Opposition Brief — Pennsylvania Federation of the Brotherhood of Maintenance of Way Employes v. National Railroad Passenger Corp.

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No. 92-1984

IN THE itn,

Supreme Court of thy United States

OCTOBER TERM, 1993

PENNSYLVANIA FEDERATION OF THE BROTHERHOOD OF

MAINTENANCE OF Way EMPLOYES and VINCENT

BENNETT, individually and on behalf of all others

similarly situated,

Petitioners,

NATIONAL RAILROAD PASSENGER CORPORATION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF IN OPPOSITION OF RESPONDENT

NATIONAL RAILROAD PASSENGER CORPORATION

STEPHEN C. ROGERS

JOANNA L. MOORHEAD

(Counsel of Record)

JONATHAN I. SAPERSTEIN

NATIONAL RAILROAD PASSENGER

Of Counsel: CORPORATION

HARRY A. RISSETTO 60 Massachusetts Avenue, N.E

MorGAN, Lewis & Bockius Washington, D.C. 20002

1800 M Street, N.W. (202) 906-3191

Washington, D.C. 20036 Counsel for Respondent

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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QUESTION PRESENTED

Is a lawsuit alleging a violation of Pennsylvania’s Mini-

mum Wage Act of 1968, 43 Pa. Cons. Stat. Ann.

§ 333.104(c), preempted under the standard established

in Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399 (1988), when resolution of the state law claim de-

pends upon the interpretation of a Railway Labor Act

collective bargaining agreement?

(i)

LIST OF PARTIES

The parties to the proceedings below and to this Peti-

tion are Petitioners Pennsylvania Federation of the Brother-

hood of Maintenance of Way Employes, a railroad union,

and Vincent Bennett, an employee of the National Rail-

road Passenger Corporation and a member of the union.

The Respondent is the National Railroad Passenger Corp-

oration, a for-profit corporation created by Congress to

operate rail passenger service nationally.

Respondent has no parent companies, subsidiaries or

affiliates to list pursuant to Rule 29.1.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................00000000000000. i

a ethneesenmssannseewnduccnsii ii

ey Se EN ty ye 8 ig. re iv

COUNTERSTATEMENT OF THE CASE .................. 1

REASONS WHY THE PETITION SHOULD BE

a a ccamasichliniueeniiuniomnn’ 5

I. THERE IS NO CONFLICT IN THE CIRCUITS

ON ANY MATERIAL ISSUE RAISED BY

ae hacen sactannsintyanasnbbipinasticein 6

II. THE COURT OF APPEALS’ DECISION IS

NOT INCONSISTENT WITH ANY DECI-

SIONS OF THE COURT AND DOES NOT

RAISE ANY IMPORTANT ISSUES REQUIR-

ING THE COURT’S ATTENTION ..._...00W.... 7

Al diankahexsbcisihennincsassenaseiccivannscracedetnne _ 11

(iii)

TABLE OF AUTHORITIES

CASES Page

Federal Cases:

Consolidated Rail Corp. v. Railway Labor Execu-

tives’ Ass’n, 491 U.S. 299 (1989) _.......0000 00... 8

DeCanas v. Bica, 424 U.S. 351 (1976) _............. x

Dolan v. Project Constr. Corp., 558 F. Supp. 1308

Glee RN I peel eee 10

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1

I acct sere eet ee eee ee 8

Lingle v. Norge Div. of Magic Chef, inc., 486 U.S.

Ur cs Oe. passim

Metropolitan Life Ins. Co. v. Massachusetts, 471

RA each ceners Sa nC 8

Terminal R.R. Ass’n v. Railroad Trainmen, 381

ANG > IE ci ica nhcalccnas cen, apmasdinccupneneratnemoneiniaioieess 8

State cases:

Brotherhood of Maintenance of Way Employes v.

Conrail, No. L-01902-89 (N.J. Superior Ct. Law

Div., January 25, 1991), aff’d, No. A-3255-90TS

(N.J. Superior Ct. App. Div., January 28,

NEE ik! iceceseakisbnlice asniceee ties aasassecaioeondato morons 7

STATUTES AND REGULATIONS

Federal Statutes :

Fair Labor Standards Act, 29 U.S.C. §§ 151 et

IR RE nt ZIRE AUER RES, 5 SLA RS eg 10

Labor Management Relations Act, 29 U.S.C. § 186.. 6

Portal to Portal Act, 29 U.S.C. § 254 0000.2... 10

Railway Labor Act, 45 U.S.C. §§ 151 et seq. .......... passim

Be a I ari tendealtaccctaberernn tid ppnckeuanpacaresesaccenen 4

State Statutes and Regulations:

Minimum Wage Act of 1968, Pa. Cons. Stat. Ann.

