Orfaly v. Tucson Symphony Society

• Decision Date: 29 October 2004
• Docket Number: No. 2 CA-CV 2003-0153.,2 CA-CV 2003-0153.
• Citation: 209 Ariz. 260,99 P.3d 1030
• Parties: Alex ORFALY, Janet George, Hannah Albrecht, and Edward Reid, Plaintiffs/Appellants, v. The TUCSON SYMPHONY SOCIETY, a non-profit corporation, and The Tucson Symphony Orchestra Musicians' Organization, a chapter of the International Guild of Symphony, Opera and Ballet Musicians, Defendants/Appellees.
• Court: Arizona Court of Appeals

99 P.3d 1030

209 Ariz. 260

Alex ORFALY, Janet George, Hannah Albrecht, and Edward Reid, Plaintiffs/Appellants, v. The TUCSON SYMPHONY SOCIETY, a non-profit corporation, and The Tucson Symphony Orchestra Musicians' Organization, a chapter of the International Guild of Symphony, Opera and Ballet Musicians, Defendants/Appellees.

No. -0153.

Court of Appeals of Arizona, Division Two, Department B.

October 29, 2004.

Ellinwood, Langley & Plowman, LLP, By Ralph E. Ellinwood, Tucson, Law Office of Bruce A. Burke, P.C., By Bruce A. Burke, Tucson, for Plaintiffs/Appellants.

Fennemore Craig, By Erwin D. Kratz, Tucson, for Defendant/Appellee, The Tucson Symphony Society.

Snell & Wilmer, By James K. Mackie and Erica K. Rocush, Tucson, for Defendant/Appellee, The Tucson Symphony Orchestra, Musicians' Organization.

OPINION

PELANDER, Chief Judge.

¶ 1 Appellants Alex Orfaly, Janet George, Hannah Albrecht, and Edward Reid appeal from the trial court's grant of summary judgment in favor of appellees Tucson Symphony Society (TSS) and Tucson Symphony Orchestra Musicians' Organization (TSOMO) and from the trial court's denial of appellants' various post-judgment motions. Appellants, symphony musicians, sought recovery of treble damages under A.R.S. § 23-355 for allegedly unpaid wages, claiming they were entitled to all of their outstanding annual salary following their last performance of the symphony season. They also sought a judgment declaring invalid a twelve-month payment provision in the master labor agreement (MLA) between TSS and TSOMO. The trial court ultimately ruled in favor of appellees and also awarded attorney fees to them under A.R.S. § 12-341.01(A). Finding no reversible error, we affirm.

BACKGROUND

¶ 2 Although the pertinent facts are essentially undisputed, in reviewing a grant of summary judgment, "we view all facts and reasonable inferences therefrom in the light most favorable to the party against whom judgment was entered." Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 2, 965 P.2d 47, 49 (App.1998). Appellants were salaried musicians employed by TSS for the 2000-01 and 2001-02 seasons who worked under individual contracts that incorporated the terms of the MLA between TSS and TSOMO.¹ The MLA provides for payment of salaries to musicians on a twelve-month basis, with their annual salaries paid biweekly over twenty-six pay periods, and defines the symphony season as beginning September 1 and ending August 31 of each year. Musicians are not required to perform after the last engagement in June and not at all in July or August.

¶ 3 The last performance of the 2000-01 season was on May 11, with the coinciding pay period ending on May 25, 2001. The final performance of the 2001-02 season was on May 24, 2002, and the pay period ended that day. Appellants were paid in full by the end of August for each season in accordance with the MLA. Appellants, however, signed their 2001-02 individual contracts under protest, complaining that this pay structure violated state law. They took that complaint to TSOMO, the sole and exclusive bargaining agent for all TSS musicians.

¶ 4 The MLA provides a grievance and arbitration procedure. In pertinent part, it states:

All questions, complaints or disputes concerning the interpretation or application of any provision of this Agreement will be presented in writing by the Union to the Executive Director of the Symphony or his/her designee within 90 days of the event giving rise to the question, or the same will be deemed waived.

TSOMO did not submit appellants' grievance in writing to the Executive Director, but on May 31, 2001, TSOMO presented the complaint to TSS at a regular meeting between TSS management and TSOMO representatives. After discussing the matter, TSS and TSOMO determined that the MLA's twelve-month payment provision was legal. TSOMO considered the matter resolved and did not take any further action.

¶ 5 Appellants then filed this action, seeking recovery of wages, treble damages, and a declaratory judgment that the twelve-month payment provision violated A.R.S. § 23-351(C). Appellees moved for dismissal of the complaint pursuant to Rule 12(b)(6), Ariz. R. Civ. P., 16 A.R.S., Pt. 1. The trial court (J. Quigley) denied those motions, despite finding "nothing in the individual contracts or the [MLA] that is invalid under state or federal law."

