Opposition Brief — Overnite Transportation Co. v. Tianti

| Sucreame Court, Us

b FILED

a: JUL 25 1992

No. ae

ofick OF TAR CLERK |

In The

Supreme Court of the United States

October Term, 1991

7

OVERNITE TRANSPORTATION CO.,

Petitioner,

BETTY L. TIANTI, COMMISSIONER

OF LABOR OF THE STATE OF CONNECTICUT,

Respondent.

— S

Petition For A Writ Of Certiorari

To The Second Circuit Court Of Appeals

+

BRIEF OF THE RESPONDENT

IN OPPOSITION

+

RICHARD BLUMENTHAI

Attorney General of the

State of Connecticut

Patricia M. STRONG

Assistant Attorney General

(Counsel of Record)

P.O. Box 120

Hartford, CT 06141-0120

(203) 566-7014

ity

TABLE OF CONTENTS

Page

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I. THE DECISION OF THE SECOND CIRCUIT

COURT OF APPEALS DOES NOT CONFLICT

WITH DECISIONS OF THIS COURT IN LEVIN-

SON V. SPECTOR MOTOR SERVICE, 330 U.S.

649 (1947); SOUTHLAND GASOLINE CO. V.

BAYLEY, 319 U.S. 44 (1943); AND CITY OF BUR-

BANK V. LOCKHEED AIR TERMINAL, INC., 411

TENS 5* SRT Sala ae 3

Il. THE MOTOR CARRIER ACT DOES NOT PRE-

EMPT CONNECTICUT’S WAGE AND HOUR

ACT, AS APPLIED TO OVERNITE’S LOADING

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TABLE OF AUTHORITIES

Page

Cases

Agsalud v. Pony Express Courier Corp. of America,

ot & Ff, Ba 8, rere err 4

California v. Zook, 336 U.S. 725 (1949) ..........655. 6, 7

Central Delivery Service v. Burch, 486 F.2d 1399 (4th

Cir. 1973), mem. aff'g 355 F. Supp. 954 (D. Md.)..... 4

City of Burbank v. Lockheed Air Terminal, Inc., 411

Goa MY UE 6 oc ccccsaveenescguQeenueeeunees 2, 3, 6

Dept. of Labor & Industries of the State of Washington

v. Common Carriers, Inc., 111 Wash.2d 586, 762

2 D £. Ferrer ee eae 4

Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1

, Perr re oh eo eee G

Levinson v. Spector Motor Service, 330 U.S. 649

Aer err ner ee rhe 2 a oe

Massachusetts v. Morash, 490 U.S. 107 (1989).......... -)

Pacific Merchant Shipping Ass’n v. Aubry, 918 F.2d

Se ee UES bo vn son vccosaccueeeenanetesien 4

Pettis Moving Co. v. Roberts, 784 F.2d 439 (2d Cir.

ESI OEE e rT errs ret ae ope 4

Pierce v. Cook & Co., 437 F.2d 1119 (10th Cir. 1970)..... 8

Plouffe v. Farm and Ranch Equipment Co., 174 Mont.

Dame Se Cae BOO COOEFD vccudvcwennexesacacscensts 4

Ray v. Atlantic Richfield, 435 U.S. 151 (1978).......... 8

Southland Gasoline Co. v. Bayley, 319 U.S. 44 (1943)

Jo ao hikes wets biblawaie-6 0-0 Sans Oa a keel el ee 2, 3, 5, 6

Williams v. W.M.A. Transit Co., 472 F.2d 1258 (D.C.

Perrone eer re ree ree 4, 10

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TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

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FEDERAL STATUTES

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49 U.S.C. § 302 (b) [now 49 U.S.C. § 10521 (b)]...... 7

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FEDERAL REGULATIONS

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STATE STATUTES

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STATEMENT OF THE CASE

Overnite Transportation Company (hereinafter

“Overnite”) has brought a petition for a writ of certiorari

asking this Court to review the judgment and opinion of

the United States Court of Appeals for the Second Circuit

which held that the dock workers employed at Overnite’s

Wallingford, Connecticut trucking terminal were not

exempt from Connecticut’s overtime statutes and further

that the State of Connecticut was not preempted by fed-

eral statutes from requiring Overnite to pay overtime to

those employees. See Appendix attached to Overnite’s

Petition (hereinafter “App.”) pp. la-6a. This judgment

and opinion affirmed in all respects the decision of the

United States District Court for the District of Connecti-

cut granting summary judgment in favor of Betty L.

