Opposition Brief — Shannon v. 520 South Michigan Avenue Associates, Ltd. (No. 09-14)

Supreme Court, U.S.

te -FILEOD

v8 eo, AUG 27 2009

No. 09-14

GOEPTGE OF the CLeAK

IN THE

Supreme Court of the United States

CATHERINE SHANNON,

Director of the Illinois Department of Labor, et al.,

Petitioners,

Vv.

520 SOUTH MICHIGAN AVENUE ASSOCIATES, LIT.,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS

FOR THE SEVENTI CIRCUIT

BRIEF IN OPPOSITION

PETER ANDJELKOVICH

PETER ANDJELKOVICH

& ASSOCIATES

39 South LaSalle Street

Suite 200

Chicago, Illinois 60603

(312) 782-8345

Attorney for Respondent

224775 ce

Q

i

COUNTER STATEMENT OF ISSUE

Whether in consistently applying other circuits’

decisions and decisions of this Court the court of appeals

correctly interpreted a state statute mandating by state

law additional employee work breaks and drastic

remedies beyond the minimum breaks already provided

for by state law for a narrow group of employers in a

specific industry located within a narrow geographic

region with a large union presence as being preempted

by federal labor laws and improperly irxerferes with the

free play of economic forces that Congress intended to

remain unregulated in the labor field?

il

TABLE OF CONTENTS

Page

COUNTER STATEMENT OF ISSUE ........ i

TABLE OF Capi pee cece e ewe cs cccecae. ii

TABLE OF CITED AUTHORITIES ......... iii

STATEMENT GF Beem tees ..--.....-..... 4

A. The Underlying Case ................. 4

REASONS FOR DENYING THE PETITION

Perr SE 6

I. Lower Courts Are Not Divided Over

Whether Minimum Labor Standards Are

Preempted By Federal Labor Law...... 6

II. The Decision Is Not Incompatible With

The Decisions Of This Court ........... 9

III. The Court Of Appeals Decision Does Not

Cast Doubt On Workplace Protection

ee 10

lil

TABLE OF CITED AUTHORITIES

Page

CASES

520 S. Mich. Ave. Assocs., Ltd. v. Shannon,

549 F'3d 1119 (7th Cir. 2008) ........... 7, 8, 9, 10

Associated Builders & Contrs. of S. Cal., Inc.

v. Acosta, 543 U.S. 814 (2004) .............. 6

Associated Builders & Contractors of So. Cal., Inc.

v. Nunn, 356 F.3d 979 (9th Cir. 2004) ........ 6

Chamber of Commerce of the United States

v. Bragdon, 64 F.3d 497 (9th Cir. Cal. 1995) .. 6,7

Dillingham Constr. N.A. v. County of Sonoma,

190 F.3d 1084 (9th Cir. 1999) ............... 7

Fort Halifax Packing Co. v. Coyne,

ee Rs hE 6 65 eas bho ees ae ae enews passim

Metropolitan Life Ins. Co. v. Massachusetts,

Gee Si Tee ee Ni ee ce cane eet passim

National Broadcasting Co. v. Bradshaw,

70 F.3d 69 (9th Cir. Cal. 1995) .............. 7

Rondout Elec., Inc. v. N.Y. State DOL,

335 F.8d 162 (2d Cir. N.Y. 2008) ..........06. 7

iv

Cited Authorities

Page

Viceroy Gold Corp. v. Aubry,

75 F.3d 482 (9th Cir. Cal. 1996) ............. 7

Washington Serv. Contractors Coalition

v. District of Columbia,

Se Poe Sik Cees Ge TD) occ ce sieccees 7

STATUTES AND LEGISLATIVE MATERIALS:

ee ee is a ao kee aoe eee 6, 9

NE eo aa 0g ccd wed Awe eae wee 1

ge BE Serer errr rere errr rr rer ys 1, 4

so oc ae. Cue e eer d See ees 1,2, 4,5

oo ae re ee ee errs 4

1

For years, Illinois by statute provided that

employees who worked more than seven and one-half

continuous hours were entitled to a minimum twenty

minutes meal period. This mininium break period was

explicitly deemed inapplicable where meal periods were

established through the collective bargaining process.

