# Amicus Curiae Brief — Livadas v. Bradshaw

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0402%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 512 U.S. 107

## Text

No. 92-1920 «MAN 4

—— De wo

ee a

Iu the Supreme Court of the United States

OCTOBER TERM, 1993

KAREN LIVADAS, PETITIONER
Vv.

LLOYD AUBRY,
CALIFORNIA LABOR COMMISSIONER

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

Drew S. Days, III
Solicitor General

DANIEL SILVERMAN LAWRENCE G. WALLACE
Acting General Counsel Deputy Solicitor General
LINDA SHER Amy L. WAX
Acting Associate General Assistant to the Solicitor
Counsel General
NORTON J. COME Department of Justice
Deputy Associate Washington, D.C. 20530
General Counsel (202) 514-2217
National Labor
Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether petitioner may sue the California Labor
Commissioner for injunctive relief and damages
under 42 U.S.C. 1983, for refusing to prosecute her
state wage-and-hour claim on the basis of her status
as an employee covered by a collective bargaining
agreement containing an arbitration clause.

(1)

a

TABLE OF CONTENTS

Page
Interest of the United States 20200... .ccccccccccecceceeceneeeees 1
ELL 2
ee 10

Argument:

LE

Petitioner is entitled to relief under 42 U.S.C. 1983
for respondent’s interference with her right to bar-
gain collectively under Section 7 of the NLRA by
refusing to enforce her state wage claim ................ 13
A. Respondent’s practice of refusing to enforce
state wage claims such as petitioner’s is not re-
quired by principles of federal labor law pre-
emption and interferes with employees’ rights

to bargain collectively ........................-c.c0...c..0000.-.-- 16
1. Enforcement of petitioner’s claim is not pre-
empted by Section 301 of the LMRA ............ 16

2. Respondent’s refusal to enforce petitioner’s
wage claim interferes with the exercise of
her rights under Section 7 of the NLRA re-
gardless of whether it results from an “er-
roneous” or overly broad application of state

B. Petitioner has a cause of action under 42 U.S.C.
1983 for respondent’s refusal to enforce her
wage claim under state law .............00000.00.0....

oS &

TABLE OF AUTHORITIES

Cases:

Adickes Vv. S.H. Kress & Co., 398 U.S. 144 (1970). 28
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

ESS SI 6, 11, 16, 17, 19
Brown V. Hotel Employees, 468 U.S. 491 (1984) .... 10, 13,
14, 15

Building & Constr. Trades Council Vv. Associated
Builders & Contractors of Massachusetts /Rhode
Island, Inc., 113 S. Ct. 1190 (1998) 15

(II)

IV
Cases—Continued: Page
Damico Vv. California, 389 U.S. 416 (1967) ............. 27-28
Franchise Tax Board v. Construction Laborers
Vacation Trust, 463 U.S. 1 (1983) ...........----....... 26
Golden State Transit Corp. v. City of Los Angeles:
I LE Re 5, 15
498 U.S. 108 (1989) .................... 5, 10, 12, 18, 14, 15, 25
Hill v. Florida, 325 U.S. 538 (1945)... 10, 13
Houghton v. Shafer, 392 U.S. 689 (1968) 28
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.
Xf ES 6, 11, 16, 17, 18, 19, 20, 21, 26
Local 174, Teamsters v. Lucas Flour Co., 369 U.S.
eee ee eee ee 20

Lodge 76, Int'l Ass’n of Machinists Vv. Wisconsin
Employment Relations Comm’n, 427 U.S. 132
Se ed : 15

McNeese V. Board of Educ., 373 U.S. 668 (1963).. 12, 27

Metropolitan Life Ins. Co. Vv. Massachusetts, 471

OT ee 15
Monell v. Department of Social Services, 436 U.S.

FO eee 28
Monroe V. Pape, 365 U.S. 167 (1961)... 28
Nash Vv. Florida Industrial Comm’n, 389 U.S. 235

0 SRE Se ee eee 10, 12, 13, 14, 24
Phillips v. Martin Marietta Corp., 400 U.S. 542

ITT icsicieieenerinlaterenieactuiastasiadaanbiadaiataanii kiana aiec tenia 23

Plumbing, Heating & Piping Employers Council
Vv. Howard, 126 Cal. Rptr. 406 (Cal. Ct. App.

Ee 6, 18

Rum Creek Coal Sales, Inc. v. Caperton, 971 F.2d
TS Ce 25

San Diego Building Trades Council v. Garmon,
I I 26

United Steelworkers v. Johnson, 830 F.2d 924
I 24, 25

Constitution and statutes:

U.S. Const. Art. VI, Cl. 2 (Supremacy Clause)... 2, 10,
18, 14

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e
GF GE eecetcnencnnctaemncienenttcnsrentintintateenbinengtenatitilimaniints 23

Statutes—Continued: Page
Labor-Management Relations Act, 1947, 29 U.S.C.
141 et seq.: oo
Ae passim
National Labor Relations Act, 29 J.S.C. 151 et
i cicinisientailiiiesininncinntniiininsianinsisintesiitatiiisiinaiigiiiamsmmmmentiens 1,5
§ 7, 29 U.S.C. 157 .......... 10, 11, 12, 18, 15, 20, 23, 24, 27
§ 8(a) (1), 29 U.S.C. 158 (a) (1) 10, 13
EES ES ee passim
Cal. Lab. Code (West 1989) :
IT disci tihantancsiathi iadeniaiaindemaetittaingitalua ieee 3
EN eee 2, 3, 16
ERE e ene 3, 4, 7, 16, 17, 20
I ahaa te cae ia adie passim
Miscellaneous:
Individual Employment Rights Manual, 9A Lab.
Rel. Rep. (BNA) No. 60 (1990) —...00.. 22

Iu the Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1920
KAREN LIVADAS, PETITIONER
Vv.

