McCollum v. Roberts

• Decision Date: 02 March 1994
• Docket Number: No. 91-35977,91-35977
• Citation: 17 F.3d 1219
• Parties: 145 L.R.R.M. (BNA) 2791, 62 USLW 2464, 127 Lab.Cas. P 11,045, 1 Wage & Hour Cas. 2d (BNA) 1520 John McCOLLUM, on behalf of himself and all others similarly situated, Plaintiffs-Appellants, v. Mary ROBERTS, in her official capacity as Labor Commissioner for the State of Oregon, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1219

17 F.3d 1219

145 L.R.R.M. (BNA) 2791, 62 USLW 2464,

127 Lab.Cas. P 11,045,

1 Wage & Hour Cas. 2d (BNA) 1520

John McCOLLUM, on behalf of himself and all others similarly

situated, Plaintiffs-Appellants, v. Mary ROBERTS, in her official capacity as Labor Commissioner

for the State of Oregon, Defendant-Appellee.

No. 91-35977.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 1993.

Decided March 2, 1994.

David J. Hollander, Gordon S. Gannicott, Hollander, Lebenbaum & Gannicott, Portland, OR, for the plaintiffs-appellants.

Richard D. Wasserman, Assistant Attorney General, Salem, OR, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: TANG, POOLE and RYMER, Circuit Judges.

POOLE, Circuit Judge:

Plaintiffs-appellants are private employees who belong to unions and whose employment is covered by collective bargaining agreements. They sued Oregon's Labor Commissioner, Mary Roberts, seeking entitlement to the minimum rest periods Oregon law guarantees to nonunion employees. The district court granted summary judgment for the Commissioner. We now reverse and remand.

I.

Oregon Administrative Rule 839-20-050 provides:

(1) Every employer shall provide to each employee ... an appropriate rest period.

. . . . .

(3) "Appropriate rest period" means: A period of rest of not less than 10 minutes without deduction from the employee's pay for every segment of four hours or major part thereof worked in one work period.

Oregon Administrative Rule 839-20-100(1) provides:

The provisions of OAR 839-20-050 ... do not apply to employees covered by a collective bargaining agreement.

Appellants, a class of union employees whose employment is covered by collective bargaining agreements, brought suit under 42 U.S.C. Sec. 1983. ¹ They argued that excluding them from benefits solely on the basis of their union membership interfered with their collective bargaining rights under the National Labor Relations Act. Their complaint sought preliminary and permanent injunctions, and money damages. ²

The defendant Labor Commissioner argued that the plaintiffs lacked standing, and that the regulations did not impinge collective bargaining rights.

On cross-motions for summary judgment, the district court held that the NLRA did not preempt the Oregon regulations and it entered summary judgment for the Labor Commissioner. Appellants timely brought this appeal.

II.

The district court had subject matter jurisdiction under 28 U.S.C. Secs. 1331 and 1343. Our jurisdiction comes from 28 U.S.C. Sec. 1291. We review the district court's summary judgment ruling de novo. Jones v. Union Pac. R.R., 968 F.2d 937, 940 (9th Cir.1992).

III.

Appellants argue that because Oregon's scheme grants nonunion employees benefits not mandated for unionized employees, it penalizes union membership. They argue that while Oregon was not required to mandate paid rest periods, once it did bestow that benefit it could not do so in a discriminatory manner. The Ninth Circuit has recognized that a state's denial to union employees of benefits it grants nonunion employees may infringe on the union employees' rights under the NLRA. Livadas v. Aubry, 987 F.2d 552, 558 (9th Cir.1991), cert. granted, --- U.S. ----, 114 S.Ct. 907, 127 L.Ed.2d 97 (1994); id. at 560-63 (Kozinski, J., dissenting).

The question we must answer is whether that kind of infringement occurred here. Certain established preemption principles are helpful in this regard. First, a state may establish statewide minimum labor standards, even though the standards would have the effect of dictating some terms of collective bargaining agreements. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 758, 105 S.Ct. 2380, 2399, 85 L.Ed.2d 728 (1985). ³ States enjoy this prerogative "so long as the purpose of the state legislation is not incompatible with [the] general goals of the NLRA." Id. at 754-55, 105 S.Ct. at 2396-97; accord Bechtel Constr., Inc. v. United Bd. of Carpenters & Joiners, 812 F.2d 1220, 1222 (9th Cir.1987) ("state attempts to establish minimum labor requirements are not preempted by federal labor law if those minimum requirements are not inimical to the purposes of the National Labor Relations Act").

