Opposition Brief — Miura v. Western Union International, Inc.

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DEC 17 4982

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eOSLFrI WOOL, JER.

No. 89-740

In The

Supreme Court of the United States

October Term, 1989

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Be EVELYN S. MIURA and DAYNA HU,

Petitioners,

VS.

WESTERN UNION INTERNATIONAL, INC.,

Respondent.

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On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

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BRIEF IN OPPOSITION

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JARED H. Jossem

Jerrrey S. Harris*

TORKILDSON, Katz, Jossem,

Fonseca, Jarvee & Moonri

Attorneys at Law

Amfac Building, 15th Floor

700 Bishop Street

Honolulu, Hawaii 96813

Telephone: (808) 523-1051

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4 *Counsel of Record

for Respondent

COCKLE LAW BRIEF PRINTING CO, (800) 225.6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether employees covered by a collective bargain-

ing agreement must exhaust the grievance and arbitration

procedure established in such agreement before suing

their employer on the ground that the agreement entitles

them to additional payments upon separation from

employment.

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LIST OF PARTIES

The parent of the Respondent, Western Union Inter-

national, Inc. (“Company”), is MCI, International, Inc.,

whose parent is MCI Communications Corp. The sole

subsidiary of the Company which is not wholly owned is

Western Union International, S.A.

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TABLE OF CONTENTS

Page

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UME EY MEU CCAR cece eee 2

Subject Matter Jurisdiction.....................5. 2

STOOL YET EET ETE TEETER E ETE ee . me

Grounds for Decisions Below .................... 3

REASONS FOR DENYING THE WRIT............. 4

There is No Conflict Over the Exhaustion Rule... 4

The Lower Courts Correctly Decided This Case. 6

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a eee token ee esa b aus a cans 6

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The Employees Were Fairly Treated.............. 7

The Employees’ Position Would Create Absurd

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Tere re ee ee ere rere 8

iv

TABLE OF AUTHORITIES

Page

CASES

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985). 3, 5, 6

Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480

aR GO COUOOE Wabsk cic avebedcsatecssas hau ehenaeee

Barrentine v. Arkansas-Best Freight Sys., Inc., 450

to, fi | PPP reTer eT errr er ere ei

Lingle v. Norge Div. of Magic Chef, 486 U.S. 399

| Meer Ter ree e errr rere tre ery 2, 6

McDonald v. City of West Branch, Mich., 466 US.

rrr en AR ee ee TT

National Metalcrafters Div. of Keystone Consol.

Indus. v. McNeil, 784 F.2d 817 (7th Cir. 1986).......

ae)

Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965) ...5, 6

STATUTES

Federal Employers’ Liability Act, 45 U.S.C. § 51 et.

eer ee Pere r Tere ee er. er ane 5

Fair Labor Standards Act,

oD Bk ae > ere to ae ey

section 16, 2S USA. 6 P06 i. cisticienieieeeee me

Haw. Rev. Stat. § 388,

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Haw. Rev. Stat. § 388-2(a) (b) ..................008. 2

saw. Rev. Stat. & SUB-TRGD. . wc. <cacccancbeceananne 2

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TABLE OF AUTHORITIES - Continued

Labor Management Relations Act of 1947

Section 201, 29 U.S.C. § 171

Section 301, 29 U.S.C. § 185

Portal to Portal Act of 1947, Section 6, 29 U.S.¢

§ 255(a).

