Opposition Brief — Tidewater Marine Service, Inc. v. Aubry

Nos. 91-142 and 91-349 | NOV 13 i991

Super

EI i

vourt,

—

DFFICE OF THE CLERK

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i.

In the Supreme Cou

OF THE ~

United States

OCTOBER TERM, 1991

TIDEWATER MARINE SERVICE, INC., efc., et al.,

and

PACIFIC MERCHANT SHIPPING ASSOCIATION, efc., et al.,

Petitioners,

VS.

LLoYD W. AuBRY, JR., STATE OF CALIFORNIA

LABOR COMMISSIONER, AND DIVISION OF LABOR

STANDARDS ENFORCEMENT, STATE OF CALIFORNIA

DEPARTMENT OF INDUSTRIAL RELATIONS,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

CONSOLIDATED BRIEF IN OPPOSITION

TO PETITIONS FOR WRIT OF CERTIORARI

H. THOMAS CADELL, JR., Chief Counsel

Counsel of Record

ROBERT VILLALOVOS

DIVISION OF LABOR STANDARDS

ENFORCEMENT

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

455 Golden Gate Avenue, Room 3166

San Francisco, California 94102

(415) 703-4150

Attorneys for Respondents

i

QUESTIONS PRESENTED

Respondents are the officials mandated by California law

to enforce all of the labor laws of the State of California the

enforcement of which is not specifically vested in any other

officer, board or commission. (California Labor Code §95)

Among other labor laws, Respondents enforce the Industrial

Welfare Commission Orders regulating the maximum work-

ing hours of, among others, California residents employed on

vessels either (1) stationed on the high seas surrounding oil

rigs off the California coast, or (2) engaged in "voyages"

between one port in California and the oil rigs, but which are

not engaged in foreign, intercoastal or coastwise voyages.

The questions for review are:

1. Does the express exemption of seamen from the maxi-

mum hour provisions of the Fair Labor Standards Act found

at Section 13(b)(6) have the effect of preempting the actions

of the Respondents in this regard?

2. Does the State of California’s enforcement of its law

regulating the maximum hours of the above-described work-

ers interfere with the need for uniformity in the application

of admiralty law?

3. Does the fact that the workers’ predominant worksite

is exclusively located on the high seas directly off the coast

of California preclude the State from regulating the maximum

hours of workers whose only contact is with the State of

California?

li

LIST OF PARTIES

The Petitioners in this Court (No. 91-142) are Tidewater

Marine Service, Inc., and Western Boat Operators, Inc. who

were intervenor plaintiffs-appellees in the trial and appellate

proceedings.

Additionally, Petitioners in this Court (No. 91-349) are

Pacific Merchant Shipping Association, Clean Seas, Ameri-

can Institute of Merchant Shipping, Offshore Marine Service

Association, and Western Oil & Gas Association who were

plaintiffs-appellees in the trial and appellate proceedings and

have filed a separate but related petition pursuant to Rule

19.4,

The Respondent in this Court to both petitions is Lloyd

W. Aubry, Jr., Labor Commissioner, Chief of the Division

of Labor Standards Enforcement, Department of Industrial

Relations, State of California, who was the defendant-

appellant in the trial and appellate proceedings below.

Respondent’s opposition herein is to both of the above-

referred petitions.

ill

TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT ......... 11

I

EXERCISE OF THE STATE’S POLICE POWER TO

REGULATE THE OVERTIME COMPENSA-

TION OF THE WORKERS INVOLVED IN

THIS CASE IS NOT PREEMPTED BY

EE 11

A. The Ninth Circuit’s Decision Expressly

Limits Its Application To Workers Who

Are California Residents Not Engaged In

Foreign, Intercoastal, Or Coastwise

Voyages Whose Predominate Worksite Is

In the Territorial Waters Or On The High

Seas Off The California Coast .......... 11

iV

TABLE OF CONTENTS

B. The Ninth Circuit’s Preemption Analysis

Does Not Conflict With Principles of

Federal Admiralty Jurisdiction .........

1. The Preemption Standard .........

2. The States Are Not Completely Pre-

cluded From Legislating On The

TG bo. cba wee OR oe ee 8

3. California’s Overtime Require-

ment Does Not In Any Way Con-

travene An Act Of Congress .......

4. The Exemption Of Certain Categories

Of Workers In The FLSA Does Not

Evidence An Intent By Congress That

The States Are Precluded From

I i eek ck nk ee we

5. The “General Principles” Of Admiralty

Law Cited By PMSA In Regard To

"Overtime" Deal With The “Type” Of

Work, Not The “Hours” Of Work ....

6. The Effect of Jensen And Its

Se rer a ee

4

Vv

TABLE OF CONTENTS

Page

C. Petitioner’s Proposed Construction Of The

Savings Clause Contained At Section 18(a)

Of The Fair Labor Standards Act As An

Unconstitutional Delegation Of Maritime

Powers To The States Is Flawed When

Considered In Light Of The Legislative

and Judicial History Of The Act ......... 24

1. The FLSA Neither "Delegates" Any

Legislative Authority To The States

Nor Precludes The States From Apply-

ing Its Overtime Requirements To Its

fas <b 8 nee eae eee 24

2. The Mobile Oil and Tallentire Cases

Do Not Require Preemption Of The

State Law Under the FLSA Savings

Cimeee TO FO Ok cc ees 27

ew Ss err re eee re er 28

Vi

TABLE OF AUTHORITIES

Cases

Page

Aguilar v. Association of Retarded Citizens,

(1991) ___—~Cail.App.3d_s,

EN ee eR ee Te eee 2

Askew vy. American Waterways Operators, Inc.,

411 U.S. 325, 339 (1973) ............. 15,22

Babbit v. United Farm Workers Nat’l Union,

442 U.S. 289 (1979) ..............05. 12,14

Icicle Seafoods, Inc. v. Worthington,

475 U.S. 709 (1986) ...............00.. 11

Just v. Chambers,

312 U.S. 383 (1941). .......2.......0.. 15,22

Knickerbocker Ice Co. v. Stewart,

253 U.S. 149 (1920). ................ 21,25

Kossick v. United Fruit Co.,

Ses U.S. Tah CTPG)) 0 ww wc ccc cee eee 23

Napier v. Atlantic Coast Line R. Co.,

272 U.S. 605 .1926)...............004. 17

Offshore Logistics, Inc. v. Tallentire,

477 U.S. 207 (1986) ............... 23,24,28

Oil, Chemical & Atomic Workers, International

Union, AFL-CIO v. Mobil Oil,

426 U.S. 407 (1976)............. 15,16,23,28

Vil

TABLE OF AUTHORITIES

Cases

Page

Parrish v. West Coast Hotel,

Cog ee rere er 1,26

Ray v. Atlantic Richfield Co.,

ke ee 15,17

Skyline Homes, Inc. v. Department of

Industrial Relations,

eo OR fe BO Fs rrr re 2

Scuthern Pacific v. Jensen, |

yk, a or eee 21

The Lakme,

es ee Pe SD | Ske ee 0 ee ee ee ee 20

Union Fish Co. v. Erickson,

yo ae ere ee 22,23

Washington v. W.C. Dawson,

Bee ee ee es + 6 bo ee eee ee 25

Wilburn Boat Co. v. Fireman’s Fund Ins. Co..,

fee 0) rer re ee oe 26

Vili

TABLE OF AUTHORITIES

Statutes

Page

California Labor Code

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I ig 1S SOE ee a a A a a ee 2

