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BNSF Railway Co. v. Sacks

United States District Court, W.D. Washington, Tacoma

February 13, 2018

JOEL SACKS, in his Official Capacity as Director, Washington State Department of Labor & Industries, Defendant.


          ROBERT J. BRYAN United States District Judge

         This matter comes before the Court on the Defendant's Motion to Dismiss under Fed.R.Civ.P. 12 (b)(1). Dkt. 10. The Court has considered the pleadings filed in support of and in opposition to the motion, oral argument heard on 8 February 2018, and the file herein.

         The Plaintiff, BNSF Railway Company (“BNSF”), filed this case to determine whether the portions of Washington law that purport to regulate hours of service, rest periods and/or other breaks apply to railroad employees (collectively referred to as “breaks” for purposes of this order). Dkt. 1. The Washington State Department of Labor & Industries (“Department”), through its director, Defendant Joel Sacks, has now filed a motion to dismiss the case, arguing that BNSF lacks standing to bring this case and the Department has taken no enforcement action against BNSF and has no past or pending complaints against it (or any other railroad) regarding breaks and so, the questions raised in this case are not ripe for judicial review. Dkt. 10. For the reasons provided below, the motion (Dkt. 10) should be granted.



         Washington Administrative Code (“WAC”) 296-126-092, adopted pursuant to Washington's Industrial Welfare Act, RCW 49.12 et. seq., provides,

(1) Employees shall be allowed a meal period of at least thirty minutes which commences no less than two hours nor more than five hours from the beginning of the shift. Meal periods shall be on the employer's time when the employee is required by the employer to remain on duty on the premises or at a prescribed work site in the interest of the employer.
(2) No employee shall be required to work more than five consecutive hours without a meal period.
(3) Employees working three or more hours longer than a normal work day shall be allowed at least one thirty-minute meal period prior to or during the overtime period.
(4) Employees shall be allowed a rest period of not less than ten minutes, on the employer's time, for each four hours of working time. Rest periods shall be scheduled as near as possible to the midpoint of the work period. No employee shall be required to work more than three hours without a rest period.
(5) Where the nature of the work allows employees to take intermittent rest periods equivalent to ten minutes for each 4 hours worked, scheduled rest periods are not required.

WAC 296-126-092. The Department's Employment Standards Program administers the rule and may enforce it. Dkt. 12, at 2. According to the Employment Standards Program Manager, it exercises its “discretion to investigate complaints based on the strength of the arguments, based on the availability of Department resources, and based on the availability of alternative forms of relief such as private litigation or collective bargaining procedures.” Id.

         1. Emails to the Department about Meal Periods and/or Rest Breaks and Railroads

         On November 2, 2016, the Department's Employment Standards Program received an email, purportedly from an employee of Union Pacific Railroad Company, which read:

Hello. I work for Union Pacific Railroad and we have been getting told that we are not allowed to take meal periods (30 minutes) during our 12 hr [sic] shifts. They claim they are exempt from state law at Union Pacific. I just want to know what my rights are. I am fearful of losing my job because I am not being allowed a basic human right of nourishment. Thank you.

Dkt. 31-2, at 2. In response, on November 3, 2016, Brent DeBeaumont, a Wage and Hour Technical Specialist with the Department, wrote:

Employees of carriers subject to Part I of the Interstate Commerce Act (railroads and pipelines) are exempt from the Minimum Wage Act in Washington.
However, the Washington meal and rest period regulation (WAC 296-126-092) was not promulgated pursuant to the Minimum Wage Act. This regulation was promulgated pursuant to the Industrial Welfare Act (RCW 49.12). For a list of exemptions from the Industrial Welfare Act, please see this policy: Please note, there is no exemption for Part I carriers from the Industrial Welfare Act.
Something else to consider: federal law could preempt your employer from various state regulations. To see if this is the case, please contact the U.S. Dep't of Labor, Wage and Hour Division. Their regional office in Seattle can be contacted at 206-398-8039.
Please let me know if you have additional questions.

Dkt. 31-2, at 2. On May 9, 2017, BNSF sent the Department a Washington Public Records Act request, seeking documents, advice, opinions, and correspondence “as to the applicability of Washington meal break or rest break time rules to railroads or railroad employees, ” regarding the “applicability of Washington meal break or rest break time rules to railroads or railroad employees who have entered into a collective bargaining agreement, ” “non-privileged internal memoranda or opinions as to the relationship between the federal Hours of Service Law, 49 U.S.C. § 21101-21109, and Washington maximum hours of work, overtime, rest break time, or meal time rules, ” and “[a]ny documents relating to investigations or enforcement actions against interstate railroads related to Washington meal break or rest break time rules to railroads or railroad employees” (Dkt. 31-1, at 2-3). BNSF states that the Department “produced a number of responsive documents, ” including the above November 2, 2016 email from a Union Pacific employee and the Department's response. Dkt. 31, at 2. The Department has also produced an August 1, 2017 email to the Department from attorney India Bodien which provided:

I was hoping you might provide some guidance regarding L & I's authority to promulgate and enforce regulations that cover railroad employees. Specifically, I am trying to figure out whether WAC 296-126-092 (4) would apply to railroad employees.
From what I have found so far, it looks like railroads are not excluded from L & I's rule making power. RCW 43.22.270 (4) states that: “The director of Labor and Industries shall have the power, and it shall be the director's duty . . . to, with the assistance of the supervisor of employment standards, supervise the administration and enforcement of all laws respecting the employment and relating to the health, sanitary conditions, surroundings, hours of labor, and wages of employees employed in business and industry in accordance with the provisions of chapter 49.12 RCW.” There is no exclusion here for railroads (or railroad employees), nor is there an exclusion under RCW 49.12 (in fact 49.12's declaration states that it pertains to “all employees, ” RCW 49.12.010). The title of Chapter 296-126 is “Standards of Labor for the Protection of Safety, Health, and Welfare for all Employees in All Occupations Subject to Chapter 49.12 RCW.” For these reasons, [i]t would seem that WAC 296-126-092 (4), which was issued by L & I, would protect railroad employees.
However, I am a little confused about the railroad exclusion in RCW 43.22.050 (1). That law states that: “The Director of [L]abor and [I]dustries shall . . . exercise all the power and perform all the duties prescribed by law in relation to the inspection of factories, mills, workshops, warerooms, stores and buildings, and the machinery and apparatus therein contained, and steam vessels and other vessels operated by machinery, and in relation to the administration and enforcement of all laws and safety standards providing for the protection of employees in mills, factories, workshops, and in employments subject to the provisions of Title 51 RCW, and in relation to the enforcement, inspection, certification, and promulgation of safe places and safety device standards in all industries: PROVIDED, HOWEVER, this section does not apply to railroads.”
On its face, this particular RCW seems to be less about overall rulemaking authority and more about inspection authority and rulemaking authority with regard to safe places and “safety standards, ” i.e. the standards of the physical work environment. However, because the law describes “safety standards, ” an argument could be made that it encompasses WAC 296-126-092 (4), which is a rule issued under the heading “Standards of Labor for the Protection of Safety, Health and Welfare.” Any guidance on these RCWs and whether they exclude or include railroad employees with regard to Chapter 296-126 WAC, and, specifically WAC 296-126-092 (4) would be greatly appreciated.

         Dkt. 11, at 3-4. On August 10, 2017, Mr. DeBeaumount responded with:

My name is Brent DeBeaumont, and I am the Wage and Hour Technical Specialist with the Washington State Department of Labor & Industries. I provide guidance on wage and hour laws and regulation in my role with the department. ...

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