they are not protected by a sufficient "valid collective bargaining agreement." Cal Labor Code § 750.5. Thus, under the plain and unambiguous language of section 750, Viceroy is prohibited from implementing shifts for its Castle Mountain mine workers longer than eight hours.
Nevertheless, Viceroy invites the court to disregard the express language of section 750 to avoid the "absurdities" caused by changed circumstances in the mining industry. See Disabled and Blind Action Committee of Calif v Jenkins, 44 Cal. App. 3d 74, 118 Cal. Rptr. 536, 541 (Ct App 1975); County of Sacramento v Hickman, 66 Cal. 2d 841, 59 Cal. Rptr. 609, 614 n.6, 428 P.2d 593 (Cal 1967). The court declines this invitation.
Modification of a statute made obsolete by virtue of changed conditions is a legislative, not a judicial prerogative. See Naismith Dental Corp v Board of Dental Examiners, 68 Cal. App. 3d 253, 137 Cal. Rptr. 133 (Ct App 1977). In Palermo v Stockton Theatres, Inc, 32 Cal. 2d 53, 63, 195 P.2d 1 (Cal 1948) the California Supreme Court stated this rule clearly: "* * * in the absence of a constitutional objection it is generally held that the courts have no right to declare a statute obsolete by reason of a supervening change in the conditions under which it was enacted. [citations omitted]."
The viability of section 750 in light of changed work conditions in the mining industry should be evaluated by the California Legislature, not by this court. The state legislative body has access to substantial fact-finding resources unavailable to the court and is in the best position to evaluate its own labor statutes based upon available data and the numerous competing public and private interests at stake. It would simply be presumptuous for this federal court to act by judicial fiat to rewrite section 750 for the greater good of the State of California. The proper forum for Viceroy's "changed conditions" argument is the California Legislature, and not here.
For these reasons, the court rejects Viceroy's legislative intent/changed circumstances argument and DENIES its motion for summary judgment on that ground. The state is invited to move for summary judgment on this statutory construction claim.
Alternatively, Viceroy attacks the validity of the section 750.5 union exception to the eight-hour shift limitation on NLRA preemption grounds and under the Equal Protection Clause of the United States Constitution. Viceroy claims section 750.5 is preempted by the NLRA under the Machinists and Garmon doctrines. It also claims that section 750.5 violates the Equal Protection Clause because it discriminates against non-union employers of mine workers. Because Viceroy prevails as a matter of law on its claim of Machinists preemption, the court declines to rule on the Garmon preemption and equal protection claims.
Under the Supremacy Clause, US Const, Art VI, cl 2, states are prohibited from enacting and enforcing laws that conflict with federal statutes or interfere with the accomplishment of their purposes. Louisiana Public Service Comm'n v FCC, 476 U.S. 355, 368, 90 L. Ed. 2d 369, 106 S. Ct. 1890 (1986). If an act of Congress does not contain an express preemption provision (such as the NLRA), preemption may still be implied if the scheme of federal regulation is so pervasive, or the federal interest is so overriding that it must be assumed Congress did not intend it to be supplemented by the states. Pacific Gas & Elec v Energy Resources Comm'n, 461 U.S. 190, 203-04, 75 L. Ed. 2d 752, 103 S. Ct. 1713 (1983). Even where Congress has not occupied a field completely, a state regulation is preempted to the extent it conflicts with federal law. Id at 204. A conflict arises if the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id.
The Supreme Court has articulated two separate NLRA preemption principles. The first is so-called Garmon preemption. See San Diego Building Trades Council v Garmon, 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959). Under the Garmon rule, "States may not regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits." Wisconsin Dept of Industry v Gould, Inc, 475 U.S. 282, 286, 89 L. Ed. 2d 223, 106 S. Ct. 1057 (1986). The purpose of the Garmon rule is "to preclude state interference with the National Labor Relations Board's interpretation and active enforcement of the 'integrated scheme of regulation' established by the NLRA." Golden State Transit Corp v Los Angeles, 475 U.S. 608, 613, 89 L. Ed. 2d 616, 106 S. Ct. 1395 (1986). Thus, the Garmon doctrine protects the "primary jurisdiction" of the Board. Metropolitan Life Ins Co v Massachusetts, 471 U.S. 724, 748, 85 L. Ed. 2d 728, 105 S. Ct. 2380 (1985).