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Fair Labor Standards Act

Sec. 18(a); 29 U.S.C. §218(a)...... 1,18,24,28,29

Sec. 13(a)(8); 29 U.S.C. §213(a)(8) ........ 7,18

SOC. FRads OP Wels SERPUEED bcc cc ewes 7

Sec. 13(b)(6); 29 U.S.C. §213(0)(6) ....... 17,25

Sec. 13(6)(9); 29 U.S.C. §213(00)(9) ......... 18

Sec. 13(b)(10)(A); 29 U.S.C. §213(b)(10)(A) ....7

Sec. 13(6)(21); 29 U.S.C. §213(6)(21) ... 2... 18

Shipping Act

Ie Ee BS 16

52 Stat. 1067, §13(a)(3), c. 676 (1938) ........... 3

Fo oem. Fi, SP amG TO CIRS)) cw wc ec wees 3

Regulations

California Industrial Welfare Commission Orders

Title 8, Calif. Code of Reg., §§11000 et seq.

TGS ROI OA iat re rena = 1,6

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SNA TREE A OLNe ete meena Meee CoA l

ix

TABLE OF AUTHORITIES

Regulations

Page

Code of Federal Regulations

BP Gn es PE, ci cect enn en 22

Miscellaneous

Currie, Federalism and the Admiralty: "The Devil’s

Own Mess", S.Ct. Rev. 158 (1960) ....... 22,25

Joint Hearings before Senate Committee on

Education and Labor on S. 2475 and H.R.

7200, 75th Cong., Ist sess., pp. 545, 546, 547,

Es 9s eal hee ee REA O SS 3

Joint Hearings before Senate Committee on

Labor and House Committee on Labor on S.

2475 and H.R. 7200, 75th Cong., Ist sess.,

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STATEMENT OF THE CASE

I,

BACKGROUND

Since the landmark case of West Coast Hotel v. Parrish,

300 U.S. 379 (1937) there has been little question that the

police power of the individual states encompasses the

regulation of the wages, hours and working conditions of

workers under its jurisdiction. Congress recognized this

power when enacting the Fair Labor Standards Act and spe-

cifically provided that "No provision of this chapter or any

order thereunder shall excuse noncompliance with any

Federal or State law or municipal ordinance establishing a

minimum wage higher than the minimum wage established

under this chapter or a maximum workweek lower than the

maximum workweek established under this chapter..." 29

U.S.C. §218(a) The California Industrial Welfare Commis-

sion (hereinafter "[WC") has adopted maximum workweeks'

which are lower than those established by the Fair Labor

Standards Act. Any work performed in excess of eight hours

'There are sixteen separate Industrial Welfare Commission Orders. The

Orders are found at Title 8, California Code of Regulations, §§ 11000 et

seq. Twelve of the Orders regulate wages, hours and working conditions

in specific industries (i.e., manufacturing, public housekeeping,

transportation, etc.). Three [WC Orders cover occupations and there is

one general minimum wage order applicable to all California employees.

Of the “occupation orders” Order 14-80 covers agricultural occupations;

Order 15-86 regulates the private household occupations, and Order 4-80

(now superseded by Order 4-89) applies to “all persons employed in

professional, technical, clerical, mechanical, and _ similar

occupations. ..unless such occupation is performed in an industry covered

by an industry order of this Commission..." Simply put, Order 4 covers

all workers not specifically exempted from coverage who are not covered

by another order.

2

in any one workday or forty hours in any one workweek

must be compensated at appropriate premium levels’.

The Division of Labor Standards Enforcement (DLSE)

is the California agency mandated to interpret and enforce

the provisions of the Industrial Welfare Commission

Orders.’ Historically, the DLSE has enforced the applicable

provisions of the IWC Orders in the so-called maritime in-

dustries when the workers’ sole contact is with the State of

California. This same enforcement policy is utilized with

~respect to workers employed in the maritime industry when,

for example, the workers are engaged in transportation on

water within the jurisdiction of the State of California or

engaged in commercial or recreational fishing*. The IWC

Orders are also applied to vessels engaged in transportaticn

on water within the jurisdiction of the State of California’.

"Most of the Orders required time and one-half the regular rate for

hours in excess of eight and double the regular rate for hours in excess

of twelve.

"Labor Code §§ 1195, 1195.5, 1198.3, 1198.4. See also, Skyline

Homes, Inc. v. Department of Industrial Relations (1985) 165 Cal. App.3d

239; Aguilar v. Association of Retarded Citizens (1991) __ Cal. App.3d

___, 285 Cal.Rptr. 515.

‘In 1986 the California Legislature amended the Labor Code to provide

that henceforth workers employed on licensed fishing vessels would not

be subject to the provisions of the IWC Orders. (Calif. Labor Code

§1182.3) The stated intent of the Legislature was to “make California

law consistent with federal law with regard to minimum wages and

maximum hours in the commercial fishing industry." (Emphasis added)

‘IWC Order 9-80 (now superseded by Order 9-90) defines the "Trans-

portation Industry” as "...any industry, business, or establishment

operated for the purpose of conveying persons or property from one place

to another whether by rail, highway air, or water, and all operations and

services in connection therewith...” (Emphasis added)

3

Congress, in adopting the Fair Labor Standards Act

chose to exempt "seamen" from both the minimum wage and

overtime provisions®, and in 1961, amended the Act to

provide minimum wage protection to seamen; but Congress

refused to extend the protections of overtime to these

workers.’ As evidenced by the minutes of the Joint Congres-

sional Hearings, the reasons for these exemptions are mani-

fold and involve the unique nature of the transportation

industry in general as well as concerns in the maritime

industry.

