# Reply Brief — Frito-Lay, Inc. v. Huntley

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0790%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 818

## Text

Supreme Court, U.S.

FILED
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No. 99-1912. | AUS 2 4 onan
RARER EI NRE EEE AED CCS IE Rn OR SMP MUI AR HR oc
IN THE |
CT
Supreme Court of the Uniten_srbe
FRITO-LAY, INC.,
Petitioner,
V.

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 Writ of Certiorari to the
Court of Appeals of the State of Washington

PETITIONER’S REPLY TO
RESPONDENTS’ BRIEF IN OPPOSITION

Of Counsel: STEVEN T. CATLETT

RUDY A. ENGLUND (Counsel of Record)

DOUGLAS E. SMITH ROBIN D. STUMPF

NANCY W. ANDERSON JONES, DAY, REAVIS & POGUE
_ LANE, POWELL, SPEARS, 77 West Wacker Drive

LUBERSKY LLP Chicago, Illinois 60602

1420 Fifth Avenue, Suite 4100 (312) 782-3939

ns agua Spon E10! Counsel for Petitioner

ARTHUR F. STARRS, JR.

FRITO-LAY, INC.

7701 Legacy Drive

Plano, Texas 75024

(972) 334-3825

_ BEST AVAILABLE COPY ©

TABLE OF CONTENTS

I. THE COURT HAS JURISDICTION TO REVIEW
: | THE WASHINGTON COURT OF APPEALS’
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Il. RECENT AUTHORITY INDICATES THAT THE
CONFLICT OVER SECTION 301 PREEMPTION
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Il. THE PETITION DOES NOT INVOLVE AN
ARBITRATOR’S POWER TO ADJUDICATE
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IV. WASHINGTON’S APPROACH TO SECTION
301 PREEMPTION CONFLICTS WITH THIS
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TABLE OF AUTHORITIES
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Cases
Allis-Chalmers Corp. v. Lueck,

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Atchley v. Heritage Cable Vision Assocs.,

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Belknap, Inc. v. Hale,

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Caterpillar Inc. v. Williams,

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Commodore v. Univ. Mechanical Contractors, Inc.,

SSD Fa Ue Gt Ne chk 5 RS he he heen 4
Cramer v. Consol. Freightways, Inc.,

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Firestone v. Southern California Gas Co.,

2000 WL 986929, 164 L.R.R.M. (BNA) 2897

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Lingle v. Norge Div. of Magic Chef, Inc.,

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Livadas v. Bradshaw,

SES UB BOF Cees 5s Ns obs eh eo ks wee Mi
Ramirez v. Yosemite Water Co., Inc.,

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Statutes
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Wash. Admin. Code § 296-128-540 ................. 3

I. THE COURT HAS JURISDICTION TO REVIEW
THE WASHINGTON COURT OF APPEALS’
DECISION

Respondents initially challenge this Court’s jurisdiction to
review the decision of the Washington Court of Appeals.
(Opp. at 1) But in doing so, they ignore this Court’s decision
in Belknap, Inc. v. Hale, 463 U.S. 491 (1983). In Belknap, a
state trial court held that a state-law claim was preempted by
federal labor law, and granted summary judgment. See id. at
497. The state appellate court reversed, and the state Supreme
Court denied review. See id. The employer then sought
certiorari.

This Court held that its “jurisdiction to affirm or reverse the
[state] Court of Appeals . . . is clear.” Jd. at 497 n.5.
Specifically, Belknap held that the judgment of the state
appellate court was final within the meaning of 28 U.S.C.
§ 1257 because it “finally disposed of the federal preemption
issue” and “to permit the proceedings to go forward without
resolving the preemption issue would involve a serious risk of
eroding the federal [preemption] policy.” Jd. The procedural
posture in this case is identical, and thus, the Court likewise
clearly has jurisdiction.

Il. RECENT AUTHORITY INDICATES THAT THE
CONFLICT OVER SECTION 301 PREEMPTION IS
DEEPENING

In its opening submission, Petitioner noted the substantial
confusion—and resulting conflicting decisions—over the
proper approach to Section 301' preemption of so-called
“independent” state-law claims, such as the wage claims
presented here. (Pet. at 12-15) Even Respondents
acknowledge the “confusing” state of the law (Opp. at 5), and

' Labor Management Relations Act, 29 U.S.C. § 185(a)

recent authority—in the very federal judicial circuit
encompassing Washington—indicates that this confusion is
generating a deepening conflict.

Specifically, in Firestone v. Southern California Gas Co.,
2000 WL 986929, 164 L.R.R.M. (BNA) 2897 (9th Cir. July
19, 2000), the Ninth Circuit held that state wage and hour
claims for overtime pay were preempted by Section 301. See
164 L.R.R.M. at 2899. The Firestone Court, like the earlier
Seventh Circuit decision in Atchley v. Heritage Cable Vision
Assocs., 101 F.3d 495, 500-01 (7th Cir. 1996) (cited in Pet. at
14), rejected the plaintiffs’ argument based on Livadas v.
Bradshaw, 512 U.S. 107 (1994) and, instead, affirmed the
lower court’s ruling that the overtime claims were preempted
because “resolution of the essential dispute between the parties
about the applicability of the [state overtime] exemption”—the
virtually identical issue in this case—required interpretation of
the collective bargaining agreement. Firestone, 164 L.R.R.M.
at 2899. This approach by the Seventh and now Ninth Circuits
stands in sharp conflict with the approach taken by the
Washington courts, which read Livadas to mean that the
independent legal character of the state overtime claim make
Section 301 preemption unwarranted.

