Petition for Writ of Certiorari — Rawson v. Tosco Refining Co.

Supreme Court, U.8. —

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971496 mar 1 1 1998

REL Pa

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

Louis H. RAWSON,

Petitioner,

V.

Tosco REFINING COMPANY,

Respondent.

Petition for a Writ of Certiorari to the

California Court of Appeal,

First Appellate District

PETITION FOR A WRIT OF CERTIORARI

RICHARD G. MCCRACKEN

Counsel of Record

MICHAEL T. ANDERSON

DAVIS, COWELL & BOWE LLP

100 Van Ness Avenue

20th Floor

San Francisco, CA 94102

(415) 626-1880

Attorneys for Petitioner

March 11, 1998 Louis H. Rawson

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

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QUESTION PRESENTED

Under Livadas v. Bradshaw, 512 U.S. 107, 125

(1994), may a State adopt a rule that union employees

are denied statutory overtime rights in the absence of any

express waiver, solely because they are covered by collec-

tive bargaining agreements providing premium pay in any

amount for overtime work and wages at least $1.00 above

the minimum wage?

(i)

ii

PARTIES TO THE PROCEEDINGS BELOW

All parties to the proceedings in the courts below are

listed in the caption.

TABLE OF CONTENTS

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REASONS FOR GRANTING THE WRIT ............. Shales 5

I. THE COURT OF APPEAL’S DECISION

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II. THERE IS NO DIFFERENCE BETWEEN AN

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TABLE OF AUTHORITIES

Cases: Page

Lingle v. Norge Division of Magic Chef, Inc., 486

ole OR MEE actrees naecedicenishes a seiccbdinleinincpsnclaasaebies 5, 6

Livadas v. Bradshaw, 512 U.S. 107 (1994) ES 4, 5, 6, 7

Metropolitan Edison v. NLRB, 460 U.S. 693

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Statutes and Regulations:

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National Labor Relations Act, Section 7, 29 U.S.C.

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Labor-Management Relations Act, Section 301 (a),

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Industrial Welfare Commission Order 1- 89 (a):

8 Cal. Code Reg. § 11010(8) (A) ......................... 2

8 Cal. Code Reg. § 11010(3) (F) ........................ 3, 4,5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No.

Louis H. RAwson,

s Petitioner,

Tosco REFINING COMPANY,

Respondent.

Petition for a Writ of Certiorari to the

California Court of Appeal,

First Appellate District

PETITION FOR A WRIT OF CERTIORARI

Petitioner Louis H. Rawson prays that the Court issue

a writ of certiorari to review the judgment of the Court

of Appeal for the State of California, First Appellate Dis-

trict, in this case.

OPINIONS BELOW

The decision of the Superior Court of the State of Calli-

fornia for the County of Contra Costa is set forth at pages

8a to 10a of the Appendix, (App. 8a-10a). The decision

of the Court of Appeal for the First Appellate District,

Division Four, is reported at 57 Cal. App. 4th 1520

(1997), and is set forth in the Appendix at App. 1la-7a.

On December 23, 1997, the California Supreme Court

denied Rawson’s petition for review, Justice Mosk dissent-

ing. App. lla.

Si ara aaa a ean veo

o ]

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JURISDICTION

The California Supreme Court denied review on De-

cember 23, 1997. This Court has jurisdiction under 28

U.S.C. § 1257.

STATUTES 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 bargain

collectively through representatives of their own

choosing, 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 em-

ployer and a labor organization representing employ-

ees in an industry affecting commerce as defined in

this Act, or between 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.

Industrial Welfare Commission (IWC) Order 1-

89(3)(A), 8 Cal. Code Reg. § 11010(3)(A) has pro-

vided in relevant part:

Employment beyond eight (8) hours in any work-

day or more than six (6) days in any work week is

permissible provided that the employee is compen-

sated for such overtime at not less than:

(1) one and one-half times the employee’s regular

rate of pay for all hours worked in excess of eight

(8) hours up to and including twelve (12) hours in

any workday, and for the first eight (8) hours

worked on the seventh (7th) day of work; and

3

(2) double the employee's regular rate of pay for all

hours worked in excess of twelve (12) hours in any

workday, and for all hours worked in excess of eight

(8) hours on the seventh (7) day of work in any

work week.