Originally, representatives of the principal labor organi-

zations representing both seamen and other transportation

workers testified orally and in writing that the peculiar needs

of the transportation industry and the fact that the industry

was already under special governmental regulation made it

unwise to bring transportation workers within the scope of

the proposed legislation’. Based on this testimony Congress

exempted all seamen and certain other transportation workers

from the protections of the Fair Labor Standards Act. The

rationale for seeking the exemption put forward by the

National Maritime Union was that without that exemption the

"proposed Labor Standards Board" would have "jurisdiction

over those classes of workers who are engaged in transporta-

tion. While this may not have an unfavorable effect upon the

workers engaged in transportation by water, we feel that it

may conflict with the laws now in effect regarding the

*52 Stat. 1067 §13(a)(3), c. 676 (1938).

775 Stat. 71, §9 and §10 (1961)

‘Joint Hearings before Senate Committee on Education and Labor and

House Committee on Labor on S. 2475 and H.R. 7200, 75th Cong., Ist

sess., pp. 545, 546, 547, 549, 1216, 1217.

4

jurisdiction of the government machinery set up to handle

these problems. "?

As the Circuit Court has noted:

"The legislative history of the FLSA does show

that Congress considered the special circumstances

of maritime and other types of labor when it

exempted seamen and other employees from the

FLSA’s overtime and minimum wage provisions.

Federal Amicus argues, however, and we agree,

that in exempting seamen from coverage under the

1938 act’s overtime and minimum wage provisions,

Congress intended to prevent overlapping regulation

of wage and hour conditions of seamen by differing

federal agencies." (Emphasis added) (Appendix to

TIDEWATER’s Petition For Writ Of Certiorari

[hereinafter “Appendix"], at page A-17)'°

However, there is nothing in the legislative record of the

Fair Labor Standards Act which could lead to the conclusion

that Congress intended to deprive the states of the right to

*Joint Hearings before Senate Committee on Education and Labor and

House Committee on Labor on S. 2475 and H.R. 7200, 75th Cong., Ist

sess., pp. 544-549. Under the original proposal, all wage and hour claims

arising under the FLSA were to be handled by a new Labor Standards

Board. At the time Congress was considering the proposed legislation,

however, maritime employees’ wage and hour claims were handled by the

Maritime Commission under the Merchant Marine Act of 1936. It was

a concern that organized labor’s gains already achieved by the maritime

workers before the Maritime Commission could be jeopardized which led

labor leaders to seek the exemption.

For purposes of convenience and consistency, all future references to

the “Appendix” refers to the Appendix to TIDEWATER’S Petition for

Writ of Certiorari.

5

regulate the maximum workweek of seamen or any other

classification of workers.

Further, under the facts in this case, neither the District

Court nor the Ninth Circuit could find any conflict between

federal admiralty law or regulations and the California

Industrial Welfare Commission Orders. In addition, there is

no showing that the exercise by the State of California of its

inherent police power to regulate the wages of its workers

employed in the same circumstances as those of the workers

involved in this matter requires a delegation by Congress of

that body’s power to “alter, amend or revise the maritime

law by statutes of general application."

Il.

THE FACTS

This case originally arose as a result of complaints filed

with the office of the California State Labor Commissioner,

chief of the Division of Labor Standards Enforcement

("DLSE"), by workers'' employed on board the Vessels

Mr. Clean II and Mr. Clean III alleging failure of their

employer, CLEAN SEAS”, to pay premium wages for

hours in excess of eight in a workday or forty in a

workweek.

The two CLEAN SEAS vessels’ duties involve control

and clean up of oil spills and other environmentally

'Twelve “Clean Seas” employees, all found by the District Court to be

residents of the State of California, are involved.

"CLEAN SEAS is an unincorporated, cooperative association, formed

by several major oil companies to contain and clean up marine spills off

the California coast. (Appendix at A-5)

6

hazardous discharges in the Santa Barbara Channel off the

California coast. Mr. Clean II is a 138-foot vessel moored in

Port San Luis Harbor, California, where is remains about 90

percent of the time. Mr Clean III is a 181-foot vessel

permanently stationed on the high seas off the California

coast. Mr. Clean III conducts containment and clean up

operations around four oil drilling and production platforms

over the Pedernales and Arguello oil fields, from four to ten

nautical miles off the California coast. When not on active

duty, Mr. Clean III is tied to a buoy approximately seven

miles off the California coast.’

Prior to the scheduling of any hearing on the merits of

the complaints, CLEAN SEAS challenged the jurisdiction of

the Labor Commissioner in letters directed to DLSE Head-

quarters in San Francisco. The jurisdictional challenge was

denied by the DLSE. After the denial of the jurisdictional

challenge, hearings were held pursuant to the provisions of

the California Labor Code by a hearing officer in the DLSE

offices in Santa Barbara, California.

At the hearings on the merits of the compiaints, the

Hearing Officer obviously determined that the CLEAN SEAS

vessels were not engaged in any industry covered by an

"industry order" promulgated by the Industrial Welfare

Commission, but were engaged in occupations covered by

IWC Order 4-80 (technical, mechanical and similar occu-

"Notwithstanding the unsupported statement of Petitioner Pacific

Merchant Shipping Association (hereinafter "PMSA"), there is noth’ng in

the record to indicate that any of the Clean Seas vessels involved here

ever left their stations. Both the District Court and the Ninth Circuit

found, as a matter of fact, that these vessels were stationed directly off

the coast of California and operated exclusively in waters directly off the

California coast.

7

pations).'* The hearing officer found that the workers were

required to work twelve hours per day, seven days per week,

on a rotating schedule which provided for seven days aboard

the vessels and seven days ashore. The hearing officer found

that the workers were entitled to recover overtime wages

from their employer, CLEAN SEAS.

CLEAN SEAS filed timely notices of appeal of the

orders, decisions and awards of the Labor Commissioner to

the appropriate California Superior Court as provided by

state law. These de novo appeals are currently pending in the

state superior court. CLEAN SEAS joined by Pacific Mer- .

chant Shipping Association and the other maritime trade

associations, (hereinafter collectively referred to as "PMSA")

also filed a complaint in the Federal District Court for the

Central District of California seeking declaratory and injunc-

tive relief that California’s labor laws are preempted by

'*At footnote 12 of the Petition for Certiorari filed by Pacific Merchant

Shipping the Petitioner concludes that because of the differences between

the Fair Labor Standards Act and the California Industrial Welfare Com-

mission Orders the “non-exempt maritime employee working the same

schedule...for the same employer on the same vessel would be entitled to

$1,052 more per week under California law than he would under federal

law." What Petitioner fails to point out is that because of the differences

between the Industrial Welfare Commission Orders and the FLSA this

same result would apply to a variety of workers. As an example, the

FLSA treats those employed on small newspapers (29 U.S.C. 213(a)(8));

mechanics, drivers and helpers (29 U.S.C. §213(B){1)), and salesmen,

partsmen and mechanics engaged in selling or servicing automobiles,

trucks, or farm implements (29 U.S.C. 213(b)(10)(A)) differently from

the way those same workers are treated under the California law. The

differences are not a result of contrasting the situation of "land-based"

and maritime employees; the difference in the treatment of these workers

under California law as opposed to the treatment they would receive

under the FLSA is the result of differing interpretations as to the needs

of the workers made by the legislative bodies involved.

