Amicus Curiae Brief — Kraft Foods Global, Inc. v. Spoerle

5 este Cour, US

FILED

No. 10-580 DEC 2 - 2010

OFFICE OF THE CLEP?

— 4

In The

Supreme Court of the United States

>

KRAFT FOODS GLOBAL, INC

OSCAR MAYER FOODS DIVISION

ry

Petit

JEFF SPOERLE, NICK LEE, KATHI SMITH

IASON KNUDSON, On Behalf of Themselves and

All Others Who Consent to Become Plaintiffs and

Similarly-Situated Employee

kd por ger

€

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

”

BRIEF AMICI CURIAE OF AMERICAN MEAT

INSTITUTE, NATIONAL ASSOCIATION OF

MANUFACTURERS, NATIONAL MEAT

ASSOCIATION AND NATIONAL TURKEY

FEDERATION IN SUPPORT OF PETITIONER

e

BRIAN WEGG BULGEI

Counsel of Record

JOSEPH E. TILSON

MECKLER BULGER TILSON

MARICK & PEARSON LLP

Suite 1800

123 North Wacker Drive

Chicago, [IL 60606

(312) 474-7900

brian.bulger@mbtlaw.com

Attorneys for Amict Curiae

COCKLE LAW BRIEF PHINTING CO) Os00 » 6464

OR CALL COLA.BCT (402) 44 i}

TABLE OF CONTEN'T

TABLE OF AU THORITIE

INTEREST OF THE AMICI CURTA/

BRIEF OF AMICT CURIAKL IN SUPPORT OQ]

PETITION FOR WRIT OF CERTIORARI

SUMMARY OF ARGUMEN'

ARGU MEN’

REASONS FOR GRANTING THE OnwTrrioN

A The Decision Below Interfere With

Collectively-Bargained \vreement \N

With Long-ttustablished (Custom MI

Practice Of Amici Member \nd Ti

Repre ented Worke! And ‘Thu Pose

Question Of National Import '

rantiny WCertliorari

The Decision Kelo Conflict Wit)

lenets Of Congr And Tt] Court J

National Labor Policy nould be

lorm And Multiple Ground MmxIst For

Federal Preemption Of The Late La

T

ihe Protection And Entiorceme

Collective Bargaining Right LU nae

The NLRA And Sectior (Ol OF LMI

Rhequire Preemptiot

TABLE OF AUTHORITIES

CASES

Allen v. McWane, Inc., 593 F.3d 449 (5th Cir.

RRNA 440 SR ER Re AN NS oe SERRE ee 23

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

Na hat as 2 A, Oe eo Ae ROPER a 6. 15, 16, 24

Anderson v. Cagle’s, Inc., 488 F.3d 945 (11th

Cir. ef Face armanesatt, AEGAN ORR OT MT ea een IE errr

Anderson v. Yungkau, 329 U.S. 482 (1947)................24

Chamber of Commerce v. Brown, 554 U.S. 60

eee wae a0. Ss!

English v. General Electric Co., 496 U.S. 72

I AA 13

Franklin v. Kellogg Co., 619 F.3d 604 (6th Cir.

a Pete aN ack Ae RO OR -. a en

Garner v. Teamsters, 346 U.S. 485 (1953) . OE) |

Hughes Tool Co., 147 N.L.R.B. 1573 (1964)...............16

Lahor Board v. Katz, 369 U.S. 736 (1962) ................... 9

Machinists v. Wisconsin Emp. Rel. TT

Be ee I I ih kvveencdinseciconccacianes ht, 20, 2)

Malone v. White Motor Corp., 435 U.S. 497

NI slice Sac uk Poh gsi panies 24

Motor Coach Employees v. Lockridge, 403 U.S.

vg RE So & ) RRR greet Renn eren na ean enadmcanncersued 19

Nash v. Florida Industrial Comm’n, 389 U.S.

Be I ee ad ee a Ae eS L9

TABLE OF AUTHORITIES — Continued

Page

Pacific Gas & Elec. v. Energy Resources

Comm'n, 461 U.S. 190 (1983)..... Rie wr 3

Retail Clerks v. Schermerhorn, 375 U.S. 96

RUN RRO 02 ee ee ee ee 24

San Diego Building Trades Council v. Garmon,

359 U.S. 236 (1959) ..0, £7, 19, 20

Sepulveda v. Allen Family Foods, Inc., 591 F.3d

209 (4th Cir. 2009) ............. AAAS R Ret ep ta Ot 23

Teamsters v. Lucas Flour Co.. 369 U.S. 95

SRS cee ene me cee arpa it Loe Le

(Poel SO wee BPR a ye BO)” |: ee |

Textile Workers v. Lincoln Mills, 353 U.S. 448

EE By ee 13. 14

U.S. v. Locke, 529 U.S. 89 (2000)........... es wes

Vacca v. Viacom Broadcasting of Missourt, Inc.,

BIO Foe toot Cr Cit, LOGO) on. onscscccvcscccccecss |

Wisconsin Dept. of Industry v. Gould Inc., 475

OF ee, We (RG) vise cssccececssscss 18, 19

STATUTORY PROVISIONS

29 U.S.C. §151 12

oe U.GA. $6167, 156.........:.. ee

23 U.S.C. $203(0) ......... eee , wena passim

29 U.S.C. §207(a)(1)... Wesacunen

TABLE OF AUTHORITIES — Continued

Page

29 U.S.C. §218(a). eorey ee

i BOSS ORE) Hani Sah nee passim

National Labor Standards Act, Sections 7 and

i as axe ver eedeiuas eassacsaraedcass eacetisees passim

Supreme Court Rule 10............. 5

Supreme Court Rule 37.2..

