# Jurisdictional Statement — California Manufacturers Ass'n v. Industrial Welfare Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0567%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1980 - **Citation:** 449 U.S. 1029 ## Text ————EE Supreme Court, Ui. $. 80-3552 FILED a js OCT 7 1980 IN THE Supreme Court of the United!Statés0 2®. cer October Term, 1980. CALIFORNIA MANUFACTURERS ASSOCIATION, ef al., Appellants, VS. INDUSTRIAL WELFARE COMMISSION, ef al., Appellees. ON APPEAL FROM THE SUPREME COURT OF CALIFORNIA. JURISDICTIONAL STATEMENT. GIBSON, DUNN & CRUTCHER, WILLARD Z. CARR, JR., KENNETH E. RISTAU, JR., DENNIS A. GLADWELL, 660 Newport Center Drive, #1600, Newport Beach, Calif. 92660, (714) 759-3800, Attorneys for California Manufacturers Association. BROBECK, PHLEGER & HARRISON, JEAN C. GASKILL, JAMES L. MEEDER, Spear Street Tower, One Market Plaza, San Francisco, Calif. 94105, (415) 442-0900, Attorneys for United Air Lines, Inc., American Airlines, Inc. and Sierra Ski Areas Association. (Names and addresses of Attorneys continued on inside front cover) Parker & Son. Inc.. Law Printers, Los Angeles. Phone 724-6622 MITCHELL, SILBERBERG & KNUPP, RICHARD M. MOSK, 1800 Century Park East, Los Angeles, Calif. 90067, (213) 553-5000, Attorneys for Theatre Properties, Inc., and Th. .ire Association of California. KAHN & SOARES, JAN L. KAHN, Old Phone Building, 217 North Douty Street, Hanford, Calif. 93230, (209) 584-3337, RICHARD W. SMITH, 1240 Bayshore Highway, Burlingame, Calif. 94010, (415) 579-3538, Attorneys for Hitchcock Transportation Co., Corcoran Motor Transport, Inc., and California Trucking Association. Attorneys for Appellants Questions Presented. Two questions are before this Court. (1) Are the California Industrial Welfare Commission’s Orders 1-80, 3-80, 4-80, 8-80, 9-80 and 10-80 preempted, in part or in whole, by the National Labor Relations Act, 29 U.S.C. section 151 et seg. and the Railway Labor Act, 45 U.S.C. section 151, et seq.? (2) Did the California Supreme Court deny procedural due process to appellants by denying them the right to an evidentiary hearing and the right to present and develop evidence on all issues, including the federal preemption issue? Parties to Appeal. Appellants are: The California Manufacturers Associa- tion; United Air Lines, Inc.; American Airlines, Inc.; Sierra Ski Area Association; California Trucking Association; Theatre Association of California; Theatre Properties, Inc.; Hitchcock Transportation Co. and Corcoran Motor Trans- port, Inc. Appellees are: The Industrial Welfare Commission and the Division of Labor Standards Enforcement of the State of California. TABLE OF CONTENTS Page ee sd s\ ca iscunbeasdvenen sus anevesovesnns i ES ae st cas cy Veh oper tas ide rack vevOendeless i SN Cre. once valinseeareisidsescdsconcsiahiganens I PU Sass vba rita cea vddcdensnckvcexereTreeitdssckanenssd | Constitutional Provisions and Regulations ............... I Statement of the Case ................. padavers ctAROEIIO SE Kee 2 The Questions Are Substantial ...........ccc....cccccceeees 7 A. Presumption by the National Labor Relations SE Sa iin si vncncntessbbshiecuckavdicakicskssabsdcteree) 7 B. Preemption by Railway Labor Act ............... | og EE dots snes cddadisinenutsuheiessakdsecaveues 13 LS NLL OT DA EE Ry: TE Te 16 INDEX TO APPENDICES Page APPENDIX A. Opinion of the Supreme Court of RING. d Sa vaul cov Unceuadhetorndnadcens tunis App. p. | APPENDIX B._ Notice of Appeal to the Supreme Court of the United States, Filed: Aug. 4, 1980 ............ 55 Notice of Appeal to The Supreme Court of the United en Ns PUES he OU es ci ccccesceconeaere 58 APPENDIX C. Amended Notice of Appeal to the Su- preme Court of the United States, Dated: September I aa Sas takin ed tidds Cok uchanerd ool (iach oavandiaheudes 59 APPENDIX D. Order 1-80. 11180. Order Governing Wages, Hours, and Working Conditions in the Man- I i cas Cocbaawuub shy pasnswnedwiniawycs 62 Order 3-80. 11075. Order Governing Wages, Hours, and Working Conditions in the Canning, Freezing, ONE PROSETVING INGUBTY .........0.00cccecccsesTeccccccees 79 Order 4-80. 11345. Order Governing Wages, Hours, and Working Conditions in Professional, Technical, Clerical, and Similar Occupations ...................... 96 Order No. 8-80. 11110. Order Governing Wages, Hours, and Working Conditions in the Industries Handling Products After Harvest ....................64. 115 Order 9-80. 