8

federal admiralty law and the United States Constitution

insofar as they purport to regulate the wages, hours and

working conditions of maritime employees.

Subsequent to the complaints filed with the Labor Com-

missioner by the CLEAN SEAS workers, an employee

(Frank Kleman) of Tidewater Marine Service, Inc. ("TIDE-

WATER") filed a complaint with the Labor Commissioner

alleging failure by TIDEWATER to pay overtime wages.

Typically, TIDEWATER employees, like those of CLEAN

SEAS, work 7-day hitches of 12-hour days alternating with

7-day rest periods onshore. Upon receipt of notification of

the filing of the complaint by Kleman, TIDEWATER inter-

vened in support of PMSA and CLEAN SEAS in the federal

action.

There has been no administrative hearing held in regards

to the complaint of Mr. Kleman or any other employee of

TIDEWATER and no determination has been made regarding

which, if any, of the Industrial Welfare Commission Orders

would cover Mr. Kleman’s employment.’

The Labor Commissioner has stayed all similar DLSE

administrative proceedings pending the outcome of this

action.

In summary, the undisputed facts clearly establish that

the workers involved in this case were California residents

employed on vessels moored at varying distances directly off

the California coast or operating from California ports

exclusively in areas directly off the California coast. These

vessels have no contact with any other of the several states

or with any foreign nation.

'SSee applicability of IWC Orders to employers engaged in the

"Transportation Industry” at footnote 5, supra.

9

Ill.

THE PROCEEDINGS BELOW

This action was originally filed by PMSA, Clean Seas

and the several maritime trade associations after the Cali-

fornia state Labor Commissioner had determined, after ad-

ministrative hearings, that twelve workers employed aboard

its vessels operating in the Santa Barbara Channel were

entitled to recover overtime compensation pursuant to Cali-

fornia law for hours in excess of eight in any one day or

forty in any one week. This Federal action was filed at or

near the time of the filing of the state court appeals of the

Labor Commissioner’s rulings. TIDEWATER was permitted

to intervene in the action in June, 1988.

Following cross-motions for summary judgment, the Dis-

trict Court granted summary judgment in favor of Plaintiffs

on March 1, 1989. The District Court held that inasmuch as

Congress may not delegate its maritime jurisdiction, the

savings Clause of the Fair Labor Standards Act (29 U.S.C.

18(a)) does not apply to maritime employees. As a result,

the District court held, the state of California could not

exercise its police power in this area.

The District Court held that while "[mJaritime statutes

simply do not purport to govern the overtime wages of em-

ployees such as those in this action,” since Congress had

exempted seamen from the overtime requirements under the

FLSA, "common sense” dictated that it would be at odds

with the federal scheme to permit the states to enforce

stricter overtime provisions via the FLSA’s savings clause.

(Appendix at A-64)

The Labor Commissioner appealed the District Court’s

ruling and, joined by The United States of America as

amicus curiae, argued that there exists no conflict between

10

the FLSA and the California overtime provisions and the

award of overtime pay to the workers is neither inconsistent

with, nor precluded by, federal admiralty law.

The Ninth Circuit reversed the District Court in an

opinion filed November 13, 1990, holding that:

"In contrast to the [State of] California’s strong interests,

Federal interests in precluding enforcement of Califor-

nia’s overtime provisions in this case are relatively

weak. There is no indication that Congress, in enacting

the FLSA’s savings clause, intended to preempt states

from according more generous protection to maritime

employees on the high seas off a state’s coastal waters.

Further, the purpose behind the FLSA is to establish a

national floor under which wage protections cannot drop,

not to establish absolute uniformity in minimum wage

and overtime, standards nationwide at levels established

in the FLSA. (Appendix, p. A-33) (Emphasis in

original)

The Circuit Court went on to note that inasmuch as the

workers involved are California residents who work on

vessels that operate exclusively off the California coast,

application of the state’s overtime law will not disrupt

international or interstate commerce. On one very important

issue the Circuit Court reached the same conclusion as that

reached by the District Court: There is no conflict between

the California overtime law and federal admiralty law.

In dissent, District Judge William P. Copple (sitting by

designation) concluded that since admiralty law has no

requirement that a maritime worker receive overtime pay,

absent an express clause in the employment agreement

maritime workers are not entitled to recover overtime wages

11

pursuant to statute’®. (Appendix, pages A-40—A-41)

Additionally, Judge Copple agreed with the District Court’s

conclusion that since "in light of the obvious conflict between

California’s overtime compensation provision and the FLSA,

the FLSA preempts California’s provision." (Appendix, page

A-44)

REASONS FOR DENYING

THE WRIT OF CERTIORARI

I.

EXERCISE OF THE STATE’S POLICE POWER TO

REGULATE THE OVERTIME COMPENSATION

OF THE WORKERS INVOLVED IN THIS CASE IS

NOT PREEMPTED BY ADMIRALTY LAW

A. The Ninth Circuit’s Decision Expressly Limits Its

Application To Workers Who Are California

Residents Not Engaged In Foreign, Intercoastal,

Or Coastwise Voyages Whose Predominate Work-

site Is In the Territorial Waters Or On The High

Seas Off The California Coast.

In the Ninth Circuit’s discussion of the jurisdiction and

scope of relief, the court reviewed at some length the District

Court’s opinion. (Appendix at pages A-8—A-11) The Ninth

Circuit determined that despite the fact that PMSA and

TIDEWATER sought a ruling which would cover all em-

ployees of its members with respect to a broad range of

‘This conclusion completely overlooks the fact that not all maritime

workers are exempt from the overtime requirements of the FLSA. Only

“seamen” are expressly exempt. Icicle Seafoods, Inc. v. Worthington, 475

U.S. 709 (1986).

OF

12

California Labor Code provisions, the District Court had

limited that relief to cover only:

"...application of California’s overtime pay laws to (1)

FLSA-exempt seamen working within the territorial zone

or on the high seas; and (2) maritime employees working

primarily on vessels on the high seas that are not

engaged in foreign, intercoastal, or coastwise voyages."