IWC Order 1-89(3), 8 Cal. Code Reg. § 11010(3)(F),

has provided in relevant part:

Except as provided in subsections (C) and (E), this

section shall not apply to any employee covered by

a collective bargaining agreement if said agreement

provides premium wage rates for overtime work and

a cash wage rate for such employees of not less than

one dollar ($1.00) per hour more than the minimum

wage.

STATEMENT OF THE CASE

A. Facts

The facts are not in dispute.

Petitioner Louis Rawson is employed at an oil refinery

in Martinez, California operated by Respondent Tosco

Refining Company. App. la. Tosco Refining Company

is party to a collective bargaining agreement with the Oil,

Chemical & Atomic Workers Local 1-5 (“OCAW”) cov-

ering Rawson. This collective bargaining agreement pro-

vides for a cash wage rate of not less than $1.00 per hour

more than the minimum wage, and some premium for

overtime work. App. 9a. The agreement provides for

time and one-half for all hours worked in excess of eight

hours in any 24-hour period, but does not separately pro-

vide a higher premium for hours worked in excess of

twelve hours in a day. App. 2a. Rawson and his co-

workers at Tosco are paid time and one-half for work in

excess of twelve hours in a day. App. 2a.

Industrial Welfare Commission (IWC) Order 1-89(3),

8 Cal. Code Reg. § 11010(3), requires that all California

industrial workers be paid double time for time worked

over twelve hours in a day. The only exception is for

4

workers, who like Rawson, are covered by collective bar-

gaining agreements. IWC Order 1-89(3), 8 Cal. Code

Reg. § 11010(3)(F).

The validity of the exception is the focus of this litiga-

tion.

B. Proceedings Below

Rawson brought this putative class action on behalf

of himself and other Tosco refinery workers on September

26, 1995. The action seeks to recover overtime wages at

the general double-time rate established by the [WC Or-

der 1-89. App. 2a n.2. The action challenges the exemp-

tion for unionized employers in IWC Order 1-89(3)(F)

as invalid under federal law.

The Superior Court for Contra Costa County, Hon.

Barbara A. Zuniga, granted Tosco’s motion for summary

judgment on October 7, 1996. App. 8a-10a. The Su-

perior Court held that IWC Order 1-89(3)(F) is a valid

exemption under federal labor law. /d.

On September 30, 1997, the California Court of Ap-

peal for the First Appellate District, Division Four, af-

firmed the Superior Court’s judgment. 57 Cal. App. 4th

1520, App. la-7a. The Court of Appeal acknowledged

that, under Livadas v. Bradshaw, 512 U.S. 107, 117

(1994), a State may not decline to enforce a state wage-

and-hour law merely because the employee is subject to

a collective-bargaining agreement. App. 4a. The Court

of Appeal reasoned, however, that the U.S. Supreme

Court approved state-law distinctions between union and

non-union employees in the application of minimum labor

standards, provided that “union represented employees

have the full protection of the minimum standard, absent

any agreement for something different.” App. 4a, quoting

Livadas, 512 U.S. at 131. The Court of Appeal con-

cluded that “Rawson did not relinquish his right to double

pay for certain overtime work merely by being an em-

ployee covered by a collective bargaining agreement. His

5

rights to the state mandated double time pay were relin-

quished because his union and employer expressly agreed

to a rate of overtime pay which met at least the minimum

requirements imposed by . . . [IWC Order 1-89(3)(F)].”

App. 4a-5a.

On December 23, 1997, the California Supreme Court

denied review. Justice Mosk dissented from denial of

review. App. Ila.

REASONS FOR GRANTING THE WRIT

The Supreme Court should grant certiorari because the

Court of Appeal’s decision raises an important question

of federal law that this Court should resolve.

This Court has repeatedly held that state-law employ-

ment standards may not be withheld from union workers

unless, at a minimum, their union has clearly and un-

mistakably relinquished those standards. See Livadas,

512 U.S. at 125; Lingle v. Norge Div. of Magic Chef,

Inc., 486 U.S. 399, 409-410 n.9 (1988). The principle

in Livadas and Lingle will be meaningless if the States

dispense with any requirement of actual waiver.

The crux of this case is whether California may deem

Rawson’s union to have opted out of the state-law [WC

Overtime wages, just because the union bargained for

some overtime premium without separately providing for

a special rate after twelve hours.

I. THE COURT OF APPEAL’S DECISION NULLIFIES

LIV ADAS.

If courts infer that unions have opted out of minimum

labor standards too liberally, the principle of Livadas will

become a dead letter.