¶ 6 More than one year later, appellants having conducted no discovery and the discovery deadline having passed, TSS and TSOMO moved for summary judgment on multiple grounds. In granting the motions on all grounds raised, the trial court ruled that the MLA's twelve-month payment provision did not violate state law; § 301 of the Labor Management Relations Act (the Act), 29 U.S.C. § 185(a), preempted appellants' claims; appellants had been paid according to their contract; and TSOMO had contractual authority to determine what claims to submit to formal arbitration. The trial court also awarded all of appellees' requested attorney fees pursuant to § 12-341.01(A). This appeal followed the trial court's entry of formal judgments and denial of appellants' post-judgment motions under Rule 59, Ariz. R. Civ. P., 16 A.R.S., Pt. 2, for a new trial and to amend the judgments, and for relief under Rule 60(c), Ariz. R. Civ. P., 16 A.R.S., Pt. 2.

DISCUSSION

I. Summary judgment ruling

¶ 7 Appellants first contend the trial court erred in granting summary judgment on their claim that the MLA violates § 23-351(C). In pertinent part, that statute provides: "Each employer shall, on each of the regular paydays, pay to the employees, ... all wages due the employees up to such date." Appellants argue TSS violated that statute by paying them in twenty-six pay periods over twelve months, pursuant to the MLA, rather than paying the balance of their wages for the season at the end of May, when their performance obligations ended.

¶ 8 Conversely, appellees argue the MLA's twelve-month payment provision is legal and enforceable and, therefore, the trial court correctly found no violation of § 23-351(C). Appellees also argue the federal Act preempts appellants' state-law claims. We review de novo the trial court's summary judgment ruling and related issues of statutory and contract interpretation. See Andrews v. Blake, 205 Ariz. 236,

¶ 12, 69 P.3d 7, 11 (2003); Taylor v. Graham County Chamber of Commerce, 201 Ariz. 184, ¶ 6, 33 P.3d 518, 521 (App.2001). "We will affirm [a summary judgment] if the trial court's ruling is correct on any ground." Rowland v. Great States Ins. Co., 199 Ariz. 577, ¶ 6, 20 P.3d 1158, 1162 (App.2001).

A. State law wage claim

¶ 9 As noted above, § 23-351(C) requires employers to pay to employees "on each of the regular paydays ... all wages due the employees up to such date." In support of their argument that TSS violated that statute, appellants rely in part on A.R.S. § 23-350(5), which defines "[w]ages" as "non-discretionary compensation due an employee in return for labor or services rendered by an employee for which the employee has a reasonable expectation to be paid whether determined by a time, task, piece, commission or other method of calculation." Appellants argue that the balance of their wages was due when they completed their performance obligations each May and that thereafter they no longer were rendering "labor or services" in return for "nondiscretionary compensation." They further contend that, despite the MLA's "twelve month pay out scheme," they "desire[d] to be paid immediately following completion of their work under the law" and that "their wishes must be honored." We find no such meaning in § 23-351(C).

¶ 10 In interpreting statutes, "[w]e focus first on the statutory wording and, if it is ambiguous or inconclusive, we consider the statute's `context, subject matter, historical background, effects, consequences, spirit, and purpose.'" Bothell, 192 Ariz. 313, ¶ 17, 965 P.2d at 53, quoting Mail Boxes, Etc. v. Indus. Comm'n, 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)

. We find the language of § 23-351(C) clear: All employers must pay, on each pay day, all "wages" that are then "due" up to such date. The statutory definition of "wages" is based on compensation that an employee has a reasonable expectation to be paid. § 23-350(5). That compensation can be determined by "time, task, piece, commission or other method of calculation." Id. ¶ 11 Through the MLA, TSS and its musicians agreed that compensation would be paid over a twelve-month period. Nothing in the language of §§ 23-351(C) or 23-350(5) prevents such an agreement. Cf. Swanson v. The Image Bank, Inc., 206 Ariz. 264,

¶ 12, 77 P.3d 439, 443 (2003) ("Generally speaking,... parties do have the power to determine the terms of their contractual engagements," particularly when the parties have relatively equal bargaining power); Southwest Sav. & Loan Ass'n v. SunAmp Sys., Inc., 172 Ariz. 553, 558, 838 P.2d 1314, 1319 (App.1992) ("If contracting parties cannot profitably use their contractual powers without fear that a jury will second-guess them under a vague standard of good faith, the law will impair the predictability that an orderly commerce requires."); Villegas v. Transamerica Fin. Servs., Inc., 147 Ariz. 100, 103, 708 P.2d 781, 784 (App.1985) ("Courts have no right to remake contracts to comport with some unspecified notion of fairness nor to refuse enforcement on that ground.").

¶ 12 Moreover, neither the record nor the law supports any contention that appellants reasonably expected to be paid in a manner different than that described in the contract. See Consumers Int'l, Inc. v. Sysco Corp., 191 Ariz. 32, 38-39, 951 P.2d 897, 903-04 (App. 1997)

(plaintiff's "reasonable expectations" theory did not preclude summary judgment when parties' negotiated contract was not based on unequal bargaining power and contained explicit no-cause termination provision of which parties were aware); cf. Philadelphia Indem. Ins. Co. v. Barerra,...