Supreme Court Rule 37.6.

OTHER AUTHORITIES

Elkouri and Elkouri, How Arbitration Works

(Sixth Edition, 2009, American Bar Associa-

rt aed PNA rl eS aS RT ee oe Bea, 9

93 Cong. Rec. 612-17 (1947).......... iz

93 Cong. Rec. 1023-33 (1947)..................... 12

95 Cong. Rec. 11210 (1949) and App. 75-78...............24

U.S. Constitution, Article VI. el. 2.. . 13

INTEREST OF THE AMICI CURIAE

Amicus curtae American Meat Institute (“AMI”)

is the oldest and largest national trade association

representing packers and processors of beef, pork,

lamb, veal, turkey and processed beef products.

Amicus’ member companies produce more than 95

percent of the meat products available in the United

States. Amicus curiae National Meat Association

(“NMA”) is a national trade association that has been

advocating the interests of the meat industry since

1946. NMA members include packers, processors, and

distributors of meat and meat products. Anziicus

curiae National Turkey Federation (“NTF”) is the

only national trade association representing the

turkey industry exclusively. NTF represents more

than 95 percent of the turkey industry in the United

States, including breeders, hatchery owners, growers,

and processors.

There are more than 526,000 workers employed

in the meat and poultry packing and processing

industries in the United States. Amuict members

Pursuant to Supreme Court Rule 37.2 the parties have

received timely notice of the intent to file and have consented to

the filing of this brief amici curiae. Their letters of consent have

been filed with the Clerk of this Court. Pursuant to Supreme

Court Rule 37.6, amict state that this brief was not authored in

whole or part by counsel for a party, and no person or entity,

other than amici, made a monetary contribution for the prepara

tion or submission of this brief. Petitioner is a member of amici,

but has not provided any financial support for this bref, other

than its normal dues payments

contribute to the U.S. Gross Domestic Product in an

amount of more than $156 billion

The National Association of Manufacturers

(“NAM”) is the nation’s largest industrial trade

association, representing small and large manufac-

turers in every industrial sector and in all 50 states.

The NAM’s mission is to enhance the competitiveness

of manufacturers by shaping a legislative and regula

tory environment conducive to U.S. economic growth

and to increase understanding among policymakers,

the media and the general public about the vital role

of manufacturing to America’s economic future and

living standards. The manufacturing sector is respon

sible for over $4.5 trillion in sales each year

Of the 500,000 plus workers employed by amucer

AMI, NMA and NTF members, about 60% are cur-

rently members of unions which represent their

interests through collective bargaining. Over 11

million Americans are employed in the manufactur-

ing sector, and over 1.5 million are umion-represented.

These union workers and their representative un-

ions typically negotiate and execute collective bar-

gaining agreements (“CBAs”) for one or more years

with amici members. Those CBAs govern the wages,

hours and working conditions of the represented

workers. In some cases, amici members and their

unions have been parties to CBAs for decades. Many

amict members and their unions have expressly

addressed Clothes-Changing Time issues in CBAs,

as did Petitioner here. Other amici members and

wy

their unions have addressed Clothes-Changing Time

through established customs and past practices

under their CBAs.

Amict and their unionized members have a

compelling interest in the question presented by this

case. Amici members already are inundated with

Clothes-Changing Time and other wage-hour law-

suits. In many cases, these are “hybrid” actions

brought under both state and federal law. As noted,

amici members have addressed Clothes-Changing

Time issues both expressly and implicitly in their

CBAs. They have done so in reliance upon Section

203(0) of the Fair Labor Standards Act (“FLSA”), 29

U.S.C. §203(0), that reserves to unions and employers

the right to negotiate and define in CBAs whether

represented workers’ Clothes-Changing Time will be

compensable under the FLSA, or to achieve the same

result through established customs and practices

under a CBA. The Seventh Circuit’s decision below

calls into question, for the first time by a Circuit

Court, the long-established express CBA provisions

and practices of amict members, and their union-

represented workers, as to Clothes-Changing Time.

If permitted to stand, the decision below deprives

workers and their employers of the benefits struck

through collective bargaining on this issue. The

decision below also subjects represented workers and

their employers to a potential patchwork of state and

local laws and ordinances which intrude on their

rights guaranteed under Sections 7 and 8 of the

National Labor Relations Act (“NLRA”), 29 U.S.C.

