IN THE SUPREME COURT
OF THE STATE OF WASHINGTON

No. 89723-9

(On appeal from King County Superior Court Case # 13-2-25352-6 KNT)

FILO FOODS, LLC, BF Foods, LLC, ALASKA AIRLINES, INC., and
WASHINGTON RESTAURANT ASSOCIATION,
Respondents/Cross-Appellants,
v.
CITY OF SEATAC,
Appellant/Cross-Respondent,
and

PORT OF SEATTLE,
Respondent,
and

SEATAC COMMITTEE FOR GOOD JOBS,
Appellant/Cross-Respondent.

FILO FOODS, LLC, BF FOODS, LLC, ALASKA AIRLINES, INC,
AND WASHINGTON RESTAURANT ASSOCIATION MOTION
FOR RECONSIDERATION AND CLARIFICATION

Harry J. F. Korrell, WSBA #23173   Cecilia Cordova, WSBA # 30095
John Hodges-Howell, WSBA     Pacic Alliance Law, PLLC
#42151                  601 Union St. Suite 4200
Davis Wright Tremaine LLP      Seattle, WA 98101
1201 Third Avenue, Suite 2200     (206) 652-3592 Phone
Seattle, WA 98101-3045 ,         (206) 299-0999 Fax
(206) 6223150 Phone
(206) 7577700 Fax

Attorneys for Alaska Airlines and    Attorney for Filo Foods, LLC and
Washington Restaurant Association  BF Foods, LLC


DWT 27798459v9 0017572-0001'76

I.      IDENTITY OF ENTITY FILING THE MOTION

Pursuant to RAP 12.4, Respondents/CmssAppellants (Plaintiffs

below) Filo Foods, LLC; BF Foods, LLC; Washington Restaurant

Association; and Alaska Airlines move for reconsideration and

clarication of Filo Foods, LLC v. City ofSeaTac, No. 89723-9, 2015 WL

4943967 (Aug. 20, 2015) (the "Opinion").

II.    STATEMENT OF RELIEF SOUGHT

Plaintiffs seek reconsideration of the Court's Opinion for the

following reasons:

First, because the Court misapprehended the scope of the

exclusive authority granted to municipal owners of airports in the Revised

Airports Act, Chapter 14.08 RCW, and the practical consequences of

changing a long-established and widely-understood allocation of

municipal authority, the Court should reconsider the Opinion and hold that

the Act prohibits the application and enforcement of Proposition 1 at the
'
Seattle-Tacoma International Airport.
Second, the Court misapprehended federal labor law preemption
analysis and, without conducting the broad inquiry required, found that

Proposition 1 is not preempted. Specically, the Court expressly declined

to consider the cumulative effect of the ordinance's many provisions, as it

is required to do under federal law. The Court also wrongly anticipated the



.
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LLC
NLRB'S holding in GVS Properties,    and International Association of

Machinists andAerospace Workers, AFLCIO, District Lodge 15, Local

Lodge 447, Case 29-CA-077359, 362 NLRB. 194 (Aug. 27, 2015),

which undercuts this Court's reasoning. The Court should, therefore,

reconsider the Opinion, analyze both the aggregate effects of Proposition 1

on the bargaining process and the NLRB's recent holding in GVS

Properties, and hold that Proposition 1 is preempted by federal labor law.

Third, the Court misapprehended two key aspects of federal law in

its analysis of preemption under the Airline Deregulation Act.

Specically, the Court assumed incorrectly that laws governing the

employer-employee relationship are not preempted as a matter of federal

law. It also assessed the effect of Proposition 1 only on "fares," without

assessing the effect on "services," which it was required to do. The Court

should reconsider the Opinion and hold that Proposition 1 is preempted by

the Airline Deregulation Act.

In the event the Court does not reconsider the Opinion, Plaintiffs

seek clarication of the Court's Opinion for the following reasons:

First, the Court should clarify the nature of irther proceedings.
the Court
Specically,       should make clear that on remand the parties have

the opportunity to develop a factual record regarding whether




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implementation of Proposition 1 would interfere with airport operations

and affect airline prices, routes, or services.

Second, the related appeal regarding the sufciency of the

signatures offered in support of the initiative petition for Proposition 1 is

still pending in this Court. If the Court determines that Proposition 1 is

invalid because it was not supported by sufcient voter signatures, the rest

of this appeal is moot. Until that appeal is decided, the trial court and the

parties will be left with considerable uncertainty, including whether to

conduct expensive and time consuming discovery and trial while a

potentially dispositive issue remains on appeal. The Court should

therefore clarify that the validity of Proposition 1 is still an open question

and rule on that pending appeal expeditiously.

III.   GROUNDS FOR RELIEF AND ARGUMENT

A.   The Court Should Reconsider its Opinion Because it
Misapprehended State and Federal Law and Overlooked the
Practical Consequences of its Decision.

