# Petition for Writ of Certiorari — Hart v. Stockmar Energie, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 512 U.S. 1216

## Text

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IN THE

Supreme Court of the Vuited States

OCTOBER TERM, 1993

JOHN J. HART,
Petitioner,
Vv.

STOCKMAR ENERGIE, INCORPORATED,
d/b/a L.F.C. POWER CORPORATION,
Respondent.

Petition for a Writ of Certiorari to the
Superior Court of the State of California
in and for the County of Sacramento
Appellate Department

PETITION FOR A WRIT OF CERTIORARI

LAURENCE J. COHEN
VICTORIA L. Bor *

SHERMAN, DUNN, COHEN,
LEIFER & YELLIG, P.C.

1125 Fift. anth Street, N.W.

Suite 801

Washington, D.C. 20005

(202) 785-9300

Attorneys for Petitioner
* Counsel of Record

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

@ <I co

X,

QUESTION PRESENTED

In ruling that Section 301 of the Labor-Management
Relations Act, 29 U.S.C. § 185, pre-empts application of
the California wage-and-hour law to employees working
under collective bargaining agreements, did the Superior
Court for the State of California; in and for the County
of Sacramento, Appellate Department, deprive petitioner
of rights guaranteed him under Section 7 of the National
Labor Relations Act, 29 U.S.C. § 157?

it |

ii
PARTIES TO THE PROCEEDINGS BELOW

All parties to the proceedings in the courts below are
listed in the caption.

TABLE OF CONTENTS

Page

OPINIONS BELOW ............ ne 1
hile nliilininnsiiesensienmetsesnetdinentiinnsetans 2
STATUTORY PROVISIONS INVOLVED ........ 2
STATEMENT OF THE CASE 022 2oo.n......2..-..se-seess-e-- 3
ee 3
SE 5
REASONS FOR GRANTING THE WRIT... 7
EE ee 16

(iii)

iv

TABLE OF AUTHORITIES

CASES Page
Alexander v. Gardner-Denver Co., 415 U.S. 36
EEO ee Se TTR ss CPN ERE To 11
Allis-Chalmers Corporation v. Lueck, 471 U.S. 202
RE PU OR Ee oe a ee 8,9
Barrentine v. Arkansas-Best Freight System, Inc.,
gS Re 0 Pe ee ee 9,11

Caterpillar, Inc. v. Williams 482 U.S. 386 (1987).. 9
Commodore v. University Mechanical Contractors,

Inc., 120 Wash. 2d 120, 839 P.2d 314 (1992)... 8
Electrical Workers v. Hechler, 481 U.S. 851

8 | RS PR SERA” SL a 9
Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S.

Ee: ; esters eee 10, 11, 14-18
Galvez v. Kuhn, 933 F.2d 773 (9th Cir. 1991) -....... 8
Knudson v. Superior Court, 267 Cal. App. 2d 876,

73 Cal. Rptr. 513 (4th Dist. 1968) 7
Lingle v. Norge Division of Magic Chef, Inc., 486

es I ail ac cnc ccceeepingnevestapanecithdicinnssene 8

Livadas v. Aubry, 749 F. Supp. 1526 (N.D. Cal.
1990), rev’d, 943 F.2d 1140 (9th Cir. 1991),
petition for cert. filed, 61 U.S.L.W. 3836 (June

Se Cs aii rtiticieietinctinenerentenannn passim
Machinists v. Wisconsin Employment Relations

Commission, 427 U.S. 1382 (1976) ..........---0-.. 10, 15
Metropolitan Life Insurance Co. v. Commonwealth

of Massachusetts, 471 U.S. 724 (1985) —.........-. passim
Nash v. Florida Industrial Commission, 389 U.S.

Ms TR ia BRR” “EN aL see 11-12
Rum Creek Coal Sales v. Caperton, 971 F.2d 1148

A a eaiiemate 9,12
Simon v. Superior Court, 4 Cal. App. 4th 63, 5

- 8 fF eee 7
Steelworkers v. Johnson, 830 F.2d 924 (8th Cir.

alta 9, 12-13
Teamsters v. Lucas Flour, 369 U.S. 95 (1962)........ 9

STATUTES

I i call 2

National Labor Relations Act, 29 U.S.C. § 157 __.... passim

Vv

TABLE OF AUTHORITIES—Continued

Page
National Labor Relations Act, 29 U.S.C. § 158 _........ 7,11
Labor Management Relations Act, 29 U.S.C. §185.. 6,7
1 aca cic ccconsusiinsnehaeminernatiniidecss 5
i a a nn cnetanmelinsenine 7
Cal. Civ. Proc. Code § 1086 ........................000.....000....... 7
os scesaiateceicaabbidaiamebaieies 5
— § ES ee 4, 5,10, 15
i ans nsnccnntntmenncnsenntguannsingennial passim
Cal. Lab. Code § 208 ....... sdenlidnagescaniinaneanabeoningtaaaaas 5
IT ssicalasboeapbenbaiesinaeeiueal 5, 6, 7,16
. A, RRNA eee Re ae APTS om 12

MISCELLANEOUS

Note, The Need for a New Approach to Federal
Preemption of Union Members’ State Law
Claims, 99 Yale L.J. 209 (1989) 8

Supreme Court uf the Auited States

OctToBer Term, 1993

No.

Joun J. Hart,

¥. Petitioner,

STOCKMAR ENERGIE, INCORPORATED,
d'b/a L.F.C. Power CorPORATION,

Respondent.