LLOYD AUBRY,
CALIFORNIA LABOR COMMISSIONER

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The court of appeals in this case (Pet. App. 7a)
acknowledged that the National Labor Relations Act
(NLRA), 29 U.S.C. 151 et seq., gives petitioner “a
right to engage in collective bargaining, and [42
U.S.C.] 1983 therefore provides a remedy for a
deprivation of that right.” The court held, however,
that respondent did not impermissibly interfere with
petitioner’s exercise of her rights under the NLRA by
refusing to prosecute her wage claim under the
California Labor Code on the basis of her status as an
employee covered by a collective bargaining agree-
ment containing an arbitration clause. Respondent’s
action was based on the legal conclusion that petition-

(1)

2

er’s claim was preempted under Section 301 of the
Labor-Management Relations Act (LMRA), 29 U.S.C.
185.

The court of appeals’ decision misapplies the doc-
trine of federal labor law preemption under Section
301 of the LMRA, as articulated in decisions of this
Court. It is also inconsistent with decisions of the
Court holding that state action that impairs rights
protected by the NLRA is preempted by direct opera-
tion of the Supremacy Clause. The United States,
and the National Labor Relations Board in particu-
lar, have an important interest in ensuring that States
do not discriminate against employees who exercise
their rights under the NLRA, and that States enforce
their laws in a manner consistent wtih NLRA and
Section 301 preemption principles. At the Court’s in-
vitation, the United States filed a brief amicus curiae
at the petition stage of this case.

STATEMENT

1. On January 2, 1990, petitioner, a union-
represented employee covered by a collective bargain-
ing agreement, was discharged from her position as a
clerk at a Safeway store in Napa County, Cali-
fornia.’ On that date, she requested payment of all
wages due her. The store manager refused, telling
petitioner that he would mail her a check instead.
Petitioner received that check three days later, on
January 5. Pet. App. 2a.

Petitioner believed that Safeway’s three-day delay
in payment violated California law. Section 201 of
the California Labor Code provides: “If an employer

1 Petitioner was represented by Local 373, United Food and
Commercial Workers, AFL-CIO. Pet. App. 24a.

3

discharges an employee, the wages earned and un-
paid at the time of discharge are due and payable
immediately.” Cal. Lab. Code § 201 (West 1989).
Section 203 provides: “If an employer willfully fails
to pay * * * in accordance with Section[] 201 * * *
any wages of an employee who is discharged or who
quits, the wages of such employees shall continue
as a penalty from the due date thereof at the same
rate until paid.” Cal. Lab. Code § 203 (West 1989).
On January 9, petitioner filed a claim with the
California Division of Labor Standards Enforcement
(DLSE) seeking a penalty payment from Safeway
pursuant to Section 203. Pet. App. 2a-3a.

Respondent is the California Labor Commissioner
and head of DLSE. He is authorized by Section
98.3(a) of the California Labor Code to prosecute
actions to collect penalties on behalf of individuals
who are “financially unable to employ counsel and
* * * have claims which are valid and enforceable”
under the California Labor Code. Cal. Lab. Code
§ 98.3(a) (West 1989). Pet. App. 3a. On February
7, 1990, DLSE sent petitioner a letter declining to
prosecute her claim. /bid. The letter stated (id. at
8a):

It is our understanding that the employees
working for Safeway are covered by a collective
bargaining agreement which contains an arbitra-
tion clause. The provisions of Labor Code Sec-
tion 229 preclude this Division from adjudicating
any dispute concerning the interpretation or ap-
plication of any collective bargaining agreement
containing an arbitration clause. [*]

* Cal. Lab. Code § 229 (West 1989) states (Pet. 3):
Actions to enforce the provisions of this article for the

collection of due and unpaid wages claimed by an individ-
ual may be maintained without regard to the existence of

4

Labor Code Section 203 requires that the
wages continue at the “same rate” until paid. In
order to establish what the “same rate” was, it
is necessary to look to the collective bargaining
agreement and “apply” that agreement. The
courts have pointed out that such an application
is exactly what the provisions of Labor Code
Section 229 prohibit.

2.a. On February 16, 1990, petitioner filed an
action in federal district court against respondent
in his official capacity as Labor Commissioner under
42 U.S.C. 1983, seeking injunctive and declaratory
relief and damages based on respondent’s refusal to
prosecute petitioner’s claim against Safeway for the
penalty prescribed by Section 203 of the California
Labor Code. Pet. App. 3a. As described by the dis-
trict court (id. at 24a-25a), the complaint alleged
that DLSE maintains “[an] agency policy of dis-
crimination in the enforcement of the California
Wage and Hour Law against employees who work
under collective bargaining agreements which have
arbitration clauses.” That policy, petitioner alleged,
“denied her access to the investigatory, prosecutorial,
and remedial resources provided under [the] Cali-
fornia Labor Code * * * for the sole reason that she
is an employee” covered by such an agreement. /d.
at 25a. DLSE’s policy entitles her to relief under
Section 1983, petitioner urged, since it denies her
benefits merely because she has engaged in federally
protected rights to “participat[e] in a labor union
and in collective bargaining.” /bid.

any private agreement to arbitrate. This section shall not
apply to claims involving any dispute concerning the
interpretation or application of any collective bargaining
agreement containing such an arbitration agreement.

5

Respondent admitted in the district court that
DLSE’s policy “is to enforce Labor Code [Sections]
201 and 203 for all employees except for those whose
work is governed by [collective bargaining agree-
ments] containing binding arbitration clauses.” Pet.
App. 25a. He defended DLSE’s policy on the ground
that it is required by federal labor law preemption
doctrine. Respondent explained that “[s]ince dam-
ages under [Section] 203 are determined in terms
of wages, which are established by the [collective
bargaining agreement], * * * enforcement of the
statute would entail interpretation of the [agree-
ment].” Jd. at 26a.

b. The district court granted summary judgment
for petitioner. Pet. App. 49a. Relying on this
Court’s decision in Golden State Transit Corp. v.
City of Los Angeles, 475 U.S. 608 (1986) (Golden
State I), the district court stated that a state or
local governmental policy that burdens or penalizes
employees’ exercise of rights granted by the National
Labor Relations Act (NLRA), 29 U.S.C. 151 et seq.,
is preempted by the NLRA. Moreover, under Golden
State Transit Corp. v. City of Los Angeles, 493 U.S.
103 (1989) (Golden State IT), an employee so affected
by such a policy may obtain injunctive relief and
damages from the governmental unit under Section
1983. Pet. App. 27a-32a. The district court con-
cluded that the NLRA affords petitioner the right
to negotiate, through her union, a collective bargain-
ing agreement containing an arbitration clause, and
that DLSE’s policy of granting benefits provided by
state law to all employees except those who work
under such a labor contract infringes upon that
federal right. Jd. at 32a-38a.

