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Date: 08-20-2015

Case Style: Filo Foods, LLC v. City of SeaTac

Case Number: 89723-9

Judge: Justice Susan Owens

Court: IN THE SUPREME COURT OF THE STATE OF WASHINGTON

Plaintiff's Attorney: Cecilia A Cordova

Defendant's Attorney: Mark Sterling Johnsen

Description: The SeaTac Committee for Good Jobs (Committee) is a coalition of
individuals, businesses, neighborhood associations, immigrant groups, civil rights
groups, faith organizations, and labor organizations. In June 2013, the Committee
circulated a petition to city of SeaTac voters that proposed a set of minimum
employment standards for certain hospitality and transportation employers in the city
of SeaTac, including an hourly minimum wage of $15. After finding sufficient
signatures supporting the petition, the SeaTac City Council put the initiative on the
ballot.
Filo Foods LLC, BF Foods LLC, Alaska Airlines Inc., and the Washington
Restaurant Association (collectively Filo Foods) sued the city of SeaTac and City
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Fila Foods, LLC v. City of SeaTac 89723-9
Clerk Kristina Gregg (collectively the City) to challenge the sufficiency of the
signatures to put Proposition 1 on the ballot. The Committee intervened in support of
the City. Thereafter, the superior court held that Proposition 1 could not go on the
ballot, but the Court of Appeals reversed, Fila Foods, LLC v. City of SeaTac, 179 Wn.
App. 401,319 P.3d 817, review denied, 181 Wn.2d 1006,332 P.3d 984 (2014),1 and
the measure appeared on the November 5, 20 13, ballot. Voters approved Proposition
1 by a narrow margin. By its terms, it was scheduled to take effect on January 1,
2015.
Shortly after the election, the superior court allowed Filo Foods to amend its
complaint to include substantive challenges to Proposition 1, now an enacted
ordinance, and to name the Port of Seattle as a defendant. The Port of Seattle is a
special-purpose municipal corporation that, among other things, owns and operates
the Seattle-Tacoma International Airport within the city of SeaTac's territorial
boundaries. In the amended complaint, Filo Foods alleged that Proposition 1 is
invalid on a number of grounds, including that it (1) violates the single-subject rule,
(2) violates the Port of Seattle's jurisdiction over the Seattle-Tacoma International
1 This court stayed a petition for review in the ballot signatures case pending a final decision in this case. Order Deferring Review, Fila Foods, LLC v. City of SeaTac, No. 90113-9 (Wash. Apr. 30, 2014). The issues relating to the sufficiency of the signatures to put Proposition 1 on the ballot are thus not before the court at this time.
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Airport, (3) is preempted by federal labor and aviation laws, and ( 4) violates the
dormant commerce clause.2
Filo Foods moved for summary judgment on these challenges, and the trial
court granted the motion in part and denied it in part. First, the trial court determined
that Proposition 1 did not violate the single-subject rule. Second, the trial court held
that Proposition 1 violates a state law that gives the Port of Seattle jurisdiction over
the Seattle-Tacoma International Airport and thus could not be enforced at the airport.
Third, the trial court held that federal labor law preempts Proposition 1 's
antiretaliation provision, but that federal law did not otherwise preempt Proposition 1.
Finally, the trial court held that Proposition 1 did not violate the dormant commerce
clause. The Committee and the City sought direct discretionary review, and Filo
Foods sought cross review. We granted review and designated the Port of Seattle as a
respondent.
ANALYSIS
We review a trial court's grant of summary judgment de novo. Lakey v. Puget
Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013). Summary judgment is
2 Filo Foods also alleged that Proposition 1 was invalid because it involves administrative rather than legislative matters, conflicts with standing requirements, and violates the subject-in-title rule. The trial court rejected these challenges. Filo Foods ultimately sought cross review of all rulings against it, but neither it nor the Port of Seattle present arguments relating to the subject-in-title rule, third-party standing doctrine, or the administrative nature of Proposition 1. These issues are therefore regarded as abandoned.
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proper when "there is no genuine issue as to any material fact and ... the moving
party is entitled to a judgment as a matter of law." CR 56(c).3
Filo Foods challenges the validity of Proposition 1 on several grounds. First,
Filo Foods argues that Proposition 1 is procedurally invalid in its entirety because it
violates the single-subject rule. We hold that Proposition 1 does not violate the
single-subject rule. Second, Filo Foods contends that under state law, Proposition 1
may not be applied at the Seattle-Tacoma International Airport. We conclude that
Proposition 1 can be applied at the airport because there is no indication that it will
interfere with airport operations. Third, Filo Foods argues that federal law preempts
Proposition 1, in whole or, alternatively, in part. We conclude federal law does not
preempt Proposition 1 in whole or in part. Finally, Filo Foods argues that Proposition
1 violates the dormant commerce clause; we conclude that it does not. Thus, we find
Proposition 1 valid in its entirety.
I. Single-Subject Challenge
RCW 35A.12.130 provides in relevant part that "[n]o ordinance shall contain
more than one subject and that must be clearly expressed in its title." While no
judicial opinion has interpreted this statutory language, the parties agree that it
3 The parties dispute whether the proceeding before the superior court was a summary judgment disposition or a bench trial that ended in a declaratory judgment. We conclude that it was a summary judgment disposition. At the hearing, the trial court made clear it was relying on the declarations submitted by various parties but not resolving factual disputes as to the consequences of Proposition 1 on airport operations.
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Fila Foods, LLC v. City of SeaTac 89723-9
appears to be an extension of article II, section 19 of our state constitution. We
therefore consider our cases interpreting that constitutional provision.
In determining whether a bill, ordinance, or initiative relates to one general
subject or multiple specific subjects, Washington courts look to the provision's title
for guidance. When classifying an initiative to the people (as opposed to an initiative
to the legislative body), the operative title is the ballot title because "'it is the ballot
title with which voters are faced in the voting booth."' Wash. Citizens Action of
Wash. v. State, 162 Wn.2d 142, 154, 171 P.3d 486 (2007) (quoting Wash. Fed'n of
State Emps. v. State, 127 Wn.2d 544, 555, 901 P.2d 1028 (1995)). Contrary to the
Committee's contention, the ballot title includes more than the first sentence of the
ballot description. It "consists of a statement of the subject of the measure, a concise
description of the measure, and the question of whether or not the measure should be
enacted into law." Wash. Ass 'nfor Substance Abuse & Violence Prevention v. State,
174 Wn.2d 642, 655, 278 P.3d 632 (2012).4
A ballot title may be general or restrictive. When a ballot title "suggests a
general, overarching subject matter for the initiative," Wash. Ass 'n of Neigh. Stores v.
State, 149 Wn.2d 359, 369, 70 P.3d 920 (2003), it is considered to be general and
"'great liberality will be indulged to hold that any subject reasonably germane to such
4 To the extent our analysis in Washington Ass 'n of Neighborhood Stores v. State, 149 Wn.2d 359, 368-69, 70 P.3d 920 (2003), suggested the operative title is limited to the first sentence of a ballot measure, this suggestion has since been foreclosed. See Wash. Ass 'nfor Substance Abuse & Violence Prevention, 174 Wn.2d at 655.
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title may be embraced,"' Amalgamated Transit Union Local 587 v. State, 142 Wn.2d
183,207, 11 P.3d 762 (2000) (quoting DeCano v. State, 7 Wn.2d 613,627, 110 P.2d
627 (1941)). Only rational unity among the matters need exist. City of Burien v.