1.     The Majority Misapprehended the "Exclusive
Jurisdiction and Control" Granted By the Legislature
to the Port of Seattle and Overlooked the Consequences
of its New Case-By-Case Test.

Under the Revised Airports Act, "[e]very airport and other air

navigation facility controlled and operated by any municipality [such as

the Port of Seattle]
. . . shall, subject
to federal and state laws, rules, and

regulations, be under the exclusivejurisdiction and control of the


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municipality . . . controlling and operating it." RCW 14.08.330 (emphasis

added). The Act deprives a city or county in which an airport sits of both

"police power" (the power to regulate for the general health, safety, and

welfare) and "police jurisdiction" (the power to exercise. any

extraterritorial jurisdiction), except with respect to the local re code and

those limited areas in which the Act expressly provides for "concurrent

jurisdiction." Id. As the Port of Seattle explained in its brief, "[e]very

Sentence in RCW 14.08.330 conrms and reinforces the exclusive nature

of the Port's jurisdiction at STIA." Br. of Resp't Port of Seattle, at 14.

And so do this Court's earlier cases, the legislative history, and the

treatment of grants of "exclusive jurisdiction" in other contexts. Id. at 14-

22. With respect, the majority Opinion misapprehended the regulatory

regime at the airport and the legal and practical consequences of its

decision.

First, the majority Opinion reasoned that to interpret the Act "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 ll this regulatory gap
* 6. But the
through its normal rule-making authority." Opinion at

Opinion's reliance on a "regulatory gap" is misplaced. The authority to


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regulate for the general welfare, including wages and working conditions,

resides where the legislature intended (and where it has resided statewide

for 126 years)with the state and federal governments, both of which

heavily regulate wages, hours, and other working conditions at SeaTac

International Airport and elsewhere in Washington. See RCW 14.08.330

(every airport is "subject to federal and state laws, rules, and regulations"

but not to local rules or regulations); Opinion at *19 n.1 (J. Stephens,

dissenting in part); Br. of Resp't Port of Seattle at 32-33.1

Second, the majority overlooks the consequences of its decision to

devise a new test ("interferes with airport operations") that appears

nowhere in the statute. By crafting this new test, the Court has created the

public impression that it has substituted its judgment for that of the

legislature to accomplish its desired result.2 And by deviating from the

understanding that has prevailed in Washington since the Act's adoption

in 1945, the Opinion creates signicant uncertainty and guarantees more

litigation.


1
Subsequent to the argument in this case, the Port of Seattle adopted a "Quality Jobs
Initiative" that imposes minimum wage and other working conditions on certain
employers and employees at SeaTac International Airport. See Quality Jobs at the Port of
Seattle, https://www.portseattle.org/About/Commission/Pages/Quality-Jobs.aspx (last
visited Sept. 6, 2015).
2
See Seattle Times, Aug. 4, 2015, Seattle Times Editorial Board, Hold the applause for
the $15 minimum-wage experiment ("The Supreme Court exed its ideological muscle to
reach what appears to be a predetermined conclusion in favor of $15.").



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The new test will require cities and municipal airport owners (and

eventually courts) to decide whether a regulation crosses the line and

intrudes on "airport operations" and whether the owner of the airport still

has "exclusive" jurisdiction over the subject of the new rule. Further, this

determination will have to be made on a case-by-case basis as cities and

owners of airports will now have to confront innumerable questions about

where the line belongs: Does an ordinance interfere with airport
operations if it coerces airlines to abandon the use of contractors and to
bring inhouse services like passenger check-in, baggage handling, aircraft
cleaning, aircraft fueling, etc.? Does an ordinance interfere with airport

operations if it changes the mix of concession providers, driving out small

local businesses in favor of large, national chains better able to absorb

higher costs and negotiate with unions? What if the Ordinance makes it

harder for the Port of Seattle of maintain the level playing eld the FAA

requires for women and minority owned business, like Filo Foods and BF

Foods?3 Does an ordinance interfere with airport operations if it forces the

Port of Seattle to abandon its "street pricing" rule to allow businesses to

charge substantially more at the airport than they charge outside to help

3
The US. Department of Transportation regulations, 49 CFR Part 23, require the Port of
Seattle, as a recipient of DOT nancial assistance, to ensure, nurture and facilitate
nondiscriminatory participation ofwomen and minority business owners in concessions
at the airport, without the use of set-asides or quotas.




