Viceroy Gold Corp. v. Aubry
| Decision Date | 08 November 1995 |
| Docket Number | Nos. 94-16614,94-16672,s. 94-16614 |
| Citation | 75 F.3d 482 |
| Parties | 151 L.R.R.M. (BNA) 2316, 131 Lab.Cas. P 58,084, 96 Cal. Daily Op. Serv. 456, 96 Daily Journal D.A.R. 738 VICEROY GOLD CORPORATION, a Delaware corporation, Plaintiff-Appellee, v. Lloyd AUBRY, Director of the Department of Industrial Relations for the State of California; Victoria L. Bradshaw, Labor Commissioner for the State of California, Defendants-Appellants. VICEROY GOLD CORPORATION, a Delaware corporation, Plaintiff-Appellant, v. Lloyd AUBRY, Director of the Department of Industrial Relations for the State of California; Victoria L. Bradshaw, Labor Commissioner for the State of California, Defendants-Appellees. . Submission Deferred |
| Court | U.S. Court of Appeals — Ninth Circuit |
John M. Rea, Chief Counsel, Vanessa L. Holton, Asst. Chief Counsel, James D. Fisher, Department of Industrial Relations, San Francisco, California, for defendants-appellants-cross-appellees Lloyd W. Aubry, Jr., Director Dept. of Ind. Relations.
H. Thomas Cadell, Jr., Chief Counsel, Miles E. Locker, Staff Counsel Dept. of Ind. Relations, Div. of Labor Standards Enforcement, San Francisco, California, for defendants-appellants-cross-appellees, Victoria Bradshaw, Labor Comm'r, Div. of Labor Standards Enforcement.
Charles S. Birenbaum, Marion I. Quesenbery, Scott L. Gardner, Thelen, Marrin, Johnson & Bridges, San Francisco, California, for plaintiff-appellee-cross-appellant.
Appeal from the United States District Court for the Northern District of California.
Before: CHOY, WIGGINS, and LEAVY, Circuit Judges.
OVERVIEW
The State of California appeals the district court's grant of partial summary judgment in favor of Viceroy Gold Corporation (Viceroy) on the ground of National Labor Relations Act, 29 U.S.C. § 151 et seq. (NLRA), preemption of California Labor Code § 750.5. Viceroy cross-appeals the district court's judgment dismissing its other challenges to § 750.5 and its challenge to Cal.Lab.Code § 750. Viceroy also appeals the scope of the district court's injunction. The district court entered judgment on August 8, 1994 and the parties timely filed an appeal and cross-appeal. Subsequently, the California legislature amended both sections of the California Labor Code which are at issue in this appeal. California 1995 Legislative Service, Chapter 903 A.B. No. 739 (1995). These amendments are effective January 1, 1996. Id. The amendments moot neither the appeal nor the cross-appeal. The judgment of the district court in favor of Viceroy Gold Corporation on its NLRA preemption claim is reversed and remanded for entry of judgment in favor of the State of California on all of Viceroy's claims.
Viceroy Gold Corporation (Viceroy) operates the "Castle Mountain Mine," a gold processing facility in San Bernardino County, California. Viceroy does not actually mine rock from the earth; it receives already mined rock and processes it along a production line at Castle Mountain Mine. The process uses a technology developed in the 1970's called "cyanide heap leach" mining to extract gold from the rock.
Castle Mountain Mine is a non-union facility. It operates twenty-four hours a day, seven days a week, using rotating shifts. Mine employees currently work eight-hour shifts and forty-hour work weeks. Because housing at the facility is limited, most of the mine workers have a daily commute of seventy-five miles or more each way. Many of Viceroy's employees have requested a shorter work week--with fewer days at 12 hours per day--to reduce the commute and give them more free time.
Viceroy has been unable to implement the requested change in work schedules because of the restrictions in California Labor Code § 750. Section 750 in its original form was enacted in 1909. The recent amendments did not change the relevant restrictions. In its current form § 750 states, in relevant part:
(a) Except as otherwise provided in this chapter, no employee may be employed for a period that exceeds eight hours within any 24-hour period ..., for all persons who are employed or engaged in work in:
(1) Underground mines or underground workings.
(2) Smelters and plants for the reduction or refining of ores or metals.
Cal.Lab.Code § 750 ( 1995 California Legislature).