The Circuit Court explained that the District Court, had

applied the constitutional rule set out in Babbit v. United

Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) which

requires that “[a] plaintiff who challenges a statute must

demonstrate a realistic danger of sustaining injury as a result

of the statute’s operation or enforcement” in denying the

request of PMSA and TIDEWATER to increase the scope of

the relief.

In view of Petitioners unrelenting attempts to expand the

scope of relief to be decided, the Circuit Court observed in

Footnote 5, (Appendix, at pages A-9—A-10) that "the overall

thrust of the district court’s analysis strongly suggests that

the discussion was limited to employees like those who

brought claims in the underlying state administrative action"

as described above. Moreover, the court expressly limited the

scope of its opinion to those employees described and dis-

cussed by the district court.

Despite the limitations placed on the jurisdiction of the

Labor Commissioner by both the District Court and the Cir-

cuit Court, neither PMSA nor TIDEWATER appealed the

District Court’s limitations which the Circuit Court adopted.

Yet, both PMSA and TIDEWATER now argue that the rami-

fications of the ruling of the Ninth Circuit containing the

same limitations as the ruling of the District Court, will

13

impact on a wide range of employments within admiralty

jurisdiction.

The Ninth Circuit’s discussion of the scope of relief was

significant to its determination that, within the stated limits,

the declaratory relief met the Constitutional case or contro-

versy requirement. Thus, as stated and painstakingly—yet

expressly—qualified by both the District Court and the Ninth

Circuit, the factual scenario upon which the legal analysis

necessary to determine the jurisdiction of the State of

California must be based is limited to the circumstances

surrounding the specific class of workers described by the

two lower courts.!”

Nonetheless, both Petitioners in their briefs before this

Honorable Court attempt to paint a picture of economic

doom, confusion and uncertainty, and impermissible inter-

ference with the uniformity of admiralty law brought about

as a result of the State of California applying its law. The

Petitioners anticipate that California will apply its law to

workers who are simply "based" in California or are "resi-

dents” of the state without regard to whether the workers are

employed exclusively in waters off the California coast on

vessels which are not engaged in foreign, intercoastal, or

coastwise voyages. Simply anticipating a problem does not

create a case or controversy and such anticipation, absent a

"Obviously, the statement of a Deputy Labor Commissioner (a non-

lawyer referred to by Petitioner PMSA as “Respondent’s designated

policy expert", see Petition of PMSA, fn, 4, pages 5—6) that he “thinks”

the Labor Commissioner has jurisdiction over non-California residents

whose work situs is a vessel located outside the State of California is not

entitled to a great deal of weight in view of the limits placed on the

jurisdiction by both the District and Circuit Courts in the circumstances

at issue here. Such would be the case even if those statements accurately

depicted the position of the Labor Commissioner.

eee eeal

14

realistic danger, cannot be used as a vehicle to grant

declaratory or injunctive relief. Babbit v. United Farm

Workers Nat’l Union, supra, 442 U.S. 289 at 298. By ex-

panding the facts Petitioners hope to elicit an advisory

opinion from this Honorable Court.

In view of the fact that the limitations on the jurisdiction

of the Labor Commissioner had been determined by the Dis-

trict Court and no appeal of that limitation was taken by the

Petitioners, it is inappropriate for the issues to be raised in

this court. Petitioners’ “anticipated problems" are, thus, bet-

ter left for the day, if or when it arrives, that such factual

scenarios as those painted by the Petitioners are, in fact, at

issue in a case. At that time the issues Petitioners raise

could be presented to the federal courts to be determined

within the case or controversy requirements of the United

States Constitution.

B. The Ninth Circuit’s Preemption Analysis Does

Not Conflict With Principles Of Federal

Admiralty Jurisdiction.

1. The Preemption Standard

The Ninth Circuit, in addressing the preemption question

stated "we start with the assumption that the historic powers

of the States were not to be superseded by [federal legis-

lation] unless there was a clear and manifest purpose of

Congress.” [Citations]. (Appendix, A-11)

Petitioner Tidewater criticizes the Ninth Circuit’s pre-

emption analysis as “an unusually rigorous preemption stand-

_ ard" (TIDEWATER Petition, p. 12) and “completely foreign

to maritime law and entirely at odds with the constitutional

requirement for federal uniformity” (Id. p. 18). This

contention, however, completely ignores the fact that the

15

same test was applied in Ray v. Atlantic Richfield Co. 435

U.S. 148, 156 (1978) as the standard for challenging a state’s

police powers under the doctrine of federal preemption in the

admiralty area. As this Honorable Court said in Askew v.

American Waterways Operators, Inc. 411 U.S. 325, 339

(1973): it is a long-established principle that "...a state, in

the exercise of its police power, may establish rules applic-

able on land and water within its limits, even though these

rules incidentally affect maritime affairs provided that the

state action does not contravene any acts of Congress, nor

work any prejudice to the characteristic features of the

maritime law, nor interfere with its proper harmony and

uniformity in its international and interstate relations.”

(quoting Mr. Chief Justice Hughes in Just v. Chambers 312

U.S. 383 at 388 (1941))

2. The States Are Not Completely Precluded

From Legislating On The "High Seas"

Justice Stewart (with whom Justice Rehnquist joined in

dissent) responded to contentions of the petitioners in Oil,

Chemical & Atomic Workers, Etc. v. Mobil Oil, 426 U.S.

407 (1976), that implementation of Texas’ right-to-work law

to employees employed on the high seas would constitute an

intrusion into that “exclusive” federal enclave:

"To refute the notion that the high seas are a species of

federal enclave, it is sufficient to point out that the Court

has found state legislation pre-empted only when the

nature of the problem required the application of a uni-

form rule or when the state law unduly hampered mari-

time commerce.

16

"The Court has never struck down a state law on the

ground that the States are jurisdictionally incompetent to

legislate over matters that occur within the ocean

"territory." 426 U.S. at 435-436

In summary, the exercise of a state’s traditional police

powers in the admiralty area is permissible absent a clear

conflict with a Federal statute or when the state statute

directly interferes with the necessary uniformity of admiralty

law. Such standard gives due regard to the powers which are

specifically reserved to the states under the 10th Amendment

of the U.S. Constitution. --

3. California’s Overtime Requirement Does Not

In Any Way Contravene An Act of Congress

Both the District Court and the Circuit Court determined

that "Maritime statutes simply do not purport to govern the

overtime wages of employees such as those in this action."

