Opinion
No. 58215-1-I.
April 23, 2007.
Appeal from a judgment of the Superior Court for King County, No. 02-2-14348-2, Richard A. Jones, J., entered April 14, 2006.
Affirmed by unpublished opinion per Ellington, J., concurred in by Becker and Cox, JJ.
John Guydish and John Huber contend their employer, United States Bakery, failed to pay them the reasonable equivalent of overtime and thus violated the state Minimum Wage Act, chapter 49.46 RCW. Because this court has already determined that United States Bakery's compensation plan complies with Washington law, and the appellants were paid according to that plan, we affirm summary judgment for United States Bakery.
BACKGROUND
Under Washington Administrative Code 296-128-012, overtime pay for truck drivers covered by the federal Motor Carrier Act, 49 U.S.C. § 3101, does not have to be calculated using the traditional time-and-a-half method. Instead, employers may pay their drivers on a nonhourly basis as long as the rate includes overtime compensation that is reasonably equivalent to the overtime drivers would receive if they were paid by the hour.
WAC 296-128-012 ("The compensation system . . . shall include overtime pay GUYDISH at least reasonably equivalent to that required by [the Minimum Wage Act]. . . . [A]n employer may . . . establish a rate of pay that is not on an hourly basis and that includes in the rate of pay compensation for overtime.").
John Guydish and John Huber worked as route sales representatives (RSRs) for United States Bakery, selling and delivering its products to grocery stores, restaurants, and other businesses. RSRs, who are subject to WAC 296-128-012 , were paid a weekly base salary plus a weekly commission based on the amount of product they sold. The commissions ranged from 4 to 7 percent of net sales, depending on the type of product.
In 1997, Guydish, Huber, and other RSRs filed a class action seeking overtime compensation. That action was settled. As part of the settlement, United States Bakery and the Teamsters added language to a collective bargaining agreement they were then negotiating. The language recognized that United States Bakery's longstanding compensation system paid RSRs the reasonable equivalent of overtime:
In generating sales and serving their accounts, [RSRs] may have to work more than forty (40) hours in a week. Accordingly, consistent with the understanding and practice that has been in effect since 1991, the parties agree to continue to provide additional compensation for those Route Salespersons who work more than forty (40) hours per week. The parties understand and agree that this additional compensation continues to exceed or be at least reasonably equivalent to any overtime compensation that could otherwise be calculated in accordance with RCW 49.46 .
Clerk's Papers at 189 (emphasis added).
United States Bakery calculated the additional compensation by dividing the RSR's commission into two parts: regular commission and overtime equivalency commission. The latter was to provide RSRs with the reasonable equivalent of
overtime and was not to exceed 2.5 percent of their net sales. Seventy-six percent of union members voted to approve the collective bargaining agreement, which became effective in August 2000.
The settlement required United States Bakery to submit the compensation plan to the Department of Labor and Industries for approval. The Department provisionally approved the plan for one year in January 2001, and required United States Bakery to submit updated data the following year to verify that the 2.5 percent cap amounted to the reasonable equivalent of overtime.
The settlement also required the parties to seek a judgment declaring that the compensation plan complied with WAC 296-128-012 . The trial court ruled that the compensation plan complied with the regulation based upon both the court's independent review and deference to the Department's reasonable determination. That ruling was affirmed in Schneider v. Snyder's Foods, Inc.
116 Wn. App. 706, 716, 718, 66 P.3d 640 (2003).
United States Bakery failed to submit data for review in January 2002 or discuss it with the Teamsters as required by the Department. The company did send updated data in April 2002, but the Department never responded.
John Guydish and John Huber filed this case in May 2002. They contend they were not paid consistent with the collective bargaining agreement and the Washington Minimum Wage Act, chapter 49.46 RCW. Their action was dismissed on summary judgment on grounds that they were paid the reasonable equivalent of overtime, that section 301 of the Labor Management Relations Act preempts their claims, and that they must resolve their claims through the collective bargaining agreement's grievance procedure.
Guydish and Huber appeal.
ANALYSIS
The usual standard for review of summary judgment applies.