6

Finally, the district court rejected respondent’s
defense (reflected in DLSE’s February 7 letter to
petitioner) that DLSE was “preempted” from prose-
cuting petitioner’s claim by Section 229 of the Cali-
fornia Labor Code, as interpreted by the California
courts.* The district court held that preemption doc-
trine is a matter of federal, not state, law and that,
insofar as Section 229 is interpreted as going beyond
the requirements of federal preemption doctrine, it
is invalid. Pet. App. 39a-44a, 48a. Relying on Allis-
Chalmers Corp. v. Lueck, 471 U.S. 202 (1985), and
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.
399 (1988), the district court concluded that peti-
tioner’s state-law claim for a penalty payment from
Safeway was not preempted by Section 301 of the
Labor-Management Relations Act (LMRA), 29 U.S.C.
185. The question whether Safeway violated state
law, the district court found, “can be determined
wholly independently from the [collective bargaining
agreement]. * * * It requires reference only to a
calendar, not to the [agreement], to determine that
the statute was violated and penalties are due.” Pet.
App. 41a.

Accordingly, the district court, inter alia, issued
an injunction requiring respondent te enforce Sec-
tions 201 and 203 “without discrimination based upon
a given claimant’s coverage under a_ collective-

In Plumbing, Heating & Piping Employers Council V.
Howard, 126 Cal. Rptr. 406 (Cal. Ct. App. 1975), discussed in
note 6, infra, the state appellate court addressed the question
whether Section 229 “precludes the Labor Commissioner from
hearing and enforcing a claim for collection of alleged due and
unpaid wages by an employee who belongs to a union which
has entered into a collective bargaining agreement which con-
tains an arbitration clause.” 126 Cal. Rptr. at 409.

7

bargaining agreement having an arbitration clause.”
Pet. App. 49a. It ordered respondent to institute an
action on petitioner’s behalf in the California courts
under Section 203, and to pay her the full value of
her wage claim in the event that the state courts
found her claim time-barred. J[bid.

3. A divided panel of the Ninth Circuit reversed.
The panel majority agreed with the district court that
petitioner has a right under the NLRA to engage in
collective bargaining and that she has a cause of
action under Section 1983 to obtain a remedy if the
State interferes with that right. Pet. App. 7a. The
majority held, however, that DLSE’s policy does not
‘“implicate[] [petitioner’s] federal rights at all.” Jd.
at 10a. The court understood Section 229, as inter-
preted by the state courts, “to preclude the adjudi-
eation of claims that would be preempted by federal
labor law.” Jd. at 9a. For respondent to so limit his
enforcement of Section 203 claims, the court con-
cluded, “is perfectly permissible under federal law.”
Id. at lla. The court further stated that, even if
respondent were mistaken in deciding that petition-
er’s claim is preempted by federal law (an issue
which the majority did not reach), he did not thereby
deprive her of rights under the NLRA. That is be-
cause respondent’s refusal to prosecute petitioner’s
claim amounted, at most, to a misapplication of Sec-
tion 229, and “fa] misinterpretation of a perfectly
valid state statute * * * does not provide grounds
for federal relief.” Jd. at 12a. Rather, the appro-
priate avenue of relief in these circumstances, the
court stated, is for petitioner to seek a writ of man-
date against respondent in the California courts.
Ibid.

8

The court of appeals concluded that “[t]o hold that
[petitioner] is entitled to federal relief in this case
would require us to hold that she is entitled under
the NLRA to a correct interpretation of California
law regarding enforcement of [Section] 203 claims.”
Pet. App. 12a. The court stated that Congress did
not intend the NLRA to confer any such entitlement
upon unionized employees. The court reasoned that
such an entitlement would “place employees who bar-
gain collectively in a better position than those who
do not because it gives them an extra avenue of re-
dress for the erroneous determination of state law.”
Id. at 13a. Congress could not have intended that
result, said the court, “[b]ecause [Section] 7 of the
NLRA gives employees the right to refrain from bar-
gaining collectively as well as the right to do so.”
Ibid.

In addition, the panel majority was “persuaded by
the more general policies of federal labor law” that
“Congress would not want state officials erring on
the side of adjudicating state law disputes whenever
it is a close call as to whether a claim is preempted.”
Pet. App. 13a-l4a. “If anything,” the court reasoned,
“Congress would presumably want state officials to
defer to arbitration * * * if a claim even arguably is
intertwined with consideration of a collective bargain-
ing agreement containing an arbitration clause.” /d.
at 14a.

Judge Kozinski dissented. He noted that respond-
ent’s refusal to process petitioner’s claim because she
was covered by a collective bargaining agreement “is
clearly discrimination based on an exercise of pro-
tected federal rights.” Pet. App. 17a. In his view,
it does not matter that respondent’s policy was based
on his interpretation of state law: “[t]he point is,

9

[respondent] is applying state law and his own policy
in a way that impinges on protected federal rights.”
Ibid. Therefore, and contrary to the panel majority’s
view, it was necessary for the court to determine
whether Section 301 of the LMRA, 29 U.S.C. 185,
actually preempts resolution of petitioner’s claim by
the state agency, not whether the state policy was
reasonably intended to avoid the preemptive force of
Section 301. Jd. at 17a-18a.

Judge Kozinski then concluded, in agreement with
the district judge, that, under Lingle, petitioner’s
claim is not preempted by Section 301. “A court could
find that [Safeway] did not pay [petitioner] im-
mediately upon termination—and thus violated the
statute—without ever looking at the [collective bar-
gaining agreement].” Pet. App. 19a. The dissent also
found that respondent’s refusal to enforce wage-and-
hour claims under these circumstances impermissibly
burdens the NLRA rights of employees in petitioner’s
position in two ways. First, it denies only employees
“who exercise their federal labor rights” the benefits
of respondent’s pursuit of their state labor law
claims free of charge. Jd. at 20a. Second, it impedes
unionization efforts by giving employers a plausible
basis for telling employees during election campaigns
that if they “vote for the union,” then “the state
Labor Commissioner [will] abandon[] you.” IJd. at
21a & n.2.