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offset increased costs? Does an ordinance interfere with airport operations

if, by restricting the use of part-time employees, it reduces the exibility

of contractors to accommodate airlines' preferred ight schedules (e.g.,

peak morning schedule followed by a mid-morning lull)? What if the

increase to contractors' labor costs caused by this inefciency affects

airlines' scheduling decisions? Does an ordinance interfere with airport

operations if it causes airlines to consider moving operations to other

airports (such as Everett or Portland)? What if airport tenants negotiate

for substantially different lease terms as a result of the ordinance? What if

the Ordinance reduces the Port's airport operating revenues?

Whether these kinds of changes in airport operations are good or

not is debatable, but the Legislature gave the exclusive authority to make

these decisions to the municipality that owns and operates the airport, not

to a few thousand voters of a city like SeaTac. With respect, this is not

what the legislature intended. See Opinion at *21 (J. Stephens, dissenting

in part). It is more likely that the legislature intended the oppositeto

prevent this unpredictable, piecemeal approach to regulating the airports

when it granted the municipalities that own and operate them "exclusive

jurisdiction and control."

Similarly, and more concretely, the Opinion blurs previously

settled boundaries between the Port of Seattle and the City of SeaTac over



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the SeaTac International Airport. The relationship between the City and

the Port is governed in large part by an Interlocal Agreement that allocates

responsibility for regulating land use issues (including building permitting,

building code enforcement, and economic development), surface water

management, transportation, and material hauling, among other things.

CP 1753-62.4 The agreement was negotiated based on the understanding

that "the city codes and ordinances do not govern these matters" during

the term of the agreement. Going forward, as a result of the Opinion, the

city is certain to assert its new-found authority to regulate in many of these

it can
areas (without needing the consent of the Port) and any other area

claim does not "interfere with airport operations." The Opinion upends

the balance of power that has governed this relationship for many years

and will require an overhaul of the allocation of responsibilities and
.
authority between the Port and the city, with unpredictable consequences

for airport operations. This is contrary to the legislature's intent and to its

grant of "exclusive jurisdiction and control" to the municipality that owns

and operates the airport. See Opinion at *21 (J. Stephens, dissenting in

part)-


4
The Interlocal Agreement is also available at
http://www.ci.seatac.wa.us/index.aspx?page=109 (last visited Sept. 6, 2015).


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2.    The Opinion Misapprehended the Signicance of
Proposition 1 for Employers' and Employees' Rights
Under Federal Labor Law.

Plaintiffs argued that Proposition 1 was preempted in its entirety

by both the National Labor Relations Act, 29 U.S.C.  151-59, and the
the Machinists
Railway Labor Act, 45 U.S.C.  1518 8, under

preemption doctrine. See Lodge 76, Int '1 Ass 'n ofMachinists &

Aerospace Workers v. Wis. Emp '1' Relations Comm 'n, 427 US. 132

(1976). The Court rejected this argument after refusing to consider the

cumulative effect of the ordinance's many provisions on collective

bargaining and union organizing. This approach was contrary to the

analysis required by established federal law.
while some of the individual provisions of
Plaintiffs argued that

Proposition 1 were similar to provisions that had withstood preemption

challenges in other cases, the cumulative effect of so many provisions

drafted by and for the benet of organized labor was to put a "thumb on

the scale" in favor of unions in both bargaining and organizing.5 Plaintiffs


5
As explained in the brieng, see,                              Cross
e. g., Filo Foods, LLC, et al.'s Reply Br. on
Appeal at 12-17, by design Proposition 1 affected the respective bargaining power of
employers and unions by providing for dramatically higher minimum wages, paid time
'  off, required retention of workers in the event of an acquisition, restrictions on use of
part-time stafng, etc. These provisions are normally the subject of negotiations in the
See The Developing Labor
course of bargaining for a collective bargaining agreement.
Law 1341, 1378-1446 (6th ed. 2012). The right to make such core entrepreneurial
decisions is a key economic weapon taken from employers by Proposition 1. On top of
all of that, the ordinance allows a union to waive all of these provisions on behalf of



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argued that such local interference with the bargaining process in favor of

RLA.6
one side was therefore preempted by the NLRA and the

This Court expressly declined to consider this cumulative effect,

stating in a footnote that there was "no authority" for the proposition that

individual provisions could "work together in cumulative effect to become

preempted." Opinion at *11 n6. The Court held that "[w]ithout such

authority, Fort Halifax Packing Co. [v. Coyne, 482 US. 1 (1987)] and
Metropolitan Life Insurance Co. [v. Mass, 471 US. 724 (1985)] require
us to hold that the NLRA does not preempt minimum labor standards,

Id. But such
even when several such standards appear in one ordinance."

authority exists and should have been controlling. Under established

federal law, a court evaluating whether a state or local rule is preempted

by federal law must consider the "aggregate potential effect of a type of

regulation" as a whole. CF. & I Steel, LP. v. Bay Area Rapid Transit

Dist, No. COO-00529 WHA, 2000 WL 1375277, at *11 (N. D. Cal. Sept.