§$157, 158, to organize and to bargain collectively

over wages, hours and working conditions; Section

301 of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. §301, which provides the mech-

anism to enforce CBAs, and by Section 203(0) of

FLSA, to collectively bargain for inclusion or exclu-

sion of Clothes-Changing Time as compensable time

under FLSA. The decision below could destroy the

national uniformity of the law of collective bargaining

desired by Congress and repeatedly recognized by

this Court as appropriate. It also ignores the com-

mand of Section 203(0) reserving the issue of FLSA

compensability for Clothes-Changing Time to collec-

tive bargaining for represented workers. The uncer-

tainty, confusion and undesirable policy contained in

the decision below have, and will continue to have,

adverse effects on amici members and their repre-

sented workers by destroying the carefully-crafted

compromises and long-established practices on com-

pensability of Clothes-Changing Time contained in

their CBAs. Such interference also denies workers

and amici members the opportunity to freely negoti-

ate, without state or local governmental interference,

such compromises in the future. If not checked, state

and local interference with this part of the collective

bargaining process will likely continue to grow. The

Court should act now to prevent such disruption.

Therefore, amici respectfully urge this Court to

grant the Petition under Supreme Court Rule 10.

This truly is a case of first impression as the Seventh

Circuit recognized in its decision, Appendix 5 (herein-

after “App.”). This is also a case of national im-

portance extending far beyond the concerns of amici

and their members which should be resolved by this

Court as soon as possible.

BRIEF OF AMICI CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

SUMMARY OF ARGUMENT

The decision below’ interferes’ with long-

established customs, practices and express CBA

provisions of amici members. If allowed to stand, the

decision below will adversely impact the rights of

amict members, and their represented workers, to

bargain and reach agreement on Clothes-Changing

Time without state and local regulatory interference.

Such a result should not be countenanced by the

Court.

The primary purpose of Congress in enacting the

National Labor Relations Act was to promote stability

in labor relations and reduce the deleterious effects of

unregulated combat between unions and employers.

The 1947 LMRA amendments to the NLRA provided

a CBA enforcement mechanism in Section 301 lacking

under NLRA. Congress thus evinced a greater com-

mitment to a uniform national labor policy with

6

passage of LMRA, as this Court has recognized

repeatedly. This Court has often found that the need

for such uniformity preempts state and local efforts to

impose regulations and limitations impinging upon

the process of collective bargaining engaged in by

employers and workers and protected by Section 301,

LMRA, 29 U.S.C. Section 301, and by Sections 7 and

8 of the NLRA, 29 U.S.C. Sections 157 and 158. See,

e.g., Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

(1985); Teamsters v. Lucas Flour Co., 369 U.S. 95

(1962).

Amici believe multiple bases exist for finding

that the state law at issue here is preempted. Specifi-

cally, Section 301 of the LMRA, 29 U.S.C. §301, and

the doctrine of federal preemption, along with the

preemption doctrines established by this Court in

San Diego Building Trades Council v. Garmon, 395

U.S. 236 (1959), and Machinists v. Wisconsin Emp

Rel. Comm’n, 427 U.S. 132 (1976), all require that the

State of Wisconsin’s attempt here to interfere with

collective bargaining is preempted, and that the

decision below should be reversed.

Following controversy and uncertainty over the

impact of the FLSA on Clothes-Changing Time issues

negotiated by represented workers and employers, in

1949 Congress clarified its position both on the

NLRA/LMRA and on the impact of the FLSA upon a

specific aspect of collective bargaining with passage of

Section 203(0). Section 203(0) mandates a “hands-off”

policy both under FLSA and NLRA/LMRA when

employers and their represented workers negotiate

questions of compensability for Clothes-Changing

Time either expressly or through established customs

and past practices.

It 1s inconceivable to amici that these Congres-

sional commands were meant to apply only to claims

for compensation under the FLSA, and not to similar

claims under state and local laws. Such a result is,

however, precisely what the decision below holds to

be the case. The decision below is simply wrong. The

need for uniformity of labor policy, and the protection

of the rights of collective bargaining in Sections 7 and

8 of the NLRA, together with the specific protection of

the particular facet of collective bargaining addressed

in Section 203(0) of FLSA, can lead only to the con

clusion that Congress meant. to preempt collectively-

bargained Clothes-Changing Time issues from regu-

lation by state and local authorities.

—¢+

ARGUMENT

REASONS FOR GRANTING THE PETITION

A. The Decision Below Interferes With Collec-

tively-Bargained Agreements And With

Long-Established Customs And Practices Of

Amici Members And Their Represented

Workers, And Thus Poses A Question Of Na-

tional Importance Warranting Certicrari

Traditionally, amici members have relied upon

the specific provisions of Section 203(0) to address

Clothes-Changing Time either expressly in a CBA, as

did Petitioner here, or through established customs or

past practices. Such reliance can hardly be misplaced

given the language of Section 203(o):

Hours Worked — In determining for the pur

poses of Sections 206 and 207 the hours for

which an employee is employed, there shall

be excluded any time spent in changing

clothes or washing at the beginning or end of

each workday which was excluded from

measured working time during the week in-

volved by the express terms of or by custom or

practice under a bona fide co!lective bargain

ing agreement applicable to the particular

employee. 29 U.S.C. §203(0) (emphasis added).