Petition for a Writ of Certiorari to the
Superior Court of the State of California
in and for the County of Sacramento

Appellate Department

PETITION FOR A WRIT OF CERTIORARI

Petitioner John J. Hart prays that the Court issue a
writ of certiorari to the Superior Court of the State of
California, in and for the County of Sacramento, Appel-

late Department.
OPINIONS BELOW

The decision of the Sacramento Municipal Court is set
forth at pages la to 9a of the Appendix (App. 1a-9a).
The ruling of the Superior Court of the State of Califor-
nia, in and for the County of Sacramento, Appellate De-
partment, reversing the Municipal Court, is set forth at
App. 10a, and the Superior Court's decision on petition

the Third Appellate District, denying petitioner's petition
for writ of mandate, is set forth at App. 13a. The order

the Supreme Court of the State of California, denying
petitioner's petition for review, is set forth at App. 14a.
None of these decisions or orders has been officially re-

JURISDICTION

The Superior Court of the State of California, in and
for the County of Sacramento, Appellate Department,
entered its ruling on petition for rehearing, reversing the
trial court and finding the petitioner's claim pre-empted by
federal law, on October 13, 1992. On January 28, 1993,
the Court of Appeal of the State of California denied

itioner’s writ of mandate, and on March 17, 1993,
the California State Supreme Court issued its order deny-
ing petitioner's petition for review of the Court of Appeal
order. On June 9, 1993, the Honorable Justice Sandra
Day O'Connor issued an order granting petitioner a
thirty-day extension of time, until July 15, 1993, in which
to file this petition for writ of certiorari. This Court has
jurisdiction over this petition pursuant to 28 U.S.C.
§ 1257(a).

STATUTORY PROVISIONS INVOLVED

Section 7 of the National Labor Relations Act, 29
U.S.C. § 157, provides in relevant part:

Employees shall have the right of self-organization,

to form, join, or assist labor organizations, to bar-

gain collectively through representatives of their own

ing, and to engage in other concerted activities

for the purpose of collective bargaining or other
mutual aid or protection * * *.

Section 301(a) of the Labor-Management Relations

Act, 29 U.S.C. § 185(a), provides:
Suits for violation of contracts between an employer
and a labor organization representing employees in

ei, |

3

an industry affecting commerce as defined in this
Act, or between any such labor organizations, may
be brought in any district court of the United States
having jurisdiction of the parties, without respect to
the amount in controversy or without regard to the
citizenship of the parties.

Cal. Lab. Code § 201 provides in relevant part:

If an employer discharges an employee, the wages
earned and unpaid at the time of discharge are due
and payable immediately.

Cal. Lab, Code § 203 provides in relevant part:

If an employer willfully fails to pay, without abate-
ment or reduction, in accordance with Sections 201,
201.5, and 202, 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 or until an action therefor
is commenced; but such wages shall not continue for
more than 30 days.

Cal. Lab. Code § 229 provides:

Actions to enforce the provisions of this article for
the collection of due and unpaid wages claimed by
an individual may be maintained without regard to
the existence of 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.

STATEMENT OF THE CASE

A. Facts

Petitioner John Hart is a construction electrician. Be-
tween May 16 and August 29, 1988, Respondent Stock-
mar Energie, doing business as L.F.C. Power Systems
Corp. (“LFC”), employed Hart under a collective bar-
gaining agreement between the company and the National

a ae

'

4

Industrial Union (“NIU”).’ On August 29, LFC’s field
supervisor, Don Morrell, terminated Hart, and presented
him with a check for wages owed through the time of his
termination. Upon receiving the check, Hart pointed out
to Morrell that he had worked one hour of overtime dur-
ing the preceding pay-period which was not reflected in
the paycheck, and that he was therefore entitled to more
money. App. 5a.

The California Labor Code requires an employer who
discharges an employee to pay that employee all wages
due at the time of discharge. Cal. Lab. Code § 201. It
further imposes penalties on employers who willfully fail
to make timely payments. /d. § 203.

Two weeks after he was terminated, Hart still had
not received pay for his overtime. At Hart’s request,
Ed Stuart, the NIU Business Manager, filed a grievance
with LFC, seeking both the wages owed for the overtime
work, and “all applicable penalties under state and federal
law.” App. 2a. Stuart met with an LFC representative
on September 26, 1988, and, on October 10, Hart re-
ceived a check from LFC for $27.38 in overtime com-
pensation. NIU declined to process the grievance any
further: there were no provisions in the collective bar-
gaining agreement for penalties for late payments, and
the union had therefore secured all the relief available
through the grievance-arbitration procedure. App. 3a.

Hart then began his attempts to secure § 203 penal-
ties under California law. The California Labor Code
authorizes the state Labor Commissioner to enforce claims
for penalties owed under §§ 201 and 203, on behalf of
employees who are “financially unable to employ counsel
and . .. have claims which are valid and enforceable.”

1 At the time of the events in this case, petitioner Hart was a
member of the NIU. That union subsequently disbanded, App. 3a,
and Hart is now a member of Local 340 of the International Brother-
hood of Electrical Workers, AFL-CIO.

5

Cal. Lab. Code § 98.3(a). Hart filed a claim for penal-
ties with the Labor Commissioner. As a matter of policy,
however, the Commissioner does not process claims
filed by employees working under collective bargaining
agreements, Livadas v. Aubry, 749 F. Supp. 1526, 1528
(N.D. Cal. 1990), rev’d, 943 F.2d 1140 (9th Cir. 1991),
petition for cert. filed, 61 U.S.L.W. 3836 (U.S. June 3,
1993) (No. 92-1920),? and he therefore declined to
process Hart’s claim. App. 3a. Hart subsequently filed a
civil action to collect the penalties in the Sacramento Mu-
nicipal Court.’

B. Proceedings Below.

Hart filed his complaint in the Sacramento Municipal
Court on September 1, 1990. LFC defended on the
grounds, inter alia, that resolution of Hart’s claim re-
quired “the interpretation or application of a collective
bargaining agreement,” and was therefore both barred by
§ 229 of the California Labor Code and preempted by
§ 301 of the Labor Management Relations Act, 29 U.S.C.
§ 185. App. 3a. After trial, Judge John Lewis held, as

2The facts underlying Livadas are almost identical to those
herein. Karen Livadas was terminated from her job, received her
final paycheck three days later, and filed a claim under Labor Code
§§ 201 and 203 with the State Labor Commissioner, who declined
to process it “for the sole reason that she [was] an employee with a
[collective bargaining agreement] containing an arbitration clause.”
749 F. Supp. at 1528. Rather than pursuing her claim in state
court, as did Mr. Hart, Ms. Livadas filed an action in the federal
district court, claiming that the Commissioner’s denial of benefits
interfered with her federal rights under the NLRA, and therefore
violated 42 U.S.C. § 1983. On cross motions for summary judgment,
the district court held that Livadas had stated a claim under § 1983.
749 F. Supp. at 1535. The Ninth Circuit, however, reversed. 943
F.2d at 1147.