820 ILCS 140/83. Effective August 15, 2005, 2005 ILL.

ALS 598, Illinois enacted the Hotel Room Attendant

Amendment (“Attendant Amendment’), 820 ILCS 140/

3.1, which provided a vastly more liberal break period

for asmall, select group of hotel room attendant workers

working within a single Illinois county and failed to

exclude from application workers whose meal periods

were established through a collective bargaining process

or employers employing eligible room attendants like

the Respondent, 520 South Michigan Avenue Associates,

Ltd., d/b/a The Congress Plaza Hotel & Convention

Center (“Congress Plaza Hotel”), who were governed

by the National Labor Relations Act, 29 U.S.C. §151

et seq. (“NLRA”). In addition, a unique whistle blower

enforcement mechanism and drastic remedies were

provided in the Attendant Amendment. If an employee

established that he or she exercised rights under the

amendment or simply “alleged” in good faith that an

employer was not complying the amendment, and the

employee was thereafter terminated, demoted, or

otherwise penalized, the statute imposed a rebuttable

presumption deeming that the employer’s action was

taken in retaliation for the exercise of rights under the

amendment, with the burden of proof then shifting to

the employer to “prove that the sole reason for the

termination, demotion, or penalty was a legitimate

business reason.” 820 ILCS 140/3.1(g) (emphasis added).

Successful claimants were entitled to relief in the form

2

of back pay, reinstatement, and injunctive relief and in

some cases, ‘treble their lost normal daily compensation

and fringe benefits, along with interest, consequential

damages, and attorney’s fees and costs. 820 ILCS 140/

3.1(h).

Even though the earlier statutory miniinum twenty

minute meal period had not been repealed, Petitioners

attempted below to justify the Attendant Amendment

as being constitutional and was not preempted under

the NLRA claiming it was a permissible “minimum labor

standard” allowed under Metropolitan Life Ins. Co. v.

Massachusetts, 471 U.S. 724, 754 (1985) and Fort

Halifax Packing Co. v. Coyne, 482 U.S. 1, 20 (1987).

Applying the standards this Court set forth in

Metropolitan Life and Fort Halifax along with other

court of appeal decisions, the Seventh Circuit Court of

Appeals rejected Petitioners’ defense of the Attendant

Amendment and ruled that the law had exceeded the

scope of what constitutes a permissible “minimum labor

standard.” Petitioners mischaracterize the impact of the

court of appeals decision by claiming certiorari review

by this Court is appropriate because lower courts are

divided over whether minimum labor standards are

preempted by federal labor law, that the court of appeals

decision is incompatible with decisions of this Court, and

that the court of appeals decision casts doubt on the

validity of existing workplace protection laws. The

Petition fails to support these claims with sound

substantive argument and vastly overstates the impact

of a decision that narrowly applies to a specific

occupation, in a specific industry, in a specific county

and does not adequately justify the exercise of this

Court’s jurisdiction.

3

First, lower courts are not divided over whether

minimum labor standards are preempted by federal

labor law. The basic principles of law in this area are

well established and are uniform. This Court has already

published cases stating that true minimum labor

standards are not preempted and when they are

consistent with the standards this Court set forth in

Metropolitan Life and Fort Halifax, they will be

sustained as valid.

Second, the court of appeals decision is not

incompatible with decisions of this Court. The decision

relies on the very standards set forth by this Court in

Metropolitan Life and Fort Halifax in holding that the

law is preempted by federal labor laws. Since I}linois

has already established the appropriate break minimum

to be twenty minutes, and that law was still a valid

statute applicable to all workers-even hotel workers-

when the Attendant Amendment was passed, the court

of appeals appropriately ruled Illinois had exceeded its

powers in attempting to enact further regulation under

the disguise of a minimum labor standard.