Tianti,!. former Commissioner of Labor of the State of

Connecticut (hereinafter “Commissioner”) in the two

consolidated actions. App., pp. 7a-16a.

The sole claim upon which Overnite seeks this

Court’s review is the preemption question. Petition, pp.

1-2. Specifically, Overnite urges this Court to find that

Connecticut General Statutes § 31-76c is violative of the

United States Constitution’s Commerce and Supremacy

Clauses, Article 1, Section 8 and Article VI, as it applies to

these dock workers. Section 31-76c provides:

No employer, except as otherwise provided

herein, shall employ any of his employees for a

work week longer than forty hours, unless such

1 On February 1, 1991, Ronald F. Petronella became Com-

missioner of Labor.

employee receives remuneration for his employ-

ment in excess of the hours above specified at a

rate not less than one and one-half times the

regular rate at which he is employed.

App., p. 43a.

The District Court awarded to the Commissioner the

sum of $27,322.72 in unpaid overtime wages and

$3,414.34 in prejudgment interest, for a total amount of

$30,738.36. App., p. 8a. The District Court held that the

employees involved, who loaded trucks on the premises

of Overnite’s Wallingford, Connecticut terminal, were not

exempt from the overtime requirements under § 31-76i (a)

of the Connecticut General Statutes. App., p. 14a. The

District Court further held that the State of Connecticut

was not preempted by federal law, either in the Fair

Labor Standards Act (hereinafter “FLSA”) or the Motor

Carrier Act (hereinafter “MCA”) from requiring overtime

wages for those workers. App., p. 16a.

Overnite claims that § 31-76c is preempted by the

MCA, 49 U.S.C. §§ 3101 through 3104, and the FLSA, 29

U.S.C. §§ 201 through 219. No particular language in any

statute is claimed to preempt state overtime wage regula-

tion. Rather, Overnite claims that three decisions of this

Court mandate a finding of preemption in this case: City

of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624

(1973); Levinson v. Spector Motor Service, 330 U.S. 649

(1947); and Southland Gasoline Co. v. Bayley, 319 U.S. 44

(1943).

The employees in this case are exempt from the over-

time requirements of the FLSA pursuant to 29 U.S.C.

§ 213 (b)(1) and its corresponding regulation found in 29

C.F.R. § 782.5 in that they are “loaders.” See Stipulation,

paragraph 8, App., p. 18a.

The Respondent Commissioner submits, and the Sec-

ond Circuit and District Court so found, that the MCA

does not prohibit and the FLSA specifically permits states

to require overtime pay for federally exempted workers.

Title 29 U.S.C. § 218 (a) provides in relevant part:

No provision of this chapter or of any order

thereunder shall excuse noncompliance with

any Federal or State or municipal ordinance

establishing a minimum wage higher than the

minimum wage established under this chapter

or a maximum workweek lower than the maxi-

mum workweek established under this chap-

ee

Respondent's Appendix, p. Al.

4

ARGUMENT

I. DECISION OF THE SECOND CIRCUIT COURT OF

APPEALS DOES NOT CONFLICT WITH DECI-

SIONS OF THIS COURT IN LEVINSON V. SPEC-

TOR MOTOR SERVICE, 330 U.S. 649 (1947);

SOUTHLAND GASOLINE CO. V. BAYLEY, 319 U.S.

44 (1943); AND CITY OF BURBANK V. LOCKHEED

AIR TERMINAL, INC., 411 U.S. 624 (1973).

Four Circuit Courts of Appeals have considered the

issue raised here and have concluded that federal law

does not preempt state and local governments from

requiring overtime pay for workers exempt under federal

law.? Agsalud v. Pony Express Courier Corp. of America, 833

F.2d 809 (9th Cir. 1987); Pettis Moving Co. v. Roberts, 784

F.2d 439 (2d Cir. 1986); Central Delivery Service v. Burch,

486 F.2d 1399 (4th Cir. 1973), mem. aff’g 355 F. Supp. 954

(D. Md.); and Williams v. W.M.A. Transit Co., 472 F.2d 1258

(D.C. Cir. 1972). :

This uniformity by the Circuits is not surprising

because the purported conflict with Supreme Court pre-

cedents, which the petitioner seeks to establish, is illu-

sory. The claimed conflict with the three decisions of this

Court cannot be sustained. None of the cases relied on

concerned state regulation of overtime wages. Two cases

concerned the FLSA exemption pursuant to § 213 (b)(1).