Railway Labor Act, 29 U.S.C. § 151

litle 42 U.S.C. § 1983

LEGISLATIVE HIsToRY

H.R. 13712, 89th Cong., 2d Sess. (1966), reprinted

1966 U.S. CODE CONG. & ADMIN. NEWS 978

DECISIONS BELOW

The Petitioners seek review of an unpublished Men

orandum Decision issued by the Ninth Circuit Court of

Appeals. Appendix 1 to the Petition sets forth the Deci

sion with several clerical errors irrelevant to the Petition

The accurate text of the Decision is available in Westlaw

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STATUTES INVOLVED

This case involves Section 301 of the Labor Man

ment Relations Act of 1947 (“LMRA 29 U.S.~¢ >] 85

which states:

Suits for violation of contracts between a1

employer and a labor organization represent

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labor organizations, may be brought in any dis

trict court of the United States having jurisd

tion of the parties, without respect to thi

amount in controversy or without regard to th

uA ceet

citizenship of the parties

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Petitioners Evelyn S. Miura and Dayna Hu

(“Employees”) assert that this case involves Haw. Rey

Stat. §388, which states in relevant part

§388-2 Semimonthly payday. (a) Every employer

shall pay all wages due to the employer's

employees at least twice during each calenda:

month, on regular paydays designated in

advance by the employer, in lawful money of

the United States or with checks convertible into

cash on demand at full face value thereof; |

(b) The earned wages of all employees shall be

due and payable within seven days after the end

of each pay period.

§388-11 Employees remedies. (a) Action by an

employee to recover unpaid wages may be

maintained in any court of competent jurisdic-

tion by any one or more employees for and in

behalf of oneself or themselves, or the employee

or employees may designate an agent or repre-

sentative to maintain the action.

Haw. Rev. Stat. §§388-2(a)(b) and 11(a) (1988).

The Employees also assert that this case involves

Sections 6 and 16 of the Fair Labor Standards Act

(“FLSA”), 29 U.S.C. §§206 and 216, which are partially set

forth in the Petition at 4, and in 1967 provided a mini-

mum wage of $1.40 per hour. H.R. 13712, 89th Cong., 2nd

Sess. (1966), reprinted in 1966 U.S. CODE CONG. &

ADMIN. NEWS, 978, 986-987, 994.

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A

STATEMENT OF THE CASE

Subject Matter Jurisdiction

The United States District Court for the District of

Hawaii (“District Court”) had subject matter jurisdiction

over the Employees’ suit under Section 301 of the LMRA,

supra, because the claim required interpretation of the

collective bargaining agreement (“Agreement”) between

the Employees’ union, Local 111 of the American Com-

munications Association, Communications Trade Divi-

sion, International Brotherhood of Teamsters (“Union”),

and the Company. Lingle v. Norge Div. of Magic Chef, 486

_ 24 .

Material Facts

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Grounds for Decisions Be

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The District ( rt Aid

tion under Sections 206 and

Employee Evelyn S. Miura M

ments upon separation from emy \

ment, and did not allege that the ( pa f

the minimum wage of $1.40 per |! pr

of the FLSA, supra, in 1‘

provide for a cost of living differential on severance pay

or a deferral of first week’s wages.?

The Ninth Circuit Court of Appeals affirmed the

District Court, on the alternate ground that the

Employees failed to exhaust the applicable grievance pro-

cedure, and that any claims for wages earned during a

week in September 1967 under Haw. Rev. Stat. §388 or

Section 6 of the FLSA, supra, were time-barred.°

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REASONS FOR DENYING THE WRIT

There is No Conflict Over the Exhaustion Rule

There is no conflict between the circuits regarding

the question whether employees must exhaust grievance

and arbitration procedures established in collective bar-

gaining agreements between their unions and employers

before suing their employers for claims that depend on

interpretation of those agreements.

2 The Agreement based severance pay on the hourly “rate

of pay”, and the cost of living differential on “gross weekly

earnings”. Consistent with past practice known to the Union,

the Company did not apply the differential to severance pay.

The comprehensive wage and benefit schedule in the Agree-

ment did not provide for deferral of first week’s wages. A

broad waiver and integration provision in the Agreement

“supersel[ded] all prior understandings, oral and written”.

3 The third question presented in the Petition at 31-34 (ie.,

whether the District Court properly admitted the deposition

testimony of the Union agreeing with the Company’s inter-

pretation of the Agreement) confirms that the employees’

claims turn on an interpretation of the Agreement.