(Appendix, page A-12)

The Circuit Court noted that while the Shipping Act (46

U.S.C. §§ 10301-10908) does govern some maritime em-

ployees’ wages, hours and working conditions, those

provisions do not apply to the employees involved in this

appeal because the Shipping Act provisions only cover

vessels engaged in foreign, intercoastal, or coastwise

voyages. The workers involved in this case do not fall under

any of the above categories of voyages. The vessels

employing these workers were moored in port, stayed on the

high seas surrounding the oil rigs or voyaged between one

port and the oil rigs. (Appendix, pages A-5 and A-7)

While the District Court held that the FLSA preempted

California overtime pay laws, the Circuit Court pointed out

that Congress has never expressly prohibited states from

17

applying their overtime laws to seamen and neither PMSA

nor TIDEWATER could point to anything in the legislative

history of the FLSA to suggest that Congress intended to

preclude application of state overtime provisions to seamen.

4. The Exemption Of Certain Categories Of

Workers In The FLSA Does Not Evidence An

Intent By Congress That The States Are

Precluded From Covering Them

Petitioner TIDEWATER states that the Ninth Circuit

ignores the concept of “negative preemption” as described in

Ray v. Atlantic Richfield Co. 435 U.S. 151, 178 (1978),

(TIDEWATER Petition, page 19) TIDEWATER contends

that "Congress has expressly declared in Section 13(b)(6) of

the FLSA that seamen should be exempt from...maximum

hour and overtime standards." Thus, TIDEWATER con-

cludes, the holding in Ray v. Atlantic Richfield Co. must

apply here to preclude the state from enforcing its overtime

regulations.

The concept of “negative preemption” was described in

Napier v. Atlantic Coast Line R. Co., 272 U.S. 605 (1926).

There this Honorable Court initially restated the proposition

that “the intention of Congress to exclude states from exert-

ing their police power must be clearly manifest.” Napier,

supra, at 611. In addressing preemption, concluded Justice

Brandeis, the question must be: "Does the legislation of

Congress manifest the intention to occupy the entire field?"

When this Court applied that test in Ray v. Atlantic Richfield

Co., supra, it looked to the "statutory pattern" to determine

the congressional intent. From the review conducted in Ray

it was clear that Congress’ intent in regard to the Tanker

Law was that "it desired someone with an overview of all the

18

possible ramifications of the regulation of oil tankers to

promulgate limitations on tanker size and that he should act

only after balancing all of the competing interests.”

Applying that same test to the facts in this case, how-

ever, leads to the inescapable conclusion that in view of the

express intent of Congress set out in Section 18(a) of the Fair

Labor Standards Act, Congress intended that the purpose of

the FLSA was, as the Circuit Court described it, "to

establish a national floor under which wage protections

cannot drop, not to establish absolute uniformity in minimum

wage and overtime standards nationwide at levels established

in the FLSA." (Appendix, p. A-33) To reach any other con-

clusion would make a mockery of the savings clause.

The consequences of reaching a conclusion to the effect

that Congress’ exemption of seamen from the overtime re-

quirements of the FLSA must lead to the inference that

Congress has precluded the states from adopting overtime

requirements which would cover seamen, would be illogical.

Congress has exempted such categories of workers as those

employed on small newspapers from even the minimum wage

(29 U.S.C. 213(a)(8)). In addition, such diverse categories

as announcers on radio and television stations located in

small towns (29 U.S.C. 213(b)(9)); salesmen, partsmen and

mechanics engaged in selling or servicing automobiles,

trucks, or farm implements (29 U.S.C. 213(b)(10)(A)), and

domestic servants (29 U.S.C. 213(b)(21)) have been exempt-

ed from the overtime requirements of the FLSA. There is no

logic which would support the conclusion that because Con-

gress has expressly exempted these workers the inference

arises that the lawmakers also intended to preclude the states

from requiring that those workers receive the state-mandated

minimum wage or overtime premium. None of the above

workers fall into categories which are heavily regulated by

- —

19

federal law. There exists no federal law or regulations which

cover such occupations as pressmen or printers on small

newspapers, used car salesmen or partsmen in an auto dealer-

ship, or domestic servants. Yet, if the argument presented by

Petitioners is to have any rationale these categories of

workers, now exempt from either the minimum wage or

overtime provisions of the FLSA, would also be exempt from

the state minimum requirements.

The mere recitation of the logical consequences of Peti-

tioners’ argument, of course, signals the extreme tenuousness

of the contention.

5. The "General Principles" Of Admiralty Law

Cited By PMSA In Regard To "Overtime"

Deal With The "Type" Of Work, Not The

"Hours" Of Work

Petitioner PMSA maintains that under general maritime

law, workers and their employers are free to determine pur-

suant to agreement, the wages, hours, and working condi-

tions under which the workers will be employed. (PMSA

Petition, page 11) There is, as Petitioner correctly points out,

no “implied right to overtime”. This same rule applies to all

employment and is not unique to the admiralty area.

As with any law applied to employment, admiralty courts

have recognized a right’® to fair compensation for work

performed. (PMSA Petition, page 6) But Petitioner over-

‘The admiralty courts have applied the Biblical admonition that the

“laborer is worthy of his hire” to remedy outrageous situations where the

“seaman” has been asked to perform duties outside of the contract of

employment as evidenced by the shipping articles. The Lackne, 93 F. 230

at 232.

20

states the case when it concludes that the admiralty law

recognizes an absolute right to fair compensation for “over-

time" performed. The cases which are cited by PMSA in

support of its statement do not refer to “overtime” in its

classical sense’®, these courts have simply found that "when

seamen are required or induced by the master to do extra

work in handling cargo, in port, for the mere advantage of

the owners or charterers, such extra work is outside of the

terms of the contract contained in the shipping articles, and

in all such cases the law recognizes the scriptural rule that

the laborer is worthy of his hire." The Lakme, 93 F. 230 at

232 (D.Wash.1899). (Emphasis added)

The fair compensation for the "overtime" in each of the

cases cited by Petitioners involved an interpretation of the

contract of employment. Admiralty law confers no “abso-

lute” right to recovery for overtime; the Courts have simply

recognized that you can’t hire seamen, pay them seamen’s

wages, and expect them to perform longshoremen’s work in

addition to their other duties. The cases cited by Petitioners

do nothing more than confirm that well-established rule.

In fact, Admiralty law never addresses the question of

whether a seaman is entitled to "overtime" for hours worked

in excess of a standard number of hours. Yet, from the fact

that there exists no right to "overtime" under admiralty law,

Petitioners ask that the Court conclude that a statutory

obligation to pay overtime can not arise because such a

requirement would interfere with the uniform and _ har-

monious system of national maritime law. But again, as with

the other arguments raised by the Petitioners, they fail to

'*These cases limit generally the type of work the "seaman" is expected

to perform; not the hours he is expected to toil as limited by both the

FLSA and state law.