The third case did not involve wages under the FLSA or

the MCA.

2 The decision in this case was the second time the issue

was before the Second Circuit. The Ninth Circuit also reached a

similar result under another exemption in Pacific Merchant

Shipping Ass'n v. Aubry, 918 F.2d 1409 (9th Cir. 1990), holding

that California could require overtime pay for seamen exempt

under § 213 (b)(6) of the FLSA.

In addition, it is noted that two state Supreme Courts have

reached the same conclusion on the preemption issue. Plouffe v.

Farm and Ranch Equipment Co., 174 Mont. 313, 570 P.2d 1106

(1977), held that the FLSA exemption in 29 U.S.C. § 213

(b)(10)(A) did not preempt Montana from requiring overtime

pay for a farm equipment mechanic, In Dept. of Labor & Indus-

tries of the State of Washington v. Common Carriers, Inc., 111

Wash.2d 586, 762 P.2d 348 (1988), the Washington Supreme

Court sitting en banc held that the state was not preempted by

the MCA from requiring overtime pay for a truck mechanic

employed by an interstate carrier.

In Southland Gasoline Co. v. Bayley, 319 U.S. 44 (1943),

the Court resolved a conflict of authority between the

Fourth and Eighth Circuit Courts of Appeais on the issue

of whether the exemption in § 213 (b)(1) of the FLSA

applied to employees of private carriers of property over

whom the Interstate Commerce Commission (“ICC”) had

authority, even though it had not actually been exercised.

The Court concluded that the existence of the authority

was sufficient. Id. at 47-48. The Court stated with regard

to the interplay between the MCA and the FLSA: “The

amendment [§ 213 (b)(1)] was adopted to free operators

of motor vehicles from the regulation by two agencies of

the hours of drivers.” Id. at 48-49. Nothing in the case

dealt with preemption of any state regulation of over-

time.

In Levinson v. Spector Motor Service, 330 U.S. 649

(1947), this Court affirmed the decision of the Supreme

Court of Illinois and held that the ICC had the power to

regulate employees who did not perform exempt duties

during all their working hours. In that case, the workers

spent part of their time as loaders and part of their time

as “checkers” or “foremen.” The Court held that the

worker's activities:

affected the safety of operation, although it does

not appear what fraction of his time was spent

in activities affecting safety of operation. As a

consequence, he comes within the power of the

Commission to establish qualifications and max-

imum hours of service with respect to him and,

by the express terms of § 13 (b)(1) of the Fair

Labor Standards Act, he is excluded, automat-

ically, from the benefits of § 7 of that Act.

Id. at 681. Any worker subject to the MCA is, therefore,

exempt from the FLSA. Nowhere did the Court mention

state regulation of overtime or preemption.

In City of Burbank v. Lockheed Air Terminal, Inc., 411

U.S. 624 (1973), the Court considered whether a city

ordinance prohibiting jet aircraft from taking off between

11:00 p.m. and 7:00 a.m. from the local airport violated

the Federal Aviation Act and the Noise Control Act. In

affirming the District Court’s and the Ninth Circuit's

findings of preemption, the Supreme Court held that: “It

is the pervasive nature of the scheme of federal regula-

tion of aircraft noise that leads us to conclude that there

is pre-emption.” Id. at 633. The Court also stated:

Our prior cases on pre-emption are not precise

guidelines in the present controversy, for each

case turns on the peculiarities and special fea-

tures of the federal regulatory scheme in ques-

tion.

Id. at 638.

It is clear from a review of the cases cited by Overnite

that the Second Circuit’s decision does not, as claimed by

petitioner, conflict with the holdings of Southland Gas-

oline, Levinson and City of Burbank. Moreover, these cases

are devoid of any dicta to support petitioner’s position.

il. THE MOTOR CARRIER ACT DOES NOT PRE-

EMPT CONNECTICUT’S WAGE AND HOUR ACT,

AS APPLIED TO OVERNITE’S LOADING DOCK

WORKERS.

The sole case decided by this Court concerning pre-

emption of state law by the MCA is California v. Zook, 336

U.S. 725 (1949). In that case, this Court decided that the

State of California could make it unlawful to sell or

arrange for interstate transportation of persons over pub-

lic highways by a carrier without a permit from the ICC.

