# Opposition Brief — Miura v. Western Union International, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0574%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1023 ## Text URIVING Vurri, Weve DEC 17 4982 ' | } rn eOSLFrI WOOL, JER. No. 89-740 In The Supreme Court of the United States October Term, 1989 a» _ Be EVELYN S. MIURA and DAYNA HU, Petitioners, VS. WESTERN UNION INTERNATIONAL, INC., Respondent. ,% — On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit % ve BRIEF IN OPPOSITION , ~ 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 ‘4 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. ii 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. ili TABLE OF CONTENTS Page eh yy 6 Be (oS 2 Seats i I oa ness cece se esses sccseanns ii pe ee) eo yy | rene iv I EO wg on cansecsssanenvascensesscen l gs Ge A) > eer l 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 tiie k 44s When «wn 6 a eee token ee esa b aus a cans 6 re eee wie aes anc kk vane ACHES 7 The Employees Were Fairly Treated.............. 7 The Employees’ Position Would Create Absurd ITEC NG cen cncsecnsscuscecccceccsscussees 7 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, ~ ~— Haw. Rev. Stat. § 388-2(a) (b) ..................008. 2 saw. Rev. Stat. & SUB-TRGD. . wc. ] 85 which states: Suits for violation of contracts between a1 employer and a labor organization represent itil 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 ld 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. ». 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 ' 4 ~ a“ Nig | erTrte Grounds for Decisions Be ) " , ¢ ‘ _— = } 3 cu \ t \ \ 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.° a _ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0574%3A2. Public record. Not legal advice.