Opposition Brief — Garda CL Northwest, Inc., fka AT Systems, Inc., Petitioner v. Lawrence Hill, et al.

No. 18-1083

IN THE

Supreme Court of the United States

GARDA CL NORTHWEST, 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

RESPONDENTS’ BRIEF IN OPPOSITION

DANIEL F. JOHNSON

BRESKIN JOHNSON &

TOWNSEND, PLLC

1000 Second Avenue

Suite 3670

Seattle, WA 98104

(206) 652-8660

SCOTT L. NELSON

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

ADAM J. BERGER

SCHROETER GOLDMARK

& BENDER

810 Third Avenue

Suite 500

Seattle, WA 98104

(206) 622-8000

Attorneys for Respondents

April 24, 2019

i

QUESTIONS PRESENTED

1. Whether this Court lacks jurisdiction under 28

U.S.C. § 1257(a) because the petition seeks review of

a non-final decision of a state court.

2. Whether the Washington Supreme Court’s decision that the petitioner failed to preserve its federal

preemption claims obviates any reason for this Court

to address those issues.

3. Whether, contrary to this Court’s decision in

Livadas v. Bradshaw, 512 U.S. 107 (1994), and consistent federal appellate authority construing it, § 301

of the Labor Management Relations Act preempts a

claim for statutory penalties for denial of workers’

rights under state wage laws when an employer asserts as a defense that it believed a collective bargaining agreement waived those rights.

4. Whether any issue of preemption under the National Labor Relations Act is presented by the Washington Supreme Court’s adoption of a standard based

on federal law for determining whether a collective

bargaining agreement waives rights under state

wage-and-hour laws.

ii

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ....................................................... 1

STATEMENT .............................................................. 4

REASONS FOR DENYING THE WRIT .................. 10

I.

This Court lacks jurisdiction because the

decision of the state supreme court is not

final ..................................................................... 10

II. The state supreme court’s decision rests on

a state-law basis: Garda’s failure to preserve

the essential premise of the arguments it now

seeks to present. ................................................. 14

III. Garda’s LMRA preemption argument is

meritless and presents no decisional conflict

requiring review by this Court. ......................... 18

IV. Garda’s NLRA preemption argument is

unfounded because the clear-statement

requirement for waivers of statutory rights

in collective bargaining agreements comes

from federal law, not state law. ......................... 25

V. The Court should reject Garda’s suggestion

that it grant certiorari to construe the

collective bargaining agreements. ..................... 30

CONCLUSION.......................................................... 32

iii

TABLE OF AUTHORITIES

Cases

Page(s)

14 Penn Plaza LLC v. Pyett,

556 U.S. 247 (2009) ....................................... 26, 27

Allis-Chalmers Corp. v. Lueck,

471 U.S. 202 (1985) ................................... 8, 21, 22

AT&T Techs., Inc. v. Comm’c’ns Workers of Am.,

475 U.S. 643 (1986) ............................................. 30

Belknap, Inc. v. Hale,

463 U.S. 491 (1983) ....................................... 13, 14

Cal. Grocers Ass’n v. City of Los Angeles,

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

cert. denied, 565 U.S. 1178 (2012) ................ 28, 29

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) ....................................... 12, 13

Cramer v. Consol. Freightways, Inc.,

255 F.3d 683 (9th Cir. 2001), cert. denied,

534 U.S. 1078 (2002) ....................8, 20, 21, 23, 224

Douglas v. Am. Info. Techs. Corp.,

877 F.2d 565 (7th Cir. 1989) ............................... 23

Ehret v. WinCo Foods, LLC,

236 Cal. Rptr. 3d 572

(Cal. Ct. App. 2018) ........................... 27, 28, 30, 31

El Paso Natural Gas Co. v. Neztsosie,

526 U.S. 473 (1999) ............................................. 21

Foy v. Giant Food Inc.,

298 F.3d 284 (4th Cir. 2002) ............................... 23

Florida v. Thomas,

532 U.S. 774 (2001) ................................... 2, 11, 12

iv

Flynt v. Ohio,

451 U.S. 619 (1981) ............................................. 13

Frese v. Snohomish County,

120 P.3d 89 (Wash. Ct. App. 2005) ....................... 4

Hill v. Garda CL Nw., Inc.,

308 P.3d 635 (Wash. 2013),

cert. denied, 573 U.S. 916 (2014) .......................... 5

Int’l Longshoremen’s Ass’n v. Davis,

476 U.S. 380 (1986) ....................................... 15, 16

Jefferson v. City of Tarrant,

522 U.S. 75 (1997) ........................................... 2, 11

Johnson v. California,

541 U.S. 428 (2004) ....................................... 10, 13

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

486 U.S. 399 (1988) ......................19, 21, 24, 26, 31

Livadas v. Bradshaw,

512 U.S. 107 (1994) ...................................... passim

Market St. R. Co. v. R.R. Comm’n of Calif.

324 U.S. 548 (1945) ............................................. 11

Massachusetts v. Sheppard,

468 U.S. 981 (1984) ............................................. 17

Metro. Edison Co. v. NLRB,

460 U.S. 693 (1983) ............................................. 26

Miller v. AT&T Network Sys.,

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

Nat’l Metalcrafters v. McNeil,

784 F.2d 817 (7th Cir. 1986) ......................... 22, 23

O’Dell v. Espinoza,

456 U.S. 430 (1982) ............................................. 11

v

Pellino v. Brink’s Inc.,

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

Pierce County, Wash. v. Guillen,

537 U.S. 129 (2003) ....................................... 11, 12

Radio Station WOW, Inc. v. Johnson,

326 U.S. 120 (1945) ............................................. 11

Schilling v. Radio Holdings, Inc.,

961 P.2d 371 (Wash. 1998) .................................. 19

Truex v. Garrett Freightlines, Inc.,

784 F.2d 1347 (9th Cir. 1985) ............................. 23

Valles v. Ivy Hill Corp.,

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

Wash. State Nurses Ass’n v. Sacred Heart Med. Ctr.,

287 P.3d 516 (Wash. 2012) .................................. 19

White v. Salvation Army,

75 P.3d 990 (Wash. Ct. App. 2003),

rev. denied, 94 P.3d 959 (Wash. 2004) .................. 4

Wingert v. Yellow Freight Sys., Inc.,

50 P.3d 256 (Wash. 2002) ...................................... 4

Wright v. Universal Maritime Serv. Corp.,

525 U.S. 70 (1998) ......................................... 26, 27

Statutes and Rules

28 U.S.C. § 1257(a) ......................................... 2, 10, 11

Federal Aviation Administration Authorization Act,

49 U.S.C. § 14501 .......................................... 5, 6, 9

Labor Management Relations Act, § 301,

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

National Labor Relations Act,

29 U.S.C. §§ 151 et seq..................................passim

vi

S. Ct. R. 10. ............................................................... 18

Wash. Admin. Code 296-126-092 ....................... 3, 4, 7

Other

Address of Chief Justice Vinson before the Am. Bar

Ass’n, Sept. 7, 1949 (quoted in Stephen M.