In Livadas, the California Labor Commissioner argued

that the plaintiff (a unionized grocery clerk) had “opted

out” of access to the Labor Commissioner’s enforcement

of the state Labor Code. The Labor Commissioner ar-

6

gued that Livadas’ union had chosen to forego such en-

forcement by negotiating for arbitration in its labor con-

tract. Livadas, 512 U.S. at 127. The Labor Commis-

sioner argued, as the Industrial Welfare Commission has

dictated here, that any union contract negotiating its

“own” wage provisions must be deemed to surrender any

Statutory rights not expressly provided in the contract.

Cf. Livadas, 512 U.S. at 128. The Court rejected this

argument, explaining that any relinquishment of such

State-law protections in collective bargaining would have

to be “clear and unmistakable for a court even to consider

whether it could be given effect .. .” Livadas, 512 U.S.

at 125, citing Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399, 409-410 n.9 (1988) (quoting Metropolitan

Edison Co. v. NLRB, 460 U.S. 693, 708 (1983)).

Under this standard, the union must clearly specify the

rights it is giving up in order to demonstrate a conscious

relinquishment: “We will not infer from a general con-

tractual provision that the parties intended to waive a

statutorily protected right unless the undertaking is ‘ex-

plicitly stated.’” Metropolitan Edison, 460 U.S. at 708.

Express agreement on alternate terms is not sufficient. If

it were, any union agreement on terms that a State deems

related to a statutory subject could be taken as an “opt-

out.” This result would nullify the anti-discrimination

rule in Livadas. Instead, the standard requires a con-

scious acknowledgement of the statutery right that the

union intends to forgo.

II. THERE IS NO DIFFERENCE BETWEEN AN “OPT-

OUT” AND A WAIVER.

The Court of Appeal held that the “clear and unmis-

takable waiver” standard does not apply in this case,

on the ground that state law does not prohibit the parties

from negotiating rates other than those established by

wage orders, even if those alternate provisions do not

refer to all protections available under the law. App. 6a-

7a.

7

This reasoning is circular. A union’s negotiation of

some overtime provision is not the same as an explicit

waiver of all statutory overtime rights not included in the

parties’ agreement. There is no real difference between

a ruling that a union has “opted out” of a minimum labor

standard and one that the union has “waived” such a

standard. The effect on the union’s members is the same.

Whether it is stated as an “opt out” or a “waiver,” state

law violates the non-discrimination principle in Livadas

if it denies benefits to employees because of their collec-

tive bargaining activity, where their collective contract

negotiation does not reflect an explicit intent to forego

the statutory standard.

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

RICHARD G. MCCRACKEN

Counsel of Record

MICHAEL T. ANDERSON

DAVIS, COWELL & BOWE LLP

100 Van Ness Avenue

20th Floor

San Francisco, CA 94102

(415) 626-1880

Attorneys for Petitioner

Louis H. Rawson

APPENDICES

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APPENDIX A

[Filed Sep. 30, 1997]

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A076689

(Contra Costa County Super. Ct. No. C95-04284)

Louis H. RAWSON,

Plaintiff and Appellant,

Vv.

Tosco REFINING COMPANY,

Defendant and Respondent.

Plaintiff, Louis H. Rawson, appeals from a judgment

entered on a motion for summary judgment in favor of

defendant his employer, Tosco Refining Company

(Tosco). Rawson objects to a wage order of the In-

dustrial Welfare Commission (Cal. Code Regs., tit. 8,

§ 11010, subd. 3(A); Wage Order No. 1-89) which per-

mits him as a member of a collective bargaining unit

which has a qualifying agreement with Tosco on overtime

pay rates to be paid less than the order would require him

to be paid were he not subject to such a collective bar-

gaining agreement on overtime pay. (Cal. Code Regs.,

tit. 8, § 11010, subd. 3(F).)

Under the wage order employees required to work

more than twelve hours in any workday or for hours

2a

beyond eight worked on the seventh day of a work week

are to be paid double their regular rate of pay. (Cal.

Code Regs., tit. 8, § 11010, subd. 3(A)(2).)" Rawson

sought to recover the difference between the double time

pay required by the wage order and the time and half pay

provided for by his collective bargaining agreement.*

Discussion

Tosco’s motion for summary judgment was granted on

undisputed facts. Therefore the sole question before the

trial court and before this court is a question of law.

(Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 1318.)