21

point to any authority which would support their theory that

a state law affecting only workers employed exclusively off

the coast of California with no contacts with any other state

or nation, would impact on the uniform and harmonious sys-

tem of maritime law.

6. The Effect Of Jensen And Its Progeny

Petitioners state in general terms that the standard

applied by the Ninth Circuit was plainly inconsistent with

Southern Pacific v. Jensen, 244 U.S. 205 (1917), and its

progeny. (TIDEWATER Petition, page 17) But, as correctly

quoted by Petitioner, the Jensen and Knickerbocker Ice Co.

v. Stewart, 253 U.S. 149 (1920), cases discuss uniformity of

maritime matters in terms of preserving "freedom of naviga-

tion between the states and with foreign countries." See

Jensen, 244 U.S. at 217. Thus, any direct application of

Jensen to preclude, ipso facto, the exercise of the state’s

police power to regulate and protect workers whose only

contact is with the State of California and who work exclu-

sively off the California coast is severely misplaced.

The concern of this Court in the Jensen and Knicker-

bocker cases was the effect the state law could have on

shippers whose vessels traveled not only from state to state

but in interstate commerce as well. The law should not

depend, where numerous jurisdictions are involved, upon the

fortuitous location of the vessel at the time of an injury.

And, of course, while expressing the belief that Jensen

has continuing force, the Circuit Court pointed out, "the .

general rule on preemption in admiralty is that states may

supplement federal admiralty law as applied to matters of

local concern, so long as state law does not actually conflict

a

22

with federal law or interfere with the uniform working of the

maritime legal system.”

Moreover, this Honorable Court has characterized the

need for “uniformity” of maritime matters in the face of a

state’s exercise of its police powers by stating that “the

Constitution presupposes a body of maritime law, that this

law, aS a matter of interstate and international concern,

requires harmony in its administration ..." Askew, supra,

411 U.S. at 339, quoting Just v. Chambers, supra, 312 U.S.

383. Thus, at best, the federal uniformity argument is most

compelling in interstate and foreign navigation and is obvi-

ously applicable in areas where Congress has specifically

legislated; but certainly uniformity and harmony isn’t auto-

matically applicable in areas of otherwise local”? concern

where Congress has chosen not to act.

The cases cited by TIDEWATER in its Petition at page

22 do little to support Petitioner’s contentions. In both

Union Fish Co. v. Erickson, 248 U.S. 308 (1919) and Kos-

sick v. United Fruit Co., 365 U.S. 731 (1961) this Court

As Prof. Currie explained in his treatise, Federalism and the Ad-

miralty: "The Devil’s Own Mess," S.Ct. Rev. 158, at 171 (1960): “In

ascertaining the iriterest of a state in the maritime application of its laws,

profitable use can be made of enlightened theories of conflict of laws.

The first step should be determination of the policies which are sought to

be furthered by the state law in question...The second step should be an

examination of such connecting factors as the place where the events giv-

ing rise to suit occurred, and the place of residence of the parties, in

order to decide whether the matter has such an impact on the economy

and affairs of a particular state as to give it a legitimate concern for the

application of its laws. If the connection of the state with the matter in

suit is such as to give it a legitimate concern for the advancement of the

policy expressed in the law asserted to be applied, that state has an

interest in the outcome of the litigation which is entitled to respect."

23

took pains to explain that the contracts at issue were intended

to be performed all over the world.”!

The Circuit Court distinguished the case of Oil, Chemi-

cal & Atomic Workers Int’l Union v. Mobil Oil Co., 426

U.S. 407 (1976), from the facts in the instant case by noting

that the workers involved in Mobil were residents of a num-

ber of different states and all were employed on vessels that

voyaged regularly from Texas to New York or Rhode Island

and back. The practical problems present in Mobil are not

present in this case.

Also, of course, the final consideration in Mobil was

whether “job situs" or "sufficient contacts" were the factors

to be applied to determine whether the Texas right-to-work

law should apply to the affected workers. This Court did not

rely upon concepts of admiralty law in reaching its decision,

concluding instead that "[i]t is therefore fully consistent with

national labor policy [under the National Labor Relations

Act] to conclude, if the predominant job situs is outside the

boundary of any State, that no State has a sufficient interest

in the employment relationship and that no State’s right-to-

work laws can apply." (426 U.S. 420-421) (Emphasis added)

The case of Offshore Logistics, Inc. v. Tallentire, 477

U.S. 207 (1986), involved the question of whether a state

law may be used to supplement the measure of recovery pro-

vided by the Death on the High Seas Act (DOHSA), a fed-

. eral statute which impacts directly on the maritime industry.

2'For instance, in Union Fish v. Erickson, 248 U.S. 308, this Court

noted that “[I]n entering into this contract the parties contemplated no

services in California.” The Court further noted that maritime law would

always cover the conduct of “those who pursue commerce and put to

sea.” Jd. at 313. The workers involved here are not engaged in commerce

between the states or with foreign nations.

a

24

The Court in Tallentire considered “the legislative history

...the Congressional purposes underlying the Act, and the

importance of uniformity of admiralty law" in reaching the

conclusion that the language of the federal statute was

intended only to serve as a jurisdictional savings clause.

It is respectfully submitted that no rational interpretation

of the clear language of 29 U.S.C. §218(a) could lead to any

other conclusion than that Congress intended to leave to the

states the power to impose »age and hour requirements with

minimum wages higher than those imposed by the Act and/or

a maximum workweek shorter than that imposed by the Act.

Congress has clearly spoken in this regard, and thus, 7allen-

tire has absolutely no useful application to this case.

C. Petitioner’s Proposed Construction Of The Sav-

ings Clause Contained At Section 18(a) of the

Fair Labor Standards Act As An Unconstitutional

Delegation of Maritime Powers To The States Is

Flawed When Considered In Light Of The Legis-

lative and Judicial History Of The Act

1. The FLSA Neither "Delegates" Any Legisla-

tive Authority To The States Nor Precludes

The States From Applying Its Overtime

Requirements To Its Residents.

Petitioner PMSA argues that the FLSA savings clause

has been construed to permit state legislatures, in regulating

land-based employment, to enact higher minimum wage rates

and lower maximum workweek standards than those set forth

25

in the FLSA (PMSA Petition, p. 18)” Petitioner’s argu-

ment then proceeds to conclude that since Congress may not

delegate its legislative authority over maritime matters to the

states under Knickerbocker Ice Co. v. Stewart, supra, allow-

ing the States authority to regulate maritime employment

pursuant to the FLSA savings clause would be an unconsti-

tutional delegation of legislative authority over maritime

employment to the states. In the Knickerbocker Ice Co. case

this Court struck down a federal statute that granted states

authority to apply state workers compensation laws to

maritime employers as a delegation beyond the power of

Congress.

The Petitioner’s argument is severely flawed for two

reasons: Initially, the question presented in Knickerbocker

has not been reexamined by this Court and at least one

highly regarded commentator states that Knickerbocker and

the later case cf Washington v. W. C. Dawson 264 U.S. 219

(1924) will be treated as aberrations.” Mr. Justice Black in

response to a suggestion that a state law dealing with marine

insurance would be invalid even where Congress has express-

ly or implied consented to state regulation noted that "[T]his

contention is so lacking in merit that it need not be dis-

cussed." Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348

U.S. 310, 321 fn. 29 (1955)

“It must be noted that PMSA draws a heretofore unknown distinction

between "land based" and "maritime" employment under the FLSA. Such

a distinction is found nowhere in the FLSA. The FLSA merely exempts

“seamen” from overtime coverage (29 U.S.C. §213(b)(S)). The term

"seamen" has been specifically defined by the Secretary of Labor (29

C.F.R. §§ 783.31 et seq.) and clearly that definition does not exempt all

other maritime workers.

”Federalism and the Admiralty: "The Devil’s Own Mess,” supra, S.Ct.

Rev. 158, at 191 (1960)

26

In addition, the reasoning presumes that the State’s

power is necessarily coextensive with the FLSA contrary to

the language stated in the FLSA’s Savings Clause. By exten-

sion of their argument, Petitioner would maintain that, prior

to the FLSA, California had absolutely no interest in

protecting its local residents who worked locally off its

shores on the high seas (and not otherwise engaging in

maritime commerce via foreign, intercoastal, or coastwise

voyages).

As previously discussed, however, the express exemption

of seamen from coverage under the FLSA cannot logically be

read to preclude exercise of the state’s police powers in areas

of historical and traditional coverage under state laws.

Similarly, any examination of the FLSA, its savings clause,

and the legislative history of the Act reveals that the savings

provision does not “delegate” any congressional powers to

the states. Nothing in the Legislative history of the FLSA

even suggests or supports a Congressional intent to delegate

any new or expanded powers to the States as was done and

invalidated in Knickerbocker. Accordingly, The Ninth

Circuit correctly found that:

"California’s actions in this case represent an exercise

of traditional police powers firmly in place before Con-

gress enacted the FLSA. See West Coast Hotel Co. v.

Parrish, 300 U.S. 379 393 (1937) ("In dealing with the

relation of employer and employed, the [state] has neces-

sarily a wide field of discretion in order that there may

be suitable protection of health and safety, and that

peace and good order may be promoted through regula-

tions designed to insure wholesome conditions of work

and freedom from oppression. Thus, Congress did not

’delegate’ authority to the states through section 218, but

simply made clear its intent not to disturb the traditional

27

exercise of the states’ police powers with respect to

wages and hours more generous than the federal stand-

ards. We cannot read Section 218 as a delegation, and,

therefore, conclude that Knickerbocker Ice does not

control this case." (Appendix at A-24—A25)”

Petitioner, thus, improperly suggests a novel but

unfounded “but for” relationship between the federal FLSA

and the state’s inherent independent authority to exercise its

traditional police powers over regulation of employment for

its residents. This "but for" relationship theory disregards

the express language contained in the FLSA’s Savings Clause

and significantly modifies historic principles of sovereignty

between the federal and state governments. The Petitioner’s

argument is simply unsupported by reason or law.

2. The Mobil Oil and Tallentire Cases Do Not

Require Preemption Of The State Law Under

The FLSA Savings Clause In This Action

Notwithstanding the conceptual and logical infirmities of

the basic argument to construe the Savings Clause as an un-

constitutional delegation of maritime authority to California,

Petitioner PMSA relies, as did the District Court, upon two

more recent cases construing savings provisions contained in

other federal laws regulating maritime matters on the high

seas. (PMSA Petition, p. 20)

*Petitioner’s statement that the Circuit Court “agreed” with the District

Court that a finding of preemption in this case would be automatic were

it not for the FLSA’s savings provision (PMSA Petition, p. 18) is not

only an overstatement of the law; this conclusion is certainly at odds with

the Circuit Court’s finding as quoted above.

28

As discussed, supra, in Oil, Chemical & Atomic

Workers, International Union, AFL-CIO v. Mobil Oil Corp. ,

426 U.S. 407 (1976) and Offshore Logistics, Inc, v.

Tallentire, 477 U.S. 207 (1986), this Court interpreted

savings Clauses in federal statutes (National Labor Relations

Act and Death On the High Seas Act, respectively). How-

ever, as the Circuit Court properly observed, this Honorable

Court construed the savings clauses by applying rules of

Statutory construction which considered the purposes of the

enactments and the clear legislative history of the legislation.

This review required restricted interpretations of the savings

clauses in issue. This Court noted clear conflicts between the

state and federal statutes in those cases, unlike the state and

federal laws at issue in the instant case. Given the express

language in FLSA Section 18(a) coupled with the announced

purpose and the legislative history of the FLSA, a suggestion

that it was the Congressional intent to preclude states from

applying more protective overtime laws to local maritime

workers working in the waters directly off the California

coast who are not engaged in foreign, intercoastal, or

coastwise maritime commerce is simply absurd.

CONCLUSION

The factual circumstances in this case limit the State’s

jurisdiction to enforce its overtime pay laws to workers who

are California residents employed exclusively in waters off

the California coast on vessels which are not engaged in for-

eign, intercoastal, or coastwise voyages. The workers have

no contact with any state other than California and the work

they perform has no direct impact on interstate commerce.

Given the factual scenario, there is no interference with

the necessary uniformity in admiralty law. The states are not

29

incompetent to legislate over matters of historical local

interest which happen to arise on the high seas; nor is there

any federal law, express or implied, covering maritime work-

ers such as those described here, with which the state

overtime wage laws would conflict.

Congress did not “delegate” authority to the states

through the Fair Labor Standards "savings claus", the states

enjoyed a wide field of discretion in dealing with the relation

of employer and employed before Congress adopted the

FLSA. The language of section 218(a) of the FLSA simply

clarified the intent of Congress not to disturb the traditional

exercise of the states’ police powers with respect to wages

and hours more generous than the federal standard.

Given the narrow factual situation, the application of the

law to those facts by the Ninth Circuit, and the lack of any

established conflict among the circuits, review by this Honor-

able Court is not necessary.

Respectfully submitted,

H. THOMAS CADELL, JR., Chief Counsel,

Counsel of Record

ROBERT VILLALOVOS

Division of Labor Standards Enforcement

Department of Industrial Relations

State of California

Attorneys for Respondents

November 12, 1991