3 Section 208 of the California Labor Code, Cal. Lab. Code § 208,
permits individuals to pursue claims to enforce provisions of the
Code in state court. Hart filed his complaint and prosecuted the
action in Municipal Court pro se.

6

a matter of law, that the claim was neither barred by the
statute nor pre-empted by Section 301. App. 4a. He fur-
ther found, on the facts, that LFC had willfully withheld
Hart’s overtime compensation, and awarded Hart penal-
ties totalling $4,380.00. App. 8a-9a. The judge found no
need to apply or interpret the collective bargaining agree-
ment in making these determinations.

LFC appealed the Municipal Court’s decision to the
Appellate Department of the Superior Court of the State
of California. In opposing the appeal, Hart specifically
noted the dangers inherent in finding § 301 to pre-empt
minimum state labor standards. Quoting from Metropoli-
tan Life Insurance Co. v. Commonwealth of Massachu-
setts, 471 U.S. 724, 756 (1985), Hart pointed out that:

[i]t would turn the policy that animated the Wagner
Act on its head to understand it to have penalized
workers who have chosen to join a union by pre-
venting them from benefiting from state labor regu-
lations imposing minimum standards on nonunion
employers.

Respondent’s Opening Brief on Appeal from the Munici-
pal Court of Sacramento County, at 7.

On September 10, 1992, the Superior Court entered an
order, reversing the Municipal Court’s judgment without
explanation. LFC filed a petition for rehearing, requesting
a statement of the rule of law to be applied by the trial
court. The Superior Court granted the petition and en-
tered a new decision, holding that Hart’s claims were
“barred by Labor Code section 229 and pre-empted by
section 301 ....” App. 11a.

Hart sought review of the Superior Court’s decision by
filing a petition for writ of mandate with the California
Supreme Court.‘ The Supreme Court transferred the

4 California does not provide any appeal as of right from the
Superior Court. A litigant seeking relief from a Superior Court
decision may attempt to obtain discretionary review, either through
a court of appeal order, transferring the case “when the superior
court certifies, or the court of appeal determines, that such transfer

7

matter to the Court of Appeals, App. 12a, which denied
the petition for writ of mandate. App. 13a. Hart then
sought review by the State Supreme Court, which that
court denied. App. 14a.

REASONS FOR GRANTING THE WRIT

In crafting doctrines of federal labor pre emption—
under § 301 of the LMRA, and under §§ 7 ana © of the
National Labor Relations Act, 29 U.S.C. §§ 157 and
158—this Court has sought to balance the states’ legiti-
mate local interests in exercising their police powers, and
the federal interest in advancing the various policies em-
bodied in national labor law. Purporting to apply this
Court’s principles governing pre-emption under § 301,
the Superior Court held that provisions of California’s
minimum wage statute were unavailable to the petitioner
solely because he was employed under a collective bar-
gaining agreement.” The court’s decision in this regard—
which “penalized workers who have chosen to join a
union” by withholding the benefits of state labor regula-
tions, Metropolitan Life, 471 U.S. at 756—merits this
Court’s review for two related reasons.

appears necesary to secure uniformity of decision or to settle im-
portant questions of law,” Cal. Civ. Proc. Code § 911; or through
a writ of mandate, Cal. Civ. Proc. Code § 1085. See, Simon v.
Superior Court, 4 Cal. App. 4th 638, 68, 5 Cal. Rptr. 2d 428 (1992);
Knudson v. Superior Court, 267 Cal. App. 2d 876, 880 (1968)
(citing Cal. Code of Civ. Pro. § 988t, precursor to § 911.)

5 Although Cal. Labor Code § 229 and the Commission’s non-
enforcement policy purport to apply when employees work under
bargaining agreements containing arbitration provisions, the fact
is that “[f]ully 96% of [collective bargaining agreements] provide
for arbitration.” Livadas v. Aubrey, 749 F. Supp. at 1533 (citing
Characteristics of Major Collective Bargaining Agreements (U.S.
Dept. of Labor Bull. 2013, 1979), 82.) As a practical matter, the
Commissioner’s policy, endorsed by the Superior Court, thus pre-
cludes virtually all employees working under bargaining agreements
from enjoying the protections of the Labor Code.

8

First, the Superior Court’s ruling conflicts with the
principles articulated by this Court in Allis-Chalmers
Corporation v. Lueck, 471 U.S. 202 (1985), and Lingle
v. Norge Division of Magic Chef, Inc., 486 U.S. 399
(1988), regarding when the resolution of a state claim is
sufficiently “independent” of the collective bargaining
agreement to survive a claim of pre-emption under § 301.
To the extent the court’s error in this regard reflects
lingering confusion within both the federal and state ju-
diciaries in identifying when claims are “intertwined with”
or “independent of” labor agreements,° Allis-Chalmers,
471 U.S. at 212, the California court’s ruling warrants the
Court’s attention.

Moreover, the cavalier treatment of this case by the
Superior Court points up the danger that lurks in leavins
this area confused, for that court’s misapprehensions con-
cerning the reach of § 301 pre-emption threaten to under-
mine fundamental policies embodied in the NLRA, and
thus implicate principles of NLRA pre-emption. The court
understood § 301 to require the state to withhold the
benefits of an otherwise generally-applicable state mini-
mum-standards law to employees covered by a collective
bargaining agreement, without regard to whether that
agreement reaches the subject of the state law. The
California court’s decision disrupts the balance that fed-
eral labor laws seek to maintain, by placing a serious

6The Ninth Circuit has characterized § 301 pre-emption as a
“tangled interplay between federal and state law,” constituting ‘“‘one
of the most confused areas of federal litigation,” Galvez v. Kuhn,
933 F.2d 773, 776 (9th Cir. 1991), while the Supreme Court of
Washington has described this as an area in which “the courts are
still struggling to ascertain when a claim’s resolution actually will
involve interpretation of the collective bargaining agreement.”
Commodore v. University Mechanical Contractors, 120 Wash. 2d
120, 129, 889 P.2d 314, 318 (1992) (emphasis in original). As the
Washington court observed, “Section 301 cases are still far from
uniform or consistent, varying widely in their holdings, even after
Lingle.” Id. See also Note, The Need for a New Approach to
Federal Preemption of Union Members’ State Law Claims, 99 Yale
L.J. 209, 209 (1989) (describing Section 301 preemption as a
“thicket’).