10

SUMMARY OF ARGUMENT

1. Section 7 of the National Labor Relations Act
(NLRA), 29 U.S.C. 157, guarantees employees the
right to bargain collectively, and Section 8(a) (1),
29 U.S.C. 158(a) (1), protects employees from coer-
cion in the exercise of that right. This Court has
held that state action that impairs rights guaranteed
by the NLRA—including the right to bargain col-
lectively—is barred by direct operation of the Su-
premacy Clause. See Golden State Transit Corp. v.
City of Los Angeles, 493 U.S. 103, 109 (1989)
(Golden State II) ; Nash v. Florida Industrial Comm’n,
389 U.S. 235 (1967); see also Brown v. Hotel Em-
ployees, 468 U.S. 491, 503 (1984); Hill v. Florida,
325 U.S. 538 (1945). In Golden State II, supra, this
Court further held that 42 U.S.C. 1983 provides em-
ployees with a remedy for the State’s deprivation of
federal rights guaranteed under the NLRA.

In accordance with these principles, petitioner in
this case has a valid claim for relief under Section
1983, arising from respondent’s refusal to enforce her
state wage-and-hour claim. In applying Section 229
of the California Labor Code, respondent has adopted
a general policy of not enforcing certain wage-and-
hour claims of employees covered by collective bar-
gaining agreements containing an arbitration clause,
while at the same time enforcing similar claims of
employees who are not covered by such agreements.
See Pet. App. 25a. Because the policy goes beyond
the requirements of federal labor law preemption,
and effectively interferes with employees’ rights to
bargain collectively, it gives rise to a cause of action
under Section 1983 for the impairment of rights
guaranteed by the NLRA.

ll

2. Section 229 of the California Labor Code states
that respondent may not enforce claims involving
“any dispute concerning the interpretation or appli-
cation” of any collective bargaining agreement con-
taining an arbitration clause. See Pet. 3. Contrary
to respondent’s submission, see Pet. App. 8a, enforc-
ing state wage claims such as petitioner’s would not
require respondent to interpret Section 229 of the
California Labor Code in a manner that is inconsist-
ent with principles of preemption under Section 301
of the Labor-Management Relations Act (LMRA), 29
U.S.C. 185. Petitioner’s claim is not preempted by
Section 301 because the disposition of her claim turns
on whether petitioner received her final wage pay-
ment on time—an issue that can be resolved without
referring to any term of the collective bargaining
agreement covering petitioner. See Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202, 220 (1985); Lingle v.
Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409-
410 (1986). Moreover, as this Court made clear in
Lingle, 486 U.S. at 413 n.12, the fact that it might
be necessary to refer to the collective bargaining
agreement to determine the amount of wages due pe-
titioner as a remedy for her employer’s violation of
the state wage-and-hour laws would not require pre-
emption of her state-law claim.

3. In refusing to enforce late-payment claims
such as petitioner’s, where that policy is not required
by federal law, respondent in effect treats a category
of employees covered by collective bargaining agree-
ments with arbitration clauses less favorably than
other employees. That practice impermissibly bur-
dens the exercise of Section 7 rights by systemati-
cally depriving employees who exercise those rights

12

of the benefit, which other employees enjoy, of having
respondent press their state-law wage claims free
of charge. The fact that the discriminatory policy
might be characterized as arising from a good faith
“error” in applying a state statute that purports to
coincide with the scope of federal preemption does
not affect the analysis. Whatever the motive for the
policy, its effect is to impair employees’ federal rights
by selectively treating some categories of workers
covered by collective agreements less favorably than
employees not so covered. Moreover, the fact that
respondent’s refusal to enforce petitioner’s claim
might stem from an incorrect application or interpre-
tation of a state statute does not foreclose relief
under 42 U.S.C. 1983. See Nash v. Florida Industrial
Comm’n, supra; Golden State 11, supra. Regardless
of whether petitioner might be able to obtain enforce-
ment of her state-law claim by seeking a writ of
mandate in California state court, she is entitled
to sue directly for relief in federal court for the
impairment of her Section 7 rights. As this Court
held in McNeese Vv. Board of Educ., 373 U.S. 668,
671 (1963), the availability of a remedy under Sec-
tion 1983 for a violation of federal rights “may not
be defeated because relief was not first sought under
state law which provided a remedy.”

13
ARGUMENT

PETITIONER IS ENTITLED TO RELIEF UNDER 42
U.S.C. 1983 FOR RESPONDENT'S INTERFERENCE
WITH HER RIGHT TO BARGAIN COLLECTIVELY
UNDER SECTION 7 OF THE NLRA BY REFUSING
TO ENFORCE HER STATE WAGE CLAIM

Section 7 of the National Labor Relations Act
(NLRA), 29 U.S.C. 157, guarantees employees the
right to bargain collectively, and Section 8(a)(1),
29 U.S.C. 158(a) (1), makes it an unfair labor prac-
tice for an employer to coerce employees in the exer-
cise of that right. This Court has recognized, how-
ever, that the NLRA confers rights “generally on
employees and not merely as against the employer.”
Golden State Transit Corp. v. City of Los Angeles,
493 U.S. 103, 109 (1989) (Golden State 11) (NLRA
“creates rights in labor and management both
against one another and against the State.”). There-
fore, state action that impairs rights guaranteed
under the NLRA—including the right to bargain
collectively—is barred by direct operation of the
Supremacy Clause. See Nash v. Florida Industrial
Comm’n, 389 U.S. 235 (1967); see also Brown v.
Hotel Employees, 468 U.S. 491, 503 (1984); Hill v.
Florida, 325 U.S. 538 (1945). For example, in Nash,
the Florida Industrial Commission interpreted a state
law that barred individuals unemployed due to a labor
dispute from receiving unemployment benefits as ap-
plying to any individual who filed an unfair labor
practice charge with the National Labor Relations
Board. The Court found that the manner in which
the State applied the “labor dispute” disqualification
imposed a “financial burden” that, “like the coercive
actions which employers and unions are forbidden to

14

engage in,” had a “direct tendency to frustrate the
purpose of Congress to leave people free to make
charges of unfair labor practices to the Board.” 389
U.S. at 239. It therefore concluded that the Florida
law, as applied, violated the Supremacy Clause be-
cause the State could not “defeat or handicap a valic
national objective by threatening to withdraw state
benefits from persons simply because they cooperate
with the Government’s constitutional plan.” /bid.

