Livadas v. Aubry

• Citation: 987 F.2d 552
• Decision Date: 08 March 1993
• Docket Number: No. 90-16650,90-16650
• Parties: 142 L.R.R.M. (BNA) 2808, 125 Lab.Cas. P 10,629, 2 Wage & Hour Cas.2d (BNA) 106 Karen LIVADAS, Plaintiff-Appellee, v. Lloyd AUBRY, in his official capacity as Labor Commissioner for the State of California, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 552

987 F.2d 552

142 L.R.R.M. (BNA) 2808, 125 Lab.Cas. P 10,629,

2 Wage & Hour Cas.2d (BNA) 106

Karen LIVADAS, Plaintiff-Appellee, v. Lloyd AUBRY, in his official capacity as Labor Commissioner for the State of California, Defendant-Appellant.

No. 90-16650.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 13, 1991.

Decided Sept. 11, 1991.

As Amended on Denial of Rehearing

and Rehearing En Banc March 8, 1993.

H. Thomas Cadell, Jr., Chief Counsel, Div. of Labor Standards Enforcement, Dept. of Industrial Relations, San Francisco, CA, for defendant-appellant.

Michael T. Anderson, Davis, Cowell & Bowe, San Francisco, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: ALARCON, KOZINSKI and RYMER, Circuit Judges.

ORDER

The opinion filed September 11, 1991, is amended as follows:

Judge Kozinski, as dissenter, neither joins in nor opposes the amendment to the majority opinion contained in this order.

With the above amendment, the majority of the panel has voted to deny the petition for rehearing. Judge Rymer has voted to reject the suggestion for rehearing en banc and Judge Alarcon so recommends. Judge Kozinski has voted to grant the petition for rehearing and to accept the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to hear the matter en banc. Fed.R.App.P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

OPINION

RYMER, Circuit Judge:

Karen Livadas brought this action under 42 U.S.C. § 1983 against Lloyd Aubry, the Labor Commissioner of California (Commissioner). She argues that the Commissioner deprived her of her right under the National Labor Relations Act (NLRA) to bargain collectively because he denied her enforcement of certain sections of the California Labor Code based on his determination that adjudicating her dispute would concern the interpretation or application of a collective bargaining agreement containing an arbitration clause. The district court granted Livadas's motion for summary judgment. We reverse.

I

Livadas was terminated from her job at Safeway on January 2, 1990. On that day, she requested all pay due her. The store manager refused, saying that he did not have payroll records at the store and that he would instead mail her a check. Livadas received the check on January 5, 1990.

Livadas does not dispute the amount of the check, but she contends that Safeway's three-day delay in payment violated California law. California Labor Code § 201 provides: "If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately." Section 203 provides: "If an employer willfully fails to pay, without abatement or reduction, in accordance with Section[ ] 201 ..., any wages of an employee who is discharged or who quits, the wages of such employees shall continue as a penalty from the due date thereof at the same rate until paid." Based on these statutes, Livadas claims that Safeway owes her penalty payments for the three days her check was delayed.

On January 9, 1990, Livadas filed a claim for the penalties with the California Division of Labor Standards Enforcement (DLSE). The Commissioner heads the DLSE. He may prosecute actions to collect penalties for persons who, in his judgment, "are financially unable to employ counsel and ... have claims which are valid and enforceable." Cal.Lab.Code § 98.3(a).

In a letter dated February 7, 1990, the DLSE informed Livadas that it could not proceed with her claim because California Labor Code § 229 precludes the DLSE from adjudicating "any dispute concerning the interpretation or application of any collective bargaining agreement containing an arbitration clause." The letter explained that it was the DLSE's understanding that Livadas was covered by a collective bargaining agreement containing an arbitration clause. Because § 203 requires that wages continue at the "same rate," and the collective bargaining agreement established Livadas's rate of pay, the DLSE concluded that prosecuting Livadas's claim would require applying the collective bargaining agreement.