9

impediment in the path of employees’ decisions whether,
and to what extent, to engage in collective bargaining.
In this regard, while it comports with the approach taken
by the Ninth Circuit in Livadas v. Aubry, 943 F.2d 1140,
the Superior Court’s decision directly conflicts with deci-
sions of the Fourth and Eighth Circuits. See Rum Creek
Coal Sales v. Caperton, 971 F.2d 1148 (4th Cir. 1992),
and Steelworkers v. Johnson, 830 F.2d 924 (8th Cir.
1987) (en banc). It accordingly presents an important
issue which should be settled by this Court.

1. In delineating the contours of § 301 pre-emption,
this Court has taken pains to define rules that would
preserve the interests embodied in federal labor policy,
while not subverting rights of states to establish minimum
protections for its citizens. Thus, on the one hand, § 301
pre-emption is invoked to foster the federal interests in
assuring uniform interpretations of collective bargaining
agreements, Teamsters v. Lucas Flour, 369 U.S. 95,
103-04 (1962), and preserving “the central role of arbi-
tration in our ‘system of industrial self-government.’ ”
Allis-Chalmers v. Lueck, 471 U.S. at 219 (quoting Steel-
workers v. Warrior & Gulf Navigation Co., 363 U.S. 574,
581 (1960)). In that respect, claims asserted under
state law will be deemed pre-empted when either “founded
directly on rights created by collective-bargaining agree-
ments, [or] ‘substantially dependent on analysis of a col-
lective-bargaining agreement.’” Caterpillar, Inc. v. Wil-
liams, 482 U.S. 386, 394 (1987) (quoting Electrical
Workers v. Hechler, 481 U.S. 851, 859 n.8 (1987)).

On the other hand, “different considerations apply
where the employee’s claim is based on rights arising out
of a statute designed to provide minimum substantive
guarantees to individual workers.” Barrentine v. Arkansas-
Best Freight System, Inc., 540 U.S. 728, 737 (1981).
This Court has accordingly made clear that it would be
“inconsistent with congressional intent under [§ 301] to
pre-empt state rules that . . . establish rights and obliga-
tions, independent of a labor contract.” Allis-Chalmers,
471 U.S. at 212 (emphasis added).

10

Petitioner’s claim herein is that the California Labor
Code established “rights” for private sector employees
who are terminated from their jobs, and imposed precise
“obligations” on employers, which exist, and are enforce-
able, “independent of a labor contract.” The Labor
Commissioner, and ultimately the Superior Court, viewed
both the state law itself and principles of labor pre-
emption to dictate otherwise. Thus, the Commissioner—
as endorsed by the court—read § 229, the state legisla-
ture’s pre-emption formula, to deprive any employee cov-
ered by a collective bargaining agreement of the protec-
tions of §§ 201 and 203. And the court found that
principles of federal labor law support and demand the
same result.

2. In Fort Halifax Packing Co., Inc. v. Coyne, 482
U.S. 1, 21 (1987), this Court emphasized that “pre-
emption should not be lightly inferred in this area, since
the establishment of labor standards falls within the
traditional police power of the State.” In Fort Halifax,
the state legislature guaranteed minimum benefits to rep-
resented and unrepresented employees alike. The issue
for this Court was whether it was inconsistent with
federal law for the state to exercise its power by pre-
scribing conditions for represented employees which their
unions could otherwise bargain. In the instant case, by
contrast, the state has “lightly inferred’ pre-emption as
a basis for withholding its power from one distinct sector
of the working public: those employees covered by col-
lective bargaining agreements. This case thus presents,
in the starkest terms, the risk to employees’ federally pro-
tected rights when the state erroneously views § 301 as

precluding it from even-handedly utilizing its traditional
police powers.

By misapplying principles of § 301 pre-emption, the
California court has implicated the related, but analytically
distinct, area of “Machinists” pre-emption under the
NLRA.’ As explained in Metropolitan Life v. Massachu-

7 Machinists v. Wisconsin Employment Relations Comm'n, 427
U.S. 182 (1976).

11

setts, 471 U.S. at 749, Machinists pre-emption “protects
against state interference with policies implicated by the
structure of the Act itself, by pre-empting state law and
state causes of action concerning conduct that Congress
intended to be unregulated.”* Understanding that the
NLRA’s primary concern is not with the substantive terms
of a privately-bargained agreement, but instead “with
establishing an equitable process for determining” those
substantive terms, id. at 753, this Court has held that
“{mJinimum state labor standards [that] affect union and
nonunion employees equally . . . neither encourage nor
discourage the collective-bargaining processes that are
the subject of the NLRA.” 7d. at 755 (emphasis added).

Under these principles, this Court has found no in-
consistency between the NLRA and state laws which
specify minimum benefits that either are available to all
employees, id., or are available to all unless the parties
to a collective bargaining agreement agree otherwise,
Fort Halifax Packing, 482 U.S. at 22. See also Barren-
tine v. Arkansas-Best Freight System, 450 U.S. at 745
(no incompatibility between federal law establishing mini-
mum employment standards and NLRA); Alexander v.
Gardner-Denver Co., 415 U.S. 36, 51 (1974). This
Court has, however, found a basic incompatibility between
federal labor policy and a state’s threat to withdraw state
benefits from employees who utilize the instruments of
that policy. Nash v. Florida Industrial Comm'n, 389
U.S. 235 (1967).°

8 While initially used “to determine whether certain weapons of
bargaining neither protected by §7 nor forbidden by § 8(b) could
be subject to state regulation[,]” the doctrine has come to be used
“to determine the validity of state rules of general application that
affect the right to bargain or to self-organization.” Jd. at 750-51
n.27.