The Court further held, in Golden State 11, that
42 U.S.C. 1983 provides employees with a remedy for
the State’s deprivation of federal rights guaranteed
under the NLRA. If a state statute or policy inter-
feres with conduct that is protected by the NLRA,
then “pre-emption follows ... as a matter of sub-
stantive right,” 493 U.S. at 110 (quoting Brown V.
Hotel Employees, 468 U.S. at 503), and any affected
employee may obtain relief under Section 1983 for
interference with his federal statutory rights. Golden
State I], 493 U.S. at 109 (NLRA gives employees
“rights enforceable against governmental interference
in an action under [Section] 1983”).

It follows, in our view, that petitioner has a valid
claim for relief under Section 1983, arising from re-
spondent’s refusal to enforce her wage-and-hour
claim. In applying Section 229 of the California
Labor Code, respondent has adopted a general policy
of not enforcing certain wage-and-hour claims of
employees covered by collective bargaining agree-
ments containing an arbitration clause, while at the
same time enforcing similar claims of employees that
are not covered by such agreements. See Pet. App.
25a. As explained more fully below, that categorical
policy is not required by principles of federal labor
law preemption under Section 301 of the Labor-

15

Management Relations Act (LMRA), 29 U.S.C. 185.
Because the policy goes beyond what preemption re-
quires, and systematically operates to the detriment
of employees covered by collective bargaining agree-
ments (in comparison with other employees), it effec-
tively interferes with employees’ rights to bargain
collectively under the NLRA. It therefore is barred
by the Supremacy Clause, and gives rise to a cause
of action under Section 1983 for the impairment of
rights guaranteed by the NLRA.*

* Petitioner asserts (Pet. 7-8, 11) that the governmental
action in this case, as in Golden State Transit Corp. v. City
of Los Angeles, 475 U.S. 608 (1986) (Golden State 1), impli-
cates Machinists preemption. See also Pet. App. 37a-38a
(district court opinion). Machinists preemption precludes
States from regulating in areas that Congress intended to be
“free from all reguiations, whether state or federal.” Building
& Constr. Trades Council v. Associated Builders & Contractors
of Massachusetts/Rhode Island, Inc., 113 S. Ct. 1190, 1195
(1993); see also Metropolitan Life Ins. Co. v. Massachusetts,
471 U.S. 724, 749-751 (1985); Lodge 76, Int’l Ass'n of Ma-
chinists V. Wisconsin Employment Relations Comm’n, 427
U.S. 132 (1976). However, the state action in this case is
barred not because it intrudes into an area that Congress
intended to leave unregulated, but because “of an actual con-
wed _ [Section] 7.” Brown v. Hotel Employees, 468 U.S.
a ;

In any event, it is immaterial to our analysis whether the
state action here is preempted because of an actual conflict
with Section 7 or based on principles of preemption articu-
lated in the Machinists case. In Golden State II, the Court
explained that a Section 1983 suit could be predicated, as here,
on state interference with rights “explicitly set forth in [Sec-
tion] 7,” or, as in Golden State I, on state interference with
“the right to make use of ‘economic weapons,’ not explicitly
set forth in the [NLRA], free of governmental interference.”
493 U.S. at 110-111.

16

A. Respondent’s Practice Of Refusing To Enforce State
Wage Claims Such As Petitioner's Is Not Required
By Principles Of Federal Labor Law Preemption And
Interferes With Employees’ Rights To Bargain Col-
lectively

1. Enforcement of petitioner’s claim is not preempted
by Section 301 of the LMRA

Before the district court in this case, both parties
agreed that respondent’s policy was to enforce Sec-
tions 201 and 203 of the California Labor Code “for
all employees except for those whose work is gov-
erned by [collective bargaining agreements] contain-
ing binding arbitration clauses.” Pet. App. 25a. Re-
spondent explains that the systematic policy of not
enforcing wage-and-hour claims of workers covered
by such contracts results from interpreting Section
229 of the California Labor Code in a manner that
is “required under federal law.” See Resp. Supple-
mental Brief in Reply to Brief for the United States
as Amicus Curiae 4 [hereinafter Resp. Supp. Br.].
Section 229 of the California Labor Code states that
respondent may not enforce claims involving “any
dispute concerning the interpretation or application”
of any collective bargaining agreement containing an
arbitration clause. See note 2, supra. Pet. App. 8a.
Respondent contends that the scope of the Section
229 bar, as construed by the California Division of
Labor Standards Enforcement (DLSE), is consistent
with, and required by, the preemptive force of Sec-
tion 301 of the LMRA, 29 U.S.C. 185, as interpreted
by this Court. See Allis-Chalmers Corp. v. Lueck,
471 U.S. 202, 220 (1985); Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 409-410 (1986).
According to respondent, claims for late payment of
wages upon termination of employment are included

17

in the category of preempted claims that are unen-
forceable under state law, because determining the
amount due the employee as a result of the employ-
er’s violation always requires reference to the rate of
pay established by the agreement. Cf., e.g., Pet. App.
8a, 26a, 43a; Resp. Supp. Br. 4-5, 6 n.4. Respondent
explains that, under Section 203 of the California
Labor Code, the wages due an employee who has not
been timely paid continue at the “same rate” until
paid; in order to establish that rate and the amount
due, “it is necessary to look to the collective bargain-
ing agreement and ‘apply’ that agreement.” Pet.
App. 8a. Since resolution of late-payment claims re-
quires both “application” and “interpretation” of the
collective bargaining agreement, those claims are
preempted under Section 301 of the LMRA.
Respondent errs in concluding that wage-and-hour
claims such as petitioner’s are preempted by Section
801 of the LMRA. In Lingle, 486 U.S. at 409-410.
this Court ruled that a state-law claim is preempted
under Section 301 only if resolution of the claim in-
volves interpreting a collective bargaining agree-
ment.® See also Allis-Chalmers Corp. v. Lueck, 471
U.S. at 220 (preemption applies when “resolution of