8 Bt a SR SII fa es Psat eA 2

es IE Oe I seitinkeciacesttedicwitsaneeccomadvcuanentandtecdtuecen 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1984

PENNSYLVANIA FEDERATION OF THE BROTHERHOOD OF

MAINTENANCE OF WAY EMPLOYES and VINCENT

BENNETT, individually and on behalf of all others

similarly situated,

. Petitioners,

NATIONAL RAILROAD PASSENGER CORPORATION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF IN OPPOSITION OF RESPONDENT

NATIONAL RAILROAD PASSENGER CORPORATION

Respondent National Railroad Passenger Corporation

(“Amtrak”) respectfully requests that this Court deny the

petition for writ of certiorari submitted by Petitioners

seeking review of the decision by the United States Court

of Appeals for the Third Circuit in this case.

COUNTERSTATEMENT OF THE CASE

Petitioner Pennsylvania Federation of the Brotherhood

of Maintenance of Way Employes (“BMWE”) is a union

representing Amtrak employees who construct and main-

tain Amtrak’s tracks, bridges and facilities. Petitioner

Vincent Bennett is an Amtrak track worker represented

by the BMWE. The gravamen of Petitioners’ Complaint

is that the provision of the collective bargaining agree-

ment between Amtrak and the BMWE governing payment

for “travel time” violates the Minimum Wage Act of 1968

(hereinafter “Minimum Wage Act’), 43 Pa. Cons. Stat.

Ann. § 333.104(c).’ Specifically, Petitioners claim that

Amtrak has violated the state Minimum Wage Act by not

paying employees overtime for time spent traveling from

their job site to their headquarters or camp car locations

after their regular tours of duty.

The Court of Appeals, affirming a decision by the

District Court for the Eastern District of Pennsylvania

(Pet. App.” at 10a-17a), found that the statutory and

regulatory terms upon which Petitioners’ claim was based

could only be applied in the circumstances of this case by

interpreting the collective bargaining agreement between

Amtrak and the BMWE. Applying the rule announced in

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399

1 Pennsylvania’s Minimum Wage Act requires an employer to

compensate employees for overtime at a rate not less than one and

one-half times the employee’s regular rate. Overtime is defined as

“hours in excess of forty hours in a workweek.”

The pertinent regulation promulgated pursuant to the Minimum

Wage Act defines “hours worked” as follows:

all time during which an employee is required by the employer

to be on the premises of the employer, to be on duty, or to be

at the prescribed work place, all time spent traveling as part

of the duties of the employe[e] during normal working hours,

and all time during which an employe[e] is employed or per-

mitted to work: provided, however .. . that time spent on the

premises of the employer for the convenience of the employe[e]

shall be excluded.

34 Pa. Code § 231.1 (emphasis added).

2“Pet. App.” refers to the Appendix appended to the Petition for

a Writ of Certiorari.

(1988), the Court concluded that since the resolution of

Petitioners’ claim required the interpretation of a labor

agreement, that claim was preempted by the Railway

Labor Act (“RLA”), 45 U.S.C. §§ 151 et seq. Pet. App.

at la-9a. That decision is reported at 989 F.2d 112 (3d

Cir. 1993).

Factual Background: The Collective Bargaining Agree-

ment Provisions.

Amtrak and the BMWE are parties to a collective bar-

gaining agreement negotiated in accordance with the RLA.

The BMWE-represented employees whose pay is at issue

here are based in camp cars * or permanent headquarters

and travel to and from different job sites to maintain the

track and right-of-way.

The collective bargaining agreement contains numerous,

detailed provisions for determining the employees’ rates

of pay. As a general rule, the agreement establishes a five-

day, 40-hour work week and requires that employees be

paid overtime for any time worked beyond their sched-

uled daily hours. Employees are paid overtime at either

one and one-half or two times their hourly rate of pay

depending on the circumstances.