Third, there is absolutely no basis for Petitioners to

assert that the court of appeals decision will case doubt

on workplace protection laws throughout the United

States. The court of appeals decision does not set forth

new law nor does it expand the restrictions pronounced

by this Court on when the law will and will not constitute

a valid minimum labor standard. Rather, it simply

decided that Illinois went too far in passing the

Attendant Amendment using the very standards this

Court set forth in earlier decisions. Other workplace

protection laws throughout the United States remain

valid and enforceable.

4

STATEMENT OF THE CASE

A. The Underlying Case

Effective August 15, 2005, 2005 ILL. ALS 598,

Illinois enacted the Attendant Amendment providing

that only hotel room attendant workers working within

a single Illinois county must be provided two paid fifteen

minute rest breaks and one thirty minute meal break.

820 ILCS 140/3.1. An earlier version of the paid break

law, not repealed as of the passing of the Attendant

Amendment and still a valid Illinois statute of general

application, provided that all [Illinois workers working

more than seven and one-half continuous hours were

entitled to a minimum twenty minute meal period. Unlike

the Attendant Amendment, the initially enacted

minimum break period is explicitly deemed inapplicable

where meal periods are provided for in a collective

bargaining process. 820 ILCS 140/38. As set forth above,

the Attendant Amendment also provided a drastic

whistle blower enforcement mechanism making available

to employees bountiful remedies which also shifted the

burden of proof to the employer where an employee

alleged there was a violation of the Attendant

Amendment. Where an employee simply “alleged” in

good faith that an employer was not complying the new

break law, and the employee was thereafter terminated,

demoted, or otherwise penalized, the statute imposed a

rebuttable presumption deeming that the employer’s

action was taken in retaliation for the exercise of rights

under the Attendant Amendment. Thereafter, the

burden of proof shifted under the statute to the

employer requiring it to “prove that the sole reason for

the termination, demotion, or penalty was a legitimate

5

business reason.” 820 ILCS 140/3.1(g) (emphasis added).

The remedies available to a successful claimant include

back pay, reinstatement, and injunctive relief and in

some cases, treble their lost normal daily compensation

and fringe benefits, along with interest, consequential

damages, and attorney’s fees and costs. 820 ILCS 140/

3.1(h).

The Congress Plaza Hotel challenged the Attendant

Amendment as being passed in violation of the United

States Constitution Supremacy Clause and contended

that the Attendant Amendment was preempted under

the NLRA. Petitioners responded to the challenge by

claiming that the Attendant Amendment was not

preempted and constitutes a permissible “minimum

labor standard” allowed under Metropolitan Life and

Fort Halifax. The Seventh Circuit Court of Appeals

rejected Petitioners’ defense of the Attendant

Amendment ruling that the law had vastly exceeded the

scope of what Petitioners claim was a permissible

“minimum labor standard.” The Attendant Amendment

did not simply form a backdrop for negotiations or

constitute an isolated statutory provision of general

application as approved in this Court’s Metropolitan

Life and Fort Halifax decisions addressing the same

subject. Instead, the court of appeals concluded, rather

than being a law of general application, the Attendant

Amendment was much more invasive and impermissibly

targeted a specific occupation, in a specific industry, in

a specific county.

6

REASONS FOR DENYING THE PETITION

I. Lower Courts Are Not Divided Over Whether

Minimum Labor Standards Are Preempted By

Federal Labor Law.

1. To establish a conflict among the federal

appellate courts, Petitioners must identify some

appellate court decision involving the same important

matter that is actually in conflict with the challenged

decision and not merely assert that the case challenged

was incorrect in distinguishing the application of one

case over another. Sup. Ct. R. 10. The cases referenced

by Petitioners fail to show any actual conflict between

the court of appeals decision and decisions in other

circuits involving the same matter. For example,

Petitioners take issue with the court of appeals decision

and its reliance on Chamber of Commerce of the United

States v. Bragdon, 64 F.3d 497 (9th Cir. Cal. 1995) in its

analysis. Pet. at 13 and 14, Petitioners describe Bragdon

as being in conflict with Associated Builders &

Contractors of So. Cal., Inc. v. Nunn, 356 F.3d 979, 990

(9th Cir. 2004). Pet. at 15. However, Bragdon was already

published when Nunn was decided and the Ninth

Circuit did not overruled Bragdon even though both

decisions are from the same circuit. Further, this Court

did not determine there to be a conflict between the

two cases sufficient to warrant further review since this

Court refused issuance of a writ of certiorari of the later

Nunn decision when review was sought in that case. See,

Associated Builders & Contrs. of S. Cal., Inc. v. Acosta,

543 U.S. 814 (2004).

7

Petitioners’ reliance upon Dillingham Constr. N.A.