19, 2000), citing Wisconsin Dep't ofIndus. v. Gould, Inc. 475 US. 282
,

(1986).


employees (without even requiring alternative terms) to induce an employer to reach
agreement.
6
It is not a surprise that the ordinance is so one-sided (as many initiatives are): it was an
initiative drafted and supported by activists and it did not benet from any of the back
and forth and compromise ofthe normal legislative process.



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when
As the US. Supreme Court instructed in Gould,    a court

considers the potential effect that a collection of provisions could have on

federal labor law, it must look at the cumulative effect of all of them. The

court explained that because "[e]ach additional statute incrementally

diminishe[d] the Board's control over enforcement of the NLRA and thus

further detract[ed] from the integrated scheme of regulation created by

Congress," the state law was preempted under the NLRA. Gould, 475

US. at 288-89 (internal quotations omitted). See also Massachusetts

Delivery Ass 'n. v. Coakley, 769 F.3d 11, 20 (lst Cir. 2014) (when

evaluating preemption "[t]he court must engage with the real and logical

effects ofthe state statute, rather than simply assigning it a label" like

"backgrOund" or "labor law") (emphasis added); Brown v. United Airlines,

Inc., 720 F.3d 60, 66-67 (lst Cir. 2013) ("It dees logic to think that

Congress would disregard real-world consequences and give dispositive

effect to the form of a clear intrusion into a federally regulated industry").

Here, Proposition 1 imposes onerous substantive requirements on

nearly every aspect of the employment relationship, and the only way for

an employer to avoid application of the Ordinance is to enter into a

collective bargaining relationship with a union and negotiate a waiver. See

Am. Answer Br. and Opening Cross-Appeal Br. of Filo Foods, LLC, et al.

("Br.") at 33-34. The Ordinance also compels employers to make


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concessions to unions without allowing employers to bargain for any

tradeoff. Thus, even if the individual components of the Ordinance are not

sufciently onerous (standing alone) to interfere with the balance between

labor and management to trigger preemption, the aggregate effect of all of

the provisions (taken together) severely restricts bargaining freedom. The

Court's decision here not to consider the effect of these provisions in the

aggregate was based on a misapprehension of federal law.

The Opinion also incorrectly analyzed Proposition 1's effect on

federal labor rights with respect to one of its central provisions: the

employee retention requirement in SMC 7.45.060. That provision requires

a company that takes over a business to employ the predecessor's

employees for an initial period of 90 days. Plaintiffs argued that this

provision meant the measure was preempted under Machinists because it

inhibits the free play of economic forces by requiring employers to retain

employees it would otherwise have no obligation to retain, which makes it

.  substantially more likely that the employer will be deemed a "successor"

with a duty to recognize the employees' union and bargain with it. See Br.

at 39-43. The Opinion rejected this argument, reasoning that, because the

employer's retention of employees under Proposition 1 would not be

voluntary, it would not trigger successor status and an obligation to
* 12 n.8. But
recognize the union and bargain with it. Opinion at          as


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demonstrated by a recent decision of the National Labor Relations Board,

this is an incorrect understanding of federal labor law.

In GVS Properties, LLC and International Association of

Machinists andAerospace Workers, AFL-CIO, District Lodge 15, Local

Lodge 447, Case 29-CA-077359, 362 NLRB. 194 (Aug. 27, 2015), the

NLRB considered whether a new employer becomes a successor when,

pursuant to a local worker retention statute, it is required to employ the

predecessor's employees for a specic period of time after assuming

control of the business. The Board said "yes." Id. at 3 ("Respondent

became a Burns successor with an obligation to recognize and bargain

with the Union when it assumed control over the predecessor's business,"

not after the mandatory retention period expired). In so holding, the

NLRB rejected
the
rationale offered by this Court for upholding the

Ordinance against Plaintiff s preemption challenge. Specically, the

NLRB "'[found] no merit in the argument . . . that the successorship

determination could not be made until after the [statutory mandated]

retention period had ended" because the successor employer did not

voluntarily retain employees during the retention period. Id.7

7
This Court relied on Rhode Island Hospitalin Association v. City ofProvidence, 667
F.3d 17 (lst Cir. 2011), which upheld a worker-retention ordinance substantially similar
to Proposition 1. But the First Circuit did so because it made the same mistaken
presumption that this Court madethat the Burns successorship obligation would not


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Furthermore, the NLRB majority and the dissent observed that, as

like those in
a result of the Board's holding, worker-retention provisions
Proposition 1 may be preempted by the NLRA. Id. at 6-7 (possible

preemption is not a sufcient reason to delay successor determination), 9
death knell for local
(dissent noting that the decision "could prove the

worker retentiOn statutes" because it "paves the way for these statutes to

the Constitution"). Because
run headlong into the Supremacy Clause of

this is an evolving area of labor law, it is understandable that the Court

applied the successorship doctrine incorrectly. Still, the fact remains that

the Opinion misapprehended federal labor law.