* The Lingle Court held that a state tort claim of retaliatory
discharge was not preempted, even though the employee in
Lingle was covered by a collective bargaining agreement con-
taining a “just cause” discharge clause, because resolution of
the claim involved “purely factual questions” pertaining to
the conduct of parties and “d[id] not require construing the
collective-bargaining agreement.” 486 U.S. at 407. The Court
explained that Section 301 preemption “merely ensures that
federal law will be the basis for interpreting collective-
bargaining agreements, and says nothing about the substan-
tive rights a State may provide to workers when adjudication
of those rights does not depend upon the interpretation of
such agreements.” Jd. at 409.

18

a state-law claim is substantially dependent upon
analysis of the terms of an agreement made between
the parties in a labor contract’). As the district
court and the dissenting judge in the court of ap-
peals correctly observed (Pet. App. 19a, 41a), it is
not necessary to refer to the collective bargaining
agreement to determine whether petitioner’s late pay-
ment claim has merit. Rather, it is possible to de-
termine whether Safeway violated its state-law obli-
gation to make prompt payment of wages at termi-
nation without referring to the collective bargaining
agreement at all. Both parties agreed on the amount
that petitioner had earned and was due to be paid;
the only disagreement concerned the timing of the
payment. Thus, the liability determination in this
case does not turn on any dispute about the precise
amount of wages due petitioner, or about how her
wages should be calculated under terms of the collec-
tive bargaining agreement governing rate of pay.°

* That is not to say that there could never be any disputes
arising under the California Labor Code provisions governing
wages and hours that would be preempted under Section 301.
For example, this case is arguably distinguishable from
Plumbing, Heating & Piping Employers Council v. Howard,
126 Cal. Rptr. 406 (Cal. Ct. App. 1975), in which the Cali-
fornia Court of Appeal held that Section 229 of the Labor
Code precluded the California Labor Commissioner from en-
forcing a claim for wages that arose from a dispute over
whether a journeyman plumber was entitled to receive a fore-
man’s rate of compensation for his work on a construction
job. There were two collective bargaining agreements in that
case that set forth the conditions under which a worker quali-
fied as a foreman entitled to a foreman’s rate of pay. The
contracts apparently had to be “interpreted” and “applied,”
within the meaning of Lingle, supra, to resolve the merits of
the claim. First, it was necessary to decide which contract

19

Moreover, and contrary to respondent’s assump-
tion, the mere fact that it might be necessary to refer
to the collective bargaining agreement to determine
the amount of wages due an employee as a remedy
for a violation of the state wage-and-hour laws would
not require preemption of the claim. Cf., e.g., Pet.
App. 8a, 26a, 43a; Resp. Supp. Br. 4-5, 6 n.4. As
Lingle made clear, 486 U.S. at 413 n.12:

A collective-bargaining agreement may, of
course, contain information such as rate of pay
and other economic benefits that might be helpful
in determining the damages to which a worker
prevailing in a state-law suit is entitled.

In such a case, federal law would govern the inter-
pretation of the agreement, but “the separate state-
law analysis would not be thereby pre-empted.” Lin-
gle, 486 U.S. at 413 n.12. See also Allis-Chalmers
Corp. v. Lueck, 471 U.S. at 211 (“not every dispute
* * * tangentially involving a provision of a collec-
tive-bargaining agreement * * * is pre-empted by
[Section] 301”).’

applied to the particular job on which the plumber was work-
ing. Then it was necessary to interpret the applicable con-
tract to determine whether he qualified as a foreman, which
in turn determined whether the employer had paid the claim-
ant at the correct rate.

* Nor, contrary to respondent’s contention (Br. in Opp. 6-7
& n.9; Resp. Supp. Br. 4-5, 6 n.4), was it necessary to inter-
pret the collective agreement to determine whether Safeway’s
refusal to pay petitioner upon her discharge was “willful.”
Safeway did not refuse prompt payment because of a dis-
agreement over what was owed petitioner, but simply because
it preferred to mail her a check. Pet. App. 2a. In any event,
whether there exists a “good faith dispute” concerning
whether payment is due that precludes imposition of waiting

20

Allowing limited reference to the collective bar-
gaining agreement in establishing the damages due
on a state-law claim is not inconsistent with the ra-
tionale underlying federal preemption of claims un-
der Section 301 of the LMRA. Preemption seeks to
preserve interpretative uniformity and predictabil-
ity, as well as the role of arbitration, in resolving
contract disputes. It does so by requiring that dis-
putes over the meaning of contract terms be resolved,
in the first instance, through arbitration and by ap-
plying federal law. See Local 174, Teamsters v.
Lucas Flour Co., 369 U.S. 95, 103-104 (1962); Lin-
gle, 486 U.S. at 410-411. Looking to a collective bar-
gaining agreement for the sole purpose of obtaining
information on peripheral issues such as “rate of pay
and other economic benefits that might be helpful in
determining the damages to which a worker prevail-
ing in a state-law suit is entitled” (Lingle, 486 U.S.
at 413 n.12) does not create the same threat of dis-
uniformity, uncertainty, and avoidance of arbitra-
tion that would be presented by allowing state courts
to interpret substantive contract terms to determine
the parties’ respective rights and responsibilities un-
der the contract, or the existence of liability under
state law.

2. Respondent’s refusal to enforce petitioner’s wage
claim interferes with the exercise of her rights
under Section 7 of the NLRA regardless of whether
it results from an “erroneous” or overly broad
application of state law

As explained above, respondent is mistaken in his
assumption that, in refusing to enforce petitioner’s
wage claim, he is applying Section 229 of the Cali-

time penalties under California Labor Code Section 203 is a
question of state law that can be determined without inter-
preting the terms of the collective agreement.

ee

21

fornia Labor Code in a manner that coincides with
the scope of federal preemption under Section 301 of
the LMRA. Section 301 does not preempt late-
payment claims such as petitioner’s, and does not re-
quire that respondent refrain from enforcing such
claims under state law.