Shapiro, et al., Supreme Court Practice Ch. 4.1,

at 236 (10th ed. 2013) .................................... 18, 19

INTRODUCTION

Petitioner Garda CL Northwest, Inc., an armoredcar company, denied its drivers their right under

Washington wage-and-hour laws to a paid, on-duty

lunch period: that is, a period of break time when they

had to remain at their place of duty but could not be

required to work. Garda has contested this litigation

for a decade through multiple appeals, including a

previous, unsuccessful petition for certiorari raising

an issue that it no longer pursues. Now, with its liability to a class of employees for violating Washington

law clearly established, and millions of dollars of compensatory damages awarded, Garda challenges only a

small part of the outcome below—a holding rejecting

defenses it asserted to liability for double damages as

a penalty for willful violations during part of the period at issue. Specifically, Garda asks this Court to

consider whether either § 301 of the Labor-Management Relations Act (LMRA), 29 U.S.C. § 185, or the

National Labor Relations Act (NLRA) preempts the

Washington Supreme Court’s decision that Garda

cannot avoid penalties by claiming that there was a

good-faith dispute over whether the drivers’ collective

bargaining agreements (CBAs) validly waived the

right to a meal period.

Garda, however, overlooks a glaring jurisdictional

problem: the lack of a final decision on the issue of

Garda’s liability for penalties. The Washington Supreme Court remanded the case to the state’s intermediate court of appeals to address additional arguments

raised by Garda in support of its claimed defenses to

double damages. This Court has certiorari jurisdiction

only over “[f]inal judgments or decrees rendered by the

highest court of a State in which a decision could be

2

had.” 28 U.S.C. § 1257(a). Thus, this Court lacks jurisdiction to review the state-court decision below because that decision is not “final as an effective determination of the litigation,” Jefferson v. City of Tarrant,

522 U.S. 75, 81 (1997), and withholding immediate review in the circumstances of this case would not “seriously erode federal policy,” Florida v. Thomas, 532

U.S. 774, 780 (2001).

In addition, the principal basis of the Washington

Supreme Court’s decision was that Garda waived any

defense based on the content of the CBAs by repeatedly and expressly acknowledging that the agreements did not waive employees’ entitlement to an onduty meal period. Thus, Garda had conceded away the

essential premise of its LMRA and NLRA arguments.

Garda argues that the Washington Supreme Court’s

waiver ruling was itself somehow intertwined with

Garda’s federal preemption claims, but it was not: The

court’s decision was based on a straightforward reading of the statements Garda had repeatedly made in

its briefs, and the court’s understanding of Garda’s arguments was not premised in any way on the resolution of any issue of federal law. Thus, addressing the

LMRA and NLRA preemption issues Garda seeks to

raise would not affect the outcome in the state court.

This Court should not grant certiorari to address issues that will have no bearing on the outcome of the

limited double-damages issue in this case.

Even aside from these obstacles to review, Garda’s

LMRA and NLRA preemption arguments do not merit

review. Garda’s argument that the LMRA precludes a

court from entertaining a state-law claim for penalties

for a statutory violation if a proffered defense of good

faith involves any examination of the terms of a CBA

is neither supported by the decisions of this Court nor

3

the subject of a disagreement among federal courts of

appeals and/or state supreme courts. Indeed, this

Court’s decision in Livadas v. Bradshaw, 512 U.S. 107

(1994)—which Garda virtually ignores—contradicts

Garda’s assertion that a court cannot examine a CBA

to determine whether a state statutory claim has been

waived.

As for NLRA preemption, the essential premise of

Garda’s argument is erroneous: Garda claims that the

Washington Supreme Court applied a state-law clearstatement principle to the question whether a CBA

waives workers’ statutory rights, in contravention of

federal standards. The court’s discussion of that issue,

however, clearly explains that the court derived the

clear-statement principle from federal law regarding

construction of CBAs, including Livadas and other decisions of this Court. Preemption, therefore, cannot

possibly come into play.

STATEMENT

Under Washington law, set forth in regulations

promulgated by the state’s Department of Labor and

Industries, an employee must be allowed a meal period of at least 30 minutes, and an employer may not

require an employee to work for more than five consecutive hours without a meal period. Wash. Admin.

Code (WAC) 296-126-092(1) & (2). If the employee is

allowed to leave the premises or work site, the meal

period is an “off-duty” break and the employer is not

required to pay the employee’s time during the break.

However, if the employer requires the employee to remain “on duty” on the premises or work site during

the break, the employee must be paid for the meal period: “Meal periods shall be on the employer’s time

4

when the employee is required by the employer to remain on duty on the premises or at a prescribed work

site in the interest of the employer.” WAC 296-126092(1). An individual employee may consent on a dayto-day basis to forgo a meal period, but may not enter

into a binding contractual waiver of the right to meal

periods: An employee may revoke any waiver of the

right to a meal period at any time. See Pet. App. 53a.

In 2011, the Washington Court of Appeals held in

Pellino v. Brink’s Inc., 267 P.3d 383, that an employer

violates the right to a paid, on-duty meal period if the

employer requires the employee both to remain on the

work site in the employer’s interest and to perform

work duties during that time. See id. at 393–98. Pellino relied on the text of the regulation and administrative policies promulgated by the Department of Labor and Industries, and also on prior appellate decisions establishing that while an employer may require

employees to remain “on call” during paid, on-duty

meal breaks, it may not require them to engage in

work duties during that time. See Frese v. Snohomish

County, 120 P.3d 89 (Wash. Ct. App. 2005); White v.

Salvation Army, 75 P.3d 990 (Wash. Ct. App. 2003);

see also Wingert v. Yellow Freight Sys., Inc., 50 P.3d

256 (Wash. 2002) (employer may not require work

during rest breaks required under same regulation).

In Pellino, the court applied this principle to hold that

a class of armored-car drivers and messengers had

been deprived of their right to a paid, on-duty meal

period because they were required to be constantly

guarding their vehicles during the supposed breaks:

“[T]he class members were always on active duty and

never received lawful breaks.” 267 P.3d at 394.

The respondents in this case are representatives of

a class of armored-car-company workers who filed a

5

class action against their employer, Garda, based on

the same type of violation as in Pellino: failure to provide a paid, on-duty meal period conforming to Washington law’s prohibition on requiring employees to engage in work duties during the required break. The

class also claimed denial of rights to 10-minute rest

breaks under Washington law. Although the case was

filed before the appellate decision in Pellino, the litigation was delayed for several years by Garda’s abortive attempt to require individual arbitration of the

claims after the trial court had certified the class.