A further conflict is reflected by the Ninth Circuit’s recent
decision in Cramer v. Consol. Freightways, Inc., 209 F.3d
1122 (9th Cir. 2000). In Cramer, the Court held that torts for
privacy invasion and intentional infliction of emotional
distress—which depend on the reasonableness of employee
expectations about privacy and the relationship between the
parties—were preempted since the collective bargaining
agreement “inevitably inform[ed]” these subjective
determinations. /d. at 1127, 1131. But here, in contrast, the
Washington court found no preemption, even though the
substantive issue—i.e., whether respondents are outside
salesmen and thus excluded from Washington overtime
requiremuais—tums on a determination of the parties’ intent

—

regarding the “purpose” of Respondents’ jobs. See Wash.
Admin. Code § 296-128-540; see also Ramirez v. Yosemite
Water Co., Inc., 978 P.2d 2, 13 (Cal. 1999) (noting that
evaluation of outside sales exemption requires consideration
of not only an employee’s evidence, but also the “employer’s
realistic expectations”). Had this issue been presented in
federal court in Washington, that court, following Cramer’s
preemption analysis, would have found Washington’s
subjective “outside salesman” standard to be “inevitably
inform[ed]” by the collective bargaining agreement between
Petitioner and Respondents’ union. See 209 F.3d at 1131. But
since the parties were in state court, the court below ignored
the collective bargaining agreement, and thus Petitioner’s
evidence of the parties’ intent, in its preemption analysis. See
Pet. App. at 11a.

Certiorari should be granted to review and resolve the
conflict over preemption of independent state claims, like the
wage claim here, and to clarify the proper preemption
approach where resolution of the state claim depends on a
determination of the parties’ intent.

Il. THE PETITION DOES NOT INVOLVE AN
ARBITRATOR’S POWER TO ADJUDICATE
STATE CLAIMS

Ignoring the conflicting decisions over Section 301
preemption of independent state claims, Respondents’ main
argument for denying the petition is an exercise in
misdirection. Respondents seek to frame the issue as whether
_an arbitrator can decide state-law claims. (Opp. at 5-6) But
this petition poses no such issue. The Section 301 preemption
issue is entirely distinct from the arbitrability of Respondents’
state-law wage claim. Rather, Section 301 preemption turns
on the extent to which resolution of a state claim involves
interpretation of a collective bargaining agreement. See Lingle
v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407, 413
(1988). If Respondents’ wage claims are preempted under

4

Section 301, then they are substantively extinguished in favor
of the remedies provided in the collective bargaining
agreement—including the general grievance and arbitration
procedure for challenging classifications, and the special
Route-Review Procedure that enables route salesmen to have
their routes reviewed and restructured. And contrary to
Respondents’ assertion (Opp. at 5), protecting the parties’
expectatic 1s that disputes about job classifications would be
resolved trough one of these mutually-agreed-to procedures
is exactly the policy that Section 301 preemption is designed
to protect. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,
220 (1985).

IV. WASHINGTON’S APPROACH TO SECTION 301
PREEMPTION CONFLICTS WITH THIS
COURT’S APPROACH

Finally, Respondents seek to defend Washington’s per-se
Section 301 preemption test as an accommodation of the
state’s interest in enforcing its wage and hour laws. (Opp. at
6) And the test certainly does further the state’s interest; after
all, it allows state claims to escape preemption if plaintiffs can
merely assert their claim without referencing the collective
bargaining agreement. See Commodore v. Univ. Mechanical
Contractors, Inc., 839 P.2d 314, 319 (Wash. 1992). But
defending the test on this basis proves too much. The flaw
‘with Washington’s approach is not that it does not adequately
protect Washington’s interests, but rather that it conflicts with
this Court’s decisions indicating the need to balance state
interests with the federal policies animating Section 301
preemption. See, e.g., Lueck, 471 U.S. at 220; Caterpillar Inc.
v. Williams, 482 U.S. 386, 398 (1987). The Washington
analysis in Commodore and in the decision below allows self-
serving plaintiffs to avoid preemption through artful pleading,
and allows state courts to ignore obviously relevant evidence
in the collective bargaining agreement, as well as the parties’
bargaining history, in deciding issueg of federal preemption.

5

Because Washington’s approach, as illustrated in the opinion
below, plainly deviates from this Court’s jurisprudence, review
is necessary to clarify the Section 301 preemption test and
bring the Washington courts in line with this Court’s
decisions.

CONCLUSION
The petition for writ of certiorari should be granted.
Respectfully submitted,

Of Counsel: STEVEN T. CATLETT
RuDY A. ENGLUND (Counsel of Record)
DOUGLAS E. SMITH ROBIN D. STUMPF
NANCY W. ANDERSON JONES, DAY, REAVIS & POGUE
LANE, POWELL, SPEARS, 77 West Wacker Drive

LUBERSKY LLP Chicago, Illinois 60601
1420 Fifth Avenue (312) 782-3939
Suite 4100 i
Seattle, Washington 98101 Counsel for Petitioner
(206) 223-7000

ARTHUR F. STARRS, JR.
FRITO-LAY, INC.

7701 Legacy Drive
Plano, Texas 75024
(972) 334-3825

Dated: August 24, 2000

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0790%3A3. Public record. Not legal advice.