What is in dispute is whether the overtime pay provisions

in California Code of Regulations, title 8, section 11010,

subdivision 3(F) of the wage order are valid as a collec-

tively bargained for opt-out from the state’s wage scheme

or are infirm because they impermissibly burden Rawson’s

right to collective bargaining under the National Labor

Relations Act (NLRA or the Act). (29 U.S.C. §§ 151,

et seq.) California Code of Regulations, title 8, § 11010,

subdivision 3(F) provides that “this section shall not

apply to any employee covered by a collective bargaining

1 Title 8, California Code of Regulations, section 11010, subdivi-

sion 3(A) provides in pertinent part: “Employment beyond eight

(8) hours in any workday or more than six (6) days in any work-

week is permissible provided the employee is compensated for such

overtime at not less than: [{%] (1) One and one-half (11%) times

the employee’s regular rate of pay for all hours worked in excess

of eight (8) hours up to and including twelve (12) hours in any

workday, and for the first eight (8) hours worked on the seventh

(7th) day of work, and [{] (2) Double the employee’s regular rate

of pay for all hours worked in excess of twelve (12) hours in any

workday and for all hours worked in excess of eight (8) hours on

the seventh (7th) day of work in any workweek.”

2 Rawson’s first amended complaint, styled as a class action, con-

sists of a first cause of action for failure to pay overtime wages at

the rate established by the work order and a second cause of action

alleging a violation of Business and Professions Code section 17200

for that failure.

3a

agreement if said agreement provides premium wage rates

for overtime work and a cash wage rate for such em-

ployees of not less than one dollar ($1.00) per hour more

than the minimum wage.” Rawson argues here, as he did

below, this opt-out provision is infirm because it has

denied him as an employee whose collective bargaining

agreement provides lower wage rates the full protection

the state otherwise accords employees who are not cov-

ered by collective bargaining agreements and therefore

must receive double pay under the wage order.

Pre-emption

In evaluating a claim of pre-emption a state regulation

will be sustained unless it conflicts with federal law,

stands as an obstacle to the accomplishment and execu-

tion of the full purposes and objectives of the federal law,

or from the totality of circumstances it would appear

Congress had sought totally to occupy the field. (Metro-

politan Life Ins. Co. v. Massachusetts (1985) 471 US.

724, 747-748; Brown v. Hotel Employees (1984) 468

U.S. 491, 501.)

Rawson’s pre-emption claim is that the provisions in

California Code of Regulations, title 8, section 11010,

subdivision 3(F) which permit a reduced overtime wage

if collectively bargained for penalizes exercise of collective

bargaining rights granted him by the NLRA. He relies

upon decisions of the United States Supreme Court which

have held it impermissible for a state to withdraw a

benefit from an employee who was engaging in practices

otherwise protected and encouraged by the Act. Thus a

state may not withhold unemployment benefits from an

employee because she has filed a charge of unfair labor

practices with the National Labor Relations Board. (Nash

Vv. Florida Industrial Comm’n. (1967) 389 U.S. 235,

239.) Nor may it decline to enforce a state law requiring

immediate payment of all wages owed upon termination

of employment merely because the employee is subject

LEN

4a

to a collective bargaining agreement which contains an

arbitration provision. (Livadas v. Bradshaw (1994) 512

U.S. 107, 117.)

In Livadas the court addressed certain provisions in

state and federal laws which draw distinctions between

union and nonunion represented employees and noted that

“virtually all” were alike in “that union represented em-

ployees have the full protection of the minimum stand-

ard, absent any agreement for something different.”

(Livadas v. Bradshaw, supra, 512 U.S. at p. 131.) The

court then noted that its holding “should cast no shadow

on the validity of these familiar and narrowly drawn opt-

out provisions.” (At p. 132.)

Obviously, the question before us is whether California

Code of Regulations, title 8, section 11010, subdivision

3(F) is such a valid opt-out provision which is not pre-

empted. The wage order does indeed provide exactly the

protection described in the opt-out provisions described in

Livadas. It provides to union represented employees the

same protections it accords to non union represented em-

ployees, unless their collective bargaining agreement pro-

vides for a different wage scheme.’ An identically worded

provision in another California wage order applicable to

broadcast employees has been upheld against a pre-

emption claim by the Ninth Circuit as precisely the sort

of provision discussed with approval in Livadas. (Na-

tional Broadcasting Co., Inc. v. Bradshaw (9th Cir.

1995) 70 F.3d 69, 71; Cal. Code Regs., tit. 8, § 11110,

subd. 3(F); Wage Order No. 11-80.)

