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.