That effort ended when the Washington Supreme

Court held the arbitration agreement on which Garda

relied unconscionable, Hill v. Garda CL Nw., Inc., 308

P.3d 635 (2013), and this Court denied certiorari, 573

U.S. 916 (2014). Meanwhile, however, Garda continued the challenged practice of requiring armored-car

crews to work while they were eating, thus depriving

them of their right to a paid, on-duty meal period as

defined by Washington law.

After the litigation resumed in the state trial court,

that court granted summary judgment to the class

based on undisputed facts demonstrating that they

were denied paid, on-duty meal periods and rest

breaks under Washington law. The court rejected, as

a matter of law, various defenses proffered by Garda,

including its arguments that the class’s claims were

preempted by § 301 of the LMRA and by the Federal

Aviation Administration Authorization Act (FAAAA).

After a trial on damages issues, the court awarded the

class $4,209,596.61 in backpay damages and

$1,668,235.62 in double damages as a statutory penalty for willful (that is, knowing and intentional) violations of both meal- and rest-period requirements, as

well as prejudgment interest and attorneys’ fees. The

6

double-damages penalty was limited to the time after

Pellino made clear that Garda’s actions violated

Washington law.

Garda appealed, and the Washington Court of Appeals affirmed in part and reversed in part. As relevant here, Garda argued that the LMRA preempted

the class’s meal-period claims in their entirety because the right to a meal break was subject to waiver

through collective bargaining, and thus, according to

Garda, determining whether it had been waived

would necessarily require examination of CBAs between Garda and its workers. The court pointed out

that claims based on negotiable state-law rights are

not preempted if those rights are independent of a

CBA, but ultimately rejected Garda’s preemption argument based on its conclusion that, as a matter of

Washington law, the right to a meal period could not

be bargained away. Pet. App. 48a–54a. Thus, the court

had no need to examine the CBAs to decide the workers’ claim that Garda had denied them their rights under Washington law. The court further held that the

trial court had properly certified the class and, under

Pellino, correctly granted summary judgment.

The court reversed the trial court in one respect

relevant here: It set aside the award of double damages as to the meal-period violations. Although it declined to examine the CBAs to determine whether

there was a real basis for the claim of waiver, the court

held that Garda had established a statutory defense

to double damages by identifying a “bona fide dispute”

over whether the class’s claim for paid meal-period

rights under Washington law had been waived in the

CBAs. Pet. App. 66a. The court did not reach other bases asserted by Garda for finding a bona fide dispute,

including its claim of such a dispute over FAAAA

7

preemption. In addition, the court reversed the award

of prejudgment interest as to the rest-break claims

based on its view that Washington law did not permit

recovery of both double damages and prejudgment interest for those claims.

Garda petitioned for review by the Washington Supreme Court, and the class representatives cross-petitioned. The court denied Garda’s petition, but granted

the class’s petition challenging the lower court’s rulings on double damages and prejudgment interest.

The court reversed the court of appeals on both

grounds. Only the ruling on double damages is relevant here.

As to double damages, the court held that Garda

had not raised a bona fide dispute over whether the

CBAs waived the workers’ right to a paid, on-duty

meal period, because it had conceded on appeal that it

never in fact disputed that point: “Instead, Garda argued that the Plaintiffs waived their right to off duty

meal periods and that they received their on duty meal

periods.” Pet. App. 12a. The court quoted Garda’s repeated statements in its briefs that what the CBAs

waived was only “the unpaid off-duty meal period contemplated by WAC 296-126-082.” Id. Indeed, the court

quoted Garda’s own concession that it had consistently argued only that the CBAs waived off-duty meal

periods:

Garda argued below, as it has consistently

throughout this litigation, that the Drivers intentionally and knowingly waived off-duty meal periods either in the agreements negotiated by the

Drivers Associations or by individually signing

the acknowledgments of the same. … Garda also

argued that there was no wage violation because

8

the Drivers were paid for such on-duty meal

breaks.

Id. (emphasis added by court).

Because the workers’ claim in this case was for

their on-duty meal-period rights and Garda had not

claimed waiver of those rights, “Garda’s assertion of a

bona fide dispute based on collective waiver was objectively unreasonable.” Pet. App. 13a. The court made

clear that it reached this conclusion “without focusing

on the specific language of the” CBAs. Id. The court

also noted that its disposition of the issue did not require it to consider whether meal-period rights could

be waived in a CBA, a point on which it reserved judgment. Pet. App. 13a n.6, 19a.

Having reached its decision on the basis of Garda’s

concessions in its briefs, the court briefly examined

the terms of the CBAs and found that they provided

“further support for our conclusion that there was no

bona fide dispute based on waiver,” Pet. App. 13a, because all of the CBAs specifically preserved rights to a

paid on-duty meal period.

The court further rejected Garda’s assertion that

the LMRA would foreclose any such consideration of

the CBAs to consider an issue about whether they arguably waived rights based on state law. Citing federal authority including Livadas v. Bradshaw, 512

U.S. 107, Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

(1985), Valles v. Ivy Hill Corp., 410 F.3d 1071 (9th Cir.

2005), and Cramer v. Consolidated Freightways, Inc.,

255 F.3d 683 (9th Cir. 2003), the court noted that the

LMRA does not foreclose the assertion of rights

grounded in state law independent of a CBA, and does

not prohibit examination of a CBA to consider an employer’s defense that a CBA waived state-law rights

9

asserted by an employee. Pet. App. 17a–18a. Indeed,

the court pointed out, federal-court case law mandates

that, when faced with such a claim that a CBA waives

asserted state statutory rights, a court must consider

whether the CBA “include[s] ‘clear and unmistakable

language’ waiving the covered employee’s state right.”

Pet. App. 19a (quoting Valles, 410 F.3d. at 1076 (citations omitted)).

Accordingly, the court concluded that Garda had

failed to demonstrate a bona fide dispute over waiver

both because it had failed to argue that the rights actually at issue had been waived and because a claim

of waiver would have been unreasonable given that

the CBAs did not waive those rights in clear and unmistakable language. Pet. App. 19a–20a. The court’s

reasoning also necessarily foreclosed any assertion

that there was a bona fide dispute over LMRA

preemption of the workers’ claims (one of the other defenses to double damages Garda had asserted in the

court of appeals). However, the court did not address

other arguments Garda had made in the lower court

in attempting to demonstrate an exception that would

foreclose double damages. Accordingly, the court “remanded to the Court of Appeals to address Garda’s remaining statutory defenses to double damages, including whether there was a bona fide dispute based

on FAAAA preemption and whether the Plaintiffs

knowingly submitted to Garda’s meal period violation.” Pet. App. 20a.

10

REASONS FOR DENYING THE WRIT

I.