The parties have also established a detailed system of

pay for travel time. Under the agreement, all travel time

within the employees’ assigned tour of duty (scheduled

working hours) is counted as hours worked for the pur-

pose of computing eligibility for overtime pay. In addi-

tion, the agreement requires that employees be paid one

and one-half times their regular rate when they are called

to work outside their regular tour of duty, regardless of

whether the time is spent working or traveling.

Under the agreement, time spent by an employee travel-

ing back to the base location after completion of a reg-

3’“Camp cars” provide portable housing for certain employees

while working on the track and right-of-way.

ular tour of duty is not included within the forty hour

work week and therefore, is not considered “hours

worked” for purposes of computing eligibility for over-

time. While Amtrak transports the-employees to their

base locations, they perform no service and receive a pay-

ment equivalent to straight time.*

Although the agreement also provides a grievance pro-

cedure for the express purpose of resolving disputes over

compensation, Petitioners did not submit their claims to

the grievance process.

Court Proceedings Below.

Petitioners originally filed suit in the Philadelphia

County Court of Common Pleas; therafter, Amtrak

removed the case to the United States District Court for

the Eastern District of Pennsylvania based on 28 U.S.C.

§ 1349. Subsequently, the parties stipulated to the facts,

and each filed dispositive motions.

By Order dated June 15, 1992, District Court Judge

William Yohn, Jr. dismissed Petitioners’ Complaint. The

District Court noted that travel time, under the relevant

state regulation, will be considered as “hours worked” for

the purpose of overtime compensation only when traveling

is “part of the duties of the employe[e] during normal

working hours.” Pet. App. at 15a. The Court reasoned

that the determination of “whether travel time at issue in

this case qualifies as part of the duties of the employee or

whether such travel is undertaken during the established

working hours can[not] be determined without reference

to the terms of the collective bargaining agreement, and

therefore was preempted.” Pet. App. at 15a-16a.

The Court of Appeals, by an Order dated March 18,

1993, affirmed the dismissal of Petitioners’ lawsuit. The

Court of Appeals noted that the RLA requires that all

4 Amtrak believes that such payments are in excess of the re-

quirements of Pennsylvania’s Minimum Wage Act.

“minor disputes”—disputes arising out of the interpreta-

tion of labor agreements—must be submitted to arbitra-

tion. Pet. App. at Sa. The Court recognized that this

Congressional deference to arbitration was not intended

to wholly preempt states from exercising their police

powers to regulate minimum working conditions. /d.

Nonetheless, under the more limited preemption doctrine

established in Lingle, the Court held the particular state-

law claim at issue was preempted because its resolution

depended upon an interpretation of the bargaining agree-

ment. In particular, the Court concluded that it would

be impossible to determine if travel time after a tour of

duty was “part of the duties of the employe[e]”, without

interpreting the labor agreement. /d. Similarly, the Court

also held that a determination of whether this type of

employee travel time satisfied some other regulatory cri-

terion for “hours worked” also required an interpreta-

tion of the labor agreement. Pet. App. at 7a.°

REASONS WHY THE PETITION SHOULD BE DENIED

Petitioners disagree with the manner in which the Dis-

trict Court and Court of Appeals applied the well-settled

law under Lingle to the particular facts of this case.

Lingle made it clear that “judges can determine questions

of state law involving labor-management relations only

if such questions do not require construing collective-

bargaining agreements”. Lingle, 486 U.S. at 411. Peti-

tioners have litigated the issue of whether the Court of

Appeals misapplied the Lingle standard in this case and

they have lost. This type of disagreement does not war-

rant Supreme Court review. As we show below, Petition-

ers’ attempt to manufacture issues for Court review by

claiming that a conflict exists among the Circuits and that

5 Before the Court of Appeals, Petitioners relied for the first

time on that part of the regulation that defines “hours worked” as

premises of the employer, to be on duty or to be at the prescribed

work place.”

the Court of Appeals’ decision below fails to follow

Supreme Court precedent is unavailing.

I. THERE IS NO CONFLICT IN THE CIRCUITS ON

ANY MATERIAL ISSUE RAISED BY PETITION-

ERS.