Kiga, 144 Wn.2d 819, 825-26,31 P.3d 659 (2001). Rational unity exists when the
matters within the body of the initiative are germane to the general title and to one
another. Id. at 826. In contrast, a title is considered restrictive '"where a particular
part or branch of a subject is carved out and selected as the subject of the legislation."'
State v. Broadaway, 133 Wn.2d 118, 127, 942 P.2d 363 (1997) (quoting Gruen v.
State Tax Comm 'n, 35 Wn.2d 1, 23, 211 P.2d 651 (1949)). In other words, a
restrictive title is narrow as opposed to broad, specific rather than generic. !d.
Restrictive titles are not given the same liberal construction as general titles; laws with
restrictive titles fail if their substantive provisions do not fall "'fairly within'" the
restrictive language. Citizens for Responsible Wildlife Mgmt. v. State, 149 Wn.2d
622, 633, 71 P.3d 644 (2003) (quoting State ex rel. Wash. Toll Bridge Auth. v. Yelle,
32 Wn.2d 13, 26, 200 P.2d 467 (1948)).
Here, the ballot title to Proposition 1 stated:
Proposition No. 1 concerns labor standards for certain employers.
This Ordinance requires certain hospitality and transportation employers to pay specified employees a $15.00 hourly minimum wage, adjusted annually for inflation, and pay sick and safe time of 1 hour per 40 hours worked. Tips shall be retained by workers who performed the services. Employers must offer additional hours to existing part-time employees before hiring from the outside. SeaTac must establish auditing
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procedures to monitor and ensure compliance. Other labor standards are established.
Should this Ordinance be enacted into law?
King County Official Local Voters' Pamphlet, General and Special Election 94 (Nov.
5, 2013). "Other labor standards" includes a 90-day retention policy on successor
employers after a business acquisition or merger. SEATAC MUNICIPAL CODE
7.45.060. The trial court upheld Proposition 1 against Fila Foods's single-subject
challenge. We affirm in this respect.
We agree with the trial court that the breadth of topics covered by Proposition 1
and the structure of its title are not appreciably different from the scope and structure
of an initiative we recently upheld in Washington Ass 'nfor Substance Abuse &
Violence Prevention. 17 4 Wn.2d at 665. The ballot title in that case indicated:
"Initiative Measure No. 1183 concerns liquor: beer, wine, and spirits (hard liquor).
"This measure would close state liquor stores and sell their assets; license private parties to sell and distribute spirits; set license fees based on sales; regulate licensees; and change regulation of wine distribution.
"Should this measure be enacted into law?"
Id. at 647 (quoting State ofWashington Voters' Pamphlet, General Election 19 (Nov.
8, 2011)). In addition to these specific provisions, the measure earmarked a portion of
revenue raised from liquor license fees for the funding of public safety programs,
including police, fire, and emergency services. !d. at 650. Like the structure of
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Proposition 1, Initiative Measure No. 1183 indicated a general topic and then listed
some but not all of its substantive measures. Despite these more specific details, we
found the title was general, pertaining "to the broad subject of liquor." !d. at 655.
And, although the public safety earmark's connection with the measure's liquor
privatization provisions was arguably tenuous, we found the earmark to be germane to
liquor privatization given the enforcement burdens the measure places on local
governments, and given the legislature's past recognition of the relationship between
liquor regulation and public welfare. !d. at 657-58.
We similarly find that Proposition 1 satisfies the single-subject rule. Although
the title lists various provisions, it also states that Proposition 1 generally "concerns
labor standards for certain employers." King County Official Local Voters' Pamphlet,
General and Special Election 94 (Nov. 5, 2013). This language is sufficiently broad
to place voters on notice of its contents, including the 90-day worker-retention policy
imposed on successor employers. The retention policy concerns labor standards and
is reasonably germane to the establishment of minimum employee benefits, including
job security. Proposition 1 survives the single-subject challenge. Moving to the
substance of Proposition 1, we next consider whether it can be validly enforced at the
Seattle-Tacoma International Airport under state law.
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II. Application at the Seattle-Tacoma International Airport
The trial court ruled that Proposition 1 could not be applied at the Seattle
Tacoma International Airport because it would conflict with the Port of Seattle's
jurisdiction over the airport under RCW 14.08.330. But we must try to harmonize
municipal ordinances with state law when possible; we will invalidate an ordinance
only if it "'directly and irreconcilably conflicts"' with state law. Heinsma v. City of
Vancouver, 144 Wn.2d 556, 564, 29 P.3d 709 (2001) (quoting Brown v. City of
Yakima, 116 Wn.2d 556, 561, 807 P.2d 353 (1991)). Based on our analysis ofthe
statutory language, our prior case law, and the functional differences between cities
and special purpose districts, we conclude that Proposition 1 can be harmonized with
RCW 14.08.330 because the Port of Seattle does not show that Proposition 1 would
interfere with airport operations. Therefore, we hold that Proposition 1 can be applied
at the Seattle-Tacoma International Airport.
Statutory interpretation presents a question of law that we review de novo.
State v. Jacobs, 154 Wn.2d 596, 600, 115 P .3d 281 (2005). When interpreting
statutes, our goal is to effectuate the legislature's intent. Id. If the statute's meaning
is plain, we give effect to that meaning as the expression of the legislature's intent.
!d. Plain meaning is determined from the statute as a whole; we consider the ordinary
meaning of the language used in the context of the entire statute, related statutory
provisions, and the statutory scheme from which the language appears. Id. If the
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Fila Foods, LLC v. City of SeaTac 89723-9
statutory language is susceptible to more than one reasonable interpretation, it is
ambiguous, and we may "'resort to extrinsic aids, such as legislative history,"' to
resolve the ambiguity. Burton v. Lehman, 153 Wn.2d 416, 423, 103 P.3d 1230 (2005)
(quoting Biggs v. Vail, 119 Wn.2d 129, 134, 830 P.2d 350 (1992)).
At issue in this case is whether Proposition 1 directly and irreconcilably
conflicts with RCW 14.08.330, the statute that gives special purpose districts (such as
the Port of Seattle) jurisdiction over airports. The statute provides:
Every airport and other air navigation facility controlled and operated by any municipality, or jointly controlled and operated pursuant to the provisions of this chapter, shall, subject to federal and state laws, rules, and regulations, be under the exclusive jurisdiction and control of the municipality or municipalities controlling and operating it. The municipality or municipalities shall have concurrent jurisdiction over the adjacent territory described in RCW 14.08.120(2). No other municipality in which the airport or air navigation facility is located shall have any police jurisdiction of the same or any authority to charge or exact any license fees or occupation taxes for the operations. However, by agreement with the municipality operating and controlling the airport or air navigation facility, a municipality in which an airport or air navigation facility is located may be responsible for the administration and enforcement of the uniform fire code, as adopted by that municipality under RCW 19.27.040, on that portion of any airport or air navigation facility located within its jurisdictional boundaries.
RCW 14.08.330.
Thus, the first question is whether the meaning of this statute is plain on its face
or whether it is ambiguous. The Port of Seattle contends that the statute is plain on its
face. We do not agree. Reading RCW 14.08.330 as a whole, we find the statute's
"exclusive jurisdiction and control" language ambiguous. The statute provides that
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Fila Foods, LLC v. City of SeaTac 89723-9
every airport controlled by a municipality "shall ... be under the exclusive
jurisdiction and control of the municipality ... controlling and operating it." Id. But
the statute continues, "No other municipality in which the airport ... is located shall
have any police jurisdiction of the same or any authority to charge or exact any
license fees or occupation taxes for the operations." !d. The Port of Seattle contends
that the "exclusive jurisdiction" language means the Port of Seattle has the sole and
undivided authority to regulate any matter that occurs at the Seattle-Tacoma
International Airport. It contends, "The City does not have the statutory authority to
regulate any matters occurring at [the Seattle-Tacoma International Airport]." Br. of
Resp't Port of Seattle at 9 (emphasis added). However, reading the statute's two
sentences together, it is unclear what the legislature intended to grant the Port of
Seattle "exclusive jurisdiction and control" over. The statute does not say "any
matters." See RCW 14.08.330. If the legislature meant for the Port of Seattle to have
"exclusive jurisdiction and control" over every conceivable matter that occurred at the
airport, then the statute's subsequent sentence, detailing that "[n]o other municipality
in which the airport ... is located shall have any police jurisdiction of the same or any
authority to charge or exact any license fees or occupation taxes for the operations,"
would be superfluous. '" [N]o part of a statute should be deemed inoperative or
superfluous unless it is the result of obvious mistake or error."' In re Det. of Strand,
167 Wn.2d 180, 189, 217 P.3d 1159 (2009) (quoting Klein v. Pyrodyne Corp., 117
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Wn.2d 1, 13, 810 P.2d 917, 817 P.2d 1359 (1991)). By saying that municipalities in
which airports are located may not charge license fees or occupation taxes, the
legislature implied that there are matters that municipalities can regulate. Since the
statute is unclear regarding what exactly the legislature intended to grant the Port of
Seattle "exclusive jurisdiction and control" over, we find the statute ambiguous.
Our task, then, is to determine the legislature's intent. Jacobs, 154 Wn.2d at
600. The city of SeaTac contends that the legislature intended to give the Port of
Seattle jurisdiction over only airport operations, whereas the Port of Seattle contends
that the legislature intended to prohibit any city of SeaTac law or regulation from
applying at the Seattle-Tacoma International Airport. As described below, we reject
the Port of Seattle's interpretation because we find it, among other things,
incompatible with a special purpose district's limited powers.
Unlike cities, which are granted "the broadest powers of local self
government," RCW 35A.01.010, a port district is a special purpose district, which "is
limited in its powers to those necessarily or fairly implied in or incident to the powers
expressly granted, and also those essential to the declared objects and purposes of the
corporation." Port of Seattle v. Wash. Utils. & Transp. Comm 'n, 92 Wn.2d 789, 794
95,597 P.2d 383 (1979).
The legislature granted powers to municipalities that establish or acquire
airports in RCW 14.08.120. Among these powers is the power "[t]o adopt and amend
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Fila Foods, LLC v. City of SeaTac 89723-9
all needed rules, regulations, and ordinances for the management, government, and
use of any properties under [the municipality's] control" and "to fix by ordinance or
resolution ... penalties for the violation of the rules, regulations, and ordinances, and
enforce those penalties in the same manner in which penalties prescribed by other
rules, regulations, and ordinances of the municipality are enforced." RCW
14.08.120(2).
The Port of Seattle asks us to interpret this statute, in combination with RCW
14.08.330' s grant of "exclusive jurisdiction," as a law that strips the city of SeaTac of
all police power-that is, all of its normal authority to regulate in the interests of
public health and safety-at the airport. But RCW 14.08.120(2) contemplates a
municipality using its normal rule-making authority and procedures to enact and
enforce airport-specific rules, and the Port of Seattle's normal authority does not
include the exercise of general police powers. Outside the airport context, a port
district's rule-making authority is subordinate to the authority of the municipality
within which it is situated. RCW 53.08.220(1). While any port district "may
formulate all needful regulations for the use ... of any properties or facilities owned
or operated by it," those regulations "must conform to and be consistent with the
ordinances of the city or town" in which the district is located. !d.
This statutory scheme reflects a fundamental difference between the powers of
a special purpose district, like the Port of Seattle, and those of a city, town, or county.
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To interpret RCW 14.08.120 and .330 in the manner the Port of Seattle suggests, we
would have to conclude that the legislature intended the Revised Airports Act, chapter
14.08 RCW, to deprive the city of SeaTac of all its police powers at the airport, even
though the Port of Seattle lacks the authority to fill this regulatory gap through its
normal rule-making authority. We decline to interpret the Revised Airports Act so
broadly.
Although the language ofRCW 14.08.330 plainly denies the city of SeaTac
some authority, the overall statutory scheme and the purposes underlying the Revised
Airports Act suggest that RCW 14.08.330 denies the city of SeaTac authority over
airport operations and the subject of aeronautics, as opposed to "any matters
occurring at [the Seattle-Tacoma International Airport]." Br. of Resp 't Port of Seattle
at 9 (emphasis added).
The legislature expressly instructed that the purpose of the statutory scheme is
to ensure uniformity in the laws regarding aeronautics. RCW 14.08.340.
Additionally, the law detailing the specific powers of municipalities operating
airports, RCW 14.08.120(1), provides that a municipality may establish a board
responsible for "the construction, enlargement, improvement, maintenance,
equipment, operation, and regulation [of the airport or other air navigation facility]."
These aspects of the statutory scheme lead us to conclude that the legislature intended
to vest authority for the operation of the airport exclusively with the Port of Seattle,
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Fila Foods, LLC v. City of SeaTac 89723-9
but not to prohibit a local municipality like the city of SeaTac from regulating for the
general welfare in a manner unrelated to airport operations.
Our interpretation is supported by our case law indicating that the purpose of
the statutory scheme is to preclude local municipalities "from interfering with respect
to the operation of the Seattle-Tacoma airport." King County v. Port of Seattle, 37
Wn.2d 338, 348,223 P.2d 834 (1950) (addressing whether local municipalities can
impose license fees). In that case, we considered a separate-but related-issue:
whether King County could impose a licensing fee on taxicabs operating at the
Seattle-Tacoma International Airport. We looked to the statute's specific limitation
regarding the ability of local municipalities to impose license fees and held that King
County could not impose a fee because the statute provides that "'no other
municipality in which such airport or air navigation facility [is located] shall have any
police jurisdiction of the same or any authority to charge or exact any license fees.'"
Id. at 346-47 (alteration in original) (quoting REM. REV. STAT. § 2722-44 (Supp.
1945) (codified as amended at RCW 14.08.330)). We explained that "[t]he effect of
this section, when read in the light of the entire revised airports act, is merely to
preclude [King County]from interfering with respect to the operation of the Seattle
Tacoma airport and forbids [King County from] exacting any license fees." Id. at 348
(emphasis added).
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While that case was focused on the more specific limitation on license fees, this
language represents a commonsense interpretation of the legislature's intent,
particularly its grant of jurisdiction. Looking at the statutory scheme overall, we
conclude that the legislature intended to give the Port of Seattle exclusive jurisdiction
over the operation of the Seattle-Tacoma International Airport: specifically "the
construction, enlargement, improvement, maintenance, equipment, operation, and
regulation" of the airport. RCW 14.08.120(1). Here, Proposition 1 has nothing to do
with airport operations or the subject of aeronautics. In addition, the Port of Seattle
does not show that Proposition 1 would interfere with airport operations. As a result,
we conclude that Proposition 1 can be enforced at the Seattle-Tacoma International
Airport without violating RCW 14.08.330.
The dissent asserts that the provision ofRCW 14.08.330 related to the
administration and enforcement of local fire codes "disproves" our interpretation of
the statute. Dissent at 6. It asserts that "[i]fthe legislature intended the operating
municipality's exclusive jurisdiction to be over only [airport operations], why would
the legislature specify an exception from the operating municipality's exclusive
jurisdiction to allow the municipality in which the airport sits to enforce afire code at
the airport?" !d. at 6-7. The legislative history of the fire code amendment answers
the dissent's question. The house committee in support of the bill testified, "Seattle
has been enforcing its uniform fire code on the portion of the King County airport
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Fila Foods, LLC v. City of SeaTac 89723-9
located within its boundaries, but their attorney feels they may not have this authority .
. . . This bill clarifies an ambiguity in current law." H.B. REPORT ON H.B. 139, 49th
Leg., Reg. Sess. (Wash. 1985). That language shows that the legislature added the
fire code language because it recognized that the statute's ambiguous language called
into question Seattle's ability to enforce the uniform fire code. By adding in the
language, it "clarifie[d] an ambiguity."5 Id. Rather than disproving our interpretation,
the house bill reinforces our conclusion that the statute's language is ambiguous.
Our interpretation is further supported by the portion ofRCW 14.08.330 that
incorporates other state laws, including the Washington Minimum Wage Act, chapter
49.46 RCW. To the extent the Port of Seattle's jurisdiction over the Seattle-Tacoma
International Airport is "exclusive," its jurisdiction is still "subject to ... state laws,
rules, and regulations." RCW 14.08.330. As we have said before, that clause
subordinates the Port of Seattle's authority over the airport to applicable state law.
Port of Seattle, 92 Wn.2d at 804. One applicable state law that we must consider is
RCW 49.46.120, part of the Washington Minimum Wage Act. That statute provides:
Any standards relating to wages, hours, or other working conditions established by any applicable federal, state, or local law or ordinance ... which are more favorable to employees than the minimum standards applicable under this chapter ... shall be in full force and effect.
5 Unfortunately, while the legislature recognized that the existing statute was ambiguous, it chose to clarify only the provision related to the fire code. The ambiguity with regard to other municipal laws remains.
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Filo Foods, LLC v. City of SeaTac 89723-9
RCW 49.46.120 (emphasis added). Thus, state law sets the minimum wage in any
given location at the most favorable level to the employee whether by federal, state, or
local law. No party argues that the Port of Seattle is exempt from our state minimum
wage law. The Port of Seattle's regulatory authority over the airport is subordinate to
all state laws, including the state minimum wage law, that require it to comply with
local minimum wage laws.
This argument regarding the Washington Minimum Wage Act was first
advanced by the Washington State attorney general as amicus to this court, and Filo
Foods argues that we may not consider new arguments raised only by an amicus. This
misunderstands this court's authority; while we generally decline to reach issues not
properly presented by the parties, "this court has inherent authority to consider issues
not raised by the parties if necessary to reach a proper decision." Alverado v. Wash.
Pub. Power Supply Sys., Ill Wn.2d 424,429, 759 P.2d 427 (1988) (citing Siegler v.
Kuhlman, 81 Wn.2d 448, 502 P .2d 1181 (1972)). This is especially true in a case
such as this where we are tasked with interpreting a statute. We read statutes together
to achieve a "'harmonious total statutory scheme ... which maintains the integrity of
the respective statutes."' Am. Legion Post No. 149 v. Dep 't of Health, 164 Wn.2d
570, 588, 192 P.3d 306 (2008) (alteration in original) (internal quotation marks
omitted) (quoting State ex rel. Peninsula Neigh. Ass 'n v. Dep 't ofTransp., 142 Wn.2d
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Fila Foods, LLC v. City of SeaTac 89723-9
328, 342, 12 P.3d 134 (2000)). That is because "[t]his court assumes the legislature
does not intend to create inconsistent statutes." Id.
Under Filo Foods's reading, the two statutes would be inconsistent with one
another. RCW 49.46.120 mandates that the laws in any given location most favorable
to the employee shall be in full force and effect. That provision would be meaningless
if the Port of Seattle could trump such laws in airports it controls. RCW 49.46.120
does not carve out an exception for airports, and RCW 14.08.330 does not contain any
language indicating that the Port of Seattle's jurisdiction and control over the airport
includes the power to trump local minimum wage laws. As stated above, that
provision precludes the city of SeaTac only from interfering with the operations of an
airport. The ordinance does not do so.
"Municipal ordinances are presumed to be valid." Heinsma, 144 Wn.2d at 561.
We must try to harmonize municipal ordinances with state law when possible; we will
invalidate an ordinance only if it "'directly and irreconcilably conflicts'" with state
law. Id. at 564 (quoting Brown, 116 Wn.2d at 561). In this case, we hold that
Proposition 1 can be harmonized with RCW 14.08.330 as a matter of law. Absent a
factual showing that Proposition 1 would interfere with airport operations, the
proposition does not conflict with the Port of Seattle's jurisdiction or ability to operate
the Seattle-Tacoma International Airport. Therefore, Proposition 1 can be validly
enforced at the Seattle-Tacoma International Airport.
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III. Federal Preemption
Separate from challenging the jurisdictional reach of Proposition 1, Filo Foods
challenges its substantive provisions on federal preemption grounds. It contends that
three federal statutes preempt Proposition 1 : the National Labor Relations Act
(NLRA), 29 U.S.C. §§ 151-169; the Airline Deregulation Act of 1978 (ADA), Pub. L.
No. 95-504, 92 Stat. 1705 (1978) (codified as amended in scattered sections of 49
U.S.C.); and the Railway Labor Act (RLA), 45 U.S.C. §§ 151-188. We hold that
none of those statutes preempt Proposition 1. We will address each statute in turn.
A. The NLRA Does Not Preempt Proposition 1
Filo Foods contends that the NLRA preempts Proposition 1 in its entirety, or at
least specifically preempts Proposition 1 's worker-retention provision and its
antiretaliation provision, SEATAC MUNICIPAL CODE 7.45.060, .090. The trial court
held that the NLRA does not preempt Proposition 1 entirely but does preempt the
antiretaliation provision. We hold that the NLRA does not preempt any aspect of
Proposition 1.
Two provisions in the NLRA establish substantive rights and prohibitions.
Section 7 protects an employee's right to organize and bargain collectively and to
refrain from doing so. 29 U.S.C. § 157. Section 8 prohibits certain "[u]nfair labor
practice[s]" of employers and labor organizations. 29 U.S.C. § 158. The NLRA does
not have a preemption clause, but the United States Supreme Court has developed
21
Fila Foods, LLC v. City of SeaTac 89723-9
case law concerning when the NLRA preempts state and local laws. The Court
recognizes two forms ofNLRA preemption: Garmon preemption and Machinists
preemption. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S. Ct.
773,3 L. Ed. 2d 775 (1959); Lodge 76, Int'l Ass'n of Machinists & Aerospace
Workers v. Wis. Emp't Relations Comm 'n, 427 U.S. 132, 96 S. Ct. 2548, 49 L. Ed. 2d
396 (1976).
Under the Garmon preemption doctrine, the NLRA's text may affirmatively
conflict with and thus preempt a state or local law. "Garmon pre-emption forbids
States to 'regulate activity that the NLRA protects, prohibits, or arguably protects or
prohibits."' Chamber of Commerce of US. v. Brown, 554 U.S. 60, 65, 128 S. Ct.
2408, 171 L. Ed. 2d 264 (2008) (quoting Wis. Dep 't of Indus., Labor & Human
Relations v. Gould Inc., 475 U.S. 282, 286, 106 S. Ct. 1057, 89 L. Ed. 2d 223 (1986)).
By contrast, under the Machinists preemption doctrine, the NLRA' s text need not
affirmatively conflict with a state or local law, but rather the United States Supreme
Court has held that the NLRA' s structure implies that Congress intended certain
aspects of labor relations to remain unregulated. That is, preemption under
Machinists "forbids ... States to regulate conduct that Congress intended 'be
unregulated [and] left "to be controlled by the free play of economic forces.""' !d.
(quoting Machinists, 427 U.S. at 140 (quoting Nat'! Labor Relations Bd. v. Nash
Finch Co., 404 U.S. 138, 144, 92 S. Ct. 373, 30 L. Ed. 2d 328 (1971))). "Machinists
22
Fila Foods, LLC v. City of SeaTac 89723-9
pre-emption is based on the premise that '"Congress struck a balance of protection,
prohibition, and laissez-faire in respect to union organization, collective bargaining,
and labor disputes."'" Id. (quoting Machinists, 427 U.S. at 140 n.4 (quoting
Archibald Cox, Labor Law Preemption Revisited, 85 HARV. L. REv. 1337, 1352
(1972))).
Filo Foods first argues that under the Machinists doctrine, the NLRA preempts
Proposition 1 in its entirety. Filo Foods contends that because Proposition 1 "imposes
onerous substantive requirements" that all "favor employees and are typically issues
negotiated in a collective bargaining agreement[,] [m]andating [the substantive labor
requirements] runs afoul of federal labor policy." Am. Answering Br. & Opening
Cross-Appeal Br. ofFilo Foods (Filo Foods's Opening Br.) at 33-34.
The United States Supreme Court has rejected this type of argument. See Fort
Halifax Packing Co. v. Coyne, 482 U.S. 1, 19-23, 107 S. Ct. 2211, 96 L. Ed. 2d 1
(1987); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747-58, 105 S. Ct. 2380,
85 L. Ed. 2d 728 (1985). In Fort Halifax Packing Co., for example, a Maine statute
required employers to provide a onetime severance payment to employees in the event
of a plant closing. 482 U.S. at 3-4 & n.1. An employer challenged the statute,
arguing, as Filo Foods argues here, that the statute "intrudes on the bargaining
activities of the parties because the prospect of a statutory obligation undercuts an
23
Filo Foods, LLC v. City of SeaTac 89723-9
employer's ability to withstand a union's demand for severance pay." !d. at 20. The
Court rejected this argument, holding that
the NLRA is concerned with ensuring an equitable bargaining process, not with the substantive terms that may emerge from such bargaining. "The evil Congress was addressing thus was entirely unrelated to local or federal regulation establishing minimum terms of employment." Such regulation provides protections to individual union and nonunion workers alike, and thus "neither encourage[s] nor discourage[s] the collective-bargaining processes that are the subject of the NLRA." Furthermore, pre-emption should not be lightly inferred in this area, since the establishment of labor standards falls within the traditional police power of the State. . . . It is true that the Maine statute gives employees something for which they otherwise might have to bargain. That is true, however, with regard to any state law that substantively regulates employment conditions. Both employers and employees come to the bargaining table with rights under state law that form a "backdrop" for their negotiations .... [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."
!d. at 20-22 (some alterations in original) (citations and internal quotation marks
omitted) (quoting Metro. Life Ins. Co., 471 U.S. at 754-55; Malone v. White Motor
Corp., 435 U.S. 497, 504-05, 98 S. Ct. 1185, 55 L. Ed. 2d 443 (1978)). We similarly
conclude that Proposition 1, which establishes a minimum wage and other employee
protections, "is not pre-empted by the NLRA, since its establishment of a minimum
24
Fila Foods, LLC v. City of SeaTac 89723-9
labor standard does not impermissibly intrude upon the collective-bargaining
process." Id. at 23.6
Filo Foods further argues that Proposition 1 is not a permissible minimum labor
standard because of its waive-out provision. The waive-out provision permits
employers and employees to agree to waive Proposition 1 's substantive requirements,
but only "in a bona fide collective bargaining agreement." SEATAC MUNICIPAL CODE
7.45.080. This, Filo Foods contends, "upsets the balance of power between labor and
management by placing non-union employers in positions where they will be required
to recognize unions in order to avoid the Ordinance." Filo Foods's Opening Br. at 37.
Yet again, in Fort Halifax Packing Co., the United States Supreme Court considered
and rejected this argument:
Appellant maintains that this case is distinguishable from Metropolitan Life. It points out that, unlike Metropolitan Life, the
6 Filo Foods suggests that even if some of Proposition 1 's provisions are in fact minimum labor standards that are not individually preempted, the trial court erred by "fail[ing] to consider the cumulative effect" of the minimum labor standards. Filo Foods's Opening Br. at 37. Filo Foods cites no authority for the proposition that several minimum labor standards, though each in isolation is not preempted, work together in cumulative effect to become preempted. Without such authority, Fort Halifax Packing Co. and Metropolitan Life Insurance Co. require us to hold that the NLRA does not preempt minimum labor standards, even when several such standards appear in one ordinance. Filo Foods also suggests that the NLRA preempts Proposition 1 because it is not a law "of general application and instead, targets those businesses, and only those businesses, that are associated, either directly or indirectly, with air travel." Filo Foods's Opening Br. at 38. Such an argument is unavailing: "state substantive labor standards, including minimum wages, are not invalid [under the NLRA] simply because they apply to particular trades, professions, or job classifications rather than to the entire labor market." Associated Builders & Contractors ofS. Cal., Inc. v. Nunn, 356 F.3d 979, 990 (9th Cir. 2004).
25
Fila Foods, LLC v. City of SeaTac 89723-9
statutory obligation at issue here is optional, since it applies only in the absence of an agreement between employer and employees. Therefore, the Company argues, the Maine law cannot be regarded as establishing a genuine minimum labor standard. The fact that the parties are free to devise their own severance pay arrangements, however, strengthens the case that the statute works no intrusion on collective bargaining. . . . If a statute that permits no collective bargaining on a subject escapes NLRA pre-emption, see Metropolitan Life, surely one that permits such bargaining cannot be pre-empted.
482 U.S. at 22; see also Livadas v. Bradshaw, 512 U.S. 107, 131-32 & n.26, 114 S.
Ct. 2068, 129 L. Ed. 2d 93 (1994) (holding that the NLRA "cast[s] no shadow on the
validity" of an opt-out provision for minimum labor standards). Consistent with
United States Supreme Court authority, we hold Proposition 1 is not preempted
because of its waiver provision.
Next, Filo Foods argues that the NLRA preempts Proposition 1 in its entirety
because labor organizations used the political process to achieve rights that they may
have otherwise achieved through collective bargaining. It contends, "Where unions
have tried to obtain certain conditions through collective bargaining and have failed to
do so effectively, a political body ... should not reach a solution for them." Filo
Foods's Opening Br. at 35-36. We reject this argument. Even putting aside the labor
organizations' rights of petition and of political expression under the First
Amendment to the United States Constitution, the United States Supreme Court has
held that section 7 of the NLRA itself protects labor organizations' right to seek
substantive protection through the political process. Eastex, Inc. v. Nat'! Labor
26
Fila Foods, LLC v. City of SeaTac 89723-9
Relations Bd., 437 U.S. 556, 565-66, 98 S. Ct. 2505, 57 L. Ed. 2d 428 (1978) (holding
that "employees' appeals to legislators to protect their interests as employees are
within the scope" of the employees' right under section 7 of the NLRA to engage in
"'mutual aid or protection"'). We hold that the NLRA does not preempt Proposition 1
in its entirety.
We turn now to Filo Foods's preemption challenges to specific provisions of
Proposition 1. Filo Foods first argues that under the Machinists doctrine, the NLRA
preempts Proposition 1 's worker-retention provision. SEATAC MUNICIPAL CODE
7.45.060. This provision applies to "successor employer[s]," id., which appears to
mean the surviving company after a business acquisition or merger.7 Under SeaTac
Municipal Code 7 .45.060, successor employers have duties to retain certain workers
of the predecessor employer for a limited period of time:
B. Retention Offer. Except as otherwise provided herein, the successor employer shall offer employment to all qualified retention employees. A successor employer who is a hospitality employer shall, before hiring off the street or transferring workers from elsewhere, offer employment to all qualified retention employees of any predecessor employer that has provided similar services at the same facility. If the successor employer does not have enough positions available for all qualified retention employees, the successor employer shall hire the retention employees by seniority within each job classification. For any additional positions which become available during the initial ninety (90) day period of the
7 A "Successor Employer" is "the new hospitality or transportation employer that succeeds the predecessor employer in the provision of substantially similar services within the City," and a "Predecessor Employer" is "the hospitality or transportation employer that provided substantially similar services within the City prior to the successor employer." SEATAC MUNICIPAL CODE 7.45.010(L), (I) (emphasis added).
27
Fila Foods, LLC v. City of SeaTac 89723-9
new contract, the successor employer will hire qualified retention employees by seniority within each job classification.
C. Retention Period. A successor employer shall not discharge a retention employee without just cause during the initial ninety (90) day period of his/her employment.
SEATAC MUNICIPAL CODE 7.45.060. The trial court held that the NLRA does not
preempt these provisions. We affirm the trial court in this respect.
Filo Foods argues that Proposition 1 's worker-retention provisions are
preempted under the Machinists doctrine because the "U.S. Supreme Court recognizes
a successor employer's right to operate its business in the manner in which it best sees
fit" in terms of its hiring and firing decisions. Filo Foods's Opening Br. at 40. But
the United States Supreme Court cases Filo Foods relies on do not support its
argument. These cases involved application of the National Labor Relation Board's
(NLRB) successorship doctrine, which holds that if, under the doctrine's fact
intensive case law, the employer is found to be a successor, then the employer has a
duty to bargain with the predecessor's union. See Nat'l Labor Relations Bd. v. Burns
Int'l Sec. Servs., Inc., 406 U.S. 272, 92 S. Ct. 1571, 32 L. Ed. 2d 61 (1972); Howard
Johnson Co. v. Detroit Local Joint Exec. Bd., Hotel & Rest. Emps. & Bartenders Int'l
Union, 417 U.S. 249, 94 S. Ct. 2236, 41 L. Ed. 2d 46 (1974); Fall River Dyeing &
Finishing Corp. v. Nat'l Labor Relations Bd., 482 U.S. 27, 107 S. Ct. 2225, 96 L. Ed.
2d 22 (1987). None addressed Machinists preemption or held that temporary worker
28
Fila Foods, LLC v. City of SeaTac 89723-9
retention was a subject matter Congress intended to leave unregulated. The cases are
not particularly instructive to the issue at hand.8
Rather than being preempted under Machinists, we believe Proposition 1 's
worker-retention provision fits comfortably within the category of minimum labor
standards held to be valid under Fort Halifax Packing Co. and Metropolitan Life
Insurance Co. Just as the state of Maine could require certain employers to provide
severance pay to employees upon their businesses closing, in Fort Halifax Packing
Co., the city of SeaTac may require successor employers to retain for three months ( 1)
"qualified" retention employees, (2) to the extent that there are "enough positions
available for all qualified retention employees," (3) unless there is "just cause" for
termination. SEATAC MUNICIPAL CODE 7.45.060(B), (C). Indeed, as section
7.45.060' s qualifications illustrate, a successor employer in the city of SeaTac has
substantial flexibility in avoiding the three-month retention period. We hold that
8 Filo Foods also argues that the provisions impose on an employer "a duty to bargain that would not necessarily arise in the free market." Filo Foods's Opening Br. at 42. We disagree. By its terms, Proposition 1 does not impose on a successor employer the duty to bargain with employees after the three-month period elapses. Nor is there reason to think that requiring an employer to retain employees for 90 days would in and of itself trigger successor status under the NLRB's successorship doctrine (which would thereby trigger the duty to bargain with the purchased company's union). Instead, the successorship doctrine focuses in part on the acquiring company's conscious decision to retain the purchased company's employees in order to find successor status. See Fall River Dyeing & Finishing Corp., 482 U.S. at 41 ("If the new employer makes a conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor, then the bargaining obligation of§ 8(a)(5) is activated. This makes sense when one considers that the employer intends to take advantage of the trained work force of its predecessor." (first emphasis added)).
29
Filo Foods, LLC v. City of SeaTac 89723-9
SeaTac Municipal Code 7.45.060 is a minimum labor standard that simply sets the
"backdrop" against which labor negotiations proceed. See R.I. Hospitality Ass 'n v.
City of Providence, 667 F.3d 17,32 (1st Cir. 2011) (upholding a worker-retention
ordinance similar to SeaTac Municipal Code 7.45.060 against a Machinists
preemption challenge) (quoting Fort Halifax Packing Co., 482 U.S. at 21).
Accordingly, it is not preempted under the Machinists doctrine.
Filo Foods next argues that under the Garmon doctrine, the NLRA preempts
Proposition 1 's antiretaliation provision, SeaTac Municipal Code 7.45.090. That
provision states:
A. It shall be a violation for a hospitality employer or transportation employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this chapter.
B. It shall be a violation for a hospitality employer or transportation employer to take adverse action or to discriminate against a covered worker because the covered worker has exercised in good faith the rights protected under this chapter.
SEATAC MUNICIPAL CODE 7.45.090. The trial court determined the NLRA preempts
these provisions insofar as they create a '"supplemental sanction for violations of the
NLRA."' Clerk's Papers at 1961. The court reasoned that "[t]hese provisions of the
Ordinance directly infringe on the NLRB's exclusive jurisdiction under §8 of the
NLRA, which already makes it an unfair labor practice for an employer 'to interfere
30
Filo Foods, LLC v. City of SeaTac 89723-9
with, restrain, or coerce employees in the exercise of the rights guaranteed in' §7." Id.
(quoting 29 U.S.C. § 158(a)(l); NLRA § 8(a)(1)). We reverse in this respect.
The NLRA does indeed preempt state or local laws that create supplemental
sanctions for violations of the NLRA. "[T]he Garmon rule prevents States ... from
providing their own regulatory or judicial remedies for conduct prohibited or arguably
prohibited by the Act." Gould Inc., 475 U.S. at 286. For example, in Gould Inc., the
United States Supreme Court held that a Wisconsin statute that prohibited businesses
that were repeat violators of the NLRA from doing business in Wisconsin was a
supplemental sanction for violation of the NLRA and was therefore preempted. I d. at
283. Proposition 1 creates no such supplemental sanction for violations of the NLRA.
Rather than providing an employee a remedy for illegal retaliation for exercising
rights protected under the NLRA, Proposition 1 provides an employee a remedy for
illegal retaliation for exercising rights protected under Proposition 1. The two are not
the same. Proposition 1 is self-contained. If an employer takes an adverse action
against an employee because the employee reported a minimum wage violation under
Proposition 1, the employer violates Proposition 1 's antiretaliation provision. But in
this scenario, the employer does not necessarily violate the NLRA's antiretaliation
provision nor become subject to a new sanction for a NLRA violation. Proposition
1 's antiretaliation provision is thus not a supplemental sanction appended to the
31
Fila Foods, LLC v. City of SeaTac 89723-9
NLRA but instead protects against retaliation for the exercise of rights under its
provisions. We hold SeaTac Municipal Code 7.45.090 is not NLRA preempted.
B. The RLA Does Not Preempt Proposition 1
The trial court did not analyze whether the RLA preempts Proposition 1
because it concluded that an RLA preemption analysis would be the same as an
NLRA analysis, and it had already found that the NLRA did not preempt Proposition
1. Filo Foods, along with amicus Airlines for America, argue that the RLA and
NLRA preemption analyses differ because the RLA requires industry-wide unions
while the NLRA does not. It argues that this industry-wide union requirement usually
makes it difficult for a group of employees at a single airport to unionize, and that in
most cases a group of employees at a single airport would need their employer to
voluntarily recognize them in order to have a legitimate union. Filo Foods contends
that Proposition 1 forces employers to voluntarily recognize unions at SeaTac because
the only way for an employer to get out of the ambit of Proposition 1 is to negotiate a
collective bargaining agreement. However, Filo Foods's argument is essentially a
reformulation of the argument we rejected in the NLRA context above-that
Proposition 1 "upsets the balance of power between labor and management by placing
non-union employers in positions where they will be required to recognize unions in
order to avoid the Ordinance." Filo Foods's Opening Br. at 37. Like our conclusion
32
Fila Foods, LLC v. City of SeaTac 89723-9
above, we hold that the RLA does not preempt Proposition 1 and we affirm the trial
court.
The RLA was originally designed to prevent labor disputes from hindering
interstate commerce in the railroad industry, and Congress extended the RLA to cover
the airline industry in 1936. 45 U.S.C. § 152; Act of Apr. 10, 1936, ch. 166, 49 Stat.
1189 (currently codified as 45 U.S.C. § 181). The act itself states that it is the duty of
both employers and employees in those industries to
exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees therof.
45 U.S.C. § 152. The act generally promotes collective bargaining and "sets up a
mandatory arbitral mechanism to handle disputes 'growing out of grievances or out of
the interpretation or application of agreements concerning rates of pay, rules, or
working conditions.'" Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 248, 114 S.
Ct. 2239, 129 L. Ed. 2d 203 (1994) (quoting 45 U.S.C. § 153(i)). The United States
Supreme Court articulated the government's role regarding the RLA as follows: "The
Railway Labor Act, like the National Labor Relations Act, does not undertake
governmental regulation of wages, hours, or working conditions. Instead it seeks to
provide a means by which agreement may be reached with respect to them."
Terminal R.R. Ass'n ofSt. Louis v. Bhd. ofR.R. Trainmen, 318 U.S. 1, 6, 63 S. Ct.
33
Fila Foods, LLC v. City of SeaTac 89723-9
420, 87 L. Ed. 571 (1943) (footnote omitted). Although the RLA and NLRA are
similar, one of the differences between the two acts, as Filo Foods notes, is that the
RLA requires employees to collectively bargain on an industry-wide basis. Summit
Airlines, Inc. v. Teamsters Union Local No. 295, 628 F.2d 787, 795 (2d Cir. 1980).
That minor difference notwithstanding, the RLA is like the NLRA for
preemption purposes, in that "substantive protections provided by state law,
independent of whatever labor agreement might govern, are not pre-empted under the
RLA." Hawaiian Airlines, 512 U.S. at 257. Thus, our preemption analysis is the
same as above. We hold that Proposition 1, which establishes a minimum wage and
other employee protections, is not preempted by the RLA. Therefore, we affirm the
trial court.
C. The ADA Does Not Preempt Proposition 1
The trial court did not analyze whether the ADA preempts Proposition 1
because it found that state law preempted Proposition 1 at the Seattle-Tacoma
International Airport. Filo Foods argues that the ADA preempts Proposition 1
because Proposition 1 "has the force and effect of law related to air carrier services
... and ... 'prices' ... by dictating how much carriers must pay for the workers who
provide ... services." Filo Foods's Opening Br. at 45. We hold that the ADA does
not preempt Proposition 1 because Proposition 1 is not sufficiently "related to" airline
services and prices.
34
Fila Foods, LLC v. City of SeaTac 89723-9
Congress enacted the ADA in 1978, "determining that 'maximum reliance on
competitive market forces' would best further 'efficiency, innovation, and low prices'
as well as 'variety [and] quality ... of air transportation services."' Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 378, 112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992)
(alterations in original) (quoting former 49 U.S.C. App. §§ 1302(a)(4), (9), recodified
as 49 U.S.C. §§ 40101(a)(6), (12)). The ADA contains a preemption provision to
prevent States from undoing federal deregulation. 49 U.S.C. 41713(b)(1). Under that
provision, states "may not enact or enforce a law ... related to a price, route, or
service of an air carrier." !d.
The United States Supreme Court has interpreted that preemption language
broadly, holding that "[s]tate enforcement actions having a connection with, or
reference to, airline 'rates, routes, or services' are pre-empted." Morales, 504 U.S. at
384 (quoting former 49 U.S.C. App. § 1305(a)(1), recodified as 49 U.S.C. §
41713(b)(1)9). Thus, even laws that affect rates indirectly could be preempted. See
id. at 386. However, the Court noted that not all state laws will be preempted.
"'[S]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a
manner' to have pre-emptive effect." !d. at 390 (alterations in original) (quoting Shaw
v. Delta Air Lines, Inc., 463 U.S. 85, 100 n.21, 103 S. Ct. 2890, 77 L. Ed. 2d 490
9 Although Congress has amended the ADA since Morales by replacing the word "rates" with "prices," that change does not alter our analysis. See 49 U.S.C. § 41713(b)(l). Our conclusion regarding preemption is based on more recent circuit court cases, as analyzed below.
35
Fila Foods, LLC v. City of SeaTac 89723-9
(1983)). The Court in Morales did not draw the line for what state actions would be
too tenuous to have preemptive effect.
Although preemption under the ADA is broad, federal circuit court cases
suggest that the ADA does not preempt generally applicable laws that regulate how an
airline behaves as an employer, even though the law indirectly affects the airline's
prices and services. See DiFiore v. Am. Airlines, Inc., 646 F.3d 81, 87 (1st Cir. 2011);
Californians for Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F .3d
1184, 1189 (9th Cir. 1998). In DiFiore, porters who provided curbside baggage
service (called "'skycaps'") at Logan Airport in Massachusetts sued American
Airlines over a $2-per-bag fee. 646 F.3d at 82-83. The skycaps contended that
passengers stopped tipping them because the passengers assumed that the $2 fee was a
mandatory tip rather than a charge paid to the airline. Id. The skycaps sued American
Airlines under a Massachusetts statute governing tips, arguing that the law required
the airline to give them any "'tip[s] or service charge[s]"' and that the bag fee
constituted "a 'service charge' under state law (and must therefore go to the skycaps)
because customers 'reasonably expect[ ed]' it to be given to the skycaps." I d. at 84
(third alteration in original) (quoting MASS. GEN. LAWS ch. 149, § 152A(a), (b)). The
First Circuit concluded that because the tip law had "a direct connection to air carrier
prices and services," the ADA preempted it. Jd. at 87. The court reasoned that if the
airline wanted to avoid having the law "deem the curbside check-in fee a 'service
36
Fila Foods, LLC v. City of SeaTac 89723-9
charge[,]' [it] would require changes in the way the service is provided or advertised."
ld. at 88. The court recognized, though, that if the law merely regulated "how the
airline behave[ d] as an employer," the ADA would likely not preempt the law, even if
the law indirectly affected fares and services. ld. at 87-88.
Likewise, in Mendonca, the Ninth Circuit held that a federal law that is
analogous to the ADA for preemption purposes (the Federal Aviation Administration
Authorization Act of 1994 (FAAA), 49 U.S.C. § 1450)10 did not preempt California's
Prevailing Wage Law (CPWL), CAL. LABOR CODE§§ 1770-1780, because it
regulated employer-employee relationships and only indirectly affected industry
prices and services. 152 F.3d at 1189. The CPWL "required contractors and
subcontractors who are awarded public works contracts to pay their workers 'not less
than the general prevailing rate ... for work of a similar character in the locality in
which the public work is performed.'" I d. at 1186 (alteration in original) (quoting
CAL. LABOR CODE§ 1771). Public works contractors sued the California agencies
responsible for enforcing the CPWL, contending that the F AAA preempted the CPWL
because the CPWL "related to" the contractors' prices and services. I d. at 1189. The
contractors argued that the law "increase[ d] its prices by 25%, cause[ d] it to utilize
independent owner-operators, and compel[ ed] it to re-direct and re-route equipment to
10 The preemption provision states, "[A] State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier ... with respect to the transportation of property." 49 U.S.C. § 1450l(c)(l).
37
Fila Foods, LLC v. City of SeaTac 89723-9
compensate for lost revenue." !d. The Ninth Circuit rejected that argument,
concluding that the CPWL was not a law that directly regulated prices or services
instead, it regulated employer-employee relationships, and its "effect [was] no more
than indirect, remote, and tenuous." !d. Thus, the court held that the FAAA did not
preempt the CPWL. !d.
We agree with the First and Ninth Circuits and hold that the ADA does not
preempt Proposition 1 because Proposition 1 regulates employer-employee
relationships and its affect on airline prices and services is only indirect and tenuous.
As discussed above, Proposition 1 establishes minimum wage and other employee
protections-it does not directly regulate airline prices and services. The fact that
Proposition 1 may impose costs on airlines and therefore affect fares is
inconsequential. As the First Circuit noted, holding that a state law is preempted in
that circumstance "would effectively exempt airlines from state taxes, state lawsuits of
many kinds, and perhaps most other state regulation of any consequence." DiFiore,
646 F.3d at 89. Interpreting the "relate to" provision of the ADA so broadly would be
"a project doomed to failure, since, as many a curbstone philosopher has observed,
everything is related to everything else." Cal. Div. of Labor Standards Enforcement
v. Dillingham Constr., NA, 519 U.S. 316, 335, 117 S. Ct. 832, 136 L. Ed. 2d 791
(1997) (Scalia, J., concurring). We refuse to adopt such a broad reading of the ADA's
preemption provision and hold that the ADA does not preempt Proposition 1.
38
Fila Foods, LLC v. City of SeaTac 89723-9
IV Dormant Commerce Clause
Filo Foods's final contention is that Proposition 1 violates the dormant
commerce clause. U.S. CONST. art. I,§ 8, cl. 3. The trial court rejected this argument.
So do we.
The United States Supreme Court has "long interpreted the Commerce Clause
as an implicit restraint on state authority" to discriminate against or place burdens on
interstate commerce. United Haulers Ass 'n v. Oneida-Herkimer Solid Waste Mgmt.
Auth., 550 U.S. 330, 338, 127 S. Ct. 1786, 167 L. Ed. 2d 655 (2007). The first
question under the dormant commerce clause doctrine is whether the state law
"discriminates on its face against interstate commerce." Id. "In this context,
"'discrimination" simply means differential treatment of in-state and out-of-state
economic interests that benefits the former and burdens the latter."' I d. (quoting Or.
Waste Sys., Inc. v. Dep 't of Envtl. Quality of Or., 511 U.S. 93, 99, 114 S. Ct. 1345,
128 L. Ed. 2d 13 (1994)). "Discriminatory laws motivated by 'simple economic
protectionism' are subject to a 'virtually per se rule of invalidity,' which can only be
overcome by a showing that the State has no other means to advance a legitimate local
purpose." Id. at 338-39 (citation omitted) (quoting City of Philadelphia, 437 U.S.
617,624,98 S. Ct. 2531,57 L. Ed. 2d 475 (1978)).
However, if a state law does not "discriminate[] on its face against interstate
commerce," id. at 338, the law is subject to "the test set forth in Pike v. Bruce Church,
39
Filo Foods, LLC v. City of SeaTac 89723-9
Inc., 397 U.S. 137, 142[, 90S. Ct. 844, 25 L. Ed. 2d 174] (1970), which is reserved
for laws 'directed to legitimate local concerns, with effects upon interstate commerce
that are only incidental."' Id. at 346 (quoting City of Philadelphia, 437 U.S. at 624).
Under the Pike test, a nondiscriminatory state statute remains valid unless the burden
it imposes on interstate commerce is "'clearly excessive in relation to the putative
local benefits."' I d. (quoting Pike, 397 U.S. at 142).
Filo Foods contends that Proposition 1 discriminates on its face against
interstate commerce. That is so, Filo Foods contends, because Proposition 1
"distinguishes between entities that serve a principally interstate clientele and those
that primarily serve an intrastate market by singling out those businesses that
principally serve the Airport and air travelers." Filo Foods's Opening Br. at 52-53.
This argument misunderstands the nature of facial discrimination. A facially
discriminatory law textually identifies out-of-state persons or entities and grants them
unfavorable treatment. See, e.g., Camps Newfound/Owatonna, Inc. v. Town of
Harrison, 520 U.S. 564, 568 & n.2, 117 S. Ct. 1590, 137 L. Ed. 2d 852 (1997). That
is not what Proposition 1 does. Proposition 1 does not distinguish between persons
and entities located in Washington State and those located outside Washington State.
The law accordingly does not facially discriminate against interstate commerce.
Instead, Proposition 1 must be analyzed under the Pike test because it is a
facially nondiscriminatory law that may have an incidental effect on interstate
40
Fifo Foods, LLC v. City of SeaTac 89723-9
commerce. But Filo Foods does not argue, much less demonstrate, that the
undisputed facts establish as a matter of law that "'the burden imposed on [interstate]
commerce is clearly excessive in relation to the putative local benefits."' United
Haulers Ass 'n, 550 U.S. at 346 (alteration in original) (quoting Pike, 397 U.S. at 142).
Accordingly, under the Pike test, we hold that Filo Foods has not established that
Proposition 1 violates the dormant commerce clause.

Outcome: We largely affirm the trial court, but we reverse on two issues. We hold that
under state law, Proposition 1 can be enforced at the Seattle-Tacoma International Airport because there has been no showing that this law would interfere with airport operations. We also hold that federal labor law does not preempt Proposition 1 's provision protecting workers from retaliation.

Consequently, we uphold Proposition 1 in its entirety.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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