Because the Court's Opinion did not properly evaluate the effect of

a central provision of Proposition 1 or the cumulative effect of its

in Plaintiffs'
numerous provisions (and for all the other reasons articulated

brieng), this Court should reconsider the Opinion and hold that

Proposition 1 is preempted by federal labor law.

3.    The Court's Opinion Adopted an Overly-Narrow View
of Preemption Under the ADA and Focused Exclusively


arise until after the mandatory retention period expired. See GVS Properties at 9
("Several courts [included the First Circuit in Rhode Island Hospitality,] have rejected
challenges to [local worker-retention statutes] on Federal preemption grounds, but they
have entirely predicated their decision on the assumption that the Board would not take
the position it does here"). The Board's decision in GVS Properties thus negates a
central premise of Rhode Island Hospitality, and this Court's reliance on it is therefore
misplaced.


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on the Effect of Increased Labor Costs on Ticket Prices,
Contrary to Federal Law.

Plaintiffs argued that Proposition 1 is preempted by the Airline

Deregulation Act of 1978, 49 U.S.C.  41713(b)(1), in part because one of

the intended effects of the ordinance is to coerce airlines to change the

to perform many
way they do business, including their use of contractors

airline services such as curbside passenger check-in, baggage handling,

aircraft interior cleaning, aircraft fueling, etc. Br. at 435 1. The Opinion

rejected this argument. The Court held that because the ordinance

"regulates the employer-employee relationship" and does "not directly

regulate airline prices and services," the imposition of increased labor

costs and the resulting effect on fares "is inconsequential" and the

* 16. As explained
ordinance is therefore not preempted. Opinion at

below, the Court's holding is premised on a misunderstanding of two

fundamental aspects of federal law.

First, this Court seemed to believe that if a local law regulates the

employer-employee relationship, its effect "on airline prices and services

is only indirect and tenuous" as a matter of law and, therefore, it will not

be preempted by the ADA. Id. But that is a misreading the ADA. As the

First Circuit recently explained, even "generally applicable labor standards





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look at the actual
may be preempted, and a reviewing court is required to

and logical effects of the local rules in deciding preemption issues.

In Massachusetts Delivery Association v. Coakley, 769 F.3d 11

(1st Cir. 2014), the court rejected the premise of this Court's Opinion that

background labor laws are not preempted as a matter of law, explaining

that such a rule "runs counter to Supreme Court precedent broadly

interpreting the 'related to" language in the [Federal Aviation

Administration Authorization Act (FAAAA)]."8 Id. at 19. At issue was

the Massachusetts Independent Contractor Statute, which dened who is

and who is not an independent contractor. It required all workers who

perform a service that was in the "usual course of business" of an

employer to be classied as an employee. This classication triggered

obligations under various wage and employment laws applicable to

employees, which resulted in higher labor costs for the "employers." The

trial court
found no
preemption, reasoning "[t]hat a regulation on wages

has the potential to impact costs and therefore prices is insufcient to

implicate preemption." The First Circuit reversed. Id. at 21-22 (internal

quotations omitted).9

8
Courts, including this one, recognize that the FAAAA's broad preemption provision is
identical to and construed in pari materia with the ADA's. See Opinion at *16.
9
This Court's Opinion relies heavily on DiFiore v. American Airlines, Inc, 646 F.3d 81
(lst Cir. 201 1), and cites it for the proposition that the ADA cannot preempt background


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The holding and rationale of Coakley is consistent with other

federal cases holding that ADA preemption applies to other minimum

10
labor standards governing the employer-employee relationship.  See,

2d 1360, 1362-64
e.g., Tucker v. Hamilton Sundstrand Corp, 268 F. Supp.

(S.D. Fla. 2003) (ADA preempted Florida Whistleblowers Act claim of

former employee of repair station that repaired generators used in

commercial and military aircraft); Marlow v. AMR Servs. Corp., 870 F.

Supp. 295, 297-99 (D. Haw. 1994) (ADA preemption applied to claim of

employee ofjet bridge maintenance company). This Court's premise that

district
wage and other labor legislation may not be preempted, like the

court's similar misunderstanding in Coakely, was a "critical error" in the

preemption analysis, 769 F.3d at 21, that should be reconsidered.