The second type of NLRA preemption, known as Machinists preemption, see Machinists v Wisconsin Employment Relations Comm'n, 427 U.S. 132, 49 L. Ed. 2d 396, 96 S. Ct. 2548 (1976), "protects against state interference with policies implicated by the structure of the [NLRA] itself, by pre-empting state law and state causes of action concerning conduct that Congress intended to be unregulated." Metropolitan, 471 U.S. at 749. The Machinists doctrine was initially designed to govern preemption issues not covered under the Garmon rule. Id. It is under the Machinists rule that the court holds section 750.5 preempted by the NLRA.
Viceroy argues the imposition of the eight-hour shift limitation on non-union mine workers, but not on unionized mine workers, penalizes employees who have chosen not to unionize. Because section 750 and 750.5 mandate that a private employer of mine workers recognize a labor organization and enter into a collective bargaining agreement before the employer may allow its mining employees to work any overtime, those provisions arguably interfere with the collective bargaining process and labor rights established by the NLRA. According to Viceroy, section 750.5 is effectively governmental encouragement of unionization prohibited under the Machinists doctrine. The court agrees.
The boundaries of NLRA preemption under the Machinists doctrine are defined in a number of Supreme Court and Ninth Circuit cases. In Machinists, an employer filed a complaint with a Wisconsin labor agency alleging a union's refusal to work overtime was unfair competition under Wisconsin law. The Supreme Court held that the union's conduct was not subject to state regulation because it fell within an area that Congress meant to leave unregulated, controlled only by the free play of economic forces. Machinists, 427 U.S. at 148-51. The union's use of economic pressure was deemed "part and parcel of the process of collective bargaining." Id at 149. The state's attempt to take away an economic weapon that Congress meant for the union to have was an impermissible intrusion into the collective bargaining process and therefore preempted. Id at 150.
In Golden State Transit, the Supreme Court held that a municipality could not try to force a taxi company to settle its labor dispute with its union by withholding renewal of the company's franchise agreement with the city. The Court noted that "federal law intended to leave the employer and the union free to use their economic weapons against one another." Golden State Transit, 475 U.S. at 618. The Court held that a state could not intrude into that zone of free bargaining by conditioning the conferral of a state benefit in a way that restricts an employer's federal right to withstand a strike. Id.
Using the principles articulated in Machinists and Golden State Transit, the Ninth Circuit recently 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." McCollum v Roberts, 17 F.3d 1219, 1221 (9th Cir 1994). In McCollum, the Ninth Circuit found an Oregon statute requiring employers to provide certain rest periods to non-union employees, but not to union employees preempted under the Machinists doctrine because the statute impermissibly burdened the union employees' collective bargaining rights under the NLRA. Id at 1223.
Under the court's reading of the case, McCollum establishes a rule preventing states from passing laws that interfere with a worker's freedom to choose or not choose to join a union. Section 7 of the NLRA protects the rights of employees to "form, join, or assist labor organizations * * * and * * * to refrain from any or all of such activities * * * ." 29 USC § 157. Section 8 of the NLRA prohibits employers and labor organizations from interfering with employee rights protected under section 7 of the statute. 29 USC § 158. These provisions clearly evince a congressional intent to protect a worker's right freely to choose between unionization and non-unionization.
A state law that discriminates between union and non-union employees in conferring benefits creates incentives to join or not to join a union and therefore burdens an employee's NLRA rights to choose freely between the two options. A state could use discriminatory benefits laws effectively to control an employee's choice to unionize or not to unionize. Thus, the right to freedom of choice protected by the NLRA would not have meaning unless that freedom is deemed privileged against state regulation. For that reason, Congress must have intended to leave an employee's choice to join or not to join a union free from state interference. See Machinists, 427 U.S. at 141, 145 ("Congress meant to leave some activities unregulated and to be controlled by the free play of economic forces"). State laws burdening that choice must be preempted under Machinists. See McCollum, 17 F.3d at 1222 ("if a state steers clear of unions while handing out benefits * * * then it opens itself up to charges of anti-union discrimination, * * * a prohibited activity under the NLRA").
There is little doubt that section 750.5 confers a benefit upon union mine workers not available to non-union mine workers. That provision exempts unionized mine workers from the eight-hour shift limitation of section 750 imposed on other (non-unionized) mine workers. Freed from the limitations of section 750, unionized mine employees have flexibility to schedule longer work shifts and work less days each week.
The legislative history of section 750.5 describes the California Legislature's intent to benefit unionized mine employers and workers. AB 731, which ultimately became section 750.5, was enacted in 1983 as an urgency measure. Section 2 of the bill explains the urgent need for a union exception to the general eight-hour shift limitation on mine workers: "the economic viability of mining and mining related employment has been limited in certain instances due to the lack of authority by employers and employee representatives to determine hours and conditions of employment." Locker Decl at Ex C. The staff comments to the bill state that the bill "is aimed at giving more flexibility to both labor and management in shaping work hours" and cites a situation in which "a large California mine, not currently in operation, would like to resume mining but maintains that the eight hour day restriction makes renewed operations uneconomical." Id. In a press release, Assemblyman Richard E. Floyd heralded the new bill because it created new jobs and gave unionized employers and employees relief from a "70 year old law prevent[ing] employers from having overtime agreements with labor unions even though both management and labor wanted to work longer hours in a shorter work week." Id. Thus, section 750.5 was intended to benefit and does benefit union employers and employees in the mining industry.
The benefit granted by section 750.5 does not extend to non-union mine workers, however. By its express terms, section 750.5 only applies to mine workers covered by "valid collective bargaining agreements." Only union mine employees may implement work shifts in excess of eight hours to achieve flexibility in their work schedules. In contrast, non-union mine employees (such as Viceroy's Castle Mountain workers) are limited to eight-hour shifts and five-day work weeks. Because section 750.5 confers a state benefit only upon unionized mine employees, it creates incentives to unionize which burden non-unionized mine employees' NLRA protected rights freely to choose not to unionize.
In the recent case of Livadas v Bradshaw, US , 129 L. Ed. 2d 93, 114 S. Ct. 2068, 94 Cal. Daily Op. Service 4355 (1994), the Supreme Court found NLRA preemption in a context closely analogous to this one. Livadas involved a challenge to the State of California's policy of not enforcing Cal Labor Code § 201 on behalf of employees covered by collective bargaining agreements containing arbitration clauses. Section 201 requires "employers to pay all wages due immediately upon an employee's discharge, imposes a penalty for refusal to pay promptly, precludes any private contractual waiver of these minimum labor standards, and places responsibility for enforcing [section 201] on the State Commissioner of Labor." Livadas, 94 CDOS at 4355. The state construed a different state law to prevent the state from enforcing section 201 on behalf of Livadas and other employees covered by collective bargaining agreements containing arbitration clauses.
Livadas argued that the state's policy "was preempted as conflicting with Livadas's rights under § 7 of the NLRA * * *, 29 USC § 157, because the policy placed a penalty on the exercise of her statutory right to bargain collectively with her employer." Id at 4356. The Court agreed, holding that the state's policy of nonenforcement of labor standards only with respect to unionized employees covered by arbitration clauses was preempted by federal law because it interfered with such employees' NLRA rights. Id. The Livadas Court stated:
A state rule predicating benefits on refraining from conduct protected by federal labor law poses special dangers of interference with congressional purpose. * * * the [state] has presented Livadas and others like her with the choice of having state-law rights * * * enforced or exercising the right to enter into a collective-bargaining agreement with an arbitration clause. This unappetizing choice, we conclude, was not intended by Congress, * * * and cannot ultimately be reconciled with a statutory scheme premised on the centrality of the right to bargain collectively and the desirability of resolving contract disputes through arbitration. Cf Metropolitan Life Ins Co v Massachusetts, 471 U.S. 724, 755, 85 L. Ed. 2d 728, 105 S. Ct. 2380 (1985) (state law held not pre-empted because it "neither encourage[s] nor discourage[s] the collective bargaining processes").
Id at 4356-57 (emphasis added).
Livadas strongly supports this court's conclusion that section 750.5 is preempted by the NLRA. The Livadas Court justified its ruling, in part, upon the principle that a state cannot confer benefits in a manner interfering with an employee's right freely to chose to unionize, guaranteed by section 7 of the NLRA. The Livadas Court stated:
While the NLRA does not expressly recognize a right to be covered by a collective-bargaining agreement, in that no duty is imposed on an employer actually to reach agreement with represented employees, see 29 USC § 158(d), a State's penalty on those who complete the collective-bargaining process works an interference with the operation of the Act * * *.
Id at 4356 n.11 Section 7, however, protects both the right to choose to unionize and to choose not to unionize. See 29 USC § 157. Thus, the rationale of Livadas logically extends to this case to prevent the state from granting benefits only to unionized mine workers through section 750.5 in a way that interferes with mine workers' rights freely to chose not to bargain collectively.
Citing the Supreme Court cases of Metropolitan Life, 471 U.S. at 758, and Fort Halifax Packing Co v Coyne, 482 U.S. 1, 96 L. Ed. 2d 1, 107 S. Ct. 2211 (1987), the state argues that section 750.5 is not preempted because the eight-hour shift limitation is simply a state-wide minimum labor standard. "When states have enacted statutes intended to provide minimum benefits to employees and not intended to interfere with the bargaining position of the parties, the Supreme Court has upheld state benefit statutes against Machinists preemption challenges." Babler Bros. Inc v Roberts, 995 F.2d 911, 915 (9th Cir 1993).
The minimum labor standards doctrine established in Metropolitan Life and Fort Halifax is inapplicable here because section 750.5 does not affect union and non-union employees equally. In Metropolitan Life, the Supreme Court emphasized that "minimum state labor standards" survived under the NLRA because they affected union and non-union employees equally:
Minimum 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. Nor do they have any but the most indirect effect on the right of self-organization established in the Act. Unlike the NLRA, mandated-benefit laws are not also designed to encourage or discourage employees in the promotion of their interests collectively * * *. Nor do these laws even inadvertently affect these interests implicated in the NLRA. Rather, they are minimum standards "independent of the collective-bargaining process [that] devolve on [employees] as individual workers, not as members of a collective organization.
471 U.S. at 755 (emphasis added). The Metropolitan Life Court upheld a Massachusetts law requiring all general health insurance policies to include mental health coverage because it was a minimum labor standard statute of general applicability.
Fort Halifax involved a Maine statute requiring employers that closed down factories to provide employees with severance pay equal to one week's wages for each year the employee worked at the plant. 482 U.S. at 5. The statute did not apply to employees with an employment contract already containing a severance pay provision. Id. The Court held that the statute was not preempted by the NLRA because it was a minimum labor standard under Metropolitan Life. Id at 19-23. In McCollum, 17 F.3d at 1223, the Ninth Circuit noted that the Fort Halifax decision is aligned perfectly with the Metropolitan Life rule that state minimum labor standards must affect union and non-union employees equally:
The severance benefits in Fort Halifax were available to union and nonunion employees alike, as long as they either did not have an employment contract, or had one that did not deal with severance. Conversely, if an employee did have a contract with a severance provision, then statutory benefits were unavailable, whether or not the employee belonged to a union.