In 1983, the California Legislature added § 750.5. This amendment created an exception to the eight-hour shift limitation in § 750:
The provisions of Section 750 shall not prohibit a period of employment up to 12 hours within a 24-hour period when the employer and a labor organization representing employees of the employer have entered into a valid collective-bargaining agreement where the agreement expressly provides for the wages, hours of work, and working conditions of the employees. former Cal.Lab.Code § 750.5
Because Viceroy is a non-union mine it could not take advantage of the exception in § 750.5.
In November 1992 Viceroy petitioned the California Division of Labor Standards Enforcement (DLSE) for relief from § 750's eight-hour cap on the ground that the § 750.5 exception, if applicable only to union mining workers, was preempted by federal law. Viceroy asked DLSE to interpret § 750.5 to allow nonunion employees to work over eight hours if various safeguards were in place. On May 3, 1993, Viceroy also petitioned the DLSE for a ruling that § 750 was inapplicable to operations at the Castle Mountain Mine because § 750 was enacted in 1909 and intended to regulate a different type of mining facility. On June 3, 1993, the DLSE ruled that § 750 applied to the Castle Mountain Mine.
On November 18, 1993, Viceroy brought this action requesting declaratory and injunctive relief. Viceroy asserted that § 750.5 put Castle Mountain Mine at a competitive disadvantage relative to union mines and that "operational efficiency, safety and employee morale are all adversely impacted by [DLSE's] interpretation and enforcement of § 750.5." The complaint alleged six grounds for relief:
(1) as a matter of legislative intent and statutory construction, § 750 was not meant to apply to modern facilities such as Castle Mountain Mine;
(2) section 750.5 is preempted by the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151, et seq., as amended, under the principle enunciated in Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976);
(3) section 750.5 is preempted by the NLRA under the principle articulated in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959);
(4) section 750.5 is preempted by § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. §§ 141, et seq., as amended;
(5) section 750.5 is preempted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001, et seq.; and
(6) section 750.5 violates the Equal Protection Clause of the United States Constitution.
Viceroy moved for summary judgment on all of its claims. The State cross-moved for summary judgment on Viceroy's ERISA and LMRA preemption claims. The district court granted summary judgment on behalf of the State against Viceroy's ERISA and LMRA claims. The district court denied Viceroy's motion for summary judgment on Viceroy's first claim that § 750 did not apply to Castle Mountain Mine. The court then found that Viceroy had standing to bring preemption claims under the NLRA both on behalf of itself and on behalf of its employees. The court granted summary judgment on behalf of Viceroy on its claim that § 750.5 is preempted by the NLRA under the Machinists doctrine. The court declined to rule on Viceroy's Garmon preemption and equal protection claims and denied Viceroy's motion for summary judgment on those claims without prejudice. The district court entered judgment on August 6, 1994, declaring § 750.5 invalid and enjoining the State of California from enforcing § 750.5.
The State of California filed a timely notice of appeal on September 6, 1994. On appeal, the State argues that Viceroy does not have standing to assert claims under the NLRA based either on its own rights or the rights of its employees. The State of California also argues that California Labor Code § 750.5 is not preempted by the NLRA under the Machinists doctrine. Viceroy filed a timely notice of cross-appeal on September 20, 1994. On cross-appeal Viceroy argues that § 750.5 is preempted by the NLRA under the Garmon doctrine, that § 750 does not apply to Viceroy, or, if it does apply, both § 750 and § 750.5 violate the Equal Protection Clause. Viceroy also argues that the district court erred in excluding language from its injunction that would permit non-union employers and employees to schedule workdays in excess of eight hours in a 24-hour period provided the non-union employees seek overtime in a concerted, protected manner under the NLRA.
The 1995 amendments to §§ 750 and 750.5 did not change the provisions of § 750 construed by the district court to apply to Castle Mountain Mine. The amendments to § 750.5 provide an additional exception to the maximum hours of employment set in § 750 when a 2/3 majority of the employees who work for a particular employer vote, in an election conducted at the expense of the employer pursuant to prescribed procedures, to adopt a policy that authorizes a regular workday of more than 8 hours in a 24-hour period. Cal.Lab.Code § 750.5(b). 1 Viceroy argues that effect of the amended § 750.5(b) is to penalize individuals who choose to exercise their right to refrain from union activities by making it more burdensome to work a shorter work week, thereby perpetuating the problems of the former § 750.5.
Standing is a question of law reviewed de novo. Barrus v. Sylvania, 55 F.3d 468, 469 (9th Cir.1995). A grant of summary judgment is also reviewed de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). ...
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