On February 16, 1990, Livadas filed a complaint in the district court under 42 U.S.C. § 1983 against Lloyd Aubry in his official capacity as Labor Commissioner seeking injunctive and declaratory relief and damages based on his refusal to prosecute her claim. She alleged that the Commissioner's policy of not enforcing § 203 claims for employees who worked under collective bargaining agreements denied her the benefit of his enforcement powers on the sole basis that she was a union member covered by a collective bargaining agreement. Such a policy, she contended, interfered with her right under the NLRA to bargain collectively.

Both parties moved for summary judgment. The district judge initially denied both motions, concluding that there were genuine issues of material fact. Livadas made a motion for reconsideration, which the district court granted. Upon reconsideration, the district court granted Livadas's motion for summary judgment, concluding that § 1983 provided Livadas with a cause of action and that the Commissioner's policy deprived Livadas of her right to bargain collectively. The Commissioner appeals.

II.

The threshold issue in this case is whether Livadas has asserted the sort of violation that is actionable under § 1983. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The Supreme Court has interpreted § 1983 to provide a cause of action for a deprivation of rights granted by the NLRA. In Golden State Transit Corp. v. City of Los Angeles, (Golden State II ), 493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989), the Court held that an employer could bring an action under § 1983 based on a city's interference with the collective bargaining process. In that case, the city had conditioned renewal of the employer's taxicab franchise on its settling a strike. The Court had held in an earlier appeal that the city's action interfered with and was therefore preempted by the NLRA because an employer's withstanding a strike is conduct that Congress intended to be left unregulated either by it or by the states. Golden State Transit Corp. v. City of Los Angeles, (Golden State I ), 475 U.S. 608, 106 S.Ct. 1395, 89 L.Ed.2d 616 (1986).

In Golden State II, the Court applied a two-part test to determine whether the city's violation was actionable under § 1983:

First, the plaintiff must assert the violation of a federal right.... In deciding whether a federal right has been violated, we have considered whether the provision in question creates obligations binding on the governmental unit or rather "does no more than express a congressional preference for certain kinds of treatment." ... We have also asked whether the provision in question was "inten[ded] to benefit" the putative plaintiff.

Second, even when a plaintiff has asserted a federal right, the defendant may shown that Congress "specifically foreclosed a remedy under § 1983," by providing a "comprehensive enforcement mechanis[m] for protection of a federal right."

493 U.S. at 106, 110 S.Ct. at 448, 107 L.Ed.2d at 427-28 (citations omitted).

The Court concluded that the second prong was satisfied because, while Congress has created a comprehensive scheme to prevent unfair labor practices by employers and unions (through the creation of the NLRB), it has not provided any mechanism to address governmental interference with rights protected by the NLRA. Id. 493 U.S. at 108, 110 S.Ct. at 449, 107 L.Ed.2d at 429. The Court went on to conclude that the first prong was also satisfied because the NLRA implicitly protects an employer's right to use permissible economic weapons free from governmental interference. Id. 493 U.S. at 110-13, 110 S.Ct. at 450-52, 107 L.Ed.2d at 430-32.

Golden State II's resolution of the second prong applies with equal force in this case. The NLRB has no power to address the Commissioner's alleged interference with Livadas's NLRA rights. Thus, a § 1983 suit is not precluded on this ground.

The parties' dispute on this issue centers on whether Livadas has asserted a "right" that is protected by the NLRA against governmental interference. Livadas contends that the NLRA grants her a right, as an employee, to bargain collectively.

The plain language of the NLRA supports Livadas's position. Section 7, 29 U.S.C. § 157, provides:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining....

Similarly, the NLRA declares it to be the policy of the United States to

eliminate the causes of certain substantial obstructions to the free flow of commerce ... by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

29 U.S.C. § 151.

The Supreme Court in Golden State II also seemed to assume that the NLRA establishes a right to bargain collectively. It reasoned that "[t]he rights protected against state interference ... are not limited to those explicitly set forth in § 7 as protected against private interference." 493 U.S. at 110, 110 S.Ct. at 450, 107 L.Ed.2d at 430 ...