11460. Order Governing Wages, Hours, and Working Conditions in the Transportation hs sao lindy bakbhureWivhsiniestaccchdabsexnscens 132 Order 10-80. 11040. Order Governing Wages, Hours, and Working Conditions in the Amusement and Rec- ee ew oweeers 150 APPENDIX E. Stipulation and Order, Filed: Jan. 16, iV Page APPENDIX F. Letter to All Counsel: Re: S.F. 24123 — Industrial Welfare Commission v. Superior Court, County of Kern. S.F. 24140 — Hitchcock Transpor- tation Company v. Industrial Welfare Commission, SN PE 20, COR vce caitiensvccacoiaausctintepessesks 170 APPENDIX G. (First Page of Appellants’ April 25, 1980 Brief) Supplemental Return of Real Parties in Interest Responding to the Court’s Inquiry on Labor Law Preemption and Replying to Petitioner’s Sup- PUMRSGREE THOTICIIONE oon. cocsisoscvsicecaciserebnmneens 172 APPENDIX H. Letter to the Honorable Mathew O. Tobriner, Acting Chief Justice, And All Justices of the California Supreme Court, Dated May 8, 1980 ee ee Vv TABLE OF AUTHORITIES CITED Cases Page City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 36 L.Ed.2d 547, 93 S.Ct. 1854 (1973) ......... California Hotel and Motel Association v. Industrial Welfare Commission, 25 Cal.3d 200 (1979) ......... California Manufacturers Association v. Industrial Wel- fare Commission, et al. (Orange County Superior RN Gs I OBS a oo ab ewaae bans California Manufacturers Association, et al. v. Industrial Welfare Commission, et al. (Civil No. C-80-2644 EES OE Mer pp reo Bem PP eee California v. Taylor, 353 U.S. 553 (1957) .............. California Trucking Ass’n et al. v. Industrial Welfare Commission et al. (Kings County Superior Court No. ME ies cddtasionk sch ceen lanes Recitals Ceatueck susastensocst Farmer v. Carpenters, et al., 430 U.S. 290, 51 L.Ed.2d Pe Ee es PEPE SD wcsavsccsovdereccstsicesaee 8, Finkel v. Superior Court, 71 Cal.App. 97 (1925) ...... Flournoy v. Wiener, 321 U.S. 253 (1944) .............. Goldberg v. Kelly, 397 U.S. 254, 25 L.Ed.2d 287, 90 ee I Ses tices nasiessbdetapubseniasessons 3, Henning v. IWC, 22 Wage Hour Cases 25 (1975) ..... fees V. FUOKES, SZ9-U.S. SHE CUGSD) ccsecevisecsciscseces Hines v. Davidowitz, 312 U.S. 52 (1941) ............... Hitchcock Transportation Co., et al. v. Industrial Wel- fare Commission, 27 Cal.3d 736 (1980) .............. Homemakers, Inc. v. IWC, 509 F.2d 20 (9th Cir. 1974), cert. denied, 423: U.S. 1063 (1976) .................... Joint Anti-Fascist Refugee Committee v. McGrath, 341 SS re ED ise nivel let cannsas kexesweubeowasieadenis 12 vi Page Lassen v. Alameda, 150 Cal.App.2d 44, 309 P.2d 520 ERED cava lie Dec saduassin Geis cewhe van diebeiig nite nics deunowis Linn v. Plant Guard Workers, 383 U.S. 53, 15 L.Ed.2d _ Baer ie oe eet es aaa Lodge 76, Machinists v. Wisconsin Employment Re- lations Comm'n et al., 427 U.S. 132, 49 L.Ed.2d FO FE ie RP LEOTOD cccessccdsscscisceeseans 8, 9, Machinists v. Gonzales, 356 U.S. 617, 2 L.Ed.2d 1018, ee ee, I, ree, es Nedmawiniewadal babe Malone v. White Motor Corp., 435 U.S. 497, 55 Be Fe Fo eh) . eer rere S Mathews v. Eldridge, 424 U.S. 319, 47 L.Ed.2d 18, ee, PEE Waki keneueesiecncdevavenwedtevatenses Motor Coach Employees v. Lockridge, 403 U.S. 274 ME cecetnrsvecnivist ersrircrististeisasstessigaeeiiss 14, New York Tel. Co. et al. v. New York State Dept. of Labor, etc. et al., 440 U.S. 519, 59 L.Ed.2d 553, we Lo ae eo) ee ee ero rrren 7, 8, Ong v. Tovey, 552 F.2d 305 (9th Cir. 1977) ........... Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922) ... Railway Employees’ Dept. v. Hanson, 351 U.S. 225 Ge see eters ine Neos eka pes SAK NTs Sp Niko bn cd Soaae San Diego Bidg. Trades Council v. Garmon, 359 U.S. 236, 3 L.Ed.2d 775, 79 S.Ct. 773 (1959) . 7, 8, 9, San Joaquin Nisei Farmers League, et al. v. Industrial Welfare Commission (Stanislaus County Superior CA Ft UE hh dis cubs chcudcueecs sallcusensctysaccastee Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 56 L5G. 20 209, 9B S.Ct. V74S CIG7B) .... cer cacscccveess Shields v. Beto, 370 F.2d 1003 (Sth Cir. 1967) ........ Sotto v. Wainwright, 601 F.2d 184 (Sth Cir. 1979) ... 13 10 10 15 13 13 Vil Page Teamsters v. Oliver, 358 U.S. 283, 3 L.Ed.2d 312, 79 Ms IT CIID, cai nus canicddedolccdsdocadaddmebedennt ; a Teamsters Union v. Morton, 377 U.S. 252 (1964) .... 15 Thompson v. Madison County Board of Education, 476 Fe PO Gs OED ier batidcs thi sdie Sestecusndecaie SEED “aid icevuaasahs $2.20 —162— (C) Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee’s work shift. Deductions shall not be made for meals not received nor for lodging not used. (D) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the em- ployer may not charge rent in excess of the values listed herein. 