Although a State would be entitled to adopt a rule
of refusing to process claims that come within the
scope of this Court’s doctrine of federal labor law
preemption under Section 301 of the LMRA, as artic-
ulated in Lingle, supra, and other cases, respondent
simply does not follow such a practice here. Re-
spondent has in fact adopted a general rule in apply-
ing Section 229 of the California Labor Code that
exceeds the scope of federal preemption: he does not
enforce certain categories of wage-and-hour claims
of individuals covered by collective bargaining agree-
ments containing an arbitration clause, even where,
as here, those claims do not require an interpretation
of the collective bargaining agreement under this
Court’s decisions. By categorically refusing, without
any valid justification, to enforce some types of
claims of individuals covered by collective bargaining
agreements containing an arbitration clause, while
at the same time enforcing similar claims for the
benefit of other employees not covered by such agree-
ments, the State has in effect discriminated against
the former employees based on the exercise of their
rights under the NLRA. As the dissent correctly
noted, respondent’s refusal to enforce wage-and-hour
claims under these circumstances impermissibly bur-
dens the NLRA rights of employees in petitioner’s
position in two ways. First, it denies only employees
“who exercise their federal labor rights” to negotiate
a collective agreement with an arbitration clause the
benefit of having the Commisioner press their state-

22

law wage claims for them free of charge. Pet. App.
20a. Second, it impedes the efforts of employees to
unionize by giving employers a plausible basis for
telling employees during election campaigns that i
they “vote for the union,” then “the state Labor
Commissioner [will] abandon[] you.” Jd. at 21a
& n.2.

The fact that the discrimination might be charac-
terized as arising from a good faith “error” in apply-
ing a state law or policy that purports to coincide
with the scope of federal preemption does not affect
the analysis in this case. For the error, which is
based on a misconception of the requirements of fed-
eral law, results in withdrawing important state pro-
tections from an entire group of employees who dif-
fer from protected employees only in having exer-
cised their federally guaranteed rights.* Although the
policy might not have been formulated with the ex-
press purpose of “discriminating” against workers
who have chosen to be covered by a collective bar-
gaining agreement, it nevertheless has the effect of
impairing employees’ federal rights by selectively
treating some categories of workers covered by col-
lective agreements less favorably than employees not
so covered.

The preemption rationale for DLSE’s policy, as
interpreted by the court of appeals, might conceivably
permit the Commissioner to pursue some wage-and-

8’ Many States have statutes similar to that of California.
See individual Employment Rights Manual, 9A Lab. Rel. Rep.
(BNA) No. 60, at 519:107 (1990). The purpose of such
statutes is to protect lower-wage workers who live from pay-
check to paycheck and cannot afford the uncertainty of wait-
ing weeks after termination until their employer decides to
make a final payment of wages due.

oe co _

23

hour claims of individuals covered by collective bar-
gaining agreements.’ Nevertheless, the pattern of
enforcement dictated by such a policy would still
give rise to a cause of action under Golden State
II where, as here, the Commissioner is refusing
to process a category of claims that is not in fact
preempted under a correct reading of federal law.
A policy that systematically results in the enforce-
ment of all otherwise qualified claims of eligible
employees-who are not covered by collective agree-
ments, but of only some claims of employees covered
by such agreements, impermissibly burdens the right
to bargain collectively under the NLRA, because the
precondition for respondent’s less favorable treatment
would be the employee’s exercise of Section 7 rights.
Cf. Phillips v. Martin Marietta Corp., 400 U.S. 542
(1971) (employer’s policy of refusing to hire women
with pre-school-age children while hiring men with
such children constitutes sex discrimination within
the meaning of Title VII of the Civil Rights Act of
1964). That burden is especially pronounced here,
since many collective bargaining agreements that
contain arbitration clauses customarily fix employees’
rate of pay.

® Respondent contends (Br. in Opp. 4 & nn.5, 6) that Sec-
tion 229 would not preclude him from prosecuting claims for
recovery of wages paid by a check returned for insufficient
funds, for recovery of employees’ work tools or damages for
their loss, or for recovery of state-mandated minimum wages.
Also, the Commissioner presumably would take the position
that he would not be barred from pursuing late-payment
claims like petitioner’s on behalf of employees covered by
collective bargaining agreements that do not fix wages.

24

B. Petitioner Has A Cause Of Action Under 42 U.S.C.
1983 For Respondent's Refusal To Enforce Her Wage
Claim Under State Law

The fact that respondent’s actions could arguably
be characterized (see Br. in Opp. 4-8) as stemming
from an erroneous application of a state statute
(which, if correctly applied, would not preclude en-
forcement of petitioner’s claim) does not negate the
violation of petitioner’s Section 7 rights that results
from that erroneous application, nor does it fore-
close relief under Section 1983. In analogous situa-
tions, the courts have found unlawful the application
of a facially valid policy in a manner that abridged
NLRA rights or discriminated against those exercis-
ing such rights.

Thus, in Nash v. Florida Industrial Comm'n,
supra, this Court held that a permissible state
policy of denying unemployment benefits to indi-
viduals unemployed due to a labor dispute could
not be applied to deny such benefits to an individual
simply because she had filed an unfair labor practice
charge with the National Labor Relations Board.
Similarly, in United Steelworkers vy. Johnson, 830
F.2d 924 (8th Cir. 1987) (en banc), the court en-
joined a state official from denying unemployment
benefits to union employees while granting benefits
to their non-union coworkers in connection with the
same labor dispute. The court acknowledged that the
state statute, which prescribed an “able and willing
to work” eligibility standard for unemployment bene-
fits, was valid and could be applied to employees
participating in a labor dispute, but it nonetheless
held that the State had “failed to apply this test in
a neutral, nondiscriminatory manner” by presuming
that no union members, as opposed to non-members,

ee eee

25

would be willing to work despite the labor dispute.
830 F.2d at 928-929. Finally, in Rum Creek Coal
Sales, Inc. vy. Caperton, 971 F.2d 1148 (4th Cir.
1992), the court enjoined the State’s policy of not
arresting picketers trespassing on a coal mine oper-
ator’s property during a strike. The court acknowl-
edged that the State’s “Neutrality Statute,” which
barred the state police from “aid[ing] or assist[{ing]
either party” to “any labor trouble or dispute be
tween employer and employee,” placed a facially
neutral and permissible condition upon the ability
of the parties to a labor dispute to claim the services
of the state police. 971 F.2d at 1150, 1154. It none-
theless held that, by interpreting the Neutrality
Statute as requiring state officials to allow strikers
to “prevent{] ingress and egress into [private]
property,” the State applied the statute in a manner
that undermined the coal company’s “rights to stay
in business and withstand a strike,” which were
guaranteed under federal law. /d. at 1154.