Second, the Court's analysis of whether Proposition 1 was "related

to" airline prices, routes, and services, as required by Morales v. Trans

World Airlines, Inc., 504 US. 374, 384 (1992), was too narrow. The


labor legislation that only indirectly affected fares or services. The First Circuit's
subsequent Coakley decision rejects this reading ofDiFiori and claries that there is no
rule against preemption of generally applicable local labor laws. Coakley, 769 F.3d at
19-20.
1
Plaintiff does not concede that Proposition 1 is a minimum labor standard. To be
considered a minimum labor standard, the Ordinance must be, among other things,
generally applicable. See, e.g., 520 S. Mich. Ave. Assocs. Ltd. v. Shannon, 549 F.3d
1119, 1130 (7th Cir. 2008). Proposition 1 is not a generally applicable law. It targets
only transportation and hospitality employers (but not airlines) in and around SeaTac
International Airport and expressly applies its provisions to employees performing airline
services, such as baggage handling, aircraft fueling, etc. Br. at 45. Proposition 1,
therefore, is not a minimum labor standard.



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Opinion evaluates only the effect of Proposition 1, and the attendant

increases in labor costs, on "fares." But the correct preemption analysis

requires an assessment of the "real and logical effects" that the ordinance

has on the delivery of services and the setting of fares. See Coakley, 769

F.3d at 21-22 (error for trial court to consider only the effect on prices

instead of prices, routes, and services); N.H. Motor Transp. Ass 'n. v.

Rowe, 448 F.3d 66, 82 n.14 (1st Cir. 2006) (noting that courts examine

"the logical effect that a particular scheme has on the delivery of services

or the setting of rates").

Proposition 1 signicantly affects the delivery of essential airline

services. It expressly applies to providers of the following airline

services: "curbside passenger check-in services; baggage check services;

wheelchair escort services; baggage handling; cargo handling; rental

luggage cart services"; "customer service"; "aircraft interior cleaning;

aircraft carpet cleaning; aircraft washing and cleaning; . . . aviation ground

support equipment washing and cleaning; aircraft water or lavatory

services; aircraft fueling; ground transportation management"; and others.

SMC 7.45.010. At the same time, the ordinance also expressly excludes

from its coverage airlines performing these services for themselves. Id.

(excluding airlines from the denition of "Transportation Employer").

The effect of this discrimination against airlines that rely on contractors



DWT 27798459v9 0017572-000176          1 8

(such as Alaska) is to coerce airlines to stop using contractors and to bring

the work inhouse to avoid the application of the Ordinance (and the

attendant increases in labor costs and the imposition of the other

burdensome rules in Proposition 1). As noted in Plaintiffs' brieng, this

interference with the way airlines perform some of their essential services

was an intended consequence of Proposition 1 and a reaction to the

perceived negative consequences of deregulation by the ADA. Br. at 50.

The Opinion does not address these issues and focuses instead only on

whether a risk of increased prices due to higher labor costs constitutes

grounds for preemption.

This Court's narrow reading of the ADA's preemption provision

disregards the US. Supreme Court's determination that ADA preemption

is triggered by any laws or enforcement actions that "relate to" or have "a'

connection with, or reference to" airline prices, routes, or services.

Morales v. Trans World Airlines, 504 US. at 384. Proposition 1 is

"related to," has "a connection with," and makes explicit "reference to"

airline services. The direct effect of the Ordinance will not just be higher

prices. It will be to change the way some airlines provide essential

services. The Court's failure to address the real-world consequences of

Proposition lcoercing airlines to change from a business model that

relies on contractors to performing work in housereects a



DWT 27798459v9 0017572-000176          19

misapprehension 'of controlling federal law. As the US. Supreme Court

recently observed, "it dees logic to think that Congress would disregard

real-world consequences and give dispositive effect to the form of a clear

intrusion into a federally regulated industry." Northwest, Inc. v. Ginsberg,

134 S.Ct. 1422, 1429-33 (2014) (holding that common law claim for

breach of implied covenant "relates to" airline prices, routes, or services).

B.   The Court Should Clarify its Opinion to Address
Further Proceedings on Remand and the Pending
Signature Verication Appeal.

In the event the Court does not reconsider the Opinion as

requested, Plaintiffs respectfully request that the Court clarify the issues

remaining for remand and the pending signature verication appeal.

Doing so will promote judicial economy and remove potential ambiguity

concerning the Court's Opinion.

1.     The Court Should Clarify that Plaintiffs Are Entitled to
Present Evidence at Trial to Show That Proposition 1
Interferes With Airport Operations and Affects Airlines
Prices, Routes, or Services.

The Opinion reversed a trial court's grant of summary judgment to

Plaintiffs after expedited proceedings. The Court expressly concluded the

trial court's decision "was a summary judgment disposition" and noted

that the trial court "made clear it was . . . not resolvingfactual disputes as

to the consequences ofProposition 1 on airport operations." Opinion at




DWT 27798459v9 0017572-000176          20

*2 n.3 (emphasis added). See United Pac. Ins. Co. v. Boyd, 34 Wn. App.

