyond suits alleging contract violations,” so

that “questions relating to what the parties to a labor

agreement agreed, and what legal consequences were

intended to flow from breaches of that agreement” are

resolved by uniform federal law whether they arise in

“a suit for breach of contract or in a suit alleging

liability in tort.” Allis-Chalmers, 471 U.S. at 210–11.

To hold otherwise, this Court has explained, “would

elevate form over substance” and allow parties to

evade federal law by “relabeling their contract claims”

as tort claims. Id. at 211.

In the face of these long-standing rules, the

Washington Supreme Court allowed Plaintiffs’

double-damages claims to proceed, even though those

claims depend on the meaning of Plaintiffs’ CBAs.

That holding conflicts with this Court’s precedents

and with the decisions of other appellate courts, and

warrants a grant of certiorari.

A. Under the clear holdings of Allis-Chalmers,

Lucas Flour, and other decisions of this Court,

Plaintiffs’ claims for double damages must be

preempted. The Washington Supreme Court itself

acknowledged that employees may only recover

“exemplary [i.e., double] damages” under Washington

law “if the employer withheld the wages (1) willfully

and (2) with intent to deprive the employee of any

party of his or her wages and (3) the employee did not

knowingly submit to such violations.” Pet. App. 7a

15

(emphasis added; internal quotation marks and

brackets omitted).

As a result, “[t]he critical

determination in a case … for double damages is

whether the employer’s failure to pay wages was

‘willful.’” Schilling v. Radio Holdings, Inc., 961 P.2d

371, 375 (Wash. 1998) (en banc).

And under

Washington law, an employer’s conduct cannot be

called “willful” when there is “a ‘bona fide’ dispute …

between the employer and employee regarding the

payment of wages”; that is, when it is “‘fairly

debatable’ … whether all or a portion of the wages

[claimed] must be paid.” Id. at 375, 376. 1

Here, Plaintiffs cannot establish the “critical”

“willful[ness]” element of their double-damages

claims, because the terms of their CBAs create a

“bona fide” dispute about whether Garda even owed

Plaintiffs duty-free meal breaks. Those agreements

state, among other things, that:

•

“The employees hereto agree to an on-duty

meal period. Employees may have an off duty

meal period if they make arrangements with

their supervisor in advance of the need or

provide[] the supervisor with a written request

to renounce the on-duty meal period in

exchange for an off-duty meal period.” Pet.

App. 15a (emphasis added).

•

“The Employees hereto waive any meal

period(s) to which they would be otherwise

entitled. Employees will be paid at their

Washington courts have held that the employer bears the

burden to show the existence of a bona fide dispute. Pet. App.

8a.

1

16

regular hourly rate to work through any such

meal period(s). Notwithstanding this waiver,

employees may eat meals within their vehicles

while on route so long as they can do so in a

safe manner. Employees may take an unpaid

off-duty

meal

period

if

they

make

arrangements with their supervisor … or

provide their supervisor with a written request

to renounce the on-duty meal period in

exchange for an off-duty meal period.” Pet.

App. 15a–16a (emphasis added).

•

“Street routes will be scheduled without a

designated lunch break; thus employees will

not be docked for same. In the event a truck

crew on a street route wishes to schedule a

nonpaid lunch break, they must notify their

supervisor.” Pet. App. 14a (emphasis added).

Based on these terms, Garda contends it did not

“willfully” violate any Washington wage laws

governing meal breaks, because its employees had

plainly bargained away the right to duty-free meal

breaks in their CBAs. The employees expressly

agreed that they would be entitled only to a paid, onduty break (which employees must “work through,”

and during which employees must remain vigilant for

their safety), unless they made special arrangements

with a supervisor to schedule an alternative, unpaid,

and safe off-duty meal period. Accordingly, Garda

quite reasonably read these agreements to absolve it

of any state-law requirement that it provide vigilancefree meal breaks.

Plaintiffs disagree about the meaning of these

agreements’ meal-break terms. But that dispute

17

underscores the need for LMRA preemption in this

case: The Washington courts could not determine

whether Garda’s failure to pay wages was “willful”

without determining whether Garda’s interpretation

of the operative CBAs was reasonable.

In reversing the Court of Appeals on Plaintiffs’

double-damages claim, the Washington Supreme

Court necessarily reached various conclusions

concerning the CBAs’ meaning. It held, for example,

that—based on recent judicial interpretation of a

provision of the Washington code discussing meal

periods—when the CBAs referred to an “on duty meal

period,” what they really meant was a meal period

“during which the employee is relieved of all work

duties,” not (as Garda argued) a meal period during

which employees were permitted to eat while

remaining vigilant and safe. Pet. App. 12a (emphasis

added); see also Pet. App. 19a (holding that the

agreements “retained the protection of true on duty

meal periods” (emphasis added)). And based on that

state-specific understanding of the term “on duty

meal period,” the court concluded that each of

Plaintiffs’ agreements “reaffirm[ed] that [they] had

not waived ‘on duty’ meal periods.” Pet. App. 14a

(emphasis added). But this kind of state-law-specific

interpretation of the collective agreements’ terms is

exactly what section 301 of the LMRA was meant to

avoid.

Allis-Chalmers is instructive. There, plaintiff was

a member of a union that was a party to a CBA. 471

U.S. at 203–04. Plaintiff attempted to bring a

Wisconsin-state-law cause of action against his

employer for “bad-faith handling” of his disability

claim, alleging that the employer “intentionally,

18

contemptuously, and repeatedly failed to make

disability payments under the negotiated disability

plan, without a reasonable basis for withholding the

payments.” Id. at 203, 206 (internal quotation marks

omitted). Although the Wisconsin Supreme Court

considered plaintiff’s bad-faith claim to be

“independent” of the underlying CBA (and thus not

preempted by the LMRA), see id. at 207, this Court

reversed. It held that resolving whether the employer

acted in bad faith would “inevitably … involve

contract interpretation,” because “[t]he parties’

agreement as to the manner in which a benefit claim

would be handled will necessarily be relevant to any

allegation that the claim was handled in a dilatory

manner.”

Id. at 218.

Because “Congress has

mandated that federal law govern the meaning given

[CBA] terms,” this Court held, a Wisconsin “state tort

[that] purports to give life to th[o]se terms in a

different environment” must be “pre-empted.” Id. at

218–19.

The Washington Supreme Court’s reasoning

reprises the Wisconsin Supreme Court’s error: It held

that Garda “willfully” withheld its employees’ wages,

and that Garda could not have reasonably believed

that those employees had waived their right to workfree meal periods, merely because Washington state

law gives some special meaning to a term found in the

operative CBAs—namely, “on duty meal period.” Pet.

App. 11a–12a (rejecting Garda’s argument that

“Plaintiffs waived their right to off duty meal periods

and that they received their on duty meal periods,”

because Garda’s understanding of what counts as an

“on duty meal period” conflicted with a provision of

the Washington state code).

In light of Allis-

19

Chalmers, however, whatever special meaning

Washington gives to the terms in Plaintiffs’ CBAs is

preempted by the LMRA. See 471 U.S. at 210 (“A

state rule that purports to define the meaning or

scope of a term in a contract suit … is pre-empted by

federal labor law.”).

Indeed, preemption is especially important in this

case, for Washington’s understanding of the term “on

duty meal period” is directly at odds with how other

jurisdictions read that term. See Lucas Flour, 369

U.S. at 104 (federal preemption is necessary in order

to avoid “the possibility of conflicting substantive

interpretation [of a CBA] under competing legal

systems”). According to the court below, “[a]n ‘on

duty’ meal period” can only be “one during which the

employee is relieved of all work duties—the employee

need only remain ‘on the premises or at a prescribed

work site in the interest of the employer.’” 2 Pet. App.

12a (emphasis added; quoting Wash. Admin. Code

§ 296-126-092(1)).

By contrast, other jurisdictions have adopted the

opposite meaning for that term. For example, under

California law, “[a]n on-duty meal period is one in

which an employee is not ‘relieved of all duty’ for the

entire 30-minute period.” Brinker Restaurant Corp.

2 Notably, as the Washington Supreme Court acknowledged, it

was not even clear before the 2011 Pellino decision that this was

the only permissible understanding of the term “on duty meal

period” under Washington state law. Pet. App. 5a. It therefore

makes little sense to infer that the term “on duty meal period”

as used in Garda’s CBAs—most of which pre-date Pellino, see

Pet. App. 15a–16a (quoting agreements from 2006, 2008, 2009,

and 2010—must be read in light of Pellino’s unique definition of

that term.

20

v. Super. Ct., 273 P.3d 513, 533 (Cal. 2012) (emphasis

added); see also McFarland v. Guardsmark, LLC, 538

F. Supp. 2d 1209, 1211 (N.D. Cal. 2008) (similar).

And the same goes for federal law: “On duty meal

periods” are those where employees are expected to

continue working in some capacity. See 5 C.F.R.

§ 551.411(c) (“Bona fide meal periods are not

considered hours of work, except for on-duty meal

periods for employees engaged in fire protection or

law enforcement activities who receive compensation

for overtime hours of work.”).

Because what counts as an “on duty meal period”

under specific statutes can vary from jurisdiction to

jurisdiction, the application of a particular state’s law

to construe that term in a CBA directly implicates the

uniformity concerns underlying LMRA preemption.

See Lingle, 486 U.S. at 405–06 (noting that “federal

labor-law principles … must be employed to resolve

[an interpretation] dispute” to avoid “inconsistent

results”); Lucas Flour, 369 U.S. at 102–03 (holding

“that … incompatible doctrines of local law must give

way to principles of federal labor law,” and rejecting

argument that “States remain free to apply

individualized local rules when called upon to enforce

[collective] agreements”). Here, Plaintiffs’ doubledamages claims turn on whether Garda acted

willfully—that is, whether Garda interpreted the

CBAs’ “on duty meal period” terms in good faith—and

thus the Washington Supreme Court’s use of state

law to resolve those claims is preempted.

In holding otherwise, the Washington Supreme

Court plainly misapplied Allis-Chalmers and its

progeny. This Court should grant Garda’s petition,

both to clarify its precedents and to make clear that

21

the Washington Supreme Court’s reasoning flatly

contravenes those precedents.

B. Certiorari is doubly appropriate here, as the

Washington Supreme Court’s erroneous holding

irreconcilably conflicts with the decisions of other

appellate courts applying LMRA preemption

principles to similar claims turning on the defendant

employer’s (allegedly) “willful,” “unreasonable,” or

“outrageous” behavior.

For example, the Seventh Circuit has held that a

claim for “willful nonpayment of money due for past

work” does not survive LMRA preemption. Nat’l

Metalcrafters, Div. of Keystone Consol. Indus. v.

McNeil, 784 F.2d 817, 823 (7th Cir. 1986) (emphasis

added). The Nat’l Metalcrafters court held that “a

determination that a contract is so clear as to make a

breach willful … is an interpretation of the contract”:

Resolving the state-law claim would require the court

to determine whether plaintiff’s reading of the CBA

was “incontestable” or was, instead, “fairly

debatable.” Id. at 823, 825. Accordingly, the Seventh

Circuit deemed such a state-law claim preempted by

the LMRA.

The Nat’l Metalcrafters decision coheres with the

decisions of numerous other federal circuit courts, all

of which stand in contrast to the Washington

Supreme Court’s decision here. In Miller v. AT&T

Network Systems, 850 F.2d 543 (9th Cir. 1988), for

example, the Ninth Circuit considered the claims of

an employee whose working conditions were governed

by a CBA. The employee alleged that his employer

had discriminated against him, and he brought

various state-law claims against his employer,

22

including intentional infliction of emotional distress.

Id. at 545. The Ninth Circuit correctly held that the

employee’s tort claim was preempted by the LMRA.

As that court explained, the emotional-distress claim

required the plaintiff to demonstrate outrageous

conduct by the employer, and “[t]he outrageousness of

[the employee’s] reassignment and dismissal could

depend on whether the behavior violated the terms of

the CBA.” Id. at 551. “Because the … claim requires

consideration of reasonableness of [the employer’s]

behavior, which in turn could depend on whether that

behavior violated the [CBA], the claim is preempted.”

Ibid. (emphasis added); see also Truex v. Garrett

Freightlines, Inc., 784 F.2d 1347, 1350 (9th Cir. 1985)

(similar).

Similarly, both the Fourth and the Seventh

Circuits have held that section 301 of the LMRA

preempts state-law torts turning on questions of

“reasonableness” that are bound up with CBA terms.

See Foy v. Giant Food Inc., 298 F.3d 284, 288 (4th Cir.

2002) (finding state-law claim for emotional distress

preempted because “whether Giant’s actions are

wrongful can be determined only by interpreting the

collective bargaining agreement”); Douglas v. Am.

Info. Tech. Corp., 877 F.2d 565, 573 (7th Cir. 1989)

(holding that where emotional distress claim “consists

of allegedly wrongful acts directly related to the terms

and conditions of her employment,” such that it “will

be substantially dependent on an analysis of the

terms of the [CBA]” and require the court to

“determine whether her employer's conduct was

authorized by the explicit or implicit terms of the

agreement,” the “claim is preempted and must be

pursued as a section 301 claim”).

23

These holdings cannot be squared with the

Washington Supreme Court’s decision in this case. As

in Nat’l Metalcrafters, Plaintiffs must establish that

Garda’s failure to pay them for meal periods was

“willful,” and resolving that “willful[ness]” element of

Plaintiffs’ claims cannot help but require

“interpretation of the” operative CBAs’ meal-period

terms. And as in Miller and other cases, Plaintiffs’

double-damages

claims

depend

on

the

“reasonableness of [the employer’s] behavior,” 850

F.2d at 551, including whether Garda reasonably

believed that Plaintiffs had bargained away their

right to duty-free meal periods, see Schilling, 961 P.2d

at 375 (“The critical determination in a case … for

double damages is whether the employer’s failure to

pay wages was ‘willful.’”). But the Washington

Supreme Court broke with these precedents to

nevertheless find that Plaintiffs’ claims fell outside

the scope of LMRA preemption.

By its decision, then, the Washington Supreme

Court has taken the wrong side in a decades-long

debate among appellate courts over the scope of

federal labor preemption. Absent guidance from this

Court, the confusion over whether state-law claims

requiring showings of, for example, “willfulness” that

turn on CBA terms promises to grow. 3

3 Of course, states may set standards for working conditions that

are categorically nonnegotiable, whether collectively or

individually. In that case, a claim for willful violation of the

state standard may not turn on the CBA, and the claim may not

be preempted. See Livadas v. Bradshaw, 512 U.S. 107, 123

(1994); Allis-Chalmers, 471 U.S. at 213, 217–18 & n.11; Valles v.

Ivy Hill Corp., 410 F.3d 1071, 1076, 1080–82 (9th Cir. 2005).

That is not the case here. Washington law allows meal periods

24

C. Despite Allis-Chalmers and the wealth of

precedent concerning the scope of LMRA preemption

in cases like the present one, the Washington

Supreme Court concluded that Plaintiffs’ doubledamages claims were not preempted because: (1)

“Garda never argued that [] Plaintiffs’ waived the ‘on

duty’ meal period right that [] Plaintiffs are seeking

to enforce,” Pet. App. 11a (some emphasis and

capitalization omitted); and (2) “[t]he fact that Garda

‘refers to the CBA[s] in mounting a defense’ does not

turn [Plaintiffs’ claims] into … LMRA claim[s],” Pet.

App. 17a (quoting Valles v. Ivy Hill Corp., 410 F.3d

1071, 1076 (9th Cir. 2005)). The Court was wrong on

both counts, however, and neither rationale poses an

obstacle to this Court’s review.

First, the Washington Supreme Court’s “waiver”

point hinges on the same error described in Part I.A,

supra. That is, the court held that Garda had waived

any argument that Plaintiffs were not entitled to “on

duty meal periods” under the terms of their CBAs

only by using Washington state law, post-dating

many of those CBAs, to re-define what “on duty meal

period” means. As the court acknowledged: “Garda

argued below, as it has consistently throughout this

litigation, that [Plaintiffs] intentionally and

knowingly waived off-duty meal periods either in the

agreements negotiated by [Plaintiffs’] Associations or

by individually signing the acknowledgments of the

same,” and “Garda also argued that there was no

to be individually waived, and the Washington Supreme Court

assumed (without deciding) that meal periods were also

collectively negotiable and went on to interpret the CBAs’ terms.

Pet. App. 13a–16a.

25

wage violation because [Plaintiffs] were paid for [] onduty meal breaks.” Pet. App. 12a (some emphasis

added; internal quotation marks omitted). The court

deemed these arguments insufficient merely because

the off-duty/on-duty terminology in Garda’s

arguments and in the CBAs did not match

Washington law’s novel understanding of what counts

as an “on duty meal period.” Pet. App. 12a.

This purported “waiver” poses no obstacle to

review, for it is bound up with the substantive LMRA

preemption that warrants review here. The very

same interpretation of Washington meal-period

regulations, resting on the very same case (Pellino),

grounds both the court’s interpretation of the CBA

(which is preempted), and the court’s holding that

Garda “waived” its competing interpretation of the

CBAs. Because this “waiver” holding is purely

derivative of the recurring preemption questions

presented here, it furnishes no adequate or

independent state ground that could forestall this

Court’s review. Cf. Sanders v. Cotton, 398 F.3d 572,

580 (7th Cir. 2005) (“Because the appellate court’s

discussion of waiver is intertwined with its merits

analysis …, the state court’s decision does not rest on

an independent and adequate state law ground [for

purposes of federal habeas law].”).

This is especially so because the “waiver”

argument makes no sense on its own terms. See Stop

the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl.

Prot., 560 U.S. 702, 725 (2010) (“To ensure that there

is no ‘evasion’ of our authority to review federal

questions, we insist that the nonfederal ground of

decision have ‘fair support.’”). Garda plainly argued

that Plaintiffs had waived their right to a “meal

26

period … during which the employee is relieved of all

work duties.” Pet. App. 12a (emphasis added). Garda

simply (and reasonably) called that kind of meal

period an “off-duty” meal period—both in its briefs

and in its CBAs. Garda likewise (reasonably) referred

in its briefs and CBAs to meal periods in which

employees were required to work in exchange for pay

as “on-duty” meal periods. See Pet. App. 15a–16a

(quoting a CBA that contrasts an “on-duty” meal

period, for which Plaintiffs would “be paid at their

regular hourly rate to work through any such meal

period(s),” with an “off-duty” meal period (emphasis

added)).

That Garda did not anticipate the Washington

courts’ counterintuitive redefinition of “on duty meal

period” under state law to mean “one during which

the employee is relieved of all work duties,” Pet. App.

12a, cannot avoid the fact that Garda indisputably

argued that Plaintiffs had waived their usual mealperiod rights in exchange for a collectively bargainedfor system with two kinds of meal periods: “On duty”

periods that Plaintiffs must work through (but for

which they will be paid); and “off duty” periods,

which—like “on duty” meal periods under

Washington state law—require no work, but which

Plaintiffs expressly waived in their CBAs. See Pet.

App. 15a–16a (“The Employees hereto waive any meal

period(s) to which they would be otherwise entitled.”).

Second, the Washington Supreme Court erred

when it held that LMRA preemption does not apply to

Plaintiffs’ claims because the CBAs’ terms are

relevant only to Garda’s “defense.” Pet. App. 17a.

The court relied on Caterpillar Inc. v. Williams, 482

U.S. 386 (1987), which concerned federal removal

27

jurisdiction and the complete preemption doctrine.

Defendants in that case had removed plaintiffs’ statelaw claims to federal court based on defenses tied to a

CBA not mentioned in the complaint. This Court held

that the complete preemption doctrine could not

overcome “the paramount policies embodied in the

well-pleaded complaint rule,” and that “a defendant

cannot, merely by injecting a federal question into an

action that asserts what is plainly a state-law claim,

transform the action into one arising under federal

law.” Id. at 398–399 (emphasis omitted).

But that is not what happened here. To start, the

need to interpret the terms of Plaintiffs’ CBAs

appeared “on the face of the complaint.” Id. at 399.

After all, Plaintiffs seek double damages from Garda,

and to prove their right to recover such damages,

Plaintiffs must show that Garda’s failure to pay them

their requested meal periods was done “‘[w]illfully

and with intent to deprive’ within the meaning of”

Washington law. Pet. App. 9a. This is crystal clear

from Washington precedents which establish that

“there are two instances when an employer’s failure

to pay wages is not willful: the employer was careless

or erred in failing to pay, or a ‘bona fide’ dispute

existed between the employer and employee

regarding the payment of wages.” Schilling, 961 P.2d

at 375; see also Pope v. Univ. of Wash., 852 P.2d 1055,

1062 (Wash. 1993) (en banc) (“Nonpayment of wages

is willful … ‘when it is … not the result of a bona fide

dispute as to the obligation of payment.’”).

Here, as the Washington Supreme Court’s own

analysis shows, courts can only determine the

existence of such a “bona fide” dispute by referring to

the terms of the operative CBAs. As a result, fully

28

resolving the elements of Plaintiffs’ double-damages

claims could not help but “inject[]” the terms of those

agreements into this litigation, regardless of

Washington’s rule that the employer bears the burden

of proof on establishing the bona fide dispute. 4

More important, this case does not concern

removal jurisdiction or the complete-preemption

principles at issue in Caterpillar. And this Court’s

and other courts’ jurisprudence make clear that an

employer’s defenses are entirely relevant in a

conventional preemption case like this one. In Lingle,

for example, this Court considered whether a tort for

retaliatory discharge was preempted by the LMRA.

See 486 U.S. at 406–07. To determine whether such

a claim could proceed, the Court not only considered

the “elements” of the plaintiff’s claim, but also

examined whether the employer’s “defen[se] against a

retaliatory discharge claim … turn[ed] on the

meaning of any provision of a collective-bargaining

agreement.” Id. at 407 (emphasis added). Thus,

whether interpretation of Plaintiffs’ CBAs comes up

as a result of Plaintiffs’ affirmative case for

“willful[ness]” or as a result of Garda’s defense to

4 The cases the Washington Supreme Court relied upon to reject

Garda’s preemption argument are not to the contrary. For

example, Valles merely restated the long-standing LMRA

complete-preemption test: “[I]n order for complete preemption

to apply, ‘the need to interpret the CBA must inhere in the nature

of the plaintiff’s claim.’” 410 F.3d at 1076 (quoting Cramer v.

Consolidated Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001)

(emphasis added)). And here, as just described, the “nature” of

Plaintiffs’ double-damages claims requires interpretation of the

operative CBAs, and thus this is not a case where Garda has

simply “refer[red] to th[ose] [agreements] in mounting [its]

defense.” Cramer, 255 F.3d at 691.

29

double damages makes no difference: Resolving

Plaintiffs’

double-damages

claims

requires

interpretation of the CBAs, and so those claims are

preempted. See Fry v. Airline Pilots Ass’n, Int’l, 88

F.3d 831, 838 n.8 (10th Cir. 1996) (“Caterpillar does

not change the general rule that if a CBA must be

interpreted to resolve the claim, even if the CBA

interpretation is initiated by the defense, the federal

or state court must hold the claim preempted.”).

Indeed, in focusing on whether LMRA preemption

arose solely by way of Garda’s “bona fide dispute”

defense, the Washington Supreme Court’s reasoning

implicates yet another area of confusion weighing in

favor of this Court’s review. That is because the

“Circuits are split as to whether a defense, as opposed

to a claim, that is substantially dependent on the

terms of a CBA compels § 301 preemption.” Atwater

v. Nat’l Football League Players Ass’n, 626 F.3d 1170,

1181 n.14 (11th Cir. 2010) (citing Williams v. Nat’l

Football League, 582 F.3d 863, 872–73, 879 & n.13

(8th Cir. 2009); Ward v. Circus Circus Casinos,

Inc., 473 F.3d 994, 996–98 (9th Cir. 2007);

Fry, 88 F.3d at 838 n.8; Smith v. Colgate–Palmolive

Co., 943 F.2d 764, 770–71 (7th Cir. 1991); Hanks v.

Gen. Motors Corp., 859 F.2d 67, 70 (8th Cir. 1988)).

30

II.

THE DECISION BELOW REQUIRING

THAT WAIVERS OF MEAL-BREAK

RIGHTS IN CBAs BE “CLEAR AND

UNMISTAKABLE” IS PREEMPTED BY

FEDERAL LAW AND CONFLICTS WITH

DECISIONS OF OTHER APPELLATE

COURTS

This Court should also intervene for a second,

independent reason: In the decision below, the

Washington Supreme Court held that collective

waivers of state meal-period rights must be “clear and

unmistakable.”

Because there is no similar

requirement for individual meal-period waivers

under Washington law, the Washington Supreme

Court’s new rule unfairly discriminates against the

collective bargaining process—as the dissenting

opinion below recognized. That rule is therefore

preempted by the NLRA, and the court’s failure to

apply federal law conflicts directly with the decisions

of other appellate courts.

A. The NLRA provides, among other things, that

it is “the policy of the United States to eliminate the

causes of certain substantial obstructions to the free

flow of commerce … by encouraging the practice and

procedure of collective bargaining.” 29 U.S.C. § 151

(emphasis added). And that Act further provides that

“[e]mployees shall have the right to self-organization”

and “to bargain collectively through representatives

of their own choosing.” Id. § 157. In light of these

provisions, this Court has repeatedly explained that

the NLRA preempts any state law that stands “as an

obstacle to the accomplishment and execution of the

full purposes and objectives” of Congress’s collectivebargaining policies, Livadas, 512 U.S. at 120 (internal

31

quotation marks omitted), and that state laws may be

preempted if they, for example, “discourage the

collective-bargaining process,” Metro. Life, 471 U.S. at

755.

The Washington Supreme Court’s decision flouts

these well-settled principles. The court held that

Plaintiffs’ state-law rights to meal periods could not

be waived in a CBA unless Plaintiffs’ agreements

used “‘clear and unmistakable language’” to waive

those rights. Pet. App. 18a. The court further held

that there was no such waiver in Plaintiffs’ CBAs,

because those agreements “retained the protection of

true on duty meal periods,” Pet. App. 19a (emphasis

added)—that is, “on duty meal periods” as defined

under Washington law to mean “one during which the

employee is relieved of all work duties,” Pet. App. 12a.

That analysis was wrong, see infra part iii, and is

plainly preempted by federal law. It is undisputed

that there is no comparable “clear and unmistakable”

requirement for individual waivers of Washington’s

meal-period rights. The court of appeals expressly

recognized below that “individual employees may

waive their meal periods” under Washington state

law. Pet. App. 51a (emphasis added); see also Pellino,

267 p.3d at 399 (“employees can waive the meal break

requirements” imposed by Washington law.). And

such individual waivers are enforceable regardless of

whether they are accomplished through “clear and

unmistakable language.” Indeed, such individualemployee waivers need not even be written down to be

given full force and effect: “‘if an employee wishes to

waive that meal period, the employer may agree to

it…. While it is not required, the [Washington

department of labor and industries] recommends

32

obtaining a written request from the employee[] who

chooses to waive the meal period.’” pet. App. 52a

(emphasis added).

The Washington Supreme Court nevertheless

adopted a stringent “clear and unmistakable

language” test for collective meal-period waivers.

That heightened test cannot but discourage the

process of collectively bargaining employees’ mealperiod rights: Individual employees can easily choose

to have paid meal periods in which they retain some

or all of their duties; but under the Washington

Supreme Court’s approach, employees cannot make

the same election so easily on a collective basis. The

court’s “clear and unmistakable language” test—

which applies only to CBAs—is therefore preempted,

and this Court should grant certiorari to correct that

court’s error. See Pet. App 30a (dissenting op.,

concluding that “[t]he majority’s decision undermines

the right of employees to bargain collectively with

their employers”).

B. What’s more, the lower court’s error is at odds

with the decisions of other appellate courts that have

resolved similar NLRA preemption claims. For

example, in California Grocers Ass’n v. City of Los

Angeles, 254 P.3d 1019, 1022 (Cal. 2011), the

California Supreme Court considered whether a city

ordinance survived in light of the national policies in

favor of CBAs announced in the NLRA. While

acknowledging that “the NLRA regulates … the

process of organizing and bargaining,” and that

“federal labor law … supplant[s] [state law] when it

prevents the accomplishment of the purposes of the

federal Act,” the California Supreme Court upheld the

ordinance because its benefits “appl[ied] … to all

33

employees equally, irrespective of union or nonunion

status.” Id. at 1028, 1031. Indeed, the California

Supreme Court held that:

“The [o]rdinance’s neutrality [was] essential to

its validity. Just as employment regulations

aimed solely at unionized workers may intrude

into aspects of organizing and bargaining

Congress intended the states not to regulate,

so may regulations that apply only to

nonunionized workers and select out

unionized workers for disfavored status be

preempted as forcing employees to choose

between exercising their right to enter a

collective bargaining agreement and having

their state-granted employment rights

enforced.”

Id. at 1031 n.7 (emphasis added).

Under the California Supreme Court’s (correct)

analysis of federal law, the Washington Supreme

Court’s “clear and unmistakable language”

requirement for collectively negotiated meal-period

waivers is preempted by the NLRA. This is because

the Washington Supreme Court’s rule applies only to

employees who elect on-duty meal periods through a

CBA, as opposed to individual employees that

negotiate for those rights on an individual basis. In

this way, the Washington Supreme Court’s “clear and

unmistakable language” requirement for collective

meal-period waivers necessarily “select[s] out

unionized workers for disfavored status.” Ibid. That

requirement is accordingly preempted by the NLRA.

Nor does the case the Washington Supreme Court

cited in support of its “clear and unmistakable

34

language” rule save that rule from NLRA preemption.

Pet. App. 19a (citing Valles, 410 F.3d at 1076). Valles

involved only an LMRA preemption challenge, and

did not consider whether the NLRA would preempt

the application of a discriminatory “clear and

unmistakable” requirement to collective waivers

when under state law individual waivers were

permissible under a lower standard. Valles had no

occasion to consider that question, because the mealperiod rights at issue were held to be entirely

“nonnegotiable” as a matter of state law. 410 F.3d at

1080–82. 5

Indeed, the “clear and unmistakable” language in

Valles derives from a line of this Court’s precedent

holding that a CBA would have to use such language

before it could possibly preempt a nonnegotiable

state-law right or certain fundamental federal labor

rights. See Livadas, 512 U.S. at 125 (“in view of [Cal.]