11. Meal Periods. (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than thirty (30) minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of employer and employee. Unless the employee is relieved of all duty during a thirty (30) minute meal period, the meal period shall be considered an ‘‘on duty’’ meal period and counted as time worked. An ‘‘on duty’’ meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. (B) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated. 12. Rest Periods. Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. —163— However, a rest period need not be authorized for em- ployees whose total daily work time is less than three and one-half (32) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. 13. Change Rooms and Resting Facilities. (A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees’ outer cloth- ing during working hours, and when required, for their work clothing during nonworking hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean and sanitary. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats. (A) All working employees shall be provided with suit- able seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work re- quires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area, and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. i. 15. Temperature. (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing rea- sonable comfort. Where the nature of the employment re- quires a temperature of less than 60° F., a heated room shall be provided to which employees may retire for warmth and such room shall be maintained at not less than 68°. (C) A temperature of not less than 68° shall be main- tained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. 16. Elevators. Adequate elevator, escalator or similar service consistent with industry-wide standards for the na- ture of the process and the work performed shall be provided when employees are employed four floors or more, above or below ground level. 17. Exemptions. If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 11, Meal Periods; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not ma- terially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such ex- emptions shall be in writing to be effective and may be _ revoked after reasonable notice is given in writing. Appli- cation for exemption shall be made by the employer or by the employee and/or the employee’s representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports. Every employer shall furnish to the Commission and to the Division at all reasonable times any and all reports or information which may be required to carry out the purpose of this Order, such reports and information to be verified if and when so requested. 19. Inspection. The Commission and duly authorized representatives of the Division shall be allowed free access to any office or establishment covered by this Order to investigate and gather data regarding wages, hours, working conditions, and employment practices, and shall be permitted to inspect and make excerpts from any and all relevant records and to question all employees for such purposes. The investigations and data gathering shall be conducted in a reasonable manner calculated to provide the necessary surveillance of employment practices and the enforcement of the Commission’: orders. 20. Penalties. Failure, refusal, or neglect to comply with any of the provisions of this Order is a violation of the Labor Code of the State of California and is punishable by fine or imprisonment or both. See excerpts from Labor Code, Section 1199. 21. Separability. If the application of any provision of this Order, or any section, subsection, subdivision, sen- tence, clause, phrase, word, or portion of this Order should be held invalid or unconstitutional or unauthorized or pro- — 166— hibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. ~ 22. Posting of Order. Every employer shall keep a copy of this Order posted in an area frequented by employees where it may be easily read during the work day. Where the location of work or other conditions make this imprac- tical, every employer shall keep a copy of this Order and make it available to every employee upon request. NOTE: Authority cited: Division 2, Part 4, Chapter |, Labor Code and Sections 1171-1204, Labor Code. Issuing agency: Industrial Welfare Commission. HISTORY: 1. Amendment of subsections 3(b) and 4(a) (2) filed 2-28-68; designated effective 5-1-68 (Register 68, No. 9). For prior history, see Register 67, No. 45. 