In its Statement of the Case, Petitioner recount

ed how, for more than a quarter-century, Petitioner

and its union-represented workers specifically ad-

dressed the compensability of Clothes-Changing

Time through collective bargaining. Petition, 3-4.

Petitioner’s experience is not unique among amici

members. Many amici member-employers, through

collective bargaining, have agreed to extend benefits

to represented workers in exchange for removal or

limitation of Clothes-Changing Time, and have me-

morialized those agreements in their CBAs, as did

Petitioner.

Other amici member-employers have addressed

this issue through established customs and operating

procedures which do not appear in a CBA. Such

implicit handling of the Clothes-Changing Time issue

usually is termed an established “past practice.”

Established customs and past practices cannot be

changed or eliminated unilaterally by a unionized

employer except through collective bargaining. These

customs and practices are also enforced under the

CBA’s arbitration provision when disagreements arise

(and may also be enforced through actions under

LMRA Section 301, 29 U.S.C. §301). “In certain

circumstances, custom and past practice may be held

enforceable through arbitration as being, in essence,

a part of the parties ‘whole’ agreement.” Elkouri and

Elkouri, How Arbitration Works, 606 (Sixth Edition,

2009, American Bar Association). An attempt to

change past practice and the status quo without

bargaining infringes on represented workers’ rights

under the NLRA, and will be deemed a violation of

Sections 8(a)(1) and 8(a)(5) by the employer (interfer

ence with employees’ Section 7 rights and failure to

bargain over wages, hours and working conditions)

29 U.S.C. §$158(a)(1) and (a)(5); Labor Board v. Katz,

369 U.S. 736 (1962).

This case presents facts demonstrating an

explicit trade between Petitioner and its represented

workers. This trade was expressly memorialized in

multiple CBAs which conferred extra benefits on

employees through negotiations in exchange for

elimination of claims for Clothes-Changing Time

compensation. Petition, 3-4. The reasons for such an

exchange by an employer are obvious and are shared

by many amici members: the relatively small

amount of time spent changing imposes a dispropor

tionate administrative burden on employers to ac

count and pay for such time as compensable time

“Umployers are thus willing to confer, through negot:

ations and pasi practices, additional benefits in .

exchange for relief from that administrative burden

employees are willing to forego this minimal pay in

p

return for more certain and substantial benefit a

happened here

The exchange may be reflected in a CBA provi

sion, in a side letter of agreement, through a hand

shake agreement and through the process in which

established customs and practices attain the status of

“rights” under a CBA. In any of these circumstance

a change by the employer will lead to invocation of

the CBA’s arbitration provision to permit a third

party construction of the mghts of the parties to

continuation, change or elimination of compensability

: for Clothes-Changing Time. Consequently, to the

extent represented workers assert a claim for unpaid

wages under state or local laws, those claims ar

dependent upon analysis of the terms of the CBA

Amici members often operate acro a number ol

states and municipalities. These members historically

have often engaged in a form of “pattern” bargaining

[In those cases, either a single CBA or multiple, virtu

ally identical contracts will apply across many state:

cities and operations. Compensability of Clothe

Changing Time will be expressly determined through

CBA language in some cases; in other cases the issue

is resolved through custom and practice under the

CBA. In either situation, permitting state and local

governments to legislate Clothes-Changing ‘Time

deprives the parties of the benefits they agreed upon

through collective bargaining, and interfer vith the

proces of collective bargaining itsell

To permit a shifting landscape of local laws on

this issue interferes with existing agreements and

will disrupt future negotiations. It runs the risk of

treating similarly situated workers differently de

pending on location. It also adds tremendous com

plexity and expense to bargaining and destroy

reasonable eflorts at multi-state uniformity by amici

member and their union-represented worker

Moreover i] u¢ h local ler! lation J not checked now

it will grow and add to the already heavy litigatior

ind compliance burdens of amict member

At a bare minimum the decision below

require further bargaining by Seventh Circuit em

ployers, including the potential for labor strife. It also

place uch employers at r) k tO] Lal and local

claims for Clothe Changing hime, de pile ni yotiated

CBA provisions or e tablished past practices pover!

ing this issue. In reality, the decision below reache

far beyend the Seventh Circuit. Employers who fail t

act based on the decision below run great risks o

hability under tate and local law outside thi

Seventh Circuit hould the decision below be followed

in other circuit such disruption hould not |

countenanced by the Court ind tate and local iV

regulating compensability of Clothes-Changing Tim:

hould be preempted by federal law protecting col

t }

af | if

Live bargaining ol

12

B. The Decision Below Conflicts With The

Tenets Of Congress And This Court That

National Labor Policy Should Be Uniform,

And Multiple Grounds Exist For Federal

Preemption Of The State Law At Issue

1. The Protection And Enforcement Of Col-

lective Bargaining Rights Under The

NLRA And Section 301 Of LMRA Require

Preemption

From the inception of the NLRA in 1935, Con-

gress sought to achieve labor peace and stability by

enshrining collective bargaining in federal law and

establishing a national tribunal, the National Labor

Relations Board (“NLRB”), to enforce those national

policy objectives. 29 U.S.C. Section 151.

The need for a uniform national labor law was

further refined in the Taft-Hartley Amendments to

the NLRA, which became the Labor Management

Relations Act (““LMRA”) in 1947. The Congressional

debates confirm the sanctity of collective bargaining,

but also demonstrate a desire that a forum and

mechanism other than the NLRB be established to

enforce CBAs by permitting such actions in state and

federal courts. See 93 Cong. Rec. 612-17 (1947)

(statements of Rep. Hartley); 93 Cong. Rec. 1023-33

(1947) (statements of Sen. Taft). Section 301 was bern

from that desire and the debates.

It is from this historical background that the

multiple doctrines determining that federal labor

laws should preempt many state and local labor laws

13

arise. Of course, preemption doctrines all stem from

the Supremacy Clause, which states: “|T]he Laws of

the United States ... shall be the ia ha Law of the

Land[.]” U.S. Const. Art. VI, cl. 2. Preemption may

take various forms including express (when Congress

explicitly states federal law preempts state law), field

(where Congress has occupied an entire field with

legislation) and conflict (state laws preempted be-

cause of conflict with federal laws). See Pacific Gas &

Elec. v. Energy Resources Comm’n, 461 U.S. 190, 203-

204 (1983). The doctrines are not rigidly distinct, and

cases in one area may aid interpretation in another.

See English v. General Electric Co., 496 U.S. 72, 79

n.5 (1990). Permitting the states to interfere with the

collective bargaining process through regulations

such as those at issue here can only have an adverse

impact upon a uniform national labor policy. This is

especially true when the bargaining at issue is over a

subject expressly authorized by Congress in Section

203(0).

This Court has held that regardless of whether

Section 301 actions are brought in state or federal

court, Section 301 itself requires application of feder

1 at tan t f5 sh} * th a

QQ ab anna fy ATTY +hnr VsPU? ¢

«AA NU oOol aA iat iOTi Lu Ri via wil AA a Vi Wiad

sro il. Yr

A . 4 +

ive law

national labor laws. Tea ‘tile Workers v. Lincoln Mills,

353 U.S. 448, 456-457 (1957). Later, the Court again

upheld Congress’ interest in % iving uniformity in the

law as it applied to CBAs by rejecting a theory that

state courts remained free to apply individualized

local rules under Section 301 in TJeamsters v. Lucas

Flour Co., 369 U.S. 95 (1962):

Id.,

14

The dimensions of § 301 require the conclu

sion that substantive principles of federal la-

bor law must be paramount in the area

covered by the statute. Comprehensiveness

is inherent in the process by which the law is

to be formulated under the mandate of Lin

coln Mills, requiring issues raised in suits of

a kind covered by § 301 to be decided accord-

ing to the precepts of federal labor policy.

More important, the subject matter of

§ 301(a) “is peculiarly one that calls for uni-

form law.”

The importance of the area which would

be affected by separate systems of substan-

tive law makes the need for a single body of

federal law particularly compelling. The

ordering and adjusting of competing inter-

ests through a process of free and voluntary

collective bargaining is the keystone of the

federal scheme to promote industrial peace.

State law which frustrates the effort of Con-

gress to stimulate the smooth functioning of

that process thus strikes at the very core of

federal labor policy. With due regard to the

many factors which bear upon competing

state and federal interests in this area, we

cannot but conclude that in enacting § 301

Congress intended doctrines of federal labor

law uniformly to prevail over inconsistent

local rules.

103-104 (citations omitted).

[In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

(1985), the Court further broadened the scope of

Section 301 preemption, holding that not only claims

alleging breach of collective-bargaining agreements,

but also claims that are “substantially dependent

upon analysis of the terms of an agreement made

between the parties” preempt state law. Id., 220;

Vacca v. Viacom Broadcasting of Missouri, Inc., 875

F.2d 13837, 1342 (8th Cir. 1989) (citing Lueck). The

need for such a rule is based on the need for uniformi-

ty in labor policy, and this is true even if Congress

has not completely occupied the field.

If the policies that animate §301 are to be

given their proper range, however, the

preemptive effect of §301 must extend be-

yond suits alleging contract violations. .. .

The interests in interpretive uniformity and

predictability that require that labor-

contract disputes be resolved by reference to

federal law also require that the meaning

given a contract phrase or term be subject to

uniform federal interpretation. Thus, ques-

tions relating to what the parties to a labor

agreement agreed, and what legal conse-

quences were intended to flow from breach-

es of that agreement, must be resolved by

reference to uniform federal law, whether

such questions arise in the context of a suit

for breach of contract or 1n a suit alleging Li-

ability in tort. Any other result would ele

vate form over substance and allow parties

to evade the requirements of § 301 by

16

relabeling their contract claims as claims for

tortious breach of contract.

Lueck, 211 (citation omitted).

In order to determine what activities the union

and the company agreed to exclude from paid time,

and how many minutes the union and company

agreed to pay for “hours worked” in donning and

doffing activities, the lower court here will necessari-

ly be required to examine the agreement in the CBA.

In other words, to determine whether Plaintiffs are

owed any unpaid wages under state law requires the

lower court to interpret the CBA. Because the state

claim here for Clothes-Changing Time requires the

interpretation of the CBA between the Petitioner and

its union, under well-settled precedent of this Court

such a state law claim is preempted by Section 301 of

the LMRA.

We recognize that the decision below characteriz-

es the situation here as one in which parties collec-

tively-bargained an agreement contrary to state law.

To drive this point home, the decision below crafts an

analogy — bargaining away speed limits — and rejects

the parties’ ability to do so. App. 7. The analogy is

inapposite here. Speed limits are not within the

purview of collective bargaining, nor would other

unlawful activities, such as bargaining the right to

discriminate on the basis of race or gender, fall within

it. Indeed, such subjects would be deemed illegal

subjects of bargaining. See, e.g., Texas Co., 78

7 o re

N.L.R.B. 971, 981-82 (1948); Hughes Tool Co., 147

17

N.L.R.B. 1573 (1964). On the other hand, Congress in

the NLRA protected bargaining over wages, hours

and working conditions. Moreover, Section 203(0) ex-

panded that endorsement into the specific area ad-

dressed through bargaining here: Clothes-Changing

Time. This hardly constitutes bargaining about

unlawful activity or even an area left to the purview

of the states.

Whether addressed expressly in a CBA, as here,

or through past practice and custom, Clothes-

Changing Time issues clearly arise under and as part

of CBAs. These issues can be arbitrated under CBA

provisions. And their requirements can be enforced

either by the National Labor Relations Board or

through actions under Section 301. It is thus clear

that, regardless whether Clothes-Changing Time is

expressly defined in a CBA or is implicitly handled

through past practice, any state law purporting to

regulate such time is “inextricably intertwined” with

a CBA which has been agreed to by the parties.

2. The Garmon and Machinists Doctrines Of

Preemption Also Support Reversing The

Decision Below Which Permits Actual

Conflict With Federal Labor Law

Recognizing that the lines of preemption doc-

trines can be blurry, amici submit that the doctrines

of Garmon and Machinists preemption add weight to

the arguments supporting preemption addressed

above. Although Congress may not have completely

18

occupied the field of labor law, this Court has defined,

generally quite broadly, the extent of that occupation

through its decisions. “When it is clear or may fairly

be assumed that the activities which a State purports

S

to regulate are protected by §7 of the National Labor

Relations Act, or constitute an unfair labor practice

under §8, due regard for the federal enactment re-

quires that state jurisdiction must yield.” So, too,

here Wisconsin’s attempt should yield because it

interferes with the protected Section 7 right to bar-

gain, and with the Section 8 scheme to enforce those

rights. San Diego Building Trades Council v.

Garmon, 359 U.S. 236, 244 (1959).

In yet another case arising out of an attempt

by Wisconsin to intrude on federal labor policy,

Wisconsin Dept. of Industry v. Gould Inc., 475 US.

282 (1986), the Court said:

It is by now a commonplace that in passing

the NLRA Congress largely displaced state

regulation of industrial relations. Although

some controversy continues over the Act’s

pre-emptive scope, certain principles are rea-

sonably settled. Central among them is the

general rule set forth in San Diego Building

Trades Council v. Garmon, 359 U.S. 236

(1959), that States may not regulate activity

that the NLRA protects, prohibits, or arguably

protects or prohibits. Because “conflict is

imminent” whenever “two separate remedies

are brought to bear on the same activity,”

Garner v. Teamsters, 346 U.S. 485, 498-499

(1953), the Garmon rule prevents States not

LY

only from setting forth standards of conduct

inconsistent with the substantive require-

ments of the NLRA, but also from providing

their own regulatory or judicial remedies for

conduct prohibited or arguably prohibited by

the Act. See 359 U.S., at 247. The rule is de-

signed to prevent “conflict in its broadest

sense” with the “complex and interrelated

federal scheme of law, remedy, and admin-

istration,” id., at 243, and this Court has rec-

ognized that “[clonflict in technique can be

fully as disruptive to the system Congress

erected as conflict on overt policy.” Motor

Coach Employees v. Lockridge, 403 U.S. 274,

287 (1971).

Id., 286 (emphasis added).

Such conflict, between Wisconsin’s attempt here

to regulate long-standing CBA agreements and the

right to collectively bargain Clothes-Changing Time,

is just what NLRA and Section 203(0) preempt. In its

broadest sense, the state law directly conflicts with

the rights to bargain protected by Congress. It cer-

tainly stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of

VOMNnZTess. Ci., Nash uv. Florida industrial Comin,

389 U.S. 235, 240 (1967). Even in a narrow sense, by

imposing a “remedy” on the parties through a state

law claim permitting monetary recoveries, the state

injects itself directly into a specific area of collective

bargaining which Congress expressly protected from

such intrusion. If the Court is going to implement the

will of Congress set out in the NLRA and Section

2U

203(0), collective bargaining of Clothes-Changing

Time is at a minimum, “arguably protected,” and thus

well within the scope of Garmon preemption

This Court also has held preemption necessary

to implement federal labor policy where, inter alia,

Congress intended particular conduct to “be unregu-

lated because left ‘to be controiled by the free play of

economic forces.’” Machinists v. Wisconsin Emp. Rel.

Comm’n, 427 U.S. 132, 140 (1976) (citation and

footnote omitted). That is precisely and expressly

what Congress did when it enacted Section 203(0),

reserving Clothes-Changing Time issues to collective

bargaining for represented employees and employers.

By expressly permitting the collective bargaining

of Clothes-Changing Time in Section 203(0), Congress

has stated its intention to allow the free market

forces of such collective bargaining to operate exclu-

sively in this narrowly-delimited area. Wisconsin’s

intrusion and economic regulation of Clothes-

Changing Time ignores Congress’ intent that this

issue was to be dealt with exclusively through collec-

tive bargaining at unionized workplaces. As such,

Machinists preemption also comes into play to compel

reversal of the decision below and a grant of the

Petition.

Chamber of Commerce v. Brown, 554 U.S. 60

(2008), is instructive in this regard. In Brown, Cali-

fornia prohibited employers who received state funds

from using such funds “to assist, promote or deter

union organizing.” The Court held this law preempted

under the Machinists doctrine. The Court noted that:

Machinists preemption is based on the prem-

ise that “Congress struck a balance of protec-

tion, prohibition and laissez-faire in respect

to union organization, collective bargaining

and labor disputes.”

Id., 65 (citations omitted). The Court noted the

NLRA’s express provisions regarding free speech in

union organizing:

The explicit direction to leave non-coercive

speech unregulated makes this case easier,

in at least one respect, than previous NLRA

cases because it does not require us “to deci

pher the presumed intent of Congress in the

face of that body’s steadfast silence.’

[d., 68 (citations omitted).

The Court went on to find that California’s policy

judgment on employer speech was “unequivocally pre-

empted.” /d., 69. Here, Congress has not been stead

fastly silent, but has expressly chosen to allow

Clothes-Changing Time to the give-and-take of collec

tive bargaining. Wisconsin’s attempt here to impose

its own views or restrictions upon such bargaining

clearly intrudes upon Congress’ explicit reservation of

this issue to be determined through “the free play of

economic forces,” underlying the Machinists preemp-

tion doctrine. The Court cannot permit such an

intrusion in contravention of Congress’ will.

C. The FLSA Preempts State Law Because

Congress Designed Section 203(0) To Protect

Parties’ Choices Made Through Collective

Bargaining

The FLSA requires that employees be paid over

time compensation for “hours worked” in excess of 40

per week at a rate not less than one and one-half

times the regular rate at which they are employed. 29

U.S.C. §207(a)(1). Under Section 203(0), time spent

by employees in pre- and post-shift donning and

doffing of clothes is excluded from the computation of

hours worked if two conditions are met: first, the

activities at issue must constitute “changing clothes”

as that term is used in the statute, and, second, a

bona fide collective bargaining agreement must

exclude, by its express terms or by a custom or prac

tice under the agreement, time spent changing

clothes and washing from compensable working time

The first conditional issue of “clothes changing” is not

J

|

relevant to the Petition here.

The legislative history of Section 203(0) reflects

that its passage was part of Congress’ ongoing efforts

to curtail judicially expansive interpretations of the

FLSA. Those efforts commenced with the Portal to

Portal Act’s passage in 1947, and they were expanded

by Congress with enactment of Section 203(0) in

1949. Petitioner ably recounts the legislative history

of these laws. See Petition, 17-21.

The Fourth, Fifth, Sixth and Eleventh Circuits

have cited Section 203(0)’s legislative history to

support holdings that the purpose of thi Latuto!

provision is to leave the issue of payment for timé

spent “changing clothes and washing” to the collective

bargaining process. Sepulveda v. Allen Family Food

Inc., 591 F.3d 209, 217-18 (4th Cir. 2009), cert. de

nied, No. 09-1529, 2010 WL 2420333 (Oct. 4, 2010

Allen v. McWane, Inc., 593 F.3d 449 (5th Cir. 2010)

Franklin v. Kellogg Co., 619 F.3d 604 (6th Cir. 2010

Anderson v. Cagle’s, Inc., 488 F.3d 945, 958 (11th Cir

2007)

section 203(0) 1s a definitional provision th

should be construed broadly to preserve and uphold

the integrity of the collective bargaining relationship

To avoid giving effect to Section 203(0), the decision

below crafts another analogy, stating that Wisconsin

is entitled to control the multiplier and multiplicand

of time worked and hourly pay in regulating the

workweek. (App. 5). As to the mathematical analogy

Congress expressly dealt with the issue by command

ing in Section 203(0) that the collective bargaining

process be respected, including by the states, and i!

removed from regulatory purview the donning and

doffing issue, so long as, it was addressed through

collective bargaining, as here. Thu , the “right” found

in the decision below does not exist

*

The denial of certiorari in Sepulveda bears no relationship

to the issue in this case. Sepulveda did not address the preemp

tion issue set forth in the Petition, but rather a question of

whether “clothes changing’ included the donning and doffing of

certain types of protective and safety equipment

ection ZUGO Lats Lnere Na pe exciuded a

Lime spent in changing clothe if agreed under a

(CBA or CBA customs and practice empha idded

his Court has termed hall” the langvuage of com

mand. Anderson | Yungpkau 29 U.S. 482 ‘Te

(1947). Certainly this type of language thu IMposes a

mandatory exclusion of bargained Clothes-Changin

Time mandatory both under FLSA and state law

effectuating it. Rep. Herter use ol the bakery indu

try for illustration in hi tatement on Section 203(

eferenced in the Petition at 18-19, and seen mor

fully at App. 75-78, clearly was not meant to limit tl

‘

reach of the Section only to the bakery industry

too, his mention there of interference by VDepartm: nt

of Labor representative with collective bargaining

was merely illustrative, and not limited only to the

Vepartment or meant to imply permission for such

interference by other agencit our Or Late Ihe

clear intent of Congre was to reserve issues Ol

Clothes-Changing ‘Time to. collective bargaining

whenever pos ible, and to protect the result of that

bargaining from interference by all federal and stat

regulation. “|T|he question whether a certain stat

action 1s pre-empted by federal law 1s one of Congr

ional intent “The purpos¢ of Conere j the ulti

mate touchstone.” Lueck, supra, 208, citing Malone

White Motor Corp., 435 U.S. 497, 504 (1978), quoting

Retail Clerks v. Schermerhorn 75 US. 96. 108

(1963). Congress’ purpose, and its command for

“hands-of{” policy on collective bargaining of Clothe

Changing Time could not be more clear, and thi

preemption Is prope!

W irom preemption 4 i |

worked to include t ent i ictivitse erea

ection ZU Oo) dor not norten tne maxkiImunh VM

VEC} r raise the minimun vere permitted |

CCLIOI / (7) | IT) }) ae! ( r) | if |

onstitute “worl i matter not addressed by 2!

ind not ived fol Late nterpretat I regulation or!

nanwve hu Line LAL iw here bor not fall with

the parameters of section 21 1) permitti Late |

et Higher minimum Vat ind rte! xin

yvorkKweel Conger Wd 7 resel Live Late

i@hinition of “hour! worked a ect Ate but

re (‘| | lect ( | | iit LT rt an [ 1c]

hour Worked lor tne imited rea of Clot

Changing ‘Time ihe er-exXpansive idit

1eCCISIOI Helov | f won a } Tay iat bysal |

MOOG \ mn Loch thy (4 hnould reiwect 1

le@cision be Vv ind “de f e DI! id ellect

iVvInyY ( 1LIS¢ i a | } } whe if) '

retul re iat | La ic

f aie

it ( (*] i ‘

eu! { nere nal purpost provect ect

Dal lining over ¢ loth (Changi Tri Leal l 1 |

cxpre command of section ZO0350o Despite repeats

negolalion in exchange ol penelit ind cxpre

CBA languave, the decision belo permits W

law to trump Congr will as exemplitied 1 ft

NLRA/LMRA and in Section 203(0). Thus, the

7 Helow | | r’” . ?

|

26

interference with collective bargaining, and in partic-

ular interference with bargaining over Clothes-

Changing Time.

CONCLUSION

Amici members already face a deluge of lawsuits

under the FLSA alleging various violations. In some

cases, these suits have been brought due to changes

in regulatory interpretations previously relied upon.

Here, however, the decision below not only threatens

long-established CBAs and bargaining relationships,

it does so in the face of an express command by Con-

ress that employers and their represented workers be

left alone to resolve Clothes-Changing Time issues

through collective bargaining. The decision below

flies in the face of Congress’ “hands-off” instruction

contained in Section 203(0), as well as intruding into

the sphere of collective bargaining generally pro-

tected by the NLRA and by LMRA Section 301. The

decision below adds to the already-heavy FLSA

litigation burdens of amici members, disrupts exist-

ing CBAs and future negotiations, and exposes amici

members to the shifting kaleidoscope of state and local

regulations from which Congress sought to protect

them. In such circumstances, emici curiae, the Ameri-

can Meat Institute, National Association of Manufac-

turers, National Meat Association and National

Turkey Federation, respectfully request the Court

grant the Petition and issue a writ of certiorari on

question presented

Respectfully submitted

BRIAN WEGG BULGER

Counsel of Record

JOSEPH E. TILSON

MECKLER BULGER TILSON

MARICK & PEARSON LLP

Suite 1800

123 North Wacker Drive

Chicago, IL 60606

(312) 474-7900

brian.bulger@mbtlaw.com

Attorneys for Amict Curta

Dated December “a. 2010