Here, Rawson, did not relinquish his right to double

pay for certain overtime work merely by being an em-

ployee covered by a collective bargaining agreement. His

rights to the state mandated double time pay were relin-

8 Moreover, the collective bargaining agreement must itself meet

two criteria to supplant the wage scheme of Wage Order 1-89. It

must provide both a premium wage for overtime work and an

hourly cash wage of at least $1 above the minimum wage.

silheceenemeeinieenmniceniamitaaeimaticiiiaiiiiataina iia iia

5a

quished because his union and his employer expressly

agreed to a rate of overtime pay which met at least the

minimum requirements imposed by California Code of

Regulations, title 8, section 11010, subdivision 3(F).

(See Livadas v. Bradshaw, supra, 512 U.S. at p. 131.)

Rawson’s claim is essentially the employee corollary

of that unsuccessfully advanced by an employer in Fort

Halifax Packing Co. v. Coyne (1987) 482 U.S. 1. In

that case, Maine law provided for a one-time plant closing

severance payment of one week for every year of em-

ployment for any employee without “an express contract

providing for severance pay.” (Jd. at p. 4, fn. 1.) The

employer argued the effect of the state law was to under-

cut its ability to resist union demands for severance pay

and thus to impermissibly burden its freedom to collec-

tively bargain for the terms and conditions of employ-

ment. (Jd. at pp. 19-20.) The Supreme Court rejected

the notion that a state mandated minimum labor standard

undercuts collective bargaining under the Act. It noted

that both employers and employees come to bargaining

with certain state granted rights which form a backdrop

to their negotiations. (Jd. at p. 21.) In short, pre-

emption is not required merely because “a state statute

pertains to matters over which the parties are free to

bargain... .” (lbid.)

Rawson’s objection merely comes from the other side

of the bargaining table. The impact of California Code

of Regulations, title 8, section 11010, subdivision 3(F)

here is no different. Absent a negotiated provision in the

collective bargaining agreement (a provision which in this

instance also must meet certain minimum standards) an

employee covered by that agreement will be entitled to

the wage order’s rate of overtime pay. On its face neither

subdivision 3(F) nor the Maine law prohibit negotiated

overtime pay or severance pay which is less than the state

mandated minimum for employees who lack a contractual

agreement on the subject. We cannot say that subdivision

6a

3(F) constitutes an impermissible intrusion into the col-

lective bargaining process which results in its pre-emption

by the Act.

Waiver

Finally, Rawson argues California Code of Regulations,

title 8, section 11010, subdivision 3(F) is infirm because

it does not require the collective bargaining agreement

to contain a “clear and unmistakable waiver” of his state

law rights as an employee to double time pay. The simple

answer is that the issue never arises in this case.

In Lingle v. Norge Division of Magic Chef, Inc.

(1988) 486 U.S. 399, the Supreme Court held that a

state law claim for retaliatory discharge was a claim

independent of a collective bargaining agreement and was

therefore not pre-empted under the principle that federal

law will be the basis for interpreting such agreements.

(Id. at p. 407.) In a footnote the court declined to reach

the related issue of whether a union may waive its mem-

bers’ individual, nonpre-empted state-law rights. (/d. at

p. 409, fn. 9.) Significant for our purposes, however, is

the fact that in Lingle state law also expressly provided

that the parties to a collective bargaining agreement could

not agree to waive the state’s prohibition against retalia-

tory discharge. More recently in Livadas the Supreme

Court did no more than note that the question was not

before it whether plaintiff's union had “sought or pur-

ported to bargain away” her statutory right to immediate

payment of all wages upon termination—a right which

may not be “contravened or set aside by a private agree-

ment” under California law. (Livadas v. Bradshaw,

supra, 512 U.S. at p. 125; Lab. Code, § 219.)*

Rawson cites no California statute which prohibits con-

tractual agreements for overtime pay rates lower than

4Labor Code section 219 provides in pertinent part: “[N]o

provision of this article can in any way be contravened or set aside

by a private agreement, whether written, oral, or implied.”

Ta

those otherwise established by wage orders. Absent such

a statutory bar to this overtime agreement we need not

reach the question of whether California Code of Regula-

tions, title 8, section 11010, subdivision 3(F) must in-

clude a requirement of clear and unmistakable waiver of

the nonexistent statute’s protections.

Disposition

The judgment is affirmed.

Pocue, Acting P.J.

We concur:

REARDON, J.

HANLON, J.