® Nash involved Florida's application of its unemployment com-
pensation statute, which disqualified putative recipients for time
when their unemployment was “due to a labor dispute in active
progress.” 389 U.S. at 441. The state unemployment commission
considered an employee to be ineligible under that provision during

12

Three federal courts of appeals have recently considered
whether states may validly withhold the benefits of gener-
ally-applicable laws in ways which impinge on federally-
protected rights. Two of the three courts—the Fourth
and Eighth Circuits—found these state actions to vio-
late federal labor policy, while the Ninth Circuit held
otherwise. The Fourth Circuit case, Rum Creek Coal
Sales v. Caperton, 971 F.2d 1148, involved West Vir-
ginia’s application of its “Neutrality Statute,” W. Va.
Code § 15-2-13, which forbids state officers to “aid or
assist either party . . . in any labor trouble or dispute
between employer and employee ... .” 971 F.2d at
1150-52. The state police officially understood the stat-
ute to require them to refrain from providing even their
usual measure of protection during a labor dispute, and
during a coal mine strike, the police accordingly refused
to arrest picketers trespassing on mine property. While
acknowledging that the Neutrality Statute was facially
valid, the Fourth Circuit held that the police’s inaction
had hampered the mine owner’s federal right to withstand
a strike.

The Eighth Circuit reached a similar result in Steel-
workers v. Johnson, 830 F.2d 924, 926-29, concerning
South Dakota’s application of its unemployment compen-
sation laws. The state statute required that claimants be
“involuntarily unemployed” to be eligible for benefits.
In Johnson, a coal mine operator shut down the mine in
response to the union’s vote to strike. The South Dakota
Department of Labor denied benefits to all union mem-
bers who were locked out, but granted them to the
nonunion members of the bargaining unit, on the theory

the time when her unfair labor practice charge, alleging she had
been laid off for her union activities, was pending before the NLRB
since, in the state’s view, there was a “labor dispute in active prog-
ress” during that time. This Court held that the state’s threat to
withhold its benefits from employees who “cooperat[e] with the
Government’s constitutional plan” violated the Supremacy Clause.
Id. at 239.

13

that, because the latter were ineligible to participate in
the strike vote, they were “involuntarily unemployed.”
The members, by contrast, were deemed to be “voluntarily
unemployed.” Holding that the state agency’s “skewed
application of its facially neutral test . . . significantly
burdens the section 7 right to participate in organized
labor,” 830 F.2d at 928-29, the en banc court enjoined
South Dakota from applying the statute to disqualify
employees based on their union activity. /d.

Unlike the Eighth and Fourth Circuits, the Ninth
Circuit has failed to comprehend the damage to federal
labor policy wrought by a state’s practice of withholding
benefits based on the intended recipient’s exercise of pro-
tected rights. In Livadas v. Aubry, 943 F.2d 1140, the
Ninth Circuit was confronted with precisely the same
California Labor Commissioner’s policy that is at issue
herein. Livadas claimed that by denying her the benefits
of § 203, the Commissioner had violated her federal rights.
According to the Ninth Circuit, the gravamen of Livadas’
claim was that the Commissioner had misapplied facially
valid eligibility criteria, and in its view, Livadas had no
federal right to a correct interpretation of a valid state
statute. /d. at 1146. The court therefore held that it was
without jurisdiction to evaluate the Commissioner’s deci-
sion to deny represented employees the benefits of the
State statute.”®

10 While finding it unnecessary to reach the question whether the
Commissioner had incorrectly held Livadas’ claim to be pre-empted,
id. at 1145, the court nonetheless essentially applauded the Com-
missioner for erring—if at all—on the side of leaving the dispute
to be resolved through arbitration, id. at 1147, ignoring, as did the
state court in this case, the fact that the remedies available under
state law were not available under the collective bargaining agree-
ment, and therefore not attainable through arbitration.

Between Livadas and this case, employees working under collec-
tive bargaining agreements in California are trapped in a sort of
“Catch-22.” According to the Ninth Circuit, employees like Livadas
and Hart have no recourse in federal law and should, instead, pursue
a mandamus action in state court. Jd. at 1146. But according to the

14

3. The reach of the Superior Court's decision goes well
beyond the interests of the individual petitioner in this
case. Even limited to its particular facts, the case poses
serious questions whether the California Labor Com-
missioner may continue to decline to enforce protective

governed by collective bargaining agreements, and whether
the state courts may similarly refuse to entertain such
claims when individual employees attempt to prosecute
them on their own behalf.

Minimum labor standards, like those in Metropolitan Life,
Fort Halifax Packing, and the California Labor Code, are
extremely commonplace.” Indeed, enacting legislation
which provides basic protections, and forms the “back-
drop” against which parties may negotiate, “is ‘a valid
and unexceptional exercise of the [State's] police power.’ ”

Superior Court's ruling in the instant case, such a state court action
will not lie. These employees thus have no recourse at all, except in
this Court.

11 In providing but a “partial catalogue of [such] statutory em-
ployment standards in the [nine states in the) Ninth Circuit,” the
Service Employees International Union, AFL-CIO, CLC (“SEIU”),
was able to identify twenty state statutes which create minimum
employment conditions, including

timely wage payment on discharge, employee access to per-
sonnel files, prohibitions against wage deductions for breakage
or loss, prohibitions against blacklisting former employees, vest-
ing rights in unused vacation pay on discharge, mandatory
meal breaks and rest periods during the workday, and manda-
tory leave for jury and witness duty.

Brief of Amicus Curiae SEIU in Support of Petition for Certiorari,

Livadas v. Aubry, No. 92-1920, at 4-5 (citations omitted). See, id.

nn. 3-9 and Appendix.

15

Fort Halifax Packing, 482 U.S. at 21, 22 (quoting Metro-
politan Life, 471 U.S. at 758). The California court has
sanctioned the view that the mere presence of a collective
bargaining agreement strips employees of the protections
of state labor standards. Permitting this view to stand
would essentially give the states carte blanche to penalize
employees who choose to be represented by a collective
bargaining agent, or indeed, who, though not themselves
choosing union representation, are nonetheless represented
by a collective bargaining agent by virtue of the choice
of a majority of their co-workers.

Leaving the states with that power would serve seri-
ously to undermine the collective bargaining scheme em-
bodied in the NLRA and protected through Machinists
preemption. As Judge Kozinski noted in his dissent in
Livadas v. Aubry, California's approach to §§ 201 and
203 permits employers truthfully to warn their employees
during labor organizing campaigns: “Look here, if you
vote for the union, the first thing that happetis is that the
state Labor Commissioner abandons you.” 943 F.2d at
1150 n. 2 (Kozinski, dissenting). In fact, accepting the
Superior Court's approach as a reasonable means of state
regulation would permit employers to warn employees
generally that “if you vote for the union”, or if your
colleagues vote for the union, you may stand to lose the
full panoply of minimum wage and employment protec-
tions otherwise available under state law. No greater
deterrent to the exercise of § 7 rights is imaginable.

16

CONCLUSION
The Court should grant the petition for writ of

certiorari
Respectfully submitted,

LAURENCE J. COHEN
Victoria L. Bor *

SHERMAN, DUNN, COHEN,
Leirer & YELLIG, P.C.

1125 Fifteenth Street, N.W.

Suite 801

Washington, D.C. 20005

(202) 785-9300

Attorneys for Petitioner

* Counsel of Record

APPENDICES

la

APPENDIX A

SACRAMENTO MUNICIPAL COURT DISTRICT
COUNTY OF SACRAMENTO,
STATE OF CALIFORNIA

Case No. 89C18711

JOHN J. HART,
Plaintiff,
VS.

STOCKMAR ENERGIE, INC., dba L. F. C. POWER Corp.,
Defendant

DECISION ON SUBMITTED MATTER

The above entitled cause came before the Court for
trial on May 13, 1991. Plaintiff appeared in propria
persona; defendant appeared by attorney DOROTHY
BACSKATI EGEL. Evidence and argument were received,
and the matter was submitted.

No statement of decision was requested; none is re-
quired. The Court will, nevertheless, briefly explain its
decision.

The following facts were established by stipulation:

Plaintiff was employed by Defendant as a construction
electrician between May 16, 1988 and August 29, 1988.
During the period of employment, Plaintiff was covered
by the terms of a collective bargaining agreement (herein-
after referred to as “the CBA”) between the National
Industrial Union (hereinafter referred to as “NIU”) and
Defendant. The CBA governs the terms and conditions
of employment of Plaintiff by Defendant, including the

2a

payment of overtime pay; but per Plaintiff is not the sole
determinant. Article I, subsections 1.4(a) through 1.6
of the CBA provides for the resolution of grievances aris-
ing out of the CBA by the parties.

On August 29, 1988, Plaintiff was terminated from
employment with Defendant. During his last pay period,
Plaintiff did not inform either Morrell or Butterfield that
he had worked any overtime during that period. On or
about September 10, 1988, two (2) weeks after his em-
ployment ended, Plaintiff presented a grievance to his
union representative claiming, inter alia, that Defendant
owed Plaintiff overtime wages for one (1) hour’s over-
time work, and also claiming all applicable penalties under
state and federal law. On or about September 10, 1988,
Plaintiff's union representative presented a written griev-
ance on behalf of Plaintiff to Defendant’s collective bar-
gaining representative claiming, inter alia, overtime wages
and all applicable penalties under state and federal law.
On or about September 26, 1988, Plaintiff's union repre-
sentative met to discuss, inter alia, Plaintiff's claim for
overtime compensation and penalties. By check dated
September 30, 1988, Defendant paid Plaintiff Twenty
Seven Dollars Thirty-eight cents ($27.38). As of October
10, 1988, Plaintiff was paid all overtime wages which he
claimed to be owed by Defendant.

On the evidence presented without contradiction or
impeachment, the Court makes the following additional
findings:

At the time of Plaintiff's termination, Plaintiff’s hourly
rate was Eighteen Dollars Twenty-five cents ($18.25):
and Defendant furnished Plaintiff with a payroll check
which included payment for the hours worked, exclusive
of overtime hours, through the time of termination on
August 29, 1988. Defendant has not cashed the Twenty
Seven Dollars Thirty-eight cents ($27.38) check ulti-
mately paid for overtime. During the union and manage-
ment meetings regarding the grievance submitted on

LL

3a

Plaintiff's behalf, Defendant insisted that federal and state
penalties were not a part of the CBA. They in fact are
not included or excluded by the CBA. When contacted,
the union President refused to pursue the matter of penal-
ties through arbitration on that basis, informing Plaintiff
that his remedy lay with the state authorities for such a
claim. Shortly thereafter, the union “dissolved or dis-
banded” and per the evidence the union President “dis-
appeared.” Plaintiff sought intervention regarding the
penalties with the California Labor Commissioner. De-
fendant’s attorney at such proceedings asserted that the
Commission had no jurisdiction in light of Labor Code
§ 229 and federal preemption; that Plaintiff's remedy lay
with the NLRB. The Labor Commission declined jurisdic-
tion in light of Labor Code § 229. Plaintiff sought a
remedy with the NLRB, which declined to exercise juris-
diction to enforce the state penalties. Plaintiff then filed
this civil action.

In its answer to the amended complaint, Defendant
asserted certain affirmative defenses, to wit: (1) that
Plaintiff's claim requires the interpretation or application
of a collective bargaining agreement and is thereby pre-
empted by Section 301 of the Labor Management Rela-
tion Act, 29 USC § 185; (2) that Plaintiff's claim is
barred by Section 229 of the California Labor Code; (3)
that Plaintiff's claim is barred by the doctrine of accord
and satisfaction; (4) that Plaintiff's claim is barred by the
doctrine(s) of res judicata and/or collateral estoppel;
and (5) that any failure to pay wages due upon termina-
tion of Plaintiff's employment was not “willful” within
the meaning of California Labor Code § 203.

In earlier proceedings before a different Judge of this
Court, Plaintiff prevailed against Defendant’s demurrer
and motion for summary judgment.

The Court respecting the trial, has independently re-
searched the legal principles relevant to defendant’s af-
firmative defenses, and concludes that Plaintiff's claim

4a

(1) is not preempted by Section 301 of the Labor Man-
agement Relations Act; (2) is not barred by Section 229
of the California Labor Code; (3) is not barred by the
doctrine of accord and satisfaction; and (4) is not barred
by the doctrine(s) of res judicata and/or collateral estop-
pel. These conclusivs.. are legal in nature, based upon
essentially undisputed facts.

The substantial issue litigated and argued by the parties
at trial was that identified by the Court in its denial of
Defendant’s motion for summary judgment to wit:
Whether Defendant willfully failed to pay any overtime
wages due Plaintiff in accordance with Labor Code § 201
(sic).

Although the Court’s prior order refers only to Labor
Code § 201, the essential dispute between the parties
involves Labor Code § 203, which provides for waiting
time penalties for a willful failure to pay wages required
to be paid under Labor Code § 201. By regulation effec-
tive August 8, 1988, the State Labor Commission inter-
prets “willful” under the statute as follows:

“A willful failure to pay wages within the meaning
of Labor Code § 203 occurs when an employer in-
tentionally fails to pay an employee when those
wages are due. However, a good faith dispute that
any wages are due will preclude imposition of wait-
ing time penalties under Section 203.

A “good faith dispute” that any wages are due occurs
when an employer presents a defense, based in law
or fact which, if successful, would preclude any re-
covery on the part of the employee. The fact that a
defense is ultimately unsuccessful will not preclude a
finding that a good faith dispute did exist. Defenses
presented which, under all the circumstances, are un-
supported by any evidence, are unreasonable, or are
presented in bad faith, will preclude a finding of a
“good faith dispute”.”

8 Cal Code Reg 13520.

Sa

There was no dispv ia the evidence that on the after-
noon of Wednesday, August 24, 1988, Plaintiff, the field
supervisor (Morrell) and ‘he overall construction site
supervisor (Butterfield) met to discuss construction prog-
ress and Plaintiff's performance on the site. There was no
dispute that during the .vurse of that meeting there were
discussions regarding Plaintiff (as lead man) coming in
one-half (42) hour early to review the plans in prepara-
tion for each day’s activities. There was no dispute in the
evidence that if Plaintiff was authorized to do so, and if
Plaintiff did so prior to termination, Plaintiff was entitled
at termination to overtime pay both under the CBA and
under the company employee manual. There was no dis-
pute as to what the rate of pay would be, nor as to the
overtime Plaintiff claimed at termination.

There was no dispute in the evidence that Defendant
made the determination to terminate Plaintiff on Friday,
August 26, 1988; and effectuated the termination at mid-
morning on August 29, 1988. At that time, the check
tendered and accepted did not include payment for over-
time. There was no dispute in the evidence that when
Plaintiff accepted the check he indicated that he was
entitled to overtime pay.

Plaintiff was clear and adamant in his testimony that:
at the August 24, 1988 meeting, Butterfield stated that
he would authorize overtime for Plaintiff to come in early;
that Plaintiff came in early on Thursday, Friday, and
Monday; and that, when queried regarding the failure to
include overtime in the termination check, Morrell indi-
cated that he had just forgotten it, and would notify Port-
land to have an additional check forwarded. Butterfield
did not testify at the trial.

Testimony established that shortly prior to the termina-
tion of Plaintiff, Plaintiff had been a part of a dispute with
two or three other workers on the project, and that the
dispute had been discussed between Holland (Plaintiff's

6a

foreman), Morrell, and Butterfield. Holland testified that
he was quite satisfied with Plaintiff's work; and that, con-
trary to his recommendation, Morrell and/cr Butterfield
made the determination to layoff Plaintiff. Morrell testi-
fied that he thought he recalled that others were laid off
at about the same time as Plaintiff; all other evidence
presented was to the contrary.

Morrell testified that he recalled a discussion with
Holland regarding Plaintiff working overtime. His ada-
mant recollection was that the discussion was part of a
process of determining whether overtime would be au-
thorized. Holland’s recollection, though neither specific
nor unequivocal, was that Morrell’s statements were such
that Morrell knew that overtime had been authorized, and
was being worked.

On the issues of whether Plaintiff was authorized to
work overtime and whether Morrell knew of the authori-
zation, the Court finds in favor of Plaintiff and against
Defendant. The clear preponderance of the evidence so
indicated. As Plaintiff argued, the ultimate “smoking gun”
on the point is the “6:30 a.m.” entry by Morrell appear-
ing on Defendant’s Exhibit “E”.

Did Plaintiff begin work early on Thursday, Friday,
and Monday? His supporting witnesses (Norwood and
Murray) were little helpful on the question of whether
Plaintiff actually did work overtime as he testified. Nor-
wood’s testimony was internally inconsistent as he at-
tempted to recall whether he was or was not still com-
muting with Plaintiff on the subject mornings; Murray
recalled that Plaintiff worked early on Monday; but be-
lieved that Plaintiff started with the rest of the crew on
Thursday and Friday.

The foreman’s (Holland) Time Distribution Sheet did
not indicate overtime work, but Holland testified that he
did not come in early on Thursday, Friday, or Monday;
so would not know whether Plaintiff was working early

7a

or not. He was not informed on Friday of the Butterfield/
Morrell decision to terminate Plaintiff on Monday; so
would have had no special reason to inquire of Plaintiff
regarding the point. All witnesses agreed that it was
standard practice regarding the preparation of payroll and
termination checks to use both the Time Distribution
Sheet and the time cards. Plaintiff testified that he did
start work early, and that he did clock in. His time card,

- thus, would indicate whether he did or did not start

work early on the days involved. Morrell testified that on
Friday the 26th, to verify the Time Distribution Sheet
information as to Plaintiff, he looked for and could not
find Plaintiff's time card. Dorothy Beach Kofski testified
regarding her inability to find Plaintiff's card at some
point (she thought either Monday or Wednesday; con-
ceded it could have been the preceding Friday). Norwood
and Murray testified that Plaintiff's card was in the card
locker after Plaintiff left the project. When pressed by the
Court, Ms. Beach Kofski conceded that in the normal
practice of Defendant and in light of Defendant’s Exhibit
“D”, one might reasonably infer that Morrell had Plain-
tiffs time card when Defendant’s Exhibit “D” was pre-
pared. More importantly to the decision on this issue,
when confronted by Plaintiff at the time of termination
with the overtime issue, Morrell said nothing about a lost
time card; specifically it “never occurred to him” to say
anything about it. He testified that he later looked “aga.n”
for the time card and thinks he discussed it with Butter-
field, but did not remember whether he had inquired of
Holland. Finally, per his testimony, without Plaintiff’s
time card “there was no way to double check” Plaintiff's
contentions that he was owed wages for overtime work.

Plaintiff has suggested that Morrell did not check the
time card in connection with the preparation of the
termination check, and that its absence was not discovered
until Wednesday when Ms. Beach Kofski looked for it in
connection with her end of the month practice. This

8a

would be consistent with the testimony of Norwood and
Murray that Plaintiff's time card had remained at the
card locker after Plaintiff was terminated; but inconsistent
with Morrell’s testimony that immediately after Plaintiff
complained regarding the overtime pay he searched for
the card and it was missing. Moreover, it is inconsistent
with Morrell’s testimony that, when he accumulated the
information for the termination check, (on Friday) he
looked for and could not find Plaintiff's card.

On the evidence presented, the Court finds that De-
fendant was authorized to work the overtime hours, that
he did work the overtime hours, and that he was not paid
for the overtime hours until more than thirty (30) days
after they were due.

Undoubtedly, there will be cases where an employer,
upon good faith efforts to verify a terminating employee's

claims, will properly delay payment and submit to griev-
ance procedures related claims without incurring Labor
Code Section 203 penalties. But in this case, the Court
finds that Morrell (either in conjunction with Butterfield
or not) either participated in circumstances giving rise to
the loss of Plaintiff's card (after reviewing same and
determining that overtime was claimed); or, prepared and
delivercd to Plaintiff a termination check without verify-
ing by the time card whether overtime was claimed; then,
when reminded of an overtime claim, proceeded with a
reckless disregard for or indifference to Plaintiff's claim
until the time card was lost—thereby leaving the employee
in a situation where his claim would be fraught with the
difficulties of litigation, and failing memories. The cir-
cumstances of this case, on the evidence presented, pre-
clude a finding of a “good faith dispute”; Defendant's
failure to pay the overtime was “willful” within the mean-
ing of Labor Code § 203.

Plaintiff shall recover from defendant as a penalty
under Labor Code § 203 One Hundred Forty Six Dol-

9a

lars ($146.00) per day times thirty (30) days, for a
total of Four Thousand Three Hundred Eighty Dollars
($4,380.00), plus costs. Plaintiff to prepare and submit
an appropriate judgment for signature by the Court, sub-
mitting first to counsel for Defendant for approval as to
form.

Dated: May 22, 1991

/s/ John R. Lewis
JoHN R. Lewts
Judge of the Municipal Court

[SEAL]

10a
APPENDIX B

SUPERIOR COURT
OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SACRAMENTO
APPELLATE DEPARTMENT

Dept. No.: 21
August 21, 1992

Jupce ANTHONY DeCristororo, Jr., Presiding

CV368127

Joun J. HART,
plaintiff respondent
vs.

STOCKMAR ENERGY, INC., ef al.,
defendant ‘appellant

APPEAL FROM MUNICIPAL COURT
RULING ON SUBMITTED MATTER

The above entitled matter came on for oral argument
on August 21, 1992. The matter was argued and the
Court took the matter under submission. The Court now
makes the following ruling:

The judgment is reversed.

lla
APPENDIX C

SUPERIOR COURT
OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SACRAMENTO

Dept. No.: 21
October 13, 1992

JupGe ANTHONY DeCRrisToForoO, JR., Presiding

CV 368127

JouN J. Hart,
plaintiff /respondent
vs.

STOCKMAR ENFRGY, INC., et al.,
ey defendant/appellant

APPEAL FROM MUNICIPAL COURT
RULING ON PETITION FOR REHEARING

The petition for rehearing is granted. The new deci-
sion is the following:

Plaintiff's claim for penalties under Labor Code sec-
tions 201 and 203 is barred by Labor Code section 229
and preempted by section 301 of the Labor Management
Relations Act (29 U.S.C., § 185.)

The judgment is reversed and the trial court is di-
rected to enter judgment for defendant.

12a
APPENDIX D
No. S030678
IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA
IN BANK

JOHN J. HART,
Petitioner
Vv.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SACRAMENTO
APPELLATE DEPARTMENT,

Respondent

STOCKMAR ENERGIE, INCORPORATED, et al.,
Real Party in Interest

[Filed Jan. 15, 1993]

The above entitled matter is transferred to the Court
of Appeal, Third Appellate District.

/s/ Mosk,
Acting Chief Justice

13a

APPENDIX E

IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
IN AND FOR THE THIRD APPELLATE DISTRICT

3 Civil CO15086
Sacramento CV368127

JOHN J. HART,
Petitioner
VS.

SUPERIOR COURT, SACRAMENTO COUNTY,
Respondent

STOCKMAR ENERGIE, INC.,
Real Party In Interest

[Filed Jan. 28, 1993]

By the Court:

The petition for writ of mandate is denied.
Dated: January 28, 1993
BLEASE,
Acting P.J.

14a
APPENDIX F

Third Appellate District No. C015086
$031138

IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA
IN BANK

JOHN J. HART,
Petitioner
Vv.

SACRAMENTO COUNTY SUPERIOR COURT,
Respondent

STOCKMAR ENERGIE INCORPORATED,
Real Party In Interest

[Filed Mar. 17, 1993]

Petition for review DENIED.

/s/ Mosk
Acting Chief Justice

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1168%3A1. Public record. Not legal advice.