This Court lacks jurisdiction because the

decision of the state supreme court is not

final.

Garda asserts that this Court has jurisdiction over

its petition under 28 U.S.C. § 1257(a), Pet. 1, but

makes no attempt to explain how the decision below

satisfies § 1257(a)’s express requirement of finality.

Section 1257(a)’s very first word limits this Court’s jurisdiction to “final” decisions of state supreme courts.

As this Court stressed in Johnson v. California, 541

U.S. 428, 431 (2004), “[c]ompliance with the provisions

of § 1257”—including the finality requirement—“is an

essential prerequisite to [this Court’s] deciding the

merits of a case brought here under that section.”

Thus, “[a] petition for certiorari must demonstrate to

this Court that it has jurisdiction to review the judgment,” id., and “[i]t behooves counsel” to show “that

the decision for which review is sought is indeed a

‘[f]inal judgmen[t]’ under § 1257.” Id. at 432. Garda’s

petition, however, neither acknowledges that the decision below did not finally dispose of the case, nor

makes any attempt to demonstrate that the case falls

within the “four exceptional categories of cases to be

regarded as ‘final’ on the federal issue despite the ordering of further proceedings in the lower state

courts.” Id. at 429–30.

To begin with, the judgment below was not final in

any ordinary sense: It remanded the case to the Washington Court of Appeals for consideration of additional

defenses to double damages raised by Garda (including an additional defense implicating federal preemption)—a fact that Garda’s statement of the case notably fails to mention. Such a disposition not only fails

11

to resolve the entire case, it does not even fully resolve

the issue of double damages that Garda seeks to litigate in this Court.

As this Court has explained, § 1257(a) generally

requires a decision that terminates litigation of the

merits:

This provision establishes a firm final judgment

rule. To be reviewable by this Court, a state court

judgment must be final “in two senses: it must be

subject to no further review or correction in any

other state tribunal; it must also be final as an

effective determination of the litigation and not

of merely interlocutory or intermediate steps

therein. It must be the final word of a final court.”

Market Street R. Co. v. Railroad Comm’n of Cal.,

324 U.S. 548, 551 (1945). As we have recognized,

the finality rule “is not one of those technicalities

to be easily scorned. It is an important factor in

the smooth working of our federal system.” Radio

Station WOW, Inc. v. Johnson, 326 U.S. 120, 124

(1945).

Jefferson, 522 U.S. at 81. Under that standard, the

Washington Supreme Court’s decision remanding for

further proceedings in the Washington Court of Appeals was not final because it “did not determine the

final outcome of the litigation.” Pierce County, Wash.

v. Guillen, 537 U.S. 129, 141 (2003).

Moreover, jurisdiction cannot be premised on the

theory that the decision below falls within the “limited

set of situations in which [this Court] ha[s] found finality as to the federal issue despite the ordering of

further proceedings in the lower state courts.” O’Dell

v. Espinoza, 456 U.S. 430 (1982) (per curiam). As the

Court explained in Florida v. Thomas, 532 U.S. at 777,

12

those limited situations comprise only cases falling

within “four categories,” id. at 777, identified in Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).

Here, as in Pierce County, the Washington Supreme

Court’s remand decision does not fall into any of the

four categories.

The first Cox category is inapplicable because the

decision is not “conclusive” of the outcome of the remand proceedings that will determine whether Garda

is liable for double damages. Pierce County, 537 U.S.

at 141 n.5. With respect to the second category, the

federal issue will not necessarily “survive and require

decision regardless of the outcome of future statecourt proceedings,” Thomas, 532 U.S. at 778 (quoting

Cox, 420 U.S. at 480), because an outcome favorable

to Garda on remand would “moot” the issues it raises

here, Pierce County, 537 U.S. at 141 n.5. The third category, which includes those rare cases (usually criminal proceedings) where there is some insurmountable

bar to “later review of the federal issue …, whatever

the ultimate outcome,” Thomas, 532 U.S. at 779 (quoting Cox, 420 U.S. at 481), likewise does not apply under these circumstances, Pierce County, 537 U.S. at

141 n.5.

Finally, this case does not fall within Cox’s fourth

category, encompassing cases in which review of the

issues presented may become unnecessary later (because the party seeking review may prevail on other

grounds), but “refusal immediately to review the

state-court decision might seriously erode federal policy.” Thomas, 532 U.S. at 780 (quoting Cox, 420 U.S.

at 482–83). No federal policy would be seriously

eroded by leaving in place the Washington Supreme

Court’s holding that Garda failed to preserve its CBAbased arguments while the Washington appellate

13

courts complete their consideration of Garda’s other

defenses to double damages—including another argument related to federal preemption. To hold otherwise

would suggest that any assertedly erroneous decision

involving a federal preemption claim—or, indeed, any

issue of federal law applicable in state court under the

Supremacy Clause—“erodes” federal policy enough to

call Cox into play. Such a view “would permit the

fourth exception to swallow the rule.” Johnson, 541

U.S. at 430 (quoting Flynt v. Ohio, 451 U.S. 619, 622

(1981) (per curiam)).

The inapplicability of the fourth Cox exception is

demonstrated by the contrast between this case and

Belknap, Inc. v. Hale, 463 U.S. 491 (1983), where the

Court found that a decision concerning preemption of

a state cause of action fell within the fourth Cox exception under the circumstances of the case. Id. at 497

n.5. In Belknap, the state court’s decision had “finally

disposed” of the petitioner’s preemption defenses, id.,

whereas here there has been a remand for consideration of another argument involving preemption. Moreover, in that case, the preemption argument, if accepted, would have precluded the state-court litigation altogether, id., while here it affects only a defense

to one remedy (double damages) on a claim whose underlying merits is not before the Court.

Most significantly, in Belknap, the preemption issue was whether a state-court action involved claims

about the substantive scope of the NLRA that were

within the exclusive jurisdiction of the National Labor

Relations Board. Thus, “to permit the proceedings to

go forward in the state court without resolving the

preemption issue would involve a serious risk of eroding the federal statutory policy of ‘“requiring the subject matter of respondents’ cause to be heard by the ...

14

Board, not by the state courts.”’” Id. (citations omitted). Here, that policy is not implicated: Garda does

not contend that this case involves any issue that

should properly be adjudicated by the NLRB, and it

does not contest that the state courts are the “proper

forum,” id., for respondents’ state-law action. Rather,

Garda asserts that federal preemption principles prevent imposition of the double-damages aspect of the

remedy. Under such circumstances, forgoing immediate review of the state court’s holding that Garda did

not properly preserve its argument, and allowing completion of the state-court appellate proceedings concerning double damages, poses no serious risk of eroding NLRB authority or any other aspect of federal labor policy.

II. The state supreme court’s decision rests

principally on a state-law basis: Garda’s

failure to preserve the essential premise of

the arguments it now seeks to present.

Review here is unwarranted for the additional reason that the decision below, although touching on

Garda’s LMRA and NLRA preemption arguments,

rested principally on a state-law determination that

Garda failed to preserve those arguments because it

forfeited any claim that the CBAs purported to waive

employees’ rights under Washington law to a paid onduty meal period meeting Washington’s statutory requirements. Specifically, the court pointed out that

Garda had consistently argued only that the CBAs

“waived off-duty meal periods”; and far from asserting

that the agreements waived employees’ right to paid

on-duty meal periods, Garda argued (unsuccessfully)

that the employees had received such breaks. Pet.

App. 12a. Because “there was no argument that the

Plaintiffs waived ‘on duty’ (as opposed to ‘off duty’)

15

meal periods in their CBAs,” id. at 13a, the court held

that Garda had not properly asserted any claim of a

bona fide dispute based on the CBAs—a conclusion

that did not rest in any way on construction of the

“specific language” of the CBAs, id., and therefore did

not implicate Garda’s assertions that preemption bars

the state courts from construing the CBAs.

The court’s holding that Garda completely failed to

present the argument that was the essential premise

of its LMRA and NLRA preemption claims will remain

intact, and will suffice to sustain the court’s decision

to reject Garda’s CBA-based defenses to double damages, regardless of any decision by this Court on the

substance of Garda’s preemption arguments. This

Court should therefore decline to grant certiorari to

consider those arguments. Cf. Int’l Longshoremen’s

Ass’n v. Davis, 476 U.S. 380, 387 (1986) (“[W]e have no

authority to review state determinations of purely

state law. Nor do we review federal issues that can

have no effect on the state court’s judgment.”).

Garda tries to evade the point by asserting that the

Washington Supreme Court’s determination that

Garda failed to preserve any argument that the CBAs

waived the right claimed by the employees “was bound

up with the substantive LMRA preemption that warrants review here.” Pet. 25. Garda bases this assertion

on the argument that “[t]he 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.” Pet. 25.

Garda’s argument is nonsensical. The Washington

Supreme Court’s holding that Garda failed to preserve

16

or present the argument that is the necessary premise

of its claims was not based on an interpretation of the

CBAs; it was based on the Court’s reading of the plain

words in Garda’s briefs. Even if the LMRA preempted

the court from interpreting the CBAs, it surely did not

preempt the court from reading and interpreting

Garda’s briefs.

Moreover, although the court’s understanding of

Garda’s references to off-duty and on-duty breaks undoubtedly reflected the meaning of those terms under

Washington law, Garda does not argue (and could not

credibly argue) that the LMRA preempts the “interpretation of Washington meal-period regulations,”

Pet. 25, adopted in Pellino, under which the statutory

right to an on-duty meal period means a meal period

during which the employee remains on the worksite,

and on call, but does not perform any work duties.

That the Washington Supreme Court understood the

claims in Garda’s briefs about what the CBAs assertedly waived (off-duty breaks) and did not waive (onduty breaks) in light of this established meaning of the

terms under Washington law does not make its holding “derivative of the recurring preemption questions

presented here.” Pet. 25. Those preemption questions

have no bearing on the propriety of either the Pellino

construction of “on-duty meal period” under Washington law or the Washington Supreme Court’s understanding that Garda’s briefs used that terminology in

the same way. The Washington court’s reading of the

concessions in Garda’s briefs does not “implicat[e] an

underlying question of federal law” and thus provides

nothing for this Court to review. Davis, 476 U.S. at

388.

Garda’s complaint that the Washington Supreme

Court read its briefs incorrectly does not remotely

17

merit review. What a party’s state-court briefs meant

by the use of a particular phrase is a “fact-bound issue

of little importance” to anyone other than the parties

to the case. Massachusetts v. Sheppard, 468 U.S. 981,

988 n.5 (1984). Furthermore, Garda’s suggestion that

the Washington Supreme Court misunderstood what

it said and imposed an unexpected meaning on the

words it used is thoroughly unconvincing given the

history of this case.

Specifically, Garda suggests that its lawyers below

somehow “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. 26. But the

appeal in this case was briefed long after the Washington Court of Appeals affirmed that construction in

Pellino, and the central issue in this case was whether

Garda had denied its employees the right to a paid,

on-duty meal period within the meaning of Washington law as construed in Pellino—not whether Garda

had denied them the right to an unpaid, off-duty meal

period. Given that background, Garda’s repeated

statements in its briefs that the CBAs “intentionally

and knowingly waived off-duty meal periods” and

“agreed to waive the unpaid off-duty meal period requirement,” Pet. App. 12a, and its failure similarly to

assert that the CBA’s waived the requirements applicable to paid, on-duty meal periods, cannot be explained away by asserting that Garda’s counsel did

not expect the Washington courts to view this case as

being about the denial of on-duty meal periods.

Garda’s current counsel may wish that its attorneys in the state courts had made a different argument using different words, but in the context of this

case, the meaning of what Garda did and did not say

18

was unmistakable. Because the outcome below was

determined by the court’s wholly justified finding that

Garda failed to argue that the CBAs purported to

waive the right claimed here, and not by the construction of the CBAs that Garda claims raises preemption

concerns, there is no need to go further: The petition

should be denied.

III. Garda’s LMRA preemption argument is

meritless and presents no decisional conflict requiring review by this Court.

Garda contends that the LMRA preemption issue

it seeks to present—whether § 301 of the LMRA

preempts a court from examining a CBA to determine

whether a defendant has a bona fide claim that the

CBA waives the state statutory right that is the basis

of a plaintiff’s claim—involves a decisional conflict

that requires resolution by this Court. But Garda

identifies no decision of this Court or any federal or

state appellate tribunal holding that a court may not

examine a CBA to address a defendant’s arguments

that the CBA waives a statutory right that is the basis

of a claim: None of the “conflicting” decisions it cites

addresses that issue.

Instead of identifying a conflict, Garda offers a 17page merits argument for extending this Court’s holdings to the circumstances of this case. See Pet. 13–29.

Absent a true decisional conflict, such a claim of error

in the application of this Court’s precedents rarely

presents the “compelling” circumstances necessary to

justify this Court’s exercise of its discretionary jurisdiction. S. Ct. R. 10. This Court “is not, and never has

been, primarily concerned with the correction of errors

in lower court decisions.” Address of Chief Justice

Vinson before the Am. Bar Ass’n, Sept. 7, 1949 (quoted

19

in Stephen M. Shapiro, et al., Supreme Court Practice

Ch. 4.1, at 236 (10th ed. 2013)).

The claim of error in this case is, in any event,

wholly groundless, in large part because Garda’s argument on the point almost completely ignores this

Court’s most pertinent decision, Livadas. Livadas

holds emphatically that actions, like this one, that are

based on state employment-law requirements that exist independently of a CBA are not preempted by § 301

of the LMRA. See 512 U.S. at 123–25.1 Livadas further

makes clear that in cases, like this one, that involve

claims based on independent requirements of state

law, Ҥ 301 does not disable state courts from interpreting the terms of collective-bargaining agreements

in resolving non-preempted claims.” Id. at 123 n.17.2

––––––––––––––––––––––––

1 Contrary to Garda’s assertion, nothing on the face of a claim

for damages under Washington law for the deprivation of mealperiod rights, or for double damages, places a CBA in issue. Establishing the willfulness required for a double-damages claim

requires a showing of knowing and intentional conduct. Schilling

v. Radio Holdings, Inc., 961 P.2d 371, 375 (Wash. 1998). The

plaintiff need not show the absence of a bona fide dispute to prove

willfulness; rather, the existence of a bona fide dispute is an affirmative defense on which the defendant bears the burden of

proof. Wash. State Nurses Ass’n v. Sacred Heart Med. Ctr., 287

P.3d 516, 521 (Wash. 2012).

2 See also Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399, 413 n.12 (1988) (“[A]s a general proposition, a state-law

claim may depend for its resolution upon both the interpretation

of a collective-bargaining agreement and a separate state-law

analysis that does not turn on the agreement. In such a case, federal law would govern the interpretation of the agreement, but

the separate state-law analysis would not be thereby preempted.”). Here, as discussed below, to the extent that the Washington Supreme Court discussed the interpretation of the CBAs,

(Footnote continued)

20

Livadas thus squarely contradicts Garda’s argument

that the need for any such interpretation in resolving

a claim results in preemption.

Moreover, Livadas specifically addresses the possibility that a defendant might contend that a CBA

waives a state-law right that is the basis of an independent, and thus otherwise non-preempted, claim asserted by a plaintiff. See id. at 125. In such circumstances, Livadas states, the state-law claim is not

preempted merely because of the interposition of a

waiver-based defense that requires interpretation of

the CBA. Rather, the court must determine whether

the waiver is “clear and unmistakable,” and, if so,

“consider whether it could be given effect.” Id. If, as

Livadas indicates, a court entertaining a state-law

claim may interpret a CBA to determine whether it

waives the state-law rights at issue, it necessarily follows that a court in such a case may take the less intrusive step of looking to the CBA to determine

whether it even arguably waives those rights in adjudicating a good-faith defense afforded the defendant

under state law.

In light of Livadas’s discussion of the issue, it is not

surprising that those federal courts that have considered the question have held that a state-law claim

based on employees’ statutory rights is not preempted

merely because a court must look at a CBA to determine whether those rights have been waived. See Valles, 410 F.3d at 1076; Cramer, 255 F.3d at 692. As the

court stated in Cramer:

––––––––––––––––––––––––

it properly applied federal-law principles of construction in considering whether they arguably waived employees’ state-law

rights.

21

Where a party defends a state cause of action on

the ground that the plaintiff's union has bargained away the state law right at issue, the CBA

must include “clear and unmistakable” language

waiving the covered employees’ state right “for a

court even to consider whether it could be given

effect.” Livadas, 512 U.S. at 125 (citing Lingle,

486 U.S. at 409–10 n.9). Thus, a court may look

to the CBA to determine whether it contains a

clear and unmistakable waiver of state law rights

without triggering § 301 preemption.

255 F.3d at 692. Cramer further states unequivocally

that “‘look[ing] to’ the CBA merely to discern that

none of its terms is reasonably in dispute does not require preemption.” Id.

Garda points to no appellate decisions, before or after Livadas, that disagree with Cramer and Valles by

holding that the LMRA preempts an inquiry into

whether a CBA arguably waives a state statutory entitlement that is the basis of an action brought by

workers. The decisions on which Garda rests its claim

that the Washington Supreme Court erred address

very different types of claims.

For example, this Court’s decision in AllisChalmers holds that a claim of bad-faith breach of a

CBA, although pleaded as a state-law tort, falls within

the scope of § 301 of the LMRA because the duty it

seeks to enforce “ultimately depends upon the terms

of the agreement between the parties.” 471 U.S. at

216. Thus, the claim is subject to what the Court has

labeled “complete preemption” (that is, it is deemed to

arise under federal law and is actionable only under

the terms of § 301, see El Paso Natural Gas Co. v.

Neztsosie, 526 U.S. 473, 484 n.6 (1999)). Notably, even

22

Garda does not contend that the claims here, which

seek to enforce obligations arising solely under state

statutes independent of any CBA, fall into that category. See Pet. 27.

Allis-Chalmers, unlike Livadas, does not expressly

discuss whether claims that arise exclusively under

state law must be deemed preempted if a defendant

claims that a CBA waived, or even arguably waived,

protected rights under state law. Importantly, however, Allis-Chalmers does recognize that the LMRA

does not “delegate to unions and unionized employers

the power to exempt themselves from whatever state

labor standards they disfavor[],” or “grant the parties

to a collective-bargaining agreement the ability to contract for what is illegal under state law.” 471 U.S. at

212. Thus, “it would be inconsistent with congressional intent … to preempt state rules that proscribe

conduct, or establish rights and obligations, independent of a labor contract.” Id. Garda’s position, however,

would have just that consequence: All a defendant

charged with violating such rules would have to do

would be to assert that a CBA waived them, and a

court would be disabled from considering whether the

CBA in fact did so, and, if so, whether the waiver was

valid.

Garda’s reliance on National Metalcrafters v.

McNeil, 784 F.2d 817 (7th Cir. 1986), is equally unavailing. National Metalcrafters held that a state right

of action to enforce a CBA (specifically, to enforce its

terms regarding payment of wages) was preempted

because “[t]he only basis of the state-law claim in this

case is that the company broke its contract to grant

vacation pay of a certain amount.” Id. at 824. The case

did not concern obligations based on state law; indeed,

23

it emphasized that there was “[n]o state law” that required the payments at issue. Id. Accordingly, it said

nothing about whether or under what circumstances

a remedy for a violation of a state law could be

preempted based on the defendant’s claim that a CBA

waived the state-law rights.

Garda’s citation of Foy v. Giant Food Inc., 298 F.3d

284, 288 (4th Cir. 2002), and Douglas v. American Information Technologies Corp., 877 F.2d 565, 573 (7th

Cir. 1989), likewise fails to support any claim of decisional conflict. Garda’s own description of those cases

as holding “that section 301 of the LMRA preempts

state-law torts turning on questions of ‘reasonableness’ that are bound up with CBA terms,” Pet. 22, itself reveals how far afield they are. In both cases, the

claims turned on whether the defendant’s conduct was

“wrongful,” which under the circumstances of those

cases could only have been established if that conduct

violated the CBAs. Foy, 298 F.3d at 288; Douglas, 877

F.2d at 571–72. Again, neither case addressed issues

of asserted CBA waiver of actionable state statutory

rights.

Garda’s attempt to find support in two Ninth Circuit decisions predating Livadas, Miller v. AT&T Network Systems, 850 F.2d 543 (9th Cir. 1988), and Truex

v. Garrett Freightlines, Inc., 784 F.2d 1347, 1350 (9th

Cir. 1985), is especially weak. Not only do those cases

address different circumstances altogether, but they

can hardly establish a conflict over the specific issue

here—whether a court can examine a CBA to assess

arguments concerning possible waiver of the state-law

entitlements that are the basis of the action—given

the Ninth Circuit’s explicit post-Livadas holdings in

Cramer and Valles that a court entertaining a statelaw claim may examine a CBA for that purpose.

24

As an afterthought, Garda cites a handful of federal appellate decisions that it claims evidence a split

over whether defenses to state-law claims may be considered in determining whether the claims are

preempted by the LMRA. Pet. 29. Regardless of

whether the holdings of those cases are reconcilable

with each other, any disagreement among them is not

implicated here. At most, some of the cases suggest

that, under some circumstances, a defense may show

that a plaintiff’s claim rests on a CBA. But none suggests that such circumstances are present here. None

addresses issues arising from claims that a CBA

waives a state-law statutory entitlement, and none

contradicts the recognition in Livadas, Cramer, and

Valles that, faced with such an argument, a court adjudicating a state-law claim may consider whether the

CBA clearly and unmistakably waives the rights at issue.

Garda’s inability to find support for its position in

the case law is unsurprising, because the consequences of its position are extreme. Taken to its logical

conclusion, Garda’s position would imply that claims

seeking to enforce negotiable statutory rights could

never be brought by workers subject to a CBA. By

Garda’s logic, such a claim would necessarily, on its

“face,” Pet. 27, implicate a CBA, because it would depend on the absence of a waiver in the CBA. Under

Garda’s view, “the preemptive force of § 301” would be

“so strong that preemption must occur simply because

the state right in question ‘is a properly negotiable

subject for purposes of collective bargaining’”—a result that “would expand the scope of § 301 preemption

far beyond the limits established in Lingle and Livadas, both of which caution against such a sweeping interpretation.” Cramer, 255 F.3d at 692–93. States

25

would have only two choices: make their statutory

rights nonnegotiable, or surrender their ability to enforce those rights with respect to unionized workers—

even when applicable CBAs did not in fact waive

them.

In the absence of any decision holding that LMRA

preemption extends so far, there is no reason for this

Court to give plenary consideration to such an inflated

view of LMRA preemption. Even absent the procedural barriers to review here, Garda’s LMRA preemption argument falls well short of justifying exercise of

this Court’s certiorari jurisdiction.

IV. Garda’s NLRA preemption argument is unfounded because the clear-statement requirement for waivers of statutory rights

in collective bargaining agreements comes

from federal law, not state law.

Garda’s claim that the Washington Supreme Court

applied a state-law clear-statement rule to determine

whether a CBA waives employees’ statutory rights,

and that such a rule is preempted by the NLRA, does

not merit review because its premise is incorrect. The

state court did not apply a state-law rule of construction. As the court stated unambiguously, its observation that “a CBA cannot waive the employees’ right to

the protection of even a negotiable state law right unless it does so in ‘clear and unmistakable language’”

relied on federal appellate authority that in turn was

based “solely on controlling United States Supreme

Court law.” Pet. App. 19a.

Specifically, the court quoted the Ninth Circuit’s

opinion in Valles, 410 F.3d at 1076, which in turn was

based on this Court’s recognition in Livadas that, as a

matter of federal common law governing CBAs under

26

§ 301 of the LMRA, any waiver of workers’ rights under state labor laws “would … have to be clear and unmistakable.” 512 U.S. at 125. Livadas itself invoked

previous decisions stating that this Court—not state

law—would require a clear and unmistakable statement to infer that the parties to a CBA intended a

waiver of individual workers’ statutory rights. See id.

(citing Lingle, 486 U.S. at 409–10 n.9 (1988); Metro.

Edison Co. v. NLRB, 460 U.S. 693, 708 (1983)). Later

decisions of this Court have continued to enforce the

same requirement, even as to rights that are not “substantive.” See 14 Penn Plaza LLC v. Pyett, 556 U.S.

247, 258–59 (2009); Wright v. Universal Maritime

Serv. Corp., 525 U.S. 70, 79–80 (1998).

Garda asserts that, in adopting this federal standard, the Washington Supreme Court “misconstrued

federal precedent.” Pet. 35. But even if true, that assertion could not salvage Garda’s second question presented, which is expressly premised on the erroneous

proposition that the Washington court announced a

“state-law rule,” Pet. i, and which raises only a question of preemption that is by its terms inapplicable to

the federal-law standard cited by the court.

Moreover, Garda’s claim that the Washington

court (and the Ninth Circuit in Valles) misconstrued

the principle derived from Livadas and this Court’s

other decisions is meritless. Garda contends that

Livadas said only that if a state labor standard were

“nonnegotiable,” then it would take a “clear and unambiguous” CBA to override it. Pet. 34. That interpretation is absurd: If the state labor standard were nonnegotiable, then a CBA would not override it regardless

of the CBA’s clarity, as Livadas recognized. 512 U.S.

at 123.

27

Garda’s misreading of Livadas is only possible because of its insertion of the phrase “making state

rights nonnegotiable” into the sentence it quotes from

Livadas. Pet. 34 (citing Livadas, 512 U.S. at 125).

Read fairly and without the insertion of an extraneous

reference to nonnegotiable rights, the critical sentence

in Livadas means that CBA language would have to

be clear and unmistakable “for a court even to consider whether it could be given effect,” 512 U.S. at

125—that is, to consider whether the right it purported to extinguish was a negotiable one that could

be overridden by contract. Garda’s citation of Wright,

Pet. 34–35, only underscores that its position is incorrect. In that case, the Court applied the “clear and unmistakable” standard to waiver of a right that was

clearly negotiable: the right to a particular forum for

asserting a claim. Indeed, Wright stated unambiguously that that procedural right could be waived by

contract, 525 U.S. at 80, unlike the underlying substantive right to pursue statutory discrimination

claims, which cannot be prospectively waived regardless of the clarity of contractual language purporting

to do so, see Pyett, 556 U.S. at 258–59.

If Garda’s illogical reading of Livadas were correct,

presumably some appellate court would have adopted

it in the quarter-century since the case was decided.

Tellingly, Garda does not purport to cite any decision

holding that the clear-and-unmistakable standard for

waivers of statutory rights in CBAs applies only to

nonnegotiable rights. The best Garda can do is assert

that a solitary state intermediate appellate court has

“expressed uncertainty on this same point.” Pet. 35

(citing Ehret v. WinCo Foods, LLC, 236 Cal. Rptr. 3d

572, 575 (Cal. Ct. App. 2018)). But Ehret expressed lit-

28

tle uncertainty: It questioned only “whether a collective bargaining agreement can ever waive a nonnegotiable right” and suggested that “only a negotiable

right can be waived, and the clear and unmistakable

standard applies to such a waiver.” Id. It went on to

“assume that … the clear and unmistakable standard

applies to any waiver in a collective bargaining agreement of any statutory right.” Id. In other words,

Garda’s best authority for the existence of “uncertainty” took a view diametrically opposed to Garda’s,

and fully consistent with Valles and the decision below.

More to the point, no federal appellate court or

state supreme court has disagreed with or criticized

Valles’s holding that the clear-and-unmistakable

standard applies “where … under state law waiver of

state rights may be permissible.” 410 F.3d at 1076. In

the absence of any appellate authority supporting

Garda’s idiosyncratic view, there would be no need for

this Court to address the issue, even if Garda’s petition had asked the Court to address the proper federal

standard for CBA waiver of statutory rights rather

than presenting only an irrelevant question about

preemption of state law.

Garda’s reliance on the California Supreme Court’s

decision in California Grocers Ass’n v. City of Los Angeles, 254 P.3d 1019 (Cal. 2011), does nothing to salvage its claim. California Grocers held that an ordinance requiring grocery stores to retain staff for 90

days after a change in ownership was not preempted

by the NLRA. The court found that nothing in the

NLRA indicated congressional intent to dictate that

such matters be unregulated under state law, that the

ordinance did not impermissibly regulate labor organizations or collective bargaining, and that the neutral

29

terms of the ordinance neither favored nor disfavored

unionized workers and employers. See id. at 1030–37.

The decision neither addresses the standard of clarity

that a CBA must meet to waive statutory rights, nor

suggests that adoption of a clear-and-unmistakable

standard based on federal decisional law is inconsistent with the NLRA.

Finally, Garda’s claim that the state court applied

a more stringent standard to the claimed waiver in the

CBAs than it would have applied to a waiver in an individual employment agreement fails on the facts. Although Washington law allows an individual employee to waive required meal periods, such a waiver

is revocable at any time. Pet. App. 53a. Thus, an individual employment agreement cannot contain a contractually binding waiver of meal-period rights—the

employee must always be free to claim his or her right

to a meal period. Moreover, any waiver by an individual must be either express or demonstrated by “unequivocal acts or conduct evidencing an intent to

waive.” Pellino, 267 P.3d at 399. Garda is therefore

flatly wrong that Washington would permit the rights

at issue to “be negotiated away individually” more

readily than in a CBA. Pet. 35. Rather, the clear-andunmistakable standard helps ensure parity between

the statutory rights of unionized and nonunionized

workers.3

––––––––––––––––––––––––

Holding that the rights cannot be collectively bargained

away, as the court of appeals did, is the only way to ensure full

parity by guaranteeing that an individual worker always has the

right to claim a meal break regardless of any prior waiver.

3

30

V. The Court should reject Garda’s suggestion

that it grant certiorari to construe the collective bargaining agreements.

Lastly, Garda’s petition argues that the Court

should grant certiorari to determine whether the

CBAs in fact waive workers’ rights to paid, on-duty

meal periods meeting the requirements of Washington

law. That request has nothing to do with the issues of

federal law that the petition identifies as the questions presented, see Pet. i, and the Court should disregard it for that reason alone.

Even if the petition had sought to present the question of contract construction, such an issue would not

merit review. As the Court stated in AT&T Technologies, Inc. v. Communications Workers of America, 475

U.S. 643, 651 (1986), “it is usually not our function in

the first instance to construe collective-bargaining

contracts.” Thus, in AT&T, the Court, having held

that the lower courts should have applied a clear-andunmistakable standard in determining whether a

CBA waived the right to a judicial determination of

issues of arbitrability, left it to the lower courts to construe the CBA under that standard. Likewise, here,

the Court should not take on the task of reviewing contract language in the absence of a properly presented

question of federal law that merits review.

Garda nonetheless insists that the Court should

review the construction of the CBAs because “[o]ther

jurisdictions correctly applying the federal law of CBA

interpretation have held similar language sufficient to

establish waiver.” Pet. 36. Again, Garda cites only the

intermediate appellate court decision in Ehret, which

found different language sufficient to clearly and unmistakably waive different statutory rights under

31

California law. Specifically, Ehret concluded that the

contracts at issue included language about meal periods that was “irreconcilable” with the otherwise applicable requirements of California law. 236 Cal. Rptr.

3d at 573. That conclusion may or may not have been

correct on the facts of Ehret, but it has nothing to do

with whether the CBAs here waived the rights available under Washington law. Ehret certainly does not

present the type or degree of decisional conflict that

calls for resolution by this Court.

Moreover, Garda’s insistence that its CBAs must

be construed so that its obligations to its workers are

the same in every state, Pet. 19–20, reflects a fundamental failure to understand that any state-to-state

differences do not reflect that the same CBA terms

mean different things in different states, but rather

that background obligations of state law differ from

state to state. Garda’s CBAs likely would not waive a

right to paid, on-duty meal periods free from work obligations in any state—but not all states confer such a

right. The LMRA and NLRA do not guarantee employers that worker protections will not vary from state to

state. See Lingle, 486 U.S. at 409.

Finally, Garda’s request that the Court construe

its CBAs assumes that the rights at issue are subject

to collective bargaining and, potentially, waiver in a

CBA. But the Washington Supreme Court reserved

that question, Pet. App. 19a, and it is doubtful that, if

forced to address it, the court would resolve it in favor

of Garda. See Pet. App. 51a–54a (intermediate appellate court’s opinion explaining its view that the right

is nonnegotiable). A holding on remand that the right

is nonnegotiable would render a decision by this Court

construing the CBAs in Garda’s favor—or ruling in

Garda’s favor on its preemption claims, which likewise

32

assume that the right can be waived in a CBA—a

waste. Even if the issues raised by Garda had some

arguable merit, this Court should address them only

in a case where there is a substantial basis for believing that doing so would make a difference to the ultimate outcome.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

DANIEL F. JOHNSON

BRESKIN JOHNSON &

TOWNSEND, PLLC

1000 Second Avenue

Suite 3670

Seattle, WA 98104

(206) 652-8660

ADAM J. BERGER

SCHROETER GOLDMARK

& BENDER

810 Third Avenue

Suite 500

Seattle, WA 98104

(206) 622-8000

SCOTT L. NELSON

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

Attorneys for Respondents

April 24, 2019