Labor

Code

§ 219,”

making

state

rights

nonnegotiable, waiver of those rights in CBA would

“have to be ‘clear and unmistakable’”); Lingle, 486

U.S. at 409–10 n.9 (where state law makes rights

nonnegotiable, “[b]efore deciding whether such a

state-law bar to waiver could be pre-empted under

federal law by the parties to a collective-bargaining

agreement,

we

would

require

‘clear

and

unmistakable’ evidence … that such a waiver had

been intended”); Wright v. Universal Mar. Serv.

Corp., 525 U.S. 70, 80 (1998) (waiver of federal right

As a result, Valles held that it “need not, indeed may not,

construe the [defendant’s] collective bargaining agreement …

because any provision of the [CBA] purporting to waive the right

to meal periods would be of no force or effect.” 410 F.3d at 1082.

5

35

to a judicial forum for claims of employment

discrimination must be clear and unmistakable).

Valles can thus be reconciled with this Court’s

precedents indicating that a waiver of a nonnegotiable

state-law right would have to be “clear and

unmistakable.” But it has no application to this case,

which involves a meal-period right that state law

clearly allows to be bargained away.

That

the

Washington

Supreme

Court

misconstrued federal precedent to impose a “clear and

unmistakable” standard for collective waivers of

rights that as a matter of state law may be negotiated

away individually without such “clear and

unmistakable” language—and that other appellate

courts have expressed uncertainty on this same point,

see Ehret v. WinCo Foods, LLC, 26 Cal. App. 5th 1, 6

(2018)—underscores the need for this Court’s review.

III. THE

DECISION

BELOW

INCORRECTLY INTERPRETS THE

CBAs, IN CONFLICT WITH OTHER

COURTS APPLYING THE FEDERAL

LAW OF CBA INTERPRETATION

Finally, even assuming that Plaintiffs could only

waive their right to off-duty meal breaks “clearly and

unmistakably,” Plaintiffs did just that in their CBAs.

Indeed, as described above, at least three of the

operative agreements made clear that “‘[t]he

Employees hereto waive any meal period(s) to which

they would be otherwise entitled’” and that employees

“will be paid at their regular hourly rate to work

through any such meal period(s).” Pet. App. 15a–16a

(emphasis added).

Several other agreements

explicitly noted that “[t]he Employees hereto agree to

36

an on-duty meal period,” and that employees could

only have “an off duty meal period if they make

arrangements … in advance” for such a meal period,

Pet. App. 15a.

Other jurisdictions correctly applying the federal

law of CBA interpretation have held similar language

sufficient to establish waiver. In Ehret, for example,

the California Court of Appeal assumed without

deciding that “the clear and unmistakable standard”

applied, but held that the CBAs at issue had “clearly

and unmistakably” waived the plaintiffs’ meal-period

rights because the agreements “discuss[ed] meal

breaks” and provided for meal breaks that were “flatly

irreconcilable with the provision of” the California

labor code that required such breaks. 26 Cal. App.

5th at 9. It mattered not that those CBAs did not

reference the state meal-period statute or use the

word “waiver,” or that those CBAs referenced the

company’s “policy not to mutually agree with

employees to waive their lunch period.” Ibid.

Here, the parties’ CBAs more than meet even the

improper “clear and unmistakable” waiver test:

Several of the agreements explicitly mention

“waiver”; all of them “discuss meal breaks”; and all of

them provide for meal breaks that are “flatly

irreconcilable” with Washington law’s version of an

“on duty meal break.” The agreements, after all,

contemplate “on-duty meal breaks” that Plaintiffs

must “work through,” and provide that employees can

get “off-duty” meal breaks only if they get advance

approval on a case-by-case basis. As the dissent below

found,

Plaintiffs’

therefore

“clearly

and

unmistakably” waived their usual meal-break rights,

and the Washington Supreme Court erred in

37

concluding otherwise. Pet. App. 28a; cf. Int’l Bhd. of

Elec. Workers, Local 803, AFL-CIO v. NLRB, 826 F.2d

1283, 1295–98 (3d Cir. 1987) (finding that plaintiffs

clearly waived their right to strike when they agreed

that “there shall be no strikes or walkouts by the

Brotherhood or its members”).

CONCLUSION

The Court should grant Garda’s petition for

certiorari.

Respectfully submitted,

FRED A. ROWLEY, JR.

Counsel of Record

MALCOLM A. HEINICKE

ERIC P. TUTTLE

AARON D. PENNEKAMP

MUNGER, TOLLES & OLSON LLP

350 South Grand Avenue, 50th Floor

Los Angeles, CA 90071-3426

(213) 683-9100

fred.rowley@mto.com

Counsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.