# Petition for Writ of Certiorari — Rawson v. Tosco Refining Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2373%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 523 U.S. 1119 ## Text Supreme Court, U.8. — reoaee 44) 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 ® Eo 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 Page SF. ENED ORD © aicschsnihchcansonitdephntblontcanesesinsichens i PARTIES TO THE PROCEEDINGS BELOYV ........ a ii NE TEE PAT BAUME BRIBED sniciirnscrascissonassversininoctontonnossnins iv i an sin cars igacnecestiveeemecortiroeds 1 FEF 6 BIEN ericrsssnbitiniencnonsiconcs sia ha bi dai cledindihias vasccidasiobion 2 AE RE A WGA ED sickicch acatdbcusnsabcbs ids inkcdaidineeenore ri 2 cap Ww tf sy gt dey to OF 4.) ARE p nennn me ene EI EI 3 nee darian tcnsiansrenetanuen 3 B. Proceedings Below ...... Sy Th Sek AA LIS PE a a Raat RN 4 REASONS FOR GRANTING THE WRIT ............. Shales 5 I. THE COURT OF APPEAL’S DECISION PRP RMPEeT AED BV OAD | yocecieccseiscsnecssonts Bennseseess 5 II. THERE IS NO DIFFERENCE BETWEEN AN “OFT-OUT” AND A WAIVER .....................-... ; 6 adh asd iubiashecsimtanyadoweleb enone DAPIPY bts 7 Fly 4 3b OF nes idee tie eckioatevkcatenscciemasanes la ER i iccvscdent cdbisdancanises Se ed 8a BREF IRF sekieisrcsccsticnensprcinns ii decd cgetas Marden etocincanlibe Shade lla (iii) iv 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 UND sccadicesisebnseeines seteadselonucd ahies dialed tab oaaco eka hide ssntucuibiecastat 6 Statutes and Regulations: eee Sn Ue UT cited oe a 2 National Labor Relations Act, Section 7, 29 U.S.C. SU ica ee 2 Labor-Management Relations Act, Section 301 (a), ee Ree Se EEE itadceae did ceccneicie 2 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 ] ce 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 la sinters thins pstsiniins sancbaeaaate 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2373%3A1. Public record. Not legal advice.