Request By:
Honorable Kenneth E. Hollis
General Counsel
Commonwealth of Kentucky
Department of Labor
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
You have asked this office to review our opinion OAG 70-611 which interpreted KRS 337.365, the rest period statute, in the light of a case cited as White Motor Corp. v. Malone (December 2, 1976, Court of Appeals, 8th Circuit, St. Louis).
You state that this inquiry is precipitated by the fact that United Parcel Service, Inc. has bargained with union representatives to the effect that employees are not paid for rest periods.
Our opinion, OAG 70-611, has nothing to do with the problem posed by your inquiry. The opinion merely interpreted the rest period statute as to when and how many rest periods could be taken.
Your inquiry deals with the statute itself, and in light of White Motor Corp., as to whether the statute has been preempted by federal law.
First of all, we should point out that KRS 337.365 was amended in 1974 changing the term "women" to "employe" and eliminating the option of the employe to take or not to take the rest period. This was done to bring Kentucky statutes in compliance with the Federal Civil Rights Act.
In White Motor Corp., supra, a Minnesota pension act imposed certain obligations on employers when terminating businesses which appeared to conflict with an agreed plan between the employer and employees. The Court held that the Minnesota act was in conflict with the National Labor Relations Act which authorizes employers and employees to bargain freely. Based upon this case, the question has been raised whether KRS 337.365 has been preempted where the employer and employee have bargained not to pay for rest periods.
In the material you have forwarded, the agreement (Article 46) seems to apply only to unpaid meal periods. There is no mention of rest periods (as distinguished from meal periods).
KRS 337.365 does not apply to meal periods except to state that the rest period is in addition to a regularly scheduled lunch period. So, in that regard, there does not appear to be a conflict between the agreement and the statute. Kentucky has never interpreted KRS 337.365 as requiring a paid meal period, only paid rest periods of 10 minutes. KRS 337.355 enacted in 1974 authorizes meal periods (but not paid meal periods) and specifically provides:
"This section shall not be construed to negate any provision of a collective bargaining agreement or mutual agreement between the employe and employer."
In that regard, the time of a meal period can differ from the statute if it is set out in a collective bargaining agreement.
However, we doubt that the principle of the White Motor Corp. case applies here and as case law goes may be a singular aberration around the various Federal circuits.
Carried to its ultimate conclusion, the case could negate Kentucky's minimum wage law. For example, suppose congress had not enacted the Fair Labor Standards Act and Kentucky's minimum wage law of $1.60 was the only law applicable. Could the employer and employee bargain for a minimum wage less than $1.60 on the basis that Congress through the NLRA authorizes free collective bargaining between the parties and any state statute in conflict would be abrogated thereby? We think not!
We note that in White Motor Corp., the statute was enacted after the bargaining agreement arose. Undoubtedly, here, Kentucky's statute was in effect prior to the agreement.
However, we believe that White Motor Corp. ignores several principles of statutory construction that have arisen when interpreting Federal-State relationships under the Preemption Doctrine of the Federal Constitution.
One principle requires that before preemption takes place, there must be a clear conflict between a Federal and a State statute.
A second principle is that it must be clear that Congress has intended to preempt and occupy the entire legislative field.
It certainly is not clear that Congress in authorizing collective bargaining has intended to occupy exclusively all labor law and to preempt all state legislation dealing with employer-employee relations. Certainly, in authorizing collective bargaining, Congress did not authorize agreements which violate state statutes which were enacted under a state's traditional police power, which power was reserved to the states under the Federal Constitution.
Besides, if a conflict has arisen, it is not between a federal act and a state act, but between a state act and a private agreement between employer and employee.
In
Fouke Company v. Mandel, 386 F.Supp. 1341, the court held that when Congress legislates in a field which the states have traditionally occupied, the court must start with the presumption that the historic police powers of the states were not to be superseded by the federal act unless that was the clear and manifest purpose of Congress. (In that case, preemption did arise because Maryland had enacted a statute forbidding importation of seal fur which directly conflicted with the federal Fur Seal Act of 1966, which was enacted under the federal power in foreign affairs.)
In
Firelands Sewer and Water Construction Company, Inc. v. Valentine, 404 F.Supp. 123 (D.C., N.Y., 1975), the court held that a New York statute prohibiting public contractors from requiring more than eight hours of work does not conflict with a federal statute relating to overtime pay and that Congress did not intend to preempt the field of regulation of overtime pay.
Therefore, we see no preemption problem in KRS 337.365 or 337.355 (which was not mentioned in your letter), and we do not believe that the case you cited ( White Motor Corp. v. Malone, supra) applies here.