*1 Argued 28, 1998, September and submitted affirmed June SMOLDT,

Richard Appellant,

v. McCOY, INC., HENKELS & Respondent. CA A97994)

(C96110508; 7 P3d 638 *2 appellant. argued Jacqueline With the cause for L. Koch Findling LLP. & Johnson was her on the briefs respondent. argued herWith the cause for Rubanoff Dian Spears Lane Powell A. Barran and were Paula on the brief Lubersky LLP. Presiding Judge, and Wollheim Landau,

Before Judges. Brewer,* J.

BREWER dissenting.

Wollheim, J.,

* Rossman, Brewer, J., S. J. vice

BREWER, J. appeals summary judgment Plaintiff from in favor of employer, defendant, statutory wage his former in this claim action. ORS 652.140 to ORS 652.200. We review the record light plaintiff most favorable to in order to determine any genuine whether there are issues of material fact and judgment whether defendant was entitled to as a matter of Corp., law. Jones v. General Motors 325 Or 404, 420, 939 P2d (1997). alleged 608 on which agreement Because the oral plaintiff relies is inconsistent with a collective bar (CBA) gaining agreement plaintiff job position, that covered s preempted by his claim the CBA under federal law. There fore, we affirm. May plaintiff

In went to work for defendant under an pay oral per at a rate of hour. $14.48 position Plaintiffs was covered the CBA between defen- dant and the local electrical workers’ union. The CBA set the position rate per for his at $11.48 hour. Plaintiff was required join told that he was days the union within 30 paycheck, hire. When received his first he discovered paid per he had been at a rate of $11.48 hour. Plaintiff *3 also paid discovered that he had been for fewer hours than he had immediately brought worked. Plaintiff discrepancy the pay supervisor’s in his rate to supervisor his attention. The plaintiff informed hourly pay that his rate of would be $11.48 and accept not pay $14.48. Plaintiff refused to the lower rate, pay demanded eral per his full quit at hour, $14.48 and work. Sev- days plaintiff later, writing informed defendant in about shortage the paid plaintiff in hours and defendant for that per time at $11.48 hour. Plaintiff unpaid then filed this action to collect wages disputed per based on pay hour $3 rate differen- penalties tial, 652.140, ORS pay wages to collect for failure to due, when attorney ORS 652.150, and recover to fees and pursuant costs to ORS 652.200. Plaintiff did not assert against other claims defendant. In its answer, defendant affirmatively alleged plaintiff employed was under the addressing payment wages terms of a CBA plain- of and that statutory wage tiffs preempted claim was the CBA. The parties summary judgment, filed cross-motions for and the judgment granted entered defendant’s motion and trial court accordingly. assigns appeal, plaintiff to the trial court’s error

On argues summary judgment grant Plaintiff to defendant.1 of wages payment termination of of on entitled to that he was his 652.140(2). employment Defen- in accordance with ORS from the claim is excluded dant counters Oregon 652.140(5) alternatively, wage or, claim law ORS We first consider under federal law. that it is application pro- disagreement concerning parties’ of the part: provides, in 652.140, which of ORS visions “(2) a contract does not have employee an who When earned employment, wages all period quits for a definite payable due and become unpaid quitting at the time of and employer to the not employee given if has immediately Saturdays, Sundays notice, excluding 48 hours’ less than If notice is quit employment. intention to holidays, of and wages pay- shall be due and employer, given not Sundays Saturdays, days, excluding five able within regularly next quit, has or the holidays, employee after the quit, has whichever after the payday scheduled event first occurs.