372, 377 (1983) (courts do not make factual ndings in summary

judgment proceedings). Normally, after reversal of a summary judgment,

when no cross-motion for summary judgmentis led, the Court remands

for further proceedings, including discovery and a possible trial. See, 6. g.
,
McCullough v. E. I. du Pont de Nemours & Co., 68 Wn.2d 127 (1966)

(reversing summary dismissal and remanding for trial); Guy Stickney, Inc.

And Plaintiffs understand
v. Underwood, 67 Wn.2d 824 (1966) (same).

the Opinion to recognize they have the opportunity on remand to

demonstrate Proposition 1 will interfere with airport operations and affect

airline prices, routes, or services. Some language in the Opinion,

however, has led to public speculation that this case has been fully

resolved by the Court.

The Opinion said that "Proposition 1 can be enforced at the

* 18. But the Court
SeattleTacoma International Airport." Opinion at

qualied this conclusion and explained that it reached that result "because

there has been no showing that this law would interfere with airport

operations." Id. The same explanation and qualier appears throughout

the Opinion. See Opinion at *1 ("because there is no indication that it will

interfere with airport operations"); *4 ("because the Port of Seattle does

not show that Proposition 1 would interfere with airport operations"); *9




DWT 27798459v9 0017572-000176         21

("[a]bsent a factual showing that Proposition 1 would interfere with airport

operations").

These issues were not considered by the trial court previously

because the Opinion articulated a new standard governing the state law

question whether the city may impose regulations at the airport and

because the trial court did not reach the issue of federal preemption under

the ADA. See Opinion, at *15. Remand is appropriate in a case such as

this where a more thorough examination of the facts is required because

the facts were "thought unnecessary to be established" at trial. City of

Sumner v. First Baptist Church ofSumner, 97 Wn.2d .1, 4 (1982). To

avoid uncertainty and to promote judicial economy, Plaintiffs respectfully

request that the Court clarify that the procedural posture of the case after

remand will allow development of a factual record regarding whether

Proposition 1 will interfere with airport operations and whether it will

affect airline prices, rOutes, or services.

2.    The Court Should Rule on the Pending Appeal
Regarding the Sufficient of Signatures.

As the Court noted at footnote 1 of the Opinion, the Court stayed a

petition for review in the related initiative petition signature case. Filo

Foods, LLC et al., v City ofSeaTac, No. 90113-9. The Court consolidated

that appeal with this case. Order Deferring Review,_Filo Foods, LLC v.




DWT 27798459v9 0017572-000176         22 /

City ofSeaTac, No. 901139 (Apr. 30, 2014). The Court, however, has

not resolved the potentially dispositive issue in the consolidated appeal.

As a result, the parties and trial court are in the uncertain position of
spending further resources on discovery and additional proceedings,
when the dispute
including trial,             may be fully resolved by the pending

consolidated appeal.

In the interest ofjudicial economy, Plaintiffs respectfully request

that the Court clarify that the validity of Proposition 1 remains

undetermined pending resolution of the consolidated appeal. Moreover,
Plaintiffs
suggest the mandate should be stayed and issue only when the

consolidated appeal is resolved.

IV.   CONCLUSION

For the foregoing reasons, Plaintiffs request the Court to reconsider

its Opinion, afrm the decision of the trial court that under state law

Proposition 1 cannot be enforced at the SeaTac International Airport,

reverse the decision of the trial court regarding federal preemption, and

hold that Proposition 1 is preempted by federal law. If the Court is not

willing to reconsider the Opinion as requested, at a minimum the Court

should clarify its Opinion (a) to indiCate that the Plaintiffs will have an

opportunity to present evidence at trial that Proposition 1 does, in fact,

interfere with airport operations and affect airline prices, routes, or



DWT 27798459v9 0017572-000176         23

services and (b) to resolve the pending appeal regarding the sufciency of

signatures submitted in the attempt to qualify Proposition 1 for the ballot.


RESPECTFULLY SUBMITTED this 9th day of September, 2015.


Attorneys for Alaska Airlines, Inc.   Attorney for Filo Foods, LLC and
'
and Washington Restaurant       BF Foods, LLC
Association

1
By 5/ Harry J. F. Korrell          By 5/ Cecilia Cordova
Harry J. F. Korrell, WSBA #23173  Cecilia Cordova, WSBA # 30095
John HodgesHowell, WSBA     Pacic Alliance Law, PLLC
#42151                 601 Union St. Suite 4200
Davis Wright Tremaine LLP      Seattle, WA 98101
1201 Third Avenue, Suite 2200    (206) 652-3592 Phone
Seattle, WA 98101-3045        (206) 299-0999 Fax
(206) 622-3150 Phone
(206) 7577700 Fax









DWT 27798459v9 0017572-000176          24

CERTIFICATE OF SERVICE

The undersigned declares under the penalty of perjury under the

laws of the State of Washington that I am now and at all times herein
mentioned a citizen of the United States, a resident of the state of

Washington, over the age of eighteen years, not a party to or interested in
the above-entitled action, and competent to be a witness herein.