v. County of Sonoma, 190 F.3d 1034 (9th Cir. 1999),

Viceroy Gold Corp. v. Aubry, 75 F.3d 482 (9th Cir. Cal.

1996), and National Broadcasting Co. v. Bradshaw, 70

F.3d 69 (9th Cir. Cal. 1995) (Pet. at 14 and 15) do not

show any conflicts in the circuits but instead simply

demonstrate that some laws enacted pass constitutional

challenge while others do not. Likewise, Rondout Elec.,

Inc. v. N.Y. State DOL, 335 F.8d 162 (2d Cir. N.Y.

2003)(Pet. at 14) did not reject the analysis relied upon

by Bragdon to support its decision. Instead, the

Rondout court merely distinguished the decision as

being inapplicable to its holding. See, Rondout Elec.,

335 F.3d at 169 (“[h]Javing distinguished Bragdon, we

have no need to decide whether Bragdon was correctly

decided on its own facts”).

Finally, Washington Serv. Contractors Coalition v.

District of Columbia, 54 F.3d 811 (D.C. Cir. 1995)( Pet.

at 17) was adequately addressed by the Seventh Circuit

Court of Appeals in its opinion when the court noted

that the statute in Washington Serv. did not simply

target a “particular occupation,” as Petitioner suggests,

but instead by its terms it expressly applied to multiple

occupations including “persons who performed ‘food,

janitorial, maintenance, or nonprofessional health care

services,’” 520 S. Mich. Ave. Assocs., Ltd. v. Shannon,

549 F.3d 1119, 1135 (7th Cir. 2008), something the

Attendant Amendment fails to do. Again, as the court

of appeals noted, Washington Serv. is not in conflict with

the underlying decision but instead is simply not

supportive of Petitioners’ claim.

8

In sum, a carefui examination of the cases relied

upon by Petitioners to seek review shows no conflict

between the underlying decision and decisions of

other circuits. Instead, the cases uniformly apply the

reasoning and standards set forth by this Court in the

Metropolitan Life and Fort Halifax decisions and

adequately decide which challenged laws fall within

constitutional guidelines and which do not. No new

standards are developed in the underlying opinion and

the opinion does not conflict with the standards used in

other cases.

2. Despite Petitioners’ claims, it was not just the

Attendant Amendment’s targeting of a specific and

narrow group or class of workers in a specific and limited

locale that the court of appeals found failed to pass

constitutional muster. Pet. at 17. The court of appeals

also considered the unique and drastic enforcement and

remedies section of the law to determine it unfairly

intruded on federal labor laws. Shannon, 549 F.3d 1136.

Other decisions that recognize and acknowledge that

statutes in other areas of law sometimes target specific

populations (Pet. at 17) does not show a conflict in the

underlying decision but simply recognizes a state of the

laws on the books. Unless the laws are challenged as

being in conflict with federal labor laws, acknowledging

that legislation targeting specific communities is an

inconsequential fact. When targeted legislation unduly

intrudes upon an area that Congress has preempted,

then the legislation is subject to being challenged.

9°

3. Finally, the fact that the court of appeals decision

rejects the appellate court decision of the State of

Illinois upholding the law is an insufficient reason for

review under Rule 10. Pet. at 20. Rule 10 requires that

there be a conflict either with a decision of another

United States court of appeals or a conflict between a

decision by a state court of last result. Sup. Ct. R. 10.

