Filed: September 6, 2002

IN THE SUPREME COURT OF THE STATE OF OREGON

RICHARD SMOLDT,

Petitioner on Review,

v.

HENKELS & McCOY, INC.,

Respondent on Review.

(C96110508; CA A97994; SC S48007)

En Banc

On review from the Court of Appeals.*

Argued and submitted March 13, 2002.

Jacqueline L. Koch, of Koch & Deering, Portland, argued the cause for petitioner on review. With her on the brief was James Dana Pinney, Tualatin.

Dian S. Rubanoff, of Williams, Zografos & Peck, LLP, Portland, argued the cause for respondent on review. With her on the brief was Paula A. Barran, Portland.

RIGGS, J.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

*Appeal from Linn County Circuit Court, Daniel R. Murphy, Judge. 168 Or App 657, 7 P3d 638 (2000).

RIGGS, J.

The issue in this case is whether the existence of a collective bargaining agreement (CBA), standing alone, prevents an employee subject to that agreement from pursuing a claim for wages in excess of those specified in the CBA. Employee, Richard Smoldt, had an individual employment contract with employer, Henkels & McCoy, Inc. A CBA also covered employee's position. The wage rate provided by the individual contract was higher than the rate provided by the CBA. When employer paid wages according to the lower rate provided by the CBA, employee sought recovery from employer through a statutory wage claim. Both parties moved for summary judgment, and the trial court granted employer's motion. On appeal, the Court of Appeals affirmed. Smoldt v. Henkels and McCoy, Inc., 168 Or App 657, 7 P3d 638 (2000). Because we conclude that the CBA does not bar employee's wage claim under either state or federal law, we reverse and remand to the trial court for further proceedings.

We review the facts in the light most favorable to employee, against whom the trial court granted summary judgment, to determine whether employer is entitled to summary judgment.

Employer hired employee as an equipment operator at a rate of $14.48 per hour. A CBA between employer and Local 659 of the International Brotherhood of Electrical Workers, however, applied to employee's position and set wages for that position at $11.48 per hour. Employee worked for employer from May 24, 1996, to June 1, 1996. After receiving his first paycheck, employee discovered that employer had paid him at the $11.48 hourly rate, instead of the $14.48 hourly rate. Employer refused to adjust employee's paycheck to reflect the agreed-upon $14.48 rate. Consequently, employee terminated his employment.

Employee filed an action to collect unpaid wages under ORS 652.140(2), (1) penalties under ORS 652.150, (2) and attorney fees under ORS 652.200. (3) As noted, both parties moved for summary judgment. In support of its motion, employer argued that, under both ORS 652.140(5) (4) and section 301 of the National Labor Management Relations Act (NLRA), 29 USC