The Court answered this question affirmatively in

Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965) (“Repub-

lic Steel”), and recently reiterated the exhaustion rule in

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) (“Allis-

Chalmers”).

In Allis-Chalmers, the Court held that an employee’s

state tort suit for delay in making payments due under a

collective bargaining agreement was preempted by Sec-

tion 301 of the LMRA, supra, and should have been dis-

missed for failure to exhaust the grievance procedure in

the agreement.

Cases which depend on the interpretation of collec-

tive bargaining agreements such as Republic Steel and

Allis-Chalmers are distinct from cases which depend on

statutory rights independent of the provisions of collec-

tive bargaining agreements, such as:

Barrentine v. Arkansas-Best Freight Sys., Inc., 450

U.S. 728, 737-738, 741 nn. 13, 19 (1981) (“Barren-

tine”) (claim that payment due for “principal”

activities under Section 6 of the FLSA, supra,

was independent of provisions of agreement);

McDonald v. City of West Branch, Mich., 466 U.S.

284 (1984) (“McDonald”) (rights and remedies

against discharge in retaliation for exercise of

First Amendment rights under 42 U.S.C. §1983

different than rights and remedies under

agreement);

Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480

U.S. 557, 564-566 (1987) (“Buell”) (Federal

Employers’ Liability Act, 45 U.S.C. §51 et seq., pro-

tection against negligent conduct by employer and

co-workers is independent of employer’s

obligations, and limited relief apparently avail-

able, under agreement covered by the Railway

Labor Act, 29 U.S.C. §151 et seqg., and distinct

from claim based squarely on such agreement);

and

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399 (1988) (“Lingle”) (claim for wrongful dis-

charge in retaliation against exercise of state

worker’s compensation rights did not depend

on interpretation of the agreement).

The Lower Courts Correctly Decided This Case

Exhaustion

Because the Employees’ claim for additional pay-

ments turned on interpretation of the Agreement rather

than a statute, Republic Steel and Allis-Chalmers required

dismissal for failure to exhaust, and Barrentine, McDonald,

Buell, and Lingle were distinct.

If the provisions of the Agreement did not provide

for a cost of living differential on severance pay or

deferred wages, then the Employees were not entitled to

these additional payments. Neither Haw. Rev. Stat. §388,

supra, nor Section 6 of the FLSA, supra, created such

rights.

Merits

The Employees have not petitioned for review of the

District Court’s holding that the Agreement did not pro-

vide a cost of living differential on severance pay or

deferral of first week’s wages.

Timeliness

Even if Miura had claimed the Company violated the

minimum wage provisions of Section 206 of the FLSA,

supra, by paying her less than $1.40 for each hour which

she worked during her first two week pay period in

September 1967, then the two year statute of limitations

for the FLSA in Section 6 of the Portal to Portal Act of

1947, 29 U.S.C. §255(a), would have barred her claim.

There was no evidence that the Company made state-

ments equitably estopping it from relying on her over 17

years of inaction.

The Employees Were Fairly Treated

The Employees timely received the $48,052.50 in sev-

erance pay which the Company, the Employees’ Union

and District Court agreed they deserved. The additional

$7,224.00 differential on severance pay sought by the

Employees exceeds the amounts received by their co-

workers.

The Employees’ Position Would Create Absurd Results

The Employees’ proposed rule permitting suit for

wage and benefit claims which turn on the interpretation

of collective bargaining agreements would undermine

traditional grievance and arbitration systems and impose

a corresponding burden on the courts, inconsistent with

the federal policy favoring arbitration under collective

bargaining agreements. Section 201 of the LMRA, 29

U.S.C. §171.

2

CONCLUSION

For the above reasons, the Company respectfully

requests the Court to deny the Employees’ Petition for

Writ of Certiorari.

Respectfully submitted,

JareD H. Jossem

JEFFREY S. Harris*

*Counsel of Record

for Respondent