2. Amendment filed 10-7-76; designated effective 10-18-76 (Register 76, No. 41). Industrial Welfare Com- mission Order No. 10-76. 3. Amendment filed 12-31-79; designated effective 1-1-80 (Register 80, No. 1). Industrial Welfare Commission Order No. 10-80. a APPENDIX E. Stipulation and Order. Superior Court of the State of California, for the County of Orange. California Manufacturers Association, a Cali- fornia corporation, Petitioner v. Industrial Welfare Com- mission of the State of California; James L. Quillin, Chief of Division of Labor Standards Enforcement, Respondents. Case No. 32-58-66. FILED: Jan. 16, 1980. The parties to the instant proceeding, the California Man- ufacturers Association, Petitioner, and the Industrial Wel- fare Commission of the State of California and James L. Quillin, Chief of Division of Labor Standards Enforcement, Respondents, through their respective attorneys, the under- signed hereby stipulate as follows: 1. The hearing presently scheduled for January 17, 1980 at 9:30 a.m. in Department 23 of the Orange County Su- perior Court shall be continued to February 22, 1980, at 9:30 a.m., in Department 23 of the Orange County Superior Court. 2. That pending a trial court hearing on the petition for writ of mandate and the complaint for injunctive and de- claratory relief, the Respondents are stayed from enforcing, giving effect to or taking any action to enforce or give effect to the following sections of the Industrial Welfare Com- mission Wages, Hours and Working Conditions Orders 1-80, 3-80, 4-80 and 8-80 as against the members of the California Manufacturers Association: Article 3(A) and (B). Provided, however, that this article is not stayed as to that provision which requires an employer to pay time and one-half the regular rate of hours in excess of 40 hours per week. —168— Article 5; Article 7; Article 8; Article 9 (A) and (B); Article 11 (A) and (B); Article 12; Article 13; Article 14; Article 15 and Article 16. 3. Provided, however, that any rights of employees which may have existed or been in effect on December 20, 1979, are not affected by this order and shall continue to control and be operative. This order is intended to, and shall be interpreted as, preserving the status quo as to those mat- ters herein stayed, as they existed prior to December 20, 1979. DATED: January 15, 1980. GIBSON, DUNN & CRUTCHER WILLARD Z. CARR, JR. KENNETH E. RISTAU, JR. DENNIS A. GLADWELL MARK WM. SHURTLEFF By /s/ DENNIS A. GLADWELL, Dennis A. Gladwell Attorneys for Petitioner OFFICE OF THE ATTORNEY GENERAL GEORGE **‘DUKE’’? DEUKMEJIAN JOSEPH M. O’HERON, Deputy Attorney General By /s/ JOSEPH M. O’HERON, Joseph M. O’Heron Attorneys for Respondents Deputy Attorney Generai —169— ORDER. It is so ordered. Dated: Jan 15 1980. Judge, Orange County Superior Court. —170— APPENDIX F. [Letterhead] April 21, 1980 All Counsel: Re: S.F. 24123 — Industrial Welfare Commission v. Superior Court, County of Kern. S.F. 24140 — Hitchcock Transportation Company v. Industrial Welfare Commission. Dear Counsel: Enclosed please find a copy of the order filed this date. The court has requested that I inform you of the following matters with regard to oral argument in the above entitled cases. On May 7, 1980 the court intends to afford the parties a maximum of two hours of oral argument in the above cases. The case of Industrial Welfare Commission v. Su- perior Court (S.F. 24123) will be called first. In the Industrial Welfare Commission v. Superior Court proceeding, the court believes that it would be helpful if the parties directed the major portion of their oral argument to the following legal issues: 1. Did the IWC fail to conduct an investigation prior to the selection of the wage boards pursuant to Labor Code Section 1778 and, if so, would such failure require the invalidation of all wage orders? 2. Do the Statements as to Basis of the 1980 wage orders comply with the requirements of Labor Code Section 1777? 3. Is the IWC precluded from acting on any matter upon which the California Occupational Safety and Health Standards Board has jurisdiction to act? ae | 4. Did the IWC fail to comply with the California Environmental Quality Act in adopting the 1980 wage orders? 