# Opposition Brief — Overnite Transportation Co. v. Tianti

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 856

## Text

| 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
I yo he cnn dedvedeceseeuéesvene és 6

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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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MID og vy cece ccecevcsrcssvceuves 7,9
FEDERAL REGULATIONS
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STATE STATUTES
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EEE SS) 2

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2316%3A2. Public record. Not legal advice.