In Metropolitan, the Supreme Court upheld a Massachusetts law requiring general health insurance policies to include mental health coverage. The Court noted that the primary purpose of the NLRA was to "restor[e] equality of bargaining power" between corporate employers and their employees. 471 U.S. at 753-54, 105 S.Ct. at 2396-97 (quotations omitted). It said that "[m]inimum state labor standards affect union and nonunion employees equally, and neither encourage nor discourage the collective-bargaining processes that are the subject of the NLRA." 471 U.S. at 755, 105 S.Ct. at 2397.

Here, the problem is that Oregon's benefits provisions apply only to nonunion workers. Ironically, the reason for this disparity is presumably Oregon's desire to avoid preemption difficulties. In exempting union employees, Oregon evidently meant to defer to federal labor law by avoiding any interference with the collective bargaining process. Yet it is precisely the state's sidestepping of the collective bargaining process which is the basis of the appellants' present claim.

In this respect this case is similar to Livadas v. Aubry, in which the State of California also sought to avoid preemption problems by shielding unionized workers from employee benefits. Under the state law there, employees who had valid employment claims but who could not afford a lawyer were provided the services of a state lawyer. 987 F.2d at 554. That benefit was not available, however, to employees with claims " 'concerning the interpretation or application of any collective bargaining agreement containing an arbitration clause.' " Id. (quoting Cal.Lab.Code Sec. 229).

This provision, like the Oregon regulations in the present case, was intended to avoid preemption difficulties, by shielding union members' labor disputes from state interference. But the statute meant that the Livadas plaintiff, a union employee with a valid grievance against her employer, was denied state help in prosecuting her claim. 987 F.2d at 554-55.

The Livadas panel upheld the California statute on grounds not relevant to this appeal. (It held that there was a dispositive state law question requiring the case to be decided in state, not federal, court.) But the case recognized an important principle: if extending a state benefit to union employees would create preemption difficulties, then excluding such employees, even if it works a disparate hardship on them--i.e., "discriminates" against them--is not only permissible under preemption law, it is required by it. See 987 F.2d at 557-58 (majority); id. at 562-63 (dissent).

This is as it must be; the alternative would be for a state to extend benefits to union workers only to have the courts strike them down as preempted by federal law. But because of this principle, federal preemption law is, in a sense, pitted against itself. On the one hand, preemption principles compel a state to steer clear of regulation of unions, lest important NLRA rights be trampled. On the other hand, if a state steers clear of unions while handing out benefits, then it opens itself up to charges of anti-union discrimination, also a prohibited activity under the NLRA.

What all this means in the present case is that if applying Oregon's rest period regulations to union employees would interfere with the employees' NLRA rights, then the fact that they are not applied to those employees cannot be unlawful discrimination. In other words, we have to ask whether Oregon could have given rest period benefits to all Oregon employees, without running afoul of preemption principles. If preemption principles would prohibit Oregon from conferring benefits on union workers, then the state's exclusion of those workers was not only permitted, it was required.

We conclude that Oregon could have provided rest period benefits to all Oregon employees. Metropolitan approved a state's imposition of statewide minimum labor standards, as long as "the purpose of the state legislation is not incompatible with [the] general goals of the NLRA." 471 U.S. at 754-55, 105 S.Ct. at 2396-97. To be sure, the rest periods involved in this case are precisely the sort of benefit one would expect unions and employers to bargain over in collective bargaining sessions. In fact, some of the appellants' collective bargaining agreements contain just such provisions. But that is not dispositive. "[T]he mere fact that a state statute pertains to matters over which the parties are free to bargain cannot support a claim of pre-emption, for 'there is nothing in the NLRA ... which expressly forecloses all state regulatory power with respect to those issues ... that may be the subject of collective bargaining.' " Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21-22, 107 S.Ct. 2211, 2222-23, 96 L.Ed.2d 1 (1987) (quoting Malone v. White Motor Corp., 435 U.S. 497, 504-05, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443 (1978)).

We think the minimum rest periods in this case, like the minimum health care benefits in Metropolitan, are not incompatible with the general goals of the NLRA. We hold therefore that the uneven treatment in Oregon's regulations was not compelled by federal preemption law.

This conclusion does not necessarily dispose of the issue. That Oregon was not required to exempt union employees from benefits does not ineluctably mean that Oregon's voluntary choice to do so was unlawful. If Oregon's exclusion of unionized employees serves some other legitimate state function, then an argument can be made that its regulations could be justified. Cf. Livadas, 987 F.2d at 563 (Kozinski, J., dissenting).

But we need not resolve the question of when, if ever, a state's exclusion of benefits to...