Here, the matter was addressed by an Illinois appellate

court, not the Illinois Supreme Court. As the court of

appeals duly noted, “[w]e ‘owe[ | no deference to state-

court interpretation of the United States Constitution.”

Shannon, 549 F.3d at 1124.

II. The Decision Is Not Incompatible With The

Decisions Of This Court.

As noted earlier, the court of appeals decision is not

incompatible with decisions of this Court. The court of

appeals decision relies on the same standards set forth

by this Court in Metropolitan Life and Fort Halifax

along with other circuit court decisions in ruling that

the Attendant Amendment is preempted by federal labor

laws. Illinois had already established the appropriate

break minimum to be twenty minutes, and this law

was still a valid statute applicable to all workers

when the Attendant Amendment was passed. Applying

Metropolitan Life and Fort Halifax, the court of

appeals simply ruled that Illinois had exceeded its

powers in attempting pass the Attendant Amendment

by claiming it was a permissible minimum labor standard

when the state had already set the minimum break at

twenty minutes. Petitioners fail to recognize that it was

not simply the multiple breaks that the Attendant

Amendment provided or the Illinois legislature’s

10

attempt to target and benefit a small labor pool with a

strong union presence that the court of appeals

considered in determining the law was preempted.

Rather, it was also the exceedingly harsh and drastic

enforcement mechanism, unlike any other law Illinois

had on the books, that the court of appeals found to be

an intolerable interference with federal labor law.

Finally, the court of appeals did not invalidate the

Attendant Amendment because the law did not contain

an “opt-out” for labor agreements as Petitioners

contend. Pet. at 32. Indeed, the court of appeals noted

that had the law constituted a true minimum labor

standard that did not interfere with the collective

bargaining process, “the fact that the State law

mandates different terms and conditions than those

contained in an expired CBA would be irrelevant.”

Shannon, 549 F.3d at 1139. Contrary to the assertion of

Petitioners, true minimum labor standard laws can be

applied to change the terms of the bargaining

agreement and do not need “opt-out” language to pass

constitutional standards.

III. The Court Of Appeals Decision Does Not Cast

Doubt On Workplace Protection Laws.

For their final argument in favor of review,

Petitioners assert that the court of appeals decision will

case doubt on workplace protection laws throughout the

United States. Pet. at 35. This unfounded fear is

countered by the fact that Petitioners fail to cite to a

single workplace protection law that has been ruled

unconstitutional based on the court of appeals decision

even though the decision has been published since

11

December 2008. The decision neither sets forth new law

nor different standards than those pronounced by this

Court in Metropolitan Life and Fort Halifax as to when

a law will constitute a valid minimum labor standard. —

Rather, the opinion simply decided that Illinois went too

far in passing the Attendant Amendment using the very

standards this Court provided in earlier decisions. In

fact, Petitioners themselves concede to the lack of

significance in the underlying decision by arguing that

only the Respondent will be bound by the decision. Pet.

at 21. According to Petitioners, all other hotels are

bound by the challenged law in light of the earlier Illinois

appellate court opinion upholding the law. Therefore,

the importance and impact of the decision is negligible

in Tlltuois.

Petitioners assert that it is common for other state

laws to provide minimum labor standards that target

particular occupations and locales. Pet. at 36. However,

these laws do not explicitly limit their application to a

finite geographic location and designated class of

workers where union membership is strongest. Instead,

they apply to occupations throughout the state. Further,

no where do Petitioners cite to a workplace protection

statute that prevides such drastic and unique

enforcement mechanisms and remedies. The Attendant

Amendment does not merely create a “rebuttable

presumption” (Pet. at 40) if adverse action is taken.

Instead, it completely shifts the burden of proof to the

employer and then demands that it prove that the sole

reason for the termination, demotion, or penalty was a

legitimate business reason.

12

CONCLUSION

For all the reasons set forth above, This Court

should deny the Petition for Certiorari.

Respectfully submitted,

PETER ANDJELKOVICH

PETER ANDJELKOVICH

& ASSOCIATES

39 South LaSalle Street

Suite 200

Chicago, Illinois 60603

(312) 782-8345

Attorney for Respondent