The Court found nothing in the language of the MCA or

its legislative history to directly answer the preemption

question, except “an expression of deference to State

action on intrastate commerce.” Jd. at 733 fn. 9. In the

absence of a conflict between the state and federal stat-

utes, there was no reason to “justify the thwarting of state

regulation.” Id. at 733. The Court also stated that such

questions “can be resolved only by careful scrutiny of the

activity regulated.” Id. at 734. The interpretation of 49

U.S.C. § 302 (b) [now 49 U.S.C. § 10521 (b)] in the foot-

note supra, p. 733 indicates that the states are not limited

to regulating intrastate transportation and the payment of

taxes as claimed in Overnite’s statutory interpretation

analysis of § 10521 (b) at pages 11 and 25 of its petition.

3 Petitioner Overnite did not raise this statute, 49 U.S.C.

§ 10521 (b), as a source of preemptive language or as a limit to

state authority over motor carrier workers until this petition

was filed. See Stipulation with Issues of Law, App., pp. 17a-19a,

as well as the decisions of the Second Circuit, App., pp. la-6a,

and the District Court, App., pp. 14a-16a. Overnite’s preemp-

tion claim throughout this litigation has been based on the

premise, as stipulated by the parties, that the FLSA § 213 (b)(1)

preempts state regulation of overtime in § 31-76c of the Con-

necticut General Statutes. The issue that Overnite raises for the

first time in its petition seeking this Court’s review, i.e., that 49

U.S.C. § 10521 (b) expresses a Congressional intent to limit

states to taxation and intrastate transportation, was never

articulated to the lower courts. In the light of the precedent of

this Court in California v. Zook, 336 U.S. 725 (1949), however,

the argument has no validity.

None of the cases cited by Overnite pertain to an analysis

of the MCA. Moreover, there is simply no conflict

between the Connecticut statute and the MCA.

The MCA provides for regulation by the Secretary of

Transportation of the maximum hours and qualifications

of drivers, drivers’ helpers, loaders and mechanics

employed by interstate motor carriers. The Respondent

Commissioner does not regulate the qualifications or set

maximum hours of the dock workers in this case. The

Connecticut statute (§ 31-76c) at issue, simply requires

that all employees be paid time and one-half for all hours

worked over 40 in a week.

As stated by the District Court in this case:

A state’s traditional police powers, such as are

involved in Connecticut’s regulation of overtime

wages, are not preempted by federal law unless

preemption “was the clear and manifest pur-

pose of Congress.” Ray v. Atlantic Richfield, 435

U.S. 151, 157 (1978) (quoting Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947)).

App., p. 14a.4

In Pierce v. Cook & “-., 437 F.2d 1119, 1126 (10th Cir.

1970), the Tenth Circuit Court of Appeals held that state

law was not preempted by the MCA and stated that:

4 Contrary to any implications that can be drawn from

statements at pages 25-26 of Overnite’s petition, Ray v. Atlantic

Richfield, 435 U.S. 151 (1978), did not involve the MCA. Rather,

the issue was whether the State of Washington’s Tanker Law

was preempted by the federal Ports and Waterways Safety Act

of 1972.

There is no language in the Motor Carrier Act

indicating any intent of Congress to supersede

state tort law with respect to negligence or

wrongful death liability of a shipper. Hence,

state law governs with respect to Cook’s liability

in the instant case.

Id. Overnite has cited no case which held that § 10521 (b)

specifically, or the MCA generally, sets limits on the

authority of states to regulate commerce.

This Court has recognized and recently affirmed the

view that: “The States have traditionally regulated the

payment of wages, including vacation pay.” Massachusetts

v. Morash, 490 U.S. 107, 119 (1989).5 In rejecting the pre-

emption claim raised in that case, this Court stated:

Absent any indication that Congress intended

such far-reaching consequences, we are reluc-

tant to so significantly interfere with “the sepa-

rate spheres of governmental authority

presented in our federalist system.”

Id. See also the case quoted therein: Fort Halifax Packing

Co., Inc. v. Coyne, 482 U.S. 1, 19 (1987).

Overnite has failed to show any conflict between its

compliance with both the MCA and the Connecticut over-

time statute. As admitted by Overnite at pages 24-25 of

its petition, there is no express language in the MCA

5 In Massachusetts v. Morash, 490 U.S. 107 (1989), the defen-

dant employer was charged with a criminal violation of the

Massachusetts wage payment statute. The employer claimed

that its policy of paying unused vacation time to discharged

employees was an “employee welfare benefit plan” under the

Employee Retirement Income Security Act of 1974 (“ERISA”),

29 U.S.C. § 1002 (1), and, therefore, that state criminal action to

enforce the policy was preempted.