On this date I caused to be served in the manner noted below a

copy ofFILO FOODS, LLC, BF FOODS, LLC, ALASKA AIRLINES,

INC, AND WASHINGTON RESTAURANT ASSOCIATION MOTION

FOR RECONSIDERATION AND CLARIFICATION on the following:

Via E-Mail and U.S. Mail      Via EMail and U.S. Mail
Dmitri L. Iglitzin              Wayne Douglas Tanaka
Laura Ewan              Ogden Murphy Wallace
Jennifer L. Robbins           901 5th Avenue, Suite 3500
Schwerin Campbell Barnard     Seattle, WA 98164-2008
Iglitzin & Lavitt LLP          wtanaka@omwlaw.com
18 W. Mercer Street, Suite 400
Seattle, WA 98 1 1 9-3971
iglitzin@workerlaw.com
ewan@workerlaw.com
robbins@workerlaw.com

Via E-Mail and U.S. Mail      Via E-Mail and U.S. Mail
Mary E. Mirante Bartolo        Timothy George Leyh
Mark Sterling Johnsen         Shane P. Cramer
City of SeaTac              Calfo Harrigan Leyh & Eakes LLP
4800 s. 188th Street            999 3rd Avenue, Suite 4400
SeaTac, WA 98188-8605       Seattle, WA 98104-4017
mmbartolo@ci.seatac.wa.us     timl@calfoharrigan.com
mjohnsen@ci.seatac.wa.us      shanec@calfoharrigan.com



DWT 27798459v9 0017572-000176          25

Via E-Mail and U.S. Mail      Via E-Mail and U.S. Mail

Frank J. Chmelik            Christopher Howard
Seth Woolson             Averil Rothrock
Chmelik Sitkin & Davis, PS.     Virginia Nicholson
1500 Railroad Avenue         Schwabe Williamson & Wyatt
Bellingham, WA 98225       1420 Fifth Avenue, Suite 3400
fchmelik@chmelik.com       Seattle, WA 98101-4010
choward@schwabe.com

Via E-Mail and U.S. Mail     Via E-Mail and U.S. Mail
Amicus, Airlines for America   Amicus, MasterPark LLC

M. Roy Goldberg           Patrick D. McVey
Sheppard Mullin Richter &      James E. Breitenbucher
Hampton LLP           Riddell Williams RS.
1300 I Street, N.W., Ste 1100     1001 Fourth Avenue, Suite 4500
East                    Seattle, WA 98154
Washington, DC 20005       pmcvey@Riddellwilliams.com
rgoldberg@sheppardmullin.corn  jbreitenbucher@Riddellwilliam's.com

Robert J. Guite
Sheppard Mullin Richter &
Hampton LLP           Via E-Mail and U.S. Mail
Four Embarcadero Center, 17th
Amicus, National Employment
Floor
Law Project
San Francisco, CA 94111
rguite@sheppardmullin.com     Diego Rondon Ichikawa
Rebecca Smith
Douglas W. Hall            National Employment Law Project
Ford Harrison
317 '17'" Ave., South
1300 19th Street, N.W., Ste. 300
Seattle, WA 98144
Washington, DC 20036 '       drondon@nelp.org
DHall@fordharrison.com      rsmith@nelp.org





DWT 27798459v9 0017572-000176         26

Via E-Mail and U.S. Mail      Via E-Mail and U.S. Mail
Amicus, Attorney General of    Amicus, Association of
Washington             Washington Business

Robert W. Ferguson          Timothy J. O'Connell
Attorney General            Stoel Rives LLP
Noah Guzzo Purcell          600 University Street, Ste. 3600
Solicitor General             Seattle, WA 98101
PO Box 40100            tj oconnell@stoel.com
Olympia, WA 98504-0100
noahp@atg.wa.gov          Kristopher I. Tefft
1401 Fourth Avenue East, Ste. 200
Olympia, WA 98506-4484
Kris.Tefft@wsiassn.org

Via E-Mail               Via E-Mail

Cecilia Cordova, WSBA # 30095  Herman L. Wacker
Pacic Alliance Law, PLLC     Alaska Airlines
601 Union St. Suite 4200        PO. Box 68900
Seattle, WA 98101           Seattle, WA 98168-0900
cecilia@cordovalawrm.com    Herman.Wacker@alaskaair.com

Dated this 9th day of September 9, 2015.
W
Donna Alexander








DWT 27798459v9 0017572-000176         27