These cases illustrate that the court of appeals
was simply mistaken in stating that “[a] misinter-
pretation of a perfectly valid state statute * * *
does not provide grounds for federal relief.” Pet.
App. 12a. And, as this Court’s decision in Golden
State II makes clear, if the misinterpretation of a
facially valid state statute leads to the adoption of
a policy that interferes with employees’ exercise of
rights under the NLRA, that interference would pro-
vide grounds for federal relief under Section 1983.

Finally, the court of appeals advanced two insub-
stantial reasons for concluding that, even if the Com-
missioner had misapplied Section 229 of the Cali-
fornia Labor Code in refusing to enforce a claim
that was not preempted under federal law, petitioner

26

would still have no cause of action under Section
1983. First, the court reasoned that, “[g]iven the
primacy of the federal scheme for handling labor
disputes,” Congress “would not want state officials
erring on the side of adjudicating state law disputes
whenever it is a close call as to whether a claim is
preempted.” Pet. App. 14a. Rather, the court con-
cluded, “Congress would presumably want state offi-
cials to defer to arbitration and adjudication under
the federal scheme if a claim even arguably is inter-
twined with consideration of a collective bargaining
agreement containing an arbitration clause.” Ibid.
As the dissent correctly responded (id. at 18a), how-
ever, “[t]o the extent my colleagues are divining
some preemptive corona surrounding the federal
labor laws, it surely cannot include that which the
Supreme Court has said is not preempted.” This
Court in Lingle and other cases has made clear that
a state-law claim is preempted under Section 301 of
the LMRA only if resolution of the claim in fact
requires interpreting a collective bargaining agree-
ment. See pages 17-18, supra; see also Franchise Tax
Board y. Construction Laborers Vacation Trust, 463
U.S. 1, 25 n.28 (1983) (“we have never intimated
that any action merely relating to a contract within
the coverage of [Section] 301 arises exclusively under
that section”). In this respect, preemption under
Section 301 is more restrictive than preemption
under the doctrine of San Diego Building Trades
Council v. Garmon, 359 U.S. 236, 245 (1959) (state
jurisdiction must yield over activities that are
“arguably” protected or prohibited by the NLRA).
To permit Section 301 to preempt state wage-and-
hour claims that do not, in fact, require interpreta-
tion of the terms of a collective bargaining agree-

ee ee ee ee

ee ee oe We

27

ment would advance none of the purposes the pre-
emption doctrine is designed to serve, see page 20,
supra, and thus would result in an unjustified dis-
crimination against unionized employees who are
covered by collective bargaining agreements.
Second, the court of appeals erred in concluding
that petitioner could not sue for relief under Section
1983 because a remedy for respondent’s allegedly er-
roneous application of state law to bar enforcement of
her claim was available elsewhere: petitioner should
have sought a writ of mandate against respondent in
the California courts. Pet. App. 12a. As an initial
matter, it is unclear whether the California courts
would interpret Section 229 of the California Labor
Code in a way that vindicates petitioner’s rights un-
der Section 7 of the NLRA. Section 229, on its face,
prevents the Labor Commissioner from exercising
jurisdiction over claims requiring the “interpretation
or application of any collective bargaining agree-
ment” containing an arbitration clause. See Resp.
Supp. Br. 5-6. There is no assurance that the Cali-
fornia courts would reject the Commissioner’s ad-
ministrative interpretation of that unqualified statu-
tory language and would instead interpret it as
covering only those claims that are preempted by
Section 301 of the LMRA under principles set forth
in Allis-Chalmers and Lingle. But, in any event, this
Court has specifically recognized that Section 1983
was enacted “to provide a remedy in the federal
courts supplementary to any remedy any State might
have.” McNeese v. Board of Educ., 373 U.S. 668,
672 (1963). Therefore, the availability of relief
under Section 1983 for a violation of federal rights
“may not be defeated because relief was not first
sought under state law which provided a remedy.”

28

Id. at 671. Accord Damico vy. California, 389 U.S.
416, 416-417 (1967) (per curiam); Houghton v.
Shafer, 392 U.S. 639, 639-641 (1968) (per curiam).
See Monroe v. Pape, 365 U.S. 167, 183 (1961); cf.
id. at 224-225 (Frankfurter, J., dissenting in part)
(taking the position, rejected by the majority in that
case, that the availability of a civil remedy under
state law should bar relief under Section 1983); see
also Adickes v. S.H. Kress & Co., 398 U.S. 144,
167-168 (1970) (Section 1983 relief available for
discriminatory practices of state officials, “[a]lthough
not authorized by written law’); Monell v. Depart-
ment of Social Services, 436 U.S. 658, 690-691 (1978)
(same). It follows that petitioner stated a valid claim
under Section 1983 and is entitled to appropriate
relief.
CONCLUSION

The judgment of the court of appeals should be
reversed.

Respectfully submitted.
Drew S. Days, III
Solicitor General
DANIEL SILVERMAN LAWRENCE G. WALLACE
Acting General Counsel Deputy Solicitor General
LINDA SHER Amy L. WAX
Acting Associate General Assistant to the Solicitor
Counsel General
NORTON J. COME
Deputy Associate
General Counsel
National Labor
Relations Board
MARCH 1994

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0402%3A12. Public record. Not legal advice.