In an effort to create a conflict of law, Petitioners

Suggest that the Court of Appeals relied on reasoning

that in fact played no role in the Court’s decision. Con-

trary to Petitioners’ claim, this case does not present the

question of whether the scope of preemption under the

RLA is broader than that under the Labor Management

Relations Act (“LMRA”), 29 U.S.C. §$ 185. Here, the

Court of Appeals specifically held that Petitioners’ state

claim was preempted under the LMRA standard of pre-

emption articulated in Lingle. Its holding was not based

on any finding regarding the parameters of RLA pre-

emption. Indeed, it expressly noted that it need not reach

the question whether there is a distinction between RLA

and LMRA preemption because Petitioners’ claim met

the arguably narrower standard for preemption under the

LMRA.

We realize that Lingle involved a claim of preemp-

tion under the Labor Management Relations Act, and

not the Railway Labor Act; however, this difference

is not significant in our case because if anything pre-

emption is broader under the Railway Labor Act.

Pet. App. at 6a n.7 (989 F.2d at 115 n.7) (citations

omitted). Accordingly, this case does not provide this

Court with the occasion to resolve any conflict that may

exist among other Courts of Appeals regarding whether

the preemptive effect of the RLA is even greater than that

of the LMRA.°

® Amtrak had argued in the alternative to the lower courts that

the RLA has a broader preemptive effect than the LMRA. However,

More importantly, however, there is no conflict among

the Circuits regarding the issue that the Court of Appeals

did address, namely, the applicability of Lingle preemp-

tion in factual circumstances like this case. Petitioners

have cited no other Court of Appeals decisions—and

Amtrak is aware of none—-that conflict with the Court of

Appeals decision below. Indeed, two courts that have

considered a BMWE state-law wage claim, similar to the

one at issue here, reached the same conclusion as the

Court of Appeals in this case. In Brotherhood of Main-

tenance of Way Employes v. Conrail, No. L-01902-89

(N.J. Superior Ct. Law Div.. January 25, 1991), ad,

No. A-3255-90TS (N.J. Superior Ct. App. Div., January

28, 1992), the BMWE attempted, as it does here, to

undercut the terms of a labor agreement that it nego-

tiated. In that case, the union claimed that Conrail owed

employees additional overtime compensation under New

Jersey law.’ Like the Court of Appeals here, the New

Jersey courts determined that such a claim was a “minor

dispute” because the resolution of the state law claim

depended upon an interpretation of the labor agreement

and that the courts therefore lacked jurisdiction to enter-

tain the claim.

Il. THE COURT OF APPEALS’ DECISION IS NOT

INCONSISTENT WITH ANY DECISIONS OF THE

COURT AND DOES NOT RAISE ANY IMPORTANT

ISSUES REQUIRING THE COURT’S ATTENTION.

Petitioners also claim that the Court should “exercise

. . . [its] power of supervision” because the Court of

Appeals’ decision at issue here fails to follow Supreme

as noted above, the Court of Appeals did not need to resolve that

issue since the claim here was preempted under Lingle.

7 Specifically, the BMWE claimed that Conrail’s practice under

the terms of the BMWE/Conrail labor agreement of paying camp

car cooks only straight time for their “down time”, including the

time spent by the cooks commuting from the work site to the camp

cars, was unlawful under the New Jersey minimum wage law.

Court precedent. (Petition at 18). Petitioners’ argument

is based on a misreading of the Court of Appeals’ opinion

and is wholly without merit.

The cases upon which Petitioners principally rely—Fort

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

politan Life Ins. Co. v. Massachusetts, 471 U.S. 724

(1985), DeCanas v. Bica, 424 U.S. 351 (1976) and Ter-

minal R.R. Ass'n v. Railroad Trainmen, 318 US. 1

(1942)—are all inapposite to the instant case. These deci-

sions deal with the issue of whether specific federal regu-

lations so “occup[y] the field” that state legislation set-

ting minimum labor standards is wholly preempted and

unenforceable. See e.g. Metropolitan Life Ins. Co. v.

Massachusetts, 471 U.S. at 747-48. By contrast, this case

presents the completely different and far narrower ques-

tion of whether a particular claim based on a state

regulation is preempted under Lingle when that claim

cannot be resolved without interpreting and applying the

terms of a particular collective bargaining agreement.