8a

APPENDIX B

[Filed Oct. 5, 1996]

SUPERIOR COURT

OF THE STATE OF CALIFORNIA

COUNTY OF CONTRA COSTA

No. C95-04284

Louis H. RAwsSon,

individually and on behalf of all others similarly situated,

Plaintiff,

v.

Tosco REFINING COMPANY,

a Division of Tosco CORPORATION,

Defendant.

ORDER GRANTING DEFENDANT TOSCO

REFINING COMPANY’S MOTION FOR SUMMARY

JUDGMENT AND DENYING PLAINTIFF'S

MOTION FOR SUMMARY JUDGMENT

The cross-motions of Plaintiff Louis Rawson and of De-

fendant Tosco Refining Company for summary judgment

came on regularly for hearing on September 19, 1996,

in Department 2 of the Court, The Honorable Barbara A.

Zuniga presiding. Based upon the parties’ acceptance of

the Court’s tentative ruling, the tentative ruling became

the order of the Court without oral argument.

After full consideration of the evidence and points and

authorities submitted by both parties, and good cause ap-

pearing therefor,

IT IS HEREBY ORDERED:

1. Defendant’s motion for summary judgment is

GRANTED. There is no material issue of fact in dis-

ner

9a

pute, and defendant is entitled to judgment as a matter

of law. It is undisputed that the collective bargaining

agreement between Tosco and plaintiff's union fully com-

plies with IWC Wage Order 1-89(3)(F), 8 Cal.Code

Reg. § 11010(3)(F) (1989), which provides an exemp-

tion to the wage order’s overtime pay provisions set forth

in TWC 1-89(3)(A)(2) for parties to a collective bar-

gaining agreement containing certain minimum and over-

time wage provisions. Contrary to plaintiff's argument,

the case of Livadas v. Bradshaw, (1994) 144 S. Ct. 2068,

does not invalidate the exemption contained in IWC Wage

Order 1-89, and the Court in Livadas specifically recog-

nized the validity of opt-out agreements such as the wage

order exemption at issue here: “Our holding that the

Commissioner’s unusual policy is irreconcilable with the

structure and purposes of the Act should cast no shadow

on the validity of these familiar and narrowly-drawn opt-

out provisions.” /d. at 2082. The court in NBC v. Brad-

shaw (9th Cir. 1995), 70 F.3d 69, followed Livadas

and held that an opt-out provision similar to the one at

issue here was not invalid and not preempted by the Na-

tional Labor Relations Act.

The authority cited by plaintiff does not support his

argument that the wage order exemption is preempted by

federal law or that it is otherwise invalid, and the case

of Metropolitan Edison v. NLRB (1983), 460 U.S. 693,

103 S.Ct. 1467, is not on point in that it involved a “no

strike” provision in a collective bargaining agreement. In

the instant case, there is no question of waiver, since the

statute specifically allows for union employees to opt out

of the state’s minimum labor protections by negotiating

for terms falling within the exemption. This Court con-

cludes, therefore, as have federal courts, that the wage

order exemptions are valid “opt-out provisions,” not pre-

empted by federal law. Defendant’s compliance with the

wage order exemptions defeats plaintiff’s first cause of

action for failure to pay overtime wages under Labor

Code § 1194. Because plaintiff's second cause of action,

10a

for violation of Business and Professions Code § 17200,

is merely derivative of his first cause of action, it is also

defeated.

2. Judgment shall be entered in favor of defendant

Tosco Refining Company and dismissing plaintiff's com-

plaint, and defendant is to recover its allowable costs

pursuant to Cal. Civ. Proc. Code § 1032.

3. Given the Court’s ruling granting summary judg-

ment in favor of defendant, plaintiff's motion for sum-

mary judgment is moot.

IT IS SO ORDERED.

Dated: 10-5-96

/s/ Barbara Zuniga

BARBARA ZUNIGA

THE HONORABLE BARBARA A. ZUNIGA

Contra Costa County Superior Court

APPROVED AS TO FORM

/s/ Michael T. Anderson

MICHAEL T. ANDERSON

Attorney for Plaintiff Louis Rawson

lia

APPENDIX C

[Filed Dec. 23, 1997]

First Appellate District, Division Four,

No. A076689 S065642

IN THE SUPREME COURT OF CALIFORNIA

Louis H. RAWSON,

Appellant

v.

Tosco REFINING COMPANY,

Respondent

Appellant’s petition for review DENIED.

Mosk, J., is of the opinion the petition should be

granted.

/s/ George

Chief Justice