«* * * * t- apply to This section does not “(5) pro- agreement otherwise bargaining which a collective upon termination wages payment for the vides employment.” argues the CBA does that because

Plaintiff wages payment provide explicitly employee when for the (2) firing, layoffs quits, subsection or as it does for wages required within five due all defendant among responds, quit days other Defendant he work. after (5) pro- applies, arguments, the CBA because that subsection employ- payment termination a state court for the vides prohibits from inter- law and federal labor ment applies specifically preting it whether CBAto determine *4 parties’ dis- resolve In order to circumstances. in these (5) pute, means. what subsection must decide we assignments discussion. remaining do not merit of error 1 Plaintiffs (5) problem hand, at As it relates to the subsection ambiguous. asserts, mean, It could be read to as wages provides payment inquiry of a CBA whether plain- specific reference to an individual termination is with logical argument that Plaintiff makes a tiffs circumstances. only in indi- makes sense the context of such a construction trump Why, wonders, should a CBA vidual cases. one employer’s statutory obligation provide when it does not even specific payment of under the circumstances for the employee’s complaining hand, termination? On the other (5) rationally interpreted, could be as defen- subsection dant also apply generally contends, CBA that includes wage any type payment requirements in the ter- event legislative could, all, mination. That construction after reflect possibility subject respect for the ofbroad matter legislature’s simply under federal law. The intent is not clear Therefore, must from the text and context of the statute. we meaning legis- seek further evidence of the statute’s from its history. Industries, lative PGE v.Bureau Labor and 317 Or (1993). 606, 611-12, 859 P2d 1143 legislative history

The limited of the statute tends to support plaintiffs interpretation. ORS 652.140 was amended (5). among 1991, reasons, other to add subsection Or Laws provision apparently part, § 966, was, ch 1. That the the product following discussion between members of May House Labor Committee on 15: “Representative Johnson: thing I

“The last is that the current law don’t believe has exempts any a clause in it that of the current law from But, suggest I bargaining agreements. would that...

“Representative Mannix: bargaining agreement,

“If there is a collective wouldn’t precedence? it take

“Representative Johnson: I I think need to getting

“That’s what am at and we people bargain that clear can to have dif- make here put- than what we are arrangements ferent termination ting into here. law

“Representative Mannix: law,

“That is a matter of contract though. If there is a bargaining collective agreement, they have to followthe bargaining agreement. collective That’s a matter of a contract between the employer And, and employee. bargaining agreement can much gen- be more erous than the law. So I don’t think we put need to some- * * * thing in here about that. “Representative Johnson: I say,

“As current law doesn’t have a clause in it that I says ‘except see that provided as otherwise under a col- lective bargaining agreement,’ or something like that. “Representative Dominy: Chair,

“Mr. there is boilerplate some language that has been pieces used other legislation that says that if there is a bargaining agreement that this law would not supersede And, guess it. I I there, would like to have init long as legislative but as very intent and record is clear nobody objects and that says everyone and in this committee they agree that that if there negotiated is contract something has better than this like saying that they pay you have to at time of termination no matter what if that is what a contract said that this law would supersede it. long As as that is clear for the record maybe we don’t But, have to have it in the bill. if there is any opposition to that I would like to make it clear here put now and it in the record. “Representative Mannix: Chair,

“Mr. I move to amend the bill to include a section says: provisions may which ‘These be varied a collec- ” tive bargaining agreement.’ It is evident that the legislative committee members recognized possibility that a CBA might have “different termination arrangements” or might “vary” the statutory payment However, provisions. there is no evidence that legislature intended the broad exclusion for which defendant Instead, argues. the discussion possible focused on differ- ences between the provisions of ORS 652.140 and more gen- erous termination of a provisions CBA. That discussion makes sense when analyzed the context of the particular termination, it com- because employee’s of an circumstances provided, statute with those under the rights pared discussion, In view of that instance, a by CBA. given in a is the more reasonable of the statute interpretation plaintiffs (5) a case requires that subsection therefore conclude one. We pro- the CBA otherwise of whether determination specific plaintiffs termination of payment vided for employment. the construction not end with analysis does 652.140(5). issue of merely places construction

ORS Our theoretical, actual, play. rather than into federal because claim argues Defendant *6 Defendant of the CBA. interpretation requires its resolution Act Relations Management the Labor relies on section 301 of pre has construed to (LMRA), (a), 185 which been 29 USC § cre on directly rights claims that are based state law empt substantially that are CBA, as well as claims ated aby Inc. v. of a CBA. Caterpillar, on an interpretation dependent 2425, L Ed 2d 318 Williams, 482 US 386, 394, S Ct 96 107 (1987). the federal developed by doctrine construction judicial under section 301 prohibits courts clauses often found to the arbitration CBAs out of deference in inter consistency their in and to agreements promote such Bradshaw, 107, 121-22, 114 Livadas v. US See 512 pretation. (1994). “If construed labor judges L Ed 2d 93 S Ct instance, Court] [Supreme in the first agreements undermined, be process the arbitration would believed agree the labor readings of might divergent and there be itself.” grievance process interference with the ment and 40, 42, cert den Inc., Supermarkets, Martin v. Shaw’s (1st 1997). US 818 most from the case, however, In it is obvious this provision CBA that examination of the superficial the circumstances of not to apply defendant relies does which in of the CBA provides, Section 4.15 termination. plaintiffs part: be off, laid employees or shall being employee

“Upon employee fired, he shall be them. If an is money all due paid paid him; employee is and in the event money all due paid money reg- him, not ular rate until all due he shall receive at the payment eight made, not to exceed hours per day Mondaythrough Friday, excludingSaturday, Sun- day holidays. employee If an is terminated because of incompetence, Employer notify shall so the involved employee writing. employee in When an is terminated for Employer complete reason, the shall a termination report Employee, copy furnished the Local Union—one for the copy Employer, copy one for the and one for the added.) (Emphasis LocalUnion.” provide pay- asserts, As section 4.15 does not for the wages quits ment of responds, to an who work. Defendant may provision essence, in that we not read the carefully enough precisely says. to ascertain what it How- require ever, federal law does not us to look at but not see plainly question truly what is before us. The is whether it is necessary interpret the CBA in order to resolve argument provide payment that the CBA does not for the employee quits. when an Supreme Livadas,

In Court reiterated that meaning subject “when the of contract terms is not the dis- pute, bargaining agreement the bare fact that a collective will litigation plainly be consulted the course of state-law does (cit- require extinguished.” the claim to be 512 US at 124 ing Lingle Norge Magic v. Inc., Division Chef, 399, 486 US (1988)) (emphasis 1877, 413 n 108 S Ct 100 L Ed 2d added). beyond Livadas, In the court observed that the sim- ple bargained-for wages computing pen- need to refer alty law, owed under state the CBAwas irrelevant to the dis- *7 pute plaintiff employer. between the and her 512 US at 124-25. ** *

“Courts confronted with state law claims must locate the line between the need for mere consultation a preemption, CBA, which does not demand federal and more interpretation agreement, preempt active of that which does Lydon the state law claims.” v. Boston Sand & Gravel Com (1st 1999). pany, course, 175 F3d Cir Of it is not neces sarily simple cursory a matter to draw the line between the form of consultation that obvious in occurred Livadas and the most

examples interpretation required that would be example, materiality circumstances, other for where the a sincerely meaning undisputed is provision and its is CBA to mean has been understood However, Livadas contested. only required “would be if the court is that required provision disputed interpret plausibly the a to added). (emphasis [CBA].” In other Martin, 105 F3d at dispute interpretive “real must be a words, there “colorably dispute.” merely pretended incon- Id. If a CBAis a claim, the latter is law with a state sistent” inconsistency would of actual determination because the require interpretation at 43-44. of the CBA.Id. perfectly sensi- drawn in Martin

The distinction preemption ofstate law claims ble, it avoids needless because colorably the terms of a CBA with inconsistent that are not any arbitra- interfere with would not and whose resolution meaning process case, of sec- In this the under the CBA. tion pretended, dis- actual, or even the CBA is not tion 4.15 of pute. payment provision simply include a It does not employ- voluntary pertaining termination of due on to interpretation the sense con- of the CBA—in ment. Because plain- required, controlling templated by cases—is not the ground. preempted on that law claim is not tiffs state observes, section 301 However, defendant next as employ preempts on a collateral claims based also state law provisions agreement a CBA the that conflicts with ment employee’sposition. covering Kiewit Com Beals v. Pacific (9th 1997), pany, US 1108 cert den 522 892, (1998). problem a his entitlement to is that for depends agree wage remedy Oregon’s an under statute appli wage pay with the a rate that is inconsistent ment to Beals, claimed the CBA.In an rate under cable higher employer an had breached his by wage provided Circuit Id. The Ninth the CBA. than was pre employee’s Appeals claim was held that Court of alleged by empted section because a subject, wage agreement provided for the rate job employee’s the CBA. classification, that was covered wage promised rate that, the extent held Id. The court provided CBA, latter con rate from the varied permitting distinguished cases The court trolled. Id. *8 666

employee pursue arising independ- state law claims from agreements positions by ent that related to not covered e.g., Caterpillar, See, CBA. 482 US at 395-97. reasoning applicable of Beals is here as well. statutory wage

Plaintiffs theory. (state claims were based on a contract (3d 1996) Esposto, See Antolv. Cir wage law statute claim was contract-based and thus CBA). subject to federal based on The CBA wage plaintiffs position included a rate for that was inconsis employment tent with the rate established the collateral plaintiffs Therefore, contract on which are relies. claims preempted.2 adopts view;

The dissent a different it relies on sev- cases, which, asserts, eral it “holds that state law claims are * * * promises prior made private agreements generous pro- or when are more than the * * App visions contained in a CBA 168 Or at 669. The dis- sent believes that those cases reflect a more realistic under- standing practices of business than do the decisions Beals reject preemp- should, and Antol and that we therefore, analysis However, tion in the latter cases. the conflict that the dissent finds in the cases dissolves when each is under- proper stood in its context. (8th Company,

Anderson v. Ford Motor 803 F2d 953 1986), Anderson, cert den sub nom Ford Motor v.Co. (1987), provides example. US 1011 an instructive In Ander- Eighth Appeals son, the Circuit Court of held that negligent representation claims of fraudulent and were not preempted by section 301 because those torts “arise state common law and are measured standards of conduct and responsibility completely separate from and of a bargaining agreement.” However, 803 F2d at 959. a reasonably distinction can be drawn between contract claims conflict with a Beals, CBA and tort claims that do not. In penalty preempted, Plaintiffs claim for a under ORS 652.150 is because penalty necessarily be calculated based a would on contractual rate that is inconsistent with the CBA. claim was pre- held that contract the court came to the conclu- conflicting opposite CBA but empted by claim for negligent with to his respect separate sion misrepresentation: *9 law, under Hawaii prove negligent misrepresentation

“To (1) to exercise [defendant] must show that failed [plaintiff] communicating in false information to reasonable care (2) on that infor- [plaintiff]; [plaintiff] justifiably and relied * * * argues prong that the second [Defendant] mation. requires whether interpretation of the CBA of the terms because justifiable [plaintiffs] depends reliance was per- known that the CBA [plaintiff] whether should have any mitted to terminate him at time for lack of [defendant] disagree. he [Plaintiff] work. We have been does contest that could * ** discharged for lack of work under the CBA. Thus, question [plaintiff] the pro- whether knew about any require visions the CBAwould not a court to construe in provisions terms the CBA because no relevant are dis- puted. Since none of the the CBA relevant to terms of [plaintiffs] negligent misrepresentation subject claim is conflicting meanings, resolution of that claim will not con- policy travene the ‘to [section] behind interpretation ” collective-bargaining ensure uniform agreements * * Beals, *.’ 114 F3d at 895. The recognized misrepre- court that the plaintiffs sentation claim created no risk that the CBA erro- would be was neously interpreted. The fundamental focus of that claim on the legal employer’s meaning effect of the promise; the CBA was not in Unlike the tort claims dispute. brought Beals, here, and against employers Anderson claim exclusively agreement is based on an oral that is direct conflict with the of the CBA. Because governing terms plaintiff has not asserted a claim for or misrepresentation a arising alleged promise pay other tort from the CBA, rate than was Anderson higher hourly provided See, are inapplicable. and other cases tort claims involving v. e.g., Telephone Telegraph Company, Walton Carolina 375, 427, 93 NC 378 SE2d rev den 325 NC App (1989) claim was not (employee’s SE2d 792 fraud sued were representations upon because CBA). Group The dissent International, cites Loewen Inc. v. (7th 1995),

Haberichter, principle 65 F3d 1417 for the employees agreements are entitled to enforce collateral generous provisions covering that contain more than a CBA employment relationship. point That, however, is not the Loewen, of Loewen. In subject the CBA did not even deal with the agreement matter of a written included the employee’s compete employer. covenant not to with the The “[o]nly quick glance [at court stated that a the elements ofthe employer’s wrongful competition] claims for is needed to find bargaining agreement that no resort to the collective required here in order to resolve the claims asserted.” Id. at 1422. Unlike the Loewen, circumstances in there is a nexus between the in on which relies and the CBA position this case: both address the rate of for a cov- preemptive ered Thus, CBA. conflict exists here where none was found in Loewen. Finally, Pauley Refrigeration v.Ford Electronics and (SD

Corporation, Supp 1996), 941 F Ind turned aon dis- principle preemption. precise holding tinct of federal of of *10 deprived that case was that the Indiana state court was not subject jurisdiction preemption.3 matter because of Id. at making only 804. In determination, that the court considered allegations plaintiffs complaint; the of the the court expressly specific declined to address the us, issue before namely, employee’s whether the contract claim was overrid- by conflicting den on the merits the terms of a CBA.Id. may The dissent seems to fear that our conclusion encourage, practice luring employees insulate, or even the of promises appli- to work with of and benefits that exceed cable CBA scales. However, our decision does not foreclose a remedy employees plaintiff, allege prove who, for unlike they that are the victims of tortious or otherwise unlawful employment practices. plaintiffs Because contract-based directly provisions govern- claims controvert the pay of the CBA ing job, they preempted the rate of for his are on their granting Therefore, merits. the trial court did not err in sum- mary judgment in favor of defendant. 3 jurisdictional component preemption The of is sometimes referred to as com

plete preemption. Id. at 801.

669 Affirmed. dissenting.

WOLLHEIM, J., analysis majority’s of disagree with I Because collateral on based claims preemption law of state federal provisions agreements from differ that employment (CBA), respectfully agreement I bargaining of a dissent. analysis contained agree of the most with I majority that ORS agree opinion. with

majority’s First, I 652.140(5) case-specific of whether requires determination a payment circum- of under provides for the a CBA employment. Sec- specific termination stances analysis 4.15 majority’s that section agree with the ond, I pertaining provision payment a does not include CBA the wages employment and, voluntary termination on due 652.140(2) apply in this requirements of ORS therefore, the fed- agree Finally, we are that I instance. disagree, how- reaching I conclusion. that from law eral labor agreement employment majority’s collateral with ever analysis. split federal on agreements. issue are federal circuits

The One view collateral promises preempted are not claims state law holds e.g., Motor employment, v. Ford see, Anderson made before (8th 1986), cert den Company, Cir 953, 957-58 gen agreements (1987), more private are when or US 1011 e.g., see, CBA, provisions in a contained erous than Haberichter, F3d Group Inc. v. Intern. Loewen pre 1995). (7th that section holds other view employ empts law claims based state position job a covered concerns ment *11 892 Co.,Inc., e.g., See, v. Kiewit Beals CBA. (9th Pacific (1998); Esposto, v. 1997), Antol 1108 522 US den cert Cir 1996). (3rd below, I the reasons stated For F3d 1111 that state reasoning that hold agree the cases of the with majority the follows always preempted. The actions are favoring preemption. cases

In J.I. Case Co. v. Labor Board, 321 US 332, 339, 64 S (1944), Ct L88 Ed 762 Supreme the United States Court said: “Individual contracts cannot subtract from ones, and whether under some they circumstances may add to

them in matters covered by the collective bargain, we leave to be determined by appropriate forums under laws of contract applicable, and to the Labor they Board if consti- tute unfair labor practice.” Caterpillar In Inc. v. Williams, 482 US S 2425, 96 Ct (1987), L Ed 2d 318 the Court proposition reinforced the that employment individual automatically contracts are not sub by, sumed into, or eliminated a CBA. There, the Court held employees by that may covered legal a CBA rights assert long that rights so as those do not from arise the CBA.Id. at 396. jurisdictions Courts in other applied have those

principles. employer In promised Anderson, an laid offwork- an ers, as begin inducement them immediately, work they “bumped” would not be recently in favor of more off laid workers. F2d at 954-55. When the workers were “bumped,” they brought later an action under state law and employer argued preemption. federal Id. at 955. The Eighth Circuit promises that, concluded permanent when employment were made before employ- individuals became ees and originate when the rights claims do not and duties employer established either to CBA, right does not have the

misrepresent employ- terms and conditions of ment or to obligations avoid contractual pre- based those employment promises. Pauley Id. at 957-59. In v. Ford Elec- Refrigeration Corp., (SD tronics and Supp 941 F 794, 796-97 1996), plaintiff Ind change jobs was induced to on the promise specified pay of a rate actually paid but was sub- stantially provided by less, as bargaining the terms of a agreement. There, preemployment the court held that the promise promise an was individual made before preempt that the CBA did not prom- enforcement specifically rejected ise. The court employer’s argument merely that, wages, because the right CBAaddressed to a promised rate right asserted awas aris- ing from the CBA. at Id. 802. In Loewen, the Seventh Circuit

671 negotiated agreement, between an individual concluded that gives more employee and that employer future and a an “consistent CBA, is employee does the than rights the to long “[A]s as added, court The at 1424. CBA. the with” or a union attempting to circumvent employer not is the ** * per- agreement bargaining it is a collective undermine missible with individ- negotiate contracts more favorable to pre- primary for not rationale 1426. The Id. at members.” ual was those instances in action empting cause a state Appeals by of North up the Court perhaps best summed App Co., 93 NC Tel. Tel. & v. Carolina in Walton Carolina 230, 381 SE2d 325 NC 432, rev den 368, 378 SE2d (1989): could employer an suggest might result “Any other of a collective- provisions restrictive the impunity

flout with individual, making agreement bargaining the collective-bar- then raise employee, and to promises to seeks the when a defense as agreement gaining fulfilled.” promises those have here. the situation

That the conclu- to reach leads me reason additional An sub- independently are not a CBA promises made sion that posi- simply, that Quite ject all instances. Employers practices. at reality of business the reflects tion greater than provide other benefits and scales times agreements bargaining in order contained in those verify employees. keep asser- To the best and to attract contained than facts no further tion, look one need to move was induced worker There, a construction Beals. paid by promises would be that he to Hawaii California from weekly paid allowance specific subsistence wages rate, at a employed moving expenses, for the duration and and construction All ofthose terms project. 893. Beals, F3d at in the exist- contained terms than similar better were either employer adhered ing it. Id. The not addressed CBA or terms, five months promise, CBA terms of position majority’s plaintiff. terminating Id. before pre- practices these makes and ignores business current that, conclude promises I would unenforceable. the worker between a collateral if pay is reached concerning rate employer the worker’s employment, before federal labor law preempt does not agreement. enforcement of that For the reasons above, stated I conclude that two genuine issues of material fact remain as to whether defen- paid plaintiff dant all employ- due on termination of 652.140(2). required by ment as ORS The first issue is plaintiff paid whether proper was pay. at the rate of The sec- ond days paid issue is whether working was within five quit. after summary he judgment Therefore, was improper in this instance and I would reverse and remand for *13 proceedings. further

Accordingly, respectfully I dissent.