Lingle preemption does not render the Pennsylvania mini-

mum wage law unenforceable or preclude the state from

setting minimum wage standards. Rather, it insulates the

collective bargaining agreement from judicial interpreta-

tion and preempts only that narrow class of state-law

claims that cannot be resolved without such an interpre-

tation. By doing so, Lingle preemption ensures that the

task of interpreting an RLA agreement is performed by

the statutorily mandated arbitration forums that have spe-

cialized expertise in that area. See Consolidated Rail

- Corp. v. Railway Labor Executives’ Ass’n, 491 U.S. 299,

310 (1989).

Moreover, application of the Lingle preemption stand-

ard in the circumstances of this case is unexceptional.

Although Petitioners argue that no interpretation of a

labor agreement is necessary, the courts below properly

9 °

gave that argument short shrift.’ As the Court of Appeals

correctly observed, it is impossible to determine whether

the time BMWE-represented employees spend traveling is

““part of the duties of the employe[e]’’ without interpreting

the collective bargaining agreement to see exactly what

their duties are. Moreover, the application of other regu-

latory indicia to determine if time spent was “hours

worked” was similarly dependent upon an interpretation

of the labor agreement. As the Court of Appeals noted:

(I]n order to determine whether the workers are

‘required by the employer to be on the premises of

the employer, to be on duty, or to be at the pre-

scribed work place’ during the time spent traveling,

we would have to interpret the collective bargaining

agreement. For example, a worker living near

a job site might be able to go directly home instead

of going on an AMTRAK vehicle back to head-

quarters. Similarly, if a job site were near the place

of employment of a worker’s spouse, the spouse might

be able to pick up the worker on the way home. . .

In other words, only an interpretation of the collec-

tive bargaining agreement can tell us if these

AMTRAK employees are required to travel on the

AMTRAK vehicles after their work shifts are done.

Pet. App. at 7a (989 F.2d at 115) (emphasis in

original).

Indeed, Lingle preemption is especially appropriate in

a case such as this where the applicable state statutory

provision and regulation define an employer’s obligations

8 Petitioners suggest that a court need only look at whether em-

ployees were paid straight time when they were paid for more than

forty hours,-and then give them half-time pay for those additional

hours. However, merely because Amtrak agreed to pay employees

for what is, in essence, commuting, does not mean such travel time

was “part of the duties of the employe[e] during working hours”.

As part of the give and take of bargaining, employers frequently

agree to compensate employees for time that they are not actually

performing job duties.

by reference to classic collective bargaining terminology

that has no independent statutory meaning. The regula-

tory terms that underlie the state claims—for example,

duties of employees and normal working hours—neces-

sarily depend upon the interpretation of the bargaining

agreement. The statute and regulation would have been

structured differently had they been intended to operate

independently from the labor agreement.*

In sum, this case presents a run-of-the-mill situation

where the resolution of a state claim is inextricably in-

volved with an interpretation of a labor agreement and

is accordingly preempted. Petitioners’ real complaint is

with the Court’s application of the Lingle preemption

standard to the facts of this case. However, that is not an

issue that warrants review by the Court."®

® This is not a case where the labor agreement, on its face, vio-

lates a state minimum wage act. In such a situation, Lingle pre-

emption is arguably not operative. By contrast, this case is one

where undefined regulatory terms can only be resolved by interpret-

ing a bargaining agreement.

10 Regardless of whether or not Lingle preemption is operative

here, the parties’ agreed-upon practice of compensating for travel

time is in accord with the state statute. Under the agreement,

time spent travelling during normal working hours, i.e. tour of

duty, is treated as hours worked and counts toward overtime. If,

however, travel occurs after regular work hours, it is compensated

at the regular rate, but is not counted as hours worked for the

purposes of calculating overtime. Amtrak’s practice is wholly

consistent with regulations and court decisions under federal law

that are similar to the Pennsylvania statute upon which Petitioners

rely. See Portal to Portal Act, 29 U.S.C. § 254; Dolan v. Project

Constr. Corp., 558 F. Supp. 13808 (D.Colo. 1983) (time spent com-

muting by company bus from reporting location to work site is not

compensable as overtime under the Fair Labor Standards Act, 29

U.S.C. §§ 151 et seq.). Indeed, by compensating employees for time

spent commuting between the work site and headquarters outside

their normal tour of duty, Amtrak is far more generous than state

law requires.

CONCLUSION

For the foregoing reasons, Amtrak respectfully requests

that the Court deny the Petition for a Writ of Certiorari.

Respectfully submitted,