10

preempting state laws regulating overtime. There is, how-

ever, as noted by the courts which have considered the

issue, a federal statute, § 218 (a) of FLSA, which specifi-

cally allows the states to set more stringent overtime

standards than the federal. While Overnite claims that

§ 218 (a) does not apply to FLSA exempt workers, it has

no legislative history or case law to cite in support of that

theory.

The fallacy of Overnite’s argument is illustrated in

Williams v. W.M.A. Transit Company, 472 F.2d 1258 (D.C.

Cir. 1972). In that case, the District of Columbia Circuit

Court of Appeals interpreted the District of Columbia

Minimum Wage Act of 1966, an Act of Congress for the

local governance of the District of Columbia. The Act did

not contain an exemption for bus drivers, who are exempt

as drivers under § 213 (b)(1) of the FLSA. The Court

concluded that Congress’ omission of the exemption in

the District of Columbia Act taken together with § 218 (a)

of the FLSA permitting more liberal state and local bene-

fits to employees demonstrated a Congressional! intent

that the drivers be covered by the District overtime

requirement. Id. at 1263.

The language in Levinson v. Spector Motor Service, 330

U.S. 649, 661-662 (1947), quoted in Overnite’s petition at

pp. 19-20, is fully supportive of the lower courts’ rulings

here:

There is no necessary inconsistency between

enforcing rigid maximum hours of service for

safety purposes and at the same time, within

those limitations, requiring compliance with the

increased rates of pay for overtime work done

in excess of the limits set in § 7 of the Fair Labor

11

Standards Act. Such overlapping, however, has

not been authorized by Congress [footnote omit-

ted] and it remains for us to give full effect to

the safety program to which Congress has

attached primary importance, even to the corre-

sponding exclusion by Congress of certain

employees from the benefits of the compulsory

overtime pay provisions of the Fair Labor Stan-

dards Act.

The “overlapping” referred to is that of the “jurisdiction

of the Administrator of the Wage and Hour Division,

United States Department of Labor, with that of the Inter-

state Commerce Commission as to maximum hours of

service.” Id. at 661.

Congress has failed to expressly preempt state over-

time regulation in the MCA. Congress has expressly

allowed the District of Columbia and the states and

municipalities to have more stringent overtime standards

in § 218 (a) of the FLSA. The cases cited by Overnite

involve matters other than wages and statutes other than

the MCA. All of the cases which have considered the

specific issue involved in this petition have been decided

in favor of the Respondent Commissioner’s position, as

did the District Court and the Second Circuit Court of

Appeals in this case. As was the case with the District of

Columbia, the State of Connecticut similarly is not pro-

hibited, therefore, from requiring Overnite to pay its

loaders overtime.

12

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari to review the decision of the United States

Court of Appeals for the Second Circuit in this matter

should be denied.

Respectfully submitted,

Respondent

Commissioner of Labor of

the State of Connecticut

RICHARD BLUMENTHAL

Attorney General

Patricia M. STRONG

Assistant Attorney General

(Counsel of Record)

P. O. Box 120

55 Elm Street

Hartford, CT 06141-0120

Telephone: (203) 566-7014

No. 91-21

+

In The

Supreme Court of the United States

October Term, 1991

¢

OVERNITE TRANSPORTATION CO.,

Petitioner,

BETTY L. TIANTI, COMMISSIONER

OF LABOR OF THE STATE OF CONNECTICUT,

Respondent.

Petition For A Writ Of Certiorari

To The Second Circuit Court Of Appeals

¢

RESPONDENT’S APPENDIX

Ai

APPENDIX TABLE OF CONTENTS

29 U.S.C. § 218 (a)

Al

FAIR LABOR STANDARDS ACT

29 U.S.C.

§ 218. Relation to other laws.

(a) No provision of this chapter or of any order

thereunder shall excuse noncompliance with any Federal

or State law or municipal ordinance establishing a mini-

mum wage higher than the minimum wage established

under this chapter or a maximum workweek lower than

the maximum workweek established under this chapter,

and no provision of this chapter relating to the employ-

ment of child labor shall justify noncompliance with any

Federal or State law or municipal ordinance establishing

a higher standard than the standard established under

this chapter. No provision of this chapter shall justify any

employer in reducing a wage paid by him which is in

excess of the applicable minimum wage under this chap-

ter, or justify any employer in increasing hours of

employment maintained by him which are shorter than

the maximum hours applicable under this chapter.