5. Is the IWC precluded by federal or state labor relations statutes from regulating with respect to mat- ters that are subject to collective bargaining? In the Hitchcock/Theatre Properties matter, the court sug- gests that the parties limit their oral argument to the question of the appropriate disposition of the litigation in light of this court’s decision in California Hotel and Motel Association v. Industrial Welfare Commission (1979) 25 Cal.3d 200. In light of the numerous issues involved in the WC case, and the limited nature of the issue in Hitchcock, the court will permit the parties to agree among themselves as to the allocation of the two-hour time period between the WC and Hitchcock cases. Counsel shall inform the court as to the agreed-upon allocation on or before May 2, 1980. Petitioners’ reply to the return in Industrial Welfare Com- mission v. Superior Court (S.F. 24123) shall be served and filed on or before April 23, 1980. Very truly yours, /s/ J. L. KAVANAGH, J. L. Kavanagh, Chief Deputy JLK:ct Enclosure cc: Rec. Reg. L.A. Cal. on ae APPENDIX G. SUPPLEMENTAL RETURN OF REAL PARTIES IN IN- TEREST RESPONDING TO THE COURT’S INQUIRY ON LABOR LAW PREEMPTION AND REPLYING TO PETITIONER’S SUPPLEMENTAL REPLICATION. I. Introduction. In its letter of April 21, 1980, the Court asked five ques- tions which it wishes the parties to address in oral argu- ment.* The fifth question is: ‘*Is the IWC precluded by federal or state labor rela- tions statutes from regulating with respect to matters that are subject to collective bargaining?’ The answer is clearly ‘‘yes.’’ We are puzzled, however, by the fact that the Court has raised the question, because federal labor law preemption was not pleaded in any of the cases below and none of the parties has raised the issue of federal preemption in the present case. The major difficulty with addressing it at this point in these proceedings is that no factual record has been developed. To the extent that the Court wishes to rule upon these issues in the present case, it will be doing so in a vacuum. ** ‘The IWC has filed a written response. We hereby do likewise. “The Real Parties in Interest hereby object to the Court's taking up this issue on the ground that it deprives them of their right to due process, in that it denies them the right to a hearing and the orderly development and presentation of evidence. aon sen APPENDIX H. | Letterhead] May 8, 1980 HAND DELIVER The Honorable Mathew O. Tobriner Acting Chief Justice And All Justices of the California Supreme Court 4050 State Building 350 McAllister Street San Francisco, CA 94102 Re: Industrial Welfare Commission vs. Superior Court, No. S.F. 24123. Honorable Justices: The purpose of this letter is to reiterate a point which may not have been fully understood by the Court during oral argument on May 7, 1980. It is this: The real parties in interest intentionally refrained from presenting argument on the question of federal labor law preemption, which was one of the questions the Court had indicated in its letter of April 21, 1980, that it wanted addressed. The issue was neither pleaded nor raised by any of the parties in any of the trial court proceedings, nor was it raised by any of the parties before this Court. Accordingly, the issue was not properly before the Court and we respect- fully submit that the Court has no jurisdiction to hear or decide it. The Court will recall that the real parties in interest stated this objection in their supplemental brief responding to the Court’s question on federal preemption. On other aspects of the case, we point out again that because of the way the case came before the Court, it was necessary to file briefs virtually on the eve of oral argument. = It is possible that the Justices may not have had the oppor- tunity fully to consider all briefs before oral argument. We are particularly anxious that the Court should read and con- sider the arguments contained in the buff colored brief filed on May 2, 1980, by the real parties in interest, because we are confident that it contains the answers to the many knotty questions raised by the Justices during oral argument. Respectfully submitted, BROBECK, PHLEGER & HARRISON, By /s/ Jean C. Gaskill, Jean C. Gaskill On behalf of all real parties in interest. JCG:kmb cc: All Counsel Randall P. Borcherding, Esq. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0567%3A1. Public record. Not legal advice.