We review a summary judgment order de novo, performing the same inquiry as the trial court and considering the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Overton v. Consol. Ins. Co., 145 Wn.2d 417, 429, 38 P.3d 322, 327 (2002). A moving defendant may satisfy the initial burden by showing that there is an absence of evidence to support the nonmoving party's case. Young v. Key Pharms., 112 Wn.2d 216, 225 n. 1, 770 P.2d 182 (1989). In response, the nonmoving party may not rely on the allegations in the pleadings but must set forth specific facts by affidavit or otherwise that show a genuine issue exists. Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
Guydish and Huber first contend that the compensation plan is no longer valid, and that as a result, they should be able to seek traditional overtime compensation. Guydish and Huber point out that the Department's approval was for only one year and was never extended, and that United States Bakery failed to submit updated data as required by the Department. These facts, however, do not invalidate the compensation scheme. Judicial review has already confirmed that the collective bargaining agreement payment scheme for overtime complies with the Minimum Wage Act. The Schneider court did not condition its ruling on further Department review and approval. Thus, whether the Department's approval was provisional or whether United States Bakery sent in current data is irrelevant to the validity of the compensation plan.
Guydish and Huber next contend that even if the compensation scheme complies with the Minimum Wage Act, they were not paid according to the plan. In its motion for summary judgment, United States Bakery submitted payroll records and spreadsheets covering the years 2000 through 2003. For both Guydish and Huber, this evidence demonstrates that the percentage of net sales allocated towards overtime never exceeded 2.5 percent. The spreadsheets do not show the percentage of net sales allocated towards overtime for pay periods before May 5, 2001, but United States Bakery's chief financial officer attested that the percentage of net sales allocated to overtime in those periods never exceeded 2.5 percent.
Guydish and Huber presented no evidence disputing the payroll records or any of United States Bakery's calculations. Instead, they contend that under the plan, their overtime equivalency commission was to be constant each week, and that the records show that the percentage varied each pay period. Guydish and Huber do not direct us to anything in the record supporting their contention that the overtime equivalency was to be constant each week. The issue is whether Guydish and Huber's overtime equivalency commissions exceeded 2.5 percent. They have submitted no evidence showing that ever occurred.
Guydish and Huber finally contend the compensation scheme is invalid because United States Bakery failed to properly notify them they were to be paid the reasonable equivalent of overtime and failed to provide records as required by WAC 296-128-011 and-012. But these regulations do not create a claim under the Minimum Wage Act.
WAC 296-128-012 provides: "To meet this requirement [of paying the reasonable equivalent of overtime], an employer may, with notice to a truck or bus driver . . . establish a rate of pay that is not on an hourly basis and that includes in the rate of pay compensation for overtime." (Emphasis added.) WAC 296-128-011 creates special recordkeeping requirements to substantiate nonhourly pay rates and requires employers to make the records available to employees upon request.
The Act provides a cause of action for failure to pay wages owed. Guydish and Huber were paid all the money owed under the court-approved compensation scheme. Thus no statutory claim exists, even if United States Bakery's notice and record-keeping were inadequate.
United Food Commer. Workers Union Local 1001 v. Mutual Benefit Life Ins. Co., 84 Wn. App. 47, 52, 925 P.2d 212 (1996); see also Champagne v. Thurston County, 134 Wn. App. 515, 520 n. 5, 141 P.3d 72 (2006) (employees who were paid in full had no cause of action for violations of WAC 296-128-035 , which prohibits employers from delaying payments, because "monetary damages under the Minimum Wage Act are limited to circumstances in which an employer fails to pay statutory minimum wages"); Wingert v. Yellow Freight Sys., 146 Wn.2d 841, 849, 50 P.3d 256 (2002) (violation of WAC 296-126-092 , mandating paid 10-minute rest breaks for every four hours of work, held actionable because employees who worked through breaks were providing their employer with additional labor and thus were owed wages).
Guydish and Huber were paid the reasonable equivalent of overtime. We therefore need not address whether their claim is preempted by section 301 of the Labor Management Relations Act or whether they must utilize the collective bargaining agreement's grievance procedure.
Affirmed
WE CONCUR: