Opposition Brief — Frito-Lay, Inc. v. Huntley

Supreme Court, U.S.

j@ FILED

No. 99-1912 JUN 5 G oan

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InThe{ © CLERK

Supreme Court of the nited States —

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FRITO-LAY, INC.,

Petitioner,

ROBERT HUNTLEY, MICHAEL HILL, RICHARD

HENRY, BRENT DOVE, KENNETH REYNOLDS,

JACKIE JEWELL, MICHAEL MORRIS, WILLIAM

WELCH, BERT BORG, FRED BELLOWS, AND

SHERMAN PERKINS, on behalf of themselves

and others similarly situated,

Respondents.

*

On Petition For A Writ Of Certiorari

To The Court Of Appeals

Of The State Of Washington

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RESPONDENTS’ BRIEF IN OPPOSITION

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MicHaet R. McCartHy

Counsel of Record

KENNETH J. PEDERSEN

Davies, Roserts & Reip, LLP

101 Elliott Avenue West

Suite 550

Seattle, WA 98119

(206) 285-3610

Attorneys for Respondents

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PARTIES TO THE PROCEEDING

All parties are listed on the cover page of this brief.

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TABLE OF CONTENTS

Page

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REASONS FOR DENYING THE WRIT............. 5

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TABLE OF AUTHORITIES

Page

FEDERAL CASES

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985)...... 6

Barrentine v. Arkansas-Best Freight System, Inc., 450

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Charles Dowd Box Co. v. Courtney, 368 U.S. 502

EE ROU AiG he OU Nha eke 6K bone Su ae badd odds s 7

Iowa Beef Packers v. Thompson, 405 U.S. 228 (1972) ..... 5

Jefferson v. City of Tarrant, 522 U.S. 75 (1997) ......... 1

Livadas v. Bradshaw, 512 U.S. 107 (1994) ............ ~ a

Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S.

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State Cases CITED

Commodore v. University Mechanical Contractors,

Inc., 120 Wash. 2d 120, 839 P.2d 314 (1992)....... 6, 7

Schneider v. Snyder's Foods, Inc., 95 Wash. App. 399,

976 P.2d 134, rev. denied, 139 Wash. 2d 1003, 989

P.2d 1141, cert. denied, 120 S. Ct. 1573 (2000)....... 3

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FEDERAL STATUTES CITED

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StaTE STATUTES CITED

Wash. Rev. Code § €49.46.110 ..........ccccecccccccs 2, 4

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OPINIONS BELOW

The order of the Washington State Supreme Court

denying Frito-Lay’s Petition for Review (Pet. App. 1a-2a)

is reported at 140 Wash. 2d 1003 (2000). The Washington

State Court of Appeals decision (Pet. App. 5a-13a) is

reported at 979 P.2d 488 (1999). The opinion of the Supe-

rior Court of the State of Washington for King County

(Pet. App. 23a-29a) is not reported.

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JURISDICTION

The Court of Appeals reversed the trial court’s order

dismissing respondents’ complaint, and remanded the

case for further proceedings. Absent settlement, the case

will be tried on the merits of respondents’ state law

wage-and-hour claims. Frito-Lay maintains that respon-

dents are exempt “outside salesmen” under state law. If

Frito-Lay prevails on this defense, respondents’ wage-

and-hour claim will fail, for exemption is a complete

defense to respondents’ lawsuit. If Frito-Lay loses at trial,

it may again seek review here once state court litigation is

concluded.

Under Jefferson v. City of Tarrant, 522 U.S. 75 (1997),

the decision of the Washington State Court of Appeals is

accordingly not a “final judgment” under 28 USC

§ 1257(a).

STATUTES INVOLVED

29 USC § 185(a):

Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as

defined in this chapter, or between any such

labor organizations, may be brought in any dis-

trict court of the United States having jurisdic-

tion of the parties, without respect to the

amount in controversy or without regard to the

citizenship of the parties.

Wash. Rev. Code § 49.46.110:

Nothing in this chapter shall be deemed to inter-

fere with, impede, or in any way diminish the

right of employees to bargain collectively with

their employers through representatives of their

ewn choosing in order to establish wages or

other conditions of work in excess of the appli-

cable minimum under the provisions of this

chapter.

Wash. Rev. Code § 49.46.120

This chapter establishes a minimum standard

for wages and working conditions of all

employees in this state, unless exempted here

from, and is in addition to and supplementary

to any other federal, state, or local law or ordi-

nance, or any rule or regulation issued there-

under. Any standards relating to wages, hours,

or other working conditions established by any

applicable federal, state, or local law or ordi-

nance, or any rule or regulation issued there-

under, which are more favorable to employees

than the minimum standards applicable under

this chapter, or any rule or regulation issued

hereunder, shall not be affected by this chapter

and such other laws, or rules or regulations,

shall be in full force and effect and may be

enforced as provided by law.

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STATEMENT OF THE CASE

Frito-Lay seeks review of an intermediate state

appellate court decision reversing the trial court’s dis-

missal of respondents’ state law wage-and-hour claims,

and its order sending the respondent’s claims to arbitra-

tion under a collective bargaining agreement (“CBA”).!

Respondents deliver Frito-Lay snack foods to retail

sales outlets in western Washington state by truck. Frito-

Lay pays them no overtime wages regardless of the

number of hours they work in a work week.

Respondents are or were represented for collective

bargaining purposes by separate Teamster local unions,

all based in western Washington. The collective bargain-

ing agreements do not provide for the payment of over-

time for work in excess of forty (40) hours in-a-work

week, and are in fact silent as to overtime.?

1 This is the second case to come before the Court this term

involving overtime claims by delivery drivers in Washington

state. See Schneider v. Snyder's Foods, Inc., 95 Wash. App. 399, 976

P.2d 134, rev. denied, 139 Wash. 2d 1003, 989 P.2d 1141, cert.

denied, 120 S. Ct. 1573 (2000).

2 Frito-Lay’s suggestion that it and the Teamsters agreed to

treat respondents as exempt “outside salesmen” under the

Washington Minimum Wage Act (“MWA”) is, at best, a half

truth. The CBA provided overtime for the respondent route

Respondents sued in King County Superior Court

seeking payment for their overtime wages under the state

Minimum Wage Act, Wash. Rev. Code §§ 49.46 et seq.

Respondents sought certification as representatives of a

class consisting of all delivery drivers employed by Frito-

Lay in Washington, both union and non-union.

The trial court dismissed the complaint, holding

respondents’ claims preempted by § 301 of the Labor

Management Reporting and Disclosure Act, 29 U.S.C.

§ 185. (Pet. App. 23a-29a)> The court ordered the respon-

dents’ claims be submitted to arbitration under the CBA.4

The Washington State Court of Appeals reversed, and

remanded the case for further proceedings. (Pet. App.

salesmen until the mid-1980’s when that clause was removed in

bargaining at Frito-Lay’s insistence. A Teamster representative

testified in deposition that the Frito-Lay employees accepted

that CBA “in lieu of going on strike for overtime.” Another

cautioned that acceptance of Frito-Lay’s last and final offer

removing the overtime provision did not signal union

agreement that the employees were exempt. Finally, nowhere in

the CBA is the exempt or non-exempt status of the respondents

discussed.

3 The trial court incorrectly held that the CBA described

respondents in terms of the MWA exemption as “outside

salesmen.” (Pet. App. 27a-28a) The CBA describes respondents

as “Route Salesmen” and “Bin Salesmen.” The CBA is silent on

the issue of overtime payments to the respondents. No job

descriptions appear in the CBA.

”

* The CBA limits the arbitrator’s authority to “grievance >,

defined under the contract as “disputes arising between tie

Employer and employees . . . with respect to the interpretation

or the terms of this Agreement...”

5a-13a) The Washington State Supreme Court denied

review. (Pet. App. 1a-2a)

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REASONS FOR DENYING THE WRIT

A. The Decision Below is a Correct Application of

This Court’s Decisions

However confusing the state of section 3015 preemp-

tion may be (Pet. 12), this is not the case in which it

should be clarified. The decision below in no way

threatens the primacy of arbitration in labor relations

where, as here, the CBA precludes arbitral consideration

of state law claims.

a.

The trial court sent the respondents’ MWA claims to

arbitration under the CBA despite that an arbitrator

appointed under the agreement would lack jurisdiction

over those state law claims. See Iowa Beef Packers, Inc. v.

Thompson, 405 U.S. 228 (1972) (writ of certiorari dismissed

as improvidently granted in Fair Labor Standards Act

case where collective bargaining agreement limited arbi-

tral jurisdiction to grievances “pertaining to a violation of

the agreement”). Since respondents’ state law claims are

independent of the CBA and cannot be adjudicated under

it in any event, the policies undergirding section 301

preemption are not served by pre-emption. Livadas v.

Bradshaw, 512 U.S. 107, 122-23 (1994) (“[T]he preemption

rule has been applied only to assure that the purposes

animating 301 will [not] be frustrated . . . by state laws

5 29 USC § 185.

purporting to determine ‘questions relating to what the

parties to a labor agreement agreed, and what legal con-

sequences were intended to flow from breaches of that

agreement’ ” citing Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 211 (1985)).

The Court has long recognized that labor arbitration

is an unsuitable forum for statutory wage-and-hour

claims in any event. Barrentine v. Arkansas-Best Freight

System, Inc., 450 U.S. 728, 737 (1981). Unions are con-

cerned with collective rights, not necessarily individual

ones, and may, without violating the duty of fair repre-

sentation, “permit some employees’ statutorily granted

wage-and-hour benefits to be sacrificed if an alternative

expenditure of resources would result in increased bene-

fits for workers in the bargaining unit as a whole.” Id. at

742. Here there is evidence that the Teamsters acceded to

Frito-Lay’s demand to remove overtime pay from the

contract in lieu of calling a strike. As such, sending any

portion of respondents’ claims to an arbitrator (who is

hobbled ‘by the CBA against consideration of state law)

would be a useless undertaking.

B. The State Supreme Court’s Commodore Deci-

sion Protects State and Federal Interests

The Washington State Supreme Court has adopted a

rule which accommodates the state’s interest in enforce-

ment of its wage-and-hour laws while protecting the

federal interest in uniform interpretation of collective

bargaining agreements. In Commodore v. University

Mechanical Contractors, Inc., 120 Wash. 2d 120, 839 P.2d

314 (1992) the court held that employer defenses to state

law claims implicating a collective bargaining agreement

do not require dismissal of the complaint. Rather, the

court may adjudicate the defense under its concurrent

section 301 jurisdiction. See Charles Dowd Box Co. v. Court-

ney, 368 U.S. 502 (1962). The Commodore court recognized

that the law to be applied to the employer’s contract

defense was federal law. Commodore, 120 Wash. 2d at

131-32.

The state Supreme Court’s approach to section 301

preemption in Commodore is a sensible accommodation of

both federal and state interests. The defendant's pro-

posed solution — outright dismissal of union-represented

employees’ wage-and-hour claims and referral of those

claims to an impotent arbitrator — is manifestly unreason-

able, and fails to accommodate the state of Washington’s

interest in uniform enforcement. of its wage-and-hour

laws.”

6 See Livadas, 512 U.S. at 123-24 n.17: “[W]hile contract

interpretation disputes must be resolved in the bargained-for

arbitral realm . . . 301 does not disable state courts from

interpreting the terms of collective bargaining agreements in

resolving nonpreempted claims,” citing Charles Dowd Box Co.

7 See, e.g., Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S.

724, 756 (1985): “It would turn the policy that animated the

Wagner Act on its head to understand it to have penalized

workers who have chosen to join a union by preventing them

from benefiting from state labor regulations imposing minimal

standards on nonunion employers.”

CONCLUSION

The Petition should be denied.

June 30, 2000

Respectfully submitted,

MicHaAEL R. McCartHy

Counsel of Record

KENNETH J. PEDERSEN

Davies, Roserts & Reip, LLP

101 Elliott Avenue West

Suite 550

Seattle